LGBTI Protection Visa Checklist

An LGBTI Protection Visa Checklist is a stage-by-stage list of what an LGBTI applicant must do, check and decide from the first decision to apply for a Subclass 866 Protection visa until the Department makes its decision. A good LGBTI Protection Visa Checklist is not simply a list of papers. It is a sequence of steps, and each step has consequences if it is missed.

Many LGBTI applicants have strong, genuine claims and still run into trouble. The problem is often procedural. A request is not answered in time. A change of address is not reported. A family member's application creates a privacy risk nobody thought about. This LGBTI Protection Visa Checklist sets out each stage in order and explains why each item matters. A separate article in this series deals with the documents themselves in detail.

How should an LGBTI Protection Visa Checklist be used?

An LGBTI Protection Visa Checklist should be used in order, stage by stage, and returned to throughout the application. The stages are:

• Stage 1: checks before deciding to lodge;
• Stage 2: preparing the claims;
• Stage 3: gathering supporting material;
• Stage 4: completing and lodging the application;
• Stage 5: the first weeks after lodging;
• Stage 6: obligations while the application is waiting;
• Stage 7: requests from the Department;
• Stage 8: the interview;
• Stage 9: after the interview and before the decision; and
• Stage 10: when the decision arrives.

Each stage below lists the checklist items and the reason for each one. The legal criteria for grant are explained in the guide to what an LGBTI protection claim must prove. The LGBTI protection visa service page explains how My Migration Lawyers approaches these claims.

Stage 1 checklist: before deciding to lodge

The first stage of the LGBTI Protection Visa Checklist is to confirm that a valid Subclass 866 application can be made, and that now is the right time to make it. Nothing else matters if the application is invalid.

• Confirm you are in Australia. A Subclass 866 application must be made in Australia, by a person who is in Australia.
• Check whether you have been refused a protection visa before. Section 48A prevents a person who has been refused a protection visa while in Australia from making another protection visa application while in the migration zone, unless the Minister personally lifts the bar. The Minister has no duty to consider it. If there was an earlier refusal, obtain advice before doing anything else.
• Check how you arrived. People who arrived without a visa in effect, or who were not immigration cleared, generally cannot make a valid Subclass 866 application.
• Check your current visa. Note its expiry date and conditions. Your current visa remains relevant after lodging, including to the bridging visa you receive.
• Understand that you usually get one application. Because of section 48A, the first application is usually the only one. It should be prepared properly, not rushed.
• Think about privacy before you lodge. If you are included in a family member's application, or plan to include a family member in yours, consider who will see your claims. This is dealt with further in Stage 4.

The guide to protection visa eligibility explains who can apply. If an applicant has waited a long time before applying, the guide to delay in a Subclass 866 application explains how that delay will be assessed.

Stage 2 checklist: preparing the claims

Preparing the claims is the most important stage of the LGBTI Protection Visa Checklist, because section 5AAA makes the applicant responsible for specifying all particulars of their claims and providing sufficient evidence. The Department has no obligation to establish or help establish them.

• Write your own account. The statement must be your own evidence, in your own words, reviewed and corrected by you before it is lodged. You decide which claims are advanced.
• Explain your identity. Describe how you came to understand your sexual orientation, gender identity or intersex status, and how you have lived with it. The Department's guidelines recognise that this may happen later in life for people who grew up in oppressive environments.
• Explain what has happened. Set out any harm, threats, discrimination or pressure you have experienced, from whom, when and where. The guidelines recognise that a lifetime of discrimination can cumulatively amount to serious harm.
• Explain what you fear. State who you fear, why, and what you believe would happen if you returned.
• Deal with concealment honestly. If you hid your identity at home, explain why. The guidelines state that people who are discreet out of fear cannot be treated as choosing privacy.
• Deal with relocation and police. Explain why moving elsewhere in your country, or asking police for help, would not protect you.
• Explain any past marriage, relationships or children. The guidelines state these are not necessarily inconsistent with an LGBTI claim, but they should be explained.
• Explain any delay. If you did not apply or disclose earlier, say why.
• Never exaggerate or invent. A false claim is a serious offence and can destroy a genuine claim.

The guide to the protection visa statement of claims explains how the statement is structured.

Stage 3 checklist: gathering supporting material

The third stage of the LGBTI Protection Visa Checklist is to gather what supports the account, while it can still be obtained. Material becomes harder to find the longer an applicant waits, so this part of the LGBTI Protection Visa Checklist should start early.

• Identity documents. Locate your passport and any national identity card or birth certificate. If you do not have them, write down why.
• Relationship material. The Department's guidelines mention emails, texts, chat transcripts, phone records, social media, photographs and statements from past or present partners. Keep what you have safely.
• Never provide explicit material. Officers must not request explicit photographs or films of sexual acts, and not providing them has no bearing on the decision.
• Witnesses. List people who know about your identity or your experiences and who may be willing to give a written statement.
• Community involvement. Keep records of involvement with LGBTI community or support organisations, in your home country or in Australia.
• Medical or psychological records. If you have received treatment related to harm or its effects, keep the records.
• Records of past harm. Keep any police, court, medical or media records that relate to what happened to you.

The detailed list of documents, and how each should be prepared, is covered in a separate article in this series. The general guide to evidence in a protection visa application explains how evidence is weighed.

Stage 4 checklist: completing and lodging the application

Stage 4 of the LGBTI Protection Visa Checklist is completing the application form accurately and lodging it validly. A Subclass 866 application must be lodged online unless the Department has authorised a paper application in writing.

• Give your residential address. Under regulation 2.07(4), an application without a residential address is invalid, and there is no power to waive this. The Department's guidelines allow some flexibility, for example the address of a refuge or of a person you are staying with.
• State your claims in the application. An application that contains no claims at all is invalid.
• Decide who is included. Consider carefully whether a partner or children should be included, and whether any family member has claims of their own.
• Consider a separate correspondence address. The Department's LGBTI guidelines allow an applicant on a combined application who has sexual orientation or gender related claims to nominate a separate address for correspondence. This matters if a family member on the same application does not know about your identity.
• Complete the interpreter declaration if an interpreter helped. The guidelines list an unsigned interpreter declaration, where the applicant does not speak English, as a reason officers may seek further information.
• Sign the values statement if you are 18 or over. It does not affect validity, but it must be signed before the visa can be granted.
• Pay the visa application charge. An application is only valid if the charge has been paid. The current amount is published by the Department.
• Check every answer against your other records. Dates, addresses and travel history should match what you have told the Department in earlier visa applications, or the differences should be explained.
• Keep a full copy. Save a copy of the lodged application and the acknowledgment.

The guide to preparing Form 866 explains the form questions in detail. Every item in this stage of the LGBTI Protection Visa Checklist should be completed before the application is submitted, not after.

Stage 5 checklist: the first weeks after lodging

The first weeks after lodging are part of the LGBTI Protection Visa Checklist because several obligations start immediately. The Department's guidelines explain that the protection visa application form is also an application for a bridging visa.

• Check the acknowledgment. Confirm that the application was received and that your details are correct.
• Check your bridging visa. Confirm whether a bridging visa has been granted, when it comes into effect and what conditions apply. The guide to bridging visas in Australia explains the different bridging visas.
• Keep your substantive visa conditions in mind. A bridging visa usually comes into effect only when a current substantive visa ends, so that visa's conditions continue to apply until then.
• Respond to any request for personal identifiers. Under section 257A, the Department may formally require a photograph and fingerprints. If they are not provided within the time given, the application is invalid.
• Record every deadline. Write down the date each letter was received and the date each response is due. From this point, the LGBTI Protection Visa Checklist becomes a list of dates as much as a list of tasks.

Stage 6 checklist: obligations while the application is waiting

While the application is waiting, the LGBTI Protection Visa Checklist is about keeping the Department informed and keeping the claim intact. Many applicants wait a long time, and small lapses during that time cause real problems.

• Report changes in circumstances. Section 104 of the Migration Act requires visa applicants to notify the Department, as soon as practicable, of changes in any information in their application. This includes the birth of a child. The Department's guidelines refer to Form 1022 for this purpose.
• Keep your address and contact details current. The guidelines refer to Form 929 for a change of address or passport details. Letters sent to an old address can still start a deadline.
• Tell the Department about new relationships where relevant. A new partner may be relevant to your claims and to who is included in the application.
• Keep records of new events. If something happens that is relevant to your claims, such as new threats or new country developments, record it and consider whether to provide it.
• Understand the consequences of travel. Clause 866.411 requires the applicant to be in Australia when the visa is granted. The Department's guidelines state that an applicant who leaves without a visa allowing return must be refused without assessment of their claims. Travel to the country you fear may also be treated as evidence that you no longer fear harm there.
• Keep your claim honest and consistent. Anything you say to the Department, including in other applications, becomes part of the record.

The guide to protection visa processing times explains what affects the wait.

Stage 7 checklist: requests from the Department

Stage 7 of the LGBTI Protection Visa Checklist covers the letters the Department may send during processing. Each has a different legal purpose, and each must be answered within the time given.

• Section 56 request. The Department may invite the applicant to provide further information. A section 56 invitation can also be used to ask for an English translation of a document by a NAATI accredited translator. The guide to responding to a section 56 request explains how to respond.
• Section 57 invitation. If the Department has information that would be the reason, or part of the reason, for refusal, it must give the applicant particulars and invite comment. This is the applicant's chance to answer adverse information before a decision is made.
• Section 91W request. The Department 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, without a reasonable explanation, the visa must be refused.
• Health examinations. The Department's guidelines refer to the medical examinations required for onshore protection visa applicants. Complete them when asked.
• Penal checks. The guidelines state that applicants aged 17 or older require an Australian penal check, and may need a check from another country where they have lived for more than 12 months since turning 16, other than the country from which they claim protection.
• Interview invitation. An invitation to an interview is usually made under section 56 or section 57. It must state the date, time and place.

Under section 62 of the Migration Act, if the time to respond passes without a response, a decision can be made without any further opportunity to provide information.

Stage 8 checklist: the LGBTI protection visa interview

The interview stage of the LGBTI Protection Visa Checklist is about preparation and arrangements. The Department's guidelines state there is no legislative requirement to interview every protection visa applicant, so an invitation should be treated as an important opportunity.

• Request an interpreter of a particular gender if you need one. The guidelines state that, if an applicant makes a request about the gender of the interpreter, every effort should be made to meet it.
• Consider requesting an officer of a particular gender. The guidelines recognise that some applicants are more comfortable discussing sensitive matters with an officer and interpreter of the same gender, or of the gender with which the applicant identifies.
• Ask for a separate interview if family members are on the application. The guidelines state that a separate interview may be necessary so that sensitive claims can be explored without family members present.
• Decide about a support person. The guidelines recognise that a support person may affect an applicant's willingness to discuss private matters. The applicant can choose whether the support person joins the interview.
• Tell the Department how you wish to be addressed. A transgender or gender diverse applicant should be asked for their name and pronouns. A name other than the one in the identity documents can be recorded as an alias.
• Re-read your statement. Know your own account well, and correct any errors before the interview, not during it.
• Bring the documents you rely on. Documents shown at interview are described for the audio recording and copied for the file. Documents not in English should have a NAATI translation.
• Ask for breaks if needed. The guidelines recognise that trauma, shame and anxiety can affect memory, and that breaks may be needed.

The guides to the protection visa interview and to preparing for a protection visa interview explain the process in more detail.

Stage 9 checklist: after the interview and before the decision

After the interview, the LGBTI Protection Visa Checklist turns to closing any gaps. Under section 55, an applicant may give the Department additional relevant information at any time before a decision is made, and the Department must have regard to it.

• Write down what was asked. Record the topics raised at interview, especially anything that seemed to concern the officer.
• Provide promised material. If you said you would send a document or a translation, send it within the time agreed.
• Correct errors. If something you said at interview was wrong, or an interpreter error occurred, correct it in writing promptly.
• Answer any section 57 invitation fully. Adverse information raised after interview must be answered with an explanation and, where possible, evidence.
• Consider a written submission. A submission can address the legal issues raised, including relocation, state protection and concealment, by reference to the evidence and country information.

Stage 10 checklist: when the decision arrives

The final stage of the LGBTI Protection Visa Checklist is acting correctly on the decision, whichever way it goes.

• If the visa is granted, read the grant notice carefully. A Subclass 866 visa granted on or after 3 June 2013 is subject to condition 8559, which means the holder needs written approval before travelling to the country from which protection was sought.
• If the visa is refused, note the date you were notified of the decision immediately. The time limit to apply to the Administrative Review Tribunal is short and strictly applied.
• Read the reasons. The decision record shows which findings were made, including credibility findings, and which country information was relied on.
• Remember section 48A. A further protection visa application is not usually possible after a refusal while you remain in Australia, so the review is often the only remaining step.

The guide to whether a refused protection visa can be appealed to the ART explains the review process.

Using the LGBTI Protection Visa Checklist if you have already lodged

The LGBTI Protection Visa Checklist is still useful if the application has already been lodged. The applicant should start at the stage the application has reached, then look back at the earlier stages for anything that was missed.

• Claims left out of the application. They can still be raised. Under section 55, additional relevant information may be given at any time before a decision, and the Department must have regard to it. The reason the claims were not raised earlier should be explained. The Department's LGBTI guidelines state that delay should not be the sole reason for rejecting claims.
• Errors in the statement. Correct them in writing before the interview, with an explanation of how the error occurred.
• Family members who do not know. If a family member on the same application does not know about your claims, ask about separate correspondence and a separate interview now.
• Changed contact details. Notify the Department straight away.
• Letters already received. Identify what kind of request each letter is, and when the response is due.

An LGBTI Protection Visa Checklist applied part way through cannot undo a missed deadline, but it can stop the next one being missed.

Common gaps in an LGBTI Protection Visa Checklist

The most common gap in an LGBTI Protection Visa Checklist is treating the application as finished once it is lodged. In practice, the steps after lodgement matter as much as the statement itself.

Other gaps that regularly cause problems include:

• A statement that is not the applicant's own. If the account reads as though someone else wrote it, or the applicant does not know what it says, credibility suffers at interview. The Department's guidelines list claims written in a different style from the rest of the form as a reason officers may seek further information.
• Leaving out the hardest part. Applicants often omit the matters they find most painful, and raise them only at interview. The guidelines recognise why this happens, but a late claim still has to be explained.
• Assuming the Department will ask. Section 5AAA means the officer is not required to draw out a claim the applicant has not made.
• Ignoring the combined application risk. An applicant who stays on a family member's application may have sensitive claims seen by that family member. The guidelines direct officers to explain this, but the applicant should consider it before lodging.
• Not reading letters closely. Section 56, section 57 and section 91W letters have different consequences. Treating them all as routine is a mistake.
• Trying to fit a stereotype. The guidelines state that credibility findings should not be based on stereotypes. An applicant does not need to present in any particular way, and should not try to.

The guide to when you need a protection visa lawyer explains the points at which legal help makes the most difference. A complete LGBTI Protection Visa Checklist is only useful if every stage is actually followed.

How My Migration Lawyers handles the LGBTI Protection Visa Checklist

My Migration Lawyers acts in LGBTI protection visa matters across Australia and works through every stage of the LGBTI Protection Visa Checklist with the client. The firm deals with complex protection cases, acts in many Subclass 866 claims based on sexual orientation, gender identity and intersex status, and is capable of handling these matters from before lodgement through to review at the Administrative Review Tribunal.

The work usually involves:

• Confirming validity first. The firm checks the section 48A position, arrival history and current visa before any application is prepared.
• Taking the applicant's own account. The statement is the applicant's own evidence, taken in detail, reviewed and corrected by them. The applicant decides which claims are advanced.
• Managing privacy. The firm considers who is included in the application, and whether separate correspondence or a separate interview should be requested.
• Lodging and tracking. The application is lodged online and every Department letter and deadline is recorded and managed.
• Responding to requests. Section 56, section 57 and section 91W requests are answered within time, with evidence where it exists.
• Interview preparation and submissions. The applicant is prepared for the interview, arrangements are requested in writing, and written submissions are provided where they will help.
• Review. If a refusal is made, the decision is analysed and the review is prepared within time.

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 about to start an LGBTI protection application, or are part way through one and unsure what comes next, Book a consultation with My Migration Lawyers online, or call 1300 040 300.