2109717 (Refugee) - [2025] ARTA 1389

2109717 (Refugee) [2025] ARTA 1389 (28 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2109717

Tribunal:General Member R Lee
Date:28 May 2025

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

Statement made on 28 May 2025 at 6:18pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – social media comments on Islam – fear of detention – attack on home – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 348, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 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 29 July 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Migration Act).
The applicant first arrived in Australia [in] February 2020 and has not departed since.[1]
[1] Movement record - 9 May 2025. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of Malaysia, applied for the visa on 12 May 2020.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old Malaysian citizen who was born and lived in Sibu, Sarawak, Malaysia. Further, the applicant:
·belongs to the Chinese ethnic group; was born to Malaysian citizens; never married; does not have members of the same family unit or other family members (including partners and dependent children) in or outside Australia; is Christian; completed middle school in [specified year]; and had never been employed;
·had not undertaken any overseas travel in the last 30 years and obtained their Malaysian passport [in] 2019;
·can speak, read, and write in both the Mandarin and English languages; and
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they left Malaysia because they disagreed with Muslim teachings and left comments on social media. Their homes and cars were vandalised, with a pig’s head being thrown into their house. The police were contacted but did not assist. If they returned to Malaysia, they will be taken to court. The delegate refused to grant the visa on the basis that they did not accept the applicant’s claims were genuine and rejected them in their entirety.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 12 May 2020, the applicant was sent correspondence acknowledging receipt of the protection visa application and stating that the Department may make a decision on the application without requesting additional information and they should provide the Department with all the information that they felt was relevant.
On 15 May 2020, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could submit any additional information to the Department.
The applicant’s appointment to provide biometrics/personal identifiers was on 4 November 2020, which the applicant attended.
On 10 March 2021, the applicant was sent correspondence advising that more information was needed to assess the protection visa application and noting the applicant’s statement of claims lacked substantiating details such as what they specifically said, dates and locations, identities, and supporting documentation, regarding their online comments and the treatment they suffered as a result. As the applicant had not provided any further details or documentary evidence to support their claims, they were invited to assist the delegate in deciding whether to accept that these claims are genuine, by providing further information about what happened to them in Malaysia, including dates and locations of events, as follows:
·Details of their online comments, specifically, what they said, when, and evidence of these comments;
·Details of the time they were attacked, including times, dates and details of what happened;
·The identities of their attackers (if known); and
·If they had been arrested or have faced arrest over this matter, copies of any arrest warrants/charge sheets they received over this matter.
The Department did not receive a response to the 10 March 2021 letter above or any further information or documentary evidence from the applicant.
The Department did not invite the applicant to attend an interview.
Evidence before the Tribunal
The review application
On 30 July 2021, the applicant lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT) and attached a copy of the delegate’s decision but nothing else.
On 2 August 2021, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could.
On 14 October 2024, the AAT became the Administrative Review Tribunal (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. This decision and statement of reasons is made by the Tribunal.
On 30 January 2025, the Tribunal sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could. The form also noted that in their protection visa application they would have provided reasons or made claims as to why they needed Australia to grant them protection and asked if they wanted to give any more information about the claims for protection and whether there were any other reasons they were afraid to return to their home country.
The applicant did not provide the Tribunal with a copy of a completed pre-hearing information form.
On 8 May 2025, the Tribunal sent the applicant by email to their registered email address a notice of hearing, informing them that their application had been constituted to a member who would hold a hearing and make a decision about their review. They were also informed that their matter had been listed for hearing on 28 May 2025 at the Perth registry. The notice of hearing enclosed a ‘Response to hearing notice’ form.
The notice of hearing included a section addressing the situation where an applicant wants the Tribunal to make a decision without holding a hearing. The notice explained that the applicant could use the enclosed ‘Response to hearing notice’ form to request the Tribunal to make a decision without a hearing. The notice went on to explain that if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal considers that the issues can be determined in the applicant’s absence, this did not guarantee that they will receive a favourable decision.
The notice of hearing also invited the applicant to provide to the Tribunal all documents upon which they intended to rely to support their case by 21 May 2025 if they had not already done so. No further documents in support of the application were received from the applicant.
On 8 May 2025, the applicant sent an email from their registered email address to the Tribunal in response to and including the Tribunal’s cover email of 8 May 2025, attaching a completed ‘Response to hearing notice’ form signed by the applicant. In that form, in response to the question ‘Will you take part in the hearing scheduled for 28 May 2025?’, the applicant ticked the box which stated, ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’.
On 21 May 2025, the applicant again sent an email from their registered email address to the Tribunal attaching a completed ‘Response to hearing notice’ form signed by the applicant. In that form, in response to the question ‘Will you take part in the hearing scheduled for 28 May 2025?’, the applicant ticked the box which stated, ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’.
By email dated 27 May 2025, the Tribunal acknowledged the applicant’s request for the Tribunal to make a decision on the papers without holding a hearing and stated that the Tribunal would make a decision on the papers and that the scheduled hearing had been cancelled.
SHOULD A DECISION BE MADE WITHOUT A HEARING IN PRESENT CASE?
As is the case for all reviews under Part 5 of the Migration Act, the parties to this proceeding are the applicant and the Minister for Immigration and Multicultural Affairs (Minister), who is a non-participating party,[2] and therefore the requirements of s 106(3)(a) of the Administrative Review Tribunal Act 2024 (ART Act) are met.
[2] Section 348A(1) of the Migration Act provides that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act.
Did the applicant request a decision without a hearing?
Whether an applicant has requested the Tribunal to make its decision without holding a hearing for the purposes of s 106(3)(b)(ii) of the ART Act is a question of fact to be determined by the Tribunal in the circumstances of each case. If the Tribunal is satisfied on the information before it that a request for a decision to be made without a hearing was made by an applicant, such as when the communication from an applicant was by a method associated with the application for review (such as from a registered email address), this requirement will be satisfied.[3]
[3] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) at [85] and [86(a)].
Based on the applicant’s response in the ‘Response to hearing notice’ form submitted via their registered email address twice, with the first one being a reply to and including the Tribunal’s cover email to the applicant’s registered email address attaching the form, the Tribunal is satisfied that they requested the Tribunal to make a decision without holding a hearing.[4] Whilst the applicant has referred to an email address in the signed form which is not the applicant’s registered email address, and has chosen despite an invitation to do so from the Tribunal not to update their registered email address, the Tribunal considers that there is no ambiguity about the request itself as it came twice from the registered email address.
[4] See 2010120 (Refugee) above at [90].
The Tribunal is therefore satisfied that the correspondence considered above establishes that the applicant has made a request that the Tribunal make a decision without holding a hearing of the proceeding within the meaning of s 106(3)(b)(ii) of the ART Act and accordingly, that section is satisfied.
Can issues for determination be adequately determined in absence of parties?
The applicant has been given several opportunities to present evidence in support of their application for review.[5] This includes in the protection visa application, in response to correspondence from the Department prior to the delegate’s decision being made, in lodging their application for review, in response to correspondence from the AAT or the Tribunal, including in response to the Tribunal’s notice that the proceeding had been set down for a hearing, as outlined above.
[5] See 2010120 (Refugee) above at [91] .
As noted above, the Tribunal’s hearing notice explained that, if the applicant requests the Tribunal to make a decision without a hearing and the Tribunal proceeds to do so, a decision without a hearing would be made on the evidence before the Tribunal and may not be in the applicant’s favour. The applicant had an opportunity at that point to provide further evidence to support their claims but did not do so.[6] The applicant neither provided nor indicated they wished to provide, any further evidence or submissions, including addressing the issues raised in the delegate’s decision leading to the refusal of the visa application.
[6] See 2010120 (Refugee) above at [92].
The Tribunal has before it a copy of the Department’s file, which includes the applicant’s identity documents, their protection visa application (which contains biographical information and their claims for protection) and a copy of the delegate’s decision. The Tribunal also has a copy of the current country information in the relevant Department of Foreign Affairs and Trade (DFAT) report, being Malaysia 24 June 2024.
From this information, the Tribunal can determine the applicant’s identity and receiving country and make findings about the issues the Tribunal is required to determine as follows, based on the information the applicant has provided in support of their application and without seeking further evidence or submissions from them:[7]
(a)whether the applicant faces a real chance of persecution 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 Migration Act if returned to their receiving country; and
(b)if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
[7] See 2010120 (Refugee) above at [42] and [94].
If the Tribunal was to accede to the applicant’s request that a decision be made on their application for review without conducting a hearing, there is nothing to suggest that a review without a hearing:[8]
(a)would not be ‘fair and just’;
(b)would not enable the Tribunal to give ‘proper consideration of the matters before the Tribunal’;
(c)would not comply with the procedural fairness provisions that apply to the type of case that is before the Tribunal; and
(d)would not enable the Tribunal to make the ‘correct or preferable decision' in relation to the proceeding.
[8] See 2010120 (Refugee) above at [53] and [94].
Accordingly, the Tribunal considers that the issues for determination in the proceeding can be adequately determined in the absence of a hearing, and therefore the requirements of s 106(3)(c) of the ART Act are met.
The Tribunal notes that having found that there is sufficient information before it to enable it to adequately determine the issues in the proceeding, it may still determine that there is insufficient evidence to substantiate the applicant’s protection claims.[9]
[9] See 2010120 (Refugee) above at [60] and [69].
Conclusion
As the applicant has expressly requested that a decision be made without holding a hearing and the other requirements of s 106(3) are satisfied, as held in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) at [65], it is difficult to envisage a situation where it would be a proper exercise of the discretion in s 106(3) to refuse to decide the proceeding without holding a hearing and, instead, insist that the applicant attend a hearing. The Tribunal is entitled to rely on an applicant’s exercise of their choice to waive their right to a hearing and have their application for review determined on the papers.
Accordingly, the Tribunal will now decide the proceeding without conducting a hearing by considering the documents and things given to it.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Migration 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.
Applicant’s responsibility

Section 5AAA of the Migration Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Migration 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
In summary, the issue in this case is whether the applicant is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a Malaysian passport and claims to be a Malaysian national. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a national of Malaysia, which is also their receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims persecution for social media posts criticising Islam in Malaysia, based on the protection visa application. This document provides the applicant’s claims for protection and is the sole source of the applicant’s claims and evidence before the Tribunal. Based on the Tribunal’s records, the Tribunal has not received any more details, evidence or documents in support of the applicant’s claims than that which was before the Department. The Tribunal finds this is despite, as outlined above:
(a)the Department’s correspondence of 12 and 15 May 2020 and the Department’s specific request for further details on 10 March 2021; and
(b)the AAT’s and the Tribunal’s correspondence of 2 August 2021, 30 January 2025, 8 May 2025 and 27 May 2025.
The Tribunal finds the applicant’s allegations in the claims for protection in the protection visa application are vague and lack detail. Of significant concern to the Tribunal is the fact that the applicant has not provided further information as requested by the Department, either to the Department or to the AAT/Tribunal, in relation to the following:
·     Details of their online comments, specifically, what they said, when, and evidence of these comments;
·     Details of the time they were attacked, including times, dates and details of what happened;
·     The identities of their attackers (if known); and
·     If they had been arrested or have faced arrest over this matter, copies of any arrest warrants/charge sheets they received over this matter.
The Tribunal notes that it was stated in the delegate’s decision that the delegate had advised in their 10 March 2021 letter that they were concerned the applicant’s statements of claims may not be genuine because they lacked substantiating details such as dates and locations, and supporting documentation, in regard to their claims, and that no further details or documentary evidence to support their claims had been provided. The delegate’s decision also noted that the letter also invited the applicant, in order to assist the delegate in deciding whether to accept that their claims were genuine, to provide more information about what happened to them in Malaysia, including dates and locations of events and the answers to the listed questions referred to above.
Based on the Tribunal’s records, the Tribunal finds that the applicant:
(a)did not provide the AAT or the Tribunal further details despite the AAT’s letter of 2 August 2021, in which the included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could;
(b)had uploaded the delegate’s decision with their application to the AAT, but did not provide the AAT or the Tribunal:
(i)any comments on the delegate’s setting out of the opportunities the applicant had had to provide all the details of their claims, including the 10 March 2021 letter referred to above, before the delegate’s decision was made;
(ii)any comments on the delegate’s statement that the applicant’s initial claims contained in their protection visa application lacked detail or supporting evidence and the applicant did not respond to the 10 March 2021 letter to provide further information, including details and/or evidence to support their claims, or provide any explanation of why they could not provide the information; and
(iii)why they disagreed with the delegate’s decision that their claim was not genuine;
(c)did not in any way provide the details suggested in the 10 March 2021 letter;
(d)did not provide the Tribunal further details despite the Tribunal’s correspondence of 30 January 2025, in which the applicant was asked to provide any further evidence they wished to submit in writing as soon as they could; and
(e)did not provide the Tribunal further details or evidence despite the notice of hearing advising that the Tribunal not holding a hearing did not guarantee that the applicant would receive a favourable decision and asked the applicant to provide all documents on which they intended to rely to support their case by 21 May 2025, noting that the delegate’s decision should set out the reasons for the decision, and the applicant should have regard to these, and any changes in their circumstances, in providing documents.
The Tribunal repeats that s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim and that the Tribunal does not have to possess rebutting evidence before holding that a particular assertion was not made out. The Tribunal finds that the applicant has had numerous opportunities before it to specify all particulars of their claim and to provide sufficient evidence to establish the claim but has not done so.
The Tribunal finds that the claims for protection in the protection visa application are not genuine, because the applicant’s claims are vague and lack detail and the applicant did not provide further information in support of their claims as requested by the Department and referred to in the delegate’s decision despite opportunities presented by the Department and the Tribunal as outlined above.
The Tribunal finds that there is no real chance of harm in the reasonably foreseeable future if the applicant returns to Malaysia on the basis of the claims for protection before the delegate and the Tribunal, because the Tribunal has found those claims to not be genuine.
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).
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), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
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).
Same family unit?
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:   N/A
Representative for 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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