Protection Visa Claims by Families Targeted by Gangs or Armed Groups

Protection visa claims by families targeted by gangs or armed groups are made by families who fear that a criminal gang, militia, insurgent group or other armed organisation will kill or seriously harm them if they return home. The family may have refused to pay extortion, refused to let a son join the group, reported the group to police, resisted the seizure of land, or become the target of revenge after a relative crossed the group.

Protection visa claims by families targeted by gangs or armed groups raise some of the most technical questions in protection law. The answer to whether the refugee test can be met depends on exactly why the group is targeting the family. If the reason is money, the claim will usually rely on complementary protection. If the reason is political, ethnic or religious, a refugee claim may be available to the whole family. This article explains how to tell the difference, and what each type of claim must prove.

Can a family targeted by a gang or armed group get a protection visa?

Yes. A family targeted by a gang or armed group can be granted Subclass 866 protection visas where its members face a real risk of significant harm, or have a well-founded fear of persecution for a Convention reason, and effective protection and safe relocation are not available.

Protection visa claims by families targeted by gangs or armed groups usually involve more than one person. A parent may be the primary applicant, with a partner and children included as members of the family unit. Each person's position should still be considered separately, because the group may be targeting one member in particular, such as a son it wants to recruit or a parent who reported it.

Protection visa claims by families targeted by gangs or armed groups commonly arise where:

• the family has refused to pay extortion demands, or can no longer pay;
• a family member has refused to join the group, or has deserted it;
• a family member has reported the group to police or given evidence against it;
• the family has resisted the group taking its land, business or property;
• a relative has been killed by the group and the family has sought justice; or
• the family is associated, or seen to be associated, with a rival group, a political party or the government.

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. The Subclass 866 protection visa page explains how family members are included in one application.

Gangs and armed groups are not treated the same way

In protection visa claims by families targeted by gangs or armed groups, the nature of the group shapes the whole claim.

A criminal gang is usually motivated by money and control of territory. It extorts businesses, recruits young men, punishes informants and retaliates against those who resist. Its reasons for targeting a family are usually criminal. That makes a Convention reason difficult to establish, and complementary protection is usually the main framework.

An armed group with political, ethnic or religious aims, such as a militia, insurgent group or separatist force, may target a family because of the family's actual or perceived political allegiance, ethnicity or religion. Refusing to support such a group, or to let a son join it, may be treated by the group as political opposition. In those cases, a Convention reason may be available.

Some groups have both characteristics. A militia may also run extortion. A gang may be aligned with a political faction. The account should describe what the group is, what it wants, how it operates in the family's area, and what it has said about the family. The decision maker needs that detail to decide which framework applies.

How section 5K applies to protection visa claims by families targeted by gangs or armed groups

Section 5K of the Migration Act deals with claims based on membership of a particular social group consisting of the applicant's family. It is often misunderstood in protection visa claims by families targeted by gangs or armed groups, and the misunderstanding cuts both ways.

Section 5K requires the decision maker to disregard any persecution of another family member where the reason for it is not a Convention reason. It also requires the decision maker to disregard the applicant's own fear where it would not exist but for that non-Convention persecution.

The key word is "not". Section 5K only removes persecution of relatives that is for a non-Convention reason. It does not remove persecution of relatives that is for a Convention reason.

That produces two very different results:

• A gang targets the family because the father refused to pay extortion. The father's persecution is for a financial reason, not a Convention reason. Section 5K disregards it, and the rest of the family's fear flowing from it. A family-based refugee claim will usually fail.
• An armed group targets the family because the father refused to support its political cause, and the group treats him as an opponent. The father's persecution may be for the Convention reason of political opinion, actual or imputed. Section 5K does not disregard it. The rest of the family may be able to claim as members of the particular social group of his family.

Protection visa claims by families targeted by gangs or armed groups should therefore identify, with evidence, the real reason the group targeted the first family member. Everything else follows from that.

When a Convention reason may be present

A Convention reason may be present in protection visa claims by families targeted by gangs or armed groups in several situations. Section 5J(1)(a) lists the five grounds, and under section 5J(4)(a) one of them must be the essential and significant reason for the persecution.

• Imputed political opinion. An armed group may treat a refusal to join, support or pay it as opposition. The Convention protects opinions imputed to a person, not only those they actually hold.
• Actual political opinion or activity. A family member may have spoken against the group, supported a party the group opposes, or worked for the government.
• Race, ethnicity or religion. An armed group may target families of a particular ethnic group or faith, or treat them as supporters of an enemy.
• Family of a person persecuted for a Convention reason. Where the first family member was targeted for a Convention reason, other members may claim as members of that family under section 5K.

Where the group is a purely criminal gang acting for money, these grounds will not usually apply, and the claim should be put under complementary protection without forcing a Convention reason onto it.

Forced recruitment of a family member

Many protection visa claims by families targeted by gangs or armed groups begin with an attempt to recruit a son or brother. The family refuses, sends him away, or hides him, and the group then turns on the family.

Where the recruitment of the applicant himself is the core of the claim, it raises separate questions about conscription, desertion and the treatment of those who refuse, which My Migration Lawyers deals with in separate guidance. In a family claim, the recruitment matters because it explains why the group turned on the family, and because it may show that the group treats the family as opponents. The account should explain what the group demanded, what the family did, and how the group responded.

Complementary protection for families targeted by gangs or armed groups

Complementary protection is the main framework for many protection visa claims by families targeted by gangs or armed groups, particularly claims against criminal gangs. 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 that a gang or armed group will kill a family member is a real risk of arbitrary deprivation of life. Serious assaults, maiming, abduction and sexual violence may amount to torture or cruel or inhuman treatment. The Complementary Protection Guidelines state that rape, or the threat of rape, is very likely to constitute significant harm. Complementary protection does not require a Convention reason. In protection visa claims by families targeted by gangs or armed groups, complementary protection must also be assessed for each family member. A son the group wants to recruit, a daughter at risk of abduction and a parent the group blames for a report to police may each face a different kind of significant harm, and each should be identified.

Three exceptions in section 36(2B) then apply. There is taken not to be a real risk where relocation would be reasonable, where protection from an authority would remove the real risk, or where the risk is faced by the population generally and not by the applicant personally. The Complementary Protection Guidelines state that these are assessed as part of the real risk test. The page on complementary protection explains the test.

Personal risk: the section 36(2B)(c) problem

Section 36(2B)(c) is the main obstacle in protection visa claims by families targeted by gangs or armed groups. It provides that there is taken not to be a real risk of significant harm where the risk is faced by the population of the country generally and not by the applicant personally.

Where a gang controls a neighbourhood and extorts everyone in it, or an armed group attacks a whole region, a decision maker may find that the family faces the same danger as everyone else. The Complementary Protection Guidelines state that the provision should be interpreted as meaning the particular individual must face a real risk in light of their specific circumstances.

Protection visa claims by families targeted by gangs or armed groups must therefore show that the family has been singled out. Evidence that helps includes:

• threats naming the family or a family member;
• a specific act that made the family a target, such as a refusal, a report to police or a confrontation;
• attacks on the family's home, business or relatives that were not part of general violence; and
• evidence that the group has pursued the family after it moved or after members left the country.

General country information about gang violence establishes the background. It does not, by itself, establish personal risk.

Timing and delay in protection visa claims by families targeted by gangs or armed groups

Timing is often examined in protection visa claims by families targeted by gangs or armed groups. Families frequently leave in stages. One parent may come first, with others following later, or the family may first try to move within the country before leaving. A delay in applying after arrival will also be examined.

The account should explain the sequence of events: when the threats began, what the family did at each stage, why they left when they did, and why they applied when they did. A family that moved within the country and was found again has both an explanation for the timing and evidence against relocation. The guide to delayed Subclass 866 applications explains how delay is assessed, and the guide to Form 866 explains how each family member and their claims are recorded.

Is state protection available?

State protection is often decisive in protection visa claims by families targeted by gangs or armed groups. Section 36(2B)(b) asks whether the family could obtain protection from an authority such that there would not be a real risk of significant harm. For a refugee claim, section 5J(2) and section 5LA ask whether effective protection measures are available.

The Complementary Protection Guidelines state that an authority can be the state, or a non-state authority such as a rebel or military force with effective control of the country. They also state that the existence of an appropriate criminal law and a reasonably effective and impartial judicial system shows only that protection is available, not that the applicant could obtain it.

The evidence should address:

• whether the family reported the threats, and what police did;
• whether police in the area are infiltrated by, afraid of, or allied with the group;
• whether witnesses and informants are protected, or exposed;
• whether the group controls the area so that state authorities cannot operate there; and
• country information about the state's capacity to protect people targeted by the group.

Could the family relocate?

Relocation is the other issue that decides protection visa claims by families targeted by gangs or armed groups. For complementary protection, section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable. For a refugee claim, section 5J(1)(c) requires the real chance of persecution to relate to all areas of the country.

Relocating a whole family is harder than relocating one person. The evidence should address whether the group has a presence in other parts of the country, whether it has found people who moved, whether the family could find housing, work and schooling elsewhere, and whether the family's documents or registration would reveal where they had gone. The Complementary Protection Guidelines state that the interests of children may be relevant to whether relocation is reasonable, and that simply listing relocation factors is not enough without assessing their impact. In protection visa claims by families targeted by gangs or armed groups, the practical questions are concrete. Could the children enrol in school without records being transferred? Could the parents work without registering with local authorities? Would the family need to cut all contact with relatives who remain in the home area, and would the group use those relatives to find them? A family that has already tried to move once, and been found, has the strongest answer to a relocation finding.

Evidence for protection visa claims by families targeted by gangs or armed groups

The evidence in protection visa claims by families targeted by gangs or armed groups must establish who the group is, why it targeted the family, and that the threat is continuing and personal. Useful evidence includes:

• each adult's detailed account of the threats, demands and attacks, with dates;
• threatening messages, notes or call logs, preserved in their original form and translated;
• police reports, or an explanation of why the family did not report;
• death certificates, medical records and photographs relating to attacks on relatives;
• statements from neighbours, community leaders or relatives who know of the threats; and
• country information about the group, its methods, its reach and the state's response.

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. Where adult family members give accounts, they will be compared, so each should give their own honest account rather than a shared script.

Tribunal decisions involving protection visa claims by families targeted by gangs or armed groups

Published tribunal decisions show that protection visa claims by families targeted by gangs or armed groups can be remitted where the reason for the targeting and the personal risk are properly assessed. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 1712169 (Refugee) [2020] AATA 5545. An applicant from Kenya whose claims involved family killings and escape from forced involvement with the Sabaot Land Defence Force.
• 1929111 (Refugee) [2022] AATA 5061. An applicant from Kenya fearing Mungiki reprisals and perceived cooperation with the International Criminal Court, with serious psychiatric illness.
• 2305331 (Refugee) [2024] AATA 1196. A widowed school founder from Iraq with past Baath links, facing militia intimidation and extortion.
• 2016302 (Refugee) [2022] AATA 1263. An applicant from Chile fearing drug-cartel reprisals after cooperating with Australian police.

Each decision turned on its own facts. What they show is that the reason the group targets the applicant, whether money, perceived cooperation with authorities or political association, shapes the claim, and must be established with care.

What if protection visa claims by families targeted by gangs or armed groups 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 by families targeted by gangs or armed groups usually rest on findings that there is no Convention reason, that the risk is faced by the population generally, that police would protect the family, or that the family could relocate. The review should answer each finding with specific evidence about the family and the group. 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 by families targeted by gangs or armed groups

My Migration Lawyers acts in protection visa claims by families targeted by gangs or armed groups for families already in Australia. The firm deals with complex protection matters and acts in Subclass 866 claims of this exact type, where the outcome depends on why the group targeted the family, the effect of section 5K, and the personal risk each family member faces. 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:

• Identifying the real reason. The firm establishes why the group targeted the first family member, because that decides whether a refugee claim is available to the family.
• Each family member's account. Each adult's account is taken separately, with an interpreter where needed. It is their own evidence, which they review and correct before it is lodged, and each person decides which claims are advanced.
• Personal risk. Evidence is gathered to show that the family was singled out, answering section 36(2B)(c).
• State protection and relocation. Country information is used to show the group's reach and the state's capacity to protect the family.
• Both frameworks. The claim is argued under the refugee test where a Convention reason genuinely exists, and under complementary protection in every case.

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 gang or armed group has targeted your family and you cannot safely return, book a consultation with My Migration Lawyers online, or call 1300 040 300.