2214857 (Refugee) - [2025] ARTA 1223

2214857 (REFUGEE) [2025] ARTA 1223 (13 JANUARY 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2214857
Tribunal:General Member M Poon
Date:13 January 2025

Place:Brisbane
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 criteria of s 36(2)(a) of the Migration Act

General Member M Poon

Statement made on 13 January 2025 at 9:23am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual man – rejection by most family members, and social bullying and ostracism – debt to loan shark – borrowed to travel to Australia – country information – national, state and religious laws and official and societal discrimination, harassment and violence – modification of behaviour not reasonable – claim of fear of loan sharks not accepted – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 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 (“the Department”) on 27 September 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth)[1].
[1] Unless otherwise stated, all references to legislation are to the Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth)
The applicant who is a national of Malaysia, applied for the visa on 12 January 2020. The Department’s delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia owes protection obligations.
On 14 October 2024, the Administrative Appeals Tribunal (“the AAT”) became the Administrative Review Tribunal (“the Tribunal”). The transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024, gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
The applicant appeared before the Tribunal on 7 January 2025 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s brother (“the witness”), in Malaysia. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
THE DEPARTMENT’S DECISION
According to his protection visa application form, the applicant’s claims for protection were in summary, on the bases that he is a homosexual Muslim man of Malay ethnicity, from Sabah and he has a debt to a loan shark.
The Department invited the applicant to provide additional information in support of his claims. In response to that invitation, the applicant provided written submissions including eight photographs and an academic certificate. The applicant was not invited to attend a hearing.
On 27 September 2022, a delegate of the Department refused to grant the applicant a protection visa. The delegate accepted that the applicant is a gay man and that he borrowed money from a loan shark prior to coming to Australia. However, the delegate found that the applicant’s claims individually and cumulatively do not give rise to a real chance of serious harm, because:
·the applicant does not have a well-founded fear of persecution due to having a debt to a loan shark because there are effective protection measures available to him in Malaysia.
·although the applicant may experience a level of harassment and discrimination on return to Malaysia, it does not amount to a real chance of serious harm.
Consequently, the Department was not satisfied that the applicant is a refugee as defined in s 5H(1), or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of returning to Malaysia, there is a real risk that he will suffer significant harm as defined in s 36(2A). The Department was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under either s 36(2)(a) or (aa).
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s 36, as well as the Migration Regulations 1994 (Cth) at Schedule 2. 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 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.
THE TRIBUNAL’S FINDINGS AND REASONS
The issue for determination is whether the applicant faces a real chance of persecution for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) if returned to Malaysia; and if not, then whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Malaysia, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa).
For the reasons set out below, I find that if the applicant returns to Malaysia, he does face a real chance of persecution and therefore, is a person in respect of whom Australia has protection obligations.
Consequently, I have decided to set aside the Department’s decision and remit the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a).
Mandatory considerations
In accordance with Ministerial Direction No. 84 made under s 499, I have taken account of the “Refugee Law Guidelines” and “Complementary Protection Guidelines” prepared by the Department, and country information assessments prepared by the Department of Foreign Affairs and Trade (“DFAT”) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Country information
I have had regard to a range of country information, including the most recent DFAT report[2].
[2] DFAT Country Information Report Malaysia (24 June 2024)
The following information about homosexuality in Malaysia is relevant to the applicant’s claims:[3]
·Malaysia is a conservative Islamic nation and generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal, regardless of consent or age.
·The impact of the government’s position is more pronounced for Malay-Muslims given expressions of LGBTQIA+ identity are both penal code and Syariah offences.
·According to in-country sources, the environment for LGBTQIA+ people has not improved under the current government. As recently as January 2023, Malaysia’s Prime Minister said that recognising LGBTQIA+ identities and behaviours “will not happen, and God willing under my administration this is not going to happen.”
·In-country sources also reported that people in Kuala Lumpur generally had more acceptance of LGBTQIA+ persons than in East Coast peninsular Malaysia or Sarawak and Sabah. Nevertheless, on 30 October 2022 in Kuala Lumpur, the Royal Malaysia Police (“the RMP”) and the Federal Territories Islamic Religious Department raided a Halloween event attended by LGBTQIA+ community members and arrested more than 20 people. State officials also have conducted raids on private premises, sometimes accompanied by the RMP.
·The level and frequency of discrimination faced by LGBTQIA+ community members varies depending on their sexual orientation, gender identity and degree of openness, socio-economic status, religion and geographic location. Well-educated urban LGBTQIA+ persons with high socio-economic status are less likely than poorer individuals in rural areas, to need to hide their sexuality amongst family and social groups.
·LGBTQIA+ persons who are also Malay/Muslim, poor, transgender and/or live in rural areas, face a high risk of official and societal harassment, discrimination and familial and/or societal violence.
·Domestic violence is a serious problem within the gay community and where police are involved, gay men can face blackmail and extortion from police officers. In addition, same-sex couples are not protected under the domestic violence legislation.
·Sometimes, people stopped by police have their phones checked for LGBTQIA+ related messages and dating apps.
[3] DFAT Country Information Report Malaysia (24 June 2024) at 3.126 - 3.148
The following information about loan sharks in Malaysia is relevant to the applicant’s claims:[4]
·Unlicensed money lending activities are offences under the Moneylenders Act (1951). However, in practice, loan sharks operate openly in Malaysia and charge interest as high as 50%.
·State protection, albeit often ineffective, is available to loan shark victims and formal credit agencies can consolidate loan shark debts and provide payment plans, thereby offering some options for loan shark victims.
·Overall, loan shark victims face a moderate risk of harassment and a low risk of violence from loan sharks and/or gangsters.
[4] DFAT Country Information Report Malaysia (24 June 2024) at 3.153 - 3.154
Evidence before the Tribunal
There is no question that the applicant is a citizen of Malaysia, and that he is a Muslim of Malay ethnicity. There is also nothing before me to suggest that the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. I am satisfied that s 36(3) is not applicable in the circumstances and that Malaysia is the applicant’s receiving country. I have assessed the applicant’s claims against Malaysia.
I have assessed cumulatively, the applicant’s evidence and claims contained in his protection visa application in 2020, his written submissions in response to the Department’s request for additional information in 2022, his pre-hearing written submissions to the Tribunal in 2024 and his oral evidence at the hearing in 2025. I also assessed the oral evidence of his witness.
The applicant’s written submissions to the Department included four photos of himself with [Mr A] (his then partner), taken in Perth in 2016. His written submissions to the Tribunal included three photos of himself with a casual partner named [Mr B] (who the applicant has known since 2022), taken in 2023 at a gay club.
I note that the Department’s delegate made a finding of fact that the applicant is a gay man.
From the materials before me, I also find that the applicant is a gay man. It is not necessary to recount all the evidence about the applicant’s homosexuality; but rather, to focus on the evidence insofar as it relates to the question of whether there is a real risk of persecution to the applicant because of his homosexuality. The applicant’s evidence is that:
·His highest level of education attained is high school.
·He grew up in a conservative community where being gay was not often discussed or accepted. He worried about what his family and friends would think, about being rejected or ostracized. He faced bullying, rejection, anxiety and fear. He faced discrimination, judgment and even violence. He would hide to avoid beatings; villagers threw stones at him.
·Around the age of 18, he was in a homosexual relationship with [Mr C]. He was introduced to [Mr C] by a previous partner [Mr D]. [Mr C]’s family caught the applicant and [Mr C] at [Mr C]’s home. The applicant is not sure who told others about this incident but the story spread throughout the village so that everyone knew. The applicant was humiliated.
·His mother is a very religious Muslim and was angry when she heard about the applicant and [Mr C], from other people. She didn’t want him to bring any males home even if they were only friends to have a meal with. She kicked him out of the house many times for no other reason than his being gay and she feels shame.
·Whenever another male was in the applicant’s company, even if it was a non-sexual friend, others would assume that male is the applicant’s partner or that they were having sex.
·Around the age of 23 he started feeling down and got anxiety. People kept talking bad about him and he felt he wanted to run away from everyone. It’s okay if others make a joke about him once or twice, but if it occurs all the time, it makes him feel stressed and depressed. He just wants to feel like a normal person.
·Around 2012 or 2013, he and [Mr C] worked as [occupation]s at a [workplace]. The manager told them not to return to work after a shift where [Mr C] was seen wiping food from the applicant’s mouth.
·In 2015, when he was 27 years old, he started to do some research and heard about Australia accepting LGBT people like him. He borrowed money from the loan shark and left Malaysia. He planned to get freedom.
·His mother [and siblings] continue to reside on Borneo Island in Sabah. Aside from the witness, his family do not accept his homosexuality.
·He does not really talk much about his sexuality with others. He tried to explain to his mother how he feels. However, his mother said that in Muslim, you can’t have men and women different to traditional belief and they must follow what god says. His mother only wants him to return to Malaysia if he changes to a real man.
Does the applicant have a well-founded fear of persecution if he returns to Malaysia?
The applicant’s evidence was not without inconsistencies. For example, there is reference in the submissions to the Department, to a loan of 50,000 ringgit (approximately $18,000 AUD) from a loan shark, apparently for the applicant’s [business] at the time. But in the pre-hearing submissions and at the hearing itself, the applicant said that he borrowed 15,000 ringgit (approximately $5,000 AUD) from the loan shark for the purpose of coming to Australia, not the [business].
I find the applicant’s explanations for the inconsistencies to be plausible. For example, the applicant gave a detailed explanation that he had help from a person called “[Ms E]” in preparing all the written documents, i.e. the protection application form, the submissions to the Department and the pre-hearing submissions to the Tribunal. The applicant gave [Ms E] all the information and she prepared the documents because he did not have much time as he was busy working. During the hearing when I showed the applicant the submissions to the Department, he said that [Ms E] must have misheard him and mistakenly written 50,000 ringgit instead of 15,000 ringgit. He also explained that there was a loan for the purpose of the [business], but that was about 35,000 ringgit and that was obtained from a small bank. That explanation is consistent with an earlier paragraph in the submissions to the Department as well as the protection application form which contained [an email address] as the form’s submitter and contact for the applicant.
The applicant acknowledged that he should have checked the documents more closely. In any case, the inconsistencies are not sufficiently significant to cause me to reject the applicant’s claims about the intolerance from his family and members of his community, particularly as the witness provided credible and corroborative evidence about their family’s continued objection to the applicant’s homosexuality.
The witness was forthright in his admission that he generally is against homosexuals because Malaysia and Saba are Muslim, but that the applicant is his brother and so whether the witness likes it or not, he is forced to accept the applicant’s homosexuality. Despite his views of homosexuality, he hopes the applicant is happy with his life. The witness also stated that the relationship between the applicant and their mother and siblings became tense after they became aware of the applicant’s homosexuality and that they were always fighting. At the time of those fights, the witness was too young to understand the reason for same. The witness later came to understand the nature of those fights after he finished school and talked more to the applicant.
Having had the opportunity to hear from the applicant in person and from the witness, I am satisfied that the applicant’s claim is genuine. The applicant was visibly moved as he listened to the evidence from his brother.
I accept the applicant’s evidence in relation to his fear of return to Malaysia, which is as follows:
·He fears the trauma and pain, that he will lose everything, that he will lose himself again. Since coming to Australia, he has started to slowly heal.
·He does not know how to change. He will not feel safe if going on a date, or when out together in public places. He wouldn’t be able to kiss in public as homosexuals can be arrested, named and shamed.
·There is a possibility he will be depressed, and he does not want to have problems with anti-LGBT people. LGBT people in Malaysia are definitely not accepted and are always condemned by society.
·His mother wants him to return but only if he changes to a normal person. She is very ill and he could lie to her and say he has changed in order to see her before she dies, but he does not want to do that. He feels sad about the possibility of not seeing her before she dies, but he does not want to lie.
·Sometimes he wants to change religion, but it is very hard to change religion (from Muslim) in Malaysia. And, he has a Christian friend who said it doesn’t matter what religion he is anyway as homosexuals are not acceptable.

Taking all the above into account, I am satisfied that the applicant fears harm because of his membership of a particular social group, namely, Muslim homosexuals (s 5J(1)(a)). The country information in particular, gives me reason to accept that there is a real chance that the applicant will suffer serious harm if he returns to Malaysia and lives openly as a gay Muslim man (s 5J(1)(b)).
As stated above, DFAT assesses that LGBTQIA+ persons who are also Malay/Muslim, face a high risk of official and societal harassment, discrimination and familial and/or societal violence. I note that while Kuala Lumpur may generally be a more accepting environment for LGBTIQ+ persons, DFAT’s current risk assessment is that such persons who are also Malay/Muslim nevertheless face a high risk of harassment, discrimination and violence and Kuala Lumpur has not been excluded from that high risk assessment.
Further, I note that some critics of the Malaysian Mufti (Federal Territories) Bill 2024 have recently expressed concern that the proposed law, if enacted, could have adverse consequences for Muslim homosexuals – including those in the Federal Territories such as Kuala Lumpur – because:[5]
For instance, instead of criminalising sodomy, a fatwa could be issued declaring same-sex relationships forbidden (haram). So, instead of criminalising the act of sodomy, they just criminalise the act of defying the fatwa, not the action itself.
…in February, the Federal Court struck down an attempt to introduce sodomy as a shariah offence, holding that the Kelantan state assembly was not competent to include it as an offence in the state’s Syariah Criminal Code.
The gazetting of a fatwa would potentially allow the Islamic authorities to introduce the same law via the “backdoor”.
[5] SIS warns of potential ‘backdoor’ laws via FT’s mufti bill’, Free Malaysia Today, 1 November 2024
Also, according to the United States Commission on International Religious Freedom:[6]
The role of religious departments in advancing the official Islamic identity can negatively affect the rights of ethnic and religious minorities as well as Muslim members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community. Throughout 2023, Malaysian authorities continued to use the legal system in the name of defending Islam to prosecute businesses and to police social media use. In August, a representative of the government described being queer as “a perverted lifestyle” that went against the teachings of Islam to justify the detention of eight Ahmadiyya Muslim protesters who were campaigning for LGBTQI+ rights. In November, Johor State announced it would open the country’s first permanent “rehabilitation center” for individuals found guilty in Shari’a court of same-sex relations in order to assist “deviant” people to “get back on the right path.
[6] United States Commission on International Religious Freedom 2024 Annual Report, 1 May 2024 at p 65
Given all the DFAT country information and the additional information outlined in paragraphs 34 and 35 above, I find that the real chance of persecution relates to all areas of Malaysia (s 5J(1)(c)). And, considering the DFAT country information about reports of checks on people’s phones for LGBTQIA+ related messages and dating apps, blackmail and extortion by some police officers, and the fact that homosexuality of itself is illegal, I am not satisfied that effective protection measures are available for the applicant (s 5J(2)).
I accept that the applicant cannot take steps to modify his behaviour to avoid the real chance of persecution, other than to conceal his homosexuality, and that such a step is not reasonable (s 5J(3)).
I also find from all the materials before me, that being a gay Muslim man is the essential reason for the applicant’s persecution (s 5J(4)(a)); that the persecution involves serious harm such as significant physical harassment or ill-treatment (s 5J(4)(b)); and that the persecution involves systematic and discriminatory conduct, particularly given the risk of harm is higher for Malay/Muslim homosexuals (s 5J(4)(c)).
For all the reasons above, I am satisfied that the applicant is a refugee as defined in s 5H(1) and thus a person in respect of whom Australia has protection obligations under s 36(2)(a).
For completeness (as it is not necessary given my finding in favour of the applicant in relation to his fear based on the ground of sexual identity) I find that the applicant’s fear of a loan shark is not well-founded. I asked the applicant at the start of the hearing if he still claimed protection on the basis of a debt to a loan shark. He stated he was not. Later in the hearing I asked if he was not fearful of any harm from the loan shark. The applicant answered, “Yeah there still ah… they said like if you not pay, I will find your family, but actually they can’t find my family…”. Considering the applicant’s evidence in totality, I find that if he returned to Malaysia, the low risk of violence from the loan shark and/or gangsters as assessed by DFAT, is not elevated in his particular circumstances.
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.
Date of hearing: 7 January 2025
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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