2008974 (Refugee) - [2024] ARTA 707

2008974 (REFUGEE) [2024] ARTA 707 (2 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008974
Tribunal:General Member R McLaughlin
Date:02 December 2024

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

Statement made on 02 December 2024 at 12:09pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and socio-economic conditions – unstable life, limited education and employment opportunities – no past harm or claim of fear of future harm – moderate and consistent claims and evidence – work experience and skills – working in Australia to support family – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
BLS18 v MICMA [2024] FedCFamC2G 462
DQU16 v MHA [2021] HCA 10
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
On 14 October 2024, the Administrative Appeals Tribunal (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, who claims to be a national of Malaysia, applied for the visa on 27 January 2020. The delegate refused to grant the visa on the basis that ‘the applicant’s claims [did] not relate to any of the reasons in s 5J(1)(a) and there [was] no other information before [the delegate] to suggest that they will be subject to harm on their return to Malaysia for one or more of these reasons’. In respect of complementary protection, the delegate found that the applicant’s claimed fear of economic hardship was ‘not significant harm within the meaning of s 36(2A) of the Act’.
The Tribunal accepts that the reference country for this applicant is Malaysia. Based on the material before it, the Tribunal accepts that the applicant is who she says she is, and that she is a national of Malaysia. The Tribunal also accepts that the applicant has no right to enter and reside, whether temporarily or permanently, in a third country.
The applicant appeared before the Tribunal on 28 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 is a Malay woman from Sabah in Malaysia. Her parents and four of her siblings still live in Malaysia. One sibling (a sister) is currently working in Australia. The applicant is not married and has no children. She has contact with her family in Malaysia weekly by phone.
The applicant claims to have had no formal education in that she did not attend school and was taught at home by her mother. Other siblings did attend school. The applicant confirmed that she reads and writes Malay and English and has an adequate command of mathematics for work an daily life. Prior to coming to Australia, she was a [products] salesperson; since arriving in Australia, she has worked in [work task 1] and now works in [work task 2].
Evidence before the Department
The evidence before the Department at the time of its decision was comprised of the applicant’s protection visa application and relevant identification details. The applicant did not respond to an invitation to provide further details as to her claims prior to the Departmental decision.
The claim as presented to the Department was as follows:
·     The applicant left Malaysia because of ‘financial [cruelty], unstable life, low education’, and because ‘political issue[s] seems never ending problem’.
·     The applicant has no trust in the political authorities in Malaysia.
·     The applicant stated that she had never experienced any harm in Malaysia.
·     The applicant sated that she could not move to another location in Malaysia as the ‘unresolved problem… will be the same situation’.
·     If returned to Malaysia, the applicant thinks they will experience ‘low quality of life’; however, she does not think that she will be harmed.
Evidence before the Tribunal
The evidence before the Tribunal was as follows:
·     The protection visa application (January 2020) and associated identification material.
·     The Department’s decision (May 2020).
·     A short statement contained in the applicant’s response to the Tribunal in the ‘pre-hearing form’ (May 2024).
·     The applicant’s evidence provided at the hearing.
Evidence presented prior to the hearing
The evidence provided by the applicant in the pre-hearing information form (May 2020) was a short repetition of elements of the applicant’s protection visa claim. The key elements of this May 2024 statement were as follows:
·     The applicant’s life in Malaysia ‘is incredibly difficult’.
·     This is because of ‘struggling to make ends meet, living in poverty with no stability’.
·     Due to ‘limited educational opportunities’, she faces ‘significant barriers to improving’ her situation.
·     The ‘persistent political unrest in Malaysia creates a climate of fear and uncertainty, making it unsafe for [her] to return’.
Evidence presented at the hearing
The evidence provided at the hearing was also centred on these same claims. The key integers of claim that arose at the hearing were as follows (noting that the details of these claims are further addressed below):
· The applicant needs a visa as she wants to stay in Australia and work, not go back to Malaysia.
· She does not like the politics in Malaysia as it is not stable, and the economy is still not good.
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
The issue in this case is whether the applicant faces a real chance that she will suffer persecution for a refugee criteria reason, or indeed for any other reason, if returned to Malaysia, now or into the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In assessing the applicant’s evidence, the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’, or that it is for the reason claimed.
A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the applicant must provide material, in as much detail as is necessary, to enable the Tribunal to establish the relevant facts as claimed. The Tribunal is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any or all of the allegations made by an applicant, or to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established.
In this regard, it is essential to recall that – in relation to the claimed reasons for or nature of persecution - that
‘if a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).’[1]
[1] From the ART ‘Optional Standard Paragraphs’ Guidelines document.
Further, as noted immediately above and as relevant to the applicant’s case, the associated issue of what constitutes ‘serious harm’ is a key element of assessment, noting that:
‘For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.’[2]
[2] Ibid.
In this case, the credibility of the applicant’s evidence is not the key assessment issue. Indeed, the Tribunal found the applicant to be generally credible in that her evidence at the hearing was (1) generally consistent with her claims as previously explained in her protection visa application and her additional 2024 pre-hearing statement; (2) was relatively consistent through out the course of the hearing; and (3) was moderately presented with no obvious material implausibilies or hyperbole.
This said, there was however one aspect of the applicant’s claims that the Tribunal did not accept as credible. This aspect was the applicant’s claim that she had not ever attended school. However, the Tribunal’s view on the credibility of this element of claim was not material to the Tribunal’s ultimate assessment and therefore was given no weight. This is because the applicant’s claimed level of education did not speak to the applicant’s capacity to work now, and this was something the applicant also accepted. This issue is noted in more detail below.
Rather, in this case, the key assessment issue is whether the applicant’s claims rise to the level of persecution creating the potential for identifiable forms of harm at the threshold required for a claim under the refugee criterion.
To this end, the key integers of claim before the Tribunal were as follows:
· The low income and opportunities claim.
· The impact of political instability on her economic situation claim.
Assessment of, and findings on, these specific integers of the applicant’s claims
The evidence provided to the Tribunal in respect of each of the claim integers identified above, along with the outcomes from any clarifications sought or Country Information posed by the Tribunal in response, is set out below under each relevant claim integer heading.
1. As to the low income and opportunities claim
There are several sub-elements to this claim:
·     Financial cruelty and poverty.
·     Unstable life.
·     Low education.
There are, however, some common elements across these sub-integers of claim which the Tribunal also confirmed with the applicant, and which are relevant to assessing each of the issues below. These were that:
·     The applicant has Malay and English language skills, and mathematics skills.
·     The applicant has salesperson skills from her previous employment in Malaysia.
·     The applicant has [job tasks 1 and 2] skills from her employment in Australia.
·     The applicant has not experienced any harm in Malaysia.
·     The applicant did not believe she would be harmed or mistreated if she returned to Malaysia.
In relation to the specific sub-integers of this claim set, the applicant first claimed that she had suffered in the past and – if returned to Malaysia – would suffer once again, ‘financial cruelty and poverty’.
The Tribunal asked the applicant to explain what she meant by this claim. The applicant responded as follows:
·     She wants to stay in Australia longer as the situation back in Malaysia is not stable.
·     Her father is a fisherman, and her mother is a home-maker, so the family has low income.
·     The applicant has two younger brothers at school who require support. One sister is married and lives away with her husband; one other brother works and helps support the applicant’s parents and younger brothers. The applicant’s sister who is in Australia also helps to support the family, as does the applicant herself.
·     She heard that Australia was taking in refugees, so she came here as life was unstable in Malaysia.
The Tribunal next asked the applicant to explain how her claim of ‘unstable life’ was relevant to her application for refugee status. The applicant responded that if she stayed in Malaysia, she would have to work for low pay.
The Tribunal then asked the applicant to explain the relevance of ‘low education’ to her claim. The applicant responded that:
·     She had not attended school but had been taught at home by her mother.
·     That in Malaysia if you don’t have money you can’t go to school.
·     That she had asked for financial assistance from the government to help her go to school but had not received any.
The Tribunal then raised a number of relevant elements of Country Information with the applicant. First, the Tribunal explained that it considered this Country Information to be highly credible because of its official source and detail. Second, the Tribunal explained that it would welcome any thoughts or response the applicant might have to this Country Information.
The first relevant element of Country Information raised with the applicant was that Malaysia provides universal free and compulsory education for grades 1-6.[3] The applicant responded that she did not go to school because she wanted to help her parents so that they did not face financial difficulty.
[3] DFAT Country Report – Malaysia, 24 June 2024, para 2.15.
The second element of Country Information raised with the applicant was that Malaysian nationals – including those from Sabah and Sarawak - can freely relocate and work in Malaysia.[4] The applicant responded that this was true, but that wherever she relocated to, she would only be able to get a low paying job.
[4] Ibid, paras 5.24-5.25.
The third element of Country Information raised with the applicant was that the Malaysian economy is currently at its strongest growth rate since before the covid pandemic, and that the unemployment rate is now down to 3.4%.[5] The applicant responded that this may be the case for peninsula Malaysia, but she is from Sabah (in Borneo).
[5] Ibid, paras 2.9-2.10
Possible adverse assessment matter put to the applicant. The Tribunal next raised with the applicant that, on the basis of all the material before it, it was necessary to put to the applicant an assessment that may form part of the Tribunal’s reason for affirming the decision under review.
The Tribunal explained that this was relevant to the review because if the Tribunal placed weight on this assessment, it would undermine the applicant’s claims before the Tribunal. The Tribunal explained that it would like the applicant to comment or respond to this information, and that she could ask for an adjournment prior to doing so if she wished.
The Tribunal then explained that, on the basis of all the information before it, the Tribunal believed that the applicant would be able to secure employment and to earn a living if she returned to Malaysia.
The applicant indicated that she wished to respond immediately. The applicant then stated that the problem is that she does not want to go back to Malaysia; she is comfortable in Australia compared to when she was in Malaysia.
The Tribunal’s findings on this integer of claim
As to past harms, the Tribunal does not accept that the applicant has suffered persecution in Malaysia based on her low income, low education, or other life instability. This is for two reasons.
First, the applicant confirmed that she had not suffered any previous harm in Malaysia.
Second, as noted above, the applicant did not advance any material that rose to the level of indicating any persecution for any refugee criterion reason.
As to future harms, the Tribunal does not accept that the applicant faces a real chance of persecution or harm for any refugee criterion reason, or for any other reason, if returned to Malaysia, now or into the reasonably foreseeable future. This is for three reasons.
First, the applicant confirmed that she does not fear that she will be harmed or mistreated if returned to Malaysia.
Second, the applicant confirmed that she does not fear death, the imposition of the death penalty, torture, or any form of inhuman or degrading treatment or punishment, for any reason, if returned to Malaysia.

Third, the Tribunal does not accept that the applicant will be unable to gain employment, and to earn a living and to subsist, if returned to Malaysia, based on location, education, or any other reason.
This is because: (1) The applicant has worked in Malaysia in the past; (2) the applicant has several skill sets useful for employment in Malaysia, including skill sets acquired in Australia; (3) the applicant’s claimed lack of formal education does not appear to have affected her ability to read and write in both Malay and English, and to operate at a level of mathematical literacy relevant for her daily life and work skills.
Furthermore, the Tribunal accepts as highly credible the Country Information noted above concerning ability to relocate, positive economic growth, and low unemployment. The Tribunal is of the view that this Country Information is highly relevant to the applicant’s claims as it indicates that the applicant would be able to secure employment, and to relocate for work if necessary, if returned to Malaysia, now or into the foreseeable future.
2. As to the impact of political instability upon her economic situation claim
The Tribunal asked the applicant to explain this element of her claim. The applicant responded as follows:
·     Even despite recent elections, nothing has changed in the political situation in Malaysia; Ministers change, but nothing has really changed - for example, recent corruption and state funds theft issues relating to politicians.
·     This situation has not changed even with the recent 2022 election.
·     Malaysia has not developed economically, and this is especially so for Sabah.
·     The ‘judicial system did not protect her in terms of finance’, which the applicant explained was a reference to her claim that she was not given financial support to attend schooling.
·     Her statement about having ‘no trust in the political authorities’ is because salaries in Malaysia are low compared to what she can earn in Australia.
·     Her statement as to it being ‘unsafe for her to return’ was related to the fact that her salary in Malaysia would be lower than what she can earn in Australia, and for that reason she does not want to return to Malaysia.
The Tribunal’s findings on this integer of claim
The Tribunal does not accept that the applicant faces any chance of harm from the political situation if returned to Malaysia, now or into the reasonably foreseeable future. This is for two reasons.
First, the applicant confirmed (as above) that she does not fear any harm in the form of death, the imposition of the death penalty, torture, or any form of inhuman or degrading treatment or punishment, if returned to Malaysia, for any reason.
Second, when specifically asked by the Tribunal if she had any other fears to tell the Tribunal about, she expressly stated ‘no’, and that her sole fear and claim was that she would have to take low paid work. However, for the reasons noted above, the Tribunal does not accept that - even if the applicant had to take a low paid job – she would face any harm from this situation, now or into the reasonably foreseeable future.
Does the applicant satisfy the refugee criterion for protection?
For the reasons set out above, the Tribunal does not accept that any of the applicant’s claims indicates or evidences a real chance of harm, for a refugee criterion reason or for any other reason, if the applicant were returned to Malaysia, now or into the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?
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 has considered whether 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 as defined by the Act.
The Full Federal Court has held that the ‘real risk’ test applicable in complementary protection criterion assessments imposes the same standard as the ‘real chance’ test applicable in refugee criterion assessments.[6]
[6] MIAC v SZQRB (2013) 210 FCR 505 [256], [297], and [342].
The Tribunal is ‘entitled to refer and rely upon relevant findings as to the refugee criterion under s. 36(2)(a) in considering the complementary protection criterion under s. 36(2)(aa)’.[7] In this respect, the Tribunal has had regard to the refugee criterion claims as above, but now in the context of complementary protection.
[7] DQU16 v Minister for Home Affairs [2021] HCA 10, [27]; BLS18 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FedCFamC2G 462, [47].
Consequently, the Tribunal finds that the ‘no real chance’ findings as to all the integers of claim as set out above in the context of the refugee criterion are transferable to its consideration of the ‘real risk’ assessment as per the complementary protection criterion. The Tribunal therefore does not accept that the applicant faces a real risk of suffering any form of significant harm as specified in s 36(2A).
Consequently, the Tribunal is not satisfied that the applicant faces a real risk that she will suffer significant harm if returned to Malaysia, now or into the reasonably foreseeable future, for any reason.
The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSION
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(s) of hearing:   28 November 2024
Representative for the Applicant:              n/a
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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