2114792 (Refugee) - [2024] ARTA 711

2114792 (Refugee) [2024] ARTA 711 (29 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Home Affairs

Tribunal Number: 2114792
Tribunal:General Member T Ellison
Date:29 November 2024

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 criterion:
· s 36(2)(a) of the Migration Act.

General Member T Ellison
Statement made on 29 November 2024 at 3:20pm
CATCHWORDS
REFUGEE – Protection Visa – Malaysia – particular social group – previous lesbian relationship – bisexual – current genuine heterosexual relationship – Malay woman with sexual attraction to women – race – ethnicity – Malay – religion – Muslim – married to non-Muslim – threats by family member – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 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 11 October 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for review to the Administrative Appeals Tribunal (the AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant, who is a national of Malaysia, applied for the visa on 16 August 2018. The applicant claimed to fear harm because she was in a same-sex lesbian relationship with another female in Australia. The delegate accepted the applicant was in a lesbian relationship but refused to grant the visa on the basis that there was not a real chance that the applicant would suffer persecution in Malaysia for the reason of her ongoing lesbian relationship.
The issue in this case is whether the applicant is 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.
For the following reasons, I have concluded that the matter should be set aside and remitted for reconsideration.
CRITERIA FOR A 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). 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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Applicant’s background
The applicant is a [age]-year-old woman from [District 1] in Kedah, Malaysia. She is of Muslim faith and Malay ethnicity. The applicant attended high school and worked for her family in their business. The applicant married her ex‑husband in 2009, had a son born in [year] and was divorced in 2013. The applicant arrived in Australia on [date] May 2018 as the holder of a UD-601 Electronic Travel Authority, where she has remained since.
Evidence before the Department
In her protection visa application, the applicant claimed that she was in a lesbian relationship in Australia and she feared being jailed, or harmed by her family or society, for the reason that same-sex relations in Malaysia are not acceptable. The applicant did not name her partner, but it was subsequently clear that she was referring to Ms [A]. The applicant provided a copy of the biodata page of her passport with her protection visa application, demonstrating that she is a national of Malaysia.
The applicant attended an interview with the Department on 7 July 2021, with [Ms A] as her support person. The applicant expanded upon her claim and told the Department that she met [Ms A] whilst she was in Malaysia and [Ms A] was in Australia in a [LGBT[1]] chat group. The applicant said this was after her divorce from her ex-husband in Malaysia. The applicant said she moved to Australia to be with [Ms A] and they were in an ongoing relationship. The applicant described that, because of her same-sex relationship, her relationship with her parents who remain in Malaysia was not good.
[1] A reference to lesbian, gay, bisexual and transgender persons.
The applicant provided the Department with a significant amount of evidence to demonstrate the genuineness of her relationship, namely, 6 videos of the couple, 4 intimate photos of the couple, statements from 2 people who know them as a couple in the form of a statutory declaration and a witness statement, a statement from [Ms A], a copy of [Ms A]’s proof of age card and biodata page of her passport and 2 utilities bills and a schedule from a residential tenancies application in their joint names. The applicant also provided copies of her divorce certificate from her ex-husband and her son’s birth certificate.
Evidence before the Tribunal
The applicant filed the present application for review with the AAT on 21 October 2021. At that time, the applicant provided a further written document setting out her background and personal details of [Ms A] and 4 further photos of the applicant and [Ms A] together.
On 29 September 2024, the applicant completed a pre-hearing information form and set out a new claim for protection, namely, that she wished to covert from her religion as a Muslim, because she had married a non-Muslim in Australia, namely Mr [B], and her lifestyle was otherwise inconsistent with Islam including having tattoos and owning a dog. The applicant provided her marriage certificate to [Mr B], photos of her dog and photos of her tattoos, as well as information about religion and marriage in Malaysia and the acceptability of tattoos and keeping dogs in Islam. The applicant also provided photos of bruising to her limbs and subsequently alleged at hearing these were caused by [Ms A]. The applicant also provided screenshots of text messages said to be between [Ms A] and another woman showing [Ms A] had been unfaithful.
On 7 and 8 November 2024, the applicant provided the Tribunal with medical documents including an x-ray relating to an injury to her finger that she alleged at hearing was caused by [Ms A], a photograph of a scratched wrist and swollen lip alleged to be caused to her by [Ms A], further photographs of the applicant’s tattoos and a video of when the applicant alleged she confronted [Ms A] about being unfaithful. The applicant also provided photos of her marriage to [Mr B].
The Tribunal held a hearing on 14 November 2024 when the applicant gave evidence. The applicant did not wish to use an interpreter and was able to converse in English. In brief terms, the applicant gave evidence regarding the breakdown of her relationship with [Ms A] and her new relationship with [Mr B], and said she is attracted to men and women. The applicant told the Tribunal about a threat made by the applicant’s father in 2022 to kill the applicant because of her then same-sex relationship with [Ms A]. The applicant said she would not convert from Islam and would have to observe Islam if returned to Malaysia.
The Tribunal held a second hearing on 21 November 2024 so that [Mr B] could attend to give evidence, which he did.
Further details of the applicant’s claims and evidence are discussed below.
Analysis, reasons and findings
After hearing from the applicant at hearing, it was clear that the applicant wished to pursue two claims. First, that the applicant has been in a lesbian relationship and has sexual attraction to women, and the applicant’s father threatened to kill her as a result of her lesbian relationship. Second, that the applicant has no religion and has a life that is inconsistent with Islam, and contrary to her initial claim that she would convert, would not do so but would be forced to observe Islam if returned to Malaysia.
Previous lesbian relationship, attraction to women and threat to kill
The applicant’s appeared to have changed sexual orientation, from identifying as lesbian and indicating that she was no longer attracted to the opposite sex,[2] to now being married to and attracted to a man.
[2] See interview with Department on 7 July 2021 and written submission dated 1 June 2021.
At the hearing, I asked the applicant about the breakdown of her relationship with [Ms A]. The applicant provided a great amount of detail as to what happened. She told the Tribunal that whilst the two were working [on] a [farm] in March 2022, she had a feeling that ‘something’ was going on. She described how she obtained [Ms A]’s password on her phone by seeing [Ms A] enter it, and subsequently used the password and discovered messages and photos on [Ms A]’s phone which showed that she had been unfaithful. The applicant described the interactions with [Ms A] thereafter – [Ms A] said this was a breach of her privacy and [Ms A] spat in the face of the applicant. The applicant said she was extremely upset, as she had no one else in Australia. The applicant told the Tribunal that [Ms A] told the applicant that she could not be with the applicant anymore, she had no feelings for her, and that [Ms A] moved to another bedroom, and despite the applicant begging her to reconsider, the relationship broke down. The applicant was emotional describing this breakdown, and it appeared to me that the applicant was genuinely distressed about this episode.
I also asked the applicant as to how she came to be with [Mr B]. The applicant explained how the applicant and [Mr B] were working [in] November 2022. [Mr B] was working there as a [occupation]. The applicant gave evidence that the two of them commenced talking through [social media] and she immediately felt close to him. [Mr B] suggested they become close. The applicant initially thought this was too soon but agreed to give it a try. I interpret the applicant’s evidence to be that this connection came out of the blue, was unexpected and the applicant was initially resistant. The applicant made the forthright admission that she may have been initially attracted to the idea of a relationship with [Mr B] as ‘revenge’ against [Ms A], who she said ‘doesn’t like men’, and she wanted her to feel hurt. In light of the previous breakdown, I found the explanations given to be candid and believable. I found the applicant’s evidence about [Mr B], that he means ‘the world’ to her, that he is so nice and has made her a better person, to be heartfelt and genuine. Equally, I was impressed by the evidence of [Mr B] who described the development of their relationship in similar terms, and described how as a quiet person the applicant has given him confidence and that she cares a lot towards him.
In light of the above relationships, I asked the applicant to explain the apparent shift in her sexual orientation. The applicant’s evidence struck as honest; she did not appear to have all the answers but tried her best to explain her feelings. The applicant said that after her relationship with [Ms A], she tried relationships with other females but there was no connection. She said she is attracted to women but not as strongly as before. She candidly told the Tribunal that she still has feelings for girls and said if she saw someone handsome, she described her reaction as ‘oh my god I wish’. She said it is really hard to remove this feeling. She did not positively embrace the label bisexual, but it seems to me that that the description aligns with her sexual orientation.
In light of the above, and the significant supporting evidence that the applicant submitted to demonstrate the genuine relationships, I accept that she was in a genuine lesbian relationship with [Ms A]. I also accept that the applicant is in a genuine heterosexual relationship with [Mr B]. I also accept that she is romantically and sexually attracted to women.
As mentioned above, at the hearing the applicant also made the claim that she feared harm from her father because in a phone call in 2022 he threated to kill the applicant and said he would rather die in prison than face the applicant. The applicant recounted that her father was in the background of a phone call to her family when he said this. According to the applicant, her father said she had embarrassed the whole family, in reference to her then same-sex relationship. The applicant said this threat made by her father is not something that she would forget. Having regard to country information, I consider it not implausible that the applicant’s father might make such a threat. Same-sex relationships are not consistent with the family’s religion of Islam and LGBTQI+ behaviour is viewed as unacceptable in the Islamic community.[3] I accept the applicant’s evidence that it was not something she would forget. I accept that the applicant’s father made the threat alleged.
[3] US Department of State, Country Reports on Human Rights Practices for 2023 – Malaysia, 22 April 2024, 42.
Country information sources provide that there are over 50 laws that criminalise different forms of LGBTQIA+ behaviour in Malaysia, including syariah laws.[4] Should the applicant form a relationship with a female or engage in romantic relations with a female, she would be liable to investigation, prosecution and punishment under syariah laws that criminalise different forms of LGBTQIA+ behaviour.[5] Whilst investigation of such offences (including raids) is reasonably common and prosecutions have taken place under these laws, I note that successful prosecutions are rare.[6] DFAT reports that, in 2018, two women were sentenced in a syariah court to strokes of the cane and a fine after convictions for having lesbian sex.[7] In early 2022, there were four arrests for women for syariah offences.[8] Being investigated carries risks to LGBTQI+ people because there are reports that police have perpetrated and condoned violence, including against individuals in custody.[9]
[4] DFAT, DFAT Country Information Report Malaysia, 24 June 2024, [3.127].
[5] Ibid [3.131].
[6] Ibid [3.127], [3.131], [3.138].
[7] Ibid [3.131].
[8] Ibid [3.138].
[9] US Department of State, above n 3, 40; UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 12 July 2024, [4.1.2].
Sources also indicate that the effect of the criminalisation of LGBTQI+ behaviour has a systemic impact on all areas of the lives of LGBTQI+ people, including being able to be free of violence, harassment and intimidation.[10] Persons who are engaged in LGBTQI+ behaviour can be viewed as criminal, and it is also viewed as unacceptable in the Islamic community. As such, country information sources record that online abuse against people who raise LGBTQIA+ issues online is common,[11] discriminatory and hate speech against LGBTIQA+ people is high and unaddressed and LGBTQIA+ people have reported extortion, invasion of privacy, harassment and intimidation[12] and violence.[13] Further, it is known that families may force heterosexual marriages upon lesbian persons, or confine females to the family home due to cultural stigma,[14] or coerce them to attend government‑promoted re‑education programs.[15]
[10] SUARAM, Malaysia Human Rights Report 2023, 27 March 2024, 167.
[11] DFAT, above n 4, [3.133].
[12] SUARAM, above n 10, 167.
[13] Ibid 176.
[14] DFAT, above n 4, [3.138].
[15] Ibid [3.132], SUARAM, above n 10, 170,172.
DFAT’s assessment is that:[16]
[3.148] ... members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence...[17] (Emphasis added).
[16] DFAT, above n 4, [3.148].
[17] The terms high risk, moderate risk and low risk are defined in the report.
If the applicant is returned to Malaysia, I am satisfied that she would return to her home area in [District 1]. As the applicant said at the hearing, ‘everything’ for her is in the island and she has no one elsewhere. I also note her son resides in [District 1] with her parents whom she has not seen for many years.
I am satisfied that there is a real chance that the applicant would face verbal abuse, hostility and rejection from her family because of her previous lesbian relationship, irrespective of any future conduct. I am not satisfied that the applicant’s father would follow through with his threat for reason of her past lesbian relationship alone in Australia, owing to the time that has passed since he made the threat and the fact that the applicant has not claimed he was violent to her or any member of her family, ever. I am not satisfied verbal abuse, hostility and rejection alone amounts to serious harm within the meaning of s 5J(4)(b) of the Act.

However, I am further satisfied that there is a real chance that the applicant would seek and engage in romantic relations with females now or into the reasonably foreseeable future. At the hearing, I explored whether, if the applicant was removed to Malaysia, she would be returning alone or with [Mr B]. Both the applicant and [Mr B] said that [Mr B] would not move to Malaysia, including for reason of his father’s poor health requiring care including by [Mr B]. I enquired with the applicant whether, in those circumstances, she would seek relationships with women in Malaysia. The applicant responded by saying that she still has feelings for women, could not say ‘yes’ or ‘no’ and that she has no idea what will happen in the future. The applicant said maybe she would go ‘back to lesbian’ because girls know how to treat each other better.
If the applicant is removed to Malaysia, it seems to me that in circumstances where [Mr B] would not move to Malaysia, there would not be a reasonable prospect of the two reuniting to continue the relationship, and it would not continue. I say this for several reasons. First, the applicant has consistently entered into relationships, having been married in Malaysia and divorced, then with [Ms A], with other lesbian persons after breaking up with [Ms A], and then with [Mr B]. Second, the applicant would be considered unmarried in Malaysia.[18] Third, the return to Malaysia may be difficult after a long period in Australia, and I expect that she would seek a relationship for the support that would provide. Fourth, as I found above, the applicant is sexually attracted to females. I consider that the applicant would seek out romantic relations with males or females now or into the reasonably foreseeable future. I am satisfied that there is more than a real chance of that being with a female.
[18] DFAT, above n 4, [3.60].
I am further satisfied that there is a real chance that the applicant’s father will assault her or perpetrate violence upon her because of future same-sex relations. The presence of the applicant in [District 1] in another same-sex relationship I think would heighten the anger the applicant’s father would feel and bring shame on the family. I am satisfied that there is a real chance of investigation by authorities resulting in violence in detention or as part of punishment. I am satisfied that there is a real chance of violence, harassment and intimidation from the authorities, her family and/or other members of society. Therefore, I am satisfied that there is a real chance the applicant would be subject to significant physical harassment or physical ill-treatment, and therefore serious harm, for the purposes of s 5J(4)(b) of the Act.
I am further satisfied that the applicant’s membership of a social group, being a Malay woman with sexual attraction to women (being an innate or immutable characteristic, or otherwise fundamental to the applicant’s identity or conscience under ss 5L(c)(i) and (ii) of the Act), would be the essential and significant reason for persecution: s 5J(4)(a) of the Act. The applicant would be targeted because of these characteristics, which are either illegal or illegal to express, or otherwise unacceptable in Malaysia. Whilst anti-LGBTI laws may be generally expressed, in reality they target a particular social group.[19] The persecution that the applicant would be subject to involves systematic and discriminatory conduct: s 5J(4)(c) of the Act.
[19] MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324.
In assessing whether there is a real chance of persecution in all areas of Malaysia, I put aside the particular risks to the applicant from her family in her home area. Country information sources suggest that the level and frequency of discrimination facing members of the LGBTQIA+ community differs according to geographic location, and people may be more accepting in places like Kuala Lumpur.[20] However, I am satisfied that anti-LGBTQIA+ laws exist throughout Malaysia and enforcement occurs even in places like Kuala Lumpur.[21] Further, DFAT’s assessment is that certain categories of persons including those who are Malay/Muslim, like the applicant, face a high risk of official and societal harassment, discrimination and familial and/or societal violence in Malaysia generally.[22] Even putting aside the chance of harm in her home area, I am satisfied that there is a real chance of persecution in all areas of Malaysia: s 5J(1)(c).
[20] DFAT, above n 4, [3.147], [5.25].
[21] See e.g. DFAT, above n 4, [3.130]; UK Home Office, above n 10, [3.1.11], [3.1.18].
[22] Ibid [3.148].
Whilst the state could provide protection, I am satisfied that it is not willing to do so given that they enforce the very laws which are part of the real chance of serious harm to the applicant and have perpetrated and condoned violence, including against individuals in custody: ss 5J(2) and 5LA of the Act. If the applicant were to modify her behaviour to avoid a real chance of persecution, that would involve the applicant altering or concealing her sexual orientation, so as to be impermissible modifications: ss 5J(3)(a), (b) and (c)(vi) of the Act. There is no evidence to suggest the applicant has a right to enter and reside in any other country for the purposes of s 36(3) of the Act.
For those reasons, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. Having found that the applicant has a well‑founded fear of persecution as a Malay woman with sexual attraction to women, it is unnecessary to consider her claim that she has a well‑founded fear of persecution because she is of no religion. I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 Act.
Hearing(s):  14, 21 November 2024
Representative:  N/A
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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