LGBT Visa Australia

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.

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

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

Abdul hamid Adam
Abdul hamid A.
My partner and I walked into Gold Migration for the first time in early November 2023 for seeking help about my case in AAT. Saemeh Ghasemi help me and support me through with everything that I need to prepare for hearing in next few week. Saemeh Ghasemi also accompany and attend AAT hearing with me. Saemeh Ghasemi always give us mentally support, tell us don’t be stress. In January 2024, Saemeh called me and give me a good news, that we won ATT. Thank you Saemeh Ghasemi, you make my self and my partner can be together and stay in Australia together. Thank you Gold migration lawyers.read more
Simon m
Simon m
I engaged Gold Migration, because I had left things a little too late and there were some factors that were too complicated and too confusing and too high risk for me to do on my own.My first meeting with them was by video. I was looking at a set up with lined up desks much like you see in a court room drama. There were 3 people in the room. They asked me to describe my circumstances and they answered my questions. They were forthright and pulled no punches, they told me the risks and the issues I would have to deal with. Then they conferred together and then gave me a price. It wasn’t the most expensive I had been quoted, nor the cheapest, but what impressed me about them was the machine like efficiency they dealt with the problem from the beginning. There are NO surprises from this firm. They lay out all the costs at the time of engagement, they tell you the steps they will be taking and their approach.Remember this is Immigration you’re dealing with, even expert lawyers have no control over such a department, timescale is not in the control of you or your lawyers.For the first month it was a flurry of activity for me. They sent me a cloud based drive to upload all my documents and evidence to. They reviewed it and made suggestions. All of the statements they asked me to write came with examples and best way to write them. Then they told me they had everything they needed and to leave it with them. On reflection I realised I had witnessed a highly experienced team in action. They asked for and got what they needed, it was explained and documented and organised. They have a very efficient set of procedures they follow and they make sure all the boxes are ticked before they submit.You can’t fault this level of experience and practical application, you basically pay them and go along for the ride. Over the months as immigration dealt with the case they came back to me a few times and asked for more information. I know they wrote reports and fielded questions from immigration but all I got was a comment that everything was tracking as planned.The most interesting part for me to see was the obvious pleasure and satisfaction they enjoyed when they called me to tell me we finally had the PR visa. They took it personally and that meant a lot to me.Are they expensive ? Well that depends, how much is having your family members live with you in Australia worth to you ? They are not the cheapest , they are not the most expensive, but I am confident that they are the best!If you are worried about getting a loved one or a valued worker a visa, or you are having issues with your visa, you should not hesitate to go with the gold standard. Go with Gold Immigration and sleep better at night knowing your visa issue is in good hands.read more
Jalal Razavi
Jalal R.
Entrusting Gold Migration Lawyers was the best decision I ever made for my parents to obtain a safe and secure future here in Australia. A life changing decision for them.Our case manager was Saemeh Ghasemi who was instrumental in ensuring their Protection Visa was thoroughly detailed and solid. Saemeh was very kind caring and took extra effort to understand and appreciate the dire situation of my parents and was very supportive all the way to a successful "Visa Granted" outcome.Thank you Saemeh and team for your dedicated and supportive service to me and my parents."Gold Migration Lawyers indeed provides GOLD CLASS service" and I strongly recommend them to our family and friends.read more
Daniel Esdaile
Daniel E.
My partner and I had walked into Gold Migration for the first time in May of 2023. I was anxious at I knew by the time we would have to lodge our partner visa we would not have lived together for 12 months. Walt had given us the reassurance that all would be okay, I instantly felt that sigh of relief through the professional and welcoming service that Walt and his team had provided. We then began our journey with Gold Migration Lawyers, the whole time Walt had been there to support us through every enquiry and every piece of evidence. We eventually submitted our visa in October with every bit of confidence of a positive outcome. In February we got out 820 grant, the moment Walt had told me that the visa had been granted I began to cry of happiness. Thank you Walt! Thank you Gold migration lawyers, you have allowed myself and my partner to be in Australia together.read more
Ghassan Elbarhoun
Ghassan E.
I’d like to thank SAEMEH GHASEMI and her team for their exceptional work on our visa, very very easy process ,I highly recommend gold migration, thanks Samy.
Isoa Talevakaruamainairai
Isoa T.
Massive thank you goes to Saemeh Ghasemi and Carolyn Araboghlian at Gold Migration Lawyer for their relentless support throughout the process of preparing for my AAT appeal right through the exciting news of successfully wining the AAT Appeal. Wow absolutely amazing, to be able to work with Saemeh Ghasemi and Carolyn Araboghlian. Saemeh Ghansemi have been going extra miles to ensure that Gold Migration provide and delivered positive experience that took so much anxiety, nerves away and for genuinely cares about her clients. I am so pleased and grateful to be able to trust Gold Migration Lawyers for the Successful Outcome of my AAT Appeal. Even before the appeal I was already recommending Gold Migration Lawyer to my friends due to the best services that they have already initiate from the beginning of the services. I have never experience best services before thanking you so much Saemeh Ghasemi for going extra miles really means a lot to me personally and Thank You so much Gold Migration for an AMAZING SERVICES. I would definitely highly recommend Gold Migration Lawyers.read more
Tyler Meier
Tyler M.
Hiring Gold migration lawyers, and having Saemeh represent my partner was the best decision we could have made. My partner was applying for a Visa and had a hearing at the AAT, and Saemeh helped us prepare and get ready for the hearing and represented him very well, we were successful and found out within 2 weeks!! Saemeh’s had the expertise and knowledge to help us and we are so so thankful to her and the team at Gold Migration.read more
Syed Rizvi
Syed R.
Just wanted to say thank you walt for helping us getting our permanent residency after alot of bumps in our case.Thank you team gold migration
Kelvin Khant
Kelvin K.
Excellent service and you can always contact the team at anytime. absolutely recommended!

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?
  1. You must be in Australia and have arrived here legally, on a valid visa. Such as a student visa or tourist visa.
  2. You must have a fear to return to your home country.
  3. Must establish that your fear is because you will be persecuted due to one or more grounds under the UN Convention (see above).
  4. 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.