2510698 (Refugee) - [2025] ARTA 1723

2510698 (REFUGEE) [2025] ARTA 1723 (16 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2510698
Tribunal:Sue Zelinka
Date:16 July 2025

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 16 July 2025 at 3:19pm
CATCHWORDS
REFUGEE – protection visa – Afghanistan – Federal Circuit and Family Court remittal – born in third country before returning to home country with family – threatened by Taliban to surrender brother, then working with foreign forces – unauthorised maritime arrival – mental health diagnosis and treatment – Westernised appearance and second language speaker – brother missing, presumed dead, with supporting statement from employer – family left local area and living near city – family approached in new area with inquiries about applicant – country information – Taliban now in control – uncertain and unpredictable conditions – modification of behaviour unreasonable – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 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 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 Immigration and Citizenship on 9 November 2017 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 Afghanistan applied for a Safe Haven Enterprise Visa (SHEV) on 24 January 2017. The delegate refused to grant the visa as he was not satisfied the applicant faced a real chance of harm and two IAA appeals followed, both unsuccessful. After various judicial proceedings, the Federal Circuit and Family Court of Australia ordered that the second IAA refusal be set aside and remitted to the Administrative Review Tribunal for a review of the SHEV. This matter is before the Tribunal as a result of that order.
The applicant appeared before the Tribunal on 1 July 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Dari and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant was born in [Year] to Afghan parents in Pakistan where they had fled as a result of civil war in Afghanistan. In 2006 unrest and Taliban activity in this area of Pakistan forced the family back to the father’s original village in Afghanistan ([Village] in Kabul Province). The applicant is an ethnic Tajik and is of the Sunni Muslim faith. He fled Afghanistan in April 2013 and arrived as an unauthorised maritime arrival on Christmas Island in July 2013.
Initial claims
The applicant’s initial claims were set out in his protection visa application and concern his fear of the Taliban. The applicant stated that after his father’s death he, as eldest son, was head of the family. In that capacity, he was approached by the Taliban who ordered him to surrender his brother [Mr A] who was [an occupation] [doing a job task] for the [foreign forces]. The applicant was warned twice by the Taliban, threatened with death, and before the Taliban returned, the applicant fled.
To the Tribunal
The Tribunal confirmed the details for the applicant’s early life. He said he was born and raised in a refugee encampment in Kurram Agency, Pakistan. All his siblings were born in Pakistan. The family returned to Afghanistan in 2006 as it had become more dangerous in Kurram with Taliban and other insurgents. They went to their original house in a village in the [District] which was close to Logar Province. The applicant used his familiarity with Pakistan to begin trading in [product 1s]: buying them in Afghanistan and then selling them in [Town], a trade market in Kurram Agency. For the return trip, he would buy [product 2s] in Pakistan and then sell them in Paktiya and Logar Provinces in Afghanistan. He would only get home about once a month between every round-trip.
At the family home, after the death of his father, were his mother, [brothers] and his own wife and children. He had another brother who had moved to Kabul and [sisters] who were married and living elsewhere. One of the brothers at home, [Mr A], then found employment in 2012 with a [company]. This was regarded as a good job: it paid well, and [Mr A] and the family were pleased that he was helping deliver goods to the [foreigners]. However, [Mr A] did not talk about his work as knowledge that he was assisting the [foreigners] might endanger him and the family.
The Tribunal asked about the presence of the Taliban in [Village] about 2012. The applicant said that they were certainly around. There were hills near the village and Taliban encampments in the hills. They wore turbans and beards, and covered their faces if they visited any local premises. There were some Tajiks who were Taliban. People in [Village] were generally scared of the Taliban and did not say too much about them: there had been instances where people had ‘transgressed’ and the Taliban burnt their houses down. The Taliban frequently conveyed their demands by putting up letters in the local mosques. There were Pashtu speakers who came into the area whom the locals did not know, but sometimes the Pashto speakers were seen with local men. People minded their own business and did not enquire.
The applicant said that for those reasons (keeping to themselves) he was surprised when the Taliban turned up at his house during one of his visits home. The Taliban said to the applicant that they knew his brother was [doing a job task] for the [foreigners] and said he (the brother) should be handed over to them. They then left. The applicant spoke to his mother who was worried about her son [Mr A] (who was away from home on a [job task] trip) and said he would have to be careful. When the applicant returned after his next buying and selling trip, the Taliban came back. The applicant said he had not seen his brother and had no idea where he was or what he was doing. The Taliban said that the applicant must produce his brother in two weeks or he – the applicant – would be killed. The applicant took this warning seriously as he had seen many examples of the Taliban’s behaviour and knew that they carried out their threats. They showed no mercy.
As the applicant knew that he could not and would not produce his brother, he left home, making his way into Pakistan to find a people-smuggler and get to Australia. He left home in early April 2013 and was not able to contact his family until after he got to Australia. Even that communication was delayed as his family do not have a phone. The applicant had to call his cousin in Kabul and wait until the cousin relayed a message to the family (either travelling personally or entrusting someone else) and receive a message back in the same way, before being able to communicate the results to the applicant in Australia. What he eventually heard (not until about October 2013) was that the Taliban had returned as promised because his mother found a letter the Taliban had affixed to their house. The letter stated that they had given him two warnings, he had failed to deliver his brother, he himself had run away, and that he will be killed.
The Tribunal notes that this letter with a translation was submitted to the Department but was rejected as proof of the incident because the date on the letter was translated as 1 January 2013 – clearly well before the applicant left his home and hence contrary to his testimony. Subsequently the applicant has submitted other testimony from an expert witness – a specialist interpreter and lecturer at the University of Isfahan, Iran, who publishes peer-reviewed articles on interpreting and translating. This witness explained the system of translating dates from the Islamic to the Gregorian calendar and then stated that the correct translation of the date on the Taliban letter is 10 April 2013. This is consistent with the applicant’s account of his mother getting the letter a week or less after his departure.
The applicant said that after his mother found the letter, the family was very frightened and decided to leave [Village]. He believes they left perhaps two months after his own departure. They went to an area of Kabul called [Town] where the applicant has an uncle and sought shelter with him. The family consisted of the applicant’s wife and children, his mother, and the [unmarried brothers]: [Mr A] did not move with them.
The Tribunal asked if the family are still in [Town], and also asked if they knew what had become of [Mr A]. He said the family as described above was still in [Town], although the [brothers] are now married and their wives and children are also in the house. [The brothers] work but the economy in Afghanistan is so depressed that they scarcely earn enough to keep them all. The applicant remits his wages from Australia. He said his eldest son is now [Age] but is not working. He was at school but the Taliban has recently enforced a rule saying that all the students (all boys, girls being denied education after a young age) have to wear turbans. The applicant’s son did not comply and therefore has stopped going to school. Within their own culture, only the elderly Tajik men wear turbans – it is not something the applicant has ever done. The applicant is very upset about the lack of education, particularly for his [daughters] whom, he says, are confined to the house all the time. He himself came from a deprived educational background, having spent his childhood in a refugee situation, and he was very keen on his sons and daughters being able to study.
With regard to [Mr A], the applicant said that the family heard about him belatedly, only after the applicant requested his mother to find him any documentation that would be helpful to his early appeal process after the IAA refusal of his application. His mother asked around the community until she found the [company] for whom [Mr A] worked. The company’s manager then provided some information about [Mr A]’s employment and the applicant’s mother forwarded this letter to the applicant.
The company letter indicates that [Mr A] was initially employed by the company in 2012 – a company owned and run by a man and his [sons]. A short time later, the owner and [some] of his sons were killed by the Taliban. The remaining sons changed the company name and continued with the business, with [Mr A] still in their employ. In late March 2013, the company found [Mr A]’s [vehicle] burnt out, with no trace of the driver. Neither the company nor his family has seen or had any contact with [Mr A] since that time and assume he is dead. The company letter states that the [vehicle] was stopped and burned by the Taliban.
The Tribunal put it to the applicant that his own confrontation with the Taliban was now 12 years ago. The cause of the problem – the applicant’s brother’s apparent collusion with the [foreign] forces through his work – was also 12 years in the past. [Mr A] was apparently ambushed by the Taliban in 2013 and is presumed dead. Given the passage of time and the removal of the original cause of the Taliban’s adverse interest in the applicant, the Tribunal asked why the applicant could not return safely to his family in [Town].
The applicant replied that the situation now is more difficult and more dangerous. He stated that he was targeted by the Taliban – admittedly 12 years ago – but the Taliban do not let past encounters go. They are savage; many returnees have been killed. The Tribunal put it to him that the Taliban have declared an amnesty for people in the diaspora to return to Afghanistan. The applicant said he would not trust them.
The Tribunal asked the applicant what sort of community [Town] was, noting that one of the reviewers had written in a decision that there many displaced Tajiks there from provinces further east, between Kabul and Pakistan. [Town] lies to the east of Kabul, and is perhaps only an hour from the applicant’s original village if one were to go by car. The applicant said that there was a mix of people in [Town], both Pashtuns and Tajiks, and amongst them would be people from his past: those who knew him from his village and around that area.
The applicant recounted a disturbing incident his wife had informed him about: about two years ago, his youngest two children were walking from their house to that of the applicant’s maternal uncle, fairly close by. The two children were approached by a man who asked them if they were [Given name]’s children (the applicant’s name). The children had long been trained by their mother not to respond to any questions about their father’s whereabouts and did not reply; they just ran to the uncle’s house. The applicant said this happened on one further occasion since then, with the same result. However, his wife is now frightened and won’t let the children go out as they used to. The Tribunal put it to the applicant that it could have been a person who knew the applicant and wanted to contact him or his family in a friendly spirit. The applicant thought it more likely that the interest was adverse and it was someone who thought it may be advantageous to tip off the Taliban.
The applicant said that he would be noticeable if he returned to [Town] and would not be able to settle in and get on with his business. He noted that he is only comfortable now in western dress, including no beard. He will be quickly identified as someone who has spent many years in the west and that alone is enough to make people superstitious. They may believe he has converted away from Islam (even though the applicant said he has not, and that he still goes occasionally to mosque in Australia). The applicant said that he might give away something – like the difference between how women behave in Australia and Afghanistan, or his support of education for all children and young adults. He notes that he would have to come into contact with the authorities as new electronic taskeras have been introduced. All his family members have new ones and he would have to go and get one.
The Tribunal noted the recent submissions about his health. The applicant said he had been working as a cement renderer in Australia but in September 2023 had a serious work accident which required him to have surgery on his [body part]. He requires ongoing medical care and is currently unable to work. This has had a deleterious effect on his mental health: he particularly worries about his family, given that he has been supporting them financially, and is now unable to work. He was referred by his doctor to a clinical psychologist and to a psychiatrist. The Tribunal notes submissions that the applicant has been diagnosed with a major depressive disorder and has received medication and ongoing counselling sessions.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Nationality and name
On the basis of the applicant’s testimony, his passport and the family’s new taskeras, the Tribunal finds that the applicant is a national of Afghanistan and that Afghanistan is the country of reference in this matter.
The applicant also made the point that the name appearing on the file is an arbitrary surname. In Afghanistan he is identified by his given name followed by ‘son of ..father’s name’. However, he was pressed by Australian officials to provide a surname so he chose the name of the area in Afghanistan from which he and his family originated.
Credibility
The Tribunal notes that the applicant has been consistent all the way through a 12 year process of refugee status determination. His claim is very simple: he came to the adverse attention of the Taliban in 2013, fled after his life was threatened, and remains convinced that they will still harm him if he returned to Afghanistan. He has not attempted to embroider this claim. He has appeared to answer all questions to the best of his ability throughout the inquisitorial process. He has attempted to obtain supporting information from his family still at home in Afghanistan.

The Tribunal notes that the two delegates who made earlier decisions were concerned about the validity of some of the applicant’s testimony. The Tribunal finds that he has satisfactorily answered their concerns in post-interview submissions. The Tribunal finds very plausible his testimony that he did not know certain things when asked, but could later supply the information, by his description of the means of communication between him and his family. The Tribunal accepts as plausible the description set out in paragraph 17 above about communicating via a cousin in Kabul, and accepts that some of the information on which he relied (in particular concerning his brother [Mr A]) was not given to the applicant until some time after it happened.
In short, the Tribunal has no concerns about the applicant’s credibility.
Assessment of real chance of harm
Given the applicant’s consistency and credibility, the Tribunal accepts the basic outline of the applicant’s testimony: that his brother [Mr A] worked as [an occupation] for a company assisting the [foreign] forces; that the applicant as head of the family was called on by the Taliban to give his brother to them; that he failed to do so and left in 2013 before the due date of the final threat; and that the Taliban noted this failure in a letter which contained a death threat. Much later the applicant found out that his brother [Mr A] was probably killed in a Taliban ambush in 2013 (the burnt-out [vehicle] being found but not the driver).
Acceptance of this testimony raises the issue of whether there is still a real chance of serious harm, given that the above events took place in 2013, some 12 years ago. The Tribunal notes that the Taliban, the insurgent force with whom the applicant and his brother had adverse encounters, took over the government of Afghanistan on 15 August 2021 and are firmly in power, having expelled all foreign forces.[1]
[1] DFAT, Thematic Report on Political and Security Developments in Afghanistan, 14 January 2022, para. 2.4
The Tribunal accepts that following his departure, and finding the Taliban letter threatening him, the applicant’s family left their home in the village and moved to [Town], a town on the eastern outskirts of Kabul where they had other family members already living. The Tribunal accepts that it to this place that the applicant would have to return at least initially (he still theoretically owns the house in the village of [Village]). The Tribunal accepts that on two occasions, his children have been asked if they are “[Given name]’s children”, referring to him, and accepts that this indicates that some people in [Town] beyond his extended family are aware of him. It is plausible that if the applicant were to return to [Town], his presence would become known by persons who have a knowledge of him when he lived in the village, prior to 2013, and if they remember the applicant from the village, they would also remember his brother [Mr A].
Country information from a reliable source – the European Union Asylum Agency - has been sought on this issue:
An anonymous organisation with presence in Afghanistan stated that sometimes people were targeted when they returned to Afghanistan, but the source did not see any clear connections simply to the fact that these individuals had left the country. Rather the targeting seemed to be connected to the reason for their initial departure from Afghanistan.[2]
[2] EUAA, Country of Origin Information: Afghanistan, May 2024
The applicant has consistently stated that the Taliban continue to hold animosity towards persons who have crossed them. He states that if the Taliban issued a death threat, as they did to him, then it will eventually be carried out. This view has support from an article in The Diplomat ( a reputable international current affairs magazine about the Asia-Pacific region) when it wrote that “an overwhelming element of vengeance continues to drive the Taliban’s policies and the regime has no intention of changing its behaviour”. [3] The article continues as follows:
Quite visibly the Taliban have reneged on two promises. First they failed to provide general amnesty after their seizure of power, in spite of repeated announcements that they would do so. Second they failed to investigate serious cases of violations and bringing the guilty to justice.[4]
[3] Shanthie Mariet D’Souza, “The Taliban’s Afghanistan: Retribution, Refugees and Violent Extremism”, The Diplomat, 29 August 2023 at thediplomat.com.
[4] Ibid.
Given the closed environment of the present Islamic Emirate of Afghanistan and the lack of transparency of the actions of the authorities there, the Tribunal is mindful of the advice from the UNHCR that decision-makers should
…give due weight to the uncertainty and unpredictability inherent in the modalities adopted by the de facto authorities for issuing decrees, coupled with the ongoing uncertainties regarding the applicability of Afghanistan’s previous legal framework. UNHCR considers that these circumstances render it particularly difficult to evaluate a future risk of persecution based on the currently available information on the human rights situation in Afghanistan, and in particular to conclude with the requisite level of confidence that an Afghan asylum applicant would not face a real risk of persecution upon return to the country of origin.[5]
[5] UNHCR. Guidance Note on the Internal Protection Needs of People Fleeing Afghanistan – Update 1, February 2023, p.25.
The Tribunal has considered another aspect of the applicant’s return to Afghanistan. He will be noticeable, especially in the short term, for his western dress and lack of beard (although these things could be changed over time) and for speaking Dari instead of the Taliban’s preferred Pashto. He can speak Pashto but it is accented and noticeably not his first language, according to the applicant. People may want to engage with him as to what he has been doing before he came to [Town] in the sort of casual exchanges that one inevitably has with shop-keepers, fellow congregants at the mosque, neighbours and so on. In these exchanges the applicant will have to suppress much of what he wants to say and what he feels. For example, the applicant feels very strongly about his wife and daughters being confined to the house, about his daughters having no access to education and about his elder son leaving school as he could not cope with the decree that he had to wear a turban in order to attend. If he were to return, the applicant would have to curtail his speech and his behaviour in a way that is totally at odds with his speech and behaviour to date and particularly over the past 12 years in Australia.
The Tribunal accepts that the applicant has sustained an anti-Taliban opinion for many years, predating his adverse encounter with them 12 years ago. The Tribunal finds on the evidence of the applicant’s testimony that he still holds a deep and sincere anti-Taliban opinion given the rules that they have instituted after coming to power. If he were to return, the applicant would have to curtail his speech and modify his behaviour in order to conform with the rules strictly imposed by the Taliban authorities of the Islamic Emirate of Afghanistan or risk punishment. In the Tribunal’s view, this modification of his behaviour in order to avoid serious harm is unreasonable.
In considering all the information before it, the Tribunal finds that there is a real risk that serious harm will befall the applicant if he were to return to Afghanistan and the essential and significant reason for this harm is his political opinion: that is, being adamantly opposed to the ideology and rules instituted by the Taliban in its role as the de facto government of Afghanistan. This fear of harm is applicable across Afghanistan as the government is in control of all areas of the country. It is unreasonable that the applicant should modify his behaviour in order to avoid this harm.
On the evidence, the Tribunal is satisfied that the applicant has a well-founded fear of persecution for one of the reasons set out in s 5J(1)(a) of the Act. He meets the definition of refugee in s 5H(1).
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria: s 36(2)(a) of the Migration Act.
Hearing:   1 July 2025
Representative:  Ms Vicky Chen, RACS
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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