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Homosexual relationships are criminalised in 69 countries and people are detained and attacked on morality grounds in a few other countries, such as Indonesia, Japan, Cambodia, Hong Kong, India, Nepal and China.
Afghanistan, Algeria, Antigua & Barbuda, Bangladesh, Barbados, Bhutan, Brunei, Burundi, Cameroon, Chad, Comoros, Cook Islands, Dominica, Egypt, Eritrea, Eswatini, Ethiopia, Gambia, Ghana, Grenada, Guinea, Guyana, Iran, Jamaica, Kenya, Kiribati, Kuwait, Lebanon, Liberia, Libya, Malawi, Malaysia, Maldives, Mauritania, Mauritius, Morocco, Myanmar, Namibia, Nigeria, Occupied Palestinian Territory (Gaza Strip), Oman, Pakistan, Papua New Guinea, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and The Grenadines, Samoa, Saudi Arabia, Senegal, Sierra Leone, Singapore, Solomon Islands, Somalia, South Sudan, Sri Lanka, Sudan, Syria, Tanzania, Togo, Tonga, Tunisia, Turkmenistan, Tuvalu, Uganda, Uzbekistan, Yemen, Zambia, Zimbabwe.
In Iran, Sudan, Saudi Arabia and Yemen, homosexuality is still punishable by death, under sharia law. The same applies in parts of Somalia and northern Nigeria.
In two other countries – Syria and Iraq – the death penalty is carried out by non-state actors, including Islamic State.
In Indonesia, India, Cambodia, Japan, Hong Kong, Nepal and China, lesbian, gay, bisexual and transgender people are vulnerable to unofficial oppression and police harassment. They are also forced into treatment to cure their sexual orientation.
If you have a well-founded fear of persecution due to your gender identity or sexual orientation in your country, you may be eligible for a Protection visa (subclass 866).
Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our LGBTI protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently.
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Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:
Complementary protection is protection for those who are not refugees according to the Act, but who can’t return to their home country because they will suffer certain types of harm which engage Australia’s other protection obligations.
These obligations come from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR) and have been incorporated into the Act.
A person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer ‘significant harm’ if they were removed from Australia to their home country.
The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.
International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.
Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.
Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:
Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:
To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:
To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.
This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.
For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.
If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.
If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.
If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.
According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:
Gender identity is each person’s internal experience of gender that may or may not correspond with their sex at birth. It includes a person’s sense of their body, as well as other expressions of gender, including dress, speech, mannerisms and social roles. Some people may seek to change their sex to more fully match their gender identity.
Gender transition is the process by which a person strives to more closely align their outward appearance with their internal sense of their own gender. Some people may socially transition, for example by changing their dress or using different names. Some people also transition physically, for example, by using hormone therapy or having gender re-assignment surgery.
Sur place LGBTI claims may arise due to changes relating to the gender identity or sexual orientation of the applicant after their departure from their country of origin or because the agent of harm has discovered that the applicant is LGBTI after their departure or because of changes to the legislation or societal attitudes since the applicant’s departure from their country of origin.
LGBTI applicants may not have identified themselves as LGBTI before they departed their country of origin, or may have decided not to act on their sexual orientation or gender identity. Claims may arise where an LGBTI applicant engages in political activism, uses social media, or when their sexual orientation or gender identity is exposed by someone else.
If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.
Yes, the DHA will normally interview you to discuss the claims on your application. However, we have seen applicants being refused without even being invited to an interview.
The DHA will normally won’t interview the applicants who have lodged a weak protection visa application, where the applicant has provided vague claims and has failed to submit supporting evidence to reinforce their protection claims.
A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.
To have a well-founded fear of persecution, a person must fear serious harm because of their race, religion, nationality, membership of a particular social group and/or political opinion. Otherwise, the applicant’s claims must satisfy the complementary protection provisions of the Migration Act 1958 (Cth).
Yes. This visa entitles holders to permanent residency and a pathway to citizenship and the ability to apply to sponsor their family.
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where there are substantial grounds for believing that the person will be at a real risk of a specific type of harm. Australia has non-refoulement obligations under international treaties to which it is a party, including:
Yes, but only if you make a valid application. If your application is valid, you will be given a Bridging Visa to continue to stay in Australia until your protection visa application is finally determined. This means if your student visa or tourist visa expires, you won’t need to be concerned, as the Bridging Visa will allow you to stay in Australia during the processing time.
Yes, you can. The fact that you have lodged a student visa and now you are on a bridging visa wont be an issue. In Australia, please can apply for multiple visa applications at the same time.
