2017694 (Refugee) - [2025] ARTA 1222

2017694 (REFUGEE) [2025] ARTA 1222 (19 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2017694

Tribunal:General Member A Goldsworthy
Date:19 February 2025

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

Statement made on 19 February 2025 at 3:06pm
CATCHWORDS
REFUGEE – protection visa – Taiwan – political opinion – investigation for national security work – family espionage case – alleged political activity in China – passport renewal – exit procedures – return visit to Taiwan – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 1 December 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old female who is a national of Taiwan. She applied for the visa on 18 September 2019. The delegate refused to grant the visa and the applicant appealed to the then Administrative Appeals Tribunal.
The applicant appeared in-person before the Administrative Review Tribunal (the Tribunal) on 18 February 2025 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her protection visa application, the applicant claimed that she had left Taiwan due to having been watched by the Taiwanese and Chinese governments following her departure from a job at Taiwan’s [Agency 1]. She claimed her freedom of speech had been curtailed, her internet activity was being monitored and she had no privacy in Taiwan. She claimed to be at a higher risk of being charged or interviewed by the government, and that she was afraid of the Taiwanese government due to volunteer work she had done.
After being invited to provide additional evidence, the applicant submitted that some [occupation 1s] had received penalties from the government in Taiwan and that over the past year some people who were self-employed, studying or working as [an occupation 1] had been investigated by the governments of Taiwan and China. She also provided evidence of a proposal of commencing education about Taiwan at schools in China.
The applicant provided the Department with ID in the form of her passport bio-page. She was not interviewed by the Department.
The delegate refused to grant the visa on the basis that:
a. they were not satisfied that the applicant had a well -founded fear of persecution as defined in s5J of the Act for any of the reasons in s5J(1 )(a) in Taiwan; and
b. they were not satisfied that there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Taiwan, there was a real risk of the applicant suffering significant harm as outlined in s36(2)(aa) of the Act.
In her pre-hearing form, the applicant added significant information as follows:
My uncle and I both served in the military. He cannot develop an organisation for the enemy. This is a persecution targeting military personnel from other provinces. The case is currently in the third trial stage. Since I am also a subject of investigation, if I go back to Taiwan I will also be investigated. This will affect my personal life and even implicate my uncle’s case.
At the Tribunal hearing the applicant said that she had completed her protection visa application herself and that she knew and stood by all her claims.
Relevant oral evidence from the hearing, and relevant evidence from the applicant’s submissions, is included below.
Background
The applicant was born in [specified year] in Taiwan. Her parents separated when she was young and her mother left to live in [Country 1]. She emigrated to [Country 2] with her father, [and specified family members] in 1996. Her brother and sister received automatic [Country 2] citizenship but due to the applicant’s age, she received only Permanent Residency (PR) which she never translated into citizenship as she did not spend the required time in [Country 2]. She lost the opportunity to reapply for [Country 2] PR in about 2013 and had never investigated obtaining [Country 1] citizenship through her birth mother whom she had last seen around the age of 10.
The applicant’s father passed away in 2008 and her [siblings] reside in [Country 2]. The applicant remains in touch with some family members in Taiwan and said that if she were to be returned to Taiwan she would reside in Taipei.
The applicant spent some time living in the People’s Republic of China (PRC) and during this time claimed to be a member of a China-Taiwan [agency] but to not have had a leadership role. She also said that she had not partaken in any other political or ideological activities.
I accept these ‘background’ claims.
Harm from being investigated
During the hearing, the applicant claimed that when she returned to Taiwan from the PRC for 3 weeks in 2019 for a funeral, two friends had told her that she was being investigated by the Taiwan Government and she decided that she had to immediately flee. When the Tribunal put to her that she had received her travel visa for Australia before that time, she acknowledged that she had already planned to come to Australia to travel and study, but it was at that point that she decided she had to flee. I put to the applicant that this timing was quite coincidental and I found it a little hard to believe that she had happened to learn about an investigation just ahead of when she had planned to travel to Australia anyway. The applicant did not respond.
When asked to describe all instances of past harm, the applicant said that she had been investigated by the Taiwan government, she was worried about being investigated again, and that her family’s reputation had been tainted by an espionage case against her uncle. The applicant confirmed that she had no evidence or knowledge of an investigation against her except for the details her two friends had given her, both of whom worked in the national security apparatus and had allegedly seen her file and told the applicant that she had been followed and that her calls and internet activity were being monitored.
The applicant provided evidence of her uncle’s court case by means of media articles, which I accept to be true. I pointed out to the applicant that her uncle had been acquitted of all wrong-doing and asked whether that did not show that the judicial system was working well. The applicant denied this as she said that the prosecution would appeal the finding.
When asked what her uncle’s court case had to do with her seeking protection, the applicant said that both she and her uncle had some official connections with the PRC, and they were both investigated and he had been charged. I put to the applicant that I was failing to understand the connection. I noted that she had claimed to have done nothing wrong in the PRC or Taiwan and therefore if she was investigated as part of a legitimate process after some suspicion fell on her, the investigation would not uncover anything of consequence.
The applicant responded that the Taiwanese judicial system might be different to that of Australia, whereas here you were innocent until proven guilty whereas if you were suspected of wrongdoing in Taiwan, they had the right to continue investigating you. I put to the applicant that the authorities in Australia were also able to investigate people on suspicion of wrongdoing and that had nothing to do with the presumption of innocence. The applicant said that in Taiwan they maintained tracking and recording of her, and she knew this because her friends, one of whom was in the ‘[Agency 2]’ and the other who was in the [Agency 3], had seen her file though they did not have full access to it.
When asked what they had seen of her file, the applicant said they had only told her that she had been followed, had communications listened to and had some phone conversations recorded and intercepted. She said that some of her social media had also been ‘followed’. I asked the applicant whether she had asked them what else they had seen, she said she had not wanted to know. I expressed incredulity that she had not wanted to know the case against her nor what other actions authorities were taking against her but she maintain that she did not want to know.
When asked to describe why the applicant could not return to Taiwan, she provided an account of having been questioned at an airport and in a hotel lobby in the PRC, with the local authorities having claimed that she had made some remarks that threatened the security of the PRC. The applicant acknowledged having made the comments to a PRC official but had thought nothing of them. She explained that the authorities had tried to understand her meaning of the remarks and her ideology about the PRC and cross-strait issues. She said that they had also asked her if she was interested in working for them as a spy. I put to the applicant that her protection claim was related to returning to Taiwan, not the PRC.
She then claimed that she could not return to Taiwan because if she remained there for long the government may investigate her due to her political activity in China. She claimed that Taiwanese laws meant that any participation in political activities in the PRC would be assumed to be illegal and dealt with as such. I expressed scepticism at this and I put to her that this did not accord with information before me that reported Taiwan’s political and legal systems to be robust.[1] I noted that, as her uncle’s case had shown, due process was followed in Taiwan’s court system. The applicant responded that the prosecution would appeal the case.
[1] accessed on 17 February 2025.
Regarding her uncle’s espionage case, I reminded the applicant of her written evidence that if she were questioned by authorities it would negatively affect her uncle’s case; I invited her to explain why. The applicant said that if either she or her uncle were questioned or had actions taken against them, it would draw attention to the other’s case. She also said that she feared being kept in custody if investigated, based on her uncle’s experience. I put to her that her alleged case of being investigated was very different to that of her uncle. Her uncle had been quite senior in the military and there had been a specific accusation against him, while the applicant did not have a similar profile. I asked how her being questioned about her uncle would negatively affect his case. She told the Tribunal that if she were to be investigated again the authorities would bear in mind her uncle’s case.
The applicant claimed to have worked for Taiwan’s [Agency 1] for about 16 months in [specified years]. In her protection visa application, she described her role as researching, reading, and analysing public information. She also recorded having been [an occupation 2] [during this period], doing research and teaching. When asked, she nonetheless claimed that she worked at the [Agency 1] full-time. I pointed out that her submissions only evidenced that she had worked for a ‘[similar agency name]’ and not the [Agency 1], but the applicant said this must have been a mistranslation, despite it having been done by a certified translator.
I put to her that even were I to accept that she had worked for the [Agency 1], it had been about [number] years ago for a period of just over a year, and that she had only worked on public material. I asked why this would have any bearing on a national security investigation against her. The applicant claimed that this was only her public-facing work and that she had actually held a position equivalent to [rank 1] in the military and had been [Position 1 in] the [Agency 3]. In this role her duty included sharing communication between [related agencies]. I told her that this claim was very different to what she had described in her protection visa application and the applicant’s response was to apologise for not referring specifically to it.
I highlighted a written comment from the applicant that ‘some people or organisations within Taiwan authorities would secretly conduct interviews on people and their relatives who had served in sensitive government departments and who had lived in mainland China for years’. I asked her to tell the Tribunal about this and how she was affected by it.
She said that the authorities had not arrested her but they had done some investigations on her before they had arrested her aunt. She said that had happened from 2016 until the present. When asked how the applicant knew that she had been investigated, she said that her friends had told her and that it was to find out how deep the applicant’s contacts with the PRC Government ran and whether she had violated national security. I asked whether she had violated Taiwan’s national security and she said she did not think so. The applicant went on to broadly claim that national security teams would try to recruit people like her and if she returned to Taiwan the government would continue investigating and interrogating her and it was highly possible that she would be kept in custody before being charged.
I put to the applicant that information before the Tribunal did not support her claim that she would be arbitrarily detained.[2] The applicant did not respond to this but repeated that she believed she would be investigated.
[2] p.11. accessed on 17 February 2025.
I reminded the applicant of her written evidence that she feared the Taiwan government as a result of some volunteer work she did in the PRC for a few months in 2019 and invited her to expand on it. She said that there were a lot of Taiwanese people working in the PRC and they relied on an Association that assisted them with settling in and that was a bridge for communication between the PRC and Taiwan. The applicant explained that from the Taiwan government’s perspective, the Association was infiltrated with spies. The applicant said that because of this, she would be falsely accused and taken through the legal system. She also said that she was afraid the government would conduct random investigations on her.
The Tribunal asked the applicant why she had claimed in her written evidence to have been ‘watched’ since 2008 until the present. She explained that in 2008 she already had a file on her as she worked for the government but explained that the suspected espionage file that she had been told about in 2019 was a different one. When asked how she knew what the second file was for, given that she had told the Tribunal that her friends had not told her anything beyond what she previously shared, she said her knowledge came from the government position of assuming that all Taiwanese expats living in China likely helped the PRC.
I put to her that her reasoning was extremely speculative and that I did not believe that the Taiwan government painted such a broad brush over its citizens. The applicant then said that it was because her former husband was a PRC official and she had long been involved in activities in China. She then pointed to the [occupation 1] degree from which she had withdrawn, noting that she had been in touch with some organisations because of her former husband. The applicant said that [occupation 1s] who had been investigated by the Taiwan government had not held an official role but had still been investigated, and that her university classmates were becoming PRC [specified officials] and this was why she would be investigated. The applicant went on to say that she had conducted social research with the assistance of her ex-husband and noted that many non-government organisations had secret support from the PRC government. She claimed that all of these things constituted sufficient grounds for Taiwan to investigate her.
I referred to evidence submitted by the applicant that her Taiwan passport renewal had been denied in 2023, which she said was due to her being investigated and was a reason for why she could not return. She acknowledged that her passport had been renewed the second time that she had applied for it but noted that it was only after her uncle’s court case had reached a certain point. I put to her that her passport had nonetheless been renewed in January 2024 and this, along with her translated submission claiming to be an official document from the Taiwan government that she had no prohibitions placed on her leaving Taiwan [in] 2023, indicated that the Taiwan government had no issues with her. The applicant did not respond.

The applicant had also submitted that she had asked a family friend to apply for the renewal of her family’s Household Registration on her behalf and that this person had been asked to sign a consent form saying that he was aware that he would need to assist the government in any investigations if they arose. The friend had refused and then left. The applicant said that the form was titled ‘Assisting in the investigation of matters of major national security interest’ and pointed to this as proof that she was under investigation. When asked how normal it was for this form to be presented to someone like her friend who had sought to renew the Household Registration on her behalf, she said that she thought it was unusual as she did not know of any friends who had been asked. When asked what the implication was of the friend having failed in securing the renewal, the applicant said that she would simply have to do it herself. She clarified that if it was just for her then a lawyer could do it, but as it was for her family, she would need to do it.
I asked the applicant about her claim that her freedom of speech had been curtailed in Taiwan, and she acknowledged that this did not pertain to her specifically but to everyone in the context of speaking favourably of the PRC. I also asked the applicant about her claim that she had no privacy in Taiwan and she said that this was because her friends had told her that she had been monitored.
I put the following information to the applicant and invited comment on it:
Freedom of opinion and freedom of the press are well-established and are exercised unrestrictedly.[3]
The judiciary functions well and without undue political influence. Judicial independence is well-established in Taiwan, and court trials are generally fair. Appointments of judges are regulated and not subject to political considerations. Past allegations that courts are too closely allied to the Kuomintang party have not been substantiated by legally relevant evidence.[4] Court rulings are generally free from political or other improper interference. Constitutional guarantees concerning due process and defendants’ rights are generally upheld, and police largely respect safeguards against arbitrary detention. Although prosecutors and other law enforcement officials have engaged in abusive practices in the past, such violations have been less common in recent years.[5]
Taiwan enjoys a very good human rights record, according to all relevant international observer groups, and there are no reports of unlawful or arbitrary use of state power against the population or any specific minority[6] and the government is not known to illegally monitor online communications.[7]
[3] p.9. accessed on 17 February 2025.
[4] p.10. accessed on 17 February 2025.
[5] accessed on 17 February 2025.
[6] p.11. accessed on 17 February 2025.
[7] accessed on 17 February 2025.
The applicant responded that these points were all derived from American human rights reports and that according to her experience, everything in Taiwan was political and ideological and prosecutors and police may be overstepping their authority.
The Tribunal highlighted to the applicant that she had no evidence that she had been investigated in 2019 other than an allegation that she had been told by two friends. I again put to her that her uncle’s case seemed to have no relevance to her seeking protection. The applicant disputed the point about her uncle’s case, saying that if she returned she may be questioned about him. I put to her that even if she were, that would pertain to his case which had nothing to do with her being separately investigated. The applicant did not offer further comment. I put to her that while the Tribunal had not yet made its decision, her evidence made it hard to conclude that she would meet the criteria for protection. When invited to provide further comment the applicant declined.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
As confirmed with the applicant, her claim for protection rests on her assumption that she will be investigated by authorities on suspicion of acts against national security. This is based primarily on two friends having allegedly told her that she was being investigated in 2019, just before she was to come to Australia. The applicant has sought to strengthen the veracity of this claim by referring to her previous work in the Taiwan security apparatus, her connections to PRC officials and comments she had made whilst residing in the PRC. She also sought to rely heavily on assumptions of how the Taiwan authorities acted and thought.
I have a number of concerns with the applicant’s evidence, as detailed below.
a.The applicant declined to answer or respond to some points that challenged her evidence, from which I draw negative inference after having put her on notice;
b.I find it highly unlikely that if the applicant were under investigation, she would have been allowed to leave Taiwan in 2019;
c.I find it far-fetched that the applicant did not want to know everything her two friends knew about her alleged file;
d.I find it highly unlikely that not just one but both friends, who from the evidence I infer held security clearances, chose to break security laws in revealing such information to the applicant;
e.The coincidence that the applicant claims of having heard about an investigation against her, occurring only weeks before having already planned to come to Australia to travel and study, leads to further concerns;
f.I am not satisfied that the applicant’s evidence regarding her Household Registration renewal process constituted proof of her having been investigated. While I acknowledge that it may not be usual to have been asked to sign it, I find it to be likely to have been in response to her uncle’s espionage case rather than to an investigation into the applicant. The applicant claims to have not been told by any official authority that she was under investigation at any time. I find it far-fetched that if such an investigation were kept secret, such a form would be put to an applicant for a Household Registration renewal and that no other family or extended family members would have been approached;
g.The applicant variously claimed to have known to have been watched and investigated since 2008, 2016 and also only since 2019. I find this inconsistency to contribute to the overall concerns;
h.The applicant claimed to be at a higher risk of being charged or interviewed by the government due to her connections and other activities. While this is plausible, I find it to be speculative in the applicant’s specific circumstances; and
i.I find the applicant’s evidence about [occupation 1s], students and self-employed individuals being investigated to be broad and, based on evidence before the Tribunal, unsubstantiated.
Having had regard to the applicant’s evidence, as well as to the concerns above, I do not accept that the applicant was or is under investigation by the Taiwan government. I therefore find that the applicant does not face a real chance or a real risk of harm into the reasonably foreseeable future for reasons of investigation by Taiwan authorities.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:    18 February 2025
Representative for the Applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
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(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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