LGBTI Protection Visa Police Protection

LGBTI Protection Visa police protection is one of the tests that decides whether a Subclass 866 claim succeeds. Even where the Department accepts that an applicant is LGBTI and that people at home want to harm them, it must still ask whether the police and courts of that country would protect them. If the answer is yes, the claim can be refused.

For many LGBTI applicants, the idea of asking the police for help is unrealistic. In some countries the police enforce laws against same-sex conduct. In others they ignore violence against LGBTI people, mock victims or demand money. The LGBTI Protection Visa police protection question is therefore rarely about whether a police force exists. It is about whether that police force would protect this person, in practice, from this harm. This article explains the legal tests, how the Department applies them, and the evidence that answers them.

What is the LGBTI Protection Visa police protection question?

The LGBTI Protection Visa police protection question asks whether the applicant's home country can and will protect them from the harm they fear. It arises under both pathways to a Subclass 866 protection visa: the refugee criterion in section 36(2)(a) and the complementary protection criterion in section 36(2)(aa).

It usually matters most where the harm comes from someone other than the state, such as family members, a community, a religious group, a gang or an individual attacker. The Department's guidelines state that in cases relating to sexual orientation or gender identity, the agent of harm will frequently be a non-state actor. In those cases, officers must consider whether the authorities are able and willing to provide state protection.

The question is less complicated where the state itself is the persecutor. A person cannot be expected to seek protection from the police against the police. That distinction runs through every part of the LGBTI Protection Visa police protection analysis, and the claim should make clear from the start which kind of case it is. The overview of what an LGBTI protection claim must prove places this test in the wider framework.

The refugee test: section 5J(2) and section 5LA

For refugee claims, section 5J(2) of the Migration Act provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them in the receiving country. Section 5LA sets out what effective protection measures are.

The Department's guidelines explain that effective protection measures are taken to be available if protection against persecution could be provided by the state, or by a party or organisation, including an international organisation, and the relevant state, party or organisation is willing and able to offer that protection. Two elements therefore matter:

• Could protection be provided? Is there a body in the country capable of protecting the applicant from this harm?
• Is that body willing and able to provide it? A state that has laws against assault but whose police will not act on complaints from LGBTI people is not willing to protect them. A state whose police want to help but cannot reach the area is not able to.

For LGBTI Protection Visa police protection, the guidelines direct officers to assess state protection at the operational level. The question is not whether the country has a criminal law and a police force. It is whether the protection would actually work for someone in the applicant's position. The general discussion of internal relocation and effective state protection in the Subclass 866 guide gives the wider context.

The complementary protection test: section 36(2B)(b)

For complementary protection, section 36(2B)(b) provides that there is taken not to be a real risk of significant harm if the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm. This is a separate test from section 5J(2), with different words, and both must be addressed.

The complementary protection test asks whether protection from an authority would remove the real risk of significant harm. An authority that would investigate after the applicant was seriously injured does not remove the risk of the injury. For an LGBTI Protection Visa police protection argument under complementary protection, the evidence should show why any protection available would not prevent the harm from happening. The pages on complementary protection and complementary protection for LGBTI applicants explain the significant harm test.

The Department's guidelines confirm that the adequacy of effective state protection under section 5J(2), section 5LA and section 36(2B)(b), together with whether the state is reluctant to be involved or turns a blind eye to the harm, are key considerations in family violence claims. The same questions arise wherever an LGBTI applicant fears harm from family or community.

When the police are the persecutor

Where the police or other state agents are the source of the harm, state protection is not available in any meaningful sense. The applicant is not required to seek protection from the people they fear. In an LGBTI Protection Visa police protection case of this kind, the focus moves to what the police do and whether they would do it to the applicant.

The Department's guidelines recognise that criminal penalties for same-sex conduct may include arrest, imprisonment, physical mistreatment or torture, and that human rights reports have linked criminalisation with police abuse, torture and family and community violence. Police harm can take many forms, including arrest under morality or public order laws, violence in custody, sexual assault, forced examinations, public exposure and extortion.

The guidelines also confirm that where the agent of harm is the state, moving to another area of the country will usually not be available. A national police force operates across the country, which is why a finding that the police are the persecutor usually answers the relocation question as well.

Why LGBTI Protection Visa police protection is assessed for the individual

LGBTI Protection Visa police protection is assessed for the particular applicant, not for the population in general. A police force that protects most citizens from assault may still fail to protect a gay man attacked by his brothers, or a transgender woman beaten in the street. The question is whether protection would be available and effective for this person, facing this harm, from these people.

Several individual factors matter:

• Who the applicant fears. A family with police or political connections, a religious leader with influence over local officials, or a criminal group that pays police is much harder to be protected from than a stranger.
• The applicant's own profile. Gender, age, socio-economic position, health and whether the applicant's LGBTI identity is already known to police or the community all affect how the police would respond.
• Where the applicant would live. The Department's guidelines accept that treatment of LGBTIQ+ people may vary significantly between cities, within a country, or even in different parts of a city.

For that reason, LGBTI Protection Visa police protection evidence should be tied to the place the applicant would actually return to, and to people in the applicant's situation, rather than to national statistics or general statements about the rule of law.

When the police will not protect LGBTI people from others

The Department's guidelines state that if the police do not respond to requests for protection, or refuse or fail to investigate and prosecute crimes against LGBTIQ+ people in a timely fashion, state protection is unlikely to be either available or effective. This is the central principle in most LGBTI Protection Visa police protection cases involving family or community violence.

Police failure takes different forms. Officers may refuse to record a complaint, tell the victim that they brought the violence on themselves, return them to the family that harmed them, disclose their sexuality to others, or turn the complaint into an investigation of the victim. Where same-sex conduct is a crime, reporting an assault by a partner or a stranger can expose the victim to arrest.

The guidelines also note that LGBTIQ+ people may be subjected to blackmail or extortion if someone discovers they are LGBTIQ+ and threatens to make it public. Where the person making the threat knows the victim cannot safely go to the police, the absence of state protection is part of what makes the threat work.

Socio-economic position can matter. The guidelines state that people from lower socio-economic backgrounds may have less access to state protection. A person who cannot pay for private security, a lawyer or a move to a safer suburb depends more heavily on police who may not help.

Family and community violence and LGBTI Protection Visa police protection

Family violence is where LGBTI Protection Visa police protection is most often contested. The Department's guidelines note that many LGBTIQ+ claims relate to fear of family, particularly where an LGBTIQ+ family member is seen as bringing shame on the whole family. Family disapproval alone is not persecution, but the guidelines accept that it can lead to violence, forced marriage or ostracism to the point of threatening the person's capacity to subsist.

In these cases the Department often accepts that the family is dangerous, and then finds that the police would intervene. Answering that finding requires evidence of how police treat violence within families, and in particular violence against a family member because they are LGBTI. In many places police regard family matters as private, return victims to their families or press for reconciliation. Where the victim's sexuality or gender identity would itself be treated as the wrongdoing, going to the police may make the danger worse.

As noted above, the guidelines direct officers in family violence claims to ask whether the state is reluctant to be involved or turns a blind eye to the harm. Any LGBTI Protection Visa police protection submission involving family should answer that question expressly.

How criminalisation laws affect LGBTI Protection Visa police protection

Criminalisation of same-sex conduct usually defeats the argument that state protection is available. The Department's guidelines state that if the state outlaws same-sex activities, it is very unlikely an LGBTIQ+ person would be able to seek state protection from community mistreatment.

The guidelines also state that criminalisation may amount to serious harm or significant harm depending on the likelihood of the law being enforced, the severity of the punishment, or whether the law means the applicant would not have effective state protection from private harm. That last point is often missed. A law that is rarely enforced by prosecution may still be decisive in an LGBTI Protection Visa police protection case, because its existence means the victim cannot safely go to the police.

The guidelines add that even if criminal laws are not enforced, their existence can promote and reinforce mistreatment in society. Laws that appear to target only gay men can create a climate of fear and private harm for other LGBTIQ+ people. Laws of general application, such as laws against extramarital sex, public indecency or morality offences, may have a disproportionate effect on LGBTIQ+ people. The 30 LGBT protection visa FAQs explain why criminalisation is not the whole test.

Laws that have changed: protection on paper and in practice

A country that has decriminalised same-sex conduct or introduced anti-discrimination laws is not automatically a country where LGBTI people are protected. The Department's guidelines state that the absence of criminal laws does not mean there is no discrimination, and does not indicate that state protection is available.

Where a country has decriminalised same-sex relations or introduced a new law or program to improve the position of LGBTIQ+ people, the guidelines direct officers to assess carefully whether state protection is adequate at the operational level. Officers must examine the degree of actual implementation and the effectiveness and durability of the changes, in light of how state actors and society continue to treat LGBTIQ+ people.

This is where many refusals go wrong. A decision that relies on a new law, without evidence that police actually enforce it for LGBTI victims, has not answered the LGBTI Protection Visa police protection question the guidelines require. The evidence should deal with what happens when LGBTI people report crimes now, not what the statute says.

Did you have to report to the police before leaving?

No. There is no requirement in the Migration Act that an applicant must have reported harm to the police before leaving their country. The question under section 5J(2) and section 36(2B)(b) is whether effective protection would be available to the applicant in the reasonably foreseeable future.

A failure to report is often explained by the same facts that make the claim. The applicant may have feared arrest under a criminalisation law, exposure to family, extortion by police, or further violence. They may know of others who reported and were ignored or harmed. The guidelines also confirm, quoting the UNHCR Handbook, that the applicant does not need to show the authorities knew about their sexual orientation or gender identity before they left.

That said, an applicant who did not report should explain why. An unexplained failure to seek help can be treated as a sign that protection was available, or that the fear was not genuine. For an LGBTI Protection Visa police protection issue, the statement should say whether the applicant ever went to the police, what happened if they did, and why they did not if they did not. The guide to the protection visa statement of claims explains how the statement is structured.

Protection from bodies other than the police

Section 5LA also refers to protection by a party or organisation, including an international organisation, not only by the state. The Department's guidelines state that in some circumstances a non-state actor who has substantial control of the country could provide protection, and officers must consider whether that actor is able and willing to do so.

In practice, this seldom answers an LGBTI Protection Visa police protection issue. Community organisations, shelters or informal networks may offer support, but support is not the same as protection from persecution. The question remains whether any body could and would actually stop the harm.

Evidence about police conduct in an LGBTI Protection Visa police protection claim

The strongest evidence on LGBTI Protection Visa police protection shows how police in the applicant's country actually treat LGBTI people, and how they treated the applicant or people close to them. General statements that the police are corrupt or homophobic carry little weight without detail.

Useful evidence often includes:

• The applicant's own account. Any contact with police, what was said, what was done, and by whom. If the applicant never reported, the reasons, including what they knew about others who did.
• Documents from any report. Complaint receipts, police records, medical records, messages or letters showing how a report was handled.
• Witness statements. Written statements from people who reported harm and were ignored, arrested or threatened, or who saw police conduct directed at the applicant.
• Evidence of police involvement in harm. Threats, extortion demands, arrests, detention, or police links to the family or community the applicant fears.
• Country information on enforcement. Reliable, current reports on arrests of LGBTI people, police responses to complaints, prosecutions or the absence of them, and the treatment of LGBTI people in custody.

The Department's guidelines accept that it is usually more difficult to produce documentary evidence of harm by a non-state actor, and that there is often less country information. The applicant's credibility therefore matters more. The guides to evidence in a protection visa application and protection visa eligibility explain how evidence and the legal criteria fit together.

Every detail must be true. Giving false information to the Department is a serious offence, and an invented police incident can destroy a genuine claim.

How police protection is tested at interview

The Department's guidelines list the applicant's interaction with authorities, and their physical safety and access to justice, police or other state protection, among the appropriate lines of enquiry in LGBTIQ+ interviews. Applicants should expect questions such as whether they went to the police, why not, what they think would happen if they did, whether they know anyone who reported, and what happened to them.

On LGBTI Protection Visa police protection, short answers such as "the police would not help" are not enough. The applicant should be able to explain why, with examples. The guide to protection visa interview questions, which covers questions about police, relocation and return, and the protection visa interview page explain how to prepare.

Tribunal decisions on LGBTI Protection Visa police protection

Published Tribunal decisions show that police conduct and inadequate protection are regularly central to LGBTI claims on review. Each decision turns on its own facts and does not predict the result in another case.

• In 1707094 (Refugee) [2021] AATA 5311, the applicant was a gay man from Colombia living with HIV. Family hostility, police conduct and regional residence rights were in issue, and the matter was remitted to the Department.
• In 1613414 (Refugee) [2019] AATA 6738, the applicant from Pakistan had same-sex relationships and faced threats from relatives and police. A marriage of convenience was also considered, and the matter was remitted.
• In 2203047 (Refugee) [2026] ARTA 1588, the applicant was a lesbian from Malaysia who had married in Australia. Criminalisation, the risk of detention and inadequate protection were in issue, and the matter was remitted.

A remittal means the Tribunal sent the application back to the Department to be decided again. It is not itself the grant of a visa. These decisions are cited as published examples only. In each, LGBTI Protection Visa police protection issues, including the conduct of the police or the adequacy of protection, were part of the reasoning and not a side issue.

Common errors in police protection refusals

The most common error on LGBTI Protection Visa police protection is treating the existence of laws and a police force as proof that protection is available. The guidelines require an assessment of protection at the operational level.

Other errors that appear in refusals include:

• relying on decriminalisation or a new law without evidence it is implemented for LGBTI victims;
• ignoring the effect of criminalisation laws on the victim's ability to report safely;
• treating a failure to report as fatal without considering the applicant's explanation;
• assessing protection against the general population rather than LGBTI people in the applicant's position;
• applying only section 5J(2) and not section 36(2B)(b), or the reverse; and
• overlooking police involvement in the harm itself.

A refusal can usually be reviewed by the Administrative Review Tribunal, which considers the LGBTI Protection Visa police protection question afresh and can take new evidence into account. The time limit is short and strictly applied, and it runs from the date of notification. The protection visa refusals page and the Subclass 866 refusal ART guide explain the review process.

How My Migration Lawyers handles LGBTI Protection Visa police protection issues

My Migration Lawyers acts in LGBTI protection matters where the Department says the applicant's home country would protect them. The firm deals with complex protection cases, acts in many LGBTI Subclass 866 claims, and is capable of handling LGBTI Protection Visa police protection issues from the first application through to review at the Administrative Review Tribunal.

On this type of matter, the work usually involves:

• Identifying the agent of harm. The firm assesses whether the police or state are the source of harm, or whether the harm comes from family, community or others, because the legal analysis differs.
• Presenting the applicant's own account. Any contact with police, and the reasons for not reporting, are taken in detail. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Country information on enforcement. Current information on how police and courts actually treat LGBTI people is identified and presented, not just the text of the law.
• Addressing both tests. Submissions deal separately with section 5J(2) and section 5LA, and with section 36(2B)(b).
• Interview preparation. The applicant is prepared for questions about police and protection, so that their explanation is clear and on the record.
• Review. Where a claim is refused on state protection grounds, the decision is analysed and the review is prepared within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's LGBTI protection visa service and its protection visa lawyers act for applicants across Australia.

If the Department is likely to say the police at home would protect you, that argument should be answered with evidence before it is made. Book a consultation with My Migration Lawyers online, or call 1300 040 300.