2111985 (Refugee) - [2025] ARTA 2017

2111985 (REFUGEE) [2025] ARTA 2017 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2111985

Tribunal:General Member A Goldsworthy
Date:25 July 2025

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

Statement made on 25 July 2025 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – online post opposing Islam – threats of killing – physical assault – education – employment – fear of terrorist activities – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), s 106
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, 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 27 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is [an age]-year-old female national of Malaysia. She applied for the visa on 12 May 2020. The delegate refused to grant the visa and the applicant appealed to the then Administrative Appeals Tribunal.
On 18 April 2025, the applicant requested a decision on the papers in response to a hearing notice that had been sent the previous day. The Tribunal had regard to section 106(3) of the Administrative Review Tribunal Act 2024 that allows for a decision to be made on the papers if the parties consent and if ‘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’.
Based on the material before the Tribunal at that time, it concluded that the issues for determination could not be adequately determined, these being whether the applicant meets the criteria in ss 36(2)(a) and (aa) of the Act.
Whilst the Tribunal was able to determine the applicant’s identity and receiving country, and the applicant’s protection visa application form expressed her reasons for fearing harm, I was unable to form conclusions about whether she met the criteria for a protection visa without seeking further evidence from her.
Thus, on 24 April 2025 the Tribunal sent questions to the applicant that, if answered, would enable it to form conclusions about whether she met the criteria for a protection visa. The Tribunal provided 7 days for a response. The applicant did not respond.
On 5 May 2025, the Tribunal notified the applicant via email that the issues for determination in the proceeding could not be adequately determined in her absence without a hearing, and provided a notice for a hearing scheduled for 16 June 2025. The applicant responded that she would attend.
The applicant appeared in-person before the Administrative Review Tribunal (the Tribunal) on 16 June 2025 to give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
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.
PROCEDURAL ISSUES
The Tribunal advised the applicant that on 9 September 2021 it had notified her that she had submitted a second application for protection (case number 2111987), and that the second application appeared to be seeking review of the same decision as that being sought in the first application (case number 2111985). The Tribunal reiterated that because she had not withdrawn the second application, it would be progressed after finalisation of the first.
The applicant acknowledged this.
CONSIDERATION OF CLAIMS AND EVIDENCE
In her protection visa application, the applicant claimed that she had left Malaysia because she was of Chinese ethnicity and a Christian and she had made an online post about Islam that expressed her disagreement. As a result, she and her family were threatened with death messages. She had tried to seek help but it had been ‘useless’ because the Malaysian tradition about Islam was ‘not under law’. She did not try to move to another part of Malaysia because Malaysia was a small country and she could be ‘traced’ easily. If she returned to Malaysia she would be physically harmed and sent to a religious court. She was unable to relocate within Malaysia because it would be the same and she would be unable to protect herself and her family.
The applicant provided the Department with ID, including a copy of her passport bio-page. She was not interviewed by the Department.
The delegate refused to grant the visas on the basis that:
a.they were not satisfied that the applicant was a refugee as defined in s5H(1) of the Act and that they were therefore not a person in respect of whom Australia had protection obligations; and
b.they were not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Malaysia, there was a real risk that the applicant would suffer significant harm.
The applicant did not return her pre-hearing form.
At the hearing the applicant said that she had completed her protection visa application herself, that she was fully aware of what was in it and that she stood by her claims.
Relevant evidence is included below.
Background
The applicant is an ethically Chinese Malaysian woman who is a Christian. She was born in the town of [Town 1] in Sarawak, Malaysia. Her mother became pregnant with her out of wedlock while a teenager and so the applicant was raised by her maternal grandmother. The applicant’s mother later married and the applicant has [step-siblings] who live and work in [Country 1], and a younger step-sister who is currently not working and lives with her parents.
The applicant’s mother and step-father live in the town of Sibu in Sarawak where they own their own home and own and run a grocery store. The applicant is close with her mother and contacts her weekly. Her grandmother remains living in [Town 1].
The applicant completed high school in Sibu and began studying a [degree] at a university in Shah Alam near Kuala Lumpur in [specified year]. She returned to Sibu after four months and did not complete that degree.
In 2010 she undertook a [Qualification 1] at a Christian university in Sibu. In 2012 she undertook a [degree] at the same university, graduating in 2014. After finishing her degree she worked in her mother’s grocery store until she left for Australia in 2020.
The applicant took overseas holidays to [Country 2] in 2017 and to [Country 3] in 2018, both for about 5 days. She travelled with her mother on both occasions.
The applicant told the Tribunal that she had never had any political involvement, nor was she an activist or otherwise involved in political activities.
Since having been in Australia the applicant has worked in [factories] and has worked in a [specified] factory since 2022.
The applicant has maintained her Malaysian phone number. She sends about AUD 2,000 home to her mother monthly.
The applicant said that if she were returned to Malaysia she would live in Sibu, Sarawak.
Online comments about Islam
The applicant told the Tribunal that she had made a comment in 2009 on the online [Platform 1] platform. Her comment was that Islamic extremists had the sole purpose of spreading their religion through violence, and that she hoped the religion of these extremists could become more inclusive and more rational.
The applicant said that she had no evidence of the post or of any replies as she had deleted the comment soon after, and the platform had ceased to exist years ago.
Shortly after having made the post, the applicant said that she was walking home from university in Shah Alam one evening at around 7pm when 3 or 4 men assaulted her from behind. They covered her head with a big hessian bag and she was punched and kicked, resulting in bruising. She said she was told that they wanted her to know what violence was. She inferred that this was in connection to her reference to violence in her online post.
She said the perpetrators took a photo of her ID card and told her to delete the online post she had made or they would find her at her address as her ID showed where she lived. They also told her not to disclose the incident to anyone and so she did not seek medical assistance. The applicant said they had threatened that they would find her family, but she confirmed that her family had never been impacted by this incident.
She said that she had tried to report the assault to police but had not been believed. She had no evidence as she had deleted the post by that time.
Sometime after the incident, on a weekend when her housemates were not home, the applicant said that she had been in the shower when she heard a noise in the living room. She later found that the lock to the entrance had been damaged. After that, she slept with a knife near her bed.
The applicant explained that this was the reason she had only studied for a term before returning home to Sarawak.
She told the Tribunal that she had never told anyone about the incident until this year when she told her mother. Her mother had then told the rest of her family.
The applicant confirmed that she had never posted any comments relating to Islam or any similar topics while in Australia.
Discrimination against Chinese Malaysians
When asked what had prompted her to make the online post, the applicant said that Chinese Malaysians did not get along with Muslims. They had better academic performance than Muslims and so should have a better opportunity to study in the public universities.
I put to the applicant that I remained unclear as to why she had made the post. She said that it was just something that had arisen in her mind suddenly, and she had acted on it. She had wanted to tell ‘them’ to be more inclusive and to give a fair go to Chinese Malaysians in terms of university access and also in access to government jobs.
The applicant confirmed that she had no intention to do any further study, and that she had never applied for a government job.
The applicant acknowledged that she had been able to complete university studies at a private institution, but said the fees had been higher than they would have been at a public university.
Future harm related to the online post
The applicant had written in her protection visa application that she had not tried to move elsewhere in Malaysia as it was a small country and she would be traced. The Tribunal asked who she feared would trace her and how they might do so.
The applicant said that most public servants in Malaysia were Muslims. If the people who had threatened and assaulted her were working for a government agency it would be easy for them to find her personal information, so she had nowhere to hide.
The Tribunal noted that she had satisfied their demand to delete the post. I put to her that if they worked for the government and could access her details based on her ID, as she had postulated, why would they do so now? It was 15 years since she had made her online post, and there was no evidence that they had tried to make contact with her since she left Shah Alam in 2009.
The applicant said only that she was scared as she did not know when they might assault her again.
The Tribunal asked about her written claim that she would be sent to a religious court; who did she think would initiate this? The applicant said that she feared the police officer from whom she had tried to seek help might do this.
The Tribunal asked how she thought she had been able to leave the country if the authorities wanted to prosecute her. She said that she had travelled to [Country 2] and [Country 3] for holidays so they probably assumed she was only going to Australia on holiday too.
The Tribunal put to the applicant that she had written that she could not relocate in order to avoid harm, yet she had returned to Sarawak and had lived there for 10 years without incident; if she had not been harmed and had not been brought before a religious court in that time, why would she be in future?
The applicant speculated that the perpetrators could find her house if she returned and could gun her down.
Generalised harm from Muslim Malays
The applicant had also written that if she returned to Malaysia she would be physically harmed. The Tribunal asked who, other than the perpetrators previously discussed, would physically harm her and why.
She said that she was afraid of Muslim extremists and referred generally to terrorist activities that had been carried out in 2014. Despite having been invited a number of times to detail who had been involved or what the attacks had targeted, the applicant was unable to say. She speculated that whoever had carried them out may have been targeting people from other religions.
The applicant referred to another incident in 2024 in which she said some Muslims had attacked a police station in Malaysia and killed a police officer. She questioned where she as an ordinary person could hide if they were able to kill a police officer.
When asked, the applicant confirmed that the police officer had been Muslim.
The Tribunal provided examples to the applicant of the type of harm that amounted to serious harm, and gave the definition of significant harm. The Tribunal put to the applicant that her evidence did not seem to suggest that she faced this level of harm, noting that the chance of her being pursued by those who had attacked her appeared to be remote. The Tribunal also put to her that there was no information before it to suggest that the policeman to whom she had made a statement would do anything to harm her.
The applicant acknowledged this but did not provide further comment.
With reference to her facing retribution from Muslim Malays for her 2009 post, the Tribunal invited the applicant to comment on country information that Sabah and Sarawak were predominantly non-Muslim, and that approximately 75 per cent of Malaysian Christians lived there.[1]
[1] DFAT Country Information Report: Malaysia, Department of Foreign Affairs and Trade, 24 June 2024 (‘2024 DFAT Report’), [3.35].
The applicant agreed but said that the majority of public servants were Muslims and that they had ‘big powers’. The Tribunal acknowledged that most Malaysian public servants were Bumiputera[2], but noted that it did not understand why that meant she could not return.
[2] 2024 DFAT Report, [2.2].
Despite being given every opportunity, the applicant did not respond.
The Tribunal shared DFAT’s assessment that Christians were generally not at risk of societal discrimination, and Christians who proselytised or promoted Christianity to Muslims faced a moderate risk of harassment by state authorities.[3] The applicant said that she had no comment.
[3] 2024 DFAT Report, [3.79].
The Tribunal also shared country information stating that there were no laws or constitutional provisions that directly discriminated against Chinese Malaysians,[4] and that Chinese Malaysians comprised a high proportion of the professional and educated class, were prominent in business, and tended to be wealthier than other ethnic groups in Malaysia.[5] Despite being invited to comment, the applicant did not.
[4] 2024 DFAT Report, [3.12].
[5] 2024 DFAT Report, [3.11].
The Tribunal put to the applicant that while Chinese Malaysians had less opportunity to attend public university than Bumiputera, this constituted positive discrimination that afforded benefits to certain people but had not stopped her from gaining a post graduate degree. The applicant chose not to comment on this.
Findings of fact and reasons
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 her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
I accept that if returned the applicant will live in Sibu, Sarawak.
Harm related to the post from 2009
I accept that the assault in 2009 happened as described by the applicant and as outlined above, and that this was why she had returned home to Sibu. I accept that she deleted her comment soon after the incident and that she had tried to report the incident to police but had not been believed as she had no proof.
I accept that she has not posted any comments relating to Islam or any similar topics since having been in Australia and based on her evidence, find that her 2009 post was an isolated action that did not reflect a behavioural pattern related to the applicant’s expression of political or religious beliefs.

I accept that sometime after the assault while she still lived near her university in Shah Alam, the applicant found the lock to the entrance of the home that she shared with housemates to have been damaged. The applicant inferred that she attributed this to the same people who had assaulted her.
Despite the applicant not having seen or heard the voice(s) of whoever damaged the lock, I am prepared to find that it was damaged purposefully and that it was done by those who had assaulted her. I find that it was done in order to reinforce their claim that they knew where she lived as the address was on her ID card.[6]
[6] accessed on 24 July 2025.
I accept that these incidents were distressing and frightening for the applicant and that she continues to experience a degree of anxiety because of them. There is no evidence before the Tribunal to suggest that this amounts to serious or significant harm.
In assessing the chance of harm to the applicant in the future, I place significant weight on the following:
a.The applicant’s evidence that she deleted the post in 2009 soon after the assault, which I find limited the post’s exposure to the public and also satisfied the perpetrators’ demand;
b.That [Platform 1] fully ceased operations in [year] after its website was closed in 2015,[7] which I find further limits the chance of the post ever resurfacing;
c.That no harm related to the incident had come to the applicant in the 10 years after she returned to Sarawak;
d.That despite having retained her Malaysian phone number, there is no evidence that anyone has contacted her in relation to the post in 15 years;
e.That her family was never contacted or harassed because of the post, nor were they aware of the post until the applicant told her mother 15 years later in 2025.
[7][Source deleted.]
I find that the chance that the applicant’s perpetrators were civil servants who had access to government systems that would reveal her home address in Sarawak, and that they would be seeking to pursue her some 15 years after she made her post, to be remote.
In making this finding I have had regard to the fact that a significant number of years have passed with no indication of them having sought or discovered her home address in Sarawak which would have been updated on her national ID card. I have also had regard to the applicant having no reason to suspect they were civil servants other than her statement that most civil servants were Muslim. I therefore find it to be wholly speculative.
I find the applicant’s claim that the police officer would attempt to have her sent to a ‘religious court’ to be fanciful. For there to be a real chance of this happening, the Tribunal would need to find that the policeman took and kept the applicant’s details despite having not believed her story and not filed a report. He would have to have been motivated to report her post, for which he had no evidence other than her oral statement to him, to a sharia body. He would need to be motivated to pursue this grievance over the course of 15 years, and a sharia body would need to be motivated to pursue the applicant. To avoid doubt, I do not accept the applicant’s highly speculative claim relating to the policeman.
Having had regard to the above, I find that the applicant does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons related to the post she made online in 2009.
Discrimination
The applicant made a vague claim that as a Chinese Malaysian she was discriminated against by way of access to public universities and government jobs. While she did not raise it, I have also considered whether her being Christian may have contributed to the merits of this claim.
There are reports that Chinese Malaysians often do not apply for government positions as they believe the positions are more likely to be awarded to Bumiputera, who are most often Muslim, and provide limited promotion opportunities. However, the Malaysian Public Sector Commission says there is no racial discrimination in civil service recruitment.[8]
[8] 2024 DFAT Report, [3.13].
I have placed significant weight on the applicant’s evidence that she had never applied for a government job. I find that she was therefore not harmed due to being unable to obtain a government job. There is no evidence before the Tribunal that the applicant will apply for a government job in the future and based on her areas of study and on the work she has undertaken throughout her adulthood to date, I find that she will not.
I have placed significant weight on the fact that the applicant was accepted into two universities in Malaysia and that she was able to achieve the post graduate study that she sought.
I have had regard to country information detailed earlier about Bumiputera being afforded greater opportunities in accessing public universities. I find that this caused the applicant some financial harm in her having to pay for private university studies. However, I find that this was a low level of harm and that it was limited in time and scope.
Having had regard to the above and to country information discussed with the applicant, I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of discrimination.
Violence from Muslim Malays
I found the applicant’s evidence as to facing physical harm from Muslim Malays to have been undetailed, vague, generalised and limited. Despite having been given every opportunity, the applicant did not elaborate or offer further evidence.
Having had regard to the evidence provided by the applicant, to my findings about her online post, and to country information before me, I find that the chance of the applicant again being subjected to physical violence by Muslim Malays to be remote.
To avoid doubt, I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal for reasons of violence from Muslim Malays.
Cumulative harm
I have considered the harm and the risk of harm to the applicant singularly and on a cumulative basis, and I have had regard to country information and to my findings set out above. I find that she does not face a real chance of serious harm into the reasonably foreseeable future, or a real risk of significant harm as a necessary and foreseeable consequence of removal.
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.
Date(s) of hearing:    16 June 2025
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
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(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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