2015489 (Refugee) - [2025] ARTA 743

2015489 (REFUGEE) [2025] ARTA 743 (3 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2015489
Tribunal:General Member A Ryan
Date:3 February 2025

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

Statement made on 03 February 2025 at 10:39am
CATCHWORDS
REFUGEE – protection visa – China – forcible expropriation of farm land for development without adequate compensation – spokesperson for protesters/petitioners – detained, beaten, warned and monitored, and subject of false criminal charges – unhindered departure and new passport – no harm to family or other petitioners – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(b), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB [2013] FCAFC 33; (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 19 October 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 the People’s Republic of China (China), applied for the visa on 24 February 2019.
On 19 October 2020 the applicant made an application for review to the Administrative Appeals Tribunal (the AAT).
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 25 October 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 applicant was not represented in relation to the review.
BACKGROUND
Evidence before the Department
The applicant provided the following background details in his protection visa application. The applicant was born in Sichuan Province, China in [Year]. He is married and his wife continues to live Sichuan Province with their [Age] year old son. The applicant is of Han ethnicity and is an atheist. The applicant worked in construction in [Country] for three years between 2015 and 2018 before returning to his village in China where he worked as a farmer before coming to Australia. The applicant completed 9 years of schooling.
The applicant’s claims in his protection visa application are summarised as follows. [In] September 2018, officials from the [Town] government (to be referred to as the town government) forcibly expropriated the villagers' land, without settled compensation, under the guise of road repairs. Over 100 people came to undertake the land expropriations and using excavators they demolished crops on the land which lead to protests from villagers. The two sides clashed. The villagers were beaten with iron sticks. Many people were injured.
The applicant and others called the police for help many times and, although the police said that they were on their way, they did not come. Three villagers were sent to hospital for first aid due to severe injuries.
The day after the violent clashes, more than twenty villagers, including the applicant, chartered a bus and went to Guanghan City Government to lodge a complaint. They waited at the entrance of the city government office for more than two hours before they were told to send two people in to explain the situation.
When the applicant entered the office, the government official criticized them for bringing so many people to the office because it negatively affects the ability of those in the office to work. The officials listened to their report and told them they would investigate and verify the details. The official told the complainants to go home and wait for further news.
On the evening of [Day] September 2018, police officers from the police station came to the village and stated that they suspected someone stealing and hiding drugs.
The police came into the applicant’s house and forced he and his family to their living room while they searched his house. The police brought out a bag of ‘dancing outreach’, saying they found it in the applicant’s room. The applicant’s wife tried to stop the police from taking the applicant away, but they pushed her to the ground.
The applicant was taken to the police station, and he was abused by the police. They beat him with batons and told him that the government was powerful and influential and it was useless for him to appeal. The applicant was beaten, bruised, lacerated and his body was bloodied. The applicant’s family’s request to visit was refused. The applicant’s family paid RMB5,000 bail and he was released 2 days after being detained.
[In] September 2018, the applicant went to Deyang Municipal Letter and Visit Bureau (to be referred to as the municipal authority) to lodge an appeal. Outside of the door of Letters and Visits Bureau, the applicant was stopped by people sent by Guanghan City Government. They detained the applicant for two days and transferred him to Guanghan City Public Security Bureau. The applicant was taken to an interrogation room. They handcuffed him to an iron bar, and he was not allowed to move. When he moved, he was hit on his hand with iron rulers, which made his finger joints red and swollen. The applicant screamed in pain and promised not to appeal again.
After returning home, village people came to the applicant’s home and warned him not to appeal again, and they even sent a person to monitor him. The applicant and his family live in fear and he cannot return to China.
The applicant attached a copy of his passport to his protection visa application.
On 16 September 2020 the Department of Home Affairs (the Department) wrote to the applicant requesting the applicant provide more details and evidence in support of his application. The Department requested the applicant answer specific questions about what had happened to him in China and to provide supporting documentation. The applicant did not respond to this request.
Department interview
The applicant was not invited to an interview with the Department of Home Affairs.
Delegate’s decision
The delegate refused the applicant’s protection visa application on 19 October 2020. The delegate considered country information which indicted that people with an adverse profile with the Chinese authorities face travel bans and may have identity documents confiscated. The delegate found that the applicant’s ability to obtain a passport, leave the country without problems and did not respond to the request for further information indicates that he does not have an adverse profile with the Chinese authorities. The delegate was not satisfied that the applicant has a profile that would be of adverse interest to Chinese authorities in the foreseeable future and therefore found that there was not a real risk he would face serious or significant harm in China.
Evidence before the Tribunal
The review application
The applicant lodged an application for review to the Tribunal on 19 October 2020. No additional information was provided in relation to his protection visa application.
A copy of an application for medicare was sent to the Tribunal by the applicant which is not relevant to the review.
On 5 August 2024 the Tribunal wrote to the applicant to advise him that his case was being prepared to be given to a Member.
On 24 September 2024 the Tribunal wrote to the applicant inviting him to give further evidence and arguments at a hearing on 25 October 2024.
The Tribunal hearing
On 25 October 2024 the applicant appeared before the Tribunal. Where relevant, the applicant’s oral evidence is discussed in the Tribunal’s findings and reasons below. The Tribunal provided the applicant with 7 days to provide any further documents to the Tribunal and could ask for further time if it was required.
Post hearing submissions
On 1 November 2024 the applicant provided the Tribunal with a copy of his household registration document dated January 2024 and a copy of his national identity card. Both documents indicated the applicant’s place as residence was as he had claimed.
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 has a well-founded fear of persecution on return to China or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant claims to be a citizen of China. He came to Australia on a Chinese passport and provided this passport to the Tribunal at hearing. There is no information before the Tribunal raising concerns with the applicant’s identity. The Tribunal finds that the applicant is a citizen of China.
Claims for protection
Apart from some discrepancies about the dates as to when the applicant undertook protest actions in China, and his work in [Country], overall, the applicant’s evidence was generally consistent with the claims contained in his protection visa application.
At hearing, the applicant provided further details about the false drug charges that were made against him by the police. The applicant claimed that he was charged with taking and selling ecstasy pills which was untrue, and the drugs were put in his house by the police. The applicant confirmed that he was not taken to court and he was released from police after 2 days when his wife paid the police RMB5000. The applicant confirmed that once the RMB5000 was paid, no other action was taken against him in relation to the drug charges and the matter of the false drug charges was finished. The Tribunal put to the applicant that it is difficult to understand why the police would go to the effort to plant ecstasy pills and charge him drug offenses but then not take any further action. The applicant noted that the police only made up the charges to put pressure on him for the authorities to take his family land, which they did. The applicant also stated that the police did not put information about the false drug charges in any record as the purpose of the charges was to allow them to take his family’s land which they did. The applicant confirmed that as he did not have a criminal record, the previous false drug charges did not impact on his ability to leave China.
At hearing, the applicant explained that the authorities expropriated most of the applicant’s family’s land and only left them with a small amount to grow vegetables for themselves. The applicant confirmed that his brother’s family and mother survive from cultivating that land. The applicant explained that the government pays his family some compensation, approximately RBM1000-2000 annually, for the crops that they are not able cultivate because of the expropriated land.
The Tribunal discussed with the applicant as to whether he could provide documentary evidence of his family’s right to farm or ownership of the land, the expropriation of it or related to compensation payment that continue to be made. The applicant explained that his family does not have any paperwork related to the land as it was given for his family to use many years ago and usually farmers are given permission to use land for 20 to 30 years but they cannot own the land. The Tribunal has considered that after the hearing the applicant provided identity documents, noting he is registered to the village he claims to be from.
The applicant gave evidence that after making the petitions and returning home, from [August] the applicant and other petitioners were put under surveillance, by the police and neighbours, and were not able to leave the village. The surveillance continued from [August] 2018 for approximately 1-2 months until there were no more petitions and the road work, for which the land was expropriated, was complete. He explained that after this period of surveillance, the applicant was able to leave his village. The applicant stated that he wanted to look around other places and try to find a different place to live given the problems he faced in the past. The applicant explained that he applied for his visa to come to Australia in November or December 2018 and left China in December 2018.
The Tribunal discussed with the applicant that it appears from his evidence that at the time he left China in December 2018 that there were no ongoing actions in relation to the previous drug charges and no ongoing problems with the Chinese authorities. The applicant agreed with the Tribunal’s assessment of the situation. The applicant also confirmed that he applied and obtained a new Chinese passport in 2024.
The applicant confirmed that the people who he made the petition with are still living in his village but he has lost contact with them.
The applicant gave evidence that he understands that there have been other land confiscations which have occurred in other villages, and he has heard that other people have been framed like he was.
The applicant confirmed that his brother, mother and wife have not faced any other problems with the authorities in China, apart from verbal arguments with the authorities August 2018 related to the land expropriation.
The Tribunal put to the applicant that his description of what occurred indicated to the Tribunal that he had a negative experience with the authorities in August 2018, however the situation then settled down and at the time he left China he was not in danger and may not face harm in the future. The applicant confirmed that he fears that he will be harm from Chinese government officials who may cause trouble for him or they may send gangsters to target him. The applicant stated that because he was a representative of the villagers in making the petition he could still be a target for harm in the future.
The Tribunal pressed the applicant about why he fears he would face harm in the future as a representative of the petitioners when the other petitioners have been able to remain in his village and there is no evidence that they continue to be targeted. The applicant indicated that it is just a feeling.
The Tribunal pressed the applicant on if there were any reasons, he fears he would be harmed in the future because of those passed events. The applicant stated that he said it was possible he would be harmed.
The Tribunal put to the applicant that given that approximately 6 years have passed since these events, there have not been any problems for him or his family since August 2018, other petitioners still remain in his village, and his family is still farming the remaining land may indicate to the Tribunal that he is no longer at risk and would not face harm in the future. The applicant noted that that when he looks back at his time in China he feels fear and he does not have freedom. The Tribunal asked the applicant to provide further details of what he means that he does not have freedom. The applicant indicated that his feeling of a lack of freedom arises from the fear caused by the past events and he doesn’t think he will have freedom if he returns.
The applicant confirmed that he did not have any problems leaving China related to the false drug charges because the was no ongoing process, the police did not record the false charges and therefore these charges did not have any impact on him leaving China in December 2018.
The applicant confirmed that he has not engaged in any activities in Australia that he thinks would cause him a problem in China. The Tribunal asked the applicant if he would engage in any activities in the future in China which would cause him a problem in China. The applicant indicated that he had not thought about this issue. The Tribunal provided the applicant with the opportunity to provide further information but no additional information on this issue was provided by the applicant.
The Tribunal questioned the applicant about why he did not respond to the delegate’s written request for him to provide more specific information about his claims. The applicant indicated that he was not aware of that request for further information.

The applicant confirmed that he has not had any other problems in China and he had been able to provide all of his claims to the Tribunal.
The Tribunal considers that the applicant’s claims are largely consistent with relevant country information. The Tribunal has had regard to country information which indicates that millions of disputes are raised at petitioning offices each year[1] and ‘local authorities often have motivation to retaliate against petitioners, which might include laying charges for “picking quarrels and provoking trouble’’ or sending people to force petitioners to return home.[2] DFAT’s assesses that ‘people who organise or lead protests over land, local corruption, labour or any other matter critical of the government or CCP, face a high risk of official discrimination in the form of technical and physical surveillance, harassment, detention and imprisonment’ and that ‘petitioners and those who participate in protests face a moderate risk of official discrimination in the form of technical and physical surveillance, harassment, and detention’.[3]
[1] DFAT Country Information Report China, 27 December 2024 (DFAT Report 2024) at [3.148 – 3.149]
[2] DFAT Report 2024 at [3.148]
[3] DFAT Report 2024 at [3.156]
Having regard to all the information before the Tribunal, including his identity documents, the Tribunal accepts, that in August 2018, his family’s land was expropriated by the government for road works without adequate compensation. The Tribunal accepts that the applicant participated in village level protests which lead to violent clashes with from those carrying the road works and/or land expropriation. The Tribunal accepts that people were seriously injured at the protest and that the police did not respond. The Tribunal accepts that the applicant, together with other villagers, made a petition to the city level government.
Country information referred to above indicates that petitioners may face criminal charges related to ‘picking quarrels and provoking trouble’, and although the Tribunal does not have country information about police making other charges against petitioners, the Tribunal is prepared to accept the applicant’s claims that in 2018 he was taken by police from his home on false drug charges. The Tribunal accepts the applicant was detained for 2 days, was physically assaulted by police and released from police custody after his family paid RMB5000. The Tribunal also accepts that the applicant was detained for 2 days and physically assaulted by the authorities from Guanghan city when he tried to make an appeal to the Deyang Municipal Letter and Visit Bureau. The Tribunal also accepts that for 1-2 months from [August] 2018, the applicant was under surveillance from local authorities and was not able to leave his village and he did not make any further petitions or complaints. The Tribunal accepts the applicant’s evidence that after the situation had settled down the applicant was able to leave the village.
The Tribunal also accepts the applicant’s evidence that no record was made of the false drug charges against him, there is no ongoing actions in relation to these charges and that he does not have a criminal record. Further, the Tribunal accepts that the purpose of the police bringing false charges against him was to extort money from his family and pressure him to stop political action in relation to the land expropriation.
As noted by the applicant, he left his village when the situation had settled down including that he was no longer under surveillance, the protest actions against the land expropriation had stopped, the land expropriation had taken place and the road works were completed. The applicant noted that he did not have any ongoing problems with the authorities when leaving China. This indicates to the Tribunal that there was no adverse interest in the applicant at the time he left China. The applicant’s evidence that his family continue to reside in the village, farm the remaining land and have not faced any further problems with the authorities since August 2018 indicates that there is no adverse interest in the applicant’s family until now.
At hearing, the applicant indicated that he had not thought about whether he would take any action in China in the future which may cause him to have further problems. Despite being given time to provide any further evidence, he did not. Given the passage of time since his family’s land was expropriated and that he has not taken any further action in respect of the expropriation of his family’s land or his ill-treatment since August 2018, the Tribunal is not satisfied that the applicant will engage in any further action including protest, petitions or complaints in relation to the past expropriation of his family’s land, his past ill-treatment or any other related matter.
Although the Tribunal accepts that the applicant was harmed as claimed in 2018, having considered all the evidence before it, and for the reasons mentioned above, the Tribunal is not satisfied the applicant faces a real chance of harm serious harm on return to China in the reasonably foreseeable future, due to the issues of his protest, petition, appeals, arrest, detention and false drug charges, relating to the expropriation of his family’s property in 2018.
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 whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to China, there is a real risk that he would be subjected to significant harm. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[4] The Tribunal has found that the applicant does not face a real chance of serious harm related to his claims to have made complaints and petitions against corruption in China. For the same reasons, on the basis of the principles in MIAC v SZQRB [2013] FCAFC 33 the Tribunal is not satisfied that the applicant would face a real risk of significant harm as a necessary or foreseeable consequence of his removal from Australia to China.
[4] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
CONCLUSION
The Tribunal has considered the applicant’s claims and is finds that there is no real chance that the applicant would be persecuted in China now or in the reasonably foreseeable future. Therefore, the Tribunal finds that s 36(2)(a) of the Act is not satisfied.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). The Tribunal has considered the applicant’s claims and finds, there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to China, there is a real risk that the applicant will suffer significant harm.
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.
Hearing date:  25 October 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.
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