2306966 (Refugee) - [2024] ARTA 781

2306966 (REFUGEE) [2024] ARTA 781 (15 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2306966
Tribunal:General Member T Ellison
Date:15 December 2024

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

General Member T Ellison
Statement made on 15 December 2024 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Malaysia – membership of particular social group – bisexual man – female partner but seeking same-sex activity – short video recording of claimed male partner – evidence suggests friendship rather than relationship – no activity in Australia – pressure from father to marry and observe Islam – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(b), 36(2)(a), (aa), (2A), 56, 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
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 17 May 2023 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, a national of Malaysia, applied for the visa on 4 December 2019. The delegate refused to grant the visa on the basis that, although accepting the applicant’s claim to be a bisexual man, there was not a real chance that the applicant would be persecuted by state authorities in Malaysia and the level of discrimination the applicant would be likely to face does not involve serious harm.
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 affirmed.
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) (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 (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
Applicant’s background
The applicant is a [Age]-year-old man from [Location] in Kedah, Malaysia. He is of Malay ethnicity and Muslim faith. The applicant completed high school in Malaysia. The applicant’s parents and brothers live in [Location], and his sister is in Australia. The applicant has never been married nor does he have any children.
The applicant arrived in Australia [in] September 2019 as the holder of a visitor visa, where he has remained since. The applicant lodged his application for a protection visa on 4 December 2019 and provided a copy of his Malaysian passport recording his nationality as Malaysian. The applicant’s receiving country as that term is used in the Act is Malaysia.
Evidence before the Department
In his protection visa application, the applicant claimed that he left Malaysia as he was afraid of being caught for being bisexual. The applicant stated he had a female partner but was seeking sex with the same gender because that was the only way he could fulfil his desire for sex without the consequence of pregnancy. The applicant stated that Malaysia is not accepting of bisexuals, and he feared being put in jail or physically harmed by family or society.
The Department invited the applicant, under s 56 of the Act, to provide further information as to his claims, including when he was first attracted to men, details of any relationships he has been in, whether his family knew about his sexuality, any experiences of harm in Malaysia and any involvement in the LGBTI[1] community in Australia.
[1] A reference to lesbian, gay, bisexual, transgender and intersex.
The applicant provided a document in response addressing these matters in a question and answer format (the response). The applicant provided a video recording of a male who identifies himself as [Mr A] and states that he had a relationship with the applicant since 2016, planned to live in Australia together but he had to return back to Malaysia, states that they love each other and soon they will meet again (the video). The video was provided to the Department on 2 May 2022.
Evidence before the Tribunal
The applicant provided the Tribunal with a pre-hearing information form where he confirmed he needed protection because he is a bisexual. The applicant also submitted extracts from Wikipedia on the topic of LGBT rights in Malaysia. The applicant also provided another copy of the video.
The applicant appeared before the Tribunal on 28 November 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Malay and English languages. The applicant was able to converse in English and chose to consider and respond to all questions in English, other than one question in which he relied upon clarification through the interpreter.
The applicant was invited to appear for a further hearing but declined to participate and requested the Tribunal proceed to make a decision.
Where relevant, the applicant’s oral evidence is discussed below.
Analysis, reasons and findings
At the hearing, I asked the applicant why he feared going back to Malaysia. He responded that it was because they do not allow the LGBT community in Malaysia. He said he is more for the man than the girl. The applicant went on to explain the potential harm he faced because of this: it is very hard to find a job because employers would think he is a ‘shit guy’ because he doesn’t have feelings for girls, people would think he is disgusting and not want to become his friend, he would face his father’s anger because he has not married a girl, and would be ‘harm[ed]’ by the community, and he said that the law is very hard for LGBT persons and they will catch you and put you in prison. He said it is very hard for him to stay in Malaysia as an LGBT person. I confirmed with the applicant that his fear of harm was based on his attraction to men.
The applicant said he did not fear harm for any other reason, but went on to say that his father and family would ask him to marry a girl and to become religious/Muslim again noting he has stopped praying. He then referred again to his fear of police based on his status as an LGBT person and this not being allowed in his religion of Islam.
Attraction to men
At the hearing, I told the applicant I needed to consider whether he was genuinely attracted to men. In summary, I do not find the applicant’s claim of attraction to men to be credible. In reaching this view, I have had regard to inconsistencies within the applicant’s evidence, as well as other reasons detailed below.
At the hearing, I asked questions of the applicant about his attraction, including whether he was attracted to females, and whether he was bisexual or gay. The applicant responded by saying that he has tried relations with females but guys understand his feelings, that half of his feelings are to the guy, that he has tried with a girl but ‘can’t’, and reiterated guys know about his feelings. He said he is attracted to guys ‘for now’. In response to being asked whether he was gay, he said he was not sure because he did not have a partner in Australia.
I also asked the applicant about his realisation of his attraction to men whilst he was in Malaysia. He gave evidence that he was attracted to a guy at high school when he was around 15 years old. The applicant said a male defended him from bullies at school and then he thought ‘men know much better about men’, that a male had protected him from danger, and since then the applicant had more feelings ‘for the man than a girl’. I asked the applicant how his realisation of his sexuality made him feel. The applicant said men care about him, have more responsibility, and, for example, ask ‘how was your day’ and so men are better than girls. The applicant said men do not hurt his feelings and give him ‘me time’, whereas girls ask for attention.
Whilst the applicant provided reasons for being attracted to men, the applicant’s evidence in relation to how he became aware of his attraction to men came across as artificial and did not appear to be recounted from personal experience. Whilst the applicant identified how men make him feel or why he considered they are better partners than women, he did not engage to any great extent with the question about how the realisation of his sexuality made him feel. I did not find this evidence persuasive of the applicant having a romantic or sexual attraction to men.
I next asked the applicant about his relationships with men in Malaysia. He said after high school he kept his feelings secret until 2018 when he met ‘[Mr A]’, who was the uncle of his brother’s wife, at a birthday party. The applicant said [Mr A] gave him ‘good service’ by giving food, water and drinks at a party, which made him think ‘this is a good guy’. The applicant said they exchanged phone numbers and then later commenced a relationship. The applicant said he saw on [Mr A]’s [Social media] that he always hung out with guys and hugged them in photos. This, so the applicant said, led the applicant to ask why [Mr A] was always close with guys. The applicant said [Mr A] told him that he also likes guys. The applicant said once they had a relationship they hung out in secret and hid this from each other’s family. The applicant said he would not go out with him in the daytime, only nighttime, to avoid being seen, and that they only went on dates 1-2 times. He said it was a secret relationship.
The applicant’s reason for his initial attraction to [Mr A] was based upon [Mr A] giving good food and drink service. The applicant did not suggest any physical attraction. The applicant’s evidence that he went only on 1-2 dates is not persuasive of a relationship which based upon the applicant’s evidence in his response was supposed to have commenced on 25 December 2016, and based upon the applicant’s evidence at hearing commenced in 2018, and lasted until at least September 2019 when he came to Australia. The evidence was not persuasive as to this being any more than a friendship whilst the two were in Malaysia.
I also asked the applicant about whether he socialised with LGBT people in Malaysia. The applicant mentioned parties and said he would ‘always go with [Mr A]’; the applicant said it was a secret party. The applicant said he thought he went to a secret party twice, and it was at a house, a friend’s house and they drank and sang. I asked the applicant to tell me more about it and he said ‘nothing more’ just that that they had ‘fun with each other’, and said he only stayed a couple hours because he did not want to get into trouble. The applicant’s explanation lacked detail as to these parties and indicated to me that the applicant was not recounting a personal experience.
The applicant went on to give evidence that he and [Mr A] came to Australia in 2019 to create a new life but after 1 week in Australia, [Mr A] needed to go back to Malaysia because his mother was sick. I asked the applicant to tell me further about this. The applicant said [Mr A] has not come to visit him in Australia, and he is still waiting, and [Mr A] keeps telling the applicant his mother is not well enough. The applicant said they keep in contact on social media. The applicant said they last spoke via social media in December last year, and the applicant thought [Mr A] has a new partner because he saw on social media that [Mr A] met a guy in Kuala Lumpur in the last few months. I asked the applicant whether they were still in a relationship and he said he did not know.
I do not find the alleged sickness of [Mr A]’s mother, which must have now spanned over 5 years, to be a credible explanation for the two not having seen each other for over 5 years if indeed they were in a genuine relationship. As I told the applicant, the evidence that [Mr A] never came back causes me to doubt they were ever in a genuine relationship. The applicant said maybe [Mr A] worried that he would make a problem with the family by having the relationship, because [Mr A] was the applicant’s brother’s wife’s uncle. In my view, the applicant sought to provide a second explanation once I had expressed concern, which was entirely speculative and I do not accept it. In any event, the fact that the applicant and [Mr A], on his own evidence, have not seen each other in 5 years and the applicant not knowing whether they are still in a relationship, causes me to doubt whether they were ever in a genuine relationship.
Finally, I have had regard to the video, however I give it little weight. In my view, other than [Mr A] simply alleging an ongoing relationship and when it commenced, it lacks detail as to how the relationship was formed and what it involved. The length of the video is 1 minute and 23 seconds. Whilst [Mr A] states he had to return to Malaysia, the video does not provide any reason why the two had not seen each other, at that time, in several years.
The applicant went on to give evidence that whilst in Malaysia he told his family about his attraction to men, despite the applicant saying he had a secret relationship with [Mr A]. The applicant did not provide any persuasive reason as to why it was necessary to do so; he merely said that he told his family in response to his family’s request that he get married. I find it difficult to accept that the applicant would have made this disclosure if indeed he was in a secret relationship with [Mr A] and was taking steps not to be caught. This causes me to doubt whether the applicant ever told his family of an attraction to men, and whether he was really in a secret relationship with [Mr A].
I asked the applicant why he stated in his protection visa application that he had a female partner, given on his evidence he was in a relationship with [Mr A] at that time. The applicant said he still had a relationship with [Mr A] but he referred to a girl in his protection visa application because his father asked him to get married. When one has regard to the text of the protection visa application, which states ‘I have a female partner but I am actively seeking for sex with the same gender…’ I do not consider that explanation to be truthful. The fact the applicant has disclosed that he was in a relationship with a female at that time causes me to doubt whether the applicant was in a relationship with [Mr A] at that time.
I also asked the applicant about his involvement with the LGBT community in Australia. The applicant said he had not had involvement because he did not know how to find the community because he does not have a lot of LGBT friends. I told the applicant I was concerned with this explanation because in the response he provided a list of LGBT social media groups which he said he reads and also referred to the dating application Grindr. Further, I note that in the applicant’s protection visa application he stated that he was actively seeking for sex with the same gender. In response, the applicant said he tried to get Tinder but it was not working for him, because he was from Asia, and it was very hard for him. I asked why it wasn’t working. He said ‘maybe I’m not good looking’.
I asked the applicant about whether he had any other relationships in Australia. In relation to relationships with men, he said his English is a bit broken and it is very hard for him. But the applicant did give evidence of a relationship he said he had with a female for about 2-3 months commencing in April 2024. The applicant said he had this relationship because he was alone and needed someone to care about him, but it ended as he was more attracted to guys.
I asked the applicant whether anyone in Australia could support his claim to be attracted to men and he said no, he is here alone and ‘follows the flow’. I told the applicant it concerned me that there was no one in Australia who could support his claim and I asked him if he wanted to comment on this concern. The applicant said in response: ‘no comment’.
As I find below, I do not accept the applicant was ever in a relationship with [Mr A]. If the applicant was attracted to men, which on the applicant’s evidence such attraction could not be freely explored in Malaysia, he was able to do so in Australia. The fact the applicant did not, and his explanations for not doing so, causes me doubt as to whether the applicant is attracted to men in a romantic or sexual way.

Finally, I told the applicant I was concerned about his evidence regarding his employment in Malaysia. He gave evidence that the sum of his employment in Malaysia was in his family food stall and a job in a factory in construction. The applicant gave evidence that he left his job at the factory because it was dangerous involving dust and heavy tools and he had no sick or annual leave, so he left that job. The applicant went on to say that his boss in the factory knew about his sexuality but his boss was OK and said ‘so long as you be a good worker it is OK’.
I put to the applicant that I was concerned that in his response he said he was fired when his employer found out he was bisexual, and as a result had no source of income and lost his confidence to deal with society. The applicant responded that he had also been employed in a [product] shop, but only worked there only a couple weeks, which he had not mentioned. The applicant said he was thinking about long term jobs earlier. I do not consider it plausible that the applicant would have failed to mention this job and it ending given its relevance to his claim, if indeed it was true.
For the above reasons, I do not accept that the applicant is romantically or sexually attracted to men, or is bisexual or gay. I do not accept the applicant has ever been romantically or sexually attracted to men. The applicant did not suggest he has ever engaged in sexual activity with a male and I do not accept that he has. I do not accept that he has ever been in a genuine relationship with [Mr A], or any other male. I do not accept he hid a sexual attraction to men whilst he was in Malaysia. I do not accept that he told his parents or family or any employer that he was attracted to men whilst he was in Malaysia. I do not accept any employer ever found out that the applicant was attracted to men. It follows that I do not accept that he suffered any harm in Malaysia, including being rejected by his family, looked down upon, insulted, fired from his employment, or ostracised by his community, for reason of attraction to or relationships with men.
Given those findings, if the applicant is returned to Malaysia, I do not accept that he would seek out or engage in romantic or sexual relations, or a relationship, with any male. As I do not accept the applicant is romantically or sexually attracted to men, I do not consider his romantic or sexual attraction or relationships would be inconsistent with his religion. I do not accept that there is a real chance of the applicant suffering any harm including being unable to find employment, having no friends, or being ostracised by the community for reason of attraction to men or being in a same gender relationship. I do not accept there is a real chance that the applicant would be harmed by any member of his family or society or by the authorities including being investigated, arrested or punished or mistreated in detention for reason of attraction to, or relationships with, men.
Request to marry/request to observe Islam
Whilst the applicant said at the hearing he did not fear harm for any other reason other than his attraction to men, he went on to say that his father and family would ask him to marry a girl and to become religious again noting he has stopped praying. The applicant did not suggest he would suffer any particular harm as a result of these requests. The Tribunal invited the applicant to a further hearing with a view to ascertaining whether the applicant feared harm as a result of these requests. As noted above, the applicant declined to participate in a further hearing.
Based on the evidence before me, I accept that the applicant has stopped praying and if returned to Malaysia his family would ask him to observe Islam including by praying. I have accepted that the applicant is of Malay ethnicity. As a person of Malay ethnicity, the applicant was automatically categorised as Muslim at birth and would continue to be considered Muslim if returned to Malaysia.[2] I also accept that his family has asked him to marry a girl and if he returned to Malaysia his family would again ask him to marry a girl. I have not accepted that he has any attraction to men.
[2] DFAT, DFAT Country Information Report Malaysia, 24 June 2024, [3.55], [3.56], [3.58].
I do not consider that requests to marry or observe Islam, including any pressure the applicant might feel as a result, would either separately or cumulatively give rise to a real chance or real risk of causing him to suffer serious harm within the meaning of s 5J(4)(b) of the Act or significant harm within the meaning of s 36(2A) of the Act.
Findings
Considering the applicant’s claims separately and cumulatively, I am not satisfied that there is a real chance that the applicant would be persecuted (which must involve serious harm to the person) for one or more of the reasons in s 5J(1)(a) of the Act if he were returned to Malaysia now or in the reasonably foreseeable future. I am not satisfied that the applicant has a well-founded fear of persecution. I am not satisfied that the applicant is a refugee.
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). For the reasons and findings set out above, and for the reason that the real risk test imposes the same standard as the real chance test,[3] I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Malaysia, there is a real risk that the applicant will suffer significant harm, which is defined in the Act as being arbitrarily deprived of his or her life, having the death penalty carried out upon them, or subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
[3] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505, [246].
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 under review.
Hearing(s):  28 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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