2005714 (Refugee) - [2024] ARTA 651

2005714 (REFUGEE) [2024] ARTA 651 (12 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2005714

Tribunal:General Member M Bailey
Date:12 November 2024

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

Statement made on 12 November 2024 at 10:32am
CATCHWORDS
REFUGEE – protection visa – Malaysia – threats from criminal gang – extramarital affair – extortion – physical assault – fear of killing – delay in applying for protection – state protection – internal relocation – 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
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (the delegate) on 20 March 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 3 March 2019. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act.
The review application was lodged on 20 March 2020 with the former Administrative Appeals Tribunal (the AAT). 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.
The applicant appeared before the Tribunal via videoconference on 7 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
The applicant, [an age]-year-old male, arrived in Australia as the holder of an Electronic Travel Authority (UD-601) visa [in] December 2018.
The applicant presented his Malaysian passport, issued in [2018], to the Department of Home Affairs (the Department) in support of his protection visa application. Based on the available evidence, I find that the applicant is a citizen of Malaysia, and that Malaysia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
According to the protection visa application, the applicant was born and resided in [Town 1], Sabah. His ethnicity is Dusun and religion is Islam. He completed middle school in [year] and worked as [an occupation 1] at [Location 1] between [specified year] and March 2019.[1] His relationship status is ‘Separated’. No details are provided of any family members.
[1] I accept these dates to be typographical errors given that the applicant was born in [the same year] and departed Malaysia in December 2018. The correct dates were confirmed with the applicant at the Tribunal hearing as discussed below.
Regarding his protection claims, he stated in summary as follows:
i.He left Malaysia to save himself from ‘the threats that may be bad or maybe death’ for example ‘racial oppression’ and ‘gangster’.
ii.In response to whether he had experienced harm in Malaysia, he stated that he is not free to go anywhere because he will be ‘beaten in groups at any time’; ‘no one dared protect’ him; his life is ‘always in fear and pressure’ because of ‘the debt threats’ and he ‘impregnated’ a girl and received threats as a result.
iii.He did not seek help in Malaysia because he ‘received strong threats and a group of perpetrators is respected’. If he reported them to the police they may not be caught and will continue to threaten him. He did not try to move to another part of the country.
iv.If he were to return to Malaysia, his life ‘will continue again in fear’; he will not be free to go anywhere; he fears the supernatural; ‘some of them know about that’ and he does not want them to see him. He thinks he will be ‘beaten and threatened with a group’ and refers to ‘debt’, impregnating a girl and ‘raising racial issue’.
v.He does not think the Malaysian authorities could protect him, stating ‘since the first gangster issue and oppression can not be settle with the authorities’.
vi.He could not relocate within Malaysia as the perpetrator of the crime knows ‘every place on the state’ and could find him.
The applicant was not invited to attend an interview with the Department. Based on the information in the protection visa application, the delegate accepted that the applicant claimed to fear harm for reasons of his Dusun ethnicity or race but found there to be no real chance of persecution for this reason. His claims to fear harm in connection with gangsters, debt threats, impregnating a girl and the supernatural were considered under the complementary protection criterion. With reference to country information, the delegate found that the applicant could obtain protection from the Malaysian authorities regarding any harm for these reasons.
Evidence before the Tribunal
Pre-hearing evidence
The applicant submitted to the Tribunal a completed ‘Pre-hearing information form’ dated 29 July 2024 (Pre-hearing response). This included a section inviting him to provide any additional information regarding his claims for protection or other reasons why he is afraid to return to Malaysia. He was also invited to submit any further evidence to the Tribunal and it was noted that if this was in a language other than English, it must be accompanied by an accredited English translation. No further information or evidence was provided by the applicant in the Pre-hearing response.
Oral evidence at hearing
Regarding the protection visa application, he stated that he completed this himself and did not receive any assistance. Regarding his family, he stated that his mother passed away in 2019. His father and [sibling] continue to live in [Town 1]. The applicant married in 2016 and separated from his wife in late 2018 when he departed for Australia. He explained that they separated because he had an affair with a woman from [Town 1] who fell pregnant. The child, a daughter, was born before he departed for Australia and is now [age] years old. He is not in contact with his wife, daughter or the mother of his daughter.
He lived in [Town 1] with his parents and, following his marriage, sometimes lived with his parents-in-law, also in [Town 1]. After completing school in [year] he undertook a ‘pre-university’ course in [Town 1] between [specified years]. Between [specified years] he attended technical college in Papar, which he estimated to be several hours drive from [Town 1]. During this period he resided on campus in Papar.
In 2014 he commenced working as [an occupation 1] at [Location 1] and (other than the period in which he travelled to [Country 1] as discussed below) continued in this role until his departure for Australia in December 2018. He continued living in [Town 1] during this period as [Location 1] was less than 30 minutes’ drive from his home.
In discussing his places of residence, the applicant stated that he went to [Country 1] in February 2018 for about 2 and a half months. Asked why he went to [Country 1], he stated for a holiday and to work. He explained that he travelled on a visitor visa but did some [specified] work during his trip.
Asked why he decided to leave Malaysia in December 2018, he responded that he had to save himself from a group that had threatened him. He clarified that the threats were from the uncle of the woman with whom he had an affair and his friends. The threats started in early 2018, after the woman fell pregnant in 2017.
When asked for details of the threats, he stated that the matter could have been dealt with in accordance with traditional custom but they took the opportunity and ‘utilised his case’ which he clarified to mean they were blackmailing or extorting him for money. They took most of his pay from working as [an occupation 1] and left him with only a small amount and they physically assaulted him. In January 2018 he suffered 2 serious injuries which he described as [details deleted]. He confirmed that the threats, extortion and beatings were occurring from January 2018 until his departure for Australia in December 2018.
Asked whether his family was aware of this, he stated that they knew he was experiencing injuries, but he did not tell them why as he was scared that this would cause problems for them. He did not seek any help from the police because he was scared of the woman’s uncle, who was an ex-army [rank 1], and his friends.
I discussed with the applicant that earlier in the hearing he stated that he went to [Country 1] for a holiday in February 2018 and returned several months later yet is claiming that in January 2018 he was subject to serious physical assault and extortion. He responded that he found it difficult to communicate in [Country 1] because of the language barrier and his visa did not have a work permit so he did not remain.
Asked whether he considered moving to another part of Malaysia to avoid harm, he stated that he did not as he was very fearful of the group and they warned him that if he moved elsewhere they could locate him. When asked how they would be able to locate him in other parts of the country, he responded that Malaysia is not a big country and they have many friends.
I discussed with the applicant that 6 years have elapsed since he departed Malaysia. Asked whether his family in Sabah have experienced any problems from the people that were targeting him, he stated that he doesn’t think so. He confirmed that he has had no contact with these people since arriving in Australia, stating that he deleted all his previous social media accounts after leaving Malaysia. When asked why he thinks these people would continue to harm him if he were to return, he responded that in his culture his case is not easily resolved.
Asked about his intention in travelling to Australia in 2018, he stated that it was to seek protection. When asked if he can recall when he applied for his visa to Australia, he responded that he could not recall the exact month. I discussed with the applicant that I had before me a copy of the Department’s movement records relating to his travel to Australia which indicate that he was granted an Electronic Travel Authority visa [in] August 2018 and departed for Australia [in] December 2018. I explained that the delay of over 4 months in his departure from Malaysia may cause me to have concerns about the credibility of his claims to have been subjected to threats, extortion and physical assault between January and December 2018 and invited the applicant to comment on this information.
The applicant responded that his departing flight had already been booked so he used the intervening period to work and earn money. He felt that he had to ‘hide himself’ but confirmed that during this 4-month period he continued to work and live his life as usual.
I discussed with the applicant that in his protection visa application he referred to ‘racial oppression’ or ‘racial issues’ as being relevant to his reasons for departing Malaysia and his fear of returning. Asked what he meant by this, he stated that the group that were targeting him were of a different race or ethnicity, namely ‘Suluk’. I further raised that he had referred in his protection visa application to fearing the supernatural if he were to return to his local area. He agreed this was correct and explained that this fear also relates to the group that previously targeted him.
When asked whether there was any other reason he fears returning to Malaysia, he responded that he has obtained a screenshot of text messages received in May 2018 from one of the people who had been threatening him. Asked why he did not provide this evidence previously, he stated that he was unsure of what to provide at the time of lodging his protection visa application and his English was limited at that time. I discussed with the applicant that he had several opportunities to provide this to the Tribunal prior to the hearing, including in the Pre-hearing response and in response to the hearing invitation. He responded that he did not provide it in the Pre-hearing response because he was given 7 days to respond and was busy with work. He did not provide it in response to the hearing invitation because he thought he would be able to share it with the Tribunal at the hearing.
The applicant indicated that he wished to show me a copy of the document via videoconference, to which I agreed. The applicant explained that the messages were in his local language and he did not have an English translation. He read the messages in Malay which were then interpreted to English by the interpreter. The gist of the messages was that a person had written to the applicant, to which he asked their identity; they responded that he should know their identity and they had located him despite him changing his mobile number; Malaysia is a small country and it would be easy to locate him even if he hides himself; they can get him and he will not be able to live his life in peace. The messages included a photo of blade or knife with a threat to use this against the applicant.
I discussed with the applicant that I have concerns about the late disclosure of this evidence and, in conjunction with the lack of an English translation, I may not be able to give it any significant weight.
I discussed with the applicant that, while I have not made up my mind, I have concerns regarding the credibility of his claims to have been targeted between January and December 2018. I reiterated that this was based on the 4-month delay in his departure, together with the following:
i.His failure to seek help from the police, noting that as referenced in the delegate’s refusal decision country information indicates that despite some issues with corruption and capacity, there is a functioning and generally effective police force in Malaysia.
ii.His failure to move to another part of the country if he was experiencing harm as claimed. I noted that, based on the available evidence, I may not accept as plausible that the persons targeting him would be able to locate him throughout Malaysia.
The applicant responded that during the 4 months between the grant of his visa and his departure from Malaysia he was hiding in different houses and that as an ordinary person without a high profile it is difficult to obtain protection from the police in Malaysia.
Asked whether there was anything further he wished to tell me, he referred to not being able to return due to the incidents, injuries and trauma he had previously experienced.
REASONS AND FINDINGS
The issue in this case is whether the applicant
engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons I have concluded that the decision 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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ 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.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I have had regard to the Tribunal’s Guidelines on the Assessment of Credibility[2] and accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[3] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[2] Administrative Appeals Tribunal, Migration & Refugee Division, Guidelines on the Assessment of Credibility, July 2015
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
As detailed below, I have significant concerns with key aspects of the applicant’s claims. There are various inconsistencies, omissions, and implausible aspects in his account which I am satisfied in totality significantly undermine the credibility of his claims. While I have taken into account the applicant’s responses at hearing to these issues, I am not satisfied that they sufficiently address my credibility concerns.
I accept that the applicant had an extra-marital affair with a woman from the Suluk community which is one of 32 recognised ethnic or indigenous groups in Sabah.[5] I accept that this led to the birth of a daughter in around 2017 and the breakdown of the applicant’s marriage in late 2018. I find it credible that this would have been viewed negatively by the woman’s family and his local community. According to DFAT, there is a strong social stigma attached to pre-marital sex and pregnancy.[6] However, for the below reasons I do not accept that this led to the applicant being threatened, extorted or harmed by relatives or friends of the woman between January and December 2018.
[5] New Straits Times, The Suluk are natives of Sabah, but their narrative is absent, 20 August 2022
[6] DFAT Country Information Report, Malaysia, 24 June 2024, p 30
Firstly, I find the 4-month delay in the applicant’s departure from Malaysia to be significant. The applicant confirmed to the Tribunal that he applied for a visa to Australia with the intention of seeking protection due to the harm he was experiencing. However, despite being granted a visa [in] August 2018 and having a passport (issued in [early] 2018), the applicant did not depart until [December] 2018. I have considered his response that the delay was due to his flights already being booked for late December 2018. However, if he was genuinely being physically harmed, extorted and threatened as claimed I do not consider this to adequately explain the delay. He subsequently indicated, in response to the Tribunal summarising its concerns toward the conclusion of the hearing, that he was hiding between different houses during this 4-month period. However, I find this to be inconsistent with his earlier evidence to the Tribunal in which he acknowledged that he continued working and living as normal during this period. In the applicant’s particular circumstances, I have given the delay in departing Malaysia significant adverse weight.

Secondly, I find his failure to move from his home area of [Town 1] to seek safety in another part of Malaysia to undermine his claims. While I acknowledge that relocating away from family, friends and familiar environments can be difficult, the applicant had previously resided in Papar for several years while completing technical college, travelled to [Country 1] for several months in February 2018 and decided to apply for a visa to Australia in August 2018 to seek protection in Australia.
I have considered his explanation that he feared the people targeting him would be able to locate him throughout Malaysia. However, his evidence regarding why he believed this to be the case was vague and lacking in detail. Beyond stating that the uncle of the woman with whom he had an affair was an ex-army [rank 1] and had many friends, he provided no plausible reason for how they would locate him in other parts of Malaysia. While referring in his protection visa application to ‘gangsters’, he did not provide any evidence to the Tribunal to indicate that the people threatening him were involved with a criminal gang.
I have considered the screenshots of text messages presented by the applicant at the hearing which he claims to have received in May 2018 from one of the persons targeting him. While the messages are untranslated, I have considered the English interpretation provided at the hearing by the interpreter which indicates threats to harm the applicant with a knife and a warning that he could be found even if he changed his mobile number and location.
However, I have significant concerns with the late disclosure of this evidence given its relevance to the applicant’s claims. While I acknowledge the applicant’s explanation for not providing this evidence to the Department, I do not find his explanation for the late disclosure to the Tribunal to be convincing. The Pre-hearing response specifically invited him to submit any additional information or evidence of relevance to his claims. Further, if these messages were genuinely received in May 2018, I find this to contribute to my concerns above regarding his delay in departing Malaysia. Considering the above, and my overall credibility concerns with these claims, I have given these messages no weight.
Thirdly, I find the applicant’s failure to seek any assistance from the police in circumstances where he claims to have been subject to a 12-month period of threats, extortion and physical harm to contribute to the above credibility concerns. As raised with the applicant, country information indicates that while there are issues with corruption and capacity, the Royal Malaysia Police – which employs approximately 115,000 officers and operates over 800 police stations across Malaysia – is generally considered by local and international sources to be a professional and effective police force.[7] I have considered his response that he feared seeking help from the police because the person threatening him was an ex-army [rank 1]. He provided no further details of this person’s connections or influence or why it would prevent him from seeking assistance from the police. I am not satisfied that the applicant has provided any plausible explanation for why he would not seek assistance from the police if he was genuinely being targeted as claimed.
[7] DFAT Country Information Report, Malaysia, 24 June 2024, p 41
Considering all of the above, I do not accept that the applicant experienced any harm or threats of harm from relatives or friends of the woman with whom he had an affair. Regarding the claims in his protection visa application to fear racial oppression/issues and the supernatural, the applicant clarified to the Tribunal that this related to harm from the uncle of the woman with whom he had an affair and friends of her uncle. Given my findings above regarding these claims, I do not accept that he experienced any racial or supernatural harm from these people.
Refugee and complementary protection assessment
I find the applicant’s ‘home area’ or place of likely return to be [Town 1] given that this was his primary place of residence and the area where his father and [sibling] continue to reside. Considering my findings above, I find that there is not a real chance that the applicant will be harmed by relatives or friends of a woman with whom he had an extra-marital affair if he were to return to [Town 1]. I find that the applicant does not have a well-founded fear of persecution for this reason and is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The real risk threshold for complementary protection has been held to equate to the real chance threshold under the refugee criterion.[8] For the same reasons discussed above, I find that there is not a real risk that the applicant will suffer significant harm from relatives or friends of a woman with whom he had an extra-marital affair as a necessary and foreseeable consequence of his removal to Malaysia.
[8] MIAC v SZQRB [2013] FCAFC 33
The applicant has not claimed to fear harm for any other reason if he returns to Malaysia and I find that no other protection claims arise on the accepted facts.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or 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.
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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