2110546 (Refugee) - [2025] ARTA 1382

2110546 (Refugee) [2025] ARTA 1382 (11 April 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2110546
Tribunal:General Member R Lee
Date:11 April 2025

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

Statement made on 11 April 2025 at 11:21am
CATCHWORDS
REFUGEE – protection visa – China – religion – Protestant Christian – protested at removal of cross from church – detained, beaten and humiliated – fear of imprisonment, beating and being prevented from practicing religion – consent to decision without hearing – responsibility to specify particulars and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), s 106(3)(a), (b)(ii), (c)
Migration Regulations 1994 (Cth), Schedule 2
CASES
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1992) 34 ALD 347
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 2 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] April 2013 and has not departed since.[1]
[1] Movement record – 11 March 2025. The Tribunal has referred to the applicant using gender-neutral pronouns through-out this decision. No disrespect is intended.
The applicant who claims to be a national of China, applied for the visa on 28 January 2021. The delegate refused to grant the visa on the basis they were not satisfied that the applicant is a Protestant Christian, or that they have a profile that would be of adverse interest to the Chinese authorities or anyone else if they return to China.
BACKGROUND
Evidence before the Department
According to information contained in their protection visa application, the applicant is a [Age]-year-old Chinese citizen who was born in Liaoning, Liaoning Sheng, and lived in Shenyang City, Liaoning Sheng, China. Further, the applicant:
·belongs to the Han Chinese ethnic group; was born to Chinese citizens; had never been married; had never studied and had never been employed; and was Christian;
·does not have family members (including partner, dependent children, parents or siblings) in or outside Australia;
·obtained their Chinese passport [in] 2008 but had not undertaken any overseas travel in the last 30 years;
·can speak, read, and write in both the English and Mandarin languages; and
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they left China because they are a Protestant and the Chinese Communist Party attempted to have construction workers remove the cross from the Church. The applicant protested at the Church, and they were beaten and humiliated by security guards; then taken to a police station and held for two weeks and beaten and humiliated by the police. If they return to China they will be living a life of religious deprivation, beaten and detained.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 28 January 2021, the applicant was sent correspondence acknowledging receipt of the protection visa application and stating that the Department may make a decision on the application without requesting additional information and they should provide the Department with all the information that they felt was relevant.
On 8 February 2021, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could bring any additional information they would like to be considered to the appointment for the collection of personal identifiers or otherwise provide it to the Department.
The applicant’s appointment to provide biometrics/personal identifiers was 23 February 2021, which the applicant attended.
On 17 May 2021, the applicant was sent correspondence advising that more information was needed to assess the protection visa application and noting the applicant had not provided details of their claim that they feared returning to China because they are a Protestant Christian and that after they protested against the removal of a cross from their church, they were arrested and whilst arrested, beaten and humiliated and treated like a traitor. The applicant was invited to provide the following further information:
·     about their religious practise and personal experiences in China, including specific dates, locations and details of events in relation to the claim that a cross was removed from the church and that when they protested this they were arrested;
·     copies of any arrest warrant, charge sheet, court documents or any other supporting documentation relevant to any of the claims they had presented;
·     about their religious practises in Australia including the names and locations of any places of worship they attend, when they attend them, their role in services or other activities at these places of worship, and how they express their religious beliefs in their daily life. If they had not attended church or practised their faith in any other way, why not;
·     commenting or providing further information about their ability to depart China, as based on the then country information, their ability to leave China and travel to Australia indicates that they were of no interest to the authorities when they departed; and
·     about any reasons why they would not be able to attend one of the State-sanctioned churches to practise their religion in China, as the country information indicated that Christians with a low profile are not targeted by the authorities and that ordinary worshippers are able to attend those churches to practise their religion in China.
The Department did not receive a response to the 17 May 2021 letter or any further information or documentary evidence from the applicant.
Protection visa application interview
The Department did not invite the applicant to attend an interview.
Evidence before the Tribunal
On 14 October 2024, the Administrative Appeals Tribunal (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 review application
On 15 August 2021, the applicant lodged an application for review of the delegate’s decision with the AAT, in which the applicant stated they would not need an interpreter when communicating with the AAT. No representative was appointed. The delegate’s decision was uploaded with the application.
On 16 August 2021, the AAT wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the AAT to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could.
On 30 January 2025, the Tribunal sent a link to a pre-hearing information form to the applicant which contained various questions for the applicant to complete and which asked the applicant to provide any further evidence they wished to submit in writing as soon as they could.
On 31 January 2025 (WA time), the applicant provided the Tribunal with a copy of the completed pre-hearing information form dated 1 February 2025, in which the applicant said if a hearing were held, they would need an interpreter. The form substantively copied the claims for protection in the protection visa application and without addressing any of the Department’s questions in its letter of 21 May 2021.
On 7 March 2025, the Tribunal sent the applicant an invitation to attend a hearing on 24 March 2025 at 1:30pm (WA time) at the Perth Registry of the Tribunal and advised that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone. The hearing invitation also asked the applicant to provide all documents on which they intended to rely to support their case by 17 March 2025, noting that the delegate’s decision should set out the reasons for the decision, and the applicant should have regard to these, and any changes in their circumstances, in providing documents and preparing for the hearing.
On 14 March 2025, the applicant sent an email from their registered email address to the Tribunal requesting the Tribunal to make a decision on the papers without a hearing. The applicant also returned a completed Response to hearing notice with a typed signature dated 14 March 2025, in which the applicant had ticked the box to say ‘No, I will not participate in the hearing, and request the Tribunal to make a decision on the papers without holding a hearing’.
On 18 March 2025, the Tribunal wrote to the applicant at their registered email address saying:
Based on your hearing response covering email of 14 March 2025 the Tribunal acknowledges that you do not wish to appear at the scheduled hearing. The Tribunal confirms that the Tribunal will now proceed to decide the review without conducting a hearing.
Please confirm whether you intend to provide any further information relevant to your case and, if so, that you provide the information by 12pm (WA time) Monday, 24 March 2025. After this due date, the Tribunal will proceed to make a decision.
The applicant did not respond to the Tribunal’s correspondence on 18 March 2025 and did not provide the Tribunal with any further information or documentary evidence.
The applicant did not attend the Perth Registry or seek an adjournment of the hearing on 24 March 2024 at 1:30pm (WA time).
Proceeding without a hearing
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 make its decision without holding the hearing of the proceeding: s 106(3)(b)(ii) of the ART Act.
The Tribunal is satisfied that the only parties to this proceeding are the applicant and a non-participating party (the Minister): s 106(3)(a) of the ART Act.
Whilst the protection visa application and the pre-hearing information form said the applicant would need an interpreter if called for an interview or a hearing was held respectively, and the Response to hearing notice left blank whether an interpreter would have been required; the covering email from the applicant’s registered email address was in brief but understandable English and the applicant said in the application to the AAT that they would not need an interpreter when communicating with the AAT. The protection visa application said it was completed without the assistance of an interpreter and also said that the applicant could read, write or speak in the English language, which the Tribunal accepts because of the AAT application and because there is a statutory declaration on the Department’s file from the applicant declared on 28 March 2021 as to their financial circumstances, in English and without a translation. As such, the Tribunal finds that the applicant understands the emails they have written in English and the forms they have completed and returned to the Tribunal.
In the circumstances, the Tribunal is satisfied the applicant requested in the Response to hearing information form dated 14 March 2025 and in the covering email of the same date from the applicant’s registered email address that the Tribunal make its decision without holding a hearing of the proceeding under s 106(3)(b)(ii) of the ART Act.
The Tribunal is satisfied, based on its records, that the applicant did not subsequently attend the hearing or the Perth Registry at the time of the hearing, being 24 March 2025 at 1:30pm (WA time) or request an adjournment of the hearing. The Tribunal is also satisfied, based on its records, that the applicant did not respond to its email of 18 March 2025 which acknowledged that they did not wish to appear at the hearing. The Tribunal is therefore satisfied that the request stands as at the date of this decision.
The Tribunal has before it the Department’s file in relation to this proceeding. There is evidence before the Tribunal of the applicant’s identity, nationality, receiving country, and claims for protection. The applicant also provided the Tribunal with a copy of the delegate’s decision, which identifies their claims and the delegate’s findings on those matters.
On the information before it, the Tribunal is satisfied that it is able to determine the applicant’s identity, nationality and receiving country, and assess their claims against the criteria for a protection visa in s 36(2) of the Act. It appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding for the purposes of s 106(3)(c).
As such, the Tribunal finds that s 106(3) of the Act applies, and so the Tribunal may make its decision in the proceeding in relation to the application after considering the documents and things given to the Tribunal and without holding the hearing of the proceeding. The Tribunal has decided to do so, because of the request and because it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties.
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.
Applicant’s responsibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
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 is either a refugee or a person who meets the criterion for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant travelled to Australia on a Chinese passport and claims to be a Chinese national. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a national of the People’s Republic of China, which is also their receiving country for the purposes of refugee and complementary protection assessments.
Does the applicant satisfy the refugee criterion for protection?

The Tribunal has not received any more details, evidence or documentary support of the applicant’s claims than was before the Department, based on the Tribunal’s records. The completed pre-hearing information form substantively repeated the claims in the protection visa application, in that the claims are that the applicant:
-    is a Protestant Christian and has recently been the victim of a malicious campaign orchestrated by the Chinese Community Party. The authorities employed construction workers to remove the cross from the applicant' s church;
-    was beaten and arrested when they attended a protest against the removal;
-    was taken to the police station and detained for two weeks; in detention they were beaten and humiliated for two weeks. They were treated like a traitor and realised how little respect the authorities have for Protestants and they decided to leave the country;
-    did not seek help from within China due to the risk and they feared they would be punished again and did not relocate in China to avoid persecution as they feared the government would persecute them anywhere in the country. The applicant does not think the government would protect them as they are against religion;
-    fears that if she returns to China she will be imprisoned, beaten and prevented from practicing her religion.
By comparing the delegate’s decision with the completed pre-hearing information form, the Tribunal finds that the summary of the applicant’s claims in the protection visa application in Part 4 of the delegate’s decision has been copied word-for-word into the pre-hearing information form (together with the same grammatical and spelling errors and resulting in the pre-hearing information form being in the third person).
Based on the Tribunal’s records, the Tribunal finds that the applicant:
(a)did not provide the AAT or the Tribunal further details despite the AAT’s letter of 16 August 2021, in which the included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could;
(b)had uploaded the delegate’s decision with their application to the AAT, but did not provide the AAT or the Tribunal:
(i)any comments on the delegate’s setting out of the opportunities the applicant had had to provide all the details of their claims, including the 17 May 2021 letter referred to above before the delegate’s decision was made;
(ii)any comments on the delegate’s statement that the applicant’s initial claims contained in their protection visa application lacked detail or supporting evidence and the applicant did not respond to the 17 May 2021 letter to provide further information, including details and/or evidence to support their claims, or provide any explanation of why they could not provide the information; and
(iii)why they disagreed with the delegate’s decision that they were not satisfied that the applicant is a Protestant Christian, or that they have a profile that would be of adverse interest to the Chinese authorities or anyone else if the applicant returns to China;
(c)did not in any way provide the details suggested in the 17 May 2021 letter;
(d)did not provide the Tribunal further details despite the Tribunal’s correspondence of 30 January 2025, in which the applicant was asked to provide any further evidence they wished to submit in writing as soon as they could;
(e)did not provide the Tribunal further details or evidence despite the hearing invitation advising that the Tribunal had considered the material before it but was unable to make a favourable decision on this information alone and asked the applicant to provide all documents on which they intended to rely to support their case by 17 March 2025, noting that the delegate’s decision should set out the reasons for the decision, and the applicant should have regard to these, and any changes in their circumstances, in providing documents and preparing for the hearing; and
(f)did not provide the Tribunal further information in response to the Tribunal’s letter of 18 March 2025.
The Tribunal repeats that s 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim and that the Tribunal does not have to possess rebutting evidence before holding that a particular assertion was not made out.
The Tribunal finds that the applicant has had numerous opportunities before it to specify all particulars of their claim and to provide sufficient evidence to establish the claim but has not done so. On the information before it, which is simply the assertions in the protection visa application as repeated in the pre-hearing information form, the Tribunal is not satisfied that the applicant is a Protestant Christian, that they suffered harm in China due to their religion or otherwise, or that they have a profile that would be of adverse interest to the Chinese authorities or anyone else in the reasonably foreseeable future if they return to China. The Tribunal finds that the applicant has not made out any of their claims, because of the lack of detail and further information from the applicant.
The Tribunal finds that there is no real chance of harm in the reasonably foreseeable future if the applicant returns to China on the basis of the claims before the delegate and the Tribunal, because the applicant has not made out any of their claims and the Tribunal is not satisfied that the applicant is a Protestant Christian, that they suffered harm in China due to their religion or otherwise, or that they have a profile that would be of adverse interest to the Chinese authorities or anyone else in the reasonably foreseeable future if they return to China.
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).
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).
The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to China. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date(s) of hearing:   N/A
Representative for the Applicant: N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(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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