When Staying Silent Equals Persecution: The Modification of Behaviour Principle in Protection Visa Claims
Many people believe a protection visa requires physical violence or imprisonment. That is not always the case. Under Australian refugee law, an individual may qualify for protection if they would be forced to suppress who they are or what they believe in order to avoid harm. This is also known as the modification of behaviour principle.
What is the Modification of Behaviour Principle?
Section 5J(3) of the Migration Act provides that an individual does not lose a refugee claim simply because they could avoid harm by modifying their behaviour, unless that behaviour is fundamental to their identity or conscience. The High Court has confirmed that a person cannot be required to conceal their identity, suppress their beliefs and live “discreetly” to avoid harm. If the only reason someone would be safe is that they remain silent, the fear of persecution may be established.
How This Applies to Former Government Employees?
In some cases, individuals who were wrongfully accused, dismissed from public service, and later exonerated may fear retaliation if they return and seek justice. If they pursue accountability only out of fear of harm, officials responsible remain in positions of power; if there is evidence of retaliation against similar individuals, the requirement that they remain silent to stay safe may amount to persecution.
The Role of “Particular Social Group”
To succeed, the applicant must show membership of a particular social group under s 5L of the Migration Act. This may include groups such as: “former government employees who were wrongfully dismissed and seek accountability.” The group must share a common characteristic that is innate or immutable, or so fundamental to identity that it should not be renounced.
Your Evidence is Critical
Successful claims require country evidence showing patterns of retaliation, proof that responsible officials remain influential, evidence that others were treated similarly and a clear explanation of the applicant’s genuine intention to seek justice. Tribunals are persuaded by focused, well-supported claims and not multiple weak arguments. Engage with an Accredited Specialist in Immigration Law for professional assistance and build your evidence to support your claims.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
I Missed the 28 Day Window to Appeal My Visa – What are My Options?
Can I Apply for a Protection Visa if I Was Involved in a Protest?
How Can Agape Henry Crux Assist
We highly recommend scheduling a time with one of our immigration lawyers, who works closely with two of our Accredited Specialists in Immigration Law at Agape Henry Crux. They specialise in handling highly complex matters. You can schedule an appointment to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
Our founder and principal lawyer, Jason Ling, has been recognised in the 2026 edition of The Best Lawyers in Australia™. Agape Henry Crux is named as Best Immigration Law Firm 2025 - Sydney by APAC Insider Awards.
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This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
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