2203130 (Refugee)
[2025] ARTA 1807
•26 August 2025
2203130 (Refugee) [2025] ARTA 1807 (26 August 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship
Tribunal Number: 2203130
Tribunal:General Member S Zelinka
Date:26 August 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.
Statement made on 26 August 2025 at 11:24am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – gay or bisexual men in Malaysia – forced marriage – violent attack organised by family – arrested, detained and charged for attending an immoral party – escaped heavy jail term and flogging by paying a fine – credibility concerns – claims changed – no supporting evidence – delay in applying for protection – claimed charge does not exist – fine imposed by religious police – fine exceeds amount set by law – not involved in gay community – lives without identifying as or being perceived as homosexual – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Applicant S v MIMA (2004) 217 CLR 387
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 1 March 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia applied for the visa on 4 November 2018. The delegate refused to grant the visa on the basis that the applicant did not make any claims the delegate found to be credible.
The applicant appeared before the Tribunal on 8 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review although he was not at 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year-old divorced man of Malay ethnicity from Selangor. He came to Australia in March 2017 and put in a protection visa application 18 months later. After leaving school, he worked for two years in [Workplace 1] and the next four as [an Occupation 1 in Business 1 performing Job task 1].
His initial claims in his protection visa application were that he is a gay man, forced into marriage. When he came out to his family they were very upset and his brother brought some men to beat the applicant up. He claims he had a boyfriend in Malaysia but had to leave him as his family was very angry with him. He did not seek any assistance for his situation as he believes the country does not support equality. He will be depressed if he returns to Malaysia as his family and the government will try to change who he is.
To the Tribunal
At hearing, the applicant claimed that he had been arrested by the religious authorities in 2014 and given the option of paying a fine or going to jail. The Tribunal established that the applicant had been invited to a private party at a large house where there was loud music and alcohol, and party-goers of both sexes. It was a large house because it had seven bedrooms. He said it was a private party because bisexuals and transgenders are not allowed to be public. He noted that people were drinking and dancing bisexually which is not allowed in Malaysia. Unmarried men and women are not allowed to dance and hold hands before marriage.
From the way the applicant was using the word ‘bisexual’, it sounded like he used to it to describe both men and women being present at the same time. The Tribunal asked him if he knew the meaning of bisexual and he replied: “It means I can pick between men and women”. He said that when the police arrived at the party, he was in a bedroom with a man and a woman so he was charged with ‘bisexuality’.
The applicant said the raid on the house by the religious police was in the early hours of the morning; police outside stopped party-goers from running away. About 100 people were rounded up from the party and taken to the police station in a number of trucks. They were kept there in the courtyard for three days, their clothes being swapped for prison pyjamas. The police wanted to see their National Identity Cards and recorded their names.
They were in remand for seven days and then taken to court where the applicant was charged with ‘doing something illegal in Malaysia: going to a bisexual and transexual party with both men and women.’ He was charged with being bisexual which he admitted to. He was told he could pay a fine of [amount] ringgits (about A$[amount]) or be imprisoned for 3 to 10 years. The Tribunal said people do not get sentenced to an indeterminate sentence like that and asked him how many years he got. The applicant said seven years in jail with a flogging. The Tribunal put it to the applicant that this did not seem like an equivalent alternative to the fine. The applicant said he opted to pay the fine in full. It was in the news so people might know about him.
Later in the hearing, the Tribunal took the applicant through his testimony about the party again. He re-thought the number of guests and said it may not have been 100 people at the party. However, it was a noisy party and the neighbours made complaints about the noise. The police, accompanied by religious police (he specifically mentioned JAIS)[1], arrived and took the party-goers to a local police station. The police called the applicant’s home and his mother and his [brother] came about 5am. The applicant said he was remanded to appear in court. He paid a [amount] ringgit fine in court. He said that he had that amount f money in his savings. When questioned about the reporting mentioned above, the applicant said there was a mention on the local TV news about an ‘immoral party’ but there was no footage of the party-goers and no names were mentioned.
[1] JAIS – Jabatan Agama Islam Selangor , Islamic Religious Department of Selangor, a branch of the government organisation JAKIM (the National Department of Islamic Development).
After paying the fine the applicant went home to his family with whom he lived. He said that ‘they did not want him to become bisexual or transgender’ so they decided he should get married. They found a bride from a family known to them and the marriage took place in 2014: he was [age] years old at the time. He and his wife moved to live with the wife’s parents and he remained there until he departed for Australia in March 2017.
The applicant said he had not wanted to get married so when he had saved enough money he left Malaysia and came to Australia. His wife divorced him in 2021 when she realised he had no intention of returning. The Tribunal asked him if he had been to any more parties of the sort that attracted adverse attention since the one he had talked about and he said he had not. He had been to a couple before the one that was raided. He has not seen the friend who took him to the party since that time. He had drawn no attention to himself in Malaysia from the time of his fine until his departure.
The Tribunal put it to the applicant that he had made no mention of getting arrested and sentenced in Malaysia when he filled in his protection visa application. Instead, he had written that his brother arranged for some ‘guys’ to beat him up. The applicant at hearing replied his brother tried to get someone to arrest him. The applicant also said that maybe the ‘helper’ who filled in the form for him could have made an error. The Tribunal put it to him that the ‘helper’ could have made up all the gay claims. The Tribunal noted that he claimed in the PVA to have had a boyfriend in Malaysia. However, at hearing he did not make this claim, and when specifically asked if he had ever had sex with a man, replied that he had only one male encounter and that was at the party.
The Tribunal noted that the applicant had been in Australia for eight years and asked him if he had boyfriends or girlfriends in this time. The applicant said he had not as he did not want to be tied down like he was in Malaysia with his wife. He does not go to parties or gay parties as he does not want to attract attention. He said he had only three or four ‘encounters’ in the time he has been in Australia. However, he told the Tribunal that someone in Australia once told his family that he had not changed. This was in 2020 or 2021, before his divorce happened. This person told the applicant’s family that he – the applicant – was still ‘doing bisexual and transgender’. The Tribunal asked him what he meant by ‘transgender’ and the applicant replied: “A man becoming a lady or vice versa’. The Tribunal asked if the applicant had done anything to give that impression. He said he had not and perhaps the person only told his family that he doing the ‘bisexual thing’.
The applicant said this might relate to an incident in 2020 or 2021 when he was coming out of a nightclub in [Suburb 1] and a Malaysian person called his name. The applicant said to this person ‘Who are you?” and when the person did not give a name, the applicant told him to go away. The Tribunal asked the applicant if he was doing anything compromising coming out of the club – did he have his arms around someone, or was he wearing unusual items of clothing, etc.. The applicant said no. He was dressed for a party and had his shirt open, or off, as the Tribunal understands it.
The Tribunal asked how this related to his family and he replied that the Malaysian man whom he had not recognised had been in touch with the applicant’s wife. A couple of days later, the wife was in touch with the applicant to ask what he was doing, sending him a photo. The applicant said the Malaysian man must have taken a photo of him on his mobile phone and sent it to the applicant’s wife. The Tribunal asked if he had seen the man taking his photo during the very brief encounter and he replied that he had not.
The Tribunal put it to the applicant that he had been detained by the religious police in 2014 and paid a fine. He had then lived in Malaysia for the next three years until his departure. He worked throughout that time. He did not have trouble getting a passport or departing the country. He did not appear to be viewed adversely by the Malaysian government. He spent the past three years in Malaysia as a married man and was not the subject of any discriminatory or adverse action.
The applicant replied that was true and yes, he could work and live with his wife. However, he could not be bisexual or gay. If he had, he might have started getting into trouble.
The Tribunal asked the applicant if he had anything further to say before it closed the hearing. He said he did not, but possibly at a later time might say something. The Tribunal said that he needed to speak before the hearing closed. He then said that the Malaysian person he had encountered in [Suburb 1] threatened to kill him. If he was seen or found to be in Malaysia, then he would be killed. The Tribunal asked how he was made aware of that threat, as he had not engaged in any conversation with the man, now did he know who he was. The applicant said he got a text on [Social media 1]. The man must know the applicant’s ex-wife who must have given the applicant’s [Social media 1] address to him. This text came through about a month or two after he saw the man in [Suburb 1], hence in 2020 or 2021. The applicant said he dismissed it as ‘not important’ and added that cannot prove it as he changed his [Social media 1] account. The Tribunal put it to the applicant that he was fabricating this claim. The applicant did not respond.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving country
The Tribunal has before it a copy of the applicant’s passport and on that basis is satisfied that the applicant is a national of Malaysia. The receiving country in this case is Malaysia.
Credibility
The Tribunal notes the change in the applicant’s claims from the initial ones set out in the protection visa application (PVA) to those he put forward at the Tribunal hearing. He initially said he was gay and that he had a boyfriend. He did not pursue these claims at hearing, saying he was bisexual and not claiming that he ever had a boyfriend. The Tribunal notes that initially he did not claim that serious harm had actually befallen him in Malaysia: he said his brothers arranged for him to be beaten, but without saying if this had happened. He did not pursue this at hearing. However, at hearing, he made the new claim that he had been arrested, charged with ‘being bisexual’, taken to court, and only escaped a heavy jail term and a flogging by means of paying a fine. There was no supporting evidence for any of these claims. The Tribunal also notes the way the applicant changed his answers at hearing in response to various questions or objections raised by the Tribunal; and it notes the inherent implausibility of some of the applicant’s testimony, such as that about the alternative fine (see paragraph 36 below). The Tribunal also notes that at the end of the hearing, the applicant raised an entirely new claim that he received a death threat in Australia, but which he dismissed as being ‘not important’.
The Tribunal notes that the applicant did not apply for protection on arrival in Australia but waited for 21 months until the expiry of his previous visa. The applicant cast doubt on ‘the helper’ who filled in his PVA as unreliable and the Tribunal is of the view that the helper could have suggested a ‘gay claim’. The Tribunal put this view to the applicant but he did not respond. The applicant then proceeded with his claim, with no supporting evidence, to hearing whereupon he fabricated more claims to increase the severity of the harm he said had befallen him and might befall him in future if he were to return to Malaysia.
Overall, the Tribunal questions the applicant’s credibility and does not find he is a witness of truth.
Re the Applicant’s claims
The applicant has claimed at different times that he is gay or bisexual and for this reason there is a real chance that serious harm will befall him if he returns to Malaysia. The Tribunal notes that he was married for three years, and lived with his wife as a married man, for three years before coming to Australia; and that he only claimed one brief sexual encounter with a male before his marriage. This was in 2014 – both the encounter, and then later, the marriage. The applicant has been in Australia for the last eight years and in that time has had only about four sexual encounters (without specifying the gender of these encounters). He did not identify himself to the Tribunal as gay or as part of the gay scene. He does not go to any gay parties or events. He claims that he does not want to draw attraction to himself but this is hard to accept in a place like Sydney.
The applicant wrote in his PVA that he had boyfriend in Malaysia. At hearing, he did not speak of any boyfriends in Malaysia and only mentioned a brief encounter with a man at the party which was raided with a man when specifically asked if he had ever had sex with a man in Malaysia. He referred to a friend taking him to the party but in no way indicating any intimacy – just a friend who happened to be going to a party. He never saw that friend again after that party.
The Tribunal is prepared to accept that the applicant attended a noisy party at which were present men, women and alcohol. It is prepared to accept that this drew the adverse attention of the police who arrived with the religious police. The Tribunal notes independent evidence:
State-level Islamic religious enforcement officers continued to have the authority to accompany police on raids of private premises and public establishments and to enforce sharia on Muslims, including for violations such as indecent dress, distribution of banned publications, alcohol consumption, or khalwat (close proximity to a non-family member of the opposite sex).[2]
[2] US DoS , 2023 Report on International Religious Freedom: Malaysia, Section ll, ‘Government Practices’
The Tribunal is prepared to accept that the applicant was detained, had his national identity card examined, and had to wait until his mother and [brother] came to take him home. The applicant has claimed that he was charged with ‘doing something illegal in Malaysia: going to a bisexual and transexual party with both men and women’ or ‘being bisexual’ which he said he admitted to (see paragraph 16 above). The Tribunal notes that although Malaysia has a number of laws against various forms of sexual behaviour, none of them are worded in this way, nor have the same meaning. At one stage of the hearing, he said he had a brief sexual encounter with a man on the night of the party; at another point he said that when the religious police arrived he was in the same bedroom as a man and a woman. The applicant has made no claims that he was caught in the act of intercourse with anyone of either sex.
Given the applicant’s lack of credibility and the range of responses he has given to the same question, the Tribunal is not satisfied that the applicant was charged with being ‘bisexual’. It notes that this is not a charge in Malaysia which formulates its charges much more precisely: men having sex with men, men having unnatural relations, etc. (See below at paragraph 36).
Nonetheless, the Tribunal is prepared to accept that the religious police made some charge against him under the morality laws given that they have ‘a range of powers depending on the syariah laws that apply in each state. Religious enforcement officers can detain and charge individuals to go before syariah courts for a range of reasons including indecent dress, alcohol consumption, … or for being in close proximity to members of the opposite sex’.[3]
[3] DFAT, Country Information Report: Malaysia, 24 June 2024, para. 5.9.
The Tribunal is prepared to accept that the applicant had to pay a fine imposed by the religious police. It does not accept that the applicant was sentenced to between three and ten years – later clarified as seven – years in jail with a flogging, to be alternatively met with a fine of [amount] ringgits. The Tribunal does not accept that the applicant had to pay a fine of [amount] ringgits or about $[amount]. The Tribunal rejects this claim on the independent evidence about fines for sexual offences in his home state of Selangor:
LAWS ON SAME-SEX CONDUCT:
Sexual relations between persons of the same gender. Any person who engages in a sexual act with another person of the same gender shall be guilty of an offence and shall be liable on conviction to a fine not exceeding two thousand ringgit or to imprisonment for a term not exceeding one year or to both. (Section 27).
Sexual intercourse against the order of nature. Any person who performs sexual intercourse against the order of nature with any man, woman or animal is guilty of an offence and shall be liable on conviction to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding three years or to whipping not exceeding six strokes or to any combination thereof. (Section 28).
Other “sexual offenses” consisting of consensual sex between adults: Selangor criminalizes “Sexual relations between persons of the same gender” and “Sexual intercourse against the order of nature” (undefined). [4]
The Tribunal notes the evidence that even the ‘worst’ offence within the category of same-sex conduct attracts a prison sentence not exceeding three years or a fine not exceeding 5,000 ringgits or a flogging of six strokes. The Tribunal rejects the applicant’s claim that he received a seven-year sentence AND a flogging OR a [amount] ringgit fine for a much lesser offence.
[4] Human Rights Watch, “I’m Scared to be a Woman”: Human Rights Abuses against transgender people in Malaysia, 2014, Appendix 1: Malaysia’s Shariah (Syariah) Laws on Sexual Orientation and Gender Identity, by State (Selangor) at >
The Tribunal rejects the applicant’s claim that he has suffered a serious or significant punishment in Malaysia for reason of an immorality offence, although the Tribunal will accept that he has been fined a lesser amount by the religious police for a breach of one of their rules. ‘Immorality’ as noted above at paragraph 32, applied to a number of aspects that were present at the party the applicant attended: loud music, dancing, alcohol, and the close proximity of men and women who were not married.
The Tribunal notes that the applicant’s family was aware that he had attended a party which attracted adverse attention from the authorities, and that he was fined for his participation in it. The family reacted to this by getting the applicant to ‘settle down’ and they found him a wife. The whole sequence of events suggests that the applicant as a young man from a conventional family was excited by the concept of a party at which there was music, alcohol, dancing and the presence of single men and women. The applicant said he had been invited by a friend and had attended perhaps a couple of parties before the one which was raided. He has never attended another such party nor has he seen the friend who invited him. It was a chapter in his life, a rite of passage – not a commitment to an alternative lifestyle involving homosexual sex.
The Tribunal notes that the applicant has no claims, nor does the evidence suggest, that he has pursued homosexual desires in either Malaysia or Australia. He has, on the other hand, lived a married life as a husband of a woman for three years in Malaysia without problems.
Membership of a particular social group
For the applicant’s claim to succeed, he needs to be a member of a particular social group in order to fear serious harm for one of the reasons set out in s 5J(1)(a) of the Act (given that he has not made claims about race, nationality, religion or political opinion). A particular social group, in the words of McHugh J, ‘is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle’. [5] The applicant claims he is gay or bisexual but he did not identify as such in Malaysia, he did not try and find other gay or bisexual men, he was not thought to be gay or bisexual by anybody else or teased or scorned for that reason. In Australia, he has not sought out the gay community even though it is open for him to do so without fear of punishment. In eight years, he has had perhaps four sexual encounters (with gender unspecified persons).
[5] Applicant S v MIMA (2004) 217 CLR 387 at [69].
On all the evidence before it, the Tribunal is not satisfied that the applicant is, and was in Malaysia, one of an identifiable group of persons set aside from other members of society and united together with a common characteristic. The Tribunal is not satisfied that the applicant is a member of a particular social group constituted by gay or bisexual men in Malaysia. This does not preclude his having a one-off same-sex encounter. However, the Tribunal is not satisfied that in the case of the applicant, homosexuality is a characteristic that is fundamental to his identity or conscience and one that he would have to struggle to hide to avoid persecution. The Tribunal notes that he has always lived without identifying as a homosexual, or without others perceiving him to be such, and therefore he does not have to modify his behaviour specifically to avoid persecution.
The Tribunal is not satisfied that serious harm has befallen the applicant in the past for reason of membership of this group. It is not satisfied that there is a real chance that serious harm will befall the applicant in the reasonably foreseeable future in Malaysia for reason of membership of a particular social group constituted by gay or bisexual men in Malysia, or for any other reason. It follows that the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in the reasonably foreseeable future for any of the reasons set out in s 5J(1)(a). He does not meet the definition of refugee in s 5H(1).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion. For the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm. The Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk he will suffer significant harm. 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.
Hearing: 8 August 2025
Representative: Mr Siddique Abu (not present at hearing).
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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