2441914 (Refugee)
[2025] ARTA 1887
•15 July 2025
2441914 (REFUGEE) [2025] ARTA 1887 (15 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2441914
Tribunal:General Member J Wilson
Date:15 July 2025
Place:Canberra
Decision:The Tribunal affirms the decision under review.
CATCHWORDS
REFUGEE – protection visa – Philippines – particular social group – victim of vigilante groups – workplace political survey – physical assault – fear of killing – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2CASES
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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 12 October 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old female national of the Philippines. According to the movement records available to the Tribunal the applicant has a somewhat long association with Australia. She first entered Australia in 2000 as a visitor before re-entering in 2008 as an international student. She has remained as a temporary resident in Australia effectively since 2008 on a range of temporary and bridging visas.
The applicant applied for the protection visa on 18 March 2023. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of the refugee criterion or the complementary protection criterion (per s 36(2)(a) and s 36 (2)(aa) of the Act, respectively.
On 5 November 2024 the applicant lodged an application for review to the Tribunal.
On 21 May 2025 the applicant appeared before the Tribunal in-person to give evidence and present arguments. She was not represented. The applicant stated she did not require an interpreter and elected to give her evidence in the English language.
CLAIMS AND EVIDENCE BEFORE THE DEPARTMENT
In her protection visa application, the applicant provided the following particulars, that:
a.she was born in Manila, Philippines;
b.she can read, speak and write Tagalog and English;
c.she is of Filipino ethnicity and of the Christian faith;
d.within the Philippines, she completed High School, a Bachelor’s Degree in [subject 1] and further qualification in [subject 2];
e.she completed further studies in Australia, including [specified courses];
f.she was married in 2017;
g.she has a sister resident in Australia;
h.she previously worked for [Business 1] in Manila between [specified years] as [an occupation 1] where she undertook duties including the [duties specified]; and
i.since arriving in Australia has lived between Canberra and Sydney and has held a variety of positions in the hospitality, medical and care sectors.
With respect to her reasons for seeking protection, the applicant claimed that she left the Philippines because she feared for her safety stating:
“Many people are being killed or maimed when they cannot cooperate with the demands of those in power. In my previous work as [an occupation 1], I hold many critical and sensitive information on people who have lost favour from the former government of Rodrigo Duterte. When I went home to visit my family in [October] 2016, I was warned by my former colleagues that our data storage had been hacked because the government authorities are seeking information against the opposition and their supporters. My colleagues were summonsed and some of them were tortured when they could not give the information. I had to leave the country earlier than I planned because I tried to avoid trouble”.
The applicant further claimed that she suffered harm by way of sleepless nights, anxiety, mental anguish, and that the time she had planned to spend with her family in the Philippines whilst she was on holidays was distracted by her concerns. She went on to write:
“Government authorities and vigilante groups funded apparently by the [Authority 1] were out and about seeking people like me who worked in the [Business 1] [occupation 1 unit] where data coming from the United States were wanted”.
The applicant went on to claim that she would not seek assistance from within the Philippines because it was the government authorities that are to be feared as they are corrupted by those in power, and that she did not consider relocation because she was temporary resident in Australia at the time.
The applicant further wrote that the former Filipino government is still being investigated by the International Criminal Court and there is no peace in the Philippines. She claimed that if she was to be returned to the Philippines that she would be harmed if she did not cooperate.
By way of supporting documentation, the applicant provided a colour copy of the bio page of her Filipino passport, an Australian National Police Certificate, images of the pages of her expired passport, and personal identifiers as part of the Department of Home Affairs’ (Department) biometric testing.
There is no evidence on file that an interview took place with the Department, however the Department wrote to the applicant on 31 August 2024 raising its concerns about her claims and inviting her to provide additional information pursuant to s 56 of the Act. There is no record of the applicant responding to the Department’s request for further information.
Summary of the delegate’s decision
The delegate did not accept that the applicant worked as [an occupation 1] and had access to sensitive information, or that she feared harm from the government, as claimed. The delegate formed the view that the claims were not credible, and accordingly found that the applicant neither satisfied the refugee criterion, nor the alternate complementary protection criterion, per ss 36 (2) (a) and (aa) of the Act, respectively.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Prior to the hearing, the applicant sent the Tribunal a media article dated 13 May 2025 that reports on the political environment in the Philippines, and specifically the influence that former President Duterte continues to yield, despite current investigations remaining ongoing.[1]
[1] Joel Guinto, ‘Marcos’ hold on senate grows shaky while Duterte wins mayor race from jail’ BBC (online, 13 May 2025) < /
Oral evidence given at hearing
The applicant gave oral evidence that she completed the protection visa application herself, with a little assistance from a former classmate who helped her navigate the immigration website and form to find the information she needed.
The oral evidence provided by the applicant at hearing was somewhat consistent with the theme of the claims contained in the protection visa application, in so far as she claimed to fear harm because of an event that occurred at her former workplace. The applicant added the following detail that was not contained within her protection visa application:
a.she was born into a family of average financial means in the Philippines, and that she is one of [number] siblings, her parents are now both elderly and retired;
b.her parents are Christians, and she was born into the [Denomination 1];
c.she is separated from her husband, and her church is playing a role in attempting a reunion because divorce is not permitted by her church. Her husband also currently lives and works in Australia;
d.she first came to Australia in 2000 to visit her sister who was living in Australia. The trip was funded by her parents as a gift for her after finishing university;
e.after returning to the Philippines, she agreed to marry her first long-term partner, however he called off the wedding during the engagement period which caused the applicant some emotional turmoil at the time. She said she looked to leave the Philippines in 2008 after that chapter of her life had ended;
f.in 2008 she returned to Australia with a plan to study;
g.she said she has lost her way in Australia, owing to an unfortunate incident with a migration agency. She said she sought migration advice and paid a migration agency $AUD5000 to lodge a permanent regional visa application (subclass 187) for her, and that after paying the money she found the agency had ‘disappeared into thin air’. She reported the incident to police but had no recourse for the lost funds. She says she was told by the Department when doing her biometrics test that they had received her permanent visa application, however has received no communication from the Department about the visa application or its outcome. The applicant expressed some confusion in the hearing about the status of her regional permanent visa;
h.she has often thought of returning to the Philippines, in her words she is ‘getting older and have spent my years not getting anything’ however after returning to Manila to visit her parents in 2016 she met with former work colleagues who shared concerns with her such that she no longer feels safe to return to the Philippines;
i.she is not politically active and is not affiliated with any political party.
The source of the applicant’s fears – a political survey undertaken in a former workplace
During the hearing, the applicant recalled an event when she returned to the Philippines and met with three former colleagues from [Business 1] at a social gathering. She stated that they met at [a specified venue], on a Sunday evening in October 2016. She offered the full names of her colleagues with relative ease. The applicant said that they were enjoying a social catch-up and that one of the group asked whether the applicant remembered sharing any political views on the online chat group that operated within the workplace. The applicant said she was curious about the question asked of her, and the conversation then pivoted to a colleague ([Ms A]) explaining that she had received a message inviting her to a ‘casual meeting’ which she assumed related to her former employment. She said on arrival to the meeting the interviewers did not ask questions relating to her employment or career, but rather questioned her relating to her political preferences. The applicant said that [Ms A] was ‘tortured’ but later clarified she had not been physically harmed by the event but was very concerned. The applicant said [Ms A] has now relocated to [Country 1] because of the event, but that they are no longer in contact because the group decided to cut all contact between them because they were concerned the persons responsible for questioning [Ms A] would ‘connect the dots’ between them.
The applicant gave evidence that she was surprised by the discussion that evening and considers the threat arose not from data leaks as her colleagues had suggested, but rather because they were asked to participate in a workplace survey. She claims the survey was handed to her on paper whilst employed at [Business 1], which required her to list her name and team leader and respond to five questions relating to her political preferences. The applicant claims that on reflection, she does not consider the survey was approved by the employer (in the United States) as an official workplace survey, but rather that the Department Head based in the local office in the Philippines had requested all local staff complete the survey, which she considers is because he was known to have affiliations with the Duterte political party. She said the survey required each person to detail who they consider are the ‘top 3 senators’ and ‘if you vote, who will be your next President?’
On her own admissions, the applicant stated the situation was confusing, because [Business 1] is not an organisation known to be associated with politics.
The applicant gave evidence that the team leaders said the survey was optional, but that all staff should do it because it was straightforward. The applicant stated she felt compelled to complete the survey because it was requested by the Department Head, and she didn’t want to have to interact with the leadership because it would impact on her performance appraisal.
The applicant further stated that her church requires all members to vote for the Duterte party, and that a failure to follow the church’s instructions can result in her being removed from the church’s membership – which she said is very important to her.
She said that she was living in Australia at the time she needed to vote in the Philippines federal election, and that she voted [in absenteeism] approximately two weeks prior to the May 2016 elections. The applicant gave evidence that she voted for the Duterte political party, consistent with the instructions of her church.
However, when completing the workplace survey the applicant gave evidence that she wrote that she would vote according to her church’s position as required, however that if she had her preference she would vote for Leni Robredo, because she would prefer to see a female in power.
The applicant gave evidence that two of three former colleagues subsequently left the Philippines and are now resident in [Country 1]. She said [Ms A] left the Philippines because of the incident.
The applicant claims she has not been contacted by any persons concerning the event, however stated that her mother had received a telephone call asking for her, by an unknown person approximately 12 months ago, and that her mother explained the applicant is now resident in Australia.
When asked about the relevance of the media article to her claims, the applicant stated that it provides contemporaneous support for her argument that the power yielded by Duterte continues to linger in the Philippines, despite the fact he does not currently hold the position of President.
When asked if she fears harm for any other reason, the applicant stated there was no other reason she feared returning to the Philippines.
The applicant did not provide any post-hearing submissions.
Immigration records
The applicant’s immigration records provided by the Department confirm the applicant’s account of her immigration history. The record confirms she held a series of student visas from 2008 to approximately 2017, before holding a Temporary Graduate visa. The applicant made an application for a regional permanent visa, however that was refused in 2019.
RELEVANT LAW: 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) of the Act. 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) of the Act 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) of the Act, 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) of the Act, 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, 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: FINDINGS AND REASONS
The issue in this case is whether the applicant faces a real chance of serious harm, or a real risk of significant harm, if she returns to the Philippines now, or in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity, Nationality, Receiving Country and Personal Particulars
The applicant’s identity is not in dispute. The Department accepted the applicant’s identity based on her Filipino passport. Accordingly, I am prepared to accept the applicant’s identity based on the Department’s assessment and a copy of the passport provided to the Tribunal.
There is no evidence to suggest the applicant has a right to enter or reside, whether temporarily or permanently, in any other country.
Based on the documents provided by the applicants and accepted by the Department, I find the applicant is a citizen of the Philippines and accordingly her protection claims will be assessed against the Philippines as the receiving country.
I accept that the applicant’s personal particulars as claimed, and that she is a regular attendee at the [City 1] [Denomination 1]. She provided sufficient details at the hearing to satisfy the Tribunal of her early life, adherence to her faith, and her personal involvement in the church in [City 1].
Assessment of protection claims
The applicant’s claims are appropriately characterised as claims concerning actual, or imputed, political opinion.
Despite the absence of supporting document evidence, I am willing accept that the applicant was employed as [an occupation 1] by [Business 1] [between specified years], as claimed in the protection visa application. Based on publicly available information, I am aware that [Business 1] has a presence in Manila and has been operating in the Philippines since the 1920’s.[2] I am also willing to accept that the three former colleagues the applicant referred to in the hearing were her friends at the time. She provided their names spontaneously when asked, and her accounts of their names and whereabouts remained consistent in her oral evidence.
[2] [Source deleted.]
I do not accept the applicant’s claims within the protection application that during her employment at [Business 1] that she had access to sensitive information ‘on people who have lost favour’ from the former Duterte government, or that the data storage had been hacked, as claimed. That detail does not appear consistent with the duties she listed in the protection visa application (summarised at paragraph 6(h)) nor were those claims expressed at hearing. When I asked the applicant why she had not mentioned those claims in the hearing, she said it was because she did not believe them to be true, and that she believed her former colleagues were mistaken in their beliefs that had been communicated to her. The applicant did not explain why she chose to include those claims in her written application.
The applicant’s protection claims are primarily underscored by the claim she participated in a workplace survey while employed at [Business 1] that sought her political preferences. There is no documentary evidence to support that claim. The applicant did not ask any witnesses to give evidence in her review application. I have considered whether such workplace surveys are reported to occur in the Philippines, however the DFAT Country Information Report Philippines contains no such references, nor has the Tribunal located any suggestions from broader online research to suggest that such workplace surveys occur in the Philippines.
I have proceeded to consider the plausibility of the claim by reference to the broader circumstances surrounding that claim. It is somewhat odd that a person would voluntarily agree to participate in an informal survey that seeks to gather political preferences in the workplace. When asked why she would participate in such a thing, the applicant suggested she had been encouraged to participate by her direct supervisor and did not want to attract negative attention of her leadership team. The applicant also said it occurred in the lead up to the national election and that political polling was not uncommon at the time.
On its face, the claim appears to suffer from a problem of timing on three fronts. Firstly, the factual matrix for the claim is troubling. The applicant claims that in the workplace survey she listed Leni Robrego as her preferred President. While the applicant has not provided a precise date of completing the survey, she said it occurred during her employment at [Business 1], which based on the information she included in her protection visa application was between [specified years]. However, according to public sources Ms Robredo commenced her career as a lawyer and did not enter politics until approximately 2012.[3] Accordingly, I consider it unlikely that Ms Robredo would have been listed as a candidate for President in any survey that occurred in the period of [earlier specified years].
[3] Howard Johnson and Jonathan Head, ‘Leni Robredo: The woman leading the Philippines' 'pink revolution'’ BBC (online, 7 May 2022) < Leni Robredo: The woman leading the Philippines' 'pink revolution'>.
Secondly, if the workplace survey occurred, it would have been approximately 20 years ago. The passage of time raises a series of questions including whether her response has been stored for that long, whether any response given would have any current effect, and consequently whether there is any risk factor associated with information of that nature.
Thirdly, there is a further passage of time that has passed between the applicant stating her fear arose, and then applying for protection, which may be a further indicator that the claims are not credible. The applicant claims that it was not until 2016 that she became aware that her friends had been ‘tortured’ because of their responses to the survey. The applicant then waited until 2023 to lodge a protection visa application. I raised my concerns with the applicant in the hearing and expressed that a significant time lapse or delay between a claimed event and an applicant seeking of protection may be interpreted as an applicant not having a genuine fear. In this case, the time delay is significant on any count, being approximately twenty years from participation in the survey, or approximately seven years from the time the concern was raised with her by her former colleagues that might have prompted her to seek protection. In response, the applicant stated that at the time she was told by her friends, she did not think it would be a future problem for her.
I also consider there are differences in the claims, as they appear in the protection visa application when compared with the applicant’s oral evidence. Notably, the written claims refer to data leaks and the applicant as holding a position in her employment that manages sensitive political information, however that information was not presented at hearing.
Additionally, the applicant’s written claims and oral evidence also differ in substance with respect to the participation in the workplace survey only being revealed in oral evidence for the first time. I also questioned the applicant about references in her written claims to her former colleagues being ‘tortured’ which the applicant attempted to resolve by reference to her former colleagues suffering ‘mental torture’ only. I am not persuaded by the applicant’s explanations, and it appears that the claims have evolved over time.
Having regard to the problems of timing and differences in the evidence and the delay in making her protection claims, I do not accept the applicant’s claims relating to her need to seek protection. Specifically, I do not accept the written claims that she held sensitive data of a political nature in her former employment at [Business 1], nor on the evidence available do I accept that she participated in a workplace survey as claimed.
It follows that I do not accept that she, or her former colleagues faced any harm in the past in connection to the claimed workplace survey. I find that on the applicant’s evidence, she has not faced prior harm for any other reason.
I am prepared to accept that the applicant’s mother received a telephone call asking for the applicant’s whereabouts in the past twelve months, however on the evidence it was a single call, and could have been made for several reasons. I do not consider that the receiving of a call from an unknown person necessarily places the applicant at any risk of harm.
Accordingly, I do not accept that the applicant faces any harm if she returns to the Philippines, because of her claimed response to the workplace survey, or for any other reason.
Does the applicant satisfy the refugee criterion for protection?
Following the findings above, I am not satisfied that the applicant faces a real chance of serious harm (or any harm) now or in the reasonably foreseeable future if she returns to the Philippines.
Accordingly, I am not satisfied that the applicant has a well-founded fear of persecution per s 5J of the Act. As I am not satisfied the applicant has a well-founded fear of persecution it is not satisfied that the applicant is a refugee per s 5H of the Act. Because the applicant does not satisfy the definition of refugee, I am not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have 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,[4] 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 Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[5]
[4] MIAC v SZQRB (2013) 210 FCR 505.
[5]See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180].
Following the findings set out above that the applicant will not face any harm now or in the reasonable foreseeable future if she is returned to the Philippines, for the same reason I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to the Philippines, that there is a real risk she will suffer significant harm. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36 (2) (aa) of the Act.
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 information to suggest that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 21 June 2025
Representative for the applicant: N/A
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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