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Our Expert Immigration Lawyers have more than 12 years of experience helping LGBTI people to get a PROTECTION VISA in Australia
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LGBT VISA AUSTRALIA – COUNTRIES WHERE HOMOSEXUALITY IS CRIMINALISED (AND A FEW OTHERS WHERE PEOPLE’S LIVES ARE AT RISK)
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.
Malaysia
Burma
Singapore
Indonesia
Sri Lanka
China
Pakistan
India
Nepal
Bangladesh
LGBT Visa in Australia and a list of 69 countries where homosexual relationships are criminalised:
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.
LGBT VISA AUSTRALIA “WELL-FOUNDED FEAR OF PERSECUTION”
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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FEAR OF PERSECUTION
Well-founded fear of persecution The Act states that a person has a well-founded fear of persecution if:
- they fear persecution for at least one of five reasons specified in the Act (race, religion, nationality, membership of a particular social group, political opinion)
- there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
the real chance of persecution relates to all areas of their home country - at least one of the five reasons must be the essential and significant reason for the persecution
- the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.
LGBT VISA AUSTRALIA – COMPLEMENTARY PROTECTION REQUIREMENTS
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.
MIGRATION ACT 1958 (CTH)
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:
- arbitrary deprivation of life
- the death penalty
- torture
- cruel or inhuman treatment or punishment
- degrading treatment or punishment.
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.
Particular social group
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:
- each member of the group shares a characteristic
- the person shares, or is perceived as sharing, the characteristic
- any of the following apply:
- the characteristic is innate or immutable (cannot be changed)
- the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
- the characteristic distinguishes the group from the rest of society
- the characteristic is not a fear of persecution.
Serious harm
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:
- 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 (ability to survive)
- denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
- denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive).
Systematic and discriminatory conduct
To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.
- Systematic means the harm is not random or generalised, but is targeted against the person.
- Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.
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.
Real chance of persecution
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.
Seeking protection from authorities in their home country
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.
A right to enter and reside in another country
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.
Modifying behaviours
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:
- conflict with a characteristic that is fundamental to the person’s identity or conscience
- require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
- require the person to:
- change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be
- involved in the practice of their faith
- conceal their true race, ethnicity, nationality or country of origin
- change their political beliefs or conceal their true political beliefs
- conceal a physical, psychological or intellectual disability
- enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
- alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.
Helping People Just Like You
Shuaib Z.
Thanks to Gold immigration expertise and dedication, my visa was granted smoothly and efficiently. I truly felt like a priority, and their attention to detail and thorough preparation made all the difference.
Aleesha L.
We applied for a partner visa with gold migration lawyers they lodged our visa on the 23rd of August 2024 and today 12th November 2024 we got great news that it was granted we couldn’t have asked for better people to go through as nothing was ever too difficult.Saleh was so amazing and easy to work with step by step highly recommended.read more
Psy Psy 2
I was in Singapore and my fiance's in Australia when we searched for a company to help with our Prospective Visa application. Gold Migration Lawyers for us was a little bit pricey, but it was all worth it. We had an initial meeting via video call with our then lawyer named Emad to assess both of us. Emad left and was taken over by Katherine and finally Jualiana Aywaz, who helped us go through the application until we were approved. It was a pleasant experience. She was very professional, helped us with our forms thoroughly, and advised us for the best possible outcome. I liked that Juliana was prompt on her replies and clear with her instructions. We highly recommend Gold Migration Lawyers! Thanks again, Juliana!read more
Eddie W.
Juliana, thank you for your professional guidance and kind service.we truly appreciate your dealing with our case bringing the results we were hoping for.kind regards,Eddie & Ann
Graeme M.
Gold Immigration were fantastic, initially Walt was handling my visa and he was very helpful later Kanelle looked after our application and secured our 309 Visa. Gold Immigration were very easy to deal with and always responsive quickly to any questions I raised. Anyone looking to apply for a partner visa I recommend Gold Immigration should be who you call.Thank you Walt, Kanelle and all at Gold Immigration.read more
Stephen S.
My experience with Walt, Joshua and team were nothing short of seamless. From the moment we stepped into Golds offices we were put at ease given that we were concerned both about timing and process of this visa. Walt and Joshua were completely available to us at a moments notice, often responding to any question or concern we had within the hour. The difficult and stressful application process was made all the more easy working with them and we got results in record time - 4 months from the day we hired them!In all honesty I couldn't recommend their expert advice or services enough, you definitely get what you pay for.Thanks Walt!read more
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LGBT Visa Australia – frequently asked questions
What is Gender identity?
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.
What is Gender transition?
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.
What is Sur place LGBTI claim?
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.
Can I lodge a Protection (866) Visa whilst in Australia?
If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.
How would I be eligible for a Protection (866) Visa?
- You must be in Australia and have arrived here legally, on a valid visa. Such as a student visa or tourist visa.
- You must have a fear to return to your home country.
- Must establish that your fear is because you will be persecuted due to one or more grounds under the UN Convention (see above).
- Otherwise, must demonstrate that there is a real risk that you will suffer some specific sort of harm (see Complementary Protection Requirements discussed above)
Do I need to have an interview with the Department of Home Affairs?
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 won’t normally 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.
Can I travel back to my home country after a Protection Visa is granted?
A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.
I am scared to go back to my home country because I will be persecuted. What are the different reasons that the DHA accepts this?
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).
Is subclass 866 Protection Visa a Permanent Visa?
Yes. This visa entitles holders to permanent residency and a pathway to citizenship and the ability to apply to sponsor their family.
What are the Non-refoulement obligations for Australia?
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:
- the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol (non-refoulement obligation expressed in Article 33(1) of the Refugee Convention)
- the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) (non-refoulement obligation expressed in Article 3)
- the International Covenant on Civil and Political Rights (ICCPR) (non-refoulement obligation implied in relation to Articles 6 and 7).
Will I get a Bridging Visa if I apply for the Protection Visa?
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.
My student visa expired some time ago and I have lodged another student visa and still waiting for a decision. Can I apply protection visa?
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, people can apply for multiple visa applications at the same time.
