Protection Visa 866 Interview Questions

Protection Visa 866 Interview Questions: Why Every Question Has a Legal Purpose

Protection Visa 866 interview questions are not a general conversation about your life. Each question is designed to test a legal element that the officer must decide before a Subclass 866 Protection visa can be granted. If you understand which element a question is testing, you understand what a complete answer needs to cover.

The officer's task is set by the Migration Act 1958. The Department's processing guidelines contain tables that list the questions officers must consider for each section of the Act, and the findings those questions lead to. The Protection Visa 866 interview questions you hear at the interview are the spoken form of those tables.

This article takes the legal criteria one at a time and explains the Protection Visa 866 interview questions that test each of them. It is written for applicants who want to know not only what will be asked, but why. For the order in which questions are usually asked on the day, see our guide to protection visa interview questions and our page on the protection visa interview.

The Legal Tests Behind Protection Visa 866 Interview Questions

The officer must decide whether you meet the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa) of the Act. Protection Visa 866 interview questions are shaped by those two criteria and by the provisions that define them.

The refugee criterion depends on section 5H, which defines a refugee, and section 5J, which defines a well-founded fear of persecution. The guidelines describe three elements of a well-founded fear under section 5J(1): a subjective element, being whether you fear persecution for one of the five reasons; an objective element, being whether there is a real chance of persecution; and a relocation element, being whether the real chance relates to all areas of your country.

The complementary protection criterion requires substantial grounds for believing that, as a necessary and foreseeable consequence of your removal, there is a real risk that you will suffer significant harm. Significant harm is defined in section 36(2A). Section 36(2B) sets out situations where there is taken to be no real risk.

Two further provisions shape the questioning. Section 5AAA makes it your responsibility to specify all particulars of your claim and to provide sufficient evidence to establish it. Section 36(3) deals with protection available in another country. Each of these provisions produces its own set of Protection Visa 866 interview questions, as the sections below explain. Our page on the Subclass 866 Protection visa sets out the visa requirements in full.

Questions That Identify Your Receiving Country

The first legal question is which country you are seeking protection from. Your claims are assessed against your receiving country, which is your country of nationality or, if you are stateless, your country of former habitual residence.

Protection Visa 866 interview questions at this stage include:

• What is your nationality, and how did you obtain it?
• Do you hold, or are you entitled to, the nationality of any other country?
• Have you ever lived in another country, and on what basis?
• Were your parents or grandparents nationals of another country?

These questions are also linked to identity. Sections 91W and 91WA of the Act deal with evidence of identity, nationality and citizenship, and they can require refusal of the visa where evidence is refused, not provided or bogus without a reasonable explanation. The officer therefore examines your passport, national identity card and birth certificate against your answers. A person who claims one nationality but holds a document of another will be asked to explain it.

Questions That Test the Subjective Fear

The subjective element asks whether you actually fear persecution. Protection Visa 866 interview questions on this element are usually open and simple.

• What do you fear will happen to you if you return?
• Who do you fear?
• Why do you believe they would harm you now?

The officer is looking for a clear, personal statement of fear that is consistent with your written claims. A fear expressed only in general terms, such as fear of the situation in the country, may not engage the refugee test, although it can still be relevant to complementary protection.

Your conduct is also examined here. If you returned to your country after the events you describe, or delayed seeking protection for a long period, the officer may ask whether that conduct is consistent with a genuine fear. The guidelines list many legitimate reasons for delay and state that delay should not be the only reason for rejecting a claim. Our article on delay in lodging a Subclass 866 application explains how those questions are assessed.

Protection Visa 866 Interview Questions About Evidence and Consistency

Every legal element is decided on evidence, so many Protection Visa 866 interview questions test the evidence itself rather than a single criterion. Section 5AAA places the responsibility on you to specify all particulars of your claim and to provide sufficient evidence to establish it. The Department does not have to make your case for you.

Expect Protection Visa 866 interview questions such as:

• Who wrote this letter, and how do they know what they describe?
• Where did this document come from, and how was it sent to you?
• Why is this event not mentioned in your written statement?
• Your earlier visa application gave a different employment history. Which is correct?
• Is there anyone in Australia or overseas who can confirm what you have told me?

The officer compares four sources: your written statement, your oral evidence, your earlier dealings with the Department and independent country information. Differences between them are the most common basis for adverse credibility findings. The guidelines recognise that trauma, forgetfulness and differences in perception can explain inconsistencies, and they direct officers to give applicants the opportunity to comment on them. An explanation is only useful if you give it.

The strongest preparation for Protection Visa 866 interview questions about evidence is a complete and accurate statement lodged before the interview, supported by every document reasonably available to you. Our guides to the protection visa statement of claims and the protection visa documents checklist explain what should be in the file. Where a document cannot be obtained, the reason should be recorded in writing rather than left for the officer to discover.

Questions That Test a Real Chance of Persecution

The objective element asks whether there is a real chance that you will be persecuted if you return. A real chance is a substantial chance, as opposed to a remote or far-fetched possibility. It does not require a probability greater than fifty per cent.

Protection Visa 866 interview questions on this element test both your past experience and the present situation:

• What happened to you before you left, and when?
• Has anyone asked about you or threatened your family since you left?
• Are the people who harmed you still active, and still in the same position?
• Has anything changed in your country since you left?

Past harm is not required, but it is strong evidence that harm may happen again. The officer compares your answers with country information. Our guide to evidence in a protection visa application explains how corroborating material supports these answers.

Questions That Test the Reason for Persecution

Under section 5J(4)(a), one or more of the five reasons must be the essential and significant reason for the persecution. The five reasons are race, religion, nationality, membership of a particular social group and political opinion.

Protection Visa 866 interview questions on this element include:

• Why do you believe you were targeted?
• What did the people who harmed you say about why they were doing it?
• Were other people with the same religion, opinion or background treated the same way?
• Did the people you fear know about your political views, faith or identity, and how?

Where you rely on membership of a particular social group, sections 5K and 5L apply. The guidelines state that, if the group is not a family, the officer must decide whether the group has the listed characteristics, including a shared characteristic that is innate or immutable, or so fundamental to identity or conscience that a person should not be forced to renounce it. Expect questions that test how the group is recognised in your society. A reason can also be imputed, meaning that the persecutor believes you hold an opinion or belong to a group even if you do not. Our pages on religious persecution and the LGBTI protection visa explain two common categories.

Questions That Test Serious Harm and Systematic Conduct

Persecution must involve serious harm and systematic and discriminatory conduct under sections 5J(4)(b) and (c). Section 5J(5) gives a non-exhaustive list of serious harm. It includes a threat to life or liberty, significant physical harassment or ill-treatment, and significant economic hardship, denial of access to basic services or denial of capacity to earn a livelihood, where the hardship or denial threatens the capacity to subsist.

The guidelines explain that systematic and discriminatory conduct refers to selective harassment rather than, for example, random acts of violence. Protection Visa 866 interview questions therefore probe whether you were singled out:

• Was this directed at you personally, or did it happen to many people?
• How many times did it happen, and over what period?
• Did the harm stop you from working, studying or obtaining services?

The guidelines also recognise that serious mental harm, and several harmful acts that together amount to serious harm, can meet the test. Describe each incident, even if each one alone seems minor.

Questions That Test Relocation

Under section 5J(1)(c), the real chance of persecution must relate to all areas of your country. For complementary protection, section 36(2B)(a) provides that there is taken to be no real risk of significant harm if it would be reasonable for you to relocate to an area where there would not be a real risk.

Protection Visa 866 interview questions on relocation are often decisive:

• Could you live in the capital or another large city?
• Have you ever lived elsewhere in your country, and were you safe there?
• Could the people you fear find you in another region? How?
• Do you have family, work or support in any other part of the country?

The guidelines recognise that legal or socio-economic reasons and child-care responsibilities may prevent some women from living alone or travelling freely, which can make relocation unreasonable. They also direct caution where country conditions for particular groups have changed recently. Specific answers about the reach of the agent of harm, and about your personal circumstances, are more persuasive than general statements.

Questions That Test State Protection

Under section 5J(2), you do not have a well-founded fear if effective protection measures are available to you in your country. Section 5LA defines effective protection measures. For complementary protection, section 36(2B)(b) provides that there is no real risk if you could obtain protection from an authority of the country that removes the risk.

Protection Visa 866 interview questions on state protection include:

• Did you report what happened to the police or any other authority?
• What did they do? Do you have any record of the report?
• If you did not report it, why not?
• Is the person or group you fear connected to the government, police or military?

The guidelines state that the adequacy of state protection, and whether the state is reluctant to act or turns a blind eye to the harm, are key considerations in family violence claims. The same questions arise in many other claims. If you did not go to the police, explain why, for example because the police were involved, because others who reported were harmed, or because the law does not protect people in your situation.

Questions That Test Behaviour Modification

Section 5J(3) provides that you do not have a well-founded fear if you could take reasonable steps to modify your behaviour to avoid a real chance of persecution. The exceptions are important. You are not expected to modify behaviour if it would conflict with a characteristic fundamental to your identity or conscience, conceal an innate or immutable characteristic, or require any of the things listed in section 5J(3)(c).

Protection Visa 866 interview questions on this element include "How did you practise your faith before you left?", "Would you continue your political activity if you returned?" and "How would you live if you returned?" The honest answer to how you would live is evidence. The guidelines state that if an exception applies, you cannot be asked to modify your behaviour to avoid persecution.

Questions That Test Conduct in Australia

Section 5J(6) requires the officer, when deciding whether you have a well-founded fear of persecution, to disregard conduct you engaged in while in Australia unless you satisfy the Minister that you engaged in it otherwise than for the purpose of strengthening your claim to be a refugee. The guidelines state that such conduct may still be taken into account when assessing credibility.

Protection Visa 866 interview questions on this point are asked where your claim relies on something that happened after you arrived, such as a religious conversion, political activity, social media posts or living openly according to your sexual orientation or gender identity. Expect questions such as:

• When did this begin, and why?
• What did you do before you came to Australia in relation to this belief or identity?
• Who in your country knows about your activities here, and how?
• What would you do if you returned?

The guidelines also state that section 5J(6) is not relevant to complementary protection. The reaction in your home country to your activities in Australia, whatever the reason for them, cannot be disregarded in the complementary protection assessment. Our article on international students applying for a Subclass 866 Protection visa discusses claims that arise after arrival.

Questions That Test Complementary Protection

Complementary protection is assessed if the refugee test is not met. Protection Visa 866 interview questions for this test focus on the specific type of harm and whether you face it personally.

Section 36(2A) lists the forms of significant harm: arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Section 36(2B)(c) provides that there is no real risk if the risk is faced by the population of the country generally and not by you personally. Expect questions such as:

• What exactly do you fear will be done to you, and by whom?
• Why would you be at greater risk than other people in your country?
• Has this happened to anyone in a similar position to you?

Our page on complementary protection explains the test in more detail.

Questions About Other Countries, Character and Exclusion

Some Protection Visa 866 interview questions deal with matters that can prevent the grant of the visa even where protection obligations would otherwise be engaged.

Section 36(3) provides that Australia is taken not to have protection obligations to a person who has not taken all possible steps to use a right to enter and reside in another country, subject to the exceptions in sections 36(4), (5) and (5A). The guidelines state that officers should assess section 36(3) only after finding that protection obligations would otherwise be engaged. Questions about residence permits, dual nationality and long stays in third countries are asked for this reason.

Questions about military service, criminal history and membership of organisations relate to the exclusion and ineligibility provisions, including sections 5H(2), 36(1C) and 36(2C). The Department's guidance treats these provisions as ones to be applied carefully. Answer these questions fully and truthfully. Concealment causes far more damage than disclosure.

What the Officer Does With Your Answers

The officer records findings on each legal element, based on your answers, your documents and country information. The guidelines state that there is no requirement for a claim to be supported by independent evidence before it can be accepted. Where an applicant has made a genuine effort to substantiate the claims, the account is coherent and plausible and nothing discounts it, the officer may give the applicant the benefit of the doubt.

Before refusing, the officer must give you relevant information for comment under section 57 of the Act. Relevant information is information that would be the reason, or part of the reason, for refusal, that is specifically about you or another person, and that you did not give for the purpose of the application. That is why Protection Visa 866 interview questions often end with the officer putting concerns directly to you.

If the visa is refused, the reasons will usually track the same elements. Our pages on protection visa refusals and on appealing a protection visa refusal to the ART explain the review process, which is subject to a short and strictly applied time limit.

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

My Migration Lawyers acts in many Subclass 866 Protection visa matters and prepares clients for the Protection Visa 866 interview questions that test each legal criterion. The firm deals with complex cases, including claims that depend on relocation or state protection arguments, claims that arose after arrival in Australia, and applicants with character or identity issues.

The firm's preparation for Protection Visa 866 interview questions follows the law:

• Mapping the claims to the criteria. Each claim is assessed against section 5J, section 36(2A) and section 36(2B), so that you understand which element each question tests.
• Identifying the weak points. Relocation, state protection, delay and conduct in Australia are identified early and addressed in written submissions and country information before the interview.
• Explaining the questioning. You are taken through the Protection Visa 866 interview questions that are likely in your case and the purpose of each, so that your answers are complete. Your account remains your own evidence, and you decide which claims are advanced.
• Attending and following up. Your lawyer can attend the interview, make submissions at its end and respond to any section 57 invitation.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so clients across Australia can obtain advice before their interview. Our protection visa lawyers page explains how the firm acts in these matters. If you have been invited to an interview, book a consultation with My Migration Lawyers, or call 1300 040 300.