2111442 (Refugee) - [2025] ARTA 1381

2111442 (REFUGEE) [2025] ARTA 1381 (7 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2111442

Tribunal:General Member M Brereton
Date:7 April 2025

Place:Melbourne
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 07 April 2025 at 10:52am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – Muslim women – lesbian – fear of arrest – physical harm – internal relocation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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 20 August 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 Malaysia, applied for the visa on 6 March 2018. She claimed to fear harm because she is a member of the LGBTIQA+[1] community. The delegate refused to grant the visa on the basis that while the applicant may face some societal discrimination on account of her sexual orientation or transgression of gender norms upon return to Malaysia, there is no credible information that suggests the applicant would be harassed or otherwise mistreated or targeted by her family, or that there is a real chance she would be specifically targeted by the authorities or any specific individuals in Malaysia in the foreseeable future.
[1] Lesbian, Gay, Bi-sexual, Transgender, Intersex, Queer, Asexual, and other identities. The Tribunal notes that some sources refer to other variations on this (such at LGB, LGBT). The Tribunal reads all such references to be LGBTIQA+ unless they are limited explicitly to one or more of the terms therein.
The applicant appeared before the Tribunal on 4 April 2025, to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife, [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
BACKGROUND
Evidence before the Department
Protection visa application
The application for the visa claims that the applicant identifies as a lesbian. She claims that she was disowned by her family and suffered mental and verbal harassment.
The interview
On 17 May 2021, the applicant attended an interview with an officer of the Department (not the delegate who made the decision). The interview was conducted by video link and the applicant was assisted by an interpreter in the Malay and English languages. At the start of the interview the applicant said that she had not prepared the application. She said that another person had done this for her. She said she did not know what was written in the application. The officer read the claims to her. She stated that they were mostly true and correct but corrected that she had not disclosed her orientation to her family. She said that her family had worked it out for themselves.
Summary of the delegate’s decision
The delegate (who was not the interviewing officer) was concerned that the applicant claimed she did not know what was in the application but when each section was read to her, she agreed these were correct (save for the one instance noted above). The delegate considered this to be inconsistencies in the applicant’s responses and that it raised serious doubts as to the credibility of the claims. The delegate accepted the claim as to sexuality but did not accept that the applicant has faced any harm or discrimination in Malaysia because of her sexuality. The delegate considered country information which (at that time) assessed a moderate risk of harm but considered this to be very different to a “real chance”. The delegate also noted that most of the instances of harm related to transgender persons, activists, people in poorer areas, or people with a high profile. The delegate was not satisfied that the applicant will face a real chance or real risk of relevant harm if she returns to Malaysia.
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided information to the Tribunal before the hearing. This information states that she is now married to an Australian citizen ([Ms A]).
The hearing
The applicant and [Ms A] attended the in person hearing on 4 April 2025. Their evidence and the applicant’s submissions are considered below.
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 the applicant’s fear of harm in Malaysia because of her sexuality. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Identity
The applicant claims to be a Malaysian citizen from Sabah. She has provided identity documents in support of this claim. She does not claim to have a right to enter or reside in any other country. The Tribunal finds that she is a citizen of Malaysia, and that Malaysia is the receiving country and country of reference for the purposes of this review.
Claims
The Tribunal has listened to the interview with the interviewing officer and has formed a different view to the delegate. The Tribunal understands the applicant to have said that she told a person her claims and this person wrote something in the application. When asked at the interview if she knew what was in the application, she answered that she did not. This is not the same as saying that the claims in the application are wrong, incorrect, misleading, or incomplete. The Tribunal finds no inconsistency with her statement that she did not know what was in the application because in effect, this was true up to the point that the contents were read back to her at the interview, after she had made this statement. The Tribunal has considered the applicant’s demeanour and engagement at the in-person hearing. The Tribunal does not have any doubts or concerns in relation to the applicant’s evidence but, in any event, the task before the Tribunal is to consider the current situation and evidence.
The delegate considered the applicant’s personal circumstances, presentment, and country information as of 2021. The Tribunal has had the advantage of having an in-person hearing with the applicant to discuss her current circumstances. The applicant has been consistent in her claim that she is a lesbian. She claims and has provided evidence that she married in 2022 and that her wife is an Australian citizen.
The applicant told the Tribunal that her family disowned her when they discovered her sexuality. Her father, who was a police officer, is deceased and the applicant has very little contact with her mother. She said that her mother and her siblings do not know that she (the applicant) has married [Ms A]. She said that the family will never accept the marriage. This is in sharp contrast to [Ms A’s] family, who are Australian citizens of Cambodian heritage. The applicant has provided photographs showing her and [Ms A’s] inclusion in a number of family events, and [Ms A’s] family celebrating the wedding. [Ms A] told the Tribunal that her family has accepted the applicant totally. The Tribunal asked about their future plans and the applicant said that they have been having appointments at an in vitro fertilization clinic to try and have a child. Both were visibly distressed at the prospect of being separated and/or the applicant facing harm, ostracism, and rejection in Malaysia.
The Tribunal accepts the applicant’s evidence set out above. The Tribunal finds that the applicant is a lesbian and that she is married.
The applicant presents a male appearance, including hairstyle and tattoos. The Tribunal has seen the photographs she provided to the Department with her application, which show that she has presented a masculine appearance for many years in Malaysia as well. She is now married to a woman and her wife’s name is one of the applicant’s visible tattoos. The Tribunal asked her about her fear of being identified in Malaysia and she said that in the past she has been abused and spat on. She said that she will face abuse and worse if she is walking with her partner in Malaysia now. She cannot return to her family, and she fears she will be harmed anywhere in Malaysia, including in Kuala Lumpur. The Tribunal asked if she has ever been misidentified as transgender and she said that this had happened in Malaysia, but not in Australia.
The Tribunal finds that if the applicant was to return to Malaysia and continue to present and live as she does here in Australia, there is a real chance that she will be identified as, or imputed to be, a lesbian. There is also a small, but none the less real chance that she may be imputed to be transgender based on her presentment.
The Tribunal must next assess the level of harm that the applicant may face now, or in the reasonably foreseeable future, should she return to Malaysia and be identified/imputed as a member of the LGBTIQA+ community. The Tribunal has considered the current country information set out below.
Country Information
The Australian Department of Foreign Affairs and Trade (DFAT) has reported that lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. LGBTQIA+ activism in Malaysia has historically focused on HIV, as HIV was often the only issue considered ‘acceptable’ for government engagement. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as syariah[2] criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities.[3]
[2] Islamic religious law. Also spelt Sharia.
[3] Department of Foreign Affairs and Trade (DFAT), ‘DFAT Country Information Report Malaysia’, 24 June 2024, at [3.138].
The Tribunal has also noted the following in relation to transgender people:
Transgender men are much less visible than transgender women; they often ‘pass’ as ‘cis men’ and consequently face fewer barriers to access to employment. Access to health care for transgender men can be difficult; hormonal treatment is more expensive than for transgender women. The ability of many transgender men to pass as cis men means that the levels of discrimination and harassment that they face are generally lower than that experienced by transgender women, although most are cautious to avoid being outed to continue living as their preferred gender.[4]
[4] DFAT, at [3.146].
DFAT has also commented:
The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.
DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.[5]
[5] DFAT, at [3.147]-[3.148].
The United Kingdom Home Office[6] (UKHO) reports that Malaysia is a culturally and religiously conservative country and in general there is a negative view of same-sex relations. There is a strong social taboo against LGBTIQA+ issues among Muslims. Persons who are likely to be able to demonstrate a real risk of treatment by state actors that amounts to persecution are: Muslim LGBI persons accused of same-sex sexual acts who are likely to be prosecuted under Sharia law; trans persons, particularly Muslims, who are open about their gender identity; and those likely to be forced to undergo conversion therapy practices.
[6] United Kingdom Home Office, ‘Country policy and information note: sexual orientation and gender identity or expression, Malaysia’, Version 2.0, July 2024, Malaysia CPIN Sexual orientation and gender identity or expression. See also previous version, June 2020, updated 22 September 2022,
State religious officials and police officers have […] physically and sexually assaulted transgender women arrested during raids to enforce Sharia laws that prohibit “a male posing as a female.” UKHO also notes that the Malaysian constitution does not prohibit discrimination on the basis of sexual orientation and gender identity or expression.[7] There is no provision in law for same-sex marriage or civil partnership.
[7] UKHO, 2020.
In more recent information considered by the Tribunal, Human Rights Watch[8] reported in 2024 that state-sponsored discrimination against LGBTIQA+ people remains pervasive, including the funding of conversion practices. In January 2024, the Malaysian Prime Minister rejected the idea that LGBTIQA+ Malaysians would be recognized and protected under his government, saying: “These politicians will say that if Anwar becomes prime minister … LGBT will be recognized. This is a delusion. Of course, it will not happen.”
[8] Human Rights Watch, 'Human Rights Watch World Report 2024', 11 January 2024, .
Other information notes that in Malaysia, discussions in the public domain about sexual orientation, gender identity and expression are “often regarded as taboo”. LGBTIQA+ persons face discrimination and human rights violations. Consensual same-sex sexual relationships are criminalized through both penal code offences and Syariah state-enacted religious laws and these discrepancies have become subject to constitutional challenges. Transgender and gender non-conforming identities are also penalized under State Syariah law, and pathways to legal gender recognition are littered with cumbersome administrative barriers for Muslims and non-Muslims.[9]
[9] International Commission of Jurists, ‘Invisible, Isolated, and Ignored. Human Rights Abuses Based on Sexual Orientation and Gender Identity/Expression in Colombia, South Africa and Malaysia’, 2021, >
The United States Department of State[10] in its report for 2022 noted credible reports of violence against transgender people and the enactment of laws criminalising consensual adult same-sex sexual conduct. Authorities often charged transgender persons with “indecent behavior,” “a man posing as a woman,” or “importuning for immoral purposes” in public, even if they were not soliciting. A person convicted of a first offence faced a token fine and a maximum sentence of 14 days in jail; sentences for subsequent convictions were fines and up to three months in jail. There was no legal process to allow individuals to update their gender markers on identity documents.
[10] United States Department of State, ‘Malaysia 2022 Human Rights Report’, March 2023,

Human Rights Watch[11] has described the legal and political environment in Malaysia as a space where discrimination against the LGBTIQA+ community “flourishes”. The report goes on to state that “[t]hrough successive governments, the Malaysian state’s position has been unambiguous: LGBT people should…be prepared to face the consequences of social ostracization, discrimination, humiliation and violence”.
[11] Human Rights Watch, ‘“I Don’t Want to Change Myself” Anti-LGBT Conversion Practices, Discrimination, and Violence in Malaysia’, August 2022, >
Both federal and state authorities run “rehabilitation”, “re-education” or “conversion therapy” programs, known as mukhayyam. Participation in these is voluntary (although there are some compulsory programs enforced under syariah law). The federal Islamic Affairs Department “boasted in 2018 that 1,450 LGBT people had “recovered” from the “disease” through mukhayyam since the program was initiated in 2012” and noted that by June 2021, 1,733 people had attended these programs.
A Malaysian transgender support organisation, Justice For Sisters[12], issued a statement on 20 November 2023, to mark Transgender Day of Remembrance. This statement identified four cases in 2023 where transgender women were found dead in Malaysia. The statement continued:
These, and previous cases reveal a trend in the vulnerability of trans women to gender-based violence. Trans women sex workers are especially vulnerable to violence by their clients. The criminalisation of both trans women’s gender identity and sex work increases their vulnerability to violence with impunity while restricting access to redress. In two cases, the police, family, and friends suspect the intimate partner as the perpetrator.
While the police do carry out investigations in these cases, the gaps in the way these cases are handled result in a lack of justice and closure for family members and loved ones. These gaps include:
Ruling out elements of ‘hate crimes’. The recent murder of a trans woman in Johor is an example of prematurely omitting the possibility of a hate crime.
Capacity in analysing and investigating hate crimes and severe cases of gender-based violence against trans and gender-diverse persons.
…
Use of trans and gender-affirming language. In cases of hate crimes, the police are the main source of information, and the way they describe trans people has a ripple effect on how the media reports the case.
[12] Justice For Sisters, Media Statement: Transgender Day of Remembrance: Police Protection is Key in Addressing Violence Against Trans and Gender-Diverse People
FINDINGS
The Tribunal has had regard to the above country information about the treatment of members of the LGBTIQA+ community, including those who are or who are imputed to be transgender persons, and the Malaysian laws which criminalise and prohibit same-sex relations. The Tribunal has found that the chance of the applicant facing harm as a Muslim woman in a same-sex relationship in Malaysia and/or a person who may be imputed to be transgender, amounts to a real chance. The Tribunal finds that the harm she may face includes significant physical harassment, significant physical ill treatment, social ostracism, humiliation, violence, and charges, particularly under syariah law. The Tribunal finds that this harm amounts to serious harm as contemplated by s 5J(5).
The Tribunal has found that the applicant faces a real chance of serious harm if she returns to Malaysia for reason of her sexuality and perceived sexuality. The Tribunal finds that this constitutes persecution and that the essential and significant reason for the persecution is her membership of the particular social group ‘homosexual Muslim women in Malaysia’. The Tribunal is also satisfied on the information cited above, and finds, that the persecution involves systematic and discriminatory conduct: (s 5J(4)).
The Tribunal has considered whether the applicant could take reasonable steps to modify her conduct to avoid a real chance of persecution. The Tribunal is satisfied that such steps would involve her altering her sexual orientation or gender identity, and it is impermissible to require such steps under s 5J(3)(a), (b), or (c)(vi).
The Tribunal has had regard to the information that the state is one of the agents of persecution. The Tribunal is satisfied that effective protection measures are not available and that the real chance of persecution relates to all areas of Malaysia: (s 5LA; s 5J(1)(c)).
There is nothing before the Tribunal to indicate the applicant has a right to enter and reside in any other country such that Australia would be taken not to have protection obligations: s.36(3).
Having regard to all the above, the Tribunal finds that the applicant has a well-founded fear of persecution if she is returned to Malaysia, now or in the reasonably foreseeable future. The applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date(s) of hearing:   4 April 2025
Representative:  Not represented
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.
…