2432865 (Refugee) - [2025] ARTA 1806

2432865 (REFUGEE) [2025] ARTA 1806 (17 AUGUST 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Citizenship

Tribunal Number: 2432865
Tribunal:General Member M Bailey
Date:17 August 2025

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

Statement made on 17 August 2025 at 4:52pm
CATCHWORDS
REFUGEE – protection visa – Papua New Guinea – feminine appearance and bullying, political opinion and economic conditions – application prepared by another person – late claim of affair with wife of clan leader – attempts to kill by leader and his relatives – continued threats and confrontation after relocating – return visits to home area and delay in applying for protection – political and economic claims discontinued – some concerns but not politically active and no past incidents – no adverse weight on late claim – inconsistent claims and evidence – no supporting documentation or statements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 359A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 (delegate) on 27 August 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 May 2024. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or complementary protection criteria in s 36(2)(a) and s 36(2)(aa) of the Act. The applicant lodged a review application with the former Administrative Appeals Tribunal (AAT) on 11 September 2024. A copy of the delegate’s refusal decision was provided as part of the review application.
On 14 October 2024 the 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.
On 24 June 2025 the applicant was advised that his case was being prepared for allocation to a Tribunal Member. He was requested to complete a ‘Pre-hearing information form’ and submit this to the Tribunal within seven days. No response was received from the applicant.
The applicant attended a telephone directions hearing on 3 July 2025. On 7 July 2025 the applicant was given notice of a direction requiring him to complete a ‘Protection Visa Information form’ (PVI form) and submit this to the Tribunal by 17 July 2025. On 8 July 2025 the applicant wrote to the Tribunal from a different email to that provided in his review application advising that he had not received the direction. The applicant was advised to update his contact details if necessary, which he did on 8 July 2025. The notice of direction was resent to the applicant’s updated email on 9 July 2025. On 17 July 2025 the applicant submitted a completed PVI form. On 24 July 2025 he provided a written statement dated 5 July 2025 (Tribunal Statement).
The applicant appeared before the Tribunal at the Brisbane Registry on 30 July 2025 to give evidence and present arguments.
BACKGROUND
The applicant is a [Age]-year-old male from Papua New Guinea (PNG). He last arrived in Australia [in] April 2024 on a Temporary Activity (subclass 408) visa. As discussed below, the applicant travelled to Australia on two previous occasions:
i.Arrived [January] 2023 on a Temporary Work (International Relations) (subclass 403) visa – Departed [December] 2023
ii.Arrived [December] 2023 on a Temporary Activity (subclass 408) visa – Departed [March] 2024
The applicant provided a copy of the biodata page of his PNG passport to the Department of Home Affairs (Department) in support of the protection visa application. The delegate found the applicant to be a citizen of PNG. Based on the available evidence I am satisfied that the applicant is a citizen of PNG, and that PNG is his receiving country for the purposes of assessing his claims for protection.
Evidence before the Department
According to the protection visa application, the applicant was born in [Town 1] and resided in ‘Morobe’ between [Year] and January 2023. His ethnic group is ‘Papua New Guinean’ and religion is Christian. His relationship status is ‘Never Married’. No details are provided of any family members. He has never studied or been employed. He has not travelled to any countries in the last 30 years.
Regarding his claims for protection, the applicant stated the following reasons for leaving PNG:
‘Flee from always being bullied
My personal opinion of the government
To look for better economic stability and support
I belong to a different group of people’
In response to the question of whether he experienced harm in PNG, he stated:
‘[W]ith the death of my mother I was always pushed around and bullied in the schools and in the community because I am belong [sic] to a more feminine group of people and gender based violence is what I faced and also verbal abuses’
He stated that he did not seek help in PNG because of ‘fear’ and did not move to another part of the country because he had nowhere to go and no support. If he returns to PNG he ‘will be in the same situation’ and ‘abused as before’. The authorities cannot protect him ‘full time’ even from members of his own household.
On 28 July 2024 the Department wrote to the applicant pursuant to s 56 of the Act advising that his application lacked substantiating details and supporting documents. In order to be satisfied that his claims are genuine, the applicant was invited to provide additional information regarding his experiences in PNG (s 56 Request). No response was received from the applicant.
The applicant was not invited to attend an interview with the Department. Based on the available evidence, the delegate was not satisfied that any of the applicant’s protection claims were credible.
Evidence before the Tribunal
Pre-hearing evidence
As outlined above, the applicant did not respond to the Pre-hearing information request in June 2025. In the completed PVI form dated 17 July 2025 he was asked about the protection claims made to the Department. He stated that he was bullied and abused in PNG and left the country because of his ‘personal opinion on the government’ and he belongs to a ‘different more feminine group of people.’ He also stated that he was believed to have had an affair with the wife of [Mr A], ‘a close community member’ of [Clan] in Enga Province. The [Clan] and community members have ‘integrated’ and want to kill him because he brought shame and a curse to the community. They attempted to kill him on many occasions in [Village], Enga Province and also in Lae and Port Moresby.
Asked about any new claims for protection, the applicant stated that having an affair with a married woman in PNG is culturally offensive and a ‘curse to generation’. He will be permanently hated in his community and wherever he goes. He will always be attacked and killed by [Mr A] and his family. He will never receive assistance and would eventually kill himself. There is no safe place for him in PNG.
Asked why he did not raise the new claims with the Department, the applicant stated that he did not receive the s 56 Request. Someone assisted him to apply for the protection visa and the Department’s correspondence was sent to this person’s email address.
In the Tribunal Statement, the applicant reiterated that he was assisted by an ‘agent’ to prepare the protection visa application and all correspondence from the Department was sent to the agent’s email. He did not receive the s 56 Request and only became aware of this in August 2024 when his application was refused by the Department. He stated again that he was bullied and abused in PNG and left because of his opinion on the government and because he belongs to a ‘different more feminine group of people’. He restated the new claims raised in the PVI form relating to attempts on his life by members of the [Clan] due to an affair with the wife of [Mr A]. He further stated that he has reported many times to ‘law enforcement authorities’ and is ‘working to provide the copy of those police reports to the Tribunal’. He has witnesses to the attempts on his life and is also working to obtain witness statements. He estimates it will take at least two to three months to obtain the police reports and witness statements.
Oral evidence at Tribunal hearing
Regarding the preparation of the protection visa application, the applicant stated that a third party completed the application without obtaining any information from him. He did not know what was written in the application until he received the delegate’s refusal decision in August 2024.
The applicant stated that he was born in [Town 1], Eastern Highlands Province which he described as his ‘mother’s place’. He grew up in Enga Province which is his ‘father’s place’. He lived in [Village] which is close to [Town 2]. He lived in Port Moresby with his uncle while completing years 11 and 12 of high school. After finishing school he worked for about three years with his uncle who owns a [business]. He resided in [Country] between 2016 and 2019 as a student after being granted a scholarship to study [Subject]. He did not complete these studies because of the COVID pandemic.
His parents are living in [Town 2], Enga Province. His father, now retired, previously worked as a sales manager for a well-known international [company]. He has one [brother] and [sisters] who are residing with his parents in [Town 2]. After the applicant returned to PNG from [Country], he was living with his parents in [Town 2] where he met his partner. He has been in a relationship with his partner for around three years. They have twins who are currently [age] years old. His partner and children are currently living with her parents in [Town 2]. He maintains contact with his family in PNG.
Asked about his travel history to Australia, the applicant indicated that he first arrived in Australia in early 2023 under the Seasonal Worker program. He has since returned to PNG on two occasions (December 2023 and March 2024) to visit his family, particularly his children. He stated that these were short visits, and he stayed with his parents in [Town 2] on both occasions.
Asked why he applied for protection in May 2024, the applicant stated that about six months before he first came to Australia, he started a relationship with a woman whom he thought was not married. The relationship lasted for around six months. He later learnt that she was married to a man from [Village]. When people saw them together in [Town 2], this caused problems for him as adultery is not acceptable in his culture. When asked why he did not know this woman was married to a man from the same village as him, the applicant stated that she was one of several wives and did not live in [Village].
Asked what happened when the affair became known, the applicant stated that the woman’s husband and his relatives threatened to kill him if he came to [Village]. They also threatened his parents. He stated that the threats were occurring for about three to four months. He then saw the opportunity to come to Australia under the Seasonal Worker program.
Asked whether anything else happened before he departed for Australia in January 2023, the applicant stated that in mid-2022 he went to stay with his uncle in Port Moresby and ‘took shelter there for a while’. However, ‘word got around’ that he was in Port Moresby, and he continued to receive threats. These threats were received via his uncle. Asked whether he experienced any physical harm, he described one incident where he was confronted at a market in Port Moresby but he managed to avoid them by hiding behind a security guard. He went to the police in Port Moresby and lodged a report but he never received a copy of any police report. He stated that the police in PNG are corrupt.
Asked about his intentions when he first arrived in Australia in January 2023, the applicant stated that after arriving under the Seasonal Worker program he came to learn about a protection visa. This was during his first trip to Australia in 2023. He did not apply for protection at that time because he would have been unable to return to PNG to see his children.
Asked what he fears on return to PNG, he stated that he fears threats from the husband of the woman with whom he had an affair. This man is an important leader in the community and has relatives and contacts everywhere. Regarding any problems experienced by his family in [Town 2] while he has been in Australia, he stated that his parents were asked for money and had to give the woman’s husband a vehicle. He confirmed that his family have not experienced any other problems.
I discussed with the applicant that he has also raised claims regarding his opinion against the government and being part of a ‘more feminine group of people’. Asked about his political opinion, he stated that he believes law and order in PNG is inadequate and doesn’t ‘like the way the way the government handles things’. He confirmed that he has never been involved in any political activity in PNG, did not experience any harm in PNG because of his views of the government and this was not a reason for his departure from PNG.
Asked what he meant by belonging to a ‘more feminine group of people’, he stated that PNG is a masculine society; he is westernised and educated and therefore more open-minded. He did not fit in with the people in the village. I discussed with the applicant that he claims to have experienced bullying and abuse for this reason. He stated that this is not correct; he did not experience any harm in PNG because of this issue and it was not a reason for his departure. He confirmed that the claim in the protection visa application that he experienced gender-based violence is not correct.
I raised with the applicant that it appears unusual that this claim has been maintained in the PVI form and Tribunal Statement given his assertion that the protection visa application (which also includes this claim) was prepared without his input. The applicant responded that he received help from a friend to complete the PVI form and write the Tribunal Statement and agreed that the claim that he belongs to a ‘more feminine group of people’ is not correct.
I raised with the applicant, in accordance with the requirements of s 359A of the Act, that the information from the Department’s movement records of his travel between Australia and PNG causes me to have concerns about the credibility of his claims. He claims to have been facing threats of harm when he first departed PNG in January 2023 yet returned twice to PNG and did not apply for protection until May 2024. I also raised that, according to the Department’s movement records, he was granted a subclass 408 visa in August 2023 which was valid until August 2024, such that he had a valid visa to remain in Australia at the time of both return trips to PNG. Further, he stated to the Tribunal that he was aware of a protection visa during his first trip to Australia (January to December 2023). The applicant responded that he did not stay for long in PNG during these two return trips. He stayed with his children and did not move around.
I raised with the applicant that considering he is educated and speaks good English it is unclear why, if he was genuinely being threatened as claimed, he would rely on an unlicensed third party to prepare his protection visa application which made no reference to these key claims. He responded that he misunderstood the process and believed the ‘agent’ would contact him to obtain his correct information before lodging the application.
Asked whether there was anything further he wished to raise regarding his claims for protection, the applicant stated that he regrets having an affair and fears for his life in PNG. It was not an easy decision for him to apply for a protection visa because it prevents him returning to PNG to see his partner and children.
FINDINGS AND ASSESSMENT
The issue in this case is whether the applicant
engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in

s 36(2)(aa) of the Act. For the following reasons I have concluded that the decision under review should be affirmed.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Factual findings
In determining whether an applicant engages protection obligations, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I acknowledge that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 2019 at pages 43–44.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at [451] per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at [348] per Heerey J; Kopalapillai v MIMA (1998) 86 FCR 547.
I have some concerns with the applicant’s assertion that he relied on a third party to prepare the protection visa application and was unaware of the content until receiving the delegate’s refusal decision. He confirmed to the Tribunal that he completed secondary school and was awarded a scholarship to undertake tertiary studies in [Country]. He did not require the assistance of an interpreter during the telephone directions hearing or the Tribunal hearing and demonstrated strong English language skills. However, given the significant discrepancies between the information in the protection visa application and his oral evidence to the Tribunal, I am prepared to accept this as credible. In the circumstances, I have given greater weight to the applicant’s written and oral evidence to the Tribunal and have not drawn any adverse inferences due to inconsistencies with the protection visa application.

Considering the applicant’s confirmation to the Tribunal that the claim regarding his belonging to a ‘more feminine group of people’ are not true, I have not considered this claim further. However, I have concerns that this claim appears in the PVI form and Tribunal Statement. While I acknowledge that he received help from a friend in preparing these documents, there is no suggestion that he was unaware of the content of these documents prior to the Tribunal hearing. As above, there appears to be no reason why the applicant would require help from a friend in completing these documents.
Regarding his opinions on the government, I accept that the applicant has concerns regarding the adequacy of law and order in PNG and other governance issues. However, he confirmed to the Tribunal that he was never politically active and did not experience any problems in PNG due to his personal views of the government.
I have significant concerns with the applicant’s claims regarding threats in connection with an affair with a married woman. In the circumstances, I have not placed any adverse weight on the late disclosure of these claims. However, for the reasons below, I do not accept these claims to be credible.
Firstly, I have significant concerns with the applicant’s return to Enga Province in December 2023 and March 2024 in circumstances where he claims to have been receiving threats to his physical safety at the time of his departure from PNG in January 2023 and was aware of the option of applying for a protection visa at some point between January and December 2023. As raised with the applicant, he had a valid visa to remain in Australia until August 2024. I have considered his response to the Tribunal that he returned for short periods to visit his children and limited his movements. However, considering his claims that his life was under threat in Enga Province and Port Moresby prior to first departing for Australia and his family were also receiving threats, I do not consider it plausible that he would choose to return to Enga Province to visit his family, even for short periods of time. I find these two return visits to significantly undermine his claims.
Secondly, in the circumstances described above, I have concerns with the applicant’s delay in applying for protection. If he was genuinely in fear for his life or physical safety at the time of his first arrival in Australia in January 2023 and was aware of the option of applying for a protection visa prior to departing for PNG in December 2023, I find his failure to lodge an application to significantly undermine his claims. While I acknowledge that he wished to see his partner and children, I do not find this to address my concerns.
Thirdly, there are significant inconsistencies between the applicant’s written evidence in the PVI form and Tribunal Statement and his oral evidence. In his written evidence he stated that members of the [Clan] tried many times to kill him in Enga Province, Port Moresby and Lae. He referred to having witnesses that could attest to these attempts on his life. In his oral evidence to the Tribunal, despite being given the opportunity to describe any incidents of harm, he referred only to verbal threats while he was residing in Enga Province and Port Moresby. He referred to one ‘confrontation’ at a market in Port Moresby which did not result in any harm because he hid behind a security guard. He made no mention of any incidents occurring in Lae. In his written evidence the applicant claimed that he reported many times to the police and could provide copies of police reports if required. In his oral evidence to the Tribunal, he stated that while he went to the police, he never received any police reports and described the police as corrupt.
In the circumstances, I do not consider any documentary evidence in the form of police reports or witness statements would address my credibility concerns. Further, I note that the applicant was aware as of August 2024 when he received the delegate’s refusal decision, that there was a need to provide further evidence in support of his claims. If he wished to submit supporting documentary evidence to the Tribunal, he has had almost one year to obtain this material yet has not done so.
Considering all the above, I do not accept that the applicant had an affair with a married woman in 2022 which led to any threats from her husband, his relatives or anyone else.
Refugee and complementary protection assessment
Considering my findings above, I am not satisfied there is a real chance that, in the reasonably foreseeable future, the applicant will face any harm in connection with an affair with a married woman or due to his personal views on the government, if he returns to his home area of Enga Province. I am therefore not satisfied that the applicant has a well-founded fear of persecution. I find that the applicant is not a refugee as defined in s 5H(1) of the Act.
I have therefore considered the complementary protection criterion in s 36(2)(aa) which requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to PNG, there is a real risk the applicant will suffer significant harm. ‘Significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The real risk threshold has been held to equate to the real chance threshold.[3] For the same reasons as above, I am not satisfied there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of his removal to PNG.
[3] MIAC v SZQRB [2013] FCAFC 33
The applicant has not raised any other protection claims and I find that none arise on the accepted facts.
Conclusions
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) or 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.
Date of hearing: 30 July 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.
…