2420225 (Refugee) - [2025] ARTA 1225

2420225 (REFUGEE) [2025] ARTA 1225 (5 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2420225

Tribunal:General Member J Lock
Date:5 March 2025

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

Statement made on 05 March 2025 at 1:20pm
CATCHWORDS
REFUGEE – protection visa – China – imputed political opinion – petitioner against employer – corruption – detention – physical assault – fear of killing – exit procedures – return visits to China – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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
1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 24 June 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a national of China, applied for the visa on 2 February 2024. The delegate refused to grant the visa on the basis that the applicant’s claims that she petitioned against her employer were not credible.
3. The applicant appeared before the Tribunal on 25 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
BACKGROUND
4. The applicant is [an age]-year-old woman who was born in Beijing, China. She grew up in Hebei province until moving to work in the [unit 1] in [a business 1] in the [District 1] of China. The applicant married when she was [age] years old and lived with her husband in Tianjin. She has one daughter who is now an adult and has [her own] children. The Tribunal accepts this to be true.
5. The applicant travelled from China to Australia on a tourist visa (subclass 600), arriving [in] November 2023. The applicant applied for a protection visa on 2 February 2024. She has remained in Australia since. The applicant is still married and her husband and daughter live in China. The Tribunal accepts this to be true.
Evidence before the Department
6. The applicant lodged a protection visa application with the Department of Home Affairs (the Department) on 2 February 2024 (the protection visa application) and attached an unsigned statement that detailed her claims. The applicant’s claims as set out in the statement are summarised as follows:
·   The applicant had been working in the [unit 1] of [a business 1] in Tianjin since [specified year]. At the beginning of 2021, a new manager, [HX], started working there.
·   [HX] changed suppliers, the quality of the food was not as good and employees complained about the quality of the meals.
·   The applicant raised her concerns with [HX] many times, who told her to mind her own business and attempted to bribed her, which she refused.
·   The applicant regarded the employees of the [unit 1] as family, and decided to report [HX] for colluding with suppliers, who issued false invoices and embezzled money meant for employees' food.
·   [In March], 2023, the applicant went to the relevant [Authority 1] to report [HX]. The official was rude to her and chastised her for reporting her boss. She was surprised and scared.
·   A few days later, [HX] called her to his office and said he knew of her report and yelled at her and ordered her to leave immediately. The applicant refused to leave her job and [HX] asked the finance department to stop paying her salary.
·   [In April], the applicant went to the [District 1] [Authority 2] to report [HX] for accepting bribes and embezzling public funds. The [Authority 2] officials referred her to the [Authority 1]. The applicant felt they were turning a blind eye to corruption and got angry. The police were called and the applicant was arrested for obstructing official duties.
·   The applicant was questioned and gave details of her petition. A male police officer demanded evidence of her accusations, then started insulting her and grabbed her hair and hit her on the head, making her dizzy. The applicant started crying and yelling. The officer grabbed her hair and threw her to the ground.
·   The applicant was detained for four days in the detention centre, not allowed to go out like other detainees or see her family or make phone calls.
·   After her release, the applicant received several unknown phone calls, saying that she was blocking people's way of making money and asking her to be careful when going out.
·   The applicant became more panicked and afraid to go out. She lost her job and was depressed. She couldn’t understand why she, being a righteous person, was being being hit with injustice, and it made her despair.
·   Finally, the applicant decided to leave China.

The Department wrote to the applicant by letter dated 25 March 2024 requesting more information from the applicant. The letter set out the following concerns:
· Her application lacked details regarding her petition against a corrupt manager at work, officials ignoring her petitions, her arrest, detention and assault by police – such as dates, locations, events and other information
· Country information states there are measures in place that restrict issuing of passports to persons of interest as well as strict exit procedures at the airport when departing China. This suggests the applicant’s ability to obtain a passport and pass through border controls and leave China indicates she may have been of no interest to the authorities when she departed.
The letter invited the applicant to provide further information regarding her claims and suggested she provide copies of any letters or petitions regarding the corrupt manager, evidence of employment in the [unit 1] at the [business 1] and copies of any arrest warrants or charge sheets.
The applicant did not provide a response to the Department. The applicant was not invited to attend an interview with the Department.
On 24 June 2024, the delegate made a decision refusing the applicant’s application for a protection visa. The delegate found that the applicant’s claims that she petitioned against her employer were not credible. The delegate was not satisfied the applicant was a refugee as defined in s5H(1) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to the People's Republic of China, there is a real risk she would suffer significant harm as defined in s36(2A) of the Act. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for in s36(2)(a) or (aa) of the Act.
Evidence before the Tribunal
The applicant applied for a review of the delegate’s decision on 28 June 2024.
The Tribunal obtained movement records from the Department recording the applicant’s travel to and from Australia and visa status. Relevant details from these records were put to the applicant in the hearing.
The applicant attended a hearing before the Tribunal on 25 November 2024. The hearing was adjourned to allow the applicant time to seek advice and representation. The applicant did not give any evidence to the Tribunal in this hearing.
The applicant attended the adjourned hearing before the Tribunal on 7 January 2025 to give evidence and present arguments. The applicant represented herself. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicant’s evidence is summarised as follows:
·   The applicant is a citizen of China and of no other countries
·   She was born in Bejing and lived in Hebei province, China. When she was [age] years old, she started working and moved to the [business 1]. She lived there and worked in the [unit 1] of the [unit 1], doing [specified duties].
·   After moving to the [business 1] she got married and is still married. She has a daughter aged [age] years. Her husband and daughter live in Tianjin and she has regular contact with them.
·   The applicant travelled to Australia on two occasions prior to arriving in November 2023, for the purposes of a holiday. The first occasion was from November 2019 – January 2020, the second occasion was from May 2023 – August 2023. She did not experience any difficulty leaving China on either occasion.
·   Since arriving in Australia in November 2023, the applicant has felt really happy. She suffers from bad allergies and asthma in China that cause coughing and shortness of breath. It is better in Australia and she doesn’t need to take her medication. In China she needed to take medication every day, but it didn’t really control it. It would stop her from eating and she had to go to the hospital many times. The applicant is concerned she could suffer serious harm from asthma if she were to return to China. She has tried to access medical treatment in China but it didn’t work. She doesn’t have any medical records to support her diagnosis but has some tablets. There is no other part of China where she could live. She has stayed in different parts of China and still has the condition. It is affected by food and air quality. She tried living in the countryside in Hebei province.
·   The applicant is afraid of returning to China as she reported her manager when she was working in the [unit 1]. They didn’t get along well and had quarrels. She called the police and the manager blamed her of wrong-doing. She called the police because they harmed her and threatened her. They threatened to harm her if she goes back to China.
·   She stopped working there in 2019. The threats happened after she came to Australia the first time in 2019.
·   They called her and threatened her over the phone – that they will kill her if she didn’t keep her mouth closed. They were corrupt at work – regarding the [resources] and the [unit 1]. When asked, the applicant was not able to provide any further specific detail about the alleged corruption.
·   Initially the applicant stated that she did not recall the manager’s name. When the Tribunal suggested the name “[HX]”, the applicant did not confirm that was their name.
·   In 2019, the applicant called the police and then manager started threatening her and she couldn’t work there anymore. The police helped the manager and covered what he did and they didn’t do anything for her.
·   After COVID started in 2020, the applicant started working for another employer in a different [unit 1] in the [same industry]. She did not have any problems from anyone at the first [unit 1] as she blacklisted them on her phone and there was no way for them to call her.
·   After she left the first [employer], the manager called her and threatened her over the phone. She couldn’t count how many times. She reported it to the police but it didn’t work. She doesn’t have any records of the reports to the police.
·   The last call she received from the manager was in January 2023 before Chinese New Year. He said she would not have a good new year.
·   She has not had any contact from the manager since being in Australia.
·   She did not receive any poor treatment from the police when she reported the corruption to them. They just told her to keep her mouth shut.
·   The applicant still fears harm if she were to return to China now, because they threatened her many times. Her family told her the manager had been sacked by the employer. She recalled the manager’s name was [QZ]. She confirmed she has the same surname.
·   Since the applicant has left China, her family have not had any contact with the manager or the applicant’s former employer. Her family still live at the same address where the applicant lived prior to leaving China.
·   She does not fear harm from the manager if she returned to live in another area of China.
·   She does not know if she fears harm from the Chinese authorities if she were to return to China.
The applicant declined the opportunity to provide any further documents or information to the Tribunal to support her claims following the hearing.
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.
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: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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
In summary, the applicant claims to:
· suffer from asthma or a similar respiratory condition; or
· have made complaints of corruption against a manager at her place of employment in China
and fears harm in China on the basis of those claims if she were to return to China.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality

The applicant travelled to Australia on an apparently genuine Chinese passport, a copy of which was provided to the Department and the Tribunal. The applicant states that she is a Chinese citizen. The Tribunal finds the applicant is a Chinese citizen and has assessed her claims against China as her country of nationality and the receiving country.

Credibility

The applicant has given information regarding her claims for protection:
·to the Department on 2 February 2024 contained in the protection visa application (the protection visa application) and statement (the applicant’s statement); and
·to the Tribunal at the hearing on 7 January 2025
In some respects, this information was broadly consistent. For the reasons given below, where there has been a discrepancy in the information given, the Tribunal has preferred the evidence given by the applicant at the hearing.
The Tribunal accepts the following to be true:
·   The applicant was born in Beijing, China and grew up in the Hebei province.
·   In [year], the applicant began work in the [unit 1] of [a business 1] in Tianjin. She lived and worked in Tianjin from that time until leaving China in 2023.
·   After starting work, the applicant married. She and her husband lived in Tianjin and had a daughter. Her husband and daughter continue to live in Tianjin.
·   The applicant travelled to Australia on two occasions for the purposes of a holiday, from [November] 2019 until [January] 2020 and from [May] 2023 until [August] 2023.
·   The applicant arrived in Australia on a tourist visa [in] November 2023 and lodged a protection visa application on 2 February 2024.
·   The applicant stopped working at the first [unit 1] in 2019 and started working at a different [employer] in the [same industry] in Tianjin in early 2020.
In several key respects, the information given by the applicant in the applicant’s statement, and the evidence given by the applicant in the hearing was contradictory and inconsistent, leading to concerns about the credibility of the applicant’s claims.
Given the discrepancies outlined below, and that the applicant was unable to recall at the hearing significant events that are detailed in the applicant’s statement, the Tribunal is not satisfied of the credibility of the applicant’s statement. The Tribunal places no weight on the applicant’s statement.
Firstly, the applicant’s statement identified a manager named [HX] starting at the [unit 1] at the beginning of 2021, the quality of the food deteriorating, the applicant raising her concerns with [HX] and the applicant deciding to report him for collusion and embezzlement. The statement contains specific reference to a report being made to the relevant [Authority 1] [in] March 2023.
The applicant gave evidence at the hearing that she raised her concerns about the manager with the police in 2019 and finished work at the [unit 1] in 2019. She received threats from the manager after her first trip to Australia in 2019.[1] After COVID began in 2020 she started work in a different [unit 1] in the [same industry]. Initially she was unable to provide the manager’s name.
[1] Movement records show the applicant left Australia [in] January 2020
The Tribunal had concerns that these accounts differed in terms of the identity of the manager and when the alleged corruption occurred. The Tribunal put these concerns to the applicant in the hearing, The applicant explained that the threats started in 2019 and escalated in 2021 and became worse. It was at this point the applicant identified the manager as [QZ], confirming she shared the same surname.

The Tribunal finds it implausible that the applicant would not be able to recall clearly the name of the manager with whom she claimed to have worked for some time and about whom she had made allegations of corruption. Given the actions of this manager lie at the foundation of the applicant’s fears, it was surprising that the applicant could not recall his name initially in the hearing and even more surprising that she provided a different name to the one provided in the applicant’s statement and that the name provided was [name], which she shares.
At the hearing, the applicant gave evidence that the protection visa application and the applicant’s statement were prepared with the assistance of her cousin, who lives in Australia. When these concerns were put to her, the applicant stated that she might have made a mistake when preparing the statement.
Faced with the two different accounts, the Tribunal is not able to accept either and is not satisfied of the identity of the applicant’s manager. The Tribunal is also not satisfied of when the applicant claims to have made complaints against her manager regarding corruption.
Secondly, the applicant’s statement referred specifically to applicant making a report to the relevant [Authority 1] [in] March 2023. At the hearing, the applicant gave evidence only of reporting the alleged corruption to the police. When this was put to the applicant at the hearing she explained when she was preparing the documents she was so upset and didn’t recall all the details. She did not have any records of her reports to either the police or the [authority].
The Tribunal notes that there is more detail in the applicant’s statement than in her evidence to the Tribunal at the hearing. The applicant’s evidence at the hearing was vague and lacking detail in relation to her concerns about corrupt conduct by her manager. At the hearing, the applicant gave evidence that they were corrupt at work regarding the food and the [unit 1] but was not able to provide any further specific detail about the alleged corruption when asked. The applicant’s evidence at the hearing about the complaints she claimed to have made about the corrupt conduct was also vague and lacking in detail. The applicant gave evidence of calling the police and reporting to the police many times. It was only when the applicant’s statement was read to her in the hearing that she said she reported to both the [authority] and the police. She did not provide any further detail of the nature of the complaints or have any records of the complaints.
Similarly, the evidence given by the applicant regarding the threats she received was vague and inconsistent. At the hearing, the applicant said initially the threats happened in 2019 after she returned from her first visit to Australia (noting this was in January 2020). She received a death threat on one occasion but could not remember the name of the person who made it. Her manager threatened her many times over the phone and she reported it to police. The applicant gave evidence that she left her job in 2019 and blacklisted “them” on her phone so there was no way for them to call her. She later gave evidence that the last threat she received from the manager was before Chinese New Year in 2023 when he said she would not have a good new year.
The Tribunal does not accept that the applicant made complaints of corrupt conduct on the part of her manager to either the police or the relevant [Authority 1]. The Tribunal does not accept that the applicant received threats from her manager as a result of complaints the applicant claimed to have made.
Thirdly, the applicant’s statement contains specific details of the applicant making a complaint to the [District 1] [Authority 2] [in] April to report her manager for accepting bribes and embezzling public funds. It contains further details of the police being called, the applicant being arrested, assaulted while in custody and detained for four days without contact with friends, family or other detainees.
At the hearing, the applicant did not give any evidence of having been arrested or detained until the applicant’s statement was read out to her. Initially she said that she had not received any poor treatment from the police when she reported the corruption to them, they just said she should keep her mouth shut. After the applicant’s statement was read to her, she confirmed that she had been arrested, but was unable to provide any further details. When asked what happened to her when she was arrested, she said she was really upset and couldn’t provide details. She could not recall when she was arrested and could not recall what happened.
The Tribunal does not accept that the applicant made a complaint against her manager for corrupt conduct to the [District 1] [Authority 2]. The Tribunal does not accept that the applicant was arrested, assaulted by police while in custody or detained for four days.
The Tribunal noted that the applicant claimed to have received threats from her manager from 2019 up until January 2023. After that time the applicant travelled to Australia on a tourist visa from May – August 2023. When asked why she did not claim protection when she was in Australia in 2023, the applicant gave evidence that the purpose of that trip was to double check that she was physically fit to stay in Australia and as her daughter had just had [a] child at that time, she went back to China.
Does the applicant satisfy the refugee criterion for protection?
Claim on the basis of having made complaints of corrupt conduct against a manager
For the reasons outlined above, the Tribunal has found that the evidence in relation to the applicant’s claim to have made complaints of corrupt conduct against her former manager is not credible. The Tribunal is not satisfied the applicant has made any such complaints, nor that she has received any threats as a result. The Tribunal is not satisfied that the applicant was arrested, assaulted by police while in custody or detained for four days.
Claim on the basis of asthma or a respiratory condition
The applicant gave evidence of experiencing shortness of breath and coughing due to allergies and having asthma. The applicant did not provide any medical evidence to provide a diagnosis of asthma or other respiratory condition. The applicant gave evidence to the Tribunal that she had to take medication in China to control the condition and had to attend hospital many times for medical treatment. There is no evidence before the Tribunal to suggest that the applicant is unable to access appropriate medical treatment for her condition in China, or that any refusal would be for reason of the applicant’s race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied the applicant suffers from asthma or other respiratory condition.
The Tribunal finds there is no real chance the applicant would suffer any harm if she were to return to China. After considering all of the applicant’s claims, the Tribunal finds that there is no real chance that she would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act if she were to return to China now or in the reasonably foreseeable future.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution. The Tribunal is, therefore, not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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) of the Act.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee criterion in s 5J(1)(b) of the Act[2]
[2] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
Having found there is no real chance of any harm, it follows that the Tribunal finds that there is no real risk the applicant will suffer any significant harm as a necessary and foreseeable consequence of returning to China.
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 China, there is a real risk that she would be subjected to any form of torture, cruel or inhuman treatment or punishment, degrading treatment or punishment or suffer arbitrary deprivation of her life or the death penalty.[3]
[3] s 36(2A) Migration Act 1958 (Cth) (the Act), terms as defined in s5(1) of the Act.
Therefore, 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 any of the criteria in s 36(2).
DECISION
56.     The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:      25 November 2024 and 7 January 2025
Representative for the Applicant:        self
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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