How to Apply for an LGBTI Protection Visa

How to Apply for an LGBTI Protection Visa is a practical question with legal consequences at every step. The application is made on Form 866, lodged online, and decided on what it contains. A missing address, an empty claims section or an unpaid charge can make it invalid. A thin statement can lead to a refusal that is difficult to reverse.

This guide explains how to apply for an LGBTI protection visa in Australia in the order the steps actually happen: checking that an application can be made, creating an ImmiAccount, completing the form, setting out the claims, identity documents, family members, evidence, payment and submission, and what happens next. It deals with the lodgement process. How to prepare the claim itself before lodging is a separate question and is covered in a separate article.

How to Apply for an LGBTI Protection Visa: the steps in order

How to Apply for an LGBTI Protection Visa comes down to eight steps, and each one must be completed correctly for the application to be valid and properly considered.

• Check that you can apply. Confirm you are in Australia and that no application bar applies.
• Create an ImmiAccount. The application is lodged online through the Department's ImmiAccount system.
• Complete Form 866. Enter personal details, residential address, travel and immigration history, and family details.
• Set out your claims. State that you fear harm because of your sexual orientation, gender identity or intersex status, and explain why.
• Attach identity documents. Provide evidence of identity, nationality and citizenship.
• Include family members if relevant. Decide whether family members in Australia will be part of the application.
• Attach evidence and translations. Upload supporting documents, with English translations where needed.
• Pay and submit. Pay the visa application charge and lodge the application.

The guide to the Subclass 866 protection visa explains what the visa gives once granted. The LGBTI protection visa page explains how My Migration Lawyers approaches these claims.

Step 1: How to Apply for an LGBTI Protection Visa starts with checking that you can apply

The first step in how to apply for an LGBTI protection visa is confirming that a valid application can be made at all. A Subclass 866 application can only be made by a person who is in Australia, and the application must be made in Australia.

The Department's Protection Visa Processing Guidelines identify several bars that prevent a valid application:

• A previous refusal or cancellation. Under section 48A of the Migration Act, a person who has been refused a protection visa, or whose protection visa was cancelled, cannot make a further protection visa application while in Australia unless the Minister lifts the bar. This applies even if the person now holds another visa.
• Unauthorised maritime arrivals. Section 46A(1) bars an unauthorised maritime arrival in Australia who is unlawful, or holds certain temporary visas, from making a valid visa application unless the Minister allows it.
• Arrival without a visa. Item 1401 of Schedule 1 to the Migration Regulations has the effect that certain people who did not hold a visa, or were not immigration cleared, when they arrived cannot make a valid Subclass 866 application.

An application made by a person affected by a bar is not valid. Holding a student, visitor or other temporary visa does not in itself prevent an application. The detailed guide to protection visa eligibility explains who can apply and what the refugee and complementary protection tests require. The pillar guide to LGBTI protection visas in Australia explains what an LGBTI applicant must prove.

Step 2: Create an ImmiAccount

The application is lodged online through ImmiAccount, the Department's online account system. The guidelines confirm that a Subclass 866 application must be lodged online, and may only be sent by post if the Department has given written notice authorising that. An application handed in at a Department office is not a valid application.

An ImmiAccount is more than a login. The Department sends letters, requests and decisions through it, and those documents can start time limits running. Anyone who applies for an LGBTI protection visa should use a secure email address that family members and others cannot access, and should keep their login details private. The guide on how to create an ImmiAccount explains registration, multi-factor authentication and what happens to correspondence when a representative is appointed.

Where a registered migration agent or Australian legal practitioner is acting, they may lodge the application through their own account after being appointed. The Department's information on the Subclass 866 visa states that anyone paid to help with an application must be a registered migration agent or an Australian legal practitioner.

How to apply for an LGBTI protection visa with a representative

An applicant can lodge their own application, or appoint a registered migration agent or Australian legal practitioner to lodge it and act for them. Knowing how to apply for an LGBTI protection visa with a representative matters because the appointment changes who the Department writes to.

Once a representative is appointed, the Department generally sends correspondence about the application to the representative. For many LGBTI applicants that is a practical advantage. Letters about sexual orientation or gender identity are not delivered to a shared home, a family email address or a workplace. The representative can also receive and respond to requests while the applicant is travelling, working or unwell.

A representative does not replace the applicant's own evidence. The claims are the applicant's claims. The statement is the applicant's own account, and the applicant must read, correct and approve it before it is lodged. The applicant must also attend the interview in person or by the method the Department directs, and answer the questions themselves.

Before appointing anyone, the applicant should check that the person is registered or holds a current practising certificate, ask for a written costs agreement, and confirm who will actually do the work. Anyone who promises that a protection visa will be granted, or offers to write a story for the applicant, should not be engaged. The Department's information on the Subclass 866 visa is clear that paid help must come from a registered migration agent or an Australian legal practitioner.

Step 3: Complete Form 866

Form 866 is the prescribed form for a protection visa application, and completing it correctly is the core of how to apply for an LGBTI protection visa. The online form asks for personal details, identity and nationality, addresses, travel and immigration history, family members, and the claims for protection.

Three requirements affect validity directly:

• Substantial compliance with the form. Regulation 2.07(3) of the Migration Regulations requires the form to be completed in accordance with its directions. The guidelines explain that only substantial compliance is needed, but a Subclass 866 application that contains no claims at all is not in substantial compliance and is invalid.
• Residential address. Under regulation 2.07(4), the application is invalid if the applicant does not set out their residential address in the form or in an accompanying document. There is no power to waive this. The guidelines accept that a refuge, shelter or the home of another person can be used where the applicant has no fixed home.
• The visa application charge. Section 46(1)(ba) of the Migration Act makes payment of the prescribed charge a condition of validity.

Every answer must be true and complete. Anyone working out how to apply for an LGBTI protection visa should treat the form as evidence, not paperwork. The history questions, including previous visa applications, travel, addresses and employment, are checked against Department records. An inconsistency between the form and earlier visa applications is one of the most common sources of credibility concerns later. The guide to Form 866 explains the form in more detail.

How to Apply for an LGBTI Protection Visa while you hold another visa

How to Apply for an LGBTI Protection Visa while holding a student, visitor, work or other temporary visa follows the same steps. Holding another visa does not prevent a valid Subclass 866 application unless one of the bars described above applies.

The applicant's existing visa is not cancelled because a protection application has been lodged. It continues until it expires or ends in some other way, and its conditions continue to apply while it is in effect. The associated bridging visa generally sits behind the existing visa until that visa ends. The conditions of the bridging visa, including any work conditions, can be different from the conditions of the existing visa. Each grant notice should be read carefully.

Applicants often ask whether it is better to wait until their current visa is about to expire. The Department's guidelines list waiting until a visa has nearly ceased, or until other options are exhausted, among the reasons for delay that may be taken into account in assessing credibility. Delay is not a reason for refusal on its own, but it will usually need to be explained. The guides to international students and tourist visa holders explain how these issues arise for each visa type.

Step 4: Set out your LGBTI protection claims

The claims section is where the applicant explains why they need protection, and it is the most important part of how to apply for an LGBTI protection visa. The claim should say clearly that the applicant fears harm because of their sexual orientation, gender identity or intersex status, or because others believe them to be LGBTI.

For anyone asking how to apply for an LGBTI protection visa, the claims usually include:

• who the applicant is and how they identify, in their own words;
• what happened to them, or what they fear will happen, and who they fear;
• why the authorities in their country would not protect them; and
• why they could not live safely in another part of their country.

Most applicants attach a separate written statement rather than relying only on the boxes in the form. Section 5AAA of the Migration Act places the responsibility on the applicant to specify all particulars of their claims and to provide sufficient evidence to establish them. The Department has no obligation to fill gaps. A claim that is not raised in the application may be viewed with more caution if it appears for the first time later.

The Department's guidelines recognise that applicants may not use LGBTI terminology and that the applicant should decide how they describe their own sexuality or gender identity. The statement should use the words the applicant actually uses. The statement is the applicant's own evidence and must be reviewed and corrected by them before lodgement. The guide to the protection visa statement of claims explains how a statement is structured.

Step 5: Attach identity documents

Identity documents should be uploaded with the application. This part of how to apply for an LGBTI protection visa is often treated as routine, but identity problems can end an otherwise strong claim. Identity documents usually include a passport, national identity card, birth certificate and any other document that shows identity, nationality or citizenship.

The guidelines explain two provisions that make identity documents important:

• Section 91W. The Department may request evidence of identity, nationality or citizenship. If a bogus document is provided in response, and there is no reasonable explanation, the visa must be refused.
• Section 91WA. If an applicant provides a bogus document, or destroys or disposes of an identity document, for the purpose of the application, without a reasonable explanation and without providing or taking reasonable steps to provide identity evidence, the visa must be refused.

An applicant who does not have identity documents should explain why in the application and describe the steps taken to obtain them. Never submit a document that is not genuine. The guide to protection visa documents explains what to provide and what to do if documents are missing.

Step 6: Include family members, or apply separately

Family members who are in Australia can be included in the application at the time of lodgement. Item 1401 of Schedule 1 allows a person claiming to be a member of the family unit of the applicant to apply at the same time and place, in a combined application. The guidelines confirm that only one visa application charge is payable for a combined application.

For anyone deciding how to apply for an LGBTI protection visa, including family members raises a practical question that should be answered before lodging. A spouse or relative on the same application may later see information about the application. The guidelines recognise this risk. An applicant included in a family member's application who has sexual orientation or gender related claims may nominate a separate address for correspondence. The guidelines also direct officers to explain the consequences of staying on a combined application, because a refusal notice or a freedom of information request could expose sensitive claims to another family member.

An applicant who is married or has children is not for that reason unable to make an LGBTI claim. The guidelines state that marriage and children are not necessarily inconsistent with an LGBTI identity.

Step 7: Attach evidence and translations

Of all the steps in how to apply for an LGBTI protection visa, evidence is the one most often rushed. Supporting evidence can be attached when the application is lodged, and further evidence can be added through ImmiAccount before a decision is made. Evidence may include statements from partners, friends or family who know, messages and ordinary photographs, records of community involvement, medical or psychological reports and country information.

Officers must not request explicit photographs or films of sexual acts, and such material should never be provided. Documents not in English should be translated by a translator accredited by NAATI. The guidelines state that the application form asks applicants to provide NAATI translations for documents not in English, and that the Department may request a translation if one is missing. The guide to evidence in a protection visa application explains how evidence is weighed.

Step 8: Pay the charge and submit the application

The last step in how to apply for an LGBTI protection visa is paying the visa application charge and submitting the form. The charge is payable at lodgement and the current amount is published on the Department's visa pricing pages. An application that is submitted without the charge being paid is not valid.

Before submitting, the applicant should check every answer, every attached document and the residential address. After submission, ImmiAccount records the date of application automatically. Under regulation 2.10C of the Migration Regulations, an online application is taken to have been made at the time it is lodged, measured in Australian Eastern time.

Some errors can be corrected after lodgement. Others cannot. The guidelines explain that where an invalidity can be fixed quickly and easily, such as an incorrectly paid charge, the applicant should be given a chance to fix it. Where an application is determined to be invalid, section 47(4) of the Migration Act provides that this is not a decision to refuse a visa, which means it cannot be reviewed by the Administrative Review Tribunal.

How to Apply for an LGBTI Protection Visa: what happens straight after lodgement

Once the steps on how to apply for an LGBTI protection visa have been followed and the application is lodged, the applicant receives an acknowledgment in ImmiAccount and the application is recorded. Several other things happen at once.

• A bridging visa application is made. The guidelines confirm that Form 866 is also a prescribed form for a bridging visa. When a person in Australia applies for a protection visa, they also make an associated bridging visa application. The type of bridging visa, when it comes into effect and its conditions depend on the applicant's visa status at the time of lodgement. The guide to bridging visas in Australia explains the different types.
• Personal identifiers may be required. The Department may require the applicant to provide a photograph and fingerprints under section 257A of the Migration Act. The guidelines state that failing to comply with a formal requirement made for this purpose within the time given will make the application invalid.
• The application stays open to further information. Additional documents can be attached through ImmiAccount while the application is being decided.

Anyone who has just worked through how to apply for an LGBTI protection visa should also keep contact details current. Letters sent to the last address or email address given to the Department are generally treated as received.

How to update, add to or withdraw your application

After lodgement, an applicant can add information, change contact details or, in some cases, withdraw. Each step has consequences, and knowing how to apply for an LGBTI protection visa includes knowing how to manage the application once it is lodged.

• Adding documents and information. Further documents and statements can be attached through ImmiAccount. The guidelines confirm that information given with the application, or at any time before a decision, must be considered under sections 54 and 55 of the Migration Act.
• Changing address or contact details. A change of address should be reported in writing, for example on Form 929. Letters sent to an out of date address can still have legal effect.
• Withdrawing. A withdrawal must be made in writing. Under section 49(3) of the Migration Act, a withdrawal is not a refusal, so the section 48A bar does not apply. However, the guidelines state that information in a withdrawn application may be taken into account if the person applies again. A withdrawal should never be made without advice.

An applicant on a combined family application does not need to withdraw in order to be considered separately. The guidelines confirm that family members with their own claims can be assessed in their own right, with a separate assessment, notification and review rights.

The stages after lodgement

After lodgement, a Subclass 866 application moves through several stages. Understanding them is the final part of how to apply for an LGBTI protection visa. The order can vary, and the time each stage takes varies from case to case.

• Checks. The Department checks identity, health, character and security. Health examinations are arranged only when the Department asks for them.
• Requests for information. The Department may ask for more information under section 56 of the Migration Act, or give the applicant adverse information to comment on under section 57. Response periods are short and strictly applied.
• Interview. Most applicants are invited to an interview, by invitation under section 56 or section 57. For LGBTI claims, the guidelines provide for a same-sex officer and interpreter where gender related claims are raised, and a request about the interpreter's gender should be met wherever possible.
• Decision and notification. The Department decides the application and notifies the applicant in writing. If the visa is refused, the notice explains review rights.

The guide to protection visa processing times explains why the wait varies. The guides to the protection visa interview and to responding to a section 56 request explain those stages.

How to apply for an LGBTI protection visa without the common mistakes

The mistakes that cause the most damage when people work out how to apply for an LGBTI protection visa on their own are usually made at lodgement and are difficult to repair afterwards.

• Lodging with no claims, or with claims that do not mention sexual orientation or gender identity. An application with no claims is invalid. An application that raises other claims, but not the real one, creates a late disclosure problem.
• Leaving out the residential address. The application is invalid and the requirement cannot be waived.
• Inconsistent history. Answers that differ from earlier visa applications, without explanation, are often relied on in credibility findings.
• False or exaggerated claims. Giving false information can lead to serious penalties, including imprisonment, and a false claim can destroy a genuine one.
• Using an unregistered helper. Anyone paid to help must be a registered migration agent or an Australian legal practitioner.
• Assuming a second chance. Because of section 48A, a person refused a protection visa generally cannot apply again while in Australia.

The pillar protection visa guide explains the wider process, including what happens after a refusal.

How My Migration Lawyers helps you apply for an LGBTI protection visa

My Migration Lawyers acts for LGBTI applicants at every stage of a Subclass 866 application. The firm deals with complex protection cases, acts in many claims based on sexual orientation and gender identity, and is capable of handling these matters from lodgement through to review at the Administrative Review Tribunal.

When a client asks how to apply for an LGBTI protection visa, the work usually involves:

• Checking validity first. The firm confirms that no application bar applies and that the application will meet the validity requirements.
• Completing Form 866. The firm prepares the form with the client, checking the history answers against earlier visa applications.
• The client's own account. The firm takes the client's account in a confidential setting, with an interpreter where needed. The statement is the client's own evidence. The client reviews and corrects it, and decides which claims are advanced.
• Identity and evidence. Identity documents, translations and supporting evidence are reviewed before they are uploaded.
• Family and privacy. The firm advises on whether family members should be included and how correspondence will be handled.
• After lodgement. The firm manages personal identifier requests, section 56 and section 57 requests, interview preparation and attendance, and review if the visa is refused.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia by video consultation.

If you are deciding how to apply for an LGBTI protection visa, the application should be right the first time, because there is usually no second one. Book a consultation with My Migration Lawyers online, or call 1300 040 300.