LGBT Protection Visa Interview

An LGBT Protection Visa Interview is the stage of a Subclass 866 application where a Department officer questions the applicant directly about their claim to fear harm because of their sexual orientation, gender identity or intersex status. For many applicants it is the first time they have spoken about these parts of their life to a stranger, let alone a government official. The Department's own guidelines recognise this. They set out specific arrangements for an LGBT Protection Visa Interview that most applicants never hear about, and that they are entitled to ask for.

This article explains how the interview is arranged, what happens on the day, who can attend, how interpreters and recording work, and what happens afterwards. The questions themselves are covered in a separate article in this series. The service page on the protection visa interview explains how the firm assists at this stage.

What is an LGBT Protection Visa Interview?

An LGBT Protection Visa Interview is an invitation from the Department, under section 56 or section 57 of the Migration Act, for the applicant to give further information or comment on their protection claim in person, by video or by telephone. The Department's guidelines describe the purpose of the interview as obtaining more information about the application. It is also the applicant's chance to explain their claim in their own words and to answer any concerns the officer has.

There is no legal requirement for the Department to interview every protection visa applicant. The guidelines state that whether to interview is a decision for the officer in each case. An applicant or their representative can ask for an interview, and the officer must consider the request, but the decision remains with the officer.

In practice, an interview is common in sexual orientation and gender identity claims. These claims usually depend on the applicant's own account, because documents are often limited or unavailable. The guidelines list situations where an interview may be appropriate, including where the claim could succeed on the country information but its credibility cannot be tested in writing. That describes many LGBTI claims. The pillar guide to LGBTI protection visas in Australia explains why the interview so often decides these cases.

How are you invited to an LGBT Protection Visa Interview?

An applicant is invited to an LGBT Protection Visa Interview by a written invitation from the Department, which must state the date, time and place of the interview. Section 58 of the Migration Act sets these requirements. The interview must be scheduled within a period prescribed by the Migration Regulations, which is short and runs from when the applicant is taken to have received the invitation.

Three points follow from this:

• Read the invitation the day it arrives. The date may be close. The applicant should check the method of interview, the location or link, the language of the interpreter booked, and any documents the officer has asked for.
• Keep contact details current. The invitation is sent to the address the Department holds. An applicant who has moved, changed email or appointed a new representative should tell the Department in writing straight away. The guide to Form 1022 change of circumstances explains how changes are notified.
• Ask early if the date cannot work. Section 58(5) allows an officer to give more time or reschedule, but the officer does not have to. A request with a clear reason, made as soon as possible, is more likely to be accepted.

Video, telephone or in person

The guidelines allow an LGBT Protection Visa Interview to be held by video conference, by telephone or face to face. In choosing the method, the officer must consider the health and safety of everyone attending, operational matters, and the applicant's personal circumstances, including the method in which the applicant would most likely be able to speak freely on sensitive topics. An applicant who would find it very hard to speak about their sexuality on a video call from a shared home, for example, can explain this and ask for a different arrangement.

Can you ask for a male or female officer and interpreter?

Yes. The Department's guidelines state that where gender-related claims are included in an application, every effort should be made to ensure that the interviewing officer and the interpreter are the same sex as the applicant, or the same gender with which the applicant identifies. The guidelines on interpreters add that if an applicant makes a request about the gender of the interpreter, every effort should be made to meet it.

This matters in an LGBT Protection Visa Interview. Many applicants find it easier to talk about relationships, family pressure or violence with someone of a particular gender. Some fear judgement from a man, or from a woman, because of what happened to them at home. A transgender applicant may want an officer and interpreter of the gender with which they identify.

The request should be made in writing as soon as the invitation arrives, or earlier, and should say briefly why it matters. The applicant does not need to explain their whole history to make the request. A short statement that the claim involves sexual orientation or gender identity, and that the applicant would be more comfortable with an officer and interpreter of a stated gender, is enough.

The guidelines also require officers to ask gender diverse applicants for their name and pronouns at the start of the interview and to use them. Names on identity documents will still be used in Department correspondence, and the guidelines acknowledge this may be uncomfortable. The particular issues for transgender applicants are covered in a separate article in this series.

How interpreters work at an LGBT Protection Visa Interview

An interpreter at an LGBT Protection Visa Interview is bound by a code of ethics that requires confidentiality and impartiality. The Department's guidelines tell officers to inform the applicant of this. The interpreter must not disclose any details of the interview, does not take sides, and is not an advocate for either the applicant or the officer.

Many applicants are afraid of the interpreter more than the officer. The interpreter may come from the same country, community or religion, and the applicant may fear that what they say will reach people they know. The guidelines recognise this fear expressly. They also provide practical safeguards:

• Briefing the interpreter. When booking through the Translating and Interpreting Service, officers can note in the booking, without identifying the applicant, that LGBTIQ+ claims will be discussed. The relevant terms can be given to the interpreter when they accept the booking.
• Pre-briefing for sensitive interviews. For particularly sensitive interviews, officers can ask for a pre-briefing to confirm the interpreter is confident and competent with the terminology.
• Telephone interpreters. The guidelines note that officers may consider a telephone interpreter in sensitive cases, as this can reduce stress for applicants.
• Handing back the job. The interpreters' professional code requires an interpreter to be competent for any assignment they accept. An interpreter who is not confident with the terminology should hand the assignment back so another can be booked.

Terminology is a real risk in these interviews. Some languages have no neutral word for gay, lesbian, bisexual or transgender people, and the only available words may be insults. The guidelines accept that an applicant may use such terms about themselves, and that this says nothing about whether they are LGBTI. What matters is that the interpreter conveys the applicant's meaning accurately.

If the applicant believes something has been interpreted wrongly, they should say so politely at the time, or ask their representative to raise it. If an applicant speaks some English, they may be tempted to answer in English. That is often a mistake in an LGBT Protection Visa Interview, because precision matters more than speed. The applicant should use the language in which they can explain their feelings most accurately.

Can you bring a support person or your partner to an LGBT Protection Visa Interview?

Yes, other people may attend an LGBT Protection Visa Interview, including migration agents or lawyers, interpreters, support persons and observers. The Department's guidelines state that the interviewing officer manages the conduct of everyone present, and that other people may attend by a different method from the applicant, for example by telephone. Interviews at Department offices are by appointment only, and everyone attending must be arranged in advance.

Whether a support person should be in the room is a separate question. The guidelines tell officers to consider the effect a family member, friend or support person may have on the applicant's willingness to discuss private matters. Where an applicant wants to bring a support person, the officer may tell the applicant separately that sensitive and detailed questions will be asked. The applicant can then decide whether the support person should wait outside.

The applicant should think honestly about this before the day. A friend from the same community may be supportive, but may also be someone the applicant does not want to hear everything. A partner may want to be there, but the officer may wish to speak to each of them separately. It is often better for a support person to wait nearby and be available afterwards.

Family members on the same application

An LGBT Protection Visa Interview raises particular issues where the applicant is included in a family member's application. The guidelines say officers may need to arrange a separate interview so that sensitive claims, including those about sexual orientation or gender, can be explored without other family members present. An applicant in this position may also ask to nominate a separate address for correspondence with the Department. The guidelines warn that staying on a combined application can have consequences, including that another family member may later see sensitive information. Officers are told to explain the options. This is a decision to make with legal advice before the interview, not during it.

What happens on the day of an LGBT Protection Visa Interview?

On the day, an LGBT Protection Visa Interview usually begins with introductions, an explanation of the process and an assurance of confidentiality, and then moves from background questions to the claims. The guidelines on building rapport tell officers to:

• assure the applicant at the start that their claims will be treated in confidence, and that interpreters are also bound by confidentiality, repeating this as sensitive topics come up;
• invite the interpreter to explain their role and ethical code;
• give a clear outline of the interview at the start;
• begin with biographical questions before moving to sexual orientation or gender identity;
• allow the applicant enough time to speak without interruption;
• watch the applicant's demeanour and provide breaks if necessary; and
• avoid showing judgement, in words or body language, about the applicant's sexual orientation, gender identity or relationships.

The guidelines also note that telling vulnerable applicants that interview room doors are not locked may help reduce fear of officials.

Recording and documents

All interviews must be audio recorded, provided the applicant consents. The officer should explain why the interview is recorded and try to resolve any concerns. If the applicant does not consent, the officer must take comprehensive notes, and the applicant's refusal is recorded in writing.

The applicant can hand over further documents at the interview, and the officer must have regard to them. For the recording, the officer describes each document or image shown. Documents not in English can be accepted, and the officer can ask for a translation by a certified translator within a set time. If no translation is provided, the officer can decide without considering the document. The guide to evidence in a protection visa application explains which material helps.

The officer may also ask the applicant to confirm, by oath or affirmation, that the information they have given is true. This is a request under section 91V of the Migration Act. If the applicant refuses after being warned, the officer may draw an adverse inference about their credibility.

Trauma, distress and breaks during an LGBT Protection Visa Interview

The Department's guidelines accept that an LGBT Protection Visa Interview may be the first time an applicant has spoken in detail about their sexuality or gender identity, and that the formality and power imbalance of the interview can make it harder to speak. The guidelines state that detailed questions about a traumatic event are not appropriate, and that officers should take breaks if the applicant needs them.

If the applicant becomes too distressed to continue, the guidelines allow the officer to stop the interview and either schedule another interview, invite the applicant to answer remaining questions in writing under section 56, or put any adverse information to the applicant in writing under section 57. Officers are also told to let distressed applicants know that counselling is available from torture and trauma support services, while making clear that the decision does not depend on whether the applicant seeks counselling.

Applicants should not try to push through severe distress to finish quickly. It is better to ask for a break, drink water, and continue when able. A representative can ask for a break on the applicant's behalf. The guidelines also caution officers that demeanour is an unreliable guide to credibility in these claims, and that nervous laughter, silence or a blank expression can all be reactions to stress.

Practical preparation for the day of an LGBT Protection Visa Interview

Practical preparation for an LGBT Protection Visa Interview means sorting out the arrangements, the documents and the setting well before the day, so that the applicant can concentrate on giving their evidence. Small practical problems, such as a failed video link or a forgotten passport, can unsettle an applicant before the first question is asked.

In the week before the interview, the applicant should:

• Confirm the arrangements in writing. Check that any request about the gender of the officer or interpreter, the interview method or a separate interview has been received and answered.
• Gather identity documents. Bring the original passport and any other identity documents the Department holds copies of, unless the invitation says otherwise.
• Organise evidence. Bring copies of any new supporting documents, with certified translations where they are not in English, and a list of what has already been lodged.
• Re-read the statement. The officer will have read it closely. The applicant should know what it says.
• Plan the day. For an in-person interview, know how to get to the office and arrive early. For a video or telephone interview, test the device, the connection and the link, and charge the device fully.

For a video or telephone LGBT Protection Visa Interview, privacy at home is a real concern. The applicant should choose a room where no one else can hear, particularly housemates or relatives who do not know about their sexuality or gender identity. If no private space is available, the applicant should tell the Department before the interview and ask for another arrangement. An applicant who cannot speak freely because someone may be listening is unlikely to give their full account.

The general guide to protection visa interview questions explains the identity and travel questions asked in every interview, and the definitive protection visa guide explains where the interview sits in the whole process.

What does a representative do at an LGBT Protection Visa Interview?

A representative at an LGBT Protection Visa Interview prepares the applicant beforehand, attends the interview with them, and deals with the Department afterwards. The representative does not answer the questions for the applicant. The evidence must come from the applicant, in their own words.

Before the interview, a representative can:

• check the statement and application for errors, gaps or inconsistencies, and arrange written corrections;
• make written requests for the gender of the officer and interpreter, a particular interview method, or a separate interview;
• organise supporting evidence, including translations, and lodge it before the interview; and
• explain to the applicant how the interview will run, so there are fewer surprises on the day.

At the interview, the representative can help make sure that the arrangements requested are in place, that breaks are taken when needed, and that interpretation problems are raised. The officer manages the conduct of everyone present, including representatives, so the representative's role is supportive rather than argumentative.

To act for an applicant, the representative must be appointed with the Department. The guide to Form 956 and 956A explains how an appointment is made. Anyone paid to give immigration assistance must be a registered migration agent or an Australian legal practitioner.

What if you cannot attend an LGBT Protection Visa Interview?

If an applicant cannot attend an LGBT Protection Visa Interview, they should contact the Department in writing before the interview, explain why, and ask for a new date. Illness, a family emergency or a clash with a medical appointment are the kinds of reasons that should be explained with evidence where possible.

If the applicant simply does not attend, the guidelines allow the officer to decide the application on the information already held. Non-attendance is not in itself a reason to refuse, but the officer may decide not to accept claims that could have been explained at the interview. Under Department policy, the officer should allow a short period after the missed interview for the applicant to explain what happened before deciding. In an LGBTI claim, where the applicant's own account is the central evidence, losing the interview can be very damaging. The guide to preparing for a protection visa interview explains non-attendance in more detail.

What happens after an LGBT Protection Visa Interview?

After an LGBT Protection Visa Interview, the Department can make a decision at any time on the information it holds. The guidelines tell officers to say this at the interview, and to tell the applicant that a different officer may decide the application and that a further interview may not be needed.

Several things can still happen before a decision:

• Further information from the applicant. Under section 55 of the Migration Act, an applicant may give additional information at any time before the decision, and the officer must have regard to it. If something important was missed or misunderstood at the interview, it should be put in writing quickly.
• A section 56 request. The officer may ask for more information in writing, such as a translation, a document or answers to further questions. The guide to responding to a section 56 request explains how to respond.
• A section 57 invitation. If the officer has information that would be the reason, or part of the reason, for refusing the visa, and it is specifically about the applicant and was not given by the applicant, the officer must generally give the applicant particulars of it and invite comment before deciding. A witness who contradicts the applicant, or records that conflict with the claims, are typical examples.
• Health and other checks. The Department may ask for health examinations or other checks before the visa can be granted.

A section 57 invitation is the last clear chance to answer a concern before the decision. The response should deal with each item of information specifically, explain any inconsistency, and attach evidence. How officers assess inconsistencies and credibility is covered in a separate article in this series.

If the visa is refused, review may be available at the Administrative Review Tribunal. The time limit is short and strictly applied. The guide to appealing a protection visa refusal to the ART explains the process, and the protection visa refusals page explains how the firm assists.

How My Migration Lawyers handles the LGBT Protection Visa Interview

My Migration Lawyers acts for LGBTI applicants through every stage of a Subclass 866 claim, and the LGBT Protection Visa Interview is often the stage that matters most. The firm deals with complex and sensitive protection cases, acts in many sexual orientation and gender identity claims, and is capable of preparing and attending these interviews with clients.

On an LGBT Protection Visa Interview, the work usually involves:

• Checking the file before the interview. The statement is the client's own evidence, reviewed and corrected by the client. The firm checks it against the application and evidence, and arranges written corrections where needed. The client decides which claims are advanced.
• Requesting the right arrangements. Written requests are made for the gender of the officer and interpreter, the interview method, and a separate interview or separate correspondence where the client is on a family application.
• Preparing the client. The client is taken through how the interview will run, including confidentiality, interpreters, recording and breaks, so they can focus on giving their own account.
• Attending the interview. Where engaged to do so, the firm attends with the client and raises any arrangement or interpretation issue on the record.
• After the interview. The firm prepares any further submission, responds to section 56 requests and section 57 invitations, and, if the visa is refused, prepares review at the Administrative Review Tribunal within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for clients across Australia by video, and more about the firm's work on sexuality and gender identity claims is on the LGBTI protection visa page. The general Subclass 866 protection visa page explains the visa itself.

If you have received an invitation to an LGBT Protection Visa Interview, or expect one, the arrangements should be requested now, not on the day. Book a consultation with My Migration Lawyers online, or call 1300 040 300.