Protection Visa Claims Based on Family Violence

Protection visa claims based on family violence are made by people who fear serious violence from a partner, a former partner or relatives if they are returned to their home country. The violence may have happened before they left, may have continued by threats since, or may be a risk that arises because they have separated, divorced or refused the family's control.

Protection visa claims based on family violence are one of the most common types of gender-related protection claim. They are also among the most frequently refused, usually because the decision maker treats the harm as a private dispute, finds that police would protect the applicant, or finds that the applicant could live safely elsewhere. This article explains how the law actually treats these claims, and how each of those findings can be answered.

Can family violence support a protection visa?

Yes. Family violence can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution, or faces a real risk of significant harm, from a partner or relatives if returned, and effective protection is not available in their home country.

The violence must be serious. Protection visa claims based on family violence usually involve physical assault, sexual violence, threats to kill, confinement, or control so severe that it threatens the person's safety or ability to survive. The Department's processing guidelines list family violence among the forms of gender-related harm that officers must approach with sensitivity, alongside sexual violence, forced marriage, honour crimes and female genital mutilation.

Protection visa claims based on family violence can be made by women, men and children. Most applicants are women, and the Department's guidelines focus on the obstacles women face. But the legal tests apply to anyone. A man who faces serious violence from his wife's family, or a child who faces violence from a parent, can also make a claim.

Who can be the perpetrator in protection visa claims based on family violence?

In protection visa claims based on family violence, the perpetrator can be any member of the applicant's family or household. The claim is not limited to violence by a husband or wife.

Common perpetrators include:

• a current or former spouse or de facto partner;
• a parent, step-parent or sibling;
• in-laws, particularly where the applicant lived in the partner's family home;
• extended family or clan members who act to enforce the family's decisions; and
• a new partner of a former spouse, or others acting on the perpetrator's behalf.

The identity of the perpetrator matters for state protection and relocation. A violent partner acting alone may be easier to escape than an extended family with influence in the community, or a perpetrator with connections to the police. Protection visa claims based on family violence should explain who the perpetrator is, what power and reach they have, and why that makes protection or relocation unrealistic.

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.

Family violence protection visa claims are not partner visa family violence claims

Protection visa claims based on family violence are entirely separate from the family violence provisions for partner visas. The two are often confused, and the confusion can lead people to pursue the wrong application.

The partner visa provisions apply where a person applied for a partner visa on the basis of a relationship with an Australian sponsor, the relationship has ended, and the applicant or a family member has experienced family violence committed by the sponsor. Those provisions allow the partner visa to continue despite the end of the relationship. They are explained on My Migration Lawyers' page on family violence and partner visas.

A protection visa claim does not depend on any Australian relationship. It depends on what the applicant fears in their home country. The question is not whether violence happened in Australia, but whether the applicant faces serious harm if returned.

Some people have both options. A person who has experienced violence from an Australian sponsor, and who also fears violence from that sponsor's or their own family overseas, may need advice on both pathways. The order in which they are pursued can matter.

How the Department frames protection visa claims based on family violence

The Department usually treats family violence as the harm feared, not as the defining feature of the particular social group. That distinction shapes how protection visa claims based on family violence should be argued.

Under section 5J(1)(a) of the Migration Act, persecution must be for reasons of race, religion, nationality, membership of a particular social group or political opinion. Family violence is often committed for personal reasons, and a decision maker may conclude that it is not for any Convention reason. The answer lies in how the group is identified.

The Department's guidelines give an example. Where an applicant has separated from the perpetrator, the family violence would generally be expressed as a form of harm rather than a component of a particular social group. The group could be characterised as "separated women in country X", who fear persecution in the form of domestic violence or other harm because they are separated in that society. The guidelines state that in these cases it is not necessary to decide whether the person has experienced family violence in order to decide whether the group exists.

Under section 5L, a particular social group other than a family must share a characteristic that is innate or immutable, or so fundamental to identity or conscience that a member should not be forced to renounce it, or that distinguishes the group from society. The characteristic cannot be the fear of persecution itself. That is why a group defined simply as "women who suffer domestic violence" is weak, while a group defined by status, such as separated, divorced or widowed women, is usually stronger.

The guidelines also state that if a woman faces harm for any reason, but the state refuses to protect her because of her gender, that failure may itself amount to persecution for a Convention reason.

What harm counts in protection visa claims based on family violence?

In protection visa claims based on family violence, the harm must amount to serious harm for a refugee claim, or significant harm for complementary protection.

Section 5J(5) of the Migration Act gives examples of serious harm, including a threat to life or liberty, significant physical harassment, significant physical ill-treatment, and significant economic hardship or denial of livelihood that threatens the person's capacity to subsist. Under section 5J(4), persecution must also involve systematic and discriminatory conduct. The Department's guidelines add that serious harm can include serious mental harm, and that multiple harmful acts can cumulatively amount to serious harm.

The harm raised in protection visa claims based on family violence commonly includes:

• repeated physical assaults;
• rape and other sexual violence within the relationship;
• threats to kill the applicant or their children;
• confinement, removal of documents or money, and cutting off contact with others;
• removal of children, or threats to remove them;
• retaliation for leaving, reporting the violence or seeking a divorce; and
• being left without housing, income or family support after separation.

In protection visa claims based on family violence, past harm is important evidence, but it is not the test. The guidelines state that even if claimed past incidents are not accepted, the officer must still address the real chance of persecution in the reasonably foreseeable future. Protection visa claims based on family violence must therefore explain what is likely to happen if the applicant returns now, not only what happened before.

Children in protection visa claims based on family violence

Children are often at the centre of protection visa claims based on family violence. A child may face violence directly, may be at risk of being taken by the perpetrator or the perpetrator's family, or may be used to force the applicant back into the relationship.

Each child's position should be considered separately. A child may be included in the parent's application as a member of the family unit, but the child may also have claims of their own. Custody laws in some countries give fathers or paternal families strong rights over children after separation. Where returning would mean losing the children, or exposing them to violence, that risk should be set out with the country information that supports it.

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

Is state protection available?

State protection is the issue on which most protection visa claims based on family violence are decided. The harm usually comes from a private person, so the claim depends on showing that the state will not or cannot protect the applicant from that person.

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.

The Department's guidelines state that the adequacy of state protection, and whether the state is reluctant to be involved or turns a blind eye to the harm, are among the key considerations in family violence claims. That is the point to press. Many countries have domestic violence laws. The question is what happens when a woman in the applicant's position goes to the police.

The evidence should address:

• whether the applicant reported the violence, and what the police did;
• if the applicant did not report it, why not;
• whether protection orders were obtained, and whether they were enforced;
• whether the perpetrator or their family has influence with police, local officials or community leaders; and
• country information on how police and courts respond to family violence in practice.

For complementary protection, 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 mere existence of protective measures shows only that they are available. It does not show that the person could obtain protection. The guidelines also state that findings under the refugee test cannot simply be adopted for complementary protection.

Could the applicant relocate within their home country?

Relocation is the second issue on which protection visa claims based on family violence are often refused. The decision maker may find that the applicant could move to another city, away from the perpetrator.

For a refugee claim, section 5J(1)(c) requires the real chance of persecution to 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.

The Department's guidelines recognise that legal or socio-economic reasons, or child-care responsibilities, may prevent women from travelling freely or living on their own without family members, limiting their ability to relocate. Officers are directed to consider gender-related issues carefully when applying this test.

Protection visa claims based on family violence should address relocation directly:

• whether the perpetrator or their family has the means and determination to find the applicant;
• whether the applicant could find housing and work alone, without family support;
• whether the applicant would have to register their address, which the perpetrator could discover;
• whether the applicant has children, and how custody and schooling would be managed; and
• whether a separated or single woman can live safely alone in the proposed area.

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. This is often the fallback that protection visa claims based on family violence need, because a decision maker may find that the violence is personal and not for a Convention reason.

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. The Complementary Protection Guidelines state that rape, or the threat of rape, is very likely to breach the relevant prohibitions and therefore likely to constitute significant harm. Serious and repeated assaults, and a real risk of being killed, can also fall within the list. The page on complementary protection explains the test.

Evidence for protection visa claims based on family violence

The central evidence in protection visa claims based on family violence is the applicant's own detailed account. The Department's guidelines recognise that women may find it very difficult to disclose sexual violence, may fear reprisals from family for disclosing it, and may downplay or deny experiences they have already mentioned.

Supporting evidence may include:

• medical records, hospital records or photographs of injuries;
• police reports, protection orders and court documents, and evidence of whether they were enforced;
• threatening messages, voice notes or social media posts from the perpetrator or relatives, preserved with their date and source;
• statements from relatives, neighbours or friends who saw the violence or its effects;
• reports from a psychologist or doctor in Australia; and
• country information about police and court responses to family violence.

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

When the perpetrator is also in Australia

Some applicants are in Australia with the partner who harmed them, and may even be included in that partner's protection application. The applicant's own claims should not be left out because of that. An applicant can put forward claims of their own, and in some cases should lodge a separate application. The guide to Form 866 explains how applicants and their claims are recorded. Where there is immediate danger in Australia, the police should be contacted first.

Separate interviews and the gender of the officer

The Department's guidelines state that where gender-related claims have been included, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant. They also state that a request for a joint family interview can be refused where separate interviews are necessary, for example where a woman has raised sensitive claims of domestic or family violence. An applicant can ask for these arrangements. The pages on the protection visa interview and interview questions explain what to expect.

Tribunal decisions involving protection visa claims based on family violence

Published tribunal decisions show that protection visa claims based on family violence are often won or lost on state protection. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 2321242 (Refugee) [2024] AATA 4448. An applicant from Fiji facing continuing domestic abuse despite court protection, where threats continued after she left.
• 2004711 (Refugee) [2023] AATA 4520. An applicant from Fiji with domestic abuse, psychiatric vulnerability and limited effective police protection.
• 2015228 (REFUGEE) [2025] ARTA 1491. A mother and children from Vietnam escaping sustained family violence, where police and divorce processes had not been effective.
• 1720879 (Refugee) [2023] AATA 2157. An applicant from the Philippines facing repeated violence by her father, where protection and relocation were assessed.

Each decision turned on its own facts. What they show is that a protection order or a domestic violence law does not end the inquiry. The question is whether protection works in practice for the applicant. My Migration Lawyers' article on domestic violence and protection visas for Indonesians applies these principles to one country in detail.

What if protection visa claims based on family violence 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 family violence usually rest on findings that the violence was a private matter without a Convention reason, that police would protect the applicant, or that relocation was reasonable. Each finding can be tested at review, particularly with better country information and a clearer framing of the particular social group. The Tribunal considers the matter afresh and can take new evidence into account. In protection visa claims based on family violence, that often includes a fuller account of incidents the applicant was not able to describe at first, a report from a treating psychologist, statements from relatives who witnessed the violence, and country information that addresses the specific reasons the Department gave for finding that police would help. A late disclosure of sexual violence is not, by itself, a reason to reject the account, but the reason for the delay should be explained. 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 family violence

My Migration Lawyers acts in protection visa claims based on family violence for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims of this exact type, including claims where the applicant has separated from a violent partner and fears retaliation from the partner or both families. 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:

• Checking every pathway. Where there is an Australian sponsor relationship, the firm considers the partner visa family violence provisions as well as a protection visa.
• The applicant's account. The account is taken carefully, in private, with an interpreter of the applicant's preferred gender where possible. It is the applicant's own evidence, which they review and correct before it is lodged, and the applicant decides which claims are advanced.
• The particular social group. The group is framed around the applicant's status, as the Department's guidelines contemplate, rather than around the violence alone.
• State protection and relocation. Country information is used to show what happens in practice when a person in the applicant's position seeks help or tries to live alone.
• Complementary protection. The claim is argued under both frameworks from the start.

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 fear violence from a partner or family if you return home, book a consultation with My Migration Lawyers online, or call 1300 040 300.