Protection Visa Claims Based on Blood Feuds and Family Vendettas

Protection visa claims based on blood feuds and family vendettas are made by people who fear being killed or seriously harmed because of a cycle of revenge between their family, clan or tribe and another. The feud may have started with a killing, an injury, a dispute over land or water, an insult, a broken marriage agreement or an accident. Once it has started, the other side may regard every man in the applicant's family, and sometimes the women and children too, as a legitimate target.

Protection visa claims based on blood feuds and family vendettas are difficult under Australian law, and an honest assessment must say so. The legal framework for refugees was not designed for private revenge. But the danger is often real and deadly, and complementary protection exists for exactly this kind of risk. This article explains how these claims are assessed, where they usually fail, and how they can succeed.

Can a blood feud support a protection visa?

Yes, but usually through complementary protection rather than the refugee test. A blood feud can support a Subclass 866 protection visa where the applicant faces a real risk of significant harm, such as being killed, if returned, and effective protection and safe relocation are not available.

The refugee test in section 36(2)(a) requires a well-founded fear of persecution for a Convention reason. The complementary protection test in section 36(2)(aa) requires a real risk of significant harm, without any requirement for a Convention reason. Protection visa claims based on blood feuds and family vendettas usually face serious difficulty on the first test because of section 5K, explained below, and are usually won or lost on the second.

The definitive guide to the Subclass 866 protection visa explains both tests, and the guide to protection visa eligibility explains what to check before applying.

Who is at risk in a blood feud?

The people at risk in protection visa claims based on blood feuds and family vendettas depend on the rules of the feud in the applicant's community. In many feuds, the target is not only the person who caused the original harm, but any male relative of a certain closeness.

Those at risk commonly include:

• the person who caused the killing, injury or insult that started or continued the feud;
• his brothers, sons, father and cousins;
• men who have reached the age at which the community regards them as adults;
• a person who was a witness, or who refused to take part in revenge on behalf of their own family; and
• in some communities, women and children, particularly where the feud has escalated.

Age is often important. In some communities, boys are regarded as legitimate targets once they reach a certain age, and families send sons away before that point. Where the applicant left at or near that age, or has a son approaching it, the account should explain the rule and how it has been applied in the feud. The account should explain the rules of the feud as they are understood in the applicant's community, and why the applicant is within the group the other family regards as a target. A statement that the applicant is "part of the family" is not enough. The decision maker needs to understand why this applicant, in particular, would be sought out.

Living in hiding is not safety

Many people caught in a feud survive by hiding. Men may stay inside the family compound for years, unable to work, travel or attend school. Protection visa claims based on blood feuds and family vendettas should explain this clearly, because a decision maker may otherwise treat the applicant's survival so far as evidence that the risk is not real.

The fact that the applicant has not yet been killed may simply show that they have been hiding. The account should explain how the applicant lived before leaving, what they could and could not do, who else in the family was confined, and what happened to relatives who did not hide. It should also explain why that life cannot continue, for example because the applicant cannot support a family while confined, or because the other side has become more determined.

Living in permanent hiding is also relevant to relocation. A place of relocation where the applicant could survive only by never leaving the house is not a place where relocation would be reasonable, in the sense of practicable. The Subclass 866 protection visa page explains how these issues fit within the visa criteria.

How section 5K affects protection visa claims based on blood feuds and family vendettas

Section 5K is the provision that most often defeats the refugee claim in protection visa claims based on blood feuds and family vendettas. It deals with claims based on membership of a particular social group consisting of the applicant's family.

Section 5K requires the decision maker to do two things when assessing a family-based claim:

• Disregard non-Convention persecution of relatives. Any fear of persecution, or persecution, experienced by another member or former member of the family must be disregarded where the reason for it is not a Convention reason.
• Disregard the applicant's fear that flows from it. Any fear of persecution experienced by the applicant or another family member must also be disregarded where it is reasonable to conclude that it would not exist if the first, non-Convention persecution had never existed.

Most blood feuds begin for reasons that are not Convention reasons: a killing, a dispute over land, an insult or a failed marriage arrangement. Section 5K means that the other family's hostility to the applicant's relatives is disregarded, and the applicant's own fear, which flows from that hostility, is disregarded as well. The result is that a family-based refugee claim will usually fail where the feud began for a non-Convention reason.

That is why protection visa claims based on blood feuds and family vendettas should not rely on the family as a particular social group unless there is a genuine Convention reason behind the feud. Section 5L, which deals with particular social groups other than the family, does not usually help either. A group defined only by the threat it faces is excluded, because the characteristic of a group cannot be the fear of persecution itself.

When a blood feud may involve a Convention reason

A Convention reason may be present in protection visa claims based on blood feuds and family vendettas where the feud is not purely private. Section 5J(1)(a) lists the five Convention grounds, and under section 5J(4)(a) one of them must be the essential and significant reason for the persecution.

Situations where a Convention reason may exist include:

• Ethnic or tribal conflict. Where the feud is between ethnic or tribal groups and the applicant is targeted because of their ethnicity or tribe, the ground may be race, which includes ethnic and national origin.
• Political conflict. Where the feud arose from, or is part of, a political dispute, such as violence between supporters of rival candidates, the ground may be political opinion, actual or imputed.
• Religion. Where the feud is between religious communities, or the applicant is targeted because of their faith, the ground may be religion.
• Discriminatory refusal of protection. Where the state protects others from feud violence but refuses to protect the applicant because of a Convention characteristic, that refusal may itself make the harm persecution for a Convention reason.

These should be argued only where the facts genuinely support them. A decision maker who sees a Convention reason forced onto a private feud may doubt the whole claim.

Complementary protection in protection visa claims based on blood feuds and family vendettas

Complementary protection is the main framework for protection visa claims based on blood feuds and family vendettas. 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.

A real risk of being killed in revenge is a real risk of arbitrary deprivation of life. A real risk of a serious assault or maiming may amount to cruel or inhuman treatment, because the pain or suffering is intentionally inflicted. Complementary protection does not ask why the other family wants to kill the applicant. It asks whether there is a real risk that they will.

Three exceptions in section 36(2B) then apply. There is taken not to be a real risk where the applicant could relocate reasonably within the country, where the applicant could obtain protection from an authority such that there would be no real risk, or where the risk is faced by the population generally and not by the applicant personally. The Department's Complementary Protection Guidelines state that these are assessed as part of the real risk test, not as separate exclusions considered afterwards.

The last exception rarely defeats protection visa claims based on blood feuds and family vendettas, because a feud is by its nature personal. The first two are where these claims are decided. The page on complementary protection explains the test in more detail.

Timing and delay in protection visa claims based on blood feuds and family vendettas

Timing is often questioned in protection visa claims based on blood feuds and family vendettas. A feud may have lasted for years before the applicant left. The applicant may also have waited in Australia before applying, hoping the feud would be settled.

The account should explain what changed to make the applicant leave, for example a new killing, a direct threat, or the applicant reaching the age at which the other family would target him. It should also explain any delay in applying after arrival. The guide to delayed Subclass 866 applications explains how delay is assessed, and the guide to Form 866 explains how the claims are set out in the application.

Is state protection available in a blood feud?

State protection is often decisive in protection visa claims based on blood feuds and family vendettas. Section 36(2B)(b) asks whether the applicant could obtain protection from an authority such that there would not be a real risk of significant harm.

The Complementary Protection Guidelines state that the existence of an appropriate criminal law and a reasonably effective and impartial judicial system shows only that protection measures are available. The question is whether the applicant could obtain protection, having regard to the source and nature of the harm, and whether, having obtained it, the applicant would still be at real risk.

In blood feud claims, the evidence should address:

• whether police investigate and prosecute revenge killings in the applicant's area, or leave them to be resolved by custom;
• whether the other family has members or allies in the police, local government or courts;
• whether the state has protected, or failed to protect, members of the applicant's family who were already attacked;
• whether a prosecution of one attacker would end the risk, or whether other relatives would continue the feud; and
• whether police can provide protection that lasts, rather than a single intervention.

Where police have been told of threats and have done nothing, or where relatives have been killed without anyone being charged, that is strong evidence that state protection is not effective in practice.

Customary justice can also weaken state protection. In some communities, police step back once elders become involved, on the understanding that the families will settle the matter themselves. Where that happens, the applicant's safety depends on a process the other family controls. Protection visa claims based on blood feuds and family vendettas should explain whether that has happened in the applicant's case, and what the outcome was.

Could the applicant relocate to avoid the feud?

Relocation is the other issue that decides protection visa claims based on blood feuds and family vendettas. Section 36(2B)(a) asks whether it would be reasonable, in the sense of practicable, for the applicant to relocate to an area where there would be no real risk.

A decision maker may reason that the feud is local, and that the applicant could live safely in a distant city. The evidence should address whether that is realistic:

• whether the other family has relatives, allies or networks in other parts of the country;
• whether members of the applicant's family who moved away have been found;
• whether the applicant would have to register an address, obtain documents or use services that would reveal where they are;
• whether the applicant could find work and housing in the proposed place without family support; and
• whether the applicant would be able to visit family or return to their home area for births, marriages and funerals without being found.

The Complementary Protection Guidelines state that simply listing relocation factors and stating that they have been considered is not enough. Their impact on the applicant must be assessed.

Can the feud be settled by reconciliation?

A decision maker may ask whether the feud could be ended through reconciliation, mediation or a compensation payment. In some communities, elders or religious leaders can negotiate an end to a feud. Protection visa claims based on blood feuds and family vendettas should address this question directly.

The account should explain:

• whether reconciliation has been attempted, by whom, and what happened;
• whether the other family has refused, or has demanded compensation the applicant's family cannot pay;
• whether a previous settlement was broken; and
• whether reconciliation would protect the applicant personally, or only some members of the family.

Where reconciliation has failed or is not realistically available, that should be shown with evidence, such as statements from elders or community leaders who were involved. Where the feud began with a bride price or marriage dispute, the claim may also overlap with bride price claims, which My Migration Lawyers deals with in separate guidance.

Evidence for protection visa claims based on blood feuds and family vendettas

The evidence in protection visa claims based on blood feuds and family vendettas must establish that the feud exists, that the applicant is a target, and that the threat is continuing. Useful evidence includes:

• the applicant's detailed account of how the feud began, each killing or attack since, and the applicant's place in the family;
• death certificates, medical records, police reports and news reports about killings or attacks;
• a family tree showing the applicant's relationship to the people involved;
• statements from relatives, elders or community leaders about the feud and any reconciliation attempts;
• messages or other evidence of continuing threats; and
• country information about blood feuds in the applicant's region, including how police and courts respond.

The guides to the protection visa statement of claims and protection visa evidence explain how this material is presented. The pages on the protection visa interview and interview questions explain what to expect when the claim is tested in person.

Tribunal decisions involving protection visa claims based on blood feuds and family vendettas

Published tribunal decisions show that protection visa claims based on blood feuds and family vendettas can be remitted where the risk and the reason for it are properly analysed. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 1721044 (Refugee) [2020] AATA 2231. A man from Papua New Guinea targeted for retaliatory tribal killing following political conflict.
• 1932240 (Refugee) [2022] AATA 5220. An applicant from Sri Lanka facing threats arising from relatives' disputes with influential politicians.

Each decision turned on its own facts. What they show is that a revenge threat connected with political conflict or influential people raises different questions from a purely private feud, and that the origin of the dispute must be explained carefully.

What if protection visa claims based on blood feuds and family vendettas 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 blood feuds and family vendettas usually rest on findings that there is no Convention reason, that the threat is not current, that police would protect the applicant, that relocation is reasonable, or that reconciliation is available. The review should focus on complementary protection and answer each finding with specific evidence. The Tribunal considers the matter afresh and can take new evidence. In protection visa claims based on blood feuds and family vendettas, that often includes records of killings or attacks that occurred after the Department's decision, statements from elders about failed reconciliation, and country information on how police in the applicant's region deal with revenge violence. New evidence should support the original account rather than change it. A person refused a protection visa in Australia generally cannot lodge another one while they remain here, so the review is usually the last chance to have the claim properly assessed. 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 blood feuds and family vendettas

My Migration Lawyers acts in protection visa claims based on blood feuds and family vendettas for people already in Australia. The firm deals with complex protection matters and acts in Subclass 866 claims of this exact type, where the refugee test is limited by section 5K and the case must be built on complementary protection. 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:

• An honest assessment. The firm identifies at the start whether any Convention reason genuinely exists, and explains the effect of section 5K.
• The applicant's account. The history of the feud, the applicant's place in it and the continuing threat are set out 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.
• State protection, relocation and reconciliation. Evidence is gathered on each of the three issues on which these claims are usually decided.
• Complementary protection. The claim is built around the real risk of arbitrary deprivation of life and the exceptions in section 36(2B).
• Review. A refused claim is assessed for review within time.

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 a feud means your life would be in danger if you return, book a consultation with My Migration Lawyers online, or call 1300 040 300.