2111093 (Refugee) - [2025] ARTA 1932

2111093 (REFUGEE) [2025] ARTA 1932 (3 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2111093
Tribunal:General Member M. Tubridy
Date:3 September 2025

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

Statement made on 03 September 2025 at 3:44pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – fear of monitoring and being forced to practice state-approved Christianity or undergo political indoctrination – length of residence, education and lifestyle in Australia – consent to decision without hearing – undetailed claims and no supporting evidence – government encourages return from abroad – little prospect of being disadvantaged or facing official discrimination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(ii), (c)
Migration Regulations 1994 (Cth), Schedule 2
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 on 6 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The application for review was lodged with the Administrative Appeals Tribunal (AAT) on 24 August 2021. On 14 October 2024, the AAT became the Administrative Review Tribunal (ART). 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 ART. The Transitional Act gives the ART 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.[1]
[1] References in this decision to ‘the Tribunal’ are intended to include both the AAT and the ART.
BACKGROUND
As noted, the applicant lodged his application for review with the Tribunal on 24 August 2021. In doing so, he provided the Tribunal with a copy of the refusal notification which was emailed to him on 6 August 2021 by the Department of Home Affairs (the Department), along with a copy of the delegate’s reasons for refusing to grant the visa. He also provided a contact telephone number, email address and residential address.
The delegate’s decision records that the applicant lodged his application for a protection visa on 4 June 2019 and in doing so had submitted protection claims in writing with respect to the prospect of returning to the People’s Republic of China (hereafter: PRC or China). The delegate summarised the applicant’s claims as follows. He was a citizen of China and a Christian and he left his country to study in Australia since 2006. He practiced his Christian faith without any restrictions during his stay in Australia, and he fears that were he to return to China he would not be allowed to worship his Christian faith freely, publish his Christian experiences online, or engage in bible discussions with his friends. The applicant claims to have heard stories that the local authorities in China monitor Christians who attend religious gatherings, and pressure Christians to abandon their faith. The applicant claims he is accommodated to the Australian way of life as he has lived and studied in Australia since 2006, and he fears he will not be accustomed to life in China upon his return.
The delegate noted that the applicant had provided a copy of his passport as evidence of his identity and citizenship, and the delegate accepted that the applicant was a national of China. But the delegate had concerns about the applicant’s claim to be a Christian and to fear adverse treatment in China as a result.
In the letter respect, the delegate considered that the applicant had provided very little detail and no evidence in support if his broader claims, even though the protection visa application form had advised the applicant that he should provide all of his claims for protection and all documentation or other evidence to support his claims, as a decision could be made on the information provided in his application. The delegate considered that the applicant had provided no details about where or with who he practised Christianity in either China or Australia. Nor had he provided any letters of support from any religious organisations or religious leaders or members. On 18 May 2021 the delegate sent the applicant a letter inviting him to provide specific details and supporting documents in this regard. The applicant did not respond. This being the case, the delegate was not satisfied that the applicant was a Christian, or that on this basis the applicant had a well-founded fear of persecution or would face a real risk of significant harm if he were to return to China.
The delegate also had concerns regarding the applicant’s claim to fear that he would not be able to adjust to the Chinese way of life and culture upon his return. The delegate considered that this fear did not arise for any of the reasons specified by s.5J(1)(a) of the Act. The delegate accepted that it might be difficult to readjust to life in China after spending a long period of time in Australia, but the delegate noted that the applicant had not specified what harm he would face in this respect, and the delegate was not satisfied that this situation amounted to significant harm.
On 25 August 2021 the Tribunal emailed the applicant an acknowledgement that his application for review had been received. In doing so, the Tribunal advised the applicant that if he wished to provide material or written arguments for the Tribunal to consider (including a statement setting out why he disagreed with the delegate’s decision) he should do so as soon as possible. The correspondence also included a message in both simplified and traditional Chinese which advised that the Tribunal’s letter required the applicant’s urgent attention and that, if he did not understand it, he should telephone the Tribunal with the assistance of the Translating & Interpreting Service on a provided telephone number. The Tribunal received no response from the applicant to this.
The Department provided the Tribunal with a copy of the applicant’s protection visa application, including: his responses to that application form’s questions about his personal history, and his reasons for claiming protection; and a copy of the biodata pages from the applicant’s People’s Republic of China passport. The Department provided the Tribunal with the various pieces of correspondence associated with the applicant’s protection visa application (including the delegate’s request for more information which was emailed to the applicant on 18 May 2021) and some associated administrative documents, and a further copy of the delegate’s decision.
In his responses to the protection visa application form’s questions (regarding his reason for leaving his country and for now seeking protection) the applicant stated that he had left China when he was [Age] years of age (that is, in October 2006) because his parents had wanted him to study in Australia. The applicant submitted that He then submitted that he could not go back to China because he was a Christian, and also because he had been in Australia for over 12 years. In the latter regard, the applicant claimed to fear returning to China because he was used to life in Australia; because he was educated in Australia and he grew up in Australia, not China. With regard for his other reason for why he did not want to return to China (his being a Christian) the applicant claimed that: in Australia he could have his own religion without any trouble, and was able to do things not allowed in China, such as joining Bible discussions with friends and any others, and writing and publishing his own understanding of Christian stories. He claimed that the government of China does not allow people to have own religion; and that in China the local Street Office will monitor and follow people who attend Christian events, and they have methods of forcing you to give up Christianity which include forcing you to study the Chinese Communist Party (CCP) constitution. He claimed to fear being put in such a study group, and that he would suffer because he would not be a Christian in China under the government’s rules.
On 10 June 2025 the Tribunal transmitted an email to the last email address which the applicant had provided in connection the review. This stated that the applicant’s file was now being prepared to be given to a Tribunal Member, and it directed the applicant to assist the Tribunal by completing a pre-hearing information form, and then returning this to the Tribunal within 14 days. The Tribunal received a reply email from the applicant’s email service which stated that the Tribunal’s email was undeliverable because the applicant’s email address was unavailable.
I note, with regard to the above, that when the Tribunal had first emailed the applicant on 25 August 2021 (that is, when the Tribunal acknowledged receipt of the applicant’s application for review) the Tribunal had advised the applicant that he should tell the Tribunal immediately if he changed his contact details because if he did not he might not receive an invitation to a hearing or other important information and his case might be decided without further notice. Even so, the applicant had not kept the Tribunal updated in this regard.
On 14 and 15 July 2025 the Tribunal attempted to contact the applicant via telephone, by way of calling the last telephone number which the applicant had provided to the Tribunal in connection with the review (this being the telephone number he provided on 24 August 2021). The applicant did not answer, and so a Tribunal officer left voice mail messages which requested that the applicant telephone the Tribunal to update his contact details. This included a message left with the assistance of a Mandarin interpreter on 15 July 2025. No return call was received.
On 22 July 2025 the Tribunal issued a ‘Notice of Hearing’ to the applicant which advised that his hearing would take place on 14 August 2025 from 2:00pm at the Tribunal’s Sydney office. The ‘Notice of Hearing’ was sent by prepaid post to the last residential address which the applicant had provided in connection with the review (this being the address he provided on 24 August 2021), and also to the last email address which the applicant had provided in connection the review. With regard to the latter, the Tribunal again received a reply email from the applicant’s email service which stated that the Tribunal’s email was undeliverable because the applicant’s email address was unavailable.
On 25 July 2025 a Tribunal officer sought to leave a voice mail message about the hearing of 14 August 2025 by telephoning the applicant with the assistance of a Mandarin interpreter. This time, however, the call was answered. The person who answered gave his name and date of birth as that of the applicant. Asked about his current email and residential address, the answerer said these had changed. The Tribunal officer took these new contact details and advised the answerer to email the Tribunal to provide these to the Tribunal in writing, along with evidence of his identity. The Tribunal officer also advised the answerer of the details of the 14 August 2025 hearing. Following this, the Tribunal transmitted an email to the new email address provided by the answerer, and this requested that the applicant provide the Tribunal with new contact details in writing, along with evidence of his identity.
No response was received. Even so, given that the answerer has identified himself as the applicant by way of stating his name and also his date of birth, the Tribunal was satisfied that on 25 July 2025 the Tribunal officer had been speaking with the applicant, and that the new email address provided by the applicant was now the last email address provided by the application to the Tribunal in connection with the review. This being the case, on 30 July 2025 the Tribunal gave to the applicant (via this new email address) the ‘Notice of Hearing’ which advised the applicant that his hearing would take place on 14 August 2025 from 2:00pm at the Tribunal’s Sydney office.
On 31 July 2025 the Tribunal received an email from a registered migration agent. This attached written notice from the applicant that he was appointing this migration agent as his authorised recipient. It also attached a copy of the biodata page of the applicant’s May 2017 issued PRC passport, and a letter from the applicant dated 31 July 2017 in which he stated that he had: decided not to attend court on 14 August 2025.
On 8 August 2025 the Tribunal emailed the applicant (via his authorised recipient). In this email, the Tribunal noted that it had received the applicant’s letter which stated that he had decided not to attend court on 14 August 2025. The Tribunal conveyed that it considered this to be a response to the ‘Notice of Hearing’ which had asked the applicant whether he would participate in the hearing scheduled for 14 August 2025. The Tribunal’s 8 August 2025 email asked the applicant to remove any doubt about this by completing the ‘Response to hearing notice’ which was included in the ‘Notice of Hearing’. The Tribunal’s email of 31 July 2025 also advised the applicant: if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision.
On 8 August 2025 the Tribunal received an email from the applicant’s authorised recipient. This attached a completed ‘Response to hearing notice’ signed by the applicant, and in which he marked the checkbox for indicating that he would not participate in the hearing, and that he requested that the Tribunal make a decision on the papers without a hearing. I note also that the applicant gave no indication there was any issue (such as a health problem or disability) that would affect his ability to participate in the hearing. I note also that the applicant gave no indication that he believed he would experience difficulty in participating in the hearing. He also gave no indication that he had any interest in providing any documents, or in making a request for the Tribunal to take oral evidence from any witnesses.
Section 106 of the Administrative Review Tribunal Act 2024 (the ART Act) sets out the circumstances in which the Tribunal may reach a decision without a hearing. Section 106(3) applies to reviews where the only parties are the applicant and a non-participating party, which is the case here. It provides that the Tribunal may make a decision without a hearing where the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding, and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties.
I am satisfied 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. The issues to be decided in this review are whether the applicant meets the criteria for a protection visa, and specifically whether he satisfies the refugee criterion in s 36(2)(a) of the Act or, if not, whether he satisfies the complementary protection criterion in s 36(2)(aa). As has been noted above, the applicant has been provided several opportunities (first by the Department, and subsequently by the Tribunal) to provide further claims and/or evidence and information in support of his case since he lodged his protection visa application. He has not done so, nor has he indicated that he wishes to do so, nor has he requested to be allowed further time to do so. The material before the Tribunal includes the applicant’s protection claims, and his claim to be a national of China, along with a copy of his passport, and the information he has provided in his protection visa application about his identity and personal history. I also have before me country information about China, including the relevant country information assessment prepared by the Department of Foreign Affairs and Trade; and I also have before me the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs. I consider, as per s.106(3)(c) of the ART Act, that the issues for determination in the proceeding can be adequately determined in the absence of a hearing.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Receiving Country

The applicant presents as a citizen of the People’s Republic of China (the PRC; or China). The Nationality Law of the People’s Republic of China 1980 (Article 4) provides that: Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.[2] The applicant has indicated that he was born in China to parents who were both Chinese nationals. He has provided a copy of his People’s Republic of China issued passport and this indicates that the applicant was born China (in China’s Fujian Province), and it presents his nationality as Chinese. I accept that the applicant is a citizen and a national of China, and I find China to be his receiving country for the purpose of this review.
[2] Low, C.C. 'Report on Citizenship Law: China and Taiwan', Robert Schuman Centre for Advanced Studies, October 2016, 20190212133821, p.9.
Protection claims
The applicant claims to be a Christian and that he fears returning to China because he would be unable to freely practice the Christian religion in China, and that he will be compelled to give this up (or at least to give up practicing Christianity as he would wish because he would be forced to practice Christianity as per the rules put in place for this in China), including by way of his being followed and monitored, and forced to participate in a study group which would study the CCP constitution.
Like the delegate, I consider that serious doubts about the applicant’s claim to be a Christian are raised by how the applicant has never provided any documentary evidence to establish his claims about having been engaged in Christianity in either China or Australia; or indeed any details as to the specific locations where and/or groups with which he claims to have participated in Christian worship beyond vague references to: joining bible discussions with friends and others; and writing and publishing his own understanding regarding Christian stories. He has provided no evidence of his having produced such writings, or of his having published these, or of his having engaged in Bible discussions; nor has he provided any specific detail about such purported activities, or any indication of his involvement with (and the names of) any specific Christian churches or similar Christian groups either in China or Australia. I am not satisfied, and I do not accept, that the applicant is or that he ever has been a Christian, or that he has any interest in engaging in the practice of the Christian faith.
I am therefore not satisfied that the applicant would, for the foreseeable future, face a real chance or a real risk of harm of any kind in China were he to return to Fujian or indeed anywhere else in China for reason of his being a Christian.
The applicant claims to fear returning to China because he has been in Australia for over 12 years, and because he is used to life in Australia, and because he was educated in Australia and he grew up in Australia, not China.
I accept that at the time the applicant had lodged his protection visa application he had been in Australia for over 12 years, and that he has now resided in Australia for over 19 years. It would, however, be an exaggeration to say that the applicant grew up in Australia, not China. For, and as is apparent from the personal history which the applicant has provided in his protection visa application, the applicant arrived in Australia at [Age] years of age, and thus spent only [Time] of his childhood here (whereas he spent [Age] years of his childhood in China). The applicant was educated in Australia in the sense that he completed some [Time] of [school] here, but after this the applicant commenced paid employment as [an occupation]. The applicant has listed no details of his having received any education in China, but the possibility that he received no such education is highly doubtful. For, and although some rural children do not attend school in China, the World Bank reports that 99 percent of males in China are literate; and the applicant has indicated that he is literate in Mandarin, which I note is the language of instruction in China’s school system, which consists of nine-years of compulsory education (six years of primary school, and three years of middle school) with an additional three years of high school also available.[3]
[3] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 2.29-2.30.
In any event, and regardless of what education the applicant did or did not receive in China, and even taking into account that he has now resided in Australia for more years than he resided in China, it is nonetheless also the case that he is literate in Mandarin and that he live almost all of his childhood in China, and that he would be returning to China as an adult with a completed period of senior high school study, and also employment experience as a result of working as [an occupation] in Australia. I note also that he has given no indication that he has lost contact with his family members in China.
I note also, in this regard, that it is reported that tens of thousands of China’s citizens return each year from lengthy periods spent abroad in countries like Australia and the United States. Such persons are reportedly referred to in China by way of the Mandarin word haigui (or “sea turtles”), said to be a play on the homophone haigui meaning “return from abroad”. It is not, however, apparent that this is a derogatory term, or that such persons are affected by a significant level of prejudice, or that they experience any mistreatment (whether by way of official or social discrimination), let alone violence. Indeed, and although the available country information indicates that such returnees can experience challenges and difficulties of the usual kind for persons returning to their country after a lengthy period abroad (such as readjusting to a previously known living environment, and adjusting to changes in that environment which have occurred during the returnee’s absence), it is nevertheless broadly reported that China’s government encourages the return of such persons to China (as they are seen as a valuable resource), and that such people (even if they find they are not advantaged by their experience of having studied and/or worked abroad with respect to matters like employment) evidently face little prospect of being disadvantaged by having returned from extended period of living abroad in a country like Australia.[4]
[4] Weingarten, E. ‘Why China’s “Sea Turtles” Face Inner Struggles After Returning to Home Shores’, RADII, 2 March 2020, ; Horoszkiewicz, E. ‘The phenomenon of “haigui”’, Boym Institute, 22 April 2021, ; Zweigm D. & Z. Du, ‘Are China’s “Sea Turtles” Becoming “Seaweed”?’, International Higher Education, no.106, Spring 2021, ; Ran, Y. ‘Talented Returnees Benefit From New Lives In Country’, China Daily, 20 February 2023, ;
Like the delegate, I can accept that the applicant may face some difficulties and challenges in returning to China (in terms of re-adjustment or adjustment to a previous and/or changed living environment), but in the absence of greater detail and/or evidence from the applicant about how he would suffer harm on the basis of his having resided in Australia since October 2006 (and his having received an education here, and his having become used to life in Australia), I am not satisfied that the applicant would on such a basis for the foreseeable future face a real chance of harm that would (even when considered cumulatively) amount to serious harm (whether physical or mental, or by way of the withholding of liberty, or by way of the denial of a fundamental human right of importance to the applicant, or by way a denial which would threaten his capacity to subsist, or by some other means). I am not satisfied that the applicant has a well-founded fear of persecution in this regard. I am also not satisfied that the applicant would on such a basis face a real risk of a form of harm that would amount to any of the five specified forms of significant harm.
I note also that in-country sources told DFAT in 2023 that failed asylum seekers returned to China were not specifically targeted by authorities and did not face official discrimination merely for having sought asylum overseas.[5]
[5] DFAT, ‘DFAT Country Information Report: China’, 27 December 2024, 2025010208414, 5.27.
Given all this, and taking into account the applicant’s circumstances and his claims and the evidence before me cumulatively, and regardless of whether the applicant were to return to the village in the town in Fujian’s Fuqing city area where he formerly resided or somewhere else in China, I am not satisfied that the applicant would for the foreseeable future, were he to return to China, face a real chance of serious harm for any reason. I am therefore not satisfied that the applicant has a well-founded fear of persecution in all areas of his receiving country. Neither am I satisfied that he would for any reason face a real risk of significant harm as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country (whether he was to return to his former village and town in Fujian’s Fuqing city area, or to some other location in China).
Does the applicant satisfy the refugee criterion for protection?
For the reasons given above, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning set out in s 5J. I am not satisfied that the applicant is a refugee within the meaning set out in s 5H.
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?
For the reasons given above, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm.
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)(aa).
Other considerations
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 under review.
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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