LGBTI Protection Visa Lawyer

An LGBTI Protection Visa Lawyer acts for a person seeking a Subclass 866 Protection visa because they fear harm in their home country for being lesbian, gay, bisexual, transgender, intersex or otherwise diverse in sexual orientation or gender identity. At My Migration Lawyers, LGBTI Protection Visa Lawyer work is led by Principal Lawyer Weiwei Zhang. This page explains what the firm actually does on an LGBTI protection matter, stage by stage, from the first confidential consultation to the decision and any review.

This page is not a general explanation of protection law. The legal tests are covered in the guide to what LGBTI applicants must prove in Australia and in the definitive guide to the Subclass 866 protection visa. This page is about the work: what is done, why it is done, and what the client is responsible for.

What does an LGBTI Protection Visa Lawyer do?

An LGBTI Protection Visa Lawyer advises on whether a protection claim should be made, prepares and lodges the Subclass 866 application, presents the client's own account and evidence in the form the law requires, and represents the client before the Department of Home Affairs and, after a refusal, the Administrative Review Tribunal. The work runs across the whole life of the matter, not only on the day of lodgement.

At My Migration Lawyers, an LGBTI protection matter usually moves through these stages:

• a confidential consultation and an honest assessment of the claim;
• advice on both protection pathways and on timing;
• taking the client's account in detail and preparing the statement of claims with the client;
• identifying supporting evidence and current country information;
• written legal submissions;
• lodging the application and advising on the bridging visa position;
• responding to requests for information and to adverse information;
• interview preparation and attendance; and
• advice and representation if the application is refused.

Each stage is explained below. The LGBTI protection visa service page summarises the same service for clients who want the short version.

When should you contact an LGBTI Protection Visa Lawyer?

You should contact an LGBTI Protection Visa Lawyer before you lodge anything, because the statement and form answers given at lodgement are the record every later decision maker reads. Mistakes made at the start are the hardest to repair later. The Department compares everything the applicant says, from the first form to the last interview.

There are also points in a matter where advice becomes urgent:

• A current visa is about to expire. The timing of a protection application can affect the applicant's immigration status and bridging visa position.
• The applicant has already lodged without advice. The firm can review what was lodged and advise on whether further information should be provided.
• A letter has arrived from the Department. A request under section 56 or an invitation to comment under section 57 has a short deadline.
• An interview invitation has arrived. Preparation takes time, and interview arrangements may need to be requested in advance.
• The application has been refused. The time limit for review is short and strictly applied.

The guide to when you need a protection visa lawyer explains these points for protection matters generally. For an LGBTI claim, the earlier the LGBTI Protection Visa Lawyer is involved, the more time there is to take the client's account properly and gather evidence while it can still be obtained.

The confidential first consultation with an LGBTI Protection Visa Lawyer

The first consultation with an LGBTI Protection Visa Lawyer at My Migration Lawyers is confidential, held by video, and focused on one question: does this person have a protection claim that should be made? Many clients have never told anyone about their sexual orientation or gender identity. Some have told a partner but not their family. Some are not sure how to describe themselves in English. None of this is a problem. The consultation starts from where the client is.

The consultation covers:

• the client's immigration position in Australia, their current visa and its conditions;
• what the client fears on return, and who they fear;
• what has happened to the client, or to people like them, in the home country;
• what evidence may exist, in Australia and overseas; and
• what the client does not want disclosed, and to whom.

Clients often worry that the Department will contact their family or their government. That concern is discussed directly at the first meeting. The Department's own processing guidelines state that information identifying a protection visa applicant, or their family or associates, must not be released to officials or nationals of the country the claims are made against while the application is being decided.

Because consultations are by video, the firm acts for LGBTI clients wherever they live in Australia. A client can take the call from a private place where they feel safe to speak freely. The guide to booking an immigration lawyer consultation explains what happens at a first consultation more generally.

How an LGBTI Protection Visa Lawyer assesses both pathways

An LGBTI Protection Visa Lawyer assesses every claim under both the refugee criterion in section 36(2)(a) of the Migration Act 1958 and the complementary protection criterion in section 36(2)(aa), because a claim that does not fit one may still fit the other. The detail of those tests is explained in the guide to complementary protection for LGBTI applicants. The practical point is that My Migration Lawyers considers both from the first consultation, not only after a refusal.

The assessment also answers the questions that decide whether an application can, and should, be lodged:

• Can the client apply? A Subclass 866 application is made in Australia. Some people are barred. Under section 48A, a person who has previously been refused a protection visa generally cannot make a further protection visa application while in Australia.
• What is the claim? Who the client fears, why, and what the client believes would happen on return.
• What will the Department focus on? Usually credibility, the seriousness of the harm feared, state protection and internal relocation.
• Is there time to prepare properly? Rushing a statement to meet a visa expiry date carries its own risks, and those risks are weighed openly.
• Should the client apply at all? If a claim does not engage Australia's protection obligations, the firm says so plainly.

Honest advice not to apply is part of the work. The Department's protection visa factsheet states that a refusal stays on the person's immigration record. A client deserves to know that, and to understand the section 48A bar, before deciding to lodge. The guide to protection visa eligibility sets out the threshold questions.

Taking the client's own account: the statement of claims

The statement of claims is the client's own evidence, and the LGBTI Protection Visa Lawyer's role is to take that account carefully and present it in the form the law requires. My Migration Lawyers does not write a story for the client. The firm asks questions, listens, records the client's answers, and organises them so that the decision maker can see each element the law requires. The client then reads the draft, corrects anything that is wrong or incomplete, and approves it before it is lodged. The client decides which claims are advanced.

For an LGBTI claim, the account usually covers:

• how the client came to understand their sexual orientation, gender identity or intersex status;
• family, community and religious attitudes where they grew up;
• relationships, if any, and how they were kept private;
• any harm, threats, blackmail, arrest or discrimination the client or people close to them experienced;
• why the client left, and what happened after leaving;
• life in Australia, including community involvement and relationships; and
• what the client fears would happen on return, and from whom.

The Department's guidelines recognise that applicants may not have outwardly expressed their sexuality or gender identity, may have been married, and may have raised these claims late for credible reasons. Those facts are not hidden in the statement. They are explained in the client's own words. The guide to the protection visa statement of claims explains how a statement is structured.

An LGBTI Protection Visa Lawyer must also be clear with the client about one rule. Every statement must be true. The Department warns that giving false information can lead to large fines and up to 10 years in jail, and a false detail can destroy the credibility of a genuine claim. If a client is unsure about a date or a detail, the statement says so.

Interpreters and the client's own language

An LGBTI Protection Visa Lawyer at My Migration Lawyers takes instructions in the language the client is most comfortable using, with a professional interpreter where needed. Clients from some countries have no neutral word for their identity in their first language. Others only know insulting words. The firm asks the client which terms they use about themselves and records them in the statement.

The same care is taken with the Department. The Department's guidelines direct officers to use language that reflects the applicant's self-identification and to make sure interpreters use appropriate terminology. The firm raises interpreter requirements with the Department in writing when that is needed.

The evidence an LGBTI Protection Visa Lawyer gathers

An LGBTI Protection Visa Lawyer identifies what corroborating evidence exists, helps the client obtain it, and presents it so that its relevance to each claim is clear. Many LGBTI applicants have little documentary evidence, because their safety in their home country depended on having none. The absence of documents is not fatal. The client's own detailed account is the primary evidence.

Where evidence exists, it can include:

• Witness statements from partners, former partners, friends or family members who know about the client's sexual orientation or gender identity.
• Messages and photographs showing relationships, but never sexually explicit material. The Department's guidelines state that officers must not request explicit photographs or films of sexual acts, and that applicants do not need to provide them.
• Community involvement in Australia, such as participation in LGBTI support organisations or events.
• Medical or psychological reports, where relevant, for example to explain the effect of trauma on memory.
• Evidence of past harm, such as police documents, medical records or reports of attacks.

The firm reviews each item with the client before it is lodged. Evidence that does not match the statement, or that the client cannot explain, is discussed first. The guide to evidence in a protection visa application explains how the Department weighs different types of evidence.

Country information and legal submissions

My Migration Lawyers prepares written legal submissions that apply the law to the client's facts and to current country information about the treatment of LGBTI people in the client's country. The Department relies on country information in every protection decision. If the application does not address it, the decision maker will rely on whatever information the Department selects.

The submissions typically address:

• the relevant Convention ground, usually membership of a particular social group, and the harm feared;
• whether the harm is serious harm for the refugee test or significant harm for complementary protection;
• why the client cannot be expected to conceal their sexual orientation, gender identity or intersex status to avoid harm, under section 5J(3);
• whether effective state protection is available;
• whether relocation within the country is a real option; and
• how LGBTI people are treated in practice, not only what the written law says.

Criminal laws are only part of the picture. Enforcement, police conduct, family and community violence, and the treatment of people who are not open about their identity all matter. The complementary protection service page explains the second pathway that the submissions must also address.

Lodging the Subclass 866 application and the bridging visa

The LGBTI Protection Visa Lawyer lodges the Subclass 866 application online once the client has approved the statement, the form answers and the evidence. Before lodgement, My Migration Lawyers checks the form answers against the statement and the client's immigration history, because an inconsistency in the form can later be used to question credibility. The guide to Form 866 explains the form itself.

The firm is appointed as the client's representative using Form 956, so the Department corresponds with the firm. The guide to Form 956 and 956A explains how that appointment works.

After lodgement, the firm advises the client on their bridging visa position and the conditions attached to it. Whether a bridging visa is granted, and on what conditions, depends on the client's situation at the time of lodgement. The guide to bridging visas in Australia explains the general position. The Department also states that a person cannot apply for most other visas while in Australia if their protection application is pending. The client is told this before lodging, not after.

Section 56 requests and section 57 letters

When the Department asks for more information under section 56 of the Migration Act, or invites comment on adverse information under section 57, the LGBTI Protection Visa Lawyer prepares the response with the client within the time allowed. These letters matter. A section 57 letter often shows the reasons the Department is considering for refusing the application.

For a section 56 request, the firm identifies exactly what is being asked, obtains it with the client, and explains any gaps. For a section 57 letter, the firm reviews the information relied on, takes the client's instructions, and prepares a written response that deals with each point. If the information is wrong, the response says why and provides evidence. If it is correct but has an explanation, the explanation is given in the client's own words. The guide to responding to a section 56 request explains the process in more detail.

Preparing for and attending the protection interview

My Migration Lawyers prepares LGBTI clients for the protection interview and attends the interview with them. The interview is often where an LGBTI claim is decided, because it is the officer's main opportunity to assess credibility.

Preparation is not rehearsal. The firm does not give clients answers to memorise. It explains the process, the areas the Department's guidelines direct officers to explore, and why truthful, detailed answers drawn from personal experience matter. It also reads the statement again with the client, so the client is familiar with what has already been said.

An LGBTI Protection Visa Lawyer also deals with the interview arrangements that matter in these claims:

• Officer and interpreter gender. The Department's guidelines state that, where gender-related claims are made, every effort should be made to ensure the interviewing officer and the interpreter are the same sex as the applicant, or the gender the applicant identifies with. Where the applicant asks for an interpreter of a particular gender, every effort should be made to meet that request.
• Interpreter concerns. Many clients fear an interpreter from their own community. The guidelines state that interpreters are bound by a code of ethics that includes confidentiality. Specific concerns can be raised with the Department before the interview.
• Support persons. A client can ask to bring a support person, and should first decide whether they want that person present when sensitive questions are asked.
• Trauma. Where trauma affects the client's ability to give evidence, this is raised in advance, and breaks can be requested.

At the interview, the representative observes, makes sure the process is fair, and makes comments or submissions at the appropriate time. The representative does not answer questions for the client. After the interview, the firm may lodge a written submission dealing with issues the officer raised. The protection visa interview page and the guide to protection visa interview questions explain more.

What an LGBTI Protection Visa Lawyer does after a refusal

After a refusal, an LGBTI Protection Visa Lawyer analyses the decision record and advises on review at the Administrative Review Tribunal. The time limit to apply for review is short and strictly applied, and it runs from the date the applicant is notified of the decision. The decision should be sent to the firm as soon as it arrives.

The review is a fresh consideration of the claim. The Tribunal can take new evidence and usually holds a hearing. My Migration Lawyers reads the decision record closely, identifies the findings that led to the refusal, such as adverse credibility findings, relocation or state protection, and prepares the review around them. That may include a further statement from the client, new witness evidence, updated country information, written submissions and hearing preparation.

The firm also acts for clients who prepared their own application, or who had other representation, and who come to the firm after a refusal. The protection visa refusals page and the guide to preparing for a protection visa ART hearing explain the process. The guide on how a lawyer assesses a refused protection visa explains the first steps after a refusal.

What working with an LGBTI Protection Visa Lawyer at My Migration Lawyers involves

Working with an LGBTI Protection Visa Lawyer at My Migration Lawyers involves a written costs agreement on a fixed fee for a defined scope of work, communication by email and video, and clear responsibilities on both sides. The firm's office is at Level 1, 60 Martin Place, Sydney. Consultations are by video, so clients anywhere in Australia receive the same service.

The client's responsibilities are simple but essential:

• tell the truth, including facts that seem unhelpful;
• read every document before it is lodged and correct anything that is wrong;
• keep the firm informed of any change in address, contact details or circumstances; and
• respond to requests promptly, because Department deadlines are short.

The firm's responsibilities are to give honest advice, to present the client's account accurately, to meet every deadline, and to keep the client's information confidential. The guide to fixed-fee immigration lawyers explains what a fixed-fee quote should include.

How My Migration Lawyers acts as your LGBTI Protection Visa Lawyer

My Migration Lawyers acts in LGBTI protection visa matters for clients 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 consultation through to review at the Administrative Review Tribunal.

As your LGBTI Protection Visa Lawyer, the firm:

• Listens first. The first consultation is confidential, by video, and conducted at the client's pace.
• Assesses both pathways. Every claim is considered under section 36(2)(a) and section 36(2)(aa), and the client is told honestly whether to apply.
• Takes your own account. The statement is the client's own evidence. The client reviews and corrects it, and decides which claims are advanced.
• Presents the evidence and country information. Supporting evidence and current country information are identified and presented against each claim.
• Prepares legal submissions. The law is applied to the client's facts, including the section 5J(3) rule against expecting concealment.
• Deals with the Department. Section 56 requests and section 57 letters are answered within time.
• Prepares you for the interview and attends it. Interview arrangements, interpreters and support persons are dealt with in advance.
• Acts after a refusal. The decision is analysed and the Tribunal review is prepared within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants throughout Australia, and the LGBTI protection visa service covers every stage described on this page.

If you are LGBTI and afraid to go home, the first step is a confidential conversation with an LGBTI Protection Visa Lawyer. Book a consultation with My Migration Lawyers online, or call 1300 040 300.