2200770 (Refugee) - [2024] ARTA 629

2200770 (REFUGEE) [2024] ARTA 629 (11 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2200770

Tribunal:General Member X Emery
Date:11 November 2024

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

Statement made on 11 November 2024 at 5:07pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual – threats from family members – physical assault – fear of killing – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2; r 2.08
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 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a citizen of Malaysia and applied for the visa on 21 May 2018. On 14 January 2022, the delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant applied for review of the delegate’s decision with the former Administrative Appeals Tribunal (‘the AAT’) on 20 January 2022. On 14 October 2024, the AAT was abolished and replaced with the Administrative Review Tribunal (‘the ART’ or ‘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 ART. The Transitional Act gives the ART the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 4 June 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Malay and English languages, although the applicant often elected to speak in English.
I am also constituted the review applications of the applicant’s wife [Wife A] (Tribunal case number 1901413) and the applicant’s son [Son A] (Tribunal case number 2209284). The applicant also gave evidence on behalf of his son who is [age] years old.
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) (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 (‘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
Background
In his visa application and in oral evidence to the Tribunal, the applicant gave the following information. He was born in Klang, Selangor in [specified year]. He grew up in the village [named] in [Village 1], Selangor. He is an ethnic Malay and a Muslim. His father is deceased. His mother resides in [Village 1] with one of his brothers. He has [specified family members] who reside in several different places throughout Malaysia. The applicant claimed he has not been in touch with his family in Malaysia for about two years.
The applicant arrived in Australia [in] March 2018 on a tourist visa, which was valid for three months. He applied for a Protection (Subclass 866) visa on 21 May 2018.
The applicant was married to [Wife A], who is also a Malaysian national, [in] August 2020 in NSW, Australia. They have one child of the relationship, [Son A] born on [date]. The applicant’s son was born prior to when the delegate refused the applicant’s protection visa application. Accordingly, by operation of reg 2.08 of the Migration Regulations 1994, [Son A] was taken to have applied for a protection visa at the time he was born. The Department made a separate decision to refuse [Son A’s] visa on 9 June 2022.
Evidence before the Department of Home Affairs
The applicant’s protection visa application comprised the application form only. In his visa application he made the following claims to be owed protection (in summary):
a.The applicant had a friend when he was 18 who he felt so close with. The applicant felt jealous and angry when his friend had a girlfriend. One day, he told him that he was in love with him. His friend rejected him because they were the same gender. His friend told everyone that the applicant loved him.
b.The applicant’s brothers found out. His brother was so fierce, was ashamed of him, beat him for half a day, and threatened him. His brother beat him with a stick and clothes hanger and punched his face. His brother told him it was better he die than be gay and shame his family.
c.He didn’t seek help within Malaysia because being gay in his religion is forbidden. No one will help him, and they will ask the religious body to catch him. He didn’t try to move to another part of Malaysia for safety because he is afraid and had no confidence living as a gay in his country. He feels really unsafe.
d.The applicant is afraid he will be harmed by his brother if he returns to Malaysia. His brother said he will make sure the applicant changes his feelings or he will die. His brother will look for him. He told the applicant he had shamed the family name.
e.The applicant can’t change his feelings towards the same gender as him. The authorities won’t help him and are against people like him. He can’t relocate because he doesn’t think he’ll be safe in Malaysia.
The applicant attended an interview with the delegate on 7 September 2021. I have listened to a recording of that interview. As set out in the delegate’s decision record, the applicant gave the following evidence and additional claims about his sexuality:
a.He was gay or LGBT and attracted to men dressed as women.
b.He had a friend [Partner A] who was LGBT and posted a picture of himself on Facebook dressed as a woman. When the applicant saw this he was interested and attracted to [Partner A]. He and [Partner A] had a romantic relationship between 2015 and 2018. They would go to restaurants, the beach, and shows. He was unable to provide any evidence of their relationship because his phone’s memory card was in Malaysia. They have not been in contact since the applicant came to Australia.
c.They had trouble with family and hid. They hid on the other side of the beach. They did not otherwise experience discrimination.
d.The applicant told one friend about the relationship with [Partner A]. He did not have any other relationships with men or involvement with LGBT groups in Malaysia.
e.All his family knew he was in a relationship with [Partner A]. His friends followed him and [Partner A] to the beach and told his siblings. [A number of his siblings] are unhappy that he is gay. His siblings asked him to end the relationship and in around January 2018 two of his older brothers threatened to kill him.
f.In Australia he tried to meet men by walking around in the city and looking at the situation. He had not had any relationships or sexual experiences with men in Australia because he had not found anyone suitable.
On 14 January 2022 the delegate refused to grant the applicant a protection visa. The delegate found the applicant’s claims to be gay or LGBT and to have had a relationship with a transgender person to completely lack credibility. The delegate found the applicant did not fear harm as a result of being gay or LGBT. The delegate also found that the applicant’s claims that his family disapproved of his sexuality or relationship, and harmed or threatened him, lacked credibility. Accordingly, the delegate was not satisfied he was a refugee or owed complementary protection.
Evidence before the Tribunal
As stated above, the applicant applied for review of the delegate’s decision on 20 January 2022 and provided a copy of the delegate’s decision record with his review application.
The applicant has provided the Tribunal with a copy of the birth certificate for his son [Son A], and a copy of the applicant’s Medicare card, which also includes [Son A]. The applicant presented his Malaysian passport to the Tribunal at the hearing, and a copy of the biodata page of this passport was placed on the Tribunal file. No other written material or evidence in support of the applicant’s claims for protection has been provided to the Tribunal.
At the hearing on 4 June 2024, I discussed with the applicant his travel history, his family, his education and employment history, the circumstances in which he made his protection visa application, and his claims for protection. In summary, the applicant maintained his claim to be LGBT or to have been LGBT in the past, and that his family didn’t accept him and were angry or unhappy with him.
I discussed with the applicant his marriage to [Wife A]. His evidence was that when he came to Australia he preferred men but when he met his wife she changed his emotion and he liked her more than men. He first saw a picture of her with one of his friends, on Instagram. He asked his friend about her, started following her and then they got in touch. She started living at his house (in a separate room) and they got close. In January 2020 they decided to get married and were married in August 2020. In [year] their son was born. The applicant said he and his wife know each other’s reasons for seeking protection in Australia.
The applicant gave evidence about his relationship with his family back in Malaysia. He is not in contact with his mother or siblings. He thought he last spoke with them two years ago or in 2023. One of his brothers kept calling and asking for money, but because he didn’t give it to them, they don’t call anymore. His mother is old and has lost her vision, which makes him sad because she can’t see him or his son anymore. His family is aware he is married with a son because he posts pictures on Facebook and his brothers follow him on Facebook.
The applicant said he came to Australia to find freedom for himself because in Malaysia it was not like that for the LGBT community. His brother beat him, and his family can’t accept it because they are religious.
He fears returning to Malaysia because he doesn’t see a future for his wife and child. He is afraid his family will harm his wife and child because they are not happy with him and can’t accept him as he is. If they can’t get hold of him, they will get his wife or child and might find his wife through social media. He is concerned his oldest brother, who lives with his mother, will harm him. He is more angry and unhappy about when the applicant had a relationship with [Partner A]. Since last year this brother stopped talking to the applicant.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations because he is a refugee or owed complementary protection, or whether he is a member of the same family unit as such a person. I have concluded that the applicant is not a refugee or owed complementary protection, nor is he a member of the family unit of such a person. Accordingly, I have found that the decision under review should be affirmed.
Is there a real chance the applicant will be persecuted or a real risk he will suffer significant harm?
For the following reasons, I do not accept the applicant is gay, or LGBT, or that he had any sexual or romantic relationships with boys or men or a transgender person in Malaysia in the past. I do not accept these claims are credible and I find they have been fabricated for the purposes of the visa application. I do not accept the applicant was harmed or beaten or threatened by his family in the past because of his sexuality. I do not accept that he or his wife and son will be harmed by his family in the future.
Firstly, the applicant’s evidence in his visa application, at interview with the delegate, and at hearing has been inconsistent on central aspects of his claims as follows:
a.In his visa application, the applicant claimed when he was 18 he had told a close friend that he was in love with him but that this friend rejected him because they were the same gender. At interview, he instead claimed between about 2015 and 2018 he had had a romantic relationship with a male friend who dressed as a woman. At hearing, the applicant instead said he had not been in a relationship and that they were just close friends and kissed on one occasion at the beach. He made no mention of this friend being transgender or dressing as a woman.
b.At interview with the delegate, the applicant said he had been in a romantic relationship with a transgender friend who he named as [Partner A]. He also told the delegate that he had told only one friend, who he named as [Friend A], about this relationship with [Partner A]. However, at the hearing the applicant claimed this was an interpreting error, and that he had kissed a friend named [Friend A] and that there was only one person, whose name was [Friend A]. I note the applicant himself often referred to [Partner A] in his oral evidence at hearing. On some occasions he corrected himself to [Friend A], and on others he did not.
c.At the hearing, the applicant claimed his first same-sex experience had been with a boy called [Partner B] who was a neighbour and who had stayed overnight at his house. He had two sexual encounters with [Partner B]. He said his experiences with [Partner B] and [Friend A] had made him feel he was attracted to men. However, he told the delegate at interview that other than his relationship with [Partner A], he had not had any other relationships with men, and did not claim that his first same-sex experience had been with [Partner B] or that [Partner B] was part of the reason he felt attracted to men.
These significant inconsistencies in the applicant’s narrative about his own personal history as it pertains to his claims, served to undermine the credibility of his claims to be gay, LGBT, or to have had same-sex relationships of some kind in the past, and the reliability of his evidence as a whole. The applicant’s inability to provide consistent evidence about who he had had a relationship with, including a detail as simple as their name, and the nature of those relationships, being central to his claims, lead me to conclude that those past events and relationships did not take place at all.
I have considered the applicant’s explanation that there was confusion at the interview with the delegate or there were interpreting issues, regarding the name of the person he claimed to be in a relationship with in Malaysia, being either [Partner A] or [Friend A]. I acknowledge, having listened to the interview, that it is not entirely clear the name of the transgender person the applicant claimed to have been in a relationship with, with the applicant appearing to say both [Partner A] and [Partner A variant]. Unfortunately, the delegate did not clarify the spelling of this name. However, I do not accept it was unclear when he gave oral evidence about having told a friend [Friend A] about the relationship with [Partner A]. His evidence on this was more detailed than other aspects of his evidence and was in response to specific questions about his friends who were aware of his relationship with [Partner A]. I do not accept the delegate or the interpreter misunderstood or misinterpreted who it was that he was in a relationship with. I note also that at the hearing before me, the applicant frequently referred to both [Partner A] and [Friend A] as the friend he had been close to and kissed. The fact the applicant has been unable to provide a clear and consistent narrative about the name of the person he claimed to have been in a relationship with or friends with, and the close friend he told about the relationship, only adds to my concerns that his evidence has been fabricated.
Secondly, as set out above, the applicant was married to his wife in August 2020, and their son was born in [year]. The applicant attended an interview with the delegate in September 2021, where he did not disclose the existence of his wife or child. Despite repeatedly being asked about his sexuality, his personal circumstances, and his concerns about returning to Malaysia, the applicant did not advise the delegate that he had in fact married a Malaysian woman a little over a year prior, and that his son had been born the previous month. I consider that this was deliberately dishonest and reflects poorly on the applicant’s credibility. That the applicant was not honest with the delegate further adds to my concerns that his evidence is not reliable and that his claims have been fabricated.

Thirdly, the applicant has provided no corroborative evidence of any previous friendship or relationship with [Partner A] or [Friend A], or of any threats or harm from his family. The applicant told the Tribunal that he had no evidence because everything was on a memory card in Malaysia (which was consistent with what he told the delegate), but that maybe there was one photo on Instagram, being a ‘selfie’ with [Friend A]. No such photo has been produced to the Tribunal. I discussed with the applicant that I was concerned that he was unable to produce any evidence of his previous relationship or the threats from his family. In response the applicant said he needed to focus on his relationship with his wife now and that he wasn’t sure what to do. He also said it was very hard to find evidence because it had been a long time. I accept that it has now been over six years since the applicant came to Australia. However, I note that the claimed catalyst for him coming to Australia and the basis of his protection application in 2018 was his sexuality and that he had been harmed and threatened by his brother because of this. Additionally, during the interview and in the delegate’s decision, the issue of corroborative evidence was raised. Further, the delegate did not accept the applicant was gay or LGBT or that he had had a relationship with a transgender person and found his claims not to be credible. I note also that section 5AAA of the Act places the onus of providing sufficient evidence to establish an applicant’s claims to be owed protection upon the applicant. Despite all of these matters, the applicant has not sought to provide anything that may corroborative his claims. The conclusion I have drawn is that no such evidence exists because the applicant did not have any same-sex relationships of any kind in Malaysia, nor has his brother or family harmed and threatened him.
For all of these reasons, I do not accept the applicant is gay or LGBT, or that he had relationships or sexual encounters with other males in the past. I find his claims in this regard to be fabricated and I reject them in their entirety. Nor do I accept he would have sexual or romantic relationships with men or men dressed as women in the future. It follows that I do not accept the applicant’s family beat, threatened or otherwise harmed him in the past because they found out he was interested in men, or in a relationship with a male or transgender person, or had kissed a male friend. I do not accept the applicant’s family, including any of his brothers, would seek to physically harm or threaten the applicant, or his wife and son, in the future because they do not accept the applicant’s identity as LGBT or because they are angry at him for being LGBT in the past.
The applicant became visibly distressed and emotional when talking about the breakdown in the relationship with his mother and siblings in Malaysia. He frequently referred to his mother having lost her vision in recent years and was demonstrably upset by this, and the fact that she would not be able to see his son. I am prepared to accept that the applicant’s relationship with his family has broken down and that he is not in frequent contact with them. Whether that is because he has not been sending money from Australia or for another reason, it is not necessary for me to determine. However, as stated above, I do not accept it is because they are angry at the applicant because of his previous relationships with men or because he is LGBT. I also note the applicant’s evidence was that he spoke with his family over the phone up until about two years ago or 2023 and that his brothers know he is married with a son because they follow him on Facebook. I consider this undermines his claim that his family will harm him if he returns to Malaysia or that they will harm his wife and son if they can’t get to him. I found his evidence about why his family would want to harm his wife and child to be vague and implausible. I do not accept that the applicant’s family, or his brother specifically, will harm the applicant or his wife and son, in any way or for any reason.
In light of these findings, I am not satisfied that there is a real chance the applicant will be persecuted, or a real risk he will suffer significant harm, on return to Malaysia, because of his sexuality, or because he is LGBT, or for any other reason, in the reasonably foreseeable future. Accordingly, I am not satisfied the applicant is a refugee or is owed complementary protection.
Conclusion
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa).
I am also not satisfied that either the applicant’s wife or son are persons in respect of whom Australia has protection obligations under s 36(2)(a) or (aa). Accordingly, the applicant does not meet the criteria in s 36(2)(b) or (c) as a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.
It follows that the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision under review.
Date(s) of hearing:               4 June 2024
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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