Common Challenges with Protection Visa Subclass 866

The common challenges with Protection Visa Subclass 866 are not always about the law of persecution or significant harm. Many applications are damaged by procedural problems that have nothing to do with whether the applicant is genuinely at risk. Identity documents, delay, missing claims, bridging visa conditions and missed letters cause real refusals.

This article explains the procedural common challenges with Protection Visa Subclass 866. It sets out what the Migration Act requires, how the Department applies it, and what applicants can do to avoid each problem. It is written for applicants who are preparing an application, waiting for a decision, or trying to understand why a decision went against them.

What are the common challenges with Protection Visa Subclass 866?

The common challenges with Protection Visa Subclass 866 that arise from procedure, rather than from the legal test, usually fall into seven groups:

• identity documents and the rules in sections 91W and 91WA;
• the applicant's responsibility under section 5AAA to put forward every claim and the evidence for it;
• delay in applying after arriving in Australia;
• new claims raised late, including at review;
• bridging visa conditions and work rights during a long wait;
• inconsistency with earlier visa applications and statements; and
• missed correspondence, deadlines and changes of circumstances.

The legal challenges, such as the Convention reason, state protection and relocation, are covered separately. The firm's guide to the Subclass 866 protection visa sets out the visa requirements in summary.

Identity documents: sections 91W and 91WA

Identity is the first of the common challenges with Protection Visa Subclass 866, and it can end an application regardless of the strength of the claim.

Section 91W. The Department's Protection Visa Processing Guidelines explain that section 91W(1) allows an officer to request, orally or in writing, that an applicant produce documentary evidence of identity, nationality or citizenship. Under section 91W(2), the visa must be refused if each of the following applies:

• the applicant was given the request;
• the applicant refused or failed to comply, or produced a bogus document in response;
• the applicant does not have a reasonable explanation; and
• the applicant was warned, when the request was made, that the visa cannot be granted if they refuse or fail to comply, or produce a bogus document.

Section 91WA. The guidelines explain that section 91WA prevents grant where the applicant provides a bogus document as evidence of identity, nationality or citizenship as part of or in connection with the application, or destroys or disposes of such documentary evidence, unless the applicant has a reasonable explanation and either provides documentary evidence of identity or has taken reasonable steps to do so. The guidelines note that, following a Full Federal Court decision, section 91WA applies only to documents connected with the protection application being decided.

What this means in practice. Many people who flee have no documents, or travelled on documents obtained irregularly. That is not unusual, and the law allows for a reasonable explanation. The guidelines state that the assessment of whether an explanation is reasonable should be objective, proportionate and depend on the individual's circumstances. The explanation must be given clearly, early and consistently.

The guidelines also note that where sections 91W or 91WA prevent grant, the applicant's protection claims must still be assessed, because Australia may still owe protection obligations. The firm's protection visa documents checklist explains the identity documents an application should include.

The applicant's responsibility under section 5AAA

The second of the common challenges with Protection Visa Subclass 866 is one many applicants do not know exists. Section 5AAA(2) of the Migration Act makes it the responsibility of the applicant to specify all particulars of their claim to be owed protection, and to provide sufficient evidence to establish it.

The Department's guidelines explain that section 5AAA(4) provides that officers have no responsibility or obligation to specify, or assist in specifying, any particulars of the applicant's claims, or to establish, or assist in establishing, those claims. The guidelines describe the purpose of the section as encouraging applicants to provide all claims and supporting evidence in their application.

The guidelines also note that the Department must still consider all relevant facts, comply with procedural fairness, and consider implied claims that clearly arise on the material. But an applicant who leaves out a claim, or fails to support it, cannot assume the Department will fill the gap. The firm's guide to the protection visa statement of claims explains how a complete claim is prepared.

Interpreters and translated documents

Language is one of the quieter common challenges with Protection Visa Subclass 866. The application, the statement, the interview and any correspondence may all involve translation, and errors at any point can later look like inconsistencies.

Documents in a language other than English should be translated accurately, and the translation should be complete. A partial or informal translation can omit a detail that matters, or change its meaning. The original document should be kept and provided where requested.

At interview, the applicant should confirm that they understand the interpreter and should say so immediately if they do not. The Department's guidelines recognise that an applicant's ability to speak freely can depend on the interview method and the people present, and an applicant may ask for an interpreter of a particular gender where the claims are sensitive.

The written statement deserves particular care. If it was prepared in English with help from a friend or relative, the applicant must be confident that it says exactly what they meant. A statement the applicant cannot fully stand behind creates one of the most damaging common challenges with Protection Visa Subclass 866, because it will be compared with everything the applicant says later.

Delay in applying for protection

Delay is one of the most common challenges with Protection Visa Subclass 866. Many applicants arrive in Australia on a visitor or student visa and apply for protection months or years later.

Delay is not fatal. There are many genuine reasons for it. An applicant may not have known protection was available, may have hoped conditions at home would improve, may have been afraid of the process, or may have been dealing with trauma. Some claims arise only after arrival, because of events at home or activities in Australia.

However, delay must be explained. A decision maker may ask why a person who feared serious harm did not seek protection sooner. An unexplained delay can weigh against credibility, particularly where the applicant had an obvious opportunity to apply earlier.

Delay can also have practical consequences. The Department's bridging visa guidelines explain that a protection applicant holding a Bridging visa E with a no work condition may obtain a further Bridging visa E with permission to work only if they show a compelling need to work and an acceptable reason for the delay in applying. An unexplained delay can therefore affect an applicant's ability to support themselves while they wait.

The firm's article on whether delaying a Subclass 866 protection visa application affects a claim explains this issue in more detail.

New claims raised late

Late claims are closely related to delay and are another of the common challenges with Protection Visa Subclass 866. A claim that appears for the first time at interview, after a refusal, or at review is often treated with suspicion.

At the Administrative Review Tribunal, section 423A of the Migration Act addresses new claims and new evidence. Where a claim or evidence is raised for the first time at review, and the applicant does not have a reasonable explanation for not raising it before the Department's decision, the Tribunal must draw an inference unfavourable to the credibility of that claim or evidence.

That provision reinforces the point made by section 5AAA. Every claim should be in the first application. If a claim is difficult to disclose, for example because it concerns sexual orientation, sexual violence or a family matter, the reason for any delay in raising it should be explained when it is raised. The firm's article on LGBTI protection visas in Australia discusses late disclosure in that context.

Bridging visas and work rights during a long wait

The wait for a decision is itself one of the common challenges with Protection Visa Subclass 866. Processing can take a long time, and the firm's article on protection visa processing times explains why.

During that time, the applicant's bridging visa governs daily life. The type of bridging visa, and whether it allows work, depends on the applicant's position when they applied. A person who lodged while holding a substantive visa is usually considered for a Bridging visa A. A person who lodged after their visa expired may receive a Bridging visa E, which often carries a no work condition in the first instance.

Several problems commonly arise:

• No work rights. An applicant without permission to work may need to apply for a further bridging visa and show a compelling need to work.
• Travel restrictions. Most bridging visas do not allow travel, and the permanent visa can only be granted while the applicant is in Australia.
• Breach of conditions. A breach can lead to cancellation of the bridging visa and, in some cases, detention.
• Family members. The guidelines explain that dependent children of a parent granted permission to work can be granted work rights so that they may be eligible for Medicare.

The firm's overview of bridging visas in Australia explains each type.

Family members included in the application

Family members add another layer to the common challenges with Protection Visa Subclass 866. A spouse, de facto partner or dependent child in Australia can be included in the application, and each person included is assessed.

Each included family member must meet the criteria that apply to them, including identity, character and, where relevant, health requirements. A problem with one person's identity documents or character can delay the whole application.

Family members who are not in Australia cannot be granted the visa with the applicant, because the visa can only be granted to a person in Australia. They should still be declared accurately. An undeclared family member is difficult to explain later.

Where a family member has their own protection claim, for example a partner who fears harm for a different reason, it should be considered whether that person should make their own claim as well as being included. Leaving a family member's own claim unstated can become one of the common challenges with Protection Visa Subclass 866 later, particularly if the main applicant's claim is not accepted.

Unlawful status before applying

Some applicants apply after their visa has already expired. Being an unlawful non-citizen is another of the common challenges with Protection Visa Subclass 866, although it does not prevent a valid application where the person entered lawfully.

An unlawful non-citizen is liable to detention. Applying promptly, and engaging with the Department, is important. A person in this position should also expect questions about why they allowed their visa to expire and why they did not apply earlier. Those questions should be answered honestly in the application. A clear and truthful explanation, given early, is always better than silence.

Inconsistency with earlier visa applications

Earlier visa applications are a common and often unexpected challenge. Most applicants for Protection Visa Subclass 866 have made at least one earlier application, usually for a visitor or student visa. The Department holds those applications and compares them with the protection claim.

Inconsistencies commonly arise over the purpose of travel, employment history, family members, addresses, and travel to other countries. A visitor visa application that said the applicant intended to return home, or that described a stable job, may be put to the applicant as inconsistent with a claim of fear.

These inconsistencies are among the common challenges with Protection Visa Subclass 866 that can usually be explained. Many people who flee say what they need to say to obtain a visa. The explanation should be given in the protection application, candidly and in the applicant's own words, rather than waiting for the Department to raise it. The firm's guide to Form 80 explains why personal particulars must be consistent across every document.

Changes while the application is waiting

A long wait brings change. Country conditions may improve or worsen. The applicant may marry, have a child, change address, or be charged with an offence. Each change can affect the application, and managing change is one of the less visible common challenges with Protection Visa Subclass 866.

• Country conditions. The decision is made on the conditions at the time of decision. Evidence that was strong at lodgement may need updating.
• Personal circumstances. Section 104 of the Migration Act requires the applicant to notify the Department if circumstances change so that an answer in the application becomes incorrect. The firm's guide to Form 1022 explains how.
• New family members. A new partner or child may need to be added, which has its own requirements.

An applicant who keeps the Department informed, and keeps the evidence current, is in a far stronger position when a decision is finally made.

Missed correspondence and deadlines

Missed letters cause more avoidable refusals than almost any other procedural problem. The Department communicates by email and through ImmiAccount, and requests under section 56 or invitations under section 57 set a period for response.

A request that is not answered may lead to a decision being made without the information. A decision that is not read promptly may leave little time to seek review. The time to apply to the Administrative Review Tribunal is short and strictly applied, and it runs from the date the applicant is taken to have received the decision.

Email is the most common source of the problem. Letters sent to an address the applicant rarely checks, or that filters messages as spam, can be treated as received. Applicants should use an email address they check every day, add the Department's addresses to their safe senders, and log in to ImmiAccount regularly. For many applicants, managing correspondence is one of the most avoidable common challenges with Protection Visa Subclass 866.

The firm's guide to responding to a section 56 request for more information explains how those letters work, and its page on protection visa refusals explains what to do if a refusal arrives.

Representatives and authorised recipients

Representation is a practical matter that can create avoidable common challenges with Protection Visa Subclass 866. Many applicants appoint a lawyer or registered migration agent, and some appoint a person to receive correspondence on their behalf.

A representative or authorised recipient is appointed using the Department's forms, and the Department then sends correspondence to that person. If the appointment is not properly made, or is not updated when the applicant changes representative, letters can go to the wrong place. The firm's guide to Form 956 and 956A explains how appointments work, and its article on changing immigration lawyer explains how to change representative safely.

An applicant who changes representative mid-application should make sure the new appointment is lodged and the old one withdrawn, so that no letter is missed.

How to prevent the common challenges with Protection Visa Subclass 866

Each of the common challenges with Protection Visa Subclass 866 described in this article can be reduced or avoided with preparation.

• Settle identity at the outset, with every available document and an honest explanation for any that are missing or irregular.
• Put every claim, and the evidence for it, into the first application.
• Explain any delay in applying, and any late disclosure, in the applicant's own words.
• Lodge while still holding a substantive visa where possible.
• Review earlier visa applications and address any inconsistency before the Department raises it.
• Keep contact details current and read every letter the day it arrives.
• Notify changes of circumstances promptly.

None of these steps is complicated, but each needs attention at the right time. Most of the common challenges with Protection Visa Subclass 866 are created in the first weeks of an application, when the applicant is under the most stress and the least prepared. Taking advice before lodging, rather than after a problem appears, is usually the difference between a procedural issue that is managed and one that becomes a reason for refusal.

The same discipline applies at review. The common challenges with Protection Visa Subclass 866 that caused a refusal often reappear before the Tribunal unless they are identified and addressed directly in the review material.

How My Migration Lawyers handles the common challenges with Protection Visa Subclass 866

My Migration Lawyers deals with these procedural problems as a routine part of its protection work, and treats them as seriously as the protection claim itself. The firm acts in many protection visa matters, including complex cases involving missing or irregular identity documents, long delays, expired visas and inconsistent earlier applications, and it is capable of handling those matters from lodgement through to review.

In a matter involving the common challenges with Protection Visa Subclass 866, the firm's work typically includes:

• reviewing identity documents and preparing a reasonable explanation where documents are missing or irregular;
• obtaining and reviewing earlier visa applications so that inconsistencies are addressed at the start;
• ensuring every claim and supporting document is included in the first application, as section 5AAA requires;
• advising on bridging visas, work rights and travel;
• managing Department correspondence and deadlines; and
• acting on review before the Administrative Review Tribunal where a refusal is made.

The firm presents the applicant's own account and evidence in the form the law requires. 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 facing any of the common challenges with Protection Visa Subclass 866, book a consultation with My Migration Lawyers online, or call 1300 040 300.