2012922 (Refugee) - [2025] ARTA 1347

2012922 (REFUGEE) [2025] ARTA 1347 (1 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012922
Tribunal:General Member S Waring
Date:1 April 2025

Decision:The Tribunal affirms the decisions under review.

Statement made on 01 April 2025 at 4:00pm
CATCHWORDS
REFUGEE – protection visa – Vietnam – imputed political opinion, financial hardship and religion – father led or attended protests against industrial pollution and delayed and unfair compensation – father charged and threatened and family harassed – undetailed claims and evidence – no supporting evidence of father’s involvement in protests, and father now deceased – no protest activity or political opinion by applicant, or church participation in Australia – country information – predominantly Catholic part of country and low risk of societal discrimination – members of family unit Australian-born children – children’s physical conditions and treatment – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 5K, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 27 July 2020 to refuse to grant the applicants’ protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
[The first applicant] and her son [the second applicant] applied for the visas on 20 December 2019 and the Department added [the third applicant], as a member of the family, to the application on 19 March 2020. The delegate refused to grant the visas on the basis that the applicants do not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 14 October 2024, the Administrative Appeals Tribunal (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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
At a hearing before the Tribunal on 30 January 2025, the applicants were not accompanied by their authorised representative. Only [the first applicant] gave evidence and presented arguments to the Tribunal. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.
The issue to be considered in this case is whether the applicants engage Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
BACKGROUND
[The first applicant], the primary applicant for review, is a [Age]-year-old woman who was born in Ha Tinh, Vietnam where she lived until she came to Australia on [in] February 2014 on a higher education sector visa. [The first applicant] settled in [Suburb 1], Queensland and studied for a certificate in [subject] in [Suburb 2] QLD.
Since her first arrival in Australia, [the first applicant] has only travelled overseas between [January] and [February] 2015.
[The second and third applicants] are the sons of [the first applicant]. They are [Ages] respectively. The family lives together in [Suburb 1].
[Mr A] is the father of [the second and third applicants] and [the first applicant]’s de facto partner.
Evidence before the Department and the Tribunal
No interview with any of the applicants was undertaken by Department before the decision under review was made. The evidence taken into account by the Department included:
·the applicants’ protection visa application.
·a sworn statement by [the first applicant] dated 5 December 2019.
·supporting documents including personal identifiers sighted by the Department as part of identification tests for each applicant.
In addition to the above documents, the Tribunal is informed by movement records of each applicant showing their visa history and transits into and out of Australia.
In the pre-hearing response form, [the first applicant] notified herself as the representative of all applicants and it was foreshadowed that a statutory declaration would be provided. There was no further documentary evidence submitted.
In a hearing response form (11 December 2024), [the first applicant] notified the Tribunal that she did not wish to have any witnesses participate in the hearing. The Tribunal received evidence and submissions only from [the first applicant] at hearing.
The totality of evidence before the Tribunal is discussed and examined below.
THE APPLICANTS’ CLAIMS
The protection visa application set out claims summarised as follows:
·[the first applicant] does not want to take her family back to Vietnam because her family there suffers financial hardship and political problems.
·political problems arose for [the first applicant]’s family when her father arranged an illegal protest to fight for fair compensation.
·[the first applicant]’s father was charged and her family were targeted by Vietnamese authorities and policemen. They had to run away from their hometown in 2018.
·when her father told her he had been charged by police, [the first applicant] felt scared for her own life and feared her family would be beaten, harassed when interrogated at the police station.
·[the first applicant] feared a prison sentence of up to 10 years due to the illegal protest arrangement.
·[the first applicant]’s father took part in a demonstration that criticised the government. He became a political prisoner when he was detained.
·[the first applicant]’s family in Vietnam follows the Catholic religion. There is a growing climate of intolerance in Vietnam which has led to harassment of Catholics and violence against them.
·[the first applicant] fears that she may end up dying if she returns to Vietnam or being subjected to harsh treatment or arrest if she is caught up in a violent crackdown by police.
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.
As relevant to the applicants’ claims, family is capable of constituting a particular social group for the purposes of s 5J(1) of the Act. However, a person who is pursued only because he or she is a relative of a person targeted for a non-Convention reason will not have a well-founded fear of persecution under Australian law.
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). There is not taken to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.”[1]
Mandatory considerations
[1] s 36(2B)(c)
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.
Evidence at hearing
[The first applicant] told the Tribunal that she reads and writes English quite well but needs help to express exactly what she means. The protection visa application was completed by the applicants’ representative based on [the first applicant]’s own ideas about returning to Vietnam.
[The first applicant] stated that in 2015 there was lots of disagreement in her hometown (Ha Tinh) around pollution by the Formosa Plastics factory there. Her father, and many Catholics in the local dioceses, protested against the pollution.
In April 2016 a major toxic spill occurred and a violent protest erupted at the Formosa factory in which participants were killed and injured (the pollution protest). [The first applicant] stated that her father attended the pollution protest and was lucky enough to escape without injury when “things turned bad”.
The 2016 protesters were agitating to close the factory permanently and believed that plans to approve a lease extension to Formosa (up to 100 years) were due to corruption by local authorities.
[The first applicant] explained that the local authorities tried to suppress the protests because they wanted to receive payoffs for approving the factory reopening. [The first applicant] described the pollution protests as being anti-corruption and anti-government in nature.
The Tribunal heard that in 2017 a compensation package of US $500 million was awarded in respect of the Formosa pollution. There were protests in [the first applicant]’s home province about the distribution of the compensation as payment delays had occurred and many affected people did not receive a share.
[The first applicant] told the Tribunal that in 2018, her father had actively called on local people to demonstrate against the authorities and seek a fair distribution of the compensation payout. When her father attended the protest (the compensation protest), he was arrested just as people were gathering. The protection visa application refers to this protest as an ‘illegal arrangement’ which could result in organisers being sentenced to ten years imprisonment.
[The first applicant] stated that her mother paid officials secretly to have her father released in 2018.
[The first applicant] did not know whether, at the compensation protest, her father had held up a sign, put up posters, handed out pamphlets or addressed the crowd. [The first applicant] stated “at that time, I was already in Australia on the student visa and I only heard these things through my father.”
[The first applicant] explained that corrupt local authorities took part of the awarded compensation for themselves and suppressed protests because they wanted to keep those funds. [The first applicant] described the compensation protest as being anti-corruption and anti-government in nature.
[The first applicant] stated that her father received many threatening letters which he believed to be connected with his involvement in the compensation protest. [The first applicant] believed the letters had been addressed to her father and did not know if she (or the other applicants) were named in the letters. [The first applicant] stated that she had not seen the letters. It was her understanding that the letters to her father were “telling him that if he kept on participating in those protests, his life and his family members’ lives will be injured.”
[The first applicant] stated that the Catholic congregation in her hometown protected her father up until he passed away in 2023.
[The first applicant] told the Tribunal she believes there is no safety for the environment or living conditions in Vietnam. She stated that she does not know if anyone in the Catholic congregation is scared about being persecuted but said that some of her neighbours are affected by cancer (which may be related to the Formosa pollution) and that living conditions in her hometown are ‘bad’.
[The first applicant] stated that her son [the second applicant] has a problem with his [function] and attends [therapy] every week. [The third applicant], who suffers from [condition] needs to have treatment every six months.
[The first applicant] explained her fears that her sons could experience bias and (possibly) violence at a school in Vietnam.
CONSIDERATION OF CLAIMS AND EVIDENCE
[The first applicant] provided copies of Vietnamese passports identifying herself and [the second applicant] to the Department when applying for protection. A copy of [the third applicant]’s birth certificate was provided at the time his application was accepted. The delegate accepted that the applicants are citizens of Vietnam and there is no information before me to the contrary. I find that the applicants are citizens of Vietnam, and that Vietnam is their receiving country for the purposes of assessing the claims made for protection.
In addition to the claims made in the protection visa application, the Tribunal considers that the applicants raise claims in relation to their health. [The first applicant] submitted that she and her family might be adversely affected by residual pollution and poor living conditions in her hometown. [The first applicant] stated that her sons have therapy needs to be considered.
Family relationship
As mentioned above, [the first applicant] provided the Department with identity documents showing that she is the mother of [the second and third applicants].
The Tribunal raised with [the first applicant] that documentary evidence had not been presented to establish the identity of the man (allegedly charged, detained and threatened in Vietnam) or the applicants’ relationship to him. There is no corroborative evidence before the Tribunal to support a finding that the applicants are related to that man or that these claimed events or an illegal protest occurred.
[The first applicant] stated that household registry documents are maintained in Vietnam to list all family members. [the first applicant] submitted at hearing that such a document would demonstrate that she is the “daughter of [her] father.” The relevant household registry documents are not before the Tribunal.
The Tribunal raised with [the first applicant] that evidence establishing the name and birthdate of her father would not in itself establish that he arranged an illegal protest, was charged, detained and threatened in the manner she described to the Tribunal.
Based on the evidence before it, the Tribunal does not accept that the applicants are (or were) related to the person claimed to have arranged an illegal protest, been charged, detained and threatened in Vietnam. It follows that the Tribunal does not accept that [the first applicant]’s father arranged an illegal protest in Vietnam or was charged, detained or threatened in Vietnam.
Threats against the applicants
In evidence given at hearing, [the first applicant] stated that the compensation protest occurred in 2018. [The first applicant] stated that her father was charged and detained by police in 2018 and that threatening letters were sent to her father around that time.
The threatening letters are not mentioned in the protection visa application or [the first applicant]’s statement sworn on 5 December 2019. The Tribunal finds that evidence provided in relation to any threatening letters is limited and lacking in detail. There is no documentary or corroborative evidence before the Tribunal to establish whether (or when) [the first applicant]’s father received the claimed letters or the content of any such letters.
At hearing, [the first applicant] stated that there had been many threatening letters which she believed had been addressed to her father. [The first applicant] did not know if she (or the other applicants) were named in the letters. [The first applicant] stated that she had not seen the letters. It was her understanding however, that the letters to her father were “telling him that if he kept on participating in those protests, his life and his family members’ lives will be injured.”
[The first applicant] is unable to provide direct evidence to the Tribunal about the letters because she did not see them or witness her father’s receipt of them. [The first applicant]’s knowledge of the letters is limited to what her father told her. The Tribunal affords less weight to [the first applicant]’s evidence in relation to the letters because she did not mention them in her statement of 5 December 2019 and because she has no firsthand knowledge about the letters.
Based on the available evidence, the Tribunal does not accept that the applicants were threatened with harm in letters sent to [the first applicant]’s father.
Political Opinion or imputed political opinion
In relation to the compensation protest, the protection visa application states “we tried to raise our voice for justice” which suggests some direct involvement by [the first applicant]. At hearing however, [the first applicant] gave evidence that she acquired her understanding of the 2018 compensation protest and events surrounding it, from her father as she was then living in Australia. Movement records before the Tribunal show that [the first applicant] and her children have not departed Australia since February 2015.
[The first applicant] has not submitted that she personally subscribes to anti-government political opinions or that she has challenged the actions of Vietnamese authorities in any way.
Based on the available evidence, the Tribunal finds that none of the applicants has personally expressed anti-government political opinions by participating in the 2018 compensation protest (or at all).
Religion
[The first applicant] stated in the protection visa application that her family in Vietnam were “following the Catholic Church” and her father “was a member of the Catholic Church.” There is no more detailed evidence before the Tribunal regarding [the first applicant]’s catholic upbringing or her current commitment to religious principles.

[The first applicant] gave no evidence to the Tribunal about the religious faith and practices of herself or the other applicants. [The first applicant] did not submit that she and her sons regularly attend any Catholic Church in Australia. There is no evidence before the Tribunal regarding the applicants’ participation in church services or activities such as Mass, bible study or voluntary work.
While the applicants may not currently be practising members of the Catholic Church, the Tribunal accepts that, if returned to Vietnam, they may choose to worship in the Catholic Church there. The potential for the applicants to be harmed in Vietnam by reason of their religion, is discussed below.
REASONS AND FINDINGS
The issues in this case are whether there is a real chance that, if the applicants return to Vietnam, they will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to Vietnam, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
Do the applicants satisfy the refugee criterion for protection?
Well Founded Fear
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.
An issue arising in this case is whether the applicants have a well-founded fear of persecution for reasons of membership of a particular social group consisting of ‘family’. This issue is discussed below.
As relevant to the applicants’ claims, a family is capable of constituting a particular social group for the purposes of s 5J(1). However, this is subject to some factors which the Tribunal must disregard. By operation of s5K, a person who is pursued because he or she is a relative of a person targeted for a reason other than those specified in s 5J(1)(a) (race, religion, nationality, membership of a particular social group, or political opinion) will not have a well-founded fear of being persecuted within the meaning of s 5J.
Real chance
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379 (Chan).
The criterion in s 5J(1)(b) imposes an objective requirement, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility.
Family relationship
The applicants claim that they fear being harmed, if returned to Vietnam, for reasons of being part of the family of a person who was persecuted because of his political opinion (a convention reason). The foundation for this fear is stated to be the treatment of [the first applicant]’s father who allegedly arranged an illegal protest, was charged, detained and threatened in Vietnam. [The first applicant] submits that the past treatment of her parents continues to cause the applicants to fear a return to Vietnam.
Based on the available evidence, the Tribunal has not accepted that any one of the applicants are (or were) related to a person who arranged an illegal protest, was charged, detained and threatened in Vietnam. It follows that the Tribunal does not find that the applicants have a real chance of suffering serious harm on the basis that they are part of the family of such a person.
[The first applicant] submitted at hearing that she fears harm in Vietnam because of the content of the threatening letters her father told her he had received. [The first applicant] stated her belief that “the threatening letters mentioned family members comprising of my parents including myself. So if I had to return to Vietnam I also will be in danger.”
Based on the available evidence, the Tribunal has not accepted that threats were made against the applicants as claimed. It follows that the Tribunal does not find that the applicants have a real chance of suffering serious harm on the basis of threats made against them.
Religion
The Tribunal has considered (in accordance with Ministerial Direction No.84) country information published by the Department of Foreign Affairs and Trade (DFAT). The latest DFAT report on Vietnam, dated 19 February 2025 states:
“Approximately 6 million people identified as Catholic at the time of the 2019 census, making Catholicism officially the single-largest religion in Vietnam. …. In-country sources reported that Catholics were able to practise freely at registered churches and that registered Catholic communities were able to evangelise as of October 2023.”[2]
[2] Para 3.54
As regards [the first applicant]’s hometown of Ha Tinh, DFAT reports “Catholics live countrywide, with the highest concentration living in central Vietnam (Nghe An, Ha Tinh and Quang Binh provinces).
DFAT concludes that in Vietnam “Catholics face a low risk of societal discrimination on the basis of their religion.”[3]
[3] Para 3.59
[The first applicant] gave evidence that her parents were active within the local diocese of the catholic church. [The first applicant] did not describe her church as an unregistered house church with the DFAT report says may be targeted by the authorities. DFAT reports:
“In March 2023, according to Catholic media reporting, authorities entered and broke up a Mass in an unregistered house church in the Central Highlands. There does not appear to be a consistent pattern, though, and official attitudes toward unregistered house churches can vary from place to place.”[4]
[4] Para 3.57
Having regard to the country information, evidence and findings above, the Tribunal does not accept that the applicants have a real chance of suffering serious harm, by reason of their religion, if they return to Vietnam.
Persecution/Serious harm
[The first applicant] told the Tribunal about her sons’ treatment needs and concerns they could be treated adversely at school in Vietnam. [The first applicant] also believes there are environment-related risks to the health of herself and her sons if she returns to Vietnam. [The first applicant] submitted that living conditions in her hometown are ‘bad’.
In determining Australia’s protection obligations, the Tribunal is guided by examples of instances of ‘serious harm’ appearing in s 5J(5). Such instances include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
The Tribunal acknowledges [the first applicant]’s concerns for the health and development of her sons however the challenges submitted for consideration are not such severe forms of harm that they fall within the kinds of conduct covered by s 5J(5).
For the reasons given above, and having considered the applicants’ claims individually and
cumulatively, the Tribunal is not satisfied that if the applicants returned to Vietnam they would face a real chance of persecution for any reason set out in s 5J(1)(a) of the Act, or for any other reason. The Tribunal does not find that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. The applicants are therefore not refugees as defined in s 5H(1) of the Act.
The Tribunal finds the applicants do not satisfy s 36(2)(a) of the Act.
Do the applicants satisfy the complementary protection criterion for protection?
Having found the applicants do not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, the applicants are able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk the applicants would suffer significant harm as a necessary and foreseeable consequence of their removal from Australia to Vietnam.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
The Tribunal has concluded above that the potential harms claimed by the applicants (as possible if they return to Vietnam) do not constitute ‘persecution’ or ‘serious harm’ and do not engage Australia’s refugee protection obligations. When assessing the complementary protection criterion, the Tribunal now turns to consider whether the types of potential harm claimed by the applicants constitute ‘significant harm’.
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). It is significant for this case that s36(2B)(c) specifies a proviso that there is not taken to be a real risk that a person will suffer significant harm in a country if the Minister is satisfied that “the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.”
Based on the evidence discussed above, the Tribunal is satisfied and finds that day-to-day living conditions, environment-related health risks and the availability of therapeutic treatments are risks faced by the population of the country generally rather than a risk faced by the applicants personally.
Having regard to s36(2B)(c), the Tribunal finds that the types of potential harm claimed by the applicants do not constitute ‘significant harm’ because such risks are faced by the Vietnamese people generally and not by the applicants personally.
The Tribunal also finds that the types of potential harm claimed by the applicants do not fall within the examples of ‘significant harm’ set out in ss 36(2A). Such actions include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
Other criteria – member of the same family unit
Finally, [the first applicant] told the Tribunal that her partner has a review application before the Tribunal because his protection application was refused. On the materials before the Tribunal there is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant protection visas to the applicants.
Date of Hearing: 30 January 2025
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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