LGBTI Protection Visa Evidence

LGBTI Protection Visa Evidence is the material that shows the Department who the applicant is, what they have experienced and what they fear on return. For most applicants, it begins and ends with their own account. Photographs, letters and reports can help, but they rarely replace a clear, detailed and truthful statement from the person making the claim.

Many applicants believe they must prove their sexual orientation or gender identity with documents. That belief leads to two serious mistakes. Some people delay lodging while they search for papers that do not exist. Others submit material that should never be provided, including intimate images. This article explains what LGBTI Protection Visa Evidence actually is, how each type is weighed, what officers must not ask for, and what to do when there is very little evidence beyond the applicant's own word.

What is LGBTI Protection Visa Evidence?

LGBTI Protection Visa Evidence is any information that helps establish the facts of a claim for a Subclass 866 visa based on sexual orientation, gender identity or intersex status. It includes the applicant's written statement and interview answers, statements from other people, documents and digital records, professional reports and country information.

The evidence must support two separate things. The first is the applicant's identity as a lesbian, gay, bisexual, transgender, intersex or otherwise gender diverse person, or the fact that others perceive them that way. The second is the risk the applicant would face on return. An application can be strong on the first and weak on the second. Both must be addressed.

The Department's Protection Visa Processing Guidelines, in Annexure 6 on gender and sexual orientation, state that claims relating to sexual orientation or gender identity will often rely largely on the applicant's own account. The guidelines give the reasons: corroborating evidence may not exist, the applicant may have deliberately hidden their identity, the harm may have occurred in private, and official records may hide or deny the mistreatment of LGBTI people. The general guide to evidence in a protection visa application explains how evidence is assessed across all Subclass 866 claims. This article deals with the specific issues that arise in LGBTI claims.

Why the applicant's own account is the primary LGBTI Protection Visa Evidence

The applicant's own account is the primary LGBTI Protection Visa Evidence because it is usually the only evidence that covers the whole claim. No other document can describe the applicant's inner experience of identity, the relationships they kept secret, or the fear they lived with every day.

The guidelines direct officers to assess credibility on the overall plausibility, consistency and credibility of the applicant's responses, together with country information and the applicant's response to any adverse information. That means the account is tested, not simply accepted. It must be detailed enough to be believed.

A strong account usually covers:

• Self-awareness. When and how the applicant came to understand their sexual orientation or gender identity, and what that experience was like in their family, community and culture.
• Relationships. Past and present partners, how they met, how the relationship was conducted and hidden, and how it ended.
• Family and community. How family members, religious figures, employers and neighbours responded, or how the applicant expected them to respond.
• Harm and threats. What happened, who was responsible, when it occurred and what the applicant did afterwards.
• Life in Australia. How the applicant lives now, whether they are open about their identity, and why or why not.
• Fear on return. What the applicant believes would happen if they returned, and why.

The statement is the applicant's own evidence. It should be in their words, reviewed and corrected by them before lodgement, and should never include anything that is not true. The guide to the protection visa statement of claims explains how a statement is structured. The LGBTI protection visa page explains how My Migration Lawyers approaches these claims.

Who is responsible for providing LGBTI Protection Visa Evidence?

The applicant is responsible for providing LGBTI Protection Visa Evidence. Section 5AAA(2) of the Migration Act provides that it is the responsibility of a protection visa applicant to specify all particulars of their claims and to provide sufficient evidence to establish them. Section 5AAA(4) provides that officers have no responsibility to establish or assist in establishing the claim.

This does not mean the officer can ignore the evidence. The guidelines confirm that officers must still consider all relevant facts, give procedural fairness and consider implied claims that clearly arise from the material. However, the practical effect is plain. If evidence exists and the applicant does not provide it, the Department is not obliged to look for it.

The guidelines also recognise that it will not always be possible for an applicant to provide comprehensive evidence. Where an account cannot be independently verified, it should generally be consistent with known facts. That is why country information and the internal consistency of the statement matter so much in LGBTI claims. The pillar guide to LGBTI protection visas in Australia sets out what an applicant must prove, and the Subclass 866 protection visa page explains the visa itself.

Witness statements as LGBTI Protection Visa Evidence

Witness statements are useful LGBTI Protection Visa Evidence when they come from people with direct knowledge of the applicant's identity, relationships or experiences. The guidelines recognise that an applicant may provide testimony or a contact point for a witness who can corroborate their claims.

The most useful witnesses are usually:

• Current or former partners, in Australia or overseas, who can describe the relationship from their own knowledge.
• Friends who knew about the applicant's identity, in the home country or in Australia.
• Family members who know, particularly where they witnessed threats or harm.
• People who saw harm occur, such as a colleague present at an attack or a neighbour who saw the aftermath.

A witness statement should be written in the witness's own words. It should say who the witness is, how they know the applicant, what they personally saw or heard, and when. A general letter saying the applicant is a good person, or that the witness "believes" the applicant is gay, carries little weight. Specific events and first-hand observations carry much more.

Two cautions apply. First, the guidelines note that the ability to provide a witness is only available to applicants who are open about their identity, so applicants who are not "out" can experience bias. The absence of witnesses should be explained, not ignored. Second, if a witness gives evidence that undermines the claim, the guidelines require the officer to consider the procedural fairness obligations in section 57 of the Migration Act. Every witness statement should therefore be accurate and consistent with the applicant's account.

Messages, photographs and social media: what helps and what must never be requested

Messages, photographs and social media can be strong LGBTI Protection Visa Evidence of past and current relationships. The guidelines list emails, texts, videos, chat transcripts, phone records, social media, photographs and statements from past or present partners as evidence officers may find useful.

The guidelines are equally clear about what must not happen. Officers must not request explicit photographs or films of sexual acts. The guidelines describe such a request as unethical and an infringement of the applicant's human dignity. Officers should, where necessary, tell applicants that they are not required to provide explicit material, and that not providing it will have no bearing on the decision to grant or refuse.

This is a point that is widely misunderstood. Some applicants believe that intimate images are the most convincing proof. They are not required, and they should not be offered. If such material is provided, the guidelines state that officers must consider it as sections 54 and 55 of the Migration Act require, but it adds nothing that ordinary relationship evidence cannot show.

Useful relationship material usually looks like everyday life:

• ordinary photographs of the applicant and a partner together, at home, travelling or with friends;
• message histories that show the relationship over time, not a single conversation;
• social media connections, posts or dating application profiles, where they are genuine and safe to provide; and
• evidence of shared life, such as travel bookings, shared addresses or joint expenses.

Screenshots should show dates and the names or profiles of the people involved. Where messages are in another language, a translation is needed. The guide to protection visa documents explains translation and presentation requirements.

Community and support organisation involvement

Involvement with LGBTI community or support organisations can be LGBTI Protection Visa Evidence, but a lack of involvement is not evidence against the claim. The guidelines direct officers not to assume that an applicant will be involved with an LGBTI community simply because they are now in Australia.

The guidelines recognise that some applicants have strong cultural, family or religious ties to communities in Australia in which they cannot be open. In those cases, involvement with an LGBTI group could expose them. Where an applicant has not engaged with LGBTI communities in Australia, officers are directed to explore the reasons, not to draw an adverse conclusion. The guidelines also note that there is no single LGBTI community, but many communities in many forms.

Where involvement exists, useful evidence includes letters from organisations confirming attendance or membership, records of volunteering or advocacy, and statements from people the applicant met there. A letter that confirms attendance only proves attendance. It is most useful when it comes with the applicant's own explanation of why they joined and what the group means to them.

Section 5J(6) of the Migration Act is relevant here. Officers must have regard to conduct in Australia only if they are satisfied it was not engaged in for the sole purpose of strengthening the protection claim. Community involvement that begins suddenly after a refusal, with no other history, may be tested on that basis. Genuine involvement, explained honestly, is a different matter. The guide to delayed Subclass 866 applications explains how timing is assessed.

Medical and psychological reports

Medical and psychological reports are LGBTI Protection Visa Evidence of the effects of past harm and of the applicant's capacity to give evidence. They can also explain why an applicant's account has gaps or inconsistencies.

The guidelines state that officers are to have due regard to reports from qualified professionals, should determine the relevance and weight of a report, and should not substitute their own opinions for those of a reliable professional. If an officer does not accept an author's conclusion, clear reasons must be given. The guidelines add an important limit: evidence will generally not be independent if it is just a letter of support for the applicant's claims.

A useful report usually:

• is written by a qualified doctor, psychiatrist or psychologist who has assessed the applicant;
• sets out the facts and history the author relied on;
• describes any injuries, scarring or psychological conditions observed; and
• explains how trauma, shame or anxiety may affect the applicant's memory or ability to disclose.

The guidelines recognise that trauma, post-traumatic stress, other mental health conditions, shame, habits of secrecy and the passage of time can affect memory and the ability to give a coherent account. A report that explains this for the particular applicant can be decisive when credibility is in issue. For transgender applicants, medical records about gender affirming care, and the effect of losing access to that care on return, may also be relevant.

Evidence of past harm

Evidence of past harm is LGBTI Protection Visa Evidence that shows what has already happened and supports the risk of what may happen again. It can include medical records from the home country, police reports, court documents, threatening messages, news reports about an incident, and statements from people who saw the harm or its aftermath.

Past harm is not required. Many LGBTI applicants were never harmed because they hid their identity, and the guidelines accept that. The question is the risk of future harm. However, where harm has occurred, evidence of it is often the strongest objective support in the file.

The guidelines also recognise that an applicant may have suffered a lifetime of discrimination that cumulatively amounts to serious or significant harm, without a single event that meets the threshold on its own. Officers are directed to consider the claims as a whole. Evidence of repeated discrimination in education, work, housing, family life or health care should therefore be presented together, so that the pattern can be seen. The guide to complementary protection for LGBTI applicants explains how significant harm is assessed under the second pathway.

Country information as LGBTI Protection Visa Evidence

Country information is LGBTI Protection Visa Evidence of how people like the applicant are treated in their country. It covers laws, how those laws are enforced, the conduct of police and courts, the attitude of families and communities, and the protection available.

The guidelines contain several directions that are frequently overlooked:

• Absence of information is not proof of safety. Information may be limited because LGBTI groups cannot operate safely. The absence of information should not automatically lead to a conclusion that the claim is unfounded.
• Laws on paper are not the whole picture. Recent legal and social changes must be weighed against evidence of ongoing discrimination, violence and impunity. Where it is unclear whether laws are enforced, a generalised climate of homophobia may itself support a finding of persecution.
• Different groups face different risks. Information about gay men should not be used as a template for lesbians, transgender or intersex applicants.
• Tourist material is not reliable. Officers should not rely on gay travel or tourist promotion as evidence that a country is safe.

Country information should be specific to the applicant's circumstances: their gender, region, religion, family background and profile. General reports about a country are useful, but reports about people in the applicant's exact position are better. The page on complementary protection explains why country information also matters for the significant harm test.

What is not LGBTI Protection Visa Evidence

Some material that applicants submit is not LGBTI Protection Visa Evidence at all, or carries very little weight. Knowing the difference saves time and avoids damage to the claim.

The following generally does not help:

• Explicit sexual images or videos. They are not required, officers must not ask for them, and they add nothing that ordinary relationship evidence cannot show.
• Knowledge of Western LGBTI culture. The guidelines state that lack of knowledge of Western gay cultural icons, or of gay and lesbian communities in Australia, should never be used to justify refusing a claim. Detailed knowledge of them is not proof either.
• Appearance, dress or mannerisms. The guidelines warn that a legal error may arise if an applicant is found not to be LGBTI because they do not look or behave as an officer expects.
• General character references. Letters that praise the applicant but contain no first-hand knowledge of their identity or experiences carry little weight.
• Demeanour. The guidelines state that demeanour is generally an unreliable indicator of credibility.

Some material is actively harmful. A false document can lead to refusal under section 91WA of the Migration Act in some circumstances, and may cast doubt on every other document in the file. A statement that exaggerates or invents events can destroy a genuine claim. Giving false information to the Department can also lead to serious penalties, including imprisonment. Everything submitted must be true.

What if there is no LGBTI Protection Visa Evidence apart from your own account?

If there is no LGBTI Protection Visa Evidence apart from the applicant's own account, the claim can still succeed. The guidelines accept that evidence in these claims will largely consist of the applicant's account, particularly where the applicant was not open before leaving or where the harm came from family or community.

The guidelines refer to the benefit of the doubt. Where the applicant's statements are coherent, plausible and consistent with generally known facts, and their account appears credible, the applicant should, unless there are good reasons to the contrary, be given the benefit of the doubt. The guidelines add that this applies only where the officer is satisfied as to the applicant's general credibility, and that claims are not accepted uncritically.

In practice, an applicant with little documentary evidence should:

• give a detailed, consistent and honest account, including ordinary details of daily life that are difficult to invent;
• explain why other evidence does not exist, for example because relationships were hidden, partners cannot be contacted safely, or messages were deleted for safety;
• identify any person who can confirm any part of the account, even a small part; and
• rely on country information about people in the same position.

The guidelines also confirm that an applicant should be given the opportunity to explain delays or changes to their claims. The guides to protection visa interview questions and the protection visa interview explain how the account is tested in person.

When to provide further LGBTI Protection Visa Evidence

Further LGBTI Protection Visa Evidence can be provided after lodgement and before a decision is made. The guidelines confirm that information provided with the application, or at any time before a decision, must be considered as sections 54 and 55 of the Migration Act require.

The Department may also ask for more information under section 56, or give the applicant adverse information to comment on under section 57. Both requests have short response periods that are strictly applied. A response to a section 57 letter is often the last chance to answer a credibility concern before a decision. The guide to responding to a section 56 request explains how to respond.

If a visa is refused, the Administrative Review Tribunal considers the matter afresh and can take new evidence into account. The time limit to apply for review is short and strictly applied. Evidence that could have been provided earlier, but was held back without explanation, may be viewed with more caution. The protection visa refusals page and the guide to the protection visa ART hearing explain the review stage.

Tribunal decisions on LGBTI Protection Visa Evidence

Published Tribunal decisions show how LGBTI Protection Visa Evidence is weighed on review. Each decision turns on its own facts and does not predict the result in another case.

• In 1619551 (Refugee) \[2019\] AATA 5306, a gay applicant from Pakistan faced issues of credibility, delayed disclosure and evidence of relationships. The matter was remitted to the Department.
• In 1818153 (Refugee) \[2021\] AATA 4944, the claim of a lesbian applicant from Uganda concerned her lesbian identity despite a previous heterosexual marriage and concealment. 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 the grant of a visa. These decisions are cited as published examples only. They reflect a point the guidelines make directly: a past marriage, concealment or late disclosure is not in itself inconsistent with an LGBTI identity, and the evidence must be assessed as a whole.

How My Migration Lawyers handles LGBTI Protection Visa Evidence

My Migration Lawyers acts in LGBTI protection matters where the evidence is limited, sensitive or difficult to present. The firm deals with complex protection cases, acts in many Subclass 866 claims based on sexual orientation and gender identity, and is capable of handling these matters from the first application through to review at the Administrative Review Tribunal.

On LGBTI Protection Visa Evidence, the work usually involves:

• Taking the applicant's own account in detail. The firm takes the applicant's account carefully, in a confidential setting and with an interpreter where needed. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Identifying what evidence exists. The firm reviews what the applicant already holds, including messages, photographs, records and possible witnesses, and advises what is useful and what should not be provided.
• Witness statements. Statements from partners, friends and family are prepared in the witness's own words and checked for consistency with the applicant's account.
• Medical and psychological evidence. Where relevant, the firm identifies when an independent report may assist and what it should address.
• Country information. Current and specific country information about people in the applicant's position is identified and presented.
• Explaining gaps. Where evidence does not exist, the reasons are explained in the application, so that the absence is not held against the applicant.
• Responses and review. The firm prepares responses to section 56 and section 57 requests and, if a visa is refused, prepares the evidence for review 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. The protection visa guide explains the wider Subclass 866 process.

If you are unsure whether your LGBTI Protection Visa Evidence is enough, or whether something you hold should be provided at all, that question should be answered before you lodge. Book a consultation with My Migration Lawyers online, or call 1300 040 300.