1832390 (Refugee) - [2024] ARTA 684

1832390 (Refugee) [2024] ARTA 684 (20 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 1832390
Tribunal:General Member J Edis
Date:20 November 2024

Place:Perth
Decision:The Tribunal affirms the decisions under review.

Statement made on 20 November 2024 at 12:50pm
CATCHWORDS
REFUGEE – Protection Visa – Poland – race – Roma ethnicity – blood feud – declined to attend hearing – fear ongoing retribution from the Romani community – have a right to enter and reside in each other EU Member State – not satisfied the applicants have a well-founded fear – strong compassionate circumstances – referral to the Minister – decision under review affirmed

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5, 36, 65, 351, 499
Migration Regulations 1994, 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
BACKGROUND TO THE APPLICATION FOR REVIEW

The applicants are a family of Polish citizens, comprising 2 adults (the parents) and their 2 minor children, who arrived in Australia on [date] August 2018 as eVisitor visa holders.
Specifically, the applicants comprise:
·[Mr A], the father, who is[age] years old;
·[Ms B], the mother, who is [age] years old;
·[Mr C], the [age]-year-old son; and
·[Ms D], the [age]-year-old daughter.
They lodged an application for protection visas on 15 August 2018.
[Mr A] is of Roma ethnicity and appearance; [Ms B] is not. They claim they cannot live in Poland because their relationship, which started when they were teenagers, caused a longstanding ‘blood feud’ within the Romani community. [Mr A] had been betrothed to a woman who was a member of a prominent Romani family. His relationship with [Ms B] was impermissible and broke the Romani code. Over time, the situation became dangerous.
[Ms B] left Poland in 2009 and settled in [Country 1]. [Mr A] remained in Poland. The couple maintained their relationship, on and off, until [Mr A] permanently joined [Ms B] in [Country 1] in 2017.
[Mr A] and [Ms B] claim they have been the victims of severe physical harm on multiple occasions, variously in Poland, [Country 1], and [Country 2]]. They say they are not safe in Poland or anywhere else in the European Union (EU), principally by reason of the ‘blood feud’ – because there is a bounty on [Mr A]’s head, payable by the father of his ex‑wife – but also because of widespread discrimination in the EU against the Romani people.
On 8 October 2018 a delegate of the Minister for Home Affairs refused to grant protection visas to the applicants on the basis that s 36(3) of the Migration Act 1958 (Cth) (the Act) applied to their situation. Section 36(3) of the Act provides that Australia does not have protection obligations to a person who has not taken all possible steps to avail himself or herself of the right to enter and reside in a third country.
On 4 November 2018 the applicants lodged an application for review of the delegate’s decision with the Administrative Appeals Tribunal (AAT).
On 14 October 2024 the AAT became the Administrative Review Tribunal (the Tribunal).[1]
[1] Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicants were invited to attend a hearing on 23 August 2024 for the purposes of giving evidence and presenting arguments in support of their review application.
On 22 August 2024, the applicants wrote to the AAT Registry and said:
We respectfully request that the Tribunal refer this matter to the Minister for their intervention, we no longer require a hearing on this matter as the grounds for the protection visa application made on 15 August 2018, however our current circumstances are such that, if not recognized, it would result in serious, ongoing, and irreversible harm and continued hardship for both our children and us. Since arriving in Australia, we have worked hard to integrate into the community.
Further, we have skills in high demand in Australia which are relied on by our employer, employees and clients. [Mr A] has [qualification] and I’ve [qualifications]. We believe you can be satisfied that a request for Ministerial Intervention falls within the Minister’s Guidelines.
Therefore, in consideration of fiscal prudence, we do not require a hearing. I have set out the grounds to demonstrate that we meet the criteria to enable the Minister to exercise their discretionary power and grant a visa to remain in Australia.
Via further correspondence exchanged between the AAT Registry and the applicants on 22 August 2024, it was confirmed that the applicants were expressly requesting for their case to be determined ‘on the papers’.
On 5 September 2024 the AAT Registry requested further information from the applicants about their circumstances. In response, on 16 September 2024, the applicants said:
We would like to clarify our position in light of the current situation. While the grounds for our original protection visa application, lodged upon our arrival in 2018, were true and made in good faith, however our circumstances have since evolved. After six years of integrating into Australian society and seeking legal advice, we now realize that Australia may not be obligated to grant us a protection visa due to not recognising the systemic and widespread discrimination against Roma communities across Europe, and we are very worried it won’t be considered in the context of Australian protection visa criteria.
Between 16 September 2024 and 21 October 2024, the applicants have submitted a very large amount of documentary materials to the AAT and the Tribunal in support of:
·their protections claims, including extensive information about the Roma communities in the EU; and
·alternatively, their request to have their case referred to the Minister for intervention.[2]
[2] The Minister has the power under the Act to replace a decision of a merit’s review tribunal on a person’s case with a decision that is more favourable to that person, if the Minister thinks it is in the public interest to do so. This process is known as ‘Ministerial intervention’.
The applicants also lodged a comprehensive (yet incomplete) 90-page ‘Legal Submission’ which addresses the protection visa criteria and how they apply to their case. It is unclear on the face of the submission who prepared it.[3] The applicants had previously been represented by a registered migration agent (RMA), but they cancelled that representation on 23 July 2024. In any event, it is a helpful and thorough submission.
[3] Several attempts were made by the AAT Registry to notify the applicants about the fact that the ‘legal submission’ document was incomplete. The applicants finally replied to say that they were no longer in contact with the person who prepared it, and did not have another version available to lodge.
I have considered the information available to me, comprising (but not limited to):
·the protection visa application form lodged by the applicants;
·the information and documents given to the Department before the refusal decision;
·the audio recordings of [Mr A] and [Ms B]’s respective Departmental interviews; and
·the voluminous materials submitted by the applicants in response to the AAT’s requests for further information, including the 90-page ‘Legal Submission’ and a lengthy statutory declaration dated 26 September 2024 sworn by the applicants’ former RMA (which reads like a submission) about the best interests of the minor applicants,
and I am satisfied that I can adequately determine the issues and reach a decision in this case without holding a hearing, per s 106 of the Administrative Review Tribunal Act 2024.
For the following reasons, consistent with the delegate’s decision, I find that Australia is taken not to have protection obligations to the applicants pursuant to s 36(3) of the Act. I also find that ss 36(4), (5) or (5A) of the Act do not apply to the applicants or exclude the operation of s 36(3) of the Act. Accordingly, the decision under review must be affirmed.
I have also addressed the applicants’ request for their case to be referred to the Minister for intervention at the conclusion of this statement of reasons. In short, I consider it would be in the public interest for the Minister to intervene for the purposes of granting each of the applicants a short-term subclass 600 visa, which would thereby allow them to lodge another visa application in Australia.
OUTLINE OF EVIDENCE AND CLAIMS
I set out below an outline of the applicants’ evidence and claims. It is derived from the information contained in the materials described at [16] above.
For the avoidance of doubt, I confirm that I have listened to the 4+ hours (combined) of oral evidence given by the applicants in the course of the Departmental interviews which were conducted on 28 August 2018 and 19 September 2018, respectively. They participated in those interviews with the assistance of a Polish interpreter and the presence of their former RMA.
I have not had the opportunity of personally putting questions to the applicants. But I gained the impression via the audio recordings that they are sincere and credible individuals who arrived in Australia in a state of severe stress and were doing their best to explain their personal circumstances and the reasons why they were applying for protection.
I am aware from Departmental records that the applicants attempted to seek asylum immediately upon arriving at Perth airport, when they first engaged with immigration officials. They were compliant and forthcoming. Consequently, in a distressing turn of events for them, they were in fact refused entry to Australia and placed in immigration detention for a short period of time. They did not try to mislead the airport officers or pass themselves off as tourists. This conduct weighs very heavily in favour of the applicants’ integrity.
The applicants have provided detailed personal statements about what has happened to them over the years, verbally and in writing. They have remained consistent overall.
Although not directly relevant to their protection claims, I have also taken account of the references and letters which form part of their Ministerial intervention request for credibility purposes. I rely on them to support my view that the applicants are genuine and sincere.
I am prepared to give the applicants the benefit of the doubt when it comes to the information that they have provided about their past experiences, before travelling to Australia.
Personal background
[Mr A] and [Ms B] grew up in the city of Bytom, in southern Poland.
[Mr A] is one of 7 children. Both of his parents and one of his brothers have passed away in the last 2 years. [Mr A]’s surviving siblings reside in Poland and [Country 1]. He has limited or no contact with some of them.
[Mr A]’s family is Romani, also known as ‘Gypsies’. [Mr A] and his family have dark skin, and they speak a Gypsy dialect within their family and their Romani community.
[Ms B] is one of 2 children. She has a younger brother who now lives in Australia. He came to visit [Ms B] and [Mr A], during which time he started a relationship with an Australian citizen who he later married.
[Ms B]’s father is deceased. Her mother is still alive. The mother is a Polish citizen but a long-term resident of [Country 3].
[Ms B] and her family are [white]-skinned.
Both [Mr A] and [Ms B] finished their secondary education in Poland via the completion of technical/trade courses. [Mr A] qualified as a [occupation] and started work in that field when he finished school. [Ms B] attained [qualifications].
In Australia, [Mr A] works as a [Occupation 1] and [Ms B] is a [Occupation 2].
[Mr A] and [Ms B]’s children have been described by [Mr A] and [Ms B] as having dark skin and being of ‘mixed Polish and Romani Gypsy blood’. They currently attend their local high school in Perth.
The start of the blood feud
When [Mr A] was just[age] years old, his family reached a binding agreement with another Romani family that he would marry their daughter in future. This is standard practice in Romani communities. However, contrary to the agreement, [Mr A] and [Ms B] started a relationship when they were [age] years old. They were introduced to each other by a friend.
[Mr A] and [Ms B] maintained a discreet but committed relationship for a few years. At aged [age], [Ms B] fell pregnant. This led to the Romani community finding out about them.
Once the relationship was discovered, [Mr A] was promptly forced by his family to sever contact with [Ms B] and marry the Romani girl to whom he had been betrothed. [Mr A] was [age] years of age; meanwhile, his Romani wife was [age] years old.
[Mr A]’s family was also required to pay a fine in the sum of 50,000 Euros to the other family by reason of [Mr A]’s indiscretion. [Mr A]’s father paid 15,000 Euros up front and borrowed 10,000 Euros from other family members. He entered into a payment plan for the remainder.
In their respective protection visa interviews, [Mr A] and [Ms B] each described [Mr A]’s father-in-law as a ‘Judge like’, prominent figure within the Romani community. He was renowned as a person who had power and influence, with extensive contacts.
The fine was payable to [Mr A]’s in-laws as a penalty for his breach of the Romani code. But [Mr A] had also brought great shame on his own family, both because of his relationship with [Ms B] and also because he was meant to have remained a virgin until marriage.
The first attack on [Ms B]: 2009
[Mr A] and [Ms B]’s son, [Mr C], was born in [year]. Although they had ended their relationship before then, [Mr A] learned of [Mr C]’s birth via [Ms B]’s brother who contacted him about it and became a messenger between [Mr A] and [Ms B].
[Mr A] met up with [Ms B] and [Mr C] at some stage in 2009. The fact of their meeting and contact was reported back to the Romani community and the family of [Mr A]’s wife. This resulted in a premeditated brutal attack on [Ms B] soon thereafter.[4] She was severely bashed by a group of Romanis who had been instructed to carry out the attack on behalf of [Mr A]’s father-in-law. The attack involved [Ms B]’s wrists being slashed, her head being struck with a bottle, and the forced ingestion of sleeping tablets. [Ms B] was told by the perpetrators that if she survived, then she had better run for her life. She was left for dead. She was hospitalised after the attack and required major surgery on her hands.
[4] According to the ‘Legal Submission’, this attack took place while [Ms B] was pregnant with [Mr C]. However, [Mr A] and [Ms B] each spoke about it at their protection visa interviews. They clearly said it took place after [Mr C] was born. I prefer the information given by the applicants at their interviews.
As soon as [Ms B] was able to do so, she fled to [Country 3] with [Mr C]. She stayed at her mother’s house. At around this time, [Mr A] learned that his ‘in-laws’ knew of [Ms B]’s whereabouts in [Country 3]. He was warned she was at risk of ongoing harm even at her mother’s house. [Mr A] passed this information onto [Ms B]. As a result, she decided to relocate to [Country 1].
The second attack on [Ms B]: 2015
[Mr A] and [Ms B] did not contact each other for a period of almost 2 years because of what had happened and the fear of further retribution. But [Mr A] became pained by the separation.
[Mr A] wanted to see [Ms B] and [Mr C] again. He got back in touch with [Ms B] in 2010 through her brother and arranged a secret visit to [Country 1]. [Mr A] and [Ms B] resumed their relationship when [Mr A] came to [Country 1], and [Mr A] arranged further visits. By this time, he had a job which involved business travel to neighbouring countries. He passed off his time away as work trips.
[Ms B] fell pregnant again. [Mr A] and [Ms B]’s daughter, [Ms D], was born in [Country 1] in [year].
[Mr A] continued to visit [Ms B] and their children in [Country 1], while remaining married to his Romani wife and keeping up pretences. One day, however, [Mr A]’s father-in-law met with [Mr A] after he had just returned from [Country 1] and asked him to swear on a bible that he was no longer in a relationship with [Ms B]. [Mr A] refused to do so.
[Mr A]’s conduct caused his Romani in-laws to suspect he was still seeing [Ms B]. This led to another vicious attack being organised and carried out on her, in her home in [Country 1]. It took place in around mid-2015. [Mr A] was in Poland at the time. [Ms B] was at her house with the 2 children. A group of people who were Romani by appearance and language broke in. They confronted [Ms B] and told her that they would kill her and take away the children because [Mr A] was supposed to be with his wife and not her. They set upon her; they beat her and broke her nose.
[Ms B] recognised some of the people who assaulted her in [Country 1] as the very same individuals who attacked her in Bytom, Poland in 2009. She did not know how they managed to find her in [Country 1] but assumed they had tracked [Mr A]’s movements at some stage. She had a housemate who fortunately interrupted the assailants; they left the scene when the housemate called the police and emergency services. [Ms B] was taken to hospital by ambulance. She needed surgery again.
[Mr A] stopped visiting [Ms B] for about a year after this second attack took place. His Romani in-laws assaulted him too and told him that if he didn’t stop his relationship with [Ms B] once and for all, they would kill him.
Attack on both [Mr A] and [Ms B]: 31 December 2016
In late 2016, [Mr A] was desperate to see his children for Christmas. He contacted [Ms B] again through her brother. They arranged to meet up at [Ms B]’s mother’s residence in [Country 3]. They spent Christmas Eve and Christmas Day together as a family.
During the Christmas period, [Mr A] and [Ms B] came up with the idea of a holiday getaway just for the two of them, while [Ms B]’s mother looked after the children. They booked to stay in a remote small town in Poland from 27 December until New Year’s Day.
The couple went out to a restaurant on New Year’s Eve (NYE). When they were walking back to their hotel after dinner, they were attacked by a group of 10 neo-Nazi ‘hooligans’. They taunted [Mr A] for being a ‘black Gypsy’ and [Ms B] for being a ‘Gypsy whore’ and ‘Gypsy bitch’.
[Mr A] was hit in the head by a bottle, kicked in the head, and knocked out on the ground. When he gained consciousness, he found gashes on his forehead and [Ms B] screaming for help. She was lying on the ground too. She had been bashed and her back was broken.
[Mr A] managed to take [Ms B] for emergency medical treatment. As previously, she underwent surgery. She returned to [Country 1]. She was not able to walk for the following month or so due to the severity of the injury to her spine. She stayed with a friend who helped her with everything, including caring for the children.
[Mr A] and [Ms B] did not claim this incident as being related to the ‘blood feud’. Rather, they were targeted because of their inter-ethnic relationship and, specifically, because [Mr A] is Romani.
The bounty and kidnapping of [Mr A]: 2018
[Mr A] went back to living and working in Bytom after the NYE attack. But, after a few months, he made his mind up that he could not stay in his arranged marriage any longer.

[Mr A] escaped to [Country 1] in 2017 to be with [Ms B] and the 2 children. When [Mr A] left Poland, he contacted his wife’s family and told them they would not see him anymore.
Soon after [Mr A] left Poland, someone tried to break into the house where [Ms B] had been living. [Ms B] was not there but her housemate was. The housemate called the police. This caused [Mr A] and [Ms B] to realise they could not return to that house.
[Mr A] and [Ms B] stayed in accommodation arranged by a friend. They kept a low profile. Their life was somewhat peaceful for a few months until, in early 2018, [Mr A] received a call from a person in [Country 2] who wanted to meet with him about a business deal. The offer made sense in the context of [Mr A]’s line of work. He travelled to [Country 2] for the meeting.
As it turns out, the meeting was a set-up. [Mr A] was invited to the businessman’s house. When they arrived, [Mr A] was attacked by 4 other men. He was hit in the back of the head and taken to an attic in the house where he was kept for 2 or 3 days.
During the period when [Mr A] was detained in the attic, he was repeatedly beaten. He also overheard the men talking with his Romani father-in-law in Poland. [Mr A] recognised his voice. The men haggled over the payment of a 30,000-Euro bounty for [Mr A]’s head (i.e., payable by the father-in-law) and a discussion took place about a burial location for [Mr A]’s body.
[Mr A] managed to escape from the house by jumping from a second-floor window. He caught the attention of a car passing by. The driver of the car rang the police, who arrived very quickly. The men in the house were arrested and the police discovered evidence of other unlawful activity, such as drugs and fraudulent documents and large amounts of cash.
[Mr A] suffered from numerous bodily injuries. He required extended treated in a [hospital]. He provided documentation in relation to his hospital stay, dated 3 May 2018.
The decision to travel to Australia
[Mr A] and [Ms B] were left terrified and traumatised by what happened in [Country 2]. They were now aware there was a financial incentive (namely, the bounty) which could motivate members of the broader Romani community to track them down and harm them. They said they were afraid of ‘all Gypsies’, throughout the entirety of the EU, from then onwards.
[Mr A] and [Ms B] decided they needed to leave the EU in order to be safe. In July 2018 [Mr A] obtained passports for himself and the family from a border town in Poland. They looked up Google for places where they could easily obtain an entry visa.
In his protection visa interview, [Mr A] recounted that he successfully obtained the eVisitor visas within 3 minutes of lodging the applications. The next day, he purchased the flights for them all to depart [Country 1] for Australia in August 2018.
[Mr A] said Australia was ‘a country [he] knew nothing about’ except that it was ‘so far away’, which was entirely the point. According to [Ms B], in her interview, they came to Australia precisely because no one would know them. They had no family or connections here.
Why the applicants fear returning
[Mr A] and [Ms B] fear ongoing retribution from the Romani community in Poland, instigated and encouraged by [Mr A]’s former father-in-law. They claim it remains unsafe for them and their children to return, despite the passage of time since they left. Romani ‘blood feuds’ are a form of honour-based violence which can be enduring over generations.
[Mr A]’s conduct, by leaving his marriage to be with [Ms B], is a significant violation of the Romani code on several fronts. He has brought longstanding shame on his family and his former in-laws. The manner in which Romani restore family honour involves revenge, violence, and abuse, not only directed at the transgressive individual but their family members too (such as their partner and children).[5]
[5] Factsheets on Romani culture - Roma and Travellers published by the Council of Europe. See in particular ‘Roma Culture: An Introduction’(1680aac363) and ‘Social organisation and family structure’ (1680aac36c). See also Papapavlou, M. (2006), Book Review: Gypsy Law: Romani Legal Traditions and Culture. European Journal of Cultural Studies, 9(2), 251–253, and Romani society and culture - Wikipedia: ‘The blood revenge, blood feud or vendetta is an old form of private vengeance, which is usually intended to restore Romani family honour by killing an opponent. It only occurs after serious damage to honour, such as the killing itself, which no other damage compensation within the feud can do justice to.’
[Mr A] and [Ms B] also claim to fear serious harm throughout the EU due to [Mr A]’s status as a Roma, and their children’s mixed ethnicity. According to the ‘Legal Submission’:
If returned to anywhere in Europe, the applicants face serious harm due to their Roma ethnicity, not only from their Roma persecutors, but from European officials and states generally, who are indifferent to the plight of Roma and do little to ensure their fair access to work, employment, housing, shopping, and other basic life necessities (even if Roma may appear to have rights, State authorities generally do not enforce and protect this right in reality […]
Throughout all of Europe, Roma face systemic discrimination in regards to housing, employment, health care, and other basic life necessities; they are also vulnerable to racist attacks by gangs, due to deeply entrenched hatred of Roma by racists and gangs across Europe.
During his protection visa interview, [Mr A] spoke about how his family was vilified in Poland because of their Roma ethnicity. Their interactions with the authorities were fraught with difficulties. For example, they were not protected by the police when attacked in public, and they had to pay bribes to health service providers to be given basic services that others received for free. He spoke about the derogatory treatment he experienced at school from students and teachers alike. He also referred to broader problems with skinheads and hooligans who variously attacked Romani, attempted to extort them, and burned their houses.[6] [Mr A] was personally beaten by a group of skinheads in 2010. The NYE attack on him and [Ms B] was another occasion involving ethnic profiling and targeted harm.
[6] The applicants provided several news articles to corroborate the incidents involving hooligan attacks on Romanis in Poland in 2010, 2016 and 2017 (including specifically in Bytom).
[Ms B] told the case officer who interviewed her that ‘everyone hates Gypsies’ in Europe and they are discriminated against. She said it is difficult for Romani to find a house to rent, it had been hard for [Mr A] to get a job, the children were taunted when they spoke in their dialect, and she ([Ms B]) was personally called names such as ‘nigger’s wife’.
The applicants have provided extensive reference materials on the circumstances of the Romani people in each of the EU countries to support and corroborate their claims.
RELEVANT LAW
In making this decision, I am required to consider:
·the criteria for a protection visa which are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth).
·the ‘Refugee Law Guidelines’ and the ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs; and
·any relevant Department of Foreign Affairs and Trade (DFAT) Country Information Reports prepared for the purposes of assessing protection claims.[7]
[7] See s 499 of the Act, together with Ministerial Direction No. 84 made under that section. There is no DFAT Report for Poland.
Insofar as the visa requirements are concerned, an applicant must meet at least one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) in order to be entitled to the visa grant.
Broadly speaking, I must first assess whether protection obligations are owed to the applicants as refugees under s 36(2)(a) and, if no such obligations arise, assess whether protection obligations are owed under the complementary protection criterion in s 36(2)(aa).[8]
[8] Sections 36(2)(b) and (c) are directed at applicants who are members of the same family unit as a person who meets ss 36(2)(a) and/or 36(2)(aa) or already holds a protection visa of the same class.
Refugee criterion
Section 36(2)(a) provides that the applicant is eligible for the visa if the decision‑maker is satisfied he or she meets the legal definition of 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.[9]
[9] Section 5H(1)(a) of the Act.
A person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group (PSG) 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.[10]
[10] Section 5J(1) of the Act.
Persecution must involve ‘serious harm’[11] and ‘systematic and discriminatory conduct’.[12]
[11] Section 5J(4)(b) of the Act. Section 5J(5) of the Act sets out non-exhaustive examples.
[12] Section 5J(4)(c) of the Act.
Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA.
Complementary protection criterion
If a person is found not to meet the ‘refugee criterion’, the decision-maker must consider the ‘complementary protection criterion’ under s 36(2)(aa). That inquiry is prospective and asks whether there are substantial grounds for believing there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of returning to the receiving country.[13]
[13] DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13].
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).[14]
[14] Extracted and attached to this decision.
A person will suffer ‘significant harm’ if they 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.[15]
[15] Per s 36(2A) of the Act. Unlike the concept of ‘serious harm’ (which forms part of the ‘refugee criterion’), the term ‘significant harm’ is exhaustively defined in the Act: DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [14] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).
Qualification of protection obligations
Satisfaction of the criteria set out in s 36(2) of the Act is subject to s 36(3). Section 36(3) concerns the question whether the applicants have protection available to them in another country, other than Australia. Specifically, it provides as follows:
Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
Section 36(3) is itself qualified by s 36(4) to (5A), which set out the exceptions in which s 36(3) does not apply.[16]
[16] These provisions assess whether the applicant has a well-founded fear of persecution or faces a real risk of significant harm in relation to the other country, or whether the other country will return them to a third country where they will be persecuted or face a real risk of suffering significant harm.
The term ‘right to enter and reside’ in s 36(3) includes a liberty, permission, or privilege lawfully given and/or currently available to the applicant.[17] Evidently, on the face of the words of the provision, there is no temporal limitation. However, inherent in the word ‘reside’ is that the person has a right to remain in the other country for longer than a short or passing visit.[18]
CONSIDERATION: ARE THE APPLICANTS OWED PROTECTION IN AUSTRALIA?
[17] Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91.
[18] SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 at [27].
Country of nationality
The applicants travelled to Australia on validly issued Polish passports which were accepted by the Department as genuine. I have no reason to doubt this assessment. For this reason, I am satisfied the applicants are Polish citizens. Therefore, for the purposes of s 36(2) of the Act, the applicants’ nationality is Polish and the ‘receiving country’ is Poland.
Do the applicants meet the visa criteria in s 36(2) of the Act?
Based on the applicants’ evidence (as outlined above), I am prepared to accept there is a genuine risk they would be physically harmed by members of the Romani community in Poland if they returned there. I am satisfied the risk of harm faced by the applicants is because a ‘blood feud’ exists, which directly arose from [Mr A]’s decision to pursue – and maintain – a relationship with [Ms B] rather than submit to the marriage that had been arranged for him by his family, in accordance with their customs.
I accept the information provided to me by the applicants about the Romani culture and code. The fact that [Mr A] left the marriage in 2017 (i.e., approximately 7 years ago) does not mean the risk has dissipated. I acknowledge and accept that ‘blood feuds’ can and do last for generations within Roma clans.
However, I do not find the essential and significant reason why the applicants are at risk of serious harm in Poland is for one of the reasons set out in s 5J(1)(a) of the Act.[19] Rather, the risk arose (and continues to exist) because [Mr A]’s former in-laws wish to seek revenge for [Mr A]’s specific transgression against their daughter (his ex-wife).[20]
[19] Race, religion, nationality, membership of a PSG or political opinion.
[20] In this regard, I rely on the approach taken by the Full Court of the Federal Court in SCAL v MIMIA [2003] FCAFC 301 (albeit in relation to the previous wording of the Act) which rejected the submission that an applicant who is at risk of harm because of a family ‘blood feud’ is a member of a PSG.
Having said this, I am satisfied the existence of the ‘blood feud’ constitutes substantial grounds for believing there is a real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of returning to Poland. At the least, I find the harm faced by the applicants would be either in the form of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. [21]
[21] Per ss 36(2A)(d) and (e), and the associated definitions in s 5(1) of the Act.
I am satisfied the applicants could not be safe anywhere in Poland[22] because of the manner in which the members of the Romani community conduct themselves and the ‘Judge-like’ status of [Mr A]’s former father-in-law. I find it plausible the applicants could be tracked down via the in-laws’ connections throughout Poland. [Mr A], in particular, presents as Romani by appearance and dialect, and he still has family (and extended family) who live in Poland. The risk is heightened by the fact that the applicants would find it almost impossible to ‘blend in’ because of their unique composition as a mixed Romani/non-Romani family. I accept that, if the applicants returned to Poland, it would not take long for news to travel within the Polish-Romani community back to [Mr A]’s former in-laws as to their return.
[22] Per s 36(2B)(a) of the Act.
Additionally, I am satisfied the Polish authorities cannot provide effective protection to the applicants with respect to the ‘blood feud’.[23] I accept the information provided by the applicants[24] to the effect that Polish police do not wish to investigate cases for the Romani and conduct themselves in a discriminatory manner.
[23] Per s 36(2B)(b) of the Act.
[24] In the document entitled ‘Legal submission’.
To state the obvious, I am also satisfied the significant harm that the applicants face is one faced by them personally and not faced by the population of the country generally.[25]
[25] Per s 36(2B)(c) of the Act.
For these reasons, I find the applicants meet s 36(2)(aa) of the Act, namely, the complementary protection criterion. But, as foreshadowed above, that is not the end of the matter because I must now consider whether the qualification provided for by s 36(3) of the Act applies.
Can the applicants seek protection in another country per s 36(3) of the Act?
Put simply, s 36(3) operates to the effect that Australia is taken not to have protection obligations in respect of a person with certain rights to enter and reside in any country apart from Australia.[26] Accordingly, I am required to consider the applicants’ right to enter and reside in other countries.
[26] Exceptions to s 36(3) are contained in ss 36(4), (5) and (5A). These are addressed further below.
It is not in dispute that Poland is an EU Member State. As citizens of Poland, the applicants are automatically ‘EU Citizens’, although of course the EU is not a ‘country’ for the purposes of the Act.[27]
[27] BZAAH v Minister for Immigration and Citizenship [2013] FCAFC 72.
The EU Member States are Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden.

100. All EU citizens and their family members have the right to move and reside freely within the EU.[28] The conditions for the exercise of the right of free movement and residence within the territory of the Member States by EU citizens and their family members are set out in the Free Movement Directive. Among other matters, it stipulates that EU citizens can live in another EU country for up to 3 months without any requirements other than holding a valid identity card or passport.
[28] See Conference of the Representatives of the Governments of the Member States, Consolidated version of the Treaty on the Functioning of the European Union, 2008/C 115/01, European Union, 13 December 2007, Art 21; European Union, Charter of Fundamental Rights of the European Union, 2012/C 326/02, 26 October 2012, Art 45. See also European Commission Notice, ‘Guidance on the right of free movement of EU citizens and their families’ 2023 (the Free Movement Directive). At [3.1.1] it says:
Without prejudice to the application of the limitations provided under Chapter VI of Directive 2004/38/EC, Articles 4(1) and 5(1) of Directive 2004/38/EC stipulate that EU citizens have a right to leave a Member State and to enter another Member State with a valid identity card or passport. No other formalities can be required.

To stay in another EU country for more than 3 months, EU citizens must meet certain conditions depending on their status (for example, worker, self-employed, student, etc.). They may be asked to comply with administrative formalities. An individual who claims a residence right beyond the initial 3 months benefits from an assumption that they enter the host state to seek employment for so long as they can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged. An EU citizen is entitled to ‘a reasonable period of time’ to look for work which, should the EU citizen decide to register as a jobseeker in the host Member State, starts from the time of registration. EU citizens have the right of permanent residence in another EU country after legally residing there continuously for 5 years.[29]
[29] See the Free Movement Directive at [5]–[7].

102. Based on this information, and the applicants’ evidence, I find that they have a right to enter and reside in each other EU Member State and have not taken all possible steps to avail themselves of that right. Importantly, it is not necessary for me to reach such a conclusion in respect of each EU Member State. For the purposes of this assessment, I will consider the applicants’ circumstances in respect of Ireland, being an EU Member State which (on the applicants’ own evidence) they have never travelled to.
103. To be clear, I do not accept the applicants’ claims[30] to the effect that [Mr A] and [Ms B] will not be able to meet the residence requirements in each other EU Member State (inclusive of Ireland) due to an inability to get jobs to support themselves. Each of them has a consistent history of employment in Poland, [Country 1], and Australia to date. They graduated from college with trade qualifications, and obtained further post-graduate qualifications in Australia which would only serve to improve their prospects. Specifically in respect of Ireland, I note that [Ms B] speaks ‘Proficient English’ such that there would be no language barrier to her finding work.[31] I also take account of the fact that Polish is the third most spoken language in Ireland after English and Irish.[32]
[30] Primarily made in the document entitled ‘Legal Submission’, but also impliedly raised by [Ms B] during her protection visa interview.
[31] [Ms B] provided a copy of an IELTS Test Report Form dated 26 August 2024 to the Tribunal.
[32] According to the Irish government. See Ireland's relationship with Poland | Ireland.ie
104. It follows that I conclude s36(3) applies to the applicants. I now turn to consider whether its operation is excluded by operation of s 36(4), (5) and (5A).[33]
[33] SZRTC v Minister for Immigration and Border Protection (2014) 224 FCR 570 at [25].
Does s 36(4) of the Act apply to the applicants’ circumstances?
105. Section 36(4) provides that s 36(3) will not apply in relation to a country in respect of which:
(a)the applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a PSG or political opinion; or
(b)there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing themselves of the right mentioned in s 36(3), there would be a real risk that they will suffer significant harm.

106. Looking firstly at s 36(4)(a), it is evident that it reflects the wording of the ‘refugee criterion’. In other words, it only operates where an applicant has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a PSG or political opinion.
107. I reiterate my conclusion in respect of the applicants’ claims that the existence of the ‘blood feud’ does not fall within the ambit of the ‘refugee criterion’ and the associated risk of harm is not by reason of the applicants’ race, religion, nationality, PSG, or political opinion.

The applicants claim, however, that there is a real risk that they will suffer significant harm throughout the EU (i.e., again, inclusive of Ireland) because of the far-reaching influence of [Mr A]’s former father-in-law throughout the European Romani community. Whereas I am prepared to accept the applicants genuinely believe this to be the case, I do not accept this aspect of their case as realistically plausible, in particular as of November 2024 and in the reasonably foreseeable future.

109.
The attacks on [Mr A] and [Ms B], which were organised by [Mr A]’s Romani in-laws, took place at a time that was proximate to specific events – namely, the discovery of the ongoing relationship in 2009 and 2015, respectively, and then [Mr A]’s decision in 2017 to leave his Romani wife in order to permanently live with [Ms B]. I consider [Mr A]’s former

father-in-law easily motivated other local Romanis to perpetrate the attacks at those times because the breach of the Romani code was still fresh and the top of mind.
110. Also, 2 of the 3 attacks took place in locations which were geographically proximate to where the in-laws reside – namely, Bytom itself, and [Country 1] (which shares a border with Poland). By inference, they would have been less difficult for the former father-in-law to arrange. In fact, according to [Ms B], the same perpetrators were involved in each attack.

The third attack – [Mr A]’s kidnapping in [Country 2]] – constitutes the most compelling evidence of the ex-father-in-law’s widespread network. But, in that instance, [Mr A] voluntarily left [Country 1] and travelled to [Country 2]]. It was a con, involving a gang of criminals who were looking to make a profit from the bounty. Although I accept there was – and may still be – a bounty on [Mr A]’s head, I am not satisfied that its existence is a widely known fact nowadays throughout the EU Romani community, including (relevantly) as far away from Poland as Ireland.
I have also considered the information provided by the applicants about their family members. That is, [Mr A]’s parents are deceased, he has limited or no contact with his siblings who live in Poland and [Country 1], and [Ms B] has no family in Poland. If the applicants were to enter and reside in Ireland, I am satisfied that there is no risk of their family finding out about it – and that information being passed onto [Mr A]’s former father-in-law. I am certain the applicants would not tell anyone in Poland (family or friends) about it, given how fearful they remain.

113. Additionally, I have inferred from the evidence and information provided by the applicants that they have not been following a Romani lifestyle or adhered to any aspects of Romani culture[34] or code for several years. Indeed, they have deliberately stayed away from the Romani community. I find that they would continue to conduct themselves in such a manner if they were to live in Ireland. In other words, I find that the applicants would deliberately avoid associating with any groups of Romanis who live in Ireland.
[34] Excluding the dialect spoken by [Mr A] and the children, in addition to other languages.

In short, the cumulative effect of the matters discussed immediately above is that I am not satisfied – in the event the applicants were to enter and reside in Ireland – that there is a ‘real risk’ of their whereabouts being discovered by [Mr A]’s former father-in-law and him acting on that information from Poland to harm them. Rather, I find the risk to be truly remote.

115. The applicants claim that, regardless, they cannot live in Ireland because of the discrimination experienced by the Roma who live there.[35] By inference, I understand the applicants to be arguing that s 36(4)(a) applies.
[35] The situation in Ireland is specifically addressed in the applicants’ ‘Legal Submission’.
116. The applicants cite a 2017 report published by the Council of Europe about the Roma in Ireland. It said:
Roma, most of whom are from Central and Eastern Europe, experience disadvantage and discrimination in all areas of life as well as racism, exclusion and poverty. Patterns of discrimination and exclusion have a serious impact on education for Roma children. As for housing, Roma often suffer from poor living conditions and face a higher risk of homelessness.
…
The Irish media reportedly portray Roma in a negative light, often associating them with criminal activities. Roma are also reportedly the target of racist comments by high ranking public officials and elected representatives. According to a 2014 study, interviews with Roma women unveil experiences of overt and covert racism […]
117. The report refers to antiRoma protests which took place in Waterford in 2014 and a police incident in 2013 whereby 2 Roma children were removed from their parents because they did not resemble them, and the police suspected that the children had been abducted.
118. I accept and acknowledge that Roma in Ireland have experienced, and continue to experience, varying degrees and kinds of social and economic exclusion, racism, and discrimination in Ireland. But, as I have already said, I find that the applicants would not seek to associate with the Romani community in Ireland. To the contrary, I expect they will distance themselves from the Roma as much as practicable.

I consider the information about the treatment of Roma in Ireland is applicable to the individuals affiliated with the Roma community who adhere to the Gypsy lifestyle, behaviour, and dress, and who live such that they are distinctly differentiated from the general population and suffer from discrimination as a consequence. The applicants will not conduct themselves in such a manner. [Ms B] is not Roma, and she and the children have never lived in this way. Meanwhile, [Mr A] has decisively left the Roma lifestyle and its mores behind. I expect the applicants would make every effort to assimilate into the broader Irish society, and proactively choose not to identify themselves as Roma.
I accept that [Mr A] and the children may be profiled as Roma by their appearance and use of Gypsy language. But I do not consider their appearance alone will expose them to being seriously harmed in Ireland. The children will present as Westernised after all, having lived in [Country 1] and Australia for the entirety of their lives, and being fluent in English.

121.
I also do not accept the applicants will be disadvantaged in Ireland because of their

Roma-mixed blood ethnicity and family composition. As I said earlier, [Mr A] and [Ms B] are educated, skilled and employable. It is abundantly clear from the materials provided in support of the Ministerial intervention request that they are extremely conscientious, hardworking, prosocial and community minded. They will distinguish themselves as much no matter where they live.
122. Based on the applicants’ evidence and submissions, and my findings, I am simply not satisfied the applicants have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a PSG or political opinion in relation to Ireland. It follows that s 36(4) does not apply.
Is there a risk of return from Ireland to Poland, per ss 36(5) and (5A) of the Act?
123. I have considered whether the applicants would be refouled from Ireland to Poland. I note that the applicants made no express claims in this regard. Nevertheless, for completeness, I have considered the prospect of this occurring on the material before me.
124. To recap, an individual who claims a residence right in an EU Member State beyond the initial 3 months benefits from an assumption that they enter the host state to seek employment for so long as they can provide evidence that they are continuing to seek employment and have a genuine chance of being engaged.
125. To reiterate, I consider [Mr A] and [Ms B]’s attributes are such that I am satisfied they would have a genuine prospect of finding some form of employment in Ireland, if not within the first 3 months, then soon thereafter. For this reason, I am satisfied that they would be able to remain in Ireland beyond any initial 3-month period and most likely on an ongoing basis.
126. It follows that I am not satisfied that the applicants have a well-founded fear that they will be returned to Poland from Ireland, such that the circumstances contemplated by ss 36(5) and 36(5A) of the Act do not apply.
Conclusions
127. For the above reasons, I find:
· the applicants meet s 36(2)(aa) of the Act;
· but s 36(3) applies to their circumstances; and
· ss 36(4), (5) or (5A) do not exclude the operation of s 36(3).

128. Consequently, Australia is taken not to have protection obligations to the applicants.
DECISION
129. The Tribunal affirms the decision not to grant the applicants protection visas.
REFERRAL TO THE MINISTER

I have considered the applicants’ request to have their case referred to the Minister, with a recommendation to intervene. They provided comprehensive supporting materials which I have reviewed. I do not intend to set out a list of the documentation.

131. Suffice to say, I am satisfied as follows:
·[Ms B] is employed as a [Occupation 2] and is presently eligible to apply for a Skilled Work Regional (Provisional) visa (subclass 491) with the support of her employer;
·[Mr A] is a [Occupation 1] who provides much-needed services to [occupations] who operate in [a specified] industry in Western Australia, which is experiencing severe skills shortages;
·[Ms B] is an active member of various local community organisations and she volunteers her time on a regular basis;
·[Ms B]’s brother is married to an Australian citizen, and he and his family (i.e., his wife and stepson) are heavily reliant on [Ms B] and [Mr A]’s support; and
·[Mr C] and [Ms D] are well-adjusted teenagers who have fully integrated into Australian society, having arrived as young children 6+ years ago, and who have excelled at school and in their participation in sports activities.

132. I am also satisfied [Mr A] and [Ms B] in particular have experienced prolonged and significant trauma prior to coming to Australia. Their lives have been unsettled and characterised by fear ever since [Ms B] fell pregnant with [Mr C], their [age]-year-old son. They finally found peace in Australia and have flourished.
133. I am convinced that it would be in the public interest for the Minister to substitute my decision in this case with a more favourable one, pursuant to s 351 the Act, being to grant short-term subclass 600 visas to the applicants to facilitate the onshore lodgement of a subclass 491 visa application.
134. By way of explanation, the legal consequence of the protection visa refusal is that the applicants are prohibited from applying for another substantive visa of any kind in Australia.[36] Pursuant to the Act, they would be required to leave Australia, lodge the visa application offshore, and remain offshore until the visa is granted.
[36] Excluding a Medical Treatment visa.

As noted, [Ms B] is ready to apply for a subclass 491 visa. There is nothing whatsoever to be achieved from forcing [Ms B], [Mr A] and the 2 children offshore for the sole purpose of lodging that visa application at substantial expense and extreme disruption. [Ms B]’s employer will be left in the lurch for an indefinite period of time. [Mr A]’s business will be suspended, and his clients left without his services. The children’s secondary school education will be severely adversely impacted. The community organisations with which [Ms B] is actively involved will miss out on her contributions. The applicants’ family members who reside in Perth will suffer as a result of their absence.

136. In summary, I consider there are strong compassionate and compelling circumstances in this case, and I expressly recommend the Minister exercises the discretion available to him under the Act and in accordance with the Minister’s guidelines for intervention.
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.
…