2203001 (Refugee)
[2025] ARTA 1697
•2 July 2025
2203001 (REFUGEE) [2025] ARTA 1697 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2203001
Tribunal:General Member S Dhillon
Date:2 July 2025
Place:Sydney
Decision:The Tribunal affirms the decisions under review.
Statement made on 02 July 2025 at 1:37pm
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – opposition to the government – reporting an illegal business activity – coercion into sex work – physical assault – employment – detention – fear of killing – internal relocation – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
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 16 February 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
Evidence before the Department
The applicants are nationals of Thailand. They applied for the visas on 28 February 2020.
The applicants arrived in Australia on Visitor Visas in January 2020 and lodged their application for a Protection Visa on 2 March 2020. In the application form, the applicants claimed [name] (‘first named applicant’) was forced to sell illegal services in a massage and karaoke shop on her first day of employment but she refused. She saw female employees being forced to sell ‘closed law’/illegal services. She refused to become involved and informed ‘various agencies’, and this led to help being provided to the women there. The influential owners became aware of the first named applicant’s actions and this led to her being monitored and assaulted and hit in the abdomen many times. Threats were made that the applicant would be caught and killed or sent to a neighbouring country. The first named applicant felt unsafe and in danger and ‘the influential people ordered people to make threats, physically harass and kill.’ A warning was given that they would cause trouble and inhumane treatment, and the applicant was afraid that if she moved to another place they would make trouble for her and her family. The authorities cannot protect the applicants because she did not make an official report. She will not be safe if she returns to Thailand and cannot relocate for this reason. If she returns to Thailand she will be harassed, assaulted and/or killed by these people as they took her refusal personally.
In relation to the past harm she experienced, the first named applicant claims she was assaulted and hit in the abdomen many times. Threats were made that she would be killed or caught and sent to a neighbouring country. Influential people ordered other people to make threats, physically harass her, and kill her. The first named applicant stated that she did not seek help as the people were very powerful and influential. When asked in the application if the first named applicant tried to move to another part of the she stated she ‘cannot escape from their grasp’ and relocation on return is not possible due to the network of connections these people have.
The applicants were not invited to an interview before the Department and did not provide further information or evidence in support of their claims. The delegate made a decision based on the information in the Protection Visa application. The delegate refused to grant the visas on the basis that they were not satisfied the applicants feared harm for a reason under s 5J(1)(a) of the Act and so was not persons who had a well-founded fear of persecution. The delegate further found the applicants were not owed complementary protection because they would be able to obtain protection from the authorities in Thailand such that there would not be a real risk of significant harm.
Evidence before the Tribunal
In their pre-hearing response to the Tribunal the applicants reiterated they feared harm due to the first named applicant’s involvement in reporting an illegal activity at a massage parlour where she was coerced into selling illegal services.
Prior to the Tribunal hearing, the applicants requested that it take place by video as they had relocated interstate. The Tribunal agreed to this request.
The applicants appeared before the Tribunal on 10 June 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.
At the scheduled time of the hearing, the applicants were unable to join the video hearing as they were having technical difficulties. The Tribunal then spent approximately half an hour attempting to assist the applicants to join the video hearing. The applicants stated they did not know how to join the video hearing. I then asked the applicants if they wished to proceed by telephone, otherwise the hearing would be adjourned to another day if they preferred to appear via a video hearing. The applicants each indicated they did not have any issues with giving their evidence via telephone and consented to a telephone hearing. At the conclusion of the hearing, I noted with the applicants that the hearing had originally been scheduled as a video hearing and acknowledged that due to their difficulties in joining the hearing had been held by telephone instead. I asked the applicants if they felt they had the opportunity to present their claims and give evidence during the telephone hearing. The applicants confirmed they had said everything they wanted to say. In the circumstances, I am satisfied the applicants were given a fair and reasonable opportunity to present their claims and evidence at the Tribunal hearing.
No further submissions or evidence was received from the applicants following the hearing.
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
The issue in this case is whether the applicants face a real chance of serious harm, or a real risk of significant harm, from the first named applicant’s previous employer or any persons associated with her ex-employer, or for any other reason. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the beginning of the hearing, I discussed the Protection Visa application with the applicants and the first named applicant confirmed she submitted the application with the assistance of her sister. When asked if she was aware of the contents of the application the first named applicant confirmed yes, she was aware it related to her work in a massage parlour and the threats she experienced. The applicants confirmed they did not have any updates or corrections to make to the information in the application form. The second named applicant also confirmed that he was relying entirely on the first named applicant’s claims and he did not advance any claims of his own. Given the second named applicant is relying entirely on the first named applicant’s claims for protection, the discussion below primarily refers to the first named applicant’s evidence with reference to the second named applicant’s evidence as relevant.
Early in the course of the hearing, the Tribunal questioned the applicants in some detail in relation to their residential and employment history. The first named applicant told the Tribunal that her family home was located in [City 1] and she grew up there. She also worked in Bangkok from the age of 25-30, and then she lived and worked in [City 2] from the age of 30-36. After that she returned home to live with her mother prior to her departure to Australia. When asked why she returned to [City 1], the applicant said because her mother was unwell. In terms of her employment history, the applicant gave evidence that she worked in a factory for 5 years, then moved to [City 2] and worked in [another] factory for 6 years, then she moved back home to look after her mother for a year, then worked for 1 year in a massage parlour, and was unemployed for around 2 years prior to her departure to Australia.
When asked about her claims for protection, the applicant states she will be murdered or assaulted if she returns to Thailand because she worked in a massage parlour where they had a karaoke service as well as a sex work service. They asked her to sell ‘illegal services’ and become a sex worker but she refused and they tried to force her. The applicant said this massage parlour was in [City 2]. She worked there when she was [age] years old, for approximately 1 year and started working there in approximately March 2019 after a friend referred her. When asked what she was told about the job prior to starting, the applicant responded she thought she would be a masseuse. When asked who the owners were the applicant responded they kept changing owners, she couldn’t remember their names, and she had never seen the owner.
I asked the applicant to explain what happened when she commenced working at the parlour. The applicant said she started working as a masseuse giving massages for 4-5 months and then ‘they asked me to become a hooker’ which she didn’t want to do and then they assaulted her. When asked to clarify when the applicant was first asked to do sex work after starting employment in March, the applicant said she was asked in June. The applicant then said she was asked in October. I clarified with the applicant that she was saying she was asked to start doing sex work approximately 6 months after she started working in the parlour in October 2018, and the applicant confirmed this was correct. When asked who told the applicant she had to do sex work, the applicant said the massage parlour manager, who they called ‘sister’. When pressed for further detail, the applicant said she was told to give it a go and it would give her some money. The applicant initially didn’t want to and refused. She was then told she had to otherwise she would be killed or assaulted. She was then detained in a room somewhere and hit on her face, torso and stomach area. When asked to clarify when this occurred, the applicant said sometime in October, and this continued for one month. She stated she was assaulted many times. The applicant then said she could not escape so she did the sex work. When asked what she meant when she said she was detained, the applicant said they locked her in a room and fed her by leaving food and water there and then would close the door again.
When asked who detained her the applicant gave evidence that it was a male staff member from the parlour. Later in the hearing, when asked to clarify the timing of her claimed detention, the applicant then said she was detained from mid-October until the end of October, for two weeks. When asked if anything else happened while she was detained, the applicant said ‘they got me to work, opened the door and made me work as a hooker.’ I then noted the applicant stated she was detained for two weeks and asked how she came to be released. The applicant responded ‘just like that, I escaped with the help of a friend’. When asked to explain how the escape happened after she left, the applicant said she got into a motor vehicle and went to police station to report them. I noted the applicant’s evidence that she was locked in a room which was monitored by employees of the parlour and queried how she was able to leave the room to go outside and get into a motor vehicle. The applicant responded she had a friend who worked there and this friend helped her. When pressed for further detail in relation to how she physically left the locked room, the applicant said she wasn’t sure what her friend said to the male employee keeping watch but he came and opened the door for her.
The applicant said she then took a taxi to the police station in [District 1] to make a report to the police. The police recorded the incident, took some notes and said they would take some actions. When asked if anything happened after that or if the police took any kind of action, the applicant responded nothing happened. When asked if she had copies of the police report, the applicant responded she did but it was in Thailand and it might be in her house but she doesn’t know where it is now.
The first named applicant gave evidence that after this she did not return to her workplace and both applicants moved back to her hometown together in [City 1] [in] November 2018. I noted the applicant’s evidence that she left her employment at the end of October and remained in [City 2] until [the day in] November and asked if anything happened during this period. The applicant responded that she was threatened again and someone wanted to hurt her. On 5 November 2018 she was told if she shared any more information she would be assaulted and murdered. When asked how this threat was made the applicant said her colleague called her over the phone and also came in person. When asked what happened when her employee person came to see her, the applicant said because they knew where she lived they got some detectives to follow her. When asked for clarification in relation to who came to her home, the applicant then said she thinks staff members from the massage parlour or detectives they hired. When asked for detail in relation to the threats that were made, the applicant responded she was told that if she still lived there, she could be murdered. The applicant confirmed that besides this, nothing further occurred prior to her departure on [the day in] November 2018.
When asked if anything happened after she returned to her home in [City 1], the applicant said she was assaulted twice. The first assault was in mid-December 2018. She was threatened that she would be assaulted, and they also threatened to harm her mother and husband. When asked how her former employers knew how to find her the applicant said they are powerful so they have a network all over Thailand. The applicant said this occurred when she was in her family home. I asked the applicant where her family members were at the time and she said her children were at school, her husband and mother were in the rice paddy working. After the assault the applicant called to make a report to women’s rights service, and they made a record. When asked if she had a copy of this record the applicant said she did not because she made the report by phone call. When asked which NGO/agency she called, the applicant said the same agency that did work around women’s rights and protected women from harm.
The applicant gave evidence that a second assault occurred 3 days after the first. When asked what happened, the applicant said the same, that she was assaulted, and no one was home. When asked if she reported the incident to anyone the applicant said the same women’s rights agency. When asked how they responded, the applicant said they told her they would record the incident and take action but nothing happened. The applicant confirmed that she did not receive any further threats or experience any assaults after the claimed second assault in December 2018.
When asked if she sustained any injuries or received any medical treatment as a result of the assaults the applicant said she went to a small government clinic in her neighbourhood, but she didn’t go to a hospital because she was too scared as she was worried her ex-employers would see her and catch her again. When asked if she had any records from the hospital or photos/evidence of her injuries the applicant said she did not.
Throughout the course of the hearing the applicant claimed that her ex-employers were influential or powerful. When asked what she meant by this, the applicant said they could be connected to the mafia. When asked to clarify how they were connected to the mafia, she said ‘they are scary – they might be those people.’ When asked why she thought they could be connected to the mafia, the applicant said she witnessed assaults against other people in the massage parlour and also because of the way wear things; they wore black jackets, sunglasses and they looked scary.
Later in the course of the hearing, when the applicant was asked when her last contact with her ex-employer or anyone associated with the ex-employer was, the applicant said after leaving her workplace on 5 November they called her every week to threaten her and were saying they would assault or kill her, as well as her children and family for a month or so in December.
When asked if these people had tried to contact the applicant or her family since she left Thailand the applicant said they called her mother and threatened they would assault or kill her mother or do something to get her disappeared from Thailand. When asked when this occurred the applicant said she couldn’t remember. When asked how many times this occurred, the applicant said around 3 times. When asked when the last time was her mother received a call, the applicant said sometime after she arrived in Australia, maybe in 2019.
Towards the end of the hearing, I discussed with the applicant numerous concerns I had with her evidence. I reminded the applicant of her earlier evidence in her Protection Visa application where she said that she was asked to sell illegal services on the first day and did not make a report to authorities because they can’t protect or would be unwilling to protect her, whereas today she told me did make a police report. I explained my concerns that the significant changes in the applicant’s evidence might lead me to believe her claims were not genuine. In response, the applicant stated she just wants the Australian government to help her and grant a Protection Visa because if she goes back she will be frightened and she feels happy and safe while working here.
When I put to the applicant that her evidence at the hearing had been vague and it was difficult to see why she would be pursued by her ex-employers upon returning to Thailand given her evidence was they had not attempted to contact her or her family in over 5 years, the applicant stated she is frightened and doesn’t want to go back and if they are aware she is back there could be an assault or murder.
Claim to fear harm from ex-employer
I had numerous concerns in relation to the credibility of the applicant’s claims, as set out below.
At hearing, the first named applicant gave evidence that she began working at the massage parlour in approximately March 2018, she worked as a masseuse for 6 months, and approximately 6 months after working there she was asked to perform sex work. The applicant said she worked at the massage parlour for 1 year in total. However, in her Protection Visa application, the applicant stated she was asked to sell illegal services/perform sex work on the first day of her employment rather than 6 months after she worked there. Further, later in the hearing, the applicant stated she was detained for a period of 2 weeks after she was asked to do sex work and after this she did not return to her employment, meaning she would have only remained with her employer for around 6 and a half months in total rather than 1 year as stated at the beginning of the hearing. I am unable to reconcile the significant discrepancies in the applicant’s evidence and find her responses and explanations unpersuasive. I consider these discrepancies to be significant, particularly the applicant’s changing evidence in relation to when she as asked to perform sex work, and given this is central to the applicant’s claims to fear harm, this casts serious doubt on the applicant’s claims.
The applicant’s evidence in relation to who owned the massage parlour or who she was employed by was vague and lacked detail. The applicant said she could not remember the names of the owners and she had never met them. Further, despite claiming her ex-employer is powerful and influential and might be the mafia or associated with the mafia, the applicant unable to articulate why she believed this other than to say they were scary and wore black clothes and sunglasses. The applicant’s lack of detail in relation to her former employer adds to my concerns around the credibility of her evidence, particularly given the applicant claims to have been targeted and pursued by these people.
In relation to the claimed detention, the applicant initially gave evidence that she was detained in October 2018, for one month. Later in the hearing, she stated she was detained from mid-October until the end of October, for a period of two weeks. The applicant’s shifting evidence in relation to a significant event adds to my concerns. In relation to how she escaped her claimed detention, I reminded the applicant that her earlier evidence was that when she was detained the door was locked, and I queried how she would have been able to leave. I have considered the applicant’s explanation that her friend spoke to the employee keeping watch who then came and opened the door for her. I found it implausible that the people who detained and coerced the applicant to perform sex work would simply release her at her friend’s request.
I put to the applicant during the hearing that she had given evidence that she made a police report as soon as she was released from detention, but her Protection Visa application stated she did not seek assistance or make any official report to the Thai authorities. The applicant’s response that she will be frightened if she returns to Thailand and she feels happy and safe while working in Australia did not address my concerns.
I also note that in the Protection Visa application, one of the applicant’s central claims was that she informed ‘various agencies’ other than the authorities which led to the other women who were being employed at the massage parlour being provided with assistance, which came to her employer’s attention and caused them to want to harm her. The applicant did not raise this during the hearing, despite being asked in a number of different ways why her ex-employer would be motivated to harm her and if she took any further action after leaving her ex-employer. If the applicant had made reports to other agencies which led to the other women receiving assistance, I consider the applicant would have mentioned this, given its significance to her claims.
My doubts are exacerbated by the applicant’s unconvincing evidence in relation to the actions taken by her ex-employer. Firstly, the applicant said she received threats due to the police report she made. However, she also stated the police did not take any action after she made the police report. It is unclear how the applicant’s ex-employer would know she made a police report and want to harm her as a result of this, given no action was taken by the police. Secondly, when asked who came to her home in [City 2] to threaten her, the applicant initially said her ex-employer. When asked for clarification, she then said it was either her ex-employer or someone they hired such as a detective. The applicant’s evidence in relation to how, when, and the substance of the threats was unclear and confused. Thirdly, the applicant confirmed that nothing else had happened prior to their departure from [City 2] [in] November 2018. However, later towards the end of the hearing the applicant said she received weekly phone calls after she left her workplace on 5 November 2018 which lasted while she was in [City 2], throughout December. I find this evidence contradicts the applicant’s earlier evidence that she left her workplace in mid-October and left [City 2] [in] November 2018.
Finally, when discussing the events that occurred after she returned to [City 1], the applicant was again unable to provide detail other than to say her ex-employers visited her family home on two occasions in mid-December 2018, assaulted her, and threatened her and her family members. Although she stated she reported these assaults to a women’s rights NGO, she was unable to provide any further detail, including the name of the NGO, what she told them, or what assistance she was seeking, despite claiming she made two reports to this NGO. The applicant was also unable to provide any documentary evidence such as copies of reports she made, photos or evidence of injuries.
Findings
As outlined above, I found the applicant’s evidence in relation to the claimed fear of harm from her ex-employers to be incongruous, shifting and unpersuasive. While I am willing to accept the applicant worked in [City 2] for 6 years and spent one of those years working in a massage parlour, and then returned to her hometown in [City 1] at the end of 2018, I consider her return to [City 1] was because her mother was unwell, as she stated at the beginning of the hearing rather than due to any fear of harm from her ex-employer.
Due to my concerns above, I do not accept the applicant was asked to perform sex work or sell ‘illegal services’ at any point while working in the massage parlour. I do not accept the applicant was detained for any period as a result of her refusal to do sex work/sell illegal services. It follows from this that I do not accept the applicant was assaulted or coerced into doing sex work while she was detained, or that she escaped her detention and made a report to the police or any other agencies about her ex-employer in [City 2]. I do not accept the applicant’s ex-employers sought to harm the applicant after she left her employment. For the same reasons as above, I do not accept that either the applicants or any of their family members were threatened, harassed or harmed in any way by the ex-employer in [City 2], or after they moved back to [City 1], or that she ever contacted a women’s rights NGO to make reports about this. I do not accept the applicant’s ex-employer has any reason or motivation to seek revenge on the applicants or harm them, or that they have any interest in the applicants otherwise. Accordingly, I am not satisfied the applicant’s ex-employer or any person associated with the ex-employer will seek to threaten, harass, physically harm, subject to inhumane treatment, torture, or kill the applicants, as claimed.
It follows from my findings above that I do not accept there is a real chance the applicants will face serious harm in Thailand for the reasons set out in the protection visa application or provided to the Tribunal in connection with the first named applicant’s refusal to perform illegal services for her ex-employer.
After considering all of the applicant’s claims, I am not satisfied the applicants have a well-founded fear of being persecuted. Therefore, the applicants do not satisfy the criteria set out in s.36(2)(a).
Complementary protection
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa).
As outlined above, I am not satisfied on the evidence before the Tribunal that there is a real chance of serious harm for reasons related to the first named applicant’s ex-employer. As the ‘real risk’ test for the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons and findings set out above, I find that the applicants do not face a real risk of significant harm for this reason, or any other reason.
[1] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Indonesia as the receiving country, there is a real risk that the applicants will suffer significant harm. I am not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Concluding paragraphs
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date of hearing: 10 June 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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