2119837 (Refugee)
[2025] ARTA 1671
•23 June 2025
2119837 (Refugee) [2025] ARTA 1671 (23 June 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2119837
Tribunal:General Member N Schmitz
Date:23 June 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 23 June 2025 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Vietnam – extramarital affair – fears harm from married woman’s husband – inconsistent claims – credibility concerns – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Kavun v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145
Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347
Subramaniam v MIMA [1998] FCA 305
Zhang v RRT & Anor [1997] FCA 423Any 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 22 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Vietnam. He applied for the visa on 6 April 2021. The delegate refused to grant the visa on the basis that he did not meet the protection criteria.
The applicant appeared before the Tribunal on 21 May 2025 via Microsoft Teams video technology to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. The hearing was extended and a second interpreter was arranged to allow the applicant to complete his evidence. The Tribunal is satisfied that the applicant was accorded with procedural fairness and given a meaningful opportunity to present his case to the Tribunal.
The applicant was represented in relation to the review. The representative did not attend the hearing.
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.
The applicant must satisfy the statutory requirements
The Tribunal is not required to make the applicant’s case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; and Abebe v Commonwealth of Australia (1999) 197 CLR 510.
The Tribunal is not required to uncritically accept all or any of the applicant’s claims; Randhawa v MILGEA (1994) 52 FCR 437. Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out: Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347.
The mere fact that an applicant claims a fear of ‘serious harm’ for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed; Randhawa v MILGEA (1994) 52 FCR 437. Similarly, an applicant who claims to face a ‘real risk’ of ‘significant harm’ does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements have been made out; MIEA v Guo (1997) 191 CLR 559; and Prasad v MIEA (1985) 6 FCR 155.
Country of Nationality
The applicant travelled to Australia using an apparently genuine Vietnamese passport, a copy of which is contained in the Department file. He has at all times stated that he is a citizen of Vietnam and has been assessed on that basis by the Department. The Tribunal finds he is a Vietnamese citizen and has assessed his claims against Vietnam as the country of nationality and the receiving country.
Evidence before this review
The Tribunal has taken into consideration evidence adduced to the Department and the Tribunal, including oral evidence given by the applicant at hearing, a letter from the applicant submitted post-hearing and independent country information about Vietnam.
The applicant’s personal background
The applicant is [an age]-year old male from Hanoi, Vietnam. At hearing he gave evidence that he is an only child and grew up in a family comprising of his parents. He has no other significant family. The applicant maintains frequent phone contact with his parents who continue to reside in Hanoi. The applicant completed his secondary school education. He has no employment record in Vietnam. The applicant has never been married or in a de facto relationship.
The applicant told the Tribunal that he first came to Australia to study. He first arrived in Australia [in] January 2009 on a Student visa. He was granted four further visas [the last of which] was valid until September 2020.
According to his visa application, he has completed a [variety of related courses]. During his time in Australia he has worked in [Industry 1].
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
In a statutory declaration accompanying the visa application, the applicant relevantly states:
…
5. THAT: In late 2017 I returned to Vietnam to visit my parents and friends. During my stay in Hanoi, I met and spent time with a beautiful girl who was my old friend. Subsequently our friendship developed into love and we spent one night together at an inn nearby my parents' home in Hanoi.
6. THAT: The following day of that night I tried hard to contact her but failed as she disappeared. A couple of days later, through a close friend, I was shocked to learn that she was a married woman with a child of [age]. But she had never told me about her marital status. My close friend also let me know her husband was a jealous and fierce man who will harm any ones [sic] who are suspected to be in adulterous relationship with his wife.
7. THAT: Afterwards she secretly contacted and informed me that her husband had already known our relationship and the inn where we had spent the night together. She also said she was tortured by him but she did not discover my address and mobile number. She told me he was looking for me to harm. She urged me to get out of Vietnam as soon as possible.
8. THAT: I was more than shocked and fearful. I changed my ticket and flew to Australia a few days earlier than my schedule.
9. THAT: Luckily when he found my parents' home I had left for Australia. My parents had to beg for his mercy as he wanted them to order me to return home. He threated [sic] that he would kill me if he met me in Vietnam.
10. THAT: I have been told that he was still coming to my parents' home to look for me. He also asked his friends in Australia to find my address in order to hire the gangs to harm me.
11.THAT: I am in real fear of return to my home country because the authorities in Vietnam will not protect me until the incident has happened. Further, in Vietnam I will not be able to relocate to another place as he will hire the gangs to locate me.
12. THAT: I desperately need your protection and thank you for your mercy and generosity.
The applicant declared that he did not experience harm in Vietnam and did not try to move to another part of the country.
Tribunal Evidence
The applicant gave evidence that [in] November 2017, he returned to Vietnam to visit his parents. When asked how long he had intended to stay in Vietnam he replied, ‘one month’. He returned to Australia [in] December 2017.
At hearing the applicant told the Tribunal that he feared returning to Vietnam because he got to ‘know someone’ at a birthday party and her husband threatened to kill him. When asked to elaborate, he stated he returned to Vietnam to visit his family and attended a birthday party and met a woman there. He told the Tribunal that they talked and were ‘very compatible’. He then claimed ‘one day I called her to have a drink at a bar and we then stayed overnight together. The next day I tried to contact her but was not successful’. He then claimed two days later he learnt that she had a husband and [an age]-year-old child.
At hearing the applicant was asked how he knew the woman, the nature of his contact with her, how they re-established contact with one another in 2017 given the applicant’s evidence that they did not have each other’s contact details and how she was able to contact the applicant after their one-night stand in light of her not knowing his address and mobile number.
The applicant was also asked about his booked airflights, including the original date of his return flight to Australia and his claims that he changed his flight ticket to depart Vietnam earlier. He was asked whether he had any independent evidence to corroborate his claims that he changed his flight, such as a flight ticket and/or email confirmation of his flight booking. He was also asked why he could not obtain such evidence from his travel agent in Australia or the airline company, given his evidence that he booked the flight ticket through an Australian travel agency and airlines retain records. He was also asked why he delayed lodging his protection visa application, applying for the visa more than three years and three months after he returned from Vietnam in December 2017 and the events which give rise to his protection claims. The applicant’s evidence is detailed further below in the Tribunal’s findings.
At hearing when asked if he had ever been contacted by the husband, the applicant replied in the negative. He also told the Tribunal that his last contact with the woman was when she called him using a ‘hidden number’ in 2017.
Post Hearing
On 31 May 2025, the representative submitted to the Tribunal the following letter signed by the applicant:
Dear Member,
First, I would like to express my sincere thanks to you for giving me the opportunity to present my case at the video conference on 21 May 2025.
It is of my thought that there are still some issues at the hearing that need to be clarified
As I mentioned in my application, the reasons I had applied for a Protection visa because I was in fear of being harmed if I returned to my home country. If Australian government had not opened their arms to protect me, I would be harmed by now.
As I stated at the hearing, when I was in Vietnam, my parents told me they were planning to travel to Australia for holidays. Therefore, I intended to wait for them for a couple of weeks and, we could travel to Australia together. However, I had to leave Vietnam for Australia immediately because of the "matter" between me and my exlover Ms [A]. The incident was that, [Ms A’s] husband discovered my relationship with his wife ([Ms A]). He became jealous and came to my house with two other persons threatening to harm me and my parents. We were so scared of them and left Vietnam immediately.
I felt sorry that I did not make it clear at the hearing because the matter made me feared when I was questioned.
I trust the above clarifications merit your kind consideration and thank you for your assistance in this matter.
Yours respectfully, [Applicant]
Tribunal Findings
Whilst the Tribunal has considered all the facts and evidence submitted, it refers in its findings only to the evidence it considers necessary to explain its reasoning. The findings incorporate reference to information that the Tribunal has found to be material to the determination of the issues in this case. The Tribunal is not required to make explicit reference to every relevant piece of information before it because not all relevant considerations will be central or fundamental to every case.[1]
[1] Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145.
The Tribunal does not accept the applicant’s claims that he had an extramarital affair with a married woman during his brief return to Vietnam in 2017. The Tribunal does not accept the applicant’s claims that he fears harm from the woman’s husband and that he has any fear of harm on that basis if he returns to Vietnam in the future. The reasons for this are considered cumulatively below.
First, at hearing the Tribunal raised with the applicant the issue of his credibility and discussed with him a number of inconsistencies in his evidence which raised concerns regarding the truthfulness of his claims. In particular, his narrative of having an extramarital affair in 2017.
He first told the Tribunal that he met the woman at a birthday party, went to a bar for a drink, before staying the night together and having a one-night stand. He claimed he knew the woman from meeting her in 2014 ‘via my close friend’ during a brief return visit to Vietnam. He confirmed in 2014 they did not exchange contact details and there was no contact between the parties in the intervening three years.
When asked how they re-established contact in 2017 and noting they did not have one another’s contact details, he then claimed they had the affair after he randomly bumped into her on the street. He stated, ‘I suddenly remember her and suddenly saw her. When I returned to Vietnam, I accidently bumped into her on the street’. When asked when this occurred he replied, ‘Can’t remember exactly only when visited parents in Vietnam’. At hearing he later claimed they had met at a birthday party in 2014 and then on the street in 2017 and that he had mixed up the events.
When the Tribunal raised the above inconsistencies and explained it was having difficulty reconciling the different versions of how he re-connected with the woman and the events which led to the affair, the applicant claimed the ‘incident’ had caused him stress and was the reason for his different narratives.
The Tribunal has considered the applicant’s explanation and his post-hearing submission that the subject ‘matter’ made him fearful, however, does not accept the explanation for the significant inconsistencies in his claims. While it is understandable that the applicant would be nervous when giving his evidence to the Tribunal and that the applicant may feel uneasy discussing his protection claims, the Tribunal does not accept this caused him to forget or misdescribe the events which led to the affair. The Tribunal considers the narrative to be a critical aspect of his claim and if he had in fact had the one-night stand as claimed he would have expressed it clearly and consistently. This is particularly so, given the applicant has never been married or in a de facto relationship. The Tribunal does not regard the inconsistencies to be minor.
The Tribunal is entitled to have regard to an applicant's level of knowledge of matters about which the applicant would reasonably be expected to know if their claims were truthful; Nejad v Minister for Immigration and Multicultural Affairs [1999] FCA 1827. The Tribunal is mindful not to require an unrealistic degree of precision and detail or to impose too high a standard when assessing the applicant’s level of knowledge. In isolation, this may explain the applicant’s inability to provide details in respect of some matters, however, when the Tribunal considers the totality of the applicant’s evidence, the Tribunal does not accept that the applicant would forget or confuse such details. The Tribunal considers that if the events had occurred as claimed, it would have been indelible or approaching indelible. The Tribunal finds that it is not something someone in the applicant’s position would have mistaken.
Second, the applicant claimed in December 2017 the woman phoned him on his mobile and told him her husband was aware of their extramarital affair and was looking to harm the applicant. This is despite the applicant’s oral evidence that the parties did not have each other’s mobile phone numbers and his statutory declaration dated 4 April 2021 at paragraph 7 where he stated that the woman did not know his ‘address or mobile number’.
The Tribunal asked how the woman was able to contact him bearing in mind she did not have his mobile number and that it raised concerns regarding the credibility of his claims. The applicant replied that she rang him from a ‘hidden number’. When the Tribunal indicated that this did not adequately explain how she could contact him, he then claimed he had given his mobile number to her in 2017. When the Tribunal indicated to the applicant that this was inconsistent with his earlier oral evidence that she never had his mobile number and the contents of his statutory declaration he was unresponsive.
The Tribunal has carefully considered but does not accept that the applicant received a phone call from ‘the woman’ regarding her husband discovering their extramarital affair and claims that he would harm the applicant. The Tribunal considers the applicant’s evidence to be highly implausible. The applicant was unable to articulate with any conviction or provide a credible explanation for how he received the phone call noting his oral evidence and statutory declaration that the parties did not have one another’s mobile numbers. For this same reason, the Tribunal regards the applicant’s explanation that the phone call was from an unknown caller to be unsatisfactory. The Tribunal does not accept his later claims that he provided the woman with his phone number in 2017. Rather, the Tribunal considers the applicant manufactured this evidence at hearing as he was acutely aware of the illogicality in his evidence. The shifting and inconsistent course of the applicant’s evidence leaves the Tribunal entirely unconvinced that the applicant received a phone call from the woman and that the applicant is at risk of harm from her husband.
Third, the applicant was unable to explain how the husband discovered their claimed extramarital affair. This is despite the applicant being given multiple opportunities at hearing. Usually if a person is speaking from direct evidence, they are able to provide a level of detail concerning the events which occurred. In this case, the applicant was unable to provide detail of the conversation, instead just repeating that they had had a one-night stand, that his friend had told him that the woman had a husband and [an age]-year-old child and that she contacted him with a hidden number to tell him her husband had discovered their affair. The Tribunal considers that if he had had such a conversation they would have discussed how their affair was discovered. The Tribunal found the applicant’s evidence to be tangential and unsatisfactory.
Fourth, the applicant’s evidence regarding his earlier return airflight was inconsistent and unconvincing. As indicated above, the applicant told the Tribunal his original plans in 2017 were to stay in Vietnam for one month. In his visa application statutory declaration he claimed that due to fearing the woman’s husband, he changed his flights to depart Vietnam earlier. When the Tribunal indicated that his departure and arrival dates to Australia did not appear to be any different to his original travel plans and if he wished to comment, he replied he was scared and intended on leaving earlier. When the Tribunal asked the applicant what his original return flight date was to Australia he stated he could not recall. Only after the Tribunal asked the applicant whether he had any corroborative evidence to support that he changed his air flights did he then claim that he stayed longer in Vietnam as he was concerned about his parents safety. The Tribunal indicated that his evidence of extending his stay in Vietnam was inconsistent with his claims in his visa application that he shortened his stay and raised concerns regarding the credibility of his claims and having a genuine fear of the woman’s husband. The applicant was given an opportunity to comment. The applicant was unable to reconcile the different accounts, stating his statutory declaration was true but that he stayed longer in Vietnam due to being concerned about his parents.
Post-hearing the Tribunal received a letter from the applicant claiming he gave evidence before the Tribunal that his parents were planning to travel to Australia and that he was ‘intending’ to wait for them and return to Australia together. The applicant did not give evidence of this matter and the Tribunal rejects these claims. The Tribunal considers the applicant now makes this claim as he realises the illogicality of his evidence at hearing, that is, extending his stay in Vietnam. The Tribunal further notes the applicant now claims he left Vietnam ‘immediately’ due to the husband and two unknown persons threatening to harm him at his parents’ home. This is inconsistent with his claims in his visa application that he did not experience harm in Vietnam and ‘had left for Australia’ before ‘he found his parents’ home’ and his oral evidence of having no contact with the husband. When considered in conjunction with the other concerns detailed in this decision record, the Tribunal considers that the applicant is prepared to make any representations to suit his cause to obtain a protection visa.
Fifth, other than making the assertion that he changed his return flight ticket to Australia, the applicant provided no corroborative evidence to support this claim. This matter was discussed extensively with the applicant at hearing. This could have included a flight ticket, flight records obtained from his Australian travel agent, flight records obtained from the airline company or correspondence to the applicant such as an email confirmation of his flight details. The applicant claimed he did not have any evidence. While not determinative in itself, the Tribunal considers it would be reasonable to expect there to be some evidence. When considered with the above concerns, the Tribunal is unconvinced that the applicant changed his return airflights and departed Vietnam early due to fearing the husband.
Six, the applicant applied for the protection visa over three years and three months after his last arrival in Australia and after the events which give rise to the protection claims. The Tribunal indicated it raised concerns that he applied for the protection visa to maintain an ongoing residency in Australia rather than having a genuine fear of harm. The applicant was asked why he delayed lodging the protection visa application given his claims of why he left Vietnam. He replied. ‘When returned to Australia for my study until 6 April 2021 I have always feared that I am threatened but in 2021 I am really concerned and then I found my lawyer’.
Delay in seeking a protection visa can support an adverse credibility finding as well as a finding that an applicant does not have a well-founded fear of harm; Zhang v RRT & Anor [1997] FCA 423 and Kavun v MIMA [2000] FCA 370. Even a three-month delay in lodging a protection visa application has been held to be a legitimate matter to be considered when assessing the genuineness of an applicant’s fear of persecution; Subramaniam v MIMA [1998] FCA 305.
The Tribunal finds the timing of the protection visa to be inconsistent with the applicant’s narrative about his claims of fear in returning to Vietnam. Even if the Tribunal were to accept his claims that the husband keeps sending people to his parents’ house (which the Tribunal does not accept and of which the applicant had no evidence of such as police reports) the Tribunal considers there to be a significant lapse of time and regards it to be inconsistent with his claims of harm. Taken together with the Tribunal’s credibility findings, and his migration history, the Tribunal does not consider the applicant’s explanation for delaying his protection visa to be credible and finds it more likely that if the applicant’s protection visa claims were true, he would have lodged the protection visa application earlier.
For the above reasons, the Tribunal does not accept that the applicant had an extramarital affair in 2017. It follows that the Tribunal does not accept there to be a real chance that the applicant will face harm from the woman’s husband if he returns to Vietnam, now or in the reasonably foreseeable future.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’. For the same reasons, the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm by the woman’s husband as a necessary and foreseeable consequence of being removed from Australia to Vietnam.
CONCLUSIONS
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.
Date of hearing: 21 May 2025
Representative for the Applicant: Dr Ngo Tung Bao (MARN: 0006620)
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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