Protection Visa 866 Common Challenges

Protection Visa 866 common challenges are the points at which genuine claims most often fail. Many applicants assume that if they tell the truth and are believed, the visa will follow. That is not how the law works. A decision maker can accept every fact an applicant describes and still refuse the visa because one element of the legal test is not met.

This article explains the Protection Visa 866 common challenges that arise from the legal test itself. It covers the Convention reason, the seriousness of the harm, the chance of harm in the future, state protection, relocation, modification of behaviour, and the particular limits of complementary protection. It is written for applicants who want to understand where their claim may be vulnerable before they lodge, before an interview, or before a review.

What are the common challenges in a Protection Visa 866 application?

The Protection Visa 866 common challenges fall into two groups. The first group concerns the refugee criterion in sections 5H and 5J of the Migration Act 1958. The second concerns the complementary protection criterion in section 36(2)(aa).

The Department's Protection Visa Processing Guidelines describe three elements of a well-founded fear of persecution under section 5J(1):

• a subjective element, which is whether the applicant fears persecution for at least one of the five reasons;
• an objective element, which is whether there is a real chance of persecution; and
• an internal relocation element, which requires the real chance of persecution to relate to all areas of the receiving country.

Sections 5J(2) and 5J(3) then remove a well-founded fear where effective protection is available, or where the applicant could reasonably modify their behaviour, subject to exceptions.

Each of those elements is a place where a claim can fail. The complementary protection criterion has its own limits. The sections below take each of the Protection Visa 866 common challenges in turn. The firm's guide to the Subclass 866 protection visa sets out the visa requirements in summary.

Why the Protection Visa 866 common challenges are legal, not only factual

Most applicants prepare for the question "is my story true?" The Protection Visa 866 common challenges ask a second question: "if my story is true, does it meet the law?"

A decision maker first makes findings of fact. The decision maker decides what happened, who was responsible, why it happened and what is likely to happen in future. The decision maker then applies the legal test to those findings. A claim can fail at either step. Credibility problems cause failure at the first step. The Protection Visa 866 common challenges in this article cause failure at the second.

This distinction matters for preparation. An applicant who concentrates only on proving events, without explaining why those events meet each element of the test, leaves the legal analysis to the decision maker. That analysis may not favour the applicant. A well-prepared claim explains the facts and then shows, element by element, why they meet the law.

It also matters at review. A refusal based on a legal element, rather than on credibility, often turns on how the facts were characterised. Understanding the Protection Visa 866 common challenges helps an applicant see where that characterisation can be challenged.

Challenge one: showing a Convention reason

The first of the Protection Visa 866 common challenges is the Convention reason. For the refugee criterion, the applicant must fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Section 5J(4)(a) adds a further requirement. The Department's guidelines explain that one or more of those reasons must be the essential and significant reason for the persecution. It is not enough that a Convention reason is present somewhere in the background.

This challenge commonly arises where the harm feared comes from a personal dispute, a debt, a criminal group or a family conflict. The harm may be very real, but if its essential and significant reason is money, revenge or a private quarrel, rather than one of the five reasons, the refugee criterion is not met.

The particular social group reason is often the most difficult. Sections 5K and 5L contain rules about what counts as a particular social group. Groups defined only by the persecution they fear do not qualify. A carefully defined group, based on a shared characteristic that exists independently of the persecution, may.

Where the refugee criterion may fail on this point, complementary protection becomes especially important, because it does not require a Convention reason at all. The firm's page on complementary protection explains that alternative ground.

Challenge two: showing the harm is serious enough

The second of the Protection Visa 866 common challenges is the level of harm. Section 5J(4)(b) requires the persecution to involve serious harm to the person.

Section 5J(5) gives a non-exhaustive list of what may constitute serious harm. The Department's guidelines set it out as:

• a threat to the person's life or liberty;
• significant physical harassment of the person;
• significant physical ill-treatment of the person;
• significant economic hardship that threatens the person's capacity to subsist;
• denial of access to basic services, if the denial threatens the person's capacity to subsist; and
• denial of capacity to earn a livelihood of any kind, if the denial threatens the person's capacity to subsist.

Section 5J(4)(c) also requires the persecution to involve systematic and discriminatory conduct. The guidelines explain that this refers to selective harassment, rather than random acts of violence.

Discrimination, social disapproval, verbal abuse and difficulty finding work are real hardships, but on their own they may fall below this threshold. A claim is stronger where the evidence shows the accumulated effect of the treatment, and how it has threatened, or would threaten, the applicant's safety or capacity to live.

Challenge three: a real chance of harm in the future

The third of the Protection Visa 866 common challenges is looking forward. Protection is about what will happen if the applicant returns, not only what happened before they left.

The objective element in section 5J(1)(b) requires a real chance of persecution. A real chance is a substantial chance, as distinct from a remote or far-fetched possibility. It does not require the harm to be more likely than not. The Department's guidelines direct officers to consider the reasonably foreseeable future and the evidence of past persecution.

Past harm is powerful evidence, but it is not decisive. A decision maker may accept that an applicant was harmed years ago and still find there is no real chance of harm now, for example because the persecutor has lost power, because conditions have changed, or because the applicant was able to live safely for a period before leaving.

This is where country information matters. The applicant's account must be connected to current evidence about how people in their position are treated. The firm's article on what evidence supports a protection claim explains how that connection is made.

Challenge four: state protection

The fourth of the Protection Visa 866 common challenges is state protection. Section 5J(2) 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 explains what effective protection measures are.

This challenge most often arises where the harm comes from someone other than the government, such as a family member, a community, a criminal group or an armed group. The decision maker will ask whether the police, courts or other authorities can and will protect the applicant.

A claim that the authorities will not help needs evidence. That may include the applicant's own attempts to seek help and what happened, the experience of others in the same position, and country information about how the authorities respond to this kind of harm. An assertion that the police are corrupt, without more, rarely meets this challenge. Specific, documented examples carry far more weight than general statements.

Complementary protection has an equivalent limit. Under section 36(2B)(b), a real risk of significant harm is taken not to arise if the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm.

Challenge five: relocation within the country

The fifth of the Protection Visa 866 common challenges is relocation. For the refugee criterion, section 5J(1)(c) requires the real chance of persecution to relate to all areas of the receiving country. For complementary protection, section 36(2B)(a) provides that a real risk is taken not to arise if it would be reasonable for the applicant to relocate to an area where there would not be a real risk.

Decision makers often ask whether the applicant could move to another city or region. An applicant must be ready to answer that question with facts: whether the persecutor can reach them elsewhere, whether they would be identified, whether they have any support there, and what the practical barriers are.

The Department's guidelines recognise some of those barriers. They note, for example, that in the complementary protection context, legal or socio-economic reasons or child-care responsibilities may prevent women from travelling freely or living on their own, limiting their ability to relocate. They also note that recent legal reform may not yet have changed day-to-day treatment on the ground.

Effective protection in a third country

A less common, but serious, item among the Protection Visa 866 common challenges is protection in another country. The Department's guidelines explain that under sections 36(3) to 36(7), the decision maker asks whether the applicant has an existing right to enter and reside in any country other than Australia, including any other country of which the applicant is a national.

If such a right exists, Australia is generally taken not to have protection obligations to the applicant, unless the applicant fears persecution or significant harm in that other country, or fears that it would return them to a country where they face such harm.

This challenge arises most often for dual nationals and for people who hold permanent residence or a similar right in a third country. It is one reason why every nationality, residence right and travel document must be declared accurately in the application. The Protection Visa 866 common challenges of this kind are best dealt with at the start, with evidence about the nature of any right held and the risks in that country.

Challenge six: modification of behaviour

The sixth of the Protection Visa 866 common challenges is modification of behaviour. 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 so as to avoid a real chance of persecution.

The section contains important exceptions. The Department's guidelines explain that a person is not expected to modify behaviour if doing so would conflict with a characteristic fundamental to their identity or conscience, would conceal an innate or immutable characteristic, or would require any of the things listed in section 5J(3)(c).

These exceptions are central in claims based on religion, political opinion, sexual orientation and gender identity. The guidelines state, in the context of sexual orientation and gender identity, that people who are discreet cannot be considered to be choosing to be private when it is the fear of harm that is forcing them to be secretive. The firm's pages on religious persecution and LGBTI protection visas discuss how this challenge applies in those claims.

Challenge seven: the limits of complementary protection

Complementary protection answers some of the Protection Visa 866 common challenges, because it does not require a Convention reason. It has its own limits, however, and they are often misunderstood.

The list of significant harm is closed. Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty being carried out, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Harm outside those five categories does not qualify, however serious it is.

Intention is usually required. The Department's Complementary Protection Guidelines explain that cruel or inhuman treatment or punishment requires an actual, subjective intention to inflict pain or suffering, and that mere negligence is not enough. Degrading treatment requires an act that both causes and is intended to cause extreme humiliation that is unreasonable.

Socio-economic hardship rarely qualifies. The guidelines state that the definitions are not intended to encompass violations of socio-economic rights, such as the right to earn a living, housing or medical treatment, except in exceptional circumstances where the resulting harm falls within one of the defined categories. They also state that where removal would threaten life expectancy because of a medical condition that cannot be treated to the same standard in the home country, that is unlikely to amount to an arbitrary deprivation of life.

The risk must be personal. Under section 36(2B)(c), a real risk is taken not to arise if it is faced by the population of the country generally and not by the applicant personally.

Harm from removal itself does not count. The guidelines explain that harm resulting from the act of removal, such as separation from children who remain in Australia, is not significant harm, because the harm must arise in the receiving country.

The firm's article on Subclass 866 complementary protection for LGBTI applicants works through these limits in detail in one type of claim.

Challenge eight: conduct in Australia

The eighth of the Protection Visa 866 common challenges concerns activities in Australia. Some claims arise, or become stronger, after the applicant leaves home. These are known as sur place claims.

Section 5J(6) requires a decision maker, in assessing a refugee claim, to disregard conduct in Australia that the applicant engaged in for the sole purpose of strengthening their claim. The Department's guidelines note that such conduct may still be taken into account in assessing credibility.

The guidelines also make an important point that is often overlooked. Section 5J(6) is not relevant to complementary protection. The reaction in the home country to activities the applicant undertakes in Australia, for any reason, must be considered in the complementary protection assessment.

Genuine activities in Australia, such as religious conversion or political involvement, are assessed on their merits. The challenge is to show that they are genuine, and to explain how they would be known and treated in the home country.

How to meet the Protection Visa 866 common challenges

Each of the Protection Visa 866 common challenges can be anticipated. The work is done before lodgement and before the interview, not after a refusal.

• Identify every possible reason for the harm, and whether any is a Convention reason that is essential and significant.
• Describe the harm precisely, including its effect on safety and capacity to live, so that its seriousness is clear.
• Connect the account to current country information, so that the chance of future harm is supported.
• Address state protection and relocation directly, with facts about what the applicant tried and why other areas are not safe or reasonable.
• Explain why modification of behaviour is not required, where the claim concerns identity, belief or opinion.
• Present the claim under both grounds where the facts support it, so that a failure on one does not end the application.

The firm's guide to the protection visa statement of claims explains how these points are addressed in the written statement. Where a refusal has already been made, the firm's page on protection visa refusals and its guide to appealing to the ART explain the next step. The time to apply for review is short and strictly applied.

Protection Visa 866 common challenges at review

The Protection Visa 866 common challenges do not disappear at the Administrative Review Tribunal. They often become sharper. The Tribunal reconsiders the claim afresh and will examine each legal element again.

A review is an opportunity to deal with the element that failed. If the Department found no Convention reason, the review should address the nexus directly, and should present the claim under complementary protection as well. If the Department found that the applicant could relocate, the review should address that finding with specific evidence about the proposed area. If the Department found that state protection was available, the review should present evidence about how the authorities actually respond.

New evidence can be provided to the Tribunal. It should be targeted at the findings that caused the refusal. An applicant who simply repeats the original claim, without engaging with the reasons for refusal, gives the Tribunal little reason to reach a different conclusion. The firm's article on the protection visa ART hearing explains how to prepare.

How My Migration Lawyers addresses Protection Visa 866 common challenges

My Migration Lawyers acts in protection visa matters where these legal challenges decide the outcome. The firm deals with complex cases involving non-state actors, particular social groups, relocation arguments and complementary protection, and it acts in many protection visa matters of this type. It is capable of handling those matters from the first assessment to review.

In a matter involving the Protection Visa 866 common challenges, the firm's work typically includes:

• analysing the applicant's account against each element of the refugee and complementary protection criteria;
• identifying the elements most likely to be contested and the evidence needed to meet them;
• researching current country information relevant to the claim;
• presenting the applicant's own account and evidence in the form the law requires, under both grounds where the facts support it; and
• preparing the applicant for questions on state protection, relocation and modification of behaviour at interview.

The applicant decides which claims are advanced. The statement remains their own evidence, reviewed and corrected by them.

The firm's protection work is led by Principal Lawyer Weiwei Zhang. More about the practice is on the protection visa lawyers page, and the full framework is in the Subclass 866 Protection Visa complete guide.

If you are concerned about any of the Protection Visa 866 common challenges in your own claim, book a consultation with My Migration Lawyers online, or call 1300 040 300.