Protection Visa Claims Based on Ethnic and Minority Group Persecution

Protection visa claims based on ethnic and minority group persecution are made by people who fear serious harm at home because of who they are born as: their ethnicity, their tribe, their national origin or the minority community they belong to. These are among the oldest claims in refugee law. They are also among the most commonly misunderstood.

Protection visa claims based on ethnic and minority group persecution are not a separate visa or a separate legal category. They are assessed under the same two tests as every Subclass 866 claim: the refugee test in section 36(2)(a) of the Migration Act 1958 and the complementary protection test in section 36(2)(aa). What makes them different is how the facts fit those tests. This article explains the points on which these claims are usually won or lost.

What are protection visa claims based on ethnic and minority group persecution?

Protection visa claims based on ethnic and minority group persecution are Subclass 866 claims in which the applicant fears serious harm because they belong to an ethnic, tribal, national or other minority group that is targeted in their home country.

The harm may come from the state itself. It may come from the army, the police or a militia that acts with the state's approval. It may also come from another ethnic group, a rebel force or a local community, while the state stands aside. Each of these situations is treated differently in the law, and the claim must identify which one applies.

A person making protection visa claims based on ethnic and minority group persecution must show that they meet one of the two legal tests:

• The refugee test. The applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion, under sections 5H and 5J.
• The complementary protection test. 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(2)(aa).

The definitive guide to the Subclass 866 protection visa sets out the general criteria. The guide to protection visa eligibility explains what to check before applying. The rest of this article applies those criteria to protection visa claims based on ethnic and minority group persecution.

Does race include ethnicity, tribal origin and national origin?

Yes. In refugee law, race is read broadly. It includes ethnicity, national origin, tribal or clan identity, and membership of a group that shares a common descent, language or culture.

Section 5J(1)(a) lists the five Convention grounds: race, religion, nationality, membership of a particular social group and political opinion. For protection visa claims based on ethnic and minority group persecution, the grounds most often engaged are race and nationality.

Race

Race covers the obvious cases, such as a person targeted for their skin colour or appearance. It also covers a person targeted because they belong to a particular ethnic group or tribe, even where they look no different from their attackers. What matters is that the persecutor identifies the person as a member of the group and harms them for that reason.

Nationality

Nationality is not limited to citizenship. It can include membership of an ethnic or linguistic group, and it can overlap with race. A person may be targeted because they are seen as belonging to a neighbouring country, or because their family is regarded as foreign even after generations in the country.

Other grounds that often combine with ethnicity

Ethnicity rarely stands alone. A minority group may also share a religion, and harm may be for both reasons. Some groups may also be a particular social group under section 5L. A claim should identify every ground that genuinely applies, rather than choosing one and leaving the others unargued. Where the harm turns mainly on a person's faith, the page on religious persecution applies, and a separate article on religious minorities will deal with that ground in more detail. The legal threshold for ethnicity and caste claims is also addressed in its own article. Caste, and marriage across caste lines, are covered in separate guidance.

Under section 5J(4)(a), the Convention ground must be the essential and significant reason for the persecution. Ethnicity does not need to be the only reason. It must be an essential and significant one.

Must the applicant show they were personally targeted?

No. An applicant does not always need to show they were singled out as an individual. In protection visa claims based on ethnic and minority group persecution, membership of a group that faces a real chance of persecution can be enough, if the evidence shows the risk extends to people in the applicant's position.

This is one of the most important points in the area, and one that is often put wrongly. Many applicants believe they must prove a personal threat, such as a letter with their name on it or an attack on their own home. That kind of evidence helps, but it is not a legal requirement. The question under section 5J(1)(b) is whether there is a real chance the applicant will be persecuted. Where the persecutor targets a whole group, a real chance may exist for every member of that group.

The group argument has limits. It is not enough to show that some members of a minority have been harmed. The evidence must show that the risk to members in the applicant's position is real, not remote. Decision makers will ask:

• how widespread and frequent the harm to the group is;
• whether it reaches ordinary members, or only activists, leaders or people with a public profile;
• whether it depends on the region, age, sex, class or profile of the member; and
• whether the applicant has any additional features that raise the risk.

In practice, strong protection visa claims based on ethnic and minority group persecution use both arguments. They show that the group is targeted, and then show why this applicant, with their particular profile, history and place of origin, falls within the part of the group that faces a real chance of harm. The Subclass 866 protection visa page explains how the claim is presented in the application.

How are stateless applicants from minority groups assessed?

A stateless applicant is assessed against their country of former habitual residence, not a country of nationality. Section 5H defines a refugee who has no nationality as a person outside their country of former habitual residence who, owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Statelessness is common in protection visa claims based on ethnic and minority group persecution. Some states deny citizenship to entire minority groups. Others remove it. Being stateless is not, on its own, persecution. But the denial of citizenship to a group because of its ethnicity can be part of the persecution, particularly where it leaves the group without documents, work, education, health care or freedom of movement.

A stateless applicant must still show a real chance of persecution, or a real risk of significant harm, in the country where they habitually lived. Evidence of where they lived, for how long and in what circumstances is therefore essential. The protection visa documents checklist explains what records are usually gathered.

When does discrimination against a minority become persecution?

Discrimination against a minority becomes persecution when it involves serious harm, is systematic and discriminatory, and is inflicted for reasons of a Convention ground. In protection visa claims based on ethnic and minority group persecution, all three elements in section 5J(4) must be met.

Section 5J(4)(b) requires serious harm. Section 5J(4)(c) requires systematic and discriminatory conduct. That means the conduct is selective. It is aimed at the group, rather than being random violence or hardship that everyone in the country suffers.

Section 5J(5) gives examples of serious harm. They include:

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

Cumulative discrimination

In protection visa claims based on ethnic and minority group persecution, the harm often builds up over years rather than arriving in a single attack. A minority may be refused identity documents. Without documents, its members cannot enrol children in school, register births or marriages, own land, travel, open bank accounts or obtain lawful work. Each measure might not be serious harm on its own. Taken together, they can threaten the capacity to subsist, which is the language of section 5J(5).

Decision makers must consider the incidents together, not one at a time. A claim that lists the harms separately, without explaining their combined effect on the applicant's ability to live, invites the finding that each one is "only" discrimination. The claim should say plainly that the combined effect is serious harm, and why. The complete guide to the Subclass 866 protection visa explains how serious harm is assessed across all claims.

Discrimination that is unpleasant but survivable will not meet the test. Social prejudice, insults, or being passed over for a job are not persecution on their own. Protection visa claims based on ethnic and minority group persecution must be honest about that line and present the evidence that shows it has been crossed.

Imputed political opinion in protection visa claims based on ethnic and minority group persecution

In protection visa claims based on ethnic and minority group persecution, the harm is often inflicted because the state or an armed group assumes that members of the minority support rebels, separatists or an opposition movement. That is persecution for reasons of an imputed political opinion, and it can be argued alongside race.

An imputed political opinion is one the persecutor attributes to the person, whether or not the person actually holds it. A young man from a minority region may be detained and beaten because the security forces assume every young man from that group supports the insurgency. He may have no political views at all. The harm is still for reasons of political opinion, because that is the reason the persecutor acts.

This point matters because a decision maker may otherwise treat the harm as ordinary counter-insurgency activity, or as part of a general conflict. Identifying the imputed political opinion shows that the harm is selective and connected to a Convention ground.

One caution applies. Where an applicant was forced to join, or did join, an armed group, the Department will also consider whether any exclusion provision applies. A person who has committed a serious non-political crime, a war crime or a crime against humanity can be excluded from protection under both the refugee and complementary protection tests. This is a separate question that needs careful legal advice before any account is given. The guide on when you need a protection visa lawyer explains why.

Can the Department say the applicant should hide their ethnicity?

No. In a refugee claim, the Department cannot require an applicant to conceal their true race, ethnicity, nationality or country of origin to avoid persecution. Section 5J(3)(c) says so expressly.

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 a real chance of persecution. That rule does not apply where the modification would conflict with a characteristic fundamental to the person's identity or conscience, or would conceal an innate or immutable characteristic. Section 5J(3)(c) then lists modifications a person can never be required to make. Concealing true race, ethnicity, nationality or country of origin is one of them.

That protection is central to protection visa claims based on ethnic and minority group persecution. An applicant cannot be told to return, stop speaking their language in public, change their name, avoid their community and pass as a member of the majority group. The question is whether the applicant faces a real chance of persecution as the person they are.

This protection applies to the refugee test. In protection visa claims based on ethnic and minority group persecution that are assessed under complementary protection, there is no equivalent written rule, so that part of the case should still address how the applicant would in fact live on return.

State protection and relocation for ethnic minorities

Whether the state can protect the applicant, and whether they could safely live elsewhere, decides many protection visa claims based on ethnic and minority group persecution. The answer depends heavily on who the persecutor is.

Where the state is the persecutor

In protection visa claims based on ethnic and minority group persecution where the state, its army or its police are the source of the harm, effective state protection is rarely available. The body that is meant to protect the applicant is the body harming them. Section 5J(2) provides that a person does not have a well-founded fear if effective protection measures are available. Section 5LA explains that protection must be offered by a state, or by a party or organisation that controls the state or a substantial part of its territory, that is willing and able to protect. It must be accessible and durable, and consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. A state that persecutes a minority does not meet that description for that minority.

Where the harm is communal violence

In protection visa claims based on ethnic and minority group persecution where the harm comes from another ethnic group, a militia or a local community, the question is whether the state is willing and able to protect members of the minority in practice. Laws on paper are not enough. The Department's guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye.

Relocation

For a refugee claim, the real chance of persecution must relate to all areas of the country under section 5J(1)(c). The applicant must be able to access any proposed area of relocation safely and lawfully. Where discrimination is nationwide, such as a citizenship law or a documents regime, relocation will not remove it. Where the minority is identifiable anywhere by name, language or identity card, relocation may not remove the risk either. Protection visa claims based on ethnic and minority group persecution should therefore explain how the applicant would be identified in any proposed area. Violence arising from a local land or tribal dispute is dealt with in a separate article. The page on complementary protection explains the different relocation test that applies under that framework.

When does complementary protection apply to ethnic minorities?

Complementary protection applies to protection visa claims based on ethnic and minority group persecution where the applicant is not found to be a refugee but faces a real risk of significant harm if returned. Section 36(2A) lists the forms of significant harm: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The list is closed.

Section 36(2B)(c) provides that there is no real risk if the risk is faced by the population generally and not by the applicant personally. This is where minority status matters. The Complementary Protection Guidelines explain that, where violence is generalised, the decision maker must ask whether the violence is indiscriminate or whether the applicant is in a class of persons who would be targeted. The Guidelines give the example of a Sunni in a Shiite controlled area.

The Guidelines also state that a general statement that violence is rife is not enough to apply section 36(2B)(c). The decision maker must go on to consider whether the applicant would be personally affected. In protection visa claims based on ethnic and minority group persecution, membership of a targeted minority is the characteristic that distinguishes the applicant from the population generally.

Relocation is tested differently under complementary protection. Section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable. The Guidelines state that findings made on relocation under the refugee test cannot simply be adopted for complementary protection. Both frameworks should be argued from the start.

Does a peace agreement or change of government end the risk?

No. A peace agreement, ceasefire, election or change of government does not automatically end the risk to an ethnic minority. In protection visa claims based on ethnic and minority group persecution, the question is whether the risk to this applicant has in fact ended, on current and reliable country information.

Decision makers often rely on a recent political change to find that a minority is now safe. That finding should be tested. Agreements signed at national level may not be implemented in the regions. Militias may not disarm. Local officials may keep the same attitudes. Returnees from abroad may be treated with suspicion. Documents lost during the conflict may still be refused.

The claim should address the change directly. It should explain what has changed, what has not, and why the changes do not reach people in the applicant's position. Country information should be current. Where the situation is moving quickly, updated information should be provided before interview and again before any review hearing.

What evidence supports protection visa claims based on ethnic and minority group persecution?

The evidence for protection visa claims based on ethnic and minority group persecution must prove two things: that the applicant belongs to the group, and that members of the group in the applicant's position face a real risk of harm.

Evidence of ethnic or minority identity may include:

• identity documents, birth certificates or household registration records that show ethnicity, tribe, place of origin or religion;
• evidence of the applicant's language and dialect, which is often tested at interview;
• family history, including where parents and grandparents were born and lived; and
• letters from community organisations or leaders who know the applicant and the family.

Evidence of the risk may include:

• country information from the Department of Foreign Affairs and Trade and other reliable sources about the treatment of the group;
• evidence of harm to the applicant, family members or neighbours, such as medical records, photographs or written statements from witnesses;
• evidence of refused documents, lost employment, denied schooling or confiscated land; and
• an explanation of why the applicant did not seek police help, if they did not.

The applicant's own written account is the core of the claim. It is their own evidence. The guides to the protection visa statement of claims and to protection visa evidence explain how that account is structured and supported. At the protection visa interview, the officer will usually test identity, language, place of origin and knowledge of the community. The guide to protection visa interview questions explains what to expect.

What if protection visa claims based on ethnic and minority group persecution are refused?

If the Department refuses the claim, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply for review is short and strictly applied.

Refusals in protection visa claims based on ethnic and minority group persecution usually rest on one of five findings: that the applicant is not a member of the group, that the group is not at real risk, that the applicant's profile is too low, that country conditions have improved, or that the applicant could relocate. Each finding can be tested at review. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process, and the guide to the protection visa ART hearing explains how the hearing works.

How My Migration Lawyers acts in protection visa claims based on ethnic and minority group persecution

My Migration Lawyers acts in protection visa claims based on ethnic and minority group persecution for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the harm is directed at a person's ethnic, national or minority identity and the case turns on group risk, country information and state 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 on these claims includes:

• Group and individual risk. The claim is presented to show both the risk to the group and why the applicant's own profile falls within it.
• Every relevant ground. Race, nationality, imputed political opinion and any other ground are argued as the facts support, together with complementary protection.
• Cumulative harm. Denied documents, work, schooling and services are presented together, to show their combined effect on the applicant's capacity to subsist.
• Statelessness. Where the applicant has no nationality, the country of former habitual residence is identified and proved.
• Current country information. Claimed improvements in the country, including peace agreements, are tested against current and reliable sources.
• The applicant's own account. The statement is the applicant's own evidence, which they review and correct before it is lodged, and the applicant decides which claims are advanced.

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 more generally.

If you fear returning home because of your ethnicity or the minority group you belong to, book a consultation with My Migration Lawyers online, or call 1300 040 300.