Protection Visa Claims Based on Religious Minority Persecution

Protection Visa Claims Based on Religious Minority Persecution are claims by people who were born into, or belong to, a minority religious community and fear what will happen to them because of that membership if they return. The community may be a separate religion, such as Christians in a Muslim-majority country, or a minority branch of the majority religion, such as Shia or Ahmadi Muslims in a Sunni-majority country. The harm may come from the state, from extremist groups, from neighbours, or from all of them.

Protection Visa Claims Based on Religious Minority Persecution are among the most common religion-based claims in Australia. They are also among the most frequently refused, because decision makers often accept that a minority faces discrimination but find that the individual applicant does not face a real chance of serious harm. This article explains how these claims are assessed, how the gap between group risk and personal risk is bridged, and what evidence makes the difference.

Can belonging to a religious minority support a protection visa?

Yes. Protection Visa Claims Based on Religious Minority Persecution can support a Subclass 866 protection visa under the refugee test, the complementary protection test, or both. Religion is one of the five Convention reasons in section 5J(1)(a) of the Migration Act. A person who faces persecution because they are a member of a minority faith fears persecution for reasons of religion.

The persecution must meet the requirements of section 5J(4). Religion must be the essential and significant reason for the harm. The harm must be serious harm, as described in section 5J(5). It must also involve systematic and discriminatory conduct. The pages on the Subclass 866 protection visa and on religious persecution explain the framework.

Group risk and personal risk

The central question in Protection Visa Claims Based on Religious Minority Persecution is whether the applicant personally faces a real chance of persecution. Country information may show that a minority is discriminated against, attacked or excluded. Decision makers then ask whether the applicant, with their particular profile, faces that risk.

Factors that usually increase personal risk include:

• a visible role in the community, such as a pastor, imam, teacher, reciter or organiser;
• open practice, such as regular public worship, religious dress or symbols;
• living in an area where attacks on the minority are frequent;
• a business, property or public job that attracts attention;
• past threats, attacks or detention;
• family members who have already been targeted; and
• being a woman or a child in a community where women and children of the minority are specifically targeted.

Where the whole group faces systematic persecution, membership alone may be enough. That is rare, and the claim must be supported by strong and current country information. In most Protection Visa Claims Based on Religious Minority Persecution, the applicant's individual profile decides the case.

Past persecution is an important indicator, but it is not the test. The question is whether there is a real chance of persecution in the reasonably foreseeable future. An applicant who was attacked years ago should explain why the risk continues, for example because the attackers remain active, the community is still targeted, or the applicant would resume the same role on return. An applicant who has not yet been harmed may still succeed if the risk to people with the same profile is real. A real chance is one that is not remote or far-fetched, even if it is well below fifty per cent.

Who makes Protection Visa Claims Based on Religious Minority Persecution?

Protection Visa Claims Based on Religious Minority Persecution come from many countries and faiths. Examples include Christians in parts of South Asia, the Middle East and North Africa, members of minority Muslim communities, followers of smaller faiths, and people who worship in unregistered churches in countries that control religion. Each claim depends on the country, the region and the applicant's own circumstances. Two people from the same faith and country can face very different levels of risk.

Many applicants are already in Australia on another visa when they decide to apply. The guides for people on a tourist visa and for international students explain how people already here can apply, and the guide to protection visa eligibility explains the criteria.

Discrimination, cumulative harm and persecution

Discrimination alone is not always persecution. In Protection Visa Claims Based on Religious Minority Persecution, the applicant often describes a lifetime of unequal treatment: difficulty finding work, exclusion from schools or promotions, harassment in the street, pressure on the family, and occasional violence. Each incident on its own may not reach the threshold of serious harm.

The Department's guidelines state that officers should consider whether a number of individual acts or instances of harm, combined, would reach the threshold of serious harm, and if so consider them cumulatively. The guidelines note that failing to do so may result in jurisdictional error. Section 5J(5) includes significant economic hardship that threatens the person's capacity to subsist, and denial of access to basic services or the capacity to earn a livelihood, where that threatens the person's capacity to subsist.

The statement should therefore describe the whole pattern of harm, not only the most serious incident. Dates, places and the people involved should be given for each event, so the decision maker can assess them together.

Worshipping in private is not the answer

A person making Protection Visa Claims Based on Religious Minority Persecution cannot be expected to hide their faith to be safe. For the refugee test, section 5J(3) provides that a person is not expected to modify their behaviour to avoid persecution where the modification would require them to alter their religious beliefs, conceal their true religious beliefs, or cease to be involved in the practice of their faith.

Decision makers sometimes find that an applicant could avoid harm by worshipping at home or in a small group. The correct question is what the applicant would actually do on return, and why. If the applicant would worship quietly only because of fear, that fear is the reason for the claim. If the applicant has always worshipped quietly for reasons unrelated to fear, the decision maker may take that into account. The applicant should explain their practice honestly.

The position under complementary protection is different. The Department's Complementary Protection Guidelines explain that, following *DQU16 v Minister for Home Affairs* \[2021\] HCA 10, the principle that a person should not be expected to modify their behaviour does not operate in the same way for complementary protection. This makes the refugee claim especially important.

Sectarian violence and the general population

Sectarian violence raises a difficult issue in Protection Visa Claims Based on Religious Minority Persecution. Where bombings or attacks affect everyone in an area, the Department may find that the risk is general rather than targeted.

For the refugee test, the question is whether the violence is directed at the minority for reasons of religion. An attack on a minority place of worship is targeted, even if bystanders are harmed. For complementary protection, section 36(2B)(c) provides that there is no real risk of significant harm if the risk is faced by the population of the country generally and is not faced by the applicant personally. The claim should explain why the applicant is at greater risk than the general population because of their faith and profile. The page on complementary protection explains that test.

State protection for religious minorities

State protection is often contested in Protection Visa Claims Based on Religious Minority Persecution. Under section 5J(2) and section 5LA, a person does not have a well-founded fear of persecution if effective protection measures are available. Protection must be effective and durable, and it must be accessible to the applicant.

Where the state itself restricts the minority, through registration laws, restrictions on worship, identity documents that record religion or discriminatory laws, protection from the state is unlikely. Where the risk comes from extremist groups or neighbours, the claim should address whether police register complaints, whether attackers are prosecuted, and whether members of the minority can realistically seek help. Country information about police responses to attacks on the minority is essential.

Relocation for members of a religious minority

Relocation is almost always raised in Protection Visa Claims Based on Religious Minority Persecution. The Department's guidelines direct officers first to assess the real chance of persecution in the applicant's home region, and then to consider whether that real chance relates to all areas of the country under section 5J(1)(c). Under the refugee test, the reasonableness of relocation is not considered.

For complementary protection, section 36(2B)(a) asks whether it would be reasonable for the applicant to relocate to an area where there is no real risk of significant harm. In practice, the claim should explain whether the minority lives safely anywhere in the country, whether the applicant could practise their faith there, and whether they could be identified through documents, names or appearance.

State restrictions on worship and registration

Some Protection Visa Claims Based on Religious Minority Persecution arise in countries where the state controls religion directly. The state may require religious groups to register, limit worship to approved places, restrict the religious instruction of children, monitor congregations or detain leaders of unregistered groups. A person who worships in an unregistered church or group may face detention, fines, loss of employment, or pressure on their family.

A registration law is not persecution merely because it exists. The claim should explain how the law is applied to the applicant's group, what happens to people who worship outside the approved structures, and what has happened to the applicant or people like them. Where the applicant would continue to worship in an unregistered group on return, section 5J(3) means they cannot be expected to stop doing so, or to join an approved group whose teaching they do not accept, to avoid harm.

Complementary protection for religious minorities

Complementary protection should be argued alongside the refugee claim in Protection Visa Claims Based on Religious Minority Persecution. Under section 36(2)(aa) of the Migration Act, the question is 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. Significant harm under section 36(2A) includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

Complementary protection can matter where the harm is not clearly linked to religion, where the decision maker finds that the applicant would practise discreetly, or where the applicant's risk arises from a combination of faith and other factors, such as a business, a public role or a family dispute. The risk must still be personal to the applicant and not simply a risk faced by the population generally.

Evidence in Protection Visa Claims Based on Religious Minority Persecution

Evidence in Protection Visa Claims Based on Religious Minority Persecution must prove two things: that the applicant belongs to the minority, and that they face a real chance of harm. Useful evidence includes:

• certificates of baptism, membership or religious instruction;
• letters from religious leaders in the home country and in Australia who know the applicant personally;
• evidence of the applicant's role in the community;
• police complaints, medical records or photographs relating to past attacks;
• threats in writing, by message or on social media;
• evidence of harm to family members or the community; and
• current country information, including Department of Foreign Affairs and Trade country information reports and independent human rights reporting.

The Department relies heavily on country information. The applicant's claims should be consistent with it, or should explain clearly why their experience differs. The guides to protection visa evidence and the protection visa documents checklist explain what to gather.

The statement of claims

The statement is the foundation of Protection Visa Claims Based on Religious Minority Persecution. It should describe the applicant's faith and practice, their role in the community, each incident of harm in order, the response of the authorities, what has happened to others in the community, and what the applicant believes would happen on return.

The statement is the applicant's own evidence, in their own words. The applicant reviews and corrects it, and decides which claims are advanced. The guide to the protection visa statement of claims explains how to structure it.

Women and children in religious minority communities

Women and children can face distinct forms of harm in Protection Visa Claims Based on Religious Minority Persecution. In some countries, women from minority faiths are targeted for abduction, forced conversion, forced marriage or sexual violence. Children may face pressure at school, forced religious instruction or exclusion. The Department's guidelines on gender recognise that women may be harmed by members of their own family or community, and that harm may be imputed to them because of their family's beliefs.

Where a woman or child in the family faces this kind of harm, it should be raised as a separate claim, with its own evidence. It should not be treated as an afterthought to the main applicant's claim.

Returning after years away

Many people making Protection Visa Claims Based on Religious Minority Persecution have been in Australia for a long time. The assessment is made at the time of decision, and it looks at the reasonably foreseeable future. Changes in the home country since the applicant left, whether better or worse, will be considered.

Time away can also increase risk. A person returning after years abroad may be noticed, questioned about their faith or activities, or seen as having been influenced by foreign religious groups. Where that is relevant, the claim should explain it and support it with country information.

The interview

The interview is often decisive in Protection Visa Claims Based on Religious Minority Persecution. The officer will ask about the applicant's faith and practice, their community, each incident of harm, and why they believe they would be harmed on return. The officer may test the applicant's knowledge of their faith. A person who has practised their religion all their life should be able to describe how they worship, their place of worship and the important events of their faith. The page on the protection visa interview and the guide to protection visa interview questions explain what to expect.

Common mistakes in Protection Visa Claims Based on Religious Minority Persecution

Refusals in Protection Visa Claims Based on Religious Minority Persecution often follow the same patterns:

• Relying on group risk alone. Describing the persecution of the minority without explaining the applicant's own profile and experiences.
• Describing only the worst incident. Leaving out the pattern of discrimination that shows cumulative harm.
• Accepting that private worship is safe. Failing to explain why the applicant would not, or should not have to, hide their faith.
• Ignoring relocation. Not explaining why the applicant could not live safely elsewhere in the country.
• Using out-of-date country information. Relying on reports that do not reflect current conditions.
• Late disclosure. Raising claims for the first time at review without explaining why. The guide to a delayed Subclass 866 protection visa application explains how timing is assessed.

Tribunal decisions on Protection Visa Claims Based on Religious Minority Persecution

Published Tribunal decisions show how religious minority claims are reconsidered on review. Each turns on its own facts.

• In 1905193 (Refugee) \[2023\] AATA 502, an applicant from Pakistan raised the Ahmadi faith, threats against the family and the forced disposal of a business. The matter was remitted.
• In 1722995 (Refugee) \[2021\] AATA 1936, a Coptic Christian officer in the Egyptian Air Force raised sectarian violence and military discrimination. The matter was remitted.
• In 1835748 (Refugee) \[2022\] AATA 2420, a Coptic woman from Egypt raised extremist threats, sexual violence and employment discrimination. The matter was remitted.
• In 1912319 (Refugee) \[2024\] AATA 3999, a Chaldean Catholic family from Iraq raised extremist threats and the forced transfer of a business. The matter was remitted.
• In 2216147 (Refugee) \[2024\] AATA 1582, an applicant from China raised underground Christian worship, detention and restrictions on children's religious instruction. The matter was remitted.
• In 1825991 (Refugee) \[2024\] AATA 1368, a Shia Noha reciter from Pakistan raised sectarian threats, and the Tribunal considered the adequacy of protection and relocation. The matter was remitted.

A remittal means the Tribunal sent the application back to the Department to be decided again, usually with a direction or finding. It is not itself the grant of a visa. These decisions are cited as published examples only. The Subclass 866 refusal ART guide and the protection visa refusals page explain the review process.

How My Migration Lawyers handles Protection Visa Claims Based on Religious Minority Persecution

My Migration Lawyers acts in Protection Visa Claims Based on Religious Minority Persecution for members of minority faiths from many countries. The firm deals with complex protection cases, acts in many Subclass 866 claims involving religious minorities, and is capable of handling these matters from the first application through to review at the Administrative Review Tribunal.

The work usually involves:

• Presenting the applicant's own account. The applicant's history of faith, practice and harm is taken in their own words, with an interpreter where needed. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Personal profile. The factors that raise the applicant's own risk above that of the general minority are identified and supported.
• Cumulative harm. The full pattern of discrimination and harm is presented so it can be assessed together.
• Country information. Current reports on the minority, the region and the response of the authorities are identified and presented.
• Relocation and state protection. Both issues are addressed directly.
• Review. Where a visa has been refused, the decision is analysed and the review is prepared within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia.

If you belong to a religious minority and fear returning home, the way your personal risk is shown can decide your case. Book a consultation with My Migration Lawyers online, or call 1300 040 300.