2114684 (Refugee) - [2025] ARTA 1123

2114684 (REFUGEE) [2025] ARTA 1123 (29 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2114684
Tribunal:General Member R Hampson
Date:29 April 2025

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

Statement made on 29 April 2025 at 8:58am
CATCHWORDS
REFUGEE – protection visa – East Timor – fear of harm from creditor, and general economic conditions – application and pre-hearing submission completed by friends, without applicant’s knowledge of contents or purpose of visa – working to support family – jobs in home country subject to political or personal connections – honest and reliable evidence – country information – economic harm not for refugee criteria reason and socio-economic conditions apply to population generally – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (2B)(c), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
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[1] on 24 September 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
[1] This is now the Minister for Immigration and Multicultural Affairs
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant who claims to be a national of East Timor, applied for the visa on 2 July 2021. The delegate refused to grant the visa on the basis that the applicant is not a person to whom Australia has protection obligations.
The applicant appeared in person before the Tribunal on 1 April 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tetum and English languages who appeared by Microsoft Teams video.
The issue in this matter is whether the applicant is a person in respect of whom Australia has protection obligations.
CONSIDERATION OF CLAIMS AND EVIDENCE
BACKGROUND AND RECEIVING COUNTRY
The applicant claims to be a [Age] year old national of East Timor.
He claims he was born in [Town], his ethnicity is East Timorese and his religion is Catholic.
The applicant came to Australia first in November 2017 on a Temporary Work (International Relations) subclass 403 visa as a seasonal worker. He returned to East Timor in April 2018 and then to Australia again in November 2018 on the same visa class. Prior to the expiration of his subclass 408 visa, the applicant lodged a protection visa application.
The applicant provided a copy of the biodata page of his East Timorese passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Indonesia and there is no information before me to the contrary. The applicant also furnished his original passport at hearing which I sighted. I find that the applicant is a citizen of East Timor, and that East Timor is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
Protection visa application
In his protection visa application, the applicant claimed that he left East Timor due to being in a lot of debt. He claimed that he does not have sufficient funds to pay the debt and that the person who loaned him the money has asked him to repay the debt. The applicant claims that he will automatically be imprisoned in the future if he cannot repay the debt. The applicant also stated that it is hard to find a good job in East Timor to pay off his debt and that the government in his country cannot help him as the issue relates to personal debt.
The applicant was not invited to attend an interview with the delegate.
The applicant did not provide any further supporting documents to the Department apart from his passport and citizen registration card copies.
The delegate found that the applicant is not a refugee as defined by s 5H(1) of the Act and that he is not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act. The delegate also found that they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
Evidence before the Tribunal
Pre-hearing submissions
The applicant provided the Tribunal on v19 December 2024 with his application and a general submission document outlining his concerns with the Departments decision record. An extract of this document is provided below.
Case Summary:
This application seeks judicial review of the decision dated 24 September 2021, which
refused my application for a Protection Visa (subclass 866). I respectfully request the Court
to review this decision on the following grounds:
1. Failure to Properly Consider All Relevant Evidence
The decision-maker failed to consider all the evidence presented in my application. My fear
of imprisonment due to unpaid debts was dismissed as purely economic. However, the risks
I face, including potential abuse in prison or lack of adequate legal protections in Timor-
Leste, were not fully explored. These are relevant to determining whether I may face
significant harm upon return.
2. Misapplication of the Refugee Definition
The decision concluded that my fear of harm was not based on any of the five grounds
required for refugee protection (race, religion, nationality, political opinion, or membership
of a particular social group). However, the decision-maker did not consider whether my
circumstances, such as social stigma and lack of legal support, could fit within these
categories indirectly. This oversight constitutes a legal error.
3. Insufficient Consideration of Complementary Protection
The decision dismissed my fear of imprisonment for unpaid debts without fully examining
whether the conditions in Timor-Leste’s prisons could amount to cruel, inhuman, or
degrading treatment. Country reports indicate that prison conditions in Timor-Leste can be
harsh and inhumane. This failure to consider complementary protection criteria is a
significant legal error.
4. Error in Applying the Intention Requirement
The decision concluded that my fear of harm does not involve intentional acts by a
perpetrator. However, systemic issues such as corruption and harsh debt collection
practices in Timor-Leste could still satisfy the requirement of intentional harm. This
misapplication of the intention requirement led to an incorrect decision.
5. Failure to Assess Vulnerability in Economic Context
The decision did not adequately consider the cumulative harm I might face in Timor-Leste.
My inability to repay debts could result in imprisonment, stigma, and a lack of future
employment opportunities. These risks, when combined, could lead to significant harm.
6. Lack of Procedural Fairness
The decision-maker noted that I did not submit identity documents with my Protection Visa
application but failed to consider that these documents were already submitted with earlier
visa applications. I was not given a clear opportunity to explain this, which amounts to a
breach of procedural fairness.
7. Error in Factual Findings
The decision assumes that I am young, single, and capable of repaying my debts, but does
not provide evidence for this conclusion. It also dismisses my financial fears without fully
examining my personal circumstances or the systemic issues I face in Timor-Leste. This is
an error in factual findings, which has affected the outcome of my application.[2]
[2] General submission by applicant to the ART, dated 19 December 2024
Oral evidence at hearing
Preparation of the Protection visa application and AAT application and associated submission
When asked about the preparation of his protection visa application the applicant said, ‘I did not know much about what was put in the visa by my friend who completed it for me.’ His friend told him there was a visa they could apply for to stay longer and he paid $250AUD to this person, who he states is Timorese but has now returned to East Timor. He said he did not really understand the content of the application and to answer all the questions. His friend did not read the information he put in the application back to the applicant.
With regard the submission, dated 19 December 2024 (extracted in paragraph 13) the applicant said he did not write this document but a different friend from [Country] assisted him with it also, and he did not understand its content. As such this document has been given very little weight in these proceedings as it is not within the knowledge or ownership of the applicant.
The applicant stated he would like to apologise for this misinformation and acknowledged it was not true and that his friend ‘had made the reason up’.
Family background and life in East Timor
The applicant informed the Tribunal he has a large family in East Timor, his mother and father, and [siblings] consisting of his older brother, two older sisters (both of whom are married) and [younger] siblings(whose ages range from 15-21 years) live with his parents. [Some] of his younger siblings attend school and [others] attend university. His parents are [workplace 1] employees and his older brother is [an occupation]. He calls his parents at the weekends.
He and his family live in the municipality of [Town], in East Timor and when he finished school there, he attended university for one year but could not continue because of the expense. He then moved to Dili and worked there [doing job task 1].
He has a cousin living in Melbourne and will speak with them on his days off.
Employment in Australia
The applicant has worked in Victoria, the Northern Territory and New South Wales [doing job task 2]. He now has worked for [a workplace 2] in Brisbane for the last 18 months.
Reasons for leaving East Timor
When asked his reasons for leaving East Timor he said because of the economy, there are no job opportunities and most young people leave to other countries like Australia, Korea, and the United Kingdom. He said that he needs to support his family as his parents don’t earn enough to support his [younger] siblings, who are still at secondary school and [university]. He said he wanted to stay in Australia longer to earn money for his family as there are no opportunities for him to earn in East Timor and this is a conflict for young people everywhere in the country.
The applicant stated that each month he sends money to his parents and siblings to pay school fees and their daily needs and this amount ranges from $350-$450USD. This is broken down into, $700USD each three months for the university fees and his parents $150USD a month for living and to each of his younger siblings $50USD for living expenses. He earns between $1,500 and $1,800 a week working either [doing job task 2] or at the [workplace 2]. He saves $1,100-$1,200 per week and sends this to his sister in East Timor to put in a savings account there. He said he thinks this account now totals about $25,000USD.
He said that if he returned to East Timor, he is at the mercy of the government to open job opportunities for the people and there can be good jobs obtained if you know the right people and are connected to the right political parties. There is no provision made by the government to support those citizens who are unemployed.
When asked about facing any harm in the past or the likelihood of future harm if he were to return to East Timor, he said there was no danger to him personally but there is a threat of the ‘inability of being able to sustain my family economically’.
Post hearing submissions
The Tribunal did not request the applicant provide any further submissions and advised him if he had further evidence or materials to support his case to provide those to the Tribunal within 7 days. He did not provide any further material.
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.
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 his claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
Section 367A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
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.
ANALYSIS, REASONS AND FINDINGS
The issue in this case is whether the applicant is a person to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
While there is a lack of detail in the applicants protection visa application and he explained he did not know the content of the application or the following submission to the ART, he was honest in his apology regarding this information being completed in the first instance by the friend of an East Timorese friend and then the later submission to the ART being completed by [a Nationality] friend. He said he did not understand either of the documents or the process or rationale behind the protection visa criterion but rather was told this was an application for a visa to be able to stay in Australia and keep working. I found the applicants oral evidence at hearing honest and reliable and I accept his lived experience of poverty and economic struggle whilst living in East Timor. The applicant was very distressed during the process of the hearing but did not attempt to purposefully provide false or misleading evidence to the Tribunal. As such I have not drawn any adverse credibility inference for the purposes of s 367A of the Act.
I accept the following claims as credible:
a. The applicant is the oldest son in his family and bears the burden of responsibility for supporting his parents and younger siblings.
b. The applicant wishes to remain in Australia to earn money as he can earn a lot more money here and easily obtain employment to do so that if her were attempt to do so in East Timor.
Does the applicant satisfy the refugee criterion for protection?
The United Nations socioeconomic assessment of East Timor in 2021 stated that 46 percent of the population are multidimensionally poor and a significant majority rely on subsistence farming to earn a living[3]. Households are heavily reliant on agricultural production and climate related livelihoods (approximately 70 percent of citizens) and as such this is volatile with the country experiencing floods, droughts, storms, and landslides decimating its economy[4]. It is noted that 45.2 percent of the population are employed as of March 2021.[5] Although this does not include those relying on subsistence agriculture and as such could raise the figure to as much as 61.1 percent.[6] Many jobs are categorised as informal and as such are insecure and unstable and rely on the seasons and the markets.
[3] United Nations in Timor Leste, ‘Socio-Economic Impact Assessment of COVID-19 in Timor Leste’, 2021.
[4] Ibid, page 31.
[5] Ibid.
[6] Ibid, page 8-10.
I acknowledge the obligations the applicant has to his family and his earnest need to fulfil these and his quest to stay in Australia to do so along with the economic situation in East Timor. I must determine if the socioeconomic harm the applicant speaks of is for any of the reasons set out in s5J(1)(a) of the Act namely race, religion, nationality, membership of a particular social group or political opinion. As raised with the applicant during the hearing the economic conditions and lack of employment throughout East Timor apply to the broader East Timorese population and not just the applicant. As such, I find the harm feared by the applicant is not for any of the reasons set out in s5J(1)(a).

I am therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Under the complementary protection criterion, I will need to consider if the applicant has a real risk of suffering significant harm if he were to return to East Timor.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[7] I have not accepted, for reasons set out above, that the applicant will suffer harm due to the general economic situation in East Timor. For the same reasons, I am not satisfied that there is a real risk of any of the kinds of significant harm set out in the Act.
[7] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Based on the applicant’s evidence, I find that he will not suffer significant harm by way of being arbitrarily deprived of his life, have the death penalty carried out on him, be subjected to torture, be subjected to cruel or inhuman treatment or punishment, or be subjected to degrading treatment or punishment as per s 36(2A) of the Act.
Further, the harm that the applicant fears in relation to the economic conditions in East Timor and the inability to secure a high-paying job do not constitute significant harm as conditions resulting from general economic and social conditions apply to the broader population and would not be deemed ‘degrading treatment’ for the purposes of s 36(2A) of the Act. I am satisfied the economic harm the applicant claims and the social conditions are faced by the population generally and is not faced by the non-citizen personally for the purposes of s 36(2B)(c).
Therefore, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to East Timor there is a real risk of significant harm.
The Tribunal finds there is no real risk of harm in the reasonably foreseeable future. The real chance and real risk tests are the same and the Tribunal therefore adopts the same findings and as such the applicant does not meet the alternative criterion for complementary protection in s 36(2)(aa).
CONCLUDING PARAGRAPHS
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.
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.
…