Protection Visa Claims Based on Mental Illness and Access to Treatment

Protection visa claims based on mental illness and access to treatment are among the most misunderstood claims in the Subclass 866 system. Many people believe that if they cannot get proper mental health care in their home country, Australia must protect them. That belief is wrong, and an application built on it is likely to be refused.

Protection visa claims based on mental illness and access to treatment can still succeed. But they succeed for a different reason. The question is not whether the health system at home is good enough. The question is whether the person will be harmed, deliberately, because of their illness, and whether anyone in their country will protect them. This article explains the difference, and the evidence each kind of claim needs.

Can a lack of mental health treatment at home support a protection visa?

No. A lack of mental health treatment in the home country will not, on its own, support a Subclass 866 protection visa. The applicant must show a well-founded fear of persecution, or a real risk of significant harm, and in most cases that harm must be inflicted by someone intentionally.

This is the point on which protection visa claims based on mental illness and access to treatment most often fail. An applicant may have a serious and well-documented illness. They may be receiving good care in Australia. They may have strong evidence that the same care is not available at home, or is too expensive, or is many hours away. None of those facts, without more, satisfies either of the two tests in section 36 of the Migration Act 1958.

Much of the information online about protection visa claims based on mental illness and access to treatment suggests the opposite. It implies that a serious illness and a poor health system are enough. They are not, and an applicant who relies on that idea may lose the chance to present the claim that could actually succeed.

The two tests are the refugee test in section 36(2)(a) and the complementary protection test in section 36(2)(aa). The definitive guide to the Subclass 866 protection visa explains both. In protection visa claims based on mental illness and access to treatment, both tests are usually argued, and each is applied to the illness in a different way.

Why is poor treatment not enough in protection visa claims based on mental illness and access to treatment?

Poor treatment is not enough because Australia's protection obligations respond to harm that someone intends to cause, not to a lack of resources. The definitions in the Migration Act and the Department's guidelines make this clear.

Section 5(1) of the Migration Act defines torture, and cruel or inhuman treatment or punishment, as acts or omissions by which pain or suffering is intentionally inflicted. For torture, the pain or suffering must be severe. Degrading treatment or punishment must cause, and be intended to cause, extreme humiliation which is unreasonable. The Complementary Protection Guidelines, at 3.4.3.1, state that the person causing the harm must have an actual, subjective intention. Negligence is not enough.

The Complementary Protection Guidelines deal with medical claims directly at 3.4.7.2. They state that the absence or inadequacy of medical treatment in the country of return will generally not meet the definitions of cruel or inhuman treatment or degrading treatment. A claim based on inadequate treatment must establish an intention to inflict pain or suffering, or to cause extreme humiliation. The guidelines record Australia's position that obligations of this kind arise only in very exceptional circumstances, and list matters such as terminal illness, the availability of family or carers, and the level of suffering.

The practical result for protection visa claims based on mental illness and access to treatment is simple. A hospital that has no psychiatrist is not intending to harm anyone. A government that cannot afford mental health services is not intending to harm anyone. Those facts may be deeply unfair, but they do not engage the protection criteria on their own.

Applicants should hear this plainly before they lodge. The guide to protection visa eligibility sets out what must be checked first, and the honest assessment of the medical side of the claim belongs in that check.

When can protection visa claims based on mental illness and access to treatment succeed?

Protection visa claims based on mental illness and access to treatment can succeed where the illness makes the person a target, rather than simply a patient. The harm must come from people who intend it, or from a state that deliberately excludes or punishes people with mental illness.

There are five main ways these claims are properly framed:

• As a refugee claim. People with mental illness or psychosocial disability may form a particular social group, and the harm they face because of that membership may amount to persecution.
• As a complementary protection claim. Harm that is intentionally inflicted, including forced treatment without consent, may amount to significant harm.
• As part of a combined claim. Mental illness may increase the risk arising from another claim, such as gender, family violence, sexuality or political opinion.
• Through relocation. A serious illness and the absence of any support may mean that moving to another part of the country is not a reasonable option.
• Through the process itself. Mental illness affects how a person gives evidence, and a claim that does not explain this may be rejected on credibility grounds that are unfair.

Each of these is explained below. In every case, the illness is part of the evidence of risk. It is not the risk itself.

Protection visa claims based on mental illness and access to treatment are therefore built in a particular order. First, the harm is identified: who would cause it, what they would do and why. Second, the reason for the harm is linked to a Convention ground, or the harm is shown to be intentionally inflicted significant harm. Third, the evidence shows why the police, the courts and other authorities would not protect the person, and why moving elsewhere would not make them safe. Only then does the medical evidence do its proper work, which is to show how the illness makes the harm more likely, more serious or harder to escape.

Protection visa claims based on mental illness and access to treatment that follow this order are assessed on their real strengths. Claims that begin and end with the quality of hospitals at home are not. The Subclass 866 protection visa page explains the general criteria that every one of these claims must still meet.

Can people with mental illness be a particular social group?

Yes. People with mental illness or psychosocial disability can be a particular social group for the purposes of the refugee test, where the evidence shows that the characteristic is shared by the group and distinguishes it from the rest of society.

Section 5L of the Migration Act sets out when a person is a member of a particular social group other than their family. The characteristic must be shared by each member of the group. It must be innate or immutable, or so fundamental to a person's identity or conscience that they should not be forced to renounce it, or it must distinguish the group from society. The characteristic cannot be the fear of persecution itself.

A serious mental illness is often a lasting condition that a person cannot simply choose to change. In many communities, people with mental illness are also treated as a distinct and separate group. Both points can support the particular social group element in protection visa claims based on mental illness and access to treatment. How the group is defined matters, and it should be defined by reference to the evidence rather than in the broadest possible terms.

In protection visa claims based on mental illness and access to treatment, the group may be defined by the illness itself, by a psychosocial disability, or by the way the community sees the person. A community that treats people with mental illness as cursed, dangerous or shameful may single them out even where the medical diagnosis is not well understood. That perception can help show that the group is distinct from the rest of society. The Subclass 866 protection visa guide explains the five Convention grounds in general terms.

My Migration Lawyers has published a case note on this issue: [Intellectual Disability and Mental Health as a Particular Social Group in Indonesia: 2119786 \[2025\] ARTA 1834](https://www.mymigrationlawyers.com.au/blog/indonesia-disability-protection).

What harm counts as persecution for people with mental illness?

In protection visa claims based on mental illness and access to treatment, the harm must be serious harm under section 5J(5), and it must involve systematic and discriminatory conduct under section 5J(4). The illness must also be the essential and significant reason for the harm.

Section 5J(5) gives examples of serious harm. They include a threat to 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, where that threatens the person's capacity to subsist.

The harm most often raised in protection visa claims based on mental illness and access to treatment includes:

• being chained, shackled or locked in a room or outbuilding by family or community members;
• forced confinement in an institution or other place without any lawful process;
• physical abuse by relatives, neighbours or community leaders because of the illness;
• forced "healing" or exorcism practices carried out against the person's will;
• detention by police or other authorities because of behaviour connected with the illness;
• violence in the street or in the community, where the person is targeted because they are visibly unwell; and
• rejection by family and community to the point that the person is left destitute, without shelter, food or any means of living.

The last point needs care. Destitution alone is not persecution. But where a person is deliberately excluded from work, housing, family support and services because of their illness, and that exclusion threatens their capacity to subsist, it may fall within section 5J(5).

Protection visa claims based on mental illness and access to treatment should also address section 5J(4)(c). The conduct must be systematic and discriminatory. That means the person is selected for harm, not caught up in random events. Evidence that the harm follows a pattern, and that it is directed at people because of their illness, is what satisfies this element.

Is denial of treatment ever persecution?

Yes, in some cases. Denial of treatment or services can amount to persecution where it is deliberate and discriminatory, rather than the result of a poor or under-funded health system.

The distinction is between a system that fails everyone and a system that excludes a particular group. If treatment is simply unavailable in the country, that is the general position described above, and it will not usually support a claim. If treatment and basic services exist but are withheld from people with mental illness because of who they are, and the denial threatens the person's capacity to subsist, that may be serious harm for a Convention reason.

Protection visa claims based on mental illness and access to treatment that rely on this argument need specific evidence. Country information should show who is refused, by whom and why. General statements that mental health services are poor will not establish deliberate discrimination. The guide to permanent protection visa eligibility explains how the serious harm threshold is applied more generally.

Can a person be told to hide their mental illness?

No. Under section 5J(3)(c) of the Migration Act, a person cannot be required to conceal a physical, psychological or intellectual disability to avoid a real chance of persecution.

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 the protected list in section 5J(3)(c) expressly includes concealing a disability of this kind. A decision maker cannot find that the applicant would be safe if they kept their illness secret, avoided treatment or stayed out of sight. In protection visa claims based on mental illness and access to treatment, that finding would be an error of law, and it should be identified as one if it appears in a decision.

Complementary protection and forced treatment

In protection visa claims based on mental illness and access to treatment, complementary protection applies where the applicant faces a real risk of significant harm that is intentionally inflicted, even if the refugee test is not met.

Section 36(2A) sets out a closed list of significant harm: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Chaining, beatings, forced confinement and violent "healing" practices are carried out deliberately. They can fall within cruel or inhuman treatment or degrading treatment where they reach the level of severity the definitions require.

The Complementary Protection Guidelines also note that medical treatment forced on a person without their consent may need to be considered as significant harm. That is different from a lack of treatment. It is something done to the person, and the intention to do it is clear. The page on complementary protection explains the test and the closed list in more detail.

Section 36(2B)(c) also matters here. There is no real risk if the risk is faced by the population generally and not by the applicant personally. The Complementary Protection Guidelines, at 3.6.3, state that an applicant who belongs to a class of persons who would be targeted is personally at risk. A person with a visible mental illness who would be targeted because of it may meet that test. In protection visa claims based on mental illness and access to treatment, the point to prove is that the applicant would be singled out, not merely that the country is unsafe.

Mental illness combined with other claims

In many protection visa claims based on mental illness and access to treatment, the illness is not the only reason for the risk. It increases the danger arising from another claim, and it should be presented in that way.

A woman who fears family violence may be more exposed if she is unwell and has no independent means of support. A person who fears harm because of their sexuality or gender identity may be at greater risk if their illness makes it harder to hide from family or to find safe accommodation. A person who fears harm because of their political opinion may be more exposed in detention if their illness is not managed. In each case, the illness affects how serious the harm would be, how likely it is, and whether the person could protect themselves.

The Department must consider all of the applicant's claims together, and the claims must be put forward clearly for that to happen. My Migration Lawyers' pages on the LGBTI protection visa and religious persecution explain two claim types that are often combined with vulnerability of this kind.

Relocation and state protection for a person with serious mental illness

Relocation and state protection are often decisive in protection visa claims based on mental illness and access to treatment, because the harm usually comes from families and communities rather than the government.

For a refugee claim, section 5J(1)(c) requires that the real chance of persecution relates to all areas of the country. Section 5J(2) provides that there is no well-founded fear if effective protection measures are available. Under section 5LA, that requires a state, party or organisation that is willing and able to protect the person, through protection that is accessible and durable and that consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system. A person with a serious illness may be unable, in practice, to seek or use that protection, and the evidence should explain why.

For complementary protection, section 36(2B)(a) asks whether it would be reasonable for the applicant to relocate to an area where there would be no real risk. The Complementary Protection Guidelines, at 3.6.1, explain that reasonable means reasonable in the sense of practicable, and that this is a different test from the refugee test. Findings under one test cannot simply be adopted for the other. A person who is seriously unwell, has no family support and no means of finding work or housing in another city may not be able to relocate in any practicable sense.

How mental illness affects credibility and the interview

Mental illness can affect memory, concentration, the order in which events are recalled and the way a person answers questions. Protection visa claims based on mental illness and access to treatment must deal with this directly, because a decision maker who does not understand it may treat symptoms as dishonesty.

Adverse credibility findings are a common reason for refusal in Subclass 866 matters. An applicant with a serious illness may give different dates at different times, leave out important events, appear flat or distressed, or struggle to follow long questions. These can be features of the illness rather than signs that the account is untrue. In protection visa claims based on mental illness and access to treatment, the decision maker should be given the medical explanation before forming a view, so that the account is assessed fairly.

The treating psychiatrist or psychologist should explain, in writing, how the illness is likely to affect the person's evidence. That report should be before the Department before the interview. The applicant, or their representative, can also ask for the interview to be conducted in a way that takes account of the illness, such as with breaks or shorter sessions. The pages on the protection visa interview and interview preparation explain what the interview involves. Where illness caused a delay in lodging the application, the article on whether delaying a Subclass 866 application affects the claim is also relevant.

Evidence for protection visa claims based on mental illness and access to treatment

The evidence for protection visa claims based on mental illness and access to treatment must prove two things: the illness and its effects, and the harm the person would face because of it.

Medical and personal evidence may include:

• reports from the treating psychiatrist and psychologist setting out the diagnosis, history, current treatment, prognosis and effect on the person's ability to give evidence;
• general practitioner records showing the history of care in Australia;
• a history of medication and treatment, without which the reports may carry less weight;
• any medical records from the home country; and
• written statements from family members or others who have seen how the person has been treated.

Evidence of the risk may include country information on how people with mental illness are treated by families, communities, institutions and police, including any practices of chaining, confinement or forced treatment, and evidence of past harm to the applicant.

The applicant's own statement remains central. The guides to the protection visa statement of claims and protection visa evidence explain how the account and supporting evidence fit together.

What if the claim is 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 based on mental illness and access to treatment often rest on a finding that the claim is only about treatment, or that inconsistencies show the account is not credible. Both findings can be tested at review with better medical evidence and clearer legal argument. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process.

How My Migration Lawyers acts in protection visa claims based on mental illness and access to treatment

My Migration Lawyers acts in protection visa claims based on mental illness and access to treatment for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the applicant's vulnerability, and the way it affects their evidence, is central to the case. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work includes:

• An honest assessment first. The firm explains at the outset whether the claim is only about treatment, and whether there is a basis for a claim the law recognises.
• The applicant's own account. The statement is the applicant's own evidence, taken at a pace that suits their health, with an interpreter where needed. The applicant reviews and corrects it, and decides which claims are advanced.
• Medical evidence that answers the legal questions. The firm identifies what the treating psychiatrist and psychologist need to address, including the effect of the illness on testimony.
• Every relevant framework. The claim is presented under the particular social group ground, complementary protection and any combined claims the facts support.
• Relocation and state protection. Country information is used to address whether the person could, in practice, be safe elsewhere or obtain protection.
• Interview and review. The firm seeks appropriate interview arrangements, 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 you or a family member live with mental illness and fear what will happen on return, book a consultation with My Migration Lawyers online, or call 1300 040 300.