Protection Visa Claims Based on Forced Marriage

Protection visa claims based on forced marriage are made by people who fear being made to marry someone they have not chosen, or who fear being returned to a marriage they were forced into. The pressure usually comes from parents, relatives or the wider community. Refusal can lead to violence, confinement, loss of all family support, or worse.

Protection visa claims based on forced marriage are recognised in Australian law. The Migration Act expressly prevents the Department from relying on the applicant accepting a marriage they oppose. But these claims are still often refused, because the decision maker finds that the family pressure is not serious harm, that the applicant is an adult who can refuse, or that the police would help. This article explains how the law treats these claims and how each of those findings can be answered.

Can a forced marriage support a protection visa?

Yes. A forced marriage 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, because of a marriage they oppose, and effective protection is not available in their home country.

The claim is not simply that the applicant does not want to marry. Protection visa claims based on forced marriage depend on what the applicant faces. That may be:

• being made to marry against their will, through violence, threats, confinement or deception;
• being returned to a marriage they were forced into and have escaped;
• violence, sexual violence or captivity within that marriage;
• serious harm from family or community for refusing the marriage or leaving it; or
• the forced marriage of their child.

The Department's processing guidelines list forced marriage among the forms of gender-related harm that officers must approach with sensitivity, alongside sexual violence, family violence, honour crimes and female genital mutilation.

Most protection visa claims based on forced marriage are made by women. But men are also forced into marriages, particularly where the family suspects the man is gay or wants to control his inheritance or status. Where the reason for the forced marriage is the applicant's sexual orientation or gender identity, the claim is an LGBTI claim, which My Migration Lawyers deals with separately on its LGBTI protection visa page.

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.

What the Migration Act says about forced marriage

The Migration Act protects people who refuse a forced marriage in a specific and important way. In protection visa claims based on forced marriage, the Department cannot find that the applicant would be safe simply by agreeing to the marriage.

Section 5J(3) of the Migration Act says a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. But the provision lists modifications that a person can never be required to make. Section 5J(3)(c)(v) provides that a person cannot be required to "enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child".

That provision answers two common arguments directly:

• "The applicant could agree to the marriage." No. A person cannot be expected to enter a marriage they oppose to avoid harm.
• "The applicant could return to her husband." No. A person cannot be expected to remain in a marriage they oppose.

It also protects parents. A parent cannot be expected to accept the forced marriage of their child to avoid harm to themselves.

Section 5J(3) applies to the refugee test. Protection visa claims based on forced marriage must still satisfy the other elements of that test, including a Convention reason, serious harm and the absence of effective protection.

Child marriage and protection visa claims based on forced marriage

Child marriage is one of the clearest forms of forced marriage, and protection visa claims based on forced marriage often involve children. A child cannot give free and full consent to a marriage. Where a girl or boy faces being married while still a child, the risk is usually a risk of serious harm in its own right.

Two situations arise:

• The child is the applicant. The child may be included in a parent's application, but the child's own risk should be set out separately, with country information about child marriage in the family's community and region.
• The parent is the applicant. A parent may fear that their daughter or son will be married off if the family returns, and that the parent will be harmed for refusing. Section 5J(3)(c)(v) provides that a person cannot be expected to "accept the forced marriage of a child" to avoid persecution.

Where the other parent or the extended family supports the marriage, the evidence should explain who has authority over the child under the law or custom of the country, and whether the objecting parent could realistically prevent it.

Which Convention ground applies?

The Convention ground in protection visa claims based on forced marriage is usually membership of a particular social group. Religion or political opinion may also apply, depending on the facts.

Section 5L 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 commonly argued in protection visa claims based on forced marriage include:

• women in a particular country or community;
• young women in a particular community who have not consented to a marriage arranged by their family;
• women who have refused, or escaped, a forced marriage; and
• divorced or separated women, where the applicant has left a forced marriage.

Religion may apply where the marriage is required by religious leaders or religious law, or where refusal is treated as a religious offence. Political opinion may apply, including imputed political opinion, where refusing the marriage is seen as defiance of community authority.

The Department's 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.

What harm counts in protection visa claims based on forced marriage?

In protection visa claims based on forced marriage, 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 or ill-treatment, and significant economic hardship that threatens the person's capacity to subsist. Under section 5J(4), persecution must also involve systematic and discriminatory conduct.

The harm raised in protection visa claims based on forced marriage commonly includes:

• being made to marry through violence, threats or confinement;
• rape within the marriage, and repeated sexual violence;
• physical violence from the spouse or the spouse's family;
• being kept in the home, with documents, money and phone removed;
• violence from the applicant's own family for refusing or leaving; and
• being cut off from all family support, with no means of living independently.

Pressure alone is usually not enough. A family that argues, disapproves or refuses to speak to the applicant is causing distress, but that will not usually be serious harm. The claim must identify what the family is likely to do, and why.

Where the family's response is violence to restore the family's reputation, the claim overlaps with honour-based violence, which My Migration Lawyers deals with in separate guidance. Where a bride price has been paid and the family cannot or will not repay it, the claim may also involve customary marriage obligations, which are also dealt with separately.

Forced marriage and complementary protection

Complementary protection is often essential in protection visa claims based on forced marriage. A decision maker may find that the family is acting for personal reasons rather than a Convention reason. Complementary protection does not require 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 list is exhaustive.

The Department's Complementary Protection Guidelines address forced marriage directly. They state that the international prohibition on marriage without free and full consent does not give rise to a protection obligation on its own. However, the circumstances of a forced marriage may amount to torture or cruel, inhuman or degrading treatment. Decision makers are directed to consider all of the applicant's circumstances, including whether there is a real risk of sexual violence, domestic violence or severe mental or psychological harm, and the extent to which the laws of the country provide adequate protection.

The same guidelines state that rape, or the threat of rape, is very likely to constitute significant harm. In protection visa claims based on forced marriage, that is often the most important point. A marriage the applicant does not consent to will usually involve sexual relations the applicant does not consent to.

The practical lesson is that protection visa claims based on forced marriage must describe what the marriage would mean for the applicant in practice. The page on complementary protection explains the test in more detail.

Common mistakes in protection visa claims based on forced marriage

The most damaging mistakes in protection visa claims based on forced marriage are usually mistakes of framing, not of fact.

• Describing it as a family disagreement. An account that says the family "wanted me to marry and I did not agree" invites a finding that the problem is ordinary family pressure. The account must describe the threats, the violence and the control.
• Leaving out sexual violence. Many applicants do not mention what a forced marriage would mean sexually, or what happened in a marriage they escaped. For complementary protection, that is often the central harm.
• Assuming the law is the answer. Pointing out that the country has no law against forced marriage is not enough, and a country with such a law is not the end of the claim either. The evidence must address how the law operates in practice.
• Ignoring relocation. A claim that says nothing about why the applicant could not live elsewhere invites a finding that they could.
• Inconsistency with earlier forms. An applicant who described themselves as married, single or engaged on an earlier visa application or Form 80 should explain any difference before the Department raises it.

Is state protection available against a forced marriage?

State protection is often decisive in protection visa claims based on forced marriage. Many countries have laws requiring consent to marriage or setting a minimum marriage age. The question is whether those laws protect a person in the applicant's position in practice.

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 such that there would not be a real risk of significant harm.

Protection visa claims based on forced marriage should address:

• whether the marriage would be a customary or religious marriage that is never registered with the state;
• whether police treat forced marriage as a family matter and decline to intervene;
• whether courts or religious authorities would support the family rather than the applicant;
• whether there are shelters, and whether a woman can stay in them long term; and
• what happened when the applicant or others in her position sought help.

The Complementary Protection Guidelines state that the existence of protective measures shows only that they are available. It does not show that the applicant could obtain protection.

Could the applicant relocate?

Relocation is often raised in protection visa claims based on forced marriage. 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 young woman who has never lived independently, who has no income, and whose family has networks across the country, may have no practical way to live safely elsewhere. The evidence should address each of these points.

Evidence for protection visa claims based on forced marriage

The central evidence in protection visa claims based on forced marriage is the applicant's own detailed account. It should explain:

• who arranged the marriage, and who the intended spouse is;
• when the applicant learned of it, and what they said;
• what the family did when the applicant refused, with specific incidents and approximate dates;
• whether a ceremony has taken place, and whether it was registered;
• how the applicant left, and what has happened since; and
• what the applicant believes would happen if returned.

Supporting evidence may include:

• messages from family members about the marriage, including threats;
• evidence of engagement arrangements, such as invitations, photographs or payments;
• statements from relatives, friends or community members who know of the arrangement;
• medical or psychological reports; and
• country information about forced marriage, the minimum marriage age in practice, and police responses.

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

Applying late

Some applicants do not lodge until the wedding date is set, or until the family discovers where they are. Delay does not end a claim, but the Department will ask about it. The reason should be explained in the statement. The guide to delayed Subclass 866 applications explains how delay is assessed.

Interview arrangements

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 who fears the interpreter may know their family or community can raise that concern. The pages on the protection visa interview and interview questions explain what to expect.

If the family is pressuring you in Australia

Forcing a person into a marriage is a criminal offence in Australia. Where family members in Australia are pressuring the applicant, threatening them or planning to take them overseas to marry, the applicant can contact the Australian Federal Police. That is separate from the protection claim, but it may be important for the applicant's immediate safety, and any evidence of the pressure may also support the claim.

Tribunal decisions involving protection visa claims based on forced marriage

Published tribunal decisions show how protection visa claims based on forced marriage are examined on review. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 1930442 (Refugee) [2025] ARTA 1437. A Muslim woman from Malaysia facing intrafamily sexual abuse and forced marriage.
• 2112275 (Refugee) [2026] ARTA 1503. An Indian Tamil woman from Malaysia escaping forced marriage and abuse, where the child's nationality and access to services were also in issue.

Each decision turned on its own facts. What they show is that a forced marriage claim often sits alongside other harm, such as sexual abuse or the consequences for a child, and that all of it should be presented together.

What if protection visa claims based on forced marriage 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 forced marriage usually rest on findings that the family's conduct was not serious enough, that the applicant could refuse as an adult, that police would help, or that relocation was reasonable. Section 5J(3)(c)(v), the Complementary Protection Guidelines and current country information are the tools for answering those findings. The Tribunal considers the matter afresh and can take new evidence into account. In protection visa claims based on forced marriage, that often includes a fuller account of what happened within the marriage or during the family's attempts to arrange it, messages from relatives received since the refusal, and a psychological report. New material should explain and support the original account, not change it. A different story at review is likely to damage the applicant's credibility more than it helps. 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 forced marriage

My Migration Lawyers acts in protection visa claims based on forced marriage 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 by people who have escaped a marriage and by people facing one. 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:

• The applicant's account. The account is taken 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.
• Section 5J(3)(c)(v). The argument that the applicant cannot be expected to accept or return to the marriage is made expressly.
• What the marriage means in practice. The risk of sexual violence, domestic violence and psychological harm is set out, so that complementary protection is properly argued.
• State protection and relocation. Country information is used to show whether consent and marriage-age laws work in practice for a person in the applicant's position.
• Interview and review. The applicant is prepared for interview, and a refused claim is assessed for review within time.

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 being forced into a marriage, or returned to one, book a consultation with My Migration Lawyers online, or call 1300 040 300.