2441043 (Refugee) - [2025] ARTA 1713

2441043 (Refugee) [2025] ARTA 1713 (17 July 2025)

DECISION AND

REASONS FOR DECISION

Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2441043
Tribunal:General Member F Sneath
Date:17 July 2025

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

Statement made on 17 July 2025 at 12:58pm

CATCHWORDS

REFUGEE – protection visa – Taiwan – political opinion – anti-government’s lack of democracy and disrespect for human rights – fears threat of war between Taiwan and China – intimidated by government officials – no evidence of political claims – China Bride – born in China, married Taiwanese man – believed to be an attempt to reunify Taiwan and China by stealth – discrimination and exclusion – renounced Chinese nationality so does not apply to applicant – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), Explanatory Memorandum, pp.170–1
Migration Regulations 1994 (Cth), Schedule 2

CASES

MIAC v SZQRB (2013) 210 FCR 505

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 25 October 2024 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 Taiwan, applied for the visa on 24 July 2024. The delegate refused to grant the visa because the applicant did not meet the criterion for a protection visa in s36(2) of the Act.
The applicant appeared before the Tribunal on 20 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

BACKGROUND

The visa applicant is [an age]-year-old woman who was born in mainland China. She holds a Republic of China (Taiwan) passport and considers herself a citizen of Taiwan. She moved to Taiwan in 2004 and renounced Chinese nationality because she married a man from Taiwan.
The applicant claims in her protection visa application that if she returns to Taiwan she will be persecuted for holding certain political opinions and will live in an environment without democracy and human rights. She said she suffered insomnia causing physical and mental harm because she feared war between Taiwan and China.
At the hearing, the applicant raised a new claim, being discrimination in Taiwan as a ‘China Bride’ (i.e. a woman from mainland China who came to Taiwan due to marriage).

Evidence before the Department

Evidence before the Department was the protection visa application, the applicant’s response to a request for information pursuant to s56 of the Act, and country information.
The delegate decided that applicant’s claim of persecution for holding certain political options was not credible; and that her alleged fear of threat of invasion of Taiwan by China was not related to any of the required reasons in s 5J(1)(a). The Delegate was not satisfied the applicant was refugee as defined in s 5H(1) of the Act and therefore was not a person in respect of whom Australia had protection obligations as provided for in s36(2)(a) of the Act.
With respect to complementary protection, and the applicant’s fear of threat to life from an invasion by mainland China, the delegate considered country information and found that there was no imminent or foreseeable threat of invasion and that any future harm arising from an armed conflict was speculative. The delegate noted that any such harm would be faced by the population of Taiwan generally, not the applicant personally, and that s36(2B)(c) applied. The delegate was not satisfied that there was a real risk the applicant would face significant harm as defined in s36(2A) of the Act on their return to Taiwan, and therefore was not satisfied that the applicant was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(aa) of the Act.

Evidence before the Tribunal

The Tribunal considered the evidence before the Department, the delegate’s decision, country information and information provided by the applicant at hearing. The applicant was asked to provide further information after the hearing relating to her claims about exclusion from Taiwan as a ‘China Bride’. No response was received from the applicant.

CONSIDERATION OF CLAIMS AND EVIDENCE

Criteria for protection visa

The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

REASONS AND FINDINGS

The issue in this case is whether the applicant faces a real chance of serious harm or real risk of significant harm if she is returned to Taiwan in the reasonably foreseeable future. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Nationality and country of reference

The applicant travelled to Australia on a Republic of China Taiwan passport and provided a copy of that passport to the Department. Following relevant checks, the Department was satisfied that the applicant had provided sufficient evidence to establish their identity. The Tribunal accepts the identity of the applicant. The applicant claims to have no right to reside in mainland China and has lived in Taiwan for many years. On the basis that the applicant presented a Republic of China Taiwan passport, that Taiwan has a distinct area with identifiable borders, and a permanent community, the Tribunal assesses the applicant’s claims against Taiwan as the ‘receiving country’.

Does the applicant satisfy the refugee criterion for protection?

In determining a claim for refugee protection, it is necessary to establish if there is a real chance of harm if the applicant were returned to their receiving country.
The applicant has made three distinct claims of harm and the Tribunal addresses these under headings below.

Real chance of harm - Political opinion

The applicant claims she will be harmed because of her political opinion. She did not clearly articulate in her visa application the specific harm or what her opinion was, making broad statements about independence from China, living in an environment that lacks democracy and human rights, and oppression from authorities.
The applicant’s response to the Department’s s56 information request referred to being uneasy about the Taiwanese government’s independence stance and the prospect of war because there are two factions in Taiwan – one advocating peaceful reunification, the other which is the current government view supporting independence, if necessary, through use of force and war. The applicant claimed to wish only for peace and is concerned that increasing tensions could increase the possibility of accidental firing. She claimed that if a war breaks out unarmed people like her will be persecuted and that if she returns to Taiwan she fears being blacklisted and persecuted for her political opinion.
At the hearing the applicant maintained that there were risks to her in Taiwan because of her political opinion. She reiterated that after the current government took office, people lived in fear of a war over independence and that there was regular news and broadcasts about war and independence. The applicant told the Tribunal that people, who she claimed were the subordinates of government officials, had come to her home to ask for her signature to support independence. She said that she did not sign but they kept coming to her, and they approached everybody. She felt this was mental torture, it caused her panic, and pressure, and insomnia and that a doctor had prescribed her sleeping pills.
The applicant told the Tribunal that she is not part of a political organisation. She has voted but has not made her opinion widely known. The Tribunal accepts that the applicant holds a political view contrary to that of the current government in Taiwan. The Tribunal considers that the applicant’s political opinion also includes her view that Taiwan is characterised by a lack of democracy, disrespect for human rights and oppression from authorities.
There was no information before the Tribunal to verify that persons connected to government officials had sought signatures from the applicant specifically or from other householders to support independence from China, as claimed by the applicant. No public information was readily identified to support that such actions have occurred. There is no information before the Tribunal to suggest that similar visits or pressure toward the applicant will occur if she is returned to Taiwan in the reasonably foreseeable future.
Although Australia does not recognise the Republic of China Taiwan as a sovereign state, respectful dealings between Australian Government officials and Taiwan take place unofficially.[1] The Australian Government supports, on an unofficial basis, the development of economic and cultural relations, a range of visits, and trade and investment opportunities. Australia supports Taiwan’s meaningful participation in international organisations and conferences and both Australia and Taiwan share an interest in rules-based, open, inclusive and stable Indo-Pacific region.[2]
[1] ‘Australia-Taiwan relationship’, Australian Government Department of Foreign Affairs and Trade (webpage, 15 July 2025) < ibid

The Tribunal notes information that suggests that Taiwan has a competitive democratic system and robust protections for civil liberties[3]. Crime rates in Taiwan are low, protests sometimes happen but are usually peaceful[4].

[3] ‘Freedom in the World 2025 – Taiwan’, Freedom House (webpage 15 July 2025) <

[4] ‘Taiwan’, Australian Government Department of Foreign Affairs and Trade smartraveller.gov.au (webpage, 15 July 2025) < >

The most recent United States Country Report on Human Rights Practices in Taiwan[5] describes that the police and judiciary in Taiwan are effective, fair and generally free from political or other improper influence; and that arbitrary arrest and/or detention is prohibited under the Constitution and other laws and is generally observed. Authorities enforce laws prohibiting human rights abuses and prosecute officials who commit them.

[5] US Department of State, 2023 Country Reports on Human Rights Practices - Taiwan, 22 April 2024, p 1

The Tribunal gives weight to the information in paragraphs 26 to 29. The Tribunal does not accept as credible the applicant’s claims that representatives of government officials were involved in repeated visits to her seeking signatures supporting independence, or that it was a regularly repeated occurrence. The Tribunal also does not accept the applicant’s claim that Taiwan lacks democracy, disrespects human rights and authorities exercise oppression.

The applicant claims that she suffered panic, pressure and insomnia and was prescribed sleeping pills. The applicant did not provide any medical evidence to support this or to it being linked to her having particular political views. The Tribunal is prepared to accept that the applicant may have suffered from insomnia when in Taiwan, but also notes that she received effective treatment. Even if the Tribunal were prepared to find that the panic, pressure and insomnia were harms linked to the applicant holding particular political opinion, and it does not, the Tribunal does not find that any of the claimed harm reaches the threshold of what would be considered ‘serious harm’ for the purposes of s 5J(4)(b)of the Act.

The Tribunal finds there is no real chance of serious harm to the applicant if she is returned to Taiwan in the reasonably foreseeable future on the basis of her holding a particular political opinion.

Real chance of harm - ‘China Bride’

The applicant told the Tribunal that the current government was trying to return ‘China Brides’ to mainland China. The Tribunal understood the applicant as saying that the current President was trying to exclude from Taiwan women from mainland China who had married men from Taiwan and take away from them their Taiwanese status. She said that some spouses had received a letter, and she was concerned about not having the right to live in Taiwan, or China. The applicant claimed there had been examples of this reported in the media.
The Tribunal asked the applicant at the hearing, and again in a letter after the hearing, to assist the Tribunal by providing further information. No further information was received from the applicant.
The Tribunal has identified some publicly available material[6] that discusses claims that some women from China are marrying Taiwanese residents, obtaining Taiwanese residency and then divorcing and marrying Chinese partner and bringing them to Taiwan – for better medical care and allegedly to reunify Taiwan and China by stealth[7]. These women however, unlike the applicant, have not given up their right to reside in China.
[6] See generally S-JS Liu, ‘Chinese migrant wives in Taiwan: claiming entitlements, resisting inequality, and rejecting citizenship’ [2109] 1(4) International Feminist Journal of Politics 617; Antonia Finnane, ‘The Influencer’, Inside Story, online 21 March 2025, < ; L-y Huang, S-y Liu, C-h Chen, K-t Kuan, S Lai, ‘10,000 Chinese spouses face loss of residency in Taiwan over missing proof’, Focus Taiwan, online 9 April 2025, < Antonia Finnane, ‘The Influencer’, Inside Story, online 21 March 2025, < >
An article in Focus Taiwan[8] discusses the requirements for Chinese spouses obtaining Taiwanese residency and describes recent actions of the National Immigration Agency in Taiwan to regularise their residency by seeking documented proof from individuals that they have renounced their household registration in China. The article reports that notifications have been sent to those who have not provided proof and discusses what can be done where individuals face difficulty obtaining the required proof.
[8] Huang Li-yun, Liu Shih-yi, Chen Chun-hua, Liu Kuan-ting and Sunny Lai, ‘10,000 Chinese spouses face loss of residency in Taiwan over missing proof’, Focus Taiwan, online 9 April 2025, < >
The Tribunal considers these articles refer to the situation raised by the applicant. However, as the applicant told the Tribunal that she had renounced her right to live in China, it appears that she is not in danger of having her right to reside in Taiwan revoked. The Tribunal therefore finds there is no real chance of harm to the applicant because she is a woman from mainland China who subsequently settled in Taiwan.

Real chance of harm - threat of war

There has been increased military activities in the region and around Taiwan[9] and the Tribunal accepts there is tension between mainland China and Taiwan. Strategic analysts, however, are not agreed on the likelihood or timing of any conflict[10]. China has expressed a preference for peaceful reunification[11]. The Department of Foreign Affairs and Trade Travel Advice for Taiwan[12] and Country Brief[13] make no reference to armed conflict being imminent or a cause of concern. The Tribunal gives weight to these matters and finds there is no real chance of harm to the applicant from an armed conflict between China and Taiwan if she is returned to Taiwan in the reasonably foreseeable future
[9] See for example, Center for Preventative Action ‘Confrontation Over Taiwan’, Council on Foreign Relations Global Conflict Tracker, updated 1 July 2024: < and BBC News Asia ‘What’s behind China-Taiwan tensions?’, BBC News Service, 14 October 2024: < >
[10] Maizland, L and Fong, C. ‘Why China-Taiwan Relations Are So Tense’, Council on Foreign Relations, updated 18 March 2025:< >
[11] Davidson, H. “Taiwan’s president labels China a ‘foreign hostile force’ and ramps up security measures citing ‘infiltration’”, The Guardian, 14 March 2025: < >
[12] Travel Advice for Taiwan, Department of Foreign Affairs and Trade, updated 27 February 2025 current at 16 July 2025: Country Brief, ‘Australia-Taiwan relationship’, Department of Foreign Affairs and Trade, accessed 16 July 2025: type="1">
The Tribunal notes the applicants claim to be affected by the mere fear of a war occurring and that she has felt panic and suffered insomnia and was prescribed sleeping pills. The applicant did not provide any medical evidence of this or its link to a fear of war occurring. The Tribunal is prepared to accept that the applicant suffered from insomnia when in Taiwan, but also notes that she received effective treatment. Even if the Tribunal were to accept that there was a link between the applicants fear of war and harm by way of panic and insomnia, which it does not, the Tribunal finds that this claimed harm does not reach the threshold of what would be considered ‘serious harm’ for the purposes of s 5J(4)(b) of the Act.
The Tribunal finds there is no real chance of serious harm to the applicant from an armed conflict between China and Taiwan, or from the effect of fear of such an armed conflict, if she is returned to Taiwan in the reasonably foreseeable future.
With respect to the refugee protection criteria, the Tribunal has also considered the cumulative effect of the applicant’s claims but finds no increased risk of harm to the applicant on that basis. The Tribunal finds there is no real chance of serious harm to the applicant if she is returned to Taiwan in the reasonably foreseeable future for any of the reasons she claims, or cumulatively. Therefore, she does not meet the criteria for refugee protection in s 36(2)(a).

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).
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
For the same reasons as described above where the Tribunal found there was no real chance of harm to the applicant if she is returned to Taiwan in the reasonably foreseeable future for reasons related to her political opinion, being a ‘China Bride’ and threat of war, and cumulatively, the Tribunal finds that there is no real risk of harm to the applicant if she is returned to Taiwan in the reasonably foreseeable future.
Notwithstanding the above, the Tribunal notes the applicant claims harm in the form of panic and insomnia from a fear of war occurring. Even if the Tribunal were to accept that there was a link between the applicants fear of war and harm by way of panic and insomnia, which it does not, the Tribunal finds that these have been effectively treated and that the claimed harm does not reach the threshold of significant harm as exhaustively defined in s 36(2A) of the Act. Further, the risk (fear of war) is one faced by the population generally, and not the applicant personally, and therefore in accordance with s 36(2B) is taken not to be a real risk of significant harm.
It therefore follows that the applicant does not meet the criteria for protection in s 36(2)(aa) of the Act.

Conclusion

For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Representative: N/A

Date of Hearing: 20 May 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

For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J Meaning of well-founded fear of persecution

For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures

For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

Protection visas – criteria provided for by this Act

…

A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…