2203526 (REFUGEE) - [2024] ARTA 60

DECISION AND
REASONS FOR DECISION
2203526 (REFUGEE) [2024] ARTA 60 (15 NOVEMBER 2024)
Representative: Mr Owen Harris
Respondent:Minister for Home Affairs

Tribunal Number: 2203526
Tribunal:Rosa Gagliardi
Date:15 November 2024

Place:Australian Capital Territory
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s.36(2)(a) of the Migration Act.

Statement made on 15 November 2024 at 1:04pm
CATCHWORDS
REFUGEE – protection visa – Brazil – recruited as drug courier by crime gang, then turned informant – vague and inconsistent claims and limited documentary evidence as to extent of information provided – profile as person perceived to have knowledge of operations and contact with authorities – country information – organised crime and official corruption – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 4 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 Brazil (a matter the Tribunal accepts) applied for the visa on 29 November 2019. The delegate refused to grant the visa on the basis that the applicant had not provided detailed information to substantiate his claims. It appears that at the time of application the applicant was not represented.
The applicant appeared before the Tribunal on 30 September 2024 and on 13 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s solicitor in Brazil who has assisted the applicant obtain official documentation from the Brazil authorities. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages.
The applicant was represented in relation to the review.
BACKGROUND
At the time of application, the applicant claimed to have been recruited as a drug mule by [Gang 1] a powerful organised crime gang active in South America. The migration agent has posited that [Gang 1] acts in concert with other major organised crime groups including aspects of the Italian mafia, including Hezbollah. The applicant argued that he never did participate in drug trafficking because he turned informant helping law enforcement agencies in Brazil, Europe, and Australia to undertake arrests and prosecutions and now [Gang 1] wants to kill the applicant.
Evidence before the Department
The applicant provided little evidence at the time of application to support his claims, save for material which reflected he had made contact with an Australian Federal Police Agent in Sydney, Australia, requesting to discuss matters relating to transnational crime from Brazil.
Evidence before the Tribunal
The applicant has now submitted a substantial amount of country information regarding the modus operandi of [Gang 1], including their activities as portrayed in the media. In addition, purported encrypted messaging app conversations are set out by way of transcripts showing the applicant having contact with who it is claimed are major drug operators in Brazil.
As recounted by the applicant, he grew up in a drug and crime family in Brazil and [Country 1], and his family lived in wealth from the proceeds of crime. When the applicant was a young boy, his parents were gaoled, their wealth confiscated, and the applicant developed a zealous desire to take on the cartels because he was concerned about the damage wreaked on families of drug users.
It is claimed that the applicant was [an occupation] in [City], Brazil and that he had been [working at] the house of a drug trafficker and because of the applicant’s facility with several languages, the trafficker considered the applicant a good candidate to be a drug carrier. The woman who lived at the house asked the applicant to take luggage to Australia and that they would take care of everything and would pay him AUD$30,000. The applicant having no funds accepted the offer. When it was his time to take the flight with the luggage to Australia, a Visitor visa was organised for him, and he was to stay in Sydney. The applicant contacted the police in Brazil and provided them with the pickup point for the illicit substances such that as a result of the applicant passing such intelligence, persons were arrested. The applicant considered it astute to leave Brazil on the Visitor visa that had been organised by the traffickers.
The applicant claims that when he got to Australia, he was destitute (because the drug operations he informed on did not materialise in payment), did not know anyone, did not speak the language and feared for his life. He was frustrated that he was not believed and that in his view appropriate action was not taken by the Australian Federal Police (AFP).
While in Australia it is claimed that the applicant had a second job offer by another cartel and the applicant accepted. It is claimed that this offer had an association with [Gang 2]. The job was arranged for mid-December 2019. At this time the applicant was messaging Delgacia Estadual de Investigacoes Criminais (DEIC) to inform on the location of the meeting point to the police, while simultaneously stalling the trafficker. The applicant then fed the location of the trafficker and details of the car of the trafficker to police, and the trafficker was captured, it is claimed, in [State 1, Brazil] where the [Gang 2] has a strong presence. An internal police article has been submitted to demonstrate the details of the capture, depicting the luggage with a hidden compartment containing cocaine, and the two pistols found at the trafficker’s home.
The applicant then received messages asking why the luggage had not been delivered as suspicions were aroused about the applicant’s true intent. The applicant argues that he was threatened with death by the criminals from Brazil.
It is further claimed that as a result of the applicant’s informant activities more than ten people have been imprisoned.
In an email after the hearing the applicant told the Tribunal that he considered he also had political claims to make because he was a supporter of the former President Jair Bolsonaro who was not supportive of drug cartels and their activities in Brazil.
The applicant has submitted evidence of his contact with the public prosecutor’s office in Brazil and the police there as well as with the AFP. The applicant requested the Tribunal summons every contact and information held by the AFP in terms of its interaction with the applicant. This resource-intensive exercise produced very little in terms of evidence (other than his interactions with the police about other matters). None of the material summonsed demonstrates that the applicant had provided the AFP or any other agency with significant information that resulted in the disruption of major transnational organised criminal activity or that he was considered an informant of high value to Australia’s law enforcement agencies.
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
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a rson claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
A significant number of submissions have been made to the Tribunal in this matter with the admission that much of the evidence presented is ‘circumstantial’. In effect, the Tribunal has an abundance of evidence that the applicant has approached the authorities in both Brazil and Australia regarding organised criminal activity, with the authorities providing mixed responses to the applicant’s exhortations, particularly in Australia. As the Tribunal put to the applicant on numerous occasions, while it accepts that he has been prolific in his approaches to law enforcement agencies across countries, the Tribunal has no specific information which would point to the intelligence provided by the applicant being instrumental in multiple arrests and disruption of the drug trade transnationally, such that seriously dangerous drug cartels would want to kill him.
The Tribunal accepts that corruption in the police and law enforcement generally in Brazil is rife and that it would be unwise to compare the legal environment in Brazil with that in Australia. As reported by Freedom House:
Corruption is endemic at top levels, and governmental transparency has decreased in recent years, contributing to widespread disillusionment among the public.
…
Between 2014 and 2021, an investigation known as Operation Car Wash focused on bribery, money laundering, and bid-rigging involving state oil company Petrobras and private construction companies. However, a series of investigative reports known as the Car Wash Leaks, published by the Intercept Brasil in 2019, exposed an improper relationship between Sergio Moro – a judge who later became a Bolsonaro-era justice minister and won a Senate seat in 2022 – and federal prosecutors. The Supreme Court annulled the convictions in 2021.
…
[1] ‘Freedom in the World 2024’, Brazil, Freedom House, Brazil: Freedom in the World 2024 Country Report | Freedom House.
While in office, the Bolsonaro administration used a “secret budget”, an opaque system of financial grants that routed billions of reais through a rapporteur. Observers criticized the arrangement, allowed lawmakers to receive added funding in exchange for backing the administration without transparency oversight. In late 2022, the Supreme Court ruled the arrangement unconstitutional. However, some of these “secret budget” grants were still implemented under Lula in 2023, though to a lesser extent than under Bolsonaro.[1]
Further, while there had been efforts to deal with the problem of corruption it seems that more recently efforts have faded [2]:
Despite a wave of headline-making corruption cases, the hard truth is that most Latin American governments have regulated anti-graft measures to a lower priority in recent years, while voters have been less active and mobilized around the issue. With a few exceptions – as in Guatemala late August – anti-corruption pledges no longer define Latin American elections.
This is especially true in the region’s two most populous countries, Brazil and Mexico, which last decade showed glimpses of hope through high-profile corruption investigations such as Operation Car Wash. Yet, more recently, they have struggled with entrenched corruption and limited political will to tackle related issues. Over the past five years, both countries have faced a particularly troublesome road in the fight against corruption as measured by the Capacity to Combat Corruption (CCC) Index, co-published by Control Risks and Americas Society…
…
[2] ‘In Mexico and Brazil, Anti-Corruption Efforts Seem to Have Faded’, Marina Pera and Valeria Vasquez, 28 August 2024, Americas Quarterly, CCC Index,
[3] ‘In Mexico and Brazil, Anti-Corruption Efforts Seem to Have Faded’, Marina Pera and Valeria Vasquez, 28 August 2024, Americas Quarterly, CCC Index,
Since the CCC Index was launched in 2019, the region’s trajectory in the anti-corruption environment has been under strain. Attention has shifted to other issues, such as the COVID-19 pandemic and the subsequent economic recovery, rising crime, and in some cases, democratic backsliding. Recent corruption events highlight troubling trends, from accusations that high-profile investigations are politically motivated to key appointments that risk derailing anti-corruption efforts.[3]
In such environments the Tribunal can well understand that transparency of police operations is lacking and documentation of those involved in such operations might not be forthcoming. Hence, the Tribunal cannot place significant weight on the lack of evidence that the applicant had been a high (or otherwise) value informant to the police. Nonetheless, the Tribunal is troubled that no law enforcement authority in either Brazil or Australia has been able to clearly substantiate the applicant’s claims that the applicant has provided intelligence as a result of his communication with drug cartels which led to the disruption of global drug trafficking, or that the applicant is a prized witness who needs protection from vengeful drug lords or traffickers.
The Tribunal appreciates that it is not dealing in absolutes and that an applicant does not need to corroborate their claims to be believed and that the bar to being believed should not be set unrealistically high. Nonetheless, had the applicant been of such assistance to the authorities globally or in a less restricted way, the Tribunal finds it difficult to reconcile the applicant’s statements that he was instrumental in securing prosecutions, with a lack of preparedness by any authorities in Brazil or Australia or anywhere else to make a statement or support the applicant’s claims that he requires protection from drug traffickers because of his assistance to law enforcement authorities.
The Tribunal has had regard to the applicant’s legal representative’s evidence at hearing over the phone from Brazil, but his evidence was largely based on what the applicant had recounted to him and his opinion that the applicant would face serious harm on return to Brazil by drug traffickers was based on the applicant’s recounting of the work he claims he had undertaken for underworld criminals. The lawyer appeared highly motivated to help the applicant, but he did not purport to have firsthand knowledge of the applicant’s circumstances and his history of claimed cooperation with drug traffickers. The Tribunal therefore places some, albeit limited, weight on the lawyer’s testimony.
The applicant has submitted photos of arrests of individuals and the Tribunal accepts these are genuine media articles, but again these documents do not specifically point to the applicant having had any role in such arrests, and the Tribunal finds that of themselves they do not convince the Tribunal of the applicant’s account that his efforts have brought down ten or more drug traffickers across the globe.

At hearing the Tribunal expressed the view that in terms of the documentation submitted regarding his encrypted chats with drug criminals in Brazil and elsewhere, it was not discounting it, however, it was not persuasive evidence because the provenance of such transcripts is not verifiable. The Tribunal is not saying that the applicant has engaged in fraudulent conduct by manufacturing such transcripts, however, of themselves the Tribunal has doubts that they reflect the applicant having infiltrated criminal organisations to inform on them.
The Tribunal is left with doubts about the applicant’s claimed key role in assisting to dismantle drug operations directly because of the applicant’s role as an informant in Brazil and Australia and elsewhere. The Tribunal has too many questions about the applicant’s role to be satisfied that he has been a key witness in any arrests or prosecution involving vengeful criminal elements who want retribution for the applicant having betrayed them to disrupt their profitable drug enterprises.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal’s unresolved findings do not detract, however, from the fact that the applicant has had dealings with law enforcement and is perceived as someone who is in frequent communication with them, and purports to have knowledge about organised crime syndicates in Brazil and elsewhere. The evidence clearly shows that regardless of any response by the authorities, the applicant has contacted the police and public prosecutor’s office in Brazil and the AFP in Australia. While the Tribunal has not been able to determine the value of the applicant’s intelligence and how far reaching it might have been, the Tribunal does accept that for all intents and purposes he would be perceived by drug syndicates as someone who has had extensive liaison with the authorities, and someone who presents a threat to their operations. Drug dealers would not know the extent of the applicant’s cooperation with the authorities and whether he had any real knowledge to impart about their operations. The applicant has been open about his approaches to the police in Brazil and the public prosecutor’s office (DIEC) and there has been no effort by him to act surreptitiously so as not to come to the attention of crime syndicates. The applicant has provided persuasive evidence from the authorities showing that he has been in contact with them about drug trafficking matters.
The Tribunal is satisfied, therefore, that the applicant has built a profile as someone who cooperates with the police and could be undermining their activities through the provision of intelligence.
The question for the Tribunal is whether someone with the applicant’s profile and member of the particular social group - perceived police informant – (whether an actual informant or not), would attract serious harm from criminal gangs whose business is to ensure uninterrupted transport of drugs for a profit around the world:
The main empirical evidence in studies on the subject concerns the systemic dimension of the drug-violence relationship (Boyum et al., 2011; Beckert 2013). These studies draw attention to the development of a market that trades in products which are considered illegal and thereby define this market as a whole as illegal; state institutions do not support trade within such a market. As a result, the disagreements and conflicts that emerge in its dynamics tend to be settled through the use or threat of physical force, as mentioned above. In this regard, the use of firearms becomes commonplace among drug dealers as a strategy to boost their reputation among competitors and customers. Homicides tend to become a regular means of both conflict resolution and, consequently, of power assertion in this type of illegal market (Boyum et al., 2011); this is because in illegal markets, problems related to the value of goods, to competition between suppliers, and to cooperation between economic actors have specific contours conductive to the outbreak of violence as compared to within legal markets. In other words, the construction of social order in local illegal markets has singularities that inevitably lead to a context of violence (Beckert, 2013).
…
[4] ‘Homicide and Drug Trafficking in Impoverished Communities in Brazil’, Elenice De Souza Oliviera, Montclair State University, Baulio Figueiredo Alves da Silva, Federal University of Minas Gerais, Flavio Luiz Sapori, The Pontifical Catholic University of Minas Gerais, Gabriela Gomes Cardoso, Federal University of Minas Gerais, Montclair State University, Department of Justice Studies Faculty, 9 October 2020, Homicide and Drug Trafficking in Impoverished Communities in Brazil.
It should be noted that it is not a matter of stating that violence is the routine pattern to induce cooperation between the actors involved in the illegal drug market, but rather that the violence represented by homicides is a high-cost resource that can be triggered by the real possibility of betrayal or non-fulfillment of what was agreed in a given contract or "transaction." Thus, in this scenario, homicides are a commodity of guarantee and predictability in the business dynamic in the event that a contract is breached.[4]
Another driver of the successful operations of organised crime and the drug trade is that the community remain silent about its activities and do not affiliate with law enforcement authorities. Organised crime operates via intimidation of the community and retaliation, often by death, of those who challenge the secretive structures of criminal enterprises, and these tactics are meant to silence individuals from sharing information, testifying, or cooperating with law enforcement agencies.[5] Organised crime syndicates operate under strict codes of silence, and breaking this code has severe consequences.[6]
[5] ‘Breaking the Syndicate’s Silence: Speaking Out Against Organised Crime’, FasterCapital, Breaking the Syndicate's Silence: Speaking Out Against Organized Crime - FasterCapital.
[6] Ibid.
In contacting the authorities, the applicant would be seen as having broken the code of silence. Even if the applicant had no information to provide the authorities (and the Tribunal does not make a definitive finding on this matter), in dealing with the law the applicant would have been thought to have threatened to disrupt drug cartels’ operations.
In terms of standing of [Gang 1], at least 27 gangs are active in Brazil according to security and intelligence agencies, and [Gang 1] is the largest with control of over 90 percent of the prison population, with infiltration into other South American countries, including Colombia.[7] The [Gang 1] pressure and influence on the decisions of the political system has increased to alarming levels. In April 2016 when the government of the State of Ceara planned to install systems for blocking telephone communication in prisons, the PCC left a car with 29 pounds of explosives parked in front of the legislature building in the city of Fortaleza.[8]
[7] [Source deleted].
[8] Ibid.
The strength of [Gang 1] can also be attributed in part to the recruitment of trained demobilized Revolutionary Armed Forces of Colombia (FARC).[9] Reports indicate that [Gang 1] uses the banking systems of dozens of countries, including the United States for money laundering and Brazilian Federal Police have detected links with Hezbollah in drug trafficking operations.[10]
[9] Ibid.
[10] Ibid.
The Tribunal accepts, therefore, that as a result of the applicant’s interactions with the Brazilian, and to a lesser extent, the Australian authorities, the applicant has a subjective and genuine fear for his life were he to return to Brazil now or in the reasonably foreseeable future.
The test, however, also requires there to be an objective element to the applicant’s fear. The Tribunal accepts the applicant has developed a profile as someone with extensive interactions with Brazilian law enforcement authorities, even if drug syndicates are not to know how fruitful or otherwise such interactions might have been. On the strength of the country information regarding the ruthlessness of drug cartels in Brazil, the Tribunal is satisfied that there is a real chance the applicant will suffer serious harm for his perceived activities as a drug informant by [Gang 1], or other criminal outfits who would be threatened by the applicant’s perceived collusion and cooperation with Brazilian law enforcement authorities, in particular.
The applicant has also made weak claims that his support of former President Bolsonaro places him in jeopardy because Bolsonaro is seen as being anti-drug trafficking. The Tribunal des not consider, however, that the applicant has made out this claim in detail and given his absence from Brazil for a significant period, finds that on this basis alone, the applicant would not face serious harm on return to Brazil.
NB: It was evident at hearing that the applicant had strong reactions in speaking about drug trafficking and its harm to society in general, and that his fear for his life has left him with diminished coping mechanisms. He also expressed frustration that he considered he had been dismissed by the AFP. The Tribunal suggested the applicant seek assistance from a medical professional to assist him deal with his circumstances, even though he seemed reluctant to avail himself of any such help.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Member
Rosa Gagliardi

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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