2013146 (Refugee) - [2025] ARTA 745

2013146 (REFUGEE) [2025] ARTA 745 (11 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2013146

Tribunal:General Member E Kidston
Date:11 March 2025

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

Statement made on 11 March 2025 at 11:21am
CATCHWORDS
REFUGEE – protection visa – Indonesia – particular social group – victim of loan shark – fear of physical assault – mental health issues – state protection – internal relocation – delay in applying for protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, s 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 57, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs (the delegate) on 30 July 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Indonesia, applied for the visa on 18 September 2018. On 30 July 2020, the delegate notified the applicant of the decision to refuse to grant the visa. The decision was made on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant lodged a review application on 23 August 2020 with the Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal) and under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
On 4 December 2024 the Tribunal wrote to the applicant advising that his case was being prepared for allocation to a Tribunal Member. He was requested to complete a ‘Pre-hearing information’ form (Pre-hearing form) which included a section to provide further information regarding his claims for protection. The applicant submitted to the Tribunal a completed Pre-hearing form dated 10 December 2024 in which it stated under the heading “Claims for protection” the following:
The applicant did not provide any additional information or documentation to the Tribunal with the Pre-hearing form.
On 24 January 2025 the applicant was given notice of a hearing to be held on 3 March 2025 at 9.30am at the Tribunal’s Brisbane Registry. He was asked to complete a ‘Response to hearing notice’ form and provide any additional information he wished the Tribunal to consider. The Response to hearing notice stated that if the applicant wished the Tribunal to make a decision without holding a hearing, he could request this in the form. It was noted that if he were to request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in his absence, this does not guarantee he will receive a favourable decision.
On 25 February 2025 the Tribunal received a written request from the applicant for the hearing be rescheduled because of a medical appointment on 3 March 2025 and attached a diagnostic imaging referral form dated 21 February 2025 and an appointment card for 3 March 2025 at 2.30pm. No further explanation was provided concerning the medical appointment.
On 26 February 2025, a Tribunal officer gave notice to the applicant that the presiding Member considered his request and has not agreed to the postponement because his supporting evidence included a diagnostic imaging referral made on 21 February 2025 and the Tribunal’s hearing notice was issued to the applicant on 24 January 2025, predating the referral notice. The applicant was informed that the hearing will proceed as scheduled on 3 March 2025 at 9.30am.
On 27 February 2025, the Tribunal received a completed Response to hearing form from the applicant which noted he will not participate in the hearing scheduled for 3 March 2025 and requested the Tribunal to make a decision on the papers without holding a hearing. On 3 March 2025, the Tribunal wrote to the applicant advising that, based on his request, the hearing will be cancelled and a decision will be made on the available evidence. It was reiterated to the applicant that this does not guarantee that he will receive a favourable decision.
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (ART Act). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s 106(3) ART Act. On the basis of the information in the Response to hearing form, I am satisfied that the applicant has requested the Tribunal make its decision without holding a hearing. This understanding was confirmed to the applicant in the Tribunal’s email dated 3 March 2025, to which the applicant has not provided any response. I am satisfied that the circumstances in s 106(3)(b)(ii) of the ART Act are met.
I must also consider whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceeding: s 106(3)(c) ART Act. In reviewing a decision to refuse to grant a protection visa, the issues which I am required to determine are:
i.whether the applicant has a well-founded fear of persecution as outlined in s 5J of the Act with respect to their receiving country (s 36(2)(a) of the Act); and
ii.if he does not satisfy s 36(2)(a), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to his receiving country, there is a real risk he will suffer significant harm (s 36(2)(aa) of the Act)
The available evidence in this matter, canvassed in detail below, allows me to determine the applicant’s identity, receiving country and form conclusions about whether he engages protection obligations under s 36(2)(a) or 36(2)(aa) of the Act without seeking further evidence or submissions from him. I am satisfied that the issues for determination in this matter can be adequately determined in the absence of a hearing. Accordingly, I find that the requirements in s 106(3) of the ART Act are met, and I have proceeded to a decision without holding a hearing on that basis.
For the reasons that follow, I find the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or 36(2)(aa) and the decision under review is affirmed.
BACKGROUND
The applicant, [an age]-year-old male, arrived in Australia [in] February 2014 on a visitor (subclass FA-600) visa. On the movement details before me, he has not departed Australia since his arrival in Australia on that date.[1]
[1] Department of Home Affairs - International Movement Records – showing movements in and out of Australia - printed 16 January 2025
The applicant provided a certified copy of his Indonesian passport to the Department of Home Affairs (the Department) in support of his protection visa application. The delegate found the applicant to be a citizen of Indonesia. Based on the available evidence, I find that the applicant is a citizen of Indonesia, and that Indonesia is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
According to the protection visa application lodged with the Department on 18 September 2018 (Departmental application), the applicant was born in [District 1], Jakarta in Indonesia. His parents are both Indonesian. He identified his ethnicity as Indonesian and his religion as Catholic. He completed middle school in [Town 1], Jakarta in [specified year]. After he finished study, he helped his family look after [their] shop in 2013 and was supported financially by his family. He resided in [District 1] Jakarta until his departure for Australia in February 2014. He had never married, and he did not identify any family in Australia or overseas. He confirmed that he speaks, reads and writes in Indonesian and English, and he did not receive any assistance in completing the Departmental application.
It is convenient to include the following extracts from the Department application (unedited) regarding the applicant’s claims for protection:
·Regarding the reasons why he left Indonesia:
“I had to leave from my country Indonesia because I have a big
amount of debt. The debt was come from five years ago year,
my mother got critical illness and need a large sum of money for
the cost of treatment. First and foremost, due to high medical
expenses that I need to aid for my mother, I decided to borrowed
some money from the loan shark because I could not afford
for the high medical cost. I had borrowed the money from a
loan sharkin order to get treatment for my mother but, after my
mother get the treatment, she can not be saved as her disease
has spread throughout her body. I did not have any others family
members that can help me to repay my debt. At first, I was able
to repay my debt together with the interest to the loan shark but
after I always had to took leave from work because I had to take
care of my mother at the hospital, I was fired. After that, I could
not afford to pay them back well. Due to that, I did not work and
did not have enough money to pay my debt, the loan shark had
been looking for me and forcing me to pay their money.”
·In response to the question whether he experienced harm in his country, he responded “No”.
·In response to the question whether he moved or tried to move to another part of the country, he responded “No I'm not trying to move to another part of my country because I'm afraid if the loan shark can still find me and that will cause me in danger because I got behind my repayment.”
·Asked to explain what he thinks will happen if he returns, the applicant stated: “If I return to Indonesia, my life would be in danger and harassed because I get behind my repayments.”
·Asked if he thinks he will be harmed or mistreated if he returns? He responded “No”.
·In response to the question whether he thinks the authorities of his country can and will protect him if he goes back? He responded: “No. Authorities in my country could not help me because they do not interfere in economic problem and borrowing money from the loan shark is an illegal activity in Indonesia.”
·Asked whether he thinks he will be able to relocate within the country to an area where he would not be harmed, he stated “No. I am unable to relocate within my country because do not have any family members that can help me to repay my debt to the money lender. I am really scared and worried if the money lender can easy to find me because my country is a small country.”
On 29 June 2020, the Department sent a request to the applicant for further information under s 57 of the Act. On 10 July 2020, the applicant provided a written response to the Department (Written Response). The following is an extract (unedited) of the Written Response:[2]
Regarding to Department email on 29 June 2020 that require me to give more information about my application for protection visa, I will stated more here.
I want to add more details about my application. I was late applied for protection visa because I know no one that can help me. Beside that im also lacked knowledge and my English is very bad. I just depends on people around me where I lived in.
I been threat very bad by the people that I borrowed money from. They always beat me up as a reminder to pay them back. I was tried as best as I can but I cant afford anymore. In the end, I just sent my mom to folk house and I was run away. But unfortunately fate didn’t be on my side because those money lender easily find me. They force me to pay or they will disturb my mom. Everytime I been beaten up I cant get medical treatment since I didn’t have money and im too afraid to do so. I tried to ask for help from authority but because corruption, they just left me out. I couldn’t return back since my life is in danger. I was hurt mentally. I become so stressed and once tried to commit suicide. That’s why im running away and come to Australia to ask for protection since I cant bear anymore. I hope Department can consider my application.
[2] Obtained from the Department’s file provided to the Tribunal
Following receipt of the Written Response by the Department, the applicant was not invited to attend an interview with the delegate.
In refusing the application, the delegate stated the applicant’s claims and Written Response offered no details of key events that led the applicant to leave Indonesia and did not explain why there would be harm upon his return. The delegated determined the applicant’s lack of details in the claims or evidence to support his claims raised concern about its credibility. The delegate also considered the applicant’s evidence regarding the delay of 4 years between the applicant’s arrival in Australia and lodging the protection visa application due to not having anyone assist with the lodgement of a visa and his poor understanding of English raised concern that his claims may not be credible given the significant time that had passed. The delegate considered the applicant’s motivation for applying for protection was to delay his departure from Australia. Based on the concerns regarding the applicant’s claims, the delegate was not satisfied the claims were credible and rejected them in their entirety and concluded the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
In addition to the review application lodged with the AAT on 23 August 2020, the applicant provided the following documents to the Tribunal:
·a copy of the Department’s refusal decision dated 30 July 2020;
·a hearing response form dated 10 December 2024;
·diagnostic imaging referral dated 21 February 2025 and appointment card for 3 March 2025; and
·a second hearing response form dated 27 February 2025.
The review application includes a section where the applicant must state briefly why they want the decision reviewed. In response to “why the applicant claims the decision is wrong”, the application notes: “to continue my visa so I can apply workingwright”. Further, in response to whether he wished to provide any additional documents, it states: “No”.
RELEVANT LAW
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.
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).
Relevant provisions of the Act are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have also taken into account the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments concerning Indonesia prepared by the Department of Foreign Affairs and Trade (DFAT)[3] expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[3] DFAT report for Indonesia updated on 24 July 2023
FINDINGS OF FACT
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. As outlined in s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. The Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[4]
[4] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have considered the available evidence as outlined in paragraphs 16 to 22 above. I note that, while the applicant was expressly requested in the Pre-hearing form and Hearing response forms to submit any further information that he wished the Tribunal to consider, no additional information has been provided.
The applicant stated in his Departmental application that prior to his departure for Australia in 2014, he was threatened and beaten in Indonesia by the people he borrowed money from. He has not provided any specific details relating to the loan, lender, threats and harassment he experienced in Indonesia, nor has he provided any supporting evidence of such circumstances or events. Despite the Department’s notices to the applicant explaining these issues and requesting further information, the applicant did not provide any specific details regarding his claims and did not provide any information of circumstances relating to the loan since his arrival in Australia. I also note the applicant made reference in the Departmental application to his mental health condition prior to his departure to Australia but did not provide any information regarding what treatment was sought in Indonesia, or sought in Australia after his arrival.

I have had regard to the various opportunities the applicant had to provide particulars of his claims to the Department and to the Tribunal, spanning over 6 years since he lodged the Departmental application, and consider the failure to provide critical information, as well as the lack of any supporting evidence of relevance to his claims, significantly contributes to my concerns with credibility of his claims.
I also note that the Departmental application was lodged 4 years after the applicant’s arrival in Australia in 2014. I consider this is a significant amount of time to have lapsed in circumstances where the applicant claims to have fled Indonesia in fear for his life to seek safety in Australia. I considered the applicant’s explanation for why he did not lodge the Departmental application sooner[5] was because he did not know anyone who could assist him and his limited English skills. While I acknowledge that such language issues are commonly faced by newly arrived people in Australia, I am not satisfied that it adequately explains the significant delay of this nature. I therefore consider the delay of 4 years between when the applicant arrived in Australia to when the Departmental application was lodged contributes to my concerns with credibility of his claims.
[5] Noted in the Written Response – see extract at paragraph 17 of these Reasons.
Turning to the applicant’s reason for lodging a review application with the Tribunal, it stated in effect, that the review application was made to facilitate the continuation of a visa with working rights in Australia. I consider the explanation given in the review application to be a genuine reason for the applicant requesting a review and I accept that statement.
Considering all the above, I have serious concerns with the applicant’s vague descriptions and limited details on key aspects of his evidence regarding his claims for protection. I consider his failure to provide specific information and evidence to the Department and also to the Tribunal regarding his claims, in particular the failure to provide key terms of the loan and details of the purported harm suffered (both physical and psychological) despite having ample opportunity to do so of considerable concern. Furthermore, I do not consider the applicant’s explanation for not lodging the Departmental application sooner as sufficient justification or reasonable in the circumstances. I acknowledge that not all such issues are significant and do not necessarily lead to an adverse credibility finding however, having regard to the nature and extent of these concerns, I am satisfied that, in totality, they significantly undermine the credibility of the applicant’s claims and I do not accept the applicant’s claims to be credible.
Therefore, on the available evidence before me, I do not accept that the applicant had a loan in Indonesia which resulted in demands for repayments and he was subjected to threats of harm or suffered harm (either physically or psychologically). There is no evidence before me regarding the applicant’s circumstances (including his mental health) since his arrival in Australia in 2014. Therefore, I find there is no probative objective basis the applicant will be harmed for any reason if he returned to Indonesia.
Refugee and complementary protection assessment
From the available evidence before me I find the applicant’s place of likely return to be [District 1] Jakarta, Indonesia given this was his primary place of residence and the area where he was born and raised.
Considering my findings above, I have not accepted the applicant had a loan in Indonesia which resulted in demands for repayments or that he was subjected to threats of harm or suffered harm (either physically or psychologically) before his arrival in Australia in 2014. I have found there is no evidence regarding the applicant’s circumstances since his arrival in Australia and there is no probative objective basis the applicant will be harmed for any reason if he returned to Indonesia in the reasonably foreseeable future. On the available evidence, I am not satisfied that there is a real chance the applicant will face any harm from lenders or anyone else if he were to return to [District 1] Jakarta. Therefore, I find there is no real chance of harm to the applicant in the reasonably foreseeable future if he returned to Indonesia on account of his claims. It follows and I find there is no well-founded fear of persecution for the purposes of the refugee definition in s 5H, and the applicant is not a refugee for the purposes of s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have also considered the alternative criterion in s 36(2)(aa). That is, whether there are substantial grounds for believing as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm.
It is relevant to note that the ‘real risk’ threshold for complementary protection has been held to be the same as the ‘real chance’ threshold applicable to the assessment of ‘well-founded fear’ in the under the refugee criterion.[6] Having regard to my findings of fact and my real chance findings in paragraph 39 above, I am not satisfied there are substantial grounds for believing as a necessary and foreseeable consequence of being removed from Australia to Indonesia, there is a real risk that the applicant will suffer significant harm (either physical or psychological) for the reasons claimed. Accordingly, the criterion under s 36(2)(aa) is not met and I find the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[6] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
The applicant has not claimed to fear harm for any other reason if he returns to Indonesia and I find that no other protection claim arises on the accepted facts and evidence before me.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.
There is also no evidence before me 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) and cannot be granted a protection visa.
DECISION
The Tribunal affirms the decision under review.
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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