2311985 (Refugee) - [2025] ARTA 2205

2311985 (Refugee) [2025] ARTA 2205 (26 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2311985
Tribunal:General Member S Waring
Date:26 September 2025

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

Statement made on 26 September 2025 at 9:47am
CATCHWORDS
REFUGEE – protection visa – Fiji – financial hardship – subsistence living – withdrew agent’s political opinion claim – freedom of speech restrictions – poor economic conditions – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) CLR 379
Chan Yee Kin v MIEA (1989) 169 CLR 379; HCA 62
MIAC v SZQRB [2013] FCAFC 33
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 1 August 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 Fiji, applied for the visa on 1 May 2022. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 10 August 2023 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT). The applicant provided a copy of the delegate’s refusal decision as part of the review application.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 25 August 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The issue to be considered in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion or the complementary protection criterion prescribed in the Act.
BACKGROUND
The applicant is [an age]-year-old male who first entered Australia [in] January 2020. He has since then, travelled overseas between [April] 2020 and [November] 2022.
The applicant was born in [Town 1], Fiji and lived in [Village 1] between 2000 and 2021. He settled in Western Australia and is currently working [in Occupation 1] there.
[The applicant] follows the Christian religion. In Fiji he worshipped at [Church 1]. Where his mother (now widowed) continues to reside.
Evidence before the Department and the Tribunal
No interview was undertaken by the Department.
When the protection visa application was lodged the Department wrote to the applicant acknowledging the application and advising that he could present further information for consideration - including via his online account. The applicant did not submit any further material to the Department. As such, the evidence taken into account by the Department included:
·the applicant’s protection visa application.
·supporting documents including personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, a movement record of the applicant’s transit in and out of Australia is also before the Tribunal.
The Tribunal also received evidence from the applicant at hearing.
The totality of evidence before the Tribunal is discussed and examined below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant provided a copy of the biodata page of his Fijian passport to the Department as part of his protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before me to the contrary. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is his receiving country for the purposes of assessing his claims for protection.
Claims made in the visa application
The protection visa application sets out the applicant’s claims summarised as follows:
·he left Fiji because of his opinion about the government and the lack of freedom of speech and expression there (as well as for the financial reasons)
·during a coup staged in his home country, he was found (by military personnel) wandering around a plantation in search of food. He was physically abused for an unknown reason
·he has nowhere to go in Fiji and will have no support if he returns there
·in Fiji he will be harassed by military personnel as he has voiced his opinion openly against the government since coming to Australia
·he feels scared about going back to Fiji because anti-government speech is not allowed there.
The hearing
The applicant told the Tribunal that, in Fiji, his home is located in the village of [Village 1] in the province of [Province 1] where subsistence living (utilising communal land) is the norm.
Contrary to the statement in the protection visa application that the form was completed without external assistance, the applicant stated at the hearing that he had help from a third party (the agent) whom he paid $[amount]. He does not recall telling the agent that he had been involved in (or harmed during) political protests as he has never experienced such incidents. He did not tell her about any incidents of violence he had suffered in Fiji.
The applicant stated that at the time he engaged the agent to assist him, he was leaving his first job in Australia, as [an Occupation 2], and his colleague ([Colleague A]) urged him to submit a protection visa application. He never personally met the agent - speaking to her only by phone. He did not have many contacts with the agent and had no further contact with her after the application was lodged.
The agent asked him questions over the phone but he did not read the content of the application before it was submitted. He was not ‘made to understand’ what claims were included in the application.
He recalls receiving the Department’s notification of its refusal decision. He tried to read the decision however, due to poor literacy skills in written English, he did not understand it.
Economic hardship
The primary claim [the applicant] wishes to be considered by the Tribunal is the financial hardship he will face in Fiji if he returns there. He was married earlier in 2025. He has dependent family in Fiji including his parents, a [sister] and a brother who is studying at university and not working. He supports his family members financially to meet their expenses of rent, food, bills and education. His parents are not working. They are elderly and generally in good health. At times they are ill - but no more than would be expected at their age.
After arriving in Australia in 2020 he worked, for a time, as [an Occupation 2]. However, the income in that employment was insufficient to support himself and his family. In 2022 he moved on to [Occupation 3] in Perth. He commenced [Occupation 1] work (at [Location 1] in WA) three weeks ago.
After finishing high school in November [year], the applicant commenced university studies ([Subject 1]) because he wanted to become [an Occupation 4]. He was however, unable to complete this degree due to lack of funds. He then took up an apprenticeship as [an Occupation 5] in Fiji. Again, due to financial constraints he terminated this training in 2018. In 2019 he applied for inclusion in the seasonal worker program which led to his arrival in Australia in November 2020.
[The applicant] told the Tribunal that, if he returned to Fiji, he could possibly resume his apprenticeship in [Occupation 5]. He thinks it more likely however, that he would go back to his village where his family owns [number] fields currently planted with [produce]. Ownership of the land is communal and it is used for subsistence purposes. The villagers (including his parents) each take a share of the crop.
There is a family home [the applicant] could return to in his village ([Village 1]) which is a 4 - 5 hour drive from [City 1].
The applicant’s assets currently include a vehicle (on which a finance loan is owing) and $[amount] on deposit in his wife’s bank account). She is ‘looking after’ the savings.
The applicant stated that his main fear about returning to Fiji is the financial hardship he would face there. He does not want return to subsistence farming and does not have funds saved to allow him to return to training or study.
Political Opinion
The applicant stated that he does not have any fear of being harmed in Fiji because of his political opinions. He acknowledged that he has never expressed any anti-government opinions publicly. He confirmed that he does not fear being harmed in any way by reason of his political opinion or advocacy on political issues.
[The applicant] acknowledged that it was his agent who included the ‘political opinion/advocacy’ claim in his protection visa application - he had not instructed her to do so. He did not know that it had been included. The Tribunal understood the applicant to be withdrawing the ‘political opinion’ claim made in the protection visa application.
The applicant stated that he does have concerns about restricted ‘freedom of speech’ in Fiji. He confirmed that he perceives these restrictions but does not believe he would be harmed personally because of them. The Tribunal understood the applicant to be modifying the ‘freedom of speech’ claim made in the protection visa application.
Fear of Harm

32. The applicant stated that he does not fear suffering harm in Fiji by reason of having expressed any political opinion (anti-government or otherwise) publicly.
33. While he perceives there to be restrictions on freedom of speech in Fiji, he does not fear suffering harm personally from these restrictions.
34. Because he has a family to support, he does not want to return to subsistence living and the poor economic conditions prevailing in his home country. He confirmed that his claim for protection is limited to the financial hardship he, his wife and birth family, would suffer if he is unable to continue earning an income commensurate with his work in Australia.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision.
Country information
the Tribunal must consider the applicant’s claim regarding financial hardship in the context of Fiji’s employment and economic circumstances. In doing so, the Tribunal observes that reliable information about the economic conditions prevailing in Fiji has been published by the Department of Foreign Affairs and Trade (DFAT). In the Department’s 2022 report on Fiji, the country is described as one of the largest economies in the Pacific region however:
About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.[1]
[1] Department of Foreign Affairs and Trade Country Information Report Fiji (20 May 2022) para 2.9
Unemployment was, in 2021, officially reported at 4.8 per cent however, the current percentage may be higher because the disruption of COVID-19 is not taken into account in this figure. Further:
According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.[2]
[2] Cited in the Department of Foreign Affairs and Trade Country Information Report Fiji (20 May 2022) at para 2.19
Based on the country information outlined above, the Tribunal accepts that [the applicant] may face financial uncertainty and disadvantage if he returns to Fiji and is unable to complete his [Occupation 5] apprenticeship and gain employment. The Tribunal is satisfied however, that this is a career path open to the applicant who has university study experience.
Does the applicant satisfy the refugee criterion for protection?
Based on oral evidence given at the hearing, the Tribunal is satisfied that the applicant has the option of completing his apprenticeship or returning to farming (and living in the family home) in [Village 1], Fiji.
The Tribunal accepts the applicant’s evidence that he wishes to remain in Australia for financial and economic reasons, including to support his family financially in Fiji. While the Tribunal is sympathetic to the pressure of providing financial support to his family and the economic situation in Fiji, it must nevertheless determine whether the socio-economic harm the applicant implied he would face upon return is for any of the reasons set out in s5J(1)(a) of the Act, namely: race, religion, nationality, membership of a particular social group or political opinion.
The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[3] As raised in the hearing with the applicant, the economic conditions and lack of employment opportunities throughout Fiji applies to the broader Fijian population, therefore the Tribunal finds that any disadvantage the applicant may experience on return to his home country, due to general economic conditions (as challenging as that may be) is not for any of the reasons set out in s5J(1)(a) of the Act.
[3] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
The criterion in s 5J(1)(a) contains a subjective requirement, that the applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance persons applying for protection, would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In determining the possibility of persecution, the Tribunal is guided by instances of harm that would be considered to be ‘serious harm’. These would include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist. The Tribunal has considered the applicant’s ‘capacity to subsist’ noting that he has a family home to return to in [Village 1] and also the option of completing his [Occupation 5] apprenticeship. In view of the options available to [the applicant], the Tribunal does not find that his capacity to subsist in Fiji is under threat.
At hearing, the applicant modified the claims made in the protection visa application relating to freedom of speech. While he does believe that freedom of expression is suppressed in Fiji he stated that he does not fear suffering harm personally from the restrictions. The Tribunal finds that the applicant does not have a well-founded fear of harm due to freedom of speech restrictions in Fiji as (not fearing he will be harmed) he does not satisfy the subjective requirement in s 5J(1)(a).
At hearing, the applicant was understood to abandon the claims made in the protection visa application relating to physical abuse by military personnel. [The applicant] stated that he has not experienced any incidents of violence in Fiji and did not tell the agent that he had. The Tribunal finds that the applicant does not fear suffering harm personally at the hands of the military in Fiji. The Tribunal finds that the applicant does not have a well-founded fear of harm due to the abusive actions of authorities in Fiji as (not fearing he will be harmed by them) he does not satisfy the subjective requirement in s 5J(1)(a).

At hearing, the applicant was understood to abandon the claims made in the protection visa application relating to political opinion and anti-government advocacy he had allegedly been engaged in. [The applicant] confirmed that he does not hold anti-government opinions or fear suffering harm in Fiji by reason of his political opinion. The Tribunal finds that the applicant does not have a well-founded fear of harm, if he returns to Fiji, by reason of his political opinion. He does not fear he will be harmed for this reason - as such, he does not satisfy the subjective requirement in s 5J(1)(a).
In conclusion (having considered the applicant’s claims individually and cumulatively) the Tribunal finds there is no real chance (being a possibility that is not remote or far-fetched[4]) that, if he returned to Fiji, the applicant would experience any harm pursuant to s 5J(1)(b). [The applicant] is therefore not a refugee within the meaning of s 5H(1) of the Act. It follows that he does not meet the refugee criterion in s 36(2)(a) of the Act.
[4] Chan Yee Kin v MIEA [1989] HCA 62
The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa).
Does the applicant satisfy the complementary protection criterion for protection?
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). For the reasons outlined above, the Tribunal does not accept that that the applicant faces a real risk of being significantly harmed should he be removed to Fiji.
In MIAC v SZQRB[5] the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.
[5] [2013] FCAFC 33
Section 36(2)(aa) refers to a real risk of an applicant suffering significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
While [the applicant] may face financial disadvantage in Fiji, the Tribunal finds that such harm does not amount to ‘significant harm’ as it is defined above. The Tribunal is not therefore, satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji as the receiving country, there is a real risk that the applicant will suffer significant harm.
The Tribunal does not find that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Member of family unit
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant a protection visa to the applicant.
Date of hearing: 25 August 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…