Protection Visa Claims Based on Political Activity in Australia

Protection visa claims based on political activity in Australia arise when a person living here has protested, joined an opposition group, posted criticism online, spoken to the media or organised against the government of their home country, and now fears what that government will do to them if they return.

Protection visa claims based on political activity in Australia are sometimes called sur place claims, because the risk arose after the person left home. They are assessed under the same two tests as every Subclass 866 claim: the refugee test in section 36(2)(a) and the complementary protection test in section 36(2)(aa) of the Migration Act 1958. What makes them different is one provision, section 5J(6), which changes how conduct in Australia is treated in the refugee test. This article explains that provision, what it does not do, and the evidence protection visa claims based on political activity in Australia need.

Claims based on a religious conversion or a relationship formed in Australia are also sur place claims, but they are not the subject of this article. Claims by journalists are dealt with separately.

What are protection visa claims based on political activity in Australia?

Protection visa claims based on political activity in Australia are claims where the applicant fears persecution or significant harm because of political conduct they have engaged in since arriving in Australia. The conduct is usually one or more of the following:

• Protests and demonstrations. Attending rallies outside an embassy or consulate, at Parliament House or in public places, particularly where the event was filmed or photographed.
• Membership of a diaspora party or movement. Joining the Australian branch of an opposition party, a banned movement or an exile organisation, paying dues, holding a position or attending meetings.
• Online activity. Posts, videos, livestreams, comments and shared material criticising the home government, its leaders, its army or its security services.
• Organising. Arranging events, fundraising for an opposition cause, running a social media page or recruiting others.
• Media and petitions. Speaking to journalists, being named in a news report, signing or circulating a petition, or giving evidence to an inquiry.

In protection visa claims based on political activity in Australia, the applicant may have been politically active before leaving home, or may have become active only in Australia. Both situations can support a claim, but the law treats them very differently, as the sections below explain. The definitive guide to the Subclass 866 protection visa sets out the general criteria that apply to every claim.

Does political activity in Australia count for a refugee claim?

Yes, but only if the applicant satisfies the decision maker that the activity was engaged in otherwise than for the purpose of strengthening the claim to be a refugee. Section 5J(6) of the Migration Act says 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 that requirement is met.

This is the central rule in protection visa claims based on political activity in Australia. It places the burden on the applicant. The Department does not have to prove that the activity was self-serving. The applicant must satisfy the decision maker that it was not.

Many sources still refer to section 91R(3) of the Migration Act as the provision that deals with conduct in Australia. That section was repealed in 2014. The current provision is section 5J(6), and it applies to the refugee definition in section 5H and the well-founded fear test in section 5J. Any advice or template that still cites section 91R(3) is out of date, and a submission that relies on it will not be taken seriously. Protection visa claims based on political activity in Australia must be argued under section 5J(6) as it now reads.

Section 5J(6) does not say that political activity in Australia is irrelevant. It says the activity is disregarded unless the applicant shows the right purpose. Where the applicant shows that the activity came from genuine political belief, it is taken into account in the ordinary way. The decision maker then asks whether there is a real chance of persecution for reasons of political opinion if the person returns, under section 5J(1).

What does "otherwise than for the purpose of strengthening the claim" mean?

It means the applicant must show that the activity was done for a reason other than building a protection case, such as genuine political conviction, loyalty to a cause or a family history of opposition. In protection visa claims based on political activity in Australia, this is usually the question on which the refugee part of the claim is won or lost.

A decision maker will look at the whole history of the applicant's political life. The factors that are usually examined include:

• Continuity with beliefs held before departure. Activity in Australia that continues political involvement at home is far easier to accept as genuine. Evidence of membership, arrests, threats or activism before the applicant left is often the strongest answer to section 5J(6).
• Timing. Activity that begins shortly before a protection application is lodged, or after a refusal, will be examined closely. Timing alone does not decide the question, but it must be explained.
• Depth of involvement. A person who holds office in a diaspora organisation, attends meetings over years and knows the party's history and platform is in a different position from a person who attended one protest and posted one photograph.
• Knowledge and conviction. The applicant will be asked why they hold their views, what the party stands for, who its leaders are and what they hope to achieve. Genuine belief is usually shown in the detail of the answers.
• Personal risk accepted. Activity that exposes the applicant or their family to real danger, and continues despite that, may point to conviction rather than strategy.

For protection visa claims based on political activity in Australia, it is not enough to say that the applicant has always opposed the government. The claim should show the path from the applicant's life at home to their activity here, in their own words, with the evidence that supports each step. The guide to protection visa eligibility explains how the political opinion ground fits within the wider criteria, and the Subclass 866 protection visa page explains who can apply.

A person who arrived as a student or visitor and became politically active here is not excluded from making protection visa claims based on political activity in Australia. The guides for international students and for applicants who hold a tourist visa explain the practical points for each group.

Does section 5J(6) apply to complementary protection?

No. Section 5J(6) applies only to the question of whether a person has a well-founded fear of persecution under the refugee test. It does not appear in the complementary protection criterion in section 36(2)(aa).

This is the point most often missed in protection visa claims based on political activity in Australia. Even where the decision maker finds that the activity was engaged in to strengthen the claim, the activity has still happened. If the home government knows about it, and would harm the applicant because of it, that risk is real. Under the structure of the Act, it must be assessed under complementary protection.

Complementary protection asks whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm. 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. Detention and torture of returned opponents, or a real risk of being killed by security forces, can fall within that list.

That does not mean self-serving activity will lead to a visa. Protection visa claims based on political activity in Australia still need proof of a real risk, not just proof of the activity. A decision maker assessing complementary protection will still ask hard questions:

• whether the home government is aware of the activity, or is likely to become aware of it;
• whether the government would regard the activity as significant, given the applicant's profile;
• how the government treats people with a similar profile when they return; and
• whether the qualifications in section 36(2B) apply, including whether the risk is faced by the population generally rather than the applicant personally.

A single low-profile appearance at a large protest, never identified by the home state, may not create a real risk. A person whose face appears in widely shared videos, whose name is published, or who has been denounced by state media is in a different position. The page on complementary protection explains the test in more detail.

In protection visa claims based on political activity in Australia, the application should argue both frameworks from the start. The refugee argument addresses section 5J(6). The complementary protection argument addresses the risk created by the activity, whatever the motive. Leaving the second argument until after a refusal is a mistake. The guide to Form 866 explains where each part of the claim is set out in the application.

Imputed political opinion: why the applicant's motive may not matter to the home state

Imputed political opinion is an opinion the persecutor attributes to the applicant, whether or not the applicant actually holds it. A government that detains a returnee because it believes they are an opponent is acting for reasons of political opinion, even if the person joined a protest for other reasons.

This principle is important in protection visa claims based on political activity in Australia because authoritarian governments rarely ask why a person protested. They see a photograph outside their embassy, a name on a membership list or a post criticising the leadership, and they treat the person as an enemy of the state. The Department's processing guidelines recognise that political opinion includes opinions imputed to the applicant.

For the refugee test, section 5J(6) still operates. If the conduct in Australia is disregarded, the imputed opinion that flows from that conduct is also disregarded for that test. That is why imputed political opinion is usually argued most directly under complementary protection in protection visa claims based on political activity in Australia, where the question is simply what the home state would do.

Imputed opinion can also arise from facts that are not conduct in Australia at all, and protection visa claims based on political activity in Australia should not overlook them. A family history of opposition, a past arrest, or membership of a group the government associates with dissent may lead the state to attribute political views to the applicant. Those facts are assessed in the ordinary way and should be set out fully.

Can the Department say the applicant should stop political activity on return?

No, not if the applicant's political beliefs are genuine. Section 5J(3) of the Migration Act says 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. But section 5J(3)(c) lists modifications a person can never be required to make, and they include altering political beliefs or concealing true political beliefs.

In protection visa claims based on political activity in Australia, this means a decision maker cannot find that a genuine opponent of the government would be safe if they stayed silent, stopped posting and avoided politics on return. The Act does not permit that reasoning for a person whose beliefs are real. The same principle applies whether the beliefs were first expressed at home or first expressed in Australia, provided they are genuinely held.

The protection depends on the beliefs being true. Where a decision maker finds that the applicant does not genuinely hold the political views they express, the decision maker may find that the person would not engage in political activity on return, and that the reason is not concealment of true beliefs. The way that finding interacts with section 5J(3) has not been tested in every situation, and it should be addressed carefully in the claim.

How do home governments monitor diaspora activists and returnees?

Many governments monitor their citizens abroad through embassy staff, informers within diaspora communities, surveillance of social media, and questioning at the border on return. Evidence of this monitoring is central to protection visa claims based on political activity in Australia, because the risk depends on the government knowing about the activity.

Country information may show that a government:

• photographs or films protests outside its embassies and consulates;
• monitors opposition pages, hashtags and online groups;
• questions returnees at airports about their activities overseas;
• pressures or threatens the families of activists who remain at home; or
• publishes lists of people it regards as traitors or foreign agents.

The decision maker must assess the applicant's personal profile against that information. In protection visa claims based on political activity in Australia, general reports that a government is repressive are not enough. The evidence should show how that government treats people who have done what the applicant has done, and whether people with a similar profile have been questioned, detained or harmed on return. The guide to protection visa evidence explains how country information supports a claim.

Evidence for protection visa claims based on political activity in Australia

The evidence for protection visa claims based on political activity in Australia must prove three things: that the activity happened, that it reflects the applicant's genuine political beliefs, and that the home government knows or is likely to learn about it. Many applications prove the first well and the other two poorly. Each item should be linked in the applicant's statement to the event or claim it supports, so the decision maker can see why it matters.

Evidence that the activity happened may include:

• photographs and videos of protests, with the date, location and event clearly identified, and the applicant visible;
• screenshots of posts, videos and comments, preserved with the date, the account name and the public reach of the post;
• membership cards, receipts for dues, meeting minutes and records of any position held;
• letters from the diaspora organisation confirming the applicant's role and length of involvement; and
• media coverage that names or shows the applicant.

Evidence that the beliefs are genuine may include records of political involvement before the applicant left home, letters from party members who knew the applicant there, and a detailed personal account of how the applicant's views developed.

Evidence that the home government knows about the activity may include messages or visits to family members at home, threats received online, state media reports, summonses, and country information about monitoring of diaspora activists and the treatment of returnees.

A letter from an organisation that simply states the applicant is a member and would be at risk carries little weight. A letter that explains when the applicant joined, what they have done, what position they hold and how the author knows these facts is far more useful. The guides to the protection visa statement of claims and the protection visa documents checklist explain how that evidence is organised.

Does timing or delay affect protection visa claims based on political activity in Australia?

Yes. Timing is one of the first things a decision maker examines in protection visa claims based on political activity in Australia, both in deciding whether the activity was genuine under section 5J(6) and in deciding whether the applicant's fear is credible.

Activity that begins after a visa refusal, or in the weeks before a protection application, will be examined closely. So will a long delay between the start of the activity and the protection application. Neither is fatal. A person may have become active after events at home, such as a coup, an election or the arrest of a relative. A person may have delayed applying because they did not know protection was available, or hoped conditions would improve. Those explanations should be given plainly and supported where possible. The article on delaying a Subclass 866 application explains how delay is assessed.

How is political activity tested at interview?

At interview, the decision maker tests the applicant's knowledge of the cause, the organisation and the events they describe, and looks for detail that only a genuine participant would know. In protection visa claims based on political activity in Australia, the interview is often where the section 5J(6) question is decided.

An applicant should expect questions about the party's history, leaders and platform, the protests attended and what happened at each, the content of their posts, who else was involved, and why they took the risks they did. Answers that are vague, rehearsed or inconsistent with the written claim will damage credibility. Answers that are specific, personal and consistent will support it. The pages on the protection visa interview and protection visa interview questions explain how to prepare.

What if protection visa claims based on political activity in Australia 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, and it runs from the date the applicant is notified of the decision.

Refusals in protection visa claims based on political activity in Australia usually rest on one of four findings: that the activity was engaged in to strengthen the claim, that the applicant's beliefs are not genuine, that the home government is not aware of the activity, or that the applicant's profile is too low to attract harm. A refusal that applies section 5J(6) but does not assess the risk under complementary protection should be examined closely. Continued political activity after a refusal will face the same section 5J(6) scrutiny at review. 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 political activity in Australia

My Migration Lawyers acts in protection visa claims based on political activity in Australia for people who fear what their home government will do to them because of what they have said and done here. The firm deals with complex protection matters and acts in many Subclass 866 claims based on political opinion, including claims where the risk arises from activity after leaving home and the case turns on section 5J(6), home-state awareness and complementary protection. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work on these claims includes:

• Section 5J(6). The history of the applicant's political involvement, before and after arrival, is set out so that the genuineness of the activity can be assessed properly.
• The applicant's own account. The statement is the applicant's own evidence, taken with an interpreter where needed, which the applicant reviews and corrects before it is lodged. The applicant decides which claims are advanced.
• Both frameworks. The claim is presented under the refugee test and under complementary protection, so that the risk created by the activity is assessed whatever finding is made on motive.
• Evidence of the activity. Photographs, videos, posts and organisational records are gathered, dated and organised so that each part of the account can be checked.
• Home-state awareness. Current country information on monitoring of diaspora activists and the treatment of returnees is used to address whether the government knows about the applicant.
• Interview and review. The applicant is prepared for interview, 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 fear returning home because of your political activity in Australia, book a consultation with My Migration Lawyers online, or call 1300 040 300.