1930744 (Refugee) [2025] ARTA 963 (5 June 2025)
Decision and			
Reasons for Decision

Respondent:	Minister for Immigration and Citizenship
Tribunal Numbers:	2204740 (Applicant 1) & 1930744 (Applicant 2)
Tribunal:	General Member S Fitzsimons
Date:	5 June 2025
Place:	Melbourne
Decision:	The Tribunal sets aside the decisions under review and remits the applications for a protection visa for reconsideration, in accordance with the orders that:
•	Applicant 1 meets the criteria in s36(2)(a) of the Migration Act
•	Applicant 2 meets the criteria in s36(2)(a)   of the Migration Act

Statement made on 05 June 2025 at 8:34am

CATCHWORDS
REFUGEE – protection visa – Malaysia – particular social group – LGBTI – bisexual – Muslim women in Malaysia – members of the same family unit – existence of CCTV footage exposing sexuality – syariah law – pressured to divorce and remarry to pay off family debt – family violence – victims of assaults and threats – gender-based violence – decisions under review remitted

LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 369, 499 
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant S395 of 2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
Chan Yee Kin v MIEA (1989) 169 CLR 379
Huynh v Minister for Immigration and Border Protection (2020) FCAFC 153

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
APPLICATIONS FOR REVIEW
1.	This decision relates to two separate applications for review by [Applicant 1] and [Applicant 2] who are husband and wife. Both applicants claim to be Malaysian citizens. 
2.	Applicant 1 applied for a protection visa on 28 June 2019.  A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Migration Act 1958 (Cth) (the Act) on 25 March 2022 because the delegate did not have enough detail about the substance of the claims in the visa application which meant the delegate was not satisfied that the applicant was a refugee nor owed complementary protection. The applicant lodged a review application with the Administrative Appeals Tribunal (AAT) on 31 March 2022. 
3.	Applicant 2 applied for a protection visa on 22 March 2019.  A delegate of the Minister for Immigration and Citizenship refused the visa under s65 of the Act on 18 October 2019 because on the basis of country information, the delegate found that forced marriage is forbidden by law and that the police in Malaysia would enforce the law, and that state protection is available and therefore the delegate was not satisfied that the applicant was a refugee nor owed complementary protection.  The applicant lodged a review application with the AAT on 29 October 2019.
4.	On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.   
5.	The applicants appeared before the Tribunal on 29 April 2025 and 9 May 2025 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Malay and English languages.
Criteria for protection visa
6.	The criteria for a protection visa are set out in s36 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 s36(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.
7.	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.
8.	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: s5H(1)(a). 
9.	Under s5J(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 ss5J(2)-(6) and ss5K-LA, which are extracted in the attachment to this decision.
Mandatory considerations
10.	In accordance with Ministerial Direction No.84, made under s499 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.
CONSIDERATION OF CLAIMS AND EVIDENCE
11.	The issues to be determined in this case are whether Applicant 1 faces a real chance of serious harm on the basis of his sexuality and whether Applicant 2 faces a real chance of serious harm from her family for her refusal to enter into a marriage with a man against her wishes.  
12.	For the following reasons, the Tribunal has concluded that in relation to Applicant 1, the decision under review should be set aside and remitted on the basis that he is a bisexual man and therefore meets s36(2)(a) of the Act and in relation to Applicant 2, the decision under review should be set aside and remitted on the basis that she is also meets s36(2)(a) as a member of a particular social group, being Muslim women in Malaysia. 
Evidence before the Tribunal
Background
13.	Applicant 1 told me he was born on [date] in Sabah, which is consistent with the information in his protection visa application. 
14.	His movement records from the Department of Home Affairs (“the Department”) indicate that he was granted a subclass 601 visa on 26 January 2019 and he arrived in Australia as the holder of a that visa [in] February 2019.  
15.	Applicant 2 told me she was born on [date] in Sabah which is consistent with the information in her protection visa application. 
16.	Her movement records indicate she was granted a subclass 601 visa on 21 December 2018 and she arrived in Australia as the holder of that visa [in] December 2018. 
17.	I accept all of the above matters to be true. 
Summary of Protection claims – Applicants 1 and 2
18.	The protection claims of Applicant 1 and Applicant 2 that were before the delegate were broadly consistent with their respective claims before me.  Neither of the Applicants were interviewed by the delegate.   
19.	In his visa application, Applicant 1 claimed he is gay and that he had been in a relationship with a man in Malaysia for 20 years.  In the first hearing, Applicant 1 claimed that he is actually bi-sexual and not gay and that he had had relationships with women and men in Malaysia but not with one man for 20 years.  He told me that someone from [Workplace 1] where he was working when he arrived in Australia helped him complete the visa application form and this is the reason for those differences between the application form and his oral evidence.  I accept that the applicant received assistance in completing his application form, and as his claims in his protection visa application relate to his sexuality, which were also the claims before me, I place no weight on the differences between his visa application and evidence before me. 
20.	In her visa application, Applicant 2 claimed that her family would force her to marry a man not of her choosing if she returned to Malaysia. 
21.	Before me, Applicant 2 claimed she would be harmed by her half-brother as a result of shame she has bought on her family because a) she ran away from a man her half-brother wanted her to marry against her will and b) she helped her sister leave her violent husband in Malaysia and seek refuge in Australia. Applicant 2 also claimed harm on the basis that her half-brother would, notwithstanding she is married to Applicant 1, force her to divorce and marry the man in Malaysia.
22.	Before the first hearing Applicant 2 provided various documents to the Tribunal in support of both her review application and Applicant 1’s review application, including a written personal statement, photographs, her marriage certificate, birth certificates of her [children], a pre-marriage agreement, a statutory declaration from her sister, and country information regarding forced marriage and the LGBTI community in Malaysia. Where relevant, I have referred to those documents in my reasons for my decision. 
The manner in which each Applicant gave their oral evidence
23.	At the beginning of both the first and second hearings, Applicant 1 and Applicant 2 each gave their consent to combining the hearing proceedings.  They also gave their consent in writing prior to the first hearing. 
24.	I took oral evidence from each Applicant separately so that I could give as much weight as possible to the evidence of each of them, given that their evidence was given independently of the other. Throughout both hearings, each Applicant spoke freely and convincingly.  The evidence of each Applicant did not appear at all contrived.  On the contrary each Applicant spoke in a manner that appeared genuine and convinced me of the truthfulness of their evidence.  Often during both hearings, when putting a question to Applicant 2, before my question was interpreted, she would nod, which indicated to me that her level of English was such that she not only understood my questions but engaged with a level of concentrated attentiveness that impressed upon me she was telling the truth.  This level of attentiveness was also true of Applicant 1.  On occasion, both Applicant 1 and Applicant 2 would answer my question without waiting for it to be interpreted which again impressed upon me their level of engagement in and understanding of the hearing process was high. 
25.	I was conscious throughout both hearings that much of the subject material being discussed, namely the sexuality of Applicant 1, in the context of the relationship between Applicant 1 and 2 being husband and wife, was sensitive in nature, yet despite this, my impression was that each Applicant spoke with honesty and openness which enhanced the credibility of their evidence.  Their evidence, which as noted above, was given independently of each other, was consistent and did not appear to me to be at all rehearsed.  In fact, the opposite was true as I found each Applicant to speak spontaneously about their respective personal experiences in Malaysia, and of their commitment to each other, which greatly impressed upon me the truthfulness of their respective claims. 
The relationship between Applicant 1 and Applicant 2
26.	In their respective oral evidence the Applicants each separately explained to me the history of their relationship and their decision to marry, evidence that was consistent across both Applicants.  They told me that they met in early 2019 at the [Workplace 1] they were both working at and that they each explained to the other their respective fear of harm if they returned to Malaysia.  As a result of their friendship and from a desire to protect each other if they did have to return to Malaysia, they agreed to marry each other.  As a reflection of this, prior to their marriage, in September 2019, they signed a “pre-marriage agreement” where they agreed that Applicant 1 could continue to have same-sex relationships and Applicant 2 could marry Applicant 1 for the purpose of frustrating her family’s desire for her to marry in Malaysia against her wishes.  In the pre-marriage agreement, the Applicants also agreed to not commit domestic violence and to protect any children of their marriage and work together to ensure a safe family environment.  
27.	Whilst unorthodox, I do not find the marriage of the Applicants to be contrived because in their separate oral evidence to me, they each showed genuine commitment to the raising of their children and to each other.  Each Applicant spoke independently of their desire to protect the other from the respective harm they each feared.  Their pre-marriage contract promises to protect each other and this was reinforced in the oral evidence each applicant gave to me. I accept that each Applicant consented to the pre-marriage contract and acted in good faith in a desire to assist each other in theoretically reducing the risk of harm to each of them if they returned to Malaysia. 
28.	On the basis of the oral evidence of both Applicant 1 and Applicant 2, and their marriage certificate, I accept that they are validly married as husband and wife and that they were married in [a suburb of] Sydney [in] November 2019.  
29.	On the basis of the oral evidence of both Applicant 1 and Applicant 2, and the birth certificates of their children, I accept that both Applicants are the biological parents of their [children]. 
Applicant 1’s family in Malaysia 
30.	At the first hearing Applicant 1 told me that his parents are alive and live in Sabah.  He told me he has [a number of] brothers and sisters (he is the [birth order]). He told me he was born in Sabah, at [age] moved with his family to Negeri Sembilan and then once he and his siblings had finished school, his parents moved back to Sabah whilst his siblings live in various locations in Malaysia. 
31.	Applicant 1 told me he is Muslim and he is ethnically Malay, which is the same as the information in his protection visa.  On the basis of the applicant’s evidence I find that Applicant 1 is Muslim and he is of Malay ethnicity and from Sabah. 
Applicant 1’s sexuality, relationships and harm experienced in Malaysia
32.	At the first hearing I discussed Applicant 1’s sexuality with him.  He told me about the two relationships he had had with men in Malaysia.  He claimed that when he was about [age] years old, he and a group of friends whilst under the influence of drugs, started having sex with each other, where he was having sex with men and women.  He claimed that when sober, he realised that he liked having sex more with men but that he did also like having sex with women. 
33.	I asked Applicant 1 how he describes his sexuality and without hesitation said he told me he is bisexual.  He told me that whilst he enjoys sex with men he also has sex with his wife. 
34.	I asked Applicant 1 about his relationship history in Malaysia.  He claimed that when he was about [age] years old, he had a relationship with a male school friend that lasted for about 12 months and that during this time he was still living with his parents and some of his siblings.  He claimed that he and his male partner [Partner A] had to hide their relationship from their respective families and conduct the relationship in secret.  He told me that at school they acted like school friends but conducted their relationship, which was a sexual one, in secret.  Applicant 1 further claimed that this was difficult as he was living at home, and when his mother caught him having sex with [Partner A] at home, she told his [brothers].  He claimed that [his] brothers demanded that he “change.”  He also claimed that his brothers wanted to report him to the police and the only reason his brothers did not do this was because his mother begged his brothers not to. Applicant 1 claimed that his mother also begged him to “change” and so he promised his family he would “change” although he knew he could not change the way he is. He claimed his family were disappointed with him and accused him of bring shame on the family. The applicant also claimed that the news of him having sex with [Partner A] spread through their village and said people looked down on him, belittled him and he was teased at school. 
35.	Applicant 1 claimed that his second relationship with a man started when he was [age] years old, when he met [Partner B], an older man who worked at [a workplace] in Negeri Sembilan where Applicant 1 also worked after school. He told me that they were always together.  Applicant 1 claimed initially in their relationship he was living at home but then when his family again discovered he was having sex with a man, one of his [brothers] beat the Applicant that resulted in the Applicant requiring medical treatment for a broken arm and swollen face.  He claimed that his family chased him out of the house and so he moved into [Partner B’s] place, where he lived until he and [Partner B] then moved to Kuala Lumpur, which was then shortly before he left Malaysia.  He claimed that the relationship with [Partner B] lasted for about two years and that he and [Partner B] had a common group of friends, some who were gay and some who were not.  
36.	Applicant 1 further claimed that about two years into his relationship with [Partner B], he and [Partner B] went to a [centre] and the two of them had sex in one of the small [rooms].  He claimed that they did not realise there was a CCTV camera in the room.  He claimed that when his [brothers] found out that he was once again having sex with a man, they again beat him and told him that he was bringing shame on their family and again demanded that he “change”.  Applicant 1 claimed that one of his brothers called the [centre] and obtained a copy of the CCTV footage, footage which Applicant 1 believes his brother still has.  
37.	Applicant 1 claimed that after he was beaten by his brothers a second time, he and [Partner B] moved to Kuala Lumpur to get away from his family.  He claimed that and he and [Partner B] lived there together for a few months before Applicant 1 decided to come to Australia and this was then the end of his relationship with [Partner B].  
38.	During the second hearing, Applicant 2 told me that shortly after she met Applicant 1, before they married, he told her that he liked to have sex with men and women. 
39.	In giving his evidence to me about his sexuality and his past relationships in Malaysia, Applicant 1 was coherent, fluent and generally did not hesitate when answering my questions.  Applicant 2’s evidence about her husband’s sexuality was consistent with Applicant 1 identifying as bisexual.  For these reasons, I accept that Applicant 1 is bisexual. I also accept that he has had sex with men and women in Malaysia in the past and that he has had two committed sexual relationships with men in Malaysia.  I also accept that he experienced harm in being belittled and teased at school, and that he was subject to physical harm from his [brothers]. 
Applicant 1’s life as a bisexual man in Australia
40.	I asked Applicant 1 about his life as a bisexual man in Australia.  He told me that he does have sex with his wife (and that he is the biological father to their [children]) and that since he has been living in Melbourne, he has had casual sex with men he meets at various clubs at night in Melbourne.  He told me that he has not had any committed relationships with men since he has been in Australia.  He also told me that the last time he had sex with a man was about 6 months ago and that his focus currently is on being a father to his children.  He told me that in Australia he is free to be who he is and that he can live as a bisexual man in Australia without any fear.  I accept that Applicant 1 has had casual sex with men in Australia, but I also accept that it was casual in nature and not in the context of any kind of commitment.  
41.	I asked Applicant 1 if he thought that his wife would accept him continuing to have casual sex with men whilst he was married to her and he said he thought she would accept the situation because they both agreed to support each other in their pre-marriage contract and that she knows he is bisexual. 
42.	In the second hearing, Applicant 2 told me that she and Applicant 1 have agreed to look after each other and that her husband protects her and the children and that she respects him to keep her safe.  
Applicant 1’s fear of future harm
43.	In the first hearing, I asked Applicant 1 what it felt like to be a bisexual man in Malaysia. He claimed that he became addicted to having relationships with men and that as Malaysia is a Muslim country, where it is illegal to have relationships with men, he always felt afraid and he never felt free.  He told me that his family, particularly his mother, begged him to change and to stop having sex with men, but he knew he could not change as he is bisexual, that is how he considers himself. 
44.	I asked Applicant 1 if he had had any positive experiences as a bisexual man in Malaysia and whether he had felt he could live more openly with [Partner B] as a bisexual man in Kuala Lumpur in those few months before he came to Australia.  Applicant 1 claimed that he did not feel any safer in Kuala Lumpur than he did in Negeri Sembilan because his brother is a member of a gang and had distributed the Applicant’s photo amongst the gang, and as a result he felt afraid all of the time.  I asked the Applicant to describe the gang to me and he told me that his brother has a large group of friends who are all involved in gambling and they are well connected with each other and the members of the gang live not just in Negeri Sembilan but in other locations around Malaysia. 
45.	He claimed his mother told him that as his brother has given his photo to the gang members and that she told Applicant 1 that is will not be safe for him in Malaysia and because of his brother’s gang connections there is nowhere he can hide.  He told me that his mother told him to leave Malaysia for his own safety.   
46.	It concerns me that the Applicant’s own mother has expressed her fear of harm towards her own son, with the perpetrator of that harm being another of her own sons.  On the basis of Applicant 1’s evidence, I accept that his [brother] is part of a gang, that his brother has distributed a photo of Applicant 1 throughout the gang, that the gang has connections throughout Malaysia and that his [brother] has CCTV footage of Applicant 1 having sex with [Partner B].
47.	I asked Applicant 1 if he keeps in touch with any of his family in Malaysia and he told me he only speaks with his mother, and then only sometimes. He told me he has on occasion sent messages to his [brother], asking his brother to forgive him for his sexuality but his brother has not responded. 
48.	He told me he is fearful that his [brothers] will beat him and physically harm him again if he returns to Malaysia and that his brother will distribute the CCTV footage from the [centre] throughout his gang network. He also told me that since he has been in Australia, his mother told him that she has begged her [son] (Applicant 1’s [brother]) to forgive Applicant 1 but he has told he will never forgive Applicant 1 and she fears that her [son] would physically harm Applicant 1 if he did return to Malaysia and also report him to the “Muslim council.” 
49.	I asked Applicant 1 if he feared harm from anyone else other than his [brothers] if he returned to Malaysia and he said he felt scared that he would get into trouble with the police, and that as Islamic laws are so strict in relation to bisexual people he would live in a constant state of fear. He claimed that even though this would be the case he thinks he could not change and would still have relationships with men if he returned to Malaysia but that he also would want to return to Malaysia with his wife and children . He told me that in Malaysia he could not engage in any public display of affection with a man and if he did he would be condemned and beaten.  
50.	Applicant 1 also claimed that he would be arrested because his brother has threatened to report him to the “Muslim council” and as his brother has video proof of him having sex with a man, he would be detained, imprisoned and his life would be destroyed.  He feared that his children would then suffer as a result.  He told me he does not want to be separated from his children. 
51.	Before the first hearing, Applicant 2 provided a personal statement and country information about the harm and discrimination that people within the LGBT community experience.  In her personal statement, Applicant 2 stated that she fears her husband would be reported to the Islamic Council, that he would be shamed, discriminated against and be subject to criminal sanction under Syariah law for having sex with a man.
52.	I accept the oral evidence of Applicant 1 and the written evidence of Applicant 2 and on the basis of that evidence I accept that the [brother] of Applicant 2 would report Applicant 1 to the Islamic Council and would also distribute the CCTV footage of Applicant 1 having sex with [Partner B] to the police and Islamic Council. 
Applicant 2’s life in Malaysia
53.	In her protection visa application, Applicant 2 stated she was born in [Village 1] in [Town 1], Sabah, and she confirmed this in the first hearing.  
54.	Consistent with the information in her protection visa application, in the first hearing, Applicant 2 told me she is Muslim and she is ethnically Malay, both of which I accept. 
55.	Both in her written personal statement and her oral evidence at the first hearing, Applicant 2 told me that she is the [birth order] of [a number of] children and that she has [brothers] and [sisters]. She told me that her mother had [a number of] children from her first marriage and when her mother’s first husband died, her mother married Applicant 2’s father and then had [number] more children, including Applicant 2. She told me that her father has passed away and that her oldest brother, the first-born child from her mother’s first marriage, is the head of the household. 
56.	She told me that all of her siblings (except for one sister [Sister A], who is in Australia) live in Malaysia. Her oldest brother, and one of her sisters, their respective spouses and her sister’s daughter (Applicant 2’s niece) live in [Town 1] with Applicant 2’s mother. 
57.	Applicant 2 told me that after leaving school she studied  [a] degree and then for about [number] years, prior to coming to Australia, she worked as a[Occupation 1].  
Applicant 2’s forced marriage claim and harm experienced in Malaysia
58.	Towards the end of the first hearing and in the second hearing, I asked the applicant to explain to me why she came to Australia.  She told me that without her knowledge or consent, her oldest sibling, her brother, [Brother A], had arranged for her to marry a man called [Mr A].  She claimed her brother owes [Mr A] a debt that her brother cannot pay, and that [Mr A] had agreed to settle the debt if [Brother A] arranged for Applicant 2 to marry [Mr A].  
59.	She claimed that on [in] September 2018, a proposal celebration occurred at her mother and brother’s house where family and friends of her brother [Brother A] came, with [Mr A], to the house to celebrate the future marriage of [Mr A] to Applicant 2.  She claimed that the marriage between her and [Mr A] was to occur on [in] January 2019. Accompanying her written statement, are three photographs of various people sitting on the floor of her family home, with gifts being offered by [Mr A] to the family as a celebration to welcome [Mr A] to the family. During the second hearing, I discussed the photographs with Applicant 2.  She told me which man in the photographs is [Mr A].  She is not in any of the photographs, and when I asked why she told me that the event held in September was meant only to welcome [Mr A] to the home and that she was not to meet him until just prior to the wedding and that she was in another room during the welcome celebration.  She told me her niece took the photographs and gave them to her and that was the first time Applicant 2 knew what her brother [Brother A] was arranging for her. She told me that as far as she knew wedding invitations had been sent and a wedding date planned, all without her knowledge or consent.  She claimed in her oral evidence that her sister asked amongst their community about [Mr A] and found out that he was divorced and “was a bit rough and not a soft person and is not a good man.”  
60.	Applicant 2 claimed when she found out that her brother was going to force her to marry [Mr A], she told [Brother A] and her mother that she was refusing the proposal and that she would not marry [Mr A] under any circumstances.  She claimed that [Brother A] beat her and slapped her, causing her to bleed.  She claimed [Brother A] was very angry with her for days and told her that a lot of people knew about the marriage and that if it did not occur she would bring shame on the family and for that he would never forgive her. She claimed that for the next couple of months, before she came to Australia, she endured verbal abuse from her extended family who accused her of bringing shame to the wider family if she continued to refuse to marry [Mr A].  She told me for those few months to reduce further harm to her from her brother, she pretended that she had changed her mind and would marry [Mr A], but it was during this time that she planned her departure from Malaysia to avoid further harm from her brother. 
Applicant 2’s fear of future harm
61.	At the second hearing, I discussed with Applicant 2 the harm she fears from her oldest brother if she returns to Malaysia.  Specifically I queried now that she is married with [children], living independently away from her brother, why she fears her brother will still force her to marry [Mr A]. She claimed that the debt her brother owes [Mr A] is a continued motivation for her to be married to [Mr A] but that as her brother is the head of the household, he controls everything that happens in their family particularly in relation to the women in their family. Applicant 2 told me that when her first [child] was born and she told her mother of the birth, that her mother said she was worried because [Brother A] was still very angry that the Applicant had disobeyed him and that he would never accept her marriage to Applicant 1 was genuine even though she now had a child with Applicant 1.  She told me that her mother, whilst being very upset and worried, is powerless, as her mother is controlled by her brother.
62.	Applicant 2 claimed that when she and her sister [Sister A] were younger, her brother would hit them with a cane and a belt and she told me that this makes her fearful that if she went back to Malaysia he would harm Applicant 2’s [children] as revenge for her disobeying her brother.  She told me that when she was older, she tried to avoid her brother and that during her last few years of school she went to a boarding school, then she lived away from the family home whilst she was at university and then moved to Peninsula Malaysia for work. 
63.	I asked Applicant 2 if she knows whether her brother still wants her to marry [Mr A] and she said that in the two weeks prior to the second hearing, her niece had told her that her brother’s position had not changed.  She said her niece told her that her brother has spread Applicant 2’s photo amongst his friends and told them to tell him if they see Applicant 2 if she does return to Malaysia, and that he “wants her alive.”  When I asked her what she thinks her brother meant she said is scared he wants to physically harm her.  Applicant 2 claimed that [in] April this year, her brother sent her a threatening message on [social media] and that he has not forgiven her for disobeying him which is also what her mother has told her recently.  She did not hesitate in giving this evidence to me and spoke in a manner that convinced me of the truthfulness of her evidence.  
64.	In both her oral evidence and in her written statement, Applicant 2 stated that one of her sisters, [Sister A], is currently living in Australia, and seeking protection from her [Sister A’s] violent husband in Malaysia.  Applicant 2 claimed that as [Sister A] came to Australia with the help of Applicant 2, which has cast further shame on the family, her brother has a further reason to harm her. Applicant 2 claimed that her brother would end up hitting her, brain-washing her and hurt her until she was so broken that she would agree to divorce Applicant 2 and marry [Mr A]. 
65.	I asked Applicant 2 if she feared harm from anyone else and she claimed that [Sister A’s] husband would also physically harm her because he is a violent man.  She claimed that [Sister A’s] husband lives in Kota Kinabalu and between him and her brother, and their respective friendship networks they would find her. 
66.	She claimed that as she was the one who helped her sister escape her violent marriage and come to Australia, in the context of her Muslim culture, a wife must always obey her husband and must never confront your husband and so by her sister leaving her husband, Applicant 2 has actively disobeyed the cultural norm of a Muslim man controlling his wife. 
67.	Applicant 1 gave a consistent account of his wife’s fear of harm upon return to Malaysia. 
68.	At paragraphs [24] and [25] above, I have described how the evidence of Applicant 1 and 2 was given to me at both hearings.  Considering this, and the consistency in the oral evidence of Applicant 1 and 2, Applicant 2’s written statement and accompanying photographs, I accept that:
•	Applicant 2’s mother is widowed (twice) and Applicant 2’s brother [Brother A] is the head of the household and that [Brother A] engages in male dominated control of his own mother within that household;
•	Applicant 2’s brother [Brother A], had, prior to her departure from Malaysia, arranged for Applicant 2 to marry [Mr A];
•	Applicant 2’s brother [Brother A] still expects Applicant 2 to marry [Mr A] if she returns to Malaysia and that [Brother A] owes [Mr A] a debt which is a factor in [Brother A’s] desire for Applicant 2 to marry [Mr A];
•	Applicant 2 assisted her sister [Sister A] to leave [Sister A’s] husband and come to Australia;
•	[Sister A’s] husband is a violent man;
•	Applicant 2’s brother was physically violent towards Applicant 2 and [Sister A] when they were young;
•	Applicant 2’s niece has warned her recently that [Brother A], Applicant 2’s brother, has not forgiven her for disobeying him; and
•	Applicant 2 received a direct warning from her brother [Brother A], as recently as April 2025, that he has not forgiven her.
Family unit members
69.	Each Applicant gave me consistent evidence that they live together in the same house, they share a bedroom, and they have a shared responsibility for the care and welfare of their children.  Each Applicant also told me that they have a shared financial commitment towards each other and to their children.  They each told me separately that they combine their finances and that Applicant 2 is not currently working but that the money Applicant 1 earns pays for the living expenses for both Applicants and their children.  It was clear to me that each Applicant had not only discussed openly and honestly the reasons why they feared harm but appeared to genuinely care for and respect each other with a desire to protect each other from future harm.  On the basis that I accept Applicant 1 and 2 are legally married to each other, that they live together, that they have a mutual commitment to a shared life as a married couple to the exclusion of all others and that the relationship between them is genuine and continuing, I find that they are spouses.  For the same reasons, I also find that Applicant 2, and their [children], are all members of the family unit of Applicant 1.
70.	I have found above at [40] that Applicant 1 has engaged in casual sex with men since he married his wife.  I have also found that his conduct in this regard was not in a committed sense to any of the men he had sex with.  Given my consideration of the entirety of the evidence of the nature of the commitment that Applicant 1 and 2 have with each other, which includes the fact that they are legally married to each other, their shared commitment to the raising of their [children] of the marriage (a factor that I give significant weight), and their shared financial commitment, and that any infidelity by Applicant 2 was casual in nature, I am satisfied that Applicant 1 and 2 are spouses and that the nature of their commitment in its entirety is to the exclusion of all others.  
71.	The oral evidence of each Applicant explaining the respective claims of each other, was sincere, and consistent with the written claims in the statement that Applicant 2 sent to the Tribunal before the first hearing. This is one of the reasons why I find the protection claims of both Applicant 1 and Applicant 2 to be credible and has contributed to the outcome of my decision in setting aside each application on the basis that Applicant 1 and Applicant 2 are both refugees, as I explain below. 
Identity and Receiving Country of both Applicants
72.	Before me is a copy of the respective Malaysian passports of Applicant 1 and Applicant 2. The delegate was satisfied with the identities of each applicant.  Both applicants separately confirmed their identity with me at the first hearing.  I am therefore satisfied of their respective identities. 
73.	In their respective protection visa applications and at the first hearing both Applicant 1 and Applicant 2 stated that they are Malaysian citizens, which I accept.  I find that Applicants 1 and 2 are both Malaysian citizens and I have assessed their protection claims with Malaysia as the receiving country. 
74.	Again at the first hearing, both Applicant 1 and Applicant 2 told me that they do not have a right to enter or reside in a third country.  This is consistent with their evidence in their respective protection visa applications. There is nothing before me to suggest that either Applicant 1 or Applicant 2 holds citizenship of a country other than Malaysia or that they have the right to enter and/or reside in a third country. I find that Applicant 1 and Applicant 2 do not have a right to enter and reside in a country other than Malaysia. It follows that s36(3) of the Act does not apply to either Applicant 1 or Applicant 2.
Is Applicant 1 a refugee?
Does the applicant have a well-founded fear of persecution?
75.	For the applicant to be considered at law a refugee, he must have a well-founded fear of persecution. Well-founded fear of persecution is defined in s5J of the Act which requires the satisfaction of various and also contains some qualifications.
76.	Subjectively, the Applicant must in fact hold a fear of being persecuted for one or more of five reasons, and objectively, there must be a real chance the person 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.
77.	Applicant 1 has claimed a fear of persecution on the basis of his sexuality, that he is bisexual.  I consider that membership of the LGBTI community can constitute a particular social group (“PSG”).  A person is to be treated a member of a PSG other than that person’s family if a characteristic (his sexuality), other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic, and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.  Having accepted that Applicant 1 is a bisexual man, I also accept that he is a member of the PSG comprising the LGBTI community in Malaysia.  Membership of a PSG is one of the reasons contemplated in section 5J(1)(a) and I am satisfied therefore that s5J(1)(a) is met.
78.	Applicant 1 told me that he cannot change his sexuality and whilst he is committed to his wife and children, he would still want to have sex with men and want to be free to display affection with a male partner in public which I accept. I also accept that Applicant 1 is Muslim and that he is from Sabah. 
79.	Country information indicates that Malaysia is a conservative Islamic country where Muslim members of the LGBTI community are usually prosecuted under syariah law rather than federal (civil) law.  Country information also indicates that “Malaysia is generally intolerant of LGBTQIA+ identities and behaviours. Adult same-sex acts are illegal in Malaysia, regardless of age and consent…Across Malaysia there are 52 laws that criminalise different forms of LGBTQIA+ behaviour… Prosecutions have taken place under these laws, which includes penalties of whipping and up to 20 years in prison.  While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences.”
80.	Overall DFAT asses that “members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.”
81.	Given the physical harm that the applicant experienced in Malaysia, harm that I have accepted, and that I accept his brother has CCTV video footage of Applicant 1 engaging in sex with a man, that I accept the applicant’s brother would report him to the Islamic Council, and considering the country information quoted above, I am satisfied Applicant 1 faces a real chance of experiencing serious harm in the form of a threat to his life or liberty, significant physical ill treatment and significant physical harassment if returned to Malaysia.  I am therefore satisfied that section 5J(1)(b) is met. 
82.	The serious harm the Applicant faces is from both his own family and the Malaysian state.  As the Malaysian state is one of the perpetrators of the harm, I accept that the serious harm extends to all areas of Malaysia and that state protection is not available to Applicant 1.  I am therefore satisfied that section 5J(1)(c) and section 5J(2) are met.
83.	Applicant 1 cannot alter or modify his sexuality, which I find is fundamental to his identity and therefore I am satisfied that s5J(3) is met.  Applicant 1’s fear of persecution is because of his membership of a PSG and this reason is the essential and significant reason for the persecution he fears.  The persecution he fears includes significant physical harassment, significant ill treatment, which is serious harm, but also systemic and discriminatory.  I am therefore satisfied that section 5J(4) is met. 
84.	In this case, whilst the marriage of Applicant 1 to Applicant 2 occurred in Australia, I do not accept that this is conduct that is relevant to the provision in s5J(6) of the Act.  This is because, as I have found above at [27] the agreement between Applicant 1 and Applicant 2 to marry was motivated by a desire to protect each other from harm if they did return to Malaysia and not for the purpose of strengthening their respective protection claims. 
85.	For the above reasons, I am satisfied that Applicant 1 has a well-founded fear of persecution for reason of his membership of a PSG (being the LGBTI community in Malaysia) if he returns to Malaysia now or in the reasonably foreseeable future.  It follows that I am satisfied that Applicant 1 is owed protection as a refugee under s36(2)(a) of the Act. 
86.	Having concluded that Applicant 1 does meet the refugee criterion in s36(2)(a), it is not necessary for me to consider the alternative criterion in s36(2)(aa).
Is Applicant 2 a refugee?
Does the applicant have a well-founded fear of persecution?
87.	Applicant 2 has claimed a fear of persecution from her brother and her brother-in-law because of her refusal to marry a man of her brother’s choosing, and because of the shame she has bought on her family for disobeying the male head of her Muslim household.  I consider that Applicant 2’s claimed fear of harm is because of her gender and specifically because she is a Muslim woman. Given that fact, I am satisfied that the applicant is a member of a particular social group (“PSG”) called “Muslim women in Malaysia.” A person is to be treated a member of a PSG other than that person’s family if a characteristic (her gender and religion), other than a fear of persecution, is shared by each member of the group, and the person shares, or is perceived as sharing, that characteristic, and that characteristic is innate or immutable or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society. Having accepted that Applicant 2 is a Muslim woman, I also accept that she is a member of the PSG comprising of Muslim women in Malaysia.   I am satisfied that s5J(1)(a) is satisfied.
88.	For Applicant 2 to have a well-founded fear of persecution, there must be a real chance she will be persecuted and that real chance must relate to all areas of Malaysia.  Gender based violence is founded in the belief that men are entitled to prevent or punish behaviour that is considered not to conform to religious, cultural and social practices. “[D]iscrimination on the basis of sex, and inequality, persist for women and girls in Malaysia. Although women participate widely across various aspects of Malaysian society, some conservative cultural and religious practices continue to limit their choices…”  Syariah law applies to women in respect of family law matters (including marriage and divorce).  Malaysian Muslim women are subject to control by male relatives within the realm of family law, in a way that men are not.  For example, Malaysian organisations Musawah and Sisters in Islam report that regardless of her age a Muslim woman requires the consent of a male guardian (wali) to marry.”  
89.	Amendments to domestic violence laws in Malaysia expanded the definition of domestic violence to protect family members from other family members, and also “introduced enhanced procedures, including Emergency Protection Orders (EPOs) that can be applied immediately for up to a week to prevent a perpetrator from entering a safe location. An EPO can also be used to remove an offender from the house where the victim lives.”  However, in-country sources told DFAT that EPOs were difficult to obtain and required strong evidence of violence or damage to property and also that police reportedly do not always enforce EPOs.
90.	I have accepted that that Applicant 2’s brother was violent towards Applicant 2 when she was younger.  I have also accepted that he was physically violent towards her when she told him that she would not marry [Mr A].  I also accept that Applicant 2’s brother [Brother A], owes a debt to [Mr A] and that [Brother A] considers Applicant 2 to have bought significant shame on the family for disobeying him and that as recently as April this year, [Brother A] threatened Applicant 2 and told her that he has not forgiven her.  I consider that [Brother A’s] past behaviour towards Applicant 2 when she was younger, as well as his continued threats towards her is indicative of the continuing desire of [Brother A] to want to harm Applicant 2 regardless of where she is located if she returns to Malaysia now or in the reasonably foreseeable future.  
91.	In the context of a conservative male dominated patriarchal society, for the reasons in paragraphs [88] to [90], I am satisfied that there is a real chance that Applicant 2 will suffer serious harm on the basis of her membership of a PSG, being Muslim women in Malaysia, if she returns to Malaysia now or in the reasonably foreseeable future. 
92.	In considering whether the risk of harm applies to all areas of Malaysia, I have considered the motivation of [Brother A] to want to harm Applicant 2, that he had engaged in GBV towards Applicant 2 from when she was young, and that that he engages in coercive control of his own mother. “The distinguishing characteristic of domestic and family violence is that it can present in many forms and can occur within a variety of relationships and is most likely to involve a complex pattern of controlling behaviour and violence over a period of time, rather than a single incident. This is often referred to as coercive control… It is likely therefore that risk will heighten where a perpetrator increasingly engages in multiple forms of violence or abuse, or does so more frequently, intensely or severely.”  These factors in combination I find mean that the real chance applies to all areas of Malaysia and therefore I am satisfied that section 5J(1)(c) is met.
93.	The applicant would not have a well-founded fear of persecution if effective protection measures are available to her in Malaysia.  Country information indicates that whilst Malaysia’s police force is based on the British constabulary model and can be considered to be professional and effective, it also indicates that protection of women who are victims of gender-based violence is not always effective. “Women who approach police for help may not have access to a female officer. According to in-country sources, the families of women who have experienced GBV often placed pressure on them to drop the matter, either directly or through police officers dealing with the case… According to in-country sources, police often failed to follow up on reports of GBV. It was not uncommon for a woman who has experienced GBV to be denied a police report, not be informed whether the offender has been charged, and not advised of the next steps in their legal process.”
94.	“The police force and judicial system may not be reasonably effective or impartial where there is differential treatment such as inconsistent penalties or inconsistent enforcement of criminal laws.” This, combined with the country information quoted above indicates that prosecution and enforcement of the law relating to gender-based violence is not conducted uniformly. DFAT assesses that in relation to women seeking protection from GBV, state protection, whilst available, is often inadequate or ineffective.  Given the country information quoted, I am satisfied that effective protection measures are not available to the applicant. Section 5J(2) of the Act is therefore satisfied.
95.	I find that the applicant’s gender (being a woman) and her religion (Muslim) is a fundamental part of her identity and that she cannot modify or conceal her gender to avoid a real chance of persecution, and indeed she is not required by law to do so. Section 5J(3) is therefore satisfied.
96.	The applicant’s membership of a particular social group (Muslim women in Malaysia) is the essential and significant reason for the persecution. Section 5J(4)(a) is satisfied.
97.	The applicant fears that her brother-in-law would physically harm her, and that [Brother A] will physically harm her, mentally harm her to the point she would give in and divorce and then marry against her will, evidence that I accept. I am therefore satisfied that the persecution feared by the applicant amounts to serious harm in the form of a threat to her life or liberty, significant physical harassment of her and significant physical ill treatment of her. Section 5J(4)(b) is satisfied.
98.	The persecution must involve systematic and discriminatory conduct. I have found that the applicant faces a real chance of persecution because she is a membership of a PSG being “Muslim women in Malaysia.”  DFAT reports that violence against women and girls is a significant problem.  “A 2021 survey by the Women’s Aid Organisation found 53 percent of respondents believed domestic violence was a ‘normal’ reaction to stress or frustration.”  Whilst gender-based violence can be experienced by men and women, it is widely acknowledged to be experienced significantly more by women than men.  I am satisfied that the persecution in this case does involve conduct that is systematic and discriminatory towards Muslim women. Section 5J(4)(c) is satisfied.
99.	In this case, whilst the marriage of Applicant 2 to Applicant 1 occurred in Australia, I do not accept that this is conduct that is relevant to the provision in s5J(6) of the Act.  This is because, as I have found above at [27] the agreement between Applicant 1 and Applicant 2 to marry was motivated by a desire to protect each other from harm if they did return to Malaysia and not for the purpose of strengthening their respective protection claims. 
100.	For the above reasons, I am satisfied that Applicant 2 has a well-founded fear of persecution for reason of her membership of a PSG (being Muslim women in Malaysia) if she returns to Malaysia now or in the reasonably foreseeable future.  It follows that I am satisfied that Applicant 2 is owed protection as a refugee under s36(2)(a) of the Act.
101.	Having concluded that Applicant 2 does meet the refugee criterion in s36(2)(a), it is not necessary for me to consider the alternative criterion in s36(2)(aa).
decision
102.	In respect of Applicant 1, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.
103.	In respect of Applicant 2, the Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s36(2)(a) of the Migration Act.

Dates of Hearing:				29 April 2025 and 9 May 2025

Representative for the Applicants:		N/A

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.
…