2420778 (Refugee) - [2024] AATA 4342

2420778 (Refugee) [2024] AATA 4342 (19 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2420778
COUNTRY OF REFERENCE:                   Zambia
MEMBER:Nicole Burns
DATE:19 August 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 August 2024 at 12:04pm

CATCHWORDS
REFUGEE – Protection Visa – Zambia – bisexuality – be at risk of being harmed by the police – unlawful behaviour under the Penal Code – in a heterosexual relationship with a child – Tribunal does not accept the applicant is bisexual – being subject to an IVO in Australia related to his former partner – significant delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 June 2024 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 citizen of Zambia, applied for the visa on 22 March 2024.
The applicant appeared before the Tribunal on 12 August 2024 to give evidence and present arguments.
The issue in this case is whether the applicant is a refugee or whether complementary provisions apply, as per the criteria set out below. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The Tribunal accepts the following about the applicant’s background (including family composition and work history) as set out in his written evidence to the Department and Tribunal and confirmed at hearing.
The applicant is a [age]-year-old man from [Copperbelt] Province in Zambia. He came to Australia from Zambia in February 2007 after completing high school, enrolled in a [degree], holding a student visa. At hearing he told the Tribunal although he completed all subjects (in around 2011), he was not awarded the degree due to outstanding university fees.
In Australia the applicant has worked in several jobs, including (most recently) as a [various occupations].
The applicant’s parents, who are divorced, live in Zambia as do his four brothers.[1] Presently the applicant is in a relationship with an Australian woman called [Ms A]. They have a son together, born in [year] who is an Australian citizen.
[1] Which includes: his biological brother, half-brother and two stepbrothers.
The applicant has been in immigration detention since January 2024.
Protection claims and evidence
The applicant claims to fear serious harm at the hands of the authorities, community and/or his family on return to Zambia based on his bisexuality, where same sex activity is illegal.
The applicant initially set out his claims in his protection visa application form. In it he states that he did not face harm in Zambia and came to Australia to complete his studies. However, during his time in Australia he came to identify as bisexual, which is illegal in Zambia. He states that he did not explore his attraction towards men in Zambia because he was fearful of the consequences; he was aware of how the community mistreated bisexuals and how they were spoken about; and therefore he suppressed his sexual inclinations to remain safe. He goes on to state it was only in Australia that he commenced various casual relationships with men from 2016 to 2020. As a result, the applicant states that he fears being harmed as follows on return to Zambia:
·He will face harm from the police, community and his family who do not tolerate bisexuality.
·His family sent him threatening correspondence upon finding out about his sexuality, suggesting they would beat him and stone him to death if he returned.
·He has heard of people being stoned to death for their sexuality.
·Zambia’s Penal Code deems same sex relations unlawful. He therefore may be at risk of being harmed, arrested and/or imprisoned by the police in Zambia for being bisexual.
·Stoning or mob justice is punishment from the community for being gay or bisexual. He fears if he is pointed out as a bisexual man, the community would come out and rally; that it generally starts with one person throwing stones, bottles and branches before others join in; and he has witnessed this happen to an individual who was gay.
·The police just watch and do nothing to protect the person being harmed.
·The applicant would be arrested if he openly presented as bisexual and there would be some form of torture or physical punishment. He fears being outed and harmed in prison by other inmates.
·As a Christian nation the community and authorities in Zambia would perceive the applicant’s sexuality as shameful and think he has brought back Western ideologies. The community would see him returning to Zambia as the country being punished because of his sexuality.
The applicant concludes by stating there is no protection from the police or authorities because bisexuality is against the law in Zambia. He adds that he would also be at risk of being harmed by the police due to his unlawful behaviour under the Penal Code, which applies across Zambia.
In support of the protection visa application the applicant provided to the Department a copy of an email dated 6 March 2024 purportedly from his brother (f[Mr B]) on 22 February 2024, with the subject line: ‘You are an embarrassment!!!!!!’. He also provided a copy of Zambia’s Penal Code.
According to information contained in the delegate’s decision record,[2] by letter dated 27 March 2024 the delegate wrote to the applicant requesting further details and supporting documents to support his claims. In response the applicant provided an unwitnessed statutory declaration dated 9 April 2024 in which he provided further details about his upbringing and life in Zambia, coming out as a bisexual in Australia and experiences here, relationship history with men and women in Australia, and contact with his family in Zambia.
[2] A copy of which the applicant provided to the Tribunal on review.
The applicant also explains the delay in applying for a protection visa after arriving in Australia was due to a combination of several cultural, social and personal factors. These included fear of being outed, discriminated against, judged or ostracised in Australia, including as he was still coming to terms with his sexuality. He also feared reprisals from his family, the community and/or police if his application was unsuccessful and he had to return to Zambia.
Further, the applicant states that he remains fearful of being arrested, beaten and or harassed by the police on return given same sex conduct is prohibited under ss 155 and 157 of the Zambian Penal Code Act of 1995 (chapter 87). It is documented that the authorities often justify and encourage the detention, arrest and harassment of individuals perceived as lesbian, gay, bisexual, transgender, queer or intersex (LGBTQI+) relying on the constitutional declaration of Zambia as a Christian nation, even irrespective of whether a ‘crime’ has taken place, he states. Also given it is socially unacceptable to be bisexual or gay, he faces a risk of harm from the community which could include discrimination, harassment, being beaten, stoning and mob justice.
The delegate refused the applicant a protection visa on 26 June 2024, not satisfied he was owed protection. The delegate did not accept his claims to be bisexual due to several concerns with his evidence including vague oral evidence and the significant delay in applying for protection after his arrival in Australia, despite same sex activity being criminalised in Zambia.
On review the applicant provided a typed statement to the Tribunal (undated) in which he reiterates his background, immigration history and protection claims. He explains that following the discovery of his sexuality in Australia, he explored options of applying for protection, having attended the Human Rights Law Program at the Asylum Seeker Resource Centre (ASRC), however, still faced significant fears about expressing his sexual orientation. The applicant submitted copies of text messages from volunteers and staff members at ASRC in April and May 2023 asking him to contact them and/or send documents and/or confirming an appointment.
Additionally the applicant provided to the Tribunal:
·Copies of exchanges between ‘[Mr C]’ and the applicant (purportedly) in the period from 16 October 2021 to 28 November 2022 discussing meeting up for sex.
·Copies of four text messages and three missed calls from ‘[Mr D]’ on 7, 11, 19 and 20 February 2022. In one of the messages [Mr D] talks about oral sex.
·Copies of screenshots of conversations between ‘[Mr E]’ and the applicant (purportedly), undated, discussing meeting up for sex.
At the Tribunal hearing the applicant explained he met ‘[Mr E]’ at a nightclub sometime in 2017 and they met for sex on occasion up until sometime in 2018. [Mr E] is an Australian citizen originally from [a country], who the delegate mistakenly referred to as ‘[name]’ in the decision record. The applicant explained further that ‘[Mr C]’ was someone he met via a gay dating application (‘app’) when he was active in around 2018 and 2019. He met ‘[Mr D]’ one night at a club and they exchanged numbers but he did not meet up with him again.
The applicant said the messages from [Mr E] were screenshots and indicated he should be able to provide the specific dates of the conversations to the Tribunal. However on 16 August 2024 the applicant advised the Tribunal in writing that he is unable to do so because they have been deleted (presumably by [Mr E]); he is unable to request their chat history because he has been unfriended on [social media]; and although he has made multiple attempts to recover this information, he has been unsuccessful.
The applicant explained that he did not provide these messages to the Department because initially when detained he was unable to access them from his devices.
In his oral evidence the applicant told the Tribunal although he realised he was attracted to men as well as women when in around [a grade] (aged [age]) in Zambia, he never disclosed his feelings to anyone, except his friend [Mr F], and never acted on his feelings in Zambia. He said [Mr F] – who was around a year older than him – was supportive. [Mr F] is gay and had come out to his parents and ‘everyone’ (he did not elaborate). Although [Mr F]’s parents were supportive they sent him to school in [Country 1], assuming his sexuality would be more accepted there. The applicant said after he came out in Zambia [Mr F] was ridiculed by school peers and community members, as was [Mr F]’s sister [Ms G] (who remained in Zambia after he left) because of her brother’s homosexuality.
In Australia the applicant said he had his first sexual encounter with a man – [name] – also from Zambia, in around 2016. They saw one another a couple more times. He then had a casual relationship with [Mr E] who he met in around 2017 at a club, until around 2018, as noted. The applicant said he had casual encounters with other men in Australia who he met at clubs or through internet dating sites such as [deleted]. No one knew about these relationships or encounters, until he confided in his current partner, [Ms A], in around 2022, before they started a relationship. She told him not to worry and that she does not judge him.
The applicant said he has kept his encounters with men largely secret in Australia because initially he was coming to terms with his bisexuality himself. He was also fearful of being ostracised by his friends and community members here – many of whom have a Zambian background. He decided it was best to keep it to himself.
The applicant described several relationships with women in Australia, including with his current partner, [Ms A], who he has known for a long time and who he started a sexual relationship with sometime in 2023. Their son was born on [date]. The applicant said they continue to be in a relationship and they plan to live together as a family unit when he is able to be released from detention. He said [Ms A] is aware of his situation and said she would think about possibly moving to Zambia with the applicant if his review application is unsuccessful: however, it would depend on his situation there.
Prior to [Ms A] the applicant said he had a relationship with a woman called [Ms G] in 2020 and 2021. He also had a relationship with a woman [from] 2007 to around 2009 and another woman called [name] in around 2010 and 2011.
The applicant said sometime in late 2019 he told his brother, [Mr B] over the telephone that he was attracted to men (as well as women). He did so then because he was tired of living a lie and felt he could trust him and confide in him. However, [Mr B] did not take it well, told the applicant he was disgusting and then refused to talk to him again, including failing to respond to his messages (text and voice mails) from early this year when detained.
In February this year the applicant said he received an email from [Mr B] expressing his and his family’s disgust at the applicant’s disclosure of his sexuality, the shame he has brought their family, and threats to harm him if he returns to Zambia.
The applicant said he is therefore afraid of being seriously harmed – including possibly stoned and/or a victim of mob justice - on return to Zambia by his family members, the community and/or the authorities as a bisexual.
Findings about the applicant’s bisexuality claims
The Tribunal has considered if the applicant is bisexual, as claimed. It has several concerns with his evidence in this respect, for the reasons that follow.
First there are inconsistences in some respects between the applicant’s written claims in the protection visa application and his April 2024 statutory declaration provided to the Department and his oral evidence at hearing, and at times changing oral evidence about key matters. For example:
·In the statutory declaration the applicant states when his former school friend – [Mr F] – came home to Zambia from [Country 1] every six months, he was openly ridiculed and vilified on account of his sexuality. Also that the backlash was horrendous when he had the opportunity to catch up with [Mr F], with insinuations made that he was homosexual, and he would be told he was bringing shame or would be cast to hell based on his friendship with a homosexual. However, at hearing the applicant said he only saw [Mr F] once after he moved to [Country 1] to study and did not mention either himself or [Mr F] facing backlash including being ridiculed or vilified for any reason during that visit.
·In the statutory declaration the applicant states in around 2020 he told his brother he was bisexual and that following that conversation he made multiple attempts to contact his family and friends in Zambia, to no avail. At hearing the applicant said he had no contact with any family members in Zambia after he told his brother about his sexuality. However, earlier at hearing he told the Tribunal he was in regular contact with his mother via the telephone up until 2020/21, every couple of months. When asked about this discrepancy the applicant changed his evidence and confirmed that he did speak to his mother after he had told his brother about his sexuality, but they did not have a conversation about it.
Second, the applicant has not been able to adequately explain, in the Tribunal’s view, why he decided to tell his brother, [Mr B], about his attraction to men in around 2019 despite keeping his same sex attraction feelings secret in both Zambia and for almost a decade in Australia. Also given the risks in disclosing as such if he returns to Zambia where same sex activity is illegal. The applicant claims he wanted to unburden himself and thought his brother may be understanding and accepting. Yet the opposite occurred, with his brother allegedly becoming upset and offended, telling the rest of the applicant’s family and friends, ceasing contact, and sending the applicant a scathing and threatening email (signed the ‘The Whole Family’) in February this year.

The Tribunal also notes at hearing the applicant said since he has been in Australia his mother was the person he was primarily in contact with, not [Mr B] (or other family members), which brings in to question why he wanted to confide in his brother, at that time. When asked about this the applicant told the Tribunal his brother lost his phone often, and therefore it was difficult to get in touch with him. The Tribunal is not persuaded by this explanation and it remains unclear to the Tribunal why the applicant decided to tell his brother at that time given his own evidence that he was struggling with the shame of his bisexuality, and the risks in doing so.
Third, as noted by the delegate (and discussed at hearing) the delay between the applicant arriving in Australia and starting to act on his alleged attraction to men (from 2016) here and applying for protection on this basis in March 2024 is significant. The applicant explains there were several reasons for the delay in applying for protection including because he was still coming to terms with his sexuality and due to fear of being outed, discriminated against, judged or ostracised in Australia. Also he feared reprisals from his family, the community and/or police if his application was unsuccessful and he had to return to Zambia. The applicant claims further that he approached ASRC in 2023 about options of applying for protection but still had fears about expressing his sexuality. Whilst understandable to some degree, the applicant’s delay in applying for protection on this basis, only after he was detained early this year (after a long period of being unlawful), combined with the other concerns the Tribunal has with his claims in this respect, causes the Tribunal to doubt his core claims related to his purported bisexuality.
The Tribunal notes further the applicant’s evidence that in Australia he has had several long-term relationships with women, is currently in a relationship with a woman ([Ms A], since 2023) whom he had a son with recently, and they plan to be together as a family. The Tribunal accepts the applicant’s relationship history and current circumstances related to female partners is not inconsistent with the applicant’s claims to be bisexual, and that sexuality can be fluid. Nonetheless, the applicant’s current circumstances – in a heterosexual relationship with a child and plans to continue as such – when combined with the other concerns with his evidence as set out earlier, cast doubt on his core claims to be bisexual.
For these reasons the Tribunal does not accept the applicant is bisexual. It does not accept he told a friend in Zambia when young that he was bisexual, or that his friend was homosexual and experienced ridicule and harassment as a result (along with his family members). It also does not accept the applicant’s claims set out in the April 2024 statutory declaration that his father expressed his concerns about his masculinity when young, and mocked his emotional character and smile, implying they were traits of someone who could be perceived as gay.
The Tribunal also does not accept the applicant has had relationships and/or sexual encounters with men in Australia as claimed. It notes in this regard the applicant’s provision to the Tribunal of a selection of text message exchanges purportedly between him and three different men in Australia, some of which were of a sexual nature. It is unclear to the Tribunal who authored (and received the messages). Combined with the concerns the Tribunal has with the applicant’s sexuality claims as discussed, it therefore it gives them little weight.
As well the Tribunal does not accept the applicant’s claims to have confided in his brother, [Mr B], about his bisexuality in around 2019, nor to have received an email from [Mr B] in February 2024 making disparaging and threatening comments towards the applicant due to his sexuality. The Tribunal notes this email, which could have been written by anyone, is confused in its messaging, at times telling the applicant his family members in Zambia do not care about him and wanting nothing to do with him, and at other times threatening to seriously harm him – including participating in stoning him to death. For this reason, combined with the other concerns the Tribunal has with the applicant’s evidence as discussed, the Tribunal gives this email no weight.
It follows that the Tribunal also does not accept the applicant confided in his current partner, [Ms A], that he was bisexual.
The Tribunal therefore finds the applicant does not face a real chance of serious harm on return to Zambia from the authorities, community and/or his family members on account of his past relationships with men or on the basis of his alleged bisexuality on return to Zambia in the foreseeable future. His fears of persecution on this basis are not well-founded.
Other matters
The Tribunal notes the applicant provided to the Department a copy of a police application for an intervention order (IVO) and a Family Violence IVO made on 16 January 2024 against the applicant and listing his former partner ([Ms G]) as the protected person (copies of which are on the Departmental file). At hearing the applicant said he is due to appear in court in September this year in relation to the IVO. He said no criminal charges have been laid and he is not subject to any outstanding criminal matters. Further he has no concerns on return to Zambia due to this matter, confirming [Ms G] is not Zambian, and has no friends or family there. On the basis of his evidence in this respect the Tribunal finds remote the chance the applicant would face serious harm from anyone on return to Zambia due to being subject to an IVO in Australia related to his former partner.
The Tribunal accepts the applicant’s son was born [on date] and he wishes to remain in Australia to be with him and his partner, [Ms A], who are both Australian citizens. It remains unclear if they will return to Zambia with him. The Tribunal accepts this would be emotionally difficult, if it eventuated. However, being separated from a partner and/or child does not give rise to a well-founded fear of persecution as defined in s 5J of the Act, as the fear of persecution is not for one or more reasons set out in s 5J(a) and does not involve systematic and discriminatory conduct as required by s 5J(4)(c).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 5J of the Act. Therefore the applicant does not satisfy the criterion set out in s 36(2)(a).
For these reasons the Tribunal does not find there is a real chance of the applicant being persecuted now or in the reasonably foreseeable future on return to Zambia from the authorities, his family, or the community for reasons of his sexuality or any other reason.
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 this case, the Tribunal accepts the applicant is a national of Zambia and the Tribunal therefore finds that Zambia is the ‘receiving country’ for the purposes of s 5(1).
For the reasons set out above, the Tribunal has not accepted the applicant’s claims to be bisexual or to have had sexual relations or relationships with men and found there is not a real chance the applicant will suffer serious harm on return to Zambia from anyone as a result. It has also found he does not face a real chance of serious harm on return to Zambia due to being subject to an IVO in Australia (and related matters concerning his ex-partner). In MIAC v SZQRB, 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.[3] It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Zambia for any of these reasons.
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal accepts the applicant is concerned about the possibility of being separated from his partner and young son if he has to return to Zambia. The Tribunal accepts that he may find this emotionally difficult. Nonetheless court authorities – specifically judgments in SZRSN v MIAC and GLD18 v MHA – confirm that separation from one’s family members in Australia or another country, where the claimed harm arises from the act of removal itself, will not meet the definitions of ‘significant harm’ in s 36(2A).[4]
[4] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance; SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]. Similarly, in WZARI v MIMAC [2013] FCA 788 at [31]–[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
For these reasons 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 Zambia there is a real risk he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nicole Burns
Senior Member

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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