2203737 (Refugee) - [2025] ARTA 1769

2203737 (REFUGEE) [2025] ARTA 1769 (1 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2203737
Tribunal:Rachelle Hampson
Date:01 July 2025

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

Statement made on 01 July 2025 at 9:32am
CATCHWORDS
REFUGEE – protection visa – India – religion/political opinion – member of banned Sikh student party – arrested, interrogated, tortured and warned – harassed and discriminated by members of Hindu nationalist party – consent to decision without hearing – responsibility to specify claims and provide evidence – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
2010120 (Refugee) [2025] ARTA 550
2203419 (Refugee) [2025] ARTA 1588
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 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 India, applied for the visa on 13 December 2017. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as provided for in ss 36(2)(a) or 36(2)(aa) of the Act.
The applicant applied to the Tribunal on 15 March 2022 for a review of this decision.
On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was sent a pre-hearing information form on 6 February 2025 and he replied to this form on 13 February 2025 outlining his personal particulars and his request for an interpreter. He has not added any further information regarding his claims for protection on this form where there is a box for such details to be added if needed.
On 16 May 2025 the applicant was invited to attend a hearing before the Tribunal set down for 18 June 2025. The applicant was sent an email on 26 May 2025 reminding him of this hearing invitation and the necessity of his response to this.
On 28 May 2025 the applicant responded to this hearing invitation form stating by crossing a box that he would not participate in the hearing and to request the Tribunal to make a decision on the papers without holding a hearing.
The Tribunal must now consider the following points:
(i)Should the Tribunal proceed to decide the matter without holding a hearing?
(ii)Does the applicant have a well-founded fear of persecution in relation to his home
country of India and meet the refugee protection provisions of the Act?
(iii)Does the applicant meet the protection obligations under the complementary
protection provisions of the Act?
(i Should the Tribunal proceed to decide the matter without holding a hearing?
The Tribunal for the following reasons has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)[1].
Did the applicant consent to proceeding without a hearing?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. In ss 106(3) (a) and (b) it is set out that the Tribunal may make a decision without holding a hearing in circumstances were the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.
Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship.
In this case, the applicant and the non-participating party (the Minister) are the only parties to the proceedings; and the applicant has requested a decision to be made without a hearing as he has ticked the response, ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed and signed ‘response to hearing notice’ form dated 27 May 2025. The Tribunal finds the applicant’s response is a clear and unambiguous[2] indication that he does not wish to attend a hearing and wishes the Tribunal to proceed to make a decision on the material before it. The Tribunal finds that the applicant has requested, consents to, the Tribunal making its decision without holding a hearing. The Tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the applicant?
[2] Ibid.
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025), when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that[3]:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal.[4]
[3] 2203419 (Refugee) [2025] ART (13 June 2025).
[4] Ibid.
The Tribunal notes the following chronology of interactions between the applicant and the Department and the Tribunal where he has had opportunities to present his case:
-The applicant lodged his protection visa application along with a statement with the department on 13 December 2017.
-On 5 November 2021 the applicant was invited to attend an interview with the delegate to further discuss his claims for protection. This interview took place on 22 and 23 November 2021.
-The applicant lodged an application for review with the then AAT on 16 March 2022.
-The applicant was sent a pre-hearing information form on 6 February 2025 to which he responded on 14 February 2025 outlining his personal particulars and his request for an interpreter. He has not added any further information regarding his claims for protection on this form where there is a box for such details to be added if needed.
-On 16 May 2025 the applicant was invited to attend a hearing before the Tribunal set down for 18 June 2025. This invitation included a hearing response form asking the applicant if he wished to attend the hearing or if he did not wish to do so did, he want the matter to be decided without a hearing being held. To which he did not respond.
-The applicant was sent an email on 26 May 2025 reminding him of this hearing invitation and the necessity of his response to this.
-On 28 May 2025 the applicant responded to this hearing invitation form stating by crossing a box that he would not participate in the hearing and to request the Tribunal to make a decision on the papers without holding a hearing.
-On 9 June 2025 the Tribunal acknowledged this request by email and agreed to grant the applicants request to determine the matter without a hearing.
The applicant, to date, has not provided any further information to the Tribunal regarding his application for review.
The Tribunal is satisfied that the applicant has had an opportunity to present his case and provide all the information, evidence and submissions that he considers important and relevant in support of his application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.
BACKGROUND
According to his protection visa application dated 13 December 2017, the applicant claims to be a [Age] year old national of India. He was born in [Town], Punjab, India. He claims his ethnicity is Indian and his religion is Sikhism.
He states he is single and never married and has no children. His parents reside in [Town], Punjab, India. He has provided no further information about his family on his application.
The applicant first arrived in Australia [in] November 2017 on a Temporary Activity visa (subclass 408).
Evidence before the Department
He applied for a Protection visa on 13 December 2017 and was granted a Bridging visa A (subclass 010) on 3 January 2018. The conditions on this visa were that he could only work for a sponsoring employer and must not become involved in activities that are considered disruptive or violent or threatening harm to the Australian community.
The applicant provided a personal statement along with his protection visa application and it is summarised below:
(i)   The applicant was born in Punjab, India.
(ii) The applicant has completed 12 years of schooling.
(iii) He became aware of the atrocities committed against Sikhs by the state and central government.
(iv)   During his schooling he became affiliated with the banned All India Sikh Student Federation (AISSF) despite his father’s objection.
(v) He became outspoken about the atrocities committed against Sikhs but was not in favour of using any violence as a means of creating separate states.
(vi)   He went to [Country] to avoid being followed by security agencies but missed his parents and returned in February 2017.
(vii) He again attended meetings of the AISSF and was arrested [in] August 2017 at his home and taken and interrogated and tortured for 4 hours by the Punjab Intelligence Branch.
(viii) After this arrest his father restricted his movements but he spoke to AISSF members by telephone and continued his work with the AISSF organising mini meetings and distributing leaflets.
(ix)   [In] August 2017 he attended a meeting at a friend’s house and police surrounded the house and 5 members were arrested.
(x) He escaped but police were looking for him everywhere. His father bribed police to stop arresting him and delete his name to allow him to leave the country.
(xi)   He claims he left India to save his life as the current BJP government has organised a special force to kill those affiliated with AISSF.
The interview with the delegate
24.On 5 November 2021 the delegate requested the applicant attend an interview              regarding his protection visa application. This interview occurred on 22 and 23 November 2021.
25.I have had regard for this interview and have summarised the pertinent points as follows:
(i)    The applicant stated a friend helped him with the protection visa application and he told the friend what he wanted to say but the friend completed the application and did not read it back to him.
(ii)   When the delegate read parts of the original application to the applicant, he said that information was incorrect and were not his claims. The applicant then went on to make new claims not previously included in his protection visa application.
(iii) The applicant told the delegate he was from a Sikh family and had been discriminated, harassed and ‘tortured’ by members of the Shiv Sena and the Rashtriya Swayamsevak Sangh (RSS) both right wing Hindu nationalist groups. He said this involved them pulling off his turban and untying his hair, hitting him and threatening to kill him. He said this would occur very often. He explained Shiv Sena see Sikh people as ‘terrorists’.
(iv) He said this was not only because he was from a Sikh family but also because he was a member of the Shiromani Akali Dal (SAD) party.
(v)   He said he was arrested four times during 2017 and one of those times he was taken to the police station and interrogated and ‘tortured’ for 3-4 hours about his association with this SAD party and told he should cut his hair to avoid being jailed. He was released with a caution but has no documents to evidence this. He said he did not receive any as it was a caution.
(vi) He said he was arrested 3 other times and each time was given a warning, not held in police custody and not taken to a police station.
(vii)He could not answer specific questions about his affiliation with SAD regarding why he follows the party, what had he been involved with over time or the tenets of the party philosophy apart from stating they do not believe in discrimination and treat women equally. He said he joined the party when he was at school and aged approximately [age] years old.
(viii)   He said he did not want to return to India and be harassed and ‘tortured’ by the Shiv Sena group and could not relocate anywhere else in India as it is all the same as a Sikh family.
Summary of the delegate’s decision
The delegate in their decision record, dated 4 March 2022 has had regard to extensive country information prepared by the Department of Foreign Affairs and Trade and other broader research regarding the lives of Sikh people living in Punjab and in India generally along with political information about the Shiv Sena party and the Shiromani Akali Dal (SAD) party and the points of disruption between the two. The delegate has also considered country information regarding being arrested and or questioned by police about political issues and the ability of the applicant to relocate in India in general with regard this.
The delegate has accept the applicant is a Sikh from Punjab and is a low level supporter of the SAD party and may have faced low level discrimination on occasions, because of his Sikh faith.
The delegate, however, did not accept the applicant’s claim he was attacked by the RSS and Shiv Sena groups or that he was arrested in 2017 and given 3 warnings in relation to altercations with Shiv Sena and was told by police to cut his hair and cease his involvement with the SAD party.
The delegate therefore concluded they were not satisfied the applicant was a refugee as defined by s 5H of the Act and as such not a person to whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate then considered if the applicant met the criteria for complementary protection as defined by s 36(2)(aa) of the Act and determined they were not satisfied the applicant was a person in respect of whom Australia had protection obligations as provided for by s 36(2)(aa) of the Act.
Evidence before the Tribunal
No further documents, or submissions relating to the applicant’s claims for protection have been provided to the Tribunal.
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.
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 applicant meets the criteria for the grant of a protection visa and is therefore someone to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country

The applicant provided a copy of his Indian passport to the Department. Given this and the fact the delegate did not indicate any issues with his identity claim or nationality the Tribunal accepts he is an Indian national and India is his receiving country for the purposes of assessing his protection claim.
(ii) Does the applicant satisfy the refugee criterion for protection?
To determine if the applicant satisfies the refugee criterion for protection the Tribunal must consider if there is a real chance of harm if the applicant were returned to their home area of the receiving country in the reasonably foreseeable future.
In considering this point the Tribunal has had regard for s 5AAA which asserts the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicants claims, or to establish or assist in establishing the claims. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant[5].
[5] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered firstly the claims for protection the applicant made in his protection visa application and later, at the interview with the delegate, which he retracted completely. The Tribunal like the delegate did not address these claims further as they have been fully retracted by the applicant as fictitious and incorrect and written at the hand of a friend of the applicant.
The Tribunal has secondly had consideration then of the new claims the applicant has made before the delegate during his interview with them. The applicants claimed he is a follower of the Sikh faith and is from the Punjab state in India and the Tribunal like the delegate accepts this claim.
The applicant claimed because of his Sikh faith he had been harassed and ‘tortured’ by members of the RSS and Shiv Sena Hindu nationalist groups that see Sikhs as ‘terrorists’. This harassment he claimed was in the form of them removing his turban and untying his hair. He said this occurred on one occasion but this is unclear as he referred to it in the interview on multiple occasions and the delegate was unable to determine any clear evidence of dates, locations and whether it occurred in another context or on multiple occasions. Therefore, the Tribunal is tasked with limited information and evidence about this claim and must rely on the information and evidence before the delegate as the Tribunal has not had the opportunity to hear from the applicant at hearing.
The Tribunal has considered the country information provided in the delegate’s decision record and accept the applicant as a Sikh has been subject to an event of discrimination with the deliberate removal of his turban and untying of his hair. The delegate refers to country information[6] which indicates the Sikh population in India as at the 2011 census was 20.8 million. Sikhism is the dominant religion in the state of Punjab (approximately 16 million) with significant populations in Haryana (1.2 million), Delhi NCR (570, 581), Rajasthan (872,930), Utter Pradesh (643,500) and Uttarakhand (295,530). The Tribunal notes updated country information[7] regarding this data still relies on the 2011 census statistics. It notes that Sikhs comprise around 55 percent of the population of Punjab and India’s constitution still incorporates Sikhism as a category of Hinduism which also includes Buddhists, Jains and Baha’i[8] but subsequent legislation clarifies they are separate religions[9]. The delegate also referenced the US Commission of International Religious Freedom(USCIRF)’s 2019 Annual Report which notes Hindu nationalist groups like RSS have staged a multifaceted campaign to alienate non Hindus or lower caste Hindus and this is a significant contributor to religious violence and persecution. It notes Sikhs are targeted by this campaign and the challenges faced range from acts of violence or intimidated to loss of political power and feeling disenfranchised and limits to basic necessities.
[6] ‘DFAT Country information Report India’, Australia: Department of Foreign Affairs and Trade (DFAT), 10 December 2020
[7] DFAT Country information Report India’, Australia: Department of Foreign Affairs and Trade (DFAT), 10 December 2020.
[8] Delegate’s decision record of 4 March 2022 quoting: ‘International Religious Freedom Report for 2019- India’, US Department of State, 10 June 2020, Section II, pp6-7.
[9] Ibid, pp6-7.
The Tribunal has considered all of the evidence available to it which it acknowledges is limited to that presented to the delegate, and is not satisfied there is a real chance of the applicant being harmed by any person or group or by Indian authorities on the basis of his religion as a Sikh and/or his involvement in the SAD party or any other reason claimed either individually or cumulatively, should he return to India, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for 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).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that he will suffer significant harm.
As considered above in paragraphs 39 to 46 the Tribunal is not satisfied there is a real chance of the applicant being harmed by any person or group or by the Indian authorities on the basis of his religion as a Sikh, his past experiences and low level affiliation with the SAD party or for any other reason he has claimed, either individually and/or cumulatively, should he return to India in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion and as such the Tribunal is not satisfied there are substantial grounds for believing the applicant as a necessary and foreseeable consequence of him being removed from Australia to India there is a real risk that he will suffer significant harm.
For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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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