Protection Visa Well-Founded Fear of Persecution

A protection visa well-founded fear of persecution is the core requirement of the refugee criterion for a Subclass 866 visa. Under section 5J(1) of the Migration Act 1958, a person has a well-founded fear of persecution if they fear persecution for a Convention reason, there is a real chance they would be persecuted, and that real chance relates to all areas of their home country.

Most refugee claims are won or lost on the protection visa well-founded fear of persecution test. This article explains how a protection visa well-founded fear of persecution is assessed in Australia, what "real chance" means, why the test looks to the future rather than the past, how serious harm is defined, and what evidence decision makers rely on. It is written for people who have lodged, or are about to lodge, a Subclass 866 application and want to understand the standard their claim must meet. The visa's full criteria are on the Subclass 866 protection visa page.

What is a protection visa well-founded fear of persecution?

A protection visa well-founded fear of persecution is the statutory test in section 5J of the Migration Act that decides whether a person is a refugee. Section 36(2)(a) requires the Minister to be satisfied that the applicant is a refugee, and section 5H(1) defines a refugee by reference to a well-founded fear of persecution.

The Department of Home Affairs' Protection Visa Processing Guidelines break section 5J(1) into three elements:

• a subjective element: whether the applicant fears being persecuted for at least one of five reasons, being race, religion, nationality, membership of a particular social group or political opinion;
• an objective element: whether there is a real chance of persecution; and
• an internal relocation element: whether the real chance of persecution relates to all areas of the receiving country.

Each element of a protection visa well-founded fear of persecution must be met. A person who is genuinely afraid, but whose fear has no objective basis, does not have a well-founded fear. A person who faces a real chance of serious harm, but not for a Convention reason, may not be a refugee, although they may still be protected under complementary protection.

Sections 5J(2) and 5J(3) then set out two situations where a person does not have a well-founded fear, even if the three elements appear to be met. The first is where effective protection measures are available in the home country. The second is where the person could take reasonable steps to modify their behaviour to avoid the persecution, subject to important exceptions. Both are explained later in this article.

The subjective element: do you fear persecution?

The subjective element of a protection visa well-founded fear of persecution asks whether the applicant actually fears being persecuted. In most cases this is not in dispute. The fact that a person has left their country and applied for protection is usually evidence of fear.

The subjective element becomes an issue where the conduct of the applicant appears inconsistent with fear. Common examples include a long delay before applying for protection, returning to the home country on a visit, or renewing a passport issued by the authorities the person says they fear. None of these automatically defeats a claim. Each can have an explanation, such as a lack of knowledge about the protection system, the need to visit a dying parent, or a belief that the risk had passed at the time. The explanation should be given in the applicant's own statement. The guide to a delayed Subclass 866 protection visa application explains how delay is assessed.

Where the applicant is a child, the guidelines recognise that a young child may not be able to express fear in the way an adult can. In those cases, decision makers are directed to give more weight to objective factors, including the treatment of the child's family.

The objective element: what is a real chance?

A real chance is a substantial chance of persecution, as opposed to a remote or far-fetched possibility. This is the test established by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs, and it is now reflected in section 5J(1)(b).

The Department's Complementary Protection Guidelines summarise Chan in this way. A real chance is not a precise science. It is not measured in percentages. It requires less than a 50 per cent chance of persecution, and the High Court accepted that it may be as low as a 10 per cent chance.

This is one of the most misunderstood points in protection law. Many applicants, and some online sources, assume that a protection visa well-founded fear of persecution requires proof that persecution is likely or probable. It does not. The question is whether the chance is real, not whether it is more likely than not. A claim does not fail simply because the decision maker thinks the applicant will probably be safe.

The same real chance standard now applies to complementary protection. The Full Federal Court in SZQRB held that the "real risk" test in section 36(2)(aa) is the same as the real chance test under the refugee criterion.

Why a protection visa well-founded fear of persecution looks to the future

A protection visa well-founded fear of persecution is assessed by looking at what may happen if the applicant returns, not only at what has already happened. The question is whether there is a real chance of persecution in the reasonably foreseeable future, assessed at the time of the decision.

This has several practical consequences.

• Past harm is not required. A person who has never been harmed can still have a well-founded fear. A journalist who fled before being arrested, or a person whose sexual orientation has never been discovered, may face a real chance of persecution on return.
• Past harm is strong evidence. Where a person has been persecuted before, that history is often the best evidence of future risk. The High Court in Guo Wei Rong observed that proof that events have occurred often provides a reliable basis for deciding the probability of their recurrence.
• Past harm is not enough on its own. If circumstances have changed, past persecution may no longer create a real chance of future harm. The decision maker will ask whether the risk continues today.
• The period must be foreseeable. The Federal Court has described the reasonably foreseeable future as a period that can be assessed on probative material, without extending into guesswork.

The Department's guidelines make one further point clearly. Even if claimed incidents of past harm are not accepted, the decision maker must still address the real chance of persecution in the reasonably foreseeable future. A finding that part of an account is not believed does not end the inquiry. The decision maker must still consider the facts it does accept, including the applicant's profile and the country information.

How a change in country conditions affects your claim

A change of government, a peace agreement or a new law does not automatically remove a protection visa well-founded fear of persecution. The question is whether the change is real, lasting and affects the particular risk the applicant faces.

Decision makers often rely on a change in country conditions to refuse a claim. The applicant's answer should address three questions:

• Has the change reached the people who would harm me? A new national government may not control local officials, militias or political rivals.
• Is the change durable? A recent ceasefire or reform may not yet have produced lasting safety.
• Does the change address my profile? A general improvement may not protect someone with a known history, family connection or public profile.

Published Tribunal decisions show the issue in practice. In 2017468 (Refugee) \[2022\] AATA 2664, involving an applicant from India who claimed continuing personal hostility from political attackers despite a change of government, the Tribunal remitted the matter. In 2101519 (Refugee) \[2024\] AATA 988, involving a Tigrayan applicant with an opposition profile who claimed continued targeting despite a peace agreement, the Tribunal also remitted the matter. 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.

How decision makers assess a protection visa well-founded fear of persecution step by step

Decision makers usually work through a protection visa well-founded fear of persecution claim in a fixed order. Knowing the order helps an applicant give evidence that answers each question in turn.

• Find the facts. The decision maker decides which parts of the applicant's account it accepts. This is where credibility is tested, usually at the protection visa interview or the Tribunal hearing.
• Identify the Convention reason. On the accepted facts, why would the persecutor target the applicant?
• Assess the harm. Would the harm feared be serious harm involving systematic and discriminatory conduct?
• Assess the chance. Is there a real chance of that harm in the reasonably foreseeable future, having regard to country information?
• Test the whole country. Does the real chance exist in all areas, or could the applicant safely relocate?
• Check the exclusions. Is effective protection available, or could the applicant avoid the harm by reasonable behaviour modification that falls outside the exceptions?

A protection visa well-founded fear of persecution can fail at any of these steps. The decision record will show where the claim failed. A person preparing a claim, or a review, should direct their evidence to the step that matters most in their case. A refusal at the fact-finding step calls for different evidence from a refusal at the relocation step.

What counts as persecution under section 5J(4)

Persecution has a specific statutory meaning in every protection visa well-founded fear of persecution claim. Under section 5J(4), a Convention reason must be the essential and significant reason for the persecution, the persecution must involve serious harm, and it must involve systematic and discriminatory conduct.

Serious harm

Section 5J(5) gives examples of serious harm. They include:

• a threat to the person's life or liberty;
• significant physical harassment of the person;
• significant physical ill-treatment of the person;
• significant economic hardship that threatens the person's capacity to subsist;
• denial of access to basic services, where the denial threatens the person's capacity to subsist; and
• denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

The list is not exhaustive. Other harm can be serious harm if it is of a similar level of seriousness. Discrimination alone, such as unfair treatment at work or social exclusion, will not usually be serious harm unless it reaches this level.

Systematic and discriminatory conduct

The requirement that persecution be systematic does not mean it must be organised or repeated many times. The Processing Guidelines explain that the phrase refers to selective harassment, as opposed to random harm. The applicant is targeted because of who they are or what they believe.

Cumulative harm

Several forms of harm that are not individually serious may together amount to persecution. Repeated detentions, threats, loss of employment and restrictions on movement may, in combination, cross the threshold even if no single incident does. A claim should present the harm as a whole, not as a list of separate complaints.

Who can be the persecutor?

Persecution does not need to come from the government for a protection visa well-founded fear of persecution to exist. It can come from state officials, from armed groups, from a community, or from a family. Where the persecutor is not the state, the claim must also deal with whether the state can provide effective protection. The guide to protection visa eligibility explains how the refugee and complementary protection criteria fit together.

Harm by family members is common in claims based on gender, sexual orientation or religious conversion. The claim must still link the harm to a Convention reason. A family that attacks a daughter because she has left an arranged marriage, in a society that punishes that choice, may be persecuting her for a Convention reason. A family dispute over an inheritance may not be.

When a protection visa well-founded fear of persecution is excluded

Section 5J(2) and section 5J(3) set out two situations where a person does not have a protection visa well-founded fear of persecution, even though there is a real chance of harm.

Effective protection is available

Under section 5J(2), a person does not have a well-founded fear if effective protection measures are available to them in the home country. Section 5LA explains what effective protection measures are. In broad terms, the question is whether the state, or a party or organisation that controls the relevant area, is willing and able to protect the applicant through an appropriate criminal law, a reasonably effective police force and an impartial judicial system. A law on paper is not enough if it is not enforced for people like the applicant.

Behaviour modification

Under section 5J(3), a person does not have a well-founded fear if they could take reasonable steps to modify their behaviour to avoid persecution. The exceptions are important. A person cannot be required to modify behaviour in a way that would conflict with a characteristic fundamental to their identity or conscience, conceal an innate or immutable characteristic, or do things such as alter their religious beliefs, conceal their sexual orientation or gender identity, or conceal their true race, ethnicity or nationality.

Relocation within the country

Section 5J(1)(c) requires the real chance of persecution to relate to all areas of the country. If there is a part of the country where the applicant would not face a real chance of persecution, the refugee criterion may not be met. Relocation is often decisive and should be addressed directly in the claim.

Conduct in Australia and a protection visa well-founded fear of persecution

Section 5J(6) requires the decision maker to disregard conduct the applicant engaged in while in Australia when deciding whether they have a well-founded fear, unless the applicant satisfies the decision maker that they engaged in the conduct otherwise than for the purpose of strengthening their claim.

This affects claims based on political activity, religious conversion or public statements made in Australia. Genuine conduct, such as a conversion that reflects a real change of belief or long-term political involvement, can be relied on. Conduct undertaken mainly to create a claim cannot. Even where conduct is disregarded under section 5J(6), it may still be considered under complementary protection, which has no equivalent rule.

Evidence that supports a protection visa well-founded fear of persecution

The evidence for a protection visa well-founded fear of persecution usually comes from two sources: the applicant's own account and the country information.

The applicant's account. The decision maker must first decide what facts it accepts. A detailed, consistent and plausible statement is often the most important evidence in the case. It should explain who the persecutor is, why they would target the applicant, what has happened before, what has happened since the applicant left, and why the risk continues. The guide to the protection visa statement of claims explains how the statement is structured.

Country information. The decision maker then asks whether, on the facts accepted, there is a real chance of persecution. That question is answered largely by reference to reports on conditions in the home country. 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. Other credible reports may be used alongside them.

Supporting documents. Arrest warrants, summonses, medical reports, membership records, photographs, messages and statements from witnesses can support the account. The Processing Guidelines recognise that some applicants will not have documents, and that the absence of documents does not in itself make a claim unreliable. The guide to protection visa evidence and the protection visa documents checklist explain what to gather.

Common mistakes in protection visa well-founded fear of persecution claims

Many claims fail on the well-founded fear test for avoidable reasons:

• Describing only the past. A statement that sets out past incidents but does not explain why the risk continues today leaves the key question unanswered.
• Ignoring a change in country conditions. If the government has changed, the claim should explain why the risk remains.
• Treating general violence as persecution. Harm that affects everyone equally, such as general crime, is not persecution unless the applicant is selectively targeted for a Convention reason.
• Failing to identify the Convention reason. The claim must explain why the persecutor would target the applicant.
• Not dealing with relocation or state protection. These are frequent grounds of refusal and must be addressed in the claim.
• Inconsistent evidence. Differences between the application, the statement and the interview are a common reason facts are rejected. The guide to protection visa interview preparation explains how to avoid this.

A protection visa well-founded fear of persecution after a refusal

If the Department finds that there is no protection visa well-founded fear of persecution, 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, on the evidence and country information at the time of its decision, so new evidence and changes since the Department's decision 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 well-founded fear of persecution claims

My Migration Lawyers analyses the protection visa well-founded fear of persecution test in every Subclass 866 matter it takes on, at the Department and at the Administrative Review Tribunal. The firm deals with complex protection cases, acts in many protection visa matters where the central issue is whether the fear is well-founded, and is capable of handling claims involving changed country conditions, credibility disputes and non-state persecutors.

The firm's work includes identifying the Convention reason, testing the real chance of harm against current country information, addressing relocation, state protection and behaviour modification, and preparing the applicant 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 need to show a protection visa well-founded fear of persecution, or your application was refused because the decision maker found your fear was not well-founded, have your claim assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.