2012201 (Refugee) - [2025] ARTA 1524

2012201 (Refugee) [2025] ARTA 1524 (1 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2012201
Tribunal:Clyde Cosentino
Date:1 June 2025

Place:Brisbane
Decision:The Tribunal affirms the decision under review.

Statement made on 01 June 2025 at 6:28pm
CATCHWORDS
REFUGEE – protection visa – India – decision on the papers without hearing – financial debt – harassed and targeted by money lender – vehicle damaged in forced accident – lack of detail and substance to claims – failure to provide further information and evidence – credibility concerns – application possibly made to delay departure – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any 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 10 July 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 India, applied for the visa on 12 May 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 complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act. The applicant provided a copy of the delegate’s decision to the Tribunal as part of the review application.
On 29 July 2020, the applicant lodged an application for review with the former Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
On 4 December 2024 the Tribunal wrote to the applicant advising that his case was being prepared for allocation to a Tribunal Member. He was requested to complete a ‘Pre-hearing information’ form. The applicant did not respond to the Pre-hearing information form.
On 12 March 2025, the applicant was notified in writing that his matter had been constituted and that a Tribunal Member has been allocated to hold a hearing and make a decision about his review. He was notified his matter had been set down for hearing for 3 April 2025 at the Brisbane Registry. The applicant was asked to complete a ‘Response to hearing notice’ form (Hearing response form) and to provide any additional information he wished the Tribunal to consider. The hearing notice stated that if the applicant wished the Tribunal to make a decision without holding a hearing, he could request this in the Hearing response form. It was noted that if he were to request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee he will receive a favourable decision.
On 21 March 2025 (AEDT), the applicant submitted a completed Hearing response form in which he stated that he will not participate in the hearing and requests the Tribunal to make a decision on the papers without holding a hearing.
On 24 March 2025, the Tribunal wrote to the applicant advising as follows:
We confirm receipt of your completed response to hearing notice form in which you state that you will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing.
Based on your response we will cancel the hearing scheduled for 3 April 2025 at 9:30 am (QLD time) and the Member will proceed to make a decision based on the available evidence.
Please note that this does not guarantee that you will receive a favourable decision.
If you have any questions, please contact us immediately at [email protected], or call 1800 228 333.
The Tribunal has considered that the circumstances in which it may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act. On the basis of the information in the Hearing response form, the Tribunal is satisfied that the applicant has requested the Tribunal to make its decision without holding a hearing. This understanding was confirmed to the applicant in the Tribunal’s email dated 24 March 2025, to which the applicant has not provided any response. The Tribunal is satisfied that the circumstances in s 106(3)(b)(ii) of the ART Act are met.
The Tribunal must also consider whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) ART Act. In reviewing a decision to refuse to grant a protection visa, the issues which the Tribunal is required to determine are:
i.Whether the applicant has a well-founded fear of persecution as outlined in s 5J of the Act with respect to their receiving country (s 36(2)(a) of the Act); and
ii.If they do not satisfy s 36(2)(a), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to their receiving country, there is a real risk they will suffer significant harm (s 36(2)(aa) of the Act)
In this case it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of a hearing. The evidence available to the Tribunal, as outlined below, allows it to determine the applicant’s identity and receiving country and form conclusions about whether he engages protection obligations under

s 36(2)(a) or 36(2)(aa) of the Act without seeking further evidence or submissions from the applicant.
The Tribunal finds that the requirements in s 106(3) of the ART Act are met and has therefore proceeded to make a decision without holding a hearing.
BACKGROUND
The applicant is [an age]-year-old male from India. According to his protection visa application, he arrived in Australia [in] November 2016 on a visitor visa.
The applicant provided a copy of his Indian passport to the Department of Home Affairs, as it was known as at the time (the Department) in support of his protection visa application. The delegate found the applicant to be a citizen of India. Based on the available evidence, the Tribunal finds that the applicant is a citizen of India, and that India is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
According to his protection visa application, which was lodged 12 May 2019:
·The applicant was born in [Area 1], [Village 1], Gujarat, India.
·He completed his high schooling in India in [year]. He also completed a Diploma in [Area of study 1] in Gujarat, India in [year].
·He married in 2003. However, no details of his immediate family members are included in the application.
·He previously resided in the following areas before coming to Australia:
oFrom 2002 to 2008 – [Province 1], [Country 1].
oFrom 2008 to 2011 – [Country 2]
oFrom 2011 to 2016 – Baroda, Ahmedabad, Gujarat, India
·He worked as [an Occupation 1] for a [type of] organisation from 1998 to 2002. He was unemployed from 2002 to 2012. He was self employed from 2012 to July 2016 in a [shop] in [Village 2], Gujarat.
·He worked as [an Occupation 1] for a [type of] organisation from 1998 to 2002. He was unemployed from 2002 to 2012. He was self employed from 2012 to July 2016 in a [shop] in [Village 2], Gujarat.
·The applicant’s claims for protection are outlined below.
oIn response to the question of why he left his country he states:
§“I have left my country because I have so many pressures of money debt cause[d] of one person who involved me in his sweet talk and snatching money from me and harassing me. Whenever I go he would know and sent his persons to [harass] me and harm me. One day he [tried] to accident to my car but I … survived anyhow.”
oIn response to what harm he experienced in his country, he states:
§“One day he [tried] to accident to my car but I … survived anyhow. He wants money from me.”
oIn response to whether he sought help within his country, he states no. He states:
§“Because he was so danger[ous] I complain[ed] against him he [tried] to harm me often so I was scared from him.”
oIn response to whether he moved or tried to move to another part of the country to seek safety, he states no. He states he did not do so:
§“Because I have family, so it was not easy to move but still I tried to move but that person [is] so powerful he told me if I moved from here anywhere in the country he would know.”
oIn response to what he thinks will happen to him if he returns to his home country, he states:
§“If I return to my country he [will] harm me [in] any kind of way I don’t know how he [will] react] but I am scared to … return right now”.
oHe claims he will be harmed if he returns to India. He states:
§… I don’t know what type of [harm] I would experience if I [go] back.”
·In response to whether he thinks the authorities of his country can and will protect him, he states:
o“I don’t trust my authorities. So I never go to [the] authorities”.
·In response to whether he would be able to relocate within his country to an area where he would not be harmed he states no. He states:
o“If I [relocate] anywhere in the country he can reach me for sure.”
In support of his application, he provided the following documents:
·Copy of his previous and current passports
·Copy of his marriage certificate
In the Department decision (which the applicant provided to the Tribunal on 29 July 2020 with his application for review), the delegate indicated that they had notified the applicant in writing on 29 May 2020 of their concerns that the delay in lodging a Protection visa after the applicant’s arrival in Australia might go to the genuineness of the applicant’s protection claims. The applicant was invited to provide further information about this concern. The applicant did not provide any further information addressing this concern.
In the Department’s decision, the delegate indicated that they had notified the applicant in writing on 29 May 2020 of their specific concerns which were written as follows:
·“You have not provided any information about who is trying to harm you. Please provide further information about who they are, where they reside and how they are known to you.
·You have stated that someone has tried to cause an accident to your car. Please provide further information about this. What happened? When did it occur? Who was involved? How did you escape?
·You have stated that you have not sought help from anyone in India because the person is powerful. No evidence or further information has been provided that indicates that they are highly influential. Based on the information before me, I may find that they would not pursue you on return to India. Do you have any further information?
·You have indicated that you are married and have a family. Where are they residing? Have they been harmed in any way?”
The delegate indicated that the applicant was given 28 days to provide any further information to these concerns. The delegate indicated that the applicant was advised in that letter that a decision may be made on the information provided in the written application and in response to the letter, and the applicant may not be given another opportunity to present their claims. At the time of the delegate’s decision, no comments or further information was provided by the applicant to the concerns raised.
In refusing the application, the delegate made their finding that the applicant had been in Australia for 2 years and 6 months before applying for a protection visa and that this might indicate the protection visa application was made to delay departure from Australia.
The delegate found that the applicant did not respond to the delegate’s letter sent to the applicant addressing concerns about the veracity of the applicant’s claims. The delegate indicated that this raised concerns that the applicant’s claims may not be credible.
The delegate noted that the applicant claimed that his life is in danger due to outstanding debts if he returns to India but found that the written material in the application lacked substance and details. Further, the delegate noted in their decision that the applicant was provided with the opportunity to give further details to these claims in the letter dated 29 May 2020 but failed to do so.
The delegate indicated that the written claims did not include details of key events that led the applicant to leave India and why there is a real chance of serious harm upon return to India. The delegate indicated that the applicant did not provide any evidence to support his written claims, nor did he demonstrate how the harm was personal to him. The delegate found that the applicant’s failure to provide details about these claims raised concerns about the applicant’s credibility.
In the delegate’s overall assessment of the evidence before it, the delegate concluded that, having regard to the applicant’s claims and evidence and the applicant’s failure to provide further information, the delegate was unable to be satisfied that these claims reflected the applicant’s circumstances and rejected the applicant’s claims in their entirety.
Evidence before the Tribunal
On 29 July 2020, as indicated above, the applicant made an application for review of a decision made by the delegate to refuse to grant the applicant a protection visa. Attached to that application for review was the delegate’s decision. In that review, the applicant stated that the reasons why the delegate’s decision is wrong is because he thinks he will be able to collect the information, which was asked by the Department but that, because of Covid in India, it was very “complicated” to collect the information.
On 30 July 2020, the Tribunal sent a letter to the applicant by email, to the last authorised email address provided by the applicant, acknowledging receipt of the review application. The letter asked the applicant to provide any material and written arguments for the Tribunal to consider and that he should do that as soon as possible. No material and written arguments were provided by the applicant in response to this letter.
As indicated above, on 4 December 2024, the Tribunal sent the applicant a pre-hearing information form (through a link) for him to complete. One of the questions for the applicant to complete was as follows: “In your application for a protection visa you would have provided reasons or made claims as to why you need Australia to grant you protection. Do you want to give any more information about your claims for protection? Are there any other reasons why you are afraid to return to your home country? Any other evidence?” The applicant did not provide any comments or information in the pre-hearing form, nor did he provide any comments or information to the question above.
As indicated above, on 12 March 2025, the applicant was sent a hearing invitation by the Tribunal to attend a hearing on 3 April 2025 about the application for review of the delegate’s decision to refuse the grant of a protection visa. In that hearing invitation, the applicant was asked to provide any evidence to support his case. It also referred him to the decision of the Department which had set out its reasons and that he should have regard to this and any change of circumstances.
As indicated above, on 21 March 2025 (AEDT), the applicant submitted a completed Hearing response form in which he stated that he will not participate in the hearing and requests the Tribunal to make a decision on the papers without holding a hearing. No further information or material was provided in support of his claims.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for a 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, and country information assessments prepared by the Department of Foreign Affairs and Trade 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Assessment
As outlined in s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[1]
[1] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal has considered the available evidence before it as outlined above. For the reasons given below, the Tribunal does not accept the applicant’s claims to be credible. The Tribunal has had regard to the concerns raised by the delegate to the applicant in writing and which formed part of the delegate’s reasons for refusing the application. The applicant was notified of the concerns by the delegate and was asked to provide information to clarify those concerns. The applicant did not provide any information at all to remove the delegate’s concerns. The applicant has provided no additional information to the Tribunal addressing these issues, when given the opportunity to do so on several different occasions throughout the review process. The applicant was reminded in the Tribunal’s hearing letter that he should have regard to the reasons given in the delegate’s decision to refuse to grant him a protection visa where the credibility of the applicant’s claims was a significant issue. The applicant did not respond or make comment or provide any information to counter these credibility concerns.
The Tribunal finds the applicant’s claims not credible given that that the applicant has not provided any comments or information whatsoever to counter the delegate’s credibility findings and has continued not to comment or provide information when the Tribunal has invited the applicant on several occasions to do so in support of his claims. Further, the Tribunal finds the applicant’s claims not credible given that the delegate’s decision not to grant the applicant a protection visa was rejected in its entirety because of the deficiencies to the specifics in his claims and failure to provide further information and evidence. Further, the Tribunal finds the applicant’s claims not credible given that the applicant was put on notice in the hearing invitation that he should have regard to the decision of the Department which had set out its reasons and had found to reject the applicant’s claims in their entirety.
The Tribunal has had regard to the applicant’s only comments in his review application namely, that the reason why the delegate’s decision is wrong is because he thinks he will be able to collect the information, which was asked by the Department but that, because of Covid-19 in India, it was very “complicated” to collect the information. However, the Tribunal does not accept this response as credible at all given that the applicant has not provided any information as to how Covid-19 has prevented him from providing specific details to the delegate’s concerns about lack of detail and lack of substance to his claims. The applicant has given no evidence of why he might be prevented in giving specific details to the delegate about credibility concerns.
Further, the Tribunal does not accept this response as credible given that the applicant has not responded to any of the Tribunal’s requests to provide further information or comments and as it relates to his claims. The Tribunal does not accept this response as credible given that the applicant did not provide any comments or information to the hearing notice that he should have regard to the decision of the Department which had set out its reasons. The Tribunal finds that the applicant has been given reasonable opportunity throughout the application process and review process to provide information or comments about his claims and addressing the credibility concerns of his claims. The Tribunal finds that the applicant has failed to do so throughout the entire process. The Tribunal does not accept that Covid-19 has in any way prevented the applicant in providing comments and information in countering credibility concerns raised by the delegate and which have remained an issue up to the time of decision.
As raised by the delegate, there was a delay of 2 years and 6 months in lodging his protection visa following the applicant’s last arrival in Australia. The Tribunal considers this a significant delay and gives it adverse weight and relevance to the credibility of his claims, given that the applicant has claimed that he is fearful of a money lender there and that he is fearful in returning to India because he will be harmed. Further, the Tribunal considers this delay as also going to the credibility of his overall claims given that the delegate put the applicant on notice that this delay might go to the genuineness of his claims and that the protection visa application might have been made to delay departure from Australia. The applicant did not comment or provide further information in any way to counter these concerns relating to the genuineness of his claims. Having considered all this evidence before it, the Tribunal finds this delay to significantly contribute to the above credibility concerns.
Having considered all the evidence together, and all the material before it, the Tribunal does not accept that the applicant left India because of a financial debt. It does not accept that he has money debt. It does not accept he was harassed or targeted by anyone. It does not accept that his vehicle was damaged or that it was involved in an accident or that someone forced an accident upon the applicant. It does not accept that he is afraid of a money lender or that any money lender will harm him if he returns. It does not accept that the applicant has suffered any harm from any money lender or from any person in India or that there is any money lender or creditor wanting to harm him upon his return.
Refugee and complementary protection assessment
The Tribunal finds the applicant’s ‘home area’ or place of likely return to be Baroda, Ahmedabad, Gujarat, India given this was his primary place of residence and the area where he resided continually before coming to Australia. Having considered its findings above, the Tribunal is not satisfied that there is a real chance that the applicant will face serious harm (or any harm) from any money lender or creditor or any person at all if he were to return to India. The Tribunal finds that the applicant does not have a well-founded fear of persecution for this reason or for any of the listed criteria and is not a refugee as defined in s 5H(1) of the Act.
The Tribunal has therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to India, there is a real risk that the applicant will suffer significant harm. ‘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 real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[2] For the same reasons discussed above, the Tribunal finds that there is not a real risk that, as a necessary and foreseeable consequence of his removal to India, the applicant will suffer significant harm from any money lender or creditor or any person.
[2] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to India and the Tribunal finds that no other protection claims arise on the accepted facts.
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.
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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