Protection Visa 866 Interview

What Is the Protection Visa 866 Interview?

The Protection Visa 866 interview is a meeting between the applicant and an officer of the Department of Home Affairs at which the officer asks questions about the applicant's protection claims, identity and history. The Department describes it as a chance to discuss the application and an opportunity for the applicant to clarify the claims already made.

The Protection Visa 866 interview is not a hearing and it is not a formality. The officer is gathering the information needed to decide whether the applicant is a refugee under section 36(2)(a) of the Migration Act 1958, or meets the complementary protection criterion in section 36(2)(aa). The officer is also testing credibility. The Department's Protection Visa Processing Guidelines state that one reason to interview is where the officer has concerns about credibility and wishes to observe how the applicant responds to questions, including their spontaneity.

This article explains how the Protection Visa 866 interview is arranged and conducted, who attends, what happens on the day, and what follows. For the questions themselves, see our guide to protection visa interview questions. For preparation, see our guide on how to prepare for a protection visa interview.

Will There Be a Protection Visa 866 Interview?

Not necessarily. The Department's guidelines state that there is no legislative requirement for officers to interview a protection visa applicant before making a decision, and that whether to invite an applicant to interview is decided on each application.

An applicant or their representative may ask for a Protection Visa 866 interview. The guidelines say the request and the reasons for it should be considered, but the decision remains with the officer. An officer may decide the application on the written material alone. That is why Form 866 warns that a decision may be made on the information in the written application, and that the applicant may not get another opportunity to present the claims.

The guidelines describe situations in which an interview may be appropriate. They include where an interview is the most efficient way to get the information needed, where the claims could succeed on the country information but their credibility cannot be tested in writing, and where the officer has credibility concerns and wishes to see the applicant's demeanour. The guidelines also describe situations in which an interview may not be appropriate, such as where the applicant is a victim of torture and the information needed concerns treatment, where there is a risk of self-harm, or where the applicant is incapable of taking part.

The practical consequence is simple. The written application must be complete as if there will be no Protection Visa 866 interview at all. Our guide to preparing Form 866 explains how.

The Invitation to a Protection Visa 866 Interview

A Protection Visa 866 interview is arranged by a written invitation, and the legal basis of that invitation matters. The Department's guidelines explain that the invitation is either an invitation to give additional information under section 56(2) of the Migration Act 1958, or an invitation to comment on relevant information under section 57(2).

Section 58 requires the invitation to specify whether the information or comments may be given in writing, at an interview or by telephone. For an applicant in the community, the interview must be scheduled for a time within a period prescribed by the Migration Regulations 1994, counted from when the applicant is taken to have received the invitation. The officer may allow more time but is not obliged to.

The guidelines describe three methods: video conference, telephone and in person. The Department states that it conducts most protection visa interviews by video conference, and will send instructions on joining. If the interview is in person, the letter gives the office details. The officer chooses the method having regard to matters such as health and safety, the applicant's circumstances, and the method most likely to allow the applicant to speak freely about sensitive matters.

An applicant who cannot attend on the date offered must tell the Department as soon as possible and explain why. The Department states that applicants must make every reasonable effort to attend, and that it may consider whether the interview can be rescheduled.

How Long Does a Protection Visa 866 Interview Take?

There is no fixed length for a Protection Visa 866 interview. The time depends on the number and complexity of the claims, the number of family members with their own claims, and whether an interpreter is used. Interpretation adds considerably to the time, because every question and every answer is said twice.

The practical advice is to keep the whole of the scheduled day free. An applicant who is worried about getting back to work or collecting children tends to shorten answers, and short answers are the most common weakness at a Protection Visa 866 interview. Where a claim is complex, the officer may not finish in one sitting and may arrange a further interview or seek written answers to the remaining questions.

Before the Protection Visa 866 Interview: What to Lodge and What to Bring

Anything the applicant wants considered at the Protection Visa 866 interview should be lodged well before it. The Department asks for further information to be submitted through ImmiAccount a set number of working days before the interview, as stated in its guidance. It will still consider information lodged later, but the officer may need more time, the interview may not proceed as planned, and the officer may instead seek more information in writing.

That makes timing a strategic question for the Protection Visa 866 interview. A statement correcting an error, a further account of an event, or a document obtained since lodgement should reach the officer in time to be read. Material handed over on the day may not be read with care before the questions begin. Our article on evidence in a protection visa application explains what kinds of material tend to help.

The Department lists what to bring to the Protection Visa 866 interview:

• The request to attend interview letter, if the interview is at a departmental office.
• All original identity documents, which may include a passport, national identity card, birth certificate and driver's licence.
• Any other proof supporting the protection claims.
• English translations of all documents, by a translator accredited by the National Accreditation Authority for Translators and Interpreters.
• A religious book, if the applicant intends to make an oath rather than an affirmation.

The Department also asks applicants to arrange childcare so they can speak with the officer without interruption.

Who Attends the Protection Visa 866 Interview

The officer, the applicant and, where needed, an interpreter attend every Protection Visa 866 interview. A migration agent or lawyer representing the applicant may also attend, and a support person may be permitted.

The interpreter

The Department provides an interpreter if one is needed. The Department states that the interpreter must not disclose anything heard in the interview, can only assist with interpretation, and is not involved in the decision. The guidelines describe the interpreter's code of ethics as requiring confidentiality and impartiality. Applicants sometimes fear an interpreter from their own community. That fear should be raised. The guidelines state that where an applicant makes a request about the gender of the interpreter, every effort should be made to meet it.

The language and dialect matter. Question 27 of Form 866 asks which language and dialect the applicant needs. If the interpreter does not speak the applicant's dialect, or the applicant cannot follow the interpreter, the applicant should say so at once, on the record.

The representative

A lawyer or registered migration agent appointed on Form 956 may attend. The representative's role is to ensure the process is fair, to clarify misunderstandings, and to make submissions, usually at the end of the interview or in writing afterwards. The applicant gives the evidence.

A support person

An applicant may be able to bring a support person, such as a friend or relative. The Department states that permission must be sought from the officer named on the invitation in advance, and the support person must bring photographic identification. The guidelines note that an applicant may prefer the support person to wait outside when sensitive matters are discussed.

Family members

Where family members are included in one application, the officer may interview them together or separately. The guidelines state that a separate interview may be needed where a family member has sensitive claims, including claims relating to gender or sexual orientation, and recognise that women in a family application may have their own claims. Our LGBTI protection visa page discusses sensitive claims.

Protection Visa 866 Interviews for Sensitive Claims

The Department's guidelines contain specific guidance for Protection Visa 866 interviews involving gender-based claims or claims based on sexual orientation or gender identity. Applicants with those claims are entitled to expect that guidance to be followed.

The guidelines recognise that a female applicant may be reluctant to discuss gender-related claims in front of male strangers or family members, and that a female officer and female interpreter can help. They direct officers to build rapport, to assure the applicant of confidentiality, to begin with questions not directly about sexual orientation or gender identity, and not to rush the applicant. They state that it is not appropriate for officers to ask applicants for details of their intimate sexual activity. They encourage open questions about the applicant's experiences of difference, concealment, family and community, rather than questions designed to catch the applicant out.

Applicants with sensitive claims should raise any arrangements they need before the interview, in writing. That includes a request about the gender of the officer or interpreter, a request for a separate interview from other family members, and a separate address for correspondence where the claims have not been disclosed to family. Our guide to LGBTI protection visas in Australia and our page on religious persecution discuss how those claims are assessed.

Video Interviews: Practical Arrangements

Because most Protection Visa 866 interviews are held by video conference, the practical arrangements deserve attention. The applicant should join from a quiet, private room with a reliable connection, with original identity documents and supporting documents within reach.

No one else should be in the room unless the officer has agreed. Where a representative or support person attends, the officer may arrange for them to join in the same way or by a different method. When the applicant shows a document to the camera, the guidelines direct the officer to describe it for the recording and to ask for an electronic copy after the interview. The applicant should therefore have clear scans ready to send.

If the connection fails, the applicant should reconnect at once, or contact the officer using the details in the invitation. The guidelines require officers to restart a recording that fails and to confirm the key points discussed, so a technical failure should not cost the applicant their evidence.

What Happens on the Day of the Protection Visa 866 Interview

The Protection Visa 866 interview follows a broadly consistent structure, and knowing it in advance removes much of the anxiety. The applicant should be ready before the scheduled start. The Department states that it will give the applicant information explaining Australia's protection obligations.

Recording and consent

The Department states that interviews are audio recorded and that the officer will ask permission to record. The guidelines require officers to explain why the interview is recorded and to check the recording works. If the applicant does not consent, the officer takes detailed notes and the refusal is documented. Recording protects the applicant, because it creates an accurate record of what was actually said.

The oath or affirmation

The officer will ask the applicant to make an oath or affirmation that the information provided is true. This is done under section 91V of the Migration Act 1958. The guidelines state that an oath and an affirmation have equal force, and that no inference should be drawn from choosing an affirmation. If an applicant refuses a section 91V request, an adverse inference about credibility can be drawn only if the applicant was warned of that consequence.

Identity and documents

The officer will check the applicant's documents, including evidence of identity, nationality and citizenship. For the audio record, the guidelines require the officer to describe any document or image produced, such as a scar shown or a place identified on a map. Documents without a translation may be accepted, and the officer may set a time for a certified translation.

The questions

Officers usually begin with biographical questions and move to the claims. The Department's guidance says the officer may ask about the applicant's situation and reasons for applying, their family, and the information in the application. The Department also states that at the interview the applicant can change any information given before, and must give clear and complete answers and explain all the reasons for seeking protection.

Breaks and distress

The applicant may ask for a break. The guidelines state that if the applicant is too distressed to continue, the officer may end the interview and either reschedule it or invite written answers instead.

Adverse Information at the Protection Visa 866 Interview

If the officer holds information that may lead to refusal, the Protection Visa 866 interview is often where it is first raised. Section 57 of the Migration Act 1958 requires the Department to give the applicant particulars of relevant information, meaning information that would be the reason, or part of the reason, for refusal, that is specifically about the applicant, and that the applicant did not give for the purpose of the application. The applicant must be invited to comment on it.

That information may be an inconsistency with an earlier visa application, a travel movement record, a document the Department believes is not genuine, or information from another person. The guidelines state that significant inconsistencies giving rise to credibility concerns should be put to the applicant for comment.

An applicant who is confronted with adverse information should answer truthfully and, if they need time, ask for it. It is often better to give a short answer on the day and provide a full written response afterwards, with documents, than to guess. A representative can ask the officer to confirm the information in writing and to allow time for a response. Our article on responding to a section 56 request explains how written responses are prepared.

After the Protection Visa 866 Interview

A decision can be made at any time after the Protection Visa 866 interview, on the information already held. The guidelines direct officers to tell the applicant this at the interview, and to explain that a different officer may make the decision and that a further interview may not be needed.

The applicant may still provide further information after the interview. The guidelines state that if further relevant information is provided before the decision, the officer must have regard to it, whether or not it was requested and whether or not any time limit has passed. If the applicant asks for time to provide something, the officer may set a period and agree not to decide until it ends.

A post-interview submission is often the most valuable document in the case. It can correct misunderstandings that arose through interpretation, supply documents mentioned at interview, respond fully to adverse information, and address the legal issues the officer's questions revealed. It should be prepared promptly.

The Department notifies the decision in writing. If the visa is refused, the letter explains the reasons, the right to review by the Administrative Review Tribunal and the time limit, which is short and strictly applied. Our pages on protection visa refusals and on the protection visa ART hearing explain that stage.

Missing a Protection Visa 866 Interview

Failing to attend a Protection Visa 866 interview allows the Department to decide the application on the information it already holds. The Department states this directly.

The guidelines add some protection for applicants. They say that non-attendance is not in itself a reason to refuse, but that the officer may decline to accept claims in the absence of information that could have been given at interview. As a matter of policy, the guidelines recommend waiting a short period after the missed interview before deciding, to allow the applicant to explain an accident or emergency. An applicant who misses an interview for any reason should contact the Department immediately, explain why in writing, and ask for the interview to be rescheduled.

Common Mistakes at the Protection Visa 866 Interview

Most problems at a Protection Visa 866 interview come from a small number of avoidable mistakes.

• Memorised answers. An account recited word for word sounds rehearsed and breaks down under follow-up questions. The applicant should know their own history, not a script.
• Guessing. An applicant who does not know or cannot remember should say so. A guessed date that conflicts with the written application creates an inconsistency that did not need to exist.
• Not correcting the interpreter. If an answer has been interpreted wrongly, or the applicant did not understand a question, it must be raised immediately so that it is on the recording.
• Minimising adverse facts. Return travel, a delay in applying, or an earlier visa application with different information will usually be raised. The truthful explanation should be given plainly.
• Raising a new claim without explanation. A claim mentioned for the first time at the Protection Visa 866 interview will be tested for why it was not raised earlier. Our article on whether delaying a Subclass 866 application affects your claim explains how late information is assessed.

How My Migration Lawyers Prepares Clients for the Protection Visa 866 Interview

My Migration Lawyers prepares clients for the Protection Visa 866 interview as a core part of every protection matter, not as an optional extra. The firm acts in many Subclass 866 matters and regularly handles complex cases, including interviews where inconsistencies with earlier visa applications must be addressed, claims involving sexual orientation or gender that need sensitive handling, and cases where the Department holds adverse information.

The firm's work around the interview usually covers:

• Reviewing the whole file. The application, statement of claims, Form 80 if lodged, earlier visa applications and country information are reviewed so that likely lines of questioning are identified.
• Pre-interview submissions. Corrections, further evidence and legal submissions are lodged in time to be read.
• Preparing the client for the process. The client is taken through how the interview is conducted, the recording, the oath or affirmation, the interpreter and how to ask for a break or clarification. The firm does not script answers. The evidence is the client's own.
• Attending the interview. Where appropriate, the lawyer attends, monitors fairness and interpretation, and makes closing submissions.
• Post-interview submissions. Adverse information is answered in writing, and any misunderstanding is corrected before the decision is made.

The firm's protection practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so clients anywhere in Australia are assisted in the same way. Our protection visa interview page and our protection visa lawyers page explain how the firm acts.

If a Protection Visa 866 interview invitation has arrived, or is expected, book a consultation with My Migration Lawyers now, or call 1300 040 300.