1932018 (Refugee) - [2025] ARTA 1759

1932018 (REFUGEE) [2025] ARTA 1759 (21 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 1932018
Tribunal:General Member D. Gordon
Date:21 July 2025

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

Statement made on 21 July 2025 at 3:57pm
CATCHWORDS
REFUGEE – protection visa – Nepal – religion – inter-faith marriage in Australia – Hindu married to Buddhist – threats by wife’s family – divorce, domestic violence invention order without admission, criminal charges and family law mediation – mental health and treatment – general economic conditions – earthquake destroyed house – vague claims and no documentary evidence or supporting statements – country information – inter-faith marriages remain uncommon – treaty right to relocate to third country – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), (3), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
ADJ20 v MICMSMA [2021] FCCA 2024
Applicant A v MIEA (1997) 190 CLR 225
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMAC v SZRHU (2013) 215 FCR 35
MIMIA v Lay Lat [2006] FCAFC 61
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 124 ALR 265
Yao-Jing Li v MIMA (1997) 74 FCR 275
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 on 31 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 Nepal, applied for the visa on 11 May 2016.
The delegate refused to grant the visa on the basis that the applicant had the right to enter and reside in a safe third country under s 36(3) of the Act, namely India pursuant to the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal. The delegate also applied the statutory protection criterion with respect to India and found that the applicant would not suffer persecution in India or be refouled by India. Therefore, Australia did not owe protection obligations to the applicant.
The applicant was aggrieved by the decision of the delegate and sought review before the Tribunal.
The applicant appeared before the Tribunal on 25 June 2025 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Nepali and English languages.
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 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 should be affirmed.
COUNTRY OF NATIONALITY
The Tribunal finds the applicant’s identity and nationality are confirmed by their passport and recorded personal particulars.
The Tribunal finds that the applicant is a national of Nepal, which is also their receiving country for the purpose of their protection claims and assessments.
THE PROTECTION VISA APPLICATION BEFORE THE DEPARTMENT
The Tribunal has before it the protection visa application form lodged by the applicant.
The applicant, in their protection visa application form claims as follows:
a.He is a Hindu, and he married a Buddhist, and his in-laws in Nepal were not happy with him marrying their daughter and are threatening to harm him. His mother also was not happy with the marriage; and
b.The earthquake of 25 April 2015 has devastated Nepal including destroying his home and assets and made him homeless and a refugee within Nepal.
THE MERITS REVIEW APPLICATION BEFORE THE TRIBUNAL
The Tribunal has examined the applicant’s merits review application form and the supporting documents on the file.
These materials did not contain any new claims.
The applicant did expand upon his claims for protection at the hearing which is discussed below.
HEARING BEFORE THE TRIBUNAL
The applicant appeared before the Tribunal and gave his evidence as follows.
The applicant stated he was born in Nepal and presently is [Age] years old. He hails from Kathmandu.
He said he has one [sister] and one [brother], both of whom are married and living separately in Nepal. His mother recently passed away in 2025. He does not have a father.
In Nepal, he completed his year 12 studies.
He then came to Australia to study [subject] which he has completed. His last employment was during 2013 to 2014 when he worked as [an occupation].
Presently he is not employed.
He got married in 2012 in Australia.
When he lived with his ex-wife, she worked, and he looked after their child.
He is a Hindu, and his ex-wife is a Buddhist.
He claimed his main reason for seeking protection in Australia was due to his marriage, that people in Nepal got married within their religions.
The Tribunal suggested to the applicant that Hindu and Buddhist marriages were not uncommon in Nepal. The applicant agreed that the times were modern but the culture of marrying within one’s own religion was still prevalent in Nepal. That in practice, people marry within their own religions.
The applicant agreed with the Tribunal’s suggestion that Hindus and Buddhists married without problems, but he said sometimes there were problems.
The applicant said his child was born in 2011.
The applicant stated he recently had gotten divorced in 2025.
The reason for his divorce was that his wife was having an affair. That he was happily married for 15 years but when he found out about the affair, that his wife lodged a domestic violence case against him which resulted in him having to leave the family home.
Presently he had no fixed address, and he stayed with friends. He sometimes got food from the Red Cross.
He was presently involved in a family law mediation to obtain access and contact with his child.
His [child] is an Australian citizen. His ex-wife is not an Australian citizen.
He said that he and his ex-wife are from two different religious backgrounds and their respective families did not accept their relationship.
The applicant said that he managed to convince his mother to accept their relationship.
However, that his ex-wife’s family did not accept their relationship.
That three to four years ago, his ex-wife went to Nepal and when she returned, she was behaving differently.
He said their relationship had been smooth, however 9 to 10 months ago he caught her having an affair and when he tried to reason with her, she lodged a domestic violence case against him.
That in June or July 2024, the police came and arrested him and that her family in Nepal alleges that he committed domestic violence on her.
The applicant stated he was issued with a criminal charge for choking her, however he was not convicted, but the court fined him $1000 for using offensive language towards his ex-wife.
The applicant said that there were photos of him choking his ex-wife which were publicly distributed in Nepal.
The applicant stated that recently his mother had passed away and he had no home or nobody to live with in Nepal.
The Tribunal asked the applicant about whether he could relocate to India based on the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal and the applicant stated he could not as he was suffering from mental illness and presently attending to receiving counselling. That at his present age, he would not be able to restart his life in India. He also stated he could be harmed in India as his ex-wife’s parents could come into India and locate him and harm him.
The Tribunal pointed out that the applicant had proficient English, and he had a [subject] qualification, that he could move to a large city such as Delhi or Mumbai and obtain employment as [an occupation]. The applicant replied by stating he might not have much opportunity if he attempted such a move.
The Tribunal suggested to the applicant that whilst he was in Australia, his ex-wife’s parents did not come to Australia to harm him. He replied that Australia has strict visa controls and proper law so his ex-wife’s parents could not enter Australia and harm him.
The applicant stated there was no one to motivate him or give him advice. He at times felt like he was not sure whether he was living or passing away.
The Tribunal discussed with the applicant that mental health grounds alone may not qualify for protection. The applicant answered ‘ok’ but did not provide a more detailed response.
The Tribunal suggested to the applicant that whilst his ex-wife’s family may not be happy with him and may not like him, that they would not go to the extent of seriously harming him. The applicant disagreed, he said that her brother, sister and father were against him.
The Tribunal discussed police protection in Nepal and the applicant explained that the police would not assist him.
The applicant expressed his desire to remain in Australia as his [child] is in Australia and his struggles with attempting to have contact with his [child] and the family law mediation process.
The applicant was granted time to submit his court documents. He only submitted his Courts Victoria fine statement and a copy of his Domestic Violence Intervention Order. However, he did not submit any initiating court documents such as the family violence application, affidavit, summons to attend, and he did not submit anything concerning his claim of a choking charge against him.
COUNTRY INFORMATION
The Tribunal refers to parts of the Country Information for Nepal which provides relevantly as follows.[1]
[1] DFAT Country Information for Nepal – 1 March 2024.
[3.27] The 2015 Constitution specifies that Nepal is a secular state and guarantees freedom of religion. According to the 2021 Population Census, 81.2 per cent of Nepalis are Hindu, 8.2 per cent are Buddhist, 5 per cent are Muslim and 1.8 per cent are Christian. Syncretic faiths encompassing elements of Hinduism, Buddhism and traditional folk practices are also widespread. Nepal celebrates public holidays for numerous religious faiths, in addition to secular and political anniversaries.
[3.31] While there are no legal barriers to inter-faith marriage, in-country sources told DFAT that inter-faith marriage remained a controversial issue for many families, including Hindu/Christian marriages and Hindu/Muslim marriages. Although Nepali society has generally become more tolerant of religious and caste differences, DFAT understands that such marriages remain uncommon.
[2.4] Nepal is one of the poorest, least developed countries in the world, prone to regular natural disasters, including floods, landslides, and earthquakes. In 2015, a 7.8 magnitude earthquake devastated the country, killing thousands and hampering post-war development. In 2021, floods and landslides killed hundreds and damaged crops and homes. Nepal is also vulnerable to the effects of climate change, which, along with poverty, is a driver of internal and external migration.
[2.8] Nepal is among the poorest and least developed countries in the world. The UNDP’s 2022 Human Development Report ranked Nepal 143rd out of 191 countries. In 2022, GDP per capita was approximately USD 1,300 (AUD 2,000), around half that of India or Bangladesh. It is not uncommon for households to be without tap water, toilets or washing facilities. According to the Nepal Economic Forum, a think tank, more than 90 per cent of Nepalis have access to on- or off-grid electricity. Parts of Nepal are food insecure, especially the western provinces.
[2.14] The 2015 Constitution provides for the freedom to practice any occupation and a right to be employed. Most employment is in the informal sector, and the private and government sectors are small by comparison. According to the Institute for Integrated Development Studies (IIDS, a think tank), the unemployment rate was 11.3 per cent in April 2023.
[2.17] Article 35 of Nepal’s 2015 Constitution guarantees access to basic health services as a fundamental right. Nepal has a variety of public and private health-care facilities. Public facilities include primary health-care centres and district hospitals. Private facilities include formal hospitals, nursing homes, private practitioners (especially at clinics or private pharmacies), private medical colleges, non-governmental organisation or community-run hospitals, and traditional healers, such as Ayurvedic practitioners.
[2.18] Free essential health services are available via primary health care centres and district hospitals, which do not charge fees for registration, outpatient, emergency, and inpatient services, or for essential drugs. Nevertheless, out-of-pocket health expenditure remains high, accounting for more than half of all medical expenses. Families can take out government-provided health insurance for USD 28 per year (AUD 40), however fewer than 20 per cent of people do so. While those aged over 70s and the very poor are entitled to free medication and treatment under the government’s health insurance scheme, complex eligibility rules and corruption can serve as access barriers. Very few people have private health insurance.
[2.25] Trained mental health professionals are scarce in Nepal. There is one psychiatric hospital in Kathmandu and one in Dharan. Limited telephone counselling services exist. Some counselling and referral services are provided through NGOs. Use of psychiatric medication, if available, may not comply with international standards or practice.
[3.73] There are no legal barriers to inter-caste marriage, but it remains taboo for many Nepali families. Inter-caste couples often elope to escape family disapproval.
[3.74] DFAT assesses that caste discrimination remains a significant problem in Nepal, and that Dalits in particular face a moderate risk of societal and official discrimination, including in the education and justice systems, and in daily societal treatment. DFAT assesses that Dalits face a moderate risk of official violence at the hands of police, including beatings and deaths in custody. DFAT assesses that couples who marry outside their own caste face a moderate risk of societal discrimination and, where a Dalit is in a relationship with a higher-caste person, a moderate risk of societal violence in the form of beatings or lynchings. While serious offenders are usually punished, state protection is not always effective.
The following information is relevant with respect to the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal.
[5.22] There is a long history of free and unregulated movement of people between India and Nepal, which dates back to the peace treaty signed after the 1814 Anglo-Nepal war. India and Nepal agreed their Treaty of Peace and Friendship in 1950 (the Treaty), which remains in force. The 1950 treaty allows free movement and the ability for Nepalis to own property and reside in India and conduct business freely.
[5.23] Nepali citizens entering Nepal do not require a passport or visa to enter, but they must prove their Nepali citizenship, which can be done with a passport, citizenship certificate, voter identity card or other identity card issued by a Nepali consular mission abroad. Children travelling with their parents who have those documents need a photo ID issued by their school principal.
[5.24] Large numbers of Nepalis travel to India every day. Many Nepalis enter India by air; there are regular daily flights between Kathmandu and major Indian cities. The land border between India and Nepal is long and readily accessible and many people cross it every day. Many people use formal border crossings, however these are not always staffed by immigration officers and may be in poor condition.
[5.25] Many Nepali live and work in both the formal and informal sectors in India, including a substantial community in New Delhi. It is impossible to calculate overall numbers because of the large and regular movement of Nepalis into India. Nepali citizens in India are not required to register their presence in India with the Government of India.
In April 2021, it was reported that despite political interference and delays due to the COVID-19 pandemic, of the 858,000 homes destroyed in the earthquake, 69 per cent had been fully rebuilt and three quarters of families had received all three instalments of housing grants of Rs300,000. Of the 7,553 schools destroyed by the earthquake, 6,085 had been rebuilt and 1,300 were under construction. Seventy percent of the 544 health posts and hospitals had been rebuilt, and more than half of the 920 monuments and temples that went down had been rebuilt.[2]
[2] 'Remaking of Nepal', Kumar, R, Nepali Times, 23 April 2021, 20210426130846; See also: 'Nepal strives to leave no one behind in earthquake reconstruction', Nepali, S, world bank blogs, 25 April 2021, 20210426133426.

As the right to enter third country considerations arise, the Tribunal also has had regard for relevant country information from India.[3]
[3] DFAT report for India – 2024.
[3.9] According to 2011 census data (the most recent available), almost 80 per cent (more than 1 billion people) of the population of India is Hindu.
[3.64] Buddhists are a small minority in India; India is the birthplace of Buddhism and Buddhism has had a significant impact on the country’s history and culture. Today, many Buddhists are converts from Hinduism and are often low caste; they have converted to escape from perceived caste discrimination. Buddhists are not a majority in any state, but form a significant minority in Sikkim and have some presence in Arunachal Pradesh and, to a lesser extent, Mizoram and Maharashtra. There are also tens of thousands of Tibetan Buddhists in India.
[2.7] India’s 1.4 billion people are ethnically and linguistically diverse. According to the CIA World Factbook, more than 85 per cent of the population is aged 54 years or younger, with a median age of under 29 years. About 36 per cent of the population lives in urban areas. India’s main cities are very large, with 32 million people living in New Delhi and more than 20 million in Mumbai. Several other cities have a population above 10 million.
[2.8] English is widely spoken in India, especially among the upper classes, and is the native language of some Indians. English speakers are found throughout the country, both in the large cities and in less densely populated areas.
[2.10] The World Bank classifies India as a lower-middle income country. Nevertheless, in late 2022, India’s economy became the world’s fifth largest, and its real GDP growth trajectory is projected to exceed 6 per cent in the 2023/24 financial year.
[2.15] Health services are the responsibility of the states and public health services, and quality and services vary between states. Broadly speaking, richer states (for example southern states such as Kerala) and large wealthy cities (such as Delhi, Kolkata and Mumbai) have better services available while less developed states and cities have less advanced services available. World-class facilities in cities cater to the upper class. In rural areas, health care is delivered in public health centres or community health centres, with more complex cases referred to district and sub-district hospitals or tertiary or specialty facilities in cities.
[2.27] DFAT assesses that people living with mental illness and/or neurodiversity face a low risk of official discrimination, except to the extent that they may not be able to access appropriate healthcare. This is true of many Indians with various medical issues, as outlined in the section on healthcare. Indians living with mental illness and/or neurodiversity face a moderate risk of societal discrimination.
[2.33] As with many countries, the labour market was badly affected by the disruptions of the COVID-19 pandemic. Markets have recovered and jobs are widely available, however the nature and quality of those jobs varies, which reflects the diverse nature of the informal sector rather than COVID-19 disruptions.
FINDINGS ON THE EVIDENCE
The Tribunal makes the following findings of fact on the material and evidence before it.
The applicant is from Nepal.
The applicant’s mother has passed away and two adult siblings are presently in Nepal.
The applicant is a Hindu.
The applicant has an Australian [subject] qualification at the diploma level.
The applicant has work experience as [an occupation].
The applicant’s ex-wife is a Buddhist.
The applicant married in 2012 in Australia.
The applicant’s late mother had accepted his prior relationship with his ex-wife.
The applicant divorced in 2025.
The applicant and his ex-wife have a child.
The applicant’s ex-wife and child are both in Australia.
The applicant was involved in a domestic violence matter with his ex-wife where he was the respondent and his ex-wife was the protected person along with his [child], and a domestic violence intervention order without admission and by consent was made against him in the Melbourne Magistrates Court.
The applicant is presently engaged in family law mediation to have visitation, contact and access to his child.
The applicant’s ex-wife and her family in Nepal would not be on friendly terms with the applicant.
Nepal did suffer a serious earthquake in 2015.

100. The applicant is able to enter, work and reside in India pursuant to the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal.
APPLICABLE LEGAL PRINCIPLES IN PROTECTION ASSESSMENT
101. The Tribunal sets out the applicable legal principles in assessing protection claims.
102. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out, per MIEA v Guo & Anor.[4]
[4] (1997) 191 CLR 559 at 596.
103. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the decision maker to establish the relevant facts, per Yao-Jing Li v MIMA.[5]
[5] (1997) 74 FCR 275 at 288.
104. A decision maker is not required to make the applicant’s case for him or her, per Prasad v MIEA.[6]
[6] (1985) 6 FCR 155 at 169-70.
105. It is for an applicant to provide evidence and arguments in sufficient detail to enable the decision maker to establish the relevant facts, per Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat.[7]
[7] [2006] FCAFC 61 at [76].
106. The Tribunal is not required to accept uncritically any and all claims made by an applicant, per Randhawa v MIEA.[8]
[8] (1994) 124 ALR 265 at [278].
ANALYSIS
Fear of harm from 2015 Nepal earthquake
107. The 2015 Nepal earthquake was a devasting event. It was heavily publicised on media and is also supported by country information. The Tribunal accepts that the 2015 Nepal earthquake occurred and resulted in significant loss of lives and infrastructure.
108. However, it ought to also be noted that 10 years have now passed since the 2015 Nepal earthquake.
109. There was no evidence or information given to the Tribunal that suggested that the applicant’s family were seriously injured during the 2015 Nepal earthquake.
110. Country information suggests that Nepal has over the ensuing years undertaken significant infrastructure construction.
111. The Tribunal refers to the applicant’s evidence that his home was destroyed during the earthquake. However, he did not provide any evidence of this such as pictures or a letter from the local authority. He did not provide any evidence or information as to whether his home had been rebuilt or the present status of his home in Nepal.
112. In Applicant A v Minister for Immigration and Ethnic Affairs it was held that the general economic climate of a country does not engage Australia’s protection obligations.[9]
[9] (1997) 190 CLR 225 at 248, 257-258.
113. Generic claims about the condition of a nation, its economy and ability to secure employment do not fall within the definition and concept of serious harm under s 5J(5) of the Act.
114. Furthermore, the condition of the nation, its economy and ability to secure employment would be circumstances affecting the population generally and not specific or targeted to the applicant.
115. The applicant is presently [Age] years of age. He is educated and has an Australian diploma in [subject]. He has Australian work experience as [an occupation]. He would be able to use these skills back in Nepal.
116. The applicant’s two adult siblings are presently living in Nepal. There was no evidence that his two siblings would not assist or provide some familial support if he were to return to Nepal.
117. There was no evidence whether by sworn statements or provision of audio-video evidence by his two adult siblings that might suggest that Nepal was uninhabitable or that the applicant would suffer harm if he returned to Nepal due to the living conditions.
118. There was no evidence or information placed before the Tribunal to suggest that the applicant would be internally displaced or become a refugee within Nepal due to the earthquake as claimed by him.
119. Whilst accepting that the applicant would have some mental health concerns and is seeking counselling, the applicant did not supply any medical reports providing further details. The country information suggests that the applicant would be able to obtain medical treatment in Nepal if he needed it.
120. Country information suggests that Nepal is on the road to recovery from the 2015 earthquake and there was no information to suggest that Nepal was uninhabitable or in such a state of disaster that it would be a danger to the applicant’s life or ability to subsist if he were to return there.
121. The Tribunal does not accept that the 2015 Nepal earthquake itself, its aftermath or the present and reasonably foreseeable future of Nepal poses serious or significant harm to the applicant if he were to return.
122. In the alternative and separately, if the applicant did not wish to return to Nepal or remain in Nepal, he has a right under the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal to enter and reside in India. There was no evidence to suggest he would be unwelcome in India, or that India would remove him to persecution elsewhere, or that he would be persecuted in India. He is [Age] years of age, speaks English well, is a Hindu and is qualified and experienced in [work sector]. He would be able to locate to a large urban city such as Delhi or Mumbai and live without suffering persecution. This issue is analysed in detail further below.
Fear of harm from ex-wife’s family in Nepal
123. The Tribunal accepts that the applicant and his ex-wife are no longer together. They have divorced in 2025, and furthermore domestic violence proceedings were commenced in the Melbourne Magistrates Court with the applicant agreeing without admission to consent orders. His evidence also suggested there are disputes about his visitation, contact and access to his [child] presently being attended to by the family law mediation process. His [child] was also named as a protected person in the domestic violence consent orders.
124. In such a situation as described immediately above, the Tribunal accepts that his ex-wife’s family in Nepal would not be friendly to him and would not want to deal with him or extend him any courtesy. They would be upset and support their daughter. They would even blame him or accuse him of committing domestic violence or of the matters arising out of the intervention order proceedings in the Melbourne Magistrates Court.
125. However, the Tribunal does not accept that his ex-wife’s family in Nepal would cause him serious or significant harm as discussed below.
126. The harm feared can be construed as follows.
127. Firstly, the harm feared on account of their inter-faith marriage as the applicant is a Hindu and his ex-wife is a Buddhist. However, they are now divorced and according to the applicant, his ex-wife is having an affair. If there was family objection to their marriage, that has ended with their marriage ending and his wife being in a new relationship.
128. Secondly, her family may want to harm him for his actual, alleged or imputation of conduct arising from the family violence allegations and consent order made against him. However, an examination of the family violence final order shows that it was entered by consent and without admission by the applicant. There were no findings or other criminal charges proved against him.
129. Whilst the applicant gave evidence that his ex-wife’s family in Nepal alleged that he committed domestic violence on her, he was not able to give any further information or evidence as to the particulars of this allegation or how it was conveyed to him or who in her family made these allegations or how he became aware of it.
130. The applicant also gave evidence that his ex-wife’s brother, sister and father were against him. However, he did not give any further evidence or information as to this claim. He did not explain or provide any further details as to how they were against him or the circumstances in which he became aware they were against him.
131. Neither did the applicant supply the initiating material, summons, charge or other documents for the family violence mater or his claimed charge of choking. He was given time after the hearing to provide the court papers. He did not provide these. He would have been served these papers as part of the court process. He could have also obtained copies from the court or sought more time to obtain them. The Tribunal draws an inference that these papers would not have assisted him and hence he did not supply them to the Tribunal.
132. There was no evidence from his adult brother and sister who are currently in Nepal to support such fears. No sworn statement or the giving of evidence by audio-video means has been engaged to place their evidence before the Tribunal. The Tribunal is of the view that no such evidence exists suggesting the ex-wife’s family poses such a serious or significant harm or threat. Hence his siblings were not called to give evidence or provide a statement.
133. There was no evidence of any threats made to the applicant such as by text message, phone call, verbal or other means of communication. The applicant could provide no evidence of any threats being made to him. He could provide no specific details such as a conversation or a phone call or the gist of any conversation or threat to him. The Tribunal does not accept that there have been any past threats of serious or significant harm to him by his ex-wife’s family.
134. The ex-wife’s family is Buddhist. The applicant is Hindu. In Nepal, the Buddhists are the minority compared to Hindus. If there was any marriage discrimination, it would have been against the ex-wife and her family. It is difficult to imagine them harming the applicant who is from the Hindu majority. However, as fair consideration, turning to the possibility of considering such a threat, the applicant was not able to provide any details or past events and his evidence regarding threats of harm from his ex-wife’s family was vague and without any meaningful detail. He gave no information of any specific threats or who made any threats to him.
135. Furthermore, the applicant is the father of their child. It is difficult to accept without more why his ex-wife’s family would seriously harm or kill the father of their grandchild.
136. The applicant stated that photos of him choking his ex-wife have been publicly distributed in Nepal. However, he does not provide a copy of this photo or provide any evidence of such public distribution in Nepal. The Tribunal does not accept this portion of his evidence. It lacks credibility.
137. Notably this alleged photograph of him choking his ex-wife stands in contradiction to his claim that the choking charge in court did not proceed further and he only received a fine for using offensive language towards his ex-wife.
138. Whilst accepting that his ex-wife’s family in Nepal did not approve of the prior marriage, and may blame him for the domestic violence proceedings in Australia, and would not want anything to do with him, there was no evidence or information to suggest to the Tribunal of a real chance of serious harm or a real risk of significant harm upon his return to Nepal.
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.

140. 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.[10]
[10] (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.

142. 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.
143. The Tribunal refers to the analysis undertaken above.
144. The Tribunal refers to the above analysis of the 2015 Nepal earthquake claim. The earthquake occurred 10 years ago, and country information suggested that Nepal has undertaken infrastructure rebuild and there was no information to suggest that Nepal was still a disaster zone or suffering from humanitarian impacts that would make return or life in Nepal harmful to the applicant.
145. In the context of the 2015 earthquake aftermath, the applicant’s two adult siblings are presently living in Nepal. There was no assistive evidence from his adult siblings that the applicant would not be able to subsist or live in Nepal on account of the earthquake or its aftermath.
146. Furthermore, the earthquake or its aftermath would be applicable to the population of Nepal generally and not targeted to the applicant specifically.
147. An earthquake is a natural disaster and without more does not suggest that persons or entities are seeking to harm the applicant.
148. The Tribunal is not satisfied that the 2015 Nepal earthquake or its aftermath would result in the applicant suffering a real chance of serious harm if he returns to Nepal.
149. The Tribunal refers to the above analysis of the harm from the applicant’s ex-wife’s family in Nepal.
150. The applicant gave no evidence of suffering past harm from his ex-wife’s family in Nepal. His claim was vague without any details.
151. The applicant gave very limited, vague and brief evidence that his ex-wife’s family claimed he committed domestic violence on her and that her family were against him. However, these claims by the applicant were lacking in any meaningful detail or particulars. They were bare claims made by the applicant. The Tribunal does not accept these claims.
152. The applicant did not call assistive evidence from his adult siblings who are back in Nepal as to whether his ex-wife’s family posed a real chance of serious harm to him.
153. Whilst accepting that his ex-wife’s family did not approve of their marriage, that marriage is now over. His ex-wife also is in another relationship.

154. Whilst accepting that his ex-wife’s family would blame him for actually or impute upon him that he committed family violence, the family violence order was made by consent and without admission. No evidence has been placed before the Tribunal that an alleged picture of him choking his ex-wife has been circulated in Nepal and the Tribunal does not accept this. The applicant, despite being given an opportunity, did not supply the initiating court papers of the family violence matter to the Tribunal.
155. Whilst accepting that his ex-wife’s family in Nepal did not approve of the prior marriage, and may blame him for the domestic violence proceedings in Australia, and would not want anything to do with him, the Tribunal does not accept that there is a real chance they would seriously harm him.
156. Notably the evidence was that the ex-wife was having an affair. The applicant and his ex-wife also have a [child] together. These two facts further reduce the likelihood of his ex-wife’s family blaming the applicant or seeking to cause him serious harm.
157. The evidence and material before the Tribunal did not suggest that there is a real chance the applicant would suffer serious harm if he returned to Nepal from his ex-wife’s family.
158. For the avoidance of doubt, the Tribunal has considered each claim separately and cumulatively including considering whether there are any applicable or relevant integers but is not able to find in favour of the applicant.
159. Neither the earthquake nor the ex-wife’s family pose a real chance of serious harm to the applicant.
160. The Tribunal is not satisfied that there is a real chance that the applicant would be seriously harmed if returned to Nepal.
161. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution due to fearing harm in Nepal.
Conclusion on refugee criterion assessment
162. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

As the applicant has not met the criterion to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act.

164. Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to her country of nationality, there is a real risk she will suffer significant harm.
165. Section 36(2A) of the Act exhaustively defines that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.
166. In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[11]
[11] [2013] FCAFC 33 at [246].
167. The Tribunal refers to the above factual findings in the assessment of the real chance of serious harm in the refugee criterion and relies on it.[12]
[12] The test for real risk of significant harm in assessing complementary protection is the same as the test for real chance of serious harm in assessing the refugee criterion per Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33 [243]-[246].
168. In ADJ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the Court stated:
Prior factual findings by reference to the criterion in s 36(2)(a) (the refugee criterion) may be germane to an assessment of an applicant’s claims to fear persecution under s 36(2)(aa) (the complementary protection criterion). There is, in such scenario, no need for any separate consideration of these same factual matters in relation to the complementary protection criterion.[13]
[13] [2021] FCCA 2024 at [34].

169. For the same reasons as set out in the above analysis and refugee criterion assessment and adopted here, the applicant’s claims do not engage Australia’s complementary protection obligations.
170. Generic claims about the condition of the nation such as the earthquake in Nepal do not fall within the definition and concept of significant harm under s 36(2A) of the Act.
171. Furthermore, the general condition of a nation would be circumstances affecting the population generally and not specific or targeted to the applicant.
172. The Tribunal does not accept that the 2015 Nepal earthquake and its aftermath pose a real risk of significant harm to the applicant.
173. The Tribunal has also had regard to the applicant’s mental health claim however Nepal has medical treatment available for its citizens. The applicant did not provide any medical reports to provide further details about his mental health. There was no information or evidence that any entity or person would deny the applicant medical treatment in Nepal. The Tribunal does not accept that the applicant would suffer a real risk of significant harm due to lack of medical treatment in Nepal.
174. The Tribunal does not accept that the applicant’s ex-wife’s family in Nepal pose a real risk of significant harm to the applicant. There was no evidence of any past harm. No evidence was called from his two adult siblings in Nepal on this claim. The applicant could give no evidence or information giving details and particulars of any threats made to him. His claim was vague. Despite being granted time after the hearing, he did not supply the initiating material for the family violence case or the choking matter.
175. The applicant gave very limited, vague and brief evidence that his ex-wife’s family claimed he committed domestic violence on her and that her family were against him. However, these claims by the applicant were lacking in any meaningful detail or particulars. He did not provide a copy of the alleged photograph of him choking his wife which he claims is publicly circulating in Nepal or place any other evidence of public circulation. They were bare claims made by the applicant. The Tribunal does not accept these claims.
176. Whilst accepting that his ex-wife’s family in Nepal did not approve of the prior marriage, and may blame him for the domestic violence proceedings in Australia, and would not want anything to do with him, the Tribunal does not accept that they pose a real risk of significant harm to the applicant.
177. The Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of him being removed from Australia to Nepal.
178. The Tribunal finds that the claims do not amount to a real risk of suffering significant harm if he is removed to Nepal either now or in the reasonably foreseeable future.
179. The Tribunal is not satisfied that there is a real risk the applicant will suffer significant harm in Nepal.
Other claims
180. No other claims or evidence or information were put forward by the applicant.
181. No other claims arose on the material before the Tribunal.
182. For the avoidance of doubt, the Tribunal has considered each claim separately and cumulatively including considering whether there are any applicable or relevant integers but is not able to find in favour of the applicant.
Conclusion on complementary criterion assessment
183. The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act.
RIGHT TO RESIDE IN ANOTHER COUNTRY
184. It follows on that the safe third country provisions pursuant to s 36(3) of the Act between India and Nepal which may arise in such determinations have also not been engaged as the Tribunal does not accept the applicant’s claims amount to a real chance of serious harm or a real risk of significant harm under the Act.
185. The Tribunal has found that the applicant would be able to return to Nepal and there would not be a real chance of serious harm or real risk of significant harm to him.
186. Whilst the Tribunal has found that the applicant does not meet the refugee criterion and the complementary criterion and therefore Australia does not owe him protection obligations, the Tribunal has also gone on to separately consider the safe third country provisions in s 36(3) of the Act.
187. An analysis of the safe third country provisions in s 36(3) of the Act independently shows that Australia does not owe protection obligation to the applicant.
188. The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35 has held that the term ‘right’ in s 36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.

In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully given to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s 36(3) does not apply because of the operation of s 36(4), (5) or (5A) of the Act.

190. The applicant is a national of Nepal.
191. Nepal has a treaty with India referred to as the Treaty Of Peace And Friendship Between The Government Of India And The Government Of Nepal entered into on 31 July 1950 (the treaty).
192. The full text of the treaty is available at the website for the Government of India, Ministry of External Affairs and a link is produced in the footnote here.[14] Relevantly, Articles 6 and 7 of the treaty permit the entry of nationals from each country into the other and provide for enjoyment of reciprocal rights including residence and work.
[14]
193. The Tribunal raised the treaty with the applicant and discussed whether he could locate to India to avoid his claimed fear of harm.
194. The applicant stated he could not as he was suffering from mental illness and presently attending to receiving counselling. That at his present age, he would not be able to restart his life in India. He also stated he could be harmed in India as his ex-wife’s parents could come into India and locate him and harm him.
195. The Tribunal pointed out that the applicant had proficient English, and he had an Australian hospitality qualification, that he could move to a large city such as Delhi or Mumbai and obtain employment as [an occupation]. The applicant replied by stating he might not have much opportunity if he attempted such a move.
196. The Tribunal has considered whether his ex-wife’s parents could locate the applicant in India and harm him. There was no evidence to suggest that the ex-wife’s family would make the journey into India to locate the applicant. There was no evidence of past harm. There was no information before the Tribunal that would suggest to the Tribunal that the ex-wife’s family would seek to cross over into India and attempt to locate the applicant, and if found, that they would harm the applicant. The Tribunal does not accept this claim.
197. Areas such as Delhi and Mumbai are large cities, and the applicant would be able to blend in and go about his daily life. It is difficult to believe that his ex-wife’s family would make such an effort to make a journey into India and to unknown cities such as large ones of the density of Delhi or Mumbai to locate him and harm him. The Tribunal does not accept this response.
198. Importantly, there was no evidence or information to suggest that the ex-wife’s family had any ill-will or harmful intentions against the applicant. The applicant’s adult brother and sister are in Nepal and there was no evidence from either of them to suggest that such fears would rise to a level of a real chance or real risk of harm to the applicant. The applicant could provide no evidence of threats made to him or matters such as a text message or a phone call conversation or other information which might suggest that his ex-wife’s family sought to harm him.
199. The applicant gave very limited, vague and brief evidence that his ex-wife’s family claimed he committed domestic violence on her and that her family were against him. However, these claims by the applicant were lacking in any meaningful detail or particulars. They were bare claims made by the applicant. The Tribunal does not accept these claims.
200. Whilst accepting that his ex-wife’s family in Nepal did not approve of the prior marriage, and may blame him for the domestic violence proceedings in Australia, and would not want anything to do with him, the Tribunal does not accept that they would enter India and locate him or seek to harm him if they did manage to locate him.
201. There is no evidence that the Government of India would remove the applicant back to Nepal or to any other country where he might be exposed to persecution. Country information did not suggest this. There is no evidence that the applicant would be exposed to a threat or risk of harm or persecution in India.
202. The applicant was concerned about his mental health and counselling. However, under the treaty the applicant would be entitled to access medical services in India. There was no information or medical reports put before the Tribunal to suggest that the applicant was suffering from a serious medical or mental health condition that would make his removal from Australia or his relocation to India untenable or impracticable in the reasonably foreseeable future.
203. Notably, the applicant is a [Age]-year-old male Hindu. He has an Australian [subject] qualification. He has prior work experience as [an occupation]. His English was proficient. The Tribunal finds that these particular attributes would assist the applicant in moving to and settling into life in India.
204. Whilst accepting that the applicant would have to go through some administrative burdens such as ensuring his Nepal passport is valid for travel, and travelling to India, and also of settling in and finding employment and accommodation, these inconveniences are not so impracticable or burdensome so as to make such a relocation to India untenable.
205. There was no evidence or information to suggest a real chance that the applicant would be persecuted in India on account of his race, religion, nationality, particular social group or political opinion.
206. There was no evidence or information to suggest that the applicant would be persecuted in India for any other matter such that he would be exposed to a real risk of suffering significant harm such as death, torture or other cruel or inhumane treatment or other fundamental breach of his human rights as protected in international law and asylum discourse.

The Tribunal finds that the applicant has a right to enter and reside in India and has not taken all possible steps to avail himself of that right. Furthermore, the Tribunal finds that the applicant does not have a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion in India and that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s 36(3), there would be a real risk of the applicant suffering significant harm in India. The Tribunal further finds that the applicant does not have a well-founded fear of being returned from that country to a country where he has a well-founded fear of being persecuted. Nor does the applicant have a well-founded fear of being returned by India to a country where there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant availing himself of the right in s 36(3), there would be a real risk of the applicant suffering significant harm.

208. Accordingly, Australia is also taken not to have protection obligations in respect of the applicant pursuant to s 36(3) of the Act.
CONCLUSION
209. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s 36(2) of the Act.

212. The Tribunal also finds that Australia does not owe protection obligations to the applicant pursuant to s 36(3) of the Act.
DECISION
213. The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 25 June 2025
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.
…