Common reasons for Protection Visa Subclass 866 Refusals

Common Reasons for Protection Visa Subclass 866 Refusals: The Short Answer

The common reasons for Protection Visa Subclass 866 refusals are adverse credibility findings, a finding that there is no real chance of persecution or real risk of significant harm, and findings that state protection or relocation within the home country is available. Behind those main findings sit a smaller group of legal grounds that are just as final: identity, protection in a third country, exclusion, security, character and health. Knowing the common reasons for Protection Visa Subclass 866 refusals before lodgement is the most practical way to avoid them.

Most refusals do not turn on whether the applicant is afraid. They turn on whether the officer accepts the facts, and whether those facts meet a precise statutory test. A genuine applicant can still be refused because the evidence did not answer the question the law required the Department to ask.

This article catalogues the common reasons for Protection Visa Subclass 866 refusals one by one. For each ground, it explains the legal basis, how the Department reasons, how the refusal is usually expressed in the decision record, and how the issue can be dealt with before lodgement or on review. For an overview of the visa itself, see our Subclass 866 Protection visa page and our definitive guide to the protection visa in Australia.

How the Department Decides a Subclass 866 Application

The Department refuses a Subclass 866 application whenever the officer is not satisfied that every criterion for the visa is met. Under section 65 of the Migration Act 1958, the officer must grant the visa if satisfied of the criteria and must refuse it if not satisfied. There is no middle ground and no discretion to grant a visa to someone who fails a criterion.

The central criterion is clause 866.221 of the Migration Regulations 1994. It requires the officer to be satisfied that the applicant meets section 36(2)(a), the refugee test, or section 36(2)(aa), the complementary protection test. The applicant must also meet the health criteria, the public interest criteria and the security and exclusion provisions in section 36.

Two principles shape almost every one of the common reasons for Protection Visa Subclass 866 refusals. The first is section 5AAA of the Act. It provides that it is the applicant's responsibility to specify all particulars of the claim and to provide sufficient evidence to establish it. The Department does not have to make the case for the applicant. The second is the order of assessment. The officer first decides the facts, then applies the refugee test, then the complementary protection test, and only then considers the ineligibility provisions.

A refusal decision record usually follows that order. It sets out the claims, states which claims are accepted and which are not, and then explains why the accepted facts do not satisfy the law. The operative conclusion is typically expressed in words to the effect that the officer is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Reading the decision record in that order shows exactly which of the common reasons for Protection Visa Subclass 866 refusals was applied, and where the case failed.

Adverse Credibility Findings

Adverse credibility findings are the single most frequent of the common reasons for Protection Visa Subclass 866 refusals. If the officer does not believe the core events happened, the legal tests are applied to a much smaller set of facts, and the claim usually fails.

The Department's Protection Visa Processing Guidelines state that credibility findings must be based on facts and supported by evidence, not on an officer's subjective beliefs. There is no requirement that a claim be supported by independent evidence before it can be accepted. Where the applicant is generally credible, the officer may give the benefit of the doubt on claims that cannot be proved. However, the applicant is not entitled to have claims accepted simply because they could be true.

Inconsistencies between accounts

Inconsistency is the most common credibility problem. The officer compares the written statement, the application form, the interview, earlier visa applications, travel movement records and identity documents. Where these do not match on material points, the officer may find that the claims are not credible.

The guidelines also set limits. An inability to give a precisely accurate account should not lead to automatic rejection, because trauma and the passage of time affect memory. Officers are told not to join a series of minor inconsistencies together to avoid accepting a claim. Where a significant inconsistency does raise credibility concerns, the applicant should be invited to comment under section 57 of the Act. A section 57 letter is therefore a warning that one of the common reasons for Protection Visa Subclass 866 refusals is about to be applied, and the response to it matters.

Implausible, vague or incoherent claims

The officer may find that a claim is implausible, that it lacks the detail expected of a person in the applicant's position, or that it is vague or incoherent. The guidelines state that it is not enough to call a claim implausible or vague without explaining why, and that officers should not demand an unrealistic degree of precision. In practice, a short statement that describes general country conditions instead of what happened to the applicant is the claim most exposed to this finding. Our guide to the protection visa statement of claims explains how a statement is structured to carry the necessary detail.

Late claims and delay in applying

Delay is one of the common reasons for Protection Visa Subclass 866 refusals that applicants most often underestimate. The guidelines recognise many innocent reasons for delay, including changed circumstances, fear, lack of awareness of the right to seek protection, and incorrect advice. They also allow the officer to take delay into account in assessing credibility. A claim raised for the first time after lodgement, or after the interview, may be doubted for the same reason.

The guidelines state that delay should not be the only reason for rejecting a claim. There should be other reasons as well. That is why delay is rarely fatal on its own, but it often combines with an inconsistency to produce a refusal. A clear and honest explanation for the delay, given in writing at lodgement, is the best answer. Our article on whether delaying a Subclass 866 application affects your claim explains how delay is assessed.

No Real Chance of Persecution or Real Risk of Significant Harm

A finding that there is no real chance of persecution, and no real risk of significant harm, is one of the common reasons for Protection Visa Subclass 866 refusals even where the officer accepts the applicant's account. The officer may believe what happened in the past but conclude that it is unlikely to happen again on return.

Under section 5J(1) of the Act, a well-founded fear of persecution has three elements. The applicant must fear persecution for one of the five Convention reasons. There must be a real chance that the persecution will occur. The real chance must relate to all areas of the receiving country. The test looks at the reasonably foreseeable future, not only at the past.

For complementary protection under section 36(2)(aa), the officer must find substantial grounds for believing that there is a real risk of significant harm as a necessary and foreseeable consequence of removal. The Complementary Protection Guidelines state that this is an objective assessment based on the evidence, the claims and country information.

The usual reasoning is that the events were long ago, the persecutor has lost interest or power, or country conditions have changed. The decision record will usually state that the officer accepts certain past events but does not accept that the applicant faces a real chance of serious harm in the reasonably foreseeable future.

The answer to this ground, like many of the common reasons for Protection Visa Subclass 866 refusals, is evidence that looks forward. That means current threats, recent contact from the persecutor, the continued position of the agent of harm, and up-to-date country information. Our guide to evidence in a protection visa application explains what tends to carry weight on this issue.

Harm That Does Not Meet the Legal Definition of Persecution

Harm is not persecution under section 5J(4) unless it involves serious harm and systematic and discriminatory conduct, and one of the five Convention reasons is the essential and significant reason for it. Many of the common reasons for Protection Visa Subclass 866 refusals come from this definition.

Harm that is not serious harm

Section 5J(5) gives a non-exhaustive list of what counts as serious harm, including a threat to life or liberty and significant physical harassment or ill-treatment. It also covers significant economic hardship, denial of access to basic services, or denial of the capacity to earn a livelihood, where it threatens the person's capacity to subsist. Discrimination, insults, social disadvantage or difficulty finding work can be real and painful without reaching that threshold. The refusal will usually state that the harm feared does not amount to serious harm for the purposes of section 5J(5).

The response to this ground is to set out the full, cumulative picture of what the applicant faces, with specific examples. Several forms of harm, each below the threshold on its own, may together amount to serious harm.

No systematic and discriminatory conduct

The harm must also involve systematic and discriminatory conduct. Random crime, a single dispute or a personal grudge may be found not to meet this element.

No link to a Convention reason

One of the most technical common reasons for Protection Visa Subclass 866 refusals is that the harm has no link to race, religion, nationality, membership of a particular social group or political opinion. A person may face real danger from a criminal gang, a creditor or a family feud, but if the reason for the harm is money or revenge, the refugee test is not met. Membership of a particular social group is defined in sections 5K and 5L and is often where these claims succeed or fail.

This ground is a key reason to run complementary protection as well. The complementary protection test does not require a Convention reason. Claims based on religious persecution usually fit a Convention reason clearly, but many other claims need both tests analysed before lodgement.

Conduct in Australia

Under section 5J(6), the officer must disregard conduct engaged in by the applicant in Australia unless the applicant satisfies the officer that it was engaged in otherwise than for the purpose of strengthening the claim. Political activity, religious conversion or public statements made after arrival are examined closely for this reason, and conduct found to be self-serving is one of the common reasons for Protection Visa Subclass 866 refusals in sur place claims.

Effective State Protection and Reasonable Relocation

Effective protection by the home country and the option of relocation are among the common reasons for Protection Visa Subclass 866 refusals where the feared harm comes from a private person rather than the government. The refugee test and the complementary protection test deal with each issue differently, and a refusal often applies both.

Effective protection under sections 5J(2) and 5LA

Under section 5J(2), a person does not have a well-founded fear of persecution if effective protection measures are available in the receiving country. Section 5LA explains that protection may come from the state, or from a party or organisation that controls the state or a substantial part of it, where the protection is effective and durable. The refusal will usually state that the authorities are willing and able to protect the applicant.

For complementary protection, section 36(2B)(b) asks a different question. Could the applicant obtain protection from an authority of the country such that there would not be a real risk of significant harm? The Complementary Protection Guidelines state that the mere existence of laws and police does not show that a person could actually obtain protection. The answer to this ground is evidence of how the authorities in fact respond to people in the applicant's position, including any past complaint that went nowhere.

Relocation within the home country

Under section 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country. Under section 36(2B)(a), there is taken to be no real risk of significant harm if it would be reasonable for the applicant to relocate to an area where there would be no real risk. The guidelines state that the two tests are significantly different, and a finding under one cannot simply be adopted for the other.

The Department's guidelines also state that where the agent of harm is the state, relocation will usually not be available. Relocation is therefore one of the common reasons for Protection Visa Subclass 866 refusals mainly in claims involving a local or family agent of harm. A claim that is silent on relocation invites a finding against the applicant. The statement should explain why the applicant could not live safely or practicably elsewhere in the country, and the evidence should support it.

Risk Faced by the Population Generally Under Section 36(2B)(c)

Under section 36(2B)(c), there is taken not to be a real risk of significant harm if the risk is faced by the population of the country generally and is not faced by the applicant personally. This is one of the common reasons for Protection Visa Subclass 866 refusals in claims based on general violence, instability, crime or poor living conditions.

The Complementary Protection Guidelines state that, in circumstances of generalised violence, an applicant must show a particular risk arising from a characteristic that distinguishes them from the population generally. However, the guidelines also state that a general statement that violence is widespread is not enough to apply section 36(2B)(c). The officer must go on to consider whether the applicant would be personally affected.

The answer to this ground is to identify what sets the applicant apart. That may be a profile, an occupation, a family connection, a past incident or a characteristic that makes the applicant a target when others are not.

Can the Department Refuse Because You Could Change Your Behaviour?

Yes. The Department can refuse on this basis, but only in limited circumstances, and the rule is different for refugee claims and complementary protection claims. Modification of behaviour is one of the less understood common reasons for Protection Visa Subclass 866 refusals.

Under section 5J(3), a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. However, section 5J(3) does not apply where the modification would conflict with a characteristic fundamental to the person's identity or conscience, would conceal an innate or immutable characteristic, or would require the person to do any of the things listed in section 5J(3)(c). The Department's guidelines state that claims based on sexual orientation or gender identity are likely to fall within these exceptions. Our LGBTI protection visa page explains how this applies.

For complementary protection, the Complementary Protection Guidelines state that the High Court found in DQU16 that the principle protecting a person from being expected to hide a protected characteristic does not apply to complementary protection claims. Where the harm would result from the applicant's own voluntary choices on return, the officer may find it is not a necessary and foreseeable consequence of removal. Our article on Subclass 866 complementary protection for LGBTI applicants discusses this area in detail.

Identity Refusals Under Sections 91W and 91WA

Identity is one of the common reasons for Protection Visa Subclass 866 refusals that operates as a mandatory refusal ground, not as a matter of weight. Sections 91W and 91WA of the Migration Act 1958 require the visa to be refused in the circumstances they describe unless the applicant has a reasonable explanation.

Under section 91W, the officer may ask the applicant to produce evidence of identity, nationality or citizenship. If the applicant refuses or fails to comply, or produces a bogus document, and has no reasonable explanation, the visa must be refused. Under section 91WA, the visa must be refused if the applicant provides a bogus identity document, or destroys or disposes of identity documents, unless the applicant has a reasonable explanation and either provides documentary evidence of identity or takes reasonable steps to do so.

The Department's guidelines recognise examples of a reasonable explanation, such as a government that refuses to issue documents to a persecuted group, or documents taken by a third party. The refusal will usually state that the officer is not satisfied that the applicant has a reasonable explanation. The answer is an honest written explanation at lodgement, supported by whatever identity evidence exists. Never submit a document that may not be genuine. Our protection visa documents checklist sets out the identity evidence to gather.

Protection in a Third Country Under Section 36(3)

Under section 36(3), Australia is taken not to have protection obligations to a person who has not taken all possible steps to use a right to enter and reside in another country, including a country of which the person is a national. This is one of the less frequent common reasons for Protection Visa Subclass 866 refusals, but it is decisive when it applies.

The Department's guidelines state that the officer should consider section 36(3) only after finding that the applicant would otherwise engage protection obligations. The provision does not apply to a country where the applicant has a well-founded fear of persecution or a real risk of significant harm, or where the applicant fears being sent on to such a country. Under section 36(6), nationality is decided by the law of the other country. Dual nationals should raise this issue before lodgement.

Exclusion, Security, Character and Health Grounds

Exclusion, security, character and health grounds are the common reasons for Protection Visa Subclass 866 refusals that apply even where the applicant is found to be a refugee or to need complementary protection.

• Exclusion from the refugee definition. Under section 5H(2), a person is not a refugee if there are serious reasons for considering that they committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations. Section 36(2C)(a) applies the same exclusions to complementary protection. A conviction is not required, only serious reasons for considering that the person committed the crime.
• Danger to security or the community. Under section 36(1C), there must not be reasonable grounds for considering that the applicant is a danger to Australia's security, or that, having been convicted by final judgment of a particularly serious crime, the applicant is a danger to the Australian community. Section 36(2C)(b) mirrors this for complementary protection.
• Adverse security assessment. Under section 36(1B), the applicant must not be assessed by the Australian Security Intelligence Organisation to be a risk to security.
• Character and public interest criteria. The applicant must satisfy public interest criteria 4001 and 4003A, and public interest criterion 4019 if aged 18 or over at application. Section 501 may also apply.
• Health. The health criteria in clauses 866.223 to 866.224B must be met.

The Department's guidelines state that the officer must first record whether a protection finding is made, under section 36A, before considering these ineligibility grounds. A person refused on one of these grounds may still engage Australia's non-refoulement obligations. Honest disclosure of any criminal history on the application and on Form 80 is essential.

Failure to Attend the Interview or Respond to Requests

Failing to attend the interview, or failing to respond to a request, is one of the most avoidable common reasons for Protection Visa Subclass 866 refusals. The Department's guidelines state that non-attendance at interview is not in itself a reason to refuse. However, the officer may decide the application on the information already held, and may decline to accept claims that could have been explained at interview.

Under section 62 of the Act, if the applicant is invited to give information or comment and the time passes without a response, the officer may decide the application without further opportunity. A section 57 invitation to comment on adverse information is a critical document. It usually sets out the precise reasons the officer is considering refusal. The time allowed to respond is short and strictly applied.

Keep contact details up to date, attend every interview, and answer every request in full and on time. If an emergency prevents attendance, tell the Department immediately and in writing. Our pages on the protection visa interview and on protection visa interview questions explain how to prepare.

Can the Common Reasons for Protection Visa Subclass 866 Refusals Be Addressed on Review?

Yes. Most of the common reasons for Protection Visa Subclass 866 refusals can be addressed on merits review by the Administrative Review Tribunal, because the Tribunal makes a fresh decision on the evidence before it. The refusal letter states the review rights and the time limit, which is short and strictly applied.

The decision record is the map for the review. Each adverse finding identifies a gap that must be filled. A credibility finding requires a consistent, explained account. A relocation or state protection finding requires specific evidence. A finding that there is no Convention reason may require the claim to be presented under complementary protection as well. Our guides on appealing a protection visa refusal to the ART and the Subclass 866 refusal ART guide explain the process, and the Administrative Review Tribunal publishes information about applying for review. Our protection visa refusals page explains how we act after a refusal.

How My Migration Lawyers Addresses the Common Reasons for Protection Visa Subclass 866 Refusals

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases involving credibility findings, delay, identity problems, relocation findings and third country issues. We deal with the common reasons for Protection Visa Subclass 866 refusals by addressing each one on the file before the Department can rely on it.

Our work on these matters follows a set path:

• Reading the decision record line by line. Where a refusal has already been made, we identify each finding, the section it relies on, and the evidence that was missing.
• Taking your account. We take your own account of what happened and what you fear, and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Testing the claims against both tests. We assess whether the facts fit the refugee test, the complementary protection test, or both, so that a missing Convention reason does not end the case.
• Answering credibility issues in advance. Delay, gaps and earlier inconsistent statements are explained in writing, with the reasons, before the interview.
• Gathering targeted evidence. We identify the country information and personal evidence needed on state protection, relocation and personal risk.
• Managing the process. We respond to section 57 letters and other requests on time and prepare you for the interview or the Tribunal hearing.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so you can speak with us wherever you live in Australia. Our protection visa lawyers page sets out how we act in these matters.

If you are concerned about any of the common reasons for Protection Visa Subclass 866 refusals in your own case, the time to deal with it is before the decision is made. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.