2209087 (Refugee) - [2025] ARTA 832

2209087 (REFUGEE) [2025] ARTA 832 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2209087
Tribunal:General Member S Waring
Date:6 March 2025

Place:Brisbane
Decision:The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man – warned and beaten by father, ejected from home and bullied in workplace – social media group, but no activity or relationships in home country – one relationship in Australia – fear of harm from community, government and religious authorities – consistent and plausible evidence – country information – national and state laws for Muslims – widespread harassment and discrimination, and constant threat of invasion of privacy, extortion and arrest – real chance of harm in all areas and effective protection measures not available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3)(a), (b), 4(b), (c), (5), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
AKA24 v MIMA [2024] FedCFamC2G 1434
Chan Yee Kin v MIEA (1989) 169 CLR 379

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 21 June 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 April 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 22 June 2022 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
If a proceeding was commenced in the AAT but not finalised before 14 October 2024, it will be continued in the Tribunal in a manner that is efficient and fair. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 10 February 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bahasa Malay and English languages.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.

BACKGROUND

The applicant, a [Age]-year-old male, last arrived in Australia [in] February 2020 on a visitor visa (UD-601P120) and applied for a protection visa on 29 April 2020.
According to the protection visa application, the applicant was born in Teluk Intan in Perak Province, Malaysia and settled in [City] QLD upon arrival in Australia.
The applicant is of Malay ethnicity and a follower of the Islam religion.

Evidence before the Department and the Tribunal

No interview was undertaken by the Department. Before the decision under review was made, the Department wrote to the applicant on 2 May 2022, raising specific concerns about claims made in the protection visa application including his claims about his sexuality and harm suffered in Malaysia.
To address those concerns, the applicant was requested to provide supporting evidence and further detail of his claims. As the applicant did not respond to that request, the evidence taken into account by the Department included:
·the applicant’s protection visa application.
·supporting documents including personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, a movement record of the applicant’s entry into Australia is also before the Tribunal.
The totality of evidence before the Tribunal is discussed and examined below.

CONSIDERATION OF CLAIMS AND EVIDENCE

The applicant provided a copy of the biodata page of his Malaysian passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Malaysia and there is no information before me to the contrary. I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.

Assessment of claims made in the visa application

The protection visa application sets out the applicant’s claims summarised as follows:
·He left his home country because Malaysia does not accept people who are LGBT.
·He is a gay male and this sexual orientation is not acceptable in Malaysia.
·If he returns to Malaysia the government will take action using the religion department, designed to force him to live a ‘normal’ life like other men.
·He would suffer harm from undergoing counselling and brainwashing provided by the religion department.
·Neither the Malaysian government nor the public would support him. People ‘like him’ are not recognised and do not have rights to assistance and facilities.
·He has tried relocating within Malaysia but found himself without any help and protection because Federal and State law applies everywhere in Malaysia.
·If returned to Malaysia the community would insult and bully his family.
Sexuality
The applicant claims that he is part of a “particular social group” which enlivens Australia’s protection obligations because he is a Muslim gay male.
At hearing, the applicant told the Tribunal that he was raised in [an employer’s accommodation] living with his parents. His father was [an occupation] in [Employer]. His mother (now deceased) was a homemaker. There are no siblings.
The applicant stated that he attended primary school at the [accommodation] and a high school nearby. The applicant was studying at school between [Year] and [Year].
The applicant recounted an occasion onsite at a school camp when some friends started to “touch me inappropriately”. The applicant was 15 years old at this time. He believed that feelings awakening his sexuality commenced at this time because he “started to feel some excitement.”
From the time he was 16 years old, the applicant has been a regular consumer of gay pornography. The applicant recalled three occasions when his father discovered him watching videos of this nature on his father’s laptop.
The applicant stated that on the first occasion, his father issued a warning to him to stop viewing such videos. The applicant told the Tribunal that he endeavoured to ‘change’ in order to comply with this directive but he could not - and within two or three weeks he was again watching the videos.
On the second occasion, five weeks after his father’s warning, he was again discovered by his father watching the videos. The applicant recalled that he was again given a warning.
On the third occasion (by which time the applicant had turned 17) his father “beat me up and I got bruises on my body.”
At the time of the third incident, the applicant had finished his high school education so when he was “chased out of the house” he started to live alone away from the [accommodation]. The applicant clarified that it had been his father (rather than both parents) who had chased him away because he had feelings for guys.
The applicant told the Tribunal that he took up a job opportunity about 90-120 minutes drive from his hometown. He was provided with accommodation and worked (at [a workplace]) there until he was 20 years old and had saved enough money to come to Australia.
When asked by the Tribunal to explain his mother’s reaction to his expulsion from his home at the [accommodation], the applicant responded that she had not known about the first two occasions when his father had discovered him watching videos. When the third incident occurred, the applicant’s mother “got to know from my father that I was watching these videos and I have likings for guys during that time…she did not say anything but she looked sad and disappointed.”
The applicant would usually travel from Ipoh to visit his mother once each month. She knew that he had “feelings for guys” and while she ”didn't say anything,[she] had a sad look on her face.” The applicant told the Tribunal that he would enjoy a meal with his mother but did not share much detail with her about his personal life. The applicant recounted an occasion when his mother said to him just “to be myself”.
The applicant described telephoning his mother regularly while he was working at the [workplace] in Ipoh. At some point in time his mother stopped answering the phone. The applicant contacted his father to ascertain why his mother was not answering. The applicant’s father refused to answer the question.
The applicant now knows that his mother passed away in or about 2017 after which, his father remarried. Such was the estrangement between the applicant and his father, that he did not become aware of his mother’s death or his father’s remarriage until after he had moved to Australia in 2020.
The applicant stated that about five of his father’s [employer] colleagues knew the reason he had been chased out of the [accommodation]. The applicant’s father had told security at the [accommodation] not to admit him so the applicant could not visit his mother at her home. The applicant was aware that his family did not want his sexual orientation to become public knowledge in his hometown.
The applicant told the Tribunal that he kept his same-sex attraction a secret while he was living in Ipoh and he had otherwise only confided in one close friend ([Mr A]) in his hometown. The applicant stated that he did not have any relationships with men when he was living in Malaysia and that he did not have any significant connection with the gay community there – only 5-10% of the people he knew there were gay males. The applicant was not active online or on social media but he would consume gay pornography (and continues to do so).
The Tribunal heard that the applicant has had a sexual partner ([Mr B]) in Australia for five years. The applicant did not describe their connection as a romantic, long-term or committed relationship - stating that it is more akin to ‘friends with benefits whenever there’s a need.” The relationship with [Mr B] “is just for sexual needs.”
The applicant stated that he does not connect with the gay community in Australia. He does not need to do so because of his connection with [Mr B] whom he sees him two to three times a month.
The applicant has not shared with colleagues that he is same-sex attracted. The Tribunal accepts that the applicant consumes gay pornography privately but does not openly express his sexuality in Australia.
The applicant stated that he and [Mr B] have been seeing each other for five years. Otherwise, the applicant has not been in any same-sex relationships.
The Tribunal is mindful that a paucity of past same-sex relationships is not fatal to a finding that the applicant is a same-sex attracted person. Having regard to the strict secrecy the applicant has maintained about his same-sex attraction, the Tribunal considers it not to be unreasonable that the applicant has not presented evidence from [Mr B] to corroborate the applicant’s sexuality.
The Tribunal found there to be an overall consistency and plausibility in the applicant’s recounting of significant events in his personal history (some of which are described below).
The Tribunal accepts that the applicant has had (and continues to be in) a same-sex relationship and is a Muslim gay male as claimed.
Harm experienced in Malaysia
The applicant described (above) a physical assault upon him by his father who disapproved of the applicant’s same-sex attraction.
This incident (resulting in the applicant being ejected from his home at age 17) was not reported to authorities. The applicant explained that no report was made (or hospital treatment sought) because the reason for the assault would become known within the father’s [accommodation].
The applicant treated the bruises he sustained with ice.
The applicant moved away from his hometown as soon as possible after the assault and the estrangement between the applicant and his father has been enduring.
The Tribunal accepts that the applicant was physically assaulted (when aged 17) by his father as claimed and that the assault was directly linked to the applicant’s sexuality.
The Tribunal finds that the applicant suffered physical harm in Malaysia because of his sexual identity.
Harm experienced by suppression of sexuality
The applicant stated that while he was in Malaysia he did not “dare to have a relationship with other boys or men because first, I'm afraid, second, I do not want to be criticized.”
The Tribunal accepts that the applicant was ejected from his home (in an experience that caused him physical and emotional harm) when his same-sex attraction became known to both his parents.
The applicant told the Tribunal that he was bullied when working at the [workplace] and was fearful that this would intensify if his same-sex attraction became known to colleagues. One colleague (who was bullying the applicant for no reason – “just for fun”) was a particular source of the applicant’s fear. The Tribunal accepts the applicant’s claim that he feared he would be shamed and beaten up by one or more work colleagues if his sexual orientation became known in the workplace.
As regards the applicant maintaining secrecy in his hometown, he told the Tribunal that he did so due to fear that his mother would be bullied and that her reputation would be damaged.
The applicant described the secrecy around his same-sex attraction as initially “a bit difficult” but later it became “torturous”.
The Tribunal heard that the applicant had gone to great lengths to maintain secrecy. For example, he acquired a second phone (which he did not take to work) to obtain WhatsApp notifications about safety and police presence at certain venues where there might be a gathering of gay males. The applicant explained that he did not take the second phone to work for fear of others observing the messages as they appeared on the screen.
The applicant was invited to join the WhatsApp group by men he became friendly with at a club in Ipoh. The applicant stated that he had a curiosity about the group. He only went to the club to get information from the men and to get used to the environment there because it was new to him.
The WhatsApp group was described as “an emergency number” to alert members to the presence of the police or other “enforcement people” nearby to the club. The applicant would always check the emergency number before going to the club because “the religious body likes to go to these places [and] targeted these places because there is a lot of alcohol in the club and being a Muslim country, when they found out that a Muslim was there to drink and if they are gay, then they will bring them back.”
Having regard to the applicant’s deployment of a second (emergency) phone, the Tribunal finds that the applicant had the desire to visit places where gay males socialised in Malaysia but was restrained from doing so to avoid persecution by authorities. Through his efforts to avoid exposure of his same-sex attraction and detection by the authorities at the club (especially as a Muslim), the Tribunal finds that the applicant was suppressing his sexual identity.
The Tribunal also finds that the applicant was suppressing his sexual identity in Malaysia by maintaining strict secrecy around his same-sex attraction:
·While he was in school and living with his parents.
·In his workplace.
·In his hometown.
The Tribunal finds that the applicant experienced harm in Malaysia as a result of supressing his sexual identity.
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.
REASONS AND FINDINGS
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.

For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted for reconsideration.
As observed above, the Tribunal is satisfied that the applicant’s identity is as claimed and that he is a citizen of Malaysia. Malaysia is found to be the applicant’s receiving country for the purpose of this application.
On the basis of the evidence provided, the Tribunal finds as follows:
· The applicant is a gay male.
· For the purposes of s5L the applicant is to be treated as a member of a particular social group comprising Muslim gay males.
The Tribunal accepts the applicant’s claim that he is part of a “particular social group” which may enliven Australia’s protection obligations.
The Tribunal has found that the applicant suffered physical and emotional harm in Malaysia as a result of others reacting negatively to his same-sex attraction and from him suppressing his sexuality.
The applicant describes the secrecy of his same-sex attraction as “tortuous”. The Tribunal accepts that the applicant does not wish to repress his sexuality and holds a subjective fear that he would be forced to do so if he returns to Malaysia.
As observed by Kendall J. recently, decided cases have “enshrined the principle that a person claiming harm as a refugee because of a central part of their personal identity (such as their sexuality or political opinion) should not be denied protection because they are seen to have the “option” of hiding that part of their identity. Hence, it should not be assumed, for example, that a lesbian or gay male can avoid harm by acting “discreetly” – a finding which is in and of itself harmful to the individual.”[1]
[1] AKA24 v Minister for Immigration and Multicultural Affairs [2024] FedCFamC2G 1434 at [67]
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[2]
[2] Chan Yee Kin v MIEA (1989) 169 CLR 379
For the reasons stated above, the Tribunal is satisfied and finds that the applicant meets the subjective requirement in s 5J(1)(a) as he does in fact hold a fear of being persecuted in Malaysia as a member of a particular social group comprising Muslim gay males who have had same-sex partners.
The s 5J(1)(b) objective requirement relating to ‘real chance of persecution’ is considered below in light of various sources of published information specific to Malaysia.
The Department of Foreign Affairs & Trade published a Country Information Report – Malaysia on 24 June 2024 (the DFAT report) stating[3]:
·     As a conservative Islamic nation, Malaysian authorities are intolerant of LGBT identities and conduct.
·     Same sex acts constitute offences for the purposes of the Penal Code.
·     LGBT persons face a high risk of official discrimination and a moderate risk of societal discrimination, which include prosecution, “re-education”, exclusion from public spaces, housing, and employment opportunities and a moderate risk of societal violence.
[3]   Para 3.148
The DFAT report states[4] that JAKIM[5] and other state level religious authorities have occasionally conducted raids on LGBTQIA+ events. On 30 October 2022, RMP[6] and the Federal Territories Islamic Religious Department (JAWI) raided a Halloween event attended by members of the LGBTQIA+ community in Kuala Lumpur and arrested at least 20 people.
[4]   Para 3.130
[5]   The National Department of Islamic Development
[6]   The Royal Malaysia Police
In Freedom in the World 2024 – Malaysia (25 April 2024), Freedom House states that LGBT+ Malaysians face widespread discrimination and harassment.
In World Report 2024: Malaysia (11 January 2024), Human Rights Watch reports that state-sponsored discrimination against LGBT people is pervasive and condoned in Malaysia.
In its 2023 Country Report on Human Rights Practices: Malaysia, dated 23 April 2024, the US Department of State advises that all same-sex sexual conduct is illegal under federal law in Malaysia. Discrimination based on sexual orientation, gender identity and expression is not prohibited in Malaysia and LGBT people experience discrimination in employment, housing and access to some government services.
Under the Malaysian Penal Code 1936 consensual adult same-sex acts are criminalised as “Unnatural Offences” (ss 377A and 377B) and “Outrages on Decency” (s 377D).
Section s 377D of the Penal Code provides:
Any person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any person of, any act of gross indecency with another person, shall be punished with imprisonment for a term which may extend to two years.
83.The Malaysian Federal Court has ruled that it is the courts’ responsibility to determine what constitutes gross indecency for the purpose of 377D[7] because ‘acts of gross indecency’ for the purposes of s 377D are not defined.
[7]   Sukma Darmawan v Ketua Pengarah Penjara [1992] 2 MLJ 241
84.In 2024, the Human Dignity Trust opined[8] that the criminalisation of consensual same-sex acts (as is the case in Malaysia) ‘fosters a climate of state-sanctioned stigma, resulting in abuse, discrimination and violence’.
[8]   Breaking the Silence: The Criminalisation of Lesbian and Bisexual Women and its Impacts (2024)
85.In 2021, the International Commission of Jurists published its view that in Malaysia, s 377D of the Penal Code places LGBT persons under a constant threat of ‘arrest, invasion of privacy, and extortion’.[9]
[9]   Invisible, Isolated, and Ignored: Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia (2021)
86.The DFAT report[10] identifies that authorities at both federal and state levels promote LGBTQIA+ ‘Conversion Therapy’ throughout Malaysia (particularly targeting Muslims such as the applicant) with coercion being applied in many cases.
[10]   Paras 3.132-134
87.Having regard to the content of published materials set out above, the Tribunal finds that the s 5J(1)(b) objective requirement (relating to ‘real chance of persecution’) is satisfied in this case. The Tribunal finds that:
·     There is a real chance of the applicant experiencing significant mental and emotional harm, threats to his liberty and significant discriminatory treatment by the Malaysian authorities and community at large, which constitutes serious harm as defined in s 5J(5), if the applicant were to be forced to return to Malaysia now or in the reasonably foreseeable future.
·     The harm and treatment referred to above constitutes serious harm under s 5J(4)(b) and systematic and discriminatory conduct under s 5J(4)(c).
·     The essential and significant reason for the serious harm is the applicant’s membership of a particular social group being Muslim gay men from Malaysia.
·     There is no modification of behaviour requirement applicable in this case pursuant to s 5J(3)(a) or (b).
·     The applicant has a well-founded fear of persecution if he is forced to return to Malaysia now or in the reasonably foreseeable future.
88.As mentioned above, the Tribunal finds that the applicant is a Muslim gay male who does not wish to suppress his sexual identity. The applicant has, for example, the desire to join with other gay males socialising in public places in the future. Based on current country information citing the plight of LGBT people throughout Malaysia, the Tribunal finds that in the applicant’s circumstances:
·     The real chance of harm applies to all areas of Malaysia.
·     Effective protection measures are not available to the applicant anywhere in Malaysia.
89.There is no indication in the materials before the Tribunal that the applicant has a right to enter and reside in any country apart from Australia. The Tribunal finds therefore, that the preclusion specified in s36(3) of the Act is not engaged.
90.For the reasons given above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
91.The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
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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