2004143 (Refugee) - [2024] ARTA 764

2004143 (REFUGEE) [2024] ARTA 764 (1 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2004143

Tribunal:General Member M. Moustafine
Date:1 December 20124

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

General Member M. Moustafine

Statement made on 1 December 2024 at 11:20 PM
CATCHWORDS
REFUGEE – protection visa – Malaysia – religion – forced conversion to Taoism – family violence – physical assault – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
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 for Home Affairs on 25 February 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a national of Malaysia, arrived in Australia [in] May 2019 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) Visitor visa valid until [August] 2019. On 24 September 2019 she applied for a Protection visa. The delegate refused to grant the visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
On 3 March 2020 the applicant applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
Evidence before the Department
According to the Protection visa application form, the applicant was born in [specified year] in Miri, Sarawak, Malaysia where she lived until she left for Australia [in] May 2019. The applicant identified her ethnicity as Bidayuh and her religion as Christian. She indicated that she speaks, reads and writes in Malay and English; completed [number] years of high school in Sarawak in [specified year]; was never employed but supported herself through online marketing and family support. The applicant stated that she had never married and did not identify any family members in Australia and only her mother in Sarawak. The applicant stated that she left Malaysia legally on her Malaysian passport.
In summary, the applicant’s protection claims as set out in her application form were as follows:
a.She did not experience harm in Malaysia
b.She left Malaysia because her family and the village head had been forcing her to convert her religion from Christianity to Taoism.
c.She thinks that if she returns to Malaysia, she will be punished for running away from the community and family. The village head usually punished people who disobeyed his command by beating them on the back 20 times. After that, they would force her to convert her religion.
d.She does not think the Malaysian authorities will protect her as they do not get involved in village people issues.
e.She will not be able to relocate within Malaysia because her village community would try to find her and make her convert her religion as they had many friends in other states in Malaysia. Therefore, she feels unsafe to stay in Malaysia.
The applicant did not provide any supporting documents to the Department apart from scanned copies of her Malaysian passport, national identity card and driver’s license. She was not invited to attend an interview.
On 25 February 2020, the delegate refused to grant the applicant a Protection visa as he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
Noting country information regarding Christians in Malaysia, the role of the Royal Malaysian Police in secular law enforcement, as well as the personal circumstances of the applicant, the delegate was not satisfied that there was a real chance the applicant would face serious harm for reasons of her religion if she returned to Malaysia. Nor was he satisfied that there were substantial grounds for believing that there was a real risk the applicant would suffer significant harm if returned to Malaysia.
Evidence before the Tribunal
On 3 March 2020, the applicant applied to the AAT for a review of the Department’s decision, providing a copy for the purpose of the review.
On 23 April 2024 the Tribunal invited the applicant to complete a Pre-hearing information form to update contact details and provide any more information about her claims for protection, reasons why she was afraid to return to her home country and information about any family members with a case before the Tribunal. In her response on 29 April 2024, the applicant indicated that her spouse, whom she identified by name had a protection visa before the Tribunal. She provided no additional information regarding her claims.
On 19 September 2024 the applicant was invited to attend a hearing before the Tribunal on 12 November 2024. On 5 November 2024, the applicant submitted a statement, the key points of which were as follows:
a.She belongs to the minority native tribal group from Sarawak known as [Tribe 1].
b.She arrived in Sydney in 2019 intending to get a student visa, enrol in a college course with the possibility of graduating and finding work in Australia and settling down here with her child. She believed that education would help her out of the situation she was in and was unaware of protection visas.
c.When her student visa application was rejected, she was scared to go back to Malaysia as she was running away from an abusive relationship with her in-laws. She was alone, scared, without friends and family and looked for a third party to help with the protection visa application. There was no proper communication and misunderstandings occurred. She was, in fact, running away from her husband’s abusive family.
d.She was pregnant between [specified years] and lived with her in-laws prior to getting married. Her mother-in-law made it a condition that that she convert from Christianity to Buddhism, hide her native identity and marry her son as a Chinese-born Malaysian. She refused to convert as she was a born to a Christian family. However, she agreed to compromise her identity because she did not want her child to be born out of wedlock.
e.She and her husband registered their marriage [in] May 2018 and both families agreed to hold a wedding reception [in] October 2018 [detail deleted]. But after the registration of the marriage things turned ugly. She suffered physically and mentally living with her in-laws. Her partner strayed and thing went from bad to worse. Whenever there was an argument with her partner, the in-laws put all the blame on her.
f.She chose to remain silent after the birth of her child. She was in post-natal confinement under the care of a midwife arranged by her mother-in-law and was separated from her newborn child, kept in a different room in the house, with no communication with other member of the house. On the 7th day of her confinement, she managed to leave the house with her mother and go to her family home with her newborn.
g.She called off the wedding reception a month before it was to take place. Her in-laws demanded compensation of the non-refundable deposit and refused to let her child be named. She gave in to many of her mother-in-law’s requests in the hope of saving her marriage as she did not want her daughter to grow up without a father. She was frightened when she found a weird piece of thin yellow paper with red inked writing that looked like a ritual paper tucked under her mattress after a visit from one of their family members and became more and more stressed by their constant presence at her house. She was humiliated and slandered by them saying that she called off the wedding because they failed to give her family the wedding dowry of [amount] Ringgit.
h.Under overwhelming pressure from constant negative remarks and attacks from judgemental outsiders whenever she went out, the applicant realised she could no longer stay in her small hometown. She tried to go to the police but was scared to lodge a report against her mother-in-law as she was afraid of the consequences. She thought that lodging a report would do no good as many such incidents ended up with the police saying it was a family matter which should be solved at home. She had no option but to leave her hometown.
The applicant provided several supporting documents, including photographs of a printed document purporting to be an invitation to a wedding dinner for the applicant and her husband [in] October 2018, some untranslated, red-printed leaflets and a page headed Chinese to English Translation of Text Messages purporting to be from the applicant’s mother-in-law dating from 29 September (no year identified).
The applicant appeared before the Tribunal on 12 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. Where relevant to her protection claims, the applicant’s evidence at the hearing is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
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 of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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 examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
Country of reference
On the basis of her Malaysian passport and national identity card provided to the Department, and, in the absence of evidence to the contrary, the Tribunal accepts that the applicant is a national of Malaysia and considers Malaysia as the country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria, respectively.
The applicant’s claims
The applicant told the Tribunal at the hearing that she came to Australia in May 2019 on a tourist visa because she wanted to find a school and study here. She applied unsuccessfully for a Student visa to study English and then for a Protection visa as she did not dare return to Malaysia because of her problem with her husband’s family. The applicant said that an ‘agent’ recommended by a friend filled in her Protection visa application. He did not read it back to her but explained what was in it after he submitted it. She said she knew what was in it but that not everything in it was correct. She said the part about her being chased and ‘murdered’ by people in the countryside was not correct. Asked if everything else was correct, she said the story she emailed to the Tribunal (summarised at paragraph 12) was what really happened to her.
The Tribunal found the applicant’s evidence about key aspects of her claims unsupported by evidence and inconsistent between her Protection visa application and her written and oral evidence to the Tribunal. For reasons outlined below, the Tribunal has concluded that the decision under review should be affirmed.
In a discussion of her background at the hearing, the applicant confirmed that she was born and lived in Miri, Sarawak with her mother but other details she provided were inconsistent with those in her application form as set out at paragraph 5 above. These details included that she had two siblings, had [specified] qualifications and was employed in a [factory] for a year before coming to Australia. Significantly, while she stated in her application form that she was single, the applicant told the Tribunal that she was married in May 2018 and gave birth to their baby in July 2018. No marriage or birth certificate was provided to substantiate this, however, only a document purporting to be an invitation to a wedding dinner [in] October 2018, which by the applicant’s own evidence, did not go ahead. The applicant also told the Tribunal that when she first arrived in Australia, she lived for half a year with her husband, who had arrived here before her and sought protection. She and her husband were now separated, but not divorced and she last saw him in Sydney in 2023 but did not know his whereabouts.
According to her original application, the applicant did not experience harm in Malaysia but made vague claims about being pressured by her family and the village head to convert from Christianity to Taoism. By contrast, she told the Tribunal at the hearing that she did suffer serious harm in Malaysia in the form of pressure from her mother-in-law to change her religion from Christianity to Buddhism and to be fully Chinese. The applicant confirmed that she did not do so, seemingly without consequence. Further, the applicant claimed at hearing that her in-laws tried to ‘suppress her’ by stopping her seeing other family members when she was pregnant and blaming her for destroying their family and her mother-in-law’s health because she fought with her husband over his drug use and gambling. The applicant claimed that after she took her baby to live at her mother’s place in mid-July 2018, her mother-in-law came to find her then frequently came to see her grandson and they had many fights about the wedding and the child. The constant pressure from her mother-in-law prompted the applicant to leave for Australia in May 2019.
Asked why she was now afraid to return to Malaysia, the applicant introduced another new claim – that she wanted to divorce her husband, report him to police and sue him for domestic violence but dared not do so for fear that her mother-in-law would threaten and pressure her and tell lies about her family. The applicant claimed that her husband had beaten her in the past in Malaysia, resulting in her hospitalisation but could not provide any medical reports. She said she had not reported her husband to police previously for fear his mother would cause her trouble. Asked why she had not mentioned any of this before, the applicant repeated that she did not dare.
The applicant initially confirmed that, apart from fear of harm from her mother-in-law, there were no other reasons she feared returning to Malaysia. However, when the Tribunal suggested that the harm she claimed to fear from her mother-in-law did not appear to meet the definition of serious or significant harm under the refugee or complementary protection criteria, the applicant embellished her evidence, adding that her husband would take revenge if she divorced and sued him on return to Malaysia. She claimed that her husband had threatened her many times in the past. When she ran away from his family, he told her he would make her and her family disappear if she did not follow his instructions.

The Tribunal is concerned at the major shifts in the applicant’s claims as to the harm she experienced in Malaysia previously and fears she will face on return over the course of her Protection visa process. As already noted above, the applicant attributed errors in her Protection visa application to the ‘agent’ who prepared it for her. She emphasised at the start of her hearing that the statement emailed to the Tribunal was what really happened to her. It is therefore significant that this statement makes no mention of the applicant experiencing domestic violence from her husband or fear of his revenge. In it she claimed to be running away from his ‘abusive family’, particularly his mother and contemplated reporting her to the police (paragraph 12 refers).
Asked why she had never mentioned these new claims before her Tribunal hearing, the applicant repeated several times that she did not dare. The Tribunal does not accept this as a reasonable explanation as to why such a central claim was not included either in her Pre-hearing information response form or the statement emailed to the Tribunal ahead of the hearing. Further, as suggested to the applicant, the Tribunal finds it incongruous that if she had suffered domestic violence and threats from her husband while in Malaysia, she would have chosen to live with him for six months on arrival in Australia. In the Tribunal’s view, the applicant introduced the new claims in an effort to strengthen her case for protection.
The Tribunal has had regard to the documents provided by the applicant but does not attach weight to them as being probative of her account of her experiences in Malaysia. The photographs of the purported invitation to a wedding dinner for the applicant and her husband, which ultimately did not proceed, do not substantiate that the applicant was ever married. There is nothing to indicate that the texts of messages purporting to be from the applicant’s mother-in-law came from a phone and could simply have been typed in the document; while the unidentified red printed leaflets are not translated.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that the applicant has been truthful about her experiences in Malaysia and the reasons she fears returning there. The Tribunal is not satisfied that the applicant ever experienced harm in Malaysia or that she left Malaysia either because she was being forced to convert her religion from Christianity to Taoism by her family and the village head; or was running away from her husband’s abusive family. In the absence of evidence of the marriage she claimed was registered [in] May 2018 or a birth certificate for her child, the Tribunal does not accept that the applicant was, in fact, married; had a child, or was pressured by her alleged mother-in-law to convert from Christianity to Buddhism. Nor is the Tribunal satisfied that the applicant experienced domestic violence or beatings from her alleged husband.
It follows that the Tribunal is not satisfied that if she returns to Malaysia now, the applicant will report her alleged husband to police or sue him for domestic violence, nor that her alleged mother-in-law will threaten and pressure her and tell lies about her family or otherwise cause her trouble. Neither is Tribunal satisfied that the applicant will be punished or beaten for running away from her community and family or forced to convert her religion. In the Tribunal’s view the applicant fabricated her protection claims for the purpose of achieving a migration outcome.
On the evidence before it, the Tribunal is not satisfied that there is a real chance that, if the applicant were to return to Malaysia, she would face persecution for any of the reasons contemplated by s.5J(1)(a) of the Act or that the applicant has a well-founded fear of persecution.
For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm.
CONCLUSIONS
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).
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).
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 the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing:  7 November 2024
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.
…