2300112 (Refugee)
[2025] ARTA 1099
•23 January 2025
2300112 (Refugee) [2025] ARTA 1099 (23 January 2025)
Decision and
Reasons for Decision
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2300112
Tribunal:General Member R Hampson
Date:23 January 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 28 January 2025 at 8:37am
CATCHWORDS
REFUGEE – protection visa – Malaysia – ethnicity and religion – Chinese Malaysian Buddhist – employment discrimination in favour of Malay Muslims – cost of living – delay in applying for protection – limited and general evidence – consent to decision without hearing – responsibility to specify particulars of claims – country information – level of discrimination and hardship does not reach serious harm – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 348(1)
Migration Regulation 1994 (Cth), Schedule 2
Administrative Review Tribunal Act 2024 (Cth), ss 9, 106(3)(b)(ii), (c)
CASE
NAHI v MIMIA [2004] FCAFC 10
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 4 January 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Malaysia, applied for the visa on 30 January 2022.
The delegate refused to grant the visa on the basis that the applicant does not satisfy the definition of a refugee as defined in s 5H(1) of the Act. Accordingly, the delegate found the applicant is not a person in respect of whom Australia has protection obligations as provided for in in s 36(2)(a) of the Act. The delegate did not make an assessment in relation to s 5H(2) of the Act as the applicant was not considered a refugee as defined in s 5H(1) of the act.
According to his protection visa application the applicant is a [Age]-year-old national of Malaysia. he was born in [Town], Pahang, Malaysia. He claims his ethnicity is Malaysian Chinese and his religion is Buddhism.
He states he is single and never married and has no children. He has provided no further information about his family in his application.
The applicant first arrived in Australia [in] April 2007 on an Electronic Travel Authority (Visitor)(subclass 976). He was granted a Bridging visa C on 14 July 2016 which expired ed on 30 September 2016.
Evidence before the Department
He applied for a Protection visa on 30 January 2022 and was granted a further Bridging visa C on 2 February 2022 with conditions of ‘no travel and ‘no work’. The applicant filed a further application to seek permission to work due to a claim of financial hardship and this was granted.
On 12 October 2022 the applicant was required to provide personal identifiers at an office of the Department of Home Affairs. This identification test was completed on 30 November 2022.
The applicant’s written claims as made in his application for Protection to the Department of Home Affairs dated 30 January 2022 are summarised as follows in the applicants’ words:
‘It is hard to stay in my country for many reasons and the main one, of course is racial discrimination. When we apply for any jobs, the Malays Muslims are their priority. Some of my friends who are graduates could not even earn a minimum wage of RM1,200 equal to A$350 (RM5.77 equal to A$1.75 per hour)’.
- ‘Our status (as a Buddhist Malay Chinese person) here in Malaysia is 2nd class citizen if we are not a Muslim, so whatever place we go in my country is going to be the same’.
- ‘As the prices of groceries items and utilities bills here shot up to more than 50% compared to 5 years ago. It is impossible to make end meets.’
- ‘Before I left my country I was emotionally stress as I was facing financial constrain, so hard to find a job.’
- ‘Back in Malaysia, the government policy are still like before, no changes, we non-Muslims are being treated as 2nd class citizens, no equal rights to do whatever we want.’
- The applicant states ‘No’ he will not be able to relocate within Malaysia if he were to return there.
10.In determining the Protection visa application, the delegate considered the Departmental file, Australian case law and specific country information prepared by the Department of Foreign Affairs and Trade specifically for assessing protection obligations.
11.The applicant was not invited to attend a Protection visa interview.
12.The applicant did not provide the delegate with any submissions extra to his application completed online which he stated he had assistance from another person AP to complete the Protection visa application he submitted to the Department.
13.The delegate considered significant country information, case law and the applicants written claims.
14.The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to Malaysia based on his claims nor is he a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia owes protection obligations and who holds protection visa of the same class as that applied for by the applicant under s 36(2)(b) and s 36(2)c) of the Act.
15.On 4 January 2023 the delegate of the Minister for Home Affairs refused to grant the visa on the basis that the applicant did not engage Australia’s protection obligation pursuant to s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
16.The applicant applied to the Administrative Appeals Tribunal (AAT) on 4 January 2023. On 14 October 2024 the AAT was abolished and replaced with the Administrative Review Tribunal (ART). Under the transitional provisions of the Administrative Review Tribunal (Consequential and Transitional provisions No. 1) Act 2024 (the Transitional Act), applications for review that were not finalised before 14 October 2024 are taken to be an application for review before the ART. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
17.This is an application for review of that decision made by the delegate to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958(Cth) (the Act).
18.On 19 December 2024 the applicant was invited by email to attend a hearing on Monday 20 January 2025 to give evidence and present arguments. At this time the applicant was also supplied with a hearing response notice to complete and if he wished to do so to make prehearing submissions up to 7 days before the hearing.
19.On 10 January 2025 the applicant returned this hearing response notice with his signature acknowledging its completion, indicating by ticking a box on this form that he would not attend the hearing scheduled for 20 January 2025 and requested the Tribunal make a decision without a hearing. The applicant made no further submissions at this time.
20.On 17 January 2025 the Tribunal emailed the applicant confirming his request for the decision to be made without holding a hearing had been accepted and a decision will be made based on the information and evidence before the Tribunal and this decision would be sent to him in due course. No additional evidence to that already provided was submitted or included.
CONSIDERATION OF CLAIMS AND EVIDENCE
21.The Tribunal must consider the following points:
- Should the Tribunal proceed to decide the matter without holding a hearing?
- Does the applicant have a well-founded fear of persecution in relation to his home country of Malaysia and meet the refugee protection provisions of the Act?
- Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
Decision without a Hearing
22.The Tribunal for the following reasons has decided to make a decision without a hearing. Section 106 of the Administrative Review Tribunal Act 2024 (cth) (the ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing.
23.Section 106(3)(b)(ii) of the ART Act notes the Tribunal may make a decision without holding a hearing when the applicant requests the Tribunal to do so. In this matter the applicant was invited to attend a hearing on 20 January 2025 to give evidence. The Hearing invitation specifically notes ‘that if you request the Tribunal to make a decision without a hearing, and the Tribunal proceeds to make a decision because it considers the issues can be determined in your absence, this does not guarantee you will receive a favourable decision’. This Hearing is therefore considered an opportunity for the applicant to present his claims and provide further evidence to support them. He did not choose to do so. Instead, he consented to a decision being made without a hearing. There is no ambiguity in this response. The Tribunal is therefore satisfied that the information provided in the response to hearing invitation notice indicates the applicant has made a request for a decision without holding a hearing of a proceeding within the meaning of s 106(3)(b)(ii) of the ART Act.
24.Section 106(3)(a) of the ART Act stipulates that the Tribunal may make a decision without holding a hearing in circumstances where the only parties to the proceeding or hearing of the proceeding are the applicant and the non-participating party.
25.Section 384(1) of the Act stipulates that the Minister is taken to be a non-participating party to a proceeding for review of a reviewable protection decision for the purposes of the ART Act. The Tribunal notes that this matter involves only the applicant and a non-participating party, being the Minister for Immigration and Multicultural Affairs.
26.The Tribunal has also considered the statutory objective of the ART as outlined in Section 9 of the ART Act which says:
The Tribunal must pursue the objective of providing an independent mechanism of review that:
(a) is fair and just; and
(b) ensures that applications to the Tribunal are resolved as quickly, and with as little formality and expense, as a proper consideration of the matters before the Tribunal permits; and
(c) is accessible and responsive to the diverse needs of parties to proceedings; and
(d) improves the transparency and quality of government decision making; and
(e) promotes public trust and confidence in the Tribunal.
Section 106(3)(c) additionally requires that the issues for determination in the proceedings can be adequately determined in the absence of the parties to the proceedings.
Previous Tribunal decisions regarding the meaning and interpretation of the phrase ‘adequately determined’ are referenced. ‘Adequately determined’ is not defined in the ART Act. The Macquarie Dictionary defines adequate’ as ‘equal to the requirement or occasion/ fully sufficient, suitable or fit’ and in a legal context as ‘reasonably sufficient for starting legal action’ in the sense of ‘adequate grounds’. The Tribunal does not consider that ‘adequately determined’ means a decision favourable to the applicant, as if it did, sub-paragraph 106(3)(b)(i), which contemplates a decision being made wholly in favour of the applicant, would be superfluous.
The Tribunal is of the view that in the context of s 106 and the statutory objectives of the ART, ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing in the proceeding, thereby resolving the proceeding quickly, if it also appears to the Tribunal that this can be done in a fully sufficient or suitable manner based on the evidence before it. [1]
[1] Tribunal Number 2017740, Senior Member G. Cullen, dated 1 November 2024.
The Tribunal has considered the applicant has been provided with adequate opportunity to provide evidence and present his claims. He has not done so. He has been invited to a Hearing and included in this invitation is an opportunity to present the Tribunal with further evidence of his claims to be submitted up to 7 days before the scheduled Hearing date. The applicant did not avail himself of this opportunity. The Tribunal has also considered s 5AAA of the Act which states it is the responsibility of the applicant to specify all particulars of their claims. For these reasons the Tribunal finds the issues for determination in this proceeding can be adequately determined in the absence of the parties to the proceeding.
Does the applicant have a well-founded fear of persecution in relation to his home country of Malaysia and meet the refugee protection provisions of the Act?
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
The Tribunal has before it the applicants file from the Department. The Tribunal also has regard to the delegates decision and other relevant country information.
The issue in this case is whether the applicant is a person to whom Australia has protection obligations under the “refugee criterion” or on “complementary grounds”, or he is a member of the same family unit as such a person and that person holds a protection visa of the same class.
39.For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided a copy of his Malaysian passport to the Department. Given this and the fact the Delegate did not indicate any issues with his identity claim or nationality the Tribunal accepts he is a Malaysian national and Malaysia is his receiving country of the purposes of assessing his protection claim.
The Tribunal accepts the applicant is a [Age]-year-old man who came to Australia first [in] April 2007 on an Electronic Travel Authority (Visitor)(subclass 976) visa He did not apply for a Protection visa until 30 January 2022 and was granted a further Bridging visa C on 2 February 2022 with conditions of ‘no travel and ‘now work’. The applicant filed a further application to seek permission to work due to claim of financial hardship and this was granted.
In his application to the Department the applicant has claimed to be the subject of racial discrimination as he is Malay Chinese and a practicing Buddhist living in Malaysia. He claims this racial discrimination affects his ability to be paid appropriately and states he is treated like a ‘second class citizen’ by others and the Malaysian Government. He claims this discrimination regarding a lower rate of pay then affects his ability to pay for goods and services as costs in Malaysia have risen substantially. He claimed this caused him emotional stress and he struggled to find a job. However, he has not provided any further details about these circumstances in which the incidences of discrimination allegedly occurred. He has described this racial discrimination in vague terms and has not elaborated to how this directly applied to him in the context of not being able to get a job.
On reviewing the DFAT (Department of Foreign Affairs and Trade) Country information report on Malaysia the Tribunal notes the experience of Chinese Malaysians in Malaysia. The country information establishes that Chinese Malaysians, constitute over 20% of the Malaysian population, the second largest ethnic group in Malaysia. Further to this the Chinese Malaysians comprise a high proportion of the professional and educated class and are prominent in business and commerce and as such are the wealthier group in the country. Malaysia allows primary and high school education to be taught in the Mandarin language, though low-level discrimination hampers Chinese Malaysians’ attempts to gain entry to tertiary education. There is some barrier for Chinese Malaysians to enter the civil service as much of this business is conducted in Malay and the language barrier can be an issue for Mandarin speaking Chinese Malay people, but it is not prohibitive to their joining.[2]
[2] DFAT Country Information Report Malaysia, 24 June 2024, Pages 14 to 16
It is a matter for the Tribunal as to the weight it gives to country information.[3] The country information indicates that Chinese Malaysians, while experiencing some discrimination, do not face persecution in Malaysia and do not experience serious harm for reason of their race. This is because the discrimination and hardship faced by Chinese Malaysians is not so grave as to threaten their capacity to subsist, given Chinese Malaysians comprise a high proportion of the Malaysian professional and educated class.
[3] NAHI v Minister for Immigration& Multicultural &Indigenous Affairs [2004] FCAFC 10.
Equally DFAT country information on Malaysia specifically notes Buddhists represent just under 20 percent of the total population of Malaysia and most Buddhists are Chinese Malaysian. DFAT assesses Buddhists are generally not at risk of societal discrimination because of their religion. [4]
[4] DFAT Country Information Report Malaysia, 24 June 2024, Page 26
The country information indicates that the applicant, as a Chinese Malaysian, may experience some levels of discrimination and hardship that are common to persons of his ethnicity if he returned to Malaysia. That hardship may include payment discrimination, or a poor social status as raised by the applicant in his claim. The Tribunal finds however that the hardship he may face does not involve serious harm. This is because, as a Chinese Malaysian, the applicant would not experience hardship that would threaten his capacity to subsist. Equally the applicant is of Buddhist religion and country information indicates the applicant as a Buddhist are generally not at risk of societal discrimination because of their religion. The Tribunal finds that the discrimination the applicant may face does not amount to serious harm.
The applicant also stated in his application ‘whatever place we go in my country it is going to be the same’ (referring her to the alleged racial discrimination) and he answered “No’ to the question about his ability to relocate in his home country. As previously referred to in paragraphs 41-44 the Tribunal finds the hardship the applicant may face in any part of the receiving country does not amount to serious harm.
Having regard for s 5AAA of the Act that provides it is the responsibility of the applicant to specify all particulars of their claim and to provide sufficient evidence to establish the claim. For these reasons, in particular, the limited and general evidence before it, the Tribunal does not accept the applicant faced racial discrimination as a Buddhist Malay Chinese. It follows that it does not then accept the applicant suffered emotional distress and could not find a job.
Therefore, the Tribunal is not satisfied there is a real chance of serious harm or any harm in Malaysia from the authorities or other citizens based on his ethnicity and his religion. His fears of persecution based on his ethnicity and his religion are not well founded.
For these reasons the Tribunal is not satisfied the applicant has a well-founded fear of persecution and is not satisfied he meets the refugee criterion as outlined in s 36(2)(a) of the Act.
Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered where it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country of Malaysia, there is a real risk he will suffer significant harm. In this case, the Tribunal finds the applicant is a national of Malaysia and the Tribunal therefore finds that Malaysia is the receiving country for the purposes of s 5(1) of the Act.
For the reasons set out above, the Tribunal has found there is not a real chance the applicant will experience serious harm from anyone due to his ethnicity and or religion if he returns to Malaysia, now or in the reasonably foreseeable future. This is because the discrimination the applicant may face as a Buddhist Chinese Malaysian is not serious harm. The test for real chance under the refugee criteria uses the same standard as the real risk test under the complementary protection criterion. For those same reasons the Tribunal finds that there is not a real risk that the applicant will experience significant harm if he were to return to Malaysia.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H Meaning of refugee
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
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.
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.
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.
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.
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.
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
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.
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.
…
Protection visas – criteria provided for by this Act
…
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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