Protection Visa State Protection

Protection visa state protection is the question of whether the authorities in an applicant's home country could protect them from the harm they fear. It is one of the most common reasons a Subclass 866 application is refused where the persecutor is not the state. A decision maker may accept that the applicant has been threatened or attacked, but find that the police and courts would protect them. If that finding is made, the claim fails.

This article explains how protection visa state protection is assessed under the refugee criterion and under complementary protection, why the two tests are different, what "willing and able" means, and what evidence answers the question. It is written for people who have lodged a Subclass 866 application, or are about to, and whose claim involves harm from family, a criminal group, a community or another non-state actor. The visa's requirements as a whole are explained on the Subclass 866 protection visa page.

What is protection visa state protection?

Protection visa state protection is the principle that a person does not need Australia's protection if their own country can protect them. International protection is a substitute for national protection. It is only available where national protection fails.

The Migration Act applies this principle through two separate provisions:

• Refugee claims. Under section 5J(2), a person does not have a well-founded fear of persecution if effective protection measures are available to them in their home country. Section 5LA explains what effective protection measures are.
• Complementary protection claims. Under section 36(2B)(b), there is taken not to be a real risk of significant harm if the applicant could obtain, from an authority of the country, protection such that there would not be a real risk of significant harm.

These are different tests. The Department's Complementary Protection Guidelines state that findings made under section 5J(2) and section 5LA cannot be adopted for complementary protection. Protection visa state protection must be assessed afresh under each test.

Who can provide protection visa state protection?

Protection visa state protection does not have to come from the national government alone. Under section 5LA, protection can come from the state, or from a party or organisation, including an international organisation, that controls the state or a substantial part of its territory. Under section 36(2B)(b), the protection must come from an authority of the country, which can include a non-state authority, such as a rebel or military force, with effective control of the country.

This matters in countries where control is divided. A decision maker may find that a regional authority, a peacekeeping force or an administration in a particular area could protect the applicant. The claim should explain whether that body actually controls the area, whether it is willing to protect people like the applicant, and whether it is able to do so.

Protection visa state protection also does not mean private protection. Support from family members, a private security guard or a community leader is not protection by the state. The question is whether the authorities of the country would provide it.

The refugee test: section 5J(2) and section 5LA

Under the refugee test, the question is whether effective protection measures are available to the applicant. The Department's Processing Guidelines summarise the effect of section 5LA(1). Effective protection measures are taken to be available if:

• protection against persecution could be provided by the state, or by a party or organisation, including an international organisation, that controls the state or a substantial part of its territory; and
• the state, party or organisation is willing and able to offer that protection.

Section 5LA(2) then explains when the state, party or organisation is taken to be able to offer protection. In broad terms, the person must be able to access the protection, and the protection must be durable, and must consist of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

The Complementary Protection Guidelines describe the refugee test as whether there is effective, durable protection against the claimed persecution. They add that the test requires an objective assessment of how effective the available protection actually is.

Willing

A state may have the capacity to protect a person but be unwilling to do so. Unwillingness can arise where the police do not treat a certain type of harm as a crime, where officials share the persecutor's attitudes, or where the persecutor is connected to people in authority. The Department's guidelines on domestic and family violence direct decision makers to consider whether the state is reluctant to be involved or turns a blind eye to the harm.

Able

A state may be willing but unable to protect a person. Inability can arise where the police lack resources, where courts are corrupt or slow, where the persecutor is more powerful than local authorities, or where the state does not control the area. A state that intends to protect its citizens but cannot do so in practice does not provide effective protection.

Durable

Protection must last. A single arrest, followed by the release of the persecutor within days, is not durable protection. A protection order that is repeatedly breached without consequence is not durable protection either.

The complementary protection test: section 36(2B)(b)

Under complementary protection, the protection visa state protection question is whether the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm. The authority can be the state, including its government and forces, or a non-state authority such as a rebel or military force with effective control of the country.

The Complementary Protection Guidelines explain that this test is significantly different from the refugee test. The refugee test asks whether protection is effective and durable in an objective sense. The complementary protection test asks whether the protection available would reduce the risk of significant harm to this applicant to something less than a real risk.

The guidelines refer to four questions the courts have identified for assessing whether protection is adequate:

• What is the source and nature of the significant harm faced by the applicant?
• What is the nature and degree of protection afforded by the authorities from the specific harm faced by the applicant?
• Could the applicant obtain protection from the authorities, having regard to the source and nature of the harm?
• Would the applicant, having obtained protection from the authorities, nonetheless be at real risk of significant harm?

The guidelines state that these questions provide guidance but are not prescriptive. They also make a point that is central to every protection visa state protection argument. Decision makers may look at the measures a country has in place, such as an appropriate criminal law and a reasonably effective and impartial judicial system. But the mere existence of those measures shows only that they are available. It does not demonstrate that the person could obtain protection from them.

Laws on paper are not protection

The most common error in protection visa state protection findings is to treat the existence of laws as proof of protection. A decision maker may note that the country has criminalised domestic violence, has a police force and has courts, and conclude that the applicant would be protected.

The Department's own guidelines reject that reasoning. The fact that a country has generally functioning laws available to the general community is one element that may be taken into account. It is not, without more, determinative. An individual may still face a real risk of significant harm even where the state has a functional system of protection.

The claim must therefore address how the protection system works for people like the applicant, not how it works on paper. Relevant questions include:

• Do the police investigate this type of complaint?
• Are complaints by people of the applicant's gender, ethnicity, religion, caste or sexual orientation taken seriously?
• Are perpetrators prosecuted and convicted, or released?
• Are protection orders enforced?
• Does the persecutor have connections to police, officials or politicians?
• Are there shelters, and can the applicant realistically access them?

Corruption is often part of the answer. Where police expect payment before registering a complaint, or where a persecutor can pay to have a complaint dropped, protection is not effective for an applicant who cannot pay or whose persecutor can pay more. The same applies where courts take years to hear cases, and the applicant would be exposed to the persecutor in the meantime. A protection visa state protection argument should identify these practical barriers and support them with the applicant's own experience and with country information, rather than relying on general statements that the system is weak.

Protection visa state protection and the applicant's profile

Protection visa state protection must be assessed for the particular applicant. A police force that protects most citizens may not protect members of a minority group, women who have left their husbands, people of a lower caste, or people who are gay, lesbian, bisexual, transgender or intersex.

Where the applicant's profile itself is criminalised or stigmatised, going to the police may expose them to further harm. A gay man who reports an assault may be questioned about his sexuality. A woman who reports family violence may be sent back to her family. A member of a minority faith who reports an attack may be accused of blasphemy. In these cases, the question is not whether the police protect people generally, but whether they would protect this applicant. The LGBTI protection visa page explains how this issue arises in sexuality-based claims.

A protection visa state protection argument is strongest when it combines the applicant's own experience with country information showing how the authorities treat people with the same profile.

When the state is the persecutor

Where the persecutor is the state, its officials or people acting with its authority, protection visa state protection is usually not available. A person cannot be expected to seek protection from the police if the police are the source of the harm. The same applies where the harm comes from state-sponsored militias, or from laws that criminalise the applicant's religion, political opinion or sexual orientation.

There may be limited exceptions. A rogue official acting against state policy may, in some cases, be restrained by higher authorities. The claim should explain why that is not realistic in the applicant's case, for example because the official is senior, or because complaints against officials are not investigated. In 2004071 (Refugee) \[2022\] AATA 2529, involving an Oromo woman from Ethiopia who was abused by a senior official, the lack of effective protection and her ability to subsist were central, and the Tribunal remitted the matter.

Protection visa state protection in family violence claims

Family violence claims often turn on protection visa state protection. The applicant fears a husband, former partner, parent or relatives. The harm is real, and the question becomes whether the authorities would intervene.

The Department's guidelines identify the adequacy of state protection, and whether the state is reluctant to be involved or turns a blind eye, as key considerations in these claims. Evidence often shows that police in some countries treat family violence as a private matter, encourage reconciliation, refuse to register complaints, or release perpetrators without charge.

Published Tribunal decisions show these issues in practice. In 2004711 (Refugee) \[2023\] AATA 4520, involving domestic abuse and psychiatric vulnerability in Fiji, limited effective police protection was central, and the matter was remitted. In 2405430 (Refugee) \[2024\] AATA 2226, involving a bride-price marriage and sustained domestic abuse in Solomon Islands despite protection orders, 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.

Did I have to ask the police for help?

No, not necessarily. An applicant is not always required to have sought police protection before leaving. However, a failure to seek protection will usually be raised by the decision maker, and it must be explained.

Acceptable explanations may include that the police are connected to the persecutor, that previous complaints were ignored, that people in the applicant's position who complain are harmed, that seeking help would have increased the danger, or that country information shows complaints of this kind are not acted on. The explanation should be specific to the applicant's circumstances and supported by evidence where possible.

Where the applicant did seek protection, the claim should describe exactly what happened: when they went to the police, what they said, what the police did, and what happened afterwards. A police report that led to no action is strong evidence that protection was not effective.

Evidence that answers the protection visa state protection question

The strongest evidence on protection visa state protection shows how the system actually responded, or would respond, to someone in the applicant's position.

• The applicant's own account. A detailed description of any contact with the police, courts or officials, and why the applicant did not seek help if they did not. The statement is the applicant's own evidence. The guide to the protection visa statement of claims explains its structure.
• Documents. Police reports, complaint receipts, protection orders, court records, medical reports and messages showing threats after a complaint.
• Evidence of the persecutor's connections. Information about the persecutor's family, political, police or criminal links.
• Country information. Reports on how the police and courts respond to the type of harm feared, including prosecution and conviction rates where available, the availability of shelters, and the treatment of complainants. 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

Protection visa state protection and internal relocation are often assessed together. A decision maker may find that the police in the applicant's home area are ineffective, but that protection would be available in the capital or another city. The claim should deal with protection in any area where the decision maker is likely to propose that the applicant could live, not only the home area. Relocation is a separate test, and it should be addressed in its own right.

How protection visa state protection is tested at interview

Protection visa state protection is usually explored at the protection visa interview. Common questions include whether the applicant went to the police, why not, what happened when they did, whether they know anyone who sought help successfully, whether there are women's shelters or human rights organisations they could approach, and whether they could seek protection in another city.

Applicants who have not considered these questions often give short answers that are later relied on in the refusal. The guide to protection visa interview questions explains how to prepare.

Protection visa state protection and criminal groups

Claims involving gangs, cartels, loan sharks and other criminal groups often turn on protection visa state protection. Decision makers may accept that the group has threatened the applicant, but find that the police would investigate and protect them.

The claim should explain the reach and power of the group, whether it has links to police or officials, how the police have responded to similar threats in the past, and whether witnesses and complainants are protected. Country information on the capacity of the police against organised crime, and on corruption, is often decisive. Where the harm is not for a Convention reason, the claim will usually rely on complementary protection, and the question under section 36(2B)(b) is whether protection would reduce the risk to less than a real risk for this applicant.

Common mistakes on protection visa state protection

• Saying nothing about it. A claim that describes only the harm leaves the decision maker to assume the police would help.
• Relying on general statements. "The police are corrupt" is not evidence. The claim should explain how the applicant knows and what happened.
• Not explaining a failure to seek help.
• Accepting the existence of laws as protection. The question is whether the protection works for the applicant.
• Treating the two tests as one. The refugee test and the complementary protection test must each be addressed.

Protection visa state protection refusals and review

If a visa was refused because the decision maker found that protection visa state protection was available, the applicant can usually apply to the Administrative Review Tribunal for merits review. The time limit is short and strictly applied. The decision record should be read to see which test was applied. Errors can include treating laws on paper as proof of protection, adopting the refugee finding for complementary protection without fresh assessment, and failing to consider whether the applicant could obtain protection in practice. 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 state protection

My Migration Lawyers acts in protection visa matters where state protection is the central issue, 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 family violence, honour-based threats, criminal groups and claims against officials, and is capable of handling them from application to review.

The firm's work includes identifying whether state protection is likely to be raised, gathering evidence of how the police and courts actually respond, presenting country information on protection for people in the applicant's position, and addressing the refugee test and the complementary protection test separately. 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 worried the Department will say the police in your country would protect you, that question needs to be answered with evidence. Book a consultation with My Migration Lawyers online, or call 1300 040 300.