Protection Visa Claims by Women Without Male Support

Protection visa claims by women without male support are made by women who fear that, if they return to their home country, they will have no husband, father, brother or other male relative to protect them, and that this will expose them to serious harm. In some societies, a woman alone is treated as having no protection and no standing. She may be targeted for sexual violence, exploited, denied housing and work, or pressured into a marriage she does not want.

Protection visa claims by women without male support are recognised in Australian protection law, and the Department's own guidelines address the position of separated women and the barriers women face in relocating. But these claims are often refused where the decision maker treats the problem as poverty rather than persecution, or assumes that the woman could find support from other relatives or move to a city. This article explains how the law treats these claims and how each of those findings is answered.

Can a woman without male support get a protection visa?

Yes. A woman without male support can be granted a Subclass 866 protection visa where she has a well-founded fear of persecution, or faces a real risk of significant harm, because she would return without male protection, and the authorities in her home country cannot or will not protect her.

Protection visa claims by women without male support do not succeed simply because the applicant is single or widowed. The claim depends on what her status would mean in her home country and community. The applicant must show that, as a woman without male support in her particular situation, she faces a real risk of serious harm, and that nobody, including the state, would prevent it.

The women who make protection visa claims by women without male support include:

• widows, whose husband has died and whose own or husband's family will not support them;
• divorced or separated women, who have left a husband and cannot return to their own family;
• unmarried women, whose father has died or who are estranged from their family;
• women whose male relatives are missing, imprisoned or abroad; and
• single mothers, who must support children with no family help.

The definitive guide to the Subclass 866 protection visa explains the general criteria, and the guide to protection visa eligibility explains what to check before applying.

What harm do women without male support face?

The harm raised in protection visa claims by women without male support must amount to serious harm for a refugee claim, or significant harm for complementary protection.

Section 5J(5) of the Migration Act gives examples of serious harm. They include a threat to the person's 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 where that threatens the capacity to subsist, and denial of the capacity to earn a livelihood of any kind where that threatens the capacity to subsist. Under section 5J(4), persecution must also involve systematic and discriminatory conduct.

The harm most often raised in protection visa claims by women without male support includes:

• sexual violence and harassment, including in housing, work and public places;
• exploitation by landlords, employers or community members who know the woman has no protector;
• being forced into a marriage as the only way to obtain protection or support;
• being unable to rent housing, open accounts, travel or deal with officials without a male relative;
• being denied work, or being able to find only work that exposes her to abuse; and
• violence from a former husband or his family, who know she has no one to defend her.

Harm that would not be serious on its own can become serious when considered together. A woman who cannot rent safely, cannot work, is harassed daily and has no family to turn to may cross the threshold even if no single incident would. The Department's processing guidelines state that serious harm can include serious mental harm, and that multiple harmful acts may cumulatively amount to serious harm.

Which Convention ground applies to women without male support?

The Convention ground in protection visa claims by women without male support is usually membership of 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 a family. The group must share a characteristic that is innate or immutable, or so fundamental to identity or conscience that a member should not be forced to renounce it, or that distinguishes the group from society. The characteristic cannot be the fear of persecution itself.

The Department's processing guidelines give an example directly relevant to protection visa claims by women without male support. Where a woman has separated from her husband, the particular social group could be characterised as "separated women in country X", fearing persecution because of that status. The guidelines identify the central aspects of such a claim: that the applicant is separated, that a group of separated or divorced spouses exists of which she is a member, that the characteristic is innate or immutable or so fundamental that she should not be forced to renounce it, and that there is a real chance of persecution in all areas of the country because of her membership of the group.

The same reasoning is used for widows, and for unmarried women without family protection, depending on how the society in question treats them. The guidelines also state that if a woman faces harm for any reason, but the state refuses to protect her because of her gender, that may itself amount to persecution for a Convention reason.

Can the Department say she should remarry or return to her husband?

No. In protection visa claims by women without male support, the Department cannot find that the applicant would be safe if she remarried, or if she returned to a husband she has left.

Section 5J(3) of the Migration Act says a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. But it lists modifications a person can never be required to make. Section 5J(3)(c)(v) provides that a person cannot be required to "enter into or remain in a marriage to which that person is opposed".

That provision answers one of the most damaging arguments in protection visa claims by women without male support. A decision maker cannot reason that the woman's lack of male protection could be solved by finding a new husband, or by going back to the old one. If the only way to obtain protection is to enter or return to a marriage she does not want, the law does not require her to do it.

The same logic applies to other forms of dependence. Where the only available male protection would come from a relative who has himself been violent, or who would force her into marriage, that is not protection in any meaningful sense. The account should explain why each potential male protector is not available or not safe. Protection visa claims by women without male support are weakened when the statement mentions relatives without explaining their position, because the decision maker may fill the gap with an assumption that they would help. The guide to the protection visa statement of claims explains how the account is structured.

Why other relatives cannot help

Protection visa claims by women without male support must explain why the applicant cannot turn to other relatives. Decision makers often assume that a woman has a brother, uncle or cousin who could support her.

The account should go through each relevant relative:

• whether they are alive, and where they live;
• whether they have the means to support the applicant and her children;
• whether they are willing to do so, and what they have said;
• whether they are hostile to the applicant because of her divorce, separation or conduct; and
• whether living with them would expose her to other harm, such as forced marriage or violence.

Where the applicant's own family has rejected her, the reason matters. A family that has cut off a divorced daughter because the divorce brought shame may also be a source of harm, not just an absent source of support. Where the husband's family controls the children, the applicant's lack of support may also mean losing her children.

Children in protection visa claims by women without male support

Children often make the position of a woman without male support more serious, not less. A single mother must find housing, income and schooling for her children as well as herself, and in some countries her right to keep the children may depend on the father or his family.

Protection visa claims by women without male support should address:

• whether the father or his family could take the children from her under the law or custom of the country;
• whether she could enrol the children in school and obtain their documents without a male guardian;
• whether the children themselves would face harm, such as exploitation, forced marriage or violence; and
• how she would support them while living alone.

Each child may be included in the mother's application as a member of the family unit, and a child may also have claims of their own. The Subclass 866 protection visa page explains how family members are included. The guide to Form 866 explains how each family member and their claims are recorded.

Is state protection available?

State protection is frequently raised in protection visa claims by women without male support. The question is not only whether the law prohibits violence against women, but whether the state would in practice protect a woman alone.

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. Section 5LA requires, in broad terms, that the state be willing and able to offer protection that is accessible and durable, including an appropriate criminal law, a reasonably effective police force and an impartial judicial system. For complementary protection, section 36(2B)(b) asks whether the applicant could obtain protection such that there would not be a real risk of significant harm.

The Department's guidelines direct officers to consider whether the state is reluctant to be involved or turns a blind eye to the harm. Protection visa claims by women without male support should address:

• whether police respond to complaints of sexual harassment or assault by women who have no male relative with them;
• whether a woman can report a crime, obtain identity documents or deal with courts without a male guardian;
• whether shelters exist, and whether women can stay in them long term; and
• whether there is any state support for women who have no income or family.

The Complementary Protection Guidelines state that the existence of protective measures shows only that they are available. It does not show that the person could obtain protection.

Could she relocate within her home country?

Relocation is often the deciding issue in protection visa claims by women without male support, and it is the point on which the Department's guidelines are most helpful to the applicant.

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 relocation would be reasonable, in the sense of practicable.

The Department's guidelines state that, in the context of complementary protection, legal or socio-economic reasons, or child-care responsibilities, may prevent women from travelling freely or living on their own without family members, limiting their ability to relocate. Officers are directed to consider gender-related issues carefully when applying this test. The guidelines also note that particular reliance on family for socio-economic support and protection is important in the relocation assessment.

That guidance goes to the heart of protection visa claims by women without male support. The proposition that a woman alone could simply move to the capital and start again assumes the very support she does not have. The evidence should address whether she could rent housing alone, find work, enrol her children in school, and live safely without a male relative, in the specific place proposed.

Complementary protection and the problem of poverty

Complementary protection is important in protection visa claims by women without male support, but it has a limit that must be understood. Poverty and hardship faced by many people in a country are not, by themselves, significant harm.

Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The definitions of torture and cruel or inhuman treatment require pain or suffering to be intentionally inflicted, and the definition of degrading treatment requires an intention to cause extreme humiliation. Destitution caused by general economic conditions will not usually satisfy that requirement.

Section 36(2B)(c) adds that there is taken not to be a real risk of significant harm where the risk is faced by the population generally and not by the applicant personally.

Protection visa claims by women without male support therefore need to focus on the harm that is intentionally inflicted and personal to the applicant. The Complementary Protection Guidelines state that rape, or the threat of rape, is very likely to constitute significant harm. A real risk of sexual violence because the applicant is a woman alone is personal, intentional and serious. That is usually the core of the complementary protection case. Economic hardship is still relevant, particularly to relocation and to serious harm under the refugee test, but it should not be the whole claim. The page on complementary protection explains the test.

Evidence for protection visa claims by women without male support

The evidence in protection visa claims by women without male support must establish two things: that the applicant truly has no male support, and what that would mean for her.

Evidence of her status may include:

• death certificates for a husband or father;
• divorce or separation documents, or an explanation of why none exist;
• evidence of where other male relatives are, and why they cannot help; and
• messages or statements showing that her family has rejected her.

Evidence of what her status would mean may include:

• her own account of what happened to her, or to other women she knows, when living without male support;
• statements from women in similar circumstances in her community;
• country information about the treatment of widows, divorced women and single women, including any rules on guardianship, housing, employment and travel; and
• medical or psychological reports.

The guides to the protection visa statement of claims and protection visa evidence explain how this material is presented. The Department's guidelines state that where gender-related claims are raised, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant. The page on the protection visa interview explains what to expect.

Tribunal decisions involving protection visa claims by women without male support

Published tribunal decisions show that protection visa claims by women without male support are examined closely on review, and that they often turn on support and relocation. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 2009407 (Refugee) [2024] AATA 4101. A separated woman from Somalia without support, fearing sexual violence and killing.
• 1719232 (Refugee) [2022] AATA 2393. An unmarried Coptic woman from Egypt without male support, facing sexual violence and pressure for interfaith marriage.
• 1725125 (Refugee) [2021] AATA 4468. A separated woman from Papua New Guinea fearing gender-based violence and tribal attacks.
• 1813143 (Refugee) [2023] AATA 4556. A divorced woman from India with psychiatric illness facing family rejection and gender-related stigma.

Each decision turned on its own facts. What they show is that the woman's status, her lack of support, and her personal vulnerabilities must be presented together. My Migration Lawyers' article on divorced women in Indonesia as a particular social group applies the same principles to one country.

What if protection visa claims by women without male support are refused?

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

Refusals in protection visa claims by women without male support usually rest on findings that other relatives could help, that the harm feared is general poverty, that the state would protect her, or that she could relocate. Each finding can be tested at review, particularly with specific evidence about each relative and about the practical conditions for a woman alone in the proposed place of relocation. 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 by women without male support

My Migration Lawyers acts in protection visa claims by women without male support for women already in Australia, including widows, divorced and separated women, and single mothers. The firm deals with complex protection matters and acts in many Subclass 866 claims of this exact type, where the case turns on the applicant's status, her lack of family support and the realities of 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 includes:

• The applicant's account. Her account is taken in private, with a female interpreter where possible. It is her own evidence, which she reviews and corrects before it is lodged, and she decides which claims are advanced.
• Each relative. The position of every relevant male relative is set out, so that the decision maker cannot assume support that does not exist.
• The particular social group. The group is framed around her status, as the Department's guidelines contemplate.
• Section 5J(3)(c)(v). The argument that she cannot be expected to remarry or return to a husband is made expressly.
• Relocation and complementary protection. Country information and the Department's own guidance on women living alone are used to address relocation, and complementary protection is argued on the risk of sexual violence.

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.

If you would return home with no one to protect you, book a consultation with My Migration Lawyers online, or call 1300 040 300.