Protection Visa for International Students in Australia

Protection Visa for International Students in Australia: When the Claim Arises Here

A protection visa for international students in Australia is often based on something that happened after the student left home. A student may have been safe on departure and at real risk now. The situation in the home country may have changed, or the student's own beliefs, identity or activities may have changed while living in Australia. The law recognises both situations.

These claims are known as sur place claims, from the French for "on the spot". The Department's guidelines describe them as claims about events and actions that occur after departure, and state that they can arise in relation to refugee claims and complementary protection claims. An applicant may also rely on a combination of events before and after departure.

The legal test for a protection visa for international students in Australia is the same as for any applicant. The student must meet the refugee criterion in section 36(2)(a) of the Migration Act 1958 or the complementary protection criterion in section 36(2)(aa). What differs is how the officer approaches evidence of events in Australia, and in particular the rule in section 5J(6).

This article explains sur place claims for students. It does not repeat the general rules on whether students can apply, which are covered in our article on international students applying for a Subclass 866 Protection visa. For the visa itself, see our page on the Subclass 866 Protection visa.

What a Sur Place Claim Is

A sur place claim is a claim that the applicant would now face persecution or significant harm because of something that happened after they left their country. The claim is forward-looking. The question is not whether the student was at risk when they boarded the plane, but whether they are at risk if they return now.

The Department's guidelines give examples of what can create a sur place claim, including the applicant's activities outside their country of origin, and actions taken by the country of origin, by the Australian government or by third parties. That list shows that sur place claims fall into two broad groups.

The first group involves events the student did not cause. A new government may target a group to which the student belongs. A law may change. A family dispute may escalate. A persecutor may learn something about the student.

The second group involves the student's own conduct in Australia. A student may convert to a different religion, become politically active, or begin to live openly according to their sexual orientation or gender identity. These claims attract the rule in section 5J(6), which is explained below.

Both groups can support a protection visa for international students in Australia. They are assessed differently, so a claim should identify clearly which group each part of it belongs to.

Why Sur Place Claims Are Common Among Students

International students spend years away from home, often during a period of life when beliefs, relationships and identity develop. They live in a society with different legal protections, different freedoms and different communities. It is not surprising that a protection visa for international students in Australia frequently rests on sur place facts.

Students are also exposed in ways that other visitors are not. Their studies may involve research or public work on sensitive subjects. Their social media accounts may be visible to family, classmates and authorities at home. They may attend events or join organisations that are photographed or reported. In some countries, the fact of long residence in a Western country can itself attract suspicion. This exposure is a common feature of a protection visa for international students in Australia.

None of this means that a claim is weaker because it arose in Australia. The refugee definition in section 5H asks whether a person has a well-founded fear of persecution, and complementary protection asks whether there is a real risk of significant harm on removal. Both look at the present and the future. A claim for a protection visa for international students in Australia can therefore succeed on sur place facts alone, if those facts meet the legal test.

Section 5J(6) and a Protection Visa for International Students in Australia

Section 5J(6) of the Act is the most important provision for a protection visa for international students in Australia that relies on the student's own conduct. In determining whether a person has a well-founded fear of persecution, the officer must disregard any conduct the person engaged in while in Australia, unless the person satisfies the Minister that they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.

Four features of the rule matter.

First, the burden is on the applicant. The student must satisfy the Minister that the conduct was genuine, not the other way round.

Second, the rule concerns purpose. The guidelines describe section 5J(6) as dealing with actions taken in bad faith for the purpose of creating or enhancing claims. Conduct engaged in for genuine reasons of belief, identity or conscience is not caught, even if it also happens to support a claim.

Third, the guidelines state that conduct that is disregarded for the refugee test may still be taken into account when assessing the applicant's credibility.

Fourth, the guidelines state that section 5J(6) is not relevant to complementary protection. The reaction in the home country to activities the applicant undertakes in Australia, for any reason, cannot be disregarded in the complementary protection assessment. The guidelines also state that a person whose conduct has been disregarded under section 5J(6), and who is not granted a protection visa on that basis, may nevertheless engage non-refoulement obligations and should not be removed until all of the consequences of their conduct have been assessed. Our page on complementary protection explains the second test.

Protection Visa for International Students in Australia Based on Changes at Home

The simplest sur place claims for a protection visa for international students in Australia involve events at home that the student did not cause. Section 5J(6) does not apply to these events, because they are not conduct engaged in by the student in Australia.

Examples include:

• a change of government, or the rise of an armed group, that targets people of the student's ethnicity, religion or political background;
• a new law that criminalises the student's religion, political affiliation, sexual orientation or gender identity, or that increases penalties;
• a family member being arrested, harmed or threatened because of their activities, in circumstances that put the student at risk as well;
• a dispute with a powerful person or group that escalated after the student left; and
• the persecutor learning, after the student's departure, of a characteristic the student had concealed.

The key evidence in these claims for a protection visa for international students in Australia is country information and evidence of how the change affects the student personally. A general deterioration in conditions is not enough on its own. Under section 36(2B)(c), for complementary protection, there is taken to be no real risk if the risk is faced by the population of the country generally and not by the student personally. For the refugee test, the persecution must be for one of the five reasons. A claim for a protection visa for international students in Australia based on changes at home should therefore explain why the change places the student personally at risk. Our guide to evidence in a protection visa application explains the types of corroboration that help.

Religious Conversion or Leaving a Faith in Australia

Conversion to a different religion, or leaving a religion, while studying in Australia is one of the most common sur place claims made in an application for a protection visa for international students in Australia. In countries where apostasy or conversion is punished by the state, by the community or by the family, the risk on return can be severe.

Because conversion is conduct in Australia, section 5J(6) applies to the refugee assessment. The officer must be satisfied that the conversion was genuine and not undertaken to strengthen the claim. The officer will examine when and how the student came to the new faith, what the faith means to them, how they practise it, whether they attend a place of worship regularly, and whether their family or community at home know.

Evidence of genuine practice over time carries weight. A letter from a religious leader who knows the student, describing specific involvement over a period, is more useful than a certificate alone. The timing of conversion relative to other events, such as a visa refusal, will be examined. Our page on religious persecution explains how these claims are assessed.

Political Activity in Australia

Students sometimes become politically active in Australia. They may attend protests, join diaspora organisations, publish commentary, or post on social media about the government of their home country. A protection visa for international students in Australia can be based on the risk that this activity creates on return.

Section 5J(6) applies to the refugee assessment, so the student must show that the activity was genuine. The officer will ask how long the student has held the views, whether they were politically engaged before leaving, what exactly they did in Australia, and who at home knows about it. The guidelines state that officers may research relevant political organisations in Australia, and may contact them to make general enquiries, without disclosing applicants' names.

The most difficult question in these claims is whether the authorities at home know, or are likely to find out. Evidence that the home government monitors its nationals abroad, that similar activity has led to harm on return, or that the student has already been identified, is central. For complementary protection, the guidelines state that the reaction at home to the activity must be considered whatever the student's reasons for it.

Sexual Orientation or Gender Identity Recognised in Australia

Claims for a protection visa for international students in Australia often involve identity. Many students come to understand or express their sexual orientation or gender identity while living in Australia. The guidelines address this directly. They state that LGBTIQ+ sur place claims may arise because of changes relating to the applicant's identity after departure, because the agent of harm has discovered the applicant's identity after departure, or because of changes to the law or social attitudes since departure.

The guidelines also recognise that applicants may not have identified as LGBTIQ+ before leaving, or may have chosen not to express their identity at home. Claims may arise where the applicant engages in activism, uses social media, or is exposed by someone else. Officers must have regard to sur place conduct in Australia unless they are not satisfied that it was engaged in for a purpose other than strengthening the claim, consistent with section 5J(6).

Section 5J(3) is also relevant. A person is not expected to modify their behaviour to avoid persecution if the modification would conceal an innate or immutable characteristic, or alter or conceal their sexual orientation or gender identity. A protection visa for international students in Australia based on identity cannot be refused on the basis that the student could simply hide who they are. Our page on the LGBTI protection visa and our article on LGBTI protection visas in Australia explain these claims in detail.

Relationships and Family Circumstances That Change Abroad

Some sur place claims arise from relationships formed in Australia, or from changes in family circumstances. A student may enter a relationship that their family or community considers unacceptable, refuse a marriage arranged at home, have a child outside marriage, or separate from a spouse. In some countries, these circumstances can expose a person, particularly a woman, to serious harm from family members or the community.

A protection visa for international students in Australia based on family circumstances often depends on membership of a particular social group and on whether the state will protect the student. The guidelines explain that, where family violence is feared after separation, the particular social group may be characterised by reference to the separated status, and that the adequacy of state protection and whether the state turns a blind eye are key considerations. Relocation is also examined. The guidelines recognise that legal or socio-economic reasons and child-care responsibilities may prevent some women from living on their own, which can make relocation unreasonable.

How Officers Test Sur Place Claims

Officers approach a protection visa for international students in Australia based on sur place facts with particular care about timing and purpose. The guidelines list sources that officers may use to determine whether conduct in Australia was undertaken in bad faith, including their own enquiries, material provided in earlier tribunal reviews and reports on the Department's country information database.

Expect questions such as:

• When did this belief, identity or activity begin, and what prompted it?
• What did you do in relation to it before you came to Australia?
• Why did you not raise this claim earlier?
• Who in your home country knows about it, and how did they find out?
• What would you do if you returned?

The guidelines state that officers must consider all relevant information from their research, and that the obligation under section 57 of the Act to give the applicant adverse information for comment may arise if enquiries produce information adverse to the claims. If an officer relies on information from a third party that undermines your account, you should be given the opportunity to respond. Our guide to protection visa interview questions explains how these questions are put at interview.

Evidence for a Protection Visa for International Students in Australia

Evidence in a sur place claim for a protection visa for international students in Australia needs to show three things: that the relevant facts are true, that any conduct in Australia is genuine, and that the risk on return is real.

Useful evidence includes:

• dated records of involvement, such as membership records, attendance records, correspondence or event photographs;
• statements from people in Australia who know the student and can describe specific involvement over time, such as religious leaders, community members or friends;
• evidence that people at home know, such as messages, threats, reports by family members or media coverage;
• screenshots of social media, preserved in a way that shows dates and public visibility; and
• country information about how the home government or community treats people with the student's profile, including people returning from abroad.

The timing of each step should be clear. A claim for a protection visa for international students in Australia is more persuasive when the evidence shows a genuine development over time, rather than a sudden change immediately before or after a visa refusal. Our guide to the protection visa statement of claims explains how to set out the chronology.

Combining Claims From Before and After Departure

Many claims for a protection visa for international students in Australia combine events from before departure with events after it. A student may have been threatened at home for political reasons, left to study, and then continued the same activity in Australia in a way that increased the risk. The Department's guidelines expressly recognise that an applicant may submit a combination of claims based on events both before and after departure.

Combined claims need careful presentation. The events before departure are assessed in the ordinary way. The conduct in Australia is subject to section 5J(6) for the refugee test. Where the conduct in Australia is a continuation of activity that began at home, that history is strong evidence that the conduct is genuine and not undertaken to strengthen the claim. A statement that shows the continuity, with dates and supporting documents, helps the officer see the claim as a single account rather than a new story.

The officer will also look at the reasons given in the original student visa application. If the student said they intended to return home after the course, the officer may ask how that fits with a fear that existed before departure. Both can be true. Many students hoped conditions would improve, or did not realise the extent of the risk until later. The explanation should be given honestly and in writing. A combined claim for a protection visa for international students in Australia is strongest when every stage of the account is consistent with the documents the Department already holds.

When a Sur Place Claim Is Weak

An honest assessment of a protection visa for international students in Australia protects students from a refusal that cannot be undone. A sur place claim is likely to be weak where the conduct began only after other visa options closed, where there is no evidence that anyone at home knows or is likely to learn of it, where the student has no intention of continuing the conduct on return and the conduct is not connected to a fundamental characteristic, or where the risk described is faced by the whole population.

Timing alone does not defeat a claim. The guidelines state that delay should not be the only reason for rejecting a claim, and that officers should explore the reasons for delay before relying on it. Our article on delay in a Subclass 866 application explains how delay is assessed. However, section 48A of the Act generally prevents a further protection visa application after a refusal. A protection visa for international students in Australia based on weak sur place facts should not be lodged in the hope that it will be improved later. If a refusal occurs, review is by the Administrative Review Tribunal within a short and strictly applied time limit. Our page on protection visa refusals explains the process.

How My Migration Lawyers Acts on a Protection Visa for International Students in Australia

My Migration Lawyers acts in many Subclass 866 Protection visa matters for international students, including a large number of sur place claims based on religious conversion, political activity, sexual orientation, gender identity and changes in the home country. The firm deals with complex cases, including claims that arose after a visa refusal, claims that depend on section 5J(6), and claims that must be argued under both the refugee and complementary protection tests.

The firm's work on a protection visa for international students in Australia includes:

• Separating the facts. Events at home are distinguished from conduct in Australia, so that section 5J(6) is addressed where it applies and not where it does not.
• Addressing purpose and timing. The genuineness of conduct in Australia is supported with evidence of development over time, and explanations for timing are set out in writing.
• Both legal tests. Claims are presented under the refugee test and the complementary protection test, including the rule that section 5J(6) does not apply to complementary protection.
• Your own account. Your statement is your own evidence, reviewed and corrected by you, and you decide which claims are advanced.
• Interview and review. The firm prepares you for the interview and appears at the Administrative Review Tribunal if review becomes necessary.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so students anywhere in Australia can obtain advice. Our protection visa lawyers page explains how the firm acts in these matters. Book a consultation with My Migration Lawyers, or call 1300 040 300.