2002748 (Refugee) - [2025] ARTA 693

2002748 (REFUGEE) [2025] ARTA 693 (13 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2002748

Tribunal:General Member T Ellison
Date:13 January 2025

Place:Adelaide
Decision:The Tribunal affirms the decisions under review.

General Member T Ellison
Statement made on 13 January 2025 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from business investors – fraudulent business – get rich quick scheme – fear of physical assault – fear of killing – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
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 decisions made by a delegate of the Minister for Home Affairs on 11 February 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for review to the Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decisions by the Tribunal.
The applicants, who are nationals of Malaysia, applied for the visas on 25 October 2018. The delegate refused to grant the visas on the basis that their fear of harm from threats of investors in a multi-level marketing company did not relate to any of the reasons in s 5J(1)(a) of the Act and they could obtain, from an authority of the country, protection such that there would not be a real risk that they would suffer significant harm under s 36(2B)(b) of the Act.
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
For the following reasons, I have concluded that the decisions under review should be affirmed.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicants background
The first applicant is [an age]-year-old male born in [Town 1], Malacca, Malaysia. The second applicant is [an age]-year-old female born in [Town 2], Pahang, Malaysia. They married [in] May 2015. The applicants arrived in Australia [in] August 2018 as the holders of visitor visas.
Both applicants are nationals of Malaysia, which is their ‘receiving country’ as that term is used in the Act.
Evidence before the Department
The first applicant claimed in his protection visa application that he was caught in a ‘rich quick scheme’. He said after listening to a talk from a company, he brought ten people under him to join the program. He said those people were satisfied and agreed to join the membership and paid RM[amount] per person. He said the company promised to profit within 3 weeks, but a week later the company went viral on social media and the company was found to be a fraud and was blacklisted. The first applicant said the people he brought were angry and asked for return of their money which totalled around RM[amount]. The first applicant said the people threatened him and his wife at their workplace and house, and so he travelled to Australia to take time to ease the situation.
The second applicant claimed in her protection visa application that she was following her husband because of a problem that disturbed their lives Malaysia with a multi-level marketing program. She said they were harassed, threatened and humiliated in their workplace. She said her husband explained that the problem was not from them but with the company that offered the package and benefit. The second applicant said she is experiencing stress and depression, and they took steps to leave Malaysia and build a new life.
Each applicant provided a copy of the biodata page of their Malaysian passports.
They were not invited to interview with the Department.
Evidence before the Tribunal
On 13 February 2020, the applicants filed the present application for review with the AAT.
On 4 November 2024, the second applicant wrote to the Tribunal advising that the applicants had become divorced and the first applicant returned to Malaysia in 2023.
On 2 December 2024, the second applicant provided a copy of a summons relating to the applicants’ divorce, requiring her or a lawyer to appear in person before the Shariah court in Kuala Lumpur on [a day in] July 2023 to ascertain whether the second applicant’s pronouncement of divorce was valid. The summons recorded that the first applicant was residing in Kuala Lumpur. The second applicant also advised that there was a slight correction to her protection claim being that the applicants were threatened because their leader ran away with the money not because of the company issues.
A search of records held by the Department shows that the first applicant is currently outside Australia, having departed [in] January 2023 and does not hold a visa that enables him to return to Australia. On 4 December 2024, the Tribunal wrote to the first applicant under s 359A of the Act putting that information to him and inviting the first applicant to comment on it. On 17 December 2024 the first applicant provided a response confirming that he departed Australia [in] January 2023 without providing any further comment.
The second applicant appeared before the Tribunal on 9 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The first applicant did not appear. I have proceeded to make a decision in relation to him without a hearing under ss 106(1) and (5) of the Administrative Review Tribunal Act 2024 (Cth).
At the hearing I put to the second applicant that I had material on the Department file alleging that the first applicant assaulted someone whilst in Australia, and that the applicants had come here after having problems in their country and made false statements. I told the second applicant that I did not consider this information was relevant and did not propose placing any weight on it, because based on the information before the Tribunal the assault allegation was not proven and the allegation that the applicants made false statements provided no reasons. I invited the second applicant to comment on the information. The second applicant said the allegation of assault is correct, that the first applicant had an argument with a friend who assisted them with their visa application, the friend threatened to make their life difficult, so the first applicant punched the friend. Having considered the second applicant’s response, I remain of the view that the alleged assault and allegation of false statements is not relevant to the review and I have given this evidence no weight.
Analysis, reasons and findings
Second applicant
At the hearing, the second applicant explained that the first applicant returned to Malaysia in January 2023. She said they argued and he left her. She said they are now officially divorced. As I explained to the second applicant, based on her evidence, she is not a member of the same family unit as the first applicant under ss 36(2)(b) and (c) of the Act, but I would consider any claims she made against the refugee and complementary protection criteria.
At the hearing, the second applicant referred to the first applicant as her ‘ex-husband’. I will refer to the first applicant in that way in considering her evidence and claim.
At the hearing, I proceeded to ask the second applicant to explain why she feared returning to Malaysia. She said it was because of her ex-husband. She said in 2017 he was involved in a ‘quick rich scheme’. She said 10 people (the people) gave money to her ex-husband, who in turn gave the money to his ‘boss’. She said after a few weeks the boss ran away and could not be located. She said the 10 people looked for her ex-husband to get the money back. She said she did not fear harm in Malaysia for any other reason.
I then asked further questions of the second applicant about her claim. She said she was living with her ex-husband in Petaling Jaya at the time. She said she was ‘not very sure about this scheme’ because it was her ex-husband who was involved. She said the ‘boss’ was the leader of the quick rich scheme. The second applicant provided a name who she said was the boss. I asked the second applicant for documents about this scheme. The second applicant said she had them in Kuala Lumpur but that she was not sure where they are now; she said maybe they threw the documents away after moving from Petaling Jaya to Australia.
She said her ex-husband met the boss through a friend. She said she did not know the people but said they belong to one family. She said her ex-husband met the people through an advertisement he placed about the scheme on Facebook. I asked the second applicant for documentary evidence of the advertisements on Facebook; she said her ex-husband deleted his Facebook so they do not have them anymore. She said he deleted it after people were looking for him asking for the money. She said the people gave her ex-husband no more than RM[amount], or AUD[amount]. The second applicant said she went to police but was told they need to handle it themselves. The second applicant said the people lived around Kuala Lumpur.
The second applicant explained that the people looked for her ex-husband at her workplace in Petaling Jaya and at her ex-husband’s mother’s house in Kuala Lumpur. At her workplace, she said 3 adult males attended in around December 2017 or January 2018 and said to her that her ex-husband took the money and if they could not get the money back ‘something’ would happen to her. She said they did not say what would happen; they only said ‘something’. She said she had met the people before at a restaurant when they had a meeting with her ex-husband.
Despite having some concerns, particularly as a result of an absence of any documents about this scheme, I am prepared to accept that her ex-husband was involved in a get rich quick scheme in 2017 and facilitated investments by 10 people in the total sum of around AUD[amount] I accept he did so by advertising on Facebook and had a meeting with the people at a restaurant which the second applicant attended. I am prepared to accept that, after the boss of the scheme ran away and could not be located, some of the people sought to make contact with the first applicant in relation to the money and wanting it refunded. I am prepared to accept that the first applicant deleted his Facebook to avoid those looking for him. I am prepared to accept that some of the people went to the workplace of the second applicant and stated that if they could not get the money back ‘something’ would happen to her. Whilst I also have some concerns as to how people knew of where the mother of the first applicant lived, I am prepared to accept that included people attending the first applicant’s mother’s house to ascertain the first applicant’s whereabouts. I am prepared to accept that police told the second applicant they needed to handle the issue themselves, particularly because the people had only suggested ‘something’ would happen without explaining what that was.
Whilst I have accepted that people attended the workplace of the second applicant and said if they could not get the money back ‘something’ would happen to her, and sought contact via the first applicant’s mothers house, I do not accept those things, either separately or cumulatively, amount to serious harm within the meaning in s 5J(4)(b) of the Act, or significant harm within the meaning in s 36(2A) of the Act.
-Departure from Petaling Jaya
The second applicant went on to give evidence that she moved from Petaling Jaya to Putrajaya, then to Johor Bahru and then to Pahang (at her mother’s house) to escape the people. She said her ex-husband told her they were still looking for them in Putrajaya and Johor Bahru (including making contact via telephone) and that she just followed her ex-husband. She said they were living in fear. She said they did not have problems in Pahang but she did not want her mother involved so left Pahang and came to Australia. The second applicant gave evidence that the people returned to her ex-husband’s mothers house in 2019 but stopped coming during the Covid-19 pandemic. I asked how the people knew to look for them in Johor Bahru. She said a friend told them.
I have great difficulty accepting the second applicant’s evidence that people were looking for them in Putrajaya and Johor Bahru. I have great difficulty with the evidence that the applicants would be unable to live in Putrajaya, Johor Bahru and/or Pahang, without being able to be located. I note Malaysia has an estimated population of 32.9 million people.[1] As I put to the second applicant at the hearing, I would not expect the people would know where she was living in Malaysia. The second applicant responded that if she went to Malaysia then they would find her.
[1] DFAT, DFAT Country Information Report Malaysia, 24 June 2024, [2.6].
I found the second applicant’s evidence as to how it was the people knew to look for them in Johor Bahru to be wholly unpersuasive. The fact that on the second applicant’s evidence a friend revealed they had moved to Johor Bahru suggests to me that even on her evidence they were not overly concerned about concealing their whereabouts or their safety.
Whilst I am prepared to accept that the applicants moved to Putrajaya to escape coming into contact with the people, I do not accept that would have been necessary in relation to Johor Bahru and Pahang. Whilst I am prepared to accept that the applicants moved between those places, I do not accept the moves to Johor Bahru and Pahang were for the reason alleged. I do not accept either applicant was living in fear in Putrajaya, Johor Bahru or Pahang. I do not accept that the applicants left Pahang due to concern about involving the second applicants’ mother. I do accept however that the people attempted to contact the first applicant by phone and re-attended the first applicant’s mothers house in 2019 but stopped during the Covid-19 pandemic. It seems to me reasonable that the people might wish to continue to contact the first applicant about getting their money back.
-Contact whilst in Australia
I asked the second applicant if she had been contacted by the people whilst in Australia. She said the people left a message for them on her ex-husband’s Facebook; she suggested this was before her ex-husband deleted Facebook. I asked the second applicant for copies of the messages on Facebook. She said she had it before but lost everything after she changed phones and it was on her old phone.
I am simply unable to accept that the second applicant would have lost such important evidence to her claim through the changing of phones, if indeed she ever possessed such evidence. The applicants applied for the protection visa in 2018. The second applicant was aware of why she had sought a protection visa. It would have been apparent to her that such messages would be important evidence in the context of her protection visa claims.
I do not accept that the second applicant would have lost evidence of those messages on Facebook if they had indeed been received. I also do not accept that messages were received on Facebook, because if they had been, I expect the second applicant would have provided copies of them to support her case. The second applicant did not suggest they had received contact in any other way. I do not accept that the people have contacted either applicant whilst they have been in Australia.
-First applicant’s return to Malaysia
At the hearing, the second applicant gave evidence that she last spoke to her ex-husband a few days ago. I asked the second applicant about whether her ex-husband has had any trouble since returning to Malaysia. She said he returned to Malaysia in January 2023 and in March 2023 the people found out he had returned and they looked for him. She said they went to her ex-mother in law’s place and asked about him and he moved elsewhere. She said her ex-husband lives in Kuala Lumpur and is renting a room. I asked if he had trouble since March 2023. The second applicant said they are still looking for him, asking for money, and he moved somewhere else.

I asked if the second applicant knew why her ex-husband returned to Malaysia, given alleged risks to him. She said ‘we argued and then left me here, he was in a rush to go home.’ I asked the second applicant if she knew whether her ex-husband had concerns about his safety in Malaysia. She said he cannot get a job and he is not safe as well; he is scared and they are still looking for him.
Ultimately, I raised with the second applicant that given her ex-husband does not seem to have been harmed or fear harm, that suggests to me that if she returned to Malaysia she would not be at risk of being harmed. She responded that if they find him he will be harmed and they have not found him yet.
I am unable to accept that if the first applicant feared he would be harmed in Malaysia, he would have been in a rush to go home, even having regard to the fact he had an argument with the second applicant and the relationship broke down. That suggests to me that the first applicant did not, and does not, fear harm in Malaysia. Further, I note that it has been 2 years since he returned to Malaysia without, on the second applicant’s case, having been found. A considerable time has now passed since 2017 since the money was put into the get rich quick scheme. I do not accept that the people have been looking for the first applicant in Malaysia since his return in 2023.
I accept that the first applicant returned to Malaysia and that was because of his relationship breakdown with the second applicant. I accept he now rents a room in Kuala Lumpur. If the first applicant was in fear, I highly doubt he would choose to live in Kuala Lumpur, noting the second applicant gave evidence that the people lived around Kuala Lumpur.
I do not accept the first applicant fears harm, or is at risk of any harm, in Malaysia. That leads me to doubt whether the second applicant is at risk of any harm in Malaysia.
-Risk of harm in Malaysia
Ultimately, at the hearing I raised with the second applicant that it seemed to me that she would be safe in Malaysia for reasons including that: (1) it was her ex-husband who was involved in the money and not her (2) it was a long time since the money was taken by the boss (3) her ex-husband does not appear to have been harmed since returning and (4) the people would not know where she was living if she returned to Malaysia. The second applicant said the reason why the first applicant has not been harmed is because he has been on the run. She said they would still be looking for them because ‘[amount] is a lot of money’. She said as far as they know ‘the two of us took the money’.
I asked the second applicant why the people would think she took the money and she said she was not sure but they looked for her. Whilst I have accepted that the people went to her workplace whilst the second applicant was in Malaysia, I do not consider the people would seek her out if returned to Malaysia now after many years.
For the above reasons, I do not accept that if the second applicant returned to Malaysia she would face any contact from the people at all or anyone on their behalf, including harassment, threats, blackmail or intimidation. I do not accept that people would attempt to contact the second applicant relating to the get rich quick scheme. I do not accept that if the second applicant returned to Malaysia, she would be able to be located by the people (even if they wanted to, which I do not accept). I do not accept there is any risk of physical harm to the second applicant whatsoever, including assaults or being killed, for reason of the get rich quick scheme. I do not accept that the second applicant would suffer depression, anxiety, stress, embarrassment, humiliation or any other mental harm related to the get rich quick scheme.
Having regard to my findings above, I am not satisfied that the second applicant faces a real chance of serious harm if she returned to Malaysia now or into the reasonably foreseeable future. I am not satisfied that the second applicant has a well-founded fear of persecution. I am not satisfied the second applicant is a refugee under s 36(2)(a) of the Act.
Having regard to my findings above, and the fact that the real risk test imposes the same standard as the real chance test,[2] I am also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second applicant being removed to Malaysia, that there is a real risk that she would suffer significant harm as that term is defined in s 36(2A) of the Act, namely being arbitrarily deprived of her life, having the death penalty carried out on her, being subjected to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. I am not satisfied the second applicant meets the complementary protection criteria in s 36(2)(aa) of the Act.
First applicant
[2] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, [246], [296], [342].
Under s 65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied.
So far as is relevant to this matter, s 36(2) of the Act provides that a criterion for a protection visa includes that the applicant for the visa is a non-citizen in Australia. This means that a person who is not in Australia at the time of the Tribunal’s decision does not meet the criteria for a protection visa.
As noted above, the Department’s movement records indicate that the first applicant is not in Australia. It appears that he left [in] January 2023. The Tribunal wrote to the first applicant advising that its records showed that he is not in Australia and therefore could not meet the criteria for a protection visa and inviting the first applicant to comment on the information. The first applicant has confirmed he departed Australia [in] January 2023.
I am satisfied from the circumstances set out above that the first applicant is not in Australia. Therefore, the first applicant does not satisfy the requirements of s 36(2) of the Act. Having reached this conclusion, it is not necessary to consider the first applicant's substantive case for the grant of the visa.
Conclusions
For the reasons given above I am not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Neither applicant satisfies the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions under review.
Hearing(s):  9 December 2024
Representative:  N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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