2119786 (Refugee) - [2025] ARTA 1834

2119786 (REFUGEE) [2025] ARTA 1834 (21 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2119786
Tribunal:General Member S Dhillon
Date:21 August 2025

Place:Sydney
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.

Statement made on 21 August 2025 at 10:59am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – intellectual disability, and physical and mental health – all immediate family members now Australian citizens – previously cared for by grandmother, and elderly uncles cannot provide care – treatment, medications, medical reports and supporting statements – innate or immutable characteristics – country information – limited services, low standards of care and public stigma, discrimination and isolation – possibility of restraint or violence – no effective protection measures available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (3), (4)(a), 5L, 5LA, 36(2)(a), 65
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 for Home Affairs on 8 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Indonesia, applied for the visa on 13 July 2017.
BACKGROUND
Evidence before the Department
The applicant is a [Age]-year-old citizen of Indonesia. In the protection visa application, which was completed on her behalf by her mother, the applicant claimed she is from West Jakarta, has never worked in Indonesia, and relies on support from her family. In a submission accompanying the protection visa application, dated 17 July 2017, the applicant’s representative provided the following information:
a.    The applicant arrived in Australia in March 1996 and has never departed since that date.
b.    Her entire family are Australian citizens and reside in Australia.
c.     The applicant has ‘an intellectual disability of a permanent nature’.
d.    There is no infrastructure for the applicant in Indonesia.
e.    The applicant requires support and resides with her mother and brother in Australia.
f.   The applicant cannot look after herself independently. She requires constant supervision, and her movements must be monitored in case she leaves the family home. Her mother is her primary caregiver.
g.    The applicant has a significant mental health issue, there is no family support in Indonesia, and the applicant requires significant daily care which, if withdrawn, would lead to a rapid decline in health constituting degradation.
Before the Department, the applicant also submitted:
-Letter from applicant’s General Practitioner, 29 February 2016, confirming she suffers from a ‘developmental disorder’ and ‘in general needs some supervision’.
-Citizenship certificates of immediate family members.
On 18 June 2021, the delegate invited the applicant to a hearing scheduled on 6 July 2021. The applicant’s representative responded with the following: ‘Please note that given the profoundly serious medical condition of the visa Applicant based on her severe intellectual disability (as particularised in submission 4/7/2017 and psychologist reports in support) my client will be unable to participate in an interview.’ He also attached:
-Further submission, 1 July 2021.
-Emergency Department Discharge summary, 14 March 2021.
-Research articles relating to the impact of COVID-19 on mental health policies in Indonesia.
-Media article relating to shackling of individuals globally due to mental health issues.
On 21 August 2021, the delegate sent a letter to the applicant inviting them to provide further information, including a current medical examination report from a suitably qualified medical professional i.e. a psychiatrist regarding the applicant’s condition, as well as explanations regarding the current care arrangements for the applicant.
On 12 October 2021, the applicant’s representative submitted:
-Medical report, 5 April 2021, [Ms A], General Practitioner.
-Psychologist Report, 23 September 2021, [Ms B], Registered Psychologist.
The delegate accepted the applicant has a mild intellectual disability, however, was not satisfied the applicant would be targeted or persecuted for one or more of the reasons mentioned in s5J(1)(a) of the Act upon returning to Indonesia. In relation to complementary protection, the delegate considered that despite a level of discrimination, there would be adequate resources for the applicant’s conditions in Indonesia. The delegate was also not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Indonesia, there was a real risk the applicant would suffer significant harm as outlined in s36(2)(aa) of the Act.
Evidence before the Tribunal
The application for review was lodged on 22 December 2021.
The applicant was represented in relation to the review.
On 25 July 2025, the Tribunal issued an Order directing the applicant to provide updated medical reports obtained from a qualified healthcare professional in relation to the applicant’s current diagnoses and health condition/s, an updated report from a clinical psychologist or psychiatrist relating to the applicant’s current mental health condition/s and intellectual disability, updated information in relation to the applicant’s current circumstances, copies of country information to be relied on in support of the applicant’s claims, and any additional supporting evidence.
In response, the applicant’s representative provided:
-Psychologist report prepared by [Ms B], Registered Psychologist, 30 July 2025.
-Statutory declaration of [Ms C], 6 August 2025.
-Statutory declaration of [Mr D], 8 August 2025.
-Letter from [Dr E], General Practitioner, 7 August 2025.
-Letter from [Dr A], General Practitioner, 8 Augst 2025.
The applicant’s representative provided further submissions which reiterated information previously provided, including that the applicant would be unable to maintain her medication regime if returned to Indonesia, that there are limited services for the applicant in Indonesia, her remaining elderly relatives cannot provide care, and there is a high probability she could face being shackled for long periods of time.
The applicant appeared before the Tribunal on 20 August 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms C] and [Mr D]. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.
Evidence at hearing
Throughout these proceedings, the Tribunal has had regard to the ART Guidelines on Vulnerable Applicants[1] and UNHCR’s ‘Guidance note on the psychologically vulnerable applicant in the protection visa assessment process’.[2] Given the Tribunal’s knowledge of the applicant’s health conditions and intellectual ability, the Tribunal considered it appropriate to take evidence from the applicant’s close family, [Mr D] and [Ms C] and invited them to comment on specific matters on her behalf.
[1] AAT Migration and Refugee Division, Guidelines on Vulnerable Persons (November 2018).
[2] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process (November 2017).
The Tribunal first took evidence from [Mr D]. [Mr D] gave evidence that the applicant lives with him and his mother is the primary caregiver for the applicant, while [Mr D] supports the applicant financially entirely. [Mr D] confirmed there are no formal guardianship orders in place for the applicant, however, himself, [Ms C] and their mother jointly make legal decisions on the applicant’s behalf. In relation to the applicant’s current medical treatment, [Mr D] gave evidence that the applicant takes a number of medications for her various health conditions, and she sees a GP every 3 months for blood tests and a general check-up. When asked if the applicant accessed regular psychological support, [Mr D] confirmed she did not see her psychologist regularly, but they see her when the applicant’s condition is worsening, for consultations approximately every two years.
[Mr D] confirmed the applicant has never held paid employment in either Indonesia or Australia and has relied on her family to support her. When asked how the applicant would support herself in Indonesia, [Mr D] gave evidence that he was worried because due to the applicant’s conditions no one would employ her and there was no work she could do, as she is unable to think or communicate, interact with others, or follow basic instructions. [Mr D] stated the applicant would not be able to survive in Indonesia and she needs someone to guide her and be with her so she can survive. He said that at the moment her condition has been slightly better and she has been able to go for walks nearby to the park, otherwise generally she stays in doors all day.
In relation to his concerns of future harm for the applicant, [Mr D] gave evidence that people would look down on her in Indonesia, she would not be respected due to her condition, people will make fun of her, and people will not see her as a human being because they will be thinking of her as useless or hopeless, people will ignore her. He also expressed concern that the applicant will receive abuse in the form of people making fun of her or physical abuse, and also that this could exacerbate her depression.
[Mr D] confirmed that they have limited relatives remaining in Indonesia, including two of his mother’s brothers who are in their late seventies/early eighties and face their own health problems. He said that there are no relatives in Indonesia who would be able to provide the support required by his sister. [Mr D] gave evidence that the applicant was heavily medicated for the purposes of attending the Tribunal hearing and that is why she appeared to be calm, but normally without those specific medications she has tendencies to self-harm frequently and is prone to outbursts as she is unable to express her feelings.
The Tribunal then took evidence from [Ms C]. [Ms C] gave evidence that it is tough for people like her sister in Indonesia, they are locked away, and this will exacerbate the applicant’s depression and medical conditions. She reiterated that there are no family members that could look after her sister in Indonesia, as in Australia the entire family is providing support. [Ms C] gave evidence that the applicant’s condition has worsened over time and that she is visibly mentally ill. [Ms C] gave examples of the applicant banging her head or hitting her face when she is frustrates, and said this occurs many times every day.
Considering the detailed written and oral evidence provided by [Mr D] and [Ms C], the Tribunal did not consider it necessary to take evidence from the applicant’s mother.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
Receiving country
The applicant claims to be a citizen of Indonesia and no other country. The Tribunal received a copy of the applicant’s passport at hearing which had been issued by the authorities of Indonesia and which records her nationality as Indonesian. In the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Indonesia and that Indonesia is the receiving country for the purpose of assessing her claims.
Country information
The Tribunal considered the country information provided as well as the current DFAT Report,[3] which has the following relevant country information in relation to Indonesia:
People with disabilities
3.114 People living with mental illness, cognitive disability, or those who are neurodiverse do not receive the same standard of care as they generally would in Australia. Stigma against people with autism, for example, is high, and the concept might be dismissed as fabricated or a result of poor parenting. Ostracism from families, schools or communities is possible. There is a lack of professionals with expertise in the area, but some facilities for children exist in big cities.
3.115 The level of risk for people with disabilities depends on the nature of the disability and an individual’s needs, and it is impossible to give an overall assessment. DFAT is not aware of violence against people with disabilities, in general – but see section on mental health for information on pasung, a form of shackling of some people with mental health conditions that is used against some people with disabilities and can involve violence.
[3] Department of Foreign Affairs and Trade Country Information Report – Indonesia, 24 July 2023.
Mental health
2.19 Mental health, including depression and anxiety, is poorly understood, and not widely accepted by most health providers and the general public. Services are limited or unavailable in most places, and access is affected by stigma, both from society and individual social and family groups. Admitting that a member of one’s family is living with mental illness can bring shame on the whole family and so are often not admitted, much less treated.
2.20 Pasung, or ‘shackling’, is reported. A family member living with mental illness may be hidden away, or literally or figuratively ‘shackled’ to protect family honour. Shackling may occur at a family home or at an institution, such as a healthcare or religious facility. Shackling may also occur because of a lack of other treatment options, or because people with disability are seen as an economic burden. It may be perceived to be safer to lock a person with a mental illness away, for example, when no realistic treatment options are available and economic capacity to care for family members is limited. DFAT does not have enough data to be able to comment on the prevalence of shackling.
2.21 Some dedicated mental health facilities (psychiatric hospitals or wards) exist, more commonly in urban areas, and care is usually covered under the JKN. Mental health workforce and medical supplies can be limited, particularly in rural areas. An October 2021 article in the Jakarta Post notes that there are just 1,053 psychologists in Indonesia, a country with a population that exceeds 277 million.
The Tribunal has also had reference to country information which indicates ‘the capacity of Indonesia’s 48 mental hospitals and 269 psychiatric wards in general hospitals is much lower than the demand. Indonesia faces tremendous challenges in the field of mental health. There is a severe shortage of mental health personnel as well as treatment and care facilities. The stigma against mental illness and psychosocial disabilities is strong.[4]
[4] The future of mental health care in Indonesia, Inside Indonesia, 24 July 2020.
The Tribunal notes it has specifically been claimed the applicant will be subject to the practise of ‘Pasung’ which involves the binding or shackling of patients, and that it is prominent particularly in the context of mental health facilities and psychiatric institutions. In this respect, the Tribunal has had regard to the following country information:[5]
Many people with mental illnesses remain isolated, chained, and inside cages, called Pasung in Indonesia. Despite numerous policies introduced to eradicate Pasung, Indonesia has made slow progress in decreasing this practice.
Seclusion and restraint are also widespread in community settings in Indonesia where it is known as Pasung, and it is frequently used, prompting significant human rights concerns. Pasung is a ‘long-standing custom’ in West Java and Indonesia, more broadly. Pasung has traditionally involved a person who is agitated or considered at high risk of doing harm, either to themself or others, being shackled using a wooden log.
In Indonesia, the majority of people with mental health issues are hidden by their families and not exposed to public view. This is because mental illness is highly stigmatised and viewed as a shameful affliction in Indonesian culture and society.
[5] Hidayat, M.T., Oster, C., Muir-Cochrane, E. et al. Indonesia free from pasung: a policy analysis. International Journal of Mental Health Systtems, 17, 12 (2023).

The same report also indicates that the Indonesian government has attempted to take measures to address Pasung, such as through the Free Pasung Program, and that the Indonesian Centre for Health Research claims the number of people with serious mental illness who were subjected to Pasung decreased somewhat from 14.3 to 14% prior to 2023. However, researchers have expressed doubts about the effectiveness of these programs, given the statistics do not account for the increases in Indonesia’s population and also the lack of evidence to support this.[6]
[6] Ibid.
Findings
Based on the medical evidence submitted to date, the Tribunal accepts the applicant is affected by the following medical conditions: Type 2 diabetes, moderate intellectual disability, epilepsy, chronic depression, and that she experiences frequent sleep delays and disturbance.
The Tribunal accepts the applicant currently takes a number of medications to assist in managing these conditions, as set out in the medical evidence, specifically a letter from her treating GP.
In respect of the applicant’s current circumstances, the Tribunal accepts the applicant is wholly reliant on her close family for care and emotional support, that her mother and sister are her primary caregivers, and that [Mr D] provides for the applicant financially. The Tribunal accepts the applicant has limited capacity to function independently and requires constant supervision and assistance. The Tribunal accepts there was an incident in 2021 which involved the applicant wandering from her family home and which resulted in her hospitalisation after police intervention, and that over time her health conditions have overall worsened. The Tribunal accepts the applicant is prone to frequent outbursts and displays self-harming behaviour on a daily basis.
In making these findings the Tribunal has also had regard to the report prepared by [Ms B], a registered psychologist, which relevantly states in relation to the applicant, ‘clinical observation confirmed the diagnosis of Moderate level of Intellectual Disability, consistent with difficulties she faces in most areas including communication, daily living and socialisation.’ [Ms B] also observed that ‘[The applicant] receives support from her mother for many aspects of daily living, including but not limited to, meal preparation, domestic tasks, community access and financial management’, ‘she needs support and assistance to access the community, including to ensure road safety and risks of stranger danger’ and ‘she still displays several behaviours of concern in the form of excessive crying and emotional outbursts when she is frustrated or upset. She also displays self-harm behaviours in the form of hitting her face and attempting to poke into her eye, complaining about pain or simply screaming about gouging her eye out. During such escalations, [the applicant] needs her family’s support to redirect her and to calm her down.’
Based on the evidence of the applicant’s family members and together with the medical evidence set out above, as well as the Tribunal’s own observations throughout the hearing, the Tribunal accepts that there is a real chance the applicant would be perceived by the community as being intellectually disabled and as a person with cognitive impairment and mental health issues if she returned to Indonesia.
The applicant did not claim to have experienced past harm in Indonesia on the basis of her intellectual disability and mental health conditions, and the Tribunal accepts this to be the case. However, the Tribunal also notes the applicant was in the care of her family members, and late grandmother, prior to arriving in Australia in 1995.
The Tribunal accepts the applicant would face stigma, ostracism and isolation from the general society in Indonesia, noting the country information indicates intellectual disabilities and mental health issues are still poorly understood by the community at large and individuals face a high level of stigma and discrimination. The Tribunal accepts there is a real chance this would result in the applicant not being treated as a respected member of society, ostracised, and subject to verbal harassment, including being mocked or humiliated.
Although the Tribunal accepts the applicant’s mother’s two brothers reside in Indonesia, given the evidence that they are both elderly and experiencing their own health issues and cannot provide care for the applicant, the Tribunal is not able to be satisfied that there will be supportive family or friends willing and able to provide the assistance, supervision, care and structure that the applicant would require in Indonesia.
The Tribunal considers that upon return to Indonesia the applicant would be without any accommodation or employment. It accepts that due to the stigma associated with intellectual disability and mental health conditions, it is highly unlikely that the applicant will be able to obtain appropriate housing. The Tribunal further accepts the applicant would not be able to obtain, and remain in, any kind of employment.
The Tribunal has considered the country information before it and is satisfied it establishes that there is a real chance that the applicant’s intellectual disability and mental health issues will lead to destitution and homelessness, or that she would be placed in a mental health institution. The Tribunal accepts there is persistent ill treatment of patients in mental institutions in Indonesia, including the continued practise of Pasung.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that the applicant is a member of a particular social group, being a person with an intellectual disability and mental health conditions, and that this particular social group exists in Indonesia. She has an innate or immutable characteristic shared by members of the group which is ‘not the fear of persecution’ as required by s 5L.
The Tribunal accepts that the applicant faces a real chance of serious harm in the form of stigma, discrimination and isolation from Indonesian society. The Tribunal has considered the applicant’s particular vulnerabilities and mental health conditions and accepts that any stigma, discrimination, including verbal harassment, or isolation the applicant would experience would amount to serious harm as contemplated by s 5J(4). The Tribunal also accepts there is a real chance the applicant would be deprived of the capacity to subsist, in the form of being prevented from accessing appropriate accommodation, healthcare and basic services, due to her visible intellectual disability/mental health conditions. Finally, the Tribunal has accepted there is a real chance the applicant would be placed in a mental health institution in the foreseeable future, and subject to ill-treatment, including the practice of Pasung, which would constitute significant physical ill-treatment and harassment, amounting to serious harm in accordance with s 5J(4).
The Tribunal considers that the essential and significant reason for the serious harm feared by the applicant is her membership of a particular social group, being persons with an intellectual disability and mental health conditions, as required by s 5J(4)(a). The Tribunal accepts that the harm faced by the applicant would occur intentionally and selectively, and would involve systematic and discriminatory conduct.
As required by s 5J(2) and s 5LA of the Act, the Tribunal has considered whether effective protection measures are available to the applicant. The Tribunal is not satisfied on the evidence that the applicant would have access to effective protection from the Indonesian authorities, or any other organisation, given the harm feared by the applicant would occur in institutionalised settings and is in part due to the government’s failure to provide adequate facilities and treatment for persons affected by disabilities or mental health conditions. The Tribunal further notes that the nature of the harm feared by the applicant includes discrimination, isolation, stigma and ostracism from society, which stems from accepted cultural attitudes, as set out in the country information above. In these circumstances, the Tribunal is not satisfied there are effective protection measures available to the applicant from the Indonesian authorities, or any other party or organisation.
The applicant is not able to take reasonable steps to modify her behaviour so as to avoid a real chance of persecution, as this would require her to conceal an innate or immutable characteristics and would be contrary to the provisions set out under s 5J(3).
It follows from the findings above that the Tribunal accepts that the applicant meets both the subjective requirement in s 5J(1)(a) and the objective requirement in s 5J(1)(b), that she fears persecution for the reason of her membership of a particular social group, and that there is a real chance that if returned to Indonesia she would face persecution due to her membership of that group. The Tribunal accepts that the real chance of persecution relates to all areas of Indonesia as required by s 5J(1)(c).
There is no indication before the Tribunal that the applicant has a right to enter and reside in any third country and the Tribunal accordingly finds she has no such right: s 36(3).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 Migration Act.
Date of hearing(s):    20 August 2025
Representative:        Mr Adrian Joel
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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