2200316 (Refugee) - [2025] ARTA 1705

2200316 (REFUGEE) [2025] ARTA 1705 (2 JULY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2200316
Tribunal:General Member F Sneath
Date:2 July 2025

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

Statement made on 02 July 2025 at 2:07pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – no past harm or fear of future harm – working in Australia to support children – limited education and no work history in home country – qualification, skills and work history in Australia – country information – socio-economic conditions and urban/rural divide – vulnerability to natural disasters – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362
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 21 December 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vanuatu, applied for the visa on 15 July 2020. On 21 December 2021 the delegate refused to grant the visa on the basis that there was no information before them that on return to Vanuatu in the reasonably foreseeable future the applicant could be persecuted for one or more of the five reasons in s5J(1)(a) of the Act, nor was there a real risk of significant harm.
On 8 January 2022 the applicant applied the Administrative Appeals Tribunal for review of the 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 (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 appeared before the Tribunal on 16 June 2025, with a support person, to give evidence and make submissions.
BACKGROUND
The applicant is a [Age]-year-old widowed woman from Vanuatu. She has [children], aged [Ages], living in Vanuatu with their grandfather (the applicant’s father). The applicant came to Australia in January 2020 under the seasonal worker program. Since arriving in Australia, she has entered a relationship with a male person who is also not an Australian citizen or permanent resident, and they have one [child]. The applicant is employed in a [workplace] and has also recently completed a Certificate III in [Subject].
In the protection visa application, the applicant claimed that she came to work with seasonal workers, but the contractor did not give her much work and that she now wanted to stay in Australia and work hard to support her children in Vanuatu. She denied having suffered any past harm in Vanuatu, or that she would be harmed if she returned there.
Evidence before the Department
The information before the delegate was the protection visa application and country information. The applicant was not interviewed.
The delegate considered the applicant’s claims were about her desire to remain in Australia and earn money to support her [children] in Vanuatu, and that she did not make any claims that she feared persecution in Vanuatu. The delegate found there was no information that the applicant could be persecuted for one or more of the reasons in s 5J(1)(a) of the Act and therefore found the applicant did not meet the criteria in s 5H(1) of the Act to be a refugee.
The delegate also considered whether there were substantial grounds for believing that as a necessary and foreseeable consequence of being removed to Vanuatu there was a real risk the applicant would suffer significant harm as outlined s 36(2A) of the Act. The delegate considered the relevance of economic circumstances in Vanuatu and whether any harm from economic hardship that the applicant may experience was sufficient to be considered cruel or inhuman treatment or punishment, or degrading treatment or punishment. The delegate was not satisfied that any harm amounted to significant harm under s 36(2A).
The delegate decided that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s36(2)(b) and s36(2)(c) of the Act).
Evidence before the Tribunal
The Tribunal considered the evidence before the Department, additional information provided by the applicant in a pre-hearing information form, information provided by the applicant at the hearing and country information.
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 issues in this case are whether the applicant faces a real chance of persecution for one or more of the five reasons in s 5J(1)(a) if she returns to Vanuatu; and if not whether there are substantial grounds for believing that as a necessary and foreseeable consequence of being removed from Australia to Vanuatu there is a real risk that she will suffer significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality and receiving country
The applicant travelled to Australia on a Republic of Vanuatu passport and provided a copy of the bio-data page of her passport to the Department. The department was satisfied as to the identity and nationality of the applicant and the Tribunal accepts that Vanuatu is the applicant’s country of nationality and the ‘receiving country’ for the purposes of assessing the applicant’s claims.
Does the applicant satisfy the refugee criterion for protection?
In the protection visa application, the applicant denied having experienced any past harm and denied fearing any harm in the future in Vanuatu. However, in the pre-hearing information form returned to the Tribunal prior to the hearing, and at the hearing, the applicant claimed the family of her deceased husband had taken her husband’s property and threatened her. When questioned further about this, the applicant was not able to describe any physical harm that she suffered except to say that her husband’s family had not wanted her and the children to stay with them. The applicant said she moved with her children to the home of her father in [Town]. When asked about property that her husband owned, the applicant said that her husband was building a house, but later said that the property belonged to her late husband’s brother.
The applicant did not provide any information which suggested any contact from the applicant’s husband’s family had continued after the applicant moved to her father’s home. The applicant said that there had been no problems for her father and her children since she left Vanuatu, and she raised no concerns about any contact from her late husband’s family should she return to Vanuatu in the future.
The Tribunal is prepared to accept that following the death of her husband the applicant was harmed by the actions of her deceased’s husband’s family seeking to move them on, and that this led her and her children to move to live with the applicant’s father. The Tribunal finds that this was related to family property ownership and ceased once the applicant left her late husband’s family home. No information suggests that this will re-occur should the applicant return to Vanuatu. The Tribunal therefore finds there is no real chance of harm to the applicant from her late husband’s family in the reasonably foreseeable future.
When asked why she decided to come to Australia, the applicant responded without hesitation that she came to work to earn money to support her children. This is consistent with the claims in her protection visa application.
The applicant described that she had limited education (schooling to year ten) and had never held a job in Vanuatu. She believed that for these reasons it would be difficult for her to find a job if she had to return to Vanuatu. The applicant described that her parents had provided for their family by growing fruit and vegetables and selling them at the market and she said that she could grow vegetables and sell them at the market, but that she would not earn sufficient money to pay for her children to go to school.
Vanuatu’s economy is reliant on small scale agriculture, fishing, and tourism. Agriculture provides approximately 20% of the country’s Gross Domestic Product (GDP). Commercial farming includes copra, coconut, cocoa, coffee, pepper, and vanilla. Agricultural products made up approximately 80% of all exports in 2022. Tourism supports over 12,000 jobs and contributes up to 45% of GDP.[1]
[1] The Cove, ‘Know Your Region’, #KYR: Vanuatu – Economy, (web page, 25 July 2024),
Vanuatu is vulnerable to natural disasters (examples include tropical cyclone Pam in 2105, tropical cyclone Harold in 2020, tropical cyclones Judy and Kevin in 2023, and a large earthquake in December 2024). The industries that are the mainstay of the Vanuatu economy are susceptible to these weather events. COVID -19 also substantially reduced revenue to the country, and the earthquake severely damaged infrastructure.[2]
[2] ibid
Around 80% of Vanuatu’s population depend entirely on subsistence farming for their daily sustenance, and those who live in urban areas also rely on local produce markets.[3]
[3] ibid
Based on the last Household Income Expenditure Survey (HIES) conducted in 2019/2020, the World Bank Reports[4] that 15.9% of the population—or approximately 47,000 individuals—lived below the basic-needs (national) poverty line in 2019/20, with 10% of the population below the international poverty line. There is a stark difference in poverty rates between urban and rural areas: 2% and 20.8% respectively, and nearly 97% of the country's poor population lives in rural areas.
[4] Nakamura S, Vanuatu, East Asia & Pacific World Bank Poverty and Equity Brief, April 2025
The urban-rural gap in poverty reflects their employment conditions. Most working poor adults engage in agricultural jobs, while urban residents have more access to non-agricultural and wage-earning jobs. The World Bank expects the poverty rate to rise as income growth remains weak.[5]
[5] ibid
The government in Vanuatu provides subsidies and grants to schools which are intended to ease the burden on families, dissuade schools from charging fees and eliminate costs to parents. This has assisted the country to achieve universal access and primary education enrolment and there has been a corresponding decline in household expenditure on education.[6] The Government education budget has steadily increased, and most grants (54%) are now allocated to secondary schools.[7] This, however, has not completely eliminated schools charging fees to parents, especially in the secondary schooling system.
[6] Cost of primary education in Vanuatu, Vanuatu Education Support Program, 20 November 2022, 8
[7] Ibid, 9
School grant amounts are determined by school enrolment numbers and schools must submit any proposals to charge fees to the Ministry of Education as part of their submission to receive grants.[8] Schools are prohibited from imposing fees above specified limits, and it has been reported that this is being enforced[9]. Parents are expected to cover uniforms and transportation, and to pay any fees that the school charges. Nonpayment of fees can result in children being excluded from enrolment in following years.
[8] ibid
[9] ‘MoET reinforces regulations on school fees, grants and parent responsibilities’, Vanuatu Daily Post (online 23 January 2024),
Programs have been put in place, with the assistance of foreign governments and non-government organisations, to assist the country and individuals recover from recent disasters[10]. Otherwise, Government funded social support in Vanuatu is limited.
[10] See for example, Stein, Wiebke, Parsons K, and Petrou K, Towards Adaptive Social Protection in Vanuatu:
For the purposes of considering whether the applicant meets the refugee criterion under s 36(2)(a) of the Act, any harm, including through economic circumstances, must reach a threshold of serious harm. Instances of serious harm for the purposes of s 5J(4)(b) are non-exhaustively described in s 5J(5) and include significant economic hardship that threatens a person’s capacity to exist, denial of access to basic services and denial of capacity to earn a livelihood of any kind.
The Tribunal accepts the applicant will not be able to earn the same amount of income that she currently does in Australia. The Tribunal notes that the applicant is a widow and does not receive any support from her late husband’s family, and that even with the continued support of her father, who has been caring for her [children] while she has been absent in Australia, with limited government support she will be unable to provide the same level of financial support for them. The Tribunal notes the applicant has a current partner and they share a child. The Tribunal anticipates the new partner will provide some support to the applicant and their child. Further, that applicant has gained work skills through her employment in Australia, and a qualification (Certificate III in [Subject]) and the Tribunal finds these are positive factors that will assist her in securing meaningful employment for reward in Vanuatu. The applicant said if she had to return to Vanuatu she would live in [Town] with her father. She will therefore not have to find independent accommodation, and access to wage earning work is more likely to be available in [Town]. The applicant has also said that she can engage in growing vegetables and market selling. The Tribunal notes that if the applicant is unable to secure a wage-earning position that this type of work is likely to provide her with a more limited income.
Notwithstanding the applicant may find circumstances more difficult with limited income, she has capacity to earn a living, is not denied this opportunity or the ability to access basic services and will have support of her father and her current partner. Therefore, the Tribunal finds that any potential economic hardship the applicant may face if she is returned to Vanuatu does not amount to significant economic hardship that reaches the threshold of serious harm.
For the reasons above the Tribunal does not accept that the applicant will face a real chance of serious harm if she returns to Vanuatu. It follows that the Tribunal does not accept that the applicant has a well-founded fear of persecution pursuant to s 5J(1) of the Act and therefore she does not satisfy 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) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
Having found that there is no real chance of harm to the applicant from her late husband’s family in the reasonably foreseeable future, the Tribunal finds that for the same reasons there is no real risk of harm to the applicant from her late husband’s family in the reasonably foreseeable future.
With respect to harm from economic circumstances, the Tribunal has found above there is no real chance of serious harm to the applicant. However for the purposes of section 36 (2)(aa) of the Act the Tribunal must consider the existence of a real risk of significant harm. Significant harm is exhaustively defined in s 36(2A) of the Act. The Tribunal finds there is no evidence to suggest that the applicant will be subjected to significant harm in the form of arbitrary deprivation of life, the death penalty or torture as provided in subsections 36(2A)(a)-(c) of the Act.

‘Cruel or inhuman treatment or punishment’ for the purposes of s 36(2A)(d) is exhaustively defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
‘Cruel or inhuman treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
‘Degrading treatment or punishment’ for the purposes of s 36(2A)(e) is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to bring about the suffering by their conduct: SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
However, ‘degrading treatment or punishment’ does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
The Tribunal has considered whether the economic circumstances that the applicant will face could be considered to be ‘cruel or inhuman treatment or punishment’, or ‘degrading treatment or punishment’. The Tribunal finds that they do not because the applicant will have access to accommodation with her father in [Town], and there she is more likely to be able to access to wage earning work, supported by the work experience and qualification she has gained in Australia. The Tribunal also notes the applicant has a current partner and they share a child and anticipates the applicant’s partner will provide some support to the applicant and their child. The applicant has also said that she can engage in growing vegetables and market selling. Although the economic conditions could be challenging for the applicant the Tribunal does not consider they are such as to be considered cruel, inhuman or degrading. The Tribunal therefore finds there is no real risk of significant harm to the applicant if she is retuned to Vanuatu in the reasonably foreseeable future.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) based on 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.
Hearing date: 16 June 2025
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.
…

Lessons from a Humanitarian Cash Transfer Program in Sanma Province in Response to Tropical Cyclone Harold and COVID-19 (Technical Report World Bank and the Global Facility for Disaster Reduction and Recovery, 2022)