2107476 (Refugee) - [2025] ARTA 1202

2107476 (REFUGEE) [2025] ARTA 1202 (15 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2107476

Tribunal:General Member H Kerwin
Date:15 April 2025

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

Statement made on 15 April 2025 at 2:43pm

CATCHWORDS
REFUGEE – protection visa – China – religion – Christian – house churches – support for Falun Dafa – detention – torture – state protection – credibility issues – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 9, 106
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 99, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 2010 FCR 505
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

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 Immigration and Multicultural Affairs on 7 June 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 7 June 2018. I accept on the basis of the passport identity page provided by the applicant that she is a national of China and I have treated her receiving country as China for the purposes of the Act.
The delegate refused to grant the visa on the basis that:
a.In relation to the refugee criteria, the low profile of the applicant, that they are not wanted by authorities, and could attend one of the state-sanctioned churches in China, meant the delegate was not satisfied (based on their interpretation of country information) that there was a real chance the applicant would be persecuted for one or more of the reasons in s 5J(1) of the Act. Accordingly, they did not meet the refugee criteria.
b.In relation to the complementary protection criteria, for the same factual reasons identified in the refugee criteria analysis, there was not a real risk of significant harm to the applicant if they were removed from Australia to China on account of their Christian faith or activities. Accordingly, they did not meet the complementary protection criteria.
Relevantly, the delegate also raised concerns about the credibility of the applicant’s claims because the ‘statement of claims lacked critical details with regards to their religious practice, such as dates and locations of key events, and the circumstances leading up to and following these events, which led them to leave China’. The delegate sought these details, among other things, via a request for information made pursuant to s 56 of the Act. The applicant did not respond to the request. However, without explaining how these concerns were resolved, the decision-maker ultimately concluded: ‘Whilst I have concerns about the credibility of some of the applicant’s claims, I accept, for the purposes of this assessment, that the applicant is a Christian.’
The applicant was represented in relation to the review.
MAKING A DECISION WITHOUT A HEARING
The application for review was scheduled for hearing on 17 March 2025. In response to the Tribunal’s hearing notice, the applicant’s representative indicated that the applicant would not be appearing at the hearing and sought that the Tribunal make a decision on the papers.
After considering the request, and reflecting on the Tribunal’s concerns about the credibility of the applicant’s claims arising from the written material, I relisted the application for hearing on 14 April 2025. Correspondence was also sent to the applicant on 20 March 2025 (also enclosing the new hearing notice). The letter explained that I had considered her request to determine the application on the papers but had relisted the case for hearing in the following circumstances:
1. The Department of Immigration and Multicultural Affair’s decision to refuse your visa application accepted that you were Christian. That decision did not conclude that your claims were not credible.
2. However, the Tribunal Member has concerns about the credibility of your claims to fear harm in China because you are Christian, including concerns about whether you are Christian and whether you attended underground churches.
The letter continued that:
In these circumstances, the Member has asked that we tell you about her concerns and reschedule the hearing so that you have a further opportunity to attend a hearing, give further evidence in support of your claims, and respond to the concerns the Member has about the credibility or truthfulness of your claims.
My decision to relist the case was informed by concerns that credibility was an issue in the review and that, in circumstances where she would not attend a hearing where I could raise my credibility concerns with her, the applicant may have originally assumed (wrongly) that the issues arising in her review application were only those which the delegate identified to be determinative against her.[1]
[1] For similar reasons to those explained by the High Court in relation to former s 425 of the Act in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152. See, esp [35] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) (‘SZBEL’).
On 8 April 2025, the applicant’s agent filed a new hearing response form in which the applicant indicated that she would not be appearing at the rescheduled hearing and wished the Tribunal to determine her application on the papers.
On 8 April 2025, I agreed to the request. At this point I:
a.Was satisfied that the applicant was on notice that I had concerns arising from the written material before me about the credibility of her claims to fear harm in China as a Christian.
b.Had received notice from the applicant that she had declined the opportunity to attend a hearing to give further evidence in support of her claims and respond to my concerns about the credibility or truthfulness of those claims.
c.Accepted that this was a request by the applicant to make a decision on her application without holding a hearing pursuant to s 106 of the Administrative Review Tribunal Act 2024 (Cth) (ART Act).
I was also satisfied that the Tribunal’s power to make its decision in the proceeding without holding a hearing pursuant to s 106(1) of the ART Act was enlivened. In this case, s 106(3) of the ART Act applies because the only parties to the proceeding are the applicant and a non-participating party, and the applicant has requested that the Tribunal make its decision without holding the hearing of the proceeding.
It also appeared to me, as it must for the subsection to apply (see, s 106(3)(c)), that the issues for determination in the proceeding could be adequately determined in the absence of the parties to the proceeding. I reached this view because:
a.The relevant issues for determination in the proceeding are:
i.Whether the applicant meets the refugee criteria, as that criteria is described below.
ii.Whether the applicant is a person entitled to complementary protection, as that criteria is described below.
iii.As a subset of the (i) and (ii), whether the applicant’s claims to fear harm in China as a Christian are credible, including whether she is a Christian and whether she attended underground churches.[2]
b.Before me is the material provided to the delegate, including the applicant’s protection visa application, the primary decision, and the material filed with the Tribunal. I also have before me the current DFAT Country Information Report for China.
c.From this information before me, I am able to be satisfied of the applicant’s identity, her receiving country for the purposes of the Act, and I am able to determine the issues (as set out at paragraph 12(a) above) without seeking further evidence or submission from the applicant.
d.In relation to the question of credibility, I carefully considered whether in this case there is a need for the Tribunal to hear from the applicant in the particular context of a hearing to determine whether her claims are credible. I do not consider it is necessary. The applicant was, because of the 20 March 2025 letter sent to her by the Tribunal, on notice that credibility was an issue in the determination of her case. She has elected not to provide further evidence or material to the Tribunal on the topic to establish her claims. In these circumstances, my assessment of whether I accept her claims can be completed on the material that she has placed before me, with the positive knowledge that she does not seek to put further information before the Tribunal. I also do not consider that the claim material is such that I am unable to make any necessarily factual conclusions in the case on the basis of the applicant’s written material alone.
[2] I appreciate that the credibility issue issue cuts across the determination whether the applicant meets the refugee and complementary protection criteria and so it may not be necessary to separately identify it as an issue for determination in the proceeding. However, I am conscious that in setting out the operation of the closely related (but not identical) phrase ‘issues arising in relation to the decision under the review’ as it had appeared in s 425 of the Act, the Court in SZBEL stated that those ‘issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa’ ([34]), and continued to identify that in the circumstances of that case credibility was itself an issue in the review. It is not necessary in this case to resolve exactly the implications for the similar phrase in s 106 of what was previously said about the ‘issues arising in relation to the decision under the review’ under former s 425 of the Act. However, the approach I have taken above allows for the greater particularity, and the consideration of the criteria in s 106 in terms of both the overarching issues raised by the protection visa criteria and the credibility issue.
I also considered that the discretion provided to the Tribunal under s 106(1) should be exercised. Relevantly, the applicant has now sought that I determine her application without a hearing twice. She again requested a decision be made on the papers after the Tribunal put her on notice of its concerns about the credibility of her claims to fear harm as a Christian in China. There is no procedural unfairness in now making the decision on the papers. Further, while it is clear that the applicant does not wish to provide further oral evidence or submissions in her case, both her hearing responses indicate she does wish to have her application substantively determined. A certain absurdity would arise, therefore, if I maintained the scheduled hearing, the applicant did not appear (as she has indicated she will not) and further resources of the Tribunal were consumed in preparing for the case event, only for the Tribunal to faced again with the statutory options to:
a.Relist the hearing again for a third time;
b.Determine the application substantively without a hearing, this time on the basis that s 106(5) applies because the applicant has failed to appear; or
c.Dismiss the proceeding in the event of the applicant’s non-appearance pursuant to 99 of the Act, leading to a situation where her claims would not be substantively determined (unless she sought, and obtained, reinstatement, and additional future events occurred which led to the matter being substantively determined, potentially on the papers).
In this case, I considered that determining the application without a hearing pursuant to s 106(1) is the course which best meets the Tribunal’s objective under s 9, especially to ‘ensure that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as proper consideration of the matters before the Tribunal permits’ (s 9(b)), and to provide a mechanism of review that is ‘fair and just’ (s 9(a)), and ‘responsive to the diverse needs of parties to proceedings’ (s 9(c)). It allows the Tribunal to agree to the course the applicant has asked me to take in relation to her case, for her case to be resolved, and to prevent further Tribunal resources being expended on the scheduling and preparation of further hearings that the applicant has indicated she does not want.
Accordingly, I have determined her application without a hearing.
I have affirmed the decision under review, for the reasons set out below.
BACKGROUND
Evidence before the Department
The relevant material before the delegate, which I have reviewed, is as follows:
a.Protection visa application dated 7 June 2018.
b.Documents in support of the application being:
i.the applicant’s passport;
ii.a photo of her; and
iii.an unsigned and undated statement of 5 pages written from the point of view of the applicant with her name at the base of the document.
c.A request by the delegate for information pursuant to s 56 of the Act. Relevantly:
i.In this request the delegate raised that the applicant had not provided details of her claims, and sought further information about her religious practices in China including specific dates, locations and details of events in relation to the claim that she was monitored, threatened, detained, and prevented from practising her religion, and what happened afterwards. Further information was also sought in response to the delegate’s concern about how she had departed China if she was of interest to authorities when she departed, and whether there were any reasons she would not be able to attend a State-sanctioned Christian church in China.
ii.The applicant did not provide a response to this letter.
In summary, in her protection visa application, the applicant raised claims to fear harm as a Christian in China. This includes claims that:
a.Her faith is continuously obstructed by police and local government.
b.She will be severely punished by police and the local government again and her ‘family’ have told her she is already a target.
c.She cannot help applying for the visa because the Australian government supports Falun Dafa and ‘we are free here’.
d.The Chinese Government believes that house churches threaten their political power.
e.She wants to tell the whole world that the ‘House Church of the practitioners’ who were persecuted in China and exposed the CCP’s bad behaviour’ and of her own suffering over ‘many years’.
f.She will unswervingly continue her faith and pursuit.
g.Several other events are referred to, including where the Church was surrounded and threatened by the ‘public security organs’ and believers were told it was illegal to be believers and removed by force, where the applicant and other were detained, deprived of food, ‘give us the hot water’, and required to run around a yard naked.
h.People are tortured.
i.To avoid harassment and monitoring, ‘we can only adopt outdoor worship’.
j.Some people are driven out of cities and forced to give up their jobs and lives because they are members of the applicant’s church.
k.She cannot relocate within China to avoid persecution because she is identifiable, all her details are known by authorities.
l.She and her family will be punished by authorities if she returns to China. She will be arrested at the airport. Her mother told her that the local police said she was a ‘family church leader to extermination’. She will face the same fate as a classmate or good friend (both relationships to this person are referred to) who was imprisoned for three days and forced, among other things, to stand in very cold weather until their arms were frozen purple.
In her undated statement, the applicant repeated some matters from her protection visa application. In addition, she stated that she was ‘introduced by [her] friend [named] and led by [Pastor A] accepted the formal baptism’.
I discuss these claims further where relevant under ‘Reasons and Findings’.
Evidence before the Tribunal
No further claim related material or evidence was submitted by the applicant to the Tribunal. The applicant appointed a representative on 2 December 2024. As explained above, the applicant did not attend a hearing.
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 meets the refugee or the complementary protection criteria. And, as a subset of those issues, whether her claims to fear harm in China as a Christian and her material narrating related events are credible.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. This is because I have not accepted, on the material before me, that the applicant is a Christian as she claims or that she has experienced the past harm which are claimed in her protection visa application and the undated statement. I explain why below.
First, having reviewed the material before me there is very little detail or elaboration on the topic of the applicant’s claimed Christian faith. She makes reference to ‘the Lord’, states she is a ‘believer in the fundamental truth of the bible’ and that she began to ‘believe in religion from an early age’, influenced by her parents. In her written statement she briefly makes reference to the fact of a baptism occurring and to an unnamed Chinese Church in Australia where many Chinese go ‘to sing loudly our Lord and the government’, she refers to a Reverend by name and one friend by name in a single context. Otherwise, there is, very little explanation of what Christianity is, her sense of her faith, or specific dates, details or context that would ground her claims to be a Christian. Further, her claims in her protection visa application refer briefly to the Falun Dafa.[3] This is not a Christian faith.
[3] See, Applicant’s Protection Visa Application at 13: “I really cannot help applying for a visa because the Australian government supports Falun Dafa and we are free here Faith, keep my faith.”
Second, there are many events of past harm and harassment referred to in the protection visa application and the undated statement, as well as more general statements made about the experiences of others or the context for Christians in China. Across these parts of the applicant’s material there are very few details provided by the applicant about time periods or names of people or places. Friends are referred to as reporting things to her - but they are not identified by name. ‘Family’ is referred to but the family member’s name or how they are related are not identified. A leader of leaders is referred to but neither leader is named. There is reference, to ‘the next few years’ in one part of her narrative, but again this is not specified further (and the point at which ‘the next few years’ ran from is also unspecified). Again, there is very little detail or context that grounds the many different elements of the applicant’s claims to have faced past harm in China on account of her religion, or to fear harm in the future. I acknowledge there are multiple pages of text before me. But, across these pages, there is a consistent and concerning absence of detail or context.
Third, these issues were not remedied by the applicant even after further information was sought by the delegate. And, as referred to above, the applicant declined a further opportunity to attend a hearing before the Tribunal including to give further evidence and respond to the Tribunal’s credibility concerns, after this issue was brought to her attention in the 20 March 2025 letter.
A decision-maker is not required to make the applicant’s case for them.[4] In this case, as s 5AAA(2) of the Act provides, it is the applicant’s responsibility to ‘specify all particulars of his or her claim… and to provide sufficient evidence to establish the claim’. The Tribunal is also not required to accept uncritically any and all allegations made by the applicant.[5]
[4] Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169-70 (Wilcox J).
[5] Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437, 451 (Beaumont J).
Ultimately, in light of all of the above issues affecting the applicant’s claims and evidence, I do not accept that the applicant is a Christian or her claims to have experienced harm or fear harm flowing from her Christianity and practice of religion in China. This includes that I do not accept that she attended underground or house churches. I do not accept that she was baptised. I do not accept that the past harms referred to in her written material occurred, on the basis of the material before me. I do not accept that she has a profile with government authorities in China on account of her beliefs, including local government, security and police. Accordingly, I do not accept that the applicant faces a real chance of harm in China now or in the reasonably foreseeable future on the claimed bases. As a result, the applicant does not meet the refugee criteria.
In terms of the complementary protection criteria, s 36(2)(aa) requires that there must be a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 2010 FCR 505, the ‘real risk test’ was held to impose the same standard as the ‘real chance test’ applicable to the assessment of a ‘well-founded fear’ under the Refugees Convention. That reasoning appears equally applicable to the refugee criteria under s 5J(1)(b) of the Act. I have already determined above that the applicant does not face a real chance of harm in China now or in the reasonably foreseeable future on the claimed bases. It follows that I do not accept there is a real risk of significant harm to the applicant arising from her claimed Christianity in China, any of the claimed Christian activities she refers to, the events which she claimed have occurred in the past, or her claimed identity before authorities because of her claimed religion. Therefore, she does not meet the complementary protection criteria.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Representative:   Jun Kun Li, Golden Bridge Immigration (MARN: 1170818)
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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