2200160 (Refugee) - [2025] ARTA 1996

2200160 (REFUGEE) [2025] ARTA 1996 (10 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2200160
Tribunal:Kathleen Timbs
Date:10 September 2025

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

Statement made on 10 September 2025 at 12:20pm
CATCHWORDS
REFUGEE – protection visa – China – religion – Falun Gong – detained but not charged – limited knowledge and practice – application prepared by lawyer, omitting claim of land dispute with secretary of village committee – beaten by hired gangsters – petitions to city level – no threats or attacks while living in town – no medical or other supporting evidence – economic conditions and work opportunities – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 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

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). The Tribunal is to continue AAT proceedings not finalised at that time and is taken to have done anything in relation to those proceedings done by the AAT before 14 October 2024.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant [the applicant] a protection visa under s 65 of the Migration Act 1958 (the Act).
[In] June 2017, the applicant arrived in Australia from the Peoples Republic of China (China).
On 23 August 2017, the applicant applied for the visa.
On 4 January 2022, the delegate refused to grant the visa.
On 5 January 2022, the applicant applied for review of that decision by the AAT.
On 27 June 2025 and 18 July 2025, the Tribunal heard the application with the help of an interpreter in the Mandarin and English languages. The applicant appeared in person to give evidence and present arguments.
RELEVANT LAW - CRITERIA FOR A PROTECTION VISA
The relevant criteria for a protection visa are in s 36 of the Act.
To be granted the visa, an applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they must be either a person in respect of whom Australia has protection obligations because they meet the refugee criterion or complementary protection criterion, or they must be a family member of a person who meets one of those criteria and that person holds a protection visa.
The Tribunal must affirm the decision under review if it is not satisfied that the applicant meets one of these criteria.
EVIDENCE AND MATERIAL CONSIDERED BY THE TRIBUNAL
The Tribunal considered the Refugee Law Guidelines and the Complementary Protection Guidelines’ prepared by the Department of Home Affairs and the country information assessment for China published by the Department of Foreign Affairs and Trade (DFAT) in December 2021 (the DFAT report).
The Tribunal also considered:
·relevant documents provided by the Department, including the applicant’s visa application and the delegate’s reasons for decision;
·oral evidence and submissions made by the applicant at hearing; and
·other relevant country information discussed below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Nationality
The applicant provided a passport issued by the Peoples Republic of China (China) to the Department. It examined it and found that it was genuine. On that basis, the Tribunal accepts that the applicant is a citizen of China.
The Tribunal has no evidence to suggest the applicant has a right to reside in any other country and the Tribunal is satisfied that China is the receiving country for the purposes of s 36 and s 5J.
Background
The applicant was born in [Year] in the Yentai prefecture in the northeast of Shandong province in China. He grew up in a rural village where his father supported the family by farming. His parents have died since he arrived in Australia and he is married with one adult child. His wife, his son, daughter-in-law and a grandchild live in China. They previously lived in his family home but his wife now works in a factory and lives in the dormitory for its workers. His son’s family lives in another town in Yentai.
The applicant said he left school at about 15 or 16 years old, has no trade or other qualifications, and worked on the family farm for a period after leaving school. He said he worked in [work sector] from 2008 and continued to work in [work sector] after coming to Australia in 2017.
Refugee assessment
The criterion in s 36(2)(a) of the Act 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.
Section 5H(1) of the Act provides that a person is a refugee if he or she is outside their country of nationality and is unable or unwilling to avail himself or herself of the protection of that country because of a well-founded fear of persecution. Under s 5J of the Act , a person has a ‘well-founded fear of persecution’ if:
·     the person fears persecution;
·     there is a real chance that the person would be persecuted;
·     the real chance of persecution relates to all areas of the receiving country;
·     the persecution involves serious harm and systematic and discriminatory conduct; and
·     the essential and significant reason (or reasons) for the persecution is race, religion, nationality, membership of a partic0ular social group or political opinion.
Protection claims
In his visa application, the applicant claimed he would be persecuted by authorities in China because he was a Falun Gong practitioner. At hearing, the applicant repeated that claim and also claimed he would be persecuted if he returned to China because of a land dispute.
The applicant told the Tribunal that he did not complete his visa application form because he does not speak English. He said his lawyer filled out the form after he told them about being a Falun Gong practitioner and about the land dispute. He does not know why the completed form does not include both claims but could not read it to ensure that it was complete and correct. The Tribunal accepts the applicant did not personally complete the form and it makes no adverse inferences about his credibility because it does not include a claim for protection because of a land dispute.
Evidence of past harm - Falun Gong practice
The visa application states the applicant joined the Falun Gong movement in 1999 and was arrested and detained for a month in August 2008. It states he could not sleep and was given no food or water during his detention. At hearing, the applicant made similar claims but dated his arrest and detention to September 2008. The Tribunal makes no adverse inferences from this minor inconsistency.
The applicant said one of his neighbours introduced him to Falun Gong in 1999 and took him to other villages to learn to be a practitioner. He said the meetings started with about 20 people but this gradually increased to approximately 400 attendees in 2008. He said the media reported the large scale meetings and the authorities responded and arrested all of the protesters in September 2008. He said the authorities released those with connections and that they detained him and three others from his village for about a month. He said they did not give him enough food or let him sleep during the night. He said they were not charged and prosecuted because it is not common in China. He said he cannot provide any documents to support his evidence for this reason.
The applicant told the Tribunal that he ceased attending meetings after his detention because he was afraid and was not involved in Falun Gong in any other way. He said he did not come to the attention of authorities because of his past involvement after that.
The Tribunal asked the applicant about the development of his Falun Gong practice. He said, if possible, he and another person from the village travelled every Thursday to another village to attend meetings hosted by visiting Falun Gong leaders. When asked, the applicant said he could not give details of what he and the other practitioners did at the meetings because he was ‘simply learning’ and was the youngest attendee. The Tribunal pressed the applicant about what he learned and he said the participants mainly talked about the unfairness of society and learned how to sit in silence. When asked if they talked about beliefs or learned physical practices, he said the physical practice was to ‘sit in’ and that they sometimes raised funds to support the Falun Gong organisation. He said he did not learn or do exercises and, when asked to provide more information about the ‘sit-in’, he said this was done to protest unfairness in society.
Country information
DFAT provides the following report about the risk of harm to Falun Gong practitioners in China:
Falun Gong
3.64    Falun Gong was established based on the practice of qigong, a generic term for a family of meditative breathing and stretching exercises with a long history in China. Qigong experienced a resurgence in popularity in the 1980s and 1990s, and Li Hongzhi (Master Li) founded Falun Gong in 1992 at the same time as other movements were founded. Falun Gong is the most well-known qigong group outside China, but many others exist and many of them are banned or monitored in China.
3.65    By performing exercises, following the moral teachings of the religion and reading and re-reading the sacred text Zhuan Falun, believers hope to ascend to a state of perfection or ‘cultivation’. Practitioners may not see Falun Gong as a religion, seeing it as a method for ‘cultivation’ or science. Unlike other qigong practices, Falun Gong has moral teachings (for example teaching against gay sex and abortion) and supernatural aspects. DFAT understands from sources that these beliefs exist, but do not form a core part of Falun Gong belief or practice. The Chinese Government and some former members claim the religion encourages isolation from families or refusal of medical treatment. Falun Gong denies these claims.
3.66    Falun Gong has been illegal since 1999 and the government actively searches for and prosecutes practitioners. Adherents can be imprisoned for between three and seven years. For this reason, members do not openly proselytise and there is no initiation ceremony. Conversely, repression of the religion has become a key part of its teaching and practice abroad. Practitioners, including in diaspora communities, may be involved in anti-Chinese Government activism.
3.67    DFAT understands that many adherents are still active in China, but it is not clear whether they are the same adherents from before the ban or new converts. The 2020 US Department of State International Religious Freedom Report estimates there are between 7 and 20 million Falun Gong practitioners in China, but this is hard to verify given that practice is often private, and the group is illegal and stigmatised.
3.68    Unlike some other xie jiao [groups designated as ‘evil cults’], Falun Gong is not secretive about its beliefs. Most Falun Gong beliefs are published on the organisation’s websites. Unlike some other new religious movements there are no ‘gradations’ of knowledge where one has to be admitted or inducted into knowledge after perhaps being a believer for a certain time or paying a fee. Core to Falun Gong beliefs is the reading and re-reading of the Zhuan Falun, the sacred text of the organisation that comprises a series of lectures made by Master Li. A source told DFAT that a thorough knowledge and constant re-reading of the Zhuan Falun is central to Falun Gong beliefs; one cannot be Falun Gong without that practice.
3.69    Correctional officers will pressure Falun Gong practitioners to denounce their faith, and detainees may receive better treatment if they sign confessional statements. They may be unable to find jobs after release from detention. Unlike other xie jiao, the government regards Falun Gong practitioners as political opponents rather than victims and treats them accordingly (see Political Opinion (actual or imputed)). They are likely to be monitored after release from detention.
3.70    DFAT assesses that Falun Gong practitioners, and their lawyers, are at high risk of official discrimination. Due to the government’s sustained public campaign against them, Falun Gong practitioners, if exposed, face a moderate risk of societal discrimination. Falun Gong practitioners are generally able to practise privately in their homes. DFAT is aware of claims by Falun Gong practitioners and their lawyers that they have suffered psychiatric experimentation and organ harvesting. DFAT is not able to verify these claims. In May 2020, following the release of the China Tribunal’s report into organ harvesting, DFAT officials met with the Chair, Sir Geoffrey Nice QC, to further discuss the findings. DFAT continues to review the evidence and reports as they come to light.
The UK Home Office reported on the practice of Falun Gong in 2023 (Country policy and information note: Falun Gong, China, November 2023 at gov.uk.
8.4 Practice and beliefs
8.4.1 The Falun Dafa Information Center noted:
‘First and foremost, Falun Gong can be thought of as a practice—as something that is done, that is put into action. The practice is designed to effect positive change, or reinforce what is already good, in body, mind, and self.
‘The body is attended to in Falun Gong most directly by the regular performance of four qigong exercises and a meditation. Qigong exercises … resemble Tai-chi somewhat in form and work, similarly, on the body primarily on an energetic level. Some refer to qigong (pron. “chee-gung”) as “Chinese yoga.”
‘Falun Gong recalibrates the body on an energetic level while dredging out blockages and impurities that might compromise health and well-being. On deeper levels, the practice, in its own unique ways, deals with the more fundamental origins of illness and physical suffering (i.e., a nefarious material called karma). The meditation facilitates these changes and processes while reinforcing the subtler workings of the practice specific to the body and mind…
‘While the physical dimension of Falun Gong is important, it is the emphasis on the mind and one’s moral self that set this practice apart.
Assessment and findings
The applicant gave evidence about an arrest in 2008 in a relatively straightforward manner and described conditions in detention that are not inconsistent with country information (see the DFAT report at 5.13 to 5.23). When asked, the applicant confirmed his evidence that he attended meetings of practitioners regularly for a lengthy period from 1999 to 2008. However, this is not consistent with his knowledge of Falun Gong practice. When asked, the applicant could not give any information about the basic principles of the movement, such as moral teachings. He knew the name of the movement’s founder and his evidence of sitting might refer to meditation described by the UK Home Office. However, he did not know about the Zhuan Falun text practitioners ‘read and reread’. Rather, he said he received only pamphlet even though earlier students received a copy of a book. Most importantly, he said he does know about of the ‘regular performance of four qigong exercises’ essential to Falun Gong practice.
The told the Tribunal that he learned only the ‘most basic things’ because he did not practice for very long which is not consistent with his evidence of attending meetings for a lengthy period. When pressed, he said he learned less than others because he was the youngest member of the group, that he could not answer the Tribunal’s questions because of anxiety in the hearing room, and that he did not like talking about Falun Gong because of the trauma he suffered.
The Tribunal takes account of the difficulty of providing evidence through an interpreter in a formal setting and accepts that trauma often affects recall of relevant events. However, it does not find these matters explain a failure to explain the most basic aspects of Falun Gong practice such as regular qigong exercises and reading the Zhuan Falun. In addition, the applicant was not a child at the relevant time and his age was not a barrier to learning those practices. His lack of knowledge is inconsistent with practice of Falun Gong for any period and, in the Tribunal’s view, his claim to have been a practitioner of Falun Gong is so clearly untrue that it generally affects his credibility. It finds he did not practice Falun Gong in China at any time and it follows he was not detained in China in 2008 for that reason.
Evidence of past harm - Land dispute
The applicant told the Tribunal his land was taken by the secretary of the village committee (the secretary) who set up a [farm]. He said he petitioned to get his land back but it was impossible because the village is made up of people of the same family as the secretary, except for his family and one other family.
The applicant said he lived in the village until 2008 and his parents gave him the family farming land when he married. He said the secretary wanted to buy the land from him but he refused. He said the secretary he took the land and built a [farm] while he was in detention in September 2008. The applicant said his parents were still living and living in the family home but were not well and could not stop the secretary. The applicant said he started making petitions when he returned to the village but the secretary hired gangsters to assault him.
The applicant said his family left the family home soon after and lived in rented accommodation in another town nearby. He started working in [work sector].
The applicant said he continued to make petitions up to the capital city level over the following three years. He said he was beaten during this period whenever he was in the village. The applicant told the Tribunal he could not remember how many times the gangsters beat him but thinks it was about 20 or 30 times in three years following the takeover of the property 2008. When asked why he was in the village after moving to another town on so many occasions, the applicant said there was a ‘rule in China’ that authorities must take a petitioner back to the relevant village. The applicant insisted that he had no choice in this when the Tribunal suggested it is unlikely that relevant authorities physically returned him to the village against his will.
In relation to the outcome of his petitions, the applicant firstly said authorities ‘passed the back’ and nothing happened. Later in the hearing, he said the capital city authority ordered the secretary to return the land to him but he could not enforce the order because the gangsters beat him up whenever he was returned to the village.
The Tribunal asked if the police could help. He said he called the police and they attended the village. However, he said the village is about 30 minutes’ drive away from the police station and that the gangsters ran away by the time police arrived. He said he made police reports on each occasion he was beaten but that he has no documents in Australia or in China about those reports. He said it is unlikely he could obtain them because of the length of time since he made those reports.
The Tribunal asked whether he had medical evidence of injury arising from the assaults and he said he did not go to the doctor and had no proof of them other than a scar on his leg.
The applicant said he stopped making petitions in about 2015 because it was not effective and because he did not have any money left. He said he had no difficulty with the gangsters after that because he was hiding while living in the other village ‘as a precaution’. When asked what he meant by hiding, he said he did not make any more petitions, worked casually doing some ‘odd jobs’ to support himself, and lived separately from his family to ensure their safety.

The Tribunal noted the assaults he described happened in the village and suggested he was safe where he lived from 2008. It asked why he needed to take precautions when he had come to no harm in that place. He said again he was beaten many times and, when pressed, he said friends in the village warned him the gangsters went to look for him where he was living. The Tribunal asked how those people knew where the gangsters went and he said again that they warned him about the gangsters.
The applicant also told the Tribunal there were many reports of others in similar circumstances in villages in Shandong.
Country information
DFAT reports on the risk of harm to those disputing government decisions, including those to do with land disputes:
3.148    Local disputes with government decisions and officials can be raised at designated petitioning offices in China. Millions of disputes are raised at these offices every year. Local authorities participate in programs that incentivise dispute resolution at the local level, to avoid escalation to higher authorities. In practice, this means local authorities often have motivation to retaliate against petitioners, which might include laying charges for ‘picking quarrels and provoking trouble’. The US Department of State reported in 2023 that local governments had sent personnel to Beijing to force petitioners in the capital to return home. Although retaliation was common, it was not always the outcome, and in some cases the system was effective in resolving disputes.
3.149    In-country sources told DFAT in 2023 that land disputes, local corruption, and labour disagreements were common protest themes. Rapid development and high levels of internal migration have led to an increase in contested development and displacement. While land policies and the process of compulsorily acquiring land varied from place to place, all land in urban areas continues to be owned by the state and rural areas were collectively managed by villages. Disputes often arose when local officials tried to sell land and evict existing tenants after paying low amounts of compensation. China’s Civil Code (2020), which came into force on 1 January 2021, requires fair and reasonable compensation to be paid for expropriated land, however, it did not define ‘fair and reasonable’, leaving room for interpretation. Specific documentation provided to those who have had land expropriated differs from province to province. Land sales remain an important source of revenue for local governments and corruption in land deals was commonly alleged. In February 2024, international NGOs reported several hundred Tibetans had been detained in Derge County, Sichuan for protesting the construction of the Kamtok (Gangtuo) dam that would displace local villagers and destroy Buddhist monasteries. International NGOs stated that video footage showed police beating protesters before making arrests, and detainees were held incommunicado and denied access to legal representation.
…
3.156    DFAT assesses people who organise or lead protests over land, local corruption, labour or any other matter critical of the government or CCP, face a high risk of official discrimination in the form of technical and physical surveillance, harassment, detention and imprisonment (see also Political Opinion; Groups of Interest). DFAT assesses petitioners and those who participate in protests face a moderate risk of official discrimination in the form of technical and physical surveillance, harassment, and detention. DFAT assesses protesters and petitioners face a low risk of societal discrimination.
Human Rights Watch has reported on the range of coercive practices used by local authorities against petitioners, including violent retaliation (“We Could Disappear At Any Time” Retaliation and Abuses Against Chinese Petitioners, Ch IV Abuses against Petitioners at the Local Level, December 2005 at hrw.org):
Those who complain about local abuses to other government authorities may not only be disappointed by the mishandling of the case. They then also face the risk of abuse and retaliation, including threats and beatings by police and officials who wish to silence the complainant.
More recently, Lynette H. Ong has examined the use of ‘“thugs-for-hire” in state repression’ in China (Thugs and Outsourcing of State Repression in China, The China Journal, Volume 80, 2018, Chicago University Press). She reported:
….Thugs and gangsters are regularly hired by local governments across China to repress residents and coerce them into complying with government orders. They are recruited to dislodge farmers in land expropriation cases and to evict homeowners in demolition projects. Local authorities also regularly employ thuggish violence to intercept petitioners who try to lodge petitions with the central government, including petitioners against local government corruption. Local authorities also hire thugs to threaten activists who take their grievances into the streets. Municipal officers called chengguan, who enforce order in neighborhoods, employ thuggish contract workers to manage street vendors and migrant workers. In short, local authorities prefer hiring thugs instead of using their own police force when they are taking illegal actions, implementing unpopular policies, and carrying out repression.
Assessment and findings
The applicant’s evidence of a local official hiring gangsters to beat him when he was in the village because he challenged a land use decision is not inconsistent with the country information. However, he said he was not beaten in any other location and that the beating happened on 20 to 30 occasions when authorities returned him to the village without his consent after he made petitions in other locations. The Tribunal finds his forced return to the village on so many occasions is unlikely and it has no country information to support the existence of such ‘a rule in China’. The applicant provided no documentary evidence to support his assertion that he made petitions or medical evidence of injury from 20 to 30 beatings. In addition, the Tribunal has made adverse findings about his credibility above.
In those circumstances, the Tribunal finds the applicant’s oral evidence is unconvincing. He might have been subject to an adverse decision by local authorities about the use of family land. However, on the evidence available, the Tribunal is unconvinced he suffered harm of the kind he described because he made petitions following the takeover of his land by a local authority.
Is there a real chance of serious harm?
The Tribunal has found that the applicant is not, and has not been, a Falun Gong practitioner. It finds there is no real chance of serious harm to him if he returned to China for that reason.
The Tribunal has found that the applicant did not suffer harm of the kind he described because of a land dispute with local authorities in the village. However, it gives him the benefit of the doubt and accepts that family land was subject to a decision by local authorities that was adverse to him. He told the Tribunal that he had moved from the village in 2008 to a nearby town and lived there until 2017. It infers he would return to that area if he returned to China and considered whether there is a real chance of serious harm to if he returned to that home area because of a land dispute.
The applicant’s evidence is that he was not harmed in his home area after moving there in 2008. After the Tribunal suggested he could safely return there, he gave evidence that he had to hide because his former neighbours warned him the gangsters were seeking him out in the home area. In the Tribunal’s view, that evidence was a recent invention and is not credible. It finds there was no risk to him from gangsters in his home area before he came to Australia and that there is no real chance of harm to him from thugs hired by other local authorities if he returned there.
The applicant told the Tribunal that, if he returned to China, he would not have access to the family’s farming land and would not be able to find work in [work sector] to support himself in his home area. He said this is because of an economic downturn in China, because of his age, and because injuries received from the gangster limit him to performing light work such as [examples].
As noted above, the applicant has no medical evidence from China to support his evidence that gangsters caused him injury and he did not provide medical evidence from Australia to demonstrate limited work capacity. The applicant is not a generally credible witness and, in the absence of supporting evidence, the Tribunal does not find the applicant cannot perform the full range of work he had performed in China.
There are many reports of an economic downturn in China (see, for example, Overview, The World Bank in China, 23 October 2024 at worldbank.org). However, the International Monetary Fund reports the overall rate of unemployment is 5.1% at present (Map of world unemployment rates at imf.org accessed on 10 September 2025). This is higher than historical unemployment rates in China but it is not so high that its supports an assertion that the applicant could not find work in China.
The Tribunal has no information about the unemployment rate in the applicant’s home area. However, given the overall rate of unemployment, the Tribunal is not satisfied of his assertion that he could not find work if he were to return there. On the contrary, the Tribunal finds the applicant is a resourceful person who has worked to support himself since leaving the village to live in another area and while he has lived in Australia. The Tribunal accepts he might have more difficulty finding work and earning a living than in Australia and that his wages are likely to be lower. However, it finds this is not a significant economic hardship that would threaten his capacity to subsist and it finds it does not amount to serious harm. It follows there is no real chance of serious harm to the applicant from the current economic conditions in China.
Conclusion
The Tribunal has found that there is no real chance of serious harm to the applicant because he was a Falun Gong practitioner, because he had opposed and petitioned about the takeover of land by a local authority, or because of economic circumstances in China. The applicant has not claimed that he would suffer harm for any other reason and, in that case, there is no real chance of serious harm to him if he returned to China. It follows the applicant is not a refugee and does not satisfy the criterion for a protection visa in s36(2)(a).
Complementary protection assessment
A person who is not a refugee may satisfy the criterion for a protection visa in s 36(2)(aa) if the Minister (or Tribunal) is satisfied Australia has protection obligations because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to a receiving country, there is a real risk that the person will suffer significant harm.
Section 36(2A) provides that a person will suffer ‘significant harm’ if they will be:
·arbitrarily deprived of their life; or
·subject to the death penalty;
·subject to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
There is a chance the applicant would suffer relative economic hardship if he returns to his home area that would not amount to serious harm. This type of harm does not fall within the classes of serious harms set out in s 36(2A).
The Tribunal has found there is no real chance of the applicant suffering serious harm for any other reason if he returns to his home area. The Tribunal finds for the same reasons that there is no real risk of significant harm if the applicant were removed to China.
It follows from these findings that the applicant does not meet the criterion for protection visa in s 36(2)(aa).
CONCLUSIONS
The Tribunal has found that the applicant has not met the refugee and complementary protection criteria in s 36(2)(a) and (aa). It has no evidence to suggest that he is a family member of any other person who satisfies those criteria and, in that case, he does not meet the criteria in s 36(2)(b) and (c). He does not satisfy any of the criteria for a protection visa and the Tribunal will affirm the decision under review for that reason.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kathleen Timbs
General Member
Dates of hearing:  27 June 2025 and 18 July 2025
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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