1906401 (Refugee) - [2024] ARTA 875

1906401 (Refugee) [2024] ARTA 875 (29 October 2024)
DECISION AND
REASONS FOR DECISION
Representative: Mr Basim Hamdan (MARN: 1909713)
Respondent:Minister for Home Affairs

Tribunal Number: 1906401
Country of Reference: Yemen
Tribunal:Deputy President S Roushan
Date:29 October 2024

Place:Sydney
Decision:The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
(i)the first and the second named applicants meet s 36(2)(a) of the Migration Act; and
(ii)the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the other applicants.

Statement made on 29 October 2024 at 3:51pm
CATCHWORDS
REFUGEE – protection visa – Yemen – political opinion – holds progressive views in relation to women’s rights and is opposed to the hijab – membership of the particular social group of women in Yemen – married without guardian’s consent – threats to her liberty, significant physical harassment and significant physical ill treatment, by the Houthis and their agents, as well as other conservative males in the community – no effective state protection against harm available to the applicant – Applicant has a well-founded fear of persecution – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 5(1) 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BEL16 v Minister for Home Affairs (2019) 167 ALD 295
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

The applicants are all citizens of Yemen. The first and the second named applicants (Applicant A and Applicant B respectively) are married. The third named applicant (Applicant C) is their son.
Applicant B arrived in Australia on [date] on a Skilled-Recognised Graduate visa (Subclass 476). Applicant A arrived in Australia on [date] on the same visa as a ‘subsequent entrant’.
On 15 December 2016, Applicant A lodged an application for a Protection visa, making her own claims for protection. Her husband was included in the application as a member of her family unit and did not make his own claims for protection.
Applicant C was born in Australia on [DOB] and was subsequently included in his mother’s Protection visa application as a member of her family unit.
The Protection visa application was refused on 15 March 2019 by a delegate for the Minister of Home Affairs under s 65 of the Migration Act 1958 (Cth) (the Act).
Applicant A applied for a review of the delegate’s decision to the Administrative Appeals Tribunal (AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). 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.
This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
According to the Protection visa application, Applicant A is [age] years old. She is a Sunni Muslim. She was born in Sanaa (also known as Sana’a and Sana), Yemen. Her parents and one of her brothers are deceased. Her younger brother and an older sister reside in Sanaa. She completed her secondary schooling in [Year] and subsequently obtained a Bachelor [degree] from [a] University in [Year]. She married her husband on [date].
In response to questions in relation to her reasons for claiming protection, Applicant A stated that she fears being killed by her brother for disobeying his orders and getting married without his permission. She stated that she was under her brothers’ guardianship in Yemen, she was unable to leave the house and she was prevented from applying make-up or wearing perfume as her brothers considered these acts to be ‘against the religion’. She was ‘beaten occasionally’ by her brothers and threatened with home imprisonment. Her grandfather was unable to assist her, and she did not believe the authorities would be able to protect her. She was unable to internally relocate as a single woman.
In a statement attached to her Protection visa application, Applicant A provided the following additional information.
Her father died when she was [young], and she lost her mother nine years later. Following the death of her parents, she lived with her older sister and two younger brothers: [Mr D] and [Mr E]. She lived a ‘bitter’ life as a teenager in a conservative society.
It was not easy for her to work because her siblings were against it, as work for women was considered a ‘shameful act’ according to her family’s traditions. She ‘barely managed’ to convince her younger brothers, who were ‘like her guardians’, to allow her to complete her university studies.
She attended lectures once or twice a week because her brothers did not want her to go to university without being accompanied by them. She was eventually able to complete her studies with the support of her female classmates.
When her husband asked for her hand for marriage, her brothers ‘decisively’ refused him. They believed that her marriage would leave them ‘without a servant and source of income’ as her older sister was already married and had left the family’s home when her mother was still alive. Her husband and his family spoke to her sister about the marriage proposal, but she told them that she had no say in the matter.
When Applicant A objected to her brothers’ views, she was subjected to ‘all types of violence and physical abuse’ and became ‘a victim of persecution in a closed masculine-controlled society’ that does not respect a woman’s rights. She then decided to speak to and seek the intervention of her uncles and grandfather. Her uncles showed no interest in assisting her and advised her to listen to her brothers. While her grandfather told her that he could not do anything because of his old age, he agreed on the marriage and gave her his blessings.
Applicant A then ‘begged’ her brother [Mr D] to convince their youngest brother, [Mr E], to allow her to get married. She promised to hand her dowry over to him and give him her share of her inheritance from her parents. When [Mr D] attempted to speak to [Mr E], an argument erupted, and [Mr E] murdered [Mr D]. [Mr E] claimed that he would not accept a sister who dares to argues with him over any matter and that he had already made a decision about the marriage proposal. As a result, her social and psychological situation deteriorated as her family ‘scattered’, in a society already devastated by war and conflict.
[Mr E] was subsequently arrested and imprisoned, and Applicant A decided to ‘seize the opportunity’ and marry the man she loved. Her marriage was still opposed by relatives, members of the community and even some neighbours and ‘everyone’ refused to ‘witness’ her marriage as they feared retribution from her brother. No one supported her except for her sister and her grandmother.
She was ‘shocked’ when she received threats of revenge from her imprisoned brother. He informed her through relatives that [Mr D] ‘was not more valuable to him’ than her. He also threatened that she would suffer ‘aggravated punishment’ due to making her own life decisions and ‘disobeying his guardianship’. She subsequently faced ‘enormous pressure’ from other family members to withdraw the murder case against her brother. When she refused, she was threatened with death, and she became very scared and frightened. As her husband was already in Australia, she tried to avoid her relatives by moving into her grandparents’ house and eventually with the support of her husband’s family, she travelled to Jordan and then to Australia.
While in Australia, she was informed by her sister that [MR E] had been released from jail due to the civil war and ‘the corrupt system in the police department’, and that ‘he is determined to punish and kill her.’
Her life would be under real threat if she were to return to Yemen. There is an absence of law and order in Yemen, which means that women have no protection against exploitation and persecution.
The interview
Applicant A attended an interview with a delegate of the Minister on 26 September 2018. Where relevant, her oral evidence to the delegate is referred to in the analysis of the claims further below.
The delegate’s decision
The delegate was not satisfied that Applicant A’s brothers were her only legal guardians and that it was likely her grandfather was her legal guardian, who had supported her marriage to her husband, regardless of her brothers’ views. The delegate accepted that Applicant A’s brothers had monitored her and held controlling attitudes over her ability to maintain an open relationship. However, she did not find ‘any reason [Applicant A] has shamed her family’. While her relationship with her husband was hindered by her brothers’ adverse and conservative Islamic attitudes, the delegate was not satisfied that her husband’s requests to marry her were refused. The delegate did not find Applicant A’s relationship with her husband to be the reason behind the conflict between her brothers and the subsequent murder of one by the other. The delegate was not satisfied that the arrest of Applicant A’s brother was the reason for Applicant A being able to marry her husband in October 2015. She was also not satisfied that Applicant A has been blamed for the arrest of her brother due to her relationship with her husband or that she would be targeted by him or other members of her family.
The delegate was not satisfied that Applicant A is a refugee as defined under s 5H(1) of the Act and found that she was not a person in respect of whom Australia has protection obligations under s 36(2)(a). The delegate was also not satisfied that Applicant A is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act. The delegate found none of the applicants was owed protection obligations.
Evidence before the Tribunal
Pre-hearing submissions
On 18 March 2019, Applicant A applied for a review of the delegate’s decision to the Tribunal. She was represented in relation to the review by Mr Basim Hamdan.
On 14 August 2024, Mr Hamdan forwarded to the Tribunal a submission accompanied by statements from Applicant A and her husband, photographic evidence of the aftermath of attacks by unknown individuals on Applicant A’s brother-in-law, copy and translation of police and hospital reports in relation to Applicant A’s brother-in-law and photographs of Applicant C in his school environment.
Applicant A
In her statement, Applicant A provided the following information.
She met her husband in 2007 and they developed a deep and loving relationship over the years. They wanted to get married, but her brothers, [Mr D] and [Mr E], were strongly opposed to the marriage because they wanted her to stay at home and support them with household duties, and due to their conservative religious beliefs. They believed that her primary role as a woman was to serve her family and to ‘strictly adhere to traditional norms’, including marrying a man of their choosing.
Despite her husband’s ‘repeated’ marriage proposals in 2012 and 2014, her brothers refused to give consent. They believed that allowing her to marry for love would bring shame upon the family and violate their cultural and religious traditions. Her brothers went to great lengths to prevent their marriage, monitoring her ‘every move’ and ‘severely restricting’ her interactions with her husband.
After years of struggle and persuasion, she managed to convince [Mr D] to support her marriage to her husband. This, in turn, led to a violent confrontation between her brothers. [Date], a heated argument between [Mr D]and [Mr E] escalated, resulting in [Mr E]murdering [Mr D]. [Mr E] was subsequently arrested and imprisoned for the murder.
The death of [Mr D] and the imprisonment of [Mr E] ‘plunged [her] family into turmoil’. She was forced to flee from her home and seek refuge with her grandfather. Her grandfather recognised the danger she was in and finally granted her permission to marry her husband. They were married on [Date], 14 days after [Mr D] was killed. The ‘immense emotional and psychological pressure’ she was under during this period was ‘overwhelming.’ Her husband was in [Country 1] at that time and could not travel to Yemen for the marriage ‘due to serious concerns’ for his own safety. As a result, he executed a power of attorney in favour of his father, who signed the marriage contract on his behalf. This arrangement was not by choice but out of necessity.
Despite [Mr E]'s imprisonment, she continued to live in fear. Her sister, who remained in Yemen, informed her that [Mr E] had been released from prison due to the ongoing civil war and was determined to seek revenge against her for the family’s perceived dishonour. [Mr E] blamed her for his imprisonment and for the loss of their brother, and she knew that if she returned to Yemen, her life would be in grave danger.
Since her grandfather’s death, she has no family left in Yemen. She has lost contact with her only sister, [Ms F], who was her last connection to home. [Ms F] is married, and her husband has prevented her from contacting her. He believes that Applicant A has brought shame to their tribe by marrying her husband, removing her hijab and allowing her son to attend a Catholic school in Australia. The last time she had contact with her sister was around two years ago. Without any family support and with her brother [Mr E] free in Yemen and ‘actively looking’ for her, returning to Yemen would place her in immediate danger.
In addition to the threat from [Mr E], she also faced risk of harm from other members of her tribe. Her decision to marry her husband without the full consent of her family was seen as a ‘serious transgression against [their] cultural norms’. Members of her tribe, who hold strong traditional values, believe that she has brought dishonour to the family and the tribe by defying their authority. This has put her at risk of persecution at the hands of those who believe they must restore their honour by punishing her.
Since arriving in Australia, she has ‘experienced a profound transformation’ in her life. Soon after her arrival, she decided to remove her hijab. This decision ‘was a significant and symbolic step in reclaiming [her] autonomy and breaking free from the oppressive control that was imposed on [her] in Yemen.’ The hijab, which she was ‘compelled’ to wear under her brothers’ ‘strict guardianship’, had always been a reminder of the limitations placed on her freedom and removing it ‘was an act of defiance against the constraints that had dictated [her] life in Yemen and a declaration of [her] newfound freedom in Australia.’
In Australia, she has been able to live ‘openly’ and without fear alongside her husband. Their son, who was born in Australia, attends a Catholic school and the family actively participates in school-related events, including some church activities associated with their son’s education. They attend church events, not because they have converted to Christianity, but because they want their son to grow up in an environment where he learns about different cultures and beliefs.
The delegate’s ‘scepticism’ about the role of her brothers as guardians appears to stem from a misunderstanding of Yemeni cultural norms. Her grandfather, while supportive, was elderly and ‘less involved’ in daily matters, but her brothers exercised significant control over her life. Any perceived inconsistencies in her evidence can be attributed to the ‘trauma and stress she was under at the time of her initial interview.’[Mr E]’s release from prison and his ‘active search’ for her are clear indicators of the ongoing threats to her safety and ‘has escalated the threat level.’ [Mr E] blames her for his imprisonment and the death of their brother[Mr D], and his desire for retribution is ‘credible and serious’ in the Yemeni cultural context. While she resided with her in-laws prior to her departure from Yemen, the situation was not safe. She was in hiding and took ‘great precautions to avoid detection.’
The delegate failed to adequately consider the specific risks faced by women in Yemen, particularly ‘those who defy traditional gender roles’, including women who marry without family consent, remove their hijab, or adopt non-conformist lifestyles. The general instability in Yemen exacerbates these risks as law enforcement is non-existent, and tribal justice often prevails. Chaos and lawlessness have ‘empowered individuals and groups who wish to enforce traditional norms through violence.’ The lack of family support exacerbates the risks she faces from her brother and tribe. In a society where honour and tribal loyalty are paramount, her ‘isolation’ makes her an easy target for retribution.
Applicant B
In his statement, Applicant B made the following claims.
His family has played an essential role in his marriage, with his father holding power of attorney to finalise his marriage documents and official paperwork in Yemen. Since then, [Mr G], who was a witness to his marriage, has become ‘a primary target’ of ‘violent reprisals’, including numerous assaults. In June 2021, he was followed and ‘brutally assaulted’, suffering severe injuries to his leg and in 2022, he sustained a serious head injury during another violent attack, which required hospitalisation and ongoing medical treatment. In 2023, shots were fired at the car he was driving by ‘an unknown assailant.’ The bullet was lodged in the body of the car, missing [Mr G]. These incidents are not isolated and are ‘part of a broader, orchestrated pattern of violence and intimidation’ directed at his family.
In addition, his family’s home in Yemen has been repeatedly targeted by unknown individuals who have fired shots at the property on multiple occasions.
Yemen is experiencing severe political unrest, where weapons are widely available and law enforcement is unable to protect citizens effectively. This situation has created an environment where violent acts, such as those perpetrated by his wife’s family and tribe, go unpunished. He fears that if he were to return to Yemen, he and members of his family could face similar attacks.
The hearing
Applicant A appeared before the Tribunal on 21 August 2024 to give evidence and present arguments. Applicant B also gave evidence and made his own claims for protection. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic and English languages. Mr Hamdan attended the hearing and made oral submissions. Where relevant, the evidence presented at the hearing is referred to in the Tribunal’s analysis below.
Post-hearing submissions
On 26 August 2024, the Tribunal received further submissions from Mr Hamdan in relation to claims raised by Applicant B at the hearing. The Tribunal also received a detailed statement from Applicant B, as well as screenshots and certified translations of messages posted and received by Applicant B on various messaging apps, including WhatsApp and Instagram, concerning his religious beliefs.
In his statement, Applicant B provided the following information.
He was raised in a Muslim community in Yemen where questioning the teachings and practices of Islam was not an option. From a young age, he struggled to reconcile many aspects of Islam with his own sense of morality and reasons. Fear prevented him from voicing his concerns, as disagreement often led to severe consequences or even death.

He found it deeply disturbing that Islam rejected all other religions and holy books in favour of only the Quran. The daily prayers calling for harm against non-Muslims and the glorification of violence in the name of religion troubled him greatly. He could not accept the Prophet Muhammad’s actions, such as owning slaves, endorsing killing and marrying a minor.
As a child, he was exposed to graphic and violent stories in school textbooks that were praised as part of Islam’s proud history. These unsettling narratives instilled fear and a sense of control rather than faith and spirituality. As an adult, he rejected many Islamic teachings, particularly the harsh Shari’a laws that he believed were created for a specific time and generation and were no longer valid in today’s world.
The fictional stories in the Quran, such as the tale of Adam and Eve and Muhammad’s ascension to the heavens on a creature called Al-Buraq, became increasingly difficult for him to accept as his understanding evolved. Denying any part of the Quran, however, meant being labelled a non-believer and, for those born into Islam, facing the punishment of death. It was only when he moved to [County 1]and later to Australia that he experienced the freedom to question and discuss these issues openly with people from diverse backgrounds. The ability to coexist peacefully with others brought him a profound sense of relief and clarity, confirming his belief that religion should promote love, peace and mutual respect rather than fear and division.
At the age of [age], he is more convinced than ever that his decision to distance himself from the troubling aspects of Islam is the right one for him and his child. He firmly believes in the importance of individual freedom to believe, question and seek truth in one’s own way. The ‘views and beliefs [he has] shared reflect [his] personal journey and understanding, which have led [him] to openly reject Islam and its teachings.’
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). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
Applicant A
Applicant A claims to have married Applicant B without the permission of one her brothers, who was imprisoned after murdering another brother for having agreed to Applicant A’s marriage. Her brother was subsequently released, and Applicant A fears being harmed by him and other members of her extended family who are aligned with her brother’s views. She also fears returning to Yemen due to her non-adherence to the prevailing religious attitudes and traditional socio-cultural norms regarding women’s rights and status in the country.
I do not share the delegate’s concerns regarding the credibility of Applicant A’s claims. The delegate accepted that she was under supervision of her brothers for day-to-day activities and that they may have provided her with legal guardianship at times. She accepted that her brothers had monitored her and held controlling attitudes over her. She further accepted that Applicant A and her husband were discreet with their relationship and that it was hindered by her brothers’ adverse and conservative Islamic attitudes. The fact that her supportive grandfather was also accepted as her legal guardian and was able to step in to facilitate her marriage following [Mr E]’s arrest does not negate the proposition that her brothers were opposed to her marriage to Applicant B and had both initially refused his proposals. It is difficult to reconcile the delegate’s findings with the conclusions that, despite the accepted attitude and conduct of Applicant A’s brothers towards her, her marriage to Applicant B under the circumstances repeatedly described by her had faced no resistance and borne no adverse consequences.
Applicant A has consistently claimed that her brothers’ attitude had made it difficult for her to attend university and complete an ‘internship’ or work placement as a practical component of her university degree. The fact that the Applicant A and her husband in their Student visa applications had characterised this ‘internship’ as employment does not raise concerns in my mind regarding the accepted attitude of her brothers towards her. The delegate found it unlikely that Applicant A’s brothers would have provided her with the permission to undertake work experience given their attitude towards her marriage to Applicant B. I accept her evidence at the hearing that her brothers had ultimately agreed to this ‘internship’ as it was a mandatory requirement for her to complete her degree. In accepting this evidence, I have been mindful of certain societal stereotypes that at times could undermine the cultural or other nuances that must be taken into account when assessing claims. An applicant should not feel compelled to confine her narrative to acceptable stereotypes in order to present a persuasive account of her claims in the mind of the decision‑maker. The traditional or controlling attitude of Applicant A’s brothers would not have necessarily precluded their conditional approval for Applicant A to access tertiary education or complete a related internship.
There were some minor inconsistencies between Applicant A’s written claims in her Protection visa application and evidence subsequently given by her at the Department’s interview and before the Tribunal. For example, in the statement submitted in support of her Protection visa application she had said that she was ‘beaten occasionally’ by her brothers and that she was subjected to ‘all types of violence and physical abuse’. Applicant A did not repeat these claims at the interview and the Tribunal hearing. She insisted, instead, that she was ‘pushed’ and verbally abused. She had also stated in her statement that no one supported her in her marriage to Applicant B except for her sister and her grandmother. At the interview she stated that she had kept in contact with her sister and her grandfather, but her grandmother has refused to talk to her as she blames her for the problems with her brothers. At the hearing, she explained that while her grandmother supported her emotionally, after [Mr D]’s murder and [Mr E]’s arrest, she stopped talking to her. I accept her evidence at the hearing.
Applicant A lodged her Protection visa application in December 2016. Two years later, she provided oral evidence to the Department and six years after that she appeared before the Tribunal and submitted additional written evidence in support of her claims. She has narrated her claims repeatedly, both orally and in writing, over the course of some eight years. The inconsistencies I have identified should not be viewed ‘without regard to imperfections in memory that naturally occur over time or due to stress or language difficulties particularly when an interpreter has been used or due to reticence to be forthcoming with people or bodies perceived to be in authority.’[1] I do not consider the inconsistencies in Applicant A’s evidence to undermine the overall credibility of her claims and I do not draw any adverse credibility findings on that basis.
[1] BEL16 v Minister for Home Affairs (2019) 167 ALD 295 per Beach J at [16].
I accept that Applicant A’s brothers were opposed to her marriage to Applicant B. I accept that when [Mr D] was eventually persuaded to consent to the marriage, he was killed by [Mr E]. While the disagreement over Applicant A’s marriage may not have been the only reason behind the fatal argument, I am of the view that it has been a significant factor. I accept that following this tragic incident and [Mr E]’s arrest, Applicant A had enlisted the support of her grandfather to facilitate her marriage to Applicant B, who was physically in [Country 1]and was unable to return to Yemen for the ceremony. I accept that the marriage had enraged [Mr E], who had made threats against her from prison and had caused a rift within the family, with many members of Applicant A’s extended family members taking [Mr E]’s side in the dispute. I accept that following Applicant A’s departure from Yemen a few months after the marriage, Hussain was released from prison and had continued to express his intention to seek revenge.
I am, however, not persuaded by the evidence submitted before and at the hearing that [Mr E] was behind the incidents of harm Applicant B’s brother has been subjected to in Yemen more recently, including shots being fired in his direction in 2021 and being assaulted. In their evidence, both Applicant A and Applicant B confirmed that these attacks have been carried out by unknown individuals [Mr E] was released from prison towards the end of [Year] and no persuasive explanation was provided as to why [Mr E] had waited five years after his release from prison to target Applicant B’s brother or why he had not targeted any other member of Applicant B’s family, such as his father, if he had intended to act on his threats of revenge against Applicant B for marrying his sister against his wishes. While I do not accept that [Mr E] or anyone acting on his behalf was behind the incidents of harm directed at Applicant B’s brother, I consider Applicant A’s chance of being seriously harmed by [Mr E] in Yemen for the reasons she has provided to be more than remote or real. I find, however, that [Mr E]is entirely motivated by revenge and personal reasons for harming Applicant A. As for the reasons outlined below I have found that Applicant A has a well-founded fear of persecution in Yemen, I consider it unnecessary to assess whether the authorities would withhold protection from the harm she fears from her brother for one or more of the reasons listed in s 5J(1)(a).
Applicant A’s family circumstances aside, I accept her evidence that she is opposed to the prevailing religious, social and cultural norms affecting the rights and status of women in Yemen, including wearing of the hijab, restrictions on women’s movements and limited access to economic opportunities. I accept that her views have further evolved and have become entrenched since her arrival in Australia eight years ago. I accept that she is highly educated, holds progressive views in relation to women’s rights and is opposed to the hijab. I accept her evidence at the hearing that she would only wear the hijab in Yemen because her life otherwise would be in danger. She stated that she would not be able to criticise hijab, because it is considered to be ‘sacred’ and opposing it is considered a ‘taboo’. I find that Applicant A would not conform to the wearing of the hijab in Yemen. Her husband shares her views and their decision to place their son in a Catholic school is further evidence of their liberal views.
The sources I have consulted indicate that the situation of women in Yemen is dire and complex, significantly impacted by ongoing conflict, entrenched gender inequalities and socio-cultural norms. Various resources highlight the challenges faced by Yemeni women and girls, exacerbated by the war and humanitarian crises.
While the conflict in Yemen has severely affected all civilians, women and girls have been disproportionately impacted.[2] The war has exacerbated existing vulnerabilities and increased health and protection risks for women and girls.[3] The conflict has led to a humanitarian crisis where nearly 80% of the population requires assistance, with women facing additional barriers due to gender-based violence (GBV) and restricted access to resources.[4] In her paper on violence against Yemeni women, Maria Holt noted that ‘even before the war, … Yemen was one of the most difficult places to be a women and violence against women was widespread. But the conflict has worsened the situation, with abuse and assaults against women increasing by 63 per cent.’[5]
[2] Amnesty International, ‘Yemen: One of the Worst Places in the World to be a Woman’, 16 December 2019, <
[3] CARE International, Research Report: Conflict and Gender Relations in Yemen, November 2016, < Delphine Valette, Protection, Participation and Potential Women and Girls in Yemen’s War, International Rescue Committee, January 2019, <
[4] Rehab Al-Dhamari, The struggle of Yemeni women between war and harmful social norms, Oxfam, 3 February 2021, <
[5] Maria Holt, The Worst Place on Earth to be a Woman: Violence against Yemeni Women in Peace and War, Journal of Gender and Women Studies, Vol 3(1), April 2020, <
Yemen’s deeply rooted patriarchal social norms and conservative legal system contribute to systemic discrimination against women. Laws such as the Penal Code and Personal Status Act contain provisions that discriminate against women, and despite constitutional claims of equality, these are not effectively implemented.[6]
[6] Delphine Valette, Protection, Participation and Potential Women and Girls in Yemen’s War, International Rescue Committee, January 2019, <>
Amnesty International noted in 2019:
In Yemen, a country ranked last in the World Economic Forum’s Global Gender Gap index for 13 consecutive years, women have been suffering from deeply entrenched gender inequality rooted in a patriarchal society with rigid gender roles… Negative gender stereotypes and patriarchal attitudes, a discriminatory legal system, and economic inequality have compounded women’s vulnerability to violence. The fighting has left the country’s people struggling with a dire economic crisis, damaged infrastructure and collapsed services. But in addition, women have had to contend with limited mobility due to cultural gender norms…[7]
[7] Amnesty International, Yemen: One of the Worst Places in the World to be a Woman, 16 December 2019, <>
According to Rehab Al-Dhamari, GBV is widespread in Yemen, with incidents of physical assault, sexual abuse, and child marriage increasing significantly during the conflict. Cultural norms often justify and tolerate violence against women, with many community members believing that a husband has the right to punish his wife.[8]
[8] Rehab Al-Dhamari, The struggle of Yemeni women between war and harmful social norms, Oxfam, 3 February 2021, <>
Women in Yemen have raised a wide range of security-related concerns, ‘some amounting to serious violations: attacks at checkpoints if they were unaccompanied by a male relative and attacks during protests, including harassment, arbitrary detention and torture and other-ill treatment by security forces, and increased domestic violence.’[9]
[9] Amnesty International, Yemen: One of the Worst Places in the World to be a Woman, 16 December 2019, <>
In areas controlled by the Houthis, women face significant risks of physical harm and harassment. The situation is marked by systematic violations of women’s rights, including arbitrary detentions, torture and sexual violence.
The Washington‑based firm Gulf State Analytics (GSA) has observed:
From their center in Sana’a, the Houthis have deployed a complex network of security forces, irregular militias and supervisors (mushrefeen) who serve as shadow authorities within all state institutions down to neighborhood ‘Aqil. These men and women serve not only as the leaders of armed forces across Houthi-held territory, but also as the face of Ansar Allah, the strong-arm prosecuting dissent, often reaching far into the virtual world of social media. Their persecution of men, women and children is not only to maintain order in a highly unstable environment, but also it is a tactic to extract economic gains, from a grand strategy to monopolize the private sector to simple extorsion…
The specific targeting of women by Houthis peaked when al-Zainabyyat units were created. Some Houthi opponents claim the armed unit “resembles the Hesba women’s groups formed by ISIS”, and described it as “a kind of intelligence apparatus, which responsibilities include searching women and homes, teaching women the Houthi believes, as well as maintaining security and order in women’s prisons.”[10]
[10] Kholoud al-Halaly and Fernando Carvajal, Houthi crimes against women, GSA, 23 June 2021, < type="1">
The Houthis have been reported to detain women arbitrarily, often without trial, and subject them to various forms of torture and blackmail. Women have been rounded up from public places like cafes and parks and detained on charges such as alleged prostitution or collaboration with opposing forces.[11] These detentions often involve physical and psychological abuse, including beatings, electric shocks and sexual assault and exploitation, often as a means of intimidation or coercion.[12] According to GSA, ‘tactics used by Houthis are employed not merely to extract information, punish detainees but also to permanently shame the women before their families and society as a whole. Many “detainees have faced social rejection after their release, and some were killed by their families”.’[13] A 2021 report noted that human rights groups had documented 1,181 violations committed by Houthi rebels against women, including torture, rape and murder.[14] Some reports suggest that the Houthis have used theological justifications for their actions, such as claiming that rape is a form of ‘purification’ for women of inferior lineage or low moral standards.[15]
[11] Houthis illegally detaining, torturing women: Yemeni activists, Aljazeera, 17 January 2019, < Mohammed Alragawi, Yemen: Women captives recall ordeal in Houthi prisons, Anadolu Agency, 23 February 2021, < The Houthis: Terrorizing Women and Journalists, Counterextremism Project, November 2023, <
[12] Moammar Al-Eryani, Preventing the Next Kabul: Confronting the Houthi’s Violent Suppression of Women in Yemen, Wilson Centre, 24 March 2023, <
[13] Kholoud al-Halaly and Fernando Carvajal, Houthi crimes against women, GSA, 23 June 2021, <
[14] Mohammed Alragawi, Yemen: Women captives recall ordeal in Houthi prisons, Anadolu Agency, 23 February 2021, < see also Houthi Violations Against Women Documented, Including Torture and Rape, Asharq Al-Awsat, 10 February 2020, <
[15] The Houthis: Terrorizing Women and Journalists, Counterextremism Project, November 2023, <
The Houthis have also imposed strict movement restrictions on women, requiring them to travel with a male guardian or have written permission from a male relative. These restrictions are enforced through checkpoints and have become de facto law in Houthi‑controlled areas. This not only limits women’s freedom but also exposes them to harassment and potential detention if they are found traveling without a guardian.[16] According to Amnesty International:
According to prevailing gender roles, men are recognized as the “protectors” of women and families; without the male relative present, women are more vulnerable to sexual and physical violence. Within this context, an unchaperoned woman faces increased risks of violence at checkpoints. One of the tactics used by Huthi de facto authorities on checkpoints includes head-shaving, especially new brides traveling between governorates to meet their husbands. In this society, in addition to caring for her husband, a woman is expected to physically appeal to her husband. More often than not, these women end up divorced, shamed and suffer from psychological distress. Survivors of violence such as head-shaving are often reluctant to report the abuse, fearing backlash from their own community and security officials.[17]
[16] Human Rights Watch (HRW), Yemen: Warring Parties Restrict Women’s Movement, 4 March 2024, < and Niku Jafarnia, Houthis Violating Women’s and Girls' Rights in Yemen, HRW, 6 February 2023, <
[17] Amnesty International, Yemen: One of the Worst Places in the World to be a Woman, 16 December 2019, <>
In addition, due to the deeply conservative societal norms in Yemen, the wearing of the hijab or niqab is widespread and often seen as a cultural and religious obligation.[18] In Houthi controlled areas, such as Sanaa, women face enforced dress codes and gender segregation in public spaces. The Houthis have imposed conservative dress requirements and have barred women, including married women, from certain public places, which further restricts their personal freedoms and exposes them to harassment and social stigma if they do not comply.[19]
[18] Kenneth E. Jackson and Elizabeth Monk-Turner, The Meaning of Hijab: Voices of Muslim Women in Egypt and Yemen, Journal of International Women Studies, Vol 16(2), January 2015, <
[19] Niku Jafarnia, Houthis Violating Women’s and Girls' Rights in Yemen, HRW, 6 February 2023, < Ansar Allah (Houthi) Group Practices Gravely Undermine Women’s Rights, Mwatana for Human Rights, 8 March 2022, <
Applicant A resided in Sanaa from birth until her departure from Yemen. Her husband is also from Sanaa and his family reside in that city. I find that the location where Applicant A will return or be returned to is Sanaa. I am satisfied, on the basis of the evidence before me, that there is a real chance that Applicant A would be subjected to harm, including threats to her liberty, significant physical harassment and significant physical ill treatment, by the Houthis and their agents, as well as other conservative males in the community. I am satisfied that such treatment amounts to serious harm under s 5J(4)(b) of the Act. I find that the essential and significant reason for the persecution feared by Applicant A is her real or political opinion, namely her opposition to hijab and support for women’s rights, and her membership of the particular social group of women in Yemen. I am satisfied that the only reason she would conform to cultural and religious obligations requiring her to wear the hijab or limit or restrict the expression of her progressive views regarding women’s rights is her fear of harm. Hence, I am satisfied that she could not take reasonable steps to modify her behaviour so as to avoid a real chance of persecution as such modification would be contrary to the requirements of s 5J(3) of the Act.
The country information I have referred to suggests that while the situation for women is particularly severe in Houthi-controlled areas, which include Sanaa, the north-west of Yemen and the Red Sea coastline,[20] women face significant discrimination throughout Yemen. The wearing of the hijab or niqab, for example, is widespread and often seen as a cultural and religious obligation due to the prevalent conservative societal norms across the country. I am satisfied that there is a real chance that Applicant A would face serious harm in other areas if she were to contravene these norms and obligations. I find that the real chance of persecution relates to all areas of Yemen. I also find that effective state protection against the harm she fears is not available to her.
[20] ‘Who are the Houthis and why are they attacking Red Sea ships?’, BBC News, 16 March 2024, <
For the reasons given above, I find that Applicant A has a well-founded fear of persecution in Yemen. I am satisfied that there is no presently existing right, however expressed, for her to enter and reside in any other country. Section 36(3) therefore does not apply. I am, therefore, satisfied that Applicant A is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Applicant B
In the course of giving evidence in support of his wife, Applicant B referred to his own views regarding Islam. He stated that although he was born a Muslim, he did not practise Islam and disagreed with many Islamic beliefs.
This evidence was not presented as a separate claim or basis for protection by Applicant B, but rather arose organically through questioning aimed at corroborating his wife’s account. Applicant B initially only mentioned his beliefs in passing. It was not until I questioned and probed him further that he expanded on the nature of his opinion and beliefs in more detail. His evidence regarding his own views and experiences was provided spontaneously in an effort to support his wife’s claims, and not as a calculated attempt to advance belated claims for protection. At no point I formed the impression that Applicant B was attempting to co‑opt the hearing to focus on his own circumstances. Rather, he provided his evidence in a straightforward manner and without embellishment in response to my questions in order to corroborate his wife’s account and provide relevant context regarding the political and religious environment in Yemen. As such, I found his evidence to be truthful and reliable.
Following the hearing, Applicant B submitted a written statement further outlining his views. His statement was supported by screenshots and certified translations of messages posted and received by Applicant B on messaging apps, including WhatsApp and Instagram, expressing views highly critical of various Islamic beliefs, teachings and practices. It is evident to me that these messages, which were sent and received over a number of years, are a genuine reflection of Applicant B’s views. This evidence was provided to me at my request after hearing his spontaneous oral testimony, and it cannot be said that the messages were planned or manufactured by him to achieve an outcome.
I accept that Applicant B is genuinely critical of and opposed to certain fundamental Islamic beliefs, traditions and practices. This criticism extends to Prophet Mohammad, the Quran and Shari’a. I accept that Applicant B is opposed to many Shari’a laws, including ‘the cutting off of hands for theft, stoning for adultery, execution for apostasy, punishments for alcohol consumption, and laws related to inheritance, homosexuality, mistreating women and gender inequality.’ I accept that he considers these laws and practices to be ‘harsh and invalid’ and not ‘aligned’ with his values. I accept Applicant B’s evidence at the hearing that not only would he be prevented from expressing his views in Yemen, but he would be punished if he was not seen to be practising Islam.
Religion in Yemen is a significant social and cultural force that influences every aspect of society.[21] Yemen’s legal system imposes significant restrictions on religious freedom, particularly for those critical of or not practising Islam. The Constitution of Yemen declares that Islam is the state religion and Shari’a law as the source of all legislation.[22]
[21] US Institute of Peace, Yemen: Religion, Peace and Conflict Country Profile, <
[22] US Department of State, 2023 Report on International Religious Freedom: Yemen, 28 June 2024, < Humanists International, End Blasphemy Laws: Yemen, 29 September 2020, <>
Under Yemen’s blasphemy laws, any act of ‘ridiculing’ religion is strictly prohibited. According to Article 194 of the Penal Code, individuals found guilty of publicly disseminating ideas that mock or show contempt for religious beliefs, rituals or teachings may face imprisonment of up to three years or a fine of unspecified amount. The penalties increase if Islam is the target of such ridicule, with Article 195 stipulating a potential prison sentence of up to five years or a fine of unspecified amount. Additionally, Article 260 mandates five years’ imprisonment or a fine for anyone who intentionally distorts the Qur’an to alter its meaning with the purpose of insulting the faith.[23]
[23] Humanists International, End Blasphemy Laws: Yemen, 29 September 2020, <>
Apostasy, considered one of the most serious offenses under Yemeni law, is punishable by death. Article 259 defines apostasy as any intentional or insistent words or actions that contradict Islamic principles. Apostasy charges allow the accused three opportunities to repent. If they do so, they are spared the death penalty. However, convictions for ‘denouncing Islam’ or any blasphemous acts may serve as evidence of apostasy, further reinforcing the severe consequences under these laws.[24]
[24] Humanists International, End Blasphemy Laws: Yemen, 29 September 2020, <
Beyond the legal framework, non-Muslims and critics of Islam face various forms of discrimination and persecution. The government and various armed groups severely restrict freedom of expression, particularly regarding religion.[25] In the north of the country, ‘freedom of personal expression and private discussion is limited due to intimidation by armed groups and unchecked surveillance by the Houthi authorities, who have detained critics of their rule and used courts under their control to issue harsh penalties, including death sentences, for some perceived opponents.’[26]
[25] Humanists International, Freedom of Thought Report: Yemen, 4 March 2024, <
[26] Freedom House, Freedom in the World 2024: Yemen, <
The ongoing conflict in Yemen has further complicated the situation, with different armed groups enforcing their own interpretations of religious law in areas they control. The general climate of instability and violence makes the situation for religious minorities and dissenters particularly precarious.[27]
[27] Humanists International, Freedom of Thought Report: Yemen, 4 March 2024, < US Department of State, 2023 Report on International Religious Freedom: Yemen, 28 June 2024, <
I find that if Applicant B were to return to Yemen there is a real chance that he would be subjected to serious harm, including threats to his life or liberty, significant physical harassment and significant physical ill treatment at the hands of the Houthis, Muslim groups and members of the general public. I find that the essential and significant reason for the persecution feared by him is his imputed political opinion and his imputed religion.
I am satisfied that the real chance of persecution relates to all areas of Yemen. I am also satisfied that the only reason Applicant B would seek to limit or restrict the expression of his views is his fear of harm. I am satisfied that he could not take reasonable steps to modify his behaviour so as to avoid a real chance of persecution. I find that effective state protection against the harm he fears is not available to him in Yemen.
I am satisfied that Applicant B has a well-founded fear of persecution in Yemen. I am satisfied that he does not have a right to enter and reside in any other third country. I am, therefore, satisfied that Applicant B is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Applicant C
Applicant C is [age] years old. I accept that he is attending a Catholic school and he is being raised by parents who harbour liberal views towards religion. Other than general concerns expressed by his parents regarding his welfare in Yemen, no specific protection claims were made on Applicant C’s behalf.
I am not satisfied that Applicant C is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, I am satisfied that he is a member of the same family unit as Applicant A and Applicant B for the purposes of s 36(2)(b)(i). As such, the fate of his application depends on the outcome of the other applicants’ application. It follows that Applicant C will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
The Tribunal sets aside the decisions under review and remits applications for a protection visa for reconsideration, in accordance with the orders that:
(i) the first and the second named applicants meets s 36(2)(a) of the Migration Act; and
(ii) the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Deputy President S Roushan
Date(s) of hearing:      21 August 2024
Representative for the applicant: Mr Basim Hamdan
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.
…