Protection visa for LGBTI Filipinos in Australia

A protection visa for LGBTI Filipinos in Australia is available where a lesbian, gay, bisexual, transgender or intersex person from the Philippines faces serious harm at home that the Philippine authorities will not prevent. The claim is made through the Subclass 866 protection visa. It is assessed under the same refugee and complementary protection tests that apply to every applicant.

Claims for a protection visa for LGBTI Filipinos in Australia are different from claims from countries that jail people for same-sex relationships. The Philippines does not do that. This article explains honestly what that means, which claims can still succeed, and what evidence the Department expects to see.

Can LGBTI Filipinos get a protection visa in Australia?

Yes. An LGBTI Filipino who is in Australia can be granted a Subclass 866 protection visa if they have a well-founded fear of persecution because of their sexual orientation, gender identity or intersex status, or if they face a real risk of significant harm on return.

Sexual orientation and gender identity are recognised as characteristics that can define a particular social group under section 5L of the Migration Act. A claim for a protection visa for LGBTI Filipinos in Australia usually relies on that ground. The applicant must also show that the harm is serious, that it involves systematic and discriminatory conduct, and that effective protection is not available anywhere in the Philippines.

The LGBTI protection visa page explains how these claims are handled, and the guide to LGBTI protection visas in Australia sets out what must be proven in any LGBTI claim. The definitive guide to the Subclass 866 protection visa covers the general criteria.

Who applies for a protection visa for LGBTI Filipinos in Australia?

The people who apply for a protection visa for LGBTI Filipinos in Australia are usually already in Australia on a visitor, student, work or partner visa. Many did not plan to seek protection. They came to study, work or visit family, and only later felt safe enough to face what would happen if they returned.

Common situations include:

• a gay man whose family discovered his relationship and has threatened to kill him if he comes home;
• a lesbian woman whose parents have arranged a marriage to a man and will not accept her refusal;
• a transgender woman who was beaten in her home province and refused help by local officials;
• a bisexual person being blackmailed by someone who has private photographs or messages; and
• a person from the Bangsamoro region who fears both family and community if their identity becomes known.

These are examples, not a checklist. Whether any of them supports a protection visa for LGBTI Filipinos in Australia depends on the evidence of harm, the response of the authorities and the realistic options for living elsewhere in the Philippines. The visa a person currently holds does not prevent an application. The guide to applying for a Subclass 866 on a tourist visa explains how that works for visitors.

Is being gay illegal in the Philippines?

No. Consensual same-sex relations are not a crime under national law in the Philippines. That is the starting point for any protection visa for LGBTI Filipinos in Australia, and the Department will begin its assessment there.

The legal position is mixed in other respects:

• No national anti-discrimination law. DFAT reports that no national legislation protects LGBTI people from discrimination, although proposals have been discussed in Congress for more than 20 years.
• Some local ordinances. DFAT reports that a small number of municipalities have passed their own anti-discrimination ordinances. Protection therefore depends on where a person lives.
• The Safe Spaces Act. Republic Act 11313 of 2019 treats homophobic and transphobic slurs as a form of gender-based sexual harassment in streets and public spaces.
• No legal gender recognition. DFAT reports that a transgender person cannot change the sex recorded on their birth certificate.
• No recognition of same-sex relationships. Same-sex marriage is not recognised in the Philippines.

Public attitudes are also mixed. DFAT reports that young people are generally more accepting, but that discrimination against LGBTI people does exist. It reports that same-sex relationships are taboo in the Muslim-majority Bangsamoro Autonomous Region in Muslim Mindanao, and that LGBTI people living there would likely hide their identity or move away.

What does this mean for a protection visa for LGBTI Filipinos in Australia?

It means that a protection visa for LGBTI Filipinos in Australia almost always turns on harm from people other than the state, and on whether the state would protect the applicant from that harm. The absence of a criminal law does not end the claim, but it changes what must be proven.

DFAT assesses that LGBTI people in most of the Philippines face a low level of official and societal discrimination on a day-to-day basis. It assesses a moderate risk of societal and official discrimination and violence for LGBTI people in the Bangsamoro region, and a moderate risk of violence and discrimination for transgender people in all parts of the country. The Department will rely on those assessments. An applicant must show why their own situation is more dangerous than the general picture.

Claims that can succeed usually involve one or more of the following: serious violence or threats from family members, forced marriage, sexual violence, threats from community or religious groups, blackmail, or police who have refused to help or have taken part in the abuse. An applicant from the Bangsamoro region, or a transgender applicant, may start from a stronger position on the country information.

LGBTI claims are not the only claims that arise from the Philippines. Claims based on red-tagging, the anti-drug campaign, conflict in Mindanao, clan feuds and loan sharks are covered in a separate article on protection visas for Filipino nationals.

Who harms LGBTI people in the Philippines?

In a claim for a protection visa for LGBTI Filipinos in Australia, the harm usually comes from the applicant's own family, the wider community, religious groups or people who exploit a person's fear of being exposed. Harm from police and officials can also be decisive where it occurs.

Family

DFAT reports that some families disown LGBTI relatives or force them to undergo conversion therapy. Other family harm raised in claims includes beatings, confinement in the home, threats to kill, and pressure to marry a person of the opposite sex. In a claim for a protection visa for LGBTI Filipinos in Australia, family harm is often the core of the claim. The applicant should describe each incident, who was involved, what was said, and what happened afterwards. The Department's guidelines recognise that lesbian women may face gender-related harm from non-state actors, including so-called corrective rape, intimate partner violence, forced marriage and honour crimes by family members.

Community and religious pressure

Religion plays a strong role in family and community life in the Philippines. In some communities, a person known to be gay, lesbian or transgender may face exclusion, public humiliation or violence. In the Bangsamoro region, DFAT's own assessment is that the risk of violence is higher.

Blackmail, extortion and online entrapment

Some LGBTI people are targeted by people who threaten to reveal their sexual orientation or gender identity to family, employers or the community unless they pay. Others are lured through dating applications and then robbed, assaulted or filmed. Where the applicant has experienced this, messages, screenshots and any report to police are important evidence.

Police and officials

Where the police have refused to record a complaint, mocked the applicant, or taken part in the abuse, that is direct evidence that state protection is not effective. DFAT reports systemic corruption and impunity within the Philippine National Police. That evidence supports an argument that a particular LGBTI applicant could not rely on the police. In a claim for a protection visa for LGBTI Filipinos in Australia, an explanation of why the applicant did not go to the police, where that is the case, is just as important as evidence of a complaint that went nowhere.

Can the Department say an LGBTI Filipino should stay discreet?

No. Under section 5J(3) of the Migration Act, the Department cannot refuse a refugee claim on the basis that the applicant could avoid persecution by altering or concealing their sexual orientation, gender identity or intersex status.

Section 5J(3) generally says a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid it. But it does not apply to a modification that would conflict with a characteristic fundamental to identity or conscience, or conceal an innate or immutable characteristic. The section lists modifications a person can never be required to make. Altering or concealing sexual orientation, gender identity or intersex status is expressly on that list.

This matters in a claim for a protection visa for LGBTI Filipinos in Australia. A decision maker cannot find that an applicant would be safe if they simply kept their relationship secret, dressed differently or stayed away from LGBTI spaces. If the applicant would in fact conceal their identity out of fear of harm, the reason for that concealment must be examined. A claim for a protection visa for LGBTI Filipinos in Australia should say plainly how the applicant would live if returned, and what they fear would happen if their identity became known. The Department's guidelines also direct officers not to assume that sexual orientation or gender identity is a lifestyle choice, or that a bisexual person can choose to be attracted to one sex to avoid harm.

State protection and relocation for LGBTI Filipinos

State protection and relocation decide more claims for a protection visa for LGBTI Filipinos in Australia than any other issue. Because the harm usually comes from families and communities, the Department will ask whether the police would protect the applicant and whether the applicant could live safely elsewhere in the Philippines.

For the refugee test, section 5J(2) and section 5LA provide that there is no well-founded fear if effective protection is available. The state must be willing and able to protect the person, with an appropriate criminal law, a reasonably effective police force and an impartial judicial system. Laws on paper are not enough. The Safe Spaces Act and local ordinances are relevant, but the question is whether they would protect this applicant in practice.

Relocation is the harder issue. DFAT reports that Filipinos can and do relocate freely within the country, although relocation can be limited by a lack of family connections or money. The Department may find that an applicant from a rural province could live safely in Metro Manila, Cebu or another city with a visible LGBTI community. An application for a protection visa for LGBTI Filipinos in Australia should explain why that is not so for this applicant. Relevant points include a family with reach across the country, the applicant's dependence on family for work or housing, a lack of documents matching a transgender person's identity, and the risk of being found through relatives or social media.

For complementary protection, section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable, and section 36(2B)(b) asks whether protection from an authority would remove the real risk. The two tests are applied separately.

Evidence that answers the relocation question

Evidence that answers the relocation question in a claim for a protection visa for LGBTI Filipinos in Australia is specific to the applicant, not general. Useful material includes evidence of the family's connections in other regions, messages showing that relatives have tried to locate the applicant, evidence of the applicant's work history and dependence on family, and country information about the treatment of LGBTI people and transgender people in the cities the Department is likely to suggest. The protection visa documents checklist lists the kinds of documents that can support a claim, and the Subclass 866 protection visa page explains the visa itself.

When complementary protection applies

Complementary protection applies to a protection visa for LGBTI Filipinos in Australia where the applicant faces a real risk of significant harm, even if the refugee test is not met. Under section 36(2A), significant harm is limited to arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

A real risk of serious violence from family members, including sexual violence or a credible threat to kill, can fall within that list. For a protection visa for LGBTI Filipinos in Australia, complementary protection is often argued alongside the refugee claim from the start. The risk must be personal. Section 36(2B)(c) excludes a risk faced by the population generally. The guide to complementary protection for LGBTI applicants and the page on complementary protection explain this route in more detail.

How do LGBTI Filipinos prove their sexual orientation or gender identity?

LGBTI Filipinos prove their sexual orientation or gender identity mainly through their own detailed and consistent account of who they are and what they have experienced. The Department's guidelines accept that corroborating evidence is often limited, and that these claims will often rely largely on the applicant's own account.

The Department's guidelines direct officers not to rely on stereotypes, and state that it is not appropriate to ask applicants for details of their intimate sexual activity. Instead, officers are guided to explore experiences such as realising one's sexual orientation or gender identity, a sense of difference or shame, concealment, telling others, opposition from family or community, and attempts to conform. A person who has been married, has children, or has never had a same-sex relationship may still be LGBTI.

Useful evidence for a protection visa for LGBTI Filipinos in Australia can include:

• the applicant's own written account, reviewed and corrected by the applicant before it is lodged;
• statements from partners, friends or community members in Australia or the Philippines;
• messages, photographs and social media history, where they exist;
• evidence of threats, violence or police complaints in the Philippines; and
• country information about the treatment of LGBTI people in the applicant's home region.

The guides to the protection visa statement of claims and protection visa evidence explain how the account and the evidence fit together.

Late disclosure

Many LGBTI applicants do not raise their sexual orientation or gender identity at first. The Department's guidelines state that officers should not be surprised if the issue is raised late, and should explore why it was raised when it was. Shame, fear or a lack of language to describe one's identity can all explain late disclosure in a claim for a protection visa for LGBTI Filipinos in Australia. Any delay in applying should also be explained. The article on delaying a Subclass 866 application discusses how delay is assessed.

Identity expressed or relationships formed in Australia

Under section 5J(6), conduct in Australia is disregarded in a refugee claim unless the applicant satisfies the Minister that it was engaged in otherwise than to strengthen the claim. An LGBTI Filipino who came out, joined LGBTI groups or began a same-sex relationship in Australia should be ready to show that this reflects who they are, not an attempt to build a claim. Section 5J(6) does not apply to complementary protection.

Transgender and intersex Filipino applicants

Transgender and intersex applicants for a protection visa for LGBTI Filipinos in Australia may face a higher risk than some lesbian, gay or bisexual applicants, because their identity is often more visible and harder to conceal. DFAT assesses that transgender people face a moderate risk of violence and discrimination in all parts of the Philippines.

The inability to change the sex recorded on a birth certificate is relevant. Identity documents that do not match a person's gender can expose them to questioning, humiliation and exclusion whenever they apply for work, housing or services, and in any encounter with police. That affects both the risk of harm and whether relocation is practicable. A transgender applicant seeking a protection visa for LGBTI Filipinos in Australia should explain how their documents have affected their life in the Philippines.

Intersex applicants may face harm connected with their physical characteristics, including family pressure or stigma. Country information about intersex people in the Philippines is limited, so the applicant's own account and any medical evidence carry particular weight.

Tribunal decisions involving Filipino applicants

Published Tribunal decisions show how claims involving family harm from the Philippines, including a claim for a protection visa for LGBTI Filipinos in Australia, are examined on review. The following decisions were remitted. A remittal sends the matter back to the Department for reconsideration. It is not a visa grant.

• 1719348 (Refugee) [2023] AATA 3046. A lesbian applicant abused by a relative, where the applicant's depression and anxiety were considered.
• 1720879 (Refugee) [2023] AATA 2157. A claim involving repeated violence by the applicant's father, where state protection and relocation were assessed.

Each decision turned on its own facts. What they show is that family harm, the applicant's personal circumstances, state protection and relocation are all examined in detail.

The interview and interpreters

Many applicants for a protection visa for LGBTI Filipinos in Australia are invited to an interview with a Department officer. The guidelines recognise that the interview may be the first time the applicant has discussed their sexuality or gender identity in detail. An applicant can ask for an interpreter of a particular gender, and interpreters are bound by a code of ethics that includes confidentiality. The pages on the protection visa interview and protection visa interview questions explain what to expect.

If an application for a protection visa for LGBTI Filipinos in Australia is refused, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit is short and strictly applied, and runs from the date of notification. The page on protection visa refusals explains the process.

How My Migration Lawyers acts in a protection visa for LGBTI Filipinos in Australia

My Migration Lawyers acts for LGBTI Filipinos in Australia who fear returning to the Philippines. The firm deals with complex protection matters and acts in many Subclass 866 matters of this exact type, where the claim depends on family harm, state protection and relocation rather than a criminal law. It is capable of handling a protection visa for LGBTI Filipinos in Australia from the first consultation to decision, and at review if the visa is refused.

The work includes:

• Assessing the claim. The firm assesses whether the facts fit the refugee test, complementary protection, or both.
• The client's own account. The account is taken with an interpreter where needed, in a respectful and private setting. It is the client's own evidence, which the client reviews and corrects before it is lodged, and the client decides which claims are advanced.
• Country information. DFAT and other country information is analysed and, where needed, answered with more specific evidence about the client's region and circumstances.
• State protection and relocation. The two issues that decide most LGBTI Filipino claims are addressed directly.
• Form 866 and supporting documents. The application and evidence are prepared and lodged in the form the law requires.
• Interview preparation. The client is prepared for the Department interview.
• Requests from the Department. Responses to section 56 and section 57 requests are prepared within time.
• Review. If the visa is refused, the firm assesses and lodges an application for Administrative Review Tribunal review within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The protection visa lawyers page explains how the firm acts in Subclass 866 matters, and the LGBT protection visa FAQs answer common questions.

If you are an LGBTI Filipino in Australia and you fear returning to the Philippines, book a consultation with My Migration Lawyers online, or call 1300 040 300.