1928161 (Refugee) - [2025] ARTA 1301

1928161 (REFUGEE) [2025] ARTA 1301 (12 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1928161

Tribunal:General Member D. Gordon
Date:12 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 12 May 2025 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – young Punjabi homosexual man – political opinion – support for a free Khalistan – local village Panchayat ruling – fear of killing – internal relocation – state protection – mental health issues – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
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 9 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 India, applied for the visa on 25 June 2018.
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 matter required multiple hearings due to its evidential complexity, applicant’s mental health and overseas witnesses. The applicant appeared before the Tribunal on 28 March 2025, 30 April 2025, and 9 May 2025 to give evidence and present arguments.
The Tribunal also received oral evidence from the applicant’s mother Mrs [Mother A] from India, the applicant’s former partner [Partner A] from [Country 1], and the applicant’s current flatmate [Flatmate A] over 30 April 2025 and 9 May 2025.
The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.
The applicant was represented in relation to the review by his lawyer Mr Nijamudeen.
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 his passport and recorded personal particulars.
The Tribunal finds that the applicant is a citizen of India, which is also his receiving country for the purpose of his 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 India, 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 claimed persecution on account of his political involvement in supporting and attending protests for a free Khalistan in Punjab.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
By the time the matter was before the Tribunal, the applicant’s claim was further amended and added by his claim based on persecution for his sexual orientation, that as a young gay Punjabi man he would suffer serious harm in India.
The applicant stated that he was ashamed and embarrassed to originally disclose his sexuality preference in his protection visa application as he had attended to a Punjabi migration agent and feared the agent might betray his confidence.
The Tribunal accepts that young gay Punjabi men from India such as the applicant may be embarrassed and ashamed and fear divulging their sexuality to other persons, especially persons from their own community.
However, it ought to be noted that had the applicant put his sexuality persecution claims before the Department and produced his witnesses, this matter may have resolved there without the need for a fresh merits review at the Tribunal.
The Department cannot be faulted for the initial decision as it only dealt with the Khalistan political claim as the applicant did not supply further information or evidence or attend a protection interview with the assessing Delegate.
Upon a merits review, the Tribunal is empowered to undertake a fresh examination of the protection visa application and all claims and evidence placed before it.
Throughout the hearing, it became apparent that the applicant’s claim based on his sexuality had an evidential basis and the Tribunal proceeded with its hearing and assessment as follows. The initial Khalistan claims were not further considered as the hearings progressed.
COUNTRY INFORMATION
The Tribunal refers to the DFAT Country Information for India which provides relevantly as follows.[1] It is supplanted by the DFAT Thematic Report for the State of Punjab.
[1] DFAT Country Report for India, 29 September 2023.
[3.150] Sources told DFAT lesbian, gay, bisexual, transgender and/or intersex (LGBTI) people lack protection, have poor education and health outcomes, and face intolerance, abuse and violence in their daily lives. Discussion about sexuality is generally taboo in India, which means that LGBTI people often lead hidden lives.
[3.151] Section 377 of the Penal Code, which criminalised sexual acts ‘against the order of nature’ (a euphemism for gay sex, but also oral and anal sex regardless of gender), was repealed in 2018 after the Supreme Court ruled that it was unconstitutional. Sources told DFAT that the repeal of the law has improved the lives of LGBTI people – police are less likely to extort them for bribes, and morale in the community has improved.
[3.158] While society is broadly conservative to the exclusion of LGBTI diversity, there are pockets of acceptance, especially in large cities (particularly Delhi and Mumbai) among the upper classes. Even in more tolerant contexts, many LGBTI people may experience tolerance rather than acceptance.
[3.159] DFAT assesses that LGBTI people face a high level of societal discrimination and a moderate risk of official discrimination. Violence against LGBTI people perpetrated by families is common,
THE EVIDENCE
The applicant’s evidence
The applicant gave the following evidence with respect to his fears of harm based on his sexuality.
The applicant stated he was presently [age] years old and from a village area in Punjab. His parents and one [sibling] are back in Punjab. His occupation is noted as [an occupation 1] in Punjab.
The applicant presented as a person with mental health concerns and exhibited anxiety and incoherent memory. He also provided a letter from his treating doctor as to his mental health.
The Tribunal permitted the applicant through his lawyer to give a further written statement about his sexual orientation being exposed in Punjab after his primary oral evidence.
His written statement stated that he realised he was gay during his high school years however homosexuality was considered taboo. He had a prior relationship with his friend [Partner A] which was later discovered by his village Panchayat. On one particular occasion, as he and [Partner A] were leaving a hotel, a photograph was taken which became the evidence placed before the local village Panchayat.
The applicant also gave similar oral evidence that he was a gay man, and he was in a prior relationship with [Partner A] in India. This was discovered by the local village Panchayat. His local village community threatened him with serious harm and death due to his homosexuality.
The applicant also spoke of wanting to have a relationship with his current flatmate [Flatmate A]. That he had feelings for [Flatmate A], however at present [Flatmate A] was not willing to enter into a relationship with him.
At the first hearing of 28 March 2025, the applicant’s flatmate [Flatmate A] was not available personally. However, at the Tribunal’s request a telephone call was made to [Flatmate A] by the applicant within the hearing room and [Flatmate A] answered the call and confirmed to the Tribunal that the applicant was his flatmate, and personal intimate conversations were had between them about the applicant’s sexuality and possibly having a relationship with him.
The Tribunal asked the applicant about the present status of [Partner A] due to the possible relevance of their prior relationship and was informed he was currently in [Country 1].
The Tribunal proposed to hear further from [Flatmate A] and [Partner A] and a further hearing was set down for 30 April 2025.
Evidence of [Partner A]
The Tribunal heard from [Partner A] on 30 April 2025 with respect to the evidence of their prior relationship. He gave evidence from [Country 1].
[Partner A] also provide a written statement as to his past relationship with the applicant and gave oral evidence as follows.
He was also from a village in Punjab. He is also gay.
He met the applicant during their school years, and they became best friends.
They liked spending time with each other and would skip school and go to the city.
After their 10^th standard education year, their relationship developed further, and they shared their feelings for each other. They became more serious during their time at [School 1] around [specified year].
The social aspects of their relationship included spending time at the local park, and frequently a local café.
They were in a relationship till 2017.
None of his or the applicant’s family knew of their same-sex relationship which they had to keep hidden and confidential.
[Partner A] explained that sometime in September 2016 there was a local village Panchayat meeting where their same-sex relationship was exposed due to a photograph being taken of he and the applicant exiting a hotel together.
The Panchayat meeting resulted in both his and the applicant’s parents discovering their same sex relationship and both of them being kept apart and separated.
His parents said he was ruining their family name.
[Partner A] was sent to live with friends in Chandigarh.
He was now in [Country 1] seeking to study. He left Punjab in September 2023.
Evidence of [Flatmate A]
[Flatmate A] is the current flatmate of the applicant.
He gave a written statement, followed by a sworn statement and the following oral evidence.
[Flatmate A] is a student and has been flatting with the applicant for the last 8 months.
Over time he and the applicant have become close, and the applicant has confided in him about his past relationship with [Partner A] who is presently in [Country 1].
[Flatmate A] confirmed he is also a gay man.
[Flatmate A] confirmed that the applicant had expressed feelings towards him but he did not want to enter into a relationship with the applicant as the applicant was still thinking about [Partner A].
The evidential value of the initial phone call to [Flatmate A] during the hearing
An important piece of evidence was the initial phone call to [Flatmate A] during the Tribunal hearing of 28 March 2025.
This phone call was unplanned and unrehearsed. It was a request from the Tribunal.
At the Tribunal’s request, the applicant called [Flatmate A], and the Tribunal had the benefit hearing [Flatmate A] confirm that the applicant had expressed his feelings towards him.
The Tribunal places positive weight on such evidence which goes towards the credibility of the applicant’s claim and narrative.
Evidence of Mrs [Mother A]
The applicant’s mother [named] gave evidence on 9 May 2025 from her home in Punjab. The applicant’s father was too angry and ashamed to give evidence.
She said she was aware her son the applicant was different.
She spoke of the photograph used by the Panchayat and the fears she held for his safety if he were to return.
She said the Panchayat claimed her son was having a relationship with another boy.
The Panchayat was very hostile towards their family and threatened the applicant.
The Panchayat gathering was very difficult for the applicant, and they had to take him to see a doctor.
Soon thereafter they asked for the help of some family and arranged to send the applicant to Australia.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings after hearing and analysing the evidence.
The applicant is from Punjab India.
The applicant feared disclosing his sexuality to his prior migration agent as he was also from the same Punjabi community.
The applicant is a young gay man. He exhibits signs of anxiety and stress related trauma.
Prior to leaving India, he was in a same-sex relationship with [Partner A], who is presently in [Country 1].
During their relationship, sometime in late 2016, they were photographed leaving a hotel together and this was used as proof of their same-sex relationship put before a local Panchayat.
The local Panchayat directed that the applicant and [Partner A] cease their relationship and for the applicant to cease being gay or suffer punishment including serious harm.
The applicant’s family feared for his safety and sent him to Australia.
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 on account of same-sex sexuality (young gay Punjabi man)

The applicant fears harm in India from the conservate local community members who would seriously harm him or cause him death due to him being a young gay Punjabi man.
The particular social group provisions are engaged as the applicant is a young gay Punjabi man.
The salient integers of this claim that require factoring are that the applicant is vulnerable, he is young, he exhibited signs of trauma and stress.
The applicant’s own evidence gave a plausible narrative, one that was supported by his former partner [Partner A variant] from [Country 1] and his current flatmate [Flatmate A].
Notable the Tribunal had the opportunity of an impromptu unplanned phone call during the first hearing being made to [Flatmate A] where he spoke of the applicant’s intimate feelings towards him.
Furthermore, it is not farfetched or too remote that a young gay Punjabi man would be subjected to serious harm, serious harassment, and possibly death for being gay back in Punjab.
The Tribunal accepts that that it is not farfetched or too remote a consideration that the applicant upon his return to his village in Punjab would be punished for his sexuality and sexual preference for being gay.
The Tribunal accepts that there could be an imputation that the applicant had engaged in further homosexual acts in Australia and should be punished for this by his village in Punjab.
The Tribunal accepts that it is the applicant’s membership of the particular social group of young gay Punjabi men 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.
It is common knowledge through Punjab society that machoism and the male hero stereotype are grand themes in Punjabi culture.[3] The applicant would be a threat to such a patriarchal hetero culture and there is a real chance he would be bullied, harassed and seriously harmed for being gay.
[3] See The Tribune, Masculinity continues to the norm in Punjab, 2016 at < and University of Michigan, CSAS Lecture Takes a Deeper Look at Masculinity in Punjab, 2024 at <
This serious chance is further heightened and exacerbated by the applicant’s disposition, in that he presented as confused, stressed, exhibiting anxiety and his mental recollection was affected by his trauma. His oral evidence was fractured and cluttered. Much assistance was drawn from the evidence of his mother, his former partner, his flatmate and treating doctor’s letter.
The Tribunal accepts that the applicant would not be able to obtain effective state protection per s 5J(2) of the Act. DFAT country information suggests that local police would be susceptible to influence and bribery in the village areas of Punjab. They may condone or turn a blind eye.
The Tribunal refers to SZATV v Minister for Immigration and Citizenship[4] and accepts that it would be impracticable and unreasonable to require the applicant as a young gay Punjabi man without any protection or assistance back in India to relocate to a place such as New Delhi. Country information suggests significant discrimination towards the LGBTQI community in India.
[4] (2007) 233 CLR 18, 27 [24] (Hayne, Gummow and Crennan JJ).
On the material before it and as set out above, the Tribunal is satisfied that the applicant fears being persecuted on account of being a young gay Punjabi man and there is a real chance that if the applicant is returned to India either now or in the reasonably foreseeable future, the applicant would be persecuted, and the real chance of persecution relates to all areas of India.

100. 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.
101. 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
102. 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.
Dates of hearing(s): 28 March 2025, 30 April 2025, 9 May 2025
Representative for the Applicant: Mr Nizam Jazeel C Nijamudeen

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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