2017936 (Refugee) - [2025] ARTA 730

2017936 (REFUGEE) [2025] ARTA 730 (7 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2017936
Tribunal:General Member N Goetz
Date:7 March 2025

Place:Melbourne
Decision:The Tribunal affirms the decisions dated 20 November 2020 under review.

Statement made on 07 March 2025 at 4:25pm
CATCHWORDS
REFUGEE – protection visa – Portugal – fear of harm from second applicant wife’s ex-husband and gang – released from jail while applicants in Australia – approaches to family – undetailed evidence and no supporting statements or documentation – delay in applying for protection – applied after holding visitor and student visas – consent to decision without hearing – intention to apply for ministerial consideration – second child born in Australia after application for review made – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 348A, 351
Migration Regulations 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Migration Act) by a delegate of the respondent who refused to grant each applicant a protection visa.
The Department file reference is [Reference].
The applicants were not represented in the review.
The Minister is taken to be a non - participating party in the review under s 348A of the Migration Act.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Migration 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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Migration Regulations.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal must take 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.
Background and procedural history
According to the visa application form, the applicants are [the first applicant], his de facto wife [the second applicant] and their child [the third applicant].
On 25 July 2016 [the applicants] were offshore and granted eVisitor visas to travel to Australia.
[In] September 2016 [the applicants] arrived in Australia holding the eVisitor visas. They have remained in Australia since that date. The eVisitors were valid until 20 December 2016.
On 10 December 2016 [the applicants] applied for student visas.
On 26 April 2017 [the applicants] were granted the student visas which were valid until 30 August 2019.
On 28 August 2018 [the applicants] applied for the protection visas.
On 20 November 2020 [the first applicant] participated in an interview with the delegate with an interpreter.
On 3 December 2020 the delegate refused to grant each applicant a protection visa.
On 15 December 2020 the application for review of the decision was lodged with the Administrative Appeals Tribunal (AAT).
On 14 October 2024 the AAT was abolished, and the review was transferred to the Administrative Review Tribunal (the Tribunal) pursuant to Part 24 of Schedule 16 to the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) (Transition Act No. 1).
On 21 February 2025 the Tribunal wrote to the applicants via their (then) representative and invited the applicants to appear at a hearing scheduled to commence at 2:30pm on 7 March 2025.
On 26 February 2025 the Tribunal received a request from the representative to postpone the hearing because the representative was scheduled to undergo surgery on 4 March 2025 and would not be able to attend the hearing. The representative requested the hearing be postponed until the end of April 2025 to give the representative time to recover from the surgery.
The Tribunal considered the request to postpone the hearing but was not persuaded to do so. Representatives have a limited role in Tribunal hearings, and unavailability of a particular representative is not determinative that a hearing should not proceed as scheduled.
On 27 February 2025 the Tribunal notified the representative that the request for postponement was refused.
On 2 March 2025 the Tribunal received correspondence from the applicants cancelling the appointment of the representative, and advising that the applicants did not wish to attend the hearing. They sought to rely on the evidence on the file and requested a decision ‘on the papers.’ The applicants advised that following the Tribunal’s decision, they intended to seek the Minister to exercise powers under s 417 of the Migration Act as their ‘domestic circumstances are exceptional.’
Section 106(3) of the Administrative Review Tribunal Act 2024 provides that where applicants request the Tribunal to make its decision without the holding of a hearing, the Tribunal may make its decision without holding a hearing if it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
The issue for determination in the review is whether each applicant satisfies s 36(2)(a), (aa), (b) or (c) of the Migration Act. This can adequately be determined in the absence of the applicants.
Accordingly, the hearing was cancelled, and the Tribunal proceeded to make a decision on the review. The applicants did not indicate that they wished to provide further information to the Tribunal in support of the claims, so the Tribunal has not delayed making a decision in the review.
CONSIDERATION AND CONCLUSION
The issue in the review is whether each applicant satisfies s 36(2)(a), (aa), (b) or (c) of the Migration Act. The Tribunal is not bound by any factual finding made by the delegate.
If the Tribunal finds a particular applicant satisfies s 36(2)(a), (aa), (b) or (c) of the Migration Act, the correct or preferable decision is to set aside the decision refusing to grant that applicant the protection visa, and remit the visa application for reconsideration.
If the Tribunal finds a particular applicant does not satisfy s 36(2)(a), (aa), (b) or (c) of the Migration Act, the correct or preferable decision is to affirm the refusing to grant that applicant the protection visa.
The Tribunal considered all the material on the Department file relevant to whether each applicant satisfies the criteria for the grant of the protection visa, including the audio recording of the interview with the delegate which the Tribunal has listened to. The Tribunal considered all the material on the Tribunal file relevant to whether each applicant satisfies the criteria for the grant of the protection visa.
For the following reasons, the correct or preferable decision is to affirm the decision under review.
Identity and country of reference
Consideration of material
According to the protection visa application forms:
· [The first applicant] was born in [Town 1], Lisboa, Portugal on [Date] and is a male citizen of that country presently located in Australia with no right to enter and reside in any other country.
· [The second applicant] was born in [Town 2], Lisbo, Portugal on [Date] and is a female citizen of that country presently located in Australia with no right to enter and reside in any other country.
The form identified that [the first and second applicants] have been in a de facto relationship since 15 November 2010 and that they have a child together, namely [the third applicant] who was born in Lisboa, Portugal on [Date] and is presently located in Australia with no right to enter and reside in any other country.
In support of their identifies, Portuguese passports and Portuguese national identity cards in the name of [the applicants] were provided with the protection visa application forms.
In the course of the review, [the first applicant] contacted the Tribunal on 6 January 2025 and advised that [the second applicant] had given birth on [Date] to another child named [Child 2], and provided a copy of this child’s Australian (Victorian) birth certificate and a Portuguese passport issued in that child’s name. [The first applicant] has spoken to the delegate at the interview that his wife was pregnant with their second child.
[The first applicant] indicated in his correspondence to the Tribunal that he thought that his second child had been added to his case, but understood this was not the situation when he applied for a Medicare card and was advised that there was no record of the second child being registered with the Department. [The first applicant] apologised for the oversite and advised that he had contacted the Department to rectify the situation.
The Tribunal subsequently wrote to the applicants advising that the second child could not be added to the review, as no decision by a delegate to refuse a protection visa to this child had been made. The applicants were advised to contact the Department concerning any visa application for their second child.
Findings and reasons
The Tribunal is satisfied based on the passports and national identity cards that [the applicants] are citizens of Portugal. The Tribunal also finds that [the applicants] are citizens of no other country and that they do not possess the right to enter and reside in any other country in the absence of any evidence to the contrary.
Therefore, for the purpose of the protection visa assessment, the country of reference is Portugal. There is no DFAT country information assessment report on that country.
Protection claims and related matters
In the protection visa application form, [the second and third applicants] declared that they were not making their own claims for protection. It is presumably on this basis, at least in the context of [the second applicant], that the other applicants were not invited to participate in the interview with the delegate as they were not raising any protection claims.
The applicants declared that prior to departing Portugal, they resided at a residential address in [Suburb 2], Lisboa, Portugal. [The first applicant] was employed as [an occupation] until 31 August 2016 in Portugal, which was about a month prior to departing Portugal and [the second applicant] was unemployed for about four a half years prior to her departure from Portugal.
The applicants detailed in their protection visa application that they last arrived in Australia [in] September 2018 as visitors, which is almost two years prior to their lodging of the protection visa applications.
In a written statement accompanying the visa application form, [the first applicant] indicated that [the second applicant] had been married previously in 2006 and was divorced in September 2008. The name of [the second applicant]’s former husband was not detailed. He wrote that around the time [the first and second applicants] had their first child, [the second applicant]’s former husband ‘came back’ and he was ‘pumped up.’ [The first applicant] heard from [the second applicant] and some of her family that her former husband had been violent against her and that the former husband had a drug addiction and was always asking for money.
[The first applicant] wrote that he had never met the former husband until he saw the former husband prior to the family’s departure from Portugal. The former husband accused [the second applicant] of destroying his life because in the divorce she mentioned about drugs, which gave the police a lead to charge him. [The first applicant] wrote that he and [the second applicant] were not sure what her former husband was talking about and there was yelling, neighbours gathered, and [the first applicant] was nearly beaten by the former husband. The applicants thought of reporting the matter to the police but have been warned not to as the matter would take another turn. [The first applicant] did not elaborate on the warning, but declared that the applicants left things at that. He then detailed a closure of a business and [the second applicant] being out of work and it was six months before the applicants were getting welfare from the government, before [the first applicant] found a job with his brother’s [business].
[The first applicant] wrote that the applicants came to Australia with an intention to have some time with [the second applicant]’s family in Australia. They were scheduled to return to Portugal by the end of December 2016 but [the second applicant]’s parents came to Australia to spend time here. He wrote that they discussed [the second applicant] applying for a student visa to build up her qualifications as she had experienced problems maintaining employment in Portugal. [The first applicant] detailed that he obtained employment in Australia.
[The first applicant] wrote that everything was on track but he and [the second applicant]’s family in Portugal called them worried because [the second applicant]’s former husband had gone to jail and was released and started to work with some drug gangs. [The first applicant] said that the former husband believes that [the first applicant] was responsible for an anonymous call to police which lead to the former husband being the subject of police action. [The first applicant] denies this and suspects people the former husband knew provided information to police to clear their names.
[The first applicant] claimed that his family home was approached by the former husband with gang members who are not Portuguese and asked where the applicants were. The family called police but the family were advised that the police would not do anything unless there was damage or injury. [The first applicant] claimed that gang members started to target most of his and [the second applicant]’s family trying to find out where they are. [The first applicant]’s family have asked police what could be done about protecting the applicants and were told that if the former husband was charged now, it would be a minor offence and make things worse. It was claimed that even if the former husband was jailed, gang members could still be involved targeting the applicants. Police were unable to provide 24/7 protection and corruption reaches the police. It was suggested that return to Portugal would mean death for the applicants.
[The first applicant] participated in a 45 minute interview with the delegate using an interpreter. In that interview, [the first applicant] confirmed that his family continue to live in Lisbon; that the last time his family were approached was in September 2020 when the former husband enquired about the whereabouts of the applicant; that his family members have not been harmed; there has been no direct contact from the former husband or gang members to the applicants since arrival in Australia which [the first applicant] attributed to their contact information not being known; the applicants considered relocating within Portugal but it would be easy for the applicants to be found because of records which are easy to find; [the first applicant] assumes that the former husband is involved with gangs because friends were brought when the former husband visited family; and that the applicants had discussed relocating to another country but it was only a discussion.
Findings and reasons
Just because an applicant claims there is a real chance of serious harm to them in their home country because of their race, religion, nationality, membership of a particular social group or political opinion does not establish that the chance is real, or that the harm is serious, of that the harm would be directed to them because of their race, religion, nationality, membership of a particular social group or political opinion.
Similarly, just because an applicant claims that there is a real risk they will suffer significant harm as a result of their removal from Australia does not establish that the risk is real, the harm is significant, or that the harm would be as a result of their removal from Australia.
It the is task of an applicant to provide the necessary detail to demonstrate that the criteria for a grant of a protection visa is satisfied.
The evidence provided is not sufficiently detailed to enable the Tribunal to be satisfied that the applicants meet the requirements for the grant of the protection visa. The applicants were offered the opportunity to appear at a hearing where they would be able to provide more detailed evidence through questioning by the Tribunal, but they declined to do so and indicated that they were seeking the Tribunal to make a decision on the review to enable them to apply to the Minister to exercise powers to substitute the Tribunal decision with a decision that is more favourable to the applicants.

Prior to amendments commencing on 14 October 2024, the relevant provision of the Migration Act was s 417, but after the amendments, the relevant provision is s 351 of the Migration Act.
The applicants have indicated that they are going to seek that the Minister substitute the decision of the Tribunal with a more favourable decision. This would not be necessary if the Tribunal were to find that each applicant satisfied a relevant provision of s 36(2) of the Migration Act.
While it could be arguable that by the applicants indicating they would seek the Minister to exercise powers to substitute the Tribunal decision, they are conceding that they do not meet the requirements for the grant of the protection visa, the Tribunal has not taken the indication of a future intention to ask the Minister to exercise powers to substitute the decision of the Tribunal into account in finding that the applicants do not satisfy s 36(2)(a) of the Migration Act. The Tribunal has not done so in the absence of an express concession that the applicants do not satisfy s 36(2)(a), (aa), (b) or (c) of the Migration Act.
The Tribunal is not satisfied that [the second applicant] was previously married to a man who has threatened the applicants with violence. No evidence was provided to detail the name of this person, nor any corroborative evidence, such as a marriage certificate, provided to identify that [the second applicant] was married and divorced from another person. No explanation was provided about why such critical evidence was not detailed in the protection visa application form was provided.
The detail about when it was that the former husband attended on the applicants was also missing from the written statement, with only a reference to this occurring prior to the applicants’ departure from Portugal in September 2016. No explanation was provided about why the former husband would attend on the applicants at their family home some 8 years after the divorce, or how the former husband knew the address of the family (given the statement referred to the family moving to their own place two years after that met) was provided in the statement nor to the delegate at interview. No explanation was provided about who or when it was that the applicants were warned to not take the matter to the police.
No detail was provided about [the first applicant] was ‘almost beaten’, how long the attendance lasted, what, if anything [the second applicant] was doing at the time, or how the attendance ended. No corroborative evidence was provided by neighbours who had apparently gathered around the attendance. No explanation was provided about why the applicants had apparently, according to the written statement, had discussed relocating to another place, but did not do so and instead chose to remain living in the same place prior to their departure from Portugal or why the former husband, who was apparently intent on doing the applicants harm, did not return to the premises.
No detail was provided about the dates of any report made to the police were made, nor was there any specific detail about the information that was contained in attempts of [the second applicant] to obtain a divorce about the drug use of a former husband, or how that information was used by police to charge the former husband. No specific information was provided to detail what the former husband had been jailed for, or when he was apparently released from jail.
There was no corroborative evidence provided by any family in Portugal who had apparently been visited by the former husband to detail when those attendance(s) occurred and detail what was specifically said to him by the former husband, nor was an explanation provided about why, if the attendances by this former husband were so menacing, the family remained living in Lisbon. No explanation was provided about how the fact that police could not guarantee safety meant that the applicants faced a real risk of significant harm.
Further, the written statement refers on numerous occasions to ‘we were told’ various things. No specifics were provided about who said what to whom.
No explanation was provided about why, apparently all of a sudden, the former husband would attend on family of the applicants in Portugal which caused them to apply for protection visas shortly after their student visas were about to expire in 2018. This was curious, given the applicants had been out of Portugal since 2016, and were content to be on visitor visas and student visas, with nothing apparently happening back in their home country during that time to cause them to apply for protection visas.
The lack of specifics and corroborative evidence in the circumstances as discussed above, lead the Tribunal to the conclusion that it cannot be satisfied that the applicants were previously harmed, or threatened with harm by a claimed former husband of [the second applicant], nor that the claimed former husband or associates of that former husband had attended on any of the applicant’s family in Australia, or that there is a real chance of harm to the applicants in Portugal from a claimed former husband or associates. The Tribunal is not satisfied that in these circumstances, that the protection visa was lodged because of a well-founded fear of persecution or a real risk of significant harm.
The timing of the protection visa, noting the concerns the Tribunal has about the lack of detail, suggests that it was lodged for reasons not connected with Australia’s protection obligations.
Member of the same family unit
Consideration of material
In the protection visa application form, the applicants were identified as a de facto husband and wife with a child.
Findings and reasons
The Tribunal accepts that the applicants are all members of the same family unit.
However, the Tribunal is not satisfied that either [the applicants] satisfy s 36(2)(a) or (aa) of the Migration Act.
Therefore, [the applicants] are not members of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Migration Act.
CONCLUSION
Refugee
For the reasons given above, the Tribunal is not satisfied that there is a real chance of serious harm to [the applicants] in Portugal due to their race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, each applicant does not satisfy s 36(2)(a) of the Migration Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the removal of [the applicants] from Australia to Portugal, there is a real risk any of the applicants will suffer significant harm.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that [the applicants] are members of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Migration Act.
Therefore, the applicants do not satisfy s 36(2)(b) or (c) of the Migration Act.
DECISION
The Tribunal affirms the decisions dated 20 November 2020 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.
…