2205998 (Refugee) - [2025] ARTA 2208

2205998 (REFUGEE) [2025] ARTA 2208 (2 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2205998

Tribunal:Sue Zelinka
Date: 2 September2025

Place:Sydney
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 02 September 2025 at 3:42pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual men – people living with HIV/AIDS – access to HIV medication – employment – health screening – fear of forced conversion therapy – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Applicant S v MIMA (2004) 217 CLR 387
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 April 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia applied for the visa on 30 July 2018. The delegate refused to grant the visa on the basis that he not satisfied there is a real chance the applicant would experience persecution, involving serious harm, due to being PLHIV [person living with HIV], homosexual in Malaysia or person with poor mental health including symptoms of depression and anxiety in Malaysia, either for these individual reasons or cumulative.
The applicant appeared before the Tribunal on 25 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is [an age]-year old man of Malay ethnicity and the Islamic faith. He arrived in Australia in May 2018 and lodged a protection visa two months later.
The claim that he made in the protection visa application and spoke to at a departmental interview in November 2021 was simply that he was gay, and that this is illegal in Malaysia and entails many adverse consequences. In January 2022 the applicant got a new lawyer who submitted further claims: that the applicant was a person living with HIV (PLHIV) and that this involved a further suite of adverse consequences in Malaysia. The lawyer attached letters outlining the applicant’s condition, and supporting him, from his treating doctor and the social worker at [Health Service 1] which is a specialised clinic within the public health system.
In a post-interview submission dated February 2022, the applicant stated that his HIV was being successfully managed with a drug called Biktarvy which was not available in Malaysia. He submitted that the attitudes of the health professionals in Malaysia were discriminatory towards homosexuals; as was the attitude of the State which had enacted a raft of laws against homosexual acts and which offered ‘conversion therapy’ to change homosexuals. He also added that his family were practising Sunni Muslims and would follow the anti-homosexual attitudes that were evident in syariah (sharia) law.
To the Tribunal
Prior to the hearing, the Tribunal received a submission consisting of a statutory declaration from the applicant dated 19 August 2025, a covering letter from a solicitor from [Agency 1] giving the background of this case, a discussion of the delegate’s findings, and a good deal of relevant country information from up-to-date and reliable sources. There was also an update on the applicant’s medical condition from the same doctor at the [Health Service 1] mentioned above; some screen shots of a conversation between the applicant and his father, and another with a casual contact on Grindr.
The applicant in Malaysia
At hearing, the Tribunal established that the applicant had been ‘different’ since schooldays when he was called padang, meaning ‘ladyboy’ (or effeminate male). This had ceased by the time he went to vocational college where he did [named course]. This was a milieu with an all-male student population and the applicant effectively hid his homosexuality. He lived in a college student hostel and said he did not have any social life. However, in his final year at college, the applicant did meet a man on a gay dating app called Grindr and began a covert relationship with him. When the applicant completed college, his friend ([Friend A]) found him a job in the same [business 1] where he worked.
[Friend A] had his own apartment and the applicant stayed with him although they presented themselves only as work-mates. Neither the applicant nor [Friend A] ever met the other’s family. The relationship lasted about 18 months and when they broke up, the applicant rented a place on his own. He did not form another relationship and kept on hiding his true identity and did not socialise with either men or women. His family noted this and started asking why he did not have a girlfriend, and whether he would like to marry a suitable woman whom the family could find. By this time he was in his early twenties and had found employment in the technical field for which he had trained.
The applicant said he hid his true identity out of fear. He had been schooled in the Islamic religion and knew that homosexuality was contrary to this religion. His family were practising Muslims and he knew that they would support their religious edicts rather than him, so he did not say anything about his own sexuality. He left Malaysia and came to Australia in 2018. He had heard about the gay marriage campaign in Australia and its successful outcome.[1]
In Australia
[1] The plebiscite and subsequent legislation took place at the end of 2017.
In Australia, in the words of his lawyer, the applicant ‘has been able to express his sexuality openly, regularly attending gay saunas and engaging in the casual dating scene. … He has had one significant relationship with a man called [Partner A] with whom he broke up in January 2025’. Also in Australia, the applicant contracted HIV which was diagnosed in November 2021; he began treatment at the [Health Service 1] mentioned in paragraph 12 above and has remained with the same treating clinician. The doctor writes that the applicant is doing well under treatment as he is compliant and co-operative, also engaging in complementary psychosocial programs.
The Tribunal put it to the applicant that no actual harm had ever befallen him in Malaysia and that he had been able to both work and maintain a homosexual relationship without attracting adverse attention. The Tribunal asked why he could not return to Malaysia and continue in the same way.
The applicant said there were two differences between his situation when last in Malaysia and what would happen if he returned. The first is his HIV status and the second is that his family now knows he is homosexual and are openly hostile. These issues were further explored.
Applicant’s family
The applicant said that in 2023 he told his family he was gay. He submitted a screen shot of a text conversation with his father dated 23 July 2023 in which the father is father is saying that the applicant must return and repent; that Allah will curse him day and night; that he (the father) will pray that his son repents and becomes righteous. The father sent a link to an Islamic preacher. The applicant said he also told his father that he had HIV and that he could not come home because, among other things, he received free medical treatment and the all-important medication here in Australia. His father did not engage in the medical issues but he told the applicant he could have ‘conversion therapy’ in Malaysia to stop him being homosexual.
The applicant said that his family were practising Muslims and adhered to their faith quite strictly. He said that he was beaten when he was a child if he did not say his prayers correctly. Even after he left home to live in student accommodation and then independently, he was still required to return home for the major Islamic celebrations and to participate in the required rituals. After he arrived in Australia, and was still in regular communication with his family, they always asked him if he was attending to his religious duties. He said that after telling his father about his sexuality and his HIV, communication with the family has ceased. Not even his mother or his siblings get in touch. The applicant’s last contact with a family member was in 2024.
Status of PLHIV
The other different circumstance between past and future residence in Malaysia is the applicant’s diagnosis of HIV. If he were to return, his status would become known and lead to serious harm. The Tribunal put it to the applicant that although his family knows his status, it is unlikely they would tell people because of the shame. The applicant agreed that they would not tell other people: however, that does not include Islamic religious leaders. The applicant’s father has already sent him a link to an Islamic cleric whom he names as [name], a prominent Muslim preacher who thunders against LGBT people. The applicant’s father also threatened to force the applicant to go to a religious clinic for conversion therapy and that if the applicant did not comply, the family would never again welcome him home or support him financially.
The applicant stated that companies in Malaysia conduct a health check on new employees: he himself had undergone such a test when he joined his workplace as [an occupation 1]. In future, if he applied for a company job, he would have to undergo a health test and his HIV status would become evident. Tis would lead to discriminatory conduct including in all likelihood his not getting the job. The Tribunal put it to the applicant that this test would not be required for casual or cash-in-hand jobs and he agreed that such tests would not be used.
As noted, the applicant’s current PLHIV status maintains an equilibrium with a medical regime involving a drug called Biktavy. The applicant’s doctor wrote in December 2021 that he has ‘significant concerns about [the applicant’s] ability to remain on the medication and access the medication reliably should he have to return to Malaysia’ noting that this drug is not widely available in Malaysia. He noted that cessation or changes to the applicant’s current drug regime could ‘risk the development of side effects, toxicities, interactions with future medicines that [he] may require and treatment failure … with the attendant risk of immunosuppression, opportunistic infections/cancers, disease progression and even potentially the transmission of the virus at plasma higher viral loads’. The doctor has repeated this concern in his recent letter dated August 2025.
The applicant said that with those factors noted above he could not go back to Malaysia and live quietly and unnoticed as he did before. He notes that he requires regular health check-ups and fears that in the health system in Malaysia, discriminatory attitudes among the staff will not ensure that his status remains confidential. He fears being the subject of hurtful discrimination and ostracism. He said that he worries that he will not be able to ‘be himself’ if he returns – that he will not be able to seek out a partnership. He asked ‘what if he wanted to get married?’ (meaning to a man). He had grown used to such things in Australia and would have to suppress them completely in Malaysia. However, his main fear was that his family would forcibly send him to a religious clinic for conversion therapy. If he did not go, they would cut him off completely from them, denying him any support at all.
His lawyer later stated that his applicant also feared his ability to subsist: if prevented from employment by his HIV status (revealed through company health checks or other means), then he had no recourse to any family assistance as the father had firmly cut off that line of support.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Receiving country
The Tribunal has before it the applicant’s passport. It finds that the applicant is a national of Malaysia and that Malaysia is the receiving country in this case.
Applicant’s sexuality
On the basis of the applicant’s testimony and the witness statements from two health professionals at [Health Service 1], the Tribunal finds that the applicant is a homosexual man and that he is living with HIV. The Tribunal accepts that the applicant has always known that he is gay and that he lived with this knowledge in Malaysia for many years before he came to Australia. It accepts that the HIV was acquired in Australia about four years ago.
The Tribunal does not find that the applicant experienced serious harm in Malaysia for reason of his homosexuality, only because he successfully hid it from everyone. He had one homosexual relationship in Malaysia but this was disguised as friendship between work mates and/or flat mates. At an earlier stage in his life he endured teasing as a ‘ladyboy’ but this ceased by the time he was a young man entering vocational college, again for reasons that he made concerted efforts to look and behave like a ‘regular’ young man.
The Tribunal accepts the applicant’s testimony and some supporting documentation that the applicant has lived as an openly gay man since coming to Australia – that is, for the last seven years. It accepts that it would be difficult for the applicant to resume the restricted pattern of behaviour that kept him unnoticed before his departure from Malaysia.
Membership of a particular social group
A particular social group, in the words of McHugh J, ‘is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle’. [2] The Tribunal is satisfied that the applicant is one of an identifiable group of persons set aside from other members of society and united together with a common characteristic. He is a member of a particular social group constituted by LGBT people in Malaysia –men or women who prefer same-sex relationships or some other variation from a hetero-normative position. This group is identified by specific laws in Malaysia [3]; and by society at large with “a moderate risk of societal discrimination … and a moderate risk of familial and/or societal violence”[4]
[2] Applicant S v MIMA (2004) 217 CLR 387 at [69].
[3] “Across Malaysia there are 52 laws that criminalise different forms of LGBTQI+ behaviour. Prosecutions have taken place under these laws…Numerous state-level syariah-based laws prohibit same-sex relations and non-normative gender expression”. DFAT, Country Information Report: Malaysia, 24 June 2024, para. 3.127
[4] DFAT, op.cit., para. 3.148.
The Tribunal also finds that people living with HIV (PLHIV) can constitute a particular social group. This group is also identified in a legal sense through public health rules and regulations; and by the public at large by shunning the group. A large survey conducted in Malaysia in 2020 showed that the “prevalence of discriminatory attitudes towards PLHIV, as measured by the UNAIDS global indicator, was found to be 78.7%:[5] The Tribunal is satisfied that the applicant is a member of a particular social group constituted by PLHIV in Malaysia.
Future harm as gay man
[5] Wan Sarifah Ainin Wan Jusoh et al, Prevalence of HIV stigma …A nationwide survey, (2020) Institute for Public Health, Ministry of Health Malaysia at nih.gov.my. (Applicant’s submission on file).
If the applicant were to return to Malaysia and if his parents knew that he was back, the Tribunal accepts that they would send him to a ‘rehabilitation’ or ‘re-education’ program aimed at changing sexual orientation. This is also referred to as conversion therapy.
The Tribunal notes evidence from a relatively recent study of conversion therapy in four Asian countries including Malaysia, a study endorsed by the AIDS Data Hub for Asia Pacific, UNAIDS, UNICEF and the WHO:
Conversion therapy practices (CTPs) refer to any sustained effort intended to “modify a person’s sexual orientation, gender identity, or gender expression”. According to the International Rehabilitation Council for Torture Victims, CTP can include talking therapy, ritual or religious cleansing, behavioural conditioning, such as being asked to dress or walk in a certain way, and/or beating or other forms of “corrective” violence. All these forms of CTPs are prevalent in Malaysia. CTPs in Malaysia are perpetrated by parents, school systems, religious institutions, and the state, which disguise CTPs as religious education programmes (such as the Mukhayyam programme) or programmes for hijrah diri (self-pilgrimage).
The same report also states:
The American Medical Association has stated that conversion therapy and “efforts to” convert someone’s sexual or gender identity “represent a significant risk of harm”. The Royal College of General Practitioners has asserted that “being LGBT is not a disease, it is not a mental illness and it doesn’t need a ‘cure’.”[6]
[6] Asia Pacific Transgender Network, Conversion Therapy Practices in Malaysia, 2021, pp. 4 and 10, at type="1">
The Tribunal accepts the advice that conversion therapy represents a significant risk of harm, harm which may be mental or physical or both. If the applicant’s presence in Malaysia is known to his parents, there is a real chance that he will be forced to undergo conversion therapy and therefore be subject to serious harm.
If the applicant were to return to Malaysia and live alone without contacting his parents, he would need to find a job quickly to become self-supporting. The Tribunal notes recent DFAT advice which supports claims made by the applicant:
Many jobs, including all public service jobs, are subject to compulsory health screening. If an employer finds out a gay man has HIV, his employment will be terminated (the HIV prevalence rate for gay men in Malaysia is around 20%). [7]
[7] DFAT, Country Information Report: Malaysia. 24 June 2024, para. 3.135.
However, as the applicant agreed, there are a number of less secure or lesser paid jobs which do not require a health check, such as the job in [business 1] which the applicant had before finding work in his chosen vocation. The Tribunal is not satisfied that the pre-employment health check is a complete barrier to employment; or not to the extent that the applicant would be unable to subsist.
All independent evidence indicates societal discrimination in Malaysia against gay men like the applicant and LGBT+ people in general. For example, a 2021 study found that about 60% of Malaysians thought that same-sex attraction was not morally justifiable and rejected having lesbians or gay men as neighbours. [8]
[8] Tan, Lee and Cheong, “Current research involving LGBTQ people in Malaysia: A Scoping Review Informed by a Health Equity Lens”, Journal of Population and Social Studies, 2021, at submission on file).
The Tribunal finds that the applicant would suffer discriminatory treatment in day-to-day life and in employment if he were to return to Malaysia. However, the real chance of serious harm arises from his father’s commitment to send the applicant to conversion therapy. In this, the father has the backing of both the church (Islam) and the State (the Malaysian government). Against these forces, the applicant would be fairly powerless to resist: he would have to sever all contact with his family and those connected to the mosque which his family attends. He would not be able to avail himself of any family assistance if he were unable to work because of illness and/or discrimination against PLHIV. The Tribunal finds that there is a real chance of serious harm befalling the applicant if he were to return to his home place in Malaysia and the essential and significant reason for this harm is his membership of a particular social group constituted by LGBT people in Malaysia.
Harm as person living with HIV
The Tribunal considered the question of future harm to the applicant as a person living with HIV. The Tribunal accepts that the applicant has to maintain a regular and ongoing relationship with a doctor, even if for nothing more than scripts for prescription medicines. The applicant has been away from Malaysia for seven years so has no regular doctor there. If the applicant’s family have a ‘family doctor’ whom they all consult, the applicant will not be able to attend that one because of his estrangement from the family. The applicant will have to begin the process of finding his own doctor, or he will have to rely on public health clinics or hospitals. This process will take time, and time away from regular appointments will be injurious to his condition according to his current treating doctor.
The Tribunal places weight on the letter from the applicant’s doctor in Australia, both because he has been the treating doctor for the whole length of time that the applicant has been living with HIV, and also because the doctor is a specialist in this field and works in a specialised clinic. This doctor has written about the problem of interruptions in treatment and the lack of access to Biktavy, the drug which is the best treatment for the applicant, if the applicant were to be removed to Malaysia (see paragraph 25 above). The doctor summarised in the following way:
In returning to Malaysia, a country where there are significant religious and cultural factors that contribute to stigmatising, discriminatory, unsafe and unsupportive environments for members of the LGBTI community, there is significant risk that [the applicant] will experience stigma and discrimination that will impact on his ability to consistently remain in care and remain optimally adherent to his medication.[9]
[9] Letter from [named doctor], Staff Specialist, [Health Service 1], dated 15 August 2025 on Tribunal’s file
The doctor also noted the ancillary health services provided at his specialised centre including physical health care and psychological support. He said that if the applicant were to be removed, ‘the impact of the rupture in these relationships and connections on his emotional and physical wellbeing would be very significant’.
Independent evidence based on fairly recent studies in Malaysia have found that only 55% of people diagnosed as HIV positive are receiving treatment, one reason being the “stigmatising attitudes expressed by health care providers” including over 50% of physicians who discriminate against patients with HIV.[10]
[10] AIDS Map, Half of Malaysian doctors admit to some discrimination against patients with HIV, 16 Jan 2019, at (Applicant’s submission on file).
The problems for the applicant in returning to Malaysia as a PLHIV are significant. According to his doctor here, he will not have ongoing and continuous access to the drug which is best suited to him. There are other options available in Malaysia, including some dispensed freely or cheaply through the public health system, but there are barriers in accessing this treatment. The applicant will have to find a doctor which, the evidence shows, has a degree of difficulty given the doctors’ general unwillingness to treat HIV. There will be certainly a break in his ongoing treatment and when and if it resumes it will be less than the all-round treatment he receives in Australia. There is a real chance he will suffer one of the number of possibilities that his doctor has outlined in the submission to the Tribunal about cessation or changes of treatment (see paragraph 25 above).
On the evidence before it, the Tribunal is satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Malaysia and the essential and significant reason for this harm is his membership of a particular social group constituted by PLHIV.
Modify behaviour to avoid persecution
The Migration Act states that “a person does not have a well-founded fear of persecution if [he] could take reasonable steps to modify his behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would: … [require him to] alter his sexual orientation or gender identity or conceal his or her true sexual orientation” (see Attachment below at s 5J(3)(c)(vi)). The Tribunal notes that the applicant has been living an openly gay life in Australia, having had a significant relationship which lasted some years, attending gay saunas, using apps to seek out gay contacts, and generally participating in the gay scene. He has been closely involved with a sexual health clinic since 2021 and has never had to conceal his sexual orientation from any of the medical and allied health staff. He has never felt that they treated him in a disapproving or discriminatory way.
If the applicant were to return to Malaysia, the applicant would have to not just ‘modify his behaviour” but change completely in order to avoid persecution. The Tribunal uses the word persecution because it is satisfied that he would suffer harm greater than societal discrimination: as discussed earlier, there is a real chance that he would be sent to conversion therapy, a real chance that he could not find consistent employment and a real chance that he could not get ongoing and effective treatment for his HIV, all of which have serious consequences.
Having regard to all the evidence before it, the Tribunal finds that there is a real chance that the applicant will suffer serious harm in Malaysia for reason of his membership of two different but in this case overlapping particular social groups. The first is constituted by LGBT people in Malaysia and the second by people living with HIV. The cumulative impact gives rise to a well-founded fear of persecution. The fear of persecution holds for all areas of the country and cannot be avoided by expecting the applicant to modify his behaviour.
Conclusion
The Tribunal finds that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) and that he meets the definition of refugee in s sH(1)(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.
Hearing:  25 August 2025
Representative:  Mr Frederick Johnston
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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