2217931 (Refugee) - [2024] ARTA 636

2217931 (REFUGEE) [2024] ARTA 636 (19 NOVEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2217931
Tribunal:General Member T Ellison
Date:19 November 2024

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 criterion:
·s 36(2)(a) of the Migration Act.

General Member T Ellison
Statement made on 19 November 2024 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – homosexual woman – relationship hidden and now ceased – no past harm – fear of rejection by family and punishment by authorities – limited documentation explained by circumstances – country information – Muslims subject to state-based syariah laws as well as national laws – real chance of persecution in all areas of country – modification of behaviour not permissible – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (2), (3), (4), 5LA, 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Appellant S395/2002 v MIMA (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
ESD17 v MIBP [2018] FCA 1716
MMM v MIMA (1998) 90 FCR 324
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 6 December 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for review to the Administrative Appeals Tribunal (AAT). On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegate’s decision by the Tribunal.
The applicant, who claims to be a citizen of Malaysia, applied for the visa on 31 January 2020. The applicant claimed to fear harm based on her sexual orientation as a lesbian and her ongoing relationship with another female. The delegate, whilst expressing reservations as to the applicant’s claims but ultimately accepting them, refused to grant the visa on the basis that any official, societal and familiar discrimination that the applicant may face would not reach the threshold to constitute persecution or serious harm.
The applicant appeared before the Tribunal on 11 November 2024 to give evidence and present arguments. The Tribunal received oral evidence from the applicant and [Ms A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages.
The issue in this case is whether the applicant is 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.
For the following reasons, I have concluded that the decision under review should be set aside and the matter remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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, I have taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s personal background
The applicant is a [Age]-year-old woman from Kota Kinabalu in Sabah, Malaysia. She is of Muslim faith. Whilst in Malaysia, the applicant lived in Kota Kinabalu, attended school and later worked in a [workplace 1] for several years. She has never been married.
The applicant arrived in Australia [in] November 2019 as the holder of a UD-601 Electronic Travel Authority, where she has remained since. The applicant lodged her application for a protection visa on 31 January 2020.
Claims and evidence before the Department
In the applicant’s protection visa application, she stated that she was seeking protection because she was in a lesbian relationship, which was illegal in Malaysia and that she would face heavy punishment if caught.
At the request of the Department under s 56 of the Act, the applicant provided further information by letter dated 21 May 2022 (the letter), which attached three photographs of two females together, and screenshots of text messages.
The letter stated that the applicant first became attracted to a person of the same gender at the age of 17 years, that she formed a relationship with [Ms B] in Malaysia, that she lived with [Ms B] for a year in Malaysia, that they planned to move to Australia together, that [Ms B] went to [Country] and was stuck there due to COVID-19 border closures and, as at the date of the letter, they were in a long-distance relationship. The applicant also stated that her sexuality conflicted with her religion.
The photographs depicted two females together, including hugging, and screenshots of text messages purportedly with [Ms B] included kiss emojis, and a message stating ‘I love u’.
The applicant was not invited to attend an interview with the Department.
Claims and evidence before the Tribunal
At the hearing before the Tribunal, the applicant gave evidence that she could only read a little bit of English. The applicant said she was assisted by a friend in the preparation of her protection visa application and the letter.
The applicant was initially asked about her family. The applicant gave evidence that her mother and father live in Kota Kinabalu and that neither parent has visited her in Australia. The applicant gave evidence that she has [one sibling] who lives in Malaysia and [another sibling] who lives in Australia. The applicant confirmed that, as stated in her protection visa application, she attended school in Malaysia and later worked in a [workplace 1].
The applicant said she came to Australia to meet up with her partner [Ms B]. She said she travelled to Australia with a friend named [Ms A].
The applicant said that she feared returning to Malaysia because she was scared and worried that her mother would not accept her partner, and that her family would not give their blessing. The applicant said she was scared her family might hurt her but clarified that she was not scared of being attacked or assaulted. The applicant initially said she did not fear police, but later said that she had heard of a friend of a friend who had been punished in Malaysia for LGBTI behaviour and was worried it could happen to her. The applicant said the three photos depicted the applicant and [Ms B] together, including in Kuala Lumpur. The applicant confirmed the screenshots of text messages depicted messages sent between her and [Ms B].
The applicant was asked about the contents of the letter. For the most part, the applicant’s evidence was consistent with the letter. The applicant confirmed that she lived with [Ms B] in Malaysia, however said this was for 2 years, and that another friend also lived with them. She gave evidence that she was happy with no problems in Malaysia, but that she did not tell many people of her relationship and tried to hide her relationship.
However, the applicant denied she told her family about her relationship in Malaysia (as was stated in the letter), and as such, this aspect of her evidence was inconsistent with the letter. The applicant explained this as an error made when her friend wrote the letter. According to the applicant, only her sister was aware of her relationship with [Ms B].
The applicant gave evidence that [Ms B] moved to [Country] to work in a [workplace 2]. The applicant said she understood that [Ms B] was unable to get a visa to visit her in Australia. She said she broke up with [Ms B] in about 2023, having been in a long-distance relationship between 2019 and 2023. The applicant said [Ms B] found someone else.
The applicant gave evidence that since she broke up with [Ms B], she has had only one relationship with a person named [Ms C] that lasted a few months. The applicant said she met her through a friend.
The applicant confirmed she identifies as a lesbian, and is looking for a female partner through friends. The applicant said she is not on any dating websites. The applicant said she attended a pride march in Adelaide but was unable to give details as to when or where this specifically occurred.
The applicant said she does practise her religion and when asked how her sexual orientation fitted with her religion she said she knows it is not right but follows her heart.
The applicant was asked about returning to Malaysia. She said she did not know where she would live. She said she would look for a female partner in Malaysia, and knew female friends who were in same-sex relationships. The applicant said she knows those friends are not treated very well and that people look at them and say ‘this is wrong.’ She was unaware of any of the friends having trouble with police.
The applicant’s friend [Ms A] gave evidence. [Ms A] said she had known the applicant since 2017. They met through friends in Kota Kinabalu. [Ms A] said she came to Australia with her then-partner, and the applicant. [Ms A] said she did not like the situation in her country for LGBTI relationships. [Ms A] said she knew [Ms B] in Malaysia. [Ms A] was aware of the applicant’s relationship with [Ms B] but [Ms A] appeared to lack any knowledge of the applicant and [Ms B] living together in Malaysia. [Ms A] did not know of the applicant having any other relationships in Australia. [Ms A] said the applicant was looking for a relationship with a female but had not found one. [Ms A] was unaware of the applicant attending LGBTI events as she thought the applicant was scared to expose her sexual orientation.
Analysis, reasons and findings
Country of nationality
The applicant provided a copy of her Malaysian passport. She has consistently claimed to be from Malaysia. I am satisfied that the applicant is a national of Malaysia and that Malaysia is the receiving country and her country of nationality. There is no evidence to suggest that the applicant has a right to enter and reside in any other country and, as such, I find that s 36(3) of the Act does not apply.
Personal background and claims for protection
The applicant lodged her application for a protection visa almost 5 years ago. The applicant has been consistent as to her central claim for protection, related to her same-gender relationship and sexual orientation. She has also been consistent about her relationship with [Ms B]. The applicant has provided some documentary evidence in the form of photos and screenshots of text messages to support her claimed relationship with [Ms B]. Whilst on one view the photos and messages could be interpreted to be that of close friends, they are probative of the existence of a romantic relationship when viewed with the sworn evidence of the applicant. The applicant’s sexual orientation is corroborated by the sworn evidence of [Ms A] who has known the applicant for 7 years.
The documentary evidence provided in support is somewhat limited. However, I am satisfied that an explanation for this is the applicant’s religion and her previous conduct to hide her relationship. There are, also, some inaccuracies in the protection visa application and letter. In the protection visa application, the applicant only listed having lived at one address between [Year] and 2019 (that of her parents), and alleged she had suffered harm in Malaysia when that was not correct. The letter incorrectly stated that the applicant had told her family of her relationship with a girlfriend, when at the hearing she said that she had only told her sister. However, the applicant readily conceded that this was incorrect and did not seek to blame others. I am satisfied that the errors can be attributed to the applicant needing assistance to prepare the documents and not being in a position to read English to any great extent.
When one considers those matters, they do not cause me to doubt the applicant’s central claims which have been consistently presented. As such, I accept that the applicant identifies as a lesbian, has been in two same-sex relationships (including with [Ms B]) and came to Australia to be in a relationship with [Ms B]. I am satisfied that the applicant has not told her parents or brother of her sexual orientation. I am satisfied that if the applicant returned to Malaysia, that she would wish to engage in same-sex relationship(s). I am satisfied that the applicant fears rejection by her family and punishment by the authorities in Malaysia.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[1]
[1] Chan Yee Kin v MIEA (1989) 169 CLR 379.
I first consider whether the applicant’s fear involves a real chance of serious harm as required by s 5J(1)(b) and (4)(b).
In considering whether there is a real chance, I have had regard to relevant recent country information as to the situation in Malaysia for lesbian persons and persons in same-sex relationships. I am conscious that country information sources often consider the situation for LGBTQIA+[2] persons (or some categories thereof) collectively. Where available, I have had regard to information as to the situation for lesbian persons specifically and have been conscious of any differences in the treatment of different categories of people. I have found the following information significant.
[2] A term which includes lesbian, gay, bisexual, transgender and/or intersex.
First, Malaysia is a conservative Islamic nation[3] and approximately 63.5 per cent of the Malaysian population practice Islam.[4] The legal system consists of common law administered at federal level, and Islamic religious law, known as syariah, administered at state level.[5] LGBTQI+ behaviour is viewed as unacceptable in the Islamic community.[6]
[3] DFAT, DFAT Country Information Report Malaysia, 24 June 2024, [3.126].
[4] Ibid [3.35].
[5] Ibid [3.40].
[6] US Department of State, Country Reports on Human Rights Practices for 2023 – Malaysia, 22 April 2024, 42.
Second, there are over 50 laws that criminalise different forms of LGBTQIA+ behaviour in Malaysia. These laws have been promulgated under both the federal Penal Code and state-based syariah laws (which apply to Muslim persons only). Whilst investigation of such offences (including raids) is reasonably common and prosecutions have taken place under these laws, successful prosecutions are rare.[7] However, the laws have been used against lesbian persons. For example, in 2018, two women were sentenced in a syariah court to strokes of the cane and a fine after convictions for having lesbian sex.[8] In early 2022, there were four arrests of women for syariah offences. [9] Despite the suggestion that some state-based syariah laws are unconstitutional, there are syariah laws criminalising LGBTQIA+ behaviour continuing to be passed.[10]
[7] DFAT, above n 3, [3.127], [3.131], [3.138].
[8] Ibid [3.131].
[9] Ibid [3.138].
[10] Ibid [3.127].
Third, government officials, including the prime minister, have rejected the suggestion that LGBTQIA+ persons will be recognised and protected.[11] Instead, authorities at federal and state level have promoted so-called rehabilitation or re-education programs aimed at changing sexual orientation.[12] These programs have a harmful impact on LGBTQIA+ people, including stress, anxiety and isolation.[13] Further, LGBTQIA+ couples report discrimination in employment, housing and access to some government services.[14]
[11] Ibid [3.129]; UK Home Office, Country Policy and Information Note Malaysia: Sexual orientation and gender identity or expression, 12 July 2024, [3.1.8], [8.1.13].
[12] Ibid [3.132].
[13] SUARAM, Malaysia Human Rights Report 2023, 27 March 2024, 170, 172.
[14] US Department of State, above n 6, 40.
Fourth, in society more broadly, online abuse against people who raise LGBTQIA+ issues online is common,[15] and discriminatory and hate speech against LGBTQIA+ people is high and unaddressed, including incitement of hostility, discrimination and violence.[16] Further, LGBTQIA+ people have reported extortion, invasion of privacy, harassment and intimidation,[17] and violence against LGBTQIA+ persons is common, and at times police have perpetrated and condoned such violence, including against individuals in custody.[18]
[15] DFAT, above n 3, [3.133].
[16] SUARAM, above n 13, 176.
[17] SUARAM, above n 13, 167.
[18] US Department of State, above n 6, 40; UK Home office, above n 11, [4.1.2].

Fifth, and in relation to lesbian persons specifically, whilst lesbian persons are less visible than other members of the LGBTQIA+ community, there are particular risks to lesbian persons including forced heterosexual marriages (which are common) and being confined to the family home due to cultural stigma.[19]
[19] DFAT, above n 3, [3.138].
As such, in its most recent country report on Malaysia, DFAT expresses the view that:
[3.148] ...members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people 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...[20]
[20] The terms high risk, moderate risk and low risk are defined in the report.
As SUARAM has observed[21] (and is apparent from the above), the criminalisation of LGBTQIA+ behaviour has a systemic impact on all areas of their lives, including being able to be free of violence, harassment and intimidation. Because of that criminalisation and involvement of police in harassment and intimidation, LGBTQIA+ persons have limited ability to seek redress for such treatment.
[21] SUARAM, above n 13, 167.
The applicant is at a higher risk of being subjected to such treatment as a person of Muslim faith (including by being subject to syariah laws which criminalise sexual activity between women) in comparison to non-Muslims in Malaysia.
In my view, should the applicant be returned to Malaysia, there is a real chance that, as a woman of Muslim faith in Malaysia who identifies as lesbian (and may in the future enter a same-sex relationship), she would be subject to physical harassment or physical ill-treatment (and therefore serious harm) for the purposes of s 5J(4)(b) of the Act. Such physical harassment or physical ill-treatment may be perpetrated by the authorities or members of society who view LGBTQI+ behaviour as unacceptable. I consider that the real chance of serious harm includes the chance of prosecution, detention (and mistreatment therein) and/or punishment under laws preventing same-sex sexual acts, which cannot be described as laws of general application and are instead laws specifically targeting a group recognised under s 5J(1)(a) of the Act.[22] The applicant’s past experience in Malaysia where she had no problems is not a good indicator of future persecution given that she hid her relationship and her sexual orientation.
[22] MMM v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 324.
As country information demonstrates, the applicant’s membership of a social group, being a Muslim woman from Malaysia who identifies as lesbian (being an innate or immutable characteristic, or otherwise fundamental to the applicant’s identity or conscience under ss 5L(c)(i) and (ii) of the Act), would be the essential and significant reason for persecution: s 5J(4)(a) of the Act. That is because the serious harm would involve specific prosecution and punishment for the reason of engaging in LGBTQIA+ behaviour, or otherwise motivated by the actions of persons who have an intolerance of LGBTQIA+ lifestyles. The persecution that the applicant would be subject to involves systematic and discriminatory conduct as required by s 5J(4)(c) of the Act.
Whilst the chance of serious harm may be lower in some areas of Malaysia than others (for example, Kuala Lumpur),[23] I am satisfied that there is a real chance of persecution in all areas of Malaysia including Kuala Lumpur[24] as required by s 5J(1)(c).
[23] UK Home Office, above n 11, [3.3.3]; DFAT, above n 3, [5.25].
[24] See for e.g. UK Home Office, above n 11, [3.1.11], [3.1.18]; DFAT, above n 3, [3.130].
I am satisfied that effective protection measures are not available to the applicant. Whilst the state could provide protection, I am satisfied that it is not willing to do so given enforcement of laws that criminalise different forms of LGBTQIA+ behaviour, and the fact that police have perpetrated and condoned violence upon LGBTQIA+ persons: ss 5J(2) and 5LA of the Act.
Any modification to the applicant’s behaviour to avoid a real chance of persecution would involve the applicant concealing or hiding her sexual orientation (and any relationship that existed), which would amount to a modification that would conflict with a characteristic that is fundamental to the person's identity or conscience, conceal an innate or immutable characteristic of the applicant, or alter her sexual orientation, so as to be impermissible modifications under ss 5J(3)(a), (b) and (c)(vi) of the Act. The applicant cannot be expected to hide her sexual orientation or future same-sex relationships from others as she did when she last lived in Malaysia, in order to avoid persecution.[25]
[25] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716.
For those reasons, I am satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act.
I am therefore 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 Act.
Hearing:  11 November 2024
Representative:  N/A
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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