Evidence for Protection Visa 866

The evidence for Protection Visa 866 applications is the material that proves the applicant's identity, the harm they fear, the reason they would be targeted, and why their own government cannot or will not protect them. The Department of Home Affairs does not decide a Subclass 866 claim on the application form alone. It decides it on the evidence for Protection Visa 866 that is put before it, and on how that evidence holds up when it is tested.

This article explains what evidence for Protection Visa 866 the Department expects, when it expects it, and how it tests it at each stage from lodgement to decision. It also explains where applicants who prepare their own evidence most often lose the case, and what can still be done if the visa is refused.

What evidence for Protection Visa 866 does the Department expect?

The Department expects evidence for Protection Visa 866 that is complete, consistent and specific to the applicant. It does not expect every claim to be proven by a document. It does expect the applicant to give a detailed and truthful account, and to provide the supporting material that is reasonably available to them.

Section 5AAA(2) of the Migration Act 1958 places the responsibility on the applicant. The applicant must specify all particulars of the claim to be a person to whom Australia owes protection obligations, and must provide sufficient evidence to establish that claim. Section 5AAA(4) states that the Department has no responsibility or obligation to specify the particulars of the claim for the applicant, or to establish the claim for them.

That rule shapes everything about the evidence for Protection Visa 866. The applicant cannot lodge a short application and wait for the Department to ask the right questions. The Department's own processing guidelines state that the purpose of section 5AAA is to encourage applicants to provide all claims and all evidence in support of those claims in the application itself.

The evidence the Department considers usually falls into four groups:

• The applicant's own account. This is the written statement of claims lodged with the application and the oral evidence given at interview.
• Documents. Identity and nationality documents, and documents that support the claims, such as membership records, medical records, court papers, police reports and photographs.
• Third-party evidence. Statements from witnesses, and reports from doctors, psychologists and other experts.
• Country information. Reports about conditions and laws in the applicant's home country. The Department also carries out its own research.

For a detailed breakdown of each type, see the My Migration Lawyers guide to evidence in a protection visa application. For the full framework of the visa itself, see the complete guide to the Subclass 866 protection visa.

What must the evidence for Protection Visa 866 prove?

The evidence for Protection Visa 866 must prove each element of the legal test the applicant relies on. A Subclass 866 visa can be granted on one of two grounds. The first is the refugee criterion in section 36(2)(a) of the Migration Act. The second is complementary protection in section 36(2)(aa). The Subclass 866 protection visa page sets out both grounds in more detail.

Whichever ground is relied on, the evidence usually has to address the same set of questions.

Identity and nationality

The Department must know who the applicant is and which country they would be returned to. Every other finding depends on this. If identity or nationality is not accepted, the claim can fail before the harm is even considered.

The harm feared and who would cause it

The evidence must describe the harm feared in specific terms. It must identify who would cause it. That may be the government, police, the military, a religious group, a criminal organisation, a family member or a community. A vague fear of being hurt, with no identified source, is one of the features the Department's guidelines describe as an application lacking particulars.

Why the applicant would be targeted

For the refugee ground, the harm must be for one of the reasons listed in the Act: race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4)(a) requires that reason to be the essential and significant reason for the persecution. The evidence must connect the harm to that reason.

Whether the risk is real now

The claim looks forward. The question is whether there is a real chance of persecution, or a real risk of significant harm, if the applicant returns. Past harm is powerful evidence of future risk, but the evidence must also show why the risk continues today.

Protection and relocation

The evidence must address why the authorities in the home country cannot or will not protect the applicant, and why the applicant could not safely relocate to another part of that country. Many claims that are otherwise accepted fail on these two points.

Why the evidence for Protection Visa 866 must be ready before lodgement

The evidence for Protection Visa 866 must be ready before lodgement because the application sets the record against which everything later is measured. Every later statement, answer and document is compared with what was said at the start.

This is where applicants who lodge their own applications most often damage their case. They lodge quickly, with a short statement, intending to add detail later. When the detail arrives at interview, or in response to a request, it appears to the decision maker as a new or changed account. The Department's guidelines state that a delay in presenting information until after lodgement may be a reason to doubt the veracity of that information or the applicant's motivations.

The guidelines also say that officers should explore the reasons for any delay before relying on it, and that delay should not be the only reason for rejecting a claim. That protection is real, but it is not a strategy. An applicant whose evidence for Protection Visa 866 is complete at lodgement does not need to explain a delay at all.

Preparing the evidence before lodgement means:

• the applicant's full account is taken in their own words, in their own language, and checked by them for accuracy;
• the account is checked against the applicant's earlier visa applications, travel history and any previous statements to the Department;
• documents that support the claims are identified, obtained where possible, and translated;
• gaps in the evidence are identified and explained, rather than left for the Department to find; and
• the claims are matched to the correct legal ground, so that nothing material is left out.

The statement of claims is the centre of this work. It is the applicant's own evidence, and it must be complete, accurate and consistent before it is lodged. My Migration Lawyers acts for applicants at this stage through its protection visa lawyers practice, because this is the stage at which the most can still be controlled.

Evidence for Protection Visa 866 at lodgement

At lodgement, the evidence for Protection Visa 866 consists of the application form, the statement of claims, identity documents and any supporting documents available at the time. The application is lodged online. The form asks detailed questions about the applicant's identity, family, travel, previous visas and the claims for protection. The guide to preparing Form 866 explains what those questions are really asking.

The answers in the form are evidence. So are the answers given in every earlier visa application. Decision makers compare them. A date of birth, a name spelling, an employment history or a travel date that differs between applications will be noticed. Some differences have innocent explanations. Those explanations should be given at lodgement, not discovered by the Department.

Documents that are not in English should be translated. The Department's guidelines state that applicants should provide English translations by a translator accredited by NAATI, the National Accreditation Authority for Translators and Interpreters, endorsed with details of their accreditation. An untranslated document may still be considered, but the officer can ask for a translation within a set time, and can decide the application without relying on the document if the translation is not provided.

The protection visa documents checklist lists the categories of documents usually lodged. The more important question is not whether a document is on a list. It is whether the document proves something the claim needs, and whether it is consistent with the rest of the evidence for Protection Visa 866.

Evidence for Protection Visa 866 at the interview

At the interview, the applicant's oral answers become part of the evidence for Protection Visa 866. The interview is where the Department tests the written account. The officer asks the applicant to explain the claims in their own words, asks for detail, and raises any concerns.

The Department's guidelines describe what the officer should do at interview. The officer should explore concerns about the claims, ask for more information on issues that need clarification, and give procedural fairness by inviting further information under section 56 or putting adverse information to the applicant under section 57.

Applicants may also bring further documents to the interview. The guidelines allow officers to accept documents, letters, witness statements and images such as photographs, maps and social media screenshots. An officer may also ask the applicant to confirm the truth of their information by oath or affirmation under section 91V of the Migration Act. If an applicant fails to comply after being warned, or the manner of compliance suggests the applicant is not sincere, the officer may draw an inference unfavourable to credibility.

The interview is not the place to introduce a new claim for the first time. It is the place where a complete, well-prepared account is confirmed. The protection visa interview page and the guide to preparing for the protection visa interview explain the process and the questions in detail.

Section 56 requests and section 57 invitations

After the interview, the Department may ask for more evidence for Protection Visa 866 under section 56, or invite comment on adverse information under section 57. These letters are often the last chance to influence the decision before it is made.

Section 56: a request for further information

Section 56 allows the Department to invite the applicant to give additional information. The letter states what is required and the time allowed to respond. If the time passes without a response, section 62 allows the Department to decide the application without giving any further opportunity. The response period is short. It should be treated as a deadline, not a suggestion. The guide to responding to a section 56 request explains how.

Section 57: an invitation to comment on adverse information

Section 57 requires the Department to give the applicant particulars of relevant information that would be the reason, or part of the reason, for refusing the visa, and to invite comment. The Department's guidelines give examples of the type of information involved. They include inconsistencies between the protection application and information the applicant gave in other dealings with the Department, information from other sources, and concerns that a document may not be genuine.

A section 57 letter shows the applicant, in writing, why the Department is inclined to refuse. The response should address each point directly, with evidence where it exists and a clear explanation where it does not. An emotional letter that repeats the original claims, without answering the specific concerns, rarely helps.

Identity evidence and section 91W

Identity is the first element of the evidence for Protection Visa 866, and the Migration Act has specific rules for it. Under section 91W, the Department may ask an applicant to produce documentary evidence of their identity, nationality or citizenship. If the applicant refuses or fails to comply, or produces a bogus document in response, and has no reasonable explanation, the visa must be refused.

Section 91WA deals with documents provided with the application. If an applicant provides a bogus document as evidence of identity, nationality or citizenship, or destroys or disposes of such documents after lodging, the visa must be refused unless the applicant has a reasonable explanation and either provides genuine documentary evidence or has taken reasonable steps to do so.

These provisions are strict. A single false identity document can end an otherwise strong claim. The Department's guidelines also note that a bogus document may lead the officer to doubt other documents submitted. Every identity document lodged as evidence for Protection Visa 866 should be genuine, and its origin should be capable of explanation. Where no genuine document is available, that should be explained, and any other available evidence of identity should be provided.

How late evidence damages a Protection Visa 866 claim

Late evidence damages a Protection Visa 866 claim because it invites the question of why it was not given earlier. The Department's guidelines list common reasons for delay. They include changed conditions at home, fear, stress or anxiety, being unaware of the right to seek protection, and receiving inadequate or incorrect immigration advice.

The guidelines accept that there can be good reasons. They also state that delay may be taken into account in assessing credibility, depending on the circumstances. The same applies to a delay in lodging the application itself, which the Department may raise as a concern. The guide on whether delaying a Subclass 866 application affects the claim explains how that issue is assessed.

Some claims are legitimately raised late. A claim based on events after departure, known as a sur place claim, may arise while the applicant is in Australia. For the refugee ground, section 5J(6) requires the Department to disregard conduct in Australia engaged in for the sole purpose of strengthening the claim. That rule does not apply in the same way to complementary protection, where the likely reaction in the home country to the applicant's activities must still be considered. Sur place claims need careful evidence for exactly this reason.

What happens to the evidence for Protection Visa 866 if the visa is refused?

If the visa is refused, the evidence for Protection Visa 866 does not disappear. The Department's decision record, including its findings on the evidence, is provided to the Administrative Review Tribunal if the applicant applies for review. The protection visa refusals page explains the review pathway.

The Tribunal reviews the decision on its merits. It can consider the evidence that was before the Department and new evidence provided during the review. That gives a refused applicant a genuine second opportunity. It is not a clean slate. The Tribunal sees the earlier application, the interview record and the Department's reasons. New evidence that contradicts earlier evidence will be tested against it.

The time limit to apply for review is short and strictly applied. It runs from the date the applicant is notified of the decision. An applicant who misses it may lose the right to review altogether. The guides to appealing a protection visa refusal to the ART and the protection visa ART hearing explain the process.

At review, the evidence for Protection Visa 866 is usually rebuilt around the Department's reasons. Each adverse finding is identified. The evidence that answers it is gathered. Where the Department misunderstood the claim, the claim is explained clearly. Where evidence was missing, it is obtained if it exists, and its earlier absence is explained.

Where applicants lose Protection Visa 866 claims on evidence

Applicants most often lose Protection Visa 866 claims on evidence for reasons that could have been avoided. The same problems appear repeatedly in refused applications:

• A thin statement at lodgement. The applicant intended to add detail later. The later detail is then treated as a changed account.
• Inconsistency with earlier visa applications. The protection application says one thing about work, travel or family. An earlier visitor or student visa application said another.
• No evidence on state protection or relocation. The harm is described well, but nothing explains why the police or courts would not help, or why the applicant could not live elsewhere in the country.
• Generic supporting letters. Letters that state the claims are true, without first-hand knowledge or detail, add little. The Department's guidelines note that a letter of support is generally not independent evidence.
• Untranslated or unexplained documents. A document the officer cannot read, or whose relevance is not explained, does little work.
• Identity documents of doubtful origin. Under sections 91W and 91WA, this can end the application.
• Missed deadlines. A section 56 or section 57 response that arrives late, or not at all, allows a decision to be made without it.

None of these problems means the claim is not genuine. They mean the evidence for Protection Visa 866 did not show what the applicant needed it to show. That is a question of preparation, not of whether the applicant is telling the truth.

How My Migration Lawyers prepares the evidence for Protection Visa 866 applications

My Migration Lawyers prepares the evidence for Protection Visa 866 applications from the first consultation to decision, and at review where a visa has been refused. The firm deals with complex protection matters and acts in many Subclass 866 applications, including claims with limited documents, claims involving earlier visa history, and claims that have already been refused. It is well placed to take on matters of this type.

The work is practical and specific to the applicant:

• Taking the account. The applicant's account is taken in detail, with an interpreter where needed. The statement is the applicant's own evidence. It is reviewed and corrected by the applicant before it is lodged, and the applicant decides which claims are advanced.
• Checking consistency. The account is checked against the applicant's visa and travel history, which the firm obtains itself where possible, so that any differences are identified and explained before the Department raises them.
• Matching evidence to the legal test. Each element of the claim, from identity to state protection and relocation, is identified, and the evidence that addresses it is set out.
• Country information. Current, reliable country information relevant to the applicant's specific claim is identified and presented.
• Responding to the Department. Section 56 requests and section 57 invitations are answered within time, point by point.
• Interview preparation. The applicant is prepared for the interview so that they understand the process and can give their own account clearly.
• Review. If the visa is refused, the Department's reasons are analysed and the evidence is prepared for the Administrative Review Tribunal.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm acts for protection visa applicants across Australia, with consultations by video.

The evidence for Protection Visa 866 decides the application. If you are preparing to lodge, have been asked for more information, or have received a refusal, the time to have the evidence reviewed is now. Book a consultation with My Migration Lawyers online, or call 1300 040 300.