1711135 (Refugee) - [2021] AATA 4513

1711135 (Refugee) [2021] AATA 4513 (3 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711135
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Alison Murphy
DATE:3 November 2021
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 03 November 2021 at 9:27am
CATCHWORDS
REFUGEE – protection visa – Malaysia – claims in written application abandoned at hearing and different claims made – departed while on bail for criminal charges – plea of guilty to two charges and third pending – application made in order to extend stay – punishment for criminal offences not usually persecution because of lack of discriminatory element – significant harm for purposes of complementary protection – real chance of imprisonment – country information about prison conditions – poor conditions due to inadequate resourcing rather than intent by authorities – applicant’s marriage to Malay national in Australia and child together – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33
SZRTN v MIAC [2013] FCCA 583
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 17 May 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 citizen of Malaysia, applied for the visa on 18 January 2017. The delegate refused to grant the visa on the basis that they were not satisfied the applicant was owed protection by Australia.
On 20 August 2021 the Tribunal wrote to the applicant advising him that due to ongoing COVID-19 restrictions in Melbourne, the Tribunal was currently unable to conduct in-person hearings. The Tribunal’s letter asked the applicant to identify whether he had the capacity to participate in a video hearing using his own laptop, tablet, smart phone or desktop computer and advised him that if he did not respond, the review application would be listed for hearing by telephone. The applicant did not respond to the Tribunal’s letter.
On 31 August 2021 the Tribunal wrote to the applicant inviting him to appear before the Tribunal by telephone on 1 October 2021 at 9:00am. At the time scheduled for the hearing the applicant answered the Tribunal’s call and told the hearing attendant that he had mistakenly thought the hearing was scheduled for 1:30pm rather than 9:00am and he was unable to participate in the hearing at the scheduled time.
The hearing was rescheduled to 18 October 2021 at 9:30am and the applicant gave evidence by telephone. The Tribunal was assisted by the services of an interpreter in the Malaysian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Malaysian passport, a copy of which is contained on the Departmental file. He has at all times stated that he is a citizen of Malaysia and he has been assessed on that basis by the Department. At hearing he stated he grew up and lived in Kelantan and departed Malaysia by air through Kuala Lumpur. The Tribunal finds he is a Malaysian citizen and has assessed his claims against Malaysia as his country of nationality and the receiving country.
The applicant’s personal background
At hearing the applicant gave evidence that he grew up in Kelantan, Malaysia. His mother and older brother remain living there, while his father passed away after the applicant arrived in Australia. He completed a Diploma in [Subject] at age 23 and then had his own small business selling [product].
The applicant arrived in Australia [in] October 2016 as the holder of a visitor visa.
I accept each of the above matters to be true.
In making those findings I note that the applicant’s evidence at hearing was significantly different from the contents of his protection visa application in respect of his education and employment history. The applicant gave evidence that the information in his protection visa application that suggested he had worked as [an Occupation 1] in Penang and [an Occupation 2] in Khota Bahru was not correct and he had not done either of those things. The applicant stated that a friend of his completed his protection visa application and some parts of the information provided in that application are not correct. I accept the applicant’s evidence in this regard.
The applicant’s claims for protection
In his protection visa application, the applicant stated (in summary) that he left Malaysia because the Malaysian Indian Party in Kelantan had raised racist sentiments against ethnic Malays and some of his family and friends had been attacked on the streets and it was dangerous for him to remain in Malaysia. He stated that if he returns to Malaysia, he believes he will be beaten by Indian people because he is living in their territory. He said that he had been threatened by an Indian man on the way home and he did not seek help from the Malaysian police because his family had already tried to seek help, but no action had been taken.
However at hearing the applicant gave completely different reasons for travelling to Australia and seeking protection. He gave evidence that at the time he travelled to Australia he intended only to visit and then return home but that he was no longer intending to return home because he has a family here in Australia and a lot of things have changed. He has married a Malaysian national in Australia and they are looking after the two children from her previous relationship as well as a child they have together.
When I asked the applicant if he was aware of what had been written in his protection visa application, he said he couldn’t really remember but he thought it was something about racists. When I asked him his reason for travelling to Australia in 2016, he stated that his intention was to come for a holiday, but he also had some court cases coming up in Malaysia and wanted to wait for the situation to calm down.
When I discussed with him his written claims as summarised above, the applicant gave evidence that the events described in his protection visa application did not occur. He stated that his visa application was filled out by a friend and the information in it was not correct. He confirmed that he had not been threatened by an Indian man, that his friends and family had not been attacked on the street and that he had no fear of harm in Malaysia for the reasons set out in his protection visa application.
In these circumstances I find that the events described by the applicant in his protection visa application did not occur and that the applicant has no subjective fear of harm from the Malaysian Indian Party or Indian Malay people for reasons of his Malay ethnicity. I find that there is no real chance that members of the Malaysian Indian Party or other Indian Malays or any other person or group will seek to harm the applicant if he returns to Malaysia for reasons of his Malay ethnicity; rather the risk of that is remote.
In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[1] For the same reasons I find there is no real risk the applicant will be subjected to significant harm by the Malaysian Indian Party or Indian Malays or any other person or group for reason of his Malay ethnicity.
[1] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
New claims made at hearing
At hearing the applicant gave evidence the real reason he travelled to Australia in October 2016 was because he was facing court cases and he wanted to calm his mind and let the situation in Malaysia calm down.
When asked about the court cases, he stated that in early 2016 he was arrested and charged with three offences under Malaysia’s drug laws. The charges related to possession of methamphetamines and although he was unable to remember the quantity of the drug he was charged with possessing, he remembered it was a small quantity measured in grams.
The applicant gave evidence that he was charged with three offences under Malaysia’s Dangerous Drugs Act and that each of those offences was potentially punishable by a term of imprisonment, caning or both. He attended court but only two of the charges were read in court and he was told by other inmates that this was just a trick by the police to detain him further because the small quantity of the drug he was found with.
He gave evidence he pleaded guilty to those two charges and the case was adjourned to a future date. He was released on bail, with an ongoing requirement to report to the police station close to his house. He reported for some time as required, but then forgot to report. A few months later the police informed a friend of his that they would be arresting him soon for not attending court for the third charge against him. He did not report after that because he knew he would be arrested and he moved away for a time. After a while his mother told him just to go to Australia to calm his mind and said they could discuss his situation with the police and see how to best settle the problem.
When I asked the applicant if he was ever sentenced in respect of the charges, he said he was not sure but they adjourned the matter for further mention dates. When I asked if he was ever sentenced to a period of imprisonment, he said he was given bail, meaning he would be recalled for a further appearance before the court. He left Malaysia before he was due to return to court.
The applicant gave evidence that he was unable to obtain the court documents from his friends in the police force because they told him they are classified. I put to the applicant that he must have been served with copies of the court documents before his appearance in court and that such documents were not classified. The applicant agreed that he had been served with copies of the court documents but said they had been misplaced and although he had asked his family to look for them, they could not find them.
The applicant gave evidence that if he returns to Malaysia, the police will check his identity documents and they will know he is a wanted person. His friends who are working as police officers have checked that his name is still on the active list. He said that if he was alone, he would return home and face the wrath of the law for his wrongdoing and mistake. He said that now that he was married, if he returned to Malaysia his wife and children would return with him but if he were sentenced to prison life would be very hard for them.
I note the applicant did not raise these claims before the delegate. Section 423A of the Act sets out how the Tribunal is to deal with new claims or evidence, and provides that the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if satisfied the applicant does not have a reasonable explanation as to why the claim or evidence was not raised before the primary decision was made.
At hearing I asked the applicant why he had given completely different reasons for requiring Australia’s protection in his visa application. The applicant said that when he came to Australia his initial intention was just to calm his mind before returning to Malaysia. He said his friend said why not continue staying in Australia and told him that he could extend his visa another 2-3 years and he would help him write his visa application. I understand the applicant to mean that he lodged the visa application only to extend his stay in Australia and that he was unconcerned as to whether the information in the visa application was correct or not.
I accept the applicant’s claim that he is subject to three outstanding criminal charges relating to drugs in Malaysia. In making that assessment I note that the applicant readily acknowledged the claims in his visa application were false and gave apparently spontaneous and detailed evidence about the outstanding charges in Malaysia. While he did not produce any documents related to these charges, I note they were laid more than 5 years ago and I accept the documents may have been mislaid by his family since he left Malaysia. The applicant did not appear to embellish his claims, acknowledging the charges were laid as a result of his own conduct, that he had pleaded guilty to the two charges that had been read in court and that he expected to be sentenced to a term of imprisonment. He volunteered the information that the charges he faced did not attract the death penalty under Malaysia’s drug laws.
In view of this I accept the applicant faces outstanding criminal charges relating to the possession of drugs in Malaysia and that he has pleaded guilty to two of those charges. It appears the third charge was brought before the court in the applicant’s absence at a later date. While it is not certain that the applicant will be sentenced to a jail term on those charges rather than a fine or some other form of punishment, I accept there to be a real chance that he will be sentenced to a period of imprisonment.
As discussed with the applicant at hearing, punishment for criminal offences pursuant to generally applicable laws will not usually constitute persecution for the purposes of the refugee assessment. This is because they generally lack the discriminatory element required by s 5J(4)(c). Malaysia’s drug laws are applicable to the whole Malaysian population, and the applicant does not suggest that they would be applied to him in a discriminatory manner for any of the refugee reasons set out in s 5J(1)(a). Rather the applicant acknowledges those criminal charges resulted from his own conduct and he pleaded guilty to the charges when he appeared in court.
The Tribunal finds that any prosecution of the applicant by the Malaysian authorities for his illegal conduct would not have a discriminatory intent or impact and any conviction or penalty to which he might be exposed would arise under a law of general application and does not give rise to persecution. As such the Tribunal is satisfied that any period the applicant may be required to spend in jail or any fine or other punishment he may incur on conviction for those offences will be the result of non-discriminatory enforcement of a law of general application and does not give rise to persecution because it does not involve systematic and persecutory conduct pursuant to s 5J(1)(a).
For these reasons the Tribunal finds the applicant does not have a well-founded fear of persecution for any reason relating to the charges he faces for possession of drugs in Malaysia.
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm.
The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A).[2] Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
[2] SZRTN v MIAC [2013] FCCA 583 at [43].
As discussed with the applicant at hearing, DFAT reports that Malaysia’s prisons suffer from significant overcrowding with prison cells containing an average of 20 people each. Prisoners are required to sleep on the floor with blankets and generally operate the bucket toilet system, although newer prisons use the flushing toilet system. Prison medical and psychosocial support services do not meet the accepted international minimum standards for the treatment of prisoners. While the prison system has an arrangement with government hospitals to provide medical care, onsite medical supplies are insufficient to meet demand. The International Committee of the Red Cross and the Human Rights Commission of Malaysia (SUHAKAM) access prisons on a case by case basis and in 2019, SUHAKAM collaborated with the government to undertake a thorough review and reform of the prison management system, including compliance with minimum standards of detention following international standards. According to the US Department of State, authorities did not generally permit NGOs or the media to monitor prison conditions.[3] At hearing the applicant indicated he did not wish to comment on that information.
[3] DFAT, DFAT Country Information Report: Malaysia 29 June 2021 [5.19]-[5.21]

The applicant does not claim he will be arbitrarily deprived of his life or subjected to torture if sentenced to a term of imprisonment, nor does the available country information in the DFAT report suggest there to be a real chance this will occur. Rather the applicant’s evidence is that if he were alone and unmarried he would return and submit himself to Malaysia’s justice system, but that he does not wish to do so because of the hardship it would cause for his wife and children. For these reasons I do not accept there to be a real risk the applicant will be arbitrarily deprived of his life or subjected to torture if sentenced to a term of imprisonment for drug offences in Malaysia. At hearing the applicant gave evidence that the drug offences with which he had been charged did not attract the death penalty and for these reasons I find there is no real risk the death penalty will be carried out upon him.
‘Cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are defined in s 5(1) and in each case the definitions require an element of intent. ‘Cruel or inhuman treatment or punishment’ is defined as an act or omission by which severe pain or suffering, or pain or suffering, ‘is intentionally inflicted on a person’. ‘Degrading treatment or punishment’ is defined as ‘an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable’.
On the basis of the DFAT information, I accept that prison conditions in Malaysia are generally poor, with over-crowding and insufficient medical services. I further accept that any period of imprisonment will cause some degree of hardship to the applicant. The DFAT information indicates that the Malaysian government has recently collaborated with Malaysia’s Human Rights Commission to undertake a review and reform of the prison management system, including compliance with minimum standards of detention following international standards. It also suggests that newer prisons are being built to a higher standard than existing prisons, such as the inclusion of flushing toilet systems. This causes me to consider that the poor prison conditions in Malaysia arise as a result of inadequate resourcing rather than any intent by the Malaysian authorities to inflict pain or suffering or extreme humiliation on Malaysia’ prisoner population. For these reasons I do not accept that pain and suffering will be intentionally inflicted on the applicant if he is imprisoned, nor that the poor prison conditions in Malaysia are intended to cause extreme humiliation.
For these reasons the Tribunal does not accept there to be a real risk that the applicant would face significant harm, as that term is exclusively defined in s 36(2A), if returned to Malaysia.
I accept the applicant does not wish to return to Malaysia because since arriving in Australia he has married another Malaysian national and they wish to raise their three children here and have them educated in Australia. At hearing the applicant confirmed that if he is returned to Malaysia, his family will return with him.
As discussed with the applicant at hearing, the Tribunal’s jurisdiction extends only to assessing whether the applicant engages Australia’s protection obligations. The applicant does not suggest that his relationship to his wife and children puts him at risk of harm in Malaysia and I find it does not. As the applicant does not fear harm on return to Malaysia from any other person or group, he does not engage Australia’s protection obligations.
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Alison Murphy
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…