1913559 (Refugee) - [2025] ARTA 1371

1913559 (REFUGEE) [2025] ARTA 1371 (28 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1913559
Tribunal:General Member M Stratos
Date:28 February 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 28 February 2025 at 9:06am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Chinese Malaysian – religion – Buddhism – decision without a hearing – did not claim to have experienced harm in the past – fear of political and economic hardship – low earning capacity or economic hardship the applicant will face does not amount to significant harm – decision under review affirmed

LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 May 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia applied for the visa on 25 September 2018. The delegate refused to grant the visa on the basis the applicant was not a person in respect of whom Australia has protection obligations.
On 29 May 2019 the applicant lodged an application for review with the Administrative Appeals Tribunal (the 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), 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.
On 11 March 2024 the Tribunal wrote to the applicant, inviting her to complete a pre-hearing information form. That form gives an opportunity for an applicant to provide any further information about their claims for protection and to submit further evidence. The applicant returned that form on 13 March 2024, but did not include any further evidence or information regarding her claims for protection.
By letter dated 4 December 2024 the Tribunal advised the applicant that a hearing had been scheduled in person for 19 February 2025. In the same correspondence the Tribunal requested the applicant complete a ‘Response to Hearing Notice’ form. The applicant returned a completed form dated 7 December 2024, having marked it to state she would not participate in the hearing and requested the Tribunal make a decision on the papers without holding a hearing.
On 17 February 2025 the Tribunal wrote to the applicant confirming receipt of her request for the Tribunal to make a decision on the papers without holding a hearing. The Tribunal advised the hearing had been cancelled, and provided the applicant until 25 February 2025 to submit any further documents that she wished the Tribunal to consider before it would make a decision on the evidence available. No further documents were received from the applicant by this date.
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). Section 106(3) of the ART Act relevantly provides that the Tribunal may make its decision in the proceeding after considering the documents given to the Tribunal and without holding a hearing if the following circumstances are met:
a.the only parties to the proceeding are the applicant and a non-participating party (s 106(3)(a) of the ART Act);
b.the applicant requests the Tribunal to make its decision without holding the hearing (s 106(3)(b)(ii) of the ART Act); and
c.it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties (s 106(3)(c) of the ART Act).
Section 348A(1) of the Act states the respondent minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision. Accordingly, the first requirement pursuant to s 106(3)(a) of the ART Act is met.
There was no ambiguity in the applicant’s response to the Tribunal’s hearing invitation and the Tribunal is satisfied such response is properly construed as a request to make a decision without holding the hearing. The second requirement pursuant to section 106(3)(b)(ii) of the ART Act is met.
In reviewing a decision to refuse to grant a protection visa, the issues for determination by the Tribunal are:
a.whether there is a real chance that, if the applicant returned to their receiving country, they would be persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion; or
b.whether there are substantial grounds for believing that as a necessary and foreseeable consequence of an applicant being removed from Australia to their receiving country, there is a real risk they will suffer significant harm.
The Tribunal has before it a copy of the Department’s file, which includes a copy of the applicant’s identity documents and her protection visa application which sets out the claims for protection. The Tribunal also has a copy of the delegate’s decision to refuse the grant of a protection visa.
The Tribunal provided the applicant with an opportunity to submit evidence and present at a hearing, but no further information has been forthcoming. The Tribunal considers the applicant has provided all the information considered important and relevant.
Based on the information provided by the applicant, the Tribunal is able to determine the applicant’s identity and receiving country and make findings as to whether she meets the criteria for a protection visa without seeking further information or holding a hearing. As such, the Tribunal concludes that the issues for determination can be adequately determined in the absence of a hearing.
BACKGROUND
The applicant is a [age]-year-old Chinese Malaysian who previously resided in Kuala [Lumpur]. She is married and follows the religion of Buddha. She completed high school in Selangor in [year] and was employed at her family [shop] from 2009 until July 2018. She arrived in Melbourne from Malaysia on [date] July 2018 on an electronic travel authority.
Evidence before the Department
In her protection visa application form dated 25 September 2019, the applicant’s reasons as to why she left Malaysia were outlined as follows:
I opted to leave my country because of the political and economical status of my country became worst and down, our country currency decrease dramatically the price more higher and it’s not parallel to our basic salary. I become unaffordable and poor.
The applicant did not claim to have experienced harm in the past, nor that she had sought help from relevant authorities or tried to relocate to seek safety. She marked the box stating she did not think she would be harmed or mistreated if she returned to Malaysia.
The applicant was not invited to attend an interview with the Department and no additional material was provided by the applicant. By decision dated 16 May 2019 the delegate refused the applicant’s protection visa application as they were satisfied she did not meet the relevant criteria.
Evidence before the Tribunal
The applicant lodged an application for review of the delegate’s decision with the AAT on 29 May 2019. No additional information was provided in her application for review. No other information has been provided since by the Applicant.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and Receiving Country
The applicant claims to be a citizen of Malaysia and no other country. A copy of her passport was provided to the Department, and the delegate was satisfied with its authenticity and the Applicant’s identity. The Tribunal has no evidence before it to doubt the authenticity of this documentation. As such, the Tribunal is satisfied the applicant is a Malaysian citizen and that Malaysia is the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims to have left Malaysia due to a fear of political and economic hardship. The applicant’s evidence regarding her reasons for leaving Malaysia is confined to those statements outlined in her protection visa application. The Tribunal finds the evidence to be limited and with little detail provided.
Section 5AAA(2) of the Act outlines that it is the responsibility of the applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish the claim. Section 5AAA(4) outlines the Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the applicant’s claim, or to establish or assist in establishing the claim. The relevant facts will need to be supplied by the applicant in as much detail as necessary to enable the Tribunal to establish such facts.
The applicant claims to have left due to the ‘political’ status of Malaysia. The applicant has not provided any details as to the basis of her fear in relation to the political status of Malaysia. She does not describe herself as active in politics or fearful of harm as a result of any such activity. The Tribunal does not accept there has been any harm suffered by the applicant as a result of the political status of Malaysia in the past. The Tribunal finds there is no harm the applicant will face now or in the reasonably foreseeable future upon a return to Malaysia as a result of the political situation. The Tribunal is not satisfied there is a real chance the applicant will suffer serious harm if she were returned to Malaysia now or in the reasonably foreseeable future.
The Tribunal notes the applicant stated in her protection visa application form that she is a Chinese Malay woman of the Buddhist faith, which the Tribunal accepts. The applicant has however not indicated any fears of persecution either as a result of past events or because of future concerns as a Chinese Malay woman and as a Buddhist. The Tribunal finds there is no harm the applicant will face upon a return to Malaysia for the reason of her ethnicity, membership of a particular social group or religion.
The Tribunal understands the applicant as claiming protection on the ground that she would suffer economic hardship if she were to return to Malaysia, on account of a poor economy, currency value decreases and high cost of living in relation to salaries, which would leave the applicant living in poverty.
According to DFAT Country Information, Malaysia’s economic performance over the last few decades has led to a significant reduction in poverty and households living below the poverty line was less than 6.2 per cent in 2022[1]. Malaysia’s claim to have significantly reduced poverty however is somewhat undermined by an unrealistically low poverty line despite many years of robust economic growth[2]. Persistent inequalities remain for indigenous peoples and the poorest 40 per cent of the population and poverty rates are higher in rural areas. The COVID-19 pandemic had a major economic impact on Malaysia, but while poverty rates rose and growth fell during that time, the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt[3].
[1] DFAT Country Information Report Malaysia June 2024 (DFAT Report) 2.8
[2] ‘Statement by Professor Philip Alston, United Nations Special Rapporteur on extreme poverty and human rights, on his visit to Malaysia, 13-23 August 2019', OHCHR, 23 August 2019
[3] DFAT Report 2.9
In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4 per cent, the lowest since the COVID-19 pandemic, and although there are labour shortages in many sectors many enterprises are highly reliant on migrant labour[4]. Malaysia’s welfare system is generally well developed whereby low-income earners can access income supplements, additional income assistance and healthcare[5].
[4] DFAT Report 2.10
[5] 'A Guide to Social Protection in Malaysia', The Centre, 19 October 2019
In accordance with the evidence provided by the applicant in her protection visa application, the Tribunal accepts she was able to secure employment in Malaysia from 2009 to 2018 in her family [shop]. The Tribunal accepts that such employment would not be high paying, and this coupled with the economic conditions in Malaysia at the time the applicant departed would have placed the applicant in a position of economic hardship. The Tribunal finds the applicant suffered economic hardship while resident in Malaysia.
Based on current DFAT country information, the Tribunal finds that Malaysia’s economy has improved since the applicant’s departure in 2018. The Tribunal finds given her previous employment experience and the general improvement in economic conditions, the applicant will be able to secure employment, albeit low paying, if she were to return to Malaysia in the future. The Tribunal also finds, given the country information available, that the applicant will be able to access assistance as a low-income earner.
The Tribunal accepts that Malaysia has current economic challenges such as inflation and cost of living increases that will impact the applicant if she were to return. The Tribunal also accepts the applicant will experience some difficulty in re-establishing herself in employment should she return to Malaysia. The Tribunal accepts the applicant will suffer economic difficulties now and in the reasonably foreseeable future upon a return to Malaysia.
To meet the refugee criterion, the Tribunal must be satisfied that a person has a well-founded fear of persecution, such that there is a real chance a person would suffer serious harm in the reasonably foreseeable future if they are returned to their receiving country. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
The Tribunal finds any economic difficulties the applicant will face upon a return to Malaysia will not threaten her capacity to subsist or deny her the capacity to earn a livelihood of any kind. The Tribunal has found she will be able to secure employment, and although this may be low paying, the Tribunal does not accept her wages would be so low as to threaten her ability to subsist. The Tribunal does not accept any harm suffered by reason of economic hardship would be of such significance to amount to serious harm as defined in s 5J(5).
Although the examples provided for in s 5J(5) are not exhaustive, the Tribunal finds that any economic hardship suffered by the applicant now or in the reasonably foreseeable future upon a return to Malaysia would not involve a level of threat such as to challenge the ability of the applicant to exist, interfere with her basic rights and nor would it be directed at her for the essential and significant reasons of her race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal finds the applicant will not suffer serious harm if she were to return to Malaysia now or in the reasonably foreseeable future as a result of economic circumstances. The Tribunal is therefore not satisfied there is a real chance the applicant will suffer serious harm upon a return to Malaysia now or in the reasonably foreseeable future.

The Tribunal is not satisfied the applicant has a well-founded fear of persecution, as the Tribunal is not satisfied there is a real chance that if the applicant were returned to Malaysia she would be persecuted for one or more of the reasons of race, religion, nationality, membership of a particular social group or political opinion. The applicant does not meet the criteria of s 36(2)(a) to be a person in respect of whom Australia has protection obligations.
Does the applicant satisfy the complementary protection criterion for protection?
As the Tribunal has found the applicant is not a person for whom Australia has protection obligations as a refugee under s 36(2)(a) of the Act, the Tribunal must then consider whether the applicant meets the complementary protection criteria under s 36(2)(aa) of the Act. The applicant will satisfy those criteria if the Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk she will suffer significant harm.
Significant harm in the context of complementary protection criterion is exhaustively defined as being arbitrarily deprived of life, having the death penalty carried out, or being subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. As the Tribunal has found above the applicant will suffer economic difficulties should she return to Malaysia, the Tribunal must consider whether there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia that there is a real risk she will suffer significant harm in the context of any economic hardship.
Any low earning capacity or economic hardship the applicant will face if returned to Malaysia does not amount to significant harm as defined herein. The Tribunal has found, as outlined in this decision, the applicant will be able to find paid employment if returned to Malaysia. Although it is acknowledged the applicant will face difficulties in re-establishing herself in the workforce, and that she will obtain low paying employment, the Tribunal finds any economic hardship of this kind does not amount to cruel or inhuman treatment or punishment or degrading treatment or punishment or any of the other definitions provided for in s 36(2A) of the Act. The Tribunal finds the applicant cannot meet this criterion and as such finds the applicant will not suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Malaysia.
It therefore follows the Tribunal does not have substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia that there is a real risk 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) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…