866 Protection Visa Claim must be for persecution for a (UNHCR) Convention reason or for a complementary reason under section 36(2)(aa) of the Migration Act.
You may be persecuted for a Convention reason because of your religion or political opinion or nationality or race or being a member of a particular social group. If this is not one of your 866 protection visa claims, that is, you are not a refugee, Australia may still offer protection under Complementary protection because you will suffer certain types of significant harm. In short, even if you are not considered a refugee, you may still be granted 866 protection visa if there are substantial grounds for believing that there is a real risk you will suffer significant harm if you are removed from Australia to your home country.
Unique features of a particular social group
If you are making a 866 protection claim on the basis of belonging to a particular social group, you must ensure that:
- each member of the group shares a characteristic, but the characteristic is not a fear of persecution
- the characteristic is so fundamental to your identity or conscience, you should not be forced to renounce it; or
- the characteristic distinguishes you or the group from the rest of the society.
Well-founded fear of persecution
If you are applying for a protection visa using one of the Convention claims, you must be able to demonstrate that you have a well-founded fear of persecution and you have suffered or will suffer serious harm because of your religion or your political opinion or your nationality or your race.
866 protection visa claim on Convention reason
Serious harm
To succeed in making 866 protection visa claims under the Convention, you must have a well-founded fear of persecution. The persecution fear must involve serious harm. Serious harm includes, but not limited to:
- a threat to your life or liberty
- significant physical harassment
- significant physical ill treatment
- significant economic hardship that threatens your capacity to survive
- denial of access to basic services, that threatens your capacity to survive
- denial of capacity to earn a livelihood of any kind, that threaten your capacity to survive
In addition, to satisfy having a well-founded fear of persecution, the persecution fear must also involve systematic and discriminatory conduct on the part of your persecutors.
Systematic and discriminatory conduct
866 protection visa claims under the Convention reason(s) must also involve systematic and discriminatory conduct. You must demonstrate:
- the serious harm you suffered or feared is not random or generalised, but targeted against you
- the persecutors’ conduct affects you or members of a group in a way that singles you or the group from the rest of the community.
Real chance of persecution
When you claim that you fear being persecuted, that fear must be well-founded in the sense that there must be a real chance that the persecution would happen in the reasonably foreseeable future if you were to return to your home country.
Real chance means that the fear of persecution is not fanciful or remote or far-fetched.
Relocation
Even if there is a real chance that you will be persecuted if you returned to your home country but there is place where you can live without a well-founded fear of persecution, then you will not be a refugee. You can only claim that you will not be able to relocate if you are not able to safely and legally access that place.
Protection from authorities
If you have a well-founded fear of persecution and the government or other parties control all or a large part of your home country is willing and able to provide you with effective protection, then you are not a refugee.
However, you must be able to access the protection and the protection must provided to you on a ongoing basis or of a durable nature.
Protection from authorities must include:
- an appropriate criminal justice system
- a reasonably effective police force
- an impartial judicial system
If the authorities are able to provide you the above durable protection, then you are not a refugee.
Right to enter and reside in a third country
If you have a right to enter and reside in another country in which you do not fear persecution or serious harm or significant harm, you must take all possible steps to exercise that right. For eg, a North Korean has a right to enter and reside in South Korea (click here to learn if you are affected by section 91E).
If you have a visa, even a temporary visa, that allow you to enter another country, but you did not, you might not be a refugee.
Modifying your behaviour or conduct
If you are able to change your behaviour to avoid a real chance of persecution in your home country but did not or will not, you might be a refugee. Unless changing your behaviour would:
- goes against a characteristic that is fundamental to your identity or conscience
- requires you hide a characteristic that you could not change or is innate or immutable
- requires
you to:
- change your religious beliefs (renouncing a religious conversion, or hide your true religious beliefs, or stop involving in the practice of your religion or faith)
- hide your true race, ethnicity, nationality or country of origin
- change or hide your political beliefs
- enter into or remain in a marriage to which you opposed, or you were forced into
- change or hide your sexual preference or orientation or gender identity or intersex status
In order to be successful with 866 protection visa claim, all of the above must apply to you. If it does not apply to you, then you do not have a well-founded fear of persecution and you are not a refugee. Find out if you are required to change your, for example, behaviour in order to avoid the harm feared by clicking here.
866 protection visa claims on complementary ground
Even if you are not a refugee, Australia might still owe you complementary protection.
If none of the above 866 protection visa claim apply to you but you can demonstrate that you will suffer significant harm if you are forced to return to your home country.
Significant harm
Significant harm is defined as:
- Arbitrary deprivation of life
- Death penalty
- Torture
- Cruel or inhuman treatment or punishment, or
- Degrading treatment or punishment.
However, to use the 866 protection visa claim that there is a real risk of suffering significant harm if you are returned to your home country:
- It is not reasonable for you to relocate to an area in your home country where there would not be a real risk you will suffer significant harm
- You could not obtain protection from the authority in your home country so that there would not be a real risk you will suffer significant harm; or
- The real risk is not one faced by the population of your country generally and is faced by you personally.
Threatening self-harm or suicide a 866 protection visa claim?
In the case of EZC18 v Minister for Home Affairs [2019] FCA 2143, EZC18 is a British citizen migrated to Australia in June 1964. His spouse is deceased and has 3 Australian citizen children. He has never applied for Australian citizenship and resided as a permanent resident since June 1964.
In March 2016, EZC18 was convicted of 2 counts of sexual exploitation of a minor and was sentenced to 4 years imprisonment.
EZC18 is in poor health – having bowel cancer, hearing loss, blindness in 1 eye, dementia and various other illnesses.
The Department of Immigration cancelled his permanent visa under s 501(3A) – did not pass the character test because he was convicted of a sexually based offence involving a child.
EZC18 made 1, among many, 866 protection visa claim:
- that if he is forced to return to the UK, he would die or commit suicide
EZC18’s treating psychiatrist diagnosed him as suffering from a major depressive disorder and considered him as at “high risk of suicide if he is deported”.
In short, EZC18’s 866 protection visa claim was that he fears returning to the UK because:
- he might die on the flight to the UK
- he threatened suicide as he does not want to die alone in UK
- he does not have any relatives or friends in UK
- he does not have a place to stay
- he is a convicted paedophile
The Department refused his 866 protection visa application. He then applied to the AAT for a merits review. The AAT accepted that EZC18 was at high risk of suicide if deported but affirmed the decision not to grant EZC18 a 866 protection visa because suicide could not be harm inflicted by a third party. Self-harm is not within the scope of arbitrary deprivation of life within the meaning of s 36(2A).
AAT said that a socio-economic hardship is not a Convention reason even though EZC18 belonged to a particular social group, that is, convicted paedophiles and if returned to the UK would come to the notice of the UK authorities. AAT finds that EZC18 would not be subject to any form of persecution because of his membership of this social group. EZC18 was, therefore, not a refugee under the Convention.
AAT then assessed his 866 protection visa claim under Complementary protection and said that arbitrarily deprived of life in s 36(2A)(a) is not defined. The ordinary meaning of “arbitrarily” concerned with “capriciousness, unpredictability, injustice and unreasonableness” in the sense of ‘not being proportionate to the legitimate aim sought’. In short, the harm arbitrarily inflicted on EZC18 must emanate from a third party and not self-inflicted.
EZC18 then appealed the AAT’s decision to the FCC. The judge said that EZC18 faces the risk of death at his own hand because of loneliness and social isolation due to old age and poor health but these are risks likely to be faced by many in all countries. The judge went on to say that loneliness due to solitary confinement in a penal context as a result of the intention of the authority directing the confinement is different from the loneliness or social isolation.
The judge also finds that suicide or self-harm is an event which would not involve direct state intervention and if the authorities are aware, they would provide appropriate medical supports and safeguards (EZC18 v Minister for Home Affairs & Anor [2019] FCCA 464).
EZC18 then appealed the FCC’s dismissal to the FCA on the ground that harm must be inflicted by someone else or a third party. In short, s 36(2A)(a) and s 36(2)(aa) do not include suicide.
The Court said that there is no general obligation on a state to prevent suicide (at [42]) and s 36(2A)(a) only apply to where the risk of harm is emanated from a state based authority or its agents or proxies or others.
The Court concluded that s 36(2A)(a) is restricted to the risk of being deprived of life by a third party or third parties and suicide is not an arbitrary deprivation of life and there is nothing arbitrary or unlawful about returning EZC18 to the UK.
Being separated from family a 886 protection visa claim?
In the case of GLD18 v Minister for Home Affairs [2020] FCAFC 2, CAC19 is a Nigerian national arriving in Australia in 1999. He unsuccessfully applied for a protection visa in 2001 but was able to make a second protection visa by reason in SZGIZ v MIAC [2013] FCAFC 71; FCR 235.
CAC19 has a partner who is a Chinese national, and they have 2 daughters who were granted protection visas because they were mixed Nigerian and Chinese racial background making them non-indigenous Nigerians.
CAC19 claimed that he would be subjected to significant harm if returned to Nigeria he will be separated from his family as his Chinese wife will return to China with their daughters. CAC19 has significant criminal history that was likely to prevent him from travelling to Chian to be with his family.
The Tribunal accepted that their separation would lead to harm for them but ‘harm arising from the act of removal itself does not meet the definition of “significant harm” in s 36(2A) (citing SZRSN v Minister for Immigration [2013] FCA 751, per Mansfield J at [88]) because:
- Australia’s ‘protection obligations; as referring to the obligation to afford protection to a non-citizen where the harm faced arises in the receiving country (Nigeria) and not in the State (Australia) where protection is sought (referring to s 36(2)(aa) complementary protection)
- Section 36(2B) expressly refer to harm ‘in a country’ which is necessarily the receiving country if the circumstances of ss 36(2B)(a) (relocation) and 36(2B)(b) (protection from an authority) are to have any application
In SZRSN, the Court said that s 36(2)(aa) requires that the real risk of significant harm must arise ‘as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country’. The fact that the significant harm must be a consequence of the removal suggests that the removal itself cannot be the significant harm. In addition, the consequence of the removal cannot be said to have an “intention” (with regard to the intention requirements in the s 5(1) definition of degrading treatment or punishment), so the act of removal itself cannot be said to be perpetrated by the State with the intention to cause extreme humiliation that is unreasonable.
In GLD19 the FCAFC said at [50] that the complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against his or her will. That is the purpose, under the present statutory scheme, of the Minister’s personal discretion in ss 351 and 417 of the Migration Act (discretion to substitute a more favourable decision). In addition, removal is not causative of the harm (at [55]).
Other requirements: character, health and security checks
If you have been assessed as having a well-founded fear of persecution or Australia owes you complementary protection, you must still satisfy other requirements like character, health and security.
You will not be considered a refugee if you have:
- committed a crime against peace, a war crime, or a crime against humanity
- committed a serious, non-political crime before coming to Australia
- been found guilty of acts contrary to the purposes and principles of the UN
You will not be considered a refugee if there are reasonable grounds that you:
- are a danger to Australia’s security, or
- have been convicted of a particular serious crime, or
- are a danger to the Australian community.
If the above applied to you, that is, you have been assessed as refugee, but you do not meet the other criteria for the grant of a 866 protection visa, you will not be returned to your home country if returning you would breach Australia’s non-refoulement or protection obligations.
If you are in Australia when you apply for this visa, you may be granted a bridging visa to allow you to stay in the country until your application is finalised (click here to learn more about bridging visa). Your bridging visa may not allow you to work. Click here to learn how to apply for work rights.
You should be aware that if you have a Protection Visa application refused, you may not lodge another application unless the Minister grant you the permission to do so (click here to learn how).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help you apply for this visa or any other visas (click here to find other visas). Click here if to learn if you are required to pass the s 501 character test.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.
