2102741 (Refugee) - [2025] ARTA 1191

2102741 (REFUGEE) [2025] ARTA 1191 (30 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2102741
Tribunal:General Member M Simmons
Date:30 April 2025

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

Statement made on 30 April 2025 at 1:12pm
CATCHWORDS
REFUGEE – protection visa – China – requisition of land for industrial development with inadequate compensation – intimidated, beaten, detained, interrogated and threatened, and house damaged – complaints to town, county and city governments – shifting and conflicting evidence and no supporting material – passports and unhindered departure – late claims of brother’s loan from village official and mother’s health – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 4 March 2021 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 China, applied for the visa on 14 December 2018.
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 6 March 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
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.
Protection claims
The applicant raised the following protection claims his visa application:
·[Town 1] Industrial Area requisitioned land from nearby villagers for expansion. Some villagers raised objections, and village director [Mr A] claimed it was a government land acquisition. When the villagers asked for legal land acquisition documents and plans, [Mr A] could not respond to our request. [Mr A] claimed to give the villagers 1,000 yuan per mu per year for 15 years. The villagers thought that the compensation standard was too low. In the absence of legal land acquisition procedures and compensation, [Mr A] colluded with the underworld to intimidate and beat the villagers and take over the land forcedlly.
·In March 2018, more than 100 people took sticks and drove bulldozers to take over the land of the villagers forcefully. The villagers stepped forward to stop them and were beaten by the mob. Some were seriously injured and sent to the hospital for emergency treatment. The villagers reported it to the police, but the police did not appear until the mobs left.
·The next day, the villagers went to the [Town 2] Government to report [Mr A]’s land acquisition and collusion with the underworld. The town government did not give a reasonable explanation. We went to the Hai'an County Government to report, but also had no reply either. I was retaliated for reporting [Mr A]. One night in April, a group of thugs broke into my home, smashing home appliances and furniture. They even dragged me outside of the house and beat me up with all my face in blood.
·In May, I and other five villagers went to the Nantong City Bureau of Letters and Calls to report. The staff of the Bureau of Letters and Calls told us that our report materials would soon be transferred to the Hai'an County Bureau of Letters and Calls, and we could go there to check the results. After that, I asked the results of the investigation many times, and the staff said that they had not received the report materials yet. I didn't know where the materials reported by our people finally were sent. Maybe they were actually thrown to the trash.
·The villagers gathered and thought that it was not a proper way for the villagers to wait for the result. So, the villagers raised funds and sent me and the other three to go to the Nanjing Bureau of Letters and Calls to petition. On the morning of July 16, we arrived at the train station to buy tickets. Suddenly, the police appeared in front of us. In the name of disturbing public order, they arrested us. At the police station in [Town 2], the policemen fastened my hands on the iron railings with handcuffs. Because of standing for a long time, my feet got numb, my knees couldn't bend, and I couldn't walk. Finally, the police dragged me to the cell. After that, I was interrogated three times, and they let me stand for a long time without meals. During my detention, my wife went to the police station and begged the police to let me go. The police asked my wife to pay 5,000 yuan. They also said that if I wrote a letter of guarantee that I would not go to petition later, they would let me go. I refused to write it and I was imprisoned for 10 days before release.
·After the release, [Mr A] instructed the underworld to threaten me. The subsidy given by the state was also suspended. Corrupt cadres like [Mr A] were sheltered, so I was completely disappointed with the government. I applied for a visa to Australia through an agent. I fear to be persecuted in China. I sincerely hope the Australian government to keep me safe.
At the outset of the hearing the applicant confirmed that he knew what was written in his visa application and that he was satisfied it was complete and accurate.
REASONS AND FINDINGS
The issue in this case is whether the applicant faces a real chance of serious harm or a real risk of significant harm were he to return to China. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity, nationality and receiving country
The applicant provided a copy of a Chinese passport with his visa application. The details in that document support his claimed identity and nationality. I do not have any concerns as to the authenticity of this document.
I accept that the applicant is who he claims to be, and that he is a national of China. China is the receiving country for the purpose of this assessment.
Assistance with protection visa and Tribunal application
The applicant provided shifting and conflicting details as to whether or not he has had professional assistance in relation to his protection visa application, both before the Department and the Tribunal. His preparedness to provide untruthful responses to the Tribunal, which he only resiled from after being presented with contradicting information, significantly undermines the reliability of his evidence.
The visa application states the applicant did not receive any assistance when preparing it. Initially the applicant told me that some people from the same place of origin who came before him assisted him. I asked for their names, and he responded with a question “will it affect them?” before stating “I should not ask this question”. He then indicated that they were just friends and that he did not know their names.
I asked again, who assisted with his application. He told me he was introduced to someone who undertakes this work by friends. He confirmed that he paid this person. I asked for this persons name, and he replied “indeed I don’t know I only know they are from Asia, speak Chinese”. He confirmed that he met this person in [Suburb], however he does not know if they are a migration agent or lawyer. He indicated that a lot of his friends have had their protection visa cases dealt with by this person.
I reminded the applicant that he had affirmed at the start of the hearing that he would provide truthful answers to the Tribunal, and that giving responses which are evasive or unrelated to the question may be a reason for drawing an inference adverse to the reliability of his evidence.
The applicant told me he only received assistance to lodge the visa application and with translation. He confirmed that he was not receiving any assistance in relation to his Tribunal application and that he did not currently have anyone assisting him.
The applicant confirmed that he used the services of an agent to obtain his visa to travel to Australia. Given this, I asked him why he used professional assistance for this visa, but not for the protection visa which he had applied for on the basis of seeking to avoid harm on return to China. After a pause, he responded that the person who helped him “should be in that category”. He again reiterated that he does not know this person’s name.
With the visa application, the applicant provided a statement in a word document setting out his reasons for fearing harm in China. I noted that the ‘properties’ window of that word file states that the file’s author’s name is “[B]”. The applicant told me that he does not know this person. The last person to edit the word file is recorded as “[C – given name, surname]”. When asked if he knew this person, the applicant indicated he might, but he knows them as “[Mr D – nickname, same surname]” meaning ‘[Translation of nickname]’.
When I asked who [Mr D] was, the applicant stated “the person who helped me”. I confirmed that this was the name of the person who prepared his application, and he confirmed that this was the name they went by, like a nickname. [Mr D] is the person in [Suburb] who he paid to prepared his visa application. The applicant then told me that [Mr D] continued to assist him to present with his Tribunal application. I reminded him before that he had told me no one was assisting him with his Tribunal application. He confirmed that he spoke with [Mr D] about preparing for his Tribunal hearing, and that it was [Mr D] who informed him about the Tribunal hearing.
The applicant asserted a number of times that he did not know the person who assisted with his visa application, and that no one was assisting him in relation to his Tribunal matter. When presented with the names attached to the word document provided with his visa application, he conceded that [Mr D] prepared his visa application and was continuing to assist him currently in relation to the Tribunal review. Given his preparedness to make untruthful statements to the Tribunal, I do not consider the applicant’s oral evidence to be reliable.
Land acquisition
The applicant’s oral evidence varied from the details in his visa application markedly, and in its entirety was not persuasive. He told me that he was unsure when it was that his land was forcibly acquired, but that he believes it was “around 2000 or 2001”. He confirmed to me that he believes this incident occurred around 16 or 17 years before he came to Australia. When I noted that his application states his property was acquired in 2018, just a few months before he departed China, the applicant suggested that the person who prepared his application, [Mr D], must have written the wrong details.
During our discussion the applicant told me he was twice detained while in China. On the first occasion he was held for one day in either 2000 or 2001 at the Public Security Bureau, in [Town 1]. On the second occasion he was detained for a week in October 2003 at the ‘county detention place’. This is different to what is written in his visa application, where he asserts he was detained and mistreated over a ten day period in 2018 at the police station in [Town 2].
The applicant has not provided any supporting material to establish either his ownership of the property subject of the dispute, documents related to the forced acquisition such as the offer of compensation, nor any documents related to his claimed complaints to various offices or his detention. On 19 January 2021 the delegate contacted the applicant inviting him to provide specific information about his protection claims, including any documents related to land ownerships, any offers of compensation, any letters or petitions, or arrest warrants or charge sheets. No response was provided. When I asked why that was, the applicant suggested that he did not know about this correspondence.
That request was sent to his personal email address, which he confirms he continues to access. A few weeks after that correspondence was sent, the applicant was sent the delegate’s negative decision to the same email address. He confirmed that he received the decision. I note that he applied to the Tribunal the day after the delegate’s decision was sent to his email. I asked why it was that he received the negative decision, but not the email asking him to provide more information. The applicant replied that he received two messages and that he consulted [Mr D] who said he would take care of it. He stated whenever he received any correspondence he would consult [Mr D] and follow his instructions, which differs from his initial suggestion that he did not know about the delegate’s request. That he seemingly received, understood and acted upon the refusal by applying to the Tribunal for review immediately, but ignored the delegate’s request to provide further information, raises some concern noting both were sent to the same email address.
When I asked the applicant he had any supporting evidence related to the land dispute, he replied “some yes, some no”. I asked him to explain and he suggested that he had ‘the petition’. Asked why that had not been provided, he replied “I don’t know”. He then suggested it was back in China. I asked whether he could submit this to the Tribunal, which he indicated he could do if it was needed. He then suggested that the authorities would not allow any evidence to be left, and there is no way for him to pursue them.
I asked him to confirm whether or not he has any documentary evidence he can provide which relates to the dispute. He replied: “with the land taken you can see from the satellite picture of earth”. I directed him to answer my question, and he replied that he has no documents relating to the dispute. I asked whether he has a copy of any of the letters he wrote, and he indicated he does not. To date, no supporting evidence relating to the dispute has been submitted.
Brother’s loan
The applicant also mentioned his brother taking out a high interest loan from government officials which caused problems for his family as part of the reason for why he left China in 2018. He suggested that his mother’s stroke was related to his brother’s loan. The applicant told me that [Mr A], who was the head official of his village, was trying to lure his brother into a high interest loan or a form of usury.
Towards the beginning of the hearing, when I asked how his parents and siblings are, he mentioned that his mother has had a stroke. He did not suggest that his brother had any difficulties in China. He also confirmed that his wife and child, who remain in China, have had no problems there.
The brother’s loan is not mentioned in the visa application. When asked why that was, the applicant replied that perhaps he misunderstood. He then added that possibly [Mr D] thought this was not important and did not mention it. The applicant then asked me whether his brother’s problems were related to him. I put to him that he had told me earlier that his brother’s loan was one of the reasons why he left China. The applicant replied that the brother’s loan was evidence of his own hatred for the officials in his village.

He then added that the loan caused a dramatic change in his family and blamed the loan on his mother’s stroke. He also suggested that his brother lost his job and his parents had to pay compensation because of the loan. I asked whether he had any evidence to support these various assertions, and he indicated he does not.
Departure
The applicant told me that the persons who organised his visa to come to Australia also arranged his accommodation and a job for him in Australia, before he arrived here. They also arranged for him to apply for a protection visa.
The applicant told me that he obtained his Chinese passport in 2015 without any issue. He also had a previous passport obtained in approximately 2000, which he did not travel on.
I put to the applicant for comment information from the Australian Department of Foreign Affairs and Trade (DFAT) Country Information report on China from December 2021, which covers the period in which the applicant left China. DFAT relevantly assessed that:
Exit and entry is strictly regulated. The government knows when people enter or leave the country through air and seaports. It uses artificial intelligence, facial recognition software and biometric databases to check passenger identities and to check identity documents for fraud. Various government agencies can feed data into databases including from to tax, customs, police or judicial authorities. This technology is used to create an exit control list. The way that list works is not clear and bans may appear arbitrary.
Those suspected of a crime, persons of interest on ‘national security grounds’, activists and human rights defenders may be refused a passport upon application or, if they already have one, may be prevented from leaving the country due to being on an exit control list.
I noted that the applicant was able to obtain a passport in 2015 and leave China in 2018 via an international airport without any issue, suggests to me that he was not of any interest to the Chinese authorities for any reason at those points in time. The applicant responded that in China administrative charges are different from criminal charges. If you have a criminal charge you cannot leave China, however his charge was only administrative. I put to him that his application states he was arrested for disturbing public order, and asked whether that was a criminal charge. He replied “not to that extent”. I also noted DFAT assess activists may not obtain passports, and asked whether his claimed protesting and petitioner would be considered activism. The applicant suggested this may be a cultural difference, and that if you conduct is not serious it will not be considered criminal.
Conclusions
At the end of our discussion, the applicant confirmed that he had told me everything he wished for me to consider when making my decision.
The applicant was able to obtain a passport and leave China via an international airport without attracting any adverse attention from the authorities. Noting DFAT assessment referred to above, this suggests to me that he was not of any interest to the Chinese authorities for any reason when he left the country.
I do not accept that the applicant was party of a land dispute in China with the authorities. He has provided very different accounts of this incident when comparing his oral evidence with his visa application, including very different timeframes of when he claims his land was taken and very different details regarding his claimed detention. Moreover, despite being asked a number of times, he has not provided any supporting material related to either his ownership of the property or any aspect of the dispute related to it. Furthermore, as set out above the applicant has demonstrated a preparedness to make untruthful statements to the Tribunal and as a result I do not regard his oral evidence to be reliable. I reject the land dispute claims in their entirety.
I do not accept that the applicant’s brother was party to a loan from government officials which causes problems for him, the applicant or his parents. Noting the very delayed presentation of this claim, that the applicant has not provided any supporting documentation to support the existence of the claimed loan, and that for the reasons set out above I do not consider the applicant’s oral evidence to be reliable, I am not satisfied that this incident occurred. I reject the loan claims in their entirety.
Does the applicant satisfy the refugee criterion for protection?
The applicant confirmed that the only reasons he fears returning to China was owing to the land dispute and his brother’s loan. As set out above, I have not accepted that the land dispute occurred or that his brother took out any such loan.
On the evidence before me I am not satisfied the applicant faces a real chance of serious harm, or any harm, in the reasonably foreseeable future for any reason were he to return to China. The applicant does not have a well-founded fear of persecution for any s.5J(1)(a) reason.
The applicant is not a refugee per s.5H and is not owed protection obligations per s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
As set out above, I have not accepted that the land dispute occurred or that the applicant’s brother took out a loan with government officials. These were the only reasons advanced by the applicant for fearing harm in the future in China.
When considering the future prospect of harm for an applicant, the ‘real risk’ and ‘real chance’ elements involve the same standard.[1] For the reasons set out above in which I have found the applicant does not face a real chance of any harm in the foreseeable future in China, the applicant also does not face a real risk of any harm, including treatment amounting to significant harm, were he to return to China in the foreseeable future.
[1] MIAC v SZQRB (2013) 210 FCR 505.
I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to the receiving country of China, there is a real risk he will suffer significant harm.
The applicant is not owed protection obligations per s 36(2)(aa).
Conclusions
For the reasons given above I am not satisfied the applicant is a person in respect of whom Australia has protection obligations. The applicant do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.
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. It follows he is also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the 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.
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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