Protection Visa Claims Based on Forced Recruitment by Armed Groups

Protection visa claims based on forced recruitment by armed groups arise when a person has been pressured, threatened or taken by force to join a militia, an insurgent force, an extremist group, a gang with an armed wing or a paramilitary force backed by the state. The person refused, escaped or deserted. They now fear what the group will do to them if they are returned.

Protection visa claims based on forced recruitment by armed groups are not a separate category in the Migration Act 1958. They are assessed under the same two tests as every Subclass 866 claim: the refugee test in section 36(2)(a) and the complementary protection test in section 36(2)(aa). This article explains how those tests apply when the danger is a group that wants the applicant to fight. It also explains why these claims are usually won or lost on three issues: the reason for the harm, the availability of state protection and the question of relocation.

Recruitment into a state's own army under a lawful conscription law raises different questions and is covered in My Migration Lawyers' separate guidance on military service and conscription claims.

Can forced recruitment by an armed group support a protection visa?

Yes. Forced recruitment by an armed group can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution for a Convention reason, or faces a real risk of significant harm, and the authorities of their country cannot provide effective protection.

In protection visa claims based on forced recruitment by armed groups, the recruitment itself is only part of the claim. The claim is the harm the applicant fears for refusing, escaping or deserting, and the reason the group would inflict it. Armed groups rarely let a person walk away. Those who refuse may be beaten, detained, tortured or killed. Those who desert may be treated as traitors. Families may be threatened to force a person to come back.

Protection visa claims based on forced recruitment by armed groups are strongest when the applicant can answer four questions clearly:

• Which group. The name of the group, where it operates, who leads it locally and how it recruits.
• What happened. The approaches, threats, abduction, training or service, with dates and places.
• Why the group would harm the applicant. For example, because the refusal is seen as support for the government or a rival group, or because of the applicant's religion or ethnicity.
• Why nobody can stop it. Because the group controls the area, the police cannot or will not act, or the state itself supports the group.

The definitive guide to the Subclass 866 protection visa sets out the general criteria. The guide to protection visa eligibility explains what to check before applying. The rest of this article applies those criteria to protection visa claims based on forced recruitment by armed groups.

Which Convention grounds apply to protection visa claims based on forced recruitment by armed groups?

The Convention grounds that most often apply to protection visa claims based on forced recruitment by armed groups are political opinion, religion, race and membership of a particular social group. Section 5J(1)(a) of the Migration Act lists the five grounds: race, religion, nationality, membership of a particular social group and political opinion. Under section 5J(4)(a), one or more of those grounds must be the essential and significant reason for the persecution.

This is where many applications go wrong. A fear of being recruited is not, on its own, a fear of persecution for a Convention reason. An armed group that takes every person it can find, for manpower alone, may not be targeting anyone for a Convention reason. The claim must show why the group's treatment of this applicant is connected to one of the five grounds. If it cannot, complementary protection may still apply.

Political opinion, actual or imputed

Political opinion is the ground most often raised in protection visa claims based on forced recruitment by armed groups. An applicant may refuse because they oppose the group's aims or methods. That is an actual political opinion. More often, the group treats refusal as siding with the enemy, the government or a rival faction. That is an imputed political opinion. The applicant does not need to hold the view the group attributes to them. What matters is the reason the group would harm them. A deserter may face the same imputation, because leaving is seen as betrayal.

Religion

Extremist groups often recruit in the name of a faith. A person who refuses to fight for such a group may be treated as an apostate or an enemy of the religion. A person from a different religious community may be targeted because of that difference. In either case the harm may be for reasons of religion. Claims centred on belief itself are covered by My Migration Lawyers' guidance on religious persecution.

Race and ethnicity

Some armed groups recruit from one ethnic or tribal community and punish members of that community who refuse. Others target a community they see as hostile, and use recruitment to control or punish it. In protection visa claims based on forced recruitment by armed groups, where the applicant's ethnicity is the reason they are pressed into service, or harmed for refusing, race is the ground.

Particular social group

Some claims are framed around a particular social group, such as young men of fighting age in a region where a group recruits. Section 5L sets out when a person is a member of a particular social group other than their family. The members must share a characteristic that is innate or immutable, or so fundamental to identity or conscience that a person should not be forced to renounce it, or that distinguishes the group from society. The characteristic cannot be a fear of persecution. A group defined only as "people who fear being recruited" fails that test. A group defined by age, sex and location may or may not be accepted. It must be argued on evidence of how that group is seen in that society.

Children

Child recruitment is a serious concern in protection visa claims based on forced recruitment by armed groups. Armed groups use children as fighters, messengers, guards and porters. A child's age, the group's known practice of taking children and the absence of adult protection all bear on the level of risk. A child's claims should be assessed separately from a parent's claims, and in the child's own words where their age allows. The Subclass 866 protection visa page explains how family members are included in one application.

What harm counts in protection visa claims based on forced recruitment by armed groups?

In protection visa claims based on forced recruitment by armed groups, the harm must amount to serious harm for a refugee claim, or significant harm for a complementary protection claim. Forced recruitment carried out through threats, abduction or violence, and the punishment of those who refuse, will usually meet that standard.

Section 5J(5) of the Migration Act gives examples of serious harm. They include a threat to the person's life or liberty, significant physical harassment and significant physical ill-treatment. They also include significant economic hardship, denial of access to basic services and denial of the capacity to earn a livelihood, where that threatens the person's capacity to subsist. Under section 5J(4), persecution must also involve systematic and discriminatory conduct. That means the applicant is selectively targeted, not simply caught in random violence.

The harm most often raised in protection visa claims based on forced recruitment by armed groups includes:

• threats to kill the applicant or members of their family if they do not join;
• abduction and forced training;
• detention, beatings or torture of those who refuse;
• the killing of those who refuse or desert, sometimes in public as a warning to others;
• forced participation in violence against civilians;
• seizure of land, property or income to force compliance; and
• repeated visits and demands that make ordinary life impossible.

Being forced to fight is itself a threat to life and liberty. It places a person in combat against their will and may require them to harm others. The punishment for refusing is often worse than the service.

Where the group threatens the applicant's family to force the applicant back, that harm is relevant to the applicant's own claim. Claims where a whole family is the target of a gang or armed group are covered separately in My Migration Lawyers' guidance on families targeted by armed groups.

Can the Department expect the applicant to hide their views to avoid the group?

No, not in a refugee claim. 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. That rule does not apply to a modification that would conflict with a characteristic fundamental to the person's identity or conscience, or conceal an innate or immutable characteristic. The listed modifications a person can never be required to make include altering or concealing true political beliefs, concealing true religious beliefs, and concealing true race or ethnicity.

In protection visa claims based on forced recruitment by armed groups, this means the Department cannot say the applicant should return and pretend to support the group. Nor can it say the applicant should keep quiet about their opposition to it. A refusal to take up arms for a group, and to harm others for it, is also a matter of conscience. That point should be argued directly in the application, because a decision maker may otherwise ask whether the applicant could simply avoid the group's attention.

When does complementary protection apply to protection visa claims based on forced recruitment by armed groups?

Complementary protection applies in protection visa claims based on forced recruitment by armed groups where the applicant faces a real risk of significant harm on return, but the harm is not for a Convention reason, or the Convention reason cannot be proved. It is often the stronger framework where the group recruits for manpower rather than for any reason connected to the applicant.

Section 36(2)(aa) asks whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm. 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. That list is closed.

Protection visa claims based on forced recruitment by armed groups often fit that list closely. The killing of a person who refuses or deserts may be an arbitrary deprivation of life. The treatment of a captured deserter may be torture. Beatings to force compliance may be cruel or inhuman treatment. The definitions of torture and of cruel or inhuman treatment in section 5(1) require pain or suffering that is intentionally inflicted. Punishment by an armed group is usually deliberate, so that element is rarely the problem. The problem is usually proving that the risk is real and personal to the applicant. The Department's Complementary Protection Guidelines state that a high crime rate and poor police control alone do not establish a real risk of arbitrary deprivation of life by a non-state actor.

The page on complementary protection explains the test in detail. The Subclass 866 protection visa complete guide explains how the two frameworks sit together.

Effective state protection against armed groups

Where an armed group controls the area, or the state is unable to reach it, or the state itself backs the group, effective state protection is usually not available, and the state protection answer to the claim fails.

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. Protection may be provided by the relevant State, or by a party or organisation that controls the State or a substantial part of its territory. That State, party or organisation must be willing and able to offer protection. It is taken to be able to do so only if the person can access the protection, the protection is durable, and it consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

That provision matters in protection visa claims based on forced recruitment by armed groups. Where the armed group itself controls the territory, the only "party or organisation" in control is the one the applicant fears. It cannot be willing to protect the applicant from itself. Where a paramilitary force acts with state support, the state is part of the problem. The Department's guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye.

For complementary protection in protection visa claims based on forced recruitment by armed groups, section 36(2B)(b) asks whether the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm. The Complementary Protection Guidelines state that findings made under one test cannot simply be adopted for the other. Each must be argued.

Relocation within the home country

Relocation is only an answer if the group cannot reach the applicant elsewhere, and if moving is realistic for that applicant. For a refugee claim, the real chance of persecution must relate to all areas of the country under section 5J(1)(c). For complementary protection, section 36(2B)(a) asks whether it would be reasonable, in the sense of practicable, for the applicant to relocate to an area where there would be no real risk.

The Department's guidelines direct officers to consider the motivation and ability of a non-state agent to pursue the applicant. In protection visa claims based on forced recruitment by armed groups, that often favours the applicant. Many groups operate across several regions, use informants and checkpoints, and keep records of those who refused or deserted. Where the state is itself a party to recruitment, or treats young men from a conflict area as suspected fighters, moving elsewhere may simply exchange one danger for another. The guide to Form 866 explains where these facts are set out in the application.

Is general conflict in the home country enough for a protection visa?

No. A general state of armed conflict is not enough on its own. Section 36(2B)(c) provides that there is no real risk of significant harm if the risk is faced by the population of the country generally and not by the applicant personally.

This is the point on which protection visa claims based on forced recruitment by armed groups are most often misunderstood, in both directions. Some applicants describe the war in their country and expect that to be enough. It is not. Some decision makers treat a claim as general violence simply because many people face the same group. That is also wrong. The Complementary Protection Guidelines state that a general statement that violence is rife is not enough to apply section 36(2B)(c). The decision maker must consider whether the applicant is personally at risk. An applicant who belongs to a class of persons who would be targeted is personally at risk.

In protection visa claims based on forced recruitment by armed groups, the difference is between a person caught in the fighting and a person who is sought. Evidence that the group has named the applicant, visited the family home, returned after the applicant left, or recorded the applicant as a deserter shows that the risk is personal.

What if the applicant was forced to take part in the group's activities?

Past participation, even when it was forced, does not by itself defeat a claim. It often increases the risk, because a person who served and then left may be treated as a traitor by the group and as a member of the group by the authorities. Protection visa claims based on forced recruitment by armed groups must still deal with that history honestly.

Where a person has taken part in serious crimes, such as war crimes, crimes against humanity or serious non-political crimes, they may be excluded from protection under the refugee provisions and, for complementary protection, under section 36(2C)(a). Whether the person acted under duress, their age at the time, the nature of their role and whether they had any real choice are all relevant to that assessment. These are difficult questions of fact and law. Any past involvement must be disclosed and handled carefully, with legal advice, before the application is lodged. Omitting it and having it discovered later is far more damaging than explaining it properly at the start.

Evidence for protection visa claims based on forced recruitment by armed groups

The evidence for protection visa claims based on forced recruitment by armed groups must prove two things: that the group wanted the applicant, and that the group would harm the applicant for refusing or leaving. Many applications describe the group well and the applicant's own risk poorly.

Evidence that may support the claim includes:

• threatening messages, letters, notices or phone calls from the group, preserved with their date and source;
• recruitment notices or lists posted or circulated in the applicant's area;
• evidence of past harm, such as medical records or photographs of injuries;
• written statements from witnesses to the approaches, threats or abduction;
• evidence of the deaths, disappearances or abduction of others who refused or deserted, such as reports, death records or statements;
• evidence of any report to police and the response, or an explanation of why no report was made; and
• country information on the group, the areas it controls or operates in, and its recruitment practices and treatment of those who refuse.

The applicant's own written account carries the claim. It should explain who approached them, when and how, what was demanded, what they did, what happened to others who refused, and why they believe the group would find and harm them on return. The guide to the protection visa statement of claims explains how that account is structured, and the guide to protection visa evidence explains what supports it.

Credibility is tested closely at interview. Dates, places, names and the sequence of events will be examined, and consistency with country information will be checked. The pages on the protection visa interview and protection visa interview questions explain what to expect.

What if protection visa claims based on forced recruitment by armed groups are refused?

If the Department refuses the claim, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply for review is short and strictly applied. It runs from the date the applicant is notified of the decision.

Refusals in protection visa claims based on forced recruitment by armed groups usually rest on one of five findings: that the account is not credible, that the group recruits for manpower and not for a Convention reason, that the state would protect the applicant, that the applicant could relocate, or that the risk is general rather than personal. Each finding can be tested at review with better evidence and clearer argument. The pages on protection visa refusals, the Subclass 866 refusal ART guide and the protection visa ART hearing explain the process.

How My Migration Lawyers acts in protection visa claims based on forced recruitment by armed groups

My Migration Lawyers acts in protection visa claims based on forced recruitment by armed groups for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the danger comes from armed groups and other non-state actors, and the case turns on the reason for the harm, state protection and relocation. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work on protection visa claims based on forced recruitment by armed groups includes:

• The applicant's own account. The account is taken in detail, with an interpreter where needed. 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 reason for the harm. The claim is framed under political opinion, actual or imputed, religion, race or particular social group as the facts support, and under complementary protection as well.
• Control of territory and state protection. Current country information is used to show who controls the area, and why section 5LA and section 36(2B)(b) do not answer the claim.
• Relocation and personal risk. The evidence addresses the group's reach across the country and shows why the risk is personal, not general.
• Past involvement. Any forced service or participation is disclosed and presented carefully, with the relevant exclusion questions considered before lodgement.
• 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 more generally.

If an armed group tried to force you to fight and you fear what will happen if you return, book a consultation with My Migration Lawyers online, or call 1300 040 300.