2302920 (Refugee) - [2024] ARTA 699

2302920 (Refugee) [2024] ARTA 699 (25 November 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Home Affairs

Tribunal Number: 2302920

Tribunal:General Member C Stokes
Date:25 November 2024

Place:Adelaide
Decision:The Tribunal affirms the decision under review.

I, General Member C Stokes certify this is the Tribunal's statement of decision and reasons.
Statement made on 25 November 2024 at 10.30 am
CATCHWORDS
REFUGEE – protection visa – Malaysia – race – ethnic Chinese – racism against non-Muslim people – education – employment – corruption – decision under review affirmed
LEGISLATION
Administrative Review Tribunal Act 2024, ss 9, 106
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 367, 424, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 2 March 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 22 December 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
On 2 March 2023, the applicant applied to the then Administrative Appeals Tribunal for review. By operation of law, on 14 October 2024, that review application was taken to have been lodged with the Administrative Review Tribunal (the Tribunal).[1]
[1] On 14 October 2024, the Administrative Appeals Tribunal (AAT) was replaced by the Administrative Review Tribunal. Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth), applications for review to the AAT not finalised before 14 October 2024 are taken to be an application for review to the Administrative Review Tribunal and the latter is required to continue and finalise any aspect of the review not already completed by the AAT.
The applicant was represented in relation to the review by a migration agent.
On 27 September 2024, the Tribunal wrote to the applicant’s representative by email to advise that the applicant’s file was being prepared to be given to a Tribunal Member. The email asked that a pre-hearing information form be completed. In response to that email, the applicant’s representative asked that the matter be determined on the papers without the need for a hearing as the applicant intended on applying for ministerial intervention due to her exceptional circumstances.
On 31 October 2024, the Tribunal wrote to the applicant’s representative by email to advise that the matter had be constituted to a Tribunal Member and noted the following:
The Tribunal understands that the applicant has requested that the matter be determined on the papers without holding a hearing. The Tribunal Member is only able to do that if satisfied that the issues for determination in the proceeding can be adequately determined on the evidence available to them: see s 106(3) of the Administrative Review Tribunal Act 2024 (Cth).
The relevant evidence available to the Tribunal includes the original protection visa claims and the delegate’s decision refusing the protection visa. To assist the Tribunal in considering whether the issues for determination can be adequately determined on that evidence, please advise whether the applicant has any further information she wishes to provide. Please provide a response within 7 days of this correspondence (7 November 2024).
Please note that if the Tribunal proceeds to make a decision without a hearing, because it considers the issues can be determined in the applicant’s absence, this does not guarantee the applicant will receive a favourable decision.
If the applicant would in fact like a hearing to be conducted please let us know and the Tribunal will schedule one as soon as possible.
That same day, the applicant’s representative wrote to the Tribunal to request a hearing invitation.
On 4 November 2024, the Tribunal sent the applicant’s representative a hearing invitation for the applicant which again emphasised that if the applicant requests 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 the applicant’s absence, this does not guarantee the applicant will receive a favourable decision. The invitation also invited her to provide any witness statements, documents, submissions, country information or other evidence to the Tribunal.
On 8 November 2024, the applicant’s representative wrote to the Tribunal to advise that the applicant will not attend the hearing and requested that the Tribunal make a decision based on the current information and documents.
BACKGROUND
The applicant is [an age]-year-old Chinese Malaysian woman from Sibu, Sarawak. She applied for a protection visa on 22 December 2022, after she had been in Australia for more than 12 years as the holder of various visitor and student visas. She has now been in Australia for more than 14 years having completed a [Qualification 1] at [University 1]. She has been working as [an occupation 1] during her time in Australia.
Evidence before the Department
The applicant’s claims for protection, as set out in an annexure to the visa application, are summarised as follows:
a.She is an ethnic Chinese Malaysian, and since she was a child, she understood that rights for fair education, employment and fair human rights were very hard for Chinese Malaysians because the whole society is controlled by ethnic Malay people. She made up her mind to leave Malaysia and has lost all contact with her family members since leaving Malaysia;
b.The rise of Malay-Islamic identity tied with the rise of political Islam has fuelled racism against non-Muslim people. Since non-Muslim by law are non-Malays, most of hate speech has been directed towards Chinese and Indian people. Many of the Islamic right‑wing groups are using social media to amplify their hate speech towards non‑Malay people;
c.The racist attitude towards Chinese people is explicitly reinforced in the political arena. The Malaysian politics and the political parties are mobilised along racial lines and have been reinforcing racial identity at every level. As an ethnic Chinese, she lacks rights and power, and is looked upon as a second citizen. She has no sense of ownership staying in Malaysia;
d.She left Malaysia because she believes it is difficult to stay there due to corrupt government and the struggle faced by the people to survive.
The applicant provided a copy of the biodata page of her passport along with a copy of her CV which details her education and work history in Australia. The protection visa application did not contain any details of her address, work or education history in Malaysia. It also did not contain any details about her family (other than to note that she has lost contact with her mother and her father passed away when she was [age] years old).
The application form that the applicant completed informed her that she should provide all of her claims for protection and all documentation or other evidence to support her claims. It also informed the applicant that a decision could be made on the information provided in her application and she may not be given another opportunity to present these claims.
On 5 January 2023, the applicant was sent correspondence from the Department which acknowledged her valid application and advised her she could provide additional information relating to her claims and how she could provide this. The correspondence also informed the applicant that the decision on her application could be made without another opportunity for her to present any further information. She did not do so.
The applicant was not invited to an interview with the delegate.
On 2 March 2023, the delegate refused to grant the visa. The delegate did not undertake an assessment of the credibility of the applicant’s claims, but instead considered the country information and:
a.was not satisfied that the applicant would face a real chance of serious harm;
b.accepted that the applicant may face low levels of discrimination on return to Malaysia because of her race, particularly if she attempted to gain entry into the state tertiary system or civil service or operate a business in the private sector. However, given the Malaysian Constitution forbids discrimination against citizens based on their race and, as explained in the country information, there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians, the delegate therefore found that the discrimination the applicant may face in Malaysia would not amount to persecution under the provisions in ss 5J(4) and (5) of the Act; and
c.found there to be no real risk of the applicant facing significant harm as a necessary and foreseeable consequence of removal from Australia to Malaysia for any of the reasons claimed and for all the circumstances before the delegate relating to the applicant.
Evidence before the Tribunal
The applicant provided a copy of the delegate’s decision to the Tribunal.
No further evidence or submissions were provided for the review.
REASONS AND FINDINGS
The issues to be considered in this case are as follows:
a.Should the Tribunal proceed to decide the matter without holding a hearing?
b.Does the applicant have a well-founded fear of persecution in relation to Malaysia and meet the refugee protection provisions of the Act?
c.Does the applicant meet the protection obligations under the complementary protection provisions of the Act?
Decision without a hearing
For the reasons that follow, the Tribunal has decided to make a decision without a hearing.
Section 106 of the Administrative Review Tribunal Act 2024 (ART Act) outlines the circumstances in which the Tribunal may make a decision without a hearing. Namely, the Tribunal can reach a decision without holding a hearing when the applicant requests this (see s 106(3)(b)(ii)) and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding (see s 106(3)(c)).
As outlined above, on 27 September 2024, the applicant requested that the matter be determined on the papers without the need for a hearing as the applicant intended on applying for ministerial intervention due to her exceptional circumstances. Further, on 8 November 2024, the applicant again advised she will not attend a hearing and wished for the matter to be determined on the information and documents before the Tribunal. I am satisfied that the applicant has made a request to make a decision without holding the hearing of a proceeding within the meaning of s 106(3)(b)(ii) of the ART Act.
‘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’.[2]
[2] (accessed 12 November 2024)
Further, the explanatory memorandum to the ART Act notes that:
…the Tribunal must consider that the issues can be adequately determined in the parties’ absence. This means that the Tribunal cannot exercise these powers if there are issues that they consider they cannot resolve without seeking further evidence or submissions from the parties.
…
In relation to subclause (3), ff the decision-maker has elected to not participate in a hearing, the Tribunal should be able to make a decision without a hearing, if the circumstances described above are met. This reflects the principle that parties have a right to present their case to the extent that they are participating in a proceeding (see subclause 55(2)). It would be a perverse outcome if the matter could not proceed without a hearing in circumstances where the applicant consents, and the only other party to the matter has elected not to participate in any hearing.
…
This clause supports the objective of the Tribunal resolving matters as quickly and with as little formality and expense as a proper consideration of the matters permits, especially given the time and resources required to conduct a substantive hearing.
The Tribunal has also considered that:
a.the applicant has been provided with a number of opportunities as outlined above by the Department and Tribunal to provide further evidence and information as to her claims. She was invited to attend a hearing in the Tribunal to give evidence and present arguments. This was an opportunity for her to further present her case and to provide further evidence. Despite being offered those opportunities, and the Tribunal informing the applicant that there was no guarantee of a favourable decision on the papers, the applicant has made it clear that she has no further information or evidence to provide the Tribunal and has declined to attend a hearing;
b.s 5AAA of the Act states that it is the responsibility of an applicant to specify all particulars of their claims;
c.s 9(b) of the ART Act states that the statutory objective of the Tribunal includes ensuring that applications are resolved as quickly and with as little formality and expense as a proper consideration of the matters permits;
d.the Tribunal has the applicant’s original protection visa claims, the delegate’s decision refusing the protection visa and an indication from the applicant she has no further evidence or information to provide.
In the context of s 106 of the ART Act, as well as the statutory objectives of the Tribunal, I consider that ‘adequately determined’ means that the Tribunal may make its decision without holding a hearing, thereby resolving the proceeding quickly, if it also appears to the Tribunal that the issues can be determined in a fully sufficient or suitable manner based on all the evidence before it.
I am satisfied in the circumstances that the issues for determination in the proceeding can be adequately determined, in the absence of the parties to the proceeding, on the evidence available to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
For the following reasons, I have concluded that the decision under review should be affirmed.
Country of reference: Malaysia
The applicant claims to be a Malaysian national and provided a copy of her Malaysian passport as evidence. I accept she is a Malaysian national and find Malaysia is her receiving country.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims she will face serious harm in Malaysia by reason of her Chinese Malaysian ethnicity. In particular, she claims that the rise of Malay-Islamic identity tied with the rise of political Islam has fuelled racism and hate speech against Chinese Malaysians, she lacks political rights and power because she is Chinese Malaysian and she left Malaysia as the Malaysian government is corrupt and people struggle to survive.
I have had regard to a range of country information, including the most recent DFAT Report[3] which provides information in relation to the situation in Malaysia as follows:
a.Malaysia is a multi-ethnic country with longstanding affirmative action policies that benefit Malays and Indigenous peoples (known as Bumiputera). These policies give preferential treatment in areas including public service jobs, higher education, property ownership, government contracts and housing, and were introduced as part of a social engineering program that followed race riots between the Malays and ethnic Chinese in May 1969. Although these policies were supposed to be temporary measures some have remained in place.[4]
b.Article 8(2) of the Constitution forbids discrimination against citizens based on religion or race. Article 153(2) accords a ‘special position’ for ‘the Malays and natives of any of the States of Sabah and Sarawak’, thus permitting affirmative action policies.[5]
c.Non-Bumiputera, comprising mainly ethnic Chinese and ethnic Indians (at 22% and 7% of the population, respectively), enjoy full citizenship and property rights but frequently voice concerns about marginalisation.[6] There are no laws or constitutional provisions that directly discriminate against Chinese Malaysians and they freely participate in political life.[7]
d.Chinese Malaysians remain one of the largest overseas Chinese communities in the world and are Malaysia’s second-largest ethnic group. Chinese Malaysians comprise a high proportion of the professional and educated class, are prominent in business and commerce, and tend to be wealthier than other ethnic groups in Malaysia.[8]
e.DFAT assesses that Chinese Malaysians experience low levels of official discrimination when attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector.[9]
f.In recent decades, local and international observers have noted the increasing influence of conservative Islamic ideas in Malaysian politics and society, a phenomenon described as ‘Islamisation’. The rise of the Malay-Islamic identity and of political Islam is reportedly also fuelling racism against non-Muslims, with the brunt of hate speech such as racial slurs and threats on social media by Malay politicians (stoking ethnic tensions for political gain), their supporters, and other controversial figures, being directed toward the largest minorities comprising the Chinese and Indian communities. It is reported that the government takes little if any action against this.[10]
g.The World Bank classifies Malaysia as an upper middle-income, export‑oriented economy. Malaysia’s strong economic performance over the last few decades has led to a significant reduction in poverty. Poverty rates are higher in rural areas, especially in Kelantan, Sabah, Sarawak and Kedah states. The COVID-19 pandemic had a major economic impact on Malaysia, particularly on the most vulnerable. Poverty rates rose and growth fell due to the COVID-19 pandemic in 2020 and 2021, although the economy has since recovered. Ongoing economic challenges include inflation and cost of living increases, as well as high levels of household debt. In April 2023, the Department of Statistics Malaysia reported an unemployment rate of 3.4%, the lowest since the COVID-19 pandemic.[11]
h.Transparency International’s 2022 Corruption Perceptions Index (CPI) ranked Malaysia 61st out of 180 countries and territories. Malaysia’s CPI ranking has remained largely steady over the last 10 years, although corruption remains a significant concern. According to in-country sources, many ordinary Malaysians perceive important institutions to be corrupt. For example, in-country sources reported that 95 per cent of Malaysians perceived the police as corrupt and able to be bribed, and a Transparency International Corruption Barometer survey found almost half of Malaysians surveyed perceived the police as corrupt. Nevertheless, GAN Integrity reported in 2020 that it was uncommon to be required to pay bribes to access government services in Malaysia.[12]
[3] DFAT, Country Information Report: Malaysia (24 June 2024) (DFAT Report).
[4] Ibid, [2.2]
[5] Ibid, [3.2]
[6] BTI 2024 Country Report Malaysia, Bertelsmann Stiftung, 19 March 2024, p 7
[7] DFAT Report, [3.12]
[8] DFAT Report, [3.11]
[9] Ibid, [3.15]
[10] J Chin, The Political Quarterly 93(3), Racism towards the Chinese Minority in Malaysia: Political Islam and Institutional Barriers, July 2022, p 6
[11] Ibid, [2.7]-[2.10]
[12] DFAT Report, [2.20]-[2.21]

While I accept the applicant is a Chinese Malaysian as claimed, the applicant has not provided any information to the Tribunal detailing the harm or disadvantage as a Chinese Malaysian she suffered or fears to suffer in Malaysia. In particular, she has not provided any details of her economic or financial circumstances, how the political situation in Malaysia impacts her or what rights or power she lacks. There is no information before the Tribunal about whether she was denied education or work opportunities in Malaysia due to her ethnicity or that she was struggling or will struggle to survive on return. I consider if there was information to provide she would have provided a more detailed statement, documents or at least attended a hearing to give oral evidence.
While I accept there are some affirmative action policies that give preferential treatment to Bumiputera, I do not accept the applicant lacks political rights or power because she is Chinese Malaysian given the country information indicates that non-Bumiputera enjoy full citizenship and property ownership rights, there are no laws or constitutional provisions that directly discriminate against Chinese Malaysians and they freely participate in political life.
I also accept based on the country information that there has been a recent rise in Islamisation and hate speech towards non-Muslims in Malaysia. However, the applicant has not claimed to be subject to hate speech or to fear harm based on any hate speech that may be directed towards her. She has also not claimed to have spoken out against Islam or the Malaysian government’s lack of action in relation to incidents of hate speech against non‑Muslims or to have come to the attention of the government in any way.
While I accept corruption in Malaysia remains a concern, I do not accept any government corruption impacted the applicant given the lack of details and evidence before the Tribunal about any such corruption and given the country information indicates it is uncommon to be required to pay bribes to access government services in Malaysia.
I note that according to the country information, Chinese Malaysians tend to be wealthier than other ethnic groups in Malaysia, Malaysia has a growing upper-middle income economy with low unemployment and decreasing levels of poverty, and the government has changed since the applicant left more than 14 years ago.
I do not accept the applicant would be harmed for any of the reasons she has claimed if she returns to Malaysia in the reasonably foreseeable future. While as a Chinese Malaysian she may encounter some low levels of official discrimination if attempting to gain entry into the state tertiary system and the civil service, including when seeking a promotion, or when opening or operating a business in the private sector, on the evidence I am not satisfied the applicant faces a real chance of being harmed due to her ethnicity, now or in the reasonably foreseeable future, should she return to Malaysia
I find the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee as defined in s 5H of the Act. I find she does not meet the refugee criterion in s 36(2)(a) of the Act.
Does the applicant satisfy the complementary protection criterion?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa).
I have found the applicant does not face a real chance of serious harm in Malaysia. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[13] For the same reasons given above, I find there is not a real risk the applicant will suffer significant harm.
[13] MIAC v SZQRB (2013) 210 FCR 505
I find there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Malaysia, there is a real risk that she will suffer significant harm. I find the applicant does not meet the complementary protection criterion.
Conclusion
For the reasons given above, I am 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). I am 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.
Representative for the applicant: Stanley Chan
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
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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