Protection Visa Claims by Whistleblowers and Police Informants

Protection visa claims by whistleblowers and police informants arise when a person has exposed wrongdoing, or given information to the police, and now faces reprisals if they return home. The people seeking revenge may be corrupt officials, a powerful employer, a gang, a cartel, a militia or a trafficking network.

Protection visa claims by whistleblowers and police informants are assessed under the same two tests as every Subclass 866 application: the refugee test in section 36(2)(a) of the Migration Act 1958 and the complementary protection test in section 36(2)(aa). These claims have their own difficulties. The motive for the harm is often revenge, which decision makers may treat as personal rather than political. The person may also have trusted the very authorities who are now expected to protect them. This article explains how the law applies to both groups and where these claims are usually won or lost.

What are protection visa claims by whistleblowers and police informants?

Protection visa claims by whistleblowers and police informants are Subclass 866 claims made by people who fear serious harm because they reported, exposed or gave evidence about wrongdoing by others. They usually fall into two groups.

• Whistleblowers. These are people who exposed corruption, fraud, abuse or other wrongdoing by government officials, police, the military, an employer or a powerful person. Many are public servants, bank staff, auditors, procurement officers or employees of companies with political connections.
• Police informants and witnesses. These are people who gave information to the police or a prosecutor about a gang, cartel, militia, trafficking ring or other criminal group, or who agreed to give evidence in court.

Both groups share one feature. The harm they fear is a response to something they did. That makes the reason for the harm the first legal question. 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. The guide to permanent protection visa eligibility sets out the requirements for the grant itself.

Two related claim types are dealt with separately. Journalists who exposed wrongdoing through their reporting have their own guidance. People whose claims rest on political activity in Australia are also covered elsewhere.

Can exposing corruption be a political opinion?

Yes. Exposing corruption can be an actual or imputed political opinion where the disclosure challenges the state, its officials or the people who hold power through it.

Section 5J(1)(a) of the Migration Act lists five Convention reasons: race, religion, nationality, membership of a particular social group and political opinion. Under section 5J(4)(a), the Convention reason must be the essential and significant reason for the persecution. In protection visa claims by whistleblowers and police informants, political opinion is the ground most often argued for whistleblowers.

Political opinion is not limited to membership of a party or taking part in protests. A person who reports that a minister, a police commander or a customs chief is taking bribes is challenging the way power is exercised in that country. Where corruption is part of how the state operates, exposing it is a challenge to the state itself. The opinion may also be imputed. If the officials who were exposed now treat the whistleblower as an opponent of the government, the harm is for reasons of political opinion even if the whistleblower never saw themselves as political.

Protection visa claims by whistleblowers and police informants are strongest on this ground when the evidence shows:

• Who was exposed. A state official, an agency, or a person or company closely tied to those in power.
• How the disclosure was received. For example, the whistleblower was labelled disloyal, an enemy of the government or a foreign agent.
• Who is now pursuing the person. Officials, police or security agencies, or people acting with their support.

When a whistleblower's claim is treated as a private dispute

A whistleblower's claim is often treated as a private dispute where the person exposed was a private employer, a business partner or a rival, and the harm is simple revenge. Revenge alone is not a Convention reason. Many protection visa claims by whistleblowers and police informants are refused on this point. A decision maker may find that the person is at risk because they caused someone a financial loss, not because of any political opinion.

This is the point that many online explanations get wrong. They suggest that any person who reports wrongdoing is automatically a refugee. That is not the law. The facts must connect the harm to a Convention reason. Where they do not, the claim should be argued under complementary protection, which does not require a Convention reason at all.

Whistleblowers can also face criminal charges, such as leaking official secrets or defaming an official. Prosecution under a law that applies to everyone is generally not persecution. It can be persecution where the law or its enforcement is discriminatory, the punishment is disproportionate, or the prosecution is a pretext to silence the person. In protection visa claims by whistleblowers and police informants, that argument depends on evidence about how the charge arose and how similar cases are treated.

Are former police informants a particular social group?

No. Former police informants are not automatically a particular social group, and whether they can be one under section 5L is argued case by case rather than settled.

Section 5L sets out when a person is a member of a particular social group other than their family. Each member must share a characteristic. That characteristic must be innate or immutable, or so fundamental to identity or conscience that the person should not be forced to renounce it, or it must distinguish the group from society. The characteristic must not be a fear of persecution.

In protection visa claims by whistleblowers and police informants, the argument for informants is that the past act of informing cannot be undone. It is a historical fact about the person, and in that sense it is immutable. The difficulty is the last element. A group defined only as "people the gang wants to kill" is defined by the fear of persecution itself, and section 5L excludes that. The group must exist, and be recognised, independently of the harm. Evidence that informants are known and treated as a distinct class in the country, for example through public naming, formal witness status or a recognised label, helps the argument.

Protection visa claims by whistleblowers and police informants should not rest on this ground alone. The social group argument is presented alongside political opinion, where the criminal group is linked to the state, and alongside complementary protection. A person's own family may also be targeted, but section 5K generally prevents a family claim from succeeding where the harm to the family is not itself for a Convention reason.

Some informants were once members of the group they later informed on. Where that past involvement included serious non-political crimes, the exclusion provisions may need to be considered. That issue should be assessed before any claim is lodged. The Subclass 866 protection visa page explains the criteria that apply to every applicant.

When complementary protection applies to protection visa claims by whistleblowers and police informants

Complementary protection applies in protection visa claims by whistleblowers and police informants where the person faces a real risk of significant harm if returned, even if the harm is not for a Convention reason. For many police informants, it is the main framework.

Under section 36(2)(aa), the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the person will suffer significant harm. Section 36(2A) sets out a closed list of what counts as significant harm:

• arbitrary deprivation of life;
• the death penalty;
• torture;
• cruel or inhuman treatment or punishment; and
• degrading treatment or punishment.

A credible threat to kill an informant, made by a cartel that has killed informants before, can be a real risk of arbitrary deprivation of life. A risk of being abducted and beaten to punish the informing, or to find out what was said to police, can be torture or cruel or inhuman treatment. The definitions in section 5(1) require that the pain or suffering is intentionally inflicted. The Complementary Protection Guidelines state that the person inflicting the harm must have an actual, subjective intention. In protection visa claims by whistleblowers and police informants, that element is rarely the problem. Reprisals are deliberate. A well-prepared application argues the refugee test and complementary protection together from the start, and the guide to Form 866 explains where each part of the claim is set out.

Personal risk under section 36(2B)(c)

Section 36(2B)(c) provides that there is no real risk of significant harm where the risk is one faced by the population of the country generally, and not by the person personally. Decision makers sometimes rely on this in countries with high levels of gang violence.

The Complementary Protection Guidelines say that a general statement that violence is rife is not enough to apply section 36(2B)(c). The decision maker must consider whether the applicant is personally at risk, and a person in a class of people who would be targeted is personally at risk. The Guidelines also say that a high crime rate and poor police control, on their own, do not establish a real risk of arbitrary deprivation of life by a non-state actor.

Both points matter in protection visa claims by whistleblowers and police informants. The claim is not that the country is dangerous. The claim is that a particular group has a particular reason to harm this person. The evidence should show that the group knows who the person is, knows what they did, and has the motive and the means to act. The complementary protection page explains the test in more detail.

Does cooperating with Australian police help a protection visa claim?

Yes, it can, but the rules differ between the two tests. Under section 5J(6), any conduct in Australia is disregarded in a refugee claim unless the person satisfies the Minister that the conduct was engaged in otherwise than for the purpose of strengthening the claim to be a refugee.

Some people become informants or witnesses after they arrive. They may help the Australian Federal Police or a state police force with an investigation into drug importation, money laundering or trafficking. If the criminal group learns of that cooperation, the person may face reprisals in the home country as well as here.

In protection visa claims by whistleblowers and police informants that are based on cooperation in Australia, the refugee test will look closely at why the person cooperated. A person who reported a crime they witnessed, or who was approached by police, is in a very different position from a person who sought out a role to create a claim. The timing and the circumstances of the cooperation should be explained with care, and supported by evidence from the investigating agency where that can be obtained.

Section 5J(6) applies to the refugee test only. It does not appear in the complementary protection criterion. A real risk of significant harm that arises from cooperation with Australian police is assessed on its merits under section 36(2)(aa). Where there has been a gap between arrival and lodgement, the guide to delayed Subclass 866 applications explains how delay is assessed.

Can the home country's police protect a whistleblower or informant?

No, not where the police leak information, collude with the people making the threats, or cannot protect witnesses in practice. State protection is usually the central issue in protection visa claims by whistleblowers and police informants.

For a refugee claim, section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available to them. Under section 5LA, those measures are available if the relevant State, or a party or organisation that controls the State or a substantial part of its territory, is willing and able to offer protection. It is taken to be able to do so 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.

For complementary protection, section 36(2B)(b) asks whether the person could obtain protection from an authority of the country such that there would not be a real risk of significant harm. In protection visa claims by whistleblowers and police informants, the two tests are applied separately, and a finding under one cannot simply be adopted for the other.

Protection visa claims by whistleblowers and police informants often have strong evidence on this issue, because the facts themselves show the problem:

• The persecutors are the state. Where a whistleblower exposed police or officials, asking those same officials for protection is not a realistic option.
• Leaks and collusion. Where an informant's identity reached the gang after they spoke to police, the police force is not a safe place to seek help.
• Witness protection. A witness protection scheme may exist on paper but be unavailable, limited to certain cases, short term or known to be compromised. Laws on paper are not enough. The question is whether protection is accessible and durable for this person.
• Past failures. Complaints that were ignored, cases that were dropped, or officers who warned the criminal group are direct evidence.

The Department's processing guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye.

Can a whistleblower or informant relocate within their home country?

No, not where the criminal network or state agency that wants to harm them can reach them anywhere in the country. Relocation is tested differently under each framework.

For a refugee claim, section 5J(1)(c) requires that the real chance of persecution relates 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 person to relocate to an area where there would be no real risk. The Department's guidelines direct officers to consider the motivation and ability of a non-state agent to pursue the person. That consideration is often decisive in protection visa claims by whistleblowers and police informants.

In protection visa claims by whistleblowers and police informants, a finding that the person could relocate is difficult to sustain where the evidence shows that the network operates nationally, uses corrupt officials to trace people through identity cards, phone records or residence registration, or has pursued people who moved before. A whistleblower pursued by a national agency faces the same agency in every city. The Subclass 866 complete guide explains how relocation fits into the wider assessment.

Evidence for protection visa claims by whistleblowers and police informants

The evidence for protection visa claims by whistleblowers and police informants must prove three things: what the person disclosed, that the people exposed know it was them, and that those people have the motive and the means to harm them.

Useful evidence may include:

• copies of complaints, reports or disclosures the person made, with their date and the body they were sent to;
• emails, messages or internal memos that show the wrongdoing or the response to the disclosure;
• police statements, witness summonses or court documents showing the person gave information or evidence;
• letters from investigators, prosecutors or anti-corruption bodies confirming the person's role;
• threats received, including messages, voice notes and social media posts, preserved with the date and the sender;
• evidence of attacks, dismissal, demotion, false charges or harm to family members after the disclosure;
• media reports about the case, the people exposed or the person's role in it; and
• country information about how whistleblowers, witnesses and informants are treated, and about police leaks and witness protection in practice.

The applicant's own written account carries the claim. It should explain what the person saw, what they reported and to whom, how their identity became known, what has happened since and why they believe the threats would be carried out. The guide to the protection visa statement of claims explains how that account is structured, and the guide to protection visa evidence explains what supports it. The protection visa documents checklist sets out the general documents that every application needs.

How is sensitive information handled in protection visa claims by whistleblowers and police informants?

Sensitive information in protection visa claims by whistleblowers and police informants must still be disclosed to the Department in enough detail to prove the claim, but the applicant can explain the risks that disclosure creates and ask that those risks be taken into account.

Many applicants are reluctant to name the officials they exposed, to hand over internal documents, or to identify the police officers or sources they dealt with. Some fear that details will reach the home country. Others fear for colleagues or family members still there. That reluctance is understandable, but vague claims are one of the main reasons these applications are refused. A decision maker cannot accept a claim that the applicant will not describe.

The better course is to give the full account to the Department, and to explain in the application which information is sensitive and why. Protection visa information is treated as confidential, and Australian authorities do not ordinarily contact the government of the home country about a person's protection claim. Where a document contains the details of other people, the reason it is being provided should be explained. Where information came from an Australian investigation, the applicant should not disclose material they have been told is restricted without first obtaining advice.

The interview is where these details are tested. The pages on the protection visa interview and interview preparation explain what to expect. If the Department later asks for further details, the guide to a section 56 request explains how to answer.

What if protection visa claims by whistleblowers and police informants are refused?

If the Department refuses the claim, 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 in protection visa claims by whistleblowers and police informants usually rest on one of four findings: that the disclosure or the informing did not happen as described, that the harm feared is a private dispute and not for a Convention reason, that the police would protect the person, or that the person could relocate. Each finding can be tested at review with better evidence and clearer argument, including evidence about police leaks, collusion and the reach of the network. The pages on protection visa refusals and whether a person can appeal a refused protection visa to the ART explain the process, and the guide to the protection visa ART hearing explains how the hearing is run.

How My Migration Lawyers acts in protection visa claims by whistleblowers and police informants

My Migration Lawyers acts in protection visa claims by whistleblowers and police informants for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims where the danger comes from corrupt officials or criminal groups and the case turns on 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 by whistleblowers and police informants includes:

• Identifying the reason for the harm. The firm assesses whether the facts support political opinion, a particular social group or another Convention reason, and frames complementary protection alongside it.
• The client's own account. The statement is the client's own evidence, taken with an interpreter where needed. The client reviews and corrects it before it is lodged, and decides which claims are advanced.
• Proving the disclosure. Complaints, reports, court documents and letters from investigators are gathered and presented in the form the law requires.
• State protection and relocation. Current country information on police leaks, collusion, witness protection and the reach of the network is used to address the issues on which these claims most often fail.
• Sensitive information. The firm advises on how sensitive details are disclosed and how the risks are explained to the Department.
• Interview and review. Each 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 face reprisals at home because you exposed wrongdoing or helped the police, book a consultation with My Migration Lawyers online, or call 1300 040 300.