2117002 (Refugee) - [2025] ARTA 1828

2117002 (REFUGEE) [2025] ARTA 1828 (10 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2117002
Tribunal:Rachelle Hampson
Date:10 July 2025

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

Statement made on 10 July 2025 at 11:26am
CATCHWORDS
REFUGEE – protection visa – Vietnam – fear of harm from man who sought marriage and entrance to Australia as dependant – threats to applicant and family – delay in applying for protection – applied after student visa expired and period as unlawful non-citizen – vague claims and evidence – consent to decision without hearing – responsibility to specify claims and provide evidence – passage of time and no evidence of further contact – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 384(1)
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
2010120 (Refugee) [2025] ARTA 550
2203419 (Refugee) [2025] ARTA 1588
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 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vietnam, applied for the visa on 30 December 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant applied to the Tribunal on 18 November 2021 for a review of this decision.
On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was sent a pre-hearing information form on 31 October 2024. This form includes questions about whether the applicant requires an interpreter if there were to be a hearing, and if she wished for this to be a video hearing, along with a space to add details of her claims for protection. The applicant did not respond to this form.
On 26 May 2025 the applicant was invited to attend a hearing before the Tribunal set down for 16 July 2025.
On 3 July 2025 the applicant responded to this hearing invitation form stating by crossing a box that she would not participate in the hearing and to request the Tribunal to make a decision on the papers without holding a hearing. She also included change of address details.
The Tribunal must now consider the following points:
a)Should the Tribunal proceed to decide the matter without holding a hearing?
b)Does the applicant have a well-founded fear of persecution in relation to her home country of Vietnam and meet the refugee protection provisions of the Act?
c)Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
a)Should the Tribunal proceed to decide the matter without holding a hearing?
The Tribunal for the following reasons has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) [1].
Did the applicant consent to proceeding without a hearing?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. In ss 106(3) (a) and (b) it is set out that the Tribunal may make a decision without holding a hearing in circumstances were the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.
Section 384(1) of the Act stipulates 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. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship.
In this case, the applicant and the non-participating party (the Minister) are the only parties to the proceedings; and the applicant has requested a decision to be made without a hearing as she has ticked the response, ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed and signed ‘response to hearing notice’ form dated 3 July 2025. The Tribunal finds the applicant’s response is a clear and unambiguous indication that she does not wish to attend a hearing and wishes the Tribunal to proceed to make a decision on the material before it. The Tribunal finds that the applicant has requested, consents to, the Tribunal making its decision without holding a hearing. The Tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the applicant?
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)[2], when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal. [3]
[2] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
[3] 2203419 (Refugee) [2025] ART (13 June 2025).
The Tribunal notes the following chronology of interactions between the applicant and the Department, and the applicant and the Tribunal where she has had opportunities to present her case:
-The applicant lodged her protection visa application with the department on 30 December 2020 along with her passport copy, supporting letter from her mother and a statement of claim from herself, and Vietnamese household registration information.
-The applicant was invited to and attended a biometrics appointment on 3 February 2021.
-The applicant applied for a bridging visa with conditions to work on 17 September 2021.
-She applied to the Tribunal for review of the decision on 18 November 2021.
-The applicant was sent a prehearing information form requesting she provide pertinent information on 31 October 2024. She did not reply to this request.
-The applicant was sent a hearing invitation on 26 June 2025 to which she replied on 3 July 2025 requesting the Tribunal make a decision without holding a hearing.
-The Tribunal acknowledged and granted this request on 4 July 2025.
-The applicant filed further submissions on 7 July 2025 including a photo of her Australian drivers licence, household register translated (the same as previously supplied) and a letter of support from her mother with an updated date but in the main the same content as previously supplied and a statement from herself with an updated date but in the main the same content as previously supplied to the department.
The Tribunal is satisfied that the applicant has had an opportunity to present her case and provide all the information, evidence and submissions that she considers important and relevant in support of her application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.
BACKGROUND
Evidence before the Department
Protection visa application
According to her protection visa application dated 30 December 2020, the applicant claims to be a [Age] year old national of Vietnam. She was born in Bac Lieu, Vietnam. She claims her ethnicity is Chinese Vietnamese and his religion is Buddhism.
She states she is single and never married and has no children. Her parents reside in Bac Lieu, Vietnam. She has [sisters] residing in Bac Lieu, Vietnam.
The applicant first arrived in Australia [in] August 2016 on a student visa and departed again [in] August 2017. She then returned to Australia again [in] September 2017 on the same student visa which ceased on 15 March 2020. She then applied for a protection visa on 30 December 2020.
Supporting documents
The applicant provided the department with the following documents along with her protection visa application:
a.A copy of her Vietnamese passport
b.A copy of her household registration book showing her parents and [sisters] and herself as members of the household.
c.A statement of support by her mother dated 25 December 2020 with pertinent information extracted as follows[4]:
‘At present, [the applicant] is living in Australia and want to seek for protection visa. When she returned home in 2017, she fly back in short time and she did not return home until this date. We did not know that she was suffering from threat problem in hometown during her visit in 2017. We try to communicate with her and call her home during college holiday time, but after that problem she could not return to Vietnam. When we knew the problem recently from her then we asked her to seek for protection in Australia until we can find out the entire threat problem. We are trying to find individual and the threat that our daughter is facing, so we need more time to identify threat problem in hometown. As the situation is out of our control and we could not do anything until now; we will seek authority help once we feel safe to do so’.
d.A statement written by the applicant dated 28 December 2020 with pertinent information extracted as follows[5]:
‘I am writing this to apply for protection visa to seek for my protection in Australia. As I am living in Australia and I wish to apply for protection visa based on my case. I arrived in Australia for the purpose of higher studies to study in English and major courses. Once I returned back home in 2017, I had threat problem from migrant from nearby another poor province. It was serious and immediately I fly back to Australia to continue my study. After that I try to solve the problem myself, until now I am unsafe to return home and this time I have informed my parents for help. Then my parents asked me to apply for protection in Australia first and then they will find out in hometown. So, for my safety and protection, I need to apply for protection visa in Australia. I have completed my application and submitted all required documents via IMMI Account. If required, I will submit further documents once I receive them from family’.
e.A character declaration form.
Interview
[4] Letter of support from applicant’s mother dated 25 December 2020.
[5] Statement by the applicant dated 28 December 2020.
The applicant was not offered an interview with the delegate.
Summary of the delegate’s decision
The delegates reasons and findings are extracted as follows[6]
‘The applicant has claimed that she will be physically harmed by a man who has threatened her for refusing to help him enter Australia by marrying him upon return to Vietnam. The applicant has provided no further information relating to any other fear of harm.
In considering the applicant’s claims I am not satisfied that they have claimed they will be harmed because of their religion, race, political opinion, nationality or membership of a particular social group (PSG).
There is no information before me to suggest the applicant will be denied protection or assistance from the Vietnamese authorities should they require it, for one or more of the reasons mentioned in paragraph 5J(1)(a) of the Act.
[6] The delegates decision record, p 2, dated 29 October 2021.
The delegate therefore concluded they were not satisfied the applicant was a refugee as defined by s 5H of the Act and as such not a person to whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate then considered if the applicant met the criteria for complementary protection as defined by s 36(2)(aa) of the Act and determined they were not satisfied the applicant was a person in respect of whom Australia had protection obligations as provided for by s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant provided the Tribunal with the following submissions on 7 July 2025 after requesting a decision be made without hearing which was accepted and acknowledged to her by the Tribunal:
-Household registration document translated.
-A copy of the applicant’s Vietnamese passport.
-A statement of support from the applicant’s mother dated 1 July 2025 and is extracted as follows[7]:
When she returned to Vietnam in 2017 to meet us and visit relatives in her study vacation time, an unexpected incident took place and we could not solve the matter on our own then she went back to Australia for her safety and stay in Australia. An unknown man from another province in Vietnam tried to do forced marriage with my daughter ([the applicant]), with his intention to travel to Australia in her dependent visa. First our daughter refused his request and refused to do marriage paperwork then he threatened her and whole family. We could not seek for local authority help that time and we sent our daughter to Australia for her safety. If she returns to Vietnam then she may get trouble with that person and unsafe to live in our home and home town. So, we sent her back to Australia and advised her to seek for protection visa until we able to solve the matter in Vietnam. This situation is out of our control. To save our daughter and whole family we are trying our best to solve the matter safely and it will take some more time. Please kindly provide her safe protection until we able to solve the matter with the help of local authority.
-A statement from the applicant dated 30 June 2025 and is extracted as follows[8]:
First, in August 2016 I came to Australia in student visa to study for higher education purpose. During my vacation [in] August 2017, I travel to Vietnam to meet my family and relatives. During my visit an unknown man from another province tried to do forced marriage with me to travel to Australia in my dependent visa. When I refused his forced marriage request, he was angry and threatened me and my family to harm with serious violence. When situation got worse, and because of his threaten I was scared to seek for help from local authority that time. After discussion with my family, I safely travel to airport and fly to Australia in September 2017 for my safety. So I could not return to Vietnam for some time, and he threatened to my family not to inform any authority, and there is no other place in my home country to relocate to safe place for myself. My family trying to resolve this serious matter in my home town. They have asked me to seek for protection in Australia until they solve the matter with the help of local authority in Vietnam. The situation is out of my control and I need to seek for protection in Australia.
My parents are still trying their best to solve the problem without any harm to our family, and this is taking time to solve this issue. I am still waiting for my parents whether they will be able to finalize this matter in future. My parents need more time to solve this matter in my home town, so in this case I need additional time to request for supporting documents from my parents. My parents are communicating with authority in home town and as soon as they get supporting information I will update with the ART department. I have updated my new address and attached in ART portal as well.
Until they solve the matter in my home town, I need to seek for protection in Australia for my safety. Please kindly consider this visa application for my protection in Australia.
-Copies of the front and back of her Australian drivers licence.
CONSIDERATION OF CLAIMS AND EVIDENCE
[7] A letter of support from the applicant’s mother, dated 1 July 2025.
[8] A statement from the applicant, dated 30 June 2025.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa and is therefore someone to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of her Vietnamese passport to the Department. Given this and the fact the delegate did not indicate any issues with his identity claim or nationality the Tribunal accepts she is a Vietnamese national and Vietnam is her receiving country for the purposes of assessing her protection claim.
(ii) Does the applicant satisfy the refugee criterion for protection?
To determine if the applicant satisfies the refugee criterion for protection the Tribunal must consider if there is a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future. To be a refugee, the applicant must have a well-founded fear of persecution in her home country of Vietnam. This means that the Tribunal must be satisfied there is a real chance the applicant will face serious harm if she returns to Vietnam. Not all harm will be serious harm for the purposes of a refugee definition in s . The harm must be directed at her for one or more of 5 reasons. Those reasons are – her race, religion, nationality, membership of a particular social group or political opinion.
In considering this point the Tribunal has had regard for s 5AAA which asserts the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicants claims, or to establish or assist in establishing the claims. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant[9].
[9] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered firstly the claims for protection the applicant made in her protection visa application and her and her mother’s statements of 2020 and then the further information she has supplied to the Tribunal in 2025. The statements submitted to the Tribunal in 2025 are, in the main, the same as those submitted in 2020 to the Department and contain limited information with regard the applicant’s claims of a man who has threatened her into a forced marriage to gain a visa to Australia. She has not elaborated in the 2025 statement on who this man is rather saying he is ‘an unknown man’ and this event occurred in 2017 when she visited her family in Vietnam whilst on a student visa to Australia. She has also stated her family were threatened by this man. The Tribunal notes the applicant’s family still reside in the same location as they did at the time of the applicant’s 2017 claims of threat by an unknown man. She also states she is waiting for her parents to finalise this matter with local authorities. The Tribunal notes the passage of time having passed now is 8 years. Even if the Tribunal were to accept the claim that in 2017 an ‘unknown man’ threatened to harm the applicant and her family if she did not marry him for the purposes of a visa to Australia, which it does not, the Tribunal has considered the passage of time of now 8 years and does not accept the applicant faces a real chance of harm if she were to return to her home area of Vietnam in the reasonably foreseeable future. There is no evidence before the Tribunal that there have been any further contact from this man in the ensuing years to either the applicant or her family who still reside in the same location as they did in 2017.
The Tribunal has also considered the statements of the applicant’s mother lodged in 2020 and in July 2025. Both statements are very similar in their entirety and provide no specific detail about the threats of harm, who the threats came from or what had occurred in the ensuing years between 2017 and 2025. The Tribunal also notes the applicant’s mother has also stated she and her family were threatened by this ‘unknown man’ and felt in danger. This family the Tribunal notes still resides in the same location as at the time of the threats from this person.
Having considered the claims in the applicant’s 2020 application and the additional information she has submitted in 2025 the Tribunal is not satisfied the applicant faces a real chance of harm if she were returned to the home area of Vietnam in the reasonably foreseeable future. The Tribunal bases this decision on the lack of information the applicant has provided about the ‘unknown man’ she claims attempted to force her to marry him to obtain a visa to Australia, whether this occurred on more than one occasion and if there has been any further contact from this ‘unknown man’ to she or her family in the ensuing 8 years since this event.
The Tribunal, therefore, does not accept the applicants claims in their entirety that there has been harm to her and her family in the past and that there is a real chance of harm from an ‘unknown man’ who wanted her to sign documents for a marriage to obtain a visa to Australia if she were to return to Vietnam in the reasonably foreseeable future.
The Tribunal also notes the harm the applicant states she fears is not harm that is directed at her for one or more of the 5 reasons in s 5J(1)(a) namely her race, religion, nationality or membership of a particular social group or political opinion.
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).
Having found there is no real chance of harm of any kind, there is no real risk, as the real chance and real risk tests are the same, and the Tribunal has adopted the same findings as those for the real chance test as outlined in paragraphs 32 to 38 above.
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).
CONCLUDING PARAGRAPHS
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).
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).
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.
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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