2206457 (Refugee)

[2024] AATA 3016

2206457 (Refugee) [2024] AATA 3016 (23 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Shamili Kugathas

CASE NUMBER:  2206457

COUNTRY OF REFERENCE:                   Sri Lanka

MEMBER:Sue Zelinka

DATE:23 July 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 23 July 2024 at 1:30pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – LTTE member – training, patrol and sentry duties – wounded in action, treated and assigned to camp duties – returned home to care for widowed mother – internal displacement and return – participation in protests – investigated and beaten by CID – unhindered departure – participation in organisations, commemorative events and protests in Australia not for purpose of strengthening claim – no harm to family at the time or since – consistent and credible evidence – country information – official monitoring of profiled groups and individuals – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), 65, 91R(3)
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. The applicant who claims to be a citizen of Sri Lanka applied for the visa on 9 October 2018. The delegate refused to grant the visa on the basis that the applicant did not meet the definition of refugee.

3. The applicant appeared before the Tribunal on 24 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Sri Lankan) and English languages.

4. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

   CRITERIA FOR A PROTECTION VISA

5. 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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

11. 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 remitted for reconsideration.

    Introduction

12. The applicant is a [Age]-year-old married man of Sri Lankan nationality, Tamil ethnicity and the Hindu faith. He set out his claims in a written statement dated 9 October 2019 that accompanied his protection visa application. He wrote a further statement to the Tribunal on 11 June 2024 and his representative also made a written submission addressing points of law and providing country information. The Tribunal has had regard to all this material and to the oral evidence given at hearing.

13. The Tribunal is satisfied that the applicant has been consistent at all stages of the refugee status determination process and has not sought to exaggerate or embellish his claims. The material set out below is from the oral evidence given at hearing where the applicant was on oath and where the Tribunal had the chance to clarify matters or ask the applicant to expand on any point.

    Joining the LTTE

14. The applicant is from [Village 1] in Vavuniya in northern Sri Lanka. His family – his parents, [brother, sisters] and himself – lived and worked on their small farm. When he was [age range], the applicant joined the LTTE of his own volition. He had been subject to monthly propaganda talks from LTTE personnel all his school days and frequent informal interaction with LTTE soldiers in the area. He did not ask his parents’ permission to join up but they accepted his decision. He was sent away to a training camp for six months with about 100 or 150 other new recruits; they did physical training and learned how to handle weapons. They were often trucked into different places in the jungle to practise warfare. The recruits were not paid a salary but received uniforms, food and accommodation.

15. After his training was completed, the applicant was sent to a camp in Mullaithivu, the district north of Vavuniya, where there were established soldiers. There were 30 fighters in a team, and two or three teams in one camp. The applicant was just an ordinary soldier going out on patrol and sentry duties. In 1995 the applicant was involved in fighting against the Sri Lankan Army and a bullet shattered his [body part]. He was treated at the main LTTE hospital where a metal plate was inserted to keep the bones together. (The Tribunal notes that the applicant submitted an x-ray [which] clearly shows the work he described).  After three months of treatment and rehabilitation, the applicant was sent back to a camp in Mullaithivu – not as an active combatant but to work in the camp managing the stores and cleaning weapons. This continued until 1997 when he requested the LTTE to allow him to return home to care for his mother. His father had died in 1995 and with his siblings married, his mother was now alone.

    After leaving the LTTE

16. The applicant had only been at home for a couple of months, subsistance farming with his mother, when the fighting between the LTTE and the Sri Lankan Army reached his home area. He and his mother left, moving to a safer LTTE-controlled for about a year living in a tent and then had to move on again to [Town 2] (an area in the north of Mullaithivu district). Here the applicant started to learn the skills of [an occupation] because his attempts at farming were frequently disrupted. The applicant and his mother stayed there until 2001 by which time the LTTE had recovered the territory from which the applicant had originally moved – his home village of [Village 1] in Vavuniya.

17. The applicant and his mother returned home and in 2003 the applicant married a local woman. They had [children in Years]. The latter was born in [Town 2] to which the applicant and his family had had to flee from heavy fighting which came back to their home area in 2007. Even [Town 2] was not safe: in April 2008 there was shelling and the applicant’s mother was killed. In May 2009, the applicant with his wife and children, and thousands of other Tamils, surrendered to the Sri Lankan Army and were taken to the huge IDP (Internally Displaced Persons) Camp which was established in Vavuniya.

18. When the family was released from the IDP camp a year later, they returned to the applicant’s village of [Village 1], reclaimed their land and lived in a shed on the land until the government rehousing assistance came through and they rebuilt their house. The government meantime was clearing land mines. The applicant leased a shop in [Location] and started a [business]. This was about 7kms from home, or a ten-minute trip on his motorcycle. Between the two places was an army camp and check point at which he had to stop twice a day. There was a heavy army presence in the north.

19. The applicant said it took some years for things to resume some sort of normality, after people returned from the IDP camps, rebuilt their houses, and re-established their farms or businesses. They could then take stock of who was missing – relatives, friends, neighbours: those who had not returned from the camps, those who had been arrested in the camps and not released, and no-one knew where they were. The children of two of his cousins and the children of one of his neighbours were among the missing. In 2016 the applicant joined the formal protests like those which had already started in other towns and villages in the north. In [Location], they began to happen once a week: people would gather outside the office of the AGA (the Assistant Government Agent), the local official in charge of the district, appointed by the government. The AGA in [Location] was a Tamil and fairly sympathetic to the protestors, on whose behalf he wrote letters to the authorities asking for the whereabouts of particular individuals. The protesters would string a banner up outside to indicate the protest which would start in the morning and sometimes go on until evening. The applicant would use his [shop] to publicise the next protest to his customers. The Tribunal asked about the presence of the army and the police on these occasions. The applicant said that sometimes they would come and disperse the protesters. Occasionally they arrested some of the protesters, kept them in detention for a few days and then let them go.

    Adverse attention

20. The protest movement across the north had seen 500 days of protest in the different towns and villages by July 2018 and these were widely reported in the Tamil Guardian (see for example The applicant said he had been approached by the local GS (grama sevaka, the new designation for what had been the village head man in colonial times) to discuss the forthcoming important protest day in [Location]. The applicant donated money, canvassed among all his customers, and attended the protest on the day. The rally drew a much larger crowd than usual and attracted the attention of the police and the army. About four or five of the organisers were arrested and taken away by the army. They were only released after the intervention of the AGA.

21. About a month later, the applicant was stopped as usual at the army check point on his way home. Unusually, they took down all the details from his ID card and told him to stop giving donations to the LTTE.  Very soon after, men from the CID (Criminal Investigation Department of the Sri Lankan Police Service which investigates serious crimes and matters related to national security) went during the day time to his home: he was at work and only his wife was in the house. They told her that they knew her husband was supporting the group called something like “relatives of enforced disappearances”. On the same day that his wife was visited, they came to his [shop] and took him out to the back and beat him quite severely, asking him questions and saying that if he helped this group any more he would be arrested. The applicant gave them 5000 rupees and they went away. By the time he recovered himself, he was late getting home, by which time his wife had rung the GS as a result of the visit she had received. The applicant’s wife had formerly worked for the GS as an assistant and remained on friendly terms with him and his family. She told him the story (before she knew about the beating).

22. The GS rang a couple of days later and said he had been making enquiries. He said that the CID had been informed that the applicant was supporting the organisation behind the protesters and that life was going to be very difficult for the applicant. The GS suggested that the applicant go away for a while and said he knew an agent in Colombo who could organise a visa for the applicant to leave the country (he already had a passport as he had been on a pilgrimage to Tamil Nadu). The Tribunal put it to the applicant that it was an over-reaction by the GS to suggest leaving Sri Lanka when the applicant had never been arrested or charged with any offence. The applicant said that the GS had sources and found out that he – the applicant – was now known to the CID. This meant that he would be targeted for harassment, if nothing worse, from then on. He stated that as he had paid the CID on the day of the beating, they would be coming around regularly in future to collect bribes from the applicant so that he would not be arrested. Arrests would certainly follow if he helped – or was thought to have helped – in any further protests. His life would be intolerable.

23. The applicant said that when he was being beaten by the CID behind his shop, they were questioning him, wanting to know who else had helped in organising the last big protest. In desperation, the applicant finally gave them a few names (which did not include the GS). The applicant assumes that someone else in a similar position did the same: that is, that his name was given to the CID by a fellow protest attendee who likewise was being severely beaten until he gave out a name. The applicant’ representative later said that this explained the delay between the protest and the attention to the applicant: CID did not receive his name until they “processed” a number of other arrests from the protests.

    Departure

24. The applicant followed the GS’s advice and went to Colombo where the recommended agent took his passport and replaced it a few days later with a new passport, in his own name, but including a visa showing he was [a participant] at [an event] in Sydney in September 2018 (the Department has this on file). With this passport he left Sri Lanka without any particular problems.

    In Sydney

25. In Australia, the applicant found some [work] that included some other Sri Lankan Tamils who befriended him. In late November 2018 they took him Maaveerar Naal, a remembrance day observed by Sri Lankan Tamils in honour of the Tamils who died during the civil war. This was organised by the [Organisation 1]. The applicant maintained his association with the [Organisation 1] and its associated [Organisation 2]. Both entities have written letters of support for the applicant, noting his attendance at the Maaveerar Naal event (which the [Organisation 1] letter calls the Tamil Martyrs Remembrance Day) each November from 2018 to 2023; and the Tamil Genocide Remembrance Day each year on 18 May from 2019 to 2014. The [Organisation 1] letter also notes his attendance at a rally outside the Sri Lankan High Commission in Canberra on 4 February 2024 in protest at Sri Lankan Independence Day and in support of Tamil Eelam, a separate state for Tamils. The letter also claims that consulate staff were filming the protesters. The [Organisation 1] letter further notes the applicant’s assistance in promoting these events through pasting posters around the community and distributing flyers to the customers [where] he works.

26. The Tribunal asked if there had been any repercussions on his family since his departure. He said that shortly after his departure – a week or so – CID returned to his house and looked for him. His wife and children then left that house and moved about 40kms away to where her mother lived. They have had no visits from the authorities at the new address.

27. The Tribunal put it to the applicant that there did not seem to be much interest in him. He said it would be different if he was actually there in Sri Lanka. He said he had been told by the CID when they beat him up that he was not to change his address. He notes that he left in contradiction to their orders which will mean that they definitely would want to see him if he returned. He was known to them as an LTTE supporter. He said that the Prevention of Terrorism Act was still in force in Sri Lanka giving the security operatives like the CID almost untrammelled powers. He felt very frightened about returning.

    Country information

28. According to the most recent census (2012), ethnic Sinhalese comprise 74.9 per cent of the population, Tamils 15.3 per cent and Muslims 9.3 per cent (in Sri Lanka, Muslims, also known as ‘Moors,’ are considered both an ethnic and religious group). (DFAT, Country Information Report: Sri Lanka, May 2024 at para 2.6).

29. The state exercises control over the entire country, including Tamil-populated areas in the north-east, where the military retains a large presence. … The Northern Province remains heavily militarised 15 years after the end of the civil war, with one security personnel for every six civilians. The military’s presence is most pronounced in and around those territories held by the LTTE immediately before its fall (Mannar, Mullaitivu, Vavuniya and Kilinochchi districts, also known as the Vanni or Wanni region). Most former LTTE members reside in these areas. (DFAT, op.cit. at 2.69 and 2.74)

30. Security forces continue to monitor public gatherings and protests in the north-east…  Security forces monitor and question individuals and groups suspected of promoting Tamil statehood or pursuing politically sensitive issues related to the war. This includes those advocating for missing persons and the release of military-occupied land; those organising and participating in civil war commemorations. (DFAT, op.cit. at 3.13).

31. Tamil war memorialisation was restricted under the Rajapaksas. The Wickremesinghe Government has taken a more permissive approach to some commemorations. May 18 commemorations (when Tamils memorialise those killed in the final stage of the war) largely passed without incident in 2022 and 2023. Maaveerar Naal (‘Great Heroes’ Day’, 27 November) commemorations likewise generally passed without incident in 2022 (according to in-country sources, security monitoring of these events, including in Jaffna, was minimal). However, some Maaveerar Naal commemorations, including in Vavuniya and Batticaloa, were disrupted by police in November 2023 and, according to Human Rights Watch, nine Tamils were arrested under the Prevention of Terrorism Act. (DFAT, op.cit. at 3.15)

1. Some members of the Tamil diaspora played a central role during the war, as sources of funding, weapons and other material support for the LTTE, and as political advocates for Tamil statehood. The Sri Lankan Government assesses that elements of the Tamil diaspora remain committed to an independent Tamil state. Members of pro-independence diaspora groups, particularly diaspora groups banned under Sri Lankan law and/or people who glorify the LTTE, may come to the attention of the Sri Lankan authorities due to participation in public demonstrations or other activities deemed to be promoting Tamil statehood in their countries of residence. According to in-country Tamil sources, the authorities monitor the social media of Tamils living abroad who fit this profile. … The United Kingdom Upper Tribunal, in its May 2021 ruling on Tamils engaged in activities in the United Kingdom, found that a range of political activities abroad may be perceived as threatening by the Sri Lankan Government and could trigger official harassment on return. These include attending meetings, demonstrations and war-related commemorative events, signing petitions, displaying flags or banners with LTTE insignia, and fundraising. (DFAT, op.cit. at 3.99 and 3.100).

2. OHCHR continues to receive reports of surveillance, intimidation and harassment of human rights defenders, activists and persons involved in memorialization initiatives by intelligence services, the military and the police or by unidentified individuals affiliated with former paramilitaries. … Family members of the disappeared in the Eastern and Northern provinces continue to receive police visits with summons or restraining orders ahead of emblematic dates (for example, Independence Day) preventing them from organizing or participating in protests, rallies or memorialisation events. Reportedly, summons have been delivered during late evening hours or with excessive police presence, adding an element of harassment and dissuasion. (UN High Commission on Human Rights, Situation Report on Sri Lanka, September 2023, at section D paras. 33 and 35).

3. To date, there is no sign that the government intends to discard practices that have preserved impunity and protected state power in Sri Lanka for decades. Instead, the evidence points to continued repression without accountability. Political activists across the island continue to be arrested and detained under the Prevention of Terrorism Act which the government proposed replacing with an even more draconian law. (International Crisis Group, Sri Lanka Needs Truth but Not (Yet) a Truth Commission, 7 September 2023).

   Analysis, findings and reasons

4. Given his passport and his testimony, the Tribunal finds the applicant is a national of Sri Lanka and that is the receiving country in this case.

5. On the basis of his testimony and his detailed geographical and other knowledge, the Tribunal finds that the applicant is a Tamil from the northern province of Sri Lanka – the area known as the Vanni – and was involved with the LTTE as a combatant (until 1997) and sympathiser/supporter from that time onwards. The Tribunal accepts that he did not come to the adverse attention of the Sri Lankan Army while in the displaced persons camp and after the war was able to reclaim his land in Vavuniya, rebuild his house for his family and start a small [business] in [Location] nearby.

6. The Tribunal accepts that the applicant became engaged in the movement which began in Sri Lanka’s north in 2016 coinciding with the establishment of the Office of Missing Persons (OMP) by the Sri Lankan government (see Many, particularly Tamils, did not feel that the OMP was helpful, a view echoed again very recently by the UN: “Nearly 15 years after the end of the civil war, and decades since the first disappearances, Sri Lankan authorities continue to fail in ensuring accountability for these violations” ( The Tribunal accepts that the applicant helped publicise and took part in the almost weekly protests outside the government office in [Location] and that the local army base and police were well aware of these protests, sometimes arresting people.

7. The Tribunal accepts that in July 2018 the applicant assisted with and attended a much larger rally commemorating the fact that 500 such rallies had been held across the north. It accepts that a month or so later, the applicant was examined more critically at the army checkpoint which he passed twice a day and his details were taken. It accepts that subsequently, CID went to his house, then went to his shop and beat him severely while interrogating him. It accepts that through personal friendship with the local head man (the garam sevaka) he learned that his name had been given to CID and that he should leave; he was assisted to do so with a false visa.

8. The Tribunal also accepts that the applicant became involved with an activist Tamil group in Sydney shortly after arrival and that he has remained involved, regularly attending their functions including the two annual Tamil commemorations for the those they lost in the civil war. The Tribunal also accepts that he has attended public functions in support of a separate state for Tamils within Sri Lanka.

9. The Tribunal has considered whether the applicant’s association with the [Organisation 2] in Sydney was an action taken to strengthen his claim to be a refugee. If it were, this action must be disregarded by the Tribunal in accordance with s 91R(3) of the Act. The Tribunal notes that the applicant found work on his arrival in Sydney through the expedient method of going to Tamil-speaking shops in the diverse multicultural area where he was staying and asking. He found work [at a workplace] and three fellow-Tamils [invited] him to a forthcoming function, which was Martyrs Day on 27 November. Through this, he met many other Sri Lankan Tamils and was introduced to the [Organisation 2], thereby giving him access to a social network which he was otherwise denied as a non-English speaker. Given that he had been involved in protests about the fate of Tamils during the civil war in his home town, it is reasonable to assume that he had a genuine interest in participating in similar commemorations here. He has continued this association for over five years. The Tribunal is satisfied that the applicant did not engage in pro-Tamil protest activities in Australia for the purpose of strengthening his refugee claim and therefore the Tribunal may have regard for these activities.

10. The United Kingdom Upper Tribunal found that “a range of political activities abroad may be perceived as threatening by the Sri Lankan Government and could trigger official harassment on return. These include attending meetings, demonstrations and war-related commemorative events, signing petitions, displaying flags or banners with LTTE insignia, and fundraising” (see paragraph 32 above). The [Organisation 1] has opined that protesters at a Tamil Eelam rally in Canberra earlier this year were being filmed by members of the Sri Lankan consulate: the applicant was among the protesters (see paragraph 25 above). The most recent DFAT report indicates that “members of pro-independence diaspora groups may come to the attention of the Sri Lankan authorities due to participation in public demonstrations or other activities deemed to be promoting Tamil statehood” (see para 32 above). It is reasonable to assume that the applicant has come to the adverse attention of the Sri Lankan authorities whilst in Australia, including through his [Social media] pages.

11. If the applicant were to return to Sri Lanka, he would be questioned on arrival. The adverse information about him, both from the Sri Lankan CID in respect to his activities and departure in 2018 and his subsequent five plus years of activities in Australia, would give him an adverse profile and result at the least in ongoing monitoring and questioning (see paragraph 30 above).  In its very recent report, DFAT assesses that anybody found to promote the LTTE or Tamil statehood more broadly faces a high risk of monitoring, arrest and detention (DFAT, op.cit. para. 3.77). OHCHR continues to receive reports of surveillance, intimidation and harassment of human rights defenders, activists and persons involved in memorialization initiatives by intelligence services, the military and the police (see paragraph 33 above) and the International Crisis Group notes that “the evidence points to continued repression without accountability” (see paragraph 34 above).

12. Given this country information from reliable sources, the Tribunal finds that there is a real chance that the applicant will face serious harm for reason of his political opinion – that is, for wanting Tamil statehood and for his ongoing criticism of the Sri Lankan government for its lack of transparency and action in dealing with the “disappeared” of the civil war. The Tribunal is satisfied that there is a real chance of serious harm befalling the applicant in the reasonably foreseeable future if he were to return to Sri Lanka for reason of one of the five reasons set out in s 5J(1)(a) of the Act. It follows that the Tribunal is satisfied that the applicant has a well-founded fear of persecution and meets the definition of refugee in s 5H(1) of the Act.

13. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

14. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Sue Zelinka
    Member

    
    

    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.

    …