Protection Visa Honour-Based Violence

Protection Visa Honour-Based Violence claims arise when a person fears being harmed, or killed, by their own family or community because they are seen to have dishonoured them. The trigger may be a relationship the family did not approve, a refusal to marry, a divorce, a pregnancy, a rape, a change of religion, or simply living in a way the family considers shameful. The harm is often planned by relatives and approved by the wider community.

These cases are among the most serious protection claims, and among the most misunderstood. Many applicants assume that because the harm comes from family, it is a private matter that Australian protection law does not cover. That is wrong. A Protection Visa Honour-Based Violence claim can meet both the refugee test and the complementary protection test. The difficulty lies in showing why the state will not protect the applicant, and why moving elsewhere in the country would not make them safe. This article explains how the law treats honour-based violence, and what the Department must decide.

Can honour-based violence support a protection visa?

Yes. Honour-based violence can support a Subclass 866 protection visa where there is a real risk of serious harm on return and the authorities will not or cannot provide protection. The Department's own guidelines recognise "honour" crimes as a form of harm used more frequently, or solely, against women. They also recognise that women are more likely than men to be harmed by members of their own family or community, and more likely to be harmed because of their choice of sexual partners.

A Protection Visa Honour-Based Violence claim can be made under either pathway to a Subclass 866 protection visa:

• The refugee test in section 36(2)(a). The applicant must have a well-founded fear of persecution for one of the five Convention reasons: race, religion, nationality, membership of a particular social group or political opinion.
• The complementary protection test in section 36(2)(aa). The applicant must face a real risk of significant harm, such as arbitrary deprivation of life, torture or cruel or inhuman treatment, as a necessary and foreseeable consequence of removal. No Convention reason is needed.

The general guide to the protection visa explains how the two tests relate to each other.

What counts as honour-based violence?

Honour-based violence is violence or coercion used to protect or restore the perceived honour of a family or community. It covers a wide range of harm, including:

• killing, or threats to kill, sometimes called honour killings;
• serious assaults, including beatings and acid attacks;
• forced confinement in the family home;
• forced marriage, or the threat of forced marriage, as punishment or control;
• forced return to a spouse or family the person has escaped; and
• abandonment and exclusion that leaves the person unable to survive.

The Protection Visa Honour-Based Violence cases that reach the Department usually involve one of a small number of triggers. The most common are a relationship outside the family's choice, refusing or leaving a marriage, sexual violence against the applicant that the family blames on them, pregnancy outside marriage, a change of religion, a same-sex relationship, and conduct seen as too independent or "Westernised". The guide to domestic violence as a protection claim explains how closely related family violence claims are assessed.

Protection Visa Honour-Based Violence against men

Protection Visa Honour-Based Violence claims are not limited to women. Men can be targeted by a woman's family for having a relationship with her, for eloping, or for refusing a marriage arranged between families. Gay and bisexual men are often targeted by their own families. Men who help a sister or partner escape can also be targeted.

The Department's Complementary Protection Guidelines give an example of this kind. They describe a case in which the former Refugee Review Tribunal found it was highly probable that an Iraqi man would be killed by the husband of his lover if he were returned. Country information indicated that the extra-judicial killing of a person who has committed adultery was effectively sanctioned by the authorities, and relocation was not reasonable. The applicant was found to satisfy the complementary protection criterion. The same principles apply whatever the applicant's gender.

Why Protection Visa Honour-Based Violence claims are refused

Protection Visa Honour-Based Violence claims are usually refused for one of a small number of reasons, and most of them can be anticipated.

• The harm is treated as a private dispute. The claim describes the family's anger but does not explain the Convention reason or why the state will not intervene.
• State protection is assumed from the law. The Department relies on the existence of criminal laws against violence without evidence of how they operate in practice.
• Relocation to a large city. The Department finds the applicant could live in the capital or another major city, and the claim does not explain why the family could find them there.
• Credibility of a hidden relationship. Relationships and conduct that triggered the violence were kept secret at home, so there is little documentary evidence. The account must carry the claim.
• Delay. The applicant did not apply until some time after arriving. The reasons need to be explained.

Each of these reasons goes to one of the legal elements discussed below. The guide to protection visa eligibility explains how those elements fit together, and the guide to when you need a protection visa lawyer explains when legal help makes the most difference in a Protection Visa Honour-Based Violence case.

The refugee test in Protection Visa Honour-Based Violence claims

For the refugee test, a Protection Visa Honour-Based Violence claim must show that the feared harm is persecution for a Convention reason. Section 5J(4) requires that the Convention reason is the essential and significant reason for the persecution, that the persecution involves serious harm, and that it involves systematic and discriminatory conduct.

Serious harm

Section 5J(5) gives examples of serious harm, including a threat to life or liberty, significant physical harassment and significant physical ill-treatment. Threats to kill, serious assaults and forced confinement will usually meet this threshold. The Department's guidelines also recognise that serious harm can include serious mental harm, and that multiple harmful acts may cumulatively amount to serious harm.

A Convention reason

Honour-based violence is rarely about race or nationality. The Convention reason is usually membership of a particular social group. Section 5L provides that a person is a member of a particular social group, other than a family, if a characteristic is shared by each member of the group, the person shares or is perceived to share it, the characteristic is innate or immutable, or so fundamental to identity or conscience that the member should not be forced to renounce it, or distinguishes the group from society, and the characteristic is not a fear of persecution.

In honour-based cases, the group is defined by the characteristic that triggers the family's reaction, not by the violence itself. Examples may include women in a particular country who have refused a family-arranged marriage, or women who are separated or divorced. The guide to divorced women as a particular social group explains how the Tribunal approached a group of this kind in one country.

Religion and political opinion can also apply. The Department's guidelines recognise that women may be imputed with a political opinion or religion, and that non-conformity with religious practices may be seen as a threat to religious authority.

When the state's failure is the persecution

The Department's guidelines add an important principle. If a woman faces harm for any reason, but the state refuses to protect her because of her gender, that may amount to persecution. In other words, even where the family's motive is personal, the state's discriminatory refusal to protect can supply the Convention reason. This is often the key to a Protection Visa Honour-Based Violence claim under the refugee test.

State protection in Protection Visa Honour-Based Violence claims

State protection is usually the central issue in a Protection Visa Honour-Based Violence claim. Because the harm comes from private individuals, the Department asks whether the authorities of the home country would protect the applicant.

For the refugee test, 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 defines effective protection measures. The Department's guidelines describe the test as whether there is effective, durable protection against the persecution feared. For complementary protection, 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 under one test cannot simply be adopted for the other.

The existence of laws is not enough. The Complementary Protection Guidelines state that the mere existence of protective measures only shows that they are available. It does not show that the person could obtain protection. In relation to domestic violence, they state that the decision maker must consider whether the laws will be effectively implemented, including whether the applicant could obtain protection without first suffering injuries so severe that the authorities would act.

In Protection Visa Honour-Based Violence cases, relevant evidence often includes:

• police refusing to record complaints or treating them as family matters;
• victims being returned to the families who threatened them;
• "protective" custody that operates as detention;
• light or suspended sentences for honour killings, or pardons by the victim's family;
• the family's influence with local police, officials or community leaders; and
• the applicant's own attempts to seek help, and what happened.

The page on complementary protection explains the state protection test under section 36(2B)(b).

Protection Visa Honour-Based Violence when family members are in Australia

Protection Visa Honour-Based Violence claims sometimes arise within a family that is already in Australia. A woman may be on her husband's or father's application, or relatives may also be living here. That creates practical risks the Department's guidelines recognise.

The guidelines state that where a family member on a combined application may have sensitive claims, including claims relating to gender, it may be necessary to hold a separate interview without other family members present. They direct officers to consider separate interviews for female family members who raise their own claims, because of the barriers women can face in speaking in front of relatives.

The guidelines also deal with confidentiality. An applicant with sensitive claims on a combined application may nominate a separate address for correspondence. Officers are directed to explain the consequences of staying on a combined application, because another applicant on the same application may later obtain information about the claims. In some cases, a separate application may be the safer course.

These are decisions to make before the claim is disclosed to the Department, not after. The page on the protection visa interview explains who may attend an interview and how interviews are arranged.

Complementary protection and Protection Visa Honour-Based Violence

Complementary protection is often the stronger pathway for a Protection Visa Honour-Based Violence claim where the Convention reason is uncertain. Section 36(2A) defines significant harm to include arbitrary deprivation of life, torture, and cruel or inhuman treatment or punishment. The Complementary Protection Guidelines state that these forms of harm can be committed by anyone, not only public officials.

The guidelines also state that, where the threat to life comes from a non-state actor, the decision maker must consider whether the applicant could obtain protection from an authority such that there would not be a real risk. A threat from a family with influence over local police, in a country where honour killings are rarely punished, may meet that test.

The guide to complementary protection for LGBTI applicants discusses violence from family and community in that context.

Relocation in Protection Visa Honour-Based Violence claims

Relocation is the second major issue in Protection Visa Honour-Based Violence claims. The Department will ask whether the applicant could live safely in another part of the country.

For the refugee test, section 5J(1)(c) asks whether the real chance of persecution relates 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.

Honour-based threats are often capable of reaching across a country. Families may have relatives in other cities. Community networks, tribal structures and social media make people easy to find. National identity and residence registration can reveal an address. A woman living alone may attract attention simply because she is alone. The applicant should explain why the people they fear could and would find them elsewhere.

Section 5J(3) is also relevant. It prevents decision makers, for the refugee test, from expecting a person to enter into or remain in a marriage they oppose in order to avoid persecution. A suggestion that the applicant could be safe by returning to a husband or accepting the family's choice of spouse is not a lawful answer to the claim.

Where the honour-based threat arises from the applicant's sexual orientation or gender identity, the claim also engages the specific guidance that applies to LGBTI claims. Section 5J(3) prevents decision makers, for the refugee test, from expecting a person to conceal their sexual orientation or gender identity to avoid persecution. The page on the LGBTI protection visa explains those claims in detail, and why a Protection Visa Honour-Based Violence claim based on sexuality should never be framed as a request to live discreetly.

Protection Visa Honour-Based Violence and children

Protection Visa Honour-Based Violence claims often involve children, either as applicants in their own right or as the reason a parent cannot return. A daughter may face the same pressures that led her mother to flee, including an arranged marriage at a young age. A child born outside marriage, or to a relationship the family rejected, may be treated as proof of the dishonour.

Children's claims must be assessed in an age-sensitive way. The Department's Complementary Protection Guidelines state this expressly, and the processing guidelines contain separate guidance on minors, including allowances for a child's ability to recall and explain events. Each child's own risk should be identified and put forward, rather than assumed to follow from the parent's claim.

Custody can also matter. In some countries, family or religious law may give the father or his family strong rights over children after separation. Country information about custody, and about what happens to mothers who try to keep their children, can be directly relevant to both the risk on return and the question of relocation.

Evidence in a Protection Visa Honour-Based Violence case

The evidence in a Protection Visa Honour-Based Violence case must show who the applicant fears, why, what they have done or threatened, and why the authorities would not help. The applicant's own detailed account is the central evidence. It may be supported by messages and threats, medical records, police reports or records of refused complaints, statements from people who know the facts, and country information about honour-based violence and the response of the authorities.

The way the claim is presented, and how it is tested at interview, requires careful preparation. Claims of this kind often involve shame, fear for relatives at home and experiences that are difficult to describe. The Department's guidelines recognise these barriers, particularly for women. The guide to the protection visa statement of claims explains how the written account is structured.

Tribunal decisions involving Protection Visa Honour-Based Violence

Published Tribunal decisions show how claims of family and community violence of this kind are reconsidered on review. Each turns on its own facts and does not predict the outcome of another case.

• In 2010235 (Refugee) \[2022\] AATA 602, an educated woman from Pakistan returning from the West feared violence from her extended family. The matter was remitted to the Department.
• In 1801303 (Refugee) \[2022\] AATA 2294, a woman from Egypt had been subjected to family abuse because of her liberal religious views and her relationships. The matter was remitted.
• In 1907399 (Refugee) \[2023\] AATA 4102, an applicant from Papua New Guinea feared threats from the husband of a former partner following an extramarital relationship. 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 Subclass 866 refusal ART guide explains the review process, and the protection visa refusals page explains the time limits.

How My Migration Lawyers handles Protection Visa Honour-Based Violence claims

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

In a Protection Visa Honour-Based Violence matter, the work usually involves:

• Identifying the legal basis. The firm assesses whether the claim should be advanced under the refugee test, complementary protection, or both, and which Convention reason applies.
• Presenting the applicant's own account. The account is taken in detail and with sensitivity, with an interpreter where needed. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• State protection. Country information about the response of police, courts and officials to honour-based violence is identified and presented, together with the applicant's own experience of seeking help.
• Relocation. The reach of the family and community is documented, and the practical barriers to living elsewhere are explained.
• Confidentiality. Where the applicant is on a family application, the firm advises on options for separate interviews and correspondence.
• 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 that your family or community will harm you because of what they see as dishonour, the claim needs to be presented carefully from the start. Book a consultation with My Migration Lawyers online, or call 1300 040 300.