2100574 (Refugee)
[2025] ARTA 1140
•3 March 2025
2100574 (REFUGEE) [2025] ARTA 1140 (3 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2100574
Tribunal:General Member C Stokes
Date:3 March 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
Statement made on 03 March 2025 at 2:22pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – Suluk ethnicity – economic conditions – business debts – employment – internal relocation – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 351, 367, 499
Migration Regulations 1994, Schedule 2CASES
Januzi v SSHD [2006] 2 AC 426
MZANX v MIBP [2017] FCA 307
SZATV v MIAC [2007] HCA 40Any 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 then Minister for Home Affairs on 19 March 2018 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 March 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant is a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or (aa) of the Act.
On 24 January 2021, the applicant applied to the then Administrative Appeals Tribunal (AAT) for review. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant appeared before the Tribunal on 6 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was unrepresented in relation to the review.
The applicant also lodged two further applications (2100768 and 2100958) with the Tribunal with respect to the same decision of the delegate. Those two applications will be dealt with in further decisions of the Tribunal following the making of this decision. The applicant’s wife and his eldest child also applied for protection visas. Those visas were refused by a delegate on 28 August 2017. The Tribunal has not received an application to review that decision and it was explained to the applicant at the outset of the hearing on 6 February 2025 that the Tribunal is only reviewing the decision to refuse the applicant’s protection visa. The Tribunal also encouraged the applicant to seek migration advice about the visa status of his wife and child and the impact this decision may have on them.
The issue in this case is whether the applicant is 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.
For the following reasons, I have concluded that the matter should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, 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.
Applicant’s background
The applicant is [an age]-year-old man from Sabah Malaysia. He arrived in Australia [in] December 2016 as the holder of a UD-601 Electronic Travel Authority with his wife and one child. He has since had a further 3 children while living in Australia and has not left Australia since arriving.
The applicant has provided the Department with a copy of his Malaysian passport and Malaysian Identity card (MyKad). He has consistently claimed to be from Malaysia and there are no apparent concerns in relation to his identity. There is no evidence that the applicant has a right to enter and/or reside in any third country and as such s 36(3) of the Act does not apply. I am satisfied that Malaysia is the applicant’s receiving country and have assessed his claims against that country.
Evidence before the Department
In the application for the protection visa, the applicant claimed he could not return to Malaysia because of financial problems. He claimed he and his wife had debts with the government and his business struggled and closed. He also claimed to have a large family who depend on him financially. Finally, he claimed that he was worried he would not be able to repay their debts due to the economic problems in his country.
The delegate did not invite the applicant to an interview.
On 19 March 2018, the delegate refused the application for the visa the basis that the applicant had not claimed to fear harm in Malaysia because of his race, religion, nationality, political opinion or as a member of a particular social group and therefore did not meet the definition of refugee in s 5H of the Act and did not satisfy s 36(2)(a). Further, after considering the country information about the Malaysian economy, the delegate found that any economic hardship the applicant may suffer on their return did not amount to significant harm. The delegate concluded that there was no real risk of the applicant facing significant harm, as defined in s36(2A), if he returned to Malaysia in the foreseeable future and therefore the applicant did not satisfy s 36(2)(aa) of the Act.
While the delegate’s decision was dated 19 March 2018, the applicant was not notified of the decision until 4 January 2021.
Evidence before the Tribunal
On 24 January 2021, the applicant sought review in the AAT. He provided a copy of the delegate’s decision and the letter from the Department notifying him of that decision.
On 24 December 2024, the applicant provided the Tribunal with a written statement claiming to fear harm due to his Suluk ethnicity. On 31 January 2025, the applicant provided the Tribunal with a further written statement along with multiple supporting documents.
At the hearing the applicant gave evidence that he prepared the protection visa application himself and maintained his claims to fear harm due to his economic situation. He confirmed he also wished to rely on the new claims to fear harm due to his Suluk ethnicity. When asked why he did not make those claims earlier he explained that he was too scared when he first came to Australia to divulge what had happened to him and the economic claims were linked to the ethnicity claims as he was unable to get stable work due to discrimination he suffered as a Suluk person from Sabah.
The applicant gave evidence that following the Tanduo incident in 2013, he fled to peninsular Malaysia because he was having difficulty finding work and felt threatened as Malaysian people looked down upon Suluk and those who were Suluk felt despised and fearful. He claimed to have been beaten and harassed by a group of people while playing basketball with friends in March 2013. He was able to run away without being injured but it was a serious incident that scared him and forced him to move to peninsular Malaysia. He later married his wife in 2015 and they returned to Sabah in July 2016 to be near family and pursue a [business] opportunity. However, in November 2016 he was approach by two people [at a location] when he was trying to undertake his business. He claimed he was threatened with a machete and told to not do business in the area as he was Suluk and disturbing the economy for the Malay people there. Again he was able to run away without serious injury but this was the incident that prompted the applicant and his wife and young child to flee to Australia in December 2016. When asked about whether he reported these incidents to the police, he said he did not because the police won’t help him because of his ethnicity. He also claimed he feared harm at the hands of these people and others everywhere in Malaysia.
The applicant’s wife gave consistent evidence to her husband and provided more details about the discrimination the applicant and his siblings faced due to their Suluk ethnicity. Examples she gave where discrimination in seeking employment, noting that they have been rejected for government positions and only able to find low paying and unstable employment. She also gave evidence that her husband was often trying to hide his ethnicity as he did not want anyone to know that he was Suluk. She further explained that in Sabah when they would try to buy goods it was expensive because her husband is Suluk. Finally, she explained that she and her husband are fearful to return to Malaysia as they do not feel safe and do not want the threats to happen again.
REASONS AND FINDINGS
New claims
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why the claim was not made or evidence not presented before the primary decision was made.
I accept that the applicant may have been scared to divulge all the details about his claims at the time he applied for the protection visa. It is well documented that on arrival asylum seekers may be in a state of shock or anxiety and, as such, may not understand the significance of providing information relevant to their claims.[1] I note the applicant did not receive the assistance of a representative or interpreter when completing the application form. He was also not invited to interview with the delegate so the hearing before the Tribunal was the first time he was able to fully set out and explain his claims with the benefit of an interpreter which are linked to his earlier claims of his economic hardship.
[1] ‘Assessing credibility’, Procedures Advice Manual (PAM3 - MIGRATION REGULATIONS, Asylum claims), 1 July 2011 to 14 August 2011
In these circumstances, I do not draw an adverse inference in relation to the applicant’s credibility in relation to the new claims of fearing harm because of his Suluk ethnicity.
Claims to fear harm due to his Suluk ethnicity
I found the applicant and his wife’s evidence credible. They provided significant detail, including specific dates of times in which the applicant was threatened and discriminated against. I also considered that they each spoke with sincere emotion, and I found their evidence to reflect a genuine lived experience.
Country information
The Department of Foreign Affairs (DFAT) Report (2024) on Malaysia is silent on the situation of Suluk people in Malaysia.
Other country information considered by the Tribunal reports that the Tanduo incident related to an invasion of the small village of Tanduo in Sabah by the self-proclaimed Sultan of Sulu in February 2013. The sultan made demands to the Malaysian government for formal recognition, the admission of sovereignty over Sabah, and a claim for a large compensation payment. It was reported by the authorities that 200 armed terrorists, calling themselves the Royal Sulu Force (RSF) travelled by boats from southern Philippines to the village and made the demands.[2] The Malaysian government ‘did not entertain these demands’, and after a few weeks of failed negotiations, Malaysian security forces engaged in combat with the RSF in Tanduo village, effectively ending the siege. The incursion resulted in the loss of 10 Malaysian security personnel while 68 RSF members were killed.[3] It was also reported that 6 civilians were killed.[4] During the security operation, the Malaysian security forces also maintained a tight security cordon surrounding the affected areas. Those without proper documentation such as a MyKad card were detained by security personnel. On 11 March 2013, the Tanduo village was declared secured by the Malaysian security forces.[5]
[2] ‘The Lahad Datu incursion & its impact on Malaysia's security’, The Southeast Asia Regional Centre for Counter-Terrorism (SEARCCT), Ministry of Foreign Affairs (Malaysia), 2016 (SEARCCT Report), p 5
[3] Ibid, p 5-8
[4] ‘‘Malaysia Heightens Sabah Security amid Report about Invasion Plot from Nearby Sulu’, Benar News, 10 December 2021
[5] SEARCCT Report, p 5-8
Following the 2013 incursion, the Malaysian government established the Eastern Sabah Security Command (ESSCOM) to protect Sabah’s eastern seaboard from external threats.[6] The government views the RSF as an on-going threat to Sabah.[7] Additionally, the sultan’s family in 2016 indicated that they would reclaim Sabah peacefully, or by force if necessary.[8]
[6] ‘Battle for control of Kampung Tanduo’, Aljazeera, 25 February 2013
[7] SEARCCT report, p 17; ‘Malaysia Heightens Sabah Security amid Report about Invasion Plot from Nearby Sulu’, Benar News, 10 December 2021
[8] SEARCCT report, p 17
The author of a February 2013 Al Jazeera news article mentions Filipino migrants are viewed with suspicion by Sabahans:
Many Sabahans worry they may come under attack by the Royal Sulu Army group anytime. “They are amongst us, they’ve been here the whole time,” one said.
Filipinos we’ve spoken to here say they have often been regarded with suspicion. But such discrimination is something they’ve got used to over the years. Life in Sabah, they say, is still better than what they had back home.
There are hundreds of thousands of Filipinos in Sabah. Most of them came here to escape poverty and militarisation in southern Philippines. But even after generations of living here, many of them have remained poor and stateless.[9]
[9] ‘Battle for control of Kampung Tanduo’, Aljazeera, 25 February 2013
A 2022 New Straits Times article mentions that Suluk may be perceived to be Philippine immigrants and are marred by public opinion that links them to terrorist and criminal groups from the Philippines.[10]
[10] ‘The Suluk are natives of Sabah, but their narrative is absent’, New Straits Times, 20 August 2022
A 2025 journal article about statelessness in Sabah mentions that the Suluk are officially recognised as an indigenous group by the Sabahan government, but are stigmatised as “terrorists” and “illegal migrants.” The article mentions that in the wake of the 2013 incursion Suluks were stigmatised and the IMM13 immigration program (to provide identity documents to Philippine refugees) was frozen.[11] The article further discusses security measures and stigma faced by the Suluk in response to the 2013 incursion:
In practice, ESSCOM did not successfully stymie “illegal” migration, though it did make the lives and livelihoods of migrants and minorities more uneasy by rigidifying what had historically been fluid ethnic boundaries. The militarization of the east coast served to reinforce the outsider status of internally – and liminally-resident Suluk and Bajau minorities.[12]
[11] ‘Territorial claims, unclaimed people: the postcolonial geopolitics of statelessness in Sabah, Malaysia’, Cheong, A R., Thomas, N C B., Baltazar, M A K., Ethnic and Racial Studies, 2025, p 11-12
[12] ‘Ibid, p 13-14
The applicant also provided country information which indicates that there remains a negative sentiment towards those of Suluk descent in Sabah, as they are often perceived as illegal immigrants as a whole and to be ‘evil', 'problematic' and 'dangerous'. [13] One of the articles also reported that some Suluk people tried to hide their identity following the Tanduo incident and that many employers were reluctant to pay workers of Suluk decent due to the poor public image carried by the group. The article further opined that the Malaysian government’s action of declaring 'Operation Sulu' in dealing with the invasion showed how the sentiment of anti-Suluk discourse was used inadvertently in dealing with the problem, as well as showing how the Suluk were targeted. However, the article notes that the operation was later renamed 'Ops Daulat' because it received criticism from several parties and was aimed at maintaining tribal sensitivities in Sabah.[14] The applicant also provided screenshots from social media with negative commentary about Suluk people.
[13] The Role of Events in Identity Formation: The 2013 Tanduo Incident and the Identity Formation of the Suluk (Tausug) Community in Sabah, Hassan W S W , Jurnal Kinabalu, 2018, p 8; ‘The Suluk are natives of Sabah, but their narrative is absent’, New Straits Times, 20 August 2022; It is unfair to label Suluk community in Sabah, as “illegal immigrants” or PATI as a whole, says Zaki Susanto, Jesselton Times, 1 May 2024
[14] The Role of Events in Identity Formation: The 2013 Tanduo Incident and the Identity Formation of the Suluk (Tausug) Community in Sabah, Hassan W S W , Jurnal Kinabalu, 2018, p 8-10
I note that the country information only refers to the negative perceptions and discrimination against Suluk people in Sabah. The Tribunal has been unable to find any country information that indicates such perceptions and discrimination is present in Peninsular Malaysia.
Does the applicant satisfy the refugee criterion for protection?
Based on the country information, and the applicant’s detailed credible evidence about the instances of harm he faced in Sabah in 2013 and 2016, I find that there is a real chance of harm if the applicant were returned to Sabah. Noting the passage of time, I consider that chance to only be a slight chance but given the negative perception of Suluk people persists in Sabah it is nevertheless a real one. I therefore find that there remains a real chance in the reasonably foreseeable future that the applicant would face such harm.
The types of harm that the applicant may face includes verbal abuse and harassment by society in Sabah and difficulty finding employment. Having accepted the applicant had past experiences of being physically harmed and threatened with a weapon, I also find that there is a chance of similar instances of harm occurring in the reasonably foreseeable future. Such treatment would amount to serious harm, namely threats to his life, significant physical harassment and/or significant physical ill treatment: see s 5J(5) of the Act.
The essential and significant reason for the harm is due to his Suluk ethnicity and therefore the applicant satisfies the criteria in ss 5J(1)(a) and 5J(4)(a) of the Act. Further, the persecution involves systematic and discriminatory conduct: see s 57(4)(c) of the Act.
However, the country information and applicant’s evidence of his past experiences demonstrates that the persecution is not perpetrated by the state, but instead by society in Sabah. While I accept that the state’s response to the Tanduo incident contributed to the negative perception of Suluk people in society, the state is not the perpetrator of harm. Further, the applicant made no claims that he faced any instances of harm in peninsular Malaysia where he lived between March 2013 and July 2016, other than difficulty finding stable employment (which on its own does not constitute serious or significant harm). There is also no country information to indicate that Suluk people face any societal or official discrimination in Peninsular Malaysia. I therefore find that the harm does not relate to all areas of Malaysia as required by s 5J(1)(c) of the Act and applicant does not satisfy s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have also considered the alternative criterion in s 36(2)(aa).
I find there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia there is a real risk of the applicant suffering significant harm, namely cruel or inhuman treatment by those in Sabah that intentionally target Suluk people and inflict severe pain or suffering: see s 36(2A) and s 5(1) of the Act.
However, I consider that the applicant could safely relocate to Peninsular Malaysia and there will not be a real risk of significant harm there for the reasons given in [40] above. I also find it would be reasonable for him to relocate there. I acknowledge that the applicant gave evidence that he found it difficult to find stable employment in Peninsular Malaysia. I also acknowledge returning to anywhere in Malaysia will be difficult for the applicant and his family given the time they have spent in Australia, his eldest child has not returned to Malaysia since she was [age] old and the remaining 3 children have never been to Malaysia. However, I do not consider it unreasonable for the applicant and his family to relocate to Peninsular Malaysia in circumstances where:
a.the applicant lived in Peninsular Malaysia for more than 3 years before moving to Australia
b.the applicant is relatively young, has work experience in Malaysia and Australia and he speaks English and Malay
c.the applicant’s wife is from Selangor (and she gave evidence that she comes from a supportive family)
d.the applicant is Muslim (noting that 63.5% of the Malaysian population practices Islam[15]), and
e.while the applicant and his family may have lesser living standards than they have experienced in Australia I consider they will be able to live a relatively normal life by the standards in Malaysia.[16]
[15] DFAT Report, [3.35]
[16] MZANX v MIBP [2017] FCA 307 at [60]; Januzi v SSHD [2006] 2 AC 426 at [20]; and SZATVv MIAC [2007] HCA 40 [25]
For the reasons given above, I find that it would be reasonable for the applicant to relocate to Peninsular Malaysia where there would not be real risk of significant harm for the purposes of s 36(2B)(a) of the Act and the applicant therefore does not satisfy s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa). I am 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).
Referral to the Minister
I have also considered whether it is appropriate to refer the case to the Department for consideration by the Minister pursuant to s 351 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
In my view, there are several exceptional circumstances in this case, as follows:
a.The length of time the applicant has been in Australia and his level of integration into the Australian community:
i. The applicant has been living in Australia for 9 years (since 2016), where he has been raising his 4 children, 3 of which were born in Australia.
ii. The applicant has provided the Tribunal with a number of letters of support demonstrating his connection to the South Australian community, namely from the [Official 1] of [Agency 1] who noted the applicant and his family’s active involvement in programs and events organised by the association, his employer who has described him as a hard worker, honest and reliable and his property manager who has described him as polite and respectful to deal with.
b.The failure of the department to properly notify the applicant of the delegate’s decision in 2018 and the fact that he was not notified until 4 January 2021, has led to an unfair and unreasonable result in this case:
i. Between the delegate making the refusal decision of his protection visa and notifying him of the decision, the applicant had two more children and he and his family have further integrated into the South Australian community and way of life.
c.The Convention on the Rights of the Child, including the best interests of the child – which must be treated as a primary consideration:
i. As mentioned above, the applicant’s eldest child has not been in Malaysia since she was [age] old and his other 3 children were born in Australia and have never been to Malaysia. While the children are not Australian citizens the older 3 children have been attending school and preschool and all have integrated into the Australian community. The applicant has provided the Tribunal with excerpts from his children’s school journals as well as photographs of them attending community events.
I have considered the ‘PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and consider it appropriate to refer the matter to the Minister.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 6 February 2025
Representative of the Applicant: N/A
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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