2113913 (Refugee)
[2025] ARTA 740
•13 February 2025
2113913 (REFUGEE) [2025] ARTA 740 (13 FEBRUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2113913
Tribunal:General Member E Chan
Date:13 February 2025
Place:Adelaide
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 13 February 2025 at 9:27am
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – transgender male – fear of arrest – physical assault – employment – mental health issues – internal relocation – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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
BACKGROUND
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is born in Penang, Georgetown, in Malaysia and is a Malaysian citizen.
The applicant first arrived in Australia [in] February 2003 on a [student visa]. They then travelled in and out of Australia on a number of occasions with the longest period outside Australia being from [August] 2005. The applicant returned to Australia [in] October 2014 again on a [student visa] and then had a number of other trips in and out of Australia following their return in August 2005 but has remained in Australia since [May] 2017.
On 27 November 2018, the applicant lodged an application for a protection visa with the Department of Home Affairs (the Department).
On 23 September 2021, a delegate refused the applicant’s application for a protection visa.
On 11 October 2021, the applicant lodged an application with the Administrative Appeal’s Tribunal (AAT) for a review of the delegate’s decision.
On 14 October 2024, the 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 (Cth) (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.
The applicant appeared before the Tribunal for an in person hearing on 17 January 2025 to give evidence and present arguments. The Tribunal hearing was initially conducted with the assistance of an interpreter in the Mandarin and English languages but was later conducted without an interpreter when it was clear the applicant was proficient in English.
On 22 January 2025, the Tribunal wrote to the applicant inviting them to provide documentary evidence in support of aspects of their evidence at the hearing. In their return correspondence to the Tribunal, the applicant declined the invitations to provide additional evidence, citing feeling “overwhelmed” and requesting the assistance of the Tribunal to arrange their deportation from Australia.
On 4 February 2025, the Tribunal contacted the applicant via telephone to offer the applicant a further hearing as there were matters the Tribunal wished to clarify with the applicant. The applicant agreed to a further hearing which proceeded on 10 February 2025 via video. The hearing on 10 February 2025 was conducted without the assistance of a Mandarin and English interpreter.
This decision and statement of reasons is made by the Tribunal.
Evidence before the Department
The Department had before it the applicant’s Department file, including the applicant’s protection visa application; a copy of the applicant’s passport; materials provided by the applicant including their curriculum vitae, various employment contracts, tax documents, bank statements and open source information relating to LGBTIQA+ persons in Malaysia and elsewhere; as well as other country information on Malaysia available to the Department.
In their protection visa application, the applicant stated that they were seeking protection in Australia from Malaysia for the following reasons:
a.They left Malaysia as they are a transgender gay male who has suffered persecution from both their family and their country. They are unable to find employment due to their sexual orientation and they have been ostracised by their family and face punishment under Malaysian (Sharia) law.
b.As a primarily Muslim country, they have faced, and will face, intolerance, persecution and denial of their rights as a human to live their life as their true self; transgender and transsexual persons are not recognised as a valid identity in Malaysia.
c.From a young age, they have been unable to conceal their true identity and “unnatural” behaviour and encountered mal-treatment due to their perceived behaviour. They have faced judgment from relatives, neighbours and school colleagues. Education was virtually impossible due to constant bullying and harassment.
d.If returned to Malaysia, they may be arrested and it would be impossible for them to conceal their orientation.
e.They wish to transition to a female in the future and this will not be legal or possible in Malaysia. In Malaysia, they will not be able to change their name or gender and cannot marry who they wish to.
f.They experienced physical and mental harm from their family, neighbours, work colleagues and fellow students. They have been persecuted, bashed and hassled by the public and authorities due to their “perceived abnormal behaviour and sexual orientation”. They attempted to seek police assistance to no avail. The authorities have previously called them “bapok” which means “faggot”.
g.They were unable to move to another part of Malaysia as they relied on their family for financial support and their family would not support them unless they conformed to their ideals. In their view, they would still struggle to obtain employment and would not be accepted in any other part of Malaysia.
h.If returned to Malaysia, they will continue to face persecution, harassment and a denial of their human rights that they have previously experienced. They will face harassment and attacks from their family and possible prosecution from the authorities. They will be unable to gain employment or an education due to the bullying and discrimination.
i.Their family will mistreat them and disrespect them if they return. They will force them into an arranged marriage and will not accept their sexual orientation.
j.The humiliation and harassment they have encountered led them to seek education in Australia and this is the first time they feel safe, at home and that they can be their true self.
The Department offered the applicant an interview but the applicant did not attend. When questioned by the Tribunal on this matter, the applicant said they were not aware that they had been invited by the Department to an interview.
Evidence before the Tribunal
On the review, the Tribunal had before it the applicant’s Department file, including the delegate’s written reasons for their decision, the Tribunal file, the applicant’s oral evidence at the hearings, [evidence of work] provided by the applicant which the applicant claims they [completed] in their alleged role as [an occupation 1], as well as other country information on Malaysia. Where relevant, the applicant’s oral evidence at the hearings is referred to in the Tribunal’s analysis 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 whether the applicant is owed protection as a refugee or under the complementary protection provisions as set out above.
The Tribunal had grave concerns about numerous aspects of the applicant’s oral evidence at the first hearing. Ultimately, with respect to the matters of concern, the Tribunal is satisfied the applicant’s oral evidence was not designed to deliberately fabricate or bolster their protection claims but is, in the Tribunal’s view, symptomatic of an untreated mental illness which may require assessment. The oral evidence of Witness B at the hearing also alluded to the applicant’s mental state.
Notwithstanding the Tribunal had serious concerns about aspects of the applicant’s oral evidence, with respect to the applicant’s central protection claims that they are a transgender and gay person, the Tribunal is satisfied that the applicant’s presentation, the manner in which they gave evidence at both hearings, their characteristics and qualities and the oral evidence of Witness A and Witness B, align with the applicant’s claims.
The Tribunal accepts the applicant’s evidence that they are a transgender person in that they were assigned male at birth but have identified, at least in part, as female from a very young age. Further, the Tribunal accepts that the applicant has an exclusive sexual interest in males and is a gay person.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted for reconsideration.
Nationality and receiving country
The Tribunal accepts the applicant is a Malaysian national, that they do not have citizenship or permanent residency in any other country and that Malaysia is their receiving country for the purposes of assessing their protection claims. The Tribunal also accepts the applicant departed Malaysia and first arrived in Australia [in] February 2003.
Transgenderism
The applicant [has specified family members]. They were raised in a Buddhist family but they are now a nominal Christian. Their father passed away in 2019 and their mother passed away when the applicant was five years of age. They have [number of siblings] and claim they have a fractured relationship with them due to the applicant’s gender and sexual orientation, only contacting them three to five times a year. One sister remains in Penang, another in Johor, [other siblings] reside in [Country 1] and [one] sister resides in the same regional town in South Australia as the applicant.
The applicant fears return to Malaysia due to being a transgender person. They fear they could be “jailed forever”, they dare not walk alone at night, their family will continue to ostracise them and will disown them, and they will suffer verbal abuse from their neighbours.
The applicant claims that they were assigned male at birth but from a very young age, they have identified at least in part, as a female. They identified as a female from six years old. They would play cooking and Barbies. They feel they have been born into the wrong body. The applicant told the Tribunal they are ‘[male name 1]’ by day and ‘[female name 1]’ by night.
When asked whether they meant they are a transgender female (rather than a transgender male as claimed in their protection visa application), the applicant said they are so confused about their own identity. The Tribunal accepts that the applicant is questioning their gender and that the applicant may identify at times as both male or female.
Their father treated the applicant well and whilst the applicant never told their father that they were transgender or gay, they suspect their father knew given they are the last in the family to marry. The applicant’s [siblings] knew they were transgender and gay.
When asked what is stopping them from presenting as [female name 1] by day (and not just by night), the applicant said they reside in a regional South Australian town and Australia is not yet that open that they feel they can do so in the town where they live. For this reason, the applicant also maintains a very low online social profile. Due to the remoteness of their location, the applicant does not frequent LGBTIQA+ locations in Adelaide. When asked whether they considered moving to a larger city in the future, the applicant said they would like to but they need to find employment first. If they relocate to Sydney to be with their transgender friends, they intend to pursue more public activities like dancing and growing their hair long.
They wear makeup and they wear female lingerie when engaging in sexual activity or when alone at home. The applicant said that they wear make-up every day but only lightly during the daytime so as not to attract attention and heavier make-up at night in private. They wear lingerie most nights. They currently have no friends in their regional town and feel extremely isolated due to their gender and sexual orientation. They used to have a [dating site] account and other Asian transgender and gay accounts but have since closed the accounts and now keep a very low online profile due to fear of repercussions and stigma living in a small regional town.
The applicant was very frank at the second video hearing and showed the Tribunal their collection of lingerie in their bedroom, make-up and photographs of the applicant and Witness B. The Tribunal accepts the applicant’s oral evidence that they are ‘[male name 1]’ by day and ‘[female name 1]’ by night. The Tribunal also accepts that the applicant currently lives in a small regional town in South Australia which could make outward expressions of their gender difficult.
When asked whether the applicant ever wanted to undergo sex reassignment surgery in the future, the applicant said that at [his] age, the health risks are now too high. When asked why they did not undergo surgery earlier, they responded that 20 years ago, it was not accepted even in Australia. However, the applicant did say they took the female hormone whilst residing in [Country 1]. The applicant said they would like to continue female hormone treatment in Australia but has not been able to do so to date as they reside in a regional town where LGBTIQA+ behaviour is not accepted and that until recently, they would not be able to physically manage their [outdoor work].
During the second hearing, the Tribunal received oral evidence from the applicant’s two former sexual partners, Witness A and Witness B. The Tribunal considered the oral evidence of both Witness A and Witness B to be honest, not embellished and very compelling. Witness A was not able to comment on the applicant’s gender as he had never known the applicant to present as a gender other than male or as another persona. This is consistent with the applicant’s oral evidence prior to the call that when they met Witness A, they were still very young and did not present specifically as [female name 1] at that time. Witness B told the Tribunal he was aware the applicant identified as female but that the applicant felt compelled to be male due to cultural expectations.
For the above reasons, the Tribunal is satisfied that the applicant is a transgender person, that the applicant was assigned a male at birth but identifies, at least in part, as a female.
Homosexuality
The applicant claims that they fear return to Malaysia as they are gay and, from a young age, they have only ever been interested in males. At 15 years of age, they recall they did not fancy girls but rather, were attracted to male television stars. The applicant has had at least two significant sexual relationships with males, those being Witness A and Witness B. The applicant claims that they would like to have another gay relationship but that they are currently prevented from doing so due to their low self-esteem. The applicant appeared to infer through their oral evidence that, from time to time, they engage in sexual activity with other males as the opportunity arises but that opportunities are limited due to living in a small regional town.
Both Witness A and B gave evidence broadly consistent with the applicant’s evidence as to how they met and what they knew of the applicant. The Tribunal accepts that the applicant has only ever been sexually interested in males and has had a sexual relationship with both Witness A and Witness B in the past. The Tribunal also accepts the applicant’s evidence that in addition to their significant relationships with Witness A and B, that they engage in sexual activity with other males as the opportunity arises.
There was a significant discrepancy between the applicant and Witness A’s evidence about the length of their romantic relationship; the applicant claims it was six years but Witness A said it was 12 months. However, the Tribunal notes it is possible the applicant considered the relationship to be ongoing as a long distance relationship beyond Witness A’s perception of the relationship, with Witness A noting that they still went on a holiday together as late as 2012 in [Country 2]. There was also a discrepancy between the applicant and Witness A’s evidence regarding the dates of their relationship. The Tribunal acknowledges that Witness A received the Tribunal’s call without notice and the matters raised by the Tribunal related to events from a long time ago. Overall, the Tribunal considered both Witness A and Witness B to be truthful and compelling witnesses.
The applicant is not familiar with the LGBTIQA+ ‘scene’ in Adelaide as they reside in a regional town. The applicant was unclear as to whether they met up with other LGBTIQA+ online forum members in Adelaide but did seem to indicate they would engage in sexual activity with other males from time to time.
The applicant initially told the Tribunal they were not looking to get into a gay relationship in the future as they are too ambitious. When questioned further, the applicant clarified they would like to get into a gay relationship but they have low self-esteem and do not think anyone would like them.
The Tribunal accepts that the applicant identifies both as male and female. On the basis that the Tribunal accepts the applicant has an exclusive sexual interest in males and has only had previous sexual relationships with males, the Tribunal is satisfied that the applicant is both a transgender and a gay person.
Country information on sexual orientation and gender identity in Malaysia
Available country information on Malaysia indicates that Malaysia is generally intolerant of LGBTIQA+ identities and behaviours. Further, that adult same-sex acts, irrespective of whether they are committed between consenting adults, are illegal and punishable by penalties including whipping and imprisonment. According to country information available to the Tribunal, there are 52 laws that criminalise various forms of LGBTIQA+ behaviour in Malaysia. Christian and Muslims LGBTIQA+ persons alike may be targeted for rehabilitation or re-education programs aimed at changing sexual orientation or gender identity. Whilst the implications may be more pronounced for Malay-Muslims as expressions of LGBTIQA+ identity is both an Islamic (or syariah) offence as well as a penal code offence, adult same-sex acts still amount to a criminal offence for a non-Islamic person.[1] The Tribunal notes it has also considered the open source materials provided by the applicant with respect to the status and treatment of LGBTIQA+ persons in Malaysia and elsewhere but has placed no weight on the information provided that does not relate to the treatment of LGBTIQA+ persons outside of Malaysia.
Past harm
[1] See, Department of Foreign Affairs and Trade (DFAT), Country Information Report, Malaysia (24 June 2024) at [3.126] – [3.137].
The applicant claimed they suffered past harm in Malaysia due to being a transgender and gay person. They claim their high schooling was interrupted and that they had to move schools due to harassment. They were bullied and called a “faggot”. Similarly, their working environment was also impacted causing them to have to move teams or locations. They were ostracised by their family and told to act like a “boy”. Their father did not allow the applicant to work in customer-facing roles within the family business; they were always made to “stay in the office” and were not permitted to eat dinner with the family when children were around. Their father threatened to disown them at the age of 25 years old when they wanted to undergo a sex change in [Country 2] to become a female. The applicant also recalled an occasion when the applicant went dancing at [name], a gay club in Kuala Lumpur, and they were punched. On another occasion, whilst walking with a male companion, a passerby hit their head with a bamboo stick. The applicant and their father reported the matter to the police but the police took no action.
The Tribunal accepts from the available country information on LGBTIQA+ persons in Malaysia and from the applicant’s oral evidence generally at the hearings living in a conservative Asian family, that they have suffered discrimination and ostracisation in the past in Malaysia on account of their gender and sexual orientation. The Tribunal notes that the applicant’s presentation at both hearings and their manner of delivering evidence is consistent with their claim to be transgender and gay, therefore even if not publicly open with their relationships in the past, the Tribunal accepts that the applicant could have been perceived, or assumed to be, a LGBTIQA+ person by virtue of their natural presentation.
For those reasons, the Tribunal accepts generally that the applicant has experienced discrimination in the past from their community, family and in their workplace.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal accepts that the applicant is a transgender and gay person. The Tribunal further accepts that available country information on Malaysia indicates that Malaysia is generally intolerant of LGBTIQA+ identities and behaviours and that adult same-sex acts are illegal in Malaysia for Muslims and non-Muslims alike.[2]
[2] See, Department of Foreign Affairs and Trade (DFAT), Country Information Report, Malaysia (24 June 2024) at [3.127].
It follows that the Tribunal is satisfied there is a real chance of harm if the applicant is returned to Malaysia now or in the reasonably foreseeable future on account of being a transgender and/or gay person in Malaysia.
On the basis of the evidence before the Tribunal, the Tribunal finds that if the applicant were to return to Malaysia and continue to identify and express themselves as a transgender and gay person at the same level they have done so in the past, there is a real chance that they would suffer physical and verbal harassment, ill-treatment, discrimination and potential prosecution. The Tribunal finds that such treatment amounts to serious harm under s 5J(4)(b) of the Act. The Tribunal is satisfied that the harm the applicant fears involves systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal is satisfied that the real chance of persecution relates to all areas of Malaysia. The Tribunal is also satisfied that the essential and significant reason for the applicant’s fear or persecution is their membership of the particular social group of transgender or gay or LGBTIQA+ persons in Malaysia. For the purposes of s 5LA of the Act, the Tribunal finds that effective protection measures are not available to the applicant in Malaysia. The Tribunal also finds that the applicant cannot take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in Malaysia as such modification would require them to alter their gender and sexual orientation or conceal their true gender and sexual identity, contrary to the requirements of s5J(3) of the Act.
I find the applicant has a well-founded fear of persecution in Malaysia. I also find that the applicant has no presently existing right, however expressed, to enter and reside in any other country under s 36(3) of the Act.
For the above reasons, I am satisfied that 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.
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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