Protection Visa Gender-Based Persecution

Protection Visa Gender-Based Persecution claims are claims by people who fear serious harm because of their gender, or in a form of harm shaped by their gender. Most are made by women. They include women fleeing violent husbands, women facing female genital mutilation, women punished for breaking dress or behaviour rules, and women who have survived sexual violence and would be blamed or punished for it on return.

These claims raise a problem many applicants do not expect. Gender is not one of the five reasons listed in the Refugee Convention. A woman who fears a violent husband does not qualify simply because the violence is gendered. That does not mean the claim fails. It means the claim has to be put in the right legal form. This article explains how Protection Visa Gender-Based Persecution claims are assessed under both the refugee and complementary protection tests, how the Department's own gender guidelines apply, and what makes these claims succeed or fail.

Can gender-based persecution support a protection visa?

Yes. Gender-based persecution can support a Subclass 866 protection visa, either under the refugee test or under complementary protection. The Department's processing guidelines contain a separate annexure on gender and sexual orientation, which acknowledges that women may experience persecution, harm and discrimination because of their gender or specific to their gender.

The same guidelines state that gender is not, in and of itself, a ground for persecution under section 5J(1)(a). They give the example of an applicant who fears being killed by a violent husband. For the refugee test, she must show that she fears persecution for reasons of race, religion, nationality, political opinion or membership of a particular social group. She must also show that the harm amounts to persecution, and that the authorities cannot or will not protect her.

Under complementary protection, no Convention reason is needed. The guidelines state that if a gender-based claim does not fall within one of the Convention reasons, the officer should assess whether it amounts to significant harm under section 36(2)(aa). A Protection Visa Gender-Based Persecution claim should therefore be presented under both tests. The guide to complementary protection explains that pathway, and the pillar guide to the protection visa explains how the tests fit together.

Three ways gender shapes a Protection Visa Gender-Based Persecution claim

The Department's guidelines describe three different ways gender can be involved in persecution. Identifying which one applies is the first step in any Protection Visa Gender-Based Persecution claim.

• Gender-specific harm for a reason unrelated to gender. For example, a woman raped because of her membership of a political party. The Convention reason is political opinion. The form of harm is gender-specific.
• Harm that is not gender-specific, inflicted because of gender. For example, a woman flogged for refusing to wear a veil. The harm could happen to anyone, but the reason is her gender and her refusal to conform.
• Gender-specific harm inflicted because of gender. For example, female genital mutilation.

The guidelines note that this means there may be several Convention reasons at once, not just membership of a particular social group. A claim that relies only on "being a woman" may miss a stronger argument based on political opinion or religion, including an opinion or religion imputed to the applicant.

Forms of harm in Protection Visa Gender-Based Persecution claims

The Department's guidelines list forms of harm used more frequently, or solely, against women. They include sexual violence, sexual exploitation, family violence, domestic slavery, human trafficking, forced pregnancy, forced abortion, forced sterilisation, forced marriage, "honour" crimes, female genital mutilation and punishment for transgression of social mores.

The guidelines also recognise that gender-related claims may be raised by men, although they are more commonly raised by women. Claims relating to sexual orientation and gender identity are also gender-related claims, and are covered by the same annexure. The page on the LGBTI protection visa explains those claims.

Honour-based violence, forced marriage and the position of women without male support are each significant enough to be treated as claims in their own right. This article deals with the principles that apply across all of them.

Who makes Protection Visa Gender-Based Persecution claims?

Protection Visa Gender-Based Persecution claims are made by people in very different situations. Some women arrive in Australia on a visitor or student visa and decide to seek protection only when a husband or family demands their return. Others are included on a husband's or father's application and have never been asked about their own experiences.

The Department's guidelines recognise this second group directly. They state that in families where the male is head of the household, the claims of female family members may not be known, mentioned or given any weight, and that some women's claims are not recorded as their own claims at all. A woman in that position can still raise her own claims, and the Department should consider claims that clearly arise on the material even if they are not expressly stated.

Protection Visa Gender-Based Persecution claims can also be made by men, and by transgender and gender diverse people, where the harm feared is linked to gender roles or gender identity. The guides for applicants on a tourist visa and for international students explain how people already in Australia can apply.

Particular social group in Protection Visa Gender-Based Persecution claims

Membership of a particular social group is the Convention reason most often relied on in Protection Visa Gender-Based Persecution claims. Section 5L of the Migration Act sets out when a person is a member of a particular social group, other than a family. Each member must share a characteristic, the applicant must share it or be perceived to share it, and the characteristic must be innate or immutable, or so fundamental to identity or conscience that the person should not be forced to renounce it, or distinguish the group from society. The characteristic must not be a fear of persecution.

The last requirement matters. A group cannot be defined only by the harm its members fear. "Women who are beaten by their husbands" describes the harm, not a social group. The group has to be defined by a characteristic that exists independently of the persecution.

The Department's guidelines give a direct example in domestic violence cases. Where an applicant has separated from the perpetrator, the family violence is generally treated as the form of harm, not as part of the group. The group may be characterised as separated women in the applicant's country, fearing persecution because they are separated. The guidelines list the central aspects of such a claim:

• the applicant is separated;
• a particular social group exists, of which she is a member, based on being a divorced or separated spouse or partner;
• the characteristic is innate or immutable, or so fundamental that she should not be forced to renounce it; and
• there is a real chance of persecution in all areas of the country because she is a member of that group.

The guide to divorced women as a particular social group explains how the Tribunal applied this approach in one published decision.

When state inaction is the persecution

State inaction can turn private violence into persecution. The Department's guidelines state that if a woman faces harm for any reason, but the state refuses to protect her because of her gender, that may amount to persecution. This is one of the most important principles in Protection Visa Gender-Based Persecution claims.

Many gender-based harms are committed by husbands, relatives or community members. The perpetrator's motive may be personal. But where the police, courts or officials refuse to act because the victim is a woman, the discrimination lies in the state's response. That can supply the Convention reason.

The guidelines add that, in domestic and family violence claims, the adequacy of state protection, and whether the state is reluctant to be involved or turns a blind eye, are among the key considerations. Effective protection measures are defined in section 5LA, and the Department's guidelines describe the refugee test as whether there is effective, durable protection. For complementary protection, the Complementary Protection Guidelines state that the decision maker must consider whether domestic violence laws will be effectively implemented, including whether the applicant could obtain protection without first suffering injuries so severe that the authorities would act. The guide to domestic violence as a protection claim explains these issues in detail.

Breaking social rules and Protection Visa Gender-Based Persecution

Protection Visa Gender-Based Persecution claims often arise from rules about how women must dress, behave, work, travel or marry. The Department's guidelines recognise that gender-related harm can take the form of restrictions on the way a woman behaves, or forcing her to act in a certain way, and that women who flout those restrictions may attract a broad range of penalties.

These claims often engage more than one Convention reason. The guidelines state that non-conformity with religious practices may be interpreted as an attempt to corrupt society or a threat to religious authority. That can make the claim one of religion, or of an imputed religious opinion. The guidelines also state that women who hold a feminist ideology may be viewed as holding a political opinion hostile to the government and persecuted on that basis. That makes the claim one of political opinion.

The important point is that the applicant does not have to comply with the rules to avoid harm. For the refugee test, section 5J(3) prevents decision makers from expecting a person to alter or conceal religious or political beliefs to avoid persecution. A woman who refuses to wear religious dress because she does not share the belief behind it cannot be told to comply. The page on religious persecution explains how religion-based claims are assessed.

Complementary protection and Protection Visa Gender-Based Persecution

Complementary protection is often decisive in Protection Visa Gender-Based Persecution claims. Section 36(2A) defines significant harm to include arbitrary deprivation of life, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. These forms of harm can be committed by any person, not only officials.

The Complementary Protection Guidelines state that rape or the threat of rape, female genital mutilation, forced abortion and forced sterilisation are very likely to breach Article 7 of the International Covenant on Civil and Political Rights, and are therefore likely to constitute significant harm. They also state that the circumstances of a forced marriage may amount to torture or cruel, inhuman or degrading treatment, depending on the risk of sexual violence, domestic violence and severe psychological harm.

The guidelines add a practical point about female genital mutilation. They refer to a decision of the United Nations Human Rights Committee concerning a girl at risk of female genital mutilation by her father's family, where the practice was prohibited by law but the prohibition was not complied with. Widespread practice, together with the girl's particular circumstances, disclosed a real and personal risk.

Trafficking claims fall within the same framework. The Department's guidelines recognise that most victims of human trafficking are women and girls, and that people who are displaced are more susceptible to trafficking. A person who was trafficked, and who fears being located by the same network or re-trafficked on return, should present evidence of the network's reach and of the protection actually available to trafficking survivors in the home country.

One limit applies. Some harms can only happen once. The guidelines note that a person who has already been forcibly sterilised is not at real risk of forced sterilisation in the future. The claim must focus on the harm that could still occur.

Protection Visa Gender-Based Persecution and the interview

The interview in a Protection Visa Gender-Based Persecution claim is governed by specific guidance. The Department's guidelines state that, where gender-related claims are included in the application, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant, or the gender with which the applicant identifies. If the applicant asks for an interpreter of a particular gender, every effort should be made to meet that request.

The guidelines also direct officers to consider separate interviews for women on family applications, particularly where a woman has raised sensitive claims such as domestic or family violence. A request for a joint interview can be refused if the officer considers separate interviews necessary.

Officers are told that detailed questions about a traumatic event are not appropriate, and that questions about sexual violence and family violence should be asked only if necessary and with due sensitivity. The guidelines recognise that the interview may be the first time an applicant has spoken in detail about these experiences.

The page on the protection visa interview explains how to prepare, and how to raise interpreting and interview arrangements before the day.

Credibility in Protection Visa Gender-Based Persecution claims

Credibility is assessed differently in Protection Visa Gender-Based Persecution claims because the barriers to disclosure are different. The Department's guidelines list barriers women may face, including shame, fear of reprisals from family for disclosing sexual violence, reluctance to speak in front of male relatives or interpreters, not realising that their experience is relevant, and claims being left out of family applications by a male head of household.

The guidelines direct officers to take account of the impact of shame and embarrassment on demeanour, mental state and recall, particularly for claims of a sexual nature. They also direct officers to consider claims that are not explicitly raised but clearly arise on the material. A late disclosure of sexual violence should be explained, but it is not in itself a reason to disbelieve it.

Evidence that commonly supports these claims includes medical and psychological reports, records of complaints to police or community leaders, protection orders, messages from the perpetrator, statements from people who know the facts, and country information about the legal and social position of women. The guides to the protection visa statement of claims and evidence in a protection visa application explain how this evidence is used.

Relocation in Protection Visa Gender-Based Persecution claims

Relocation is often the final obstacle in Protection Visa Gender-Based Persecution claims. 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. They direct officers to consider gender-related issues carefully when applying the relocation test. A woman who cannot rent housing, work or travel without a male guardian, or who would be identified and returned to her family, cannot realistically relocate.

Common mistakes in Protection Visa Gender-Based Persecution claims

Most refused Protection Visa Gender-Based Persecution claims fail on the framing of the claim, not on the facts.

• Relying on gender alone. A claim that says only "I am a woman and my husband is violent" does not identify a Convention reason or explain the state's failure to protect.
• Defining the group by the harm. A particular social group defined only by the persecution feared does not satisfy section 5L.
• Ignoring state protection. The claim must explain what the police, courts and officials would do, with country information and the applicant's own experience.
• Staying on a family application without advice. Sensitive claims on a combined application can create confidentiality risks and make disclosure harder.
• Not asking for interview arrangements. Requests for a female officer and interpreter should be made in writing before the interview.

The guide to when you need a protection visa lawyer explains when legal help makes the most difference, and the Subclass 866 refusal ART guide explains what can be done after a Protection Visa Gender-Based Persecution claim is refused.

Tribunal decisions on Protection Visa Gender-Based Persecution

Published Tribunal decisions show how these claims are reconsidered on review. Each turns on its own facts and does not predict another outcome.

• In 2009407 (Refugee) \[2024\] AATA 4101, a separated woman from Somalia without support feared sexual violence and killing. The matter was remitted.
• In 2405430 (Refugee) \[2024\] AATA 2226, a woman from Solomon Islands experienced sustained abuse in a bride-price marriage despite protection orders. The matter was remitted.
• In 1813143 (Refugee) \[2023\] AATA 4556, a divorced woman from India with psychiatric illness faced family rejection and gender-related stigma. The matter was remitted.

A remittal means the Tribunal sent the application back to the Department to be decided again, usually with a direction or finding. It is not itself the grant of a visa. These decisions are cited as published examples only. The protection visa refusals page explains the review process and time limits.

How My Migration Lawyers handles Protection Visa Gender-Based Persecution claims

My Migration Lawyers acts for women and other applicants who fear gender-based harm if they return home. The firm deals with complex protection cases, acts in many Subclass 866 claims involving gender-based harm, and is capable of handling these matters from the first application through to review at the Administrative Review Tribunal.

In a Protection Visa Gender-Based Persecution matter, the work usually involves:

• Identifying every legal basis. The firm considers political opinion, religion and particular social group, as well as complementary protection, so that the claim is not limited to one argument.
• Presenting the applicant's own account. The account is taken with care, with a female interpreter where requested. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Interview arrangements. The firm raises same-gender officer and interpreter requests, and separate interviews, before the interview.
• State protection evidence. Country information about how police and courts respond to gender-based violence is identified and presented.
• Confidentiality. Where the applicant is on a family application, the firm advises on separate interviews, separate correspondence and whether a separate application is safer.
• Review. Where a visa has been refused, the decision is analysed and the review is prepared within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia.

If you fear harm because of your gender, the way the claim is framed from the start can decide whether the law recognises it. Book a consultation with My Migration Lawyers online, or call 1300 040 300.