Protection Visa Political Opinion

A protection visa political opinion claim is a refugee claim based on a fear of persecution because of a person's political views. Political opinion is one of the five reasons listed in section 5J(1)(a) of the Migration Act 1958, alongside race, religion, nationality and membership of a particular social group. A protection visa political opinion claim can be based on views the applicant actually holds, or on views the persecutor attributes to them.

Political opinion claims are among the most common claims made in Subclass 866 applications. They are also among the most frequently refused, usually because the decision maker does not accept the applicant's profile, or does not accept that the applicant would be of continuing interest to the authorities. This article explains how a protection visa political opinion claim is assessed, what counts as a political opinion, how imputed political opinion works, the difference between prosecution and persecution, how activity in Australia is treated, and what evidence helps. For an overview of the visa itself, see the Subclass 866 protection visa page.

What is a protection visa political opinion claim?

A protection visa political opinion claim is a claim that the applicant has a well-founded fear of persecution for the reason of political opinion under section 5J(1)(a). To succeed, the applicant must satisfy every element of the refugee test. There must be a real chance of persecution involving serious harm and systematic and discriminatory conduct, political opinion must be the essential and significant reason for it, and the real chance must exist in all areas of the home country.

A protection visa political opinion claim therefore has two parts. The first is the political opinion itself, actual or imputed. The second is the link between that opinion and the harm feared. A person who holds strong political views but faces harm only for an unrelated reason does not have a political opinion claim. A person who faces harm because the persecutor believes they are an opponent does, even if they hold no strong views at all.

What counts as a political opinion?

A political opinion is any opinion on a matter in which the machinery of state, government or policy may be engaged. It is not limited to support for a political party or opposition to a government.

In Australian decisions, political opinion has been accepted to include views on:

• the legitimacy of the government or the ruling party;
• corruption, human rights abuses or electoral fraud;
• independence, autonomy or separatist movements;
• the role of religion in the state, or opposition to religious law;
• the status of women, including refusal to accept imposed gender roles;
• the conduct of armed groups, militias or criminal organisations that exercise power; and
• ethnic or regional politics, where political allegiance is tied to identity.

A protection visa political opinion claim does not require the applicant to have expressed the opinion publicly. It is enough that the persecutor knows of the opinion, or is likely to discover it, and would harm the applicant because of it.

The opinion also does not need to be sophisticated. An applicant may not be able to explain party policy or ideology in detail. Decision makers should assess political opinion by reference to the applicant's education, background and role. A low-level supporter who attended rallies and handed out leaflets is not expected to have the knowledge of a party official. A protection visa political opinion claim should not be judged against an unrealistic standard of political literacy.

How decision makers assess a protection visa political opinion claim

Decision makers usually assess a protection visa political opinion claim in a set order. Knowing the order helps the applicant give evidence that answers each question.

• What opinion is claimed? The decision maker identifies the opinion, actual or imputed, and how the applicant says it came to the persecutor's attention.
• Is the account accepted? The decision maker decides which parts of the applicant's evidence it accepts. This is usually tested at the protection visa interview.
• What harm is feared? The harm must be serious harm, such as a threat to life or liberty, significant physical ill-treatment, or detention.
• Why would the harm occur? Political opinion must be the essential and significant reason for the harm, not simply one of many background factors.
• Is there a real chance today? The decision maker assesses the applicant's current profile against current country information.
• Is there protection or safety elsewhere? The decision maker considers effective protection and relocation.

A refusal can occur at any step. The decision record will show which step failed, and a review should be directed at that step. The guide to protection visa eligibility explains how these elements fit within the refugee and complementary protection criteria.

Actual political opinion

An actual political opinion is one the applicant genuinely holds. Most protection visa political opinion claims begin with the applicant's own activities, such as membership of an opposition party, participation in protests, journalism, human rights work, trade union activity or online posts critical of the government.

The decision maker will usually test four things:

• Profile. What did the applicant do, for how long, and at what level?
• Knowledge. Is the applicant's knowledge consistent with the role they describe?
• Adverse attention. Did the authorities or another persecutor become aware of the applicant, and how did they respond?
• Continuing interest. Would the applicant still be of interest if returned today?

The last question is often decisive. A person who was briefly detained years ago, and who has no ongoing profile, may be found not to face a real chance of persecution now. A person with a continuing profile, a record with the authorities, or a known family connection may be at continuing risk.

Imputed political opinion in a protection visa political opinion claim

Imputed political opinion is an opinion the persecutor attributes to the applicant, whether or not the applicant actually holds it. A protection visa political opinion claim can succeed on imputed political opinion alone. The question is always how the persecutor sees the applicant.

Imputed political opinion commonly arises where:

• Family connection. A relative is a known activist, and the authorities treat the family as sharing their views.
• Occupation. The applicant worked as a journalist, lawyer, teacher, doctor or public servant in a way that brought them into conflict with those in power.
• Refusal to join or support. The applicant refused to join a militia, pay a levy, vote a certain way or report on neighbours, and the refusal was seen as disloyalty.
• Neutrality. In some conflicts, a refusal to take sides is itself treated as opposition.
• Ethnicity or region. Members of a particular ethnic group or region are presumed to support a separatist or opposition movement.
• Association. The applicant was seen with, helped or employed by people regarded as opponents.

The Department's Processing Guidelines direct decision makers to consider imputed and implied claims that arise on the facts, even if the applicant has not expressly raised them. Their examples include a person whose ethnicity may lead to an imputed separatist opinion, regardless of party membership. An applicant should still explain in their own statement why the persecutor would see them as an opponent. A protection visa political opinion claim that relies on imputation is stronger when it identifies the specific facts that would lead the persecutor to that view.

Prosecution or persecution?

Prosecution under a law that applies to everyone is not usually persecution. However, prosecution can amount to persecution in a protection visa political opinion claim where the law itself targets political expression, where a general law is applied selectively to political opponents, or where the punishment is disproportionate because of the person's political opinion.

Examples of where prosecution may be persecution include:

• charges for sedition, insulting the leader, spreading false news or similar offences that criminalise peaceful criticism;
• fabricated criminal charges brought against opposition figures;
• a real chance of torture or mistreatment in detention because the detainee is a political prisoner; and
• harsher sentences imposed on political opponents than on others charged with the same offence.

Decision makers often characterise an arrest warrant or charge as legitimate law enforcement. The claim should address why, in the applicant's case, it is not. Country information on the use of criminal law against political opponents is often the key evidence.

Can I be required to hide my political views?

No. Under section 5J(3), a person does not have a well-founded fear if they could take reasonable steps to modify their behaviour to avoid persecution. However, the exceptions in section 5J(3)(c) include a modification that would require a person to alter their political beliefs or conceal their true political beliefs. A protection visa political opinion claim cannot be refused on the basis that the applicant could stay quiet about views they genuinely hold.

The question the decision maker should ask is how the applicant would behave on return, and whether there is a real chance of persecution if they behave in that way. If the applicant would continue to express their views, the risk of expressing them must be assessed. If the applicant would stay silent only because of fear of persecution, that silence does not remove the risk.

The position is different for complementary protection. The High Court held in DQU16 that the principle against requiring concealment does not apply in the same way under section 36(2)(aa). This is one reason why the refugee ground should be fully argued where the facts support it.

Political activity in Australia

Many applicants continue political activity after arriving in Australia. This may include attending protests outside embassies, joining diaspora organisations, or posting on social media. This activity can be relevant to a protection visa political opinion claim, but section 5J(6) imposes an important limit.

Under section 5J(6), the decision maker must disregard conduct in Australia when deciding whether the applicant has a well-founded fear, unless the applicant satisfies the decision maker that they engaged in the conduct otherwise than for the purpose of strengthening their claim. Genuine activity, particularly activity that continues a long-standing commitment, can be relied on. Activity that appears to have started only after an application was made, or only after a refusal, will be closely examined.

Even where conduct in Australia is disregarded under section 5J(6), it may still be assessed under complementary protection, which has no equivalent rule. The real question is whether the authorities in the home country know about the activity and how they would respond on return.

Published Tribunal decisions show these issues in practice. In 1730101 (Refugee) \[2022\] AATA 4088, involving online anti-government activity by an applicant from Vietnam, conduct regarded as claim-strengthening was assessed under complementary protection, and the matter was remitted. In 1836973 (Refugee) \[2024\] AATA 4299, involving opposition activism by an applicant from Bangladesh, including online activity in Australia, the matter was also remitted. A remittal sends the application back to the Department for reconsideration. It is not a grant, and it does not mean that every similar claim will succeed.

Credibility in a protection visa political opinion claim

Credibility is the most common battleground in a protection visa political opinion claim. Decision makers test the applicant's account for detail, consistency and plausibility, and compare it with country information about the party, the events and the treatment of people with a similar profile.

Common credibility issues include:

• Inconsistent dates or details between the application, the statement and the interview;
• Limited knowledge of the party, its leaders or its policies, compared with the role claimed;
• Travel on the applicant's own passport through an airport controlled by the authorities they fear;
• Delay in leaving the country or in applying for protection; and
• Documents that appear to be fraudulent or cannot be verified.

Each of these can have an explanation, and the explanation should come from the applicant. Credibility problems also do not end the assessment. A decision maker who rejects parts of the account must still consider whether, on the facts it does accept, the applicant faces a real chance of persecution. In 1618576 (Refugee) \[2021\] AATA 1858, involving Biafran independence activism by an applicant from Nigeria, the Tribunal found that credibility problems did not resolve the question of future political risk, and remitted the matter. The guide to protection visa interview questions explains what to expect.

Evidence for a protection visa political opinion claim

The evidence for a protection visa political opinion claim should establish the applicant's profile and the risk that profile creates today. It usually comes from four sources.

• The applicant's statement. It should explain what the applicant believes, what they did, what happened to them, who knows about their views, and why the risk continues. The guide to the protection visa statement of claims explains its structure.
• Membership and activity records. Party cards, letters from party officials, photographs at rallies, articles, posts and screenshots. The authenticity of documents will be tested, and the Processing Guidelines allow decision makers to verify documents with organisations.
• Evidence of adverse attention. Summonses, arrest warrants, court documents, medical reports of injuries, and statements from witnesses.
• Country information. Reports on the treatment of opposition members, journalists, activists or the relevant ethnic group. 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.

The guide to protection visa evidence explains how to present supporting material, and the protection visa documents checklist lists what to gather.

State protection and relocation in political opinion claims

Where the persecutor is the state, effective state protection is usually not available, and relocation within the country is often not reasonable or practicable, because the authorities operate throughout the country. Where the persecutor is a political party, militia or rival faction, the decision maker will ask whether the state can provide effective protection and whether the applicant could safely live elsewhere. A protection visa political opinion claim involving a non-state persecutor must deal with both questions directly.

A change of government and a protection visa political opinion claim

A change of government does not automatically end a protection visa political opinion claim. Decision makers often reason that, because the party the applicant opposed has lost power, the risk has passed. That conclusion is not always correct.

The claim should explain whether the people who would harm the applicant still hold power at the local level, whether party militants or former officials continue to act against opponents, whether the new government has the capacity to protect the applicant, and whether the applicant's profile now puts them at risk from a different group. In some countries, a change of government simply changes which political opponents are targeted.

The reverse is also possible. A person who supported the former ruling party may become a target once it loses power. A protection visa political opinion claim should be updated to reflect developments after lodgement, including at the Tribunal, which decides the matter on the circumstances at the time of its decision.

Political opinion and complementary protection

Where a protection visa political opinion claim fails under the refugee criterion, complementary protection must still be considered. This may occur where the decision maker is not satisfied that political opinion is the essential and significant reason for the harm, where conduct in Australia is disregarded under section 5J(6), or where the harm is feared from a group acting for mixed or criminal motives.

Complementary protection does not require a Convention reason. It asks whether there is a real risk of significant harm, such as arbitrary deprivation of life, torture, or cruel or inhuman treatment or punishment, as a necessary and foreseeable consequence of removal. The claim should be put under both criteria in the alternative. Preparing for this at the outset, including at the interview, is covered in the guide to protection visa interview preparation.

Common mistakes in protection visa political opinion claims

Many political opinion claims fail for avoidable reasons:

• Overstating the applicant's role. Claiming a senior position that the applicant cannot describe in detail invites a credibility finding.
• Describing only past events. The claim must explain why the applicant would be of interest today.
• Ignoring imputed opinion. Family, work, ethnicity and refusal to cooperate may create a stronger claim than the applicant's own activities.
• Treating a charge as proof of persecution. The claim must explain why the prosecution is persecutory.
• Relying on activity in Australia without addressing section 5J(6).
• Not addressing changes in government. A change of government may or may not remove the risk, and the claim should explain which.

A protection visa political opinion claim after refusal

If a protection visa political opinion claim is refused, the applicant can usually apply to the Administrative Review Tribunal for merits review. The time limit is short and strictly applied. The Tribunal considers the matter afresh, and new evidence, including evidence of events since the Department's decision, can be relied on. 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 political opinion claims

My Migration Lawyers acts in protection visa political opinion claims at the Department and at the Administrative Review Tribunal. The firm deals with complex protection cases, acts in many protection visa matters of this exact type, including claims by opposition members, journalists, activists, family members of activists and people with an imputed political profile, and is capable of handling them from application to review.

The firm's work includes identifying every basis for the claim, actual and imputed, testing the applicant's profile against current country information, addressing prosecution, section 5J(3) and section 5J(6), and preparing the applicant for interview or hearing. 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 you are preparing a protection visa political opinion claim, or your claim has been refused, have it assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.