Protection Visa Claims Based on Female Genital Mutilation

Protection visa claims based on female genital mutilation are made by women and girls who fear being cut, or cut again, if they are returned to their home country, and by parents who fear that their daughters will be cut. Female genital mutilation is practised in communities in parts of Africa, the Middle East and Asia. It is usually arranged by family members and carried out on girls, often before they are old enough to refuse.

Protection visa claims based on female genital mutilation are among the clearer gender-related protection claims in Australian law. The Department's own guidelines treat the practice as a serious form of harm. But the claims are still refused where the decision maker finds that the risk is not real for this applicant, that the law would protect her, or that she could live elsewhere. This article explains how the law treats these claims and how those findings are answered.

Can female genital mutilation support a protection visa?

Yes. Female genital mutilation can support a Subclass 866 protection visa where a woman or girl has a well-founded fear of persecution, or faces a real risk of significant harm, because she may be subjected to it on return, and effective protection is not available in her home country.

The harm itself is not in doubt. The Department's Complementary Protection Guidelines state that rape, female genital mutilation, forced abortion and forced sterilisation are very likely to breach the international prohibition on torture and cruel, inhuman or degrading treatment, and are therefore likely to constitute significant harm. The Department's processing guidelines give female genital mutilation as the example of a woman being persecuted in a gender-specific manner because of her gender.

What protection visa claims based on female genital mutilation must prove is the risk. The decision maker must be satisfied that there is a real chance, or a real risk, that this applicant will be cut if she returns. That depends on her community, her family, her age, whether she has already been cut, and whether anyone could stop it.

My Migration Lawyers' protection visa lawyers act in these claims. 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.

Who can make protection visa claims based on female genital mutilation?

Protection visa claims based on female genital mutilation can be made in several situations. Each needs different evidence.

• A woman or girl who has not been cut. She fears being cut on return, by her own family, her husband's family or her community.
• A woman who has already been cut. She may fear further procedures, such as re-infibulation after childbirth or a repeat procedure where the family considers the first inadequate. She may also fear harm connected with it, such as forced marriage.
• A mother whose daughter has not been cut. She fears that her daughter will be cut, and that she will be harmed or lose her daughter if she refuses.
• A girl born or raised outside her family's country. She may face strong pressure to be cut if the family returns, particularly where relatives regard her as having been kept from the practice.

A woman who has already been cut is often wrongly assumed to be outside protection. The question is never only what has already happened. It is what is likely to happen now. Where the applicant has daughters, their risk is central to the family's claim.

Common misunderstandings about protection visa claims based on female genital mutilation

Several misunderstandings lead to weak or refused protection visa claims based on female genital mutilation.

• "It is a cultural practice, not persecution." The fact that a practice is traditional does not stop it being serious harm. The Department's own guidelines treat female genital mutilation as very likely significant harm and as an example of gender-specific persecution.
• "An adult woman can simply refuse." In many communities, the decision is made by older relatives, a husband or in-laws, not by the woman. Refusal may lead to violence, being forced out of the home, or the procedure being carried out anyway.
• "Past cutting ends the risk." As explained above, the decision maker must look at the future risk, including further procedures and the risk to daughters.
• "The family lives abroad now, so the risk has gone." Families often return, and relatives at home may insist on the practice when they do. The account should explain who would be in control of the applicant or her daughters on return.

Protection visa claims based on female genital mutilation should answer each of these points directly, rather than leaving the decision maker to assume them.

Which Convention ground applies?

The Convention ground in protection visa claims based on female genital mutilation is usually membership of a particular social group. Religion and political opinion can also apply.

Section 5L of the Migration Act sets out when a person is a member of a particular social group other than a family. The group 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.

Groups argued in protection visa claims based on female genital mutilation include women or girls of a particular ethnic group or community who have not undergone the practice, and women who oppose the practice for themselves or their daughters. The Department's guidelines recognise that a woman may be persecuted in a gender-specific manner because of her gender, and that female genital mutilation is an example.

Religion may apply where the practice is presented as a religious requirement in the community. Political opinion, including imputed political opinion, may apply where a woman or mother openly opposes the practice and is seen as defying community authority.

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 may itself amount to persecution for a Convention reason.

How the risk is assessed in protection visa claims based on female genital mutilation

In protection visa claims based on female genital mutilation, the risk must be personal to the applicant. General country information that the practice is common is the starting point, not the end of the analysis.

The decision maker will usually consider:

• The community. How widely the practice is carried out in the applicant's ethnic group, region and family, rather than in the country as a whole.
• The family. Whether the applicant's mother, sisters, aunts or cousins were cut, and whether the family has said it intends to cut the applicant or her daughters.
• The decision makers in the family. Who has authority over the applicant or her daughters, such as a father, husband, grandmother or in-laws, and what their position is.
• Age and status. Whether the applicant or her daughters are at the age when the practice is usually carried out in the community, and whether marriage or childbirth could trigger it.
• Past pressure. Whether the family has already tried to arrange it, and what happened.

Protection visa claims based on female genital mutilation are strongest where the family's intention is shown by its own words and conduct. A statement that the applicant's grandmother has said the daughters will be cut when they return is more persuasive than a statement that the practice is common in the region.

Country information remains important, but it must be specific. The most useful information describes the practice in the applicant's own ethnic group and region, the age at which it is usually carried out, who performs it, and whether families who refuse face consequences. National figures for a whole country can hide large differences between communities. Where the applicant's community practises it widely, that should be shown. Where the practice is declining in the country generally, the evidence should explain why the applicant's family has not followed that trend. The guide to protection visa evidence explains how country information is used.

Can the Department say the mother should simply refuse?

A decision maker may reason that a mother could protect her daughter simply by refusing to allow the procedure. Protection visa claims based on female genital mutilation should answer that reasoning with evidence, not assumption.

Refusal is not a matter of the mother's choice alone where others hold authority over the child. In many communities, the father, the paternal grandmother or the wider family decides. A mother who refuses may be overruled, may have the child taken while she is absent, or may lose custody. Her refusal may also expose her to violence.

Section 5J(3) of the Migration Act, which deals with modifying behaviour to avoid persecution, does not fit this situation comfortably. The harm is not caused by the applicant's own conduct. It is imposed by others. Where the decision maker relies on the mother's ability to refuse, the question is whether refusal would in fact protect the daughter, and at what cost to the mother. The account should explain what happened when the mother or others in the family refused in the past.

Is state protection available?

State protection is often raised in protection visa claims based on female genital mutilation, because many countries have now criminalised the practice. A law on paper does not answer the claim.

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. Section 5LA requires, in broad terms, that the state be willing and able to offer protection that is accessible and durable, including 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 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.

Protection visa claims based on female genital mutilation should address:

• whether the law is enforced, and whether anyone has been prosecuted in the applicant's region or community;
• whether the practice is carried out privately in the home by relatives or traditional practitioners, out of sight of the authorities;
• whether police would intervene in a family decision about a child;
• whether a mother could report her own family or her husband's family without serious consequences; and
• whether the girl could be taken to another area or across a border to be cut.

Could the family relocate?

Relocation is the other issue that decides many protection visa claims based on female genital mutilation. 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. A mother who would have to leave her husband and extended family to protect her daughter, and live alone with her children in an unfamiliar city without income or support, may have no practical way to relocate.

The evidence should address the family's reach, whether the ethnic community is present in the proposed area, whether the woman could live and work alone, and whether the father or paternal family has legal rights over the children.

Complementary protection and female genital mutilation

Complementary protection is especially important in protection visa claims based on female genital mutilation. The Complementary Protection Guidelines state that female genital mutilation is very likely to constitute significant harm. Section 36(2A) lists torture and cruel or inhuman treatment or punishment as forms of significant harm, and the practice is capable of falling within them.

The same guidelines direct decision makers to consider first whether the harm is for a Convention reason. Protection visa claims based on female genital mutilation should therefore argue the refugee test and complementary protection together, so that a finding against a Convention reason does not end the claim. The page on complementary protection explains the test. The Subclass 866 protection visa page explains how family members are included in one application.

Daughters and mothers in protection visa claims based on female genital mutilation

Daughters and mothers often have connected but separate claims. Protection visa claims based on female genital mutilation should set out each person's position.

A daughter's claim is based on the risk that she will be cut. A daughter may be included in her parent's application as a member of the family unit, but her own risk should be addressed specifically, including her age, the family's intentions and who has authority over her.

A mother's claim may be based on her own risk, if she has not been cut or faces further procedures. It may also be based on the harm she would face for refusing to allow her daughter to be cut. That harm may include violence from her husband or in-laws, being forced out of the family, loss of custody of her children, or other serious consequences. The account should explain what the family has said or done when she has refused, and what she expects would happen on return.

Where a girl was born in Australia, her position depends on her nationality. A child born in Australia is not automatically an Australian citizen. Advice should be obtained on the child's citizenship and on whether she needs to be included in, or make, a protection application.

Evidence for protection visa claims based on female genital mutilation

The central evidence in protection visa claims based on female genital mutilation is the applicant's own detailed account, and the account of each adult family member where relevant. It should explain the family's practice, what has been said about the applicant or her daughters, who has said it, and what has happened when the applicant has refused.

Supporting evidence may include:

• messages from relatives about the practice or about the applicant's refusal;
• statements from relatives or community members who know of the family's intentions;
• a medical report, where the applicant chooses to obtain one, about whether and how she has been cut, and any health consequences;
• a psychological report about the effect of past experience or present fear; and
• country information about the practice in the applicant's ethnic group and region, including how it is carried out and whether the law is enforced.

Any medical examination is the applicant's choice. No woman or girl should be pressured into an examination to support a claim. The guides to the protection visa statement of claims and protection visa evidence explain how evidence is presented.

The interview

The Department's guidelines state that where gender-related claims are raised, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant. An applicant may also ask for arrangements that allow sensitive matters to be discussed without other family members present. The pages on the protection visa interview and interview questions explain what to expect.

Pressure in Australia

Female genital mutilation is a crime in every Australian state and territory, including in some jurisdictions taking a child out of the state for it to be performed. Where relatives in Australia are pressuring a family to have a girl cut, or planning to take her overseas, police should be contacted. Evidence of that pressure may also support the protection claim.

Claims that arise after arriving in Australia

Some protection visa claims based on female genital mutilation arise after the family arrives in Australia. A daughter may be born here, reach the age at which girls in the community are cut, or the family at home may begin to insist that she be brought back.

A delay in applying does not end the claim, but the reason should be explained. The account should say when the risk arose, what changed, and when the family learned of it. The guide to delayed Subclass 866 applications explains how delay is assessed, and the guide to Form 866 explains how each family member is recorded in the application.

What if protection visa claims based on female genital mutilation 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 female genital mutilation usually rest on findings that the applicant's family does not practise it, that she has already been cut and faces no further risk, that the law would protect her, or that she could relocate. Each finding can be tested at review with more specific evidence about the family, the community and the practice. 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 female genital mutilation

My Migration Lawyers acts in protection visa claims based on female genital mutilation for women, girls and families already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims involving gender-based harm, including claims where a mother is trying to protect her daughter. 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:

• Each person's claim. The claims of the mother and each daughter are identified separately, so that no risk is overlooked.
• The applicant's account. Each adult's account is taken in private, with a female interpreter where possible. It is the applicant's own evidence, which she reviews and corrects before it is lodged, and she decides which claims are advanced.
• The risk to this family. Evidence is gathered about the family's own practice and intentions, not only about the country.
• State protection and relocation. Country information is used to show whether the law is enforced and whether a woman could protect her daughter elsewhere.
• 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 that you or your daughter will be cut if you return, book a consultation with My Migration Lawyers online, or call 1300 040 300.