2008034 (Refugee)
[2025] ARTA 1881
•16 July 2025
2008034 (REFUGEE) [2025] ARTA 1881 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2008034
Tribunal:Clyde Cosentino
Date:16 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 16 July 2025 at 1:49pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions – business debts – employment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989
SZTAL v Minister for Immigration and Border Protection
SZTGM v Minister for Immigration and Border Protection [2017] HCA 34Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 24 October 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complimentary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant lodged an application for a protection visa on 24 October 2019. In that application, he provided the following information:
·He was born in [City 1], Sabah, Malaysia.
·He was [age] years old at the time of application.
·He was married [in] May 2011.
·He resided in [an address in] [City 1], Malaysia from [birth] to July 2019.
·He speaks, reads and writes Malay and English.
·He arrived in Australia on a visitor visa [in] July 2019.
·He worked in Malaysia as [an occupation 1], in [another business], and as a founding manager and director of a [business 1]s.
·He completed both his primary and secondary schooling in Malaysia.
·He claims that he left Malaysia because he owned a [business 1]. His business covered the whole state. He wanted a “new branch” in the neighbouring state and required business partners. He was able to secure two business partners who were able to invest in his business. They needed to acquire more funds and were able to eventually secure a large loan from a “private financial institution”. The applicant then noticed that the borrowed funds were being transferred to another account owned by one of his business partners. His partner then absconded, and the applicant was unable to cover the cost of the loan. He lost his earnings, and the “bank” warned him that he could face bankruptcy if he could not meet the payments.
·He claims that he approached police about his partner absconding with the money but that it was too late.
·He is fearful of the debt that awaits him if he returns to Malaysia. He claims that he went into depression and that his life was ruined as a result of what happened. He still has to meet his debt obligations if he was to return given that he has an agreement with the lender. He believes that his company will collapse because he is unable to meet the loan repayments. He is personally liable to the debt that he left behind even though the debt was also in his company’s name.
·He stated that he tried to seek help from the authorities in Malaysia but that they were unable to assist him because this was a matter between an individual and a private institution.
Delegate’s decision
As mentioned above, the delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complimentary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
Evidence before the Tribunal
On 8 May 2020, the applicant lodged an application for review of the delegate’s decision not to grant him a protection visa.
Pre-hearing material
The first hearing for this matter was set down for 14 May 2025 by the Tribunal and was one of several cases to be heard in the allocated time frame on that day.
On 29 April 2025, the applicant emailed the Tribunal seeking a change of hearing place stating he was now residing in a different State.
On 6 May 2025, the Tribunal emailed the applicant with a new hearing notice inviting him to attend a hearing by video conference on 19 May 2025.
Rescheduled Tribunal hearing – 19 May 2025 (video conference)
The applicant appeared before the Tribunal on 19 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
When asked by the Tribunal whether he remembered his protection visa application lodged at the Department on 24 October 2019, he stated that he did not remember it because he had asked someone else to do the application for him.
When asked where he last lived in Malaysia before coming to Australia, he stated he lived at [an address in] [City 1], Malaysia. He stated that he had lived there since [birth] (which was consistent with his application).
He stated that his parents and siblings lived at that address. He stated that he had [number] siblings living in Malaysia and that he was number two of [these] siblings.
The applicant stated that he had his own house in [Town 1]. He is currently paying rent on that house from Australia. He has been paying rent on this house since 2017. His wife and [children] currently live in the house that he is paying rent for. He confirmed that he was financially supporting his wife and [children] in Malaysia while he was living in Australia.
He stated that he worked in a [business 2] and then as [an occupation 1] before coming to Australia.
He stated that he came to Australia on a 6-month tourist visa.
He stated that he applied for a protection visa not long before his tourist visa expired.
When asked why he applied for a protection visa in Australia he stated that he was thinking about applying for a job in a factory as he had been working on a farm.
When asked what the reasons were for applying for a protection visa in Australia, he stated that, at the time, a friend of his had arranged for him to complete the protection visa application. The applicant just paid his friend to do it.
When asked again why he wanted to apply for a protection visa in Australia, he stated it was because he was hoping to stay longer in Australia. He stated that he wanted to stay longer in Australia so that he could help his family back home in Malaysia. He stated that, while he is in Australia, he has a “good economic chance” here.
When asked whether the need to help his family financially and the “good economic chance” available to him in Australia was the motivation for him in applying for a protection visa, he stated that this was correct.
When asked whether the need to help his family financially and the “good economic chance” available to him was the reason for him not wanting to go back to Malaysia, he stated that this was correct. He stated that, at the time he was in Malaysia, his salary was 1200 Ringgit, and he could not provide for his family or for his [children’s] schooling.
When asked whether the reasons for him not returning to Malaysia were economic reasons and his need to financially support his family was the main reason for not wanting to return to Malaysia, he stated this was the case.
When asked whether this was the only reason for him not wanting to return to Malaysia, he stated that he had been in Australia for too long and that he missed his family. He stated that he wanted to go back to Malaysia at the end of 2025 to be with them. The applicant confirmed this when the question was put to him again.
When asked whether his only fear was that he could not financially support his family if he returns to Malaysia, he stated that this was correct.
When asked whether the harm he fears is only economic harm if he returns to Malaysia, he stated that this was the case. He stated that if he returned and worked in Malaysia that he would not earn enough to support everyone.
When asked why he thought he could not find work again like before if he returned to Malaysia, he stated that it is really difficult to get a job in Sabah. He did not think he could find employment back at home.
The Tribunal then referred to the Department of Foreign Affairs and Trade (DFAT) latest country report on Malaysia. It indicated that DFAT reported that the World Bank classifies Malaysia as an upper middle-income, export-oriented economy. It indicated that DFAT reported that Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. It indicated that DFAT reported that the ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt. It indicated that DFAT reported that in April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic.[1]
[1] DFAT Country Information Report Malaysia 24 June 2024, Paragraphs 2.7 to 2.9; paragraph 2.10.
The Tribunal then put to the applicant that country information might not indicate that he will not find work if he returns, nor might it point to the applicant not being able to work if he returns. The applicant stated that he agreed with this. However, if he returns, he will have to take care of his household expenses.
The Tribunal then referred the applicant to his initial evidence at the start of the hearing where he stated that someone else completed the application for him. The applicant confirmed that his application was written by someone else and that he did not know what was written in the application.
The applicant confirmed again that the original claims as written in his protection visa application are not true and that he wished to rely on the claims made at the hearing only.
When asked again that it was his intention not to rely on the claims written in his original protection visa application and that he only wanted to rely on the claims he raised at the hearing, the applicant stated this was correct.
When asked if there was anything else he wished to say about his claims raised at the hearing that he wanted the Tribunal to consider, he stated that he wanted it to consider that he wanted to go back later in 2025 so that he can be with his children. He wanted to go back in December 2025.
The Tribunal then indicated that the applicant had raised economic harm as his main (and only) claim.
The Tribunal indicated that general economic conditions in Malaysia which may result in economic disadvantage might not amount to persecution. It indicated that persecution must involve serious harm against a person for reason of their race, religion, nationality, political opinion or membership of a particular social group. Cost of living pressures, economic insecurity, insufficient income to support his family, or wanting to support his family while working in Australia, might not appear to be directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment. The applicant stated that he agreed that the economy of Malaysia is going well. However, it depends on a person’s education level. If one has low education, they are not able to find a good job with sufficient salary.
The Tribunal then indicated that, under the complementary protection criteria, it needed to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Malaysia, there is a real risk he will suffer significant harm. It indicated that, at the start of the hearing, it explained ‘significant harm’ as meaning - being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment. It indicated that economic harm feared by him, such as cost of living pressures, economic insecurity, insufficient income to support his family, or wanting to support his family while working in Australia, might not amount to significant harm. The applicant stated that he needed to support his family rental bills, his children’s schooling bills and utility bills. He stated that he will not earn enough to pay these bills if he returns to Malaysia now.
The Tribunal then indicated that, under the complementary protection criteria, there is taken not to be a real risk that he will suffer significant harm in Malaysia if the Tribunal is satisfied that the real risk is one faced by the population of the country generally and is not faced by him personally. The Tribunal indicated that, going on his evidence, it might be that this real risk is faced by the population generally and not by him personally. The applicant stated that in Sabah, the economy is okay, but it depends on the type of work one gets. If the work is not good, then one cannot support their family.
The Tribunal then referred to DFAT’s country report on Malaysia where it reported that poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The Tribunal indicated that, from this country information, if poverty was to occur, it would occur not just in Sabah but in several other states as well. Therefore, the real risk might be one faced by the population generally and not faced by the applicant personally. The applicant stated that he understood that there are other states which are in the same situation as Sabah but he stands by what he said before.
The Tribunal indicated that economic harm might not amount to serious harm. The applicant stated that it is only about economics and nothing else.
The Tribunal asked if there was anything else he wished the Tribunal to consider in support of his claims. The applicant stated that he is hoping to stay until the end of the year. He wants to go back at the end of 2025. He has stayed in Australia too long already. The Tribunal stated that it will go away and consider all the evidence before it before making a decision. The Tribunal indicated that it cannot unreasonably delay any decision but will make a decision once it has considered all the evidence before it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Receiving country
The applicant provided a copy of the biodata page of his Malaysian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before the Tribunal to the contrary. The Tribunal, therefore, finds that the applicant is a citizen of Malaysia and that Malaysia is his receiving country for the purpose of assessing his claims for protection.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[2] For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.[2] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The applicant gave evidence at the hearing that his claims in his protection visa application were not true and correct, and that the application was made out by a friend who he paid to do the work and that he did not know what claims had been written on his behalf. He gave evidence that he applied for a protection visa so that he could extend his time to work in Australia so that he could continue to support his wife and children in [Town 1] and that he could continue to pay the rent in the house there where they are living. He gave evidence that he wanted to stay in Australia until the end of 2025 to help financially support his family but that he wanted to go back at that time because he missed his family very much. He gave evidence that his sole reason for wanting to stay in Australia was so that he could financially support his family and for no other reason. The applicant made it very clear to the Tribunal that the claims in his original application were not his claims at all and that he wished to resile those claims entirely.
Given the applicant’s evidence before it, the Tribunal finds that the applicant’s sole motivation in applying for protection in Australia was to regularise his immigration status in Australia, and to enable him to work lawfully in Australia so that he can continue to financially support his family back in Malaysia. It finds that none of the original claims made by the applicant in his protection visa application were truthful claims and that they were made by his friend to help the applicant regularise his immigration status and for him to be able to work lawfully in Australia. Given that the applicant has unequivocally resiled from any of the original claims made in his protection visa application, the Tribunal finds that the applicant has unequivocally abandoned all claims made in his protection visa application and accordingly, the Tribunal does not need to make any findings on those original claims as made in his protection visa application, given that they have been resiled by him.
The applicant made new claims at the hearing as to why he applied for a protection visa in Australia, namely, that he wanted to work longer in Australia to continue to financially support his wife and children at least until the end of 2025 when he wishes to return to them in Malaysia, to give himself the best “economic chance” he can to do this while remaining in Australia, and that it was harder for him back in Malaysia to find work that will support his family financially.
When putting to the applicant that these claims might not fall within the refugee definition in Australia as they did not appear to be claims of serious harm directed at him for reasons of his race, religion, nationality, membership of a particular social group or political opinion for the purposes of the refugee assessment, he stated that if a person does not have a good education they are not able to find a good job with sufficient salary.
When putting to the applicant that these claims might not fall within the meaning of significant harm because they might not amount to being subjected to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman or degrading treatment or punishment, he stated that he needed to support his family rental bills, his children’s schooling and utility bills. He stated that he will not earn enough to pay these bills if he returns to Malaysia now.
The Tribunal finds on the applicant’s own evidence that he has a rental home to go back to when he returns to Malaysia and that he will return to his family and live with them. The applicant has given evidence that the economy in Sabah is good but that it depends on the type of work one gets. He has given evidence at the hearing that, prior to coming to Australia, he worked in a [business 2] and then as [an occupation 1]. He has shown while in Australia that he can work hard and earn a living to support financially his family as well as himself. He has given evidence that he wishes to remain until the end of 2025 to earn as much as he can so that he can keep supporting his family financially back in Malaysia. The Tribunal finds that the applicant has shown an ability to find employment and earn an income prior to coming to Australia and has continued to show an ability to continually work in Australia and earn an income. The applicant has indicated a strong intention to return to Malaysia to be with his family and has not indicated at all that he cannot work again, only that he is uncertain as to whether he can earn as much as he is earning in Australia. The Tribunal finds on this evidence that the applicant’s fear relates only to whether he can earn an income that will pay for his family’s financial needs such as rent, schooling, food and utility bills in Malaysia. Given the applicant has shown that he has worked in Malaysia and in Australia and given that he admits that the economy is “good” in Sabah, the Tribunal finds that he can financially support his family and has the ability to financially support his family if he were to return to Malaysia in the reasonably foreseeable future.
Given the Tribunal’s findings that the applicant has abandoned all his claims in his protection visa application, the Tribunal has turned its mind to his remaining claims of fear made at the hearing, namely, that he wants to work longer in Australia to continue to financially support his wife and children at least until the end of 2025 when he wishes to return to them in Malaysia, to give himself the best “economic chance” he can to do this while remaining in Australia, and that it was harder for him back in Malaysia to find work that will support his family financially.
In assessing these particular claims individually and cumulatively, the Tribunal finds the harm feared by the applicant, namely that he wants to work longer in Australia to continue to financially support his wife and children at least until the end of 2025 when he wishes to return to them in Malaysia, to give himself the best “economic chance” he can to do this while remaining in Australia, and that it was harder for him back in Malaysia to find work that will support his family financially, to not be harm feared for reasons of race, religion, nationality, membership of a particular social group or political opinion as outlined in s 5J(1)(a) of the Act. It follows that the requirements in s 5J(4)(a) and s 5J(4)(c) - that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct - are not satisfied.
Looking at all the claims individually and cumulatively, and having considered all the evidence before it, the Tribunal finds that the applicant does not have a well-founded fear of persecution in Malaysia and is therefore not a refugee.
As the Tribunal has found the applicant to not be a refugee, it has also considered whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Malaysia, he will suffer significant harm. The Tribunal notes that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The Tribunal finds that the harm feared by the applicant, namely that he wants to work longer in Australia to continue to financially support his wife and children at least until the end of 2025 when he wishes to return to them in Malaysia, to give himself the best “economic chance” he can to do this while remaining in Australia, and that it was harder for him back in Malaysia to find work that will support his family financially, to not amount to any of the types of significant harm defined in s 36(2A). In addition, the definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[3] None of the claims made by the applicant satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, the Tribunal finds that the claimed harm does not amount to significant harm.
[3] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
Looking at all the claims individually and cumulatively, and having considered all the evidence before it, the Tribunal is not satisfied that Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and feasible consequence of the applicant being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of rescheduled (final) hearing: 19 May 2026
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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