2205855 (Refugee) - [2025] ARTA 1764

2205855 (Refugee) [2025] ARTA 1764 (22 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2205855
Tribunal:General Member R Hampson
Date:22 July 2025

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

Statement made on 22 July 2025 at 3:21pm
CATCHWORDS
REFUGEE – protection visa – India – political opinion – Patel caste – escalation of violence between Patel caste and other groups within Indian society – activist family – fears being forced to join movement by family and be violently targeted – decision on the papers, without a hearing – father gravely unwell – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 384, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
2010120 (Refugee) [2025] ARTA 550
2203419 (Refugee) [2025] ART
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR
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 1 April 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be nationals of India, applied for the visas on 15 October 2018. On 1 April 2022 the delegate refused to grant the visas on the basis that they are not persons to whom Australia owes protection obligations.
The applicant applied to the Tribunal on 20 April 2022 for a review of this decision.
On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicants were sent a pre-hearing information form on 6 February 2025. This form includes questions about whether the applicants requires an interpreter if there were to be a hearing, and if they wished for this to be a video hearing, along with a space to add details of their claims for protection. The applicants did not respond to this form.
On 1 July 2025 the applicants were invited to attend a hearing before the Tribunal set down for 11 August 2025.
On 10 July 2025 the applicants responded to this hearing invitation form stating by crossing a box that they would not participate in the hearing and to request the Tribunal to make a decision on the papers without holding a hearing.
The Tribunal must now consider the following points:
a)Should the Tribunal proceed to decide the matter without holding a hearing?
b)Do the applicants have a well-founded fear of persecution in relation to their home country of India and meet the refugee protection provisions of the Act?
c)Do the applicants meet the protection obligations under the complementary protection provisions of the Act?
a)Should the Tribunal proceed to decide the matter without holding a hearing?
The Tribunal for the following reasons has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. The Tribunal has also had regard to the consideration of the exercise of the power under s 106(3) of the ART Act in 2010120 (Refugee) [2025] ARTA 550 (13 May 2025) [1].
Did the applicant consent to proceeding without a hearing?
[1] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
To proceed without a hearing, the Tribunal must be satisfied that s 106(3) of the ART Act has been met. In ss 106(3) (a) and (b) it is set out that the Tribunal may make a decision without holding a hearing in circumstances were the only parties to the hearing are the applicant and a non-participating party; and the decision is wholly in favour of the applicant, or the applicant requests the Tribunal to make its decision without holding a hearing.
Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Citizenship.
In this case, the applicants and the non-participating party (the Minister) are the only parties to the proceedings; and the applicant has requested a decision to be made without a hearing as they have ticked the response, ‘No, I will not participate in the hearing and request the Tribunal to make a decision on the papers without holding a hearing’ in the completed and signed ‘response to hearing notice’ form dated 10 July 2025. The Tribunal finds the applicants response is a clear and unambiguous indication that they do not wish to attend a hearing and wish the Tribunal to proceed to make a decision on the material before it. The Tribunal finds that the applicants have requested, consents to, the Tribunal making its decision without holding a hearing. The Tribunal is satisfied that s 106(3)(a) and s 106(3)(b)(ii) have been met.
Can the issues for determination be adequately determined in the absence of the applicant?
Paragraph 106(3)(c) of the ART Act states that the Tribunal can only exercise its powers in circumstances where the issues can be adequately determined in the parties’ absence. The Explanatory Memorandum clarifies that the Tribunal cannot exercise these powers if there are issues it considers cannot be resolved without seeking further evidence or submissions from the parties.
In 2010120 (Refugee) [2025] ARTA 550 (13 May 2025)[2], when considering the key phrase ‘adequately determined’, the Tribunal indicated that relevant to the appropriateness of the Tribunal exercising the power under s 106(3) of the ART Act was whether the applicant had been provided with reasonable opportunities to present evidence and make submissions in support of their application for review. The Tribunal stated that while this was a matter for the Tribunal to assess, it was important that any such assessment should be considered with reference to the Tribunal’s objectives in s 9 of the ART Act. The Tribunal further stated that:
In protection cases, matters relevant to assessing the opportunities afforded to an applicant to present their case may include any opportunities provided prior to the delegate’s decision being made; the opportunity provided to respond to the matters raised in the delegate’s reasons for refusing the visa when lodging an application for review with the Tribunal; any responses to Tribunal outreach; and any responses to the general invitation in a notice of hearing for any further submissions or evidence in support of the application to be provided to the Tribunal. [3]
[2] 2010120 (Refugee) [2025] ARTA 550 (13 May 2025).
[3] 2203419 (Refugee) [2025] ART (13 June 2025).
The Tribunal notes the applicants migration history and identity assessment as extracted from the delegate’s decision record[4].
[4] Delegate’s decision record, p2, dated 1 April 2022.
Date Event details
31/12/2017 Granted [first] visa
[January] 2008 Arrived Australia
[October] 2008 Departed Australia
[March] 2009 Arrived Australia
[December] 2010 Departed Australia
[January] 2011 Arrived Australia
11/09/2012 Granted [second] visa
08/07/2014 Granted [third] visa
[March] 2015 Departed Australia
[April] 2015 Arrived Australia
28/03/2018 [Third] visa cancelled under s116
15/10/2018 Lodged Protection (XA-866) visa application
09/11/2018 Cancellation of [third] visa affirmed at AAT
09/02/2022 Section 56 letter sent to applicant
The Tribunal notes the following chronology of interactions between the applicants and the Department, and the applicants and the Tribunal where they have had opportunities to present their case:
-The applicants lodged their protection visa application with the department on 15 October 2018 along with their passport copies, the first applicant’s Australian drivers licence copy, their marriage certificate and a payslip for the first applicant.
-The applicants were invited to and attended a biometrics appointment on 13 November 2018.
-The applicants applied for a bridging visa with multiple conditions including no work and no departure from Australia on 11 December 2018.
-On 9 February 2022 the delegate sent the applicants a s 56 letter requesting further information to assist in assessing their protection visa application. The applicants did not respond to this letter.
-An application for a new authorised legal representative was submitted to the department on 23 February 2022.
-The applicants legal representative requested an extension of time to respond to the s 56 letter and this was granted until 25 March 2022, however no response to the s 56 letter was forthcoming.
-On 24 March 2022 a cessation of agreement as authorised legal representative was filed with the department.
-The delegate refused the application for the protection visa on 1 April 2022.
-They applied to the Tribunal for review of the decision on 20 April 2022 and included copies of their passports and health insurance policy.
-The applicants were sent a prehearing information form requesting they provide pertinent information on 6 February 2025. They did not reply to this request.
-The applicants were sent a hearing invitation on 1 July 2025 to which they did not respond.
-A reminder email regarding this hearing invitation was sent to the applicants on 9 July 2025.
-The applicants responded to this correspondence on 10 July 2025 and completed the hearing invitation form which includes boxes to indicate if they will each at the hearing and if they do not wish to do so do, they wish the Tribunal to make a decision without holding a hearing. The applicants have marked the box for each of them stating they wish the Tribunal to make a decision without holding a hearing.
-The Tribunal acknowledged and granted this request on 15 July 2025.
The Tribunal is satisfied that the applicants have had an opportunity to present their case and provide all the information, evidence and submissions that they consider important and relevant in support of their application; and it follows, that the Tribunal is satisfied that the issues for determination in this review can be adequately determined in the absence of the parties. The Tribunal is satisfied that s 106(3) of the ART Act has been met.
BACKGROUND
Evidence before the Department
Protection visa application
According to her protection visa application dated 15 October 2018, the applicants claim to be now [age] and [age] year old nationals of India. Both applicants were born in India. They claim their ethnicity is Gujarati and their religion is Hinduism.
They were married in India in1999 and have [an age] year old [child].
The applicants have an extensive migration history which was extracted from the delegates decision record at included at paragraph 16 above.
The applicants have separate claims and these as summarised by the delegate are included below:
The first applicant:
- He is from the Patel caste in Gujarat. He left India in 2009 and while there had been sectarian
violence between Muslims and Hindus, he had not experienced any harm prior to his
departure.
- In the intervening years, there has been an escalation of violence between the Patel caste
and other groups within Indian society.
- The Patel caste have been campaigning for affirmative action in the allocation of university
places and government jobs and his family are very active in the cause.
- He is concerned that if he returns to India his father will compel him to join the movement and
that he may become involved in the violence and be harmed. Conversely, he is concerned
that if he does not join the movement, the campaigners will target him.
- He does not wish to become involved with the Patel campaign, as he is a pacifist[5].
The second applicant:
Applicant 2 has made her own claims for protection that are largely like her husband’s claims,
plus, the following additional claim:
- As a female, she would feel scared and threatened if she had to relocate to another part of India[6].
Supporting documents
[5] The delegate’s decision record, p3, dated 1 April 2022
[6] Ibid, p4.
The applicants provided the department with the following documents along with their protection visa application:
a.A copy of their Indian passports.
b.A copy of their marriage certificate
c.A copy of their respective payslips for jobs they work at in Australia.
d.The first applicant’s Australian drivers licence.
Interview
The applicants were not offered an interview with the delegate.
Summary of the delegate’s decision
The delegate did not accept any of the first or second applicants claims, finding they lacked detail, substance and evidence and the applicants did not avail themselves of the opportunity to provide more detail on these claims in response to the s 56 letter. The delegate did not accept either of the applicants claims both together and separately in their entirety.
The delegate therefore concluded they were not satisfied the applicants were refugees as defined by s 5H of the Act and as such not a person to whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate then considered if the applicants met the criteria for complementary protection as defined by s 36(2)(aa) of the Act and determined they were not satisfied the applicants were persons in respect of whom Australia had protection obligations as provided for by s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicants did not provide the Tribunal with any further evidence or submissions on 7 July 2025 after requesting a decision be made without hearing which was accepted and acknowledged to the by the Tribunal on 15 July 2025.
The applicants have contacted the Tribunal by email on Saturday 19 July 2025 with a request for an expedited decision based on the following statement (extracted from the email):
‘My hearing on 11th Aug 9.30 am. I already responded we are not attending. I got your email any decision you notifed me. Now my current situation .my father [has Medical condition 1] latest report 19 th July. Decision help me wind up as soon as possible, because I came here 2009 as student visa now I am on bridge visa E so my visa conditions not allowed to go any country. Decision help me rent break leage, super, banking’.
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 issue in this case is whether the applicants meet the criteria for the grant of a protection visa and are therefore someone to whom Australia owes protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of their Indian passports to the Department. Given this and the fact the delegate did not indicate any issues with their identity claim or nationality the Tribunal accepts they are Indian nationals and India is their receiving country for the purposes of assessing their protection claim.
(ii) Do the applicants satisfy the refugee criterion for protection?
To determine if the applicants satisfy the refugee criterion for protection the Tribunal must consider if there is a real chance of harm if the applicants were returned to their home area of the receiving country in the reasonably foreseeable future. To be a refugee, the applicants must have a well-founded fear of persecution in their home country of India. This means that the Tribunal must be satisfied there is a real chance the applicants will face serious harm if they return to India. Not all harm will be serious harm for the purposes of a refugee definition in s 5H. The harm must be directed at them for one or more of 5 reasons. Those reasons are – their race, religion, nationality, membership of a particular social group or political opinion.
In considering this point the Tribunal has had regard for s 5AAA which asserts the Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the applicants claims, or to establish or assist in establishing the claims. Nor is the Tribunal required to accept uncritically any and all claims made by an applicant[7].
[7] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451.

The Tribunal has considered firstly the claims for protection the applicants made in their protection visa application dated 2018. The first applicant has provided limited information about his claims and has not responded with any further information to the delegates s 56 request.
The Tribunal accepts the first applicant is a now [an age] year old man from Gujarat, India who came to Australia with his wife, the second applicant a now [age] year old woman also from Gujarat, India. The first applicant claims he left India because he was a member of the ‘Patel’ caste and when he left India in 2009 there was ongoing violence between Muslims and Hindus. This violence escalated after he left India. He claims if he were to return to India his father will compel him to join the movement and he is a pacifist but also if he does not join the campaigners will target him.
The first applicant has not, however provided any further and specific information about these claims. Sadly, I also note the applicant has, in his recent email communication with the tribunal, stated his father is seriously ill with [Medical condition 1].
I have no evidence before me with regard how this violence directly affected and harmed the applicant prior to his departure from India in 2009. The applicant has had many opportunities to provide the department and the tribunal with further information to support his claims and has not done so to date and as such I do not accept his claim that he left India in 2009 because of the ongoing violence between the Muslims and the Hindus and that this violence escalated after he left India.
The applicant further claimed if he were to return to India his father would coerce him into joining the movement and he is a pacifist but if he did not join, he may be targeted by the campaigners. The applicant has not provided any further specific evidence of this claim regarding his father’s capacity to coerce him, [an age] year old adult man (as at 2018) and sadly certainly not under the present circumstances if he were to return to India in the reasonably foreseeable future, as his father is gravely unwell. As such I do not accept this claim in its entirety.
I do not accept the claims of the first applicant individually or cumulatively and I am not satisfied that there is a real chance that the applicant would be persecuted in the reasonably foreseeable future for any of the reasons he claims. I am not satisfied that the applicant has a well-founded fear of persecution as defined under s 5J of the Act
The second applicant has made her own claims which are those of her husband and additionally that because of her status as a woman and she would feel frightened if she had to relocate to another part of India. As I do not accept her claims regarding her husband, the first applicant’s political involvement, I therefore do not accept her claims regarding the need to relocate to another part of India because of these claims.
I therefore do not accept the claims of the second applicant individually or cumulatively and I am not satisfied that there is a real chance that the applicant would be persecuted in the reasonably foreseeable future for any of the reasons he claims. I am not satisfied that the applicant has a well-founded fear of persecution as defined under s 5J of the Act.
For the reasons given above, I am not satisfied that the first or second applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
Having found there is no real chance of harm of any kind, there is no real risk, as the real chance and real risk tests are the same, and the Tribunal has adopted the same findings as those for the real chance test as outlined in paragraphs 37 to 47 above.
For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUDING PARAGRAPHS
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicants satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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