2451353 (Refugee) - [2025] ARTA 1886

2451353 (Refugee) [2025] ARTA 1886 (28 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number: 2451353
Tribunal:General Member S Waring
Date:28 July 2025

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

Statement made on 28 July 2025 at 4:33pm
CATCHWORDS
REFUGEE – protection visa – Fiji – mistreated due to corruption case against father – fears further discrimination – cannot return to previous workplace – fears economic hardship – does not amount to serious harm – 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 Yee Kin v MIEA (1989) 169 CLR 379
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 6 August 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 Fiji, applied for the visa on 13 November 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 21 August 2024 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) gives the Administrative Review Tribunal (the Tribunal) the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 30 May 2025 to give evidence and present arguments.
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 now [age] years-of-age. She remained in her employment with [Government service 1] in Fiji at the time she applied for the protection visa on 13 November 2022. She came to Australia [in] November 2022 having previously visited from [January] 2020 to [April] 2020.
[The applicant] settled in [Suburb 1], Queensland where she lives with her extended family.
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 she could present further information for consideration - including via her 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 providing the above documents, the applicant gave oral evidence to the Tribunal at the hearing on 30 May 2025.
A movement record of the applicant’s transits into and out of Australia is also before the Tribunal.
The totality of evidence before the Tribunal is discussed and examined below.
Claims before the delegate
In her protection visa application, the applicant discloses claims summarised as follows:
·she did not experience physical harm in Fiji but was disadvantaged in her workplace by unethical and non-merit based practices enforced by superiors through "click group syndicates"
·when she departed Fiji she did so without the approval of her employer and she fears mistreatment by them ([Government service 1]) if she returns as they perceive her to have sneaked out of Fiji without consent
·she will most likely be mistreated by [Government service 1 authorities] if she returns to Fiji because she favours best practices and ethical conduct in the force
·she would not be safe from [mistreatment] because [Government service 1] has networks throughout Fiji
·in Fiji she suffered from restrictions on her ability to express herself freely in public and within [Government service 1]
·she left Fiji to pursue studies and employment opportunities in Australia and because the quality of life in Fiji is poor
·if she returns to Fiji she would be unemployed and have no future.
Evidence at hearing
The applicant told the Tribunal that her [sibling] had helped her to complete the protection visa application. Its contents represented all her own ideas.
The applicant’s parents live in Fiji with her [siblings]. Her [siblings] are studying (at university and high school) and [one sibling] lives in Australia.
The applicant stated that in January 2020, she visited Australia to attend her cousin’s wedding in [Suburb 1], QLD and has since returned to live there with her aunt and uncle.
The applicant undertook university studies between July 2020 and December 2020 pursuing the goal of becoming [an Occupation 1]. She was however, forced to withdraw from her studies during the COVID epidemic when her family’s financial circumstances became strained.
The applicant followed her father into [Government service 1] (in January 2021) as it was one of the only jobs immediately available to her at the time.
The applicant explained that her father had been having ongoing problems within [Government service 1] culminating, in October or November 2022, with the issue of a notice to her father that there would be an escalation of the corruption case against him from ‘interview’ to ‘investigation’.
The applicant stated that corruption allegations against her father were before the Fiji Independent Commission Against Corruption (FICAC) and later the court. She believed that fellow [colleagues] of her father had fabricated allegations him and reported them to FICAC. This occurred (at least in part) because her father was unpopular with some colleagues and/or because his senior position was coveted by others.
The Tribunal heard that the applicant’s father (and later his whole family) had become friendly with an Australian man Mr B who extended hospitality to them at various times. The relationship between the families of the applicant and Mr B, deepened over time before becoming the subject of corruption allegations made against the applicant’s father.
The applicant’s parents had arranged to visit Mr B in Australia around 2021/2022 but FICAC and/or [Government service 1] would not allow the visit to proceed.
The action taken against her father has had a long history. He was arrested, taken to court and suspended on half-pay by [Government service 1] for all of 2024. He returned to work in February 2025 however, court proceedings are ongoing.
The applicant stated that her experiences working at [Government service 1] were impacted because her father was being investigated. While she did not speak to the investigators, she became alarmed when she discovered that people conducting the investigation had visited her [workplace] asking if she (the daughter of the [employee] being investigated) was working there.
In October or November 2022, the applicant decided to resign from [Government service 1] – in part because she believed her father had been unfairly treated by [Government service 1] and FICAC in many respects. The applicant explained that she was also receiving poor treatment at her [workplace]. She attributes this to her ‘trainee’ status and her family connection.
The applicant recounted incidents of poor treatment including:
·being given inappropriate tasks (ie. outside of proper work-allocation protocols)
·being excluded from events, tasks or meetings
·being treated as if she was an informer who would ‘leak’ information to her father
·being (more than just) teased that she was given [advantages] she was not entitled to
·being over-worked and denied rest breaks until set tasks had been completed
·having to sacrifice her sleep to meet unreasonable work demands
·being subjected to gossip within the [workplace]
·being denied leave she requested over Christmas 2021 and Easter 2022.
The issue of leave being denied had a negative impact on the applicant – in part because it was something her father had experienced. She began to wonder if she would always be treated differently because of her father’s situation. The [manager at her workplace] “gave the vibe” that it wasn’t fair to her colleagues for her to take leave over Christmas 2021 because she had only just completed her training. She believed the [manager] initially approved the leave but later rescinded it. The applicant did not know whether the [manager] had ever approved the Easter 2022 leave.
The Tribunal asked the applicant to explain her concerns about the “click group syndicates” mentioned in her protection application. The applicant stated that she had been “told off” by people in [Government service 1] (who are in “their own circle”) if she didn’t do something right.
Based on her experiences at the [workplace], the applicant came to believe that her chances of being treated like normal [employee] “were slim”. The Tribunal heard that, due to the [workplace] culture being “that trainees should not complain” she did not speak to the [manager] about her perceived mistreatment. She did not consult a doctor or counsellor or take medications to ease her frustrations.
The Tribunal enquired whether the applicant or her family members had been harmed in Fiji. The applicant stated that:
·her father was never physically harmed. The interview, investigation and judicial processes were conducted in the usual fashion
·her [sibling] is being teased by university classmates who say “why are you here after your father was corrupt?”
·her mother is being treated differently within the community but (for the most part) she still goes about her normal activities. When there are reports about her father’s case on the news however, her mother will not leave the house.
The applicant recounted instances when she has been treated differently within the community because corruption allegations have been made against her father including:
·an occasion when she was walking to the shop and was accosted by a ‘bunch of boys and girls’ asking “[deleted]” The applicant stated that she felt threatened by these comments. While she conceded the group might have been trying to be funny, she thought they were a bit aggressive
·at a sporting competition arranged between [her workplace and another, she] was approached and criticised (by children of an [employee of the other workplace]) for cheering for [her workplace] and for celebrating afterwards when it won. The applicant was unsure if they were joking when they said “just because you beat us in the competition doesn’t mean you’re better than us. You shouldn’t be cheering.”
The applicant stated that she has not been engaged in political activism in Fiji or online. Even so, she does not feel entitled to her own opinions and cannot feely say what she thinks - because she is young. She feels she has had to keep her opinions to herself both at work and in the community.
The applicant told the Tribunal that she will never return to work with [Government service 1]. Her father has been reinstated (at a lower [position]) but the charges against him have not yet been dismissed. Her father has told her there is a chance he will be unemployed – he is the only income-earner in the family. The cost of living in Fiji does not ‘match’ with the wages there.
The applicant explained that life is “the bare minimum” in Fiji and she does not want to be in that lifestyle anymore. She sends funds to her family on occasions. When finances are “a bit too tight” for her father he will call her and ask for help (for example to pay her [siblings’] tuition fees). The applicant estimated that she sends [amount] dollars (never more than $[amount]) 3 or 4 times each month. The applicant stated that, if she returned to university study in Fiji, it would take her ‘forever’ to pay off the tuition fees.
The applicant stated that she would not face persecution or physical harm if she returned to Fiji but that the community has a negative view of her because (they perceive) there is a corrupt person in her family.
The Tribunal explained the types of harm that would activate Australia’s protection obligations and sought the applicant’s comment on whether she feared being harmed in any such manner. The applicant did not comment directly on this, but told the Tribunal that she does not know how she would be able to survive if she returns to Fiji and cannot find work.
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 under consideration.
Country information
In its 2022 report[1], DFAT assessed that:
[Information related to Government service 1 deleted].
[1] [Source deleted].
ASSESSMENT OF CLAIMS AND EVIDENCE
Consistent with her evidence, the Tribunal finds that the applicant:
·did not experience physical harm or persecution in Fiji
·does not fear suffering physical harm or persecution at the hands of [Government service 1] if she returns to her home country
·will not seek to work for [Government service 1] if she returns to her home country. As such, the Tribunal finds that the applicant does not fear that, in the future, she would be disadvantaged by unethical practices (or oppression by "click group syndicates") within [Government service 1] if she returns to her home country
·abided by the culture at her [workplace] and, as a trainee, did not give voice to her own opinions on workplace matters or complain to the [manager]
·abided by cultural norms in Fiji (and within her family), as a young person, by not giving voice to some of her own opinions
·has not been engaged in political activism in Fiji or online. It follows that the Tribunal does not find that the applicant has expressed political opinions in any public manner
·has been supporting her family financially because she believes the cost of living in Fiji does not ‘match’ with the wages there.
In relation to the applicant sustaining harm (through actions of [Government service 1] or any of its [employees]), the Tribunal notes that there is no suggestion the applicant was personally implicated in corruption allegations and takes into account:
·the applicant’s evidence that her father (despite having corruption charges laid against him) was not harmed in the course of [Government service 1], FICAC or judicial processes in relation to the corruption allegations
·the applicant’s father has been reinstated to duties with [Government service 1]
·the applicant’s evidence that she was not involved in the investigation (or other) processes relating to the corruption allegations
·the DFAT assessment of [Information related to Government service 1 deleted]
·that the Human Rights and Anti-Discrimination Commission in Fiji would provide the applicant with a review mechanism in the event she had a complaint about [Government service 1] conduct.
Having regard to the findings and observations above, the Tribunal does not accept that the applicant fears suffering harm or retribution at the hands of [Government service 1], if she returns to Fiji, in her capacity as a [citizen]:
·because she departed Fiji without formal [consent]
·because she is a former [Government service 1 employee]
·by reason of her familial connection to a person (her father) against whom corruption charges were laid; or
·for any other reason.
In relation to the applicant sustaining harm at the hands of her community, the Tribunal notes the applicant’s evidence that her father (despite having corruption charges laid against him) has not been physically harmed (nor have her other family members been physically harmed) by members of her community. As such, and having regard to the findings and observations above, the Tribunal does not find that the applicant fears suffering harm or retribution at the hands of her local community by reason of her familial connection to a person (her father) against whom corruption charges were laid (or for any other reason).
REASONS AND FINDINGS

Based on a copy of the applicant’s passport available on the Department’s file, the Tribunal finds that Fiji is her country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
The issues in this case are whether there is a real chance that, if the applicant returns to Fiji, she will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
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 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.[2]
[2] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
As raised in the hearing with the applicant, the economic conditions and lack of employment opportunities throughout Fiji apply to the broader Fijian population. The Tribunal finds that any disadvantage the applicant may experience on return to Fiji due to general economic conditions is not for any of the reasons set out in s5J(1) of the Act.
The applicant does not claim to fear being harmed, in her home country, due to her race, religion, nationality or political opinion. For the reasons stated above, the Tribunal does not find that the applicant fears harm at the hands of her community or [Government service 1] if she returns to Fiji (or at all).
Having regard to these findings, the Tribunal concludes that the applicant does not satisfy the subjective requirement of s 5J(1)(a) and has not established that she has a well-founded fear of persecution as defined in s 5J of the Act.
The applicant is therefore not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
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 found the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, the applicant is able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk she would suffer significant harm as a necessary and foreseeable consequence of a removal from Australia to Fiji.
In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
Significant harm
When assessing the complementary protection criterion, the Tribunal must consider whether societal stigma, mistreatment at the hands of [Government service 1] or the economic hardship claimed by the applicant (as likely upon her return to Fiji) constitute ‘significant harm’.
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). Instances of ‘significant harm’ are exhaustively defined in the Act to include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
The definitions of cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1) of the Act require an intention on the part of a perpetrator to inflict severe mental pain or suffering or cause extreme humiliation which is unreasonable.
The Tribunal has not accepted that the applicant would face physical harm at the hands of her local community (or anyone) if she returns to Fiji. As regards any negative comments (or treatment of her) by her local community, the Tribunal is not satisfied that societal stigma directed towards the applicant (because of her father’s alleged offending) amounts to any of the types of ‘significant harm’ exhaustively defined in s 36(2A).
For the reasons stated above, the Tribunal is not satisfied that there is a real risk that the applicant would face ‘significant harm’ as defined in the Act if returned to Fiji at the hands of [Government service 1] or her local community (or anyone).
The Tribunal considers that any economic disadvantage the applicant may experience on return to Fiji (as challenging as that may be) would not arise at the hands of a perpetrator. As such, this challenge does not fall within the scope of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act. The Tribunal finds that the risk of economic hardship the applicant may face involves a risk faced by the population of Fiji generally. This is not a risk faced by the applicant personally for the purposes of s 36(2B)(c).
It follows that the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.
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.
Date of hearing: 30 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
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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