1929956 (Refugee) - [2025] ARTA 1391

1929956 (REFUGEE) [2025] ARTA 1391 (6 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 1929956
Tribunal:General Member S. Zelinka
Date:6 March 2025

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 06 March 2025 at 2:47pm
CATCHWORDS
REFUGEE – protection visa – India – particular social group – fear of harm from brother as single woman – brother’s disapproval of another sister’s inter-religious marriage in Australia – applicant’s refusal to marry brother’s choice of husband – brother’s attacks on applicant and parents – police inaction on family matter – property dispute – applicant would inherit in part if single when parents die – mental health – consistent claims and evidence, photographs and eyewitness accounts – country information – limited protection for female victims of family violence despite legislation – difficulty in relocating as single woman – no work experience in home country and Australian qualification and work of limited value there – general harassment and violence against women – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
Applicant A v MIEA (1997) 190 CLR 225
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 10 October 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 16 April 2018. The delegate refused to grant the visa on the basis that she could relocate to another part of the country to avoid persecution.
The applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], who is the applicant's sister. 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. The representative attended the Tribunal hearing.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Background
The applicant is a [Age]-year-old single woman from the Punjab area of India. She has [sisters] and one brother and at the time of her departure in February 2018 she was the only sibling living at home with her parents. One of her sisters ([Ms A]) is a permanent resident of Australia and has lived here since 2009. The applicant came from India directly to this sister and lodged a protection visa application two months later.
Claims
The applicant’s claims which have been consistent through all stages of the protection process are that she has experienced severe harm at the hands of her brother and fears that such harm will continue if she returns to India. The brother harms her because of her status as a single unmarried woman and she is not able to obtain help from the authorities.
The claims as set out below are taken from both the written submissions and the hearing (all being consistent) and represent what the applicant was trying to put forward.
The applicant is the youngest girl in the family and the responsibility of looking after her parents has devolved on her ever since her [older] sisters left home. As mentioned above, the eldest went to Australia on a student visa in 2009 and the [others] married and moved away from the parental home. The applicant’s brother also married but he brought his wife to live in the parental home, although the wife did not willingly participate in the running of the house or the care of the parents.
In 2016, the eldest daughter [Ms A] – the one who was studying in Australia – returned to India for a visit. Before her arrival home, she had told her parents that she had got married in Australia to an Indian man but of a different religion. He is a Sikh, whereas the applicant’s family are Hindu. The parents were mortified by their daughter marrying outside her religion and did not speak of this relationship to anyone. [Ms A] said that she and her husband, who were married in a civil ceremony in Australia in 2013, wanted to come and introduce their spouses to their two families and that they also wanted Indian religious wedding ceremonies. The applicant’s parents refused to have the usual big Hindu wedding and said it would have to be something very small for only the immediate family. The parents had managed to accept this cross-religion union by the time that [Ms A] and her husband had arrived.
Brother’s violence
However, the applicant’s brother became violently angry when he learned about the wedding (which was not until the actual day of the ceremony). His anger did not abate even after [Ms A] and her husband left after a short visit. The applicant became the target of his rage which he unleashed in physical violence against her. Their parents were not able to intercede: the brother took no notice of them. His anger was about women being disobedient. He began to bring his friends home, saying he would choose a husband for the applicant. He pressed one particular friend on her: the applicant thought he was horrible – she also thought he was a drug-user - and refused to marry him. Her parents backed her up. The brother assaulted the applicant and also struck his parents on multiple occasions. The father went to the local police to report his violent son but the police said it was a family matter and should be sorted out at home. They took no action.
The brother had another reason for his anger. The father owned property that because of its location was quite valuable. The brother would eventually inherit it but wanted the money immediately and kept pressuring his father to sell it. However, Indian property laws required that parents be responsible for unmarried daughters (married daughters were the responsibility of their husbands). Hence while the applicant remained single, a part of the property would be inherited by her and her father was anxious that the property be preserved intact until he died when the applicant would need it to support herself. The idea that the property was being kept so that there would be a benefit to the applicant enraged the brother.
The applicant became very upset at hearing in recalling the two years of her life (2016 and 2017) when she was in constant fear of her brother, and subject to physical harm. He said she could not leave the house or she might follow her older sister’s path and run off with a man. He said if she went out he would break her legs. In January 2017, he hit the applicant so hard that she fell out of the house, bleeding profusely. The applicant recalls it because it was the traditional Lohri festival and the neighbours were all outside celebrating. They witnessed the brother not only assaulting the applicant but also his parents. It was on the day after this that the applicant and her father and uncle went to the police, who were unwilling or unable to intervene (see paragraph 16 above). Following this, as soon as the brother went out, the applicant and her parents packed a bag and went to the home of one of the married sisters.
The applicant has submitted some photographs of her facial injuries received on that day; plus several eye witness accounts written by villagers (requested at a later date). All condemned the behaviour of the brother whom they believed was attempting to kill the applicant and also remarked on his “addiction to alcohol”. The villagers noted that the applicant and her family have been forced to leave their home.
The applicant’s brother soon located the family at the sister’s home, but he was unable to force his way in. However, the fear of more physical assaults at his hands kept the applicant and her parents virtual prisoners. The applicant discussed this situation with her sister [Ms A] over the phone and [Ms A] thought it would be a good idea for the applicant to leave the scene to see if the brother’s violence abated. She helped organise a visitor’s visa for the applicant and the sister with whom she was living drove her to the international airport in Delhi without the brother’s knowledge.
Since departure
The Tribunal asked what has happened in India since her departure. She said that her parents have still not sold their property and it is still intact. However, they have never moved back to their house where the brother and his wife and son are still in occupation. The parents remain living at the applicant’s sister’s house where they feel relatively safe because their son-in-law is in residence and also works close by so he can keep an eye out for any ‘visits’ by the applicant’s brother. The brother has not softened his views regarding the applicant nor her sister [Ms A], both of whom he has threatened to kill if they went back to India. The applicant’s parents, meanwhile, keep hoping that the applicant will get married for they feel this will keep her safe and they keep looking for a suitable match. The applicant states that she will not marry a man whom she has not chosen herself.
Witness’s testimony
The sister [Ms A] spoke to the Tribunal as a witness in this case and stated that she had not returned to India since her wedding in 2016. She would like to do so to show her children their Indian background but she is too frightened of her brother to do so. She confirmed that she knew, through phone calls, from 2016 onwards about her brother’s violence towards the applicant and her parents and says she feels responsible, because it was her brother’s anger at her own wedding to a Sikh which ignited his rage which was then largely directed at her sister. It was this feeling of responsibility and her pity for her sister which prompted her to organise the visa to bring the applicant out of India.
[Ms A] said that the applicant was in a very bad way when she arrived in Australia as a result of the violence and rage which she had suffered at the hands of her brother. After about six months [Ms A] sent the applicant to a psychologist for help but even though she continued to go for some time, the applicant said it did not help much. The Tribunal asked if the sessions were in English to which the applicant agreed and said that they did not have an interpreter. So the applicant stopped going and started meditation sessions to help with her anxiety. Eventually the applicant undertook a course in [subject] and has been working as a certificated [occupation 1] in [a workplace]since 2019. She said she enjoyed the [work]. About three years ago, the applicant was able to move from her sister’s house into her own unit. She has made friends and feels fairly well settled.
Relocation
The Tribunal noted that the applicant had tertiary educational qualifications from India. She said she had completed a degree but it was all done by distance learning: she herself remained at home, not on campus or in student accommodation, because her parents preferred it. She only went to the campus in order to sit for final examinations. The Tribunal put it to her that with her Indian degree and now with experience in a workplace, she could move to a city in India such as Delhi, the closest to her home, find a job and start her life away from her brother.
The applicant replied that her brother travels frequently in his [job] and would have many contacts in different places, not least because she suspects that he supplies drugs to people. She said the family had relatives in Delhi and her whereabouts may become known. She said that she was frightened at the thought of living in Delhi as she had read press stories about how unsafe it was for single women on their own.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
On the basis of her passport and the testimony and language spoken at the hearing, the Tribunal finds that the applicant is a national of India and that India is the receiving country in this case.
The Tribunal accepts the facts of the applicant’s story as set out above, noting that she has been consistent at all stages of her protection visa application process, and that her story has been corroborated by her sister and by the evidence of the letters from her neighbours in India.
The Tribunal accepts that the applicant has been the victim of ongoing violence at the hands of her only brother; that her parents were also victims but to a lesser extent and were not able to protect her; and that the local police were unwilling or unable to protect her as they regarded the incidents as something which should be settled within the family.
The Tribunal accepts that the violence was precipitated by the surprise wedding in early 2016 of the eldest sister [Ms A] (normally resident in Australia) to a man not chosen by her family and, most significantly, of a different religion. The brother, unlike his parents, refused to accept the situation and found it an affront to the family honour: to his honour, as he had by this stage devalued his father. As [Ms A] and her husband left immediately after the small ceremony, the brother’s rage fell on the applicant. She was the youngest of [number] sisters and the only unmarried one: she lived at home with her parents, in the same house where the brother resided. The brother was raging about women who decided what they wanted to do instead of following the family directions. He intended to prevent his last unmarried sister (the applicant) from exercising any sort of free will. The brother was further enraged because the applicant (backed by her parents) refused to marry the men whom her brother selected for her. He was also enraged by the fact that the applicant, as an unmarried daughter, would benefit from Indian property laws allowing a portion of the father’s estate to go to her for her upkeep. If the applicant refused to marry then she would benefit from this provision, taking a part of the estate that would otherwise go to the brother as the sole male heir.
The Tribunal is satisfied that the applicant was being harmed because she was a member of a particular social group comprised of single unmarried women in India. The brother’s hatred of women having any sort of power – whether marrying of their own volition or inheriting (even though that was the law rather than their own choice) – was anathema to him. It was also an attitude widely supported in the traditional Punjabi Hindu society of which he was part.
A ‘particular social group’ is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element, the element must unite them, making those who share it a cognisable group within their society.[1] Australian refugee law has long recognised women as a particular social group. The Tribunal notes that DFAT specifically recognises ‘single women’ in India as a cognisable and recognisable group when it reports that:
Being (and remaining) a single woman in India is difficult and relatively uncommon. Marriage is a central feature of social lives and, without a husband, social access is difficult. Sources told DFAT that it is difficult for single people (men or women) to rent accommodation, even in large cities. The difficulty is worse in rural areas. A woman who is uninterested in marriage would likely come under significant pressure from her family to marry, usually to a husband of her parent’s choosing, which may be for cultural reasons or out of concern for their daughter’s welfare. (para. 3.132)
…Indian society can be very traditional and can be hostile to the unmarried, whether they are single because of divorce or because of widowhood. Single women can experience stigma and stereotypes, for example perceptions of being ‘choosy, morally loose, or headstrong’. (para. 3.135). [2]
[1] Applicant A v MIEA (1997) 190 CLR 225 at 241, 264-266, 286.
[2] DFAT, Country Information Report: India, 29 September 2023, paragraphs as marked.
The Tribunal is satisfied that ‘single unmarried women in India’ is a particular social group falling within s 5L of the Act. It is further satisfied that the applicant suffered harm for reason of her membership of that particular social group. The applicant was constantly harmed by her brother because she was a member of a group whom the brother believed brought shame on families; a member of a group who would not do – or had the potential not to do – what they were told in order to keep the ‘proper order’ of things.

The Tribunal finds that the harm the applicant suffered – beatings on an almost daily basis for a year until she and her parents moved; beatings of a severity that she was knocked down, bleeding profusely; the imprisonment within the house under threats of having her legs broken – constitutes serious harm amounting to persecution.
The Tribunal also accepts that the applicant’s family went once to the local police station to lay a complaint against the brother for beating the applicant. The police felt that it was a matter that should be settled internally in the home by the family. This attitude is not uncommon according to DFAT:
Violence against women is a significant problem in India and state protection is often inadequate. Sources told DFAT that police commonly refuse to register cases or investigate claims of violence, including violence that results in grievous bodily harm or death.[3]
[3] DFAT, op.cit., para. 3.131
The Tribunal notes that India has enacted legislation to provide protection for female victims of any kind of violence occurring within the family (Protection of Women from Domestic Violence Act 2005) and established some women’s police desks and even women’s police stations. However, “Indian police forces have few women members (about 10% of officers), which likely deters women from reporting crimes, given the conservative and sex-segregated nature of Indian society”. [4] Both the applicant and the witness testified that there were no women police at the local police station where the applicant lived.
[4] DFAT, op.cit., para 5.5.
The Tribunal finds that the applicant has suffered serious harm amounting to persecution for the essential and significant reason of her membership of a particular social group and that there was no effective state protection. This has happened to the applicant in the past and the Tribunal must consider if there is a real chance that serious harm will befall her in the reasonably foreseeable future if she were to return to India.
The applicant’s position has not changed: she is still a single unmarried woman; she is still refusing to marry anyone her brother suggests; and she is still entitled to part of her father’s estate when he dies. That is, she is still embodying all the characteristics that caused her to be the butt of her brother’s anger and violence for reason of her membership of a particular social group. The Tribunal finds that there is a real chance that she will be persecuted in the reasonably foreseeable future if she were to return to India for one of the reasons set out in the Act.
In considering the matter of State protection, the Tribunal has used current information rather than information dated from 2016 when the family went to the police station. That is, the information about the inadequacy of state protection cited above is current. There are no claims, nor does the evidence suggest, that major changes are underway to ameliorate the situation quickly. Hence it is reasonable to assume that the inadequacy of state protection for women will still be a problem in the reasonably foreseeable future.
The Tribunal must now consider whether there is a part of India to which the applicant could return and not face a real risk of persecution. Her home is in the Punjab and this is the only place in India where she has ever lived. The Tribunal notes that the applicant is now [Age] years old and has only lived alone for the last three years: she lived for the first [Number] years with her family (finally consisting of her parents and her brother and sister-in-law as the other sisters married and moved out); then she lived for four years with her sister’s nuclear family in Australia. She still lives close to her sister but has been empowered to live alone by feelings of safety – being far away from the abusive brother – and by having a job for the first time in her life. These factors could not be replicated in India. Her brother still monitors the house where her parents live with one of their daughters and sons-in-law. If the applicant was to avoid him – the persecutor – she would have to live a long way from her family members, somewhere she could be anonymous such as big city like Delhi.
The applicant fears her brother and noted that if she moved, the brother could find her and harm her. She would have to stay anonymous – not visiting her family members or having them visit her. This would be very difficult.
The applicant has never held a job in India, never applied for one. Although she has a degree, it was obtained through distance learning without workplace or practical experience. The degree is in [Subject] and may be somewhat dated by now, given the rapid rate of change [in that industry]. The certificate she has obtained in Australia is in [Subject] and it is in this field that she currently works. [Deleted]. It may not be of great use in the Indian job [market]. The fact that she is working in Australia does not indicate that she will manage to enter the workforce in India.
More broadly, the Tribunal notes information set out above at paragraph 32 on the difficulty, even impossibility, for a single person to rent accommodation even in a big city. The Tribunal also notes information that:
Women can experience sexual harassment and violence in the street … Occurrences of harassment or violence towards women may stem from attitudes that women ‘are asking for it’ because of their clothing or because they are in public unaccompanied by a male family member, for example. (para. 3.118)
Some women report feeling unsafe using public transport to get to work, which can act as an economic barrier, either because of their own fears or because male members of the household will not allow them to go out to work because of fear of violence. (para. 3.119)
A 2020 report by Human Rights Watch informed by interviews with Indian women found that sexual harassment and assault was a daily problem for many women in the workplace … [That report] and others have found that sexual harassment laws were not well-enforced or not well understood either by victims or police. (3.120) [5]
[5] DFAT, op.cit., paras. as marked.
In addition, the Tribunal notes that the applicant is a vulnerable person. The harm she suffered in India caused her sister to enrol her with a psychologist in Australia for therapeutic purposes, even if it was not entirely satisfactory due to language problems. The Tribunal noted that the applicant became tearful and anxious when recounting what her brother did to her, even though it was over seven years ago.
In short, the Tribunal does not find that it is reasonable that the applicant should have to go away from her family members (not counting the abusive brother) for the first time in her life and try and establish herself in a new place, and support herself, in what the independent evidence indicates are difficult if not hostile conditions. It is not reasonable that she should have to relocate, or to try and and change her essential characteristic of being a loving daughter to her parents and cut herself off from contact with them, in order to avoid persecution if she were to return to India.
Conclusion
On all the evidence before it, the Tribunal finds that there is a real chance that serious harm amounting to persecution will befall the applicant in the reasonably foreseeable future if she were to return to India. The essential and significant reason for this harm is the applicant’s membership of a particular social group constituted by single unmarried women in India. The persecutor will be the applicant’s brother and the Tribunal is not satisfied that the state will be willing or able to offer effective protection. The Tribunal does not find that it is reasonable for the applicant to live elsewhere in India away from her family and not in contact with them in order to avoid persecution from her brother.
The Tribunal finds that the applicant has a well-founded fear of persecution within the meaning of s 5J(1). She fulfills the definition of ‘refugee’ as set out in s 5H(1)(a) of the Act.
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 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.
Hearing:   25 February 2025
Representative:  Mr Al Musawi Baker (MARN: 0601647)
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.
…