2008475 (Refugee) - [2025] ARTA 1829

2008475 (Refugee) [2025] ARTA 1829 (2 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2008475
Tribunal:General Member M Bruce
Date:2 September 2025

Place:Adelaide
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the criteria of section 36(2)(a) of the Migration Act 1958 (Cth).

Statement made on 02 September 2025 at 10:09am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – spouses experiencing domestic violence – economic hardship – fears harm and mistreatment from husband – severe depression and mental distress – separated but remain married – police corruption – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 79
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
A v Minister for Immigration & Ethnic Affairs [1997] HCA 4
Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration v Khawar [2002] HCA 14
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816
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 13 May 2020 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
Applicant’s claim before the Department
The applicant applied for the visa on 3 January 2020. The applicant’s claims, as advanced in their application to the Department, are that:
(a) The applicant left Malaysia after quitting her job as [an Occupation 1].
(b) The applicant had resigned due to discrimination which impeded her ability to obtain promotion or salary increase.
(c) The applicant did not experience harm in Malaysia.
(d) The applicant came to Australia because it is a safe place to start a new life with extensive job opportunities.
(e) If the applicant returns to Malaysia, they will have difficulty obtaining employment due to discrimination.
(f) If the applicant returns to Malaysia, they do not think they will be harmed or mistreated.
The delegate refused to grant the visa on the basis that the applicant had not claimed, nor did it appear to the delegate on the material before them, that the application would be persecuted for one or more of the reasons in s5J(1)(a) of the Act and that the harm claimed by the applicant was not significant harm within the meaning of s36(2A) of the Act.
Applicant’s claim before the Tribunal
The applicant applied to the Administrative Appeals Tribunal (AAT) for a review of this decision on 20 May 2020.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) cessed to have effect, and the Administrative Review Tribunal (the Tribunal) came into effect.
Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No 1.) Act 2024 (the Transitional Act), applications made to the AAT that were not finalised prior to 14 October 2024 are taken to be applications made to the Tribunal.
Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal and the Tribunal is authorised to continue and finalise such proceedings in accordance with the Administrative Review Tribunal Act 2024 (Cth).
The applicant appeared before the Tribunal on 16 May 2025 for a directions hearing.
The Tribunal noted that the applicant’s application to the Department indicated that the applicant did not experience harm in Malaysia and that they do not think that they will be harmed or mistreated in returned to Malaysia.
The applicant stated that they were assisted in the preparation of their application to the department and that they were not aware of the content of the application.
The applicant maintained their claim of economic hardship and stated that they will be harmed by their husband if they are returned to Malaysia.
The applicant indicated that they would seek to call their sister as a witness to give evidence.
By order under section 79(1) of the Administrative Review Tribunal Act 2024, the Tribunal directed the applicant to submit, inter alia, the following to the Tribunal by 13 June 2025:
(a) A written statement setting out the applicant’s claims.
(b) Any documents or other evidence relied on to support the application.
(c) Any other material the applicant wishes the Tribunal to consider.
(d) Written statements from any witness that the applicant intends to call to give evidence.
The Tribunal advised the applicant of the effect of section 367A of the Migration Act 1958 (Cth) and invited the applicant to address this in their submissions.
The matter was adjourned for a subsequent hearing on 23 June 2025.
On 13 June 2025, the applicant requested an extension of time until 17 June 2025 to comply with the order of 16 May 2025. The Tribunal advised by email of the same date that the presiding member had granted an extension of time to comply with the orders of 16 May 2025 until 17 June 2025.
In compliance with the orders of 16 May 2025 the application submitted, on 15 June 2025 and 17 June 2025 respectively, the following:
(a) a written statement from the applicant dated 17 June 2025,
(b) a written statement from the applicant’s sister, [Sibling A], dated 13 June 2025, and
(c) a letter of support and confirmation of employment from the applicant’s employer dated 16 June 2025.
The letter of support and confirmation of employment from the applicant’s employer dated 16 June 2025 states that the applicant commenced employment with the employer in July of 2023 in the role of [Occupation 2] and that the applicant has proven herself to be a reliable, honest and hard-working employee who is well respected by her peers and has contributed positively to the culture of the organisation.
This letter further states that sourcing skilled labour in regional Australia continues to present difficulty for the employer and that the applicant’s skills in this area have been valuable to the business.
I accept these statements, pima facie, and have taken this into account to the extent that it is relevant in assessing whether the criteria for the grant of a protection visa under the migration act are met.
The written statement from the applicant dated 17 June 2025 states that the applicant did not fully comprehend the process at the time of the applicant’s visa application.
The applicant further stated that she had followed the advice of an acquaintance who had helped her with the visa paperwork.
The applicant went on to state that she is a mother of [children of varied ages], and that her husband is [an Occupation 3]. The applicant stated that she has no income as she is a housewife and, although he works as [an Occupation 3], her husband has a significant amount of debt. The applicant stated that they could not afford necessities, in particular their children’s education, and that money was a continuous source of tension and argument between the applicant and her husband.
The applicant stated that this situation had precipitated the domestic violences which consisted of both verbal and physically abuse towards the applicant. The applicant stated that she had tried to run away from home on multiple occasions to avoid this abuse and that she had contemplated committing suicide.
The applicant stated that, if returned to Malaysia, she will be unable to find job due to her limited education and the difficulty of raising [children] in circumstance of impecunity.
The applicant stated that Malaysia’s economic situation is poor and that their household income was approximately $400 (Australian Dollar) per month, which she states was insufficient to cover their daily living expenses.
The written statement from [Sibling A], dated 13 June 2025, stated that [Sibling A] had been living with the applicant since she was 12 years old and that she had witnessed the abusive behaviour the applicant’s husband had inflicted upon her.
This statment confirmed that the applicant’s husband works as [an Occupation 3] and further stated that the applicant was reliant entirely on her husband’s income, and that they were in financial difficulties. It was further stated that the applicant’s husband rarely gave the applicant any money to support the household and was often physically abuses her in front of the children. It was further stated that he had also kicked the applicant out of the house multiple times and, on one occasion, pointed a gun at the applicant and threatened to shoot her.
It was further stated that [Sibling A] had personally witnessed the cruelty and violence endured by the applicant and that the applicant had developed severe depression and mental distress as a result. It was further stated that the situation has affected the applicant so deeply that, at times, she would take out her frustration on her children because of the overwhelming pressure caused by her husband’s violence and their financial difficulties.
The applicant appeared before the Tribunal for hearing on 23 June 2025.
The applicant testified as to the content of her statement dated 17 June 2025.
The applicant testified that she has separated from her husband, but that they remain married. The applicant further testified that her children reside with their father in Malaysia.
The applicant testified that she and her husband had quarrelled regarding her intention to travel to Australia for respite and that he had initially prevented her from doing so. The applicant testified that her husband relented following her having made an attempt upon her life.
The applicant testified that she had informed her husband that she indeed to remain in Australia approximately two months after her arrival in Australia in late 2019 or early 2020.
The applicant testified that her husband was incensed at this and that he has made repeated attempts to persuade her to return. The applicant further testified that she has remained in contact with her husband and children whilst in Australia.
The applicant testified that she has reported her husband’s abuse to the Malaysian authorities and that they had declined to make a report due to her [husband’s connections] and instead encouraged her to resolve the dispute with her husband.
The applicant testified that her husband would [have] the support of the police and that they would have the ability to relay her location to her husband if returned to Malaysia. The applicant further testified that she would need to maintain contact with her husband in order to maintain contact with her children, in particular her [minor] children.
The witness [Sibling A] was called to give evidence. [Sibling A] testified as to the content of her statement dated 13 June 2025.
The witness further testified that the applicant’s husband has issued threats against the applicant’s person to her and to other members of her family.
The witness further testified that the applicant had attempt to report the abuse to the police and that no report was made due to her [husband’s connections] and that the police had instead encouraged the applicant to resolve the dispute with her husband.
The witness further testified that the applicant’s husband had threatened to harm her if she returns to Malaysia and expressed her view that he would carry out said threats.
The applicant was given until 27 June 2025 to make further submission. On 26 June 2025, the Tribunal received several photographs of the applicant and a man, purported to be her [husband].
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.
REASONS AND FINDINGS
Section 367A
I have regard to the applications submissions at paragraph (21) and (22) above and find them to be a reasonable explanation as to why the claims and evidence advanced before the Tribunal were not advanced before the Department. I, accordingly, do not draw an inference unfavourable to the credibility of the applicant’s claim pursuant to section 367A of the Act.
Credibility of the applicants Claims.
Having taken into account the overall consistency and coherence of the applicant’s evidence, I find the applicant’s testimony to be credible and note that the applicant’s account of her marriage and abuse is corroborated by the evidence of the witness [Sibling A].
I have had regard to the guidance of the Federal Court in SZLVZ v Minister for Immigration and Citizenship[1] that, in assessing credibility, the Tribunal must be sensitive to the difficulties often faced by applicants and should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.
[1] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 at [25] referring to Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437, per Beaumont J at 451 where his Honour acknowledged a need for decision-makers to have a liberal attitude in the proof of refugeehood, as claimants may have difficulties proving their allegations citing Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 per Gaudron J at 413 who noted that questions of refugee status usually need to be decided in circumstances which don’t permit facts as they exist in the country of nationality to be precisely ascertained.
I accordingly accept that the applicant is married to a Malaysian [Occupation 3], that he was verbally and physically abusive to her, and that he has threatened to harm her if she returns to Malaysia.
Regarding the applicants claim that she had attempted to report the abuse to the police and that they had declined to make an official report due to her [husband’s connections] and instead encouraged her to resolve the dispute with her husband, I note that this was also corroborated by the testimony of the witness [Sibling A].
I have further had regard to reports of the Department of Foreign Affairs and Trade which state that in-country sources indicate that it is not uncommon for a woman who has experienced domestic violence to be denied a police report.[2]
[2] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [30] – [31]
I note that this is consistent with the testimony of the applicant and [Sibling A].
I accordingly accept that the applicant had attempted to report the abuse to the police and that they had declined to make an official report due to her [husband’s connections] and instead encouraged her to resolve the dispute with her husband.
Does the applicant satisfy the refugee criterion for protection?
Under section 5J(4)(a) of the Act, one or more of the five refugee protection criteria in section 5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group, or political opinion) must be the essential and significant reason for the persecution.
I note the applicant’s accepted claim that she has been denied police protection from her husband’s abuse due to his [connections]. Having had regard to A v Minister for Immigration & Ethnic Affairs [1997] HCA 4, per Brennan CJ and Minister for Immigration v Khawar [2002] HCA 14 per Gleeson CJ at [31], I find the applicant’s membership of a particular social group comprising of spouses [experiencing domestic violence] to be the essential and significant reason for the persecution for the purposes of section 5J(4)(a) of the Act.
I categorise the harm to be threats to life or liberty pursuant to section 5J(5)(a) and significant physical harassment pursuant to section 5J(5)(b). I accordingly find this to be serious harm for the purposes of section 5J(4)(b).
I note that the applicant fears of harm based upon the accepted prior receipt of threats against her person and life. I note also the guidance of the High court in Minister for Immigration & Ethnic Affairs v Guo that past events, though not a certain guide as to the future, may provide a reliable basis for determining the probability of their recurrence.[3]
[3] Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574
I note also the accepted evidence of [Sibling A] that the applicant’s husband has continued to issue threats against her life and person.
I have also had regard to reports from the Department of Foreign Affairs and Trade which note that the Royal Malaysian Police is a reasonably well resourced and effective police force but that there is significant corruption.[4]
[4] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [41] – [42]

I note further that, in general, violence against women is both significant and underreported in Malaysia; and that police protection for women experiencing domestic violence is varied with in-country sources reporting that women who approach police for help are often encouraged to drop the matter.[5]
[5] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [30]
I note also the reports of the Department of Foreign Affairs and Trade referenced at paragraph (54) above that state that in-country sources indicate that police often fail to follow up on reports of domestic violence and that it is not uncommon for a woman who has experienced domestic violence to be denied a police report.[6]
[6] Department of Foreign Affairs and Trade, Country Information Report Malaysia, 24 June 2024, [30] – [31]
I am accordingly satisfied that there is a real chance that, if returned to Malysia, the applicant will be harmed for the purposes of section 5J(1)(b) of the Act.
I have had regard to the applicant’s testimony that her husband would, [with his connections], have the ability to ascertain her location if returned to Malaysia and that she would need to maintain contact with her husband in order to maintain contact with her [minor] children.
I note the finding above at paragraph (62) regarding police corruption and resources and I am satisfied that her husband would, [with his connections], have the ability to ascertain her location if returned to Malaysia. I am accordingly satisfied that the real chance of persecution relates to all areas of a receiving country for the purposes of section 5J(1)(c) of the Act.
I have further considered, pursuant to section 5J(2) whether effective protection measures are available to the applicant and, for the reasons set out at paragraphs (56), (63) and (64) above, find that effective protection measures are not available to the applicant.
I have considered whether, pursuant to section 5J(3) of the Act, the applicant could take reasonable steps to modify her behaviour so as to avoid the harm and note that the harm is directed at her due to her extant marriage and that separation from her husband has not, on the accepted evidence, deterred the issue of threats against her life and person. I find, accordingly, that there are no steps that the applicant could take to modify her behaviour so as to avoid the harm.
I have considered section 36(3) of the Act. I note that the applicant travelled to Australia on a valid Malaysian passport that states that they are a national of Malaysia and I accept on the evidence before me, namely a copy of the applicant’s passport, that the applicant is a national of Malaysia.
There is no evidence before me to indicate that the applicant is a national of any other country or has a right to enter and reside in, whether temporarily or permanently, any other country. I find accordingly that section 36(3) of the Act does not apply.
For the reasons set out above, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a).
Having concluded that the applicant satisfies the refugee criterion in s 36(2)(a), I have not considered the alternative criterion in s 36(2)(aa).
DECISION
The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies section 36(2)(a) of the Migration Act.
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.
…