2213785 (Refugee) - [2025] ARTA 1392

2213785 (REFUGEE) [2025] ARTA 1392 (4 JUNE 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2213785
Tribunal:General Member E Rutherford
Date:4 June 2025

Place:Adelaide
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 04 June 2025 at 11:17am
CATCHWORDS
REFUGEE – protection visa – Laos – farm polluted and stock killed by infrastructure project – applicant led protest group – compensation retained by government – protests and official complaints against government corruption – other protesters arrested or disappeared – fear of reprisals from corrupt officials and unpaid workers – physical health condition unstable – generally consistent claims and evidence supported by documentation and country information – extremely high level of corruption at all levels of government – harassment or arrest likely, and lack of medical treatment in prison – modification of behaviour or relocation not reasonable and state protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (3), (4)(a), 5L, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of the Lao People’s Democratic Republic (Laos) who applied for the visa on 1 November 2018. The delegate refused to grant the visa on 31 August 2022. The applicant applied to the Administrative Appeals Tribunal (the AAT) within the time limit allowed by the Act.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
This decision and statement of reasons is made by the Tribunal in review of the delegate’s decision. The issue in this case is whether the applicant is owed protection obligations as a refugee, or pursuant to the complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be set aside and remitted.
The applicant was represented in relation to the review.
CLAIMS AND EVIDENCE
Evidence before the Department
Protection visa application
The applicant stated in her protection visa application that she invested $500,000 in a [farm]. The government subsequently approved the construction of [an infrastructure project], which caused pollution and killed all the [stock] in the farm, causing losses to the company. The applicant claimed to have led a protest against the government, which ultimately led to the payment of compensation to the villagers affected and to the [farm]. However, the government insisted that the compensation payment be diverted through the government, and did not pass the compensation money on to the intended victims. The applicant again claimed to have led protests against the government, and now fears reprisals from the corrupt officials, and from the workers who are demanding unpaid wages.
Supporting documents
The applicant’s protection visa application was accompanied by:
·a translated copy of her national identification card
·her Laos passport
·her marriage certificate
·a copy of the grant letter for an Australian Visitor (subclass 600) visa
·articles obtained from the internet regarding various protests and human rights violations in Laos
·a translated letter permitting the applicant to take annual leave from her position as [job title] of the [work section] of [Employer], [Province] branch, [in] April 2018
·a translated certificate of domicile identifying the applicant
·a translated household registration book naming the applicant and her [children]
·a translated copy of a license granting the applicant the right to operate a [farm]
·a translated ‘Enterprise Registration’ certificate in the name of ‘[Business name]’
·a translated excerpt from the tax register in the applicant’s name.
Summary of the delegate’s decision
The delegate did not interview the applicant regarding her claims. The delegate found that the applicant was not a refugee, because her claims did not raise any of the grounds set out within s 5J(1)(a) of the Act.
With respect to complementary protection, the delegate considered from country information that the applicant would receive an adequate level of state protection through the police, courts and anti-corruption mechanisms from any harm, such that there was not a real risk of her suffering significant harm upon removal from Australia to Laos.
Evidence before the Tribunal
Pre-hearing submissions
In advance of the hearing, the applicant resubmitted some of the material which was provided to the Department. In addition, the following documents were also provided to the Tribunal:
·two complaints dated [July 2017] and English translations from the applicant to the Chief of the [Government agency]
·a copy and English translation of the applicant’s divorce application
·a notice dated [August] 2011 and English translation regarding the environmental impact of the [environment] on [farming] in [District]
·a report dated [May] 2015 and English translation
·environmental impact reports with topographical maps, water sampling results, and water quality analysis report, from 2009
·an undated letter from the applicant, translated to English on 20 April 2025
·a written submission from the applicant dated 21 April 2025
·a medical letter reporting that the applicant is being investigated for [medical condition] and is presently in an unstable condition.
The hearing
The applicant appeared before the Tribunal on 27 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages. The applicant’s representative also attended the hearing via video conference. The applicant’s oral evidence, where relevant, is referred to in the findings below.
Post-hearing submissions
At the conclusion of the hearing, the applicant’s representative requested two weeks to provide submissions and additional evidence addressing some of the concerns raised by the Tribunal with the applicant. This request was agreed to, and the Tribunal also condensed the concerns to writing and sent them to the representative at his request. The Tribunal sent further correspondence also asking that the applicant send an updated copy of her Laos passport, and address the issue of behaviour modification.
On 3 June 2025, the Tribunal received the following material from the applicant’s representative:
·a written response to the issues raised and the additional email correspondence on behalf of the applicant
·links to various articles of country information regarding Laos
·a copy of her Laos passport issued [in] 2021
·an interim intervention order issued for the protection of the applicant against an ex-partner and related correspondence from the SA police
·a duplicate of the medical letter already provided to the Tribunal
·an article regarding the arrest of Hmong protesters in Laos.
The written response did not make clear what the relevance of the intervention order, nor information contained within the applicant’s written statement, was on her claim for protection. However, in light of the findings that I have been able to make regarding her principal claim, I have not considered this issue further.
RELEVANT LAW
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. No country information assessment prepared by the Department of Foreign Affairs and Trade was available to the Tribunal for Laos.
REASONS AND FINDINGS
Receiving country
The applicant claimed to be a citizen of Laos, and provided documentary evidence in support of her nationality. There is no evidence that she is a citizen of any other country. Section 36(3) does not apply to the applicant. The delegate accepted the applicant’s identity as claimed. I am satisfied that the applicant is a citizen of Laos and that Laos is her receiving country. I have assessed her claims against that country.
Background
I make the following findings of fact about the applicant’s background as they are relevant to her claims:
·she was born in a village in [District] in Laos, located on [a] river
·she is one of [siblings]
·[one sibling] works in [City]
·her parents and [other siblings] remain in the village
·she completed an undergraduate degree in [subject] and other [subject] related courses in Laos
·she worked for 18 years for [a] company in Laos
·she was in a relationship with a [Country] citizen from around [Year] or [Year] who she later married in [Year] and divorced in [Year]
·she has [children] who live in [Country] with her ex-husband
I also accept that the applicant and her husband commenced a [business] together. In the hearing she stated this to have occurred in approximately 2004 or 2005, though I note in the documents provided, it was stated to be in 2006. This is not essential to my reasons. The applicant’s husband’s parents invested money in the business, and it was successful. The business expanded, and they were issued an official license in 2009.
Assessment of evidence regarding protection claim
The applicant gave evidence that construction of the [project], once completed, caused significant detriment to the [environment]. She described [effects], and relevantly to her business, many [stock] dying. This evidence, and the timing of the project, is consistent with open source material.[1]
[1] See for example, [Articles, sources, dates].
The documentary evidence provided by the applicant supports her chronology of events that occurred following the opening of the [project] (which appears to have been in late 2010 or 2011, according to the articles sourced). Some of her oral evidence was not accompanied by corroborating documents, but given the overall credibility of her evidence, I accept that these events occurred.
A report dated [May] 2015 reflects that [families] whose [businesses] were affected by the [project] requested justice in June 2013. At the time of the release of the report, it was said that investigations were continuing into the cause of the deaths of the [stock].
However, the applicant’s oral evidence was that, at the time of the report, the company involved in the construction of the [project] had already paid compensation for the environmental impact to the authorities. She said that she knew this, because she had spoken to the company. She said that the written report was a delaying tactic by the authorities, who did not want to pass on the money paid to the families involved.
In around April 2015, the applicant says that she was interviewed by government officials regarding her efforts to obtain the compensation to which she believed she was entitled. The officials advised her to stop her efforts, and not to lodge any complaint.
The next significant events described by the applicant occurred in approximately 2016 and 2017. She said that her husband’s visa was not extended by the government. He remained in the country for another 18 months to finalise his business, but he had departed Laos by the time he obtained a divorce through his solicitor, which occurred in May 2018 (according to the divorce certificate supplied).
Also in mid-2016, the applicant said that she had to leave her job because she was a [specified employee]. She was paid six months’ salary upon departure, which she said is the policy when a person leaves their place of employment. Her evidence about this was inconsistent with the letter she provided approving her request for annual leave in 2018. However, the applicant was able to explain this discrepancy, which is detailed below at paragraph 36.
In around March 2017 the applicant said that she noticed that she was being followed. She said that she stopped someone to ask for help, and that after she left, they asked the person where she had gone. The applicant said that she felt unsafe, and that she felt it necessary to move from where she lived and to change her name.
After this, the applicant said she was also involved in a rally to protest against the lack of compensation paid. She said around [Number] people drove to the [Government agency] and gathered outside. She said that she, along with the other owners of [farms], spoke into a loud speaker, demanding that those responsible for the project must pay damages. She said that she was urging the department to escalate it to a higher level and push for accountability. Security guards came and told them not to create chaos and to avoid violence, but no police attended the rally. Finally, a representative of the [agency] said that they had received the complaint and would escalate it to a higher authority, and the protesters dispersed.
Two months later, in July 2017, the applicant filed two complaints with the [Government agency]. These complaints were among the material provided to the Tribunal. One complaint was made individually, and the other on behalf of [families] (including her own). The applicant is named as the ‘head’ of the group of [families]. The complaints set out the value of the [stock] that perished between May and August 2011. It was asked that the department consider solutions to their losses. Also named amongst the [families] is the applicant’s [relatives]. The applicant said that she had been appointed as head of the group because she had a [subject] education and knew who to approach and how.
The applicant said that she received a phone call saying that if she didn’t withdraw the complaints, she would be gaoled for life.
The applicant said that as a result of these events, she went into hiding. She asked her mother to look after her children for two years. Ultimately, she was so worried about the safety of her children that she asked her mother-in-law in [Country] to take her children there.
However, the applicant said that she continued to be searched for by officials who would ask for her and show her picture. She did not want to put those harbouring her at risk, and so she asked a fellow employee at the [company] to help her to leave the country. He did so by obtaining a letter showing that she continued to work at the company, and that she had been granted a period of annual leave, so that the applicant could apply for a Visitor visa for Australia.
In addition to facing the threat of the officials, the applicant also said that her former employees were demanding their wages, which she was unable to pay. She sold her house and car to pay the debts she owed to her supplier of [stock] feed.
Since being in Australia, the applicant said that she heard that some of the people who she had protested with had gone on to have further protests, and had been arrested or disappeared as a result. She said that the official who had helped her with a letter was demoted, and had to leave his work. The applicant’s [relatives] had ceased taking any further action by either protesting or following up on the complaint made on their behalf after seeing what happened to her.
She said that the workers had continued to demand payment from her family, but that over time they had stopped, and she has not heard anything about them for three years. However, her [sibling] informed her that someone continues to go to her family home to ask about her, approximately once per month. They also sometimes ask the neighbour if they have seen the applicant. The applicant’s family have never been harmed or threatened in her absence. She also said that following her departure from Laos, some officials told her parents that her name had been added to a list at the immigration department, which would cause her to be arrested immediately upon her return to the country.
The applicant said that she fears being arrested and put in gaol upon her return to Laos. She said that she also feared being killed or disappeared. When asked if she would pursue the case further upon return, she said that she would not, because when she last pursued it, she was followed and hunted. However, she said that even if she went back and didn’t pursue it, her mere presence would indicate to the officials that she intended to pursue the complaint further. She said that the complaint could not have been closed in her absence because someone would need to actually take steps to close it. She also said that, if the case had been closed, then there would be no reason for officials to continue to ask about her with her family.

In the applicant’s written evidence following the hearing, the applicant revised her evidence, and said that her sense of justice would compel her to pursue justice for the grievance against her despite the risk to her personal safety. I have my doubts about the level of enthusiasm she expressed in the written correspondence in contrast with her oral evidence at the hearing but I am prepared to give her the benefit of the doubt about this, and accept that she does hold this attitude.
With respect to her former workers, the applicant expressed a desire to repay them the money they are owed, if an opportunity presents. She said that, if she returned to Laos, and they asked her for the money, she would agree to pay them back. The applicant agreed that this would appease them, and that they would probably not harm her in this instance. I find that the applicant does not have a well-founded fear of persecution from her workers, because she would be able to take these steps to avoid any harm.
However, with respect to the officials, the applicant maintained that she was at risk of harm despite the passage of seven years since her departure.
Overall, I found the applicant to be an extremely credible witness. She was able to recount significant dates and events with ease, allowing for the natural fallibility of memory that arises over time. Her chronology was backed up with documents that corroborated the core elements of her claim.
I have some doubts about the frequency in which the applicant says officials continue to ask about her, and about her claim that officials warned her parents about her name being added to a watchlist. I am of the view that the applicant’s profile is not sufficiently significant to warrant this level of interest.
The applicant’s written evidence to the Tribunal after the hearing states that she spoke at many rallies. This is inconsistent with her oral evidence at the hearing, and I am inclined to only accept that she spoke at one rally.
However, I do accept that the applicant’s return to Laos would be noticed by local officials. Her family home is in a very small district, and the population of Laos overall is relatively low. I accept her evidence that she was denied compensation from the damage sustained to her business from the construction of the [project], due to corruption within the relevant [agency]. I accept there is a real chance that the person or persons involved in this act may feel threatened by her return, in case she were to reagitate her complaint.
Furthermore, the applicant has essentially given evidence that she would modify her behaviour upon her return to Laos so as to avoid harm to herself and her family. This is a form of impermissible behaviour modification contained within s 5J(3)(a)-(c), because I accept that the applicant’s sense of justice is an innate and immutable characteristic. I must therefore consider the risk to her on the basis of her indeed did pursuing her claim for compensation and the complaint upon her return to Laos.
Country information before me shows that there is an extremely high prevalence of corruption at all levels of government in Laos. BTI assesses that ‘it is safe to assume that a large proportion of people holding an official position, whether in the civil service or local administration, use it for personal gain.’[2] This is corroborated in the latest United States Department of States report on human rights practices, which states:
Official corruption was widespread at all levels of government. Observers reported poor fiscal and economic conditions exacerbated the problem. Corruption was particularly problematic in government development and investment projects, especially those involving construction, natural resource extraction, and in the development of certain SEZs. Most offenders enjoyed impunity.[3]
[2] Bertelsmann Stiftung, ‘BTI 2024 Country Report - Laos’ (Report, 2024), 11.
[3] United States Department of State ‘Country Reports on Human Rights Practices for 2023 – Laos’ (Report, 2024), 19.
I also note that these same reports refer to the prevalence of those affected by land acquisitions failing to receive compensation for their losses.[4] The USDOS Report provides the analogous example of the majority of compensation arising from a 2018 dam collapse being paid directly to the government.[5] I accept that in a country where such high levels of corruption exists, this would allow for officials to profit from the payment of compensation.
[4] Ibid, 10.
[5] Ibid, 17.
I accept that local officials, observing the applicant’s return to Laos, and in light of the possibility that she might pursue her complaint or protests further, may wish to harm her to avoid their corrupt behaviour being exposed.
The forms of harm which the applicant has articulated and which I accept could occur at the hands of corrupt officials include disappearance or arrest. The disappearance of high profile activists has been widely reported as occurring in Laos,[6] and while the applicant does not have such a profile as these, I consider there remains a real chance that something of this nature could occur upon her return to Laos. The applicant has referred me to links of articles showing that protesters with lower profiles have also met similar fates.[7] The applicant’s arrest is more likely – and I accept her evidence that she is unlikely to receive appropriate medical treatment in prison.[8] Given the nature of her condition, I accept that she could suffer a serious worsening of her health, and that this would pose a risk to her life.
[6] Ibid, 3.
[7] Sidney Khotpanya and Richard Finney, ‘Lao Villager Dies After 8 Years in Jail Over Land Grab Protest’ Radio Free Asia (online, 20 May 2019); Ounkeo Souksavanh and Eugene Whong, ‘Two Jailed Lao Villagers Released After Serving Two Years For Land Dispute Protests’ Radio Free Asia (online, 29 October 2019); ‘Laos: Police arrests 8 activists planning to stage protests to condemn land grabs and dam projects, later releases 6 of them’ Business & Human Rights Resource Centre (online, 24 November 2019).
[8] USDOS, above n 3, 4.
If the applicant were to become involved in a protest again in future, there is a real chance that she could also be exposed to physical harassment by police, and arrest.[9] Each of these forms of harm constitutes serious harm: s 5J(4)(b).
[9] Bertelsmann Stiftung, above n 2, 25.
I find that the essential and significant reason why the applicant would be exposed to these forms of harm is because she is a member of a particular social group which could be described as former [farmers] who are entitled to compensation, or protesters: ss 5J(4)(a) and 5L of the Act.
The conduct forming the harm is both systematic and discriminatory, in that officials apply it in a targeted manner against any protester or former [farmer] who may expose their corrupt actions: s 5J(c).
I accept that the harm relates to all areas of Laos: s 5J(1)(c). This is because the harm is posed by government officials, and I cannot rule out the possibility that the applicant’s return to Laos could be flagged on the country’s immigration system, or otherwise noticed by officials. Similarly, as the harm is posed by government officials, I also do not accept that effective protection measures exist: s 5J(2).
As already mentioned, the applicant cannot be expected to modify her behaviour to avoid the harm.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Representative:  Mr Sareth Souk (MARN: 1386983)
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.
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36     Protection visas – criteria provided for by this Act
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(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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