1904923 (Refugee) [2024] ARTA 580 (8 November 2024)
Decision and			
Reasons for Decision
Respondent:	Minister for Home Affairs
Tribunal Number:	1904923
Tribunal:	 General Member Noelle Hossen
Date:	8 November 2024
Place:	Perth
Decision:	The Tribunal affirms the decision under review.

Statement made on 08 November 2024 at 2:35pm

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social groups and religion – homosexual woman and satanist – harassment, threats and attacks, and property vandalised – now married to a man, and bisexual – limited, vague, inconsistent and unconvincing claims and evidence – no practice of satanism, and information from Wikipedia – husband from different part of country, and applicant could relocate there – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (2B)(b), 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
BEH15 v MIBP (2019) FCAFC 146
MIAC v SZQRB (2013) FCAFC 33
MIMA v S 152/2003 (2004) 222 CLR

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
1.  	This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 February 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2.  	The applicant who claims to be a national of Malaysia, applied for the visa on 27 August 2018. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
3.  	The applicant appeared before the Tribunal on 4 November 2024 to give evidence and present arguments. 
4.  	The applicant provided a copy of her Passport to the Department. The Department accepted that the applicant is a national of Malaysia. The Tribunal accepts that the applicant is a national of Malaysia and that Malaysia is the receiving country.
5.  	On the 14 October 2024 the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (the Transitional Act), applications for review to the AAT that are not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue to finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
6.  	The applicant was born in Malaysia on [Date] in Kuching, Malaysia.
7.  	She arrived in Australia [in] June 2018.
8.  	She had attended Primary school and High School in Malaysia.
9.  	She was employed after leaving school in Malaysia.
10.  	Her family being her mother, father and [siblings] live in Malaysia. She gave evidence that she is close to her mother.
11.  	The Tribunal accepts the background facts as set out in the preceding 5 paragraphs.
Evidence before the Department
12.  	The applicant lodged her Application for Protection with the Department on 27 August 2018.
13.  	In her application she stated that she left Malaysia because she is a lesbian who was suffering discrimination. She said that the population bullied her as she was a homosexual. She came to Australia as she wanted to travel as she was suffering from the pressure and was looking for a place to move on to. She said she could not relocate as the culture is still the same and the population could not accept that she is homosexual.
14.  	She said that if they return to Malaysia, they fear that the authorities could not protect her.
15.  	The Delegate assessed the application and commented that there was no country information available to indicate that gay and lesbian people are harmed by their families or that the state would refuse to protect them from harm because of their sexual orientation.
16.  	The Delegate found: 
“The country information above demonstrates that Malaysians who identify as lesbian may face discrimination and harassment in the community and in their interactions with the Malaysia and authorities.
However, discrimination and harassment, even when considered cumulatively and over time, may not necessarily reach the threshold of persecution as defined in s5J of the Act. Section 5J(5) of the Act sets out a non-exhaustive list of the types and levels of harm that will meet the serious harm threshold, which includes:
•	a threat to the person’s life or liberty
•	significant physical harassment of the person
•	significant physical ill-treatment of the person
•	significant economic hardship that threatens the person’s capacity to subsist
•	denial of access to basic services where the denial threatens the person’s capacity to subsist.
•	denial of capacity to earn a likelihood of any kind where the denial threatens the person’s capacity to subsist.
Paragraph 54 of the UNHCR handbook provides guidance on distinguishing between discrimination and persecution.
“Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities.”
17.  	The Delegate found that lesbians may suffer varying degrees of discrimination in Malaysia due to societal disapproval of sexual orientation. The Delegate accepted that the applicant may suffer discrimination and harassment from the authorities and society to some degree if they return to Malaysia. However, having considered the country information above, the Delegate found that this treatment does not reach the threshold to constitute persecution.
18.  	The Delegate was not satisfied that there is a real chance that if the applicant was returned to Malaysia, they would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Therefore, the applicant is not a refugee as defined in s 5H and criterion in s 36(2)(a) of the Act.
19.  	The Delegate considered whether the applicant will face a real risk of suffering significant harm as a lesbian if they return to Malaysia. In considering this the Delegate considered the country information will, personal circumstances of the applicant and followed the considerations in the High Court decision in Minister for Immigration and Multicultural Affairs v S 152/2003 (2004) 222 CLR. The Delegate found that the applicant could obtain, from an authority of the country, protection such that that there would not be a real risk that the applicant will suffer significant harm as outlined in s 36(2B)(b).
Evidence before the Tribunal
20.  	The applicant lodged a Pre-hearing Form dated 13 July 2024.
21.  	The applicant set out a new claim in the Form as follows:
Malaysia is predominantly religious with conservative values deeply embedded in its legal and social systems. Religious freedom is not fully protected, and any beliefs or practices deviating significantly from the majority religion face is particularly stigmatised and misunderstood often associated with criminal behaviour or immorality by the general populace and government authorities.
Religious persecution
I openly identify as a Satanist a religion that focuses on individualism, personal freedom and philosophical ideals, contrary to the misinterpretations in Malaysia. Due to my beliefs, I have been targeted by both the government and extremist groups. I have faced harassment, threats and physical assaults my home and personal property have been vandalised with hate symbols and local authorities have either ignored by complaints or further harass me upon learning of my religious affiliation.
Social ostracization and violence,
My community has ostracised me. Friends and neighbours have turned against me, spreading rumours and in inciting further discrimination and violence. On several occasions, I have been attacked by mobs accusing me of devil worship and evil practices. These attacks have resulted in serious injuries. The local media has sensationalised my belief, painting me as a dangerous individual, which has escalated the violence against me.
Fear for personal safety
My life is in constant danger. I narrowly escaped and attempted lynching by an angry mob incited by local religious leader. The escalating threats of force me to live in hiding, frequently changing locations to avoid detection. This unstable and dangerous lifestyle is unsustainable. I have no safe place within Malaysia, as even distant regions share the same prejudices and dangerous to someone with my religious beliefs.
22.  	The applicant was invited to a hearing which took place on 4 November 2024.
Evidence at the hearing
23.  	At the hearing the applicant indicated that she was working in [Suburb 1] at a [Workplace 1] known as [Name]. She has worked there on a part-time basis from June/July 2024. She previously worked at [Workplace 2] in [Suburb 2] for 1.5 years.
24.  	She presently lives with a roommate by the name of [Mr A]. She said that he works in [work sector]. He is [Age] years of age. He has been her partner for 2 years and 2 months. She later told the Tribunal that she was married to him in 2022. He is presently waiting for a hearing in the Federal Court as he has appealed his decision from the Tribunal to deny him a protection visa. She said that he earns approximately $2500 a fortnight. The Tribunal accepts that the applicant married [Mr A] in 2022.
25.  	She said that he comes from Johor in Malaysia. She has advised her parents that she is married to him. Her parents live in Sarawak. She said that on occasions he pays for her bills when she is not working.
26.  	She was asked by the Tribunal whether she had changed her claim that she was a lesbian and feared returning to Malaysia as she feared persecution as she is now married to a man. She said that she previously lived with her ex-partner [Ms B], and she was a lesbian. She said she now considers herself to be bisexual. She said that her father does not have a good relationship with her and that she fears his conduct towards her if she returns as she was once a lesbian. 
27.  	Her evidence regarding her relationship with [Ms B] was inconsistent with her application. She said that she met [Ms B] at work as [Ms B] was the supervisor of a [workplace 1] that she worked at. However, this is inconsistent with the fact that in her application as she stated that she worked as [an Occupation 1] for [Company] handling all [job tasks]. She said that she worked there from March 2012 to 31 May 2018.
28.  	She told the Tribunal that she lived in a rented room close to the [workplace 1] in Malaysia with [Ms B]. She said that they lived together for 1.5 years. [Ms B] came to Australia in April 2018.  The applicant came to Australia in June 2018. She said that she had broken up with [Ms B] when [Ms B] left Malaysia, and that she could not afford her ticket to Australia at the time. She said she met her in 2016 in Kuching, Sarawak. She said that she worked in various jobs being [an Occupation 2] from 2016 to 2018. She worked in the nighttime in a [workplace 1] called [Name]from 2016 to 2017. This information is inconsistent with the information in her application. The Tribunal asked her about the inconsistencies, and she said it was because she had a few jobs. She said she was in the relationship with [Ms B] until 2021 in Australia. She said she had wanted to get married and have a family with [Ms B]. [Ms B] has another girlfriend. She said she remembers that they broke up in February 2021.The Tribunal does not accept her claim that she is bisexual and that she was in a relationship with [Ms B] and that they lived together in Malaysia and Australia as a de-facto couple.
29.  	She said that she no longer claims to be a lesbian as she has married a man. She said she sees herself as bisexual.
30.  	She said that she still claims that she will be treated badly if she returns to Malaysia. She said that when she was 18/19 years old, she went to [Country 1] to work for a couple of months. She also lived in Kuala Lumpur for 2 months but could not remember when it was. She thinks that she was 21 or 22 years old. She said that she was not in good shape and was living there to find a job. She said she met new friends but cannot remember the names of the friends and said that prior to her relationship with [Ms B] she had a girlfriend called [Ms C] for 6 months.
31.  	In respect of her new claim of being a Satanist she said she was not sure when she became a satanist. She said she had sought some advice and was asked to read the contents after it was copied and pasted into the Pre-hearing Form. She was asked to explain how she practices her religion of satanism. She said that she does not dare to practice black magic on anyone for fear of receiving karma. She said that she had looked at Wikipedia to seek information to make her claim for Satanism. She said that she has 2 claims before the Tribunal as she feels that she will be treated badly if she goes back as she says that everyone will remember that she is a lesbian.
32.  	The Tribunal asked her whether she could relocate to live with her husband in Johor and she said that she does not want to live in Malaysia as it is not a nice place to live.
33.  	She said that when she arrived in Western Australia she worked on a [workplace 3]. She had looked at the possibility of studying to be [an Occupation 2], but the cost of a student visa was too much, so she chose to apply for Protection.
34.  	She said that she continued to work on a [workplace 3] from October 2018 when she got work rights until 2020. She said that her wages at the [workplace 3] were low. She then worked in [workplace 1]s. She said that she has not saved any money in Australia.
35.  	She said that her mother is of Chinese ethnicity and is half Christian and half Buddhist.  Her father is [Ethnicity 1/Malay. She was asked why she had stated in her application that she was Anglican. She said that she was confused about whether she was Buddhist or Christian. She said that she does not know the religion that her husband follows as she has never asked him.
36.  	She said that she made her claim that she follows Satanism after following advice. She has no friends or family who follow Satanism. She did not appear to the Tribunal to presently practise or follow any religion in Australia.
37.  	She said that she would prefer to live in Australia as she feels that Australia is a safe country.

CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
38.  	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.
39.  	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.
40.  	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).
41.  	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.
42.  	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
43.  	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
44.  	The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the Delegate’s decision and other material available to it from a range of sources. This includes, but is not limited to, the following:
•	The applicant’s protection visa application including identity documents and the applicant’s claims for protection.
•	Department of Foreign Affairs and Trade (DFAT), Country Information Report, Malaysia June 2024
•	Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.
45.  	For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims.
46.  	The applicant claims in her protection visa application that she departed Malaysia because she was being bullied and discriminated on account of being a lesbian. She said that she has now married a man and she consider herself to be bisexual. She says that she will still have to face criticism when she returns to Malaysia as people have known that she was once a lesbian. The Tribunal does not accept that she is bisexual and that she is likely to face criticism when she returns to Malaysia. The applicant has lived in Australia for the last 6 years. Her present husband comes from Johor, and she could relocate to that city if she has any concerns regarding her own neighbourhood. However, the Tribunal does not accept that she was a lesbian in Malaysia as her evidence at the hearing was inconsistent with the evidence in her application. 
47.  	She had lodged a Prehearing Form stating that she follows Satanism. However, her evidence regarding the allegations was vague and unconvincing. The Tribunal did not find her claims to be credible. It is inconsistent with the evidence that she was an Anglican in her Application. She did not give any details about her practice of satanism. She said that she sought advice and found the facts in Wikipedia and that it was copied and pasted into the Form. The Tribunal does not accept that she practises Satanism.  
Assessment of the applicant’s claims
48.  	She provided no examples that she was persecuted for being in a lesbian relationship in Malaysia. She is now married to a man. If she had moved to Australia to be free of the constraints of being a lesbian because of her choices of living in a same sex relationship she has not pursued it as she is now married to a man. While she claims to having been discriminated by people around her because of being a lesbian she did not share any examples of the behaviour in her Application. The Tribunal finds that her claims of being bisexual to be not credible. Her claims are limited, vague and lacking in detail, despite being asked to provide further evidence by the Department and the Tribunal.
49.  	While she claims on return that she will be facing difficulties by local authorities because she practises satanism, this claim is limited, vague and lacking in detail, despite being asked to provide further evidence by the Department and Tribunal.
50.  	The Tribunal has carefully considered the claims of the applicant in her original application for protection and the subsequent application contained in her Pre-hearing form, individually and cumulatively.
51.  	The Tribunal’s task finding may include an assessment of the applicant’s credibility. The mere fact that a person claims to fear persecution for a particular reason does not establish the genuineness of the asserted fear or that it is well founded or that it is for the reason claimed. Similarly, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm.” It remains for the applicant to satisfy the Tribunal that the statutory elements have been made out.
52.  	The Tribunal has concerns regarding the credibility of the applicant’s claims particularly with respect to her claim to fear harm on return to Malaysia due to persecution on account of practising satanism. The claim was not raised until late in the protection visa process. The claims are not supported with corroborative evidence regarding the applicant’s involvement in incidents in Malaysia. The claim is different to the original claim for protection because she was a lesbian. The Tribunal has serious concerns regarding the credibility of the subsequent claim made by the applicant.
Does the applicant satisfy the refugee criterion for protection?
53.  	The Tribunal finds that the applicant is no longer in a lesbian relationship and does not practice satanism and if she is returned to Malaysia based on her circumstances, she will not suffer serious harm.
54.  	The Tribunal finds that her claims to fear harm because she was a lesbian and now practises satanism were fabricated to strengthen her claims for protection.
55.  	Therefore, having considered the applicant’s claims both individually and cumulatively the Tribunal finds that the applicant does not have a well-founded fear of persecution if she returns to Malaysia and does not satisfy s36(2)(a).
56.  	Considering the applicant’s claims, the Tribunal finds that there is not a real chance that the applicant will suffer persecution now or in the reasonably foreseeable future in Malaysia.
57.  	For all these reasons the Tribunal is not satisfied that the applicant has a well-founded fear of persecution by reasons of his race, religion, nationality, membership of a particular social group or political opinion if she returns to Malaysia, now or in the reasonably foreseeable future. Therefore, the applicant does not meet the criteria as set out in s 36(2) (a).
Complementary protection assessment
58.  	Having concluded that the applicant does not meet the refugee criterion in s 36 (2) (a), the Tribunal has considered the alternative criterion in s36(2) (a), the Tribunal has considered the alternative criterion in s.36(2) (aa).
59.  	 In considering whether the harm of having been a lesbian or practising satanism that the applicant fears she would suffer in Malaysia would amount to significant harm for the purposes of the complimentary protection criterion in s36(2) (aa), the Tribunal has had regard to the exhaustive definition of “significant harm” in s 36(2A) as follows:
(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.
60.  	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 real risk test imposes the same standard as the real chance test.
61.  	Noting these findings and the earlier findings the Tribunal has already detailed relating to the credibility of the applicant’s claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Malaysia , there is a real risk that she will suffer significant harm now or in the reasonably foreseeable future from being a satanist or a previous lesbian.
CONCLUDING PARAGRAPHS
62.  	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).
63.  	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).
64.  	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
65.  	The Tribunal affirms the decision not to grant the applicant a protection visa.

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.
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36	Protection visas – criteria provided for by this Act
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(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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