2204564 (Refugee) - [2025] ARTA 1571

2204564 (REFUGEE) [2025] ARTA 1571 (11 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2204564
Tribunal:General Member S Fitzsimons
Date:11 June 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review

Statement made on 11 June 2025 at 11:20am
CATCHWORDS
REFUGEE – protection visa – Thailand – political opinion – anti-monarchy/pro-democracy – membership of group and participation in protests – targeted by authorities and subject of arrest warrant – consent to decision without hearing – no corroborating evidence of activities or past harm – no evidence of social media activities in Australia – country information – group now less prominent – people no longer active not at risk of harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 348A(1)
Administrative Review Tribunal Act 2024 (Cth), ss 3, 55, 106(3)
Migration Regulation 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIMIA v VSAF of 2003 (2005) FCAFC 73
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 25 March 2022 to refuse to grant the applicant a protection visa under s65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The issues to be determined in this case are whether the applicant meets the criteria in s36(2) of the Act either as a refugee or under the complementary protection provisions.
BACKGROUND
The applicant was born on [Date]. He states he is a Thai citizen, that he is ethnically Thai and he is Buddhist. He was born in the Mae Chan district of Chiang Rai province in Thailand.
In his protection visa application the applicant stated that he came to Australia as a student [in] August 2018. The applicant lodged his application for a protection visa on 12 November 2020. His protection claims, which related to his pro-democracy beliefs and membership of the Red Shirts, were contained in his visa application form and in a typed letter dated 5 September 2020 the applicant provided with his protection visa application. The applicant also provided a copy of his Thai passport and Thai national identity card to the delegate. The applicant was not offered an interview by the delegate.
The delegate decided the applicant was not a refugee nor owed complementary protection because the delegate was “not satisfied that the applicant is considered by the Thai authorities or government to be a high-level political opponent, political activist or renown human rights defender or that they have been involved in political activities against the Thai government which would cause them to be persecuted by the authorities or any other groups in Thailand.”[1]
[1] The decision record of the delegate of the Department of Home Affairs, which on the Tribunal file has document ID: 9685897, page 8.
The applicant has declined the Tribunal’s invitation to a hearing, and he has requested that the Tribunal make a decision without holding a hearing.
PROCEDURAL CONSIDERATIONS
Has the Tribunal fulfilled its obligation under s55 of the Administrative Review Tribunal Act?
Before proceeding to make a decision under s106(3) of the Administrative Review Tribunal Act 2024 (“the ART Act”), the Tribunal must be satisfied that the applicant has been given a reasonable opportunity to present his case to the Tribunal.[2]
[2] s55 of the Administrative Review Tribunal Act 2024.
On 17 April 2025 the Tribunal wrote to the applicant advising that his case was being prepared for constitution to a Member and invited the applicant to complete a pre-hearing form with further detail of his protection claims. The applicant responded by email on 24 April 2025 by sending the Tribunal his completed pre-hearing form and a letter explaining his fear of harm in Thailand on the basis of his political opinion because of his pro-democracy views and support for the “Red Shirts” movement and a second (and new) aspect of his political opinion being his claimed of the Thai Monarchy.
On 29 May 2025 the applicant was sent a hearing notice inviting him to attend a hearing scheduled for 30 June 2025. The hearing notice invited the applicant to provide any further material in relation to his protection claims.
On 29 May 2025, at 4:40pm the Tribunal received an email from the applicant with his completed hearing notice attached to the email. The applicant declined to attend a hearing and requested that a decision be made in the absence of a hearing. The applicant did not provide any additional information or evidence to support his protection claims.
At the applicant’s request, the Tribunal cancelled the hearing. On 30 May 2025, the Tribunal wrote to the applicant and advised of receipt of his request for a decision in the absence of a hearing and confirmed cancellation of the hearing.[3] The letter from the Tribunal advised the applicant that the “reason the Tribunal invited you to a hearing is because the Tribunal is unable to make a decision in your favour, based on the information currently before it. Accordingly, a hearing was listed to allow you to provide further information in support of your application for review.” The Tribunal’s letter invited the applicant to ask for the hearing to be rescheduled if he so chose and if so requested that the applicant contact the Tribunal on or before 6 June 2025. The letter requested that if the applicant wished to provide further information in support of his review application, to send his evidence and/or submissions to the Tribunal by 6 June 2025. The applicant did not respond to the Tribunal’s letter.
[3] On the Tribunal file the Tribunal’s letter has document ID: 15666781.
The Tribunal is satisfied on the basis of the lack of any further information attached to the applicant’s email of 29 May 2025, and his nonresponse to the Tribunal’s letter of 30 May 2025, that the applicant does not wish to provide further material in relation to his protection claims. The Tribunal is satisfied that it has afforded the applicant a reasonable opportunity to present his case to the Tribunal and therefore s55 of the ART Act is fulfilled.
Should the Tribunal reach a decision without holding a hearing?
The Tribunal may make a decision without a hearing if all three components ((a), (b) and (c)) of s106(3) of the ART Act are satisfied. Section 106(3) states:
This subsection applies if:
(a) the only parties to the proceeding are the applicant and a non-participating party to the proceeding or the hearing of the proceeding; and
(b) either:
(i) the decision is wholly in favour of the applicant; or
(ii) the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding; and
(c) it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The parties in this case are the applicant and the Minister, who is a non-participating party[4] and so s106(3)(a) of the ART Act is met.
[4] s348A(1) of the Migration Act 1958.
In this case s106(3)(b)(i) is not relevant. Section 106(3)(b)(ii) requires that “the applicant requests the Tribunal to make its decision without holding the hearing of the proceeding.”
On 29 May 2025 the Tribunal sent the applicant a notice inviting him to appear at a hearing scheduled for 30 June 2025. On 29 May 2025, an email from the applicant’s email address was sent to the Tribunal with a completed hearing notice attached. In Part 1 of the form the applicant was asked if he will participate in the hearing (yes or no). The applicant placed a cross in the box that states “No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing.”
The email from the applicant attaching the completed hearing notice stated: “Dear officer, Thank you for your email. I have decided that I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing. Thank you for your understanding and consideration. Yours sincerely, [the applicant].”[5]
[5] On the Tribunal file the applicant’s email and hearing response has document ID: 15659208.
The Tribunal is satisfied that the email address used to send the completed hearing notice is the same as the applicant’s authorised email address. The Tribunal considers that the wording in the applicant’s email of 29 May 2025 requesting to proceed to a decision without a hearing (as detailed above) is clear and unambiguous and therefore s106(3)(b)(ii) is met.
The third component of s106(3) that must be satisfied before the Tribunal can determine a matter in the absence of a hearing is whether it appears to the Tribunal the issues for determination can be “adequately determined.” This first requires identification of what are the issues to be determined, before then considering if it appears to the Tribunal those issues can be adequately determined.
The issues in this case are whether the applicant is either a refugee or owed complementary protection as set out in s36(2) of the Act. To determine whether s36(2) is met (or not) the Tribunal, conducting a merits review[6] stands in the shoes of the Minister. This requires the Tribunal to consider and determine the issues fresh. To consider afresh whether the applicant meets the provisions of s36(2), the Tribunal is required to reach a level of satisfaction[7] about whether the applicant’s protection claims have been made out.
[6] Administrative Review Tribunal Act 2024, s3.
[7] See Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 (2005) FCAFC 73, 16-19.
“Adequately determined” is not legally defined. In relation to s106(3)(c), the Explanatory Memorandum to the Administrative Review Tribunal Bill[8] relevantly states: “In all of the above circumstances, the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties.”[9] The Explanatory Memorandum also relevantly states that “[t]his clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing.”[10]
[8] Accessible online:
[9] bid, at paragraph 670.
[10] Ibid, at paragraph 671.
The Tribunal has before it a copy of the applicant’s expired Thai passport, his current Thai passport, his Thai national identity card, his protection claims in his visa application and further information from the applicant in relation to his protection claims sent to the Tribunal on 24 April 2025. On this basis, it appears to the Tribunal that it can adequately determine if the applicant meets s36(2) of the Act. Section106(3)(c) is met.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s36 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 s36(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: s5H(1)(a).
Under s5J(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 ss5J(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 s36(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: s36(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 ss36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s499 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 issues to be determined in this case are whether the applicant is owed protection as a refugee or under the complementary provisions of s36 as above. For the Tribunal to determine those issues, the Tribunal is first required to make relevant findings of fact regarding the protection claims put forward by the applicant and to then secondly to apply those facts to the law.
The applicant’s protection claims relate to his political opinion because of his support for the “Red Shirts” movement and because of his criticism of the Thai Monarchy and Section 112.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
What is the Applicant’s Nationality and Receiving Country?
The applicant stated he is a citizen of Thailand. As the delegate did not have any concerns regarding the applicant’s identity and as the Tribunal has before it a copy of the applicant’s Thai national identity card, and his expired and current Thai passports, the Tribunal accepts on the material before it that the applicant is a Thai citizen. In his visa application, the applicant stated that he is not a citizen of any other country and that he does not have a right to enter or reside in a third country which the Tribunal also accepts. The Tribunal finds that he is a citizen of Thailand and has assessed his protection claims with Thailand as the receiving country.
Assessment of the Applicant’s Protection Claims
Fear of Persecution by reason of his political opinion – pro-democracy/Red Shirt membership
In his protection visa application the applicant claimed that: “On 24 May 2014, it has the Coup by Thai Military govern to the nation declared martial law. I had been a member as called "Red Shirts " group to requirement the completed democracy system under the Kingdom of Thailand. I had participated the Anti-Coup in public places. So, I was received the arrest warrant from military court.”[11] He claimed he believes in democracy and freedom of expression which are not values upheld by the Thai government. He claimed he did not experience harm in Thailand but that it was not safe for him because the election system in Thailand is corrupt and unfair and that he believes he will not be treated fairly by the military court.[12] The applicant provided a letter[13] with his protection visa application that claimed he had been a member of the Red Shirts and he had participated in an anti-coup protest that resulted in him receiving an arrest warrant from the Thai military.
[11] The applicant’s protection visa application Departmental file number is: [Reference 1] and the Department Reference ID for the decision record is: [Reference 2]. The applicant’s Form 866 on the Department file, page 11.
[12] Ibid, page 12.
[13] The applicant’s letter is dated 5 September 2020.
In his letter dated 24 April 2025, the applicant maintained the claims in his protection visa application and he claimed that he was “targeted by the Thai military authorities and issued an arrest warrant by the military court.”[14] He also claimed that claimed that he continued his political activity once he was in Australia as he has posted his criticism of the anti-democratic nature of the Thai government on [Social media 1 and 2] and that these posts were done in his own name.
Fear of Persecution by reason of his political opinion – his opinion of the Thai Monarchy and Section 112
[14] The applicant’s letter to the Tribunal dated 24 April 2025.
In his letter dated 24 April 2025, the applicant expanded on his claim of a fear of harm based on his political opinion because he claimed that once in Australia, he continued his political activity by posting not only his criticism of the Thai government but also his criticism of the Thai Monarchy and opposition to Section 112 on [Social media 1 and 2] and that these posts were done in his own name.
The applicant claimed that “some of my posts include commentary criticizing the Thai monarchy’s influence on politics… As someone with an arrest warrant and as a known critic of the government and monarchy, I fear being arrested at the airport on arrival. I fear being charged for my online activity and subjected to indefinite detention or an unfair trial.”[15]
[15] The applicant’s letter to the Tribunal dated 24 April 2025, which on the Tribunal file has document ID: 15299027.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal has considered the applicant’s protection claims, which the Tribunal considers comprises of two integers (pro-democracy and anti-monarchy/section 112) of his political opinion, individually and cumulatively. For the following reasons the Tribunal has concluded that there is not a real chance that the applicant would be persecuted[16] because of his political opinion if he returns to Thailand.
[16] s5J(1)(b) of the Migration Act 1958.
The applicant claimed that after the 2014 coup, he became a Red Shirt member and attended protests (plural) against military rule. The applicant left Thailand in 2018. He has not provided any corroborating evidence that in those four years, he was arrested by the military nor that he was issued with an arrest warrant. He has not provided detail about how many protests he attended, or when and where or what happened at those protests. He has not provided evidence of his Red Shirt membership, such as a membership card. His claims are vague and lack detail about the location, date, and circumstances of the claimed arrest and warrant. The applicant also claimed that he was “targeted” by the military. He has not provided an explanation of how, when and where he specifically was targeted by the military. Accordingly the Tribunal is not satisfied that he has been and is a Red Shirt member, and the Tribunal finds that he was not arrested, that he was not issued with an arrest warrant by the military and that he was not ever targeted by the military.

The applicant claimed he has, since he has been in Australia, posted his pro-democracy views on [Social media 1 and 2]. He has not provided detail of the content of his claimed posts on either platform nor has he provided copies of those posts. Accordingly the Tribunal finds the applicant has not ever posted his pro-democracy opinions on [Social media 1 or 2] and that he does not have a public profile for his claimed pro-democracy views that would draw him to the attention of authorities.
Country information indicates that:
“While significant numbers of Thais still identify as Red Shirts, the movement is now much less prominent than in the past. Red Shirts played a limited role in the 2019 election, 2020-21 protests, and the 2023 election. Most in-country sources said that authorities no longer harassed or monitored Red Shirt supporters, especially if they were no longer politically active. Although DFAT is aware of isolated reports of active Red Shirt supporters being harassed or monitored by local authorities, DFAT is not aware of specific cases, and has no evidence to suggest such treatment is centrally directed or widespread…
DFAT assesses that people associated with the Red Shirt movement who are no longer politically active are not at risk of official discrimination or violence. DFAT assesses that prominent Red Shirts who remain politically active are at low risk of official discrimination, in the form of possible monitoring or harassment by local authorities.”[17]
[17] DFAT Country Information Report Thailand – 18 December 2023, paragraphs 3.39 and 3.40, page 18.
Considering the country information quoted above, and as the Tribunal has found that the applicant does not have public profile for his claimed pro-democracy views that would draw him to the attention of authorities, the Tribunal is not satisfied there is a real chance that the applicant would be persecuted because of his political opinion, specifically, his membership of the Red Shirts and his claimed pro-democracy opinion if he returned to Thailand now or in the reasonably foreseeable future.
The applicant claimed he has publicly criticised the Thai Monarchy and opposed Section 112. He does not explain in his letter what his critical views of the Thai Monarchy are, or how he has opposed Section 112, nor does he explain the content of his claimed social media posts. For these reasons the Tribunal does not accept that the applicant actually holds an opinion critical of the Thai Monarchy or of Section 112. The applicant also claimed he has, since he has been in Australia, posted critical commentary about the Thai Monarchy on [Social media 1 and 2]. He has not provided detail of the content of his claimed posts on either platform, nor has he provided copies of those posts. For these reasons, the Tribunal does not accept that he has ever posted any commentary critical of the Thai Monarchy on [Social media 1 or 2]. As the Tribunal does not accept that he holds an opinion critical of the Thai Monarchy or Section 112, or that he has in the past posted content critical of the Thai Monarchy or Section 112 on social media, the Tribunal does not accept on the material before it, that the applicant would post content critical of the Thai Monarchy or Section 112 in the reasonably foreseeable future.
The applicant claimed he is known critic of Thai military rule and of the Thai Monarchy and as a result he will be arrested upon arrival in Thailand and prosecuted. He has not explained how he knows he has a public profile as a critic of military rule or of the Thai Monarchy (for example whether he has been threatened or questioned in the past because of his claimed public profile). He stated in his protection visa application that he did not experience harm in Thailand. He has not provided any detail as to whether he did experience harm in the past and if so whether this was because of his claimed public profile. Based on country information,[18] the Tribunal reasonably expects that an individual with a known public profile critical of the Thai Monarchy, as the applicant claimed, would have been approached, questioned, arrested and/or detained by the Thai government and in the absence of this evidence, as is the case, the Tribunal does not accept that the applicant is a known critic of the Thai Monarchy or of Section 112, or that he has a public profile that would draw him to the attention of the Thai government as a person who holds a political opinion critical of the Thai Monarchy or Section 112.
[18] Ibid, under the heading of “Critics of the Monarchy” pages 15 to 17, particularly paragraph 3.28.
On the material before it, the Tribunal is not satisfied the applicant actually holds an opinion critical of the Thai Monarchy or that he is a known critic of the Thai Monarchy or of Section 112. The Tribunal has found that the applicant has not posted commentary critical of the Thai Monarchy or Section 112, and also found that the applicant will not do so in the reasonably foreseeable future, and for these reasons, the Tribunal is not satisfied there is a real chance that the applicant would be persecuted because of his political opinion, specifically, his criticism of the Thai Monarchy and his opposition to Section 112 if he returned to Thailand now or in the reasonably foreseeable future.
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 s36(2)(aa).
Section 36(2)(aa) states that there must be a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test[19] applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s5J(1)(b) of the Act.[20]
[19] MIAC v SZQRB (2013) 210 FCR 505.
[20] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
As the Tribunal is not satisfied on the material before it that there is a real chance that the applicant will be persecuted on return to Thailand by reason of his political opinion (both in relation to his criticism of the Thai government and the Thai monarchy) it follows that there is not a real risk of the applicant suffering significant harm. The applicant therefore is not owed complementary protection under s36(2)(aa).
CONCLUSION
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 s36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
There is no suggestion that the applicant satisfies s36(2) on the basis of being a member of the same family unit as a person who satisfies s36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  N/A
Representative for the Applicant:   N/A
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…