Protection Visa Claims Based on Atheism and Leaving Religion

Protection visa claims based on atheism and leaving religion are made by people who no longer believe in the religion they were raised in, or who never believed at all, and who face serious harm at home because of it. In some countries, leaving religion is a crime. In many more, it is treated by family and community as a betrayal that must be punished or reversed.

Protection visa claims based on atheism and leaving religion are assessed under the same tests as every Subclass 866 claim. What sets them apart is that the applicant is not claiming protection for a faith they hold. They are claiming protection for the absence of one. That affects how the Convention ground is argued, how the Department tests credibility, and what the applicant can be expected to hide. This article explains each of those points.

Can atheism or leaving religion support a protection visa?

Yes. Atheism or leaving religion can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution because of their non-belief, or faces a real risk of significant harm, and effective protection is not available in their home country.

The applicant's lack of belief is not, by itself, the claim. Protection visa claims based on atheism and leaving religion depend on the harm that follows from it. A person whose family is disappointed, or whose community disapproves, will not usually meet the threshold. A person who faces prosecution for apostasy, violence from relatives, forced marriage to restore family honour, confinement, or loss of the ability to live and work may meet it.

Protection visa claims based on atheism and leaving religion fall into three broad groups:

• People raised in a religion who have left it. They may describe themselves as atheist, agnostic, humanist or simply non-religious.
• People accused of having left religion. They may still be uncertain about their beliefs, but their family or community has concluded that they have abandoned the faith.
• People who were never religious but must appear to be. They live in a country or family where religious identity is compulsory, and where refusing to practise exposes them to harm.

The definitive guide to the Subclass 866 protection visa explains the general criteria, and the guide to protection visa eligibility explains what to check before applying. This article applies those criteria to protection visa claims based on atheism and leaving religion.

Is atheism protected under the Convention ground of religion?

Yes. In protection visa claims based on atheism and leaving religion, the Convention ground is religion. The ground protects a person's freedom to hold a belief, to change it and to hold no belief at all. Persecution of a person because they reject religion is persecution for reasons of religion.

Section 5J(1)(a) of the Migration Act lists the five Convention grounds, and religion is one of them. Under section 5J(4)(a), the Convention ground must be the essential and significant reason for the persecution. In most protection visa claims based on atheism and leaving religion, that requirement is met directly. The applicant is targeted precisely because they have rejected the faith.

The ground also covers imputed belief. A person does not have to describe themselves as an atheist. If the family or authorities believe the person has abandoned the faith, and harm them for that reason, the harm is for reasons of religion.

Other grounds may also apply. In some countries, rejecting religion is treated as rejecting the state or its ruling ideology, so the harm may also be for reasons of political opinion, whether actual or imputed. A woman who leaves religion may face harm that is also connected to her gender, such as forced marriage or punishment for refusing religious dress. Protection visa claims based on atheism and leaving religion should identify every ground that genuinely applies, because a claim argued on religion alone may leave a stronger ground unexamined.

Where the applicant has left one faith and adopted another, the claim is a conversion claim, and it raises different issues. My Migration Lawyers' page on religious persecution explains those claims. This article deals only with people who have left religion without adopting another.

What harm do people who leave religion face?

The harm raised in protection visa claims based on atheism and leaving religion usually comes from three sources: the law, the family and the wider community. Many applicants face more than one.

• The law. Some countries criminalise apostasy directly. Others use laws on religious insult or public order against people who reject religion. Where an applicant is accused of insulting religion rather than simply leaving it, the claim is a blasphemy claim, which My Migration Lawyers deals with in separate guidance.
• The family. Relatives may threaten or use violence, confine the applicant, take away their documents or money, or force them into a marriage to bring them back into the faith.
• The community. Religious leaders or local groups may denounce, threaten or attack the applicant, or exclude them from work and housing.

Legal and administrative harm can also be serious in protection visa claims based on atheism and leaving religion. In some countries, a person's religion is recorded on their identity card, and a person who leaves religion cannot register a marriage, register a child's birth, inherit property or keep custody of their children. Where those consequences threaten the person's capacity to subsist, they can amount to serious harm under section 5J(5).

Harm that would not be serious on its own can become serious when it is considered together. A person who has lost family support, cannot register a marriage, cannot find work because their non-belief is known, and faces regular threats may cross the threshold even if no single incident would. Protection visa claims based on atheism and leaving religion should set out the whole pattern, not only the most dramatic incident.

Can the Department say you should keep your non-belief quiet?

The Department cannot require an applicant to conceal their true religious beliefs, or to take part in religious practice, to avoid persecution. That protection is central to protection visa claims based on atheism and leaving religion, although the way it applies to non-belief should be argued expressly.

Section 5J(3) of the Migration Act says 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. The exceptions are the important part. Section 5J(3) does not apply to a modification that would conflict with a characteristic fundamental to the person's identity or conscience. Section 5J(3)(c)(i) also lists modifications a person can never be required to make: to "alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith".

For a person who has left religion, the argument runs as follows. Their true position on religion is that they do not believe. Requiring them to hide that position conceals their true religious beliefs. Requiring them to pray, fast, attend services or marry within the faith forces them to adopt beliefs they do not hold. Non-belief is also a matter of conscience, which brings section 5J(3)(a) into play.

This matters because a common error in protection visa claims based on atheism and leaving religion is an argument that the applicant could simply stay quiet. That argument asks the applicant to live a lie about the most basic matter of conscience, often while being forced to perform religious rituals. The application should confront that argument before the Department raises it.

Forced religious practice as a form of harm

Forced religious practice is itself a form of harm that protection visa claims based on atheism and leaving religion should identify. It is often overlooked because the applicant has lived with it for years.

A person who has left religion may be required by family or community to pray, fast, dress in a prescribed way, attend religious instruction or services, or marry within the faith. Refusal may lead to beatings, confinement, withdrawal of financial support, or being reported to religious authorities. Where the requirement is enforced by violence or by the threat of it, it may amount to serious harm under section 5J(5), and to cruel or inhuman or degrading treatment for complementary protection purposes.

The account should describe what the applicant was made to do, who enforced it, what happened when the applicant refused or failed, and how often. Specific incidents, with approximate dates, carry far more weight than a general statement that the family is very religious. The Subclass 866 protection visa page explains how these claims fit within the visa criteria.

Harm from family and community: is state protection available?

Where the harm comes from family or community rather than the state, protection visa claims based on atheism and leaving religion usually turn on whether effective state protection is available.

For a refugee claim, section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them. Section 5LA explains what that means. In broad terms, the state must be willing and able to offer protection that the person can access and that is durable, including an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

Where the state itself criminalises leaving religion, state protection is not a realistic answer. The applicant cannot ask the police for protection from the consequences of an act the police would prosecute. Where leaving religion is not a crime, the evidence must show how the police actually respond when a person who has left religion reports threats from family or religious groups. A law that looks protective on paper is not enough if it is not applied in practice.

For a complementary protection claim, section 36(2B)(b) asks whether the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm. The Department's Complementary Protection Guidelines state that findings on state protection for the refugee test cannot simply be adopted for complementary protection. Each must be addressed.

Could the applicant relocate within their home country?

Relocation is often raised in protection visa claims based on atheism and leaving religion, and it is often answerable. For a refugee claim, section 5J(1)(c) requires that the real chance of persecution relate to all areas of the country. For complementary protection, section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable.

Several features of protection visa claims based on atheism and leaving religion weaken a relocation finding:

• National laws on apostasy, religious insult or compulsory religious registration apply everywhere in the country.
• Identity documents that record religion follow the person wherever they go.
• Family networks may reach across the country, particularly where the family has influence or resources.
• Living safely in another city may still require the applicant to hide their non-belief or practise a religion they reject, which returns the claim to section 5J(3).

The evidence should deal with each of these points, rather than simply asserting that the applicant would not be safe anywhere.

When complementary protection applies

Complementary protection applies where the applicant is not found to be a refugee but faces a real risk of significant harm if returned. Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. That list is exhaustive.

In protection visa claims based on atheism and leaving religion, complementary protection is most relevant where the decision maker doubts that the harm is for reasons of religion, or where the harm is framed as a family matter. A real risk of being killed or seriously assaulted by relatives, or of prolonged confinement, can fall within the list regardless of motive. The page on complementary protection explains the test. A well-prepared application argues both frameworks together.

How the Department tests protection visa claims based on atheism and leaving religion

The Department tests protection visa claims based on atheism and leaving religion by examining the applicant's account of how they came to leave religion, not by testing knowledge of doctrine. An atheist is not expected to explain theology. They are expected to explain their own journey.

At interview, the officer is likely to ask:

• when the applicant first began to doubt the religion, and what caused it;
• how their thinking developed over time;
• who they told, when, and what happened;
• how they have lived since, including whether they still take part in any religious practice and why; and
• what they believe would happen if they returned.

A credible account is personal, detailed and consistent. It explains the change in the applicant's own words. It does not recite arguments from books or websites without showing how they affected the applicant. The pages on the protection visa interview and interview questions explain what to expect.

Consistency with earlier forms

Earlier visa applications often ask for religion. An applicant who listed a religion on a visitor or student visa application, or on a Form 80, should explain why. Many applicants recorded their family religion out of habit, fear or because it matched their identity documents. That is a common and understandable explanation, but it should be given in the statement before the Department asks about it.

Tribunal decisions involving protection visa claims based on atheism and leaving religion

Published tribunal decisions show that protection visa claims based on atheism and leaving religion are taken seriously on review, and that they often succeed or fail on the detail of the applicant's account and the country information. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 1717958 (Refugee) [2020] AATA 2439. An applicant from Iraq whose claims involved atheism, criticism of political and religious figures, abduction by a militia and online activity.
• 1600364 (Refugee) [2019] AATA 667. An applicant from Iran whose claims combined atheism with student protest activity, Azeri identity and defiance of religious rules.
• 1820283 (Refugee) [2020] AATA 648. A stateless Faili Kurd from Iran, an atheist married to a Christian, where nationality and the right to return were also in dispute.

Each decision turned on its own facts. None of them means that every claim based on non-belief from those countries will succeed. What they show is that non-belief is often one part of a wider profile, and that the claim should present every part of that profile together.

Leaving religion after arriving in Australia

Protection visa claims based on atheism and leaving religion can arise after the applicant arrives in Australia. Some people only feel safe to question or reject their religion once they are away from family and community.

Under section 5J(6) of the Migration Act, conduct engaged in by the applicant in Australia is disregarded in a refugee claim unless the applicant satisfies the Department that it was engaged in otherwise than for the purpose of strengthening the claim to be a refugee. This applies to public statements, social media activity, membership of humanist or atheist groups, and similar conduct.

The provision does not prevent a genuine claim. It means the applicant must show that the change in belief is real and was not adopted to create a protection claim. The history of the applicant's doubts, including doubts held before leaving home, is usually the most important evidence. A person who delays lodging after the change should also be ready to explain the delay. The guide to delayed Subclass 866 applications explains how delay is assessed.

Evidence for protection visa claims based on atheism and leaving religion

The main evidence in protection visa claims based on atheism and leaving religion is the applicant's own detailed account. Supporting evidence may include:

• messages from family or community members reacting to the applicant's non-belief, including threats;
• evidence of any charges, complaints or official action against the applicant;
• statements from friends or relatives who know of the applicant's non-belief and the reaction to it;
• evidence of the applicant's views expressed over time, where it is safe and genuine; and
• country information about the treatment of people who leave religion, including the law on apostasy, identity documents and family law.

The guides to the protection visa statement of claims and protection visa evidence explain how this material is presented.

What if protection visa claims based on atheism and leaving religion are refused?

If the Department refuses the application, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied, and it runs from the date the applicant is notified of the refusal.

Refusals in protection visa claims based on atheism and leaving religion usually rest on a finding that the applicant's non-belief is not genuine, that the applicant could avoid harm by staying quiet, or that state protection or relocation is available. Each finding can be tested at review. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process.

How My Migration Lawyers acts in protection visa claims based on atheism and leaving religion

My Migration Lawyers acts in protection visa claims based on atheism and leaving religion for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims based on religion, including claims by people who have left their faith. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work includes:

• The applicant's account. The account of how the applicant left religion is taken in detail, with an interpreter where needed. It is the applicant's own evidence, which they review and correct before it is lodged, and the applicant decides which claims are advanced.
• Section 5J(3). The argument that the applicant cannot be expected to hide their non-belief or practise a religion they reject is made expressly.
• Earlier forms. Earlier visa applications are checked for any religion recorded, and differences are explained before the Department raises them.
• Section 5J(6). Where the change occurred in Australia, the evidence of its genuineness is prepared with that provision in mind.
• State protection and relocation. Current country information is used to address both issues.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers page explains how it acts in Subclass 866 matters.

If you have left your religion and fear what will happen if you return, book a consultation with My Migration Lawyers online, or call 1300 040 300.