LGBT Protection Visa for Bisexual Applicants

An LGBT Protection Visa for Bisexual Applicants is a Subclass 866 Protection visa claim by a person who is attracted to more than one sex and who fears serious harm if returned home. The legal test is the same as for any other applicant. The credibility problems are not. Bisexual applicants are doubted more often, and for worse reasons, than almost any other group.

The most common problem in an LGBT Protection Visa for Bisexual Applicants claim is simple. The applicant has had a relationship with someone of the opposite sex, and the decision maker treats that as proof the claim is false. The Department of Home Affairs' own guidelines say that reasoning is wrong. This article explains what those guidelines require, how the law protects bisexual people, and how a claim should be presented.

What is an LGBT Protection Visa for Bisexual Applicants?

An LGBT Protection Visa for Bisexual Applicants is a claim for the permanent Subclass 866 Protection visa by a bisexual person in Australia. The applicant must satisfy either the refugee criterion in section 36(2)(a) of the Migration Act, by showing a well-founded fear of persecution for a Convention reason, or complementary protection under section 36(2)(aa), by showing a real risk of significant harm.

The Convention reason is usually membership of a particular social group based on sexual orientation. Bisexual people fall within that group in the same way as gay men and lesbians. Nothing in the law requires an applicant to be exclusively attracted to the same sex.

The Department's guidelines define bisexual as describing a person who is physically, sexually, romantically or emotionally attracted to both men and women. They add that bisexual people do not necessarily have equal attraction to men and women, and that any preference may change over time. The guidelines also describe bisexuality as a unique identity. In other words, bisexuality is an identity in its own right, not a stage between other identities.

An LGBT Protection Visa for Bisexual Applicants claim should therefore be prepared on its own terms, not as a weaker version of a gay or lesbian claim. The LGBTI protection visa page explains how My Migration Lawyers approaches sexual orientation claims, and the guide to what LGBTI applicants must prove sets out the full legal test.

Who counts as bisexual in an LGBT Protection Visa for Bisexual Applicants claim?

The applicant decides how they describe their own sexual orientation, and the Department's guidelines tell officers not to impose a label. An LGBT Protection Visa for Bisexual Applicants claim does not depend on the applicant using the word bisexual, or on meeting a checklist of experiences.

The guidelines recognise that not all applicants will identify with LGBTIQ+ terminology, and some may be unaware of the terms. Some people only know words that are derogatory. Others describe their relationships as friendships, or describe casual encounters without naming their identity at all. Officers should not assume which terminology is appropriate. Making assumptions about an applicant's sexuality can lead to a claim not being identified.

This matters in practice. A person who is attracted to men and women may describe themselves as gay in one conversation, bisexual in another, and use no label at all in a third. That is not necessarily an inconsistency. It may reflect the language available to them, the setting they were in, or what they felt safe saying. An LGBT Protection Visa for Bisexual Applicants claim should explain, in the applicant's own words, how they understand their identity, and why they may have described it differently in the past.

The claim can also rest on how others see the applicant. A person who is believed to be gay or lesbian because of a discovered same-sex relationship faces harm on that basis, whatever label they use themselves. The guidelines recognise imputed claims of this kind.

Why are bisexual claims doubted more often?

Bisexual claims are doubted more often because the applicant's life usually includes evidence that looks, at first sight, inconsistent with a same-sex attraction. An LGBT Protection Visa for Bisexual Applicants claim often involves:

• a past or current marriage to someone of the opposite sex;
• children from that marriage;
• long periods with no same-sex relationship at all;
• a same-sex attraction that became clear only in adulthood; and
• a history of describing themselves as gay or lesbian at some times and as bisexual at others.

Each of these facts can be misread. A decision maker who expects sexual orientation to be fixed, exclusive and visible from an early age may conclude that the applicant is not telling the truth. The Department's guidelines expressly warn against that expectation. They direct officers to be cautious about treating same-sex orientation as a constant feature of a person's life, and not to refuse a claim because an applicant does not identify with a fixed sexual orientation.

There is another reason bisexual claims are doubted. Some applicants present their claim as a gay or lesbian claim, because they believe that is what the Department expects, or because their language has no word for bisexual. The guidelines note that some applicants raise claims relating to being gay or lesbian without articulating that they identify as bisexual. When the full history emerges later, the change in terms is treated as an inconsistency. An LGBT Protection Visa for Bisexual Applicants claim is strongest when the applicant describes their own identity accurately from the start, in their own words.

Is bisexuality a choice the Department can expect you to make?

No. The Department's guidelines prohibit officers from assuming that bisexual people can choose to be attracted to men or women depending on which is less likely to lead to harm. That is one of the most important protections in an LGBT Protection Visa for Bisexual Applicants claim, and it is often overlooked.

The guidelines state that officers must not allow personal feelings, stereotyped views or assumptions to influence their assessment. They give two direct examples of what officers must not assume: that sexual orientation is a lifestyle choice, and that individuals who identify as bisexual can choose to be attracted to men or women depending on which is less likely to reduce or remove a real chance of persecution or a real risk of significant harm.

This matters because the argument is intuitive and often made. A decision maker may reason that a bisexual person can avoid harm simply by forming relationships with the opposite sex. That reasoning treats a person's same-sex attraction as optional. The guidelines reject it, and section 5J(3) of the Migration Act, discussed below, reinforces that rejection.

The same is true of the language used at interview. The guidelines state that officers must not ask why an applicant chose to be LGBTIQ+, whether something happened to make them LGBTIQ+, or whether they can change their behaviour to avoid harm. A question that suggests bisexuality is a decision the applicant made is not an appropriate line of enquiry. The guide to protection visa eligibility explains the wider criteria an applicant must meet.

What harm is relevant to an LGBT Protection Visa for Bisexual Applicants claim?

An LGBT Protection Visa for Bisexual Applicants claim usually involves the same harm that gay and lesbian people face, because the harm is aimed at same-sex relationships and conduct. The Department's guidelines recognise that in some countries, serious or significant harm may not be explicitly directed at bisexual people, but may be incorporated into harm targeted at gay or lesbian conduct. They state that this may raise imputed claims based on being perceived to be gay or lesbian.

In practice, an LGBT Protection Visa for Bisexual Applicants claim often turns on what happens when a same-sex relationship is discovered. A family, community or police officer who learns of the relationship does not usually distinguish between a bisexual person and a gay or lesbian person. The applicant is treated as gay or lesbian, and harmed accordingly. The fact that the applicant has also had opposite-sex relationships rarely protects them. It may instead expose them to accusations of deception, adultery or bringing shame on a spouse's family.

The forms of harm are the same as in other sexual orientation claims. They include:

• prosecution under laws that criminalise same-sex conduct, where those laws are enforced;
• violence and threats from family members, including a spouse or the spouse's family;
• blackmail and extortion by people who have discovered the relationship;
• forced marriage or pressure to stay in an unwanted marriage; and
• discrimination in work, housing and health care that together threatens the person's ability to live.

The guidelines direct officers to consider whether discrimination affecting several parts of a person's life would cumulatively amount to persecution or significant harm. They also recognise that an applicant may have suffered a lifetime of discrimination without a single event that meets the threshold on its own. For many bisexual applicants, whose same-sex relationships have been hidden, this cumulative picture is the real claim.

Where the refugee criterion is not met, complementary protection must be assessed. The Subclass 866 complementary protection guide for LGBTI applicants explains how significant harm is assessed.

How section 5J(3) protects bisexual applicants from being told to be discreet

Section 5J(3) of the Migration Act protects bisexual applicants from being told to avoid harm by hiding their same-sex attraction or confining themselves to opposite-sex relationships. Under section 5J(3), a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid it. The exceptions matter. A person is not expected to make a modification that would conflict with a characteristic fundamental to their identity, conceal an innate or immutable characteristic, or alter or conceal their true sexual orientation.

For an LGBT Protection Visa for Bisexual Applicants claim, the effect is direct. A decision maker cannot reason that the applicant would be safe because they could choose opposite-sex partners and keep their same-sex attraction hidden. That would require the applicant to conceal their true sexual orientation, which is one of the modifications section 5J(3) does not require.

The Department's guidelines add a practical point. If people are discreet about their sexual orientation, they cannot be treated as choosing privacy when it is the fear of harm that forces them to be secretive. A bisexual person who lived in an opposite-sex marriage while hiding a same-sex relationship was not choosing a safe life. They were hiding part of who they are.

The same rule applies to relocation. The guidelines state that officers cannot find that an applicant can move to another area if their safety depends on others not knowing their sexual orientation, or on the applicant modifying their behaviour in any way. Complementary protection treats behaviour modification differently, which is one reason an LGBT Protection Visa for Bisexual Applicants claim should argue the refugee criterion fully. The LGBT protection visa questions and answers cover this in plain terms.

Why a spouse and children can increase the risk

A spouse and children can increase the risk in an LGBT Protection Visa for Bisexual Applicants claim, rather than reduce it. Decision makers sometimes treat a marriage as a sign of safety. For a bisexual person whose same-sex relationship is discovered, the marriage is often the source of the danger.

Discovery can expose the applicant to harm from the spouse, from the spouse's family and from their own family, who may see the same-sex relationship as a betrayal that brings shame on both families. The Department's guidelines recognise that many LGBTIQ+ claims involve fear of family, particularly in cultural settings where an LGBTIQ+ family member is considered to bring disgrace on the whole family.

The law can add to the risk. The guidelines note that laws of general application, such as laws against extramarital sex, may have a disproportionately discriminatory effect on LGBTIQ+ people. A married bisexual person whose same-sex relationship is discovered may face both a same-sex conduct allegation and an adultery allegation. The guidelines also recognise that gay men and lesbians may risk being deprived of their children if they come out or leave their partners, and the same risk can arise for a bisexual parent.

An LGBT Protection Visa for Bisexual Applicants claim should therefore explain who would learn of the same-sex relationship, how they would react, and what would happen to the applicant's marriage, children, housing and livelihood as a result.

Do opposite-sex relationships, marriage or children disprove an LGBT Protection Visa for Bisexual Applicants claim?

No. Opposite-sex relationships, marriage and children are not inconsistent with being bisexual. They are often a natural part of a bisexual person's life. The Department's guidelines state that an LGBTIQ+ applicant may be, or have been, married, may have had heterosexual relationships and may have children, and that none of these factors means the applicant is not LGBTIQ+.

For an LGBT Protection Visa for Bisexual Applicants claim, this point is stronger than it is for gay or lesbian applicants. A gay man or lesbian woman who married often explains the marriage by family or social pressure. A bisexual applicant may also have married because they genuinely loved their spouse. Both explanations are consistent with the claim. The guidelines accept, in their guidance on gay men, that some applicants married because they had genuine feelings for their partner at the time.

The guidelines say officers should explore how a married applicant sees the relationship and its future. If the applicant gives a reasonable context for the marriage and a consistent, credible explanation of how it affects their ability to express their sexual orientation, that explanation should be used to assess the marriage beyond a superficial level. Where the applicant gives a consistent and reasonable explanation for why they married or had children, that part of their evidence should be found credible.

The statement should therefore explain the marriage honestly. When did the applicant become aware of their same-sex attraction? Was it before, during or after the marriage? Does the spouse know? What would happen to the applicant, and to the children, if the same-sex relationship became known? These are the questions that decide an LGBT Protection Visa for Bisexual Applicants claim.

Relationships with one sex only, and orientation that changes over time

A bisexual person may have had relationships with only one sex and still be bisexual. The Department's guidelines state that bisexual people are not necessarily attracted to both sexes at the same time, do not necessarily have equal attraction to both sexes, and may not have had the same number of relationships with each. They may have been sexually active with people of one sex only, and still identify as bisexual.

The guidelines add that this can occur for a number of credible reasons, and that it is worth exploring at interview why the applicant has not pursued relationships with the other sex. That question is legitimate in an LGBT Protection Visa for Bisexual Applicants claim. The answer is often fear, lack of opportunity, family control or the absence of any safe place to meet someone. The applicant should be ready to explain it.

Attraction can also change. The guidelines state that sexual orientation is not necessarily fixed and can evolve over time, and that bisexual applicants may describe their orientation as fluid or flexible. Some people are attracted to the same sex or the opposite sex at different times in their life. Others are consistently attracted to both.

Later realisation and late disclosure

The guidelines accept that bisexual people may engage in heterosexual relationships for a long time before realising or accepting that they are also same-sex attracted. If an applicant says they became aware of their sexual orientation later in life, the officer should investigate it closely but must not dismiss it as impossible.

Late disclosure is also common in an LGBT Protection Visa for Bisexual Applicants claim. Many applicants raise their bisexuality only after lodging, or at interview. The guidelines state that delay should be explored with the applicant and must not be the sole reason for rejecting a claim. Where the same-sex attraction or relationship arose after arrival, section 5J(6) requires the Department to disregard conduct in Australia for the refugee test only if it was engaged in solely to strengthen the claim. The guide on delaying a Subclass 866 application explains how delay is assessed.

How bisexual applicants are questioned at interview

The interview in an LGBT Protection Visa for Bisexual Applicants claim focuses on the applicant's experiences, not on sexual acts. The Department's guidelines describe appropriate lines of enquiry about family, self-awareness, relationships, the perceptions of others, harm and community. They note that "why" questions are often more useful than "what" or "how".

For bisexual applicants, questions often cover:

• when and how the applicant became aware of attraction to more than one sex;
• how the applicant understands and describes their own identity;
• opposite-sex relationships, including any marriage, and how the applicant sees them;
• same-sex relationships or encounters, and how they were kept hidden; and
• why the applicant has not pursued relationships with one of the sexes, if that is the case.

Some questions are out of bounds. Officers must not ask about details of sexual activity, why the applicant chose to be LGBTIQ+, or whether they could change their behaviour to avoid harm. The applicant decides which words describe their identity, and officers should not assume which terminology is appropriate. An individual answer should not, on its own, lead to an adverse credibility finding. The guides to protection visa interview questions and the protection visa interview explain the process.

Evidence for an LGBT Protection Visa for Bisexual Applicants

The strongest evidence for an LGBT Protection Visa for Bisexual Applicants is usually the applicant's own detailed and consistent account of their identity and relationships. The guidelines accept that the applicant's personal account may be the only evidence available.

Useful evidence often includes:

• The applicant's statement. A full account of their self-realisation, both opposite-sex and same-sex relationships, any marriage, how the same-sex relationships were hidden, and what they fear. The statement is the applicant's own evidence, reviewed and corrected by them. The guide to the protection visa statement of claims explains its structure.
• Statements from same-sex partners. Written statements from current or former same-sex partners, or from friends who know about the applicant's bisexuality.
• Messages and photographs. Ordinary messages, social media and photographs. Officers must never request explicit photographs or films of sexual acts.
• Evidence of discovery and harm. Threats, blackmail messages, medical records of injuries, or evidence of how family members reacted.
• Country information. Information about the treatment of same-sex relationships generally, since harm is often aimed at conduct rather than at bisexual people by name.

The guide to evidence in a protection visa application explains how each type of evidence is weighed.

Tribunal decisions relevant to an LGBT Protection Visa for Bisexual Applicants

Published Tribunal decisions show that refused claims involving bisexuality, or same-sex relationships alongside a marriage, are reconsidered on review. Each turns on its own facts. These are published examples only and do not predict the outcome of another case.

• In 2505372 (Refugee) [2025] ARTA 1447, the applicant from Sri Lanka raised bisexuality together with family violence and longstanding mental illness, and additional threats from a lender. The matter was remitted.
• In 1613414 (Refugee) [2019] AATA 6738, the applicant from Pakistan raised same-sex relationships and threats from relatives and police, and a marriage of convenience was considered. The matter was remitted.

A remittal means the Tribunal sent the application back to the Department to be decided again. It is not the grant of a visa. The time to apply for review is short and strictly applied. The guides to appealing a protection visa refusal to the ART and the protection visa refusals page explain the review process.

How My Migration Lawyers handles an LGBT Protection Visa for Bisexual Applicants

My Migration Lawyers acts for bisexual applicants in Subclass 866 protection matters across Australia. The firm deals with complex protection cases, acts in many sexual orientation claims where the applicant has had both opposite-sex and same-sex relationships, and is capable of handling an LGBT Protection Visa for Bisexual Applicants claim from the first consultation through to review at the Administrative Review Tribunal.

On an LGBT Protection Visa for Bisexual Applicants matter, the work usually involves:

• A confidential consultation. The client can speak privately by video, including about a spouse who may not know.
• Assessing both pathways. The claim is assessed under the refugee criterion and complementary protection, including how harm aimed at same-sex conduct would affect the client.
• Presenting the client's own account. The client's history, including opposite-sex relationships and marriage, is presented clearly in the form the law requires. The statement is the client's own evidence. The client reviews and corrects it, and decides which claims are advanced.
• Answering the credibility points early. Marriage, children, one-sex relationship histories and later realisation are explained in the application, with reference to the Department's own guidelines.
• Evidence and country information. Witness statements, messages and country information about the treatment of same-sex relationships are identified and presented.
• Interview preparation and attendance. The client is prepared for the lines of enquiry used with bisexual applicants, and inappropriate questions are raised on the record.
• Responses and review. Section 56 requests and section 57 adverse information are answered, and refusals are prepared for review within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants throughout Australia by video.

If you are bisexual and worried that your past relationships will be used against you, that is a question to deal with before the Department raises it. Book a consultation with My Migration Lawyers online, or call 1300 040 300.