1927562 (Refugee) - [2025] ARTA 1304

1927562 (REFUGEE) [2025] ARTA 1304 (2 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1927562
Tribunal:General Member D. Gordon
Date:2 May 2025

Place:Melbourne
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 02 May 2025 at 3:59pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – inter-faith relationship – applicant Hindu and former Christian – pressure to convert – applicant’s family’s disapproval and attack on partner – breakup, harassment and suicide blamed on applicant – social media suggesting gang connection – no family protection – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (4), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555
SZJRI v MIAC [2008] FCA 1090
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 19 September 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 1 May 2019.
The delegate refused to grant the protection visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant had a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of their race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant was not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant sought merits review before the Tribunal to challenge the decision of the delegate to refuse her the protection visa.
The applicant appeared before the Tribunal on 21 March 2025 and 11 April 2025 to give evidence and present arguments.
The Tribunal also received oral evidence from [Ms A] and [Ms B]. They appeared by audio-visual link from Malaysia.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil (Malaysian) and English languages.
The applicant was represented in relation to the review by her lawyer Ms Nath. The representative attended the Tribunal hearing, filed submissions and made arguments.
CRITERIA FOR A 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:
a.The refugee criterion in s 36(2)(a) of the Act; or
b.The complementary protection criterion in s 36(2)(aa) of the Act; or
c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non-citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant.
For the following reasons, the Tribunal has concluded that the decision under review ought to be set aside and remitted for reconsideration on the basis that the applicant satisfies the refugee criterion in s 36(2)(a) of the Act.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by her passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of Malaysia, which is also her receiving country for the purpose of her protection claims and assessments.
In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Malaysia, and therefore s 36(3) of the Act is not applicable.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the initial protection visa application lodged by the applicant with the Department.
The applicant filed a statement of claim which particularised her fears with respect to her being a Hindu and her partner [Mr C] being Christian, the pressure to convert her religion, the break-up with her partner, and her subsequent harassment.
The Tribunal notes that the applicant maintains her original claim for protection.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
By the time the matter was before the Tribunal, the applicant’s claim progressed factually as her former partner [Mr C] had passed away through a self-inflicted gunshot wound and she was imputed with the blame for his death by his friends and family.
COUNTRY INFORMATION
The Tribunal refers to the DFAT Country Information for Malaysia which provides relevantly as follows.[1]
[1] DFAT Country Report for Malaysia 2024.
[2.17] Malaysia is a federal constitutional monarchy. It has a Westminster-style parliamentary system of government, and conducts periodic, multi-party elections. The Prime Minister is the Head of Government and head of the federal cabinet. The King (Yang di-Pertuan Agong) is the Head of State and Commander in Chief of the Armed Forces. A two-thirds parliamentary majority is required to amend the Constitution.
[2.30] Gangs continue to operate in Malaysia. In 2022, local media reported that 72 underworld gangs were being monitored by police as potential threats to the country. In-country sources reported that many street-level gang members were Indian Malaysians, in part reflecting their relative economic vulnerability. In-country sources also reported high-level crime, including drug trafficking, was more typically associated with Chinese Malaysian gangs. Some gangs engage in extortion and loan sharking. Details of gang activities are difficult to obtain, as victims of gang-related crimes do not generally report them due to fear of retaliation.
[3.16] Indian Malaysians constitute the third-largest ethnic group in Malaysia. Department of Statistics Malaysia estimates their population at 2.02 million, approximately 6 per cent of the population. Most are Tamil speakers, whose ancestors migrated as agricultural labourers for the British prior to independence.
[3.35] According to the US State Department, 63.5 percent of the Malaysian population practices Islam; 18.7 per cent Buddhism; 9.1 per cent Christianity; 6.1 per cent Hinduism; and 9 per cent other religions, including animism, Confucianism, Taoism, Sikhism and Jehovah’s Witnesses. Rural areas, especially on the east coast of peninsular Malaysia, are predominantly Muslim, while Sabah and Sarawak are predominantly non-Muslim. Approximately 75 per cent of Malaysian Christians live in Sabah and Sarawak, around 65 per cent of whom are indigenous.
[3.40] Malaysia has a two-track legal system: common law, administered at the federal level; and Islamic religious law, known as syariah (also spelled sharia), which is administered at the state level and varies by jurisdiction.
[3.113] There is strong social stigma attached to pre-marital sex and pregnancy.
[3.125] DFAT assesses that women and girls in Malaysia face a moderate risk of GBV in the form of domestic violence, and in the case of Muslim girls, also face a high risk of GBV in the form of FGM/C. State protection is available but often inadequate or ineffective in practice. Family, economic, and societal pressures often act as barriers to leaving abusive relationships.
THE EVIDENCE AT THE HEARING
The applicant’s evidence
The applicant gave the following evidence at the hearing.
The applicant is from Malaysia and presently [Age] years of age. She has [brothers], and both her parents have passed away. She is not close to her brothers.
She came to Australia in 2019.
In Malaysia she had completed a [subject] certificate and worked in a [company] as [an occupation].
The applicant confirmed her religion as a Hindu.
On a particular day sometime in 2016, as the applicant was leaving work, she saw a man who was [Mr C] outside her place of work on a motorbike with some of his friends.
Her friend told her that this [Mr C] liked her and that her number was passed to him.
Later that same evening she received an introductory text from [Mr C] and from thereon began their courtship.
When asked why the applicant would take interest in a Christian boy knowing she was conservatively Hindu, the applicant replied that she was not allowed much contact with boys, did not have many friends and she liked [Mr C].
Sometime after 6 months of courting and on Valentines Day in 2017, [Mr C] proposed to the applicant. The applicant explained furthermore that she had not had a father’s love in her life, and this went towards further wanting a relationship. He was the first man to care for her.
The applicant and [Mr C] further courted for over a year and there was some pressure for a more serious and perhaps physical relationship, but the applicant clarified that her family would want a marriage before anything more serious eventuated.
In 2018 the applicant informed her mother about her relationship with [Mr C]. An agreement was had to invite [Mr C] and his family to formally arrange the marriage.
On a Sunday in August 2018, [Mr C] and his family came to the applicant’s house to formally discuss the marriage.
However, during this discussion, [Mr C]’s father insisted that the applicant would have to convert from Hindu to Christian as part of marrying [Mr C].
The applicant family strongly disagreed with the applicant having to convert to Christianity and the meeting ended on a sour note. After [Mr C] and his family departed, the applicant was scolded by her mother and her brothers assaulted her and broke her phone and she was confined to her room. She was not allowed to go to work.
The applicant’s friends inquired about her not coming to work and tried to help her and [Mr C] elope, but the applicant did not want to disappoint her family.
On Diwali 2018, [Mr C] came to the applicant’s house to further ask the applicant to elope with him. The applicant’s brothers came to [Mr C] and demanded he stop seeing the applicant and caused a violent assault upon [Mr C].
[Mr C] was taken to hospital with a head injury and admitted. This included being in a coma.
[Mr C]’s family sought to press charges against the applicant as they blamed her for the assault on [Mr C] and his subsequent hospitalisation.
[Mr C] recovered around March 2019.
The applicant fled to Australia.
However, [Mr C] managed to contact the applicant in Australia and on the phone asked her to return to Malaysia to be with him or he would kill himself.
The applicant stated she did not want to return due to the anger, blame and issues between their families.
The next morning [Mr C] shot and killed himself.
The applicant’s aunty sent her a [Social media] video of the aftermath of the shooting with commentary about [Mr C]’s death and that he spoke to his ex-girlfriend in Australia before killing himself.
It transpired that [Mr C] also had underground connections which is how he managed to obtain a firearm, and his close friends were also gangsters, and his family were well-connected.
[Mr C]’s friends and family blamed the applicant for his death.
[Mr C]’s friends had come to the applicant’s house looking for her and also to the hospital where her mother was admitted and inquired about her.
The applicant expressed her fears as she was the last person to speak to [Mr C] and that his friends and family think she told him or spoke to him in a way that made him kill himself.
The applicant also said the police would not help as [Mr C]’s family is well-connected.
Evidence of [Ms A]
The applicant’s aunty, [Ms A], had knowledge of her previous relationship with [Mr C]. She gave evidence of the harassment the applicant’s family experienced at the hands of [Mr C]’s family and friends.
She said that [Mr C]’s family and friends were harassing the applicant’s family and home.
They used to come and knock or break the window glass at her home.
They would come on motorbikes and stop them and not allow them to go out of their home.
They made threats that if the applicant came back to Malaysia, they would never let her live peacefully.
The Tribunal was concerned about hearsay and asked [Ms A] how she knew of these matters, to which she replied that the applicant’s mother had told her. Notably the applicant’s mother has passed away which permits the hearsay evidence.
[Ms A] further stated that after [Mr C] died, she came to know he had gang connections.
[Ms A] confirmed sending the [Social media] video to the applicant in Australia. The clip mentioned that [Mr C] had killed himself after speaking to his ex-girlfriend.
[Ms A] expressed her fears for the applicant and said she would be harmed by [Mr C]’s friends and family for being to blame for his death.
That [Mr C]’s family are well-connected, and the police would not help the applicant.
[Ms A] confirmed that the applicant had no close female support as she had no sisters, and her mother had passed away. She herself lived 3 to 4 hours away from the applicant’s home in Malaysia.
Evidence of [Ms B]
The applicant’s cousin, [Ms B], gave evidence that she encountered [Mr C]’s friends in front of the hospital at which the applicant’s mother was admitted in 2023. During this encounter, she was questioned on the whereabouts of the applicant.
[Ms B] had gone to the [Hospital] to visit the applicant’s mother.
Whilst she was waiting outside, a few men approached her and asked for the whereabouts of the applicant.
A few days later other people were asking about the applicant.
At the applicant’s mother’s funeral, the same men who asked about the applicant at the hospital were lurking around.
These men all looked rough and rowdy and unsavoury.
[Ms B] also expressed her fears and concerns about the applicant returning to Malaysia and being harmed by the friends and family of [Mr C].
The [Social media] Video about the death of [Mr C]
The [Social media] video link is at [URL] by [News source] and titled “[Title in Bahasa Melayu]”.
The Tribunal had the opportunity to view the video and with the assistance of the interpreter understood that it conveyed the self-inflicted shooting of [Mr C] and mentioned that he had just spoken to his ex-girlfriend in Australia.
Other documentary evidence submitted
The applicant also submitted the following material into evidence to support her protection claims.
Her own sworn statement of 14 March 2025.
The applicant’s father’s death certificate.
Th applicant’s mother’s death certificate.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings after hearing and analysing the evidence.
The applicant is a Hindu woman from Malaysia.
The applicant was in a relationship with [Mr C].
The relationship broke down after [Mr C]’s family required the applicant to convert from Hinduism to Christianity.
[Mr C] was hospitalised during Diwali 2018 after a violent altercation with the applicant’s brothers.
[Mr C] died of a self-inflicted gunshot wound shortly after speaking on the phone to the applicant, which was also the subject of media coverage and a [Social media] video.
[Mr C]’s friends and family have been inquiring about the applicant.
REFUGEE CRITERION ASSESSMENT
To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly this requires the applicant to come within the definition of s 5H(1)(a) of the Act which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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 and 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 along with the requirements set out in ss 5J(2)–(6) and ss 5K–5LA of the Act.

In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[2]
[2] (1989) 169 CLR 379.
The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.
Section 5J(5) of the Act defines instances of serious harm as including a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.
Fear of harm from the late [Mr C]’s friends and family
The applicant fears harm in Malaysia from the late [Mr C]’s friends and family. She says that they blame her for his death.
Strands of attribution link back to her religion, her family refusing her conversion and breaking the marriage discussions, and the late [Mr C]’s profile. Religion and particular social group provisions are engaged. Alternately, it could be viewed that had there been no religious objections, the counterfactual might be quite different.
Notably she says that he called her and spoke to her, and threatened to kill himself if she did not return to him. Shortly thereafter he shot himself and died.

100. There is also a news-media [Social media] video concerning the death of the late [Mr C] and that he spoke to his ex-girlfriend in Australia before shooting himself.
101. The salient integers of this claim that require factoring are that the applicant is a woman, and she has no sisters, and her mother is passed away. She has no female support back in Malaysia.
102. The applicant also gave evidence that she was not close to her brothers. There is a lack of male protection.
103. The Tribunal has given consideration of the title of the [Social media] video – “[Title in Bahasa Melayu]”. It is an interesting use of words. [Discussion of words and meanings] It does suggest that [Mr C] was no ordinary person and possibly had some influence or connection with the underbelly of Malaysia. An ordinary person’s death, even by suicide would not have generated such a media video.
104. The applicant’s own evidence gave a plausible narrative, one that she has maintained since her initial application with the Department, albeit further developed factually after the death of the late [Mr C] and ensuing threats from his friends and family blaming her.
105. Furthermore, it is not farfetched or too remote that disputes may arise between interfaith couples and their respective families about conversion, especially the pressure to have women convert to their husband’s religion.
106. The Tribunal accepts that that it is not farfetched or too remote a consideration that the applicant would be blamed for causing or contributing to the death of the late [Mr C].
107. It is conceivable that anger and sorrow at losing a young son and friend would be reasons for blaming the applicant and avenging the loss of the late [Mr C].
108. Revenge is a motive to harm and persecutorial. See both Roberts-Smith v Fairfax Media Publications Pty Limited (No 41)[3] and SZJRI v Minister for Immigration & Citizenship[4].
[3] [2023] FCA 555 at [156].
[4] [2008] FCA 1090 at [19]
109. That even though she would not have caused his death, there would be an imputation that she either caused or had some involvement in the death of the late [Mr C] and further heightened and inflamed by the publication of the [Social media] video. The applicant on her return to Malaysia would be exposed to serious discrimination, harassment and harm related to her being blamed for the death of the late [Mr C].
110. The Tribunal accepts that it is the applicant’s religion and membership of the particular social group that would be the essential and significant reason for the applicant suffering systemic and discriminatory conduct amounting to persecution contrary to s 5J(4) of the Act.
111. The Tribunal accepts that the applicant would not be able to obtain effective state protection per s 5J(2) of the Act as the late [Mr C] and his colleagues are well-connected, have some involvement with criminality and would be able to influence the local police. DFAT country information suggests that local police would be susceptible to influence and bribery.
112. The Tribunal refers to SZATV v Minister for Immigration and Citizenship[5] and accepts that it would be impracticable and unreasonable to require the applicant as a single woman without any protection or assistance back in Malaysia to relocate and hide from the late [Mr C]’s friends and family. Furthermore, the friends and family of the late [Mr C] would be able to track her down if she attempted such a relocation internally.
[5] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
113. On the material before it and as set out above, the Tribunal is satisfied that the applicant fears being persecuted for causing the late [Mr C]’s death and there is a real chance that if the applicant is returned to Malaysia now or in the reasonably foreseeable future, the applicant would be persecuted, and the real chance of persecution relates to all areas of Malaysia.
114. 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) of the Act.
115. As the Tribunal has found in favour of the applicant under s 36(2)(a) of the Act, the Tribunal has not gone on to consider any other protection criteria.
DECISION
116. The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearings: 21 March 2025 and 11 April 2025
Representative: Ms Shivya Nath

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.
…