1913416 (Refugee) - [2025] ARTA 1137

1913416 (REFUGEE) [2025] ARTA 1137 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1913416
Tribunal:General Member L Luo
Date:28 February 2025

Decision:The Tribunal affirms the decision under review.

Statement made on 28 February 2025 at 6:21pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – economic conditions – new taxes affected business – stress and depression – work in Australia and financial support for mother – no fear of harm for refugee reason – employment or business prospects on return – country information – low unemployment and labour shortages in many sectors – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
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 21 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 26 September 2018. The applicant applied for review of visa refusal decision on 28 May 2019. By operation of law, on 14 October 2024 the review application was taken to have been lodged with the Administrative Review Tribunal (the Tribunal).[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (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), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 13 February 2025 to give evidence and present arguments. The applicant asked the Tribunal to call a witness for oral testimony, however the witness was unable to be reached. The Tribunal asked the applicant to provide any witness statements she wished to do so by 21 February 2025.
BACKGROUND
The applicant was born in Kuala Terengganu, Malaysia, on [Date]. She lived there until she came to Australia as the holder of an Electronic Travel Authority [in] July 2018. She is the eldest of five siblings. Her father passed away in 2024. She has three siblings in Malaysia, two of them still live with her mother. She married her husband, also a national of Malaysia, in December 2024. She lives in Australia with her husband, brother and two friends. She currently works as [an occupation] at a [workplace 1] in [City], with occasional seasonal [workplace 2] work as needed.
Evidence before the Department
In her protection visa application, the applicant stated that she ran a [business] for almost 9 years. In late 2016, the Malaysian government imposed new taxes on many things which affected her business. By end of 2017, the situation affected both her stores and her savings were getting worse. She decided to migrate somewhere else to guarantee her living standards and find a good job. She sold both her stores. She claimed she experienced stress as the economic situation in Malaysia was very bad.
The applicant was not invited to an interview. The delegate refused the visa because the applicant’s claimed fear of harm is not for a refugee reason, and any economic harm she may suffer upon her return does not constitute significant harm.
Evidence before the Tribunal
The applicant provided information to support her application in response to a pre-hearing request. She indicated that she wants to stay in Australia because she wants to live freely and enjoy the highest attainable lifestyle for herself. She experienced stress and depression due to the unstable economy in Malaysia. She said that she cannot go back to Malaysia because she doesn’t want to live in extreme poverty, and need to work 16 hours a day just to afford the basics.
At the hearing, the applicant claimed that she was hardworking and ambitious and liked to work for herself. After graduating with a certificate in [subject 1], she found a job in [work sector]. However, she was only able to earn enough money to pay for breakfast and parking and could not save any money beyond that. In 2009, she decided to start her own [business] as she was an excellent [occupation job skill]. Her first [workplace 3] was successful enough that she opened a second [workplace 3] one year later. She hired 5 staff across both [workplace 3s] and business went well until 2016, when GST was introduced in Malaysia. She claimed that the GST increased her business expenses dramatically to the extent that she was no longer able to sustain the costs of running the [workplace 3s]. Her father gave her a loan to manage some of her expenses. She went to a government service for support to buy new equipment that would allow her to [do a job task] more efficiently and earn more money, however the government service did not help her. In order to maintain her business, she worked 14-hour days and was only able to break even. She began to feel extreme stress and pressure from her businesses and mounting expenses. She started experiencing periods of confusion and thought she was going crazy. She showed the Tribunal a photo of herself at the time as demonstration of how pale, unhealthy and stressed she looked. She thinks that she was depressed as she was shaking and freezing for two years, but she did not seek any medical assistance for her mental health struggles because she was scared of what the doctor would say. She claims that she was the only person in her family who had job stability at the time, and they relied on her for financial support.
After struggling with her businesses for two years, the applicant decided to sell one [workplace 3] for 10,000RM, which she indicated was a very low amount. She started exploring other options for work and considered moving to [Country] with her friend. However, she changed her mind after realising it was too expensive to go to [Country] and she would find it difficult to learn the language. She saw a friend post on [Social media] about coming to Australia on a holiday, and thought that Australia seemed safer as she had never travelled anywhere by herself. The applicant shared this plan with her mother, but said she was too scared to travel alone. Her mother sold some of her jewellery so that she could come to Australia with her brother.
The applicant claims that after she came to Australia, she worked in seasonal [workplace 2] jobs before working as [an occupation] in [workplace 1s]. She has good job stability and was able to save $10,000, as well as send her mother $2000 each month and extra money when required. She is in a relationship with someone she met at work. She lives with some house mates and her brother (who she supports financially). She also has a landlord who lives in the same property and is like a father figure to her. She is able to live freely without stress, and support her family in Malaysia with her income in Australia. She concedes that she does not fear harm for a refugee reason, but she does fear returning to an environment of heightened stress and pressure such as she felt during 2016-2018 due to the unstable economy in Malaysia and the difficulties with finding stable, well-paid work.
The applicant sent a witness statement from her landlord and further submissions after the hearing to support her application. In the witness statement, her landlord says that she is a kind, responsible and hardworking person who has integrated into the community, and that she faced significant challenges in her home country as a woman. He said that she has built a safe and stable life in Australia and contributes positively to the community. In the applicant’s written submission, she says that Australia has given her the dignity, respect and appreciation she was never able to experience in Malaysia. She has worked hard to support herself without government assistance, she contributes to her community through her work where she shares her culture through her food, and the [workplace 1] she works at depends on her skills to continue operating successfully. She says in Malaysia, women are not given the same rights and opportunities as men. She was treated unfairly, overworked and under appreciated. She says the Malaysian government is proposing to reduce women’s working hours, expecting women to balance employment with traditional housewife duties. It reinforces the discrimination that has always existed, making it even harder for women like the applicant to survive independently.
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 there is a real chance or real risk that the applicant will be harmed if she returns to Malaysia now or in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that the applicant is a Malaysian citizen and Malaysia is the receiving country. I accept that the applicant is an ethnic Malay Muslim.
I accept the applicant’s account of her life in Malaysia immediately before coming to Australia. I accept that she found it difficult to maintain her businesses due to increasing expenditure and I accept that she experienced significant pressure and stress as a result. I have considered the applicant’s oral evidence, written submissions and her landlord’s statement that she has built a stable life in Australia and she contributes positively to society. I accept that this is the case and I accept that the applicant wishes to stay in Australia because she feels that she has received more opportunities here than in Malaysia.
However, I find that, if the applicant were to return to Malaysia, she will be able to find employment or start her own business based on her education, work experience and previous experience running two successful businesses.
As discussed with the applicant at hearing, the DFAT country report indicates that Malaysia’s economic situation has been improving significantly in recent years. In 2022, real GDP growth was 8.7 per cent and per capita GDP was AUD 18,000. Malaysia is classified as an upper middle-income, export-oriented economy. It has transformed from a commodity-based economy to a leading producer of electronic parts and products, oil and natural gas, and other manufactured products. Malaysia has also developed its service sector, which now contributes half the country’s economic growth. I also discussed the DFAT country information about Malaysia’s unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic, and that there are labour shortages in many sectors. Malaysians also freely move elsewhere in the country for economic and employment reasons. I indicated that she would have little trouble finding work based on the country information.
The applicant stated that the economy looks to be doing well on the surface, but the experience of Malaysian citizens is very different, and work is only available for people in higher socioeconomic brackets. She stated that, as a woman from a rural area in Malaysia, she will not be able to find work as easily. The applicant said that her mother has told her about the struggle of Malaysian citizens living in Malaysia due to cheap labour hires from Indonesia and Bangladesh. As an example, she discussed her brother who has a good education in [subject 2], but is unable to find a steady job and can only find work helping friends and being paid cash in hand. She indicated he has not received a salary or had a permanent job for a long time and this is the reason she has to financially support her family.
The applicant also claimed that she only started her [businesses] after being unable to find a job with a high enough income to support her family. However, I do not accept that her previous experience will be repeated should she return to Malaysia, nor do I find that she will experience similar hurdles to finding work as her brother has. She had tried to find work immediately after graduating with [subject 1] qualifications, and was unsuccessful initially but ultimately found work where her salary was very low. She stayed in that job for one year before giving up and starting her own business. I find that, as someone with limited work experience at a young age, it was unrealistic for the applicant to expect a certain level of remuneration in her first job and, if the applicant had continued to work in that industry, she may well have found that her remuneration would have increased with time and experience. In any event, since then, the applicant has proven herself capable of managing two successful businesses, re-establish herself in different workplaces and environments in a new country, and established significant savings with which she can invest in future employment or business opportunities in Malaysia. She also said that she liked to work for herself and was very ambitious about having her own food business in Malaysia, but the introduction of the GST made that dream unsustainable. I find that the applicant’s savings from Australia and her significant work experience in [workplace 1s] will be of assistance to the applicant should she wish to start her own food business again in Malaysia. I find that the applicant’s entrepreneurial spirit and tenacity will place her in a good position to find work and/or appropriate business opportunities in Malaysia.
I also discussed with the applicant DFAT country information about government regulations and policies that include numerous affirmative action style preferential programs to boost the economic position of ethnic Malays, and that such programs promote increased opportunities for ethnic Malays to access higher education, careers within the Civil Service, commercial opportunities, and housing. Some industries mandate a certain level of ethnic Malay ownership, and the government and many government linked companies also maintain procurement policies that favour ethnic Malay owned supplies. National budgets also continue to allocate large amounts of funding intended to benefit ethnic Malays.
The applicant agreed with this country information, but did not agree that the assistance provided by the budgets are in fact available to all ethnic Malays. She indicated that there is significant corruption and cronyism and she had personally experienced trying to access these services and not being able to. Her younger sister had also tried to apply for support to buy equipment in her [business] and was also rejected. The applicant reiterated that she was disadvantaged because of living in a small village and she cannot live there again because of her previous experiences and how much the stress had hurt her. She said that in contrast, she is able to access a lot of support in Australia that was lacking in Malaysia. When queried about the type of support she received in Australia, the applicant indicated that she feels emotionally supported by society in general, and pointed specifically to an experience of being called “darling” by an old woman which moved her to the point of happy tears.
When asked whether the applicant could move to another area of Malaysia, such as Kuala Lumpur, for work, the applicant said that the whole country is the same and she cannot move anywhere because she would be facing a poor life where she cannot find decent work.
I accept that the applicant has built a life in Australia with a good job and she will need to

re-establish herself if she returns to Malaysia. If she returns to Malaysia, I find that she will be able to find work based on her experiences and her resourcefulness to date. She was able to successfully manage two businesses at a very young age in Malaysia, and will be able to find work or start her own business again if she returns to Malaysia due to the country’s improving economy, high unemployment rate and affirmative action measures for ethnic Malays. Her mother and siblings also still live in Malaysia, and I find that she will be able to integrate back to Malaysian society with their help.
I accept that the applicant may have been unable to access the specific help she required from government services to improve her business prospects at the time, and her sister was similarly unable to access the same, but I do not find that this is because of corruption and cronyism. There is no country information to support this, and the applicant’s evidence about how she sought assistance and the basis on which that assistance was rejected was vague. She gave general statements about her belief that there are high levels of corruption and cronyism within government and that this is the reason she was unable to access help. Country information states that many Malaysians believe this, but widespread corruption within government is not supported by in-country or official sources.

I accept that the applicant experienced stress and her mental health suffered while she was dealing with the pressures of mounting business expenses in Malaysia. However, the applicant did not seek mental health support at the time nor has she sought mental health support in Australia. She claims that she is happy in Australia because she has a good job and no longer has the same economic pressures she experienced in Malaysia. For these reasons, I find that the applicant has no long term or ongoing mental health concerns, and the stress she experienced was circumstantial and confined to her life situation at the time. If the applicant returns to Malaysia, I find that she may face some stress while she is re-establishing herself but these stresses will not continue once she has re-established herself.
The applicant claims in post-hearing submissions that women are not given the same rights and opportunities as men in Malaysia. However, she did not provide any specific incidences of gender discrimination she experienced in Malaysia. By all accounts, there were no impediments to her starting a business as a [Age] year old and those businesses were successful for a long period of time. She claims that the Malaysian government is proposing to reduce women’s working hours and expect women to balance employment with traditional housewife duties. However, the applicant has not provided information about how this would affect her given she is not married, has no children and no caring responsibilities. In any event, the applicant has said she likes to work for herself and I find that she can find other business opportunities in Malaysia if she becomes dissatisfied with the terms of her future employment.
The DFAT country report states that Malaysia is party to the Convention on Elimination of All Forms of Discrimination Against Women and discrimination against women is banned under the Constitution. Nevertheless, discrimination on the basis of sex persist for women and girls in Malaysia. Female labour force participation rate was 53 per cent in 2022, up from 43 per cent in 2008, and women sometimes received less pay than men for equal work. Based on this, I find that although there can be societal discrimination against women, women do not face official discrimination and there is no evidence to indicate that the applicant has been harmed on the basis of her gender. I find that the applicant will not be harmed on the basis of her gender if she returned to Malaysia now or in the reasonably foreseeable future.
The applicant has not claimed any harm on the basis of her religion and I find that she will not be harmed for this reason. There is nothing in the DFAT country report that suggests persecution towards Muslims, particularly as 63.5 per cent of the Malaysian population practices Islam. I have also considered the applicant’s profile cumulatively and find that she will not be harmed as a Muslim Malay woman.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
For the reasons given above, I find that there is no real chance of harm if the applicant were returned to her home area in Malaysia in the reasonably foreseeable future. Therefore, she does not have a well-founded fear of persecution for the purposes of s 5J and she is not a refugee for the purposes of s 5H. Accordingly, the applicant does not satisfy s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test.
For the above reasons, I find that there is no real risk the applicant will be harmed if she returned to Malaysia in the reasonably foreseeable future. Accordingly, the applicant does not satisfy s 36(2)(aa) because there are no substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 13 February 2025
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.
…