2451343 (Refugee) - [2025] ARTA 1429

2451343 (REFUGEE) [2025] ARTA 1429 (19 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2451343
Tribunal:Senior Member G Cranwell
Date:19 March 2025

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

Statement made on 19 March 2025 at 1:28pm
CATCHWORDS
REFUGEE – protection visa – India – relationship with ‘white woman’ now ceased – father’s property dispute with his brother, hit-and-run accident and disappearance – religion – Sikh – period as unlawful non-citizen – domestic violence order, mental health and drug use – no adverse inference for delay in applying for protection as claims arose recently – documents arrived two days after delegate’s decision – country information – circumstances of father’s disappearance unknown – no threats to applicant or mother – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(c), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 December 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 national of India, applied for the visa on 15 November 2024.
The applicant appeared before the Tribunal on 14 March 2025 to give evidence and present arguments.
BACKGROUND
Evidence before the Department
The applicant’s claims were briefly set out in his protection visa application as follows:
I cannot go back because, I am with a white woman, and my family will not accept her and I together, as it is not custom, also my father is missing over in India, for the last three months, my religion is Sikh they are at war with Hindu, and very dangerous, there is also land dispute, between family members.
On 22 November 2024, the Department wrote to the applicant seeking further details of his claim.
The applicant did not provide any further details prior to the date of the primary decision.
Evidence before the Tribunal
Review application
A copy of the delegate’s decision was lodged with the review application.
The applicant provided the Tribunal with a number of additional documents prior to the hearing:
·a missing persons report accompanied by a translation;
·a First Information Report accompanied by a translation;
·an identity card for [Mr A];
·an untranslated newspaper notice;
·a report from [Mr B], psychologist;
·a completion of group therapy certificate from the HCA Drug and Alcohol Team;
·a domestic violence awareness course certificate of completion; and
·two personal references.
The missing persons report was made by the applicant’s mother, [Ms C]. It records that the applicant’s father, [Mr A], left home on 31 July 2024 on a bicycle to go to the hospital, but did not return. A report regarding his disappearance was made on 1 August 2024.
The First Information Report was made [in] October 2024. Relevantly, the report stated:
According to the statement of [Ms C], her husband [Mr A] has been forcibly hidden by unknown person/persons. If so, appropriate order should be issued to the Chief Police Station [Location] to register a case under section 127(6) of BNS.
…
The documents along with the original order and the FIR will be handed over to the chief officer of the police station for further investigation.
The untranslated newspaper report is dated 26 November 2024. It contains a photograph of the applicant’s father and one paragraph of text.
The report from the psychologist is dated 3 March 2025. The psychologist provisionally diagnosed the applicant as suffering from a moderate depressive disorder. The report relevantly stated:
[The applicant] denies a family history of mental illness but states that after his very close friend passed away after a car accident (4 years ago) he became withdrawn and stopped going to work for 2 months. He developed a maladaptive coping mechanism of methamphetamine use during this time progressing from weekend to more daily use.
He states that he was able to cease use when he met his previous partner and was coping well until an incident in which a young female completed suicide in a complex where he was working, and he felt guilt having been the last person to see her and having heard some sobbing but decided not to investigate.
…
Currently he reports low mood, very poor sleep, overeating and lack of motivation and withdrawal from activity. He denies any suicidal ideation and does not appear to be presenting with any perceptual disturbance, delusional beliefs, or any other significant mental illness symptoms outside of mood and anxiety.
…
[The applicant] reports that his father went missing 2 months ago in Punjab region of India after previous incident where he was struck by a car in a hit and run accident. [The applicant] has ART in a few weeks and is applying for protection visa with family concerned he may be at risk returning to India. While the motive for father being missing remains unclear, [the applicant] feels there may be some evidence of it being targeted for religious or political reasons.
Appears to have a pattern of depression/withdrawal following other issues with grief and loss and pattern of maladaptive coping through substance use.
Currently presenting with low mood and neurovegetative disturbance with current focus on treatment behaviour activation.
Treatment will continue to focus on behavioural activation and strategies to improve sleep and anxiety with more detailed treatment goals to be developed in future appointments should [the applicant] remain in detention.
…
As this is an interim report [the applicant] will remain engaged in psychology appointments until he leaves detention or has had 6 appointments.
The completion of group therapy certificate from HCA Drug and Alcohol Team indicates that the applicant completed five sessions of therapy at the Brisbane Immigration Detention Centre.
The remaining documents, namely the domestic violence awareness course certificate and the personal references, do not contain information relevant to the applicant’s claims for protection.
Tribunal hearing
At the hearing, the applicant confirmed that he arrived in Australia on a student visa [in] February 2014. His student visa was subsequently cancelled on 28 June 2017, but there was an error with the Department’s system and he was not notified of the cancellation. He did not find out about the cancellation until he was taken into immigration detention in 2024.
The applicant stated during the course of the hearing that he completed a Certificate III in [Subject 1] and a Certificate III in [Subject 2]. He worked as [an occupation] in Australia from 2016 to 2021.
The applicant stated that he speaks both English and Punjabi.
The Tribunal asked the applicant what he feared if he returned to India. The applicant stated that when he was taken into detention, he called his mother. His mother told him that his father had been missing for three months. Two months before the applicant’s father went missing, he had been the victim of a hit and run accident. At the time, they thought it was an accident. However, after the applicant’s father went missing, they filed a report. The applicant’s father had gone on a bicycle to pick up medicine from the hospital. There is CCTV footage showing him picking up the medicine, and again at 2 km on the way back. However, there is an 8 km stretch of road between the hospital and his house, and he never made it home.
The Tribunal asked the applicant when his father went missing. The applicant stated that his father went missing on 31 July 2024.
The Tribunal put to the applicant that two months before this date was around May 2024. The applicant stated that was when the hit and run accident took place. His father was on a bicycle when someone hit him. They did not stop. Approximately 10-15 minutes later, a person from their village found him and took him to hospital. At the time, nobody thought it occurred on purpose. They thought that maybe the driver was drunk or afraid they would get into trouble.
The Tribunal asked the interpreter to read the newspaper report. The interpreter stated that it was a missing persons advertisement for [Mr A]. It asked for anyone who has seen him to call the number provided.
The Tribunal asked the applicant whether his mother has received any threats. The applicant stated that his mother had not received any threats. Between then and now, she has received some calls from an unknown number, but nobody talks. The applicant did not know what that means.
The applicant went on to state that his father had an argument with his brother (ie, the applicant’s uncle). It was not a big deal. The uncle wanted to sell some land that he owns jointly with the applicant’s father. His father was not ready to sell, and the uncle was trying to convince him to sell. It was an issue, but not a big issue. The uncle did not make any threats.
The Tribunal asked the applicant whether he had received any threats himself. The applicant stated that he had not. However, his mother is worried if he were to come home.
The Tribunal asked the applicant whether he had any idea who might be interested in harming his father. The applicant stated that he did not know.
The Tribunal put to the applicant that his case was that his father was missing in unknown circumstances. No threats had been made. This suggested to the Tribunal that there was not a real chance that the applicant would be harmed in relation to his father’s disappearance. The applicant stated that his mother was really worried. If his father has died, the land would come into his name.
The Tribunal put to the applicant that he could avoid any harm relating to the property by selling the property. The applicant stated that his father did not want to sell, and he would not want to go against his father’s wishes.
The Tribunal asked the applicant whether his mother had told the police about the issue with his uncle. The applicant stated that the police had questioned his uncle, but the investigation was still in progress.
The Tribunal put to the applicant that his statement that the property dispute was not a big deal suggested that there was not a real chance that the applicant would be harmed in relation to the property dispute. The applicant stated that it was not a big deal to him. He cannot say how serious his uncle was. People do a lot of things for greed.
The Tribunal asked the applicant how big the property was and what it was worth. The applicant stated that the land was two acres, and they owned one acre each. He does not know what the land was worth.
The applicant went on to state that he has also had a relationship outside his religion. His family were not happy. It was a big issue.
The Tribunal put to the applicant that he recorded in the protection visa application that he was separated. The applicant stated that he is no longer in the relationship, and that there is a DVO in place.
The Tribunal put to the applicant that if his mother was concerned about his safety, she would be unlikely to harm him due to the relationship. The applicant stated that his mother would not harm him. The whole family was unhappy, and did not talk to him.
The Tribunal put to the applicant that if he was no longer in the relationship, whatever concerns his family may once have had would have come to an end. The applicant stated that he agreed. He is no longer concerned.
The Tribunal noted that the applicant had raised being a Sikh in his protection visa application. The applicant stated that religious fights happen in India.
The Tribunal read out [3.63] of the DFAT Country Information Report – India (29 September 2023) (“the DFAT Report”) to the applicant as follows:
DFAT assesses Sikhs in India generally face a low level of official and societal discrimination and violence. This may be because most Sikhs live in Punjab, which is a majority Sikh state, and Sikhs outside of Punjab have strong communities based around their places of worship. However, DFAT is not aware of violence or discrimination commonly occurring against Sikhs in other parts of India.
The applicant stated that in Punjab, there is not a risk of harm as most people are Sikhs. In other parts of India, there is a risk of harm.
The Tribunal asked the applicant whether he was making claims based on his mental health. The applicant stated that he was not. He was asked to see the psychologist, and told him everything.
The Tribunal asked the applicant whether he was taking medication. The applicant stated that he had been prescribed melatonin to help him sleep. He is not on any other medication.
The Tribunal summarised [2.223] and [2.27] of the DFAT Report to the applicant as follows:
Sources told DFAT the number of mental health workers is not sufficient to service demand. There is a shortage of trained mental health workers which, in practice, means that not everyone who needs care can access it. Mental health care is more likely to be accessible in large cities, while healers and other non-professionally qualified people may provide care in rural areas.
…
DFAT assesses that people living with mental illness … face a low risk of official discrimination, except to the extent that they may not be able to access appropriate health care. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness … face a moderate risk of societal discrimination.
The applicant stated that he agreed with that information.
The Tribunal put to the applicant that the DFAT Report suggested that there was not a real chance that he would be harmed because he was suffering from moderate depression. The applicant stated that people in India would not harm him for being ill.
The Tribunal discussed issues relating to relocation from Punjab to other parts of India with the applicant, which it is unnecessary to reproduce in this decision.
The Tribunal noted that the applicant had listed [Mr D] and [Ms E] as witnesses on his response to hearing invitation. The applicant stated that they were husband and wife. They assisted his mother in going to the police station to report his father missing.
The Tribunal asked the applicant whether [Mr D] and [Mrs E] had any knowledge of his father’s disappearance beyond what his mother had told him. The applicant stated that he did not think they knew anything more. The Tribunal indicated that it was inclined to accept that the applicant’s father was missing, and in those circumstances the evidence of [Mr D] and [Mrs E] was unlikely to be of further assistance.
The Tribunal also noted that it did not have witness statements from [Mr D] and [Mrs E], and it had reservations about calling them in India given it would be necessary to identify the call as being from the Tribunal in relation to the applicant’s protection visa application. The applicant did not press his request for the Tribunal to take evidence from [Mr D] and [Mrs E].
The Tribunal reiterated its central concerns to the applicant. Firstly, the Tribunal put to the applicant that the circumstances relating to his father’s disappearance were unknown. In particular, it is not known whether the disappearance was due to an accident or untoward activities. In any event, no threats had been made. This suggested to the Tribunal that there was not a real chance that he would be harmed in relation to his father’s disappearance. The applicant stated that he has been away from his mother for 12 years. His mother would not have asked him to stay away if she did not consider the situation to be serious.
Secondly, the, the Tribunal put to the applicant that he had described the land dispute with his uncle as not a big deal. The land in question was a 50 per cent share in two acreas. This suggested to the Tribunal that there was not a real chance that he would be harmed in relation to the land dispute. The applicant stated that to him it was not a big deal, but he did not know about his uncle. Greed can motivate people. However, he could not point his finger at his uncle.
The Tribunal asked the applicant why he did not provide his supporting documents to the primary decision-maker. The applicant stated that the documents arrived from India two days after the primary decision was made.
The Tribunal asked the applicant whether there was anything else he wished to raise. The applicant stated that he would like to stay in Australia until he finds out what happened to his father. If it were not serious, his mother would not have said to stay in Australia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS

The applicant claims to be a citizen of India. In the absence of any evidence to the contrary, the Tribunal accepts the applicant’s claims that India is his country of nationality and also his receiving country for the purposes of the definition in s 5(1) and s 36(2)(aa) of the Act.
The Tribunal notes that the applicant has provided it with a number of supporting documents which were not before the primary decision-maker. The applicant explained that these documents arrived from India two days after the primary decision was made. Given the protection visa application was lodged on 15 November 2024 and the primary decision was made soon after on 17 December 2024, the Tribunal considers this explanation to be reasonable for the purposes of s 367A of the Act. The Tribunal draws no adverse credibility inferences in relation to these supporting documents.
For completeness, the Tribunal also places no weight on the applicant’s delay in lodging the protection visa application. While the applicant was unlawful between 2017 and 2024, the majority of the circumstances giving rise to his protection claims did not arise until 2024.
Does the applicant satisfy the refugee criterion for protection?
In considering whether the applicant satisfies the refugee criterion, the Tribunal notes that a “real chance” is not one that is remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
The Tribunal accepts that the applicant’s father was involved in a hit and run accident in or around May 2024, and that he went missing on 31 July 2024. The applicant has provided a consistent account in relation to his father going missing, both in the protection visa application, at the hearing and to the psychologist. His claims are also supported by the documents provided, including:
·the missing persons report;
·the First Instance Report; and
·the newspaper notice.
The Tribunal accepts the applicant’s evidence that the circumstances of his father’s disappearance are not known to the applicant or his family. In particular, it is not known whether the disappearance was due to an accident or untoward activities. The Tribunal considers that the First Instance Report does not shed any further light on the circumstances of the applicant’s father’s disappearance, as it only records speculation from his mother that his father may have been forcibly hidden by unknown persons without accepting that speculation in the absence of further investigation. The Tribunal further accepts the applicant’s evidence at the hearing was that he did not know who might want to harm his father. While [Mr B] recorded in his report that the applicant felt that his father may have been targeted for religious or political reasons, the Tribunal considers this to be nothing more than speculation that the applicant may have engaged in at the time of his consultation with [Mr B].
The Tribunal also accepts the applicant’s evidence that no threats have been made to the applicant or his mother, including from his uncle. While the applicant referred to telephone calls to his mother from unknown numbers, no threats were communicated during these calls and he did not know what to make of them. The applicant also gave evidence that his mother has told him to stay in Australia, but there is nothing to suggest that his mother’s concerns in this regard are based on information beyond that provided by the applicant at the hearing.
In the circumstances set out above – namely, where the applicant’s father has disappeared in unknown circumstances, and where no threats have been made to either the applicant or his mother – the Tribunal considers that the risk of harm to the applicant is remote. The Tribunal therefore finds that there is no real chance that the applicant would be harmed in relation to his father’s disappearance if he were to return to India now or in the reasonably foreseeable future.
The Tribunal accepts the applicant’s evidence that his uncle had been trying to persuade his father to sell his 50 per cent interest in a two acre property. The Tribunal further accepts that were the applicant to inherit his father’s 50 per cent interest in the property, his uncle would likely also try to persuade him to sell this interest. However, the Tribunal also accepts the applicant’s evidence that this was “not a big deal” and was “not a big issue”. While the applicant noted that he had not spoken to his uncle and that greed can motivate people, he nevertheless stated that he could not point his finger at his uncle. The applicant also gave evidence that the police had questioned his uncle in relation to his father’s disappearance, but this has not resulted in an arrest to date.
In the circumstances set out above – namely, where the applicant described a land dispute between his father and his uncle as “not a big deal” and “not a big issue”, and where the applicant stated he could not point his finger at his uncle – the Tribunal considers that the risk of harm to the applicant is remote. The Tribunal therefore finds that there is no real chance the applicant would be harmed in relation to the land dispute if he were to return to India now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant is a Sikh. Given that the applicant lived in Punjab prior to coming to Australia, the Tribunal finds that the applicant would continue to live in Punjab if he were to return to India now or in the reasonably foreseeable future. The Tribunal accepts the country information contained in the DFAT Report set out above that Sikhs face a low level of official and societal discrimination and violence. The Tribunal further accepts the applicant’s evidence that he would not be at risk of harm in Punjab due to being a Sikh as most people there are Sikhs. In these circumstances, the Tribunal finds that there is no real chance that the applicant would be harmed due to being a Sikh if he were to return to India now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant is no longer in a relationship that his family disapproved of. The Tribunal further accepts the applicant’s evidence that he is no longer concerned about family disapproval now that he is no longer in that relationship. In these circumstances, the Tribunal finds that there is no real chance that the applicant would be harmed due to being in a relationship that his family disapproved of if he were to return to India now or in the reasonably foreseeable future.
The Tribunal accepts that the applicant is suffering from moderate depression. He has been prescribed melatonin to assist him with sleeping, but is not on antidepressant medication. The applicant has previously completed five sessions of group therapy from the HCA Drug and Alcohol Team. The applicant’s current course of psychological treatment comprises a maximum of six appointments with [Mr B] if he remains in detention, with the applicant having already attended at least one of these appointments. There is no evidence before the Tribunal to suggest that the applicant would require ongoing mental health treatment once he leaves detention.
The Tribunal accepts the applicant’s evidence that people in India would not harm him for being ill. This is generally consistent with the country information contained in the DFAT Report set out above that people living with mental illness face a low risk of official discrimination and a moderate risk of societal discrimination. As noted above, there is no evidence to suggest that the applicant would need to access further mental health treatment in India. In these circumstances, the Tribunal finds that there is no real chance that the applicant would be harmed due to his suffering from moderate depression if he were to return to India now or in the reasonably foreseeable future.
After considering all of the applicant’s claims individually and cumulatively, the Tribunal finds that there is no real chance that he would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act if he were to return to India now or in the reasonably foreseeable future. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether the applicant satisfies the complementary protection criterion, the Tribunal notes that the “real risk” test was held to impose the same standard as the “real chance” test applicable to the refugee criterion in s 5J(1)(b) of the Act: see MIAC v SZQRB (2013) 210 FCR 505.
For the reasons set out above, the Tribunal is not satisfied that there are substantial grounds for believing that that there is a real risk that the applicant would suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to India now or in the reasonably foreseeable future. Therefore the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For completeness, the Tribunal finds that any difficulties in accessing mental health care in India would be faced by the Indian population generally and not by the applicant personally for the purposes of s 36(2B)(c) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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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