2206875 (Refugee) - [2025] ARTA 2200

2206875 (Refugee) [2025] ARTA 2200 (1 October 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2206875
Tribunal:General Member A Goldsworthy
Date:1 October 2025

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

Statement made on 01 October 2025 at 7:47am
CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – Shouters – not accepted by or registered with Chinese government – local church gatherings – arrested, detained, interrogated, threatened and harmed – delay in applying for protection – limited and undetailed knowledge of religion – inconsistent claims – different religious practice in Australia – did not commit to Christian worship – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
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 10 May 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old male national of China. He applied for the visa on 1 October 2019. The delegate refused to grant the visa and the applicant appealed to the then Administrative Appeals Tribunal.
The applicant appeared in-person before the Administrative Review Tribunal (the Tribunal) on 1 September 2025 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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
The applicant’s protection claim as detailed in his visa application form can be summarised as being that he was born into a devout Christian family near the city of Fuqing, China. His family practised their faith in a local church and their denomination was not accepted by or registered with the Chinese government. [In] March 2018 he was attending a church gathering at a friend’s house. The church gathering was raided by officers from [Police Station 1]. He was arrested and taken to [Public Security Bureau 1] for further investigation. He was detained with others from his church at the [detention] centre where he was interrogated three times. When he refused to answer questions from the police he was threatened and harmed. He was held in detention for one week and released after he paid a fine and signed an undertaking. He was warned by the police that if he continued to attend local church gatherings he would face stronger punishment and jail. After being released from the [detention] centre he experienced nightmares and had a fear of the Public Security Bureau Officers. He found a Church in [City 1] where he practises his faith. If he returns to China he will be arrested and suffer more harm and persecution from the Chinese government because of his religious beliefs.
The applicant also filed two news articles to support his protection claim.
The applicant provided the Department with ID including a copy of the biographical page of his passport. He was not interviewed by the Department.
On 26 May 2021 the applicant responded to a s56 invitation to provide further information on his protection claim. The information can be summarised as follows:
a.His local church was founded by Brother Watchman Nee in 1922 in China and was established again by Brother Witness Lee in the United States in 1962 before being introduced back to China in 1979. His local church was nicknamed “shouters” and was not registered by the “Three Self Patriotic Movement”. His church remained in the list of the top 14 “evil cults” in China. He chose not to attend a government registered church in China because they were against the bible and the head of the church was considered to be the Chinese Communist Party. At his local church he was able to call out Jesus’ name loudly, could pray and read loudly and share his experience freely whereas at government registered churches only the priest was allowed to talk.
b.[In] March 2018 he was participating in a church gathering at [Brother A’s] house when it was raided by a group of police from [Police Station 1]. They were accused of conducting illegal religious activities and taken to [Public Security Bureau 1] for interrogation. He was detained at the [Detention] Centre and his wife was not allowed to visit him. He was interviewed three times and after he did not answer questions from the police he was threatened, slapped, spat on, kicked and pushed into a wall. He was released from detention after paying a fine of [amount] CNY and signing an undertaking that he would not attend local church gatherings again.
c.He was able to leave China and come to Australia without any difficulties as he did not have any pending charges in China. His case in China was an administrative detention not a criminal charge which also assisted in his ability to leave China. He was also able to leave China because he had a student visa attached to his passport.
The delegate was not satisfied that the applicant was a Christian or that he had a profile that would be of adverse interest to the Chinese authorities or anyone else if he returned. The delegate refused to grant the visa on the basis that:
a.they were not satisfied that the applicant met the criteria in s5H(1) of the Act and was therefore not a refugee; and
b.they were not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the People’s Republic of China, there was a real risk the applicant would suffer significant harm.
During the hearing the applicant said that he had completed the protection visa application form himself with the help of Google Translate, and maintained that the information in it was accurate and complete.
Background
The applicant’s parents, sister, wife and child live in a rural area just outside of [Town 1] in Fuqing City, China. The applicant grew up and lived there in his parent’s house, which they own, until he left for Australia. His parents have run a [business] since the applicant was about [age] years old, and he described them as being of average wealth. His wife, whom he married in 2015, is a housewife and is supported financially by both his and her parents. Their daughter was born in [year]. The applicant is in daily contact with his family members.
The applicant completed [Diploma 1], was an [Occupation 1] and had his own business in [Industry 1].
He arrived in Australia in July 2018 on a Student visa. He told the Tribunal that he studied [Course 1] but did not finish it because he was working [in Industry 2] whilst studying. After applying for protection in October 2019, he discontinued his studies as he found the course too difficult.
When asked why he had waited over a year to submit his protection application, the applicant said that at that time his Student visa was still valid and a close friend from his home town, who had himself lodged a protection visa application, had recommended he apply for protection.
Since having been in Australia, the applicant has worked only in [Industry 2]. He has had three employers and has been in his current job for three years.
In response to the question of when he had applied for his first passport, the applicant said he had applied just before leaving for Australia. When the Tribunal put to him that the passport showed that it had been issued in 2016, he said that he could not remember, but he had applied for it because his friend had told him he could apply for a Student visa to study in Australia, and also because he had been persecuted by public security officers.
Persecuted for his religion
When asked why he was claiming protection, the applicant said that it was because he wanted to stay in Australia and because his friend recommended that he apply. Another reason, he said, was because it was too hard for him to apply for a Student visa to remain here as his English was not good and when he had undertaken [Course 1] here previously, he had not done well.
Noting that his preference had been to apply for another Student visa, and also that he had not completed the first course he had undertaken, the Tribunal asked what he wanted to study. The applicant did not provide a response.
When asked again why he was applying for the protection visa, he said that Australia was better than China and he wanted to remain here.
The Tribunal put to him that he had a wife, daughter, parents and sister in China, with whom he had a very good relationship – why would he not want to return to them? He said that if he returned, he would attend the local church which was prohibited. He said that he had been detained and he had a feeling that he did not have freedom to go to church there.
The Tribunal asked the applicant how he practiced his religion and how he expressed his beliefs and practices.
He said that he went to the local church with his friends, and they prayed every night and reconsidered how they behaved.
The Tribunal invited him to say more about how he practiced his religion.
He said that he attended church on Sundays. When asked what the church looked like, he described it as being in [City 1], saying that quite a lot of people went there.
The Tribunal noted that he had lived in Perth since 2023 and asked about the relevance of [City 1]. He said that he had initially lived there, and the brothers took him to the church. In Perth, he said, he attended [Church 1] a couple times each month, to listen to the priest. He said that there was a Mandarin interpreter.
The Tribunal commented that according to their website, the religious practice at [Church 1] seemed to have little in common with his evidence of how he had practiced his religion in China – he had left China due to having followed a particular type of practice and he did not seem to be practicing that here. The applicant responded that when he arrived in [City 1], friends took him to the church.
The Tribunal asked the applicant to explain the religion that he had practiced in China. He said that they followed Jesus Christ. The Tribunal prompted him to say more, and he said that they ‘went to the brother’s house and read the Bible and had a gathering’.
When asked about what made his beliefs different to other Christian denominations, the applicant said that when they had gatherings, everyone had the chance to express themselves and this was called ‘speaking loud’ or ‘yelling’. He said that there were no other differences.
The tribunal asked about the different types of meetings that his church held. The applicant said that they went to the brother’s place and spoke very loudly. When asked what he would say when speaking loudly, he said ‘Jesus Christ’ and ‘redemption’. He confirmed that this was all that was said.
When asked what some of the key books were that they used or referred to, he named only the ‘Recovery Version’, translated from Greek, and said that there was nothing else that they used.
The Tribunal asked the applicant to explain what ‘pray-reading’ was. He said that he had not heard of it.
When asked what his favourite part of the Bible was, the applicant said that it was ‘the stories told by Jesus Christ, in particular his initiatives of everyone’s right to speak for themselves. Everyone should have their own belief and should pursue their belief through the appropriate way.’
When asked why he had not continued worshipping similarly in Australia, the applicant said that when he was in [City 1] it had been similar but in Perth it was not easy to find Mandarin-speaking brothers.
Noting that he was no longer practicing his faith in the same way as he said he had in China, the Tribunal asked why he could not return.
The applicant said that when he was detained, he had received a warning that he could not keep practicing the religion.
The Tribunal again noted that he was not practicing it here either, which indicated that it was not a priority for him. The applicant said that in Australia, his voice could be heard and he could express himself while in China the followers did not have the freedom to express themselves. He said that ‘they do the same thing at night at home and have freedom of speech’.
Having regard to him no longer practicing his faith in the same way or with a similar group as he had in China, the Tribunal asked why he could not return and join an approved church. He responded that he could not because he had the terrible experience. He added that the government did not really make sense.
The applicant told the Tribunal that his wife and child also practiced the religion but mostly just read the Bible at home, and prayed. He said that his wife had not been at the meeting when he was detained – only some brothers from the village had been with him, and there had been about 10 of them in total.
The applicant said that when the policemen entered, they were asked not to move and the Recovery Version Bible was found. They were all detained in different places and interviews were undertaken separately. Afterwards, he said, some of them went overseas while others stayed in China where they could only practice at home and rarely went to church.
With reference to the applicant’s written evidence that he had followed in the path of his parents’ religious practice, the Tribunal asked where his parents attended meetings. The applicant said that they rotated at different brothers’ houses each month. When asked again where his parents attended, he said they went to different houses to where he went.
When asked why they were able to practice and he was not, the applicant said it was because he had been detained and interviewed and was given a warning not to continue practicing or an even harsher punishment would be given.
The Tribunal put to him that his parents had practiced for their entire lives but nothing had happened to them. The applicant replied that after the incident in which he had been detained, most of the followers had gone overseas.
The applicant confirmed that no harm had ever come to his parents or sister, only to him. When asked why his wife and daughter had not escaped with him, he said that he had left first as his daughter had been too young, but they were hoping to join him.
The Tribunal invited the applicant to talk about the day that his meeting had been raided, and asked what type of gathering it had been. He said that the type of gathering was that they were listening to the elder speaking. He said that it had been at [Brother B’s] house and they had been speaking Jesus’ name loudly.
When prompted to say more, the applicant said that he had nightmares from time to time and it was recommended to him to come to Australia to study.
The Tribunal again asked him to say more about what happened on the day. He said the police officers broke in and the Recovery Version was found and then 9 or 10 people were taken away, having been told that the religion they practiced was evil and prohibited.
He said that he was asked to reveal the other follower’s names and was physically assaulted. They used a rubber baton to beat his arms and legs, and slapped his face. The applicant said that he had sustained swollen feet and a broken [Body part 1] with a metal plate, and he had been humiliated. The applicant pointed to a scar on [Body part 1].
The Tribunal noted that in his written statement he had not mentioned that he was hit with a baton. He had instead written that he had been slapped in the face, had his face spit at, kicked in his body and pushed against a wall. The fact that he had given a lot of detail in his statement as to what had happened made it hard to believe that he would leave this significant detail out. The applicant acknowledged that he had not mentioned it but said that he had mentioned psychological trauma.
The Tribunal put to him that his prior omission of what now sounded like the harshest part of his detention, put its truth into question.
The applicant said that he had not lied, and if he had not experienced the trauma he would not have come to Australia.
He said that after he was hit, he was issued a warning and asked to give a written promise. He said that in China, once someone was known to police they would have a record and it would be hard for them to stay in China, so after he was released he came to Australia.
The Tribunal expressed surprise that he had been released despite not having given responses to their questions.
He reiterated that he had been issued a warning and asked to give a guarantee in writing that he would not continue practicing. He said he had probably been assaulted because he did not tell them what they wanted to know. He said that he did not know why he was released and, when asked, confirmed that nothing else had happened in relation to the matter.

The Tribunal questioned why he had not mentioned the fine that he had claimed in his written evidence was what had allowed him to be released. He said it was probably because his parents had paid the fine, not him; it had been quite a long time ago and he missed some details.
When asked what questions were put to him at the police station, the applicant said that he was asked about the names of the brothers, the name of the elder and who the organiser was. The Tribunal put to him that they already had those people in custody so why would they need him to tell them their names?
The applicant said he was not sure but guessed that they had wanted to match what different people said to see if someone lied.
Having regard to this, the Tribunal again expressed surprise that they allowed him to leave without having provided answers to their questions. The applicant reiterated that this was why he had been assaulted.
When asked if he had any evidence that he had been detained in China, the applicant said that he had the indictment as well as the interview statement, but they were in China as he had not been aware that he would need them. The Tribunal allowed 14 days for him to file them along with formal translations. On 8 September 2025, the applicant filed further country information on the approach by China’s government to religious freedom, photos of him in and outside of [Church 1] in Perth, and what he alleged was a certificate of release from detention from [Public Security Bureau 1] Detention Centre.
The Tribunal asked the applicant about the news articles that he had submitted to the Department. He said they were about prohibiting the practice of his religion. Their relevance was that since Xi Jinping took office there had been less freedom. He said that in Australia, you could have freedom.
The applicant said that if he was returned, he would go to the gatherings again and they would not be allowed. He said they had been treated unfairly and he did not want to experience that again.
When asked why he would return to his old gatherings when he had started attending a different church in Perth, he said that in China he had his own circle of friends and would follow the brothers.
The Tribunal put to the applicant that his knowledge about his faith was very limited, and it seemed that he did not know about some of the key aspects of his practice.
The applicant replied that he just followed his brothers and was detained because he went to the gathering. He said that he just re-thinks what he does from time to time.
The Tribunal again put to him that for a faith that he had grown up with, practicing with his family, he seemed to know very little.
The applicant said that he would go to the church or practice the religion following his family and noted that this religion was his spiritual hope.
The Tribunal said that it found it strange that he was unable to identify any biblical stories when he had grown up with the Bible. The applicant responded that he went there to listen and he liked the atmosphere in which he could feel the brothers and sisters. He said that even though they were not his siblings they could help each other.
The Tribunal put to him that he had said that he had been at [Brother B’s] house when detained but had named a different brother in his written evidence. The applicant replied that [Brother B] was the village elder.
The Tribunal put to the applicant that he had said that the police had only found Bibles during their raid, but in his written statement he wrote that they had found ‘a lot of religious material’, and this seemed to be inconsistent. The applicant said that he had only mentioned the most important thing.
The Tribunal put to him that when it had asked which texts they used, he had only mentioned the Bible and had confirmed that that was all they used, while in his written statement he had mentioned ‘a lot of religious materials’. The applicant said the Bible was all he had been able to recall because it was prohibited.
The Tribunal put to him that he had also seemed unfamiliar with the different types of meetings held by his church, and this was quite significant for a practice he said he had maintained throughout his life. The applicant responded that he would follow his family because he loved the atmosphere; everyone was sincere and he loved the feeling.
Findings of fact and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant has physically attended [Church 1] in Perth on at least one occasion.
I have a number of concerns about the credibility of the applicant’s claims to have been part of a church known as ‘the shouters’, as follows:
a.When asked to describe how he had practiced his religion in China and how he expressed his beliefs and practices, the applicant’s response was extremely limited and undetailed.
b.The applicant was unable to name or describe any biblical story. I find this to be implausible for a faith he claimed to have followed throughout his life.
c.I am doubtful that, having been part of the ‘shouters’ throughout his life, the applicant would have never heard of pray-reading, a common spiritual exercise of the church founded by Watchman Nee, or have been unable to list any of the common types of meetings held by the group such as the Lord’s Day / Lord’s Table meetings, despite having written in his 2021 statement that this was the meeting he was at when raided.[1]
d.I am doubtful that, having allegedly been a ‘shouter’ throughout his life, and having attended different churches in [City 1] and Perth, the applicant would maintain that the only difference between the faith and practice of his church in China and other Christian denominations, was that everyone had the chance to express themselves.
e.During the hearing, the applicant said that only some brothers from the village had been with him at the meeting when they were raided. In his 2021 written statement, he claimed that there had been both brothers and sisters. I am doubtful that the applicant would have forgotten whether there had been any women at the meeting that was raided and that changed his life.
f.The applicant’s response to the Tribunal’s concern that he had named different brothers in his description of whose house the raid had taken pace at, was not cogent. Having regard to the centrality of the raid on his church to his claim, to the impact it allegedly had on his life, and to this having only happened once, I am doubtful that the applicant would have mixed up which brother’s house the police raid took place at.
g.I am doubtful that, having listed all the ways that he was assaulted in his written statement, he would have forgotten to include that he was beaten with a baton.
h.In his 2019 written statement, the applicant said that when he came out of the detention centre he had a lot of bruises on his body. At the hearing, the applicant told the Tribunal that he had suffered a broken [Body part 1]. Having regard to the severity of a broken [Body part 1], I am doubtful that the applicant would have forgotten to include that in his written statement.
i.The applicant told the Tribunal that he had evidence of his detention in the form of an indictment. He separately told the Tribunal that his was an administrative detention, not a criminal charge. As an indictment is a formal accusation that a person has committed a crime, I find this evidence to be inconsistent.
j.He claimed that one reason for having obtained his passport was because he had been persecuted by public security officers. The passport was issued in 2016 while the applicant told the Tribunal he had only ever been persecuted in 2018. I therefore find this evidence to be unreliable.
[1] accessed on 19 September 2025.
The applicant told the Tribunal that he had evidence of his detention in the form of an indictment as well as the interview statement. He did not say that he had a certificate of release. However, in post-hearing submissions he filed a certificate of release and nothing else, with no explanation as to why he had not submitted what he said he would, and why he had submitted something else. Furthermore, the certificate made no mention of why he was detained. I therefore reject the certificate on the basis that I find it is not authentic.
Having regard to my concerns and findings above, I do not accept that the applicant belonged to nor participated in a local church established by Watchman Nee (‘shouters’).
As I have not accepted that he belonged to nor participated in a local church established by Watchman Nee, I also do not accept that the applicant was detained during a raid at a local church meeting.
As I have not accepted that the applicant was detained during a raid at a local church meeting, I do not accept that the scar he showed the Tribunal was sustained while being in detention because of the raid. To avoid doubt, I do not accept anything that he claimed happened during his detention.
As I have not accepted that he was part of a local church established by Watchman Nee, I do not accept the applicant’s claim that he would re-join the ‘shouter’s’ gatherings if he was returned to China.
I now turn my mind to the applicant’s claims to have committed to Christian worship in Australia, for which I have a number of concerns:
a.The applicant told the Tribunal that his worship in [City 1] was similar to the way he worshipped in China. Having regard to his evidence that a central part of that worship was reading the Bible, and having regard to the applicant being unable to name or describe any biblical story, I am doubtful that he worshiped in [City 1] as claimed.
b.I find it implausible that, despite having said that he attended church in [City 1] on Sundays since having arrived there, the applicant was unable to describe the church beyond saying that it was in [City 1] and that quite a few people attended.
c.The applicant said that since living in Perth, he attended [Church 1] fortnightly and that there was a Mandarin interpreter there. Having regard to the mission statement of [Church 1] being, in part, ‘to evangelize our local communities with the Gospel of Jesus Christ…’ and having regard to the applicant being unable to name or describe any biblical story, I am doubtful that he worshiped at [Church 1] as claimed.[2]
d.The applicant’s response to the Tribunal’s concern about his religious practice being very different in Perth than it had been in China, was not cogent: that when he arrived in [City 1], friends took him to the church.
e.The applicant’s response to the Tribunal’s query about why he could not return and join an approved church in China given that he no longer practiced as he had when he was last there, was not cogent: because he had the terrible experience. It particularly lacks cogency when considered alongside his claim that he would attend the local church again if returned to China.
[2] [Church 1 website deleted], accessed on 25 September 2025.
Having regard to my concerns above, I do not accept that the applicant committed to Christian worship in Australia.
As I have found that the applicant has not committed to Christian worship in Australia, I find that he attended [Church 1] for the purpose of taking photos to shore up his protection claim.
As I have found that the applicant did not commit to Christian worship in Australia, I find that if returned to China he will continue to not partake in any Christian worship into the reasonably foreseeable future.
Having had regard to the applicant’s evidence and to all of my findings, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons related to Christianity, including the ‘shouters’.
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 s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:    1 September 2025
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.
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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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