Protection Visa Membership of a Particular Social Group

Protection visa membership of a particular social group is one of the five grounds on which a person can be recognised as a refugee in Australia. The others are race, religion, nationality and political opinion. A claim based on protection visa membership of a particular social group succeeds only if the applicant fears persecution because they belong, or are believed to belong, to a group that meets the definition in the Migration Act 1958.

This article explains how the particular social group ground works in Australian law. It covers the statutory definition in sections 5K and 5L, the groups most often recognised, the rule against defining a group by its persecution, family-based claims, the link between membership and harm, and the evidence needed. It is written for people preparing a Subclass 866 application whose claim does not rest on race, religion, nationality or political opinion, and for those refused because their group was not accepted. The visa's requirements as a whole are set out on the Subclass 866 protection visa page.

What is protection visa membership of a particular social group?

Protection visa membership of a particular social group is a Convention reason for persecution under section 5J(1)(a) of the Migration Act. A person has a well-founded fear of persecution if they fear being persecuted for one or more of five reasons, and membership of a particular social group is one of them.

Before 2014, the meaning of the ground was developed by the courts. Since the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, the Migration Act has codified the ground in two sections:

• section 5K, which deals with membership of a particular social group consisting of the person's family; and
• section 5L, which deals with membership of any other particular social group.

The Department of Home Affairs' Protection Visa Processing Guidelines frame the question as whether there is a particular social group. If the claimed group consists of a family, the decision maker asks whether a family member has experienced persecution for a Convention reason. If it is not a family, the decision maker asks whether the group has the characteristics listed in section 5L.

Protection visa membership of a particular social group is often misunderstood as a catch-all for anyone with a sympathetic story. It is not. It has specific requirements, and many refused claims fail because the group described does not meet them.

Who relies on protection visa membership of a particular social group?

Protection visa membership of a particular social group is relied on by applicants whose fear of harm arises from who they are, or how they are seen, rather than from their race, religion, nationality or political opinion. In practice, it is the ground most often used for claims based on sexual orientation, gender identity and intersex status, which are explained in the guide to LGBTI protection visas in Australia, and for many gender-related claims by women.

It is also used where a person belongs to a group that is marginalised in their society for reasons of status or history, such as caste, disability, a past occupation or family connection. In each case, the question is not whether the person has suffered, but whether the reason for the harm is their membership of a group that meets the statutory definition.

A single claim may rely on more than one ground. A woman who has converted to another religion and left her marriage, for example, may rely on religion and on protection visa membership of a particular social group at the same time. The Department's guidelines direct decision makers to consider all Convention reasons that arise on the facts, including those the applicant has not expressly named.

The section 5L test

Section 5L sets out when a person is to be treated as a member of a particular social group other than their family. In summary, it requires that:

• a characteristic is shared by each member of the group;
• the person shares, or is perceived as sharing, the characteristic;
• the characteristic is an innate or immutable characteristic, or is so fundamental to a member's 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.

An applicant relying on protection visa membership of a particular social group should be able to answer each of these elements from their own account and the country information. Each element does work in a protection visa membership of a particular social group claim.

A shared characteristic

The group must be defined by a characteristic that every member shares. The characteristic may be something a person is, such as their sexual orientation, sex or caste. It may be something they have done that cannot be undone, such as having been a member of a particular organisation in the past. It may be a status, such as being a divorced woman or a widow.

Actual or perceived membership

The applicant does not need to prove that they actually have the characteristic, if the persecutor believes they do. A person who is perceived to be gay, for example, may be persecuted as a member of that group whether or not they identify as gay. The Department's guidelines on sexual orientation and gender identity expressly refer to imputed claims.

Innate, fundamental or distinguishing

The characteristic must meet at least one of three descriptions. An innate or immutable characteristic is one a person cannot change, such as sex, ethnicity or past experience. A characteristic fundamental to identity or conscience is one a person should not be required to give up, such as sexual orientation or deeply held beliefs. A characteristic that distinguishes the group from society is one that makes the group recognisable as a distinct group in that society.

Not a fear of persecution

The characteristic must not simply be a fear of persecution. This is the rule against circularity, explained below.

Why a group cannot be defined by the persecution it fears

A group defined only by the persecution its members fear is not a particular social group. This rule is now expressed in section 5L, and it was well established in the case law before codification.

For example, "people who are threatened by a gang" is not a particular social group, because the only thing the members share is the threat. The group exists only because of the harm. The same is true of "people who owe money to a loan shark" if the debt is the only link.

The rule does not mean that persecution is irrelevant to identifying a group. Persecution of a group may help show that the group is recognised as distinct in the society concerned. What the rule prevents is a group whose defining characteristic is the persecution itself.

This is one of the most common reasons a protection visa membership of a particular social group claim fails. Applicants sometimes describe their group by what has happened to them, rather than by who they are. The drafting of the claim must identify the characteristic that exists independently of the harm. Where no such characteristic exists, the claim should be assessed under complementary protection, which does not require a Convention reason.

Groups commonly recognised for protection visa membership of a particular social group

Particular social groups are identified on the facts of each case and the society concerned. The following are examples of groups that are commonly argued and frequently accepted in Australian decisions, depending on the country and the evidence:

• LGBTI people. The Department's guidelines state that there is broad acknowledgement that LGBTIQ+ people are members of a particular social group, and that claims related to sexual orientation and gender identity will commonly be assessed on this ground. The LGBTI protection visa page explains these claims.
• Women in particular circumstances. Groups such as women who have left a marriage, divorced women, women who refuse a forced marriage, or women without male protection may be recognised in societies where those characteristics expose women to harm. The guide to divorced women as a particular social group is an example of this analysis.
• People with disability or mental illness. In some societies, people with a particular disability or illness are a distinct and stigmatised group. The guide to intellectual disability and mental health as a particular social group discusses a Tribunal decision on this issue.
• Caste. Membership of a caste is innate and may distinguish a group from society.
• Former members of an occupation or organisation. A past status, such as having been a police officer or a member of a particular group, cannot be undone and may be the basis of a group.

These are illustrations, not a list of automatically accepted groups. A group that is recognised in one country may not be recognised in another. The analysis always depends on the society in the applicant's home country, supported by country information.

How decision makers assess a protection visa membership of a particular social group claim

Decision makers usually assess a protection visa membership of a particular social group claim in a set order. Understanding the order helps an applicant present the claim in a way that answers each question.

• Identify the group. What is the characteristic that defines the group, and is it described accurately and at the right level of generality?
• Test the group against section 5L or 5K. Is the characteristic shared, innate or fundamental or distinguishing, and not a fear of persecution? If it is a family, what was the reason for the original persecution?
• Decide membership. Is the applicant a member, or perceived to be one? This is where credibility is usually tested.
• Decide the reason for harm. Is membership the essential and significant reason why the persecutor would harm the applicant?
• Apply the rest of the refugee test. Is the harm serious harm involving systematic and discriminatory conduct? Is there a real chance of it in all areas of the country? Is effective protection unavailable?

A refusal can occur at any step. The decision record will show where the claim failed, and a review should target that step. An applicant who is refused at the first step because the group was poorly defined may have a much stronger case once the group is correctly identified.

Protection visa membership of a particular social group based on family

Section 5K deals with a protection visa membership of a particular social group claim where the group is the applicant's family. Section 5K requires the decision maker to disregard any fear of persecution, or any persecution, that any other member of the family has experienced, where the reason for it is not a Convention reason. It also requires the decision maker to disregard any fear of persecution the applicant has that would not exist if the family member's persecution had been disregarded.

The effect is significant. A family claim is only as strong as the reason the family is targeted in the first place.

• Where the first family member is persecuted for a Convention reason, the relatives may also have a family-based claim. For example, the relatives of a political activist who are targeted because of the activist's political opinion may have a claim.
• Where the first family member is targeted for a non-Convention reason, section 5K prevents the family from relying on the family as a particular social group. For example, where a family member is targeted in a purely personal or criminal dispute, such as a blood feud over land or a debt, the relatives generally cannot rely on the family ground.

The second situation is where many people are refused under the refugee criterion. Their claim may still engage complementary protection, which does not require a Convention reason.

The link between membership and persecution

Protection visa membership of a particular social group must be the essential and significant reason for the persecution feared. Section 5J(4)(a) provides that the Convention reason must be the essential and significant reason for the persecution. It need not be the only reason, but it must be more than incidental.

The question is asked from the perspective of the persecutor. Why would they harm the applicant? A woman who is attacked by a stranger in a random robbery is not attacked because she is a member of a group. A woman who is attacked by her family because she has left her husband and brought shame on them may be attacked because she is a divorced woman in a society that punishes that status.

The persecution must also involve serious harm and systematic and discriminatory conduct, and there must be a real chance of it occurring in the future. A person can be a member of a recognised particular social group and still fail the refugee test if these elements are not met.

Can I be required to hide my membership?

No, in most protection visa membership of a particular social group claims, an applicant cannot be required to hide the characteristic that defines the group. Section 5J(3) provides 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. However, the exceptions in section 5J(3) mean a person is not required to modify behaviour that would conflict with a characteristic fundamental to their identity or conscience, or conceal an innate or immutable characteristic, or do any of the specific things listed in section 5J(3)(c).

The Department's guidelines apply this directly to LGBTI claims. They state that LGBTI claims are likely to fall within the exceptions where modification would conflict with a fundamental characteristic, conceal an innate or immutable characteristic, or require the person to alter or conceal their sexual orientation, gender identity or intersex status. They also state that people who are discreet because of fear cannot be treated as choosing privacy.

The position is different under complementary protection. The High Court held in DQU16 that the principle against requiring concealment does not apply to complementary protection. This is one reason why a particular social group claim, where it is available, can be stronger than a complementary protection claim on the same facts.

Evidence for a protection visa membership of a particular social group claim

The evidence for a protection visa membership of a particular social group claim must prove two things: that the group exists in the applicant's society, and that the applicant is, or is perceived to be, a member of it.

Evidence that the group exists and is treated as distinct usually comes from country information. Reports on the treatment of LGBTI people, divorced women, people with disability or a particular caste show whether the society recognises the group and how it treats its members. Under ministerial directions made under section 499, decision makers must take into account relevant country information assessments prepared by the Department of Foreign Affairs and Trade.

Evidence of membership depends on the group. It may include:

• the applicant's own detailed account, which is often the main evidence, particularly for sexual orientation and gender identity;
• documents of status, such as divorce papers, medical records or caste certificates;
• statements from people who know the applicant, such as partners, family members or community organisations; and
• evidence of perception, showing that the persecutor believes the applicant belongs to the group.

The Department's guidelines state that applicants should never be asked to provide documentary or photographic evidence of intimate acts. They also recognise that an applicant's personal account may be the only source of evidence. The guides to the protection visa statement of claims and to evidence in a protection visa application explain how to present both.

Common mistakes in protection visa membership of a particular social group claims

Many protection visa membership of a particular social group claims fail for reasons that could have been avoided:

• Defining the group by the harm. "People threatened by X" is not a group.
• Defining the group too broadly. A group such as "poor people" or "people who oppose crime" is unlikely to be accepted without evidence that it is a distinct group in that society.
• Defining the group too narrowly. A group so specific that it describes only the applicant may not reflect a characteristic shared by others.
• Ignoring perception. Where the applicant's actual membership is disputed, the claim should explain why the persecutor believes they are a member.
• Ignoring the reason for harm. The claim must explain why membership, and not some other reason, is why the applicant would be harmed.
• Relying on family without the Convention reason. A family claim must identify the Convention reason for the original persecution.

Published Tribunal decisions show the importance of careful analysis. In 1813143 (Refugee) \[2023\] AATA 4556, a review involving a divorced woman with a psychiatric illness who faced family rejection and gender-related stigma, the Tribunal remitted the matter to the Department. A remittal returns the application to the Department for reconsideration. It is not a grant, and it does not mean that every similar claim will succeed.

Protection visa membership of a particular social group after a refusal

If the Department refuses a protection visa because it does not accept the group, or does not accept that the applicant is a member, the Administrative Review Tribunal can review the decision on its merits. The time limit to apply for review is short and strictly applied. The review is often the first opportunity to reformulate the group correctly, supported by country information. The protection visa refusals page and the guide to appealing a protection visa refusal to the ART explain the process.

How My Migration Lawyers handles protection visa membership of a particular social group claims

My Migration Lawyers analyses protection visa membership of a particular social group in every Subclass 866 matter where the applicant's claim may rest on that ground. The firm deals with complex protection cases, acts in many protection visa matters of this exact type, including LGBTI claims, claims by women and claims involving disability, caste and family, and is capable of handling them at the Department and at the Administrative Review Tribunal.

The firm's work includes identifying and wording the group so that it meets section 5L, testing it against the rule on circularity and the family rule in section 5K, gathering country information showing how the group is treated, and addressing concealment and complementary protection in the alternative. The statement is the applicant's own evidence. The applicant reviews and corrects it, and the applicant decides which claims are advanced.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang and acts for protection visa applicants across Australia, with consultations by video. More about the firm's protection work is on the protection visa lawyers page.

If your protection claim depends on protection visa membership of a particular social group, or your application was refused because the group was not accepted, have the claim assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.