2202626 (Refugee) - [2025] ARTA 1161

2202626 (REFUGEE) [2025] ARTA 1161 (26 MAY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2202626
Tribunal:General Member P Haag
Date:26 May 2025

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

Statement made on 26 May 2025 at 10:30am
CATCHWORDS
REFUGEE – protection visa – Malaysia – political and economic conditions – no past harm – fear of adverse consequences but not mistreatment or harm – delay in applying – name spelled differently in delegate’s decision but no doubt as to identity – consent to decision without hearing – responsibility to specify claims and provide evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), (5), 36(2)(a), (aa), (2A), 65
Administrative Review Tribunal Act 2024 (Cth), ss 9, 55(1)(a), 63(2), 106(3)
Migration Regulations 1994 (Cth), Schedule 2
CASE
2010120 (Refugee) [2025] ARTA 550

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 14 February 2022 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 Malaysia, applied for the visa on 5 September 2021. The delegate refused to grant the visa on the basis that the applicant is not a refugee or a non-citizen in Australia entitled to complementary protection.
SHOULD A DECISION BE MADE WITHOUT A HEARING IN THE PRESENT CASE?
Did the applicant request a decision without a hearing?
On 2 May 2025, the applicant corresponded with the Tribunal. The applicant did so by email that was sent from the email address she provided to the Tribunal for correspondence pertaining to the review proceeding. In the email the applicant stated:
‘I hear request the ART Tribunal to make a decision without hearing interview, but ART Tribunal please make a decision on the papers. Thanks.’
The applicant also asked the Tribunal to refer to the file attached to the email. The file comprised 2 attachments. The first attachment is a copy of the Notice Of Hearing the Tribunal sent to the applicant on 29 April 2025. It notified her of the scheduled hearing of the review of her application for a protection visa, and other matters relevant to the review proceeding. The second attachment is a copy of the biodata page of a Malaysia passport, evidently issued by the relevant authority in Malaysia to the applicant.
It is evident from the email and the attachments to it, that the applicant was properly invited to attend a hearing to give evidence and present arguments. The applicant’s email makes clear the Notice Of Hearing was sent to the email address she provided to the Tribunal for correspondence pertaining to the review.
The Notice Of Hearing informed the applicant that she may request the Tribunal to make a decision without a hearing. The Notice also informed the applicant that if she requested the Tribunal to decide the review on the papers without a hearing, the Tribunal may decide her application providing it is satisfied the issues can be determined in her absence. Additionally, the Notice informed the applicant that a decision without a hearing does not guarantee she will receive a favourable decision.
The Tribunal is satisfied the applicant’s email of 2 May 2025, considered together with the 2 attachments, expresses the applicant’s properly informed intention not to attend the hearing. The correspondence also establishes the applicant requested the Tribunal to decide the review of her protection visa application without holding a hearing.
Can the issues for determination be adequately determined if the parties are absent?[1]
The applicant was given several opportunities to present evidence in support of her case, including:
·The application for a protection visa; and
·in response to the Prehearing information form the Tribunal sent on 13 March 2025 to the applicant’s email address; and
·in response to the Notice Of Hearing and related correspondence the Tribunal sent on 29 April 2025 to the applicant’s email address; and
·the scheduled hearing.
[1] The analysis of this issue draws from and applies the decision of the Administrative Review Tribunal of Australia: 2010120 (Refugee) [2025] ARTA 550 (13 May 2025): Justice Kyrou, President, Deputy President S Burford, Deputy President K Dordevic
As noted above, the correspondence from the Tribunal explained that, if the Tribunal accedes to a request to decide the issues for determination without a hearing, a decision would be made on the evidence before the Tribunal, and there is no guarantee the decision will be favourable.
In reviewing the merit of a decision to refuse to grant a protection visa to the person who applied for the visa, the Tribunal is required to determine certain issues, namely:
(a) whether the person faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a)[2] for the purpose of s 36(2)(a) of the Migration Act, if returned to their receiving country; and
(b) if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the person being removed from Australia to their receiving country, there is a real risk that they will suffer significant harm for the purpose of s 36(2)(aa) of the Migration Act.
[2] Race, religion, nationality, membership of a particular social group, or political opinion
The Tribunal has before it a copy of the Department’s file, which includes the passport document that the applicant provided with the protection application to verify her identity, nationality and citizenship. The applicant’s protection visa application form includes biographical information that is consistent with the information in the copy of the biodata page of the passport issued in her name, and her protection claims and information about circumstances that relate to the protection claims. The Department file also contains a copy of the delegate’s decision. Additionally, the Tribunal has a copy of the current DFAT Country Information Report Malaysia, 24 June 2024 (the DFAT report).
The Tribunal is satisfied that from this information it can determine the applicant’s identity, receiving country, and make satisfactory findings about the issues for determination set out at [9] above, based on the claims and information the applicant provided in support of her protection application, without seeking further evidence or submissions from her.
There is nothing before the Tribunal that suggests, by determining the issues for review in the absence of the parties the Tribunal would be acting contrary to its statutory duty to:
(a) conduct the review in a fair and just manner;[3] and
(b) consider properly the matters before the Tribunal;[4] and
(c) comply with the procedural fairness provisions that apply to the type of case that is before the Tribunal;[5] and
(d) make the correct or preferable decision in relation to the proceeding.[6]
[3] ART Act, s 9(a)
[4] Ibid., s 9(b)
[5] Ibid., s 55(1).
[6] Ibid., s 56(1)(a) and s 63(2)
Accordingly, the Tribunal is satisfied that the issues for determination in the proceeding can be adequately determined without holding a hearing, and the requirements of s 106(3)(c) are satisfied.[7] At this point it is useful to relevantly quote s 106(3)(c). The provision states:
[I]t appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding.
[7] The forgoing analysis was informed by and applied the decision of the Administrative Review Tribunal of Australia: 2010120 (Refugee) [2025] ARTA 550 (13 May 2025): Justice Kyrou, President, Deputy President S Burford, Deputy President K Dordevic.
The Tribunal will now decide the proceeding without conducting a hearing.
BACKGROUND
In her protection visa application form the applicant stated she was born in a particular town in Malaysia on [Date]. Her ethnicity is Malaysian Chinese; her religion is Buddhism; and she can speak, read and write English and Mandarin. The applicant also stated she is not currently employed; she has never been employed; during unemployment she did not undertake any activities; and, whilst unemployed, she financially supported herself from savings.
The applicant stated in the application that she departed Malaysia legally on [Day 1] March 2015 using her Malaysian passport, and she arrived in Australia on [Day 2] March 2015 as a visitor.
On 5 September 2021, the applicant lodged her application for a protection visa. On 14 February 2022, the delegate of the Minister refused the application.
Evidence before the Department
The claims stated in the protection application form are:
(a)The applicant left Malaysia because political chaos caused an increase in the epidemic, an increase in unemployment and an economic downturn.
(b)The applicant has no hope for Malaysia, and she does not want to return to the country.
Furthermore, the applicant stated:
(a)She was not harmed in Malaysia.
(b)She tried relocating to another part of Malaysia to seek safety, but the situation is similar throughout the country.
(c)If she returns to Malaysia, she thinks an increase in the [unspecified] epidemic, an increase in unemployment, and an economic downturn will have adverse consequences for her.
(d)She thinks she will not be harmed or mistreated if she returned to her home country.
(e)She does not think the authorities will protect her because ‘politicians are very selfish. Corruption is very serious based on yearly international investigation report is ranked No 57.’
(f)The applicant is unable to relocate because she has ‘a new hope and future’ in Australia.
In summary form, the delegate was not satisfied the applicant has a well-founded fear of persecution because her protection claims do not meet any reason specified in s 5J(1)(a) of the Act, therefore she is not a refugee.
The delegate was not satisfied the applicant met the requirements for complementary protection, essentially for the following reasons:
(a)The government placed restrictions on the general population to combat the COVID-19 pandemic for good reason, and not for any reason that discriminated against the applicant.
(b)The economic consequences of the COVID-19 pandemic, including elevated levels of unemployment, and the related government decisions applied to the population generally, and those conditions did not discriminate against the applicant.
(c)The claims and supporting information did not satisfy the delegate that there are substantial grounds for believing, as a necessary and foreseeable consequence of being removed to Malaysia, there is a real risk the applicant will suffer significant harm.
(d)The applicant did not meet the requirements of s 36(2)(aa) of the Act, therefore she was not entitled to complementary protection.
Evidence before the Tribunal
A summary of the claims and circumstances pertaining to the claims before the Tribunal, are summarised at paragraph [18] and [19] above. No additional material or submissions were provided to the Tribunal. In this proceeding the applicant relies on the same claims and information she unsuccessfully relied on before the delegate of the Minister.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a refugee or a non-resident in Australia entitled to complementary protection. The Tribunal has decided, for the following reasons the decision under review should be affirmed.
Identity and receiving country - Malaysia
The Tribunal notes the delegate used the name [Given names, Surname spelling 1] in the refusal decision when referring to the applicant.
In the protection application form the applicant clearly stated her family name is [Surname spelling 2], and her given names are [Given names]. In the protection application the applicant also provided details of the biographical information in her national identity card, and stated, her family name, as it appears in her identity card is [Surname spelling 2], and her given names are [Given names]. The biographical information in the applicant’s passport states her name is [Surname spelling 2, Given names]. The applicant’s passport and protection application state her date of birth is [Date].
This information was always before the delegate. The delegate accepted the applicant’s passport to be a genuine document and did not challenge the accuracy of the biographical information in the passport and the protection visa application form. Invariably, these documents state the applicant’s family name is [Surname spelling 2], her given names are [Given names] and her date of birth is [Date].
In the refusal decision the delegate stated the applicant’s date of birth is [Date], her family name is [Surname spelling 1], and her given names are [Given names].
The delegate found the biodata page of the applicant’s passport, combined with the consistency of that information within the narrative she provided in the protection application form, satisfactorily established her name, date of birth and identity. Instead of referring to the applicant by the family name in her passport and protection visa application form, the delegate added [a letter] to the applicant’s stated family name, thereby unilaterally changing the spelling of her family name from [Spelling 2] to [Spelling 1].
Having considered the forgoing factors, the Tribunal finds the delegate inadvertently added [a letter] to the applicant’s family name. Inadvertence caused the delegate to spell the applicant’s surname [Spelling 1] instead of [Spelling 2]; the latter family name is the only family name appearing in the applicant’s protection visa application and passport. Furthermore, the Tribunal is satisfied but for inadvertence, the delegate would have spelt the applicant’s family name just as it is spelt in her passport, and her protection visa application form.
Upon consideration of the biographical information in the biodata page of the Malaysia passport issued in the name [Surname spelling 2, Give names], and the biographical information provided in the protection visa application form, and the foregoing discussion about the misspelling of the applicant’s family name, the Tribunal finds the applicant’s family name is [Surname, spelling 2] and her given names are [Given names]; she was born in Malaysia on [Date]; and she is a national and citizen of Malaysia. Therefore, the applicant’s protection claims will be assessed against Malaysia as the country of reference and receiving country respectively.
Assessment of the claims
In summary form, s 5AAA of the Migration Act requires an applicant to:
specify all particulars of their claim and to provide sufficient evidence to establish the claim. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant in as much detail as is necessary to enable the decision-maker to make the relevant factual findings. A decision-maker is not required to make an applicant's case for them. Nor is the Tribunal required to accept uncritically any [or all][8] the allegations made by an applicant: 2010120 (Refugee) [2025] ARTA 550 (13 May 2025): Justice Kyrou, President, Deputy President S Burford, Deputy President K Dordevic at [126].
[8] Added
To be a refugee, the Tribunal must be satisfied of the existence of a real chance an applicant will be subject to serious harm as defined in s 5J(5) of the Act, for one or more of the reasons specified in s 5J(1)(a), namely, race, religion, nationality, membership of a particular social group, or political opinion, if the applicant is returned to their home country immediately, or in the reasonably foreseeable future.
Relevantly, the applicant stated she did not experience harm in Malaysia. She explained in her protection application what she thought would happen to her if she returned to Malaysia. As noted earlier, the applicant claimed she would be affected by an increase in an unspecified epidemic, unemployment and an economic downturn. The applicant did not claim for any reason specified in s 5J(1(a) that, she would be subject to systematic and discriminatory conduct by State or non-state actors in Malaysia that would cause her serious harm.

Absent evidence specific to the applicant, it is reasonable to comprehend that any consequences of whatever unspecified epidemic the applicant had in mind when writing her protection claims, the epidemic would be unlikely to affect only the applicant.
It is reasonably probable that the unspecified epidemic contemplated by the applicant would affect the general population, given the applicant suggests a causal link between an unspecified epidemic, and an increase in unemployment and an economic downturn in Malaysia.
The DFAT report refers to the COVID-19 pandemic affecting Malaysia in 2020 and 2021. The report states the COVID-19 pandemic caused poverty rates to rise and economic growth to fall, and that the economy has since recovered. This information is consistent with the lack of specific details about the epidemic the applicant had in mind when she claimed protection in Australia. It is reasonable to expect the applicant would provide specific details about any epidemic, and how it may harm her personally, if there was a real chance an epidemic would harm her if she returned to Malaysia.
The applicant’s claims, contingent upon a real chance of the existence of an unspecified epidemic that may cause her serious harm are general in nature, unsupported by concrete evidence and cogent specificity, and the Tribunal finds the claims to be unpersuasive.
The protection claims centred on selfish and corrupt politicians are general in nature, they are unsupported by concrete evidence and cogent specifics about those factors and how they would pose a future risk to the applicant that amounts to a real chance of serious harm for any reason, or combination of reasons specified in s 5J(1)(a) of the Act.
Delay
As noted above, the applicant arrived in Australia on 23 March 2015 as a tourist. On 5 September 2021 she applied for a protection visa. The period of delay in applying for a protection visa is unexplained, and it weighs against accepting the applicant arrived in Australia because she had a well-founded fear of persecution in her home country. If the applicant left Malaysia because she feared she would be targeted and harmed by corrupt politicians, corrupt state officials or non-state actors, it is reasonable to expect she would not delay for a period of a little more than 6 years before applying for a protection visa.
Does the applicant satisfy the refugee criterion for protection?
Having considered the applicant’s claims individually and cumulatively, the evidence considered alone, and in conjunction with the DFAT report, is insufficient to establish to the satisfaction of the Tribunal, the existence of a real chance the applicant would be subject to serious harm, or harm of any kind, for any reason specified in s 5J(1)(a), or for any other reason, if she is removed to Malaysia now or in the reasonably foreseeable future.
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) of the Act.
Further, the Tribunal is not satisfied the applicant has a well-founded fear of persecution for any reason specified in s 5J(1), or for any other reason. Furthermore, the Tribunal is not satisfied the applicant meets the definition of refugee as set out in s 5H of the Act.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded, 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) of the Act.
A non-citizen will satisfy the complementary protection criterion if there are ‘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’.
Pursuant to s 36(2A) of the Act, a non-citizen will suffer significant harm if:
(a)they will be arbitrarily deprived of their life; or
(b)the death penalty will be carried out on them; or
(c)they will be subjected to torture; or
(d)they will be subjected to cruel or inhuman treatment or punishment; or
(e)they will be subjected to degrading treatment or punishment.
It is accepted law that, the test for ‘real risk’ is the same as the ‘real chance’ test in the refugee criterion in s 36(2)(a) of the Act.
Having concluded the evidence does not satisfactorily establish the existence of a real chance the applicant would be subject to harm of any kind, if she is removed to Malaysia now, or in the reasonably foreseeable future, for the reasons the Tribunal reached that conclusion, the Tribunal finds: it is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia now or in the reasonably foreseeable future, there is a real risk the applicant will suffer significant harm.
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), and concluded, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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).
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) of the Act.
DECISION
The Tribunal affirms the decision under review.
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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