Common Challenges in Protection Visa Applications

The common challenges in protection visa applications are, above all, challenges of credibility and evidence. Most people who apply for protection in Australia cannot prove what happened to them with documents. They must rely on their own account, supported by whatever evidence exists and by information about conditions in their country. Whether that account is accepted usually decides the case.

This article explains the common challenges in protection visa applications that arise from credibility and evidence. It describes how the Department assesses credibility, why inconsistencies matter so much, how country information is used, and how different kinds of supporting evidence are treated. It is written for applicants preparing a claim, preparing for an interview, or responding to concerns the Department has raised.

What are the common challenges in protection visa applications?

The common challenges in protection visa applications that concern credibility and evidence usually include:

• inconsistency between different accounts the applicant has given;
• a lack of detail, or answers that seem vague or rehearsed;
• difficulty recalling dates and events, often because of trauma or the passage of time;
• claims that do not appear to fit with country information;
• documents whose authenticity or relevance is doubted; and
• a lack of any corroborating evidence at all.

Each of these is a challenge rather than a bar. A claim can succeed despite some inconsistency, some vagueness or limited evidence. What matters is how the challenge is anticipated and addressed. The firm's guide to the Subclass 866 protection visa sets out the visa requirements in summary, and its separate articles cover the legal-test and procedural challenges.

How the Department assesses credibility

Understanding how credibility is assessed is the starting point for meeting the common challenges in protection visa applications.

The Department's Protection Visa Processing Guidelines explain that an assessment of credibility involves considering the claims in light of any supporting documents, other evidence and country information, and deciding how much weight to give to each piece of evidence. The guidelines state that there is no legal requirement for credibility to be tested in every case. Where it is not tested, the claims are taken to be accepted at face value.

Where credibility is assessed, the guidelines state that findings should have logical grounds. They should not be based on an officer's subjective beliefs, but on facts supported by evidence. The officer must consider the applicant's circumstances and all relevant information.

The guidelines describe three possible conclusions:

• the claims are consistent with the evidence and raised no doubts, so the officer is satisfied as to their overall credibility;
• the officer has doubts about some claims, but finds them immaterial or outweighed, and gives the benefit of the doubt; or
• the deficiencies or doubts are so serious that the officer cannot be satisfied as to the credibility of those claims.

The guidelines also state that benefit of the doubt should be given only if the officer is satisfied as to the applicant's general credibility. That is why a single serious credibility problem can affect the assessment of every other claim.

Inconsistency: the most common challenge

Inconsistency is the most frequent of the common challenges in protection visa applications. A decision maker compares everything the applicant has said, across every document and every conversation.

The sources that are compared usually include:

• earlier visa applications, such as visitor or student visa applications;
• the protection visa application form;
• the written statement of claims;
• answers at the interview;
• responses to requests for information; and
• evidence at any review hearing.

Inconsistencies can be internal, where the applicant's own accounts differ from each other, or external, where the account differs from country information or from documents.

Not every inconsistency is significant. Differences in minor details, dates that are approximate rather than exact, or small changes in how an event is described are common in genuine accounts. The concern arises where the inconsistency goes to the heart of the claim, such as who caused the harm, why, when the applicant left, or what they fear now.

The best protection against inconsistency is preparation. The firm's guide to the protection visa statement of claims explains how a statement is prepared so that it is complete and accurate, and its guide to Form 866 explains how the form and the statement fit together.

Late disclosure of sensitive claims

Late disclosure is one of the most difficult common challenges in protection visa applications. Some applicants do not mention an important part of their claim until the interview, or even until review. The reason is often shame, fear, trauma or distrust of authority, particularly where the claim involves sexual violence, sexual orientation, gender identity, or harm within the family.

A decision maker is entitled to ask why a claim was not raised earlier. Section 5AAA of the Migration Act makes it the applicant's responsibility to set out all particulars of their claim. A late claim is not automatically rejected, but it needs a genuine explanation, and the explanation should be given at the time the claim is raised.

The best approach is to create the conditions for full disclosure before the application is lodged. That usually means giving the applicant time, privacy and an interpreter they trust, and explaining that all claims must be included. The firm's article on LGBTI protection visas in Australia discusses late disclosure in claims involving sexual orientation and gender identity. Addressing late disclosure early removes one of the common challenges in protection visa applications before it can be used against the applicant.

Vagueness and lack of detail

A lack of detail is another of the common challenges in protection visa applications. A decision maker expects a person describing events they lived through to be able to give some detail: where they were, who was present, what was said, how they felt, what happened next.

An account that stays at a general level, such as "I was threatened many times", without any specific incident, is harder to accept than one that describes particular events. An account that is detailed in some places but vague on the central event can raise questions of its own.

Detail should not be invented. A person who cannot remember something should say so. A guessed detail that turns out to be wrong creates an inconsistency, which is worse than an honest gap. The goal is an account that is as specific as the applicant's genuine memory allows.

Trauma, memory and demeanour

The effect of trauma is one of the most sensitive of the common challenges in protection visa applications. People who have experienced serious harm often have difficulty recalling dates and sequences, may find it hard to speak about certain events, and may present in ways that appear evasive or flat.

The Department's guidelines recognise this. In discussing adverse inferences from an applicant's manner or demeanour, the guidelines state that applicants may have difficulty accurately recalling details and dates because of fear, trauma or torture, or because of the length of time since the events. They note that cultural background may affect how a person responds, and that a person may be inhibited from discussing personal matters with an officer, relative or interpreter of the opposite sex.

Section 91V of the Migration Act allows an officer to ask an applicant to verify information by oath or affirmation, and to draw reasonable adverse inferences from a failure to do so or from demeanour in doing so. The guidelines state that other factors, including gender, known torture or trauma and country information, must also be taken into account, and that a protection visa application may not be refused solely on the basis of such an inference.

Where trauma may affect how an applicant gives evidence, it helps to say so early and, where appropriate, to provide professional evidence about it. Trauma does not excuse every gap or inconsistency, but it is a genuine explanation for many of them. Among the common challenges in protection visa applications, it is the one most often misunderstood by applicants themselves, who may feel that admitting difficulty with memory will count against them. In practice, an honest statement that a detail cannot be recalled is far safer than a confident answer that later proves wrong.

Interpreters and credibility

Interpreting errors can create some of the most unfair common challenges in protection visa applications. An inconsistency that is really a translation error can look exactly like an inconsistency in the applicant's account.

The applicant should tell the Department which language and dialect they speak best. If they cannot understand the interpreter, they should say so immediately, so that the problem is recorded. After an interview, the applicant should consider whether anything was misunderstood and, if so, raise it in writing promptly.

Written documents need the same care. A statement drafted in English with help from someone else must be read back to the applicant in their own language before it is signed, so that they are confident it says what they mean. The firm's guide to preparing for the protection visa interview explains how to manage interpreting at interview. Careful attention to interpreting prevents one of the most avoidable common challenges in protection visa applications.

Plausibility and country information

Country information is central to the common challenges in protection visa applications. A decision maker asks whether the applicant's account is plausible in light of what is known about conditions in the applicant's country.

The Department's policy on the use of country of origin information explains that where the Department of Foreign Affairs and Trade has prepared a country information report expressly for protection status determination, Ministerial Direction No. 84 requires decision makers to take it into account where relevant. The policy also states that these reports are not intended to be the sole basis for decisions, and that decision makers are not precluded from considering other relevant, more up-to-date information.

The same policy makes an important point about gaps in information. It states that if no information can be found on a specific event, this does not necessarily mean the event did not occur. The lack of information must be placed in context, including the level of reporting, media restrictions and censorship in the country.

For the applicant, this means country information should be engaged with, not ignored. Where the general information supports the claim, it should be identified. Where it appears to conflict, the reason should be explained, for example because the applicant's region, profile or circumstances differ from the general picture. The firm's article on what evidence supports a protection claim explains how this is done.

Documents from the home country

Documents are often the evidence applicants most want to rely on, and they bring their own common challenges in protection visa applications.

Documents such as summonses, arrest warrants, police reports, court records, medical records and letters can support a claim. They can also raise questions. A decision maker may ask how the applicant obtained the document, why it was issued, whether it is genuine, and whether documents of that type are commonly forged in the applicant's country.

Several points help:

• explain how and when each document was obtained, and by whom;
• provide the original where possible, and a complete, accurate translation;
• do not rely on a document whose origin the applicant cannot explain; and
• understand that a document which is found not to be genuine can damage credibility far more than having no document at all.

Identity documents are subject to specific rules under sections 91W and 91WA of the Migration Act, which can require refusal where a bogus identity document is provided without a reasonable explanation. The firm's protection visa documents checklist explains the documents an application should include.

Witnesses and corroboration

Corroboration can help meet the common challenges in protection visa applications, but it must be used carefully.

Evidence from other people, such as family members, community members, religious leaders or members of an organisation, can support parts of an account. A signed witness statement is most useful where the witness has direct knowledge of the facts, explains how they know them, and gives detail that can be checked.

Evidence that simply repeats the applicant's account, or that is written in general terms, carries less weight. Evidence that contradicts the applicant, even on a small point, can create a new inconsistency. Every witness statement should therefore be reviewed carefully before it is provided. The witness should also be willing to give evidence if asked.

In claims based on activities in Australia, such as religious conversion or political involvement, evidence from the relevant community or organisation is often important. It should describe the applicant's actual participation over time, not just their membership. A letter that records when the applicant first attended, how often they took part, and what role they played is far more useful than a letter that simply confirms they are a member.

Medical and psychological evidence

Medical and psychological reports can address several of the common challenges in protection visa applications at once. A medical report may corroborate physical harm. A psychological report may explain why an applicant has difficulty recalling events, why they present in a particular way, or why they delayed disclosing certain matters.

Reports are most useful when they are prepared by an appropriately qualified professional, describe what the professional observed, and explain the basis for their opinions. A report that simply records what the applicant said, without independent assessment, adds little.

Reports should also be consistent with the rest of the evidence. A report that describes events differently from the statement can create an inconsistency of its own.

Responding to credibility concerns before a decision

The Department will often raise credibility concerns before deciding. That is the last and best opportunity to address the common challenges in protection visa applications at the primary stage.

Under section 57 of the Migration Act, the Department must generally give the applicant particulars of relevant information that would be a reason for refusal, and invite comment. The Department's guidelines note that failure to do so in relation to credibility concerns may result in a decision affected by legal error. The Department may also use section 56 to seek further information where it has concerns that section 57 does not cover.

A response should:

• address each concern directly and specifically;
• explain any inconsistency with reasons, not just a denial;
• provide any further evidence that answers the concern; and
• be consistent with everything the applicant has said before.

The firm's guide to responding to a section 56 request for more information explains how those letters work. Where the concern is raised at interview, the firm's guide to protection visa interview questions explains how to prepare.

Credibility at the Administrative Review Tribunal

Where a claim is refused on credibility grounds, the common challenges in protection visa applications are examined again at the Administrative Review Tribunal. The Tribunal reconsiders the claim afresh, hears the applicant and can receive new evidence.

A review is an opportunity to address the specific credibility findings that caused the refusal. It is not an opportunity to present a different account. A claim or evidence raised for the first time at review, without a reasonable explanation for not raising it earlier, can be treated with caution. The firm's articles on appealing a protection visa refusal to the ART and on the protection visa ART hearing explain the process. The time to apply for review is short and strictly applied.

Preparing a claim to meet the common challenges in protection visa applications

The common challenges in protection visa applications can be met with preparation that starts well before lodgement.

• Gather every earlier account. Obtain copies of earlier visa applications and any statements already given, and identify any differences.
• Build a clear chronology. Set out the key events in order, with approximate dates where exact dates are not known.
• Record genuine detail. For each important event, record where, when, who, what was said and what happened next, as far as memory allows.
• Identify the country information. Find the information relevant to the applicant's region and profile, and note where it supports or appears to conflict with the account.
• Assess every document. Confirm how each document was obtained and whether it can be relied on.
• Plan for disclosure. Make sure sensitive claims are raised at the start, with the support the applicant needs to do so.

A claim prepared in this way is far better placed to withstand the common challenges in protection visa applications at interview and, if necessary, at review.

How My Migration Lawyers addresses common challenges in protection visa applications

My Migration Lawyers treats credibility and evidence as the centre of every protection matter. The firm acts in many protection visa matters, including complex cases involving trauma, late disclosure, conflicting country information and contested documents, and it is capable of handling those matters from lodgement through to review.

In a matter involving the common challenges in protection visa applications, the firm's work typically includes:

• reviewing every earlier visa application and statement so that inconsistencies are identified and explained at the start;
• presenting the applicant's own account in the form the law requires, with as much genuine detail as their memory allows;
• researching country information relevant to the applicant's region, profile and circumstances;
• assessing documents and witness evidence before they are provided;
• arranging professional reports where trauma or harm needs to be explained; and
• responding to section 57 invitations and preparing the applicant for interview and review.

The firm presents the applicant's own account and evidence. It never adds to or changes the account. The applicant decides which claims are advanced, and the statement remains their own evidence, reviewed and corrected by them.

The firm's protection work is led by Principal Lawyer Weiwei Zhang. More about the practice is on the protection visa lawyers page, and the full framework is in the Subclass 866 Protection Visa complete guide.

If you are concerned about any of the common challenges in protection visa applications in your own case, book a consultation with My Migration Lawyers online, or call 1300 040 300.