Protection Visa Sur Place Claims

Protection Visa Sur Place Claims cover a situation many applicants do not realise the law recognises. A person may have left their country safely, on a tourist or student visa, with no intention of seeking protection. Then something changes. The government at home falls. A new law criminalises their religion. They convert, come out, join a political movement, or are exposed online. Suddenly, going home is dangerous.

The law does not require a person to have been a refugee on the day they left. Protection Visa Sur Place Claims are assessed on whether the person faces a real risk now, if they return. But these claims are tested closely, because the Department is alert to claims created in Australia simply to obtain a visa. This article explains what counts as a sur place claim, the special rule in section 5J(6), and how to present a sur place claim so that it is believed.

What are Protection Visa Sur Place Claims?

Protection Visa Sur Place Claims are claims for protection based on events that occurred after the applicant departed their country. "Sur place" means "in place". The term describes a person who becomes a refugee, or becomes at risk of significant harm, while they are already outside their country.

The Department's processing guidelines describe sur place claims as arising from events and incidents after departure. They give examples including the applicant's activities outside their country of origin, and actions taken by their country of origin, the Australian government or third parties. The guidelines also recognise that an applicant may make a combination of claims, some based on events before departure and some based on events after it.

Protection Visa Sur Place Claims can be made under either pathway to a Subclass 866 protection visa. They can support a refugee claim under section 36(2)(a), a complementary protection claim under section 36(2)(aa), or both. The general guide to the protection visa explains the two tests.

Two types of Protection Visa Sur Place Claims

There are two broad types of Protection Visa Sur Place Claims. They are assessed differently, so it matters which type a claim falls into.

Changes in the home country

The first type arises from events in the home country after the applicant left. The applicant has done nothing new. The situation at home has changed around them. Examples include:

• a change of government, a coup or the outbreak of conflict;
• a new law that criminalises the applicant's religion, political party, sexual orientation or ethnic group;
• a crackdown on a group the applicant belongs to;
• the applicant becoming wanted by the authorities, for example because relatives or associates were arrested and named them; and
• threats against the applicant's family that show the applicant would be targeted on return.

Section 5J(6) has no role in this type of claim, because it deals only with conduct in Australia. The question is simply whether, in light of the changed conditions, there is now a real chance of persecution or a real risk of significant harm.

The applicant's own conduct after leaving

The second type arises from something the applicant has done since leaving. Examples include converting to another religion, openly identifying as LGBTI, taking part in political protests, publishing criticism of the home government online, or appearing in the media. It also includes situations where the applicant has become identifiable in other ways, for example as a failed asylum seeker.

This type of claim raises the section 5J(6) rule where the conduct took place in Australia. It also raises the most difficult credibility questions. The rest of this article focuses mainly on this second type.

Who makes Protection Visa Sur Place Claims?

Protection Visa Sur Place Claims are most often made by people who came to Australia for another purpose and never expected to seek protection. They include international students, visitors, working holiday makers, skilled workers and partners of Australian residents. Many have lived in Australia for years before anything changed.

The visa a person holds does not prevent a sur place claim. What matters is whether they meet the validity requirements for a protection visa application, and whether any bar applies. A person whose visa carries a no further stay condition, or who has previously been refused a protection visa, needs advice before lodging. The guides to applying for a Subclass 866 visa on a tourist visa or as an international student explain those issues.

Protection Visa Sur Place Claims can also be made by people who were at risk when they left but did not realise it, or who did not disclose the full reason at the time. In those cases, the claim may combine events before departure with events after it. The Department's guidelines expressly recognise combined claims of this kind. The key is to explain clearly which events happened when, so that the Department can see how the risk developed.

Section 5J(6) and Protection Visa Sur Place Claims

Section 5J(6) is the central rule for Protection Visa Sur Place Claims based on conduct in Australia. It provides that, in deciding whether a person has a well-founded fear of persecution, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that they engaged in the conduct otherwise than for the purpose of strengthening their claim to be a refugee.

Three features of this rule are important.

• The burden is on the applicant. The section does not require the Department to prove bad faith. It requires the applicant to satisfy the decision maker that the conduct was not engaged in for the purpose of strengthening the claim.
• It only affects the refugee test. The Department's guidelines state that section 5J(6) is not relevant in assessing complementary protection. The reaction in the home country to activities the applicant undertakes in Australia, for any reason, cannot be disregarded and must be considered under complementary protection.
• It only covers conduct in Australia. Events in the home country, and conduct in third countries, are not caught by section 5J(6).

The guidelines add that conduct disregarded under section 5J(6) may still be taken into account in assessing the applicant's credibility. They also state that an applicant whose conduct has been disregarded may nevertheless engage Australia's non-refoulement obligations, and should not be removed until all the consequences of their conduct have been assessed.

The point most people miss about section 5J(6)

The point most people miss is that section 5J(6) does not make Protection Visa Sur Place Claims based on conduct in Australia worthless. Two things remain true even where the Department finds that conduct was engaged in to strengthen a claim.

First, the conduct must still be considered under complementary protection. If the authorities in the home country would learn of the conduct and would seriously harm the applicant because of it, the reason the applicant did it does not remove that risk. The Complementary Protection Guidelines state that any conduct disregarded under section 5J(6) for the refugee assessment must be considered under the complementary protection criteria. The page on complementary protection explains that test.

Second, genuine conduct is not disregarded. A person who converts because they have come to believe, or who comes out because they have finally found a safe place to do so, is not engaging in conduct to strengthen a claim. The guide on divorced women as a particular social group discusses a Tribunal decision where this question arose in relation to a divorce in Australia.

Protection Visa Sur Place Claims based on changes at home

Protection Visa Sur Place Claims based on changes in the home country succeed or fail on current country information. The question is always whether the applicant faces a real risk if returned now, not whether they faced one when they left.

That has three practical consequences. First, the evidence must show what changed, when it changed, and how the change affects people in the applicant's specific position. A general report that the country has become more dangerous is rarely enough. Second, the applicant must connect the change to themselves. A new law against a religious group matters only if the applicant belongs to that group, or would be seen as belonging to it. Third, the evidence may need to be updated while the application is being decided. Protection applications can take a long time, and conditions can improve or worsen during that period. Further information can be given to the Department at any time before a decision is made.

Where conditions change again after a refusal, the same principle applies at review. The Tribunal decides the case on the information available at the time of its own decision, which is why current evidence matters at every stage.

Common examples of Protection Visa Sur Place Claims

Protection Visa Sur Place Claims arise in many different settings. The most common include the following.

Religious conversion in Australia

A person who converts after arriving in Australia may face serious harm if they return to a country where apostasy or conversion is punished by the state, the community or their family. The conversion itself is the conduct that section 5J(6) examines. The Department will look closely at whether the faith is genuinely held. The page on religious persecution explains how genuineness of belief is tested.

Coming out as LGBTI after arrival

The Department's guidelines recognise sur place LGBTI claims directly. They state that LGBTI applicants may not have identified themselves as LGBTI before they left, or may have decided not to express their sexual orientation or gender identity at home. Claims may arise where an applicant engages in activism, uses social media, or is exposed by someone else. The page on the LGBTI protection visa explains these claims in detail.

Political activity outside the home country

Protests, online commentary, membership of diaspora organisations and media appearances can all create risk if the home government monitors its citizens abroad. The question is whether the authorities are likely to know about the activity and whether they would harm the applicant because of it.

Being identified as a failed asylum seeker

In some countries, people returned after seeking asylum abroad are treated with suspicion. The Department's guidelines, in their guidance on applicants affected by privacy data breaches, give examples of sur place claims such as treatment on return as a failed asylum seeker and treatment on return as a former detainee. Whether this risk is real depends on country information about the specific country.

Evidence for Protection Visa Sur Place Claims

The evidence for Protection Visa Sur Place Claims must answer three questions: did the conduct or event really happen, is it genuine, and would it lead to harm on return. A claim that proves only the first question is not enough.

Proving the event or conduct occurred

This may include photographs of protests, screenshots of social media posts, membership records, baptism or church attendance records, letters from community or religious leaders, media articles and witness statements. For changes in the home country, it includes reliable news reports and country information showing what has changed and when.

Showing the conduct is genuine

For conduct in Australia, the applicant must satisfy the decision maker that it was not engaged in to strengthen the claim. Relevant evidence often includes:

• the history of the applicant's interest or involvement before they came to Australia, even if it was private;
• how the conduct developed over time, and whether it continued after the protection claim was lodged;
• the depth of the applicant's knowledge and involvement, as distinct from attendance alone;
• private conduct that was never publicised, which is harder to explain as a device to obtain a visa; and
• evidence from people who know the applicant well and can describe the change from their own observation.

The Department's guidelines state that officers may conduct their own research into religious or political organisations in Australia, and may contact those organisations to make general enquiries. They also state that these enquiries must not breach the applicant's privacy and that applicants' names must not be given to those organisations.

Showing that harm would follow on return

The applicant must also show how the conduct would come to the attention of those they fear, and what those people would do. This may involve evidence that the home government monitors social media or diaspora activity, that the applicant's family already knows, or that the applicant would be unable to hide the change on return. For refugee purposes, section 5J(3) prevents decision makers from expecting a person to conceal religious beliefs, political opinions or sexual orientation to avoid persecution. The guide to evidence in a protection visa application explains how the Department weighs each type of evidence.

Timing and credibility in Protection Visa Sur Place Claims

Timing is the most sensitive credibility issue in Protection Visa Sur Place Claims. A conversion that happens a few weeks before a student visa expires, or a first protest attended a month after a visa refusal, will be scrutinised. That does not mean the claim is false. It means the timing must be explained honestly and in detail.

The Department's guidelines list legitimate reasons for delay in lodging a protection application, including changes in country conditions or personal circumstances after arrival in Australia. They also state that delay should not be the only reason for rejecting a claim, and that officers should explore the reasons for any delay with the applicant before relying on it. The guide to delay in a Subclass 866 application explains how delay is assessed.

The applicant's statement should set out the sequence of events clearly. It should explain when the change happened, why it happened then, and why the protection application was lodged when it was. The statement is the applicant's own evidence, reviewed and corrected by them before lodgement. The guide to the protection visa statement of claims explains how to structure it.

At interview, the officer is likely to ask detailed questions about how the conduct began, what it means to the applicant, and what they would do if returned. The guide to protection visa interview questions explains what to expect.

Protection Visa Sur Place Claims after a visa refusal

Protection Visa Sur Place Claims that arise after a protection visa has been refused raise a separate problem. Section 48A of the Migration Act generally prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in Australia. A new sur place claim does not automatically lift that bar.

If the refusal is still within the time limit for review, the claim should usually be raised at the Administrative Review Tribunal. The Tribunal considers the matter afresh, can take new evidence and new claims into account, and applies section 5J(6) in the same way. The time limit to apply for review is short and strictly applied from the date of notification. The Subclass 866 refusal ART guide explains how new claims are dealt with at review.

If review is no longer available, the options are more limited and may depend on ministerial intervention. Advice should be obtained before any step is taken. The protection visa refusals page explains the section 48A bar and the review process.

Tribunal decisions on Protection Visa Sur Place Claims

Published Tribunal decisions show how Protection Visa Sur Place Claims are dealt with on review. They are decisions on their own facts, and they do not guarantee any outcome in another case. They do show the questions the Tribunal asks.

• Conduct to strengthen a claim, assessed under complementary protection. In 1730101 (Refugee) \[2022\] AATA 4088 and 2014524 (Refugee) \[2022\] AATA 5095, both involving applicants from Vietnam with online political activity and Viet Tan connections, conduct regarded as engaged in to strengthen the refugee claim was assessed under complementary protection. Both matters were remitted to the Department for reconsideration.
• Protests in Australia and return as an asylum seeker. In 2206611 (Refugee) \[2023\] AATA 4316, the Tribunal considered an applicant from Myanmar who had joined anti-military protests in Australia, together with the risks faced by returning Myanmar asylum seekers. The matter was remitted.
• Online activity in Australia alongside earlier claims. In 1836973 (Refugee) \[2024\] AATA 4299, a Bangladeshi applicant's claims combined opposition-party activity and extortion at home with online activity in Australia. 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 that binds the Department. It is not itself the grant of a visa. These decisions are cited as published examples only. The protection visa ART hearing guide explains how evidence is presented at review.

How My Migration Lawyers handles Protection Visa Sur Place Claims

My Migration Lawyers acts in Protection Visa Sur Place Claims arising from conversion, coming out, political activity and changes in the home country. The firm deals with complex protection cases, acts in many Subclass 866 claims based on events after departure, and is capable of handling these matters from the first application through to review at the Administrative Review Tribunal.

On Protection Visa Sur Place Claims, the work usually involves:

• Identifying the type of claim. The firm assesses whether the claim rests on changes in the home country, on conduct in Australia, or both, because the legal rules differ.
• Presenting the applicant's own account. The account of how and why the change happened is taken in detail. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Evidence of genuineness. Witnesses, records and other material showing that the conduct is genuine are identified and presented.
• Evidence of risk on return. Country information about monitoring, reactions to the conduct and the treatment of people in the applicant's position is gathered.
• Complementary protection. Submissions address complementary protection separately, where section 5J(6) does not apply.
• Timing. The sequence of events and the reasons for the timing of the application are explained clearly and consistently.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia, including visitors and students whose situation changed after they arrived.

If something has changed since you left home and you now fear returning, the way the claim is presented from the start matters. Book a consultation with My Migration Lawyers online, or call 1300 040 300.