Protection Visa Claims Based on Extortion and Kidnapping of Business Owners

Protection visa claims based on extortion and kidnapping of business owners arise when a person has been targeted because they own a shop, a factory, a transport company, a school or another business that makes them look like a source of money. The threats may come as demands for regular payments, a ransom for a kidnapped relative, or pressure to hand over the business itself.

Protection visa claims based on extortion and kidnapping of business owners 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). The facts are often frightening and genuine. But the law asks precise questions about why the person was targeted, whether the risk is personal, and whether anyone in the home country can protect them. This article explains those questions and how they are answered.

Can extortion or kidnapping of a business owner support a protection visa?

Yes. Extortion or kidnapping of a business owner can support a Subclass 866 protection visa where the owner faces a real risk of significant harm on return, or a well-founded fear of persecution for a Convention reason, and the authorities of the home country cannot provide effective protection.

The threshold is not met simply because a business was asked for money once, or because crime is common in the area. Protection visa claims based on extortion and kidnapping of business owners are strongest where the applicant can show:

• Who is making the demands. A named criminal gang, militia, insurgent group, political party, corrupt officials, or people acting with their support.
• What they have already done. Written or spoken demands, visits to the business, damage to property, beatings, the kidnapping of the owner or a relative, or a ransom that was paid.
• What they will do if the owner returns. Why the group would still be interested in the owner, and what the owner believes would happen.
• Why nobody will stop it. Because the police are paid by the group, do not respond, or cannot protect people from kidnapping.

The definitive guide to the Subclass 866 protection visa sets out the general criteria, and 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 extortion and kidnapping of business owners.

Why are business owners who are targeted for money usually not refugees?

Business owners who are targeted only because they have money are usually not refugees, because wealth is not one of the five Convention grounds. This is the point most often misunderstood, and many published explanations of these claims leave it out.

Section 5J(1)(a) of the Migration Act requires a fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Under section 5J(4)(a), that reason must be the essential and significant reason for the persecution. A gang that demands money from every profitable shop in a district is usually motivated by greed. The owner is chosen because they can pay, not because of who they are or what they believe.

The Department and the Administrative Review Tribunal generally do not accept that "wealthy people" or "business owners" form a particular social group for this purpose. Section 5L requires a shared characteristic that is innate or immutable, fundamental to identity or conscience, or that distinguishes the group from society. Having money is none of those things in most cases, and it can change. An applicant who presents protection visa claims based on extortion and kidnapping of business owners only as a refugee claim, on the basis that they are rich, is likely to fail on this point alone.

That does not end the claim. It means the case must either identify a real Convention reason where one exists, or be put under complementary protection, where no Convention reason is needed. Most well-prepared protection visa claims based on extortion and kidnapping of business owners argue both.

When is there a Convention reason in extortion and kidnapping claims?

There is a Convention reason where the owner is targeted, at least in essential and significant part, because of their political opinion, religion, race, ethnicity or nationality, rather than only because of their money. Protection visa claims based on extortion and kidnapping of business owners fall within the refugee test in three common situations.

Extortion by political parties, militias or insurgents

Some extortion is carried out by political parties, militias, insurgent groups or groups aligned with the state. They may demand "donations" to fund their activities. Where the group treats a refusal to pay as support for its opponents, the harm may be for reasons of an actual or imputed political opinion. In protection visa claims based on extortion and kidnapping of business owners, the question is how the group sees the owner, not only what the owner believes. Evidence that the group called the owner a traitor, linked them to an opposition party, or punished refusers as enemies is important.

Extortion aimed at a religious or ethnic minority

Some groups target businesses owned by members of a religious or ethnic minority because they see that community as a legitimate target. The minority owner may be charged more, attacked more readily, or pushed to hand over the business so that it passes to the majority community. In those protection visa claims based on extortion and kidnapping of business owners, religion or race may be the essential and significant reason, even though money is also involved. The page on religious persecution explains that ground in more detail.

Business owners of a particular race targeted as a group

In some countries, traders of a particular race or national origin are singled out as a class, because they are believed to be wealthy or foreign. Where the targeting is driven by race, the Convention ground can be engaged.

Mixed motives

Most protection visa claims based on extortion and kidnapping of business owners involve mixed motives. A group may want money and also want to punish a political opponent or a minority. Section 5J(4)(a) does not require the Convention reason to be the only reason. It must be the essential and significant reason, or one of the essential and significant reasons. The statement of claims should explain the evidence of each motive, rather than asserting that the targeting was political without showing why. The Subclass 866 protection visa page explains how the refugee test fits within the application.

Can family members of a targeted business owner be refugees?

Family members of a targeted business owner are usually not refugees through their family membership alone, where the owner was targeted for money. Section 5K of the Migration Act is the reason.

The family can be a particular social group. But section 5K requires the decision maker to disregard any fear of persecution, or any persecution, experienced by a family member where the reason for it is not a Convention reason. It also requires the decision maker to disregard fear or persecution that would not exist if that family member had not been persecuted. In practice, if the owner was targeted because of money, the spouse or children cannot rely on the family group to turn that into a refugee claim.

This matters in protection visa claims based on extortion and kidnapping of business owners because children are often kidnapped for ransom, and spouses are often threatened to put pressure on the owner. The harm to them is real. It is usually assessed under complementary protection instead. Where the owner was targeted for a Convention reason, such as political opinion or religion, the family's claim is stronger, because the original reason is itself a Convention reason.

In protection visa claims based on extortion and kidnapping of business owners, each adult family member can also have claims of their own. A spouse who was threatened directly, or a child who was taken, should give their own account. Families targeted by gangs or armed groups for reasons other than business ownership are dealt with in My Migration Lawyers' separate guidance on that topic.

How does complementary protection apply to protection visa claims based on extortion and kidnapping of business owners?

Complementary protection 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. For protection visa claims based on extortion and kidnapping of business owners, this is often the main framework, because no Convention reason is required.

Section 36(2A) sets out a closed list of significant harm: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The harm feared in these claims can fall within that list. A threat to kill an owner who refuses to pay may be a real risk of arbitrary deprivation of life. A kidnapping in which the victim is beaten, starved or threatened with death to pressure the family may amount to torture or cruel or inhuman treatment.

The definitions in section 5(1) of the Migration Act require that the pain or suffering for torture, and for cruel or inhuman treatment, is intentionally inflicted. The Department's Complementary Protection Guidelines, at 3.4.3.1, state that the person inflicting the harm must have an actual subjective intention, and that negligence is not enough. In protection visa claims based on extortion and kidnapping of business owners, that element is often clear. Kidnappers who harm a victim to force payment intend that harm. The more difficult questions are whether the risk is personal, whether the state can protect the applicant, and whether relocation is reasonable. The page on complementary protection explains the test, and the complete guide to the Subclass 866 protection visa explains how both tests are assessed in one application.

Is the risk personal or general crime?

The risk must be faced by the applicant personally, not only by the population generally. Section 36(2B)(c) provides that there is taken not to be a real risk of significant harm where the risk is one faced by the population of the country generally and not by the applicant personally.

This is where many protection visa claims based on extortion and kidnapping of business owners are decided. A decision maker may accept that kidnapping for ransom is common, and then find that the applicant faces the same risk as everyone else. That finding should be met with evidence, not argument alone.

The Complementary Protection Guidelines give two important directions. At 3.6.3, they state that a general statement that violence is rife is not enough to apply section 36(2B)(c). The decision maker must consider whether the applicant is personally at risk, and an applicant who belongs to a class of persons who would be targeted is personally at risk. At 3.4.1.2, they state that a high crime rate and poor police control, on their own, do not establish a real risk of arbitrary deprivation of life by a non-state actor.

Read together, those directions show what the evidence in protection visa claims based on extortion and kidnapping of business owners must do. It must move the claim from general crime to personal targeting. The strongest facts are:

• demands addressed to the owner by name;
• earlier payments, which show the group knows the owner will pay;
• a kidnapping, attack or threat already carried out against the owner or family;
• continuing interest after the owner left, such as visits to relatives or messages asking where the owner is; and
• evidence that the group punishes people who refuse or report.

Returnees from Australia perceived as wealthy

Some applicants fear that, after years in Australia, they will be seen as wealthy on return and become a target. Protection visa claims based on extortion and kidnapping of business owners that rest only on this profile are difficult. Decision makers often find that the risk to returnees is general, not personal. The claim is stronger where the applicant already has a history of being targeted, where the group knows the applicant has been abroad, or where country information shows that returnees are singled out as a class. Threats connected with private debts and loan sharks raise different issues, which are addressed in separate guidance.

Can the police protect a business owner from extortion or kidnapping?

The police may not be able to protect a business owner where they are corrupt, collude with the extortionists, or lack the capacity to prevent kidnapping. Whether they can is often the deciding issue in protection visa claims based on extortion and kidnapping of business owners.

For a refugee claim, section 5J(2) provides that there is no well-founded fear of persecution if effective protection measures are available. Section 5LA explains that the relevant state, or a party or organisation controlling the state or a substantial part of it, must be willing and able to offer protection. It is taken to be able to do so only if the person can access the protection, the protection is durable, and it consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

For complementary protection, 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 two tests are separate, and a finding under one cannot simply be adopted for the other. The guide to Form 866 explains where each part of the claim is set out in the application.

In protection visa claims based on extortion and kidnapping of business owners, the practical question is what happens when a business owner reports a demand. The Department's processing guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye. Evidence that police refused to record a complaint, told the group who had reported them, demanded a bribe, or share the proceeds of extortion goes directly to this issue. Where the extortion is carried out by a party or militia aligned with the state, the argument that the state will protect the owner is weak.

Can a business owner relocate within their country?

A business owner can be expected to relocate only where the risk would not follow them and moving would be practicable. For a refugee claim, the real chance of persecution must relate to all areas of the country under section 5J(1)(c). For complementary protection, section 36(2B)(a) asks whether it would be reasonable, in the sense of practicable, to relocate to an area where there would be no real risk. The Complementary Protection Guidelines, at 3.6.1, state that this test is different from the refugee test, and findings under one cannot be adopted for the other.

Protection visa claims based on extortion and kidnapping of business owners often have particular answers on relocation:

• The business and property are tied to one place. A factory, farm, shop or land cannot be moved. Relocation may mean giving up the person's livelihood, and the applicant should explain what that would mean in practice.
• The wealthy profile follows the person. A person known as a successful trader may be identified wherever they try to work again, particularly if they restart a business.
• The group has national reach. A political party, militia, insurgent group or organised crime network may operate across the country, or have contacts in the police and local government.
• Records can be traced. Business registration, tax records, property records and bank accounts may allow the group to find the owner.

The Department's processing guidelines direct officers to consider the motivation of a non-state agent and its ability to pursue the applicant when assessing relocation. In protection visa claims based on extortion and kidnapping of business owners, the evidence should address both.

Evidence for protection visa claims based on extortion and kidnapping of business owners

The evidence for protection visa claims based on extortion and kidnapping of business owners must show that the applicant was personally targeted, why, and why the state cannot protect them. Useful evidence may include:

• demand messages, letters, voice notes and call records, kept with their date and source;
• ransom records, including messages from kidnappers and evidence of how the ransom was raised and paid;
• bank transfers, withdrawals or loan records that match the dates of demands or payments;
• business registration, tax and property records showing the business and its location;
• police reports and the police response, or a clear explanation of why no report was made;
• medical records or photographs of injuries from an attack or kidnapping;
• written statements from employees, relatives or other business owners who witnessed the threats; and
• country information on extortion, kidnapping, police corruption and the group involved.

The applicant's own written account carries the claim. It should explain when the demands began, who made them, how much was demanded and paid, what happened when the applicant refused or could not pay, and why the applicant believes the group would still pursue them. Any Convention reason should be supported with the words and actions of the group, not only the applicant's belief. The guides to the protection visa statement of claims and protection visa evidence explain how that material is structured.

Consistency matters. Dates, amounts and names will be compared across the application, the interview and any documents. The pages on the protection visa interview and protection visa interview questions explain what to expect.

What if protection visa claims based on extortion and kidnapping of business owners 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, and it runs from the date the applicant is notified of the decision.

Refusals in protection visa claims based on extortion and kidnapping of business owners usually rest on one of four findings: that the targeting was for money and not for a Convention reason, that the risk is general crime rather than personal, that the police would protect the applicant, or that the applicant could safely relocate. Each finding can be tested at review with clearer evidence and argument, particularly on the complementary protection criteria. 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 what happens at the hearing.

How My Migration Lawyers acts in protection visa claims based on extortion and kidnapping of business owners

My Migration Lawyers acts in protection visa claims based on extortion and kidnapping of business owners for people and families already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the danger comes from criminal or armed groups and the case turns on personal risk, state protection and relocation. 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 protection visa claims based on extortion and kidnapping of business owners includes:

• Identifying the right framework. The firm assesses whether a genuine Convention reason exists, such as political opinion, religion or race, and argues complementary protection in every case where it applies.
• The client's own account. The account is taken in detail, with an interpreter where needed. It is the client's own evidence, which they review and correct before it is lodged, and the client decides which claims are advanced.
• Personal targeting. The firm presents the demand messages, payment records and events that show the risk is personal and not general crime.
• State protection. Current country information and the client's own experience of the police are used to address sections 5LA and 36(2B)(b).
• Relocation. The evidence addresses the reach of the group, the ties of the business to one place, and whether the client's profile would follow them.
• Family members. Each adult's position, including under section 5K, is assessed separately.

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 or your family were targeted for extortion or kidnapping because of your business and you fear returning home, book a consultation with My Migration Lawyers online, or call 1300 040 300.