Australian Protection Visa Requirements

The Australian protection visa requirements that decide most Subclass 866 claims are the elements of the refugee definition in sections 5H and 5J of the Migration Act 1958. The applicant must have a well-founded fear of persecution for one of five reasons. There must be a real chance of persecution, the persecution must be serious and targeted, and it must exist in all areas of the applicant's country. Effective protection from the authorities, or a safe option to modify behaviour, can defeat the claim. This article explains each of the Australian protection visa requirements in the refugee test, and how the Department applies them.

The refugee test is the first test the Department applies. Section 36A of the Migration Act requires the decision maker to assess the refugee criterion in section 36(2)(a) before considering complementary protection. Most applicants who are refused fail on one of the elements explained below. Understanding the Australian protection visa requirements in the refugee test, element by element, is the clearest way to understand why a claim succeeds or fails.

What are the Australian protection visa requirements for a refugee claim?

The Australian protection visa requirements for a refugee claim under section 36(2)(a) are these:

• The applicant is outside their country. Under section 5H(1), the applicant must be outside their country of nationality or, if stateless, their country of former habitual residence.
• A well-founded fear of persecution. Under section 5J(1), the applicant must fear persecution for a Convention reason, there must be a real chance of persecution, and that real chance must relate to all areas of the country.
• A Convention reason. Race, religion, nationality, membership of a particular social group or political opinion.
• Persecution as defined. Under section 5J(4), the Convention reason must be the essential and significant reason, the harm must be serious, and the conduct must be systematic and discriminatory.
• No effective protection. Under section 5J(2), there must not be effective protection measures available in the country.
• No safe modification of behaviour. Under section 5J(3), the applicant must not be able to avoid the risk by reasonable steps to modify their behaviour, subject to important exceptions.
• No exclusion. The applicant must not be excluded by section 5H(2), and section 36(1C) must be satisfied.

Each of these Australian protection visa requirements is explained below. The broader framework of the Subclass 866 visa, including health, character and validity, is covered in the complete guide to the Subclass 866 protection visa. The other ground, complementary protection, is explained on the complementary protection page.

Why the Australian protection visa requirements are written into the Migration Act

The Australian protection visa requirements for refugees are written into the Migration Act itself, rather than left to the text of the Refugee Convention. The Department's guidelines explain that Australia's interpretation of the refugee definition in Article 1A(2) of the Convention has been implemented in the Act. Sections 5H to 5LA now set out the meaning of refugee, what a well-founded fear requires, what persecution means, and how a particular social group is identified.

This matters for applicants because the Department and the Administrative Review Tribunal apply the words of the Act, not general descriptions of refugee law from other countries or older sources. Some commonly repeated statements about the refugee test do not match the Act. The relocation rule explained below is the clearest example.

The Act also sets out, in section 5AAA, that the applicant is responsible for specifying the particulars of the claim and providing sufficient evidence. The Australian protection visa requirements are therefore not only legal tests. They are tests the applicant must present evidence to meet. The definitive guide to the protection visa and the protection visa eligibility checklist explain how these requirements fit into the wider application.

The three elements of a well-founded fear

The Department's guidelines describe three elements of a well-founded fear of persecution under section 5J(1).

The subjective element

The applicant must actually fear being persecuted for at least one of the five Convention reasons. This element is rarely the problem in practice. The difficulty arises where the applicant's conduct seems inconsistent with fear, for example returning to the country voluntarily, or waiting a long time to seek protection. The Department may raise those facts as a credibility concern.

The objective element: a real chance

There must be a real chance of persecution. A real chance is not a remote or far-fetched possibility. It does not have to be more likely than not. It is a substantial, not insubstantial, chance. This is one of the Australian protection visa requirements most often misunderstood. An applicant does not need to prove that persecution will certainly happen, or that it is probable. They need to show that the chance is real.

The assessment looks forward, to the reasonably foreseeable future. Past persecution is not required, but it is often strong evidence of future risk. The Department's guidelines note that even where past harm is not accepted, the officer must still address whether there is a real chance of persecution in the future.

The relocation element: all areas of the country

Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the receiving country. If there is a part of the country where the applicant would not face a real chance of persecution, the refugee test is not met.

The guidelines direct officers to assess first whether there is a real chance of persecution in the applicant's home region. If there is, the officer then considers whether the real chance extends to all areas. The officer should also consider whether the applicant would have safe and lawful access to their home region or to another part of the country.

Relocation under the refugee test is not a reasonableness test

One of the Australian protection visa requirements is regularly misstated. Many sources say that a refugee claim fails if it would be reasonable for the applicant to relocate within their country. That is not the test under section 5J(1)(c).

The Department's guidelines state it plainly: when making an assessment under section 5J(1)(c), an officer should not consider the reasonableness of relocation. The only question is whether the real chance of persecution relates to all areas of the country. If there is a place where there is no real chance of persecution, and the applicant can access it safely and lawfully, the refugee test is not met, whether or not moving there would be reasonable for that person.

Reasonableness does matter under complementary protection. Section 36(2B)(a) provides that there is taken not to be a real risk of significant harm if it would be reasonable for the applicant to relocate to an area where there would not be that risk. The High Court has described the test as whether relocation would be reasonable in the sense of practicable, taking into account the applicant's circumstances, such as education, employment prospects, language and family networks.

The practical consequence is significant. A person who cannot practicably live in another part of their country may fail the refugee test but still meet the complementary protection test on the same facts. That is why both grounds should always be considered, and why the Department assesses complementary protection when the refugee test is not met.

The five Convention reasons

The Australian protection visa requirements for a refugee claim include a link between the persecution and one of five reasons. Under section 5J(4)(a), that reason must be the essential and significant reason for the persecution. It does not have to be the only reason. Where a persecutor has several motives, the Australian protection visa requirements are met if the Convention reason is the essential and significant one.

Race, religion, nationality and political opinion

Race and nationality include ethnicity and national or ethnic origin. Religion includes holding a religious belief, practising a religion, not practising one, converting, or leaving a faith. The religious persecution page explains these claims. Political opinion includes opinions the applicant actually holds and opinions that are imputed to them by the persecutor, whether or not the applicant holds them.

Membership of a particular social group

A particular social group, other than a family, is defined in section 5L. A person is treated as a member if a characteristic is shared by each member of the group, the person shares or is perceived as sharing it, and the characteristic is innate or immutable, is so fundamental to identity or conscience that the person should not be forced to renounce it, or distinguishes the group from society. The characteristic must not be a fear of persecution.

Examples discussed in the Department's guidelines include groups defined by sexual orientation or gender identity, and groups of separated or divorced women in particular societies. The LGBTI protection visa page explains claims based on sexual orientation and gender identity.

Section 5K deals with a particular social group consisting of a family. In broad terms, persecution feared by a family member is disregarded unless that family member's own persecution was for a Convention reason.

What counts as persecution under section 5J(4)?

Persecution under section 5J(4) must involve serious harm and systematic and discriminatory conduct. These two Australian protection visa requirements separate persecution from general hardship.

Section 5J(5) gives a non-exhaustive list of serious harm. It includes a threat to the person's life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services where that threatens capacity to subsist, and denial of capacity to earn a livelihood of any kind where that threatens capacity to subsist.

Systematic and discriminatory conduct, the guidelines explain, refers to selective harassment rather than random acts of violence. A person caught in general crime or civil unrest, without being targeted for a Convention reason, will usually not meet this requirement. They may, however, need to be assessed for complementary protection.

Persecution does not have to come from the government. It can come from a religious group, a militia, a criminal organisation, a community or a family. Where it comes from a non-state actor, the key question becomes whether effective protection is available.

Several smaller harms can add up to persecution

The Australian protection visa requirements for serious harm can be met by several acts of harm together, even if no single act would be enough on its own. The Department's guidelines direct officers to consider whether a number of individual acts or instances of harm, combined, would reach the threshold of serious harm, and to assess them cumulatively. The guidelines note that failing to do so may result in jurisdictional error.

This is important for applicants whose experience is a pattern rather than one event. Repeated threats, loss of work, exclusion from services, police harassment and social ostracism may each seem limited when viewed separately. Taken together, they may threaten the person's capacity to subsist or amount to significant harassment. An applicant should describe the whole pattern, in order, rather than only the most serious incident.

The same approach applies to claims based on more than one Convention reason. A person who is targeted both for their religion and for an imputed political opinion should explain both. The LGBTI protection visa guide shows how cumulative harm is often central in claims based on sexual orientation or gender identity.

Effective protection and the authorities

Under section 5J(2), a person does not have a well-founded fear of persecution if effective protection measures are available in their country. Section 5LA explains that effective protection measures are available if protection could be provided by the state, or by a party or organisation, including an international organisation, and that state, party or organisation is willing and able to offer it.

This is among the Australian protection visa requirements most often decided against applicants. The guidelines note that the adequacy of state protection, and whether the state is reluctant to act or turns a blind eye, are key considerations in claims such as family violence. An applicant should explain, with evidence where possible, whether they sought help, what happened, and why the police or courts could not or would not protect them.

Modifying behaviour: when an applicant cannot be asked to hide

Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. But the exceptions are important, and they protect many applicants.

A person cannot be expected to make a modification that would conflict with a characteristic fundamental to their identity or conscience, or that would conceal an innate or immutable characteristic. The section also lists specific things a person cannot be required to do, including, in broad terms, altering or concealing religious or political beliefs, concealing their true race, ethnicity, nationality or country of origin, concealing a disability, entering or remaining in a marriage against their will, or altering or concealing their sexual orientation, gender identity or intersex status.

In practice, this means the Department cannot refuse a claim on the basis that the applicant could stay safe by hiding their sexuality or pretending to hold a different religion. The Australian protection visa requirements do not ask a refugee to live in hiding.

Claims based on conduct in Australia

Some claims arise after the applicant has left their country. These are called sur place claims. Section 5J(6) requires the Department to disregard conduct in Australia unless the applicant satisfies the decision maker that they engaged in it otherwise than for the purpose of strengthening their claim to be a refugee.

This rule applies only to the refugee test. It does not apply in the same way to complementary protection, where the Department must still consider how the authorities in the home country would react to the applicant's activities. Sur place claims are genuine in many cases, for example where an applicant has been politically active in Australia for years, but they must be supported by careful evidence.

Exclusion and danger to the community

An applicant who meets every other element can still fail the Australian protection visa requirements because of exclusion or danger. Section 5H(2) excludes a person where there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations.

Section 36(1C) requires that there are no reasonable grounds for considering the applicant to be a danger to Australia's security or, having been convicted by a final judgment of a particularly serious crime, a danger to the Australian community. These provisions reflect the exclusion and exception clauses in the Refugee Convention.

An illustration of how the Australian protection visa requirements are applied

A general illustration shows how the Australian protection visa requirements work together. It is not based on any real client.

A woman leaves her husband. In her country, separated women are commonly targeted by their former husband's family, and the police do not intervene in family matters. She fears that if she returns, her former husband's family will find and harm her.

The Department would ask a series of questions. Is there a particular social group, such as separated women in that country, defined by a shared characteristic that is not merely the fear of persecution? Is there a real chance she will be seriously harmed because she is a member of that group? Is that the essential and significant reason for the harm? Would the police or another authority be willing and able to protect her? Does the real chance exist in all areas of the country, or is there a place the family could not reach?

If the Department accepted her account but found there was a city where the family had no reach and she could live safely, the refugee test might not be met. The Department would then consider complementary protection, where the question is whether relocation would be reasonable in the sense of practicable for her, taking into account her circumstances. The evidence she provides on each of these questions decides the outcome.

How the Department decides whether the Australian protection visa requirements are met

The Department decides whether the Australian protection visa requirements are met on the applicant's account, the documents, any interview and country information. Section 5AAA makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it.

Credibility is central. The Department considers inconsistencies, vagueness, delay and the applicant's explanations. The guidelines recognise that applicants often cannot obtain documents and that the benefit of the doubt may be given where the applicant is generally credible. The guides to evidence in a protection visa application and the statement of claims explain how evidence is presented, and the protection visa interview page explains how the claims are tested.

If the Department finds that the requirements are not met, the visa is refused. The refusal can generally be reviewed by the Administrative Review Tribunal, within a short and strictly applied time limit. The protection visa refusals page explains what to do.

How My Migration Lawyers applies the Australian protection visa requirements to your claim

My Migration Lawyers applies the Australian protection visa requirements to each claim element by element, before the application is lodged and at every stage after. The firm deals with complex protection matters and acts in many Subclass 866 applications, including religious, political, particular social group and family violence claims, and claims that raise state protection and relocation issues. It is capable of handling claims of this kind through to decision and review.

The work includes:

• Identifying the Convention reason. The applicant's own account is analysed to identify each reason for the persecution feared, including imputed political opinion and particular social groups.
• Addressing protection and relocation. The statement and evidence deal with whether the authorities could protect the applicant and whether there is anywhere in the country the risk does not reach.
• Considering both grounds. Where the refugee test may not be met, the claim is also presented under complementary protection.
• Country information. Current, reliable country information relevant to the applicant's specific claim is identified.
• The applicant's own account. The statement is the applicant's own evidence, reviewed and corrected by the applicant, and the applicant decides which claims are advanced.

The firm is led by Principal Lawyer Weiwei Zhang and acts for applicants across Australia through its protection visa lawyers practice.

If you need to know whether your claim meets the Australian protection visa requirements, book a consultation with My Migration Lawyers online, or call 1300 040 300.