LGBTI Protection Visa Documents Required

The LGBTI Protection Visa Documents Required for a Subclass 866 application are the documents that establish who the applicant is, set out the protection claims, and support those claims where supporting material exists. The LGBTI Protection Visa Documents Required are not a fixed government list. They depend on the applicant's identity documents, family situation and claims.

Many LGBTI applicants worry that they have nothing to prove who they are. That concern is understandable, but it rests on a misunderstanding. There is no certificate that proves sexual orientation, gender identity or intersex status, and the Department does not expect one. What the Department does expect is reliable identity evidence, a detailed account in the applicant's own words, and an honest explanation of any document the applicant cannot provide. This article explains each category of the LGBTI Protection Visa Documents Required, and what happens when a document is missing.

What are the LGBTI Protection Visa Documents Required?

The LGBTI Protection Visa Documents Required fall into six categories:

• Identity, nationality and citizenship documents. A passport, national identity card, birth certificate or other identity documents.
• The application and statement of claims. The completed online application and the applicant's written account of their claims.
• Documents that support the claims. Relationship material, witness statements, community or support organisation letters, medical or psychological reports, records of past harm and country information.
• Family member documents. Identity and relationship documents for a partner, children or other family members included in the application.
• Character documents. Police certificates, where the Department asks for them.
• Translations. English translations by a NAATI accredited translator of every document that is not in English.

Section 5AAA of the Migration Act makes it the applicant's responsibility to specify all particulars of their claims and to provide sufficient evidence to establish them. The Department is not required to find the evidence for the applicant. The general protection visa documents checklist covers documents for all protection applicants. This article deals with the LGBTI Protection Visa Documents Required, and the particular issues LGBTI applicants face. The LGBTI protection visa service page explains how these claims are handled.

Identity documents: passport, national identity card and birth certificate

Identity documents are the first of the LGBTI Protection Visa Documents Required, because the claim is assessed against the country of nationality. The Department's guidelines state that a valid passport from each country of nationality is the primary method of confirming identity, nationality or citizenship.

Where there is no passport, the guidelines state that other documents may assist, including:

• national identity cards;
• certificates of identity;
• birth certificates; and
• secondary documents such as bank statements, driver licences, educational certificates and health care cards.

The Department assesses identity using three pillars: biometrics, documentation and biography. Documents are only one pillar. The applicant's life story and travel history, and their photograph and fingerprints, are the other two. A consistent biography can help where documents are limited, and inconsistent documents can undermine an otherwise credible biography.

Applicants should provide clear colour copies of every page of each passport, including pages with visas and entry stamps. The originals should be kept safely, because the Department may ask to inspect them. The guide to the Subclass 866 protection visa explains the visa more generally.

What happens if identity documents are missing?

Missing identity documents do not automatically end an LGBTI protection claim, but the absence must be explained. Among the LGBTI Protection Visa Documents Required, identity documents are the only category with specific statutory consequences, under sections 91W and 91WA of the Migration Act.

• Section 91W. 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, and was warned of the consequence, the visa must be refused.
• Section 91WA. If the applicant provides a bogus identity document, or destroys or disposes of one, for the purpose of the application, without a reasonable explanation and without providing genuine documents or taking reasonable steps to do so, the visa must be refused.

The Department's guidelines list examples of a reasonable explanation. They include a government refusing to issue identity documents because of discrimination or persecution, poor record keeping in the country of origin, theft, and documents being taken or destroyed by a third party. The guidelines also state that these provisions are not intended to be applied punitively.

Two practical points follow. First, an applicant who does not have a document should say so in the application, explain why, and describe what steps they have taken to obtain it. Second, the guidelines confirm that an applicant can comply with a section 91W request by providing identity evidence that is not the type the officer expected, including Australian identity documents such as a driver licence. The guide to evidence in a protection visa application explains how gaps in evidence are treated.

Immigration history: what the Department already holds

The Department already holds its own records of an applicant's visas and travel to and from Australia. The LGBTI Protection Visa Documents Required do not include old visa grant notices or copies of earlier visa applications, and applicants should not delay lodging to search for them.

What matters is that the immigration history given in the protection application is accurate. Information given in earlier visa applications, such as a student or visitor visa application, can be compared with the protection application. Dates of travel, addresses, employment, relationships and marital status should be consistent, or any difference should be explained in the statement. A difference that is explained at the start is far less damaging than one the Department finds for itself. The guide for international students applying for a Subclass 866 visa explains how an earlier student visa file can be used.

Documents with a different name or sex marker

Transgender and gender diverse applicants often hold identity documents in a name or sex that does not match their gender identity. That is not in itself a problem with the LGBTI Protection Visa Documents Required. The documents are still the applicant's genuine identity documents and should be provided.

The Department's LGBTI guidelines state that the name on the applicant's identity documents will be used in departmental communication. The guidelines acknowledge this may be uncomfortable. Where an applicant asks to be referred to by another name, officers should record that name as an alias and as the applicant's preferred name. The guidelines also state that the sex recorded in the identity documents appears on departmental systems and on the applicant's ImmiCard.

For these applicants, the statement of claims should explain the difference between the documents and the applicant's identity, and any steps taken or refused in the home country to change legal documents. The guidelines state that if a transgender applicant has not undergone medical treatment or other steps to transition, this should not be taken as evidence that the person is not transgender.

The application and the written statement of claims

The application form and the written statement of claims are the central LGBTI Protection Visa Documents Required, because they contain the claims the Department must assess. An application with no claims at all is invalid.

The statement should be the applicant's own account, reviewed and corrected by them before it is lodged. For an LGBTI claim it usually covers:

• how the applicant came to understand their sexual orientation, gender identity or intersex status;
• how they lived with it in their home country, including any concealment and why;
• relationships, and how they were kept or hidden;
• harm, threats, discrimination or pressure experienced, and from whom;
• what the applicant fears will happen on return, and from whom;
• why police or other authorities would not protect them; and
• why moving to another part of the country would not make them safe.

The guide to the protection visa statement of claims explains how the statement is structured, and the guide to Form 866 explains the application questions.

Supporting documents for an LGBTI claim

Supporting documents are the LGBTI Protection Visa Documents Required to back up the account where such material exists. None of them is compulsory, and none of them proves an LGBTI identity on its own.

Relationship documents

The Department's LGBTI guidelines state that relationship evidence might include emails, texts, videos, chat transcripts, phone records, social media, photographs and statements from past or present partners. Copies should show dates, and where possible the names or accounts of both people.

Witness statements

Written statements from partners, friends, family members or others who know about the applicant's identity or experiences can support the account. Each statement should explain who the witness is, how they know the applicant, and what they personally know. The guidelines recognise that only applicants who are "out" can usually offer a witness, and that applicants who are not "out" can experience bias as a result.

Community and support organisation letters

Letters or records showing involvement with LGBTI community or support organisations, in the home country or in Australia, can be provided. The guidelines state that not all LGBTI people conform to cultural stereotypes associated with LGBTI communities, so the absence of community involvement does not mean a claim is untrue.

Medical and psychological reports

Reports from doctors, psychologists or counsellors can document injuries, the effects of past harm, or matters relevant to how the applicant gives evidence. The guidelines recognise that trauma can affect memory and consistency.

Records of past harm

Police reports, court documents, medical records, threatening messages or media reports relating to past harm can be provided where they exist. The guidelines state that even where past harm is not accepted, the officer must still address the risk of future harm.

Country information

Reports about the treatment of LGBTI people in the applicant's country can be provided. The guidelines state that a lack of country information should not automatically lead to a conclusion that a claim is unfounded.

The guide to what an LGBTI protection claim must prove explains how this material fits the legal test.

How to organise the LGBTI Protection Visa Documents Required

The LGBTI Protection Visa Documents Required are most useful when each document is linked to a specific part of the claim. A large bundle of unexplained material is harder to assess than a smaller set of documents that each prove something.

• Group documents by category. Identity, family, relationship, witnesses, community, medical and past harm.
• Give each file a clear name. Include what it is and its date, for example the type of document and the year.
• Explain what each document shows. The statement, or a short covering submission, should refer to each document and say which part of the account it supports.
• Keep dates visible. Screenshots of messages and social media should show dates and the account names where possible.
• Protect third parties. Messages and photographs often identify other people. Consider whether any of them could be put at risk, and provide only what is needed.
• Keep a master copy. Keep a complete copy of everything provided, in the same order, so that the same documents can be referred to at interview and on any review.

The Department must consider every document it receives, so relevance and accuracy matter more than volume. The LGBT protection visa FAQs answer common questions about evidence and the interview.

Documents the Department must not ask for

The LGBTI Protection Visa Documents Required never include explicit photographs or films of sexual acts. The Department's guidelines state that officers must not request them, because doing so would be unethical and would infringe the applicant's human dignity.

The guidelines go further. Officers should, where necessary, tell applicants that they do not need to provide explicit material, and that not providing it will have no bearing on the decision. Applicants should not provide this material. It adds nothing that a detailed account cannot, and it can cause other applicants to believe it is expected.

Documents from the authorities you fear

Some LGBTI Protection Visa Documents Required, such as a new passport or a birth certificate, can only be obtained from the government of the country the applicant fears. Where the state itself is a source of harm, applying to that government for a document may carry risk, and may also raise questions about the applicant's fear of that government.

This does not mean an applicant should never obtain a document from home. It means the decision should be made with advice, before any request is made. Where a document cannot safely be obtained, that reason should be explained to the Department. The guidelines accept a government's refusal to issue documents because of discrimination or persecution as an example of a reasonable explanation.

Documents for a partner and children included in the application

Where a partner or children are included, the LGBTI Protection Visa Documents Required extend to them as well. A family member can be granted a Subclass 866 visa as a member of the same family unit of an applicant who is granted the visa, but they must be in Australia, be part of a valid application, and meet the other criteria.

The documents usually include:

• For a partner: identity documents, and evidence of the relationship, such as a marriage certificate or evidence of a de facto relationship.
• For children: passports and birth certificates showing the parents' names.
• For other dependent relatives: evidence of the relationship and of dependency. Under regulation 1.05A(2), a person is dependent if they are wholly or substantially reliant on the applicant for financial, psychological or physical support.
• For a child born in Australia after lodgement: the child's birth certificate. The Department's guidelines state that the parent should notify the birth using Form 1022.

The guidelines also allow an applicant on a combined application who has sexual orientation or gender related claims to nominate a separate address for correspondence. That matters where documents and letters would otherwise go to a family member who does not know about the claims.

Police certificates and character documents

Police certificates are among the LGBTI Protection Visa Documents Required when the Department asks for them. The Department's guidelines state that all protection visa applicants aged 17 or older require an Australian penal check.

An overseas police certificate is required for a country in which the applicant has lived for more than 12 months since turning 16, other than the country from which they are claiming protection. The guidelines therefore do not require an applicant to obtain a police certificate from the country they fear. They also include procedures for cases where a certificate cannot be obtained.

Translations, copies and originals

Every one of the LGBTI Protection Visa Documents Required that is not in English should be translated into English. The Department's guidelines state that translations should be by a NAATI accredited translator, and that a NAATI certified translation must carry the translator's stamp and practitioner ID.

• If a translation is missing, the Department may ask for one under section 56. If the request is not answered, the officer may decide the application without considering the document.
• Copies should be clear, complete and in colour, with every page included.
• Originals should be kept safely. The Department may ask to inspect originals, particularly identity documents, and may temporarily retain them for examination.
• Digital material, such as messages or photographs on a phone, can be shown at interview. The guidelines state that the officer will describe it for the recording and ask the applicant to send it electronically afterwards.

The general protection visa documents checklist explains how documents should be scanned and named for upload.

What if you do not have the documents?

An applicant who does not have supporting documents can still make a genuine LGBTI protection claim. The Department's guidelines recognise that the applicant's personal account may be the only source of evidence, and that it will not always be possible to provide comprehensive evidence. Where an account cannot be independently verified, it should be consistent with known facts.

If the applicant's statements are coherent, plausible and consistent with generally known facts, and the applicant is generally credible, the guidelines state that the applicant should be given the benefit of the doubt. The LGBTI Protection Visa Documents Required in that situation are, in practice, the identity documents, a detailed statement and an honest explanation of what is missing and why.

The guidelines also state that where documents relating to certain claims were not submitted, and the officer is considering presuming that they exist, the officer should discuss the documents and the reasons they were not provided with the applicant. For the LGBTI Protection Visa Documents Required, an explanation given early in the statement is better than one given under pressure at interview. Never create, alter or buy a document. A bogus document can require refusal and can destroy a genuine claim.

Documents provided after lodgement or at interview

The LGBTI Protection Visa Documents Required do not all have to be provided on the day of lodgement. Under section 55 of the Migration Act, an applicant may give additional relevant information at any time before a decision is made, and the Department must have regard to it.

Documents can be attached through the applicant's online account after lodgement, provided in response to a section 56 request, or brought to the interview. At interview, the officer should ask when and how the applicant obtained each document, and how it relates to the claims. The guide to responding to a section 56 request and the guide to preparing for a protection visa interview explain these stages.

Mistakes with LGBTI Protection Visa Documents Required

The most damaging mistake with the LGBTI Protection Visa Documents Required is providing a document that is not genuine. A bogus identity document can require refusal under section 91W or section 91WA, and any false document damages the credibility of the whole claim.

Other mistakes that regularly cause problems include:

• Relying on documents instead of the account. Documents support the statement. They do not replace a detailed account in the applicant's own words.
• Providing documents that contradict the statement. Every document should be checked against the account before it is lodged. Any difference should be explained.
• Leaving documents untranslated. An untranslated document may not be considered.
• Providing explicit material. It is not required, it adds nothing, and it should not be sent.
• Not explaining missing identity documents. Silence about a missing passport invites a section 91W request and doubt about identity.
• Obtaining documents from the persecuting state without advice. This can create both safety and credibility problems.

The guide to Subclass 866 refusals at the ART explains how document problems are dealt with on review. Most of these mistakes are easier to prevent when the LGBTI Protection Visa Documents Required are reviewed before lodgement than to repair after a refusal.

Tribunal decisions on LGBTI Protection Visa Documents Required

Published Tribunal decisions show that relationship evidence and the explanation for gaps can matter on review. Each decision turns on its own facts and does not guarantee an outcome in another case.

• In 1619551 (Refugee) \[2019\] AATA 5306, the applicant from Pakistan was a gay man whose case involved credibility, delayed disclosure and evidence of relationships. The matter was remitted to the Department.

A remittal means the Tribunal sent the application back to the Department to be decided again. It is not itself the grant of a visa. The protection visa refusals page explains the review process.

How My Migration Lawyers handles LGBTI Protection Visa Documents Required

My Migration Lawyers acts in LGBTI protection visa matters across Australia. 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 the first application through to review at the Administrative Review Tribunal.

On the LGBTI Protection Visa Documents Required, the work usually involves:

• Reviewing identity documents early. The firm checks what identity evidence exists, identifies gaps and name or sex differences, and prepares the explanation before the Department asks.
• Presenting 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.
• Selecting supporting material. Relationship material, witness statements, letters and reports are reviewed for relevance and reliability, and nothing explicit is provided.
• Family documents and privacy. The firm identifies the documents needed for any family member included, and whether separate correspondence should be requested.
• Translations. Documents not in English are identified for NAATI translation before lodgement.
• Responding to requests. Section 56 and section 91W requests are answered 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 unsure which documents you need, or worried about documents you do not have, Book a consultation with My Migration Lawyers online, or call 1300 040 300.