2114508 (Refugee) - [2024] ARTA 798

2114508 (Refugee) [2024] ARTA 798 (16 December 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Daniel Fernando Moya
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2114508
Tribunal:General Member C Stokes
Date:16 December 2024

Place:Adelaide
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act 1958 (Cth)

I, General Member C Stokes certify this is the Tribunal's statement of decision and reasons.
Statement made on 16 December 2024 at 10.35 am.

CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – homosexual man – beaten and banished by family, threatened with death by stepfather, and assaulted by members of community – Australian citizen partner – country information – national and syariah laws and societal discrimination and violence – innate and immutable characteristic of identity – real chance of persecution even in city – decision made without hearing necessary – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(c)(vi), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(b)(i), (c)

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
1. This is an application for review of a decision made by a delegate of the then Minister for Home Affairs on 13 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a national of Malaysia, ethnically Malay and a homosexual Muslim man, lodged his application for a visa protection visa on 30 April 2018. The delegate refused to grant the visa on the basis that he was not satisfied the applicant is a person in respect of whom Australia has protection obligations.

On 18 October 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.

4. The applicant was represented in relation to the review.

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.
I have considered all the information provided to the Department and the Tribunal as well as recent country information. For the reasons that follow, I am satisfied that a decision can be made wholly in favour of the applicant without hearing from the parties to the proceeding: ss 106(3)(b)(i) and (c) of the Administrative Review Tribunal Act 2024 (the ART Act). Accordingly, the Tribunal has proceeded to make a decision without holding a hearing, pursuant to s 106 of the ART Act.
CRITERIA FOR PROTECTION VISA

7. 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.
8. 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 CLAIMS AND EVIDENCE
The applicant’s migration history
The applicant is a [Age]-year-old man who first arrived in Australia as the holder of a UD-601 Electronic Travel Authority in February 2018. He has remained in Australia since that date. He lodged a valid Class XA - Protection visa (subclass 866) application on 30 April 2018.
Evidence before the Department
Protection visa application
In the application to the Department, the applicant claimed to fear harm because of his homosexuality. In particular, he claimed that:
a.He was banished by his family due to his homosexuality and beaten by them because he told them he wanted to marry same sex partner. They pushed him out and beat him with hockey sticks.
b.He received a death threat from his stepfather if he returned home.
c.He suffered every day and faced challenges in the community because the Malaysian government does not accept LGBT groups like him, and, Malaysians criticise his open attitude as LGBT and a Muslim.
d.If he were to return to Malaysia, he will not be accepted by his family and the people in Malaysia. The law in Malaysia does not permit any acts of LGBT on the basis of respecting the right of illegitimate Muslims. His Homosexuality has also affected his job in Malaysia.
e.He tried to move to Perak, but his family knew where he was and he is not accepted anywhere in Malaysia. His family will keep hunting for him and will beat him as before, especially his stepfather.
f.He does not think the authorities will protect him because the government are opposed to LGBT, and, as a Muslim, he does not have human rights as LBGT.
Supporting documents
In addition to his protection visa application form, the applicant provided the Department with a copy of the biodata page of his Malaysian passport and a copy of his Malaysian national identity card.
Interview
The applicant was invited to, and attended, an interview with an officer of the Department by video conference on 26 August 2022. The applicant was not represented during the interview. The interview was conducted with the assistance of an interpreter in the Malay and English languages. An audio recording of the interview is included in the Department file provided to the Tribunal. I have listened to the audio recording.
After the interview, the applicant provided the delegate with copies of:
a.24 photographs with a male who he claimed was his Australian citizen partner.
b.2 joint utility bills from the periods 7 December 2019 to 5 March 2020 and 10 Mar 2021 to 8 Jun 2021 (in his and his partner’s name).
c.10 screenshots of message exchanges with his partner between August 2018 and August 2021.
Delegate’s decision
On 13 October 2021, the delegate refused the application for the protection visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in ss 36(2)(a) or 36(2)(aa) of the Migration Act 1958 (Cth). While the delegate accepted the applicant is a homosexual Muslim, from Johor Malaysia, who is in same-sex relationship with an Australian man, the delegate did not accept the applicant’s claims to have been harmed by his family on account of his sexuality. The delegate also did not accept that the applicant was physically assaulted by members of his community on account of his sexuality. After considering the country information that was available at the time, the delegate found that any official, societal, and familial discrimination the applicant may face on account of his membership of a particular social group, ‘homosexuals in Malaysia’, would not reach the threshold to constitute persecution.
Evidence before the Tribunal
Application and pre-hearing information
The applicant applied to the then AAT on 28 July 2020. He provided a copy of the delegate’s decision and notification letter, as well as the joint utility bill in his name and his partner’s name from the period 10 March 2021 to 8 June 2021, two photographs with his partner at birthday celebrations and a photograph with his partner and friends (which were also before the delegate).
On 24 October 2024, the Tribunal invited the applicant to attend an in-person hearing, scheduled for 19 November 2024. On 28 October 2024, the applicant’s representative requested an adjournment as the applicant was waiting for an FOI application to be processed before seeking advice from his newly appointed representative. The Tribunal granted the adjournment request and rescheduled the hearing to 17 December 2024.
Pre-hearing submissions
On 10 December 2024, the applicant provided the Tribunal with the following submissions and evidence:
a.an outline of written submissions by the applicant’s representative
b.a statement of claims by the applicant signed 9 December 2024
c.20 photographs comprising: a photo of the applicant and his former fiancé, 2 photographs of the applicant in Malaysia as a younger person,8 photographs of the applicant in Australia dressed in women’s clothes and wearing makeup, 3 photographs demonstrating his relationship with an Australian man, screenshots of the applicant’s [Social media] profiles, 1 photograph of the applicant and friends at a gay bar and 2 photographs of the applicant’s mother’s grave, and
d.a letter from the applicant’s employer dated 25 November 2024 attesting to the applicant’s relationship with an Australian man.
On 12 December 2024, the Tribunal wrote to the applicant to advise that the hearing on 17 December 2024 was to be cancelled as the Tribunal intended to proceed to make a decision without holding a hearing, pursuant to s 106 of the ART Act.
FINDINGS AND REASONS
Country of reference
The applicant claims to be a national of Malaysia and was assessed by the Department on that basis. He travelled to Australia on an apparently genuine Malaysian passport. The departmental file contains a copy of the biodata page of the passport and his Malaysian national identity card. I accept the applicant is a Malaysian citizen and have assessed the applicant’s claims against Malaysia as the country of nationality and the receiving country.
Country information
I have had regard to a range of country information, including the most recent DFAT Report[1] which provides information in relation to sexual orientation and gender identity in Malaysia as well as the country information referred to in the applicant’s submissions. The information can be summarised as follows:
[1] DFAT, Country Information Report: Malaysia (24 October 2024) (DFAT Report)
a.Malaysia is a conservative Islamic nation and is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[2] While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences. These laws prohibit males cross-dressing and/or presenting as women.[3]
b.Malaysian laws do not prohibit discrimination on the basis of sexual orientation, gender identity or expression and does not recognize LGBTQI+ individuals, couples, or their families. There is also no provision in law for same sex marriage or civil partnership nor are there laws for same-sex couples to adopt children.[4]
c.Authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation or gender identity, also known as conversion therapy. These programs are primarily aimed at Muslims.[5]
d.Successive Malaysian Prime Ministers have made anti-LGBTQIA+ statements. Malaysia’s current Prime Minister Anwar Ibrahim, elected in November 2022, stated in January 2023 that LGBTIQA+ rights would never be recognized by his administration. In-country sources told DFAT that the environment for LGBTQIA+ people had not improved under the Anwar Government.[6]
e.A recent report by SUARAM, an independent human rights organisation in Malaysia, notes the human rights of LGBTQIA+ and gender-diverse people continued to regress in 2023, as evidenced by a spike in censorship of LGBTQIA+ expressions, and an increase in violence including hate speech, introduction of anti-LGBTQIA+ syariah laws and expansion of conversion practices. LGBTQIA+ and gender-diverse people have reported extortion, invasion of privacy, harassment and intimidation owing to the criminalisation and regulation of LGBTQIA+ and gender-diverse people in Malaysia. At least 2 murders of trans women were also documented.[7]
f.The Human Rights Watch report on events in Malaysia for 2023 reported that Malaysian officials have targeted ‘lesbian, gay, bisexual, and transgender (LGBT) people with hateful rhetoric and crackdowns.’ It further reported that ‘State-sponsored discrimination against LGBT people remains pervasive in Malaysia, including the funding of conversion practices.’[8]
g.The US Department of State report on human rights in Malaysia for 2023 records that during that year laws criminalising consensual same-sex conduct between adults were enforced, violence against LGBTIQA+ persons was common and the police at times perpetrated and condoned such violence.[9] It further reported that in August 2023, the Ministry of Home Affairs banned rainbow-colored Swatch watches for being “prejudicial to morality” by “normalizing the LGBTQI+ movement.” The ban came after Ministry of Home Affairs officials seized more than 100 watches bearing the rainbow flag from several Swatch stores in May.[10]
h.State level religious authorities, sometimes accompanied by the Royal Malaysia Police, have occasionally conducted raids on LGBTQIA+ events and venues. In October 2022, a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur was raided and at least 20 Muslims were arrested for cross-dressing. Malaysian NGO Justice for Sisters reported in 2022 that 24 people were being investigated for offences including: being males posing as women; ‘encouraging vice’; and ‘indecent acts’ in a public place. A gay nightclub in Kuala Lumpur and private premises have also been the targets of raids. ‘LGBTQI+ community members in other parts of the country reported similar incidents in 2022, indicating that local authorities have repeatedly attempted to disrupt LGBTQI+ events under the pretext of preventing Muslims from attending.[11] The UK Home Office assesses that Muslims are more likely to be arrested in raids and during disruption to LGBTI events than others in the community.[12]
i.DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence.[13]
j.While the UK Home Office in its July 2024 report on Sexual Orientation and Gender Identity in Malaysia notes Kuala Lumpur is considered more tolerant of LGBTI persons and in general it would be reasonable for a person to relocate there, it also recognises that: internal relocation will not be an option if it depends on the person concealing their sexual orientation; generally the state is able but is not willing to offer effective protection; state authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police; and it would be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities.[14]
[2] Ibid [3.126]
[3] Ibid [3.128]
[4] US Department of State, Country Reports on Human Rights Practices for 2023: Malaysia (22 April 2024) (USDOS Report) p 41; UK Home Office, Country Policy and Information Note Malaysia: Sexual Orientation and Gender Identity (July 2024) (UK Home Office Report) [7.4.1]
[5] DFAT Report [3.132]
[6] Ibid [3.129]
[7] Suaram (Suara Rakyat Malaysia), Malaysia Human Rights Report 2023 (27 March 2024), p 165-178
[8] Human Rights Watch, Malaysia: Events of 2023 (23 February 2023)
[9] USDOS report p 40
[10] Ibid 11
[11] DFAT report [3.130]; UK Home Office Report [8.4.9] and [8.4.10]
[12] UK Home Office Report [3.1.18]
[13] DFAT report [3.148]
[14] UK Home Office Report [4] and [5]
Findings of fact
Based on the documentary evidence provided by the applicant to the Department and the Tribunal, I find and accept that:
a.    The applicant was born in [Year] in Batu Pahat, Johor, Malaysia and is ethnically Malay and a Sunni Muslim. He continues to practice his faith in Australia. He considers that he has a relationship with God rather than the Islamic religion.
b.    His parents were Malaysian citizens. His father passed away in 2012. His mother remarried in 2015. She passed away in 2021. He has a sister and [brothers] who all still live in Malaysia who he is still in contact with.
c.     He completed primary school in [Year] at the age of 12 in Batu Pahat following which he helped care for his father and worked in a [workplace 1], then [workplace 2] and later a [workplace 3].
d.    He came to Australia in 2018 as a visitor and works in a [workplace 3] as [an occupation].
e.    The applicant identifies as a homosexual man. He has known he was attracted to males since he was a young boy and tried to deny his feelings as he was ashamed. At about 16 years of age, he started to accept his feelings but continued to conceal his sexuality and said he liked women. He did this as he knew it was not accepted and against Islam. Concealing his sexuality made him feel empty inside and he did not like lying to himself. He told a friend when he was 19 or 20 about his sexuality and they were surprised and did not want to be friends anymore. He came out to his mother since he has been in Australia. She initially did not accept him but after a year she came to terms with it. His younger brother is aware, but his older siblings do not know, about his sexuality and relationship with the Australian man.
f.   In Malaysia he had sexual relations with men, from about 18 or 19 years of age. The applicant was in a relationship with a woman between 2015 and 2018 and they were engaged. He was in this relationship due to the pressure of his family, and he wanted to become normal, but he did not have feelings for her. They travelled to Australia together and separated after a few months when they argued after he refused to have sex with her. About a year later she told him that she sort of knew he was gay and they remain friends. She is now married to someone else.
g.    In Malaysia his family, friends and the community did have suspicions that the applicant was homosexual due to his feminine appearance and the way he carries himself. He was mistreated due to his feminine nature, including bullying when he was at school and being beaten by villagers. This included physical, emotional, mental mistreatment. The most common form of harassment was being called names by family, friends and often strangers. They used Malay words like bapok and mak nyah. Bapok is fag or faggot. Mak Nyah is a drag queen, like a performer or someone who wears too much makeup. At [age] years of age, the applicant visited a restaurant with a female friend wearing his mother’s headscarf, his auntie’s clothes, and lipstick. Some of his father’s friends saw him at the restaurant and called his father. His parents told him that he should go away and leave them. He was not struck with a hockey stick and did not ever receive a death threat from his stepfather.[15]
h.    When he was older, he did not reveal himself to others and did not generally suffer mistreatment due to his sexuality. However, in around 2008 or 2009, he was the victim of ongoing sexual assault at the hostel he was living in at the hands of his supervisor of his workplace. He did not report this to the police or to anyone else. He moved back home and commuted from home to stop the abuse.
i.   Since arriving in Australia, the applicant met an Australian man [online]. They have been in a relationship since August 2018. The applicant is attracted to him as he is a good person, and he loves the applicant the way he is. They live together and are openly and publicly in a relationship.
j.   The applicant socialises with other LGBTQI+ friends in Australia, including attending a gay nightclub every Saturday night, [Group] events[16] and after parties. The applicant also attended the Mardi Gras in Sydney in 2020. He also uses a rainbow symbol on his backpack, is openly gay on his social media profiles and often has his fingernails painted and manicured, wears makeup, female accessories and/or androgynous or female clothing.
k.     The applicant fears if he were to return to Malaysia, he will be unable to live freely as a homosexual man with a same-sex partner. He fears if he were to return to Malaysia with his partner, a westerner, they will attract the attention of the community and both be at risk of being persecuted and discriminated. He also does not consider he will be able to continue with the same social media presence, display rainbow symbols, dress the way that he does or to attend LGBT events. He fears he will be assaulted, verbally abused, subject to discrimination in his employment and/or arrested due to his homosexuality.
[15] When the applicant applied for protection, he relied on others to help him prepare the application forms given his limited English. I accept that this is the reason that some incorrect details were included in his protection visa application and that is a reasonable explanation. I draw no adverse inference in relation to his correction of these details for the purposes of s 367A of the Act.
[16] The [Group] hosts these events, see: [URL] (accessed 12 December 2024).
Does the applicant satisfy the refugee criterion for protection?

I accept the applicant identifies as homosexual and has been in a long term same-sex relationship in Australia. I also accept that he is open about his relationship and sexuality in public. I am satisfied that if the applicant returned to Malaysia, that he would wish to engage in same-sex relationships. I am satisfied that he does not believe he will be able to live safely in Malaysia as a homosexual who wants to be able to openly be in a relationship with his partner, attend LGBTQI+ events and dress in female and/or androgenous clothes. I am satisfied that the applicant fears discrimination, harassment and punishment by society and the authorities in Malaysia if he were to do so.
Based on the country information outlined above, I accept the impact may be more pronounced for the applicant as a Malay Muslim homosexual man. Further, I accept the applicant is more vulnerable because he does not conform to gender norms and his sexuality is visible due to the way that he presents himself. Consistent with the applicant’s experiences since he was a young child in his community, people in Malaysia perceive or ‘suspect’ the applicant to be homosexual based on his feminine appearance and the way he carries himself. His homosexuality is therefore visible to others in Malaysia and cannot be readily concealed or hidden. While he is not at the same risk as a transgender man or woman, his sexuality is visible, and he is more vulnerable than other gay men might be. If the applicant’s partner were to return to Malaysia with him, I also accept they would be more likely to draw attention to themselves given his partner is an older western man.
I am satisfied, if the applicant were to return to Malaysia, with or without his partner, there is a real chance the applicant would face societal and official discrimination, harassment, social and familial exclusion and societal violence. I am satisfied this treatment includes significant physical harassment and would amount to serious harm for the purposes of s 5J(5) of the Act.
I also consider, based on the country information outlined above, the persecution feared involves systematic and discriminatory conduct.[17] I further find that the Malaysian State is not willing to offer effective protection measures to the applicant[18] in any part of Malaysia and therefore find that the applicant faces a real chance of persecution throughout all areas of Malaysia. [19]
[17] Migration Act 1958 (Cth), s 5J(4)(c).
[18] Migration Act 1958 (Cth), s 5J(2) and 5LA.
[19] Migration Act 1958 (Cth) s 5J(1)(c).
I find that Muslim homosexual men in Malaysia are a particular social group for the purpose of assessing the applicant’s fear of persecution.[20] The applicant is a member of that particular social group. I consider that the group of ‘Muslim homosexual men in Malaysia’ is identifiable by the characteristics of sexual identity and nationality and that the common characteristics or attributes are not a shared fear of persecution. I find that his membership of this social group is the essential and significant reason for the harm feared by him.[21]
[20] Migration Act 1958 (Cth) s 5J(1)(a).
[21] Migration Act 1958 (Cth), s 5J(4)(a).
I have accepted that the applicant is open about his same-sex relationship and his sexuality. I have also accepted that people readily perceive him to be homosexual due to his appearance and the way he carries himself. This may make it impossible for him to conceal or hide his identity or to change this perception to mitigate risks he may face. In any case, I accept that if the applicant was to conceal his sexual identity from his family or society, he would be doing so to avoid the threat of serious harm. The applicant cannot be expected to conceal or alter his sexual orientation, or to modify his behaviour to avoid persecution as it would require the applicant to modify a fundamental characteristic of his identity and conceal an innate or immutable characteristic and his true sexual orientation and/or gender identity.[22] I am satisfied that there is a real chance of persecution if the applicant were removed to Malaysia now and in the reasonably foreseeable future (given the deteriorating conditions and environment for Muslim homosexual men in Malaysia).
[22] Migration Act 1958 (Cth), s 5J(3)(c)(vi).
While I consider it possible that the applicant could move to Kuala Lumpur rather than return to Johor, and Kuala Lumpur is generally more accepting of gender and sexual diversity than other parts of Malaysia, I consider there to be a real chance of him being persecuted there given the country information and my findings at [28] above.
Accordingly, I find that the applicant has a well-founded fear of persecution for reason of his membership of a particular social group. The applicant therefore satisfies the meaning of ‘refugee’ set out in s 5H(1) of the Act and is a person in respect of whom Australia has protection obligations under s 36(2)(a).
I have found above that the applicant is a Malaysian national and it has no evidence that he has a right to enter any other country. For completeness, I find the exception for persons with third country protection rights in s 36(3) does not apply.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Act.
Date of hearing: N/A
Representative: Mr Daniel Moya
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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