2300937 (Refugee) - [2024] ARTA 728

2300937 (REFUGEE) [2024] ARTA 728 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2300937
Tribunal:General Member P Noonan
Date:2 December 2024

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

Statement made on 2 December 2024 at 4:41pm

CATCHWORDS
REFUGEE – protection visa – Tanzania – fear of harm from father, a witchdoctor – threats to kill if he did not return to take up traditional village role – father now deceased and claim of uncle’s intention to kill him to find replacement for role – no actual harm and no threats from uncle – general security situation – delay in applying for protection – visa and relationship history – country information – witch doctors and witchcraft – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP (2016) 241 FCR 150
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MZAAJ v MIBP [2015] FCA 478
SZSPT v MIBP [2014] FCA 1245
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 25 January 2023 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 Tanzania, applied for the visa on 15 June 2016. The delegate refused to grant the visa on the basis that he does not have a well-founded fear of persecution or that there is a real risk of significant harm as a necessary and foreseeable consequence of his removal from Australia to Tanzania.
The applicant appeared before the Tribunal on 8 November 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Dr A], and [Ms B].
The applicant was represented in relation to the review. The representative attended the Tribunal hearing. The Tribunal notes that prior to the hearing the applicant requested an adjournment because of an impending operation and the stress of this. The Tribunal carefully considered this request but decided that as the operation was pending, and there was no medical information before it that the applicant was unfit to participate in a hearing, that it would proceed as scheduled. The Tribunal was satisfied that, throughout the course of the hearing the applicant was able to answer the questions of the Tribunal and give his evidence, to the best of his ability, without undue impediment from medical complications and that he was represented throughout the hearing and that no requests or submissions were made at any stage during the hearing that the applicant was unable to proceed further with the hearing.
PROCEDURAL HISTORY
The applicant arrived in Australia [in] August 2011 using a [visitor] visa which was issued on 15 June 2011 and which was valid until 15 September 2011.
He was granted a further visitor visa and then on 20 December 2011 he lodged a partner visa application. On 24 April 2012 this partner visa application was withdrawn and the applicant attempted to lodge another visitor visa application and then a visitor-medical treatment visa on 8 May 2012. He chose not to pursue either visa after discussion with the Department.
The applicant lodged a student visa application on 24 May 2012. This was refused on 29 May 2012 and he appealed that decision. His appeal was unsuccessful as the decision was affirmed on 2 April 2012 by the Migration Review Tribunal.
On 21 November 2014 the applicant lodged a Partner visa application which was deemed invalid on 26 November 2014. On 1 December 2012 he lodged another partner visa application which was again deemed invalid. On 19 December 2014 he lodged a partner visa application which was deemed valid. This was refused on 4 December 2016. He lodged an application for review of this refusal decision on 29 February 2016 with the Administrative Appeals Tribunal, which deemed the appeal to be a “no jurisdiction” decision on 29 April 2016.
The applicant then lodged a protection visa application on 15 June 2016. The applicant lodged his application for review of the refusal decision of 25 January 2023 with the Administrative Appeals Tribunal on 26 January 2023.
From 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.
The applicant’s personal background
The applicant is [Age] years old. He informed the Tribunal that his parents had always resided in Tanzania. His father has passed away but he does not know when. He found this out from his daughter last year who lives in Tanzania. His elderly mother is still alive and living in Tanzania. He has [children] in Tanzania. He stated that his mother is a ‘born again’ Christian as he is himself. He noted that he was born a Catholic. His father’s brother is [Age] and living in his father’s traditional village. He did not grow up in his father’s traditional village and has never lived there as his father moved away from it to work. In Australia he has been working as [an occupation].
The Tribunal accepts the above to be true.
CRITERIA FOR A 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.
Country of reference
The delegate was satisfied that the applicant’s country of nationality is Tanzania, and the Tribunal is also satisfied of this. A copy of the applicant’s Tanzanian passport is retained on the Department file. The Tribunal has accordingly assessed the applicant’s claims with respect to Tanzania as the country of reference or receiving country for the purposes of this appeal.
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 (DFAT), to the extent that they are relevant to the decision under consideration. DFAT has not prepared a country information report with respect to Tanzania.
The applicant’s claims for protection
In his 2016 written claim for protection the applicant stated that he left Tanzania to escape the abuse of his father, which included accidents that he suffered in Tanzania such as two road accidents, which he attributed to his father’s witchcraft practices. At interview with the Department the applicant stated that his father had threatened to kill him if he did not return to Tanzania and take up the practice of witchcraft. He also added that, as he has now been divorced, he will be treated as an outcast and discriminated against by his family in Tanzania.
At the Tribunal hearing the applicant confirmed that, despite the death of his father, he still fears harm because of discrimination against witchcraft practitioners in Tanzania and because his uncle will attempt to kill him so that he can find someone to replace him in the traditional role in his father’s ancestral village. He also still fears harm because of his divorce as he is not sure what his father said to the villager’s elders when he was alive about this. He also added that he fears harm because of the generally poor security situation in Tanzania.
The Tribunal’s considerations
Claim – fear of harm due to traditional witchdoctor and or witchcraft practices
The applicant appeared to make two different claims in this regard when confirming this claim with the Tribunal. He stated that he fears harm from his uncle and the local villagers of his father’s village because they will seek to kill him in order to replace him with someone else in the traditional inherited village witchdoctor role. He also somewhat confusingly claimed to fear harm because of prejudice in the broader Tanzanian community about witchcraft practitioners. The Tribunal discussed with the applicant that the role he appears to be claiming his father fulfilled was that of a witchdoctor. The applicant did not dispute that this was the case.
The Tribunal took evidence from the applicant’s witness [Dr A], who the Tribunal was informed, was appearing to give evidence about witchdoctor practices. [Dr A] informed the Tribunal that he is a Doctor of [Subject] and that he is from [Country] and that he had never lived in Tanzania. He stated that he wished to give evidence about his general knowledge of witchcraft in Africa. He informed the Tribunal that he had never studied the area. He only speaks from his own experience. He submitted that the role of witchdoctor in Africa is passed on from one generation to the next, usually to the eldest son. If the eldest son refuses the inherited role then they must get away from the country as there are implications for them if they refuse. When asked by the Tribunal how he knew this [Dr A] stated that he had seen like cases on television.
In considering the weight to be given to [Dr A]’s evidence the Tribunal noted that he has no professional qualifications or direct experience or study background in the area he appeared to give evidence about. Further his evidence is largely based upon third hand experiences such as what he has seen on television. Further he has never lived in Tanzania or specifically studied witchcraft practices and beliefs in Tanzania. Given these considerations the Tribunal places no weight upon [Dr A]’s evidence with respect to the situation for eldest sons who refuse to inherit the witchdoctor role in a village in Tanzania.
The applicant claims that he refused to take on the inherited role of a witchdoctor in his father’s traditional village. He informed the Tribunal that he left home at 24 to get away from his father and his demands in this regard. He has never lived in his father’s traditional village and his father was not a practicing witchdoctor when he lived with him, rather he had a traditional job until his retirement. The applicant claims that his father asked him to inherit the witchdoctor role but he refused. He claims that his father then became angry with him and kept asking him to change his mind. He then gave highly contradictory evidence that this was the extent of his interactions with his father and he had never threatened to kill him. When this contradictory evidence, with respect to past threats of harm from his father was discussed with the applicant, he replied that he took his father’s insistence that he adopt the traditional role as a form of threat.
The Tribunal discussed with the applicant that he had lived in Tanzania until he was 30 years old. The Tribunal put to the applicant if his father and other family members actually wanted to harm him then they had plenty of time to do so in the ensuing years that he lived in Tanzania after refusing the role, but they did not. If the applicant’s father or his uncle was so aggrieved by his unwillingness to inherit the traditional witchdoctor practice that they wished to kill or harm him then they had many years in which to attempt to do so. However, the applicant was never physically attacked in the six years he lived there, having refused his father’s wishes. The Tribunal gives this considerable period of time, without any such physical attack or even apparently threats, significant weight.
The Tribunal also considers, as discussed, that the applicant’s claims that two road accidents and a balcony fall were linked to his father’s witchdoctor practices, in a situation where his father had in fact never actually threatened him with harm, to be highly speculative in nature. The applicant submitted in response to these concerns that these were warnings from his father. The Tribunal considers this highly speculative, given his evidence that he was not actually directly threatened by his father, and gives this evidence of the applicant little weight in comparison to his many years living in Tanzania without suffering any direct harm or threat of harm from his father or anyone else in his family.
A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation. In MIEA v Guo, the Court said: Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[1]
[1] MIEA v Guo (1997) 191 CLR 559 at 572
Despite his father’s passing, the applicant now claims that his uncle and other various members of his father’s family, still want to kill him so that someone else can take on the traditional role. Again, the Tribunal considers this claim of an adverse interest from the applicant’s uncle and his family more generally to be very speculative. As already noted the applicant lived for many years in Tanzania without harm from his father or uncle or anyone else in his family. Further, despite his uncle still being alive, the applicant confirmed that there have been no threats of harm from his uncle or anyone else, either while he continued to live in Tanzania for many years, or in the many years since he left Tanzania.
The Tribunal is satisfied, based on the above considerations, that neither the applicant’s uncle or anyone else in his family, has any adverse interest in the applicant and as such it does not accept that his uncle or anyone else in his family, would seek to kill him or harm him in any way should he return to live in Tanzania.
[Ms B] informed the Tribunal that she has been living with the applicant in a de facto relationship for the past five years. She first met the applicant in 2012 in Australia. She has never been to Tanzania. She submitted that the applicant has health problems, he has [body part] problems, and he is depressed. If he had to leave Australia this would have a significant adverse emotional effect on her. She also submitted that the applicant’s sister has returned to Tanzania and is harming the applicant’s daughter, which indicates they are trying to force him back. The Tribunal notes that the applicant did not mention this, nor that he fears harm from his sister, and accordingly gives this evidence little weight with respect to the claim to fear harm for witchcraft or witchdoctor practices.
The applicant also made a somewhat contradictory and confused claim that he fears harm due to general adverse interest in witchcraft by the Tanzanian population. The Tribunal discussed with the applicant that it was difficult to see how he would be at risk of harm for this reason because his evidence is that he has not and would not be practicing any form of traditional practice in Tanzania. Further the Tribunal put to the applicant that country information reflects that, while there is sometimes violence against persons perceived as practising witchcraft, this was distinct from the traditional witchdoctor role he is describing that his father wished for him to pursue, and it is almost entirely focused upon elderly women and children and persons with albinism.[2] The applicant simply responded that the roles are almost the same thing but he then stated that witchdoctors use herbs and medicines and witches use spirits for evil. He then tried to claim that witchdoctors can practice witchcraft. The Tribunal rejects this aspect of the applicant’s claim as being confused and contradictory. He clearly stated that his father was a traditional witchdoctor. There is no evidence that his father or any other remember of his family have ever been targeted for harm because of this traditional role. The role he describes of witchdoctor does not fit within the witchcraft practices traditionally associated with persecution in Tanzania, which country information reflects is almost entirely focused upon elderly women and children and persons with albinism, none of which the applicant is. The Tribunal does not accept that the applicant will be perceived as being associated with witchcraft in Tanzania and as such he will not be harmed for this reason. The Tribunal is also satisfied that the applicant, even if he were to return to Tanzania and take up a traditional witchdoctor role, (which he has stated that he will not), would not be of adverse interest to anyone for this reason either now or in the reasonably foreseeable future.
[2] US Department of State 2023 Country Report on Human Rights Practices, Tanzania, section 6

In addition, and as discussed, the applicant came to Australia and spent many years pursuing other migration pathways. The Tribunal put to the applicant that it may expect that, if he genuinely feared harm, he would have applied for protection much earlier. The applicant submitted that he had found it hard to talk about witchcraft in Australia and he was scared, traumatised, anxious and depressed and so had not made the claim earlier.
The applicant’s representative submitted that his client has, over many discussions, convinced him that he really believes he is a victim of witchcraft and that it is a genuine fear in his head and that is why he agreed to support him.
The Tribunal has found that the applicant’s father has passed on. The Tribunal is also satisfied that the applicant’s uncle and other family members do not have an adverse interest in the applicant. In addition, if the applicant genuinely feared harm for reason of refusing to adopt the traditional village role of a witchdoctor, or for reason of generalised prejudice and adverse interest in persons undertaking witch doctor or witchcraft practices, the Tribunal would expect he would have sought to regularise his migration status through protection as soon as possible. Instead, he spent many years pursuing partner and student visas, and only when these avenues were exhausted, did he apply for protection. The Tribunal has considered the applicant’s explanation for his considerable delay in applying for protection but is not satisfied that this adequately explains why he delayed making this claim for so long. If he was actually scared and traumatised, for reason of refusing to pursue a traditional witchdoctor role or for reason of fear of being targeted for association with this role, as submitted, the Tribunal considers it reasonable to expect he would have pursued protection as soon as possible. In conjunction with the above considerations about this claim, the Tribunal gives this migration history of the applicant considerable weight and considers that it strongly reflects that he has never held a genuine fear of harm for this reason.
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.
Given the totality of the above considerations the Tribunal does not accept that the applicant has a well-founded fear of being harmed for reason of traditional witchcraft or witchdoctor practices. On the basis of the evidence before it the Tribunal does not accept that there is a real chance that the applicant will be seriously harmed by his uncle, or any other members of his family, or anyone else, for reason of refusing to take on the traditional role of witchdoctor in his father ancestral village, or for reason of being associated with witchdoctor or witchcraft practices, should he be required to return to Tanzania, either now or in the reasonably foreseeable future.
Claim – fear of harm due to the applicant’s divorce
The applicant explained to the Tribunal that he still fears harm because of his divorce in 2012 while in Australia with a woman whom he met in Australia. When asked who he fears harm from for this reason the applicant vaguely claimed that, while his father had been against the divorce, he now possibly fears harm from the village elders who his father may have talked to about the divorce in Tanzania, but that he is not really sure about this.
With respect to the feared harm the applicant has speculatively claimed that he may be forced to work as a farm labourer of that he may be discriminated against by family members.
The Tribunal asked the applicant if he had received any threats of harm for this reason since the divorce and he confirmed that he had not received any threats from anyone but his father as he disagreed with this choice. The Tribunal considers this claim, that he may be subjected to adverse interest for reason of a divorce in Australia to a woman whom he met and married in Australia, to be highly speculative. The applicant claims his father was against the divorce, but his father has passed away and he has not received any threats related to this now historical divorce, in the many years since then. The only basis upon which he now claims to fear harm is because he thinks his father may have talked to other elders, in the traditional village that the applicant has never lived in, about his adverse views with respect to the divorce. In answer to these concerns the applicant merely speculated vaguely that maybe his family are expecting him to have children.
The Tribunal rejects this claim as highly speculative and not real. The Tribunal finds that there is not a real chance of serious harm to the applicant for reason of his divorce in Australian in 2012 from any member of his family, or village elders from his father’s traditional village, or from anyone else, should he be required to return to Tanzania, either now or in the reasonably foreseeable future.
Claim – the general security situation in Tanzania
The Tribunal put to the applicant that a generally poor security situation appears to be something that applies equally to the population in general in Tanzania and if he were to be harmed it would be on a random basis. The Tribunal discussed with the applicant that any feared harm, as a result of concerns about the general security situation in Tanzania, would not appear to be harm directed at him for reasons related to the purposes of the refugee assessment. The applicant simply stated that Tanzanian law enforcement is not good at helping people.
The Tribunal finds that general crime and associated harm feared by the applicant for reason of the claimed poor general security situation in Tanzania, is not for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion. Therefore, he does not meet the criteria set out in s 5J(1)(a) of the Act.
Complementary Protection
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm for reason of his refusal to adopt traditional witchdoctor practices, or for reason of being associated with witchcraft practices, or for reason of his past divorce in Australia as a necessary and foreseeable consequence of being removed from Australia and returned to Tanzania.
As discussed with the applicant at hearing, s 36(2B)(c) of the Act states that there is taken not to be a real risk that an applicant will suffer significant harm if the Tribunal is satisfied that the real risk is one faced by the population generally and is not faced by the applicant personally. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply: BBK15 v MIBP (2016) 241 FCR 150 at [32]. The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245; MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) for general security reasons, the Tribunal discussed with the applicant that there does not appear to be a threat to him personally and that any harm suffered would be as a result of a random crime. The Tribunal noted that (under s36(2B) there is taken not to be a real risk that a person will suffer significant harm in a country if the real risk is one faced by the population generally and is not faced by the applicant personally. The applicant responded that the police are not very good at responding to crime in Tanzania in general. He did not suggest, and nor could the Tribunal discern, that any risk of harm from a generally poor security situation is specific to any particular area in Tanzania nor that the risk of generalised crime was a risk faced personally by the applicant. Rather the Tribunal is satisfied that this risk is one faced by the population of Tanzania generally. As such the Tribunal is required to find that there is not taken to be a real risk of significant harm to the applicant for this claimed reason, as a necessary and foreseeable consequence of him being removed from Australia and returned to Tanzania.
Overall conclusions
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 of hearing:   8 November 2024
Representative for the Applicant: Mr Joseph Michael Zaia (MARN: 0211396)
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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