2012603 (Refugee) - [2025] ARTA 1074

2012603 (REFUGEE) [2025] ARTA 1074 (9 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2012603
Tribunal:General Member M. Moustafine
Date:9 January 2025

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

Statement made on 09 January 2025 at 4:01pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social groups – long periods as unlawful non-citizens – marriage and child not registered in home country and child would be considered illegitimate – fear of mistreatment or discrimination – country information – late registration possible with payments of fines – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (3), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Luu v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MIEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 August 2020 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be nationals of Malaysia, applied for the visas on 10 January 2020. The delegate refused to grant the visas on the basis that he was not satisfied that the applicant was a person in respect of whom Australia had protection obligations under either refugee or complementary protection criterion.
On 7 August 2020 the applicants applied to the Administrative Appeals Tribunal (AAT) for a review of that decision.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The first named applicant (the applicant) is a [Age]-year-old citizen of Malaysia. He arrived in Australia [in] April 2012 as the holder of a UD-976 electronic travel authority (ETA) visa valid until 6 July 2012. The second named applicant, the applicant’s wife is a [Age]-year-old citizen of Malaysia. She last arrived in Australia [in] January 2015 as the holder of a UD-601 travel authority valid until 28 April 2015. Both applicants were granted Bridging visas on 20 January 2020 in association with their combined Protection visa application lodged on 10 January 2020.
Evidence before the Department
According to the Protection visa application form, the applicant was born in [Year] in Kuala Lumpur, Malaysia and lived in Selangor, Malaysia until he left for Australia. The applicant’s wife was born in [Year] in Kuala Lumpur. Both applicants identified their ethnicity as Chinese and their religion as Buddhist. They speak, read and write in Mandarin and Cantonese. Both indicated that they had never studied or been employed. The applicant said he supported himself through his savings and support from friends. Each of the applicants left Malaysia legally on their Malaysian passport, copies of which were submitted with their application. The applicants married [in] September 2015. Their [child] was born in [City], Victoria on [Date]. They have parents in Malaysia.
In summary, the applicant’s protection claims as set out in his application form and accompanying statement were as follows:
·     He arrived in Australia in April 2012 on a tourist visa, overstayed and remained in Australia illegally, supporting himself by low paid work and the support of family and friends.
·     He met his wife in early 2015 and their child was born in [Year] ‘stateless’. They were unable to register the child with Malaysian authorities as she was born overseas, and he and his wife were not married in Malaysia.
·     They have remained in Australia illegally for the sake of their child as they fear their child will be unable to be registered as a legally born Malaysian child and so not entitled to any Malaysian government benefits if she returns to Malaysia.
·     He fears that if they return to Malaysia, their child will be mistreated as an illegal child, and they will be mistreated or discriminated because of that.
·     The child has been living in Australia since birth and has adapted to the Australian way of life and the applicant and his wife have stayed in Australia for so long that they will be unable to seek employment and unable to support their family. Their child will be unable to go to school and the applicants will not be able to easily find employment.
Although the applicant’s wife indicated in the application form that she was making her own claims for protection, she did not detail any claims of her own, apart from answering ‘no’ to a few questions, including that she did not experience harm in Malaysia and did not think she will be harmed or mistreated if she returns there. The Tribunal has therefore assessed her against the claims made by her husband.
Supporting documents submitted to the Department included copies of the biodata pages of the applicants’ Malaysian passports; and the Victorian birth certificate of their [child], born on [Date]. It recorded the names of both applicants as parents and the date and place of their marriage as [September] 2015 in [Suburb], Victoria.
The delegate refused to grant the applicants Protection visas as he was not satisfied that they were persons in respect of whom Australia had protection obligations under either the refugee or complementary protection criterion. With reference to country information regarding citizenship and illegitimacy in Malaysia, the delegate found that as both applicants were Malaysian citizens, Malaysian citizenship was available to their [child]. The delegate noted that as they were married in Australia, as confirmed on their child’s birth certificate, although they had not registered their marriage officially in Malaysia in the appropriate legal timeframe, they could still do so. While accepting that, as they had not done so, the applicants may face discrimination as members of the particular social group ‘parents of an illegitimate child’, the discrimination they might face as Buddhists, not subject to Syariah law, did not reach the threshold to constitute persecution under s5J of the Act.
Evidence before the Tribunal
On 7 August 2020, the applicants applied to the AAT for a review of the Department’s decision, a copy of which they provided for the purpose of the review. With their application they provided a copy of the birth certificate of their [child], as previously provided to the Department (paragraph 9 refers).
On 3 June 2024, the applicant was invited to complete a Pre-hearing information form, updating contact details, and providing any more information about his claims for protection and reasons why he was afraid to return to his home country, as well as information about any family members with a case before the AAT. In his response of 8 June 2024, the applicant stated that he hoped the Tribunal would take into consideration that their Australian-born [child] was now [Age] years old, attended the local primary school, had become accustomed to living in Australia and had many close friends; and he and his wife had stable jobs within the community.
The applicants appeared before the Tribunal on 12 December 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The Tribunal discussed with them their backgrounds in Malaysia, their reasons for leaving and why they fear returning there. The applicant told the Tribunal that his friend helped him fill out the form but that he knew what was in it and did not wish to make any changes or additions. Where relevant to their protection claims, the applicants’ evidence at the Tribunal hearing is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA (1994) 52 FCR 437 at 451.
REASONS AND FINDINGS
The issue in this case is whether the applicants are persons in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.
Country of reference
On the basis of their Malaysian passports provided to the Department and in the absence of evidence to the contrary, the Tribunal accepts that the applicants are nationals of Malaysia and considers Malaysia as the country of nationality and the receiving country for the purpose of assessing their claims against the refugee and complementary protection criteria, respectively.
The applicants’ claims
The applicants each told the Tribunal at the hearing that they came to Australia on 3-month tourist visas and remained here because they liked the lifestyle and environment in Australia. The applicant arrived in 2012 and his wife in 2015. They met in Australia, married in September 2015 and their [child] was born in [Year]. They lived in Australia illegally for many years, working on [workplaces] in [City], Victoria.
In a discussion of their backgrounds in Malaysia, the applicant told the Tribunal that he completed year 12 of high school in Malaysia and ran his own business selling [products]. His wife said she completed year 9 of high school and worked as [occupations 1 and 2]. Both have family members living in Malaysia.
Both applicants confirmed that they did not suffer harm in Malaysia. The applicant said they applied for protection in January 2020 because their Australian born [child] had no status in Malaysia. Essentially, he claimed that, as their [child] was born in Australia to parents who had not been married in Malaysia, [s/he] was stateless and would not be recognised as a legally born Malaysian child. The applicant feared that, if they returned to Malaysia, their [child] would face discrimination and mistreatment as [s/he] could not be registered with Malaysian authorities or be entitled to any Malaysian government benefits and he and his wife would suffer discrimination as a result. Additionally, the applicants claimed that having been out of Malaysia for such a long time, they would find it difficult to find employment and support their family there and were uncertain as to what would happen when they returned to a country with three ethnic groups.
As discussed with the applicants at the hearing, as noted in the DFAT report, according to Malaysian law, ‘children born overseas to Malaysian parents receive Malaysian citizenship after registration at a Malaysian consulate, or at the National Registration Department in Malaysia’[1]. This was noted in the delegate’s decision and the requirements for registration of birth/citizenship, including for ‘children with a Malaysian citizen father & over one (1) year old’, is outlined clearly on the website of the Malaysian Consulate in Melbourne[2].
[1] DFAT, DFAT Country Information Report Malaysia, June 2024, p.46.
[2] Consulate General of Malaysia, Melbourne, Birth Marriage Registration, >
Based on the documentary evidence submitted, both applicants are Malaysian citizens. Consequently, there is no impediment to their registering their child as a Malaysian citizen either at the consulate in Australia or in Malaysia. The applicants’ [child] is, therefore, not stateless, is eligible for Malaysian government benefits and the applicants will not suffer discrimination as a result of her having no nationality, as claimed. The applicants responded that their friends told them it was not necessarily the case that their [child] would be granted Malaysian citizenship as [s/he] was born overseas. However, the Tribunal suggested that the publicly available Malaysian government information on the consulate website was a more authoritative source of information than the hearsay of friends.
The applicants confirmed at the hearing that at the time their [child] was born in [Year] they were already married in Australia in September 2015 and had an Australian marriage certificate to this effect. Further, they were identified as parents on their [child]’s Australian birth certificate submitted to the Tribunal, which also records the date and place of their marriage. At the hearing the applicants claimed that, as they had not registered their marriage with the Malaysian Consulate within six months as required, their [child] would still be considered to be illegitimate.
The Tribunal put to the applicants that, according to information on the Malaysian Consulate website, a penalty applied if an overseas marriage was not registered with Malaysian authorities within six months. According to the Malaysian government portal, the financial penalty for registration made more than 6 months after the date of registration of marriage outside Malaysia is: RM100.00 (equivalent to AU$32.00) for the first year and RM50.00 for each subsequent year.[3] As discussed with the applicants, in their case, the fine would amount to RM500 or AU$160. The Tribunal suggested that registering their marriage with the Malaysian Consulate and paying the fine would be a reasonable step to avoid their [child] being regarded as illegitimate and any discrimination for them as a result. In these circumstances, the Tribunal does not support the Department’s finding that the applicants might face discrimination as members of the particular social group of parents of illegitimate children, although it would not rise to the level of persecution.
[3] Jabatan Pendaftaran Negara Malaysia, Re-Registration Of Marriage For Non-Muslim Couples Registered According To The Laws Of The Foreign Country On Or After 01.03.1982, (last updated: 09.01.2025).
In view of the above, the Tribunal is not satisfied that the applicants’ [child] would be stateless or unable to be registered as a Malaysian citizen, as claimed; nor that [s/he] would be regarded as illegitimate if they registered their Australian marriage and paid a small penalty for the delay, which the Tribunal considers to be a reasonable step, in accordance with s 5J(3). The Tribunal is not satisfied that if they return to Malaysia the applicants will face discrimination or ill-treatment on the grounds that their [child] would be stateless or illegitimate, as claimed.
The Tribunal is dubious about the applicants’ claim that having been outside Malaysia for a long time, they will be unable to find employment and support their family if they return to Malaysia. As discussed with them at the hearing, given their demonstrated ability to build a new life and work in the foreign environment in Australia, the Tribunal considers that the applicants will be able to reestablish themselves in the familiar cultural environment in Malaysia, where both applicants have family and previous work experience.
While the applicants may be apprehensive about returning home after their prolonged stay in Australia, the Tribunal does not accept that they will suffer harm for this reason. As discussed with the applicants, many Malaysians travel abroad for study or work and there is no evidence that they face harm as a consequence of spending time out of the country. DFAT reports that authorities generally pay little attention to Malaysians who overstay their work or tourist visas upon their return to Malaysia and failed asylum seekers rarely face adverse attention, as the Malaysian Government is usually unaware that someone is a failed asylum seeker, although it is possible some failed asylum seekers could face questioning on return, particularly if their passport expired while abroad.[4] Nor does the Tribunal accept that the applicants will face harm because they are Chinese Malaysians, the second largest ethnic group in Malaysia, who comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia[5].
[4] DFAT, DFAT Country Information Report Malaysia, June 2024, pp. 45-46.
[5] DFAT, DFAT Country Information Report Malaysia, p.15.

The Tribunal accepts that the applicants would like to remain in Australia with their [child]. However, it is not satisfied that they meet the criteria for the grant of Protection visas. The Tribunal notes the evidence of the applicants that they did not experience harm in Malaysia and remained in Australia unlawfully for many years after their tourist visas expired. They then applied for protection four years after their [child] was born on the basis of claims regarding [her/his] status in Malaysia which are not supported by country information. As suggested to the applicants at the hearing, it is the Tribunal’s view that their claims to fear harm in Malaysia are not genuine but have been contrived for the purpose of making a protection visa application and extending their stay in Australia.
Having considered all of the applicants’ claims, individually and cumulatively, and all the evidence before it, the Tribunal is not satisfied that the any of the applicants ever faced serious harm in Malaysia, nor that they will face serious harm for the reasons claimed if they now return to Malaysia. The Tribunal is not satisfied that their child will be unable to be registered as a legally born Malaysian child and so not entitled to any Malaysian government benefits; nor that their child will be mistreated as an illegal or illegitimate child or that the applicants will be mistreated or discriminated against because of that.
On the evidence before it, the Tribunal is not satisfied that there is a real chance that if the applicants were to return to Malaysia, they would face harm for any of the reason contemplated by s.5J(1)(a) of the Act or that the applicants have a well-founded fear of persecution. For the same reasons, on the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Malaysia, there is a real risk that they will suffer significant harm.
CONCLUSIONS
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION
The Tribunal affirms the decisions not to grant the applicant protection visas.
Date of hearing:       12 December 2024
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…