2104576 (Refugee) - [2025] ARTA 1305

2104576 (REFUGEE) [2025] ARTA 1305 (8 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2104576

Tribunal:General Member C Mulvey

Date:8 May 2025
Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 08 May 2025 at 11:45am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – physical assault – protection money – criminal gang – fear of killing – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRD [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
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 16 March 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of Malaysia and applied for the protection visa on 1 June 2020. The delegate refused to grant the protection visa.
The applicant lodged a request for administrative review of the delegate's decision to refuse to grant him the visa with the former Administrative Appeals Tribunal (AAT) on 11 April 2021. He provided a copy of the delegate's decision record which contained information about his identity, country of nationality and claims for protection, amongst other things.
On 7 March 2025, the Tribunal wrote to the applicant inviting him to give evidence and present arguments at a hearing scheduled at 10.30 am on 2 May 2025. The Tribunal invited the applicant to provide all relevant information and documents to be considered at that review hearing. The applicant was also requested to complete a response to hearing notice.
The Tribunal received from the applicant, a reply to the notice of hearing. In an email dated 30 April 2025, the applicant attached the completed hearing notice reply in answer to a question about whether he was to take part in a hearing, ticked a box “No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing”.
On 1 May 2025, the Tribunal wrote to the applicant confirming receipt of the email in which he indicated that he would not participate in the hearing and consented to a decision on the papers. The Tribunal advised the applicant it would proceed to determine the issues in his case in the absence of a hearing and that he would be notified of the decision in due course.
The circumstances in which the Tribunal may reach a decision without a hearing are set out in s 106 of the Administrative Review Tribunal Act 2024 (“ART Act”). They include where an applicant requests the Tribunal to make its decision without holding a hearing of the proceedings: s106(3) ART Act. The Tribunal is satisfied based on the applicant's response to the hearing invitation that he requests the Tribunal to make its decision without holding a hearing. There is no ambiguity in his response and the Tribunal is satisfied his written response to the hearing invitation form can properly be construed as a request to make a decision without holding a hearing pursuant to s106(3)(b)(ii) of the ART Act.
The Tribunal must also consider whether it appears that the issues for determination in the proceedings can be adequately determined in the absence of a party to the proceeding; s 106(3)(c) of the ART Act.
In reviewing a decision to refuse to grant a protection visa, the issues which the Tribunal are required to determine are:
a.Whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5(J)(1)(a) for the purposes of s 36(2)(a) of the Act if returned to their receiving country and if not;
b.whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of them being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
In these proceedings the Tribunal finds that the issues for consideration can be adequately determined in the absence of a hearing. The Tribunal has before it a copy of the department's file with which it has had regard. That file includes a copy of the applicant's identity documents, and his protection visa application form which, contains his biographical information and claims for protection. Additionally, the applicant provided to the Tribunal a copy of the delegates decision record which sets out some of this information and his passport. Based on this evidence the Tribunal is able to determine the applicant's identity and the receiving country. It is also able to form conclusions about whether he meets the criteria for a protection visa as required by ss 36(a) and 36(aa) of the Act without, seeking further evidence or submissions from the applicant.
BACKGROUND
The applicant is a male national of Malaysia. His native language is Cantonese. The applicant is divorced and at the time of writing this decision was [age] years of age.
The applicant arrived in Australia [in] March 2020 on a visitor visa. His visitor visa expired [in] June 2020. On 1 June 2020, the applicant lodged an application for a protection (subclass 866) visa. He was granted a bridging visa on 5 June 2020. The protection visa application was refused by a delegate of the Minister on 16 March 2021. The protection visa application was refused because the delegate found that the applicant did not satisfy s 36(2) of the Act. That was because the delegate found that the applicant was not a person of whom Australia has protection obligations or a member of the same family unit as such a person.
Evidence before the Department
The Tribunal has received a copy of the department's file concerning the applicant's visa application. The file included, but is not limited to, the usual biometrics information, the application for a protection visa and other departmental communication to the applicant.
The applicant was not offered an interview by the department.
The Delegate’s decision
The applicant's claims for protection provided in his application to the Minister are as follows:
a.The applicant is of Chinese ethnicity.
b.Malaysia was supposed to be equal, but the majority of Malays began to call themselves ‘indigenous’ demanding that ‘Malay people take precedence’. In addition, the Malays have ‘given’ to themselves the privilege of writing the Malaysian constitution. Thus, the applicant does not have the same access to education, jobs, social security and financial support, due to his race.
c.The Malays bullied the applicant verbally and physically at high school. For example, the applicant was charged ‘protection fees’ as he was unable to pay, a ‘gang of thugs’ assaulted him after school. The second time the thugs assaulted him, the applicant was hospitalised for an operation because of ‘head broken’. In addition, the thugs threatened the applicant’s family in a letter sent to the applicant.
d.The applicants parents reported the incident to the police, however the father of one of the assailants was a police sergeant.
e.The applicant did not relocate within Malaysia, because the Malays were everywhere and the applicant was constantly reminded of the times when he was bullied. Furthermore, every state has a ‘landlord’ controlled by Malays, who charged the applicant and his family ‘protection fees’ to keep him safe.
f.If the applicant returns to Malaysia, Malays will threaten to kill him, because he owes them protection fees and as he is unable to repay the illegal fees they will keep asking the applicant for more. In addition, the applicant can be murdered or sent to gaol for ‘not exist case’.
g.The authorities cannot protect the applicant because they are all Malays and ‘ the land acquisition is under the Malaysian government’. In addition the applicant can have a better and mentally healthier life in Australia.
h.The applicant is unable to relocate if he is returned to Malaysia because the ‘landlord’, or the police will be able to find him, as they have all his personal details and will send them to all Malays compatriots in every corner of Malaysia.
The delegate refused the applicants claims for protection based upon the evidence adduced to support those claims. In considering s 36(a) of the Act, the delegate found that the applicant did not meet the criteria off being ‘a refugee’ as defined in s 5(J)(1a) of the Act. That was because they delegate found that the applicant did not have a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion’. The delegate found that the applicant was not a person in respect of whom Australia has protection obligations because he was a refugee.
In considering the complementary protection criterion pursuant to s 36(aa) of the Act, the delegate found the applicant’s claim that he feared harm from Malays did not amount to persecution under the Act. In coming to this determination, the delegate considered country information pertaining to gang activity within Malaysia, law enforcement agencies available to him in Malaysia, the judiciary and the availability of the applicant obtaining assistance from defence counsel in any a court proceeding that may arise. Having considered that evidence the delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm as set out in s 36(aa) of the Act. The delegate was not satisfied that the applicant is a person who in respect of firm Australia has protection obligations as provided for by that provision.
Evidence before the Tribunal
The applicant relied upon the material he lodged with the original application for a protection visa with the Minister that is included in the department's file which the Tribunal has considered. He chose not to attend a hearing to give oral evidence under oath or affirmation.
The applicant relied upon the same grounds for protection as set out above at [15] and he did not advance any further claims in any additional written material before the Tribunal.
In the applicant’s written material, he said that he travelled to Australia on a valid Malaysian passport and that he is a national of Malaysia. The evidence before the Tribunal includes a copy of the applicant's passport, which has expired. The Tribunal also considered the department’s movement record and evidence concerning the applicant’s nationality. The Tribunal is satisfied that the applicant is a Malaysian national. Relevantly, the Tribunal finds that Malaysia is the ‘receiving country’ as required by the Act.
The primary claim of the applicant is that he fears harm on the basis of his race. The applicant asserts he was bullied at school physically and verbally. He was required to pay money to thugs and if he did not pay, he was assaulted after school. On one occasion the applicant received a head injury from the assault. Despite his parents reporting the incident to the police, he was not protected. The thugs were not held to account. Later in his life he and his family were charged fees by landlords to keep them safe. He did not relocate within Malaysia for this and other reasons including ‘because Malays were everywhere’. He fears further violence and possible death.
Despite the applicant being invited to provide further detail concerning these claims, he did not do so. The type of detail the Tribunal would ordinary ordinarily expect the applicant to provide would include the dates and times concerning him being bullied at school and on how many occasions. Other details would include the type of injuries he sustained and any medical records recording the injuries. A copy of the letter alleged to have been sent to the applicant containing threats. The amount of money he allegedly owes and to whom. The documentary evidence before the Tribunal reveals that such particulars have not been provided for over 4 years since the application was first made to the department and during the period in which the application has been pending before the Tribunal. For the reasons which are fully explained below in the Tribunal's decision, the failure of the applicant to provide particulars concerning his claims for protection cast doubt on the reliability of those claims and the evidence of the applicant generally.
Overall, the Tribunal finds that the applicant is an unreliable witness, and little to no weight can be attached to his claims for protection in this application.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant satisfies the refugee criteria for protection and if not, are there substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Malaysia there is a real risk that the applicant will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts the applicant is [an age] year old man from Malaysia who came to Australia [in] February 2016. He claims that he left Malaysia because he experienced and/or will experience persecution and harm in Malaysia from Malay’s because of his Chinese/Malay heritage. This included allegations the applicant, particularly when at school, was subjected to discrimination, bullying, a physical assault, financial extortion and the likelihood of similar discrimination and persecution continues into the future. The applicant does not rely upon any other claims for protection. The applicant has not provided any details of which hospital or medical centre he alleged to have undergone an ‘operation’ to treat injuries he describes as ‘head broken’ following an assault at school. He provides no detail of when his parents reported the alleged incidents of violence and harassment to police, which police station, or which police officer. Similarly, the applicant has not provided any detail in support of his contention that he and his family were subjected to ‘landlords’ extorting ‘protection fees’ to keep them safe in their local community. He has not particularised the alleged claims for protection specifying dates, times and persons of whom he fears harm nor, has he provided any documentary evidence to support these allegations.
The Tribunal has taken into consideration s 5AAA of the Act which, provides that it is the responsibility of the applicant to specify all particulars of his claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not required in determining administrative review applications, the relevant facts of the individual case will have to be supplied by an applicant in as much detail as is necessary to enable the decision maker to establish the relevant facts. A decision maker is not required to make the applicants case for him/her. Nor is the Tribunal required to accept uncritically any and all of the allegations made by an applicant (see - Randhawa v MILGEA (1994) 52 FCR 437 at 451).
The applicant has not provided the following information which would assist the Tribunal in establishing his clients for protection:
a.Detailed information about the people who bullied the applicant at school, including the names of the persons involved, the dates and period of the alleged bullying and on how many occasions the bullying.
b.Detailed information about the names of the persons who physically assaulted the applicant causing as he describes it ‘broken head’, the date and time of the alleged assault, what injuries he actually sustained, which hospital he underwent a surgical procedure or repair and the details of a letter sent to his parents (or a copy of the same).
c.The date, address of the police station and the name of the reporting officer to whom the applicant’s parents reported the physical assault.
d.Detailed information explaining the contention that he and his parents are charged ‘illegal fees’ for their protection by ‘landlords including, dates and times, the names of the ‘thugs’ (if known), how much was charged as an illegal fee, what amount is owed by the applicant and his family in protection fees and on how many occasions the fee was charged and paid, or, not paid.
e.Date, time and place of the alleged visits and threats of harm by the alleged ‘thugs’, including what threats were actually made and by whom.
f.Any supporting letter or reference from any other person such as his family or others including government agencies or police.
g.An explanation about why he is not able to provide any documentary evidence in relation to and that is referred to in (a.- f. above).
h.Detailed information and full particulars about any concerns he holds of persecution, harm (physical and mental), extortion or other matters in which he fears he may be subject to in Malaysia.
i.Detailed information and full particulars about whether he has been subjected to any of the matters referred to in (h. above.)

In the absence of providing particulars in the nature of the claims for protection which are set out in paragraph [15] above, the Tribunal accepts the applicant may have been subjected to discrimination because of his race, however, that discrimination does not amount to persecution under the provisions of s 5J(4) and (5) of the Act. This is because the Tribunal does not accept that the applicant was subjected to ‘serious harm’. The Tribunal does not accept the applicant was subjected to significant physical harassment and/or significant ill-treatment, physical violence, extortion and/or threats to his life or liberty for outstanding ‘illegal fees’. The Tribunal finds that the applicant has not established any of the criteria, or other matters, which would amount to serious harm as required by s 5J(5) of the Act. This is because the applicant’s evidence was so vague, lacking in detail and non-specific that it is unreliable and lacks credibility.
The Tribunal also finds that the conduct the applicant alleged he was subjected to occurred when he was at school, which I infer was more likely prior to him attaining the age of about 18-20 years. The applicant is now [age] years of age. The alleged conduct is more than [number] years ago. There is no evidence that the alleged ‘thugs’ would still be pursuing the applicant, or his family, for unpaid debts.
Given these findings, the Tribunal further finds that the applicant does not face a real chance of serious harm (or any harm) in Malaysia in the reasonably foreseeable future from the ‘thugs’ Malays or ‘landlords’, others, or at all, should he return to that country.
The Tribunal is not satisfied the applicants fear of prosecution is well founded. It is not satisfied the applicant is a refugee pursuant to s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
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).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa) of the Act, the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. The Tribunal has found the applicant is a national of Malaysia and the Tribunal has found that Malaysia is the receiving country for the purposes of s 5(1) of the Act.
For the reasons which are set out above, the Tribunal has found that there is not a real chance the applicant will experience serious harm from anyone due to his alleged claim of racial discrimination or bullying, now, or, in the reasonably foreseeable future, or at all. In MIAC v SZQRD [2013] FCAFC 33 at [246], [297] and [342], the Full Federal court held that the “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the refugee convention definition. The Tribunal notes that this applies equally to the assessment of “well-founded fear” for the purposes of s 5J of the Act. It follows that the Tribunal does not accept there to be a real risk that the applicant would face significant harm if returned to Malaysia for the same reasons.
For the reasons given above, the Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act, if he is removed from Australia and returned to Malaysia. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
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 evidence 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:8 May 2025
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.
…