Protection Visa Claims by Journalists and Media Workers

Protection visa claims by journalists and media workers arise when a person's work in reporting, editing, filming or publishing has made them a target in their home country. The danger may come from the government or its security forces. It may also come from criminal groups, extremists or militias that the state cannot or will not control. Where that danger is serious and there is nowhere safe to go, Australia's protection obligations can be engaged.

Protection visa claims by journalists and media workers are not a separate visa category. They are assessed under the same two tests as every Subclass 866 application: the refugee test in section 36(2)(a) of the Migration Act 1958 and the complementary protection test in section 36(2)(aa). This article explains how those tests apply to people who work in the media, and the points on which these claims are usually decided.

Can journalists and media workers get a protection visa in Australia?

Yes. A journalist or media worker can be granted a Subclass 866 protection visa where they have a well-founded fear of persecution because of the political opinion expressed in, or imputed from, their work, or where they face a real risk of significant harm on return, and the authorities of their country cannot provide effective protection.

In protection visa claims by journalists and media workers, the occupation itself is not the claim. Working as a journalist in a country with a poor press freedom record does not, on its own, establish that the applicant personally faces a real chance of persecution. The claim is the harm the applicant fears, who would inflict it, and why. A reporter who has been arrested, charged, threatened or attacked because of particular stories is in a very different position from a reporter who fears the general climate.

Protection visa claims by journalists and media workers are strongest when the applicant can show three things clearly:

• What they published or produced. The stories, broadcasts, photographs or posts that drew attention, with dates.
• Who reacted and how. The authorities, a political party, a security agency, a criminal group or an armed group, and the threats, arrests or attacks that followed.
• Why the danger continues. Why the people who targeted them would still do so on return, and why nobody would stop them.

The definitive guide to the Subclass 866 protection visa sets out the general criteria, and the guide to protection visa eligibility explains what to check before applying. The Subclass 866 protection visa page explains who can apply from within Australia and how family members are included.

Who counts as a journalist or media worker for a protection claim?

Any person whose work in gathering, producing or publishing information has exposed them to harm can bring a claim of this kind. There is no requirement to hold a press card, to work for a major outlet or to have formal training.

Protection visa claims by journalists and media workers commonly involve:

• reporters and correspondents, including freelancers;
• editors, sub-editors and producers who decide what is published;
• photographers, camera operators and video journalists;
• fixers, drivers and interpreters who work alongside foreign media;
• bloggers, podcasters and citizen journalists who publish online; and
• technical, administrative and distribution staff of outlets that have been targeted as a whole.

The question is not the job title. The question is whether the person's connection with the reporting is known, or is likely to become known, to the people who would harm them. A camera operator may never write a word but may be identified in footage, named by colleagues or listed in an outlet's staff records. A fixer may be seen by an armed group as a collaborator with foreign reporters. In protection visa claims by journalists and media workers, the role the applicant actually played, and how visible it was, must be explained precisely.

Where the applicant disclosed confidential information from inside a government agency or a company, the claim is closer to a whistleblower claim, which is covered in separate guidance.

Which Convention ground applies to protection visa claims by journalists and media workers?

Political opinion is the Convention ground that applies to most protection visa claims by journalists and media workers. 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), the Convention reason must be the essential and significant reason for the persecution.

Actual political opinion

Some journalists hold and express political views openly. Opinion columns, investigations into corruption, election coverage and reporting on human rights abuses may express the journalist's own view that those in power should be held to account. Where that opinion is the reason for the harm, the ground is made out.

Imputed political opinion

Reporting does not need to be openly political. A decision maker must also consider political opinion that is imputed to the applicant. A government, a security agency or an armed group may treat a factual report about a protest, a disaster response, a military operation or a local official as an act of opposition. A journalist who covered a story neutrally may still be seen as an enemy. What matters is the opinion the persecutor attributes to the applicant, not the opinion the applicant actually holds. Protection visa claims by journalists and media workers often fail when this point is not argued, because the decision maker accepts that the reporting was neutral and stops there.

Religion

Where reporting is treated as blasphemy or an insult to religion, religion may also be a Convention ground, and the guidance on religious persecution applies.

Protection visa claims by journalists and media workers should identify every ground that genuinely applies. Where the harm comes from a criminal group whose motive is mixed or unclear, the claim should also be framed under complementary protection from the start.

What harm counts in protection visa claims by journalists and media workers?

In protection visa claims by journalists and media workers, the harm feared must amount to serious harm for a refugee claim, or significant harm for a complementary protection claim. Harassment, criticism or the loss of one job will not usually be enough on its own.

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, significant physical ill-treatment, and significant economic hardship, denial of access to basic services or denial of the capacity to earn a livelihood of any kind, where that threatens the person's capacity to subsist. Under section 5J(4)(c), persecution must also involve systematic and discriminatory conduct.

Harm from the state

Where the state is the persecutor, the harm often includes:

• arrest and detention without charge, or detention on charges connected with reporting;
• prosecution for criminal defamation, false news, insulting officials, sedition or offences under anti-terror or national security laws;
• physical ill-treatment or torture in custody;
• surveillance of the journalist, their sources and their family;
• confiscation of equipment, cancellation of accreditation and travel bans; and
• closure of the outlet, blocking of its website and pressure on employers to dismiss staff.

Where the state itself is the source of harm, effective state protection is not available from that state. The question in these protection visa claims by journalists and media workers is usually whether the harm is serious enough and whether it would happen again on return.

Harm from non-state actors

In many countries, the greatest danger to reporters comes from cartels, organised criminal groups, extremist groups, militias or powerful local figures. Journalists who report on drug trafficking, corruption, land seizures, extremist violence or local politics may be threatened, attacked or killed. In protection visa claims by journalists and media workers where the harm comes from non-state actors, the claim turns on whether the state is able and willing to protect the applicant, and whether the applicant could safely relocate.

Is prosecution under a media law persecution?

No, not in itself. In protection visa claims by journalists and media workers, prosecution under a law of general application is generally not persecution. It may become persecution where the law itself is discriminatory, where it is enforced selectively against critics, where the punishment is disproportionate, or where the prosecution is a pretext to silence reporting.

Many countries have defamation, public order, cybercrime or national security laws that apply to everyone. A decision maker may find that a journalist charged under such a law faces legitimate prosecution rather than persecution. That finding should be tested. The application should address:

• whether the law is vague or broad enough to criminalise ordinary reporting;
• whether it is used mainly against journalists, opposition figures or critics;
• whether the applicant was charged when others who published the same material were not;
• whether the penalty is far greater than the conduct would warrant; and
• whether the process is fair, including access to a lawyer and an impartial court.

Country information about how the law is used in practice is central to this point. A charge sheet shows that a prosecution exists. It does not show why the prosecution was brought. The protection visa documents checklist lists the court and police records that are usually gathered.

Can the Department say a journalist should stop reporting?

No, not where stopping would mean altering or concealing the journalist's true political beliefs. Whether a person can be expected to stop working as a journalist altogether is a separate question, and it is argued on the facts.

Section 5J(3) of the Migration Act says that 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. Section 5J(3)(c) also lists modifications a person can never be required to make. They include altering political beliefs or concealing true political beliefs.

This matters in protection visa claims by journalists and media workers because a decision maker may suggest that the applicant could return and change careers, or report only on sport and entertainment. The answer should be argued directly. Where the applicant's journalism expresses political opinion, giving it up to stay safe is concealing a political belief. Journalism of that kind is also, for many people, fundamental to conscience. But the point is not settled for every case. It depends on what the applicant reported, why they did it and what they would do on return. Protection visa claims by journalists and media workers that are silent on this issue invite a finding that the applicant could avoid harm by staying quiet.

It is also necessary to ask whether stopping would in fact make the applicant safe. A journalist who stopped reporting may still be identified and targeted for past work.

Effective state protection and relocation for journalists

Effective state protection and relocation decide most protection visa claims by journalists and media workers where the harm comes from non-state actors.

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 that the state, or a party or organisation that controls the state or a substantial part of its territory, must be willing and able to offer protection. The protection must be accessible and durable, and must consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. The Department's guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye. Where attacks on journalists are rarely investigated or prosecuted, that is strong evidence that protection is not effective. In protection visa claims by journalists and media workers, that record should be shown with country information, not simply asserted.

Relocation is tested differently under each framework. 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, to relocate to an area where there would be no real risk. The guidelines direct officers to consider the motivation and ability of a non-state agent to pursue the applicant. A journalist whose name and face are known, and whose work is published online, may be found wherever they live, and may be unable to work anywhere without becoming visible again.

When complementary protection applies

Complementary protection applies to protection visa claims by journalists and media workers where the applicant does not meet the refugee test but faces a real risk of significant harm as a necessary and foreseeable consequence of removal. Section 36(2A) sets out a closed list: 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 a criminal group for reporting on its operations, or tortured in detention, can fall within that list.

Under section 36(2B)(c), there is no real risk if the risk is faced by the population generally and not by the applicant personally. A general statement that violence is widespread is not enough to apply that exception. A journalist who belongs to a class of people who are targeted is personally at risk. The page on complementary protection explains the test, and the guide to Form 866 explains where each part of the claim is set out in the application.

Are family members of journalists at risk?

Yes. Family members of journalists are often threatened, detained or harmed to pressure or punish the journalist, and their own risk should be assessed separately.

Relatives may be questioned about where the journalist is, have their homes searched, lose their jobs or be detained as leverage. They may also have the journalist's political opinion imputed to them. A spouse or dependent child may be included in the application as a member of the family unit, and each adult may also have claims of their own.

Section 5K limits how claims based on membership of a family work. Where a person claims persecution as a member of a family, any persecution of a family member that was not for a Convention reason is disregarded. In protection visa claims by journalists and media workers, this rarely defeats the relatives' claims, because the harm to the journalist is usually for reasons of actual or imputed political opinion. The limit applies where the family is targeted for a reason unrelated to the reporting, such as a debt or a private dispute.

Can reporting from Australia support a protection visa claim?

Yes, but in a refugee claim it is disregarded unless the applicant shows it was not done for the purpose of strengthening the claim.

Many journalists keep writing, broadcasting or posting after they arrive. Section 5J(6) of the Migration Act provides that, in deciding whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is disregarded unless the person satisfies the Minister that it was engaged in otherwise than for the purpose of strengthening the claim to be a refugee.

In protection visa claims by journalists and media workers, continued reporting from Australia is often genuine. A journalist with a long record of the same work at home is well placed to show that continuing it here is part of their profession and conscience, not a tactic. By contrast, a first article published shortly before the application, on a topic the applicant never covered before, will be examined closely. Section 5J(6) applies to the refugee test only. It does not appear in the complementary protection criterion, so a real risk arising from work in Australia can still be assessed there.

Political activity in Australia more generally, such as protests and community organising, is covered in separate guidance.

Evidence for protection visa claims by journalists and media workers

The evidence for protection visa claims by journalists and media workers must prove two things: that the applicant did the work claimed, and that the work exposed them to a real risk of harm.

Evidence of the work may include:

• bylines, published articles, broadcasts and photographs, with dates and copies;
• a press card, accreditation or membership of a journalists' association;
• employment contracts, payment records or letters from editors and employers; and
• written statements from colleagues who worked on the same stories.

Evidence of the risk may include:

• threatening messages, calls or posts, preserved with their date and source;
• summonses, arrest warrants, charge sheets, court records or detention records;
• medical records or photographs of injuries;
• evidence that the outlet was closed, raided or blocked; and
• press freedom reports and country information on the treatment of journalists.

Documents should be kept in their original form where possible, with translations. Published work can be taken down, so copies made while it is still online are valuable. The applicant's written statement ties the evidence together. It should explain what they reported, when the reaction began, what each threat or incident was, and why the danger would continue on return. The guide to the protection visa statement of claims explains how that account is structured, and the guide to evidence in a protection visa application explains what supports it.

How is a journalist's credibility tested at interview?

A journalist's credibility is tested at interview through detailed questions about their work, their outlet and each incident of harm. Decision makers expect a working journalist to describe their stories, editors, sources, publication dates and working methods with ease.

Questions may cover which stories caused the problem, who the editor was, how the outlet was funded, how the applicant was paid, how the threats arrived, and why the applicant was not harmed earlier or later. Inconsistencies between the statement, the documents and the oral evidence are a common reason for adverse findings. Protection visa claims by journalists and media workers should therefore be prepared on the basis that every date and every name will be tested. The pages on the protection visa interview and protection visa interview questions explain what to expect.

What if protection visa claims by journalists and media workers 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.

Refusals in protection visa claims by journalists and media workers usually rest on findings that the applicant's role or profile was lower than claimed, that the threats are not credible, that a prosecution is legitimate, that the state would protect the applicant, or that the applicant could avoid harm by stopping work or relocating. Each finding can be tested at review with better evidence and clearer argument. The page on protection visa refusals and the Subclass 866 refusal ART guide explain the process.

How My Migration Lawyers acts in protection visa claims by journalists and media workers

My Migration Lawyers acts in protection visa claims by journalists and media workers who are already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims of this kind, where the claim rests on actual or imputed political opinion and the case turns on the applicant's profile, the treatment of critics and the availability of state protection. It is capable of handling these matters from the first consultation to decision, and at review before the Administrative Review Tribunal if the visa has been refused.

The work includes:

• Mapping the applicant's work. The stories, roles and outlets are set out in date order and matched to the threats and incidents that followed.
• Imputed political opinion. Where the reporting was not openly political, the claim explains why the persecutor treats it as opposition.
• Prosecution or persecution. Where charges have been laid, country information is used to show how the law is enforced against journalists in practice.
• Section 5J(3). The claim addresses directly whether the applicant could be expected to stop reporting, and why that is not a reasonable step.
• The applicant's own account. The statement is the applicant's own evidence, taken with an interpreter where needed, which they review and correct before it is lodged. The applicant decides which claims are advanced.
• Interview and review. The applicant is prepared for detailed questioning about their work, 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 your reporting has made it unsafe for you to go home, book a consultation with My Migration Lawyers online, or call 1300 040 300.