1916551 (Refugee) - [2024] ARTA 884

1916551 (REFUGEE) [2024] ARTA 884 (18 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1916551
Tribunal:General Member A Ryan
Date:18 December 2024

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

Statement made on 18 December 2024 at 9:38am
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – race – Tamil ethnicity – religion – Hindu – lesbian – new evidence related to her sexual orientation – fears physical harm from her partner’s family in Malaysia – membership of a social group – lesbian – applicant would not be able to obtain effective protection from the authorities – there is a real chance that the applicant will suffer serious harm – satisfied that the applicant is a person in respect of whom Australia has protection obligations – decision under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958, ss 5, 36, 65, 367, 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 18 June 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 20 June 2018.
On 24 June 2019, the applicant made an application for review to 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), 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 made by the Tribunal.
The applicant appeared before the Tribunal on 11 October 2024 and 12 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.
On 4 December 2024, the Tribunal took oral evidence from [Mr A], [Ms B] and [Mr C].
The applicant was represented in relation to the review.
BACKGROUND
Evidence before the Department
Protection visa application
The applicant provided the following background details in her protection visa application. The applicant was born in Penang, Malaysia in [year] and is divorced. She is Hindu and of Tamil ethnicity. The applicant graduated from high school and was self-employed in Malaysia as a [occupation].
The applicant’s claims in her protection visa application are summarised as follows. The applicant had problems with her former husband and his family. The applicant’s former husband hit her and she was worried about her safety. The applicant went to the police but they did not take action to protect her. As a Tamil person it is difficult for her to lodge a complaint with the authorities and the authorities will support her former husband and give him advice which will not have any effect on her ex-husband. The applicant does not have enough money, resources or skills to go to another place.
The applicant attached the following documents to her protection visa application
a.A copy of her passport.
b.A copy of a report to the police in the Malay language.
The Departmental file also included a bridging visa application including financial documents which are not relevant to the current review.
Department interview
The applicant was not invited to an interview with the Department of Home Affairs.
Delegate’s decision
The delegate refused the applicant’s protection visa application on 18 June 2019. The delegate noted that Malaysian law prohibits domestic violence and that supports are available to victims. The delegate noted that the applicant did not provide any supporting documentation and was not satisfied that the applicant had established her claim of domestic violence. Further the delegate found that she as able to leave her husband and has been residing in Australia independently, she would be able to return to Malaysia and live away from her family. The delegate concluded that there was not a real chance that, if the applicant was returned to Malaysia, she would be persecuted or suffer significant harm.
Evidence before the Tribunal
The review application
The applicant lodged an application for review to the Tribunal on 24 June 2019. No additional information was provided in relation to her protection visa application.
On 12 March 2024 the Tribunal wrote to the applicant to advise her that her case was being prepared to be given to a Member and invited more information about her protection claims.
On 18 March 2024 the applicant provided additional information to the Tribunal noting that she was forced to marry a man in Malaysia when her family discovered that she was in love with a woman. She was abused within the marriage. The applicant left Malaysia because same sex relationships are not recognised. She is also worried that she will be punished under the law in Malaysia because she has applied for protection in Australia.
On 4 September 2024 the Tribunal wrote to the applicant inviting her to give further evidence and arguments at a hearing on 11 October 2024.
On 2 October 2024 the applicant provided the following additional information:
·Blood donation record.
·Character references.
The Tribunal hearing
On 11 October 2024 the applicant appeared before the Tribunal. The applicant requested an adjournment to seek legal representation. This adjournment was granted and the applicant appeared before the Tribunal on 12 November 2024 together with her legal representative.
The hearing was conducted with the assistance of a Tamil interpreter. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below.
Post‑hearing submissions
On 6 November 2024 the applicant provided the following documents in support of her application for review:
- Statement from the applicant dated 4 November 2024 explaining that she feared harm in Malaysia from the community in general as well as her religious community, the authorities, the police and her former husband and his family. The applicant explained that she feared she would be targeted for harm as she is a lesbian. The applicant noted that she had explained her sexual orientation to her former migration agent and thought that it had been included in her application. The applicant only knew that her claims related to her sexual orientation were not included in her application once she read the delegate’s refusal.
·Photos of the applicant’s relationship with her former partner, [name], between Decemerb 2016 and October 2019.
·Receipt for payments to [Mr D], dated 09 December 2017.
·Email from [Mr D]’s office regarding attending appointment with Mr
[Mr D] dated 29 December 2017.
- Email from Mr [Mr D]’s office dated 12 January 2018 attaching acceptance agreement for [a] College dated 9 January 2018.
- Photos of the applicant’s relationship with her current partner, [name] dated March 2019 to April 2024.
- Letter from her sister [name].
- Letter from [name] (the applicant’s friend) dated 29 October 2024.
- Letter from [Mr A] (the applicant’s friend) dated 4 November 2024.
- [Mr D]’s business card, undated.
On 26 November 2024 the applicant provided the following documents in support of her application for review:
·     Post hearing legal submissions dated 26 November 2024.
·     Statement of the applicant dated 25 November 2024.
·     Translated Malaysian marriage certificate of the applicant and her former husband, Mr [E] dated [April] 2000 with original document.
·     Translated Malaysian police reports regarding the applicant’s complaint against Mr [E] dated [date] July 2001 and [date] July 2001.
·     Malaysian police report regarding the applicant’s complaint against Mr [E] dated [date] April 2003.
·     Translated Malaysian divorce certificate of the applicant and Mr [E] dated [March] 2006.
·     Letter from [name] (the applicant’s friend) dated 28 October 2024.
·     Letter from [name] (the applicant’s friend) dated 19 November 2024.
·     Letter from [name] (the applicant’s ex partner’s son) dated 24 November 2024.
·     Photos of the following:
a.The applicant in Malaysia.
b.Messages with the applicant’s former partner.
c.Video calls and messages with the applicant’s partner.
d.Gifts and cards exchanged between the applicant and her partner.
e.Photos taken by the applicant at the Sydney Mardi gras 2023.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Malaysia or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Malaysia. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of nationality
The applicant has consistently claimed to be a Malaysian citizen. She came to Australia on a Malaysian passport and provided a copy of her Malaysian passport with her protection visa application and to the Tribunal. The Tribunal finds that the applicant is a Malaysian national.
There is no information before the Tribunal to suggest that the applicant is a citizen of another country or that she has a right to enter and/or reside in another country.
Background
The applicant claims to be of Tamil ethnicity, Hindu and is divorced. On the evidence before the Tribunal, it accepts this to be true.
Protection claims
Section 367A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. At hearing the applicant confirmed the evidence in her statement that she had told her former migration agent about her fears of harm in Malaysia as a lesbian and thought that these claims had been included in her application. She confirmed that she only knew that her claims related to her sexual orientation were not included in her application once she read the delegate’s refusal. The Tribunal takes this into account and also notes that she did not have an interview with the Department of Home Affairs to present her claims. In these circumstances the Tribunal accepts that there is a reasonable explanation as to why the applicant did not provide the claims related to her sexual orientation and supporting documentary evidence. The Tribunal does not draw an unfavourable inference to the credibility of the new evidence related to her sexual orientation.
At hearing the applicant provided compelling evidence about her life as a lesbian woman in Malaysia. The applicant described her experiences as a lesbian and as a person who was perceived to be a ‘tom boy’ and masculine in appearance including facing discrimination, physical abuse, ostracism, forced marriage and significant psychological harm. The applicant explained that although her immediate family accepted her sexuality and her appearance, after her father died in approximately 1998, her extended family, including aunts and uncles, came to know that she was a lesbian, and subjected her to verbal abuse, ostracization and forced her to marry.
The applicant’s extended family forced the applicant to marry a man despite the applicant being against marriage. The applicant’s family told the applicant that her former husband knew about her sexuality and accepted it. The applicant explained that after she married it was clear her husband did not know about her sexuality. The applicant gave evidence that her former husband insulted her, threatened her with a knife, detained her in her house, and frequently physically abused her. The applicant also gave evidence that she was physically assaulted by her mother-in-law. The applicant reported the abuse to the police however no action was taken. The applicant explained that she left her husband after about 6 months of marriage due to the sever level of abuse and psychological distress, including suicidal thoughts that she faced.
After leaving her husband in 2000, the applicant gave evidence that she continued to face verbal abuse, physical abuse, and threats from her former husband until about 2006. She detailed that she made a further report to the police about her former husband’s violence in 2003.
The applicant gave evidence of sexual, verbal and physical harassment she has faced from members of the community in Malaysia as a lesbian, due to her masculine appearance and perceptions that she is a person who is transgender. The applicant also detailed that a transgender friend was arrested and beaten in Kuala Lumpur during a raid on an entertainment venue in December 2023.
The applicant also re-counted discrimination she faced in seeking to obtain employment due to her appearance and sexuality.
During the hearing the applicant gave evidence that she came to Australia to be with her female partner who lived in Australia. The applicant lived with her female partner in Australia for approximately one year from 2017. The Tribunal has had regard to the statement from the applicant’s former partner’s son who gave details of their relationship.
At hearing the applicant provide a detailed and persuasive account of her relationship with her current partner, a Malaysian citizen living in Malaysia, with who she developed a relationship online. The applicant’s partner has come to visit the applicant in Australia on two occasions and in 2023 the applicant and her partner got engaged. The applicant’s account was supported by the oral and written evidence of numerous friends, witnesses, photographic evidence and records of their communication between 2021 and April 2024. The applicant gave evidence that recently her partner’s family had found out about their relationship and the applicant’s partner was beaten by her cousin, forced her to stop contact with the applicant and was under pressure to engage in a heterosexual marriage. The applicant explained that she fears physical harm from her partner’s family in Malaysia.
The Tribunal has carefully considered the claims of the applicant. As discussed above the Tribunal found the applicant's oral evidence to be detailed, spontaneous and persuasive. The corroborating documentary and oral evidence of the witnesses was consistent and compelling.
Considering the information before it, the Tribunal accepts the applicant’s evidence that she is a lesbian, and that she is perceived to be a ‘tom boy’ and to have a masculine appearance. The Tribunal accepts that the applicant is engaged to her Malaysian female partner, who she was in regular contact with until earlier this year. The Tribunal accepts that the applicant would continue to pursue this relationship and/or other romantic relationships with women, including seeking to live with her partner.
The Tribunal has had regard to publicly available country information related to sexual orientation and gender expression in Malaysia, including Malaysian laws and the most recent DFAT report.
The 2024 DFAT country information report on Malaysia states that ‘Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent.[1] There are 52 laws that criminalise different forms of LGBTQIA+ behaviour, including new laws added by states over the last 5 years.[2] Prosecutions have taken place under these laws, including under Section 377A/377B (Unnatural Offences) of the Penal Code, which includes penalties of whipping and up to 20 years in prison.[3] However, the Tribunal notes DFAT’s assessment that such laws are rarely used to prosecute members of the LGBTIQ+ community in relation to sexual activity and are generally directed at gay men rather than lesbians.
[1] DFAT, Country Information Report: Malaysia (24 June 2024) (DFAT Report) at [3.126].
[2] DFAT Report at [3.127].
[3] DFAT Report at [3.127].

DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[4]
[4] DFAT Report at [3.148].
As discussed with the applicant at hearing, the applicant is Hindu and would not be subject to Sharia law, which also criminalises sexual relations between people of the same sex.[5] As noted by the applicant’s representative, although the applicant is not subject to Syariah law, she is at risk of harm in Malaysia due to her sexuality and this risk of harm including violence is heightened due to her non-normative gender expression. The International Gay and Lesbian Human Rights Commission reports that LGBTQIA+ people in Malaysia, whose gender expression is more visible, are more likely to be targeted for violence and discrimination. [6]
[5] Malaysia: On the Record: Violence Against Lesbians, Bisexual Women and Transgender Persons In Malaysia, International Gay and Lesbian Human Rights Commission, 6 May 2014, CIS2F827D91966, p.9.
[6] Submissions of the legal representative dated 26 November 2024, International Gay and Lesbian Human Rights Commission, ‘Violence against Lesbians, Bisexual Women and Trans People in Malaysia” (2015) p. 5
The Tribunal has had regard to DFAT’s assessment that the level and frequency of discrimination faced by LGBT persons differs according to a range of factors including the degree to which they are open about their sexuality.[7] The applicant is open with friends about her sexuality and has lived with female partners in Australia. The Tribunal notes that the applicant’s current relationship with her partner, to whom she is engaged, also increases her risk of harm, as her partner’s family do not approve of their relationship and have carried out violence towards her partner. The Tribunal considers that the applicant would be at heightened risk of familial or societal violence on the basis of her sexuality due to her masculine appearance, her openness about her sexuality and her engagement to her partner. Further, the applicant is at risk of official and societal discrimination, particularly in relation to housing and employment, due to her same-sex relationship and sexuality.
[7] DFAT Report at [3.147].
In considering what protection the applicant may be afforded from familial and societal violence and discrimination in Malaysia, the Tribunal has had regard to the UK Home Office report which notes that ‘LGBI persons face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody’.[8]
[8] UK Home Office, Country police and information note: sexual orientation and gender identity or expression, Malaysia, July 2024, available at Country policy and information note: sexual orientation and gender identity or expression, Malaysia, July 2024 (accessible) - GOV.UK ( at executive summary.
Considering the particular circumstances of the applicant cumulatively, and the country information referred to above, the Tribunal is satisfied that the applicant faces a real chance of serious harm in the form of threats of harm, verbal insults, significant physical harassment including sexual harassment and or significant physical ill-treatment from family members, society and Malaysia authorities. The Tribunal also finds that there is a real chance the applicant would face discrimination as a lesbian in relation to employment and housing in Malaysia.
Based on the country information discussed above, the Tribunal finds that the real chance of the applicant facing serious harm is present throughout Malaysia.
The Tribunal finds that the essential and significant reason for the harm feared is the applicant’s membership of the particular social group of lesbians. The Tribunal accepts that lesbians are a particular social group in Malaysia, and that the characteristic of their sexuality is shared by each member of the group. The Tribunal finds that characteristic is an innate or immutable characteristic which is fundamental to the social group members' identity and they should not be forced to renounce it.
The Tribunal is satisfied that the harm feared amounts to serious harm and systematic and discriminatory conduct for the purposes of s 5J(4) and within the meaning contemplated by s 5J(5).
Given the applicant’s unsuccessful attempts to obtain protection from the police in the past, the illegality of same‑sex activities in Malaysia and the above mentioned country information, the Tribunal is not satisfied that the state is willing to offer effective protection measures to the applicant. Further, the Tribunal is not satisfied that the applicant would be able to access effective protection measures if she returned to Malaysia now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations because she is recognised as a refugee. Therefore, the applicant satisfies the criterion set out in s 36(2)(a).
There is no evidence before the Tribunal to suggest or indicate the applicant has a right to enter or reside in a country other than Malaysia and therefore s 36(3) does not apply.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.
Hearing dates:   11 October 2024 and 12 November 2024
Representative:  Miss Kate Forster
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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