2425519 (Refugee) - [2024] AATA 4467

2425519 (Refugee) [2024] AATA 4467 (7 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Anna Woods
CASE NUMBER:  2425519
COUNTRY OF REFERENCE:                   Sri Lanka
MEMBER:Samira Kamandi
DATE:7 October 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 07 October 2024 at 2:38pm

CATCHWORDS
REFUGEE – protection visa – Sri Lanka – membership of particular social groups – bisexual man – no past harm because of discreet behaviour – student visa ceased, homelessness, sex work, drug use, criminal convictions, imprisonment and immigration detention – complex mental health conditions and treatment – counselling and medication – no disclosure of sexuality to family – consistent claims and evidence – country information – criminalisation of same-sex conduct – discrimination, abuse, threats and violence – availability and quality of mental health treatment – questioning of those returning on temporary documents – effective protection measures not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3), 5L, 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), 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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND TO THE REVIEW

The applicant was born in [Year], in Colombo, Sri Lanka. He is of Tamil ethnicity and follows Hinduism.
While in Sri Lanka, the applicant resided with his family in Colombo. His father passed away when the applicant was 16 years old. His mother and sister remain in Colombo. His brother resides in [Country].
The applicant completed high school in Colombo in [Year], after which he enrolled in college completing a course in [subject 1]. He then enrolled in a bachelor’s degree in [subject 2].
The applicant applied for a student visa for Australia in December 2016. He was granted a student visa (subclass 500) and arrived in Australia [in] January 2017. The applicant studied and completed 3 years of a degree in [subject 2]. During this period, the applicant returned to Sri Lanka on 2 occasions, in November 2017 and July 2019.
The applicant was unable to continue to complete the final year of his degree in Australia prior to cessation of his student visa in August 2020.
The applicant remained in Australia on bridging visas, the last of which ceased on 30 June 2023, after which he appears to have been detained in immigration detention, where he currently remains.
On 24 January 2024, the applicant applied for a protection visa. He soon withdrew that application on 6 February 2024. The applicant explained that he withdrew that application because he made the application without legal assistance and wanted to add further information, which he was unaware he could do without withdrawing the application.
The applicant applied for a further protection visa on 7 April 2024, with the assistance of his representative, which was refused by a delegate of the Minister for Home Affairs (the delegate) on 29 July 2024 under s 65 of the Migration Act 1958 (Cth) (the Act).
On 29 July 2024, the applicant applied for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal). This is a decision of that review application by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the delegate
In his protection visa application, the applicant claims that he fears returning to Sri Lanka because of his sexual orientation, that he is attracted to both males and females. He claims that he would face treatment that would amount to serious harm and that he will not be able to access effective state protection and cannot relocate within Sri Lanka as ‘anti-LGBTI’ sentiment is deeply ingrained within the country’s culture and society.
On 10 April 2024, the delegate invited the applicant, under s 56 of the Act, to provide further details about his claims for protection. He was asked to provide details about when he realised that he was attracted to both genders, any experiences that he encountered in Sri Lanka due to his sexual orientation, information about his previous partners in Sri Lanka or Australia, and information about what he feared would happen to him if returned to Sri Lanka.
The applicant’s representative provided the delegate with a very detailed statement from the applicant dated 18 April 2024. In his statement, the applicant provides information about his background in Sri Lanka and his journey towards discovering his sexuality while in Sri Lanka. He provides information about his circumstances in Australia, including his relationship with a female who he met at university, which he described as ‘conflict-ridden’, and ended in 2020.
In his statement, the applicant provides details about his experiences between the years of 2021 and 2023, prior to being detained in immigration detention in August 2023. He explains that during this period, he experienced homelessness, engaged with other homosexual/bisexual men, worked as a sex worker, and engaged in use of illicit drugs. He outlines his struggles with mental health conditions and drug abuse and indicates that in May 2023, he was convicted of various charges, including unlawful assault and theft, and spent 60 days in prison. The applicant states that he fears returning to Sri Lanka for reasons of sexuality, his Tamil ethnicity, and that he would not have access to treatment for his ongoing mental health conditions. He further claims that his mental health conditions will place him at a real risk of coming to the attention of the authorities and being imprisoned.
The delegate was also provided with further submissions from the applicant’s representative. The submissions argue that the applicant will face a real chance of persecution for reasons of his membership of various particular social groups pertaining to his sexuality, mental health condition, and drug dependence. It is argued that the identified particular social groups meet the definition in s 5L of the Act, and that country information support a finding that members of such particular social groups face a real chance of persecution for the essential and significant reason of their membership of the group. The submissions also address the lack of availability of effective state protection to the applicant and that the risk of harm applies to all areas in Sri Lanka.
In addition, the delegate was provided with copies of the clinical records by the International Health and Medical Services (IHMS) for the period between 29 September 2023 and 12 April 2024. These reports note the applicant’s diagnosis as anxiety, atypical psychosis, and substance abuse; that he has been on medication for symptoms of psychosis, depression, schizophrenia, and bipolar disorder; and that he continues to experience delusions and hallucinations.
Delegate’s decision
The applicant was interviewed by the delegate on 28 May 2024. The delegate’s decision outlines the applicant’s evidence at the interview, and I have also listened to the recordings of that interview provided to the Tribunal. As noted in the delegate’s decision, the applicant’s evidence throughout the interview was consistent with his evidence in his protection visa application and written statement.
While the delegate accepted that the applicant is of Tamil ethnicity, is a bisexual man, worked as a sex worker, and is suffering from various mental health conditions which led to him using illicit drugs to cope with his conditions, the delegate found that the applicant does not face a real chance of serious harm or is at a real risk of significant harm for these reasons, if returned to Sri Lanka.
Review application
The applicant applied for a review of the delegate’s decision to refuse his protection visa application. In support of the review application with the Tribunal, the applicant’s representative provided the Tribunal with a report from a clinical psychologist dated 17 September 2024, a further detailed statement from the applicant dated 26 September 2024, and further submissions dated 26 September 2024. I have considered these documents in the assessment of the applicant’s claims for protection.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether there is a real chance that the applicant will suffer serious harm if returned to Sri Lanka for reasons of his race, religion, nationality, membership of a particular social group or political opinion or, alternatively, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Sri Lanka, there is a real risk that he will suffer significant harm.
Considering the applicant’s very detailed statements provided in support of his protection visa application and review application with the Tribunal, his oral evidence at the interview before the delegate, which was broadly consistent with his written statements, and having the benefit of further submissions and supporting evidence, including submissions expressly addressing the delegate’s concerns, I have decided that the matter should be remitted for reconsideration. My reasons for this determination are set out below.
Analysis, Findings and reasons
Claims for protection
The applicant is a national of Sri Lanka and of Tamil ethnicity. Sri Lanka is the receiving country for the purposes of this review.
The applicant claims that he fears persecution if returned to Sri Lanka, for reasons of his sexual orientation, his mental health conditions, and illicit drug dependency. It is argued the applicant is a member of various particular social groups, which according to the Act and country information, exist in Sri Lanka; that he will face serious harm, including direct and indirect threats to his life and liberty, denied access to services, significant economic hardship, and denied the capacity to earn a livelihood of any kind where the denial will threaten his capacity to subsist; that the harm will be directed at him for the essential and significant reason of his membership of the identified particular social groups; and that he will not be able to access effective state protection and that the harm applies to the whole of the country.
Having considered the applicant’s written evidence about his sexuality and his oral evidence at the interview before the delegate, I accept that he identifies as a bisexual man. The applicant has consistently claimed, and I accept, that he realised that he was attracted to males and females when he was a teenager and that apart from a friend with whom he had a brief relationship with at school, he did not tell anyone about his sexuality fearing for his safety and not wanting to risk bringing his family into disrepute. I accept that the applicant did not face any issues in Sri Lanka, including during the periods of his returns from Australia, because he was discreet about his sexuality and did not discuss his sexuality with anyone in Sri Lanka, including his family and friends. However, I accept that the applicant has expressed his sexuality in Australia, where he is free to do so without fear of persecution, and that if returned to Sri Lanka he will continue to be discreet as he was in the past, and that this would be due to fear of persecution.
The applicant has provided consistent evidence regarding his visa history, the cessation of his student visa and subsequent experiences of homelessness, imprisonment, and illicit drug abuse which led him to work as a sex worker and exacerbated his mental health condition, for which he is currently receiving medical and psychological intervention. I accept the applicant’s evidence in this regard. I also accept his explanations for the delay in lodging his protection visa application, namely that after the cessation of his student visa he experienced significant financial hardship, turned to abuse of illicit drugs, and that he only became aware of protection visa application process while in immigration detention.
Regarding the applicant’s mental health conditions, in his statement to the Tribunal, the applicant explains that he did not seek professional assistance for his mental health conditions prior to being detained in immigration detention in 2023. He explains that his mental health deteriorated after the cessation of his student visa, after which he experienced homelessness and addiction to illicit drugs. During that period, he was reliant on services of charitable organisations, like the Salvation Army which assisted him with food and accommodation and did not have the means to seek treatment. He was only able to commence treatment once in immigration detention.
The copies of the clinical records by IHMS, for the period between 29 September 2023 and 12 April 2024, support the applicant’s evidence that he commenced receiving treatment while in immigration detention. The reports indicate that the applicant has been on medication for symptoms of psychosis, depression, schizophrenia, and bipolar disorder, and that he continues to experience delusions and hallucinations. In his subsequent statement to the Tribunal, the applicant confirms that he continues to receive fortnightly counselling sessions and that his treating psychiatrist has recently changed his medication to control his continuing daily experiences of psychosis.
The recent report from a clinical psychologist dated 17 September 2024, indicates that the applicant’s mental health assessment is determined based on the background information provided to the clinical psychologist and further discussions with the applicant. It is noted that various assessment methods/tests were undertaken to assess the applicant’s overall disorders. It is reported that the applicant suffers from persistent depression with feelings of discouragement, guilt, lack of initiative, apathy, and low self-esteem; Post traumatic stress disorder (PTSD) due to past traumas in his life, including the loss of his father at a young age and unacceptability of his sexual orientation; and that he falls within the Bipolar and Schizophrenic spectrums, with significant mood fluctuations, restless overactivity, confusion, disorientation, and inappropriate affect and intrusions. Furthermore, the report notes that the applicant is receiving treatment for depression and psychosis with intrusive voices, and that he would require ongoing treatment and management of his disorders into the future.
On the evidence before me, I accept that the applicant suffers from serious mental health disorders; that he is receiving treatment and is under medication; and that he requires ongoing treatment and management of his mental health conditions into the future.
Relevant country information
Country information[1] reports that freedom of sexual orientation is not protected under Sri Lanka’s Constitution and that same-sex sexual conduct between adults is a criminal offence, including when it is consensual. Those convicted face up to 10 years imprisonment. It is reported that while the laws are rarely enforced, police use the threat of arrest under the law to harass members of the lesbian, gay, bisexual, transgender, queer, intersex, or asexual (LGBTQIA+) community, including to demand money or sexual favours. While there are reports of the government introducing a bill to decriminalise same-sex sexual conduct, this has not occurred.
[1] DFAT, ‘DFAT Country Information Report - Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024; US Department of State, ‘Country report on human rights practices: Sri Lanka’, 22 April 2024;
In addition to criminality of same-sex sexual conduct, there are reports of violence or threats of violence targeting the LGBTQIA+ community in Sri Lanka, including verbal abuse from family members and being forced to enter into heterosexual marriages. LGBTQI+ individuals can experience discrimination and bullying in employment, education, and health care. Conversion therapy services operate freely in Sri Lanka and are advertised in newspapers and the media. Many LGBTQI+ individuals hide their sexual orientation to avoid harassment and violence from family and other members of the community. DFAT[2] assesses that openly gay and lesbian people face a moderate risk of official harassment and a moderate risk of societal discrimination, including a moderate risk of societal violence.
[2] DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.

DFAT[3] reports that while mental health services are available in Sri Lanka, mental health needs across Sri Lanka are significant. It is reported that Sri Lanka suffered its worst economic crisis in 2022 which had a widespread impact on the country. The prevalence of mental illness increased following the COVID-19 pandemic and the 2022 economic crisis. It is reported that mental illness carries social stigma in Sri Lanka. Although there are reports of some positive shifts in community attitudes and people are becoming more willing to talk about mental health, negative community attitudes persist and can deter people from being open about their mental health and seeking treatment. People living with mental illness can experience social isolation and bullying and can find it difficult to obtain employment and marry.
[3] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
Country information[4] indicates that Sri Lankans without passports can re-enter the country on a temporary travel document, also known as an Emergency Passport or a Non-Machine-Readable Passport, issued by diplomatic and consular missions and valid for re-entry to Sri Lanka. For returnees travelling on temporary travel documents, police undertake an investigative process to confirm identity, which would identify someone trying to conceal a criminal or terrorist background or trying to avoid court orders or arrest warrants.
[4]DFAT, ‘DFAT Country Information Report – Sri Lanka’, 23 December 2021; DFAT. ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
While DFAT[5] reports that it is not a crime for a Sri Lankan to seek asylum abroad, it reports that depending on the circumstances of their departure from Sri Lanka (i.e. if they departed legally or illegally), personal history (i.e. if they have a criminal background in Sri Lanka) and whether they are travelling on temporary travel documents, failed asylum seekers may face further questioning from Sri Lankan Immigration, the State Intelligence Service, Navy Intelligence and the Criminal Investigation Department.
[5] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
Refugee assessment
As indicated above, I accept that the applicant identifies as a bisexual man and suffers from significant mental health disorders due to his past traumas and illicit drug use in Australia which is found to have exacerbated his mental health conditions, leading to experiences of psychosis and hallucinations.
Country information indicates that members of the LGBTQI+ in Sri Lanka face violence and threats of violence directed at them by the authorities, the community, and their families. They experience discrimination and bullying in employment, education, and health care. I accept the applicant’s evidence that his remaining family in Sri Lanka, his mother and sister, are not aware of his sexuality and that he is fearful of disclosing his sexuality to his family due to their conservative religious views. I consider it plausible that the applicant’s family in Sri Lanka will not be supportive of his sexuality and that they may treat him with contempt.
I accept that the applicant’s complex mental health conditions will adversely impact his ability to access employment and other essential services, such as mental health services. I accept that the applicant’s family in Sri Lanka do not have the means to support him financially, as they have been unable to do so in the past which was a contributing factor in the applicant’s inability to continue with his studies in Australia and the subsequent events which resulted in him becoming homeless and destitute.
Given the applicant’s ongoing and challenging mental health conditions, stigma attached to mental illness, and his family circumstances in Sri Lanka, I consider it unlikely that he will be able to access the ongoing treatment/management/support that he requires for his serious mental health conditions. The applicant’s sexuality will further impact his capacity to access essential services and to secure and maintain employment in Sri Lanka.
In addition, the applicant’s evidence, which I accept, is that he does not have a valid Sri Lankan passport. Given that the applicant is no longer in possession of his passport he may well be returning to Sri Lanka on a temporary travel document. Country information indicates that returnees travelling on temporary travel documents and returned asylum seekers face a period of questioning by Sri Lankan Immigration or other authorities such as the police and State or Navy Intelligence Services, on arrival to confirm the arrivals’ identity and criminal history.
In the context of the country information, there is a real chance that the applicant will be subjected to interrogation and questioning on arrival in Sri Lanka. Given his serious mental health conditions and behaviours associated with his complex mental health conditions, I consider that there is a real chance that he will be treated with suspicion, his behaviour may be perceived concealing criminal activity, resulting in further questioning and possible periods of detention. DFAT[6] assesses that Sri Lankans detained by the authorities face a moderate risk of torture.
[6] DFAT, ‘DFAT Country Information Report – Sri Lanka’, 2 May 2024.
Considering the above factors cumulatively, I am satisfied that if the applicant is returned to Sri Lanka, now or in the foreseeable future, there is a real chance that he would face treatment that would amount to serious harm. The treatment that he will suffer would entail violence or threats of violence to his life and liberty, significant harassment and or/ill treatment, economic hardship that would threaten his capacity to subsist, and denial to access to basic services or the capacity to earn a livelihood that would threatens his capacity to subsist.
It is argued that the applicant faces a real chance of serious harm for reasons of his membership of various particular social groups related to the applicant’s sexual orientation and his complex mental health conditions. The various particular social groups include ‘bisexual man in Sri Lanka’ and ‘persons suffering from persistent depression, PTSD, Bipolar disorder, and Schizophrenic disorder’.
The requirements that must be demonstrated to establish membership of a particular social group are set out in s 5L of the Act. It requires consideration of a characteristic that the applicant has, or is perceived to have, and shares with other members of the group. The characteristic must distinguish the group from society, be an innate or immutable characteristic or be so fundamental to the applicant's identity or conscience that they should not be forced to renounce it. The characteristic must not be a fear of persecution.
I am satisfied that the identified particular social groups satisfy s 5L of the Act. I am satisfied that being bisexual or a person suffering from persistent complex mental health disorders are recognised characteristics which is innate and distinguishes the group from others in the society and the characteristics are not fear of persecution.
I am satisfied that the applicant’s membership of these particular social groups will be the essential and significant reason for persecution. I also find that the persecution that the applicant fears involve systematic and discriminatory conduct, in that it is deliberate, widespread, and involves societal and official selective harassment of members of the particular social groups. Given the country information cited above, I also find that the real chance of persecution cannot be said to be restricted to a particular area of Sri Lanka and relates to all areas in the country.
I am satisfied that effective protection measures, as defined in s 5LA of the Act, would not be available to the applicant given that the perpetrators of the harm include the authorities. I am also satisfied that s 5J(3) of the Act does not apply to the applicant as any requirement to modify his behaviour would fall within the exceptions in s 5J(3) of the Act.
Considering my reasons set out above, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J of the Act. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, I find that the applicant does not have a right to enter and reside in a third country, and s 36(3) of the Act is therefore not applicable.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Samira Kamandi
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.
…
36     Protection visas – criteria provided for by this Act
…
(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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