Protection Visa Claims Based on Honour-Based Violence

Protection visa claims based on honour-based violence are made by people who fear being harmed or killed by their own family or community because they are seen to have brought shame on them. The act may be a relationship, a refusal to marry, a divorce, a pregnancy, a change of religion, a rumour or simply living independently. The harm is intended to restore the family's reputation.

This article is about how protection visa claims based on honour-based violence are made in practice. It explains the steps from the first decision to apply, through the Form 866, the written statement, the evidence and the interview, to what happens if the claim is refused. The legal test itself is summarised only briefly here, because it is dealt with in separate guidance.

What must protection visa claims based on honour-based violence prove?

Protection visa claims based on honour-based violence must prove a well-founded fear of persecution for a Convention reason, or a real risk of significant harm, and that effective state protection and safe relocation are not available. That is the same test that applies to every Subclass 866 claim.

In brief, the family is usually the persecutor. The Convention ground is usually membership of a particular social group, such as women in a particular community who are seen to have transgressed its social norms, though religion and political opinion can also apply. The claim usually turns on whether police would protect the applicant from their own family, and whether the family could find the applicant anywhere in the country. Complementary protection under section 36(2)(aa) must also be considered, because a real risk of being killed or seriously assaulted is significant harm whether or not a Convention reason is found.

Everything that follows is about proving those points. 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.

Who makes protection visa claims based on honour-based violence?

Protection visa claims based on honour-based violence are made by women and men, and sometimes by whole families. The common feature is that the family or community believes the applicant's conduct has damaged its standing, and has decided that the damage must be repaired.

Applicants commonly include:

• women and girls who have had a relationship, become pregnant, refused a marriage, sought a divorce or left a husband;
• men who have had a relationship with a woman from a family that objects, or who have helped a woman escape;
• people whose sexual orientation or gender identity has become known, whose claim should also be put as an LGBTI claim;
• people who have changed religion or left religion, where the family treats that as shameful; and
• relatives of the person accused, such as a mother or sibling who helped them, or who refused to take part in punishing them.

The identity of the applicant affects how the claim is framed. It also affects the evidence. A man who helped a woman escape will need to show why her family's anger is directed at him. A mother who protected her daughter will need to show why she is also at risk.

Before lodging: why the first application matters most

The first application is the one that matters in protection visa claims based on honour-based violence. A person who has been refused a protection visa while in Australia generally cannot lodge another one while they remain in Australia. Section 48A of the Migration Act imposes that bar. The only route around it is a request for ministerial intervention, which is discretionary and uncommon.

That has three practical consequences.

• All claims must be included. A claim left out of the first application may never be assessed. If the applicant also fears harm for another reason, such as their religion or sexual orientation, it must be raised at the start.
• The account must be complete and accurate. An account that is later corrected or expanded will be compared with the original, and differences will be tested.
• Timing matters, but so does readiness. Delay in applying can be raised against the applicant. But lodging a rushed application with a thin account is often worse. The balance should be decided with advice.

Before lodging, the applicant should also check their current visa and any conditions on it. Protection visa claims based on honour-based violence are usually lodged by people who hold a visitor or student visa, or whose visa has expired. The guides to applying for a Subclass 866 visa on a tourist visa and as an international student explain the position for those applicants.

Preparing the Form 866

The Form 866 is the application itself. In protection visa claims based on honour-based violence, the form is where the Department first sees the applicant's identity, family, travel and visa history, and the summary of their claims.

The parts that matter most are:

• Personal and family details. These must be complete and must match the applicant's passport and earlier visa applications. Family members named here may be relevant to the claim, including those who are making the threats.
• Travel and visa history. Previous visa applications, including any statement about marital status, relationships or reasons for travel, will be compared with the claim.
• The claims for protection. The form asks why the applicant left, what they fear, who they fear, and why the authorities would not protect them. Short answers here should point to a full written statement attached to the application.

Protection visa claims based on honour-based violence should never rely on short answers in the form alone. The guide to Form 866 explains each part of the form.

The written statement in protection visa claims based on honour-based violence

The written statement is the most important document in protection visa claims based on honour-based violence. It is the applicant's own account, in their own words, and it becomes the baseline against which everything else is tested.

A strong statement usually covers the following, in order.

The applicant and their family

It explains who the applicant is, where they lived, and who is in their family. It explains who holds authority in the family, such as a father, older brothers, uncles or a tribal or community leader, and how decisions are made.

The act the family treats as dishonour

It explains exactly what the applicant did, or is believed to have done, that the family treats as shameful. It explains when the family found out, and how. If the applicant denies the conduct the family alleges, it says so, and explains why the family still believes it.

The threat

It explains what the family has said or done since, who said it, when and how. It records specific words where the applicant remembers them. It explains any violence that has already occurred.

Why the threat is real

It explains why the applicant believes the family will carry out the threat. That may include what has happened to others in the family or community who were seen to have brought shame, the family's standing and resources, or the fact that the threats have continued after the applicant left.

Why police and relocation would not help

It explains whether the applicant sought help from police or others and what happened, or why they did not. It explains why the family could find the applicant elsewhere in the country, and why the applicant could not live safely alone.

The guide to the protection visa statement of claims explains how statements are structured more generally.

Evidence of threats in protection visa claims based on honour-based violence

Evidence of threats is often available in protection visa claims based on honour-based violence, because families frequently make threats by message, voice note or social media. That evidence must be handled carefully to be useful.

• Keep it in its original form. Screenshots are helpful, but the original messages should also be kept on the device, with the sender's number or account visible and the date shown.
• Do not edit or crop. An edited image invites doubt. Keep the full conversation, not only the threatening line.
• Translate it. Messages in another language should be translated accurately before they are relied on. The translation should be accompanied by the original.
• Explain it. Each item should be referred to in the statement, with an explanation of who sent it, what it means in context, and why it is a real threat.
• Record what is not written. Many threats are made in person or by phone. Those should be described in the statement with as much detail as the applicant can recall.

Other useful evidence includes statements from relatives or friends who know of the threats, evidence of any past violence such as medical records or police reports, and news or country reports about honour-based violence in the applicant's community or region. Evidence of what has happened to others is often the most persuasive evidence in protection visa claims based on honour-based violence. If a cousin, aunt or neighbour was killed, injured or forced to marry after a similar accusation, and the same family or community was responsible, that pattern shows that the threat to the applicant is not an empty one. The statement should describe each incident, how the applicant knows of it, and any news report, death record or other document that confirms it. The guide to protection visa evidence explains how supporting evidence is assessed.

Statements from family members and witnesses

Statements from other people can strengthen protection visa claims based on honour-based violence, but they must be approached carefully. The people who know most about the threat are often members of the same family.

A useful statement comes from a person with first-hand knowledge. That may be a sibling, cousin or friend who heard the threats, saw the violence, or was told of the family's decision. The statement should give the witness's own account, in their own words, with specific details. A statement that simply repeats the applicant's account adds little.

Obtaining a statement must not put the witness at risk. A relative who is known to have helped the applicant may themselves face harm. Where a statement cannot safely be obtained, the applicant should explain why in their own account. The risk to the potential witness can itself support the claim.

Country information that supports protection visa claims based on honour-based violence

Country information is essential in protection visa claims based on honour-based violence. It shows the Department that what the applicant describes is consistent with what is known to happen in their country, community and region.

The most useful country information addresses:

• how often honour-based violence occurs in the applicant's community, and who is usually targeted;
• whether perpetrators are prosecuted, and whether sentences are reduced or waived where the family forgives the offender;
• how police respond when a person reports threats from their own family;
• whether shelters exist, and whether a person can stay in them safely and for how long; and
• whether a single person, particularly a woman, can rent housing and find work alone.

General statements that a country has human rights problems add little. Specific information about the applicant's situation adds a great deal. The Department also conducts its own research and must take relevant country information into account.

Keeping the applicant safe while the claim is prepared

Safety matters throughout protection visa claims based on honour-based violence. Family members may be in Australia, or may have contacts here. Some practical steps reduce risk.

• The applicant can ask that information about the claim not be shared with family members, and can nominate a contact address and email that the family does not know.
• The applicant can raise concerns about an interpreter who may know their family or community, and ask for an interpreter of a particular gender.
• Where there is immediate danger in Australia, the applicant should contact police. Threats made in Australia can also be evidence in the claim.

The interview in protection visa claims based on honour-based violence

The interview is where protection visa claims based on honour-based violence are tested in person. The officer will ask the applicant to explain the claim, and will compare the answers with the Form 866, the written statement and the applicant's earlier visa applications.

The Department's processing guidelines state that where gender-related claims have been included, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant. They also recognise that women who have experienced sexual violence may fear reprisals from family for disclosing it, and may be unwilling to disclose, or may downplay, what happened.

Preparation should focus on:

• knowing the written statement well, without memorising it word for word;
• being able to explain dates and sequences, and saying clearly when something is not remembered;
• explaining why the applicant believes the family will act, not only that they have threatened to; and
• answering questions about police and relocation directly.

Some things should be avoided at interview in protection visa claims based on honour-based violence. The applicant should not guess at a date or detail they do not remember, add events that are not in the statement without explaining why they were left out, or exaggerate the threat. Each of these can damage the parts of the account that are true. If the applicant realises during the interview that something in the statement is wrong, it is better to say so and explain than to repeat an error.

The pages on the protection visa interview and interview questions explain what to expect. Where the Department asks for more information after the interview, the guide to responding to a section 56 request explains how to answer.

Complementary protection in protection visa claims based on honour-based violence

Complementary protection must always be argued in protection visa claims based on honour-based violence. A decision maker who finds that the family's motive is personal, rather than for a Convention reason, must still consider whether there is a real risk of 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. A real risk of being killed by relatives is a real risk of arbitrary deprivation of life. Serious beatings, confinement or sexual violence may amount to cruel or inhuman treatment.

The tests on state protection and relocation are applied differently for complementary protection. Section 36(2B)(b) asks whether the applicant could obtain protection from an authority such that there would not be a real risk of significant harm. Section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable. The Department's Complementary Protection Guidelines state that findings made on the refugee test cannot simply be adopted for complementary protection. The written submissions should therefore address both frameworks separately. The page on complementary protection explains the test.

Why protection visa claims based on honour-based violence are refused

Protection visa claims based on honour-based violence are usually refused for one or more of five reasons.

• Credibility. The officer does not accept that the events happened, often because of inconsistencies between the form, the statement, the interview and earlier visa applications.
• No Convention reason. The officer treats the threat as a private family dispute. This should be answered by identifying the particular social group clearly and by arguing complementary protection.
• State protection. The officer finds that police would protect the applicant. This should be answered with evidence of how police respond in practice, not only what the law says.
• Relocation. The officer finds that the applicant could live safely elsewhere. This should be answered with evidence of the family's reach and of the applicant's practical ability to live alone.
• Delay. The officer treats a delay in applying as inconsistent with a genuine fear. This should be explained in the statement. The guide to delayed Subclass 866 applications explains how delay is assessed.

Review at the Administrative Review Tribunal

If protection visa claims based on honour-based violence are refused, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied. It runs from the date the applicant is notified of the refusal. Missing it can end the right to review.

The Tribunal considers the matter afresh and can take new evidence. The review should respond to each specific reason given by the Department. New evidence should explain and support the original account, not change it.

Published decisions show that these claims are examined closely on review. In 2010235 (Refugee) [2022] AATA 602, the Tribunal remitted the claim of an educated woman from Pakistan who was returning from the West and feared violence from her extended family. A remittal sends the matter back to the Department for reconsideration. It is not a visa grant, and each decision turns on its own facts.

The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the review process.

How My Migration Lawyers acts in protection visa claims based on honour-based violence

My Migration Lawyers acts in protection visa claims based on honour-based violence for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims of this exact type, where the threat comes from the applicant's own family and the case turns on credibility, 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 follows the stages set out in this article:

• Before lodging. The firm checks the applicant's visa position, identifies every claim that should be included, and advises on timing.
• The Form 866 and statement. The applicant's account is taken in private, 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.
• Evidence and country information. Threatening messages are preserved, translated and connected to the statement, and current country information is identified for the applicant's community and region.
• The interview. The applicant is prepared for the questions that are likely to be asked, and appropriate interview arrangements are requested.
• Review. A refused claim is assessed for review within time, and each reason for refusal is answered.

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 your family has threatened you because of something they see as dishonour, book a consultation with My Migration Lawyers online, or call 1300 040 300.