Protection Visa Religious Persecution

A protection visa religious persecution claim is a refugee claim based on a fear of persecution because of religion. Religion is one of the five reasons listed in section 5J(1)(a) of the Migration Act 1958. A protection visa religious persecution claim can be based on the religion a person actually follows, on their decision to leave a religion or hold none, or on a religion the persecutor believes they follow.

This article explains the legal test for a protection visa religious persecution claim in a Subclass 866 application. It covers what counts as religion, when restrictions on religious life become persecution, why applicants cannot be required to hide their faith, how decision makers test whether a belief is genuine, and what evidence helps. It is written for people who have lodged, or are about to lodge, a Subclass 866 application based on religion, and for those whose claim has been refused. For the firm's services in this area, see the religious persecution protection visa page.

What is a protection visa religious persecution claim?

A protection visa religious persecution claim is a claim that the applicant has a well-founded fear of persecution for the reason of religion under section 5J(1)(a). Like every refugee claim, it must meet each element of the test. There must be a real chance of persecution, the persecution must involve serious harm and systematic and discriminatory conduct, religion must be the essential and significant reason for it, and the real chance must exist in all areas of the country.

A protection visa religious persecution claim therefore turns on three questions. What is the applicant's religious belief, identity or practice? How would they live that religion if they returned? And what would happen to them because of it? The requirements of the visa as a whole are explained on the Subclass 866 protection visa page.

What counts as religion?

Religion in refugee law is broad. It is not limited to formal membership of a recognised church, mosque, temple or other institution. A protection visa religious persecution claim can be based on any of the following:

• Belief. Holding particular religious beliefs, including theistic, non-theistic and atheistic beliefs.
• Identity. Belonging to a religious community by birth, culture, ethnicity or family, whether or not the person is devout.
• Way of life. Practising a religion through worship, prayer, dress, diet, religious teaching, observance of holy days, or sharing the faith with others.

The choice not to hold any religious belief is also protected. A person who has left their religion, or who is an atheist, may have a protection visa religious persecution claim if they would face serious harm for that reason.

Religion may also be imputed. The Department's Processing Guidelines give the example of an applicant who volunteered at a church of a minority faith. Even though the applicant did not claim to have converted, the decision maker must consider whether he could be imputed as having converted, in a country where apostasy is a criminal offence. A person can be persecuted for a religion they do not hold, if the persecutor believes they hold it.

Who can be the persecutor in a religious claim?

A protection visa religious persecution claim does not require the persecutor to be the state. Religious persecution commonly comes from four sources:

• The state, through laws that criminalise apostasy, blasphemy or unregistered worship, or through police, security services or courts that enforce religious rules;
• Armed groups, including militias and extremist organisations that target people of other faiths or people they regard as insufficiently devout;
• The community, through mob violence, expulsion from a village or organised attacks on places of worship; and
• The family, particularly where a family member converts, marries outside the faith or refuses religious obligations.

Where the persecutor is not the state, the claim must also explain why the state cannot or will not protect the applicant. A law against religious violence is not effective protection if it is not enforced for people of the applicant's faith.

How decision makers assess a protection visa religious persecution claim

Decision makers usually assess a protection visa religious persecution claim in a set order.

• The applicant's religion. What does the applicant believe, what community do they belong to, and how do they practise?
• Credibility. Is the claimed belief or identity accepted? This is usually tested at the protection visa interview.
• Conduct on return. How would the applicant practise their religion if returned, and why?
• The harm. Would that practice expose the applicant to serious harm, such as a threat to life or liberty, significant physical ill-treatment, or denial of a livelihood that threatens their capacity to subsist?
• The reason. Is religion the essential and significant reason for the harm?
• The whole country. Does the real chance exist in all areas, and is effective protection unavailable?

A refusal can occur at any step. The decision record shows which step failed, and any review should be directed at that step.

When restrictions become protection visa religious persecution

Not every restriction on religious life is persecution. A protection visa religious persecution claim must show that the harm feared is serious harm under section 5J(5), and that it involves systematic and discriminatory conduct under section 5J(4).

Harm that commonly reaches this threshold includes:

• Criminal punishment for religious belief or practice, such as prosecution under apostasy or blasphemy laws, where the penalty involves imprisonment, corporal punishment or death;
• Arrest and detention for attending unregistered worship, distributing religious material or teaching religion;
• Violence by the authorities, armed groups, community members or family, directed at the applicant because of their religion;
• Forced conversion or forced participation in religious practices of another faith; and
• Denial of education, employment or basic services because of religion, where the denial threatens the person's capacity to subsist.

Harm that may not reach the threshold on its own includes social disapproval, difficulties obtaining a building permit for a place of worship, or discrimination in promotion at work. However, several forms of discrimination that are not individually serious may, taken together, amount to persecution. A protection visa religious persecution claim should describe the harm as a whole, not as separate complaints.

Registration requirements deserve particular attention. In some countries, religious groups must register with the state, and unregistered groups are banned. A decision maker may find that the applicant could worship in a registered church. The claim should explain whether registered worship is a genuine option for the applicant's faith, or whether it would require them to change what they believe or how they practise. In 1833876 (Refugee) \[2024\] AATA 970, involving a member of the Local Church from China, credibility and the applicant's intended religious activities on return were central, and the Tribunal remitted the matter.

Religion and other Convention reasons

A protection visa religious persecution claim often overlaps with other Convention reasons. Religion may be closely tied to ethnicity, so that members of an ethnic group are presumed to follow a particular faith. It may be tied to political opinion, where a religious movement is treated as a political threat, or where opposition to religious law is treated as dissent. It may also be tied to gender, where women are required to follow religious dress codes or marriage rules, and refusal is punished.

The decision maker must consider every Convention reason that arises on the facts, not only the one the applicant names. A protection visa religious persecution claim should nonetheless identify each reason that applies, and explain how they combine. Where more than one reason is involved, the essential and significant reason for the harm may be the combination of them.

Can I be required to hide my religion?

No. Under section 5J(3), a person does not have a well-founded fear of persecution 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 the person to alter their religious beliefs, including by renouncing a religious conversion, to conceal their true religious beliefs, or to cease to be involved in the practice of their faith.

This is one of the most important protections in a protection visa religious persecution claim. A decision maker cannot refuse a claim on the basis that the applicant could pray privately, avoid church, stop sharing their faith or pretend to follow the majority religion.

The question is how the applicant would actually practise their religion on return. If the applicant would practise openly, the decision maker must assess the risk of open practice. If the applicant would practise quietly only because they fear harm, that fear is the persecution, and the quiet practice does not remove the risk. If the applicant would practise quietly for reasons unrelated to fear, such as personal preference, the decision maker may take that into account. The applicant's own evidence about how and why they practise is therefore central.

The position is different under complementary protection. The High Court held in DQU16 that the principle against requiring concealment does not apply in the same way to section 36(2)(aa). A protection visa religious persecution claim should therefore be fully argued under the refugee criterion, rather than relying only on complementary protection.

Is my faith genuine? How credibility is tested

Credibility is often the central issue in a protection visa religious persecution claim. Decision makers test whether the applicant genuinely holds the belief or identity they claim.

The assessment usually explores the applicant's personal experience of faith: how they came to it, what it means to them, how they practise, what has changed in their life, and how they would practise on return. Questions about doctrine, scripture or ritual are also common. Knowledge alone does not prove belief, and a lack of detailed knowledge does not necessarily disprove it. A person who was raised in a faith, or who has limited education, may not be able to explain doctrine in the way a theologian could. The standard applied should reflect the applicant's background.

Mental health, trauma and memory can also affect how an applicant gives evidence about their faith. In 1926276 (Refugee) \[2022\] AATA 1746, involving an applicant from Iran who claimed Christian conversion and harassment by the Basij, and whose psychiatric illness affected the consistency of their evidence and their religious practice, the Tribunal remitted the matter. 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.

Sharing faith with others raises a particular issue. For some religions, telling others about the faith is a central part of practice. Where the home country punishes proselytising, a protection visa religious persecution claim should explain whether sharing the faith is part of how the applicant practises, how they have done so in the past, and whether they would continue on return. The decision maker must then assess the risk of that conduct, rather than assume the applicant would stay silent.

Interpreters also matter. Religious terms may not translate directly, and a misunderstanding can look like a lack of knowledge. If an answer at interview was misinterpreted, the applicant should say so promptly and in writing.

The guide to protection visa interview questions explains what to expect at interview.

Conversion, blasphemy, minority faiths and non-belief

A protection visa religious persecution claim often falls within one of four patterns. Each raises its own issues.

• Conversion. A person who has moved from one faith to another may face apostasy laws, family violence or community punishment. Where the conversion occurred in Australia, section 5J(6) requires the decision maker to disregard the conduct unless the applicant satisfies it that the conversion was not undertaken to strengthen the claim.
• Blasphemy accusations. A person accused of insulting a religion may face prosecution or mob violence, whatever their own faith. The accusation itself, and the failure of the state to protect the accused, are often the key issues.
• Minority faiths. A person born into a minority religion may face risk as a member of that community, even without any personal activity. The question is whether the risk to the community creates a real chance of harm to the applicant personally.
• Non-belief. A person who has no religion, or who has left their religion, may face harm for that choice. This is protected in the same way as religious belief.

Religious activity in Australia

Many applicants practise their faith more openly in Australia than they could at home. They may be baptised, attend church or temple regularly, join a religious community or share their faith with others. This conduct can support a protection visa religious persecution claim, but section 5J(6) imposes a limit.

Under section 5J(6), conduct in Australia must be disregarded in assessing a well-founded fear unless the applicant satisfies the decision maker that they engaged in it otherwise than for the purpose of strengthening their claim. A genuine conversion, or a genuine continuation of a faith already held, can be relied on. Decision makers will look at the timing of the conduct, how it developed, whether it continued after the application was lodged, and evidence from the religious community.

Even if conduct in Australia is disregarded under section 5J(6), it may still be relevant under complementary protection, particularly if the authorities in the home country are likely to know about it. In 2219303 (Refugee) \[2023\] AATA 4675, involving a member of the Church of Almighty God from China who relied on clandestine worship and religious activity in Australia, the Tribunal remitted the matter.

Evidence for a protection visa religious persecution claim

The evidence for a protection visa religious persecution claim should establish the applicant's faith, how they would practise it, and the risk that practice creates.

• The applicant's statement. It should explain the applicant's religious journey, practice and beliefs in their own words, what has happened to them because of their religion, and how they would practise on return. The guide to the protection visa statement of claims explains its structure.
• Evidence from the religious community. Letters from a pastor, priest, imam or other leader, baptism or membership certificates, attendance records and statements from fellow members. A religious leader who knows the applicant well may also give evidence at a Tribunal hearing.
• Evidence of harm. Summonses, police records, court documents, medical reports, photographs and messages showing threats or attacks.
• Country information. Reports on the treatment of the applicant's religious group, the application of apostasy or blasphemy laws, and restrictions on worship. 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 and the protection visa documents checklist explain what to gather.

State protection and relocation in religious claims

Where the state enforces religious laws, or its officials are the persecutors, effective state protection will usually not be available, and relocation will usually not remove the risk. Where the harm comes from family, community or armed groups, the decision maker will ask whether the state is willing and able to protect the applicant, and whether there is a part of the country where the applicant could safely live and practise their faith. A protection visa religious persecution claim involving non-state persecutors must answer both questions.

A proposed area of relocation must allow the applicant to practise their faith as they would choose to. A place that is safe only if the applicant hides their religion is not a safe place for the purposes of the refugee test.

Religion and complementary protection

If a protection visa religious persecution claim fails under the refugee criterion, complementary protection must still be considered. This may occur where the decision maker is not satisfied that religion is the essential and significant reason for the harm, or where conduct in Australia is disregarded under section 5J(6).

Complementary protection asks whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. Significant harm includes arbitrary deprivation of life, the death penalty, torture, and cruel or inhuman or degrading treatment or punishment. A sentence of corporal punishment for apostasy or blasphemy, for example, may engage these obligations. The two criteria should be argued in the alternative from the outset.

Common mistakes in protection visa religious persecution claims

• Describing belief without describing practice. The claim must explain how the applicant practises and would practise on return.
• Accepting the premise that private worship is enough. Section 5J(3) protects open practice where that is how the applicant would practise.
• Ignoring registration rules. The claim should explain why registered worship is not an answer.
• Relying on conduct in Australia without addressing section 5J(6).
• Weak community evidence. A short letter confirming attendance is less persuasive than detailed evidence from someone who knows the applicant's faith.

A protection visa religious persecution claim after refusal

If a protection visa religious persecution 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 decides the matter afresh, and new evidence, including evidence of continued religious practice and evidence from religious leaders, 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 religious persecution claims

My Migration Lawyers acts in protection visa religious persecution 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 conversion, minority faith, blasphemy and non-belief claims, and is capable of handling them from application to review.

The firm's work includes identifying the religious basis of the claim, actual and imputed, addressing section 5J(3), section 5J(6) and registration issues, gathering evidence from religious communities and current country information, and preparing the applicant and witnesses 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 religious persecution claim, or your claim has been refused, have it assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.