2216542 (Refugee) - [2025] ARTA 1531

2216542 (REFUGEE) [2025] ARTA 1531 (7 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2216542
Tribunal:General Member L Hill
Date:7 May 2025

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

Statement made on 07 May 2025 at 10:30am

CATCHWORDS
REFUGEE – Protection Visa – Indonesia – particular social group – homosexual man – failed to attend hearing – failure to provide any further information – vague claims – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Administrative Review Tribunal Act 2024 (Cth), ss 99, 106
Migration Act 1958 (Cth), ss 5, 36, 65, 91, 379, 426, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Minster for Immigration and Border Protection v SZVFW [2018] HCA 30

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 8 November 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 Indonesia, applied for the visa on 13 March 2019. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
On 11 November 2022, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision made by a delegate of the Minister for Home Affairs.
On 14 April 2025, the Tribunal invited the applicant to a hearing at the Brisbane registry, scheduled for 6 May 2025. The applicant did not appear before the Tribunal on the day and at the scheduled time and place.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), 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. This decision and statement of reasons is made by the Tribunal.
Can a decision be made without holding a hearing?
Section 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act) sets out the circumstances where the Tribunal may reach a decision in a proceeding without a hearing.
Relevantly, s 106(5) of the ART Act states that if a party to the proceeding (other than a non-participating party) fails to a appear at a case event, despite having received appropriate notice of the case event’s date, time, and place, then the Tribunal can proceed to make a decision without a hearing. Section 4 of the ART Act defines a case event as including the hearing, or part of the hearing, of the proceeding.
On 14 April 2025, the Tribunal invited the applicant to a hearing at the Brisbane registry, scheduled for 6 May 2025. Amongst other things, the hearing invitation advised the applicant to contact the Tribunal as soon as possible if he was not available to attend or believed that he would experience any difficulties in participating in the hearing as arranged. The applicant was asked to read and complete the enclosed ‘Response to hearing notice’ and return it to the Tribunal. The applicant was also asked to provide all documents he intended to rely on in support of his case by 29 April 2025, if he had not done so already.
The hearing invitation also sets out what would happen if the applicant did not appear at the scheduled hearing. The applicant was advised that the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear or may dismiss the application without any further consideration of the application or the information before the Tribunal.
Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 379A(5) of the Act, and the notice has not been returned to sender. The Tribunal is satisfied that the applicant received appropriate written notice of the date, time, and place of the hearing.[1]
[1] Administrative Review Tribunal Act 2024 (Cth) paras 106(5)(b)-(c).
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal allowed for a period after the scheduled hearing time for the applicant to appear or contact the Tribunal. There was no contact from the applicant during this period. Accordingly, the hearing was cancelled due to the applicant’s non-attendance. The Tribunal is satisfied that the applicant failed to appear at the scheduled hearing.[2]
[2] Administrative Review Tribunal Act 2024 (Cth) para 106(5)(a).
Paragraph 106(5)(d) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the absence of the parties to the proceeding. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.[3]
[3] Revised Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth).
As per EIZ20 v Child Support Registrar [2023] FedCFamC2G 637 (20 July 2023), it is for the Tribunal to decide whether the application can be ‘adequately determined’ without holding a hearing. In properly carrying out its duties, “the Tribunal will request further information from parties where it deems it necessary in order to adequately determine issues on review. The assessment is for the Tribunal to make and where the parties do nothing to dissuade the Tribunal that the decision can be adequately determined in the absence of the parties, there is no obligation to seek further information or hold a hearing”.
Subsection 5AAA(2) of the Act states that “it is the responsibility of the non-citizen to specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim”. In this regard, the Tribunal notes that:
·On 13 March 2019, the applicant lodged an application for a protection visa with the Department of Home Affairs (the Department). In this application, the applicant provided his claims for protection.
- On 25 March 2019, the Department wrote to the applicant, acknowledging receipt of his valid application. He was advised that “all claims, supporting documentation and evidence should have been provided when you lodged your application” but that he may bring “any additional information [he] would like considered to [his] appointment for the collection of personal identifiers or provide through ImmiAccount or by mail”. He was also advised that a decision on his application, could be made at any time after it was found to be a valid application, based on the information he had provided and without another opportunity to present any more information at an interview.
- On 7 October 2022, the Department wrote to the applicant requesting more information to help them assess his application. In summary, the applicant was asked to provide key details of his sexuality including the harm he had suffered. He was invited to provide further information and documentary evidence in relation to the matters identified in the letter. The applicant was also advised that if he was unable to provide more information or copies of documents, he was to provide a detailed explanation as to why he could not provide them and any efforts he had made to obtain them.
·Prior to the delegate decision, no additional information or supporting documents including a response to the request for more information was received by Department.
- On 8 November 2022, the delegate refused the application because the applicant did not satisfy the criterion in s 36(2) of the Act which required the applicant to be non–citizen in Australia in respect of whom Australia has protection obligations or be a member of the same family unit of such a person.
·On 11 November 2022, the applicant applied to the Administrative Appeals Tribunal (AAT) for review of the decision. A copy of the refusal notification and delegate’s decision record dated 8 November 2022 was provided.
- On 14 November 2022, the Tribunal wrote to the applicant, acknowledging his application for review. He was advised that the Tribunal had requested the Department to provide all documents and files which they considered relevant to his application. The applicant was also requested to “provide material or written arguments for [the Tribunal] to consider, [and he] should do so as soon as possible”.
- On 28 August 2023 and 16 November 2023, the applicant emailed the Tribunal and requested a Medicare letter. No additional information and/or supporting documents were provided in support of the applicant’s claims for protection with either of these requests.
- On 22 January 2025, the Tribunal wrote to the applicant and advised him that his file was being prepared to be given to a Tribunal Member. He was asked to complete a ‘Pre-hearing information’ form and return to the Tribunal within 7 days. Amongst other things, the pre-hearing form provided the applicant with a further opportunity to provide any more information about his claims for protection or why he was afraid to return to his home country. A completed pre-hearing information form has not been received by the Tribunal.
- On 14 February 2025, the applicant emailed the Tribunal and requested a Medicare letter. No additional information and/or supporting documents were provided in support of the applicant’s claims for protection with this request.
- On 14 April 2025, the Tribunal wrote to the applicant inviting him to attend a hearing at the Brisbane registry. The hearing invitation requested the applicant to complete the ‘Response to hearing notice’ form and asked him to provide all documents he intended to rely on in support of his case by 29 April 2025, if he had not done so already. He was also advised that any documents or written arguments should be in English or if not then accompanied by a translation from a qualified interpreter.
·On 23 April 2025, the Tribunal emailed the applicant and asked him to complete and return the ‘Response to hearing notice’ as soon as possible. Two SMS reminders about the hearing were also sent to the mobile phone number provided in the review application. A completed ‘Response to hearing notice’ form has not been received by the Tribunal.
To date, the applicant has not raised or indicated to the Tribunal that he wishes to provide any additional material or new information, documents and/or written arguments for consideration. Nor has the applicant provided any additional material, information, documents and/or written arguments relating to his claims for protection to the Tribunal.
The Tribunal is satisfied that the applicant has had an opportunity to present his case and provided all the information and evidence that he considers important and relevant in support of his case; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(5) of the ART Act has been met.
Given the circumstances of this case, that being the applicant’s failure to appear, the Tribunal has also considered the alternative option to dismiss the application. However, for the following reasons, the Tribunal has decided not to exercise its dismissal power pursuant to s 99 of the ART Act.
The exercise of the Tribunal’s power to make a decision on review without taking any further action to allow or enable the applicant to appear at a hearing was considered by the Minster for Immigration and Border Protection v SZVFW [2018] HCA 30. In that case, the exercise of power “was explained and justified by the history of non-responsiveness on the part of the applicants, from which it was open to infer that any attempt to contact them or to reschedule the hearing was likely to be futile”.
The Tribunal has also considered DNK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] FCA 975 (DNK17). In that decision, Horan J stated that it was unreasonable for the Tribunal to exercise its discretion to make a decision on the review pursuant to s 426A(1A)(a) of the Act, as opposed to exercising its discretion to simply dismiss the application under s 426(1A)(b) of the Act, in circumstances where the Tribunal did not provide reasons for why it chose to exercise the power to decide the application.
However, more recent decisions, have distinguished DNK17, and found that it may not always be unreasonable for the Tribunal to elect to make a decision on the review when an applicant fails to appear at a hearing.[4] In EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402, Judge Corbett found that “there would be no statutory purpose for that section of the Act (s 426A(1A)(a)) if in all circumstances, it was unreasonable for the Tribunal to exercise the power conferred. There is nothing in the reasoning in DNK17 to suggest that the power to decide rather than dismiss should not be exercised in appropriate cases”.[5]
[4] EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402; EEV18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 17; DDF18 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 38; EGA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 614.
[5] EDY18 v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FedCFamC2G 402 at [66].
In EGA19 v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 614, Judge McCabe, stated that “there may be good reasons for proceeding under s 426(1A)(a) in a particular case rather than simply dismissing the proceedings under s 426A(1A)(b). For example: the Tribunal may be confident nothing further could be elicited that would make any difference to its deliberations in that case; alternatively, there may be reason to believe the applicant does not wish to engage with the Tribunal. In such circumstances, proceeding to make a final decision on the claims might be a proper choice… Provided those reasons suggest an ‘evident and intelligible justification’ for proceeding to make a decision, the decision to do so is reasonable”.
In this case, as set out above, the applicant has been provided with several opportunities to present his evidence and arguments in support of his review application for a protection visa, however, to date, there has been no response from him.
The applicant was also invited to a hearing at the Brisbane Registry and sent reminders of the scheduled hearing by email and SMS but failed to attend. To date, the applicant has not contacted the Tribunal to explain his non-attendance. The hearing invitation clearly sets out what would happen if the applicant did not appear at the scheduled hearing, including that the Tribunal may make a decision on the review without taking any further action to allow or enable them to appear.
To date, after lodging his review application, apart from several requests for Medicare letters, the applicant has not engaged with the Tribunal in relation to his claims for protection. The applicant has not provided additional material, new information, documents and/or written arguments or completed the Pre-hearing information’ or ‘Response to hearing notice’ forms when invited by the Tribunal, nor did he attend the scheduled hearing or provide reasons for his non-attendance; and in these particular circumstances the Tribunal is satisfied that it is unlikely that the applicant will take up any further opportunities to engage with the Tribunal or the review process.
It follows, that the Tribunal is satisfied that given the particular circumstances of this case, it will exercise its discretion under s 106(5) of the ART Act to make a decision without holding a hearing rather than dismissing the application under s 99 of the ART Act.
CLAIMS FOR PROTECTION
The applicant’s claims for protection are set out in the ‘application for a protection visa’ lodged with the Department on 13 March 2019. In summary, the applicant claims:
·He is seeking protection and cannot return to Indonesia.
·He left Indonesia because he is gay. He was living under pressure because he was discriminated against by people. He also experienced a lot of issues such as humiliation, was despised and abused. He knew it would be hard for people to change their minds about homosexuality and therefore he decided to come to Australia where homosexuals are tolerated.
·He experienced harm in Indonesia because most people disagreed with homosexuality, and he was discriminated against. He was also bullied, abused and mistreated.
·He did not seek help because he knew he would be ignored. He had tried before.
·He did not move or try to move to another part of Indonesia because the culture within the country is the same. People are not ready to accept homosexuals.
·He thinks that on return to Indonesia he will experience the same miserable issues again and live under a shadow.
·He thinks he will be harmed or mistreated if he returns to Indonesia because of the unjust and unfair actions and discriminatory and bias attitudes of the people who disagree with homosexuality.
·He does not think that the authorities of Indonesia can protect him if he goes back because the people are not ready to accept homosexuals.
·He does not think he could relocate within Indonesia to an area where he would not be harmed because it is the same everywhere, people are not ready to accept homosexuals.
On 8 November 2022, the delegate refused to grant the applicant a protection visa under s 65 of the Act. The delegate was not satisfied that the applicant’s claims for protection were genuine given the lack of detail in his application, absence of any supporting evidence and his failure to provide any further information or comment, when invited to by the Department. The delegate finding that the applicant’s claims were not credible and rejected them in their entirety and concluded that the applicant was not a person whom Australia had protection obligations as outlined in paragraphs 36(2)(a) or 36(2)(aa) of the Act.
To date, no further material, information, documents and/or written arguments or submissions relating to the applicant’s claims for protection have been provided to the Tribunal
CONSIDERATION OF CLAIMS AND EVIDENCE
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 in this case is whether the applicant meets the criteria for the grant of the protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference (and receiving country)
The applicant has provided to the Department a copy of the biographical/biodata page of his Republic of Indonesia passport. The Tribunal is satisfied that the applicant is a citizen of Indonesia. There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) of the Act does not apply. The Tribunal finds that the receiving country is Indonesia; and on this basis the applicant’s claims have been assessed against Indonesia.
Does the applicant satisfy the refugee criterion for protection?
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to persuade the Tribunal that all the statutory elements are made out.[6] It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicant’s claims, or to establish or assist in establishing the claims: s 5AAA. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant.[7]
[6] MIEA v Guo (1997) 191 CLR 559.
[7] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.
The Tribunal has considered the applicant’s claims for protection, that being on the basis that he is gay, however, like the delegate, the applicant’s finds his claims regarding his past experiences in Indonesia, as a gay man, lack any key or substantiating details. For example, the applicant has not provided any details or evidence of when and/or how he realised he was attracted to the same sex. He has not provided any details of any past relationships and/or any details of his involvement with the LGBTI community in Indonesia and/or Australia. He has also not provided any specific details of incidents in Indonesia, in which he claims he was harmed because of his sexual orientation and/or identification as a gay man.
The Tribunal has before it the information provided by the applicant in his application for the protection visa and given the concerns articulated above, like the delegate, the Tribunal is not satisfied that the applicant’s claims for protection are credible or true.
The Tribunal does not accept the applicant’s claims that he is and/or identifies as a gay man and/or a homosexual. The Tribunal does not accept the applicant’s claims regarding his past experiences in Indonesia as a gay man and/or homosexual or that such experiences led to his decision to leave Indonesia. It follows, that the Tribunal does not accept the applicant’s claims that arising from his sexual orientation and/or identification as a gay man and/or homosexual, on return he will be treated in any of the ways claimed including being discriminated against, bullied, abused, mistreated, ignored, not accepted or treated unjust or unfairly by anyone in Indonesia. The Tribunal does not accept that on any of the bases claimed he will be harmed on return to Indonesia.
Notwithstanding this, the Tribunal accepts the applicant is [age]-year-old man. The Tribunal also notes that in his application for a protection visa, the applicant states his ethnicity as “Indonesian” and his religion as “Hinduism”, which the Tribunal accepts. The applicant has not indicated that he has experienced any issues on these bases in the past, nor expressed concerns about them in the future; and it follows that the Tribunal is not satisfied that such claims arise on the material.
Having considered the totality of the evidence, like the delegate, the Tribunal does not accept the applicant’s claims for protection in their entirely; and it follows that the Tribunal is not satisfied the applicant faces a real chance of harm, on these bases and/or for any other reason including his profile, should he return to Indonesia, now or in the reasonably foreseeable future.
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) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicant meets the complementary protection criterion under s36(2)(aa), the Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.
As set out above, the Tribunal has not accepted the applicant’s claims for protection in their entirety; and found that the applicant does not face a real chance of harm, on these bases and/or on account of his profile or for any other reason, should he return to Indonesia, now or in the reasonably foreseeable future. The ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion;[8] and it follows that the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm.
[8] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
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)(aa).
Member of the same family unit
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.
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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