Protection Visa Claims Based on Tribal Violence and Land Disputes

Protection visa claims based on tribal violence and land disputes arise when a person fears that a rival clan, their own relatives or a powerful group will kill or seriously harm them over land, over a past killing, or over their membership of one tribe. In some countries these conflicts end in payback killings, burned houses and whole families driven from their land.

Protection visa claims based on tribal violence and land disputes are not a separate category under the Migration Act 1958. They are assessed under the two tests that apply to every Subclass 866 application: the refugee test in section 36(2)(a) and the complementary protection test in section 36(2)(aa). What makes these claims difficult is that the harm is usually caused by private people, for reasons that may look personal or economic rather than political. This article explains how the law deals with that problem, and where these claims are most often won or lost.

Can tribal violence or a land dispute support a protection visa?

Yes. Tribal violence or a land dispute can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution for a Convention reason, or faces a real risk of significant harm, and effective protection is not available anywhere in their country.

The situations that most often lead to protection visa claims based on tribal violence and land disputes include:

• Payback or retaliatory killings. A member of the applicant's clan killed or injured someone from another clan, and the other clan now seeks revenge against any male relative, or against the applicant in particular.
• Resisting the sale or seizure of land. A landowner refuses to sign over customary land to a company, a local official or a powerful family, and is threatened or attacked for refusing.
• Mining and development. A person opposes a mining or logging project on clan land, or speaks for landowners in negotiations, and becomes a target.
• Inheritance disputes. Relatives try to take inherited land from a widow, a child or a family member who lives elsewhere, using threats or violence.
• Tribal fighting. Two tribes are in open conflict, and members of one tribe are attacked because of who they are.

The fact that violence is common in the applicant's home area is not enough on its own. In protection visa claims based on tribal violence and land disputes, the decision maker will ask who will harm the applicant, why, whether the police would protect them, and whether they could live safely somewhere else. The definitive guide to the Subclass 866 protection visa sets out the general criteria, and the guide to protection visa eligibility explains what to check before applying.

Why is a land dispute often treated as a private dispute?

A land dispute is often treated as a private dispute because the reason for the harm appears to be the land itself, not the applicant's race, religion, nationality, political opinion or membership of a particular social group. That is the central problem in protection visa claims based on tribal violence and land disputes, and many applications fail on it.

The refugee test in section 5J(1)(a) requires a fear of persecution for one of the five Convention reasons. Under section 5J(4)(a), that reason must be the essential and significant reason for the persecution. A person who is attacked because a neighbour wants their field, or because of a quarrel over a boundary, is a victim of serious crime. That does not make them a refugee.

This is the point on which much online commentary is wrong. It is often said that anyone who faces tribal violence or loses land to a powerful group qualifies for a protection visa. That is not the law. Protection visa claims based on tribal violence and land disputes must identify why the applicant, rather than someone else, is the target, and must connect that reason to a Convention ground. Where no Convention reason exists, protection visa claims based on tribal violence and land disputes may still succeed, but under complementary protection, which is explained below. The guide to permanent protection visa eligibility sets out how the two tests fit within the Subclass 866 criteria.

The honest position is that many land disputes will not meet the refugee test. Some do. The difference usually lies in the facts that surround the dispute: who the attackers are, what they are trying to achieve, and whether the applicant was chosen because of the group they belong to or the stand they took.

When is a tribe or clan a Convention ground?

A tribe or clan can be a Convention ground where the applicant is targeted because of their tribal or clan identity. It may fall within race or within membership of a particular social group, depending on the facts.

Tribe or clan as race

Race is read broadly. It includes ethnicity and national or tribal origin. Where members of one tribe are attacked because they belong to that tribe, in fighting between tribes or in a campaign to drive one tribe off land, the harm may be for reasons of race. In protection visa claims based on tribal violence and land disputes, this ground is strongest where the attackers target people for who they are, and not only for what they own. Persecution of a whole ethnic or minority group is covered in My Migration Lawyers' separate guidance on ethnic and minority group claims.

Tribe or clan as a particular social group

Section 5L of the Migration Act sets out when a person is a member of a particular social group other than their family. Each member must share a characteristic. The characteristic must be innate or immutable, or so fundamental to identity or conscience that a member should not be forced to renounce it, or must distinguish the group from the rest of society. The characteristic must not be the fear of persecution itself. Membership of a clan by birth is usually innate and recognised in the community. In protection visa claims based on tribal violence and land disputes, the group should be defined by the characteristic that actually explains the targeting. A group defined only as "people who own disputed land" is harder, because owning land is not usually an innate characteristic.

Can the family be the group?

Yes, but section 5K limits it. In protection visa claims based on tribal violence and land disputes, the applicant's family is often the real target. Section 5K provides that, where the group relied on is the applicant's family, any fear of persecution or persecution experienced by a family member must be disregarded if the reason for it was not a Convention reason. So if a relative was killed over land alone, that killing cannot carry a family-based refugee claim. Where the relative was targeted for a Convention reason, such as tribal identity or political opinion, the family group can work. Family vendettas and blood feuds are dealt with in separate guidance on blood feud claims. The Subclass 866 protection visa page explains how family members are included in one application.

When does resisting land seizure become a political opinion claim?

Resisting land seizure can become a political opinion claim where the applicant opposes officials, a political faction, the military, or powerful interests connected to the state, and those people see the resistance as a challenge to their authority. In protection visa claims based on tribal violence and land disputes, this is often the strongest route to the refugee test.

Political opinion is not limited to membership of a party. It includes an opinion the persecutors impute to the applicant, whether or not the applicant holds it. A landowner who refuses to surrender clan land to a company backed by local officials, who organises other landowners, or who complains publicly about a seizure, may be seen as an opponent of those in power. If that is why they are threatened, the harm may be for reasons of political opinion.

The facts that usually matter in protection visa claims based on tribal violence and land disputes of this kind are:

• who is trying to take the land, and what links they have to government, police or political figures;
• what the applicant did, such as refusing to sign, leading a group of landowners, speaking to the media or taking the matter to court;
• how the threats were expressed, including words that show the applicant was seen as an opponent; and
• what happened to other people who resisted in the same way.

A decision maker may ask whether the applicant could simply give up the land, or stop objecting, to stay safe. Section 5J(3) of the Migration Act says a person does not have a well-founded fear if they could take reasonable steps to modify their behaviour to avoid persecution. That provision does not apply where the change would conflict with a characteristic fundamental to identity or conscience. It also lists changes that can never be required, including altering or concealing true political beliefs. Where the resistance reflects a genuine political opinion, the applicant cannot be told to abandon it. In protection visa claims based on tribal violence and land disputes, whether an applicant can be expected to give up land to avoid harm, where no political opinion is involved, depends on the facts, and it should be argued directly. The guide to Form 866 explains where each ground is set out in the application.

What harm counts in protection visa claims based on tribal violence and land disputes?

In protection visa claims based on tribal violence and land disputes, the harm must be serious harm for the refugee test, or significant harm for complementary protection. A threat to take property, on its own, is not usually enough.

Section 5J(5) gives examples of serious harm. They include a threat to life or liberty, significant physical harassment or ill-treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services that threatens the capacity to subsist, and denial of the capacity to earn a livelihood of any kind that threatens the capacity to subsist. Under section 5J(4), persecution must also involve systematic and discriminatory conduct.

The economic examples matter in protection visa claims based on tribal violence and land disputes. For a family that lives from customary land, losing that land may mean losing food, shelter and any way to earn a living. Where that loss threatens the family's capacity to subsist, and it is inflicted for a Convention reason, it may amount to serious harm. A loss of wealth that leaves the family able to survive will usually not.

Harm raised in protection visa claims based on tribal violence and land disputes often includes:

• threats to kill the applicant or male relatives in revenge for an earlier killing;
• attacks on the applicant's house, crops or livestock;
• serious assaults during tribal fighting;
• forced removal from clan land and destruction of the village; and
• pressure to join a clan's fighters.

A person who took part in tribal fighting, or who belonged to an armed group defending land, should know that the law can exclude a person from protection where there are serious reasons for considering that they committed a serious non-political crime, a war crime or a crime against humanity. That question depends heavily on what the person did, and should be assessed carefully before any application is lodged.

Complementary protection for tribal violence and payback killings

For protection visa claims based on tribal violence and land disputes, complementary protection applies where the applicant faces a real risk of significant harm, even if the harm is not for a Convention reason. It is often the right framework where the dispute is about land alone, or where a revenge killing is sought for a personal reason.

Section 36(2)(aa) requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm. Section 36(2A) sets out the only kinds of significant harm: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. A real risk of being killed in a payback attack can fall within arbitrary deprivation of life, even though the killer is a private person rather than an official. The page on complementary protection explains the test in more detail.

For protection visa claims based on tribal violence and land disputes, the Complementary Protection Guidelines state that a high crime rate and poor police control do not, on their own, establish a real risk of arbitrary deprivation of life by a non-state actor. There must be something about the applicant's own situation.

That links to section 36(2B)(c). There is taken not to be a real risk if the risk is faced by the population of the country generally and not by the applicant personally. Decision makers sometimes treat tribal fighting as general violence and refuse protection visa claims based on tribal violence and land disputes on that basis. That approach is often wrong. The guidelines say a general statement that violence is rife is not enough to apply section 36(2B)(c), and that a person who belongs to a class of persons who would be targeted is personally at risk. A man whose clan has been named for payback is not facing the general risk of the population. He is facing a risk because of who he is. The Subclass 866 complete guide explains how the two tests sit together.

Will the police protect a person from tribal violence?

The police will protect a person from tribal violence only if protection is actually available to that person, is durable, and comes from a reasonably effective police force and an impartial justice system. In protection visa claims based on tribal violence and land disputes, this is usually the decisive question.

For the refugee test, section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available. Section 5LA explains what that means. Protection may come from the state, or from a party or organisation that controls the state or a substantial part of its territory. It must be willing and able to protect. It is taken to be able to protect only if the person can access the protection, the protection is durable, and it consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

In protection visa claims based on tribal violence and land disputes, the answer often turns on facts such as these:

• police in rural areas may be few, poorly resourced, or unwilling to enter areas of tribal fighting;
• police may treat tribal and land matters as village business and refer them back to clan leaders;
• individual officers may belong to one of the clans in conflict, or be connected to the people seizing the land; and
• arrests for payback killings may be rare, and those arrested may be released.

The processing guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye. For complementary protection, section 36(2B)(b) asks a separate question: whether the applicant could obtain protection from an authority of the country such that there would not be a real risk. Findings made under one test cannot simply be adopted for the other.

Can the applicant relocate to another part of the country?

The applicant may be refused if they could safely relocate within their country, but relocation is often not a real option in protection visa claims based on tribal violence and land disputes. The refugee test and complementary protection apply different tests, and each must be addressed.

For a refugee claim, section 5J(1)(c) requires the real chance of persecution to relate to all areas of the country. For complementary protection, section 36(2B)(a) asks whether it would be reasonable, in the sense of practicable, for the applicant to relocate to an area where there would be no real risk. The processing guidelines direct officers to consider the motivation and ability of a non-state agent to pursue the applicant.

Relocation arguments in these claims usually rest on three points:

• Clan networks reach far. Clans and tribes may have members in towns and cities across the country, and news of a person's arrival can travel quickly.
• Survival depends on land and clan. In many rural communities, food, housing, work and personal safety come from customary land and clan support. A person cut off from both may be unable to live elsewhere.
• Newcomers are exposed. A person who arrives in another area without clan ties may be seen as an outsider, may be identified by name, language or appearance, and may face hostility from local groups.

Each point must be supported by evidence and country information. A general statement that relocation is impossible is rarely enough.

Evidence for protection visa claims based on tribal violence and land disputes

The evidence in protection visa claims based on tribal violence and land disputes must show who the applicant fears, why they are targeted, and why neither the police nor relocation would keep them safe.

Useful evidence may include:

• the applicant's own detailed written account of the dispute, the conflict and each incident;
• letters from a village chief, clan elder, church leader or community leader who knows the facts;
• land records, customary ownership documents, court papers or records of land negotiations, where they exist;
• police reports and the response, or an explanation of why no report was made;
• medical records, photographs of injuries and death certificates of relatives who were killed; and
• country information on tribal conflict, land disputes and policing in the applicant's home area.

The applicant's account carries the claim. It should explain the history of the dispute, what the applicant did, what threats were made and by whom, and what happened to others in the same position. The guides to the protection visa statement of claims and protection visa evidence explain how that account is supported, and the protection visa documents checklist lists common documents. The applicant will be questioned closely at interview, as the pages on the protection visa interview and protection visa interview questions explain. Where a dispute is about bride price rather than land, separate guidance on bride price claims applies.

What if protection visa claims based on tribal violence and land disputes are refused?

If the Department refuses the application, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply for review is short and strictly applied, and it runs from the date the applicant is notified of the decision.

Refusals of protection visa claims based on tribal violence and land disputes usually rest on one of four findings: that the dispute is private and has no Convention reason, that the risk is general rather than personal, that the police would protect the applicant, or that the applicant could relocate. Each finding can be tested at review with better evidence and clearer argument. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process.

How My Migration Lawyers acts in protection visa claims based on tribal violence and land disputes

My Migration Lawyers acts in protection visa claims based on tribal violence and land disputes for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the danger comes from non-state groups and the case turns on the Convention reason, state protection and relocation. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work on protection visa claims based on tribal violence and land disputes includes:

• Finding the Convention reason. The firm examines whether the facts show tribal identity, a particular social group or a political opinion, and applies section 5K where the family is the group.
• Arguing both tests. The claim is presented under the refugee test and complementary protection from the start.
• Personal risk. The evidence shows why the risk is personal to the applicant and not the general risk of tribal fighting.
• State protection and relocation. Current country information on policing and clan networks is used to address the issues on which these claims most often fail.
• The applicant's own account. The statement is the applicant's own evidence, taken with an interpreter where needed, which they review and correct before it is lodged. The applicant decides which claims are advanced.
• Interview and review. The applicant is prepared for interview, and a refused claim is assessed for review within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers page explains how it acts in Subclass 866 matters more generally.

If you fear returning home because of tribal violence or a dispute over land, book a consultation with My Migration Lawyers online, or call 1300 040 300.