1728939 (Refugee) - [2024] AATA 600

1728939 (Refugee) [2024] AATA 600 (8 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1728939
COUNTRY OF REFERENCE:                   Malaysia
MEMBER:Khanh Hoang
DATE:8 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 8:36am
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – Catholic – attacks on churches – ongoing arguments with her Muslim neighbours – inability to attend church on Sundays – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Lama v MIMA [1999] FCA 918
Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997)
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
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 6 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 citizen of Malaysia, arrived in Australia [in] July 2017 on a UD-601 Electronic Travel Authority visa.
The applicant appeared before the Tribunal on 15 November 2023 and 14 December 2023 to give evidence and present arguments. The Tribunal conducted both hearings with the assistance of an interpreter in the Malay and English languages. The applicant was unrepresented in relation to the review.
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Malaysia or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Malaysia.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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
Introduction
In assessing the applicant’s claims, the Tribunal has considered information on the Department’s file before it, the oral evidence that the applicant gave to the Tribunal at the hearings, and independent information regarding relevant matters and current conditions in Malaysia.
The Tribunal finds that Malaysia is the applicant’s country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments. It does so based on a copy of her passport that she provided to the Department and in the absence of any other evidence to the contrary.
Protection visa application
In her protection visa application, the applicant claimed to have a well-founded fear of persecution for the following reasons:
·she was unable to practise her Catholic religion in Malaysia as she works on Sundays, and this causes her to miss Sunday church services;
·she has previously been traumatised when her church was attacked by extremists and the authorities were inefficient at dealing with the issue; and
·she cannot relocate elsewhere in Malaysia as she does not wish to leave her house (which she owns), her job or her family.
Tribunal hearings
The applicant’s background
The applicant was born in Sarawak into a Catholic Christian family of [specified family members]. Her family members remain Catholics, except for one brother who has converted to Muslim.
She has [number of children] arising from two marriages. She was first married when she was [age] years old. She divorced at [age] and remarried when she was [age]. She separated from her second husband in approximately 2016, although they remain legally married because of the children. The applicant’s children all live together in an apartment in Johor Bahru that she bought in 2011.
The applicant completed secondary school when she was [age], after which she was employed [and] working in [specified businesses]. Her first husband helped to get her a job at a [business] in [Country 1], where she worked from when she was [age] until she was [age] years old. She travelled between [Country 1] and Malaysia every day for work. She last resided in Johor Bahru before coming to Australia.
The applicant told the Tribunal that she had travelled to [Country 1] in 2017 but that she did not find life comfortable there and she decided to travel to Australia. She prepared her protection visa application by herself. She stated that she understood what was in her application.
At the hearings, the applicant confirmed that her claims centred on three issues related to her religion: societal disapproval, her ongoing arguments with her Muslim neighbours and her inability to attend church on Sundays.
Societal disapproval and problems with her neighbours
Prior to purchasing her apartment in Johor Bahru in 2011, the applicant stated that she had lived in other areas of Malaysia such as Seremban and Kuala Lumpur. She claimed to have experienced religious discrimination in these places. When she carried her bible with her, she stated that people would tell her that she is a dog and that she was ‘barking prayers’. The applicant stated that she thought it would be different when she moved to Johor Bahru, but she continued to experience the same issues.
The applicant claimed that she had problems with her Muslim neighbours whenever she held church gatherings at her apartment in Johor Bahru. The applicant stated that she held gatherings approximately once a month – including for birthdays and other occasions as required by her church – which were attended by 20 to 30 people and involved prayers and celebrations. She told the Tribunal that whenever she had these gatherings her Muslim neighbours told her that she should not sing any religious recitals because it was noisy and that she should not say the name ‘Jesus’.
When asked about whether she had spoken to her neighbours to resolve the issues the applicant stated that they argued all the time. The neighbours would verbally abuse her by saying ‘you are praying to a pig’ and ‘you are a barking like a dog’. She stated that the neighbours never physically harmed her or her family, however, she found the way they spoke to be intimidating.
When asked whether she had approached the police for assistance, she stated that she had approached the police two or three times to make a report. She stated that the police did not act because they considered that the applicant had not suffered any harm and they considered her claims to be racist against her neighbours. The police told the applicant that should anything more serious happen — such as if the neighbours were to burn her house down — she could return to seek assistance.
The applicant claimed that her [children] faced similar issues with the neighbours when they were conducting prayers. The applicant told the Tribunal that her [children] sometimes do not come out from the house, but they have not experienced any physical harm from the neighbours. The applicant stated that her [children] were scared to go to the police and when they called her, she would tell them to stay inside the house. The applicant confirmed that, despite the issues with the neighbours, her [children] had been able to continue living their life there for over 10 years.
When asked what would happen to her if she were to return to Malaysia, she stated that she will continue to experience the same issues with her neighbours and society. When asked whether she could relocate elsewhere in Malaysia to avoid her neighbours, the applicant stated that she did not want to move to another place. She wanted to stay in Australia and bring her children to Australia.
The Tribunal explained to the applicant the meaning of serious harm and significant harm and asked the applicant whether she thinks she would be at risk of such if returned to Malaysia. The applicant reiterated that she does not think she will suffer any physical harm but that she is not at peace in Malaysia.
Precluded from attending church on Sundays
The applicant claimed that, if she returned to Malaysia, she would continue to experience problems attending church services on Sundays. The applicant told the Tribunal that in Malaysia, the working days are Sunday to Thursday. As the government has prescribed Sunday as a working day, this meant that the applicant was unable to attend her church services. She claimed that when she was working in Malaysia, she had to ask her employer for Sundays off to attend Church. Her employer gave her permission once or twice, but eventually she was fired for asking too many times to take Sundays off. She told the Tribunal that she would experience the same problems if returned to Malaysia.
The Tribunal asked whether her church is open on other days of the week and the applicant stated that her church is open on Friday as well as Sunday evenings. When asked why she could not attend her Church on Sunday evenings she stated that she needed to prepare her kids for school the next day.
The Tribunal confirmed with the applicant that she was referring to the decree issued in the state of Johor in 2013, which changed rest days from Saturday and Sunday to Thursday and Friday. The Tribunal raised with the applicant that the decree appears to be a law of general application, which does not involve any systematic or discriminatory conduct towards the applicant. The applicant stated that she is not satisfied with the situation, and while she was able to make the decision to leave, others who were not able to leave had to accept the situation.
When asked if she wanted to raise any other matters with the Tribunal the applicant reiterated that if returned to Malaysia, she would suffer emotionally and she would not have any peace.
FINDINGS AND REASONS
Refugee findings
The Tribunal found the applicant to be a generally reliable and forthcoming witness. Accordingly, the Tribunal accepts the applicant’s claims and makes findings on those claims as follows.
Societal disapproval and problems with her Muslim neighbours
The Tribunal notes DFAT country information in respect of Christians in Malaysia provides that:[1]
Christians accounted for close to 10 per cent of the total population in 2010, the last year for which official data is available, and are predominantly located in Sabah and Sarawak. While a broad range of ethnicities practises Christianity, approximately 20 per cent of the Chinese Malaysian community is Christian, and reports indicate a growing number of converts to Christianity are ethnic Chinese middle-class individuals who were originally Buddhists or Confucianists. While Christian politicians are present in most political parties, they tend not to represent specifically Christian interests.
There are comparatively few Malays who practise Christianity in proportion to the overall population. This is because it is very difficult to convert from Islam (the religion of most Malays – see Ethnic Malays) and illegal to proselytise to Malays (see Religious Conversion and Apostasy). Christians of a Malay background, in particular, may be forced to hide their faith from family, friends and colleagues. Christianity is portrayed by some Malay/Muslim political parties such as PAS as a threat to Islam.
Although Christians claim to have used the word ‘Allah’ (Arabic for God) for centuries in their religious practice in Malaysia, official impediments are in place on their use of the word. The Home Affairs Ministry banned the Catholic newspaper, The Herald, from using the word ’Allah‘ under the Printing Presses and Publications Act (1984) in 2008. The Malaysian Court of Appeals and Federal Court upheld the ban at the time. Religious tensions escalated in 2017-18 including attacks on churches, following an October 2017 decision by the High Court of Kuala Lumpur to reject a Sabah church’s request for a judicial review of the ban on Christians’ use of the word ‘Allah’. However, in March 2021, the Court ruled that Christians could use ‘Allah’ with the judge calling the ban ‘unconstitutional’. The Government announced it would appeal the decision.
Four Christian pastors suspected of proselytising disappeared between 2016 and 2017, with probable state involvement (see Enforced or Involuntary Disappearances). Church leaders have called on the government to take steps to clarify and separate the jurisdictions of the religious authorities and the RMP.
In November 2016, Pope Francis appointed Archbishop Emeritus Anthony Soter Fernandez as Malaysia’s first-ever Cardinal, serving until his death in October 2020. In June 2016, Pope Francis received Malaysia’s first Resident Ambassador to the Holy See; the government announced his appointment in March 2016, with a successor commencing in June 2019.
DFAT assesses that Christians generally live free from societal discrimination on a day-to-day basis. They are usually able to worship freely without significant official interference. Those proselytising or promoting Christianity to Muslims face a moderate risk of harassment by state authorities that, in some cases, has included violence or abduction.
[1] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Malaysia, 29 June 2021, p 30 (emphasis added).
While the DFAT information states that Christians generally live free from societal discrimination on a day-to-day basis, the Tribunal accepts the applicant’s claims of verbal abuse from her Muslim neighbours in Johor Bahru. The Tribunal accepts that the applicant held gatherings at her apartment about once every month. The Tribunal further accepts that this resulted in arguments with her Muslim neighbours, who verbally abused the applicant and her [children]. The Tribunal accepts that the applicant felt intimidated by the language used by her neighbours. The Tribunal accepts that these arguments lasted several years from the time she bought her apartment in 2011 until she departed for Australia, whenever she held gatherings. It also accepts that her neighbours have subjected her [children] to verbal abuse in a similar vein.
While the Tribunal accepts that the applicant and her [children] have suffered verbal abuse from her neighbours, the Tribunal finds that the harm she has suffered does not rise to the level of serious harm. It follows that the applicant has not suffered any serious harm in the past because of her religious activities.
Looking into the future, the Tribunal finds that if the applicant were returned to Malaysia, the applicant will continue to live with her [children] in her apartment in Johor Bahru. She and her [children] may continue to face verbal abuse from her neighbours if she were to continue holding religious gatherings of up to 20 or 30 people at her apartment. The Tribunal has considered the possibility that her neighbours’ verbal abuse may escalate into something more serious in the future. However, the Tribunal finds this possibility to be remote given that there has not been an escalation of harm over a long period of time since 2011. The Tribunal finds that the neighbours have not committed any physical violence towards the applicant or her family during this period. On the applicant’s own evidence, her children have been able to remain in the apartment for over 10 years notwithstanding the arguments with her neighbours. The Tribunal accepts that this situation is not a peaceful one for the applicant and that these arguments would continue to cause her some mental stress in the future. However, the Tribunal finds that this claimed fear does not amount to serious harm to the applicant.
The Tribunal also accepts that the applicant faced low-level discrimination while living in other areas of Malaysia, including Kuala Lumpur and Seremban. This includes being name called whilst she was carrying her bible. However, the Tribunal also finds that this amounts to low-level discrimination that does not rise to the level of serious harm.
Having considered the applicant’s claims individually and cumulatively, the Tribunal finds that the applicant would suffer some harm if return to Malaysia, but not serious harm. In turn, the Tribunal finds that the applicant faces no real chance of serious harm and therefore
s 5J(1)(b) and s 5J(4)(b) is not met in respect of these claims.
Attending church on Sundays
In relation to the applicant’s claims of being unable to attend Church on Sundays due to the government regulations, country information confirmed that on 1 January 2014 the state of Johor changed its rest days from Saturday and Sunday to Friday and Saturday. The change resulted from a decree made by Sultan Ibrahim Sultan Iskandar. News media reported that:
The decision was made following feedback from various quarters to allow Muslims to perform their religious obligation on Friday in a more peaceful manner.[2]
[2] Today Online, Johor rest days to be Friday and Saturday, Sultan declares, 25 November 2013, available at < type="1">
The Tribunal notes that if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b),(c).
The Tribunal finds that the decree is a law of general application. It applies to all Malaysian citizens in the State of Johor and is not on its face discriminatory. The mere fact that the decree may reflect some religious value – to allow Muslims to perform their religious obligations on Fridays – does not necessarily mean that it is persecutory. There is nothing before the Tribunal to suggest that the existence of the decree amounts to systematic and discriminatory conduct that is occurring for the essential and significant reason of one or more of the grounds mentioned in s 5J(1)(a). Nor is there evidence that the government enforces the decree in a selective or discriminatory manner against Christians, such that it could be considered persecution. This is so notwithstanding that the decree may affect or impact upon people differently.[3]
[3] Zheng Jia Cai v MIMA (Federal Court of Australia, French J, 13 June 1997) at 16; Lama v MIMA [1999] FCA 918 at [30].
Indeed, the Tribunal accepts that the decree will impact on the applicant’s ability to attend church on Sundays, if any employment that she might undertake in the future requires her to work on the same day. She may need to, as she has done in the past, ask her employer for time off work to attend church. The Tribunal accepts that the applicant finds this situation unsatisfactory and that attending church on Sunday evenings is inconvenient for her. However harsh the situation may seem; the Tribunal finds that this does not make the decree discriminatory. Accordingly, the Tribunal finds that the applicant’s fear of persecution does not involve any systematic or discriminatory conduct, and therefore s 5J(4)(c) is not satisfied. Accordingly, the applicant does not have a well-founded fear of persecution in respect of this claim.
Complementary protection findings
The Tribunal has found that the applicant is not a refugee. It will now consider whether the applicant meets the complementary protection criterion under s 36(2)(aa), namely, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their 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. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Having regard to its findings of fact above and the totality of the applicant’s circumstances the Tribunal also finds that the applicant faces no real risk of significant harm as defined in s 36(2A) if returned to Malaysia. As there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that the applicant will suffer significant harm, the applicant does not meet the criteria for complementary protection.
CONCLUSION
Overall conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Khanh Hoang
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.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.
…