The topic of LGBTI can sometimes hit a raw nerve. In some countries homosexuality is illegal and/or members of the LGBTI community are treated with extreme hostility and abuse. Australia may have only recently voted yes to same sex marriage but has had LGBTI covered under the protection visa a long time now. If you are suffering discrimination due to your gender identity or sexual orientation in your country, you may be eligible for the Protection visa (subclass 866).
It is of utmost importance to establish that you have a well-founded fear of persecution:
- Must be significant and and a real risk of serious harm
- Threat to their life (such as the death penalty) or liberty
- Significant physical harassment and/or ill treatment (torture, cruel, inhuman or degrading treatment or punishment)
- Significant economic hardship that threatens the person’s ability to survive
- Denial of access to basic services that threatens the person’s ability to survive
- Denial of their ability to earn a livelihood of any kind, that threatens their survival
- It is not reasonable for the applicant to modify their behaviour
- There are no effective protection measures in the applicant’s home country
- The applicants gender identity or sexual orientation is
- innate (inborn or natural) or immutable (cannot be changed), or
- fundamental to the person’s identity and/or conscience, or
- distinguishes the group from society
- It is not possible for the applicant to relocate to a different part of their country where they will not face real risk of significant harm
Read: Introduction to the Protection 866 visa
The Department of Home Affairs (DOHA) will be sensitive toward your situation but will need to establish that your claims are genuine. Have you experienced any of the following? These some factors that the DOHA will take into consideration:
- Treatment by family, community and authorities
- Experience of bullying, shaming or exclusion
- Treatment at school
- Attempts/methods to avoid mistreatment or hide sexual orientation or gender identity
- Forced marriage or pressure to marry
- Knowledge of continuing threats or risks
- Reasons for departure from country of origin
- The reason given by the persecutor for harm caused in the past
- Interaction with authorities in the applicant’s country of origin
- Nature of future harm feared
- Knowledge of others in a similar situation who may have experienced harm
- Employment discrimination in the applicant’s country of origin
- Access to housing in the applicant’s country of origin
- Access to medical care in the applicant’s country of origin
- Physical safety and access to justice/police or other state protection or protection by a non-state actor
- Experience of stigma/isolation
- Knowledge of or interaction with other LGBTI persons
- Any connections with the LGBTI community in Australia and if not, why not
Family
- Past and current relationships with family members
- Last contact with family members
- The experience of coming out to the family (if applicable)
- The consequences of the family discovering the applicant’s gender identity or sexual orientation
- Experiences of loss or exclusion
- How the applicant has hidden their sexual orientation or gender identity from their family (if applicable)
- Sense of responsibility to the family such as marriage expectations
Self awareness/identification
- Feelings of being ‘different’, how, situations in which the applicant felt that way and how it impacted them
- Desire to change themselves or conform due to external pressure
- Desire to challenge socially imposed gender roles
- When and the experience of the applicant becoming self aware of their sexual orientation or gender identity
- Feelings about the applicant’s place in the community
- Reconciling personal identity with religious views
- Feelings of shame, embarrassment or self hatred
- Acceptance or rejection of sexual orientation
Relationships
- Seeking out or avoiding other LGBTI people
- Relationships with peers
- History of previous or current relationships, including casual encounters and heterosexual relationships, or the absence of relationships
- Physical, romantic of emotional attraction to others
- How the applicant meets partners
In knowing the above, you will better know how to present your case to the DOHA.
Do know that you will not be judged on if you previously had heterosexual relationships or children or if you have not come out about your gender identity or sexual orientation. If you are currently married, the DOHA will assess how you see the relationship and the future of your relationship. This also does not mean that you have to leave your partner; it may be possible that your heterosexual relationship may not disclude you from expressing your sexual orientation or gender identity.
Can you provide evidence? Any evidence that can prove your claims will help. These can come in the form of having revealed your status to another person. It can come in the form of text and chats, emails, videos, phone records, social media, photos or statements from past or present partners. Explicit photos or videos are not required.
Remember always to be honest in your dealings with the DOHA. It is unneccessary to exaggerate any claims; you do not need to have suffered major physical abuse or been arrested to have a well founded fear of persecution. Not giving genuine statements would give rise to reason for doubt. The DOHA will not neglect to take all things into consideration including what is known of your country. Do not be afraid to come forth to the DOHA or an immigration specialist, they will be able to help you.
Partner visa
If you are not facing discrimination but would like to apply for a Partner visa, Australia has voted yes! You would have previously been able to apply under a de facto relationship (which requires the relationship to have existed for at least 12 months) but may now apply as a married couple and be eligible for the Prospective Marriage 300 visa
