LGBTI Protection Visa Requirements

The LGBTI Protection Visa Requirements are the legal criteria that must be met before the Department of Home Affairs can grant a Subclass 866 Protection visa to a lesbian, gay, bisexual, transgender or intersex applicant. There is no separate LGBTI visa. The LGBTI Protection Visa Requirements are the ordinary Subclass 866 criteria, applied to claims based on sexual orientation, gender identity or intersex status.

Most applicants focus on one question: will the Department believe that I am LGBTI? That question matters, but it is only one part of the test. A visa can also be refused because identity is not established, because a health or character criterion is not met, or because the applicant left Australia before the decision was made. This article sets out each of the LGBTI Protection Visa Requirements in the order the law applies them, and explains how each one operates in an LGBTI claim.

What are the LGBTI Protection Visa Requirements?

The LGBTI Protection Visa Requirements are the criteria in section 36 of the Migration Act 1958 and the Subclass 866 criteria in Schedule 2 of the Migration Regulations 1994. The Department's Protection Visa Processing Guidelines state that, to be eligible for grant, an applicant must meet the criteria in section 36 and all of the time of application and time of decision criteria in Schedule 2.

In practical terms, the LGBTI Protection Visa Requirements fall into the following groups:

• A valid application made in Australia. Section 46 of the Migration Act, regulation 2.07 and item 1401 of Schedule 1 to the Regulations.
• Claims made at the time of application. Clause 866.211.
• The protection criterion. Section 36(2)(a) for refugees, section 36(2)(aa) for complementary protection, or membership of the same family unit as an applicant who meets one of them (clause 866.221).
• Security and danger to the community. Sections 36(1B) and 36(1C).
• Identity, nationality or citizenship. Sections 91W and 91WA.
• Health. Clauses 866.223 to 866.224B.
• Character and other public interest criteria. Public interest criteria 4001, 4003A and 4019, under clause 866.225.
• National interest and other Schedule 2 criteria. Clauses 866.226, 866.227, 866.231 and 866.232.
• Being in Australia at the time of decision. Clause 866.411.

The guide to the Subclass 866 protection visa explains what the visa gives once granted. The LGBTI protection visa service page explains how these claims are run in practice. This article deals with the criteria themselves, one by one.

Requirement one: a valid application made in Australia

A valid application is the first of the LGBTI Protection Visa Requirements, because an invalid application cannot be considered at all. Under section 47(3) of the Migration Act, the Department cannot consider an application that is not valid. Under section 47(4), a finding that an application is invalid is not a decision to refuse a visa, so it cannot be reviewed by the Administrative Review Tribunal.

The validity rules come from section 46 of the Migration Act, regulation 2.07 and item 1401 of Schedule 1 to the Regulations. The rules that most often matter for an LGBTI applicant are these:

• the applicant must be in Australia, and the application must be made in Australia;
• the application must be lodged online, unless the Department has authorised a paper application in writing;
• the visa application charge must be paid;
• the applicant must give their residential address in the form or in a document lodged with it;
• the application must contain at least the "bare bones" of the protection claims; and
• the applicant must not be prevented from applying by an application bar.

The most common bar is section 48A. A person who has already been refused a protection visa while in Australia cannot make a further protection visa application while in the migration zone, unless the Minister personally lifts the bar under section 48B. The Minister has no duty to consider doing so. Item 1401(3)(d) also means that people who arrived without a visa in effect, or who were not immigration cleared on arrival, generally cannot make a valid Subclass 866 application. The guide to permanent protection visa eligibility explains who can apply in more detail.

One further point is often missed. The Department may formally require personal identifiers, such as a photograph and fingerprints, under section 257A. If the applicant does not provide them within the time given, the application is not valid and cannot be considered.

Requirement two: protection claims made at the time of application

Clause 866.211 requires an applicant, at the time of application, to claim that Australia owes them protection obligations and to make claims explaining why, or to claim to be a member of the same family unit as an applicant who does. An LGBTI applicant who applies in their own right must therefore state their protection claims in the application itself.

The Department's guidelines explain that a Subclass 866 application containing no claims at all does not substantially comply with the form, and is invalid. The claims do not need to be perfect for the application to be valid. However, anything left out at lodgement can become a credibility problem later. Section 5AAA of the Migration Act makes it the applicant's responsibility to specify all particulars of their claims and to provide sufficient evidence to establish them. Section 5AAA(4) provides that the officer has no obligation to establish, or assist in establishing, the claims.

For an LGBTI applicant, this means the application should state clearly that the claim is based on sexual orientation, gender identity or intersex status. It should explain who the applicant fears, what has already happened, and what the applicant believes will happen on return. The guide to preparing Form 866 explains the application questions, and the guide to the protection visa statement of claims explains how the written account is structured.

The Department's own LGBTI guidelines recognise that sexual orientation and gender identity are not visible characteristics and must be revealed by the applicant. Officers are told not to be surprised if the issue is raised late in the process. A late claim is not fatal on its own, but it must be explained. The guide to delay in a Subclass 866 application explains how delay is assessed.

The refugee requirement in section 36(2)(a)

The refugee requirement is met if the Department is satisfied that Australia has protection obligations to the applicant because the applicant is a refugee, as defined in section 5H of the Migration Act. For an LGBTI applicant, this usually means a well-founded fear of persecution because of membership of a particular social group based on sexual orientation or gender identity. The Department's LGBTI guidelines refer expressly to membership of a particular social group on that basis.

The refugee part of the LGBTI Protection Visa Requirements has several elements. Each one must be satisfied.

A real chance of persecution for a Convention reason

Section 5J(1) requires that the applicant fears persecution for one of five reasons: race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance of persecution if the applicant returns, and the real chance must relate to all areas of the receiving country. Sections 5K and 5L deal with membership of a particular social group. LGBTI claims can also involve religion or political opinion, for example where the applicant is accused of breaching religious law, or has spoken publicly for LGBTI rights.

Serious harm, and systematic and discriminatory conduct

Section 5J(4) requires that the Convention reason is the essential and significant reason for the persecution, that the persecution involves serious harm, and that it involves systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm, including a threat to the person's life or liberty and significant physical harassment or ill-treatment. The Department's LGBTI guidelines recognise that an applicant may have suffered a lifetime of discrimination that cumulatively amounts to serious harm, even where no single event meets the threshold on its own.

No effective protection in the home country

Section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures, within the meaning of section 5LA, are available to them in the receiving country. In an LGBTI claim, this part of the LGBTI Protection Visa Requirements is often answered by the law itself. Where same-sex conduct is criminalised, or where police are part of the harm, protection that is available in theory may not be protection in fact.

No expectation of concealment

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 it. However, the exceptions in section 5J(3)(a), (b) and (c) mean that an applicant cannot be expected to conceal their true sexual orientation, gender identity or intersex status. The Department's guidelines state that a person who is discreet cannot be treated as "choosing" privacy when it is the fear of harm that forces them to be secretive. Of all the LGBTI Protection Visa Requirements, this is the rule most often misunderstood. The guide to what an LGBTI protection claim must prove explains why this rule matters so much in practice.

Conduct in Australia

Section 5J(6) requires the Department to disregard conduct in Australia unless it is satisfied that the conduct was engaged in otherwise than for the sole purpose of strengthening the claim. The guidelines recognise that many LGBTI applicants only come to terms with their identity, or only live openly, after arriving in Australia. Genuine conduct in Australia counts towards the LGBTI Protection Visa Requirements. Conduct created only to support a claim does not.

The complementary protection requirement in section 36(2)(aa)

If the refugee requirement is not met, the Department must consider whether the applicant meets the complementary protection requirement in section 36(2)(aa). The guidelines direct officers to assess the refugee criterion first and, if it is not met, then to assess complementary protection.

Complementary protection is one of the LGBTI Protection Visa Requirements that many applicants do not know exists. It applies where there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm. Under section 36(2A), significant harm means:

• being arbitrarily deprived of life;
• having the death penalty carried out;
• torture;
• cruel or inhuman treatment or punishment; or
• degrading treatment or punishment.

Section 36(2B) provides that there is taken not to be a real risk of significant harm if it would be reasonable for the applicant to relocate within the country, if the applicant could obtain protection from an authority of the country, or if the risk is faced by the population generally and not by the applicant personally. The guide to complementary protection for LGBTI applicants explains how this pathway works for LGBTI claims, and the page on complementary protection explains the wider test.

Protection in another country under section 36(3)

Section 36(3) provides that Australia is taken not to have protection obligations to an applicant who has a right to enter and reside in another country, and who has not taken all possible steps to use that right. That other country can include a second country of nationality. Under section 36(6), nationality of another country is decided solely by the law of that country.

This part of the LGBTI Protection Visa Requirements has important limits. Under sections 36(4), 36(5) and 36(5A), section 36(3) does not apply to a country where the applicant has a well-founded fear of persecution or a real risk of significant harm, or where the applicant fears being sent on to a country where they would face that harm. For an LGBTI applicant with a right to live in a second country that also criminalises or persecutes LGBTI people, the second country is not a safe alternative. The guidelines also state that officers should only consider section 36(3) after finding that the applicant otherwise engages protection obligations.

Identity, nationality and citizenship requirements

Identity, nationality and citizenship are central LGBTI Protection Visa Requirements, because the claim is assessed against a particular country. The Department's guidelines describe three pillars of identity: biometrics, documentation and biography. A valid passport is the primary way of confirming identity and nationality. National identity cards, birth certificates and other documents can also assist.

Sections 91W and 91WA are the identity provisions within the LGBTI Protection Visa Requirements that can, on their own, prevent grant:

• Section 91W. If the Department asks the applicant to produce evidence of identity, nationality or citizenship, gives the required warning, and the applicant refuses or fails to comply, or produces a bogus document, without a reasonable explanation, the visa must be refused.
• Section 91WA. If the applicant provides a bogus identity document, or destroys or disposes of one, for the purpose of the application, without a reasonable explanation and without providing genuine documents or taking reasonable steps to do so, the visa must be refused.

The guidelines list examples of a reasonable explanation, including a government's refusal to issue identity documents because of discrimination or persecution. That example is directly relevant to some transgender and intersex applicants. The guidelines also state that the Department uses the name on the applicant's identity documents in its correspondence, but that a transgender applicant may ask to be referred to by another name, which is then recorded as an alias. The protection visa documents checklist explains the identity documents usually provided.

Health requirements for a Subclass 866 visa

The health requirements for a Subclass 866 visa are in clauses 866.223 to 866.224B of Schedule 2. The Department's guidelines refer officers to the general health requirement instructions, including the medical examinations required for onshore protection visa applicants. In practice, the health part of the LGBTI Protection Visa Requirements is met by completing the health examinations the Department asks for during processing. The request should be acted on within the time given, because a health criterion that has not been met prevents grant.

Health information given to the Department for this purpose is part of the application record. Applicants who are worried about disclosing a medical condition should obtain advice before the examination, not after it.

Character, security and exclusion requirements

The character, security and exclusion criteria are among the LGBTI Protection Visa Requirements that apply to every applicant, whatever the strength of the protection claim. They are:

• Section 36(1B). The applicant must not be assessed by the Australian Security Intelligence Organisation to be a risk to security.
• Section 36(1C). The applicant must not be a person whom the Department considers, on reasonable grounds, to be a danger to Australia's security, or to be a danger to the Australian community after being convicted by a final judgment of a particularly serious crime.
• Section 5H(2) and section 36(2C)(a). An applicant can be excluded where there are serious reasons for considering that they have committed certain serious crimes, including war crimes and crimes against humanity.
• Public interest criteria 4001 and 4003A. The applicant must satisfy the character test criterion in public interest criterion 4001, and must not be associated with the proliferation of weapons of mass destruction under public interest criterion 4003A.

The Department's guidelines state that all applicants aged 17 or older require an Australian penal check. An overseas penal check is also required for a country in which the applicant has lived for more than 12 months since turning 16, other than the country from which they are claiming protection. A refusal on character grounds is made under section 501, not section 65. The guidelines state that any non-refoulement obligations identified must still be explained to the section 501 decision maker.

The values statement, national interest and other Schedule 2 criteria

Several further Schedule 2 criteria form part of the LGBTI Protection Visa Requirements, even though they rarely decide an LGBTI claim:

• Public interest criterion 4019. Applicants aged 18 or over at the time of application must sign the Australian values statement, which is included in the application form. Failing to sign does not make the application invalid, but it must be signed before the visa can be granted.
• Clause 866.226. The Department must be satisfied that the grant of the visa is in the national interest. The High Court considered the equivalent criterion for another protection visa subclass in *ENT19 v Minister for Home Affairs* \[2023\] HCA 18.
• Clause 866.227. This deals with people offered temporary stay under Temporary Safe Haven arrangements.
• Clause 866.231. The applicant must not have been made a certain offer of permanent stay in Australia.
• Clause 866.232. The applicant must not hold a Resolution of Status visa.

Being in Australia when the decision is made

Clause 866.411 requires the applicant to be in Australia at the time the visa is granted. If an applicant leaves Australia without a visa that allows them to return, the Department's guidelines state that the application must be refused on that ground, without any assessment of the protection claims.

If the applicant leaves Australia holding a visa that allows re-entry, the application is not automatically refused, but the applicant must be back in Australia when the decision is made. The guidelines also note that travel to the country the applicant fears may indicate that they no longer fear harm there. Before refusing on these grounds, the Department must invite the applicant to comment under section 57.

LGBTI Protection Visa Requirements for a partner and children

A partner or child can be granted a Subclass 866 visa as a member of the same family unit of an applicant who meets the protection criterion and is granted the visa. This is set out in clauses 866.211(3) and 866.221(3). Under regulation 1.12(4), a member of the family unit includes a spouse or de facto partner, a dependent child, and certain other dependent relatives. The Department's guidelines refer to section 5CB of the Migration Act for the definition of de facto partner.

The family member must also be in Australia, have made a valid application, and meet the other criteria, including health and character. Their visa depends on the main applicant's grant, so their own position should be considered separately where they have claims of their own. The guidelines confirm that a family member on a combined application who has separate claims can have them assessed in their own right, without withdrawing.

The LGBTI guidelines add two safeguards that matter in practice. A family member with sensitive sexual orientation or gender identity claims may be interviewed separately, and may nominate a separate address for correspondence with the Department. This is particularly relevant where an LGBTI applicant is included in a spouse's or parent's application and has not disclosed their identity to that person. The same-sex partner visa is a separate visa, and it should not be confused with inclusion in a protection application.

Who has to prove the LGBTI Protection Visa Requirements are met?

The applicant has to prove the LGBTI Protection Visa Requirements are met. Section 5AAA places the responsibility for specifying the claims and providing sufficient evidence on the applicant. The Department still has to consider all relevant facts, any claims that clearly arise on the material, and country information.

The Department's LGBTI guidelines recognise that the applicant's own account may be the only evidence available. If that account is coherent, plausible and consistent with known facts, and the applicant is generally credible, the applicant should be given the benefit of the doubt. The guidelines also state that:

• officers must not request explicit photographs or films of sexual acts;
• past or current marriage, heterosexual relationships or children are not necessarily inconsistent with an LGBTI claim;
• credibility findings must not rest on stereotypes; and
• demeanour is an unreliable indicator of credibility.

The guide to evidence in a protection visa application explains how evidence is weighed. The honest answer is that the LGBTI Protection Visa Requirements are usually won or lost on credibility, and credibility is built on a detailed and truthful account. A false claim is a serious offence and can destroy a genuine one.

Tribunal decisions on the LGBTI Protection Visa Requirements

Published Tribunal decisions show that refusals on the protection criterion are regularly reconsidered on review. Each decision turns on its own facts and does not guarantee an outcome in another case.

• In 1818153 (Refugee) \[2021\] AATA 4944, the applicant from Uganda claimed lesbian identity despite a previous heterosexual marriage and a history of concealment. The matter was remitted to the Department.
• In 1722231 (Refugee) \[2023\] AATA 4180, the applicant from Malaysia was a gay man whose late disclosure was explained by fear of exposure in his community. The matter was remitted to the Department.

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. The protection visa refusals page explains the review process.

How My Migration Lawyers handles LGBTI Protection Visa Requirements

My Migration Lawyers acts in LGBTI protection visa matters across Australia. The firm deals with complex protection cases, acts in many Subclass 866 claims based on sexual orientation, gender identity and intersex status, and is capable of handling these matters from the first application through to review at the Administrative Review Tribunal.

On the LGBTI Protection Visa Requirements, the work usually involves:

• Checking validity and bars first. The firm confirms that a valid application can be made, including the section 48A position and the applicant's arrival and visa history, before any work is done on the claim.
• Assessing both pathways. The claim is assessed against section 36(2)(a) and section 36(2)(aa), so that complementary protection is not treated as an afterthought.
• Presenting the applicant's own account. The statement is the applicant's own evidence, taken in detail, reviewed and corrected by them. The applicant decides which claims are advanced.
• Identity and documents. Identity documents are reviewed early, and any gaps, name differences or reasons documents cannot be obtained are explained before the Department raises them.
• Family members. The firm considers who should be included, whether any family member has separate claims, and whether separate correspondence arrangements are needed.
• Responding during processing. Requests under section 56, section 57 and section 91W are answered within time.

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

If you want to know whether your circumstances meet the LGBTI Protection Visa Requirements, that question should be answered before anything is lodged. Book a consultation with My Migration Lawyers online, or call 1300 040 300.