1904432 (Refugee) - [2025] ARTA 1120

1904432 (REFUGEE) [2025] ARTA 1120 (8 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Carina Ford
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 1904432

Tribunal: General Member Noelle Hossen
Date:8 January 2025

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

Statement made on 08 January 2025 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia race – ethnic Chinese – mixed religious relationship – mixed race relationship – particular social group – victim of loan sharks – physical assault – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia applied for the visa on 3 November 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on the 30 October 2024 and 10 December 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Partner A]
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
The applicant provided a copy of his Passport to the Department and the department found that he was a national of Malaysia. The Tribunal accepts that the applicant is a national of Malaysia and that Malaysia is the receiving country.
BACKGROUND
The applicant was born in Kluang, Johor, Malaysia on [date].
He obtained a passport [in] 2015.
He departed Malaysia to travel to Australia [in] October 2018.
He had travelled to [Country 1] for temple visits in December 2015 and September 2018. He also travelled to [Country 2] in July 2019 for a business trip.
He was employed by [Employer 1] in Kuala Lumpur from [specified year] to October 2018.
His family continue to reside in Malaysia.
The Tribunal accepts the background facts as set out in the preceding 6 paragraphs.
Evidence before the Department
The applicant filed his application for protection on the 3 November 2018. His last arrival date to Australia was [in] October 2018.
The delegate of the Department summarised his claim for protection as follows:
Their friend owes money to loan sharks and ran away. They, as a guarantor, were held responsible for settling the debt. The loan sharks threatened and blackmailed and harmed them. For example, the loan sharks hit and insulted them in public, and caused trouble at their workplace.
If they return to Malaysia without settling the debt, they will be harmed seriously. They will be suffering from psychological and physical harm again.
They cannot relocate because the loan sharks have connections nationwide. The loan sharks will cause trouble for them and their family.
They were worried about being mistreated by the loan sharks therefore they did not seek help. The authorities cannot provide them with protection without a police report.
The Delegate assessed the matter and stated:
I have considered the country information and personal circumstances of the applicant. While there may be instances of corruption in the police force in Malaysia, the Malaysian authorities are willing and reasonably effective in combating illegal money lending. While I accept that the applicant may not have absolute protection in Malaysia, I find that the Malaysian authorities can provide protection to the applicant and that they are willing and able to offer such protection. In addition, I find that the applicant can access the protection, the protection is durable, and the protection consists of an appropriate criminal law, a reasonably effective police force and impartial judicial system.
I am satisfied that, as outlined in s5 LA of the Act, there are effective protection measures available to the applicant in the receiving country and that the applicant does not have a well-founded fear of persecution. Therefore, I am not satisfied that there is a real chance the applicant will face serious harm in Malaysia.
In respect of the complementary protection criteria the delegate found that:
I find that the applicant could obtain , from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm as outlined in s36(2B)(b).Therefore, there is taken not to be a real risk that the applicant will suffer significant harm and the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant filed an Application for Review on the 26 February 2019.
The applicant was invited to a hearing by the Tribunal to be held on the 21 October 2024. The hearing was rescheduled upon the applicant requesting a postponement to the 30 October 2024. The hearing could not be completed on that date, so it was rescheduled to the 10 December 2024.
On the 14 October 2024 the applicant lodged an updated and detailed statement of claims.
In addition to the submissions, the applicant provided the following documents to the Tribunal to include but not limited to the following:
Updated statement of the applicant dated 14 October 2024
Updated statement of the applicant’s partner dated 14 October 2024
Photos of the applicant and his partner evidencing genuine relationship receives 7 October 2024
Joint [Bank 1] balance confirmation dated 7 October 2024
Joint [Bank 1] statements dated from 23 May 2022 to 30 May 2024
Joint residential lease agreement for [Address 1] signed and dated 13 October 2021
Joint residential lease agreement for [Address 1] signed and dated 27 April 2023
Joint comprehensive car insurance policy with [Insurer 1] from 31 July 2023 to 31 July 2024
Joint certificate of currency with [Insurer 1] insurance period of insurance 26 August 2024 to 26 August 2025
[A] chat history regarding genuine relationship with partner received 7 October 2024
Joint health care insurance with [Insurer 2] dated 7 October 2024 Evidence of joint travel and accommodation bookings.
Copy of the applicant’s employment letter confirming the applicant’s employment as an [occupation 1] with [Employer 2] signed and dated 9 January 2024
Copy of the applicant’s partners employment letter provided by [Employer 2] confirming the applicant’s employment [in occupation 1], signed, and dated 17 July 2024
United States Department of State human rights report 2022 Malaysia
United States Department of State human rights report 2023 Malaysia
Other reports regarding country information regarding Indians in Malaysia
Evidence at the hearing and Submissions filed prior to the hearing.
The Tribunal has read the submission supplied by the applicant through his representative.
The applicant’s partner confirmed that her family condemned her relationship with the applicant because he was of Tamil ethnicity and Hindu faith. Her family placed pressure on her to leave the relationship as she was meant to marry a man of Muslim faith. It was for this reason that they made the decision to travel to Australia to be able to continue in their relationship free from the pressure of their families. She travelled alone as he was still employed in Kuala Lumpur when she left.
The applicant was offered employment in [Town 1] in Western Australia. They made the decision to relocate in October 2020 and commenced to live together. They have been resident in [Town 1] for a period of 4 years.
They provided evidence to show that they have a joint life together.
The applicants provided evidence relating to the length of the relationship which included shared car insurance, joint bank statements and photographs. The Tribunal accepts the evidence of the applicant that he is in a committed, marriage- like relationship with [Partner A] and that she is of Muslim faith.
The Tribunal accepts the evidence of the applicant that he does not have a good relationship with his family because he is in a relationship with a woman who is of Muslim faith. He said that his mother stopped talking to him after he arrived in Australia.
His partner, [Partner A], said that she last spoke to her father and members of her family in the week before she came to Australia. She said that in Malaysia she would have difficulties living under the same roof as someone with a different religion. She said that when she lived in Malaysia she went to the mosque once or twice in a day. She said that if she lived with someone of a different faith in Malaysia, she would find that her neighbours might act. She was asked if she knew of anyone in Malaysia who had been arrested because they were in a relationship with someone from a different faith. She said that she knew many.
There were some difficulties insofar that the applicant and his partner lodged their Application for a Protection Visa with the help of a work colleague who represented himself as a person who was to assist the parties to remain living in Australia on a permanent basis. They paid him $1000 in cash, and he assisted with the preparation of the application.
They were unaware that he intended to lodge protection visa applications. The applications were lodged separately the first one was lodged on the 3 November 2018 and the other on 6 November 2018. The information that they were in a relationship at this time was not reflected in their claims or their application. The Tribunal accepts that they did not intend to mislead the Department and that they followed the advice of the person who was helping them to apply for Protection.
In the submissions of the representative at paragraph 27 it is stated as follows:
The protection claims noted in this 866-protection visa application prepared and submitted
by [the applicant’s Alias A’s] colleague for the applicants were as follows:
a) [Alias A] left Malaysia because he signed on as the guarantor for a close friend who
borrowed money from a loan shark due to financial hardship. [Alias A’s] friend
disappeared once the loan had been obtained, leaving him to make repayments which
he could not afford. [Alias A] received threats from these loan sharks who verbally
harassed him for repayment).
b) [Partner A] left Malaysia because she was receiving significant familial pressure from her
parents and siblings to marry an elder man.
The applicant’s partner confirmed that her family was forcing her to separate from her partner in Malaysia and wanted her to marry an older gentleman. She said that she had told them that she was dating him, and they did not wish them well.
The Tribunal did ask the question as to whether they intended to marry in the future. She said that they wanted to fortify their love for each other first and that they did not have a stable job and a stable income, but they did plan to marry at some point. He confirmed that they did plan to marry later.
He and his partner confirmed that there are no mosques or temples in [Town 1], and this is one of the reasons that they have been unable to worship.
The applicant said that he had brought her once to meet his family in Malaysia, but his mother said that she could not accept the relationship. He said that after he arrived in Sydney his mother stopped talking to him. He said that he does not speak to his family. The Tribunal accept that the applicant has a strong Hindu faith and that his family would not accept the relationship or marriage. He confirmed in his evidence that he plans to get married to the applicant and that they are saving money to establish themselves. The applicant did not suffer any harm in Malaysia prior to his departure.
The applicant said that he had a problem with a loan shark and that was the reason that he came to Australia and got away for 1 month. He had landed in Sydney and stayed for 1 month. He did not work during that period, and he stayed at a backpacker’s hostel. He said that when he was in Malaysia, he felt that he was well paid and worked as an Executive in [industry 1].
He said that he had previously worked in [Country 2] for 1 year as he had his first passport. He said that his mother lives in [Town 2] and she works as [an occupation 2]. Although his parents are separated, they are not legally divorced, but his father failed to look after the family. His father lives in Pinang and has left the family 15 years ago as he lives at the home of his brother and sister.
He has travelled to [Country 1] as his sister is married and lives in [Country 1]. His sister lives in [a specified region]. In his culture if a man marries, the woman must follow the man. He said that is why his sister lives in [Country 1].
He said that he had helped a friend and guaranteed a loan to a loan shark. It was for [amount]MYR.He said that the loan shark had an office, and he went to the office to sign the paperwork. The loan shark was named [Business 1]. He said that this happened in 2016. He said that the loan shark started to chase him for the repayments in 2017. They wanted him to pay [amount]MYR every month. His friend was called [Friend A] and he had a wife and child. He believed that he was doing the right thing as his friend had a job in [Country 2]. He said when he got a call from the loan shark, they wanted to be repaid [amount] MYR so he tried to contact his friend but could not get through. He said that the loan shark came to his house and gave him a time frame of 4 months. He said he thinks it was around June 2017. He tried to contact his friend but to no avail. They took his car in July 2017.He received a bonus at work for [amount] MYR and he was able to get the car back. He said his base salary was only [amount]MYR a month.
He said that at that time his mother was living in [Country 1] and working. He paid off the loan shark in 2022 whilst living and working in Australia.
He said that he met his partner [Partner A] in Johor. She came to Johor with her friend.
He said that when he told his mother she said to let the relationship go. He said that his family are very strong believers of the Hindu faith He said that it was not possible for him to convert to Islan particularly as he is the only son. When he lived in Sydney, he attended the [named] Temple. He said that there are no temples in [the region of] Australia where he is now living.
The submissions refer to the s5J (3) which provides that a person has a well-founded fear of persecution if that person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution, other than a modification that would conflict with a characteristic that is fundamental to the person’s identity or conscience, conceal an innate immutable characteristic of the person; or require the person to do any of the things listed.

43. The submissions claim that:
The Review Applicants claims are based on attributes which it is not possible for them to change, including their ethnicity, the fact that they are mixed -ethnic and inter-faith relationship. All attributes are easily identifiable to anyone observing the applicants living as a couple and from their appearance.
Whilst it may be possible for [Partner A] and [Alias A] to marry either in Australia or in Malaysia, they have noted that their marriage in Malaysia would require the conversion of [Alias A] to Islam, a prospect that his family is vehemently against as well as public advertisement of their relationship, which compounds their fear of harm from their respective families as well as in general within society.

The Tribunal accepts that the applicant will face serious repercussions if he marries or tries to live in a committed marriage like relationship with his partner in Malaysia. As the applicant is unwilling to convert to Islam their marriage will not be recognised in Malaysia.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of persecution and is likely to face serious harm if he returns to live in Malaysia and he marries his long-term partner who is a Muslim, and he is of Hindu faith. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.

The applicant and his partner live in a committed marriage- like relationship and plan to marry in the future in Australia. They fear the repercussions of being of different faith and different ethnicity if they were to live in Malaysia. A marriage between a woman and a man who is of a different faith than Islam could not be legally registered in Malaysia.
The difficulty would also arise if they had a child in Malaysia as country information indicates that, as a marriage between a legally Muslim woman and a Buddhist Man would likely not be recognised, any child who is born of the union would likely be born out of wedlock.[1]
[1] DFAT country information Malaysia
The December 2021 open doors report states that “according to current law, children born to couples where one parent is a Muslim (either by birth or conversion) are automatically registered as Muslims.[2]”
[2]Malaysia Full Country Dossier Open Doors December 2021
The Tribunal accepts the evidence that the applicant and his partner are in a committed marriage like relationship and that if they were to return to Malaysia, they will face difficulties and their union would not be recognised as the applicant is a strong believer of the Hindu faith and has no intention of converting to Islam. The applicant’s partner gave evidence at the hearing that she did attend the mosque once or twice in a day when she lived in Malaysia. She said that she knew people through the television broadcast who would be arrested for living with a non-Muslim.
Country Information states:
According to the US State Department, 63.5 percent of the Malaysian population practices Islam; 18.7 per cent Buddhism; 9.1 per cent Christianity; 6.1 per cent Hinduism; and 9 per cent other religions, including animism, Confucianism, Taoism, Sikhism and Jehovah’s witnesses.
Despite formal protections in the constitution for freedom of religion, the practice of religions other than Sunni Islam is subject to some constraints. Article 3 (1) of Malaysia’s Constitution states “Islam is the religion of the federation, but other religions may be practised in peace and harmony in any part of the Federation.”
The religious status of Muslims is recorded on their birth certificates and on their MyKad, reportedly to assist with the application of syriah religious laws. For Example, authorities inspecting restaurants for compliance with Ramadan will check patrons’ identification cards.
Married Muslims must keep a photo of themselves with their spouses as proof of marriage.
A non- Muslim male or female must convert to Islam before marrying a Malaysian Muslim. The process differs from state to state and is determined by the relevant religious authorities. Conversion to Islam is procedurally straightforward and is reflected on the convert’s MyKad. To revert to an original faith is harder, requires judicial review, and may be refused.[3]
[3] DFAT Country Information Report Malaysia June 2024
The applicant maintained in his written submissions that he will not be afforded effective protection as outlined in section 5LA of the Act. From the country information although State protection has been found by the courts to be reasonably effective through the police force and a reasonably impartial system of justice, the applicant maintains that because of the cultural and social discriminatory practices, the applicant and his partner will be subjected to discrimination, and it is likely that the police will be unwilling or unable to protect them from suffering serious harm. The Tribunal accepts the submissions contained in this paragraph.
The applicant and his partner maintain that they could not take reasonable steps to modify their behaviour to avoid a real chance of persecution as that would conflict with a characteristic that is fundamental to their identity or conscience. The Tribunal accepts the submissions.
The applicant’s representatives’ submissions are that:
The review applicant claims are based on attributes which it is not possible for them to change including their ethnicity the fact that they are mixed ethnic and interfaith relationship. All attributes are easily identifiable to anyone observing the applicants living as a couple and from their appearance.
Whilst it may be possible for [Partner A], they have noted that their marriage in Malaysia would require the conversion of [Alias A], a prospect that his family is against as well as public advertisement of their relationship, which compounds their fear of harm from their respective families as well as in general within society.
The Tribunal accepts the submissions of the applicant’s representative as contained in Paragraph 59.
Conclusion.
After consideration of the evidence before it, the Tribunal accepts that the applicant and his partner face a real chance of serious harm in Malaysia for the fact that they have different faiths, and their marriage would not be recognised. If they were to continue to live together, they could face serious harm.
The Tribunal finds that any modification of the applicant’s behaviour would fall within the exception of s5J (3) of the Act, including conflicting with a characteristic that is fundamental to a person’s identity or conscience, and requiring a person to renounce a religious conversion, conceal their true religious beliefs, or to cease to be involved in the practice of their faith. Furthermore, any such modification would be to avoid his partner from the threat of serious harm that would follow from practising his Hindu faith whilst married to a Muslim woman.
The Tribunal finds that the applicant and his partner were clear and credible witnesses in relation to their claims for protection.
The Tribunal is satisfied that the persecution feared by his partner and himself would apply to all areas of Malaysia as Islamic laws operate throughout the country. He and his partner would not be able to relocate.
For these reasons, the Tribunal accepts that the applicant and his partner have a well-founded fear of persecution because they will be unable to have their marriage recognised unless he converts to Islam, and he is not willing to do so. They will be discriminated against, and their families would not accept their union. The Tribunal finds that the applicant is a person in respect of whom Australia has protection obligations.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36 (3) does not apply in the circumstances of this case.
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
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.
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