Protection Visa Credibility Assessment

Protection Visa Credibility Assessment is where most Subclass 866 claims are won or lost. The legal test for protection matters, but the Department cannot apply it until it decides what actually happened. That decision is a finding about credibility. If the Department does not believe the applicant, it never reaches the question of whether the applicant would be harmed.

Many applicants assume that because their story is true, it will be believed. That is not how a Protection Visa Credibility Assessment works. The Department tests the account against every record it holds, and against what it knows about the country. True accounts are refused when they are told inconsistently, vaguely or without explanation. This article explains how credibility is assessed, what the Department looks for, what it is not allowed to do, and how to prepare an account so that the truth is accepted.

What is a Protection Visa Credibility Assessment?

A Protection Visa Credibility Assessment is the Department's evaluation of whether the applicant's claims, and the applicant, can be believed. The Department's processing guidelines describe it as considering the claims in light of the supporting documents, other evidence and country information, and deciding how much weight to give each piece of evidence before deciding whether to accept the claims.

The starting point is section 5AAA of the Migration Act. It places on the applicant the responsibility to specify all particulars of their claim to be a person to whom Australia has protection obligations, and to provide sufficient evidence to establish that claim. The Department does not have to build the case for the applicant.

However, the guidelines are equally clear on two points that are often misunderstood:

• There is no legal requirement to test credibility. An officer may accept claims at face value. If credibility is not tested, the claims are treated as accepted for the purposes of the assessment.
• Independent evidence is not required. The guidelines state that there is no requirement for a claim to be supported by independent evidence before it can be accepted.

The Protection Visa Credibility Assessment therefore turns mainly on the quality of the applicant's own account. The guide to evidence in a protection visa application explains the other types of evidence that can support that account.

Why the Protection Visa Credibility Assessment decides so many refusals

The Protection Visa Credibility Assessment decides so many refusals because every other part of the test depends on the facts it accepts. If the Department does not accept that the applicant belongs to a political party, converted to a religion or was threatened by a particular group, the risk said to flow from those facts disappears.

The guidelines direct officers to focus on material facts. They give examples such as membership of a political party, religion or a particular social group, arrests and periods of detention, and episodes of violence by state or non-state actors. They also note that what is important to an applicant may not be material to the claim, and what is material may not seem important to the applicant.

That second point is critical. Applicants often spend a long time on the events that affected them most emotionally, and say little about the facts the decision maker must find. A strong account covers both.

The guidelines add one safeguard. Even if some or all of the claims are found not to be credible, the officer must still consider whether the applicant engages protection obligations on the facts that are accepted. A partial credibility finding does not end the assessment. The guide on protection visa eligibility explains the criteria that are then applied.

What the Department compares in a Protection Visa Credibility Assessment

In a Protection Visa Credibility Assessment, the Department compares everything it holds about the applicant. The guidelines refer to inconsistencies between the application and other information before the Department, including travel movement records, documentary evidence of identity and third-party statements.

In practice, the comparison usually includes:

• Earlier visa applications. Visitor, student, partner or other visa applications, including the reasons given for travel, employment history, family details and any declarations about past problems at home.
• Travel and movement records. When the applicant left and returned to their country, and whether that is consistent with the claimed timeline of harm.
• The protection application and statement of claims. The written account lodged with the Form 866 application.
• The interview. The applicant's oral evidence, which is recorded and compared with the written account.
• Documents. Identity documents, supporting documents and any material from third parties.
• Information shared by other countries. The Department's guidelines describe the Migration 5 data sharing protocol, under which the fingerprints of protection visa applicants can be checked against the immigration records of Canada, New Zealand, the United Kingdom and the United States.

An applicant who once applied for a visa elsewhere, or who made statements in an earlier Australian application, should assume those records will be checked. Records of family members can also matter. If a spouse, parent or sibling has made their own application, the details they gave about the family, dates and events may be compared with the applicant's account. The guide to Form 866 explains the questions in the application that are most often compared with earlier records.

The factors in a Protection Visa Credibility Assessment

The Department's guidelines set out the main factors in a Protection Visa Credibility Assessment. Each comes with limits on how it may be used. Knowing those limits is as important as knowing the factors.

Inconsistencies, contradictions and omissions

Inconsistencies are the most common basis for adverse findings. The guidelines direct officers to decide whether an inconsistency is serious enough to raise doubts about the claims. They also state that an inability to give a precisely accurate or consistent account of past events should not lead to automatic rejection. Applicants may forget dates, places and details because of trauma or the passage of time. The guidelines state expressly that officers must take care not to join a series of minor inconsistencies together in order to avoid accepting an applicant's claims.

The guidelines list questions officers should ask, including whether the inconsistency concerns material information, whether there are mitigating circumstances, and whether the applicant has been given an opportunity to respond.

Implausible, vague or incoherent claims

Claims may be doubted if they are implausible, vague or incoherent, or if they lack the detail or knowledge expected of a person in the applicant's claimed position. A person who claims to have been a party official should know how the party works. A person who claims to have been detained should be able to describe the detention.

The limit is that officers should not require an unrealistic degree of precision if that knowledge would not ordinarily be expected of a person in a similar position. The guidelines also state that it is not enough simply to label a claim implausible. The reasons must be explained and supported by evidence such as country information.

Demeanour

Demeanour may be taken into account, but only on objective grounds such as frankness, spontaneity and evasiveness, not on appearance or general mannerisms. The guidelines list many factors that affect demeanour, including interpreting, anxiety, trauma, disability, cultural background and discussion of intimate matters. They state that demeanour must not be the sole basis for an adverse credibility finding and, at best, should be only a minor factor.

Delay

Delay in applying, or in raising a claim, may be considered. The guidelines accept many legitimate reasons for delay, including changes in circumstances after arrival, being unaware of the right to seek protection, fear, and incorrect immigration advice. They state that delay should not be the only reason for rejecting a claim, and that the reasons for delay should be explored before it is relied on. The guide on delay in a Subclass 866 application explains this in detail.

Mitigating circumstances

The guidelines require officers to consider mitigating circumstances before drawing adverse conclusions. They include mental or emotional trauma, forgetfulness, differences in perception between witnesses, and feelings of shame, fear or mistrust of authorities. They specifically recognise that claims of gender-based persecution, particularly of a sexual nature, may give rise to painful memories, shame and embarrassment that affect recall. Special allowances are required for minors.

The benefit of the doubt in a Protection Visa Credibility Assessment

The benefit of the doubt is available in a Protection Visa Credibility Assessment, but only to an applicant who is found to be generally credible. The guidelines state that officers are not required to accept claims uncritically, and that an applicant is not entitled to have claims accepted simply because they could possibly be true. At the same time, officers must be sensitive to the difficulties applicants face in obtaining evidence.

The guidelines set out the conditions under which the benefit of the doubt may be given. In summary, the applicant must have made a genuine effort to substantiate the claims, lodged the evidence available or explained its absence, presented claims that are coherent, plausible and consistent with country information, and given a satisfactory explanation for any concerns raised. There must also be no objective evidence discounting the claims.

This is why preparation matters. Every one of those conditions can be addressed before lodgement.

How to prepare for a Protection Visa Credibility Assessment

Preparing for a Protection Visa Credibility Assessment means making the account complete, consistent and explained before anyone tests it. It does not mean polishing a story. A prepared account is the applicant's own truthful account, organised so that the decision maker can follow it and check it.

Good preparation usually covers five things.

• The whole history. Every earlier visa application, every period overseas and every document the Department may already hold is identified first. The account is then written with that history in view.
• The material facts. The account deals directly with the facts the decision maker must find: who the applicant is, what happened, who is responsible, why it happened, what the applicant fears and why the authorities will not help.
• Detail where it exists. Names, places, approximate dates, descriptions and sequence are included where the applicant knows them. Where the applicant does not know, the account says so.
• Explanations for problems. Delay, earlier statements that were incomplete, missing documents and any past inconsistency are explained openly, with the reason.
• Consistency across documents. The Form 866 answers, the statement, identity documents and supporting material are checked against each other before lodgement.

The guide to the protection visa statement of claims explains how the written account is structured, and the protection visa documents checklist lists the documents usually relied on. A Protection Visa Credibility Assessment is far easier to pass when the problems in the account have been dealt with by the applicant rather than discovered by the Department.

Documents and the Protection Visa Credibility Assessment

Documents can strengthen or destroy a Protection Visa Credibility Assessment. Genuine documents that are consistent with the account support it. A false document does the opposite.

The guidelines state that the use of a bogus document does not necessarily mean the applicant's claims are untrue, but it may be taken into account. They also state that a bogus document may lead to doubts about every other document the applicant has submitted or will submit, and that the officer should consider whether section 91WA requires refusal. Before finding that a document is bogus, the officer should obtain advice from the Department's document examiners and give the applicant an opportunity to comment.

Section 91V also allows an officer to ask the applicant to confirm information by oath or affirmation. An adverse inference may be drawn from a failure to comply only if the applicant was warned at the time of the request. The guidelines state that a protection visa must not be refused solely on the basis of a section 91V inference.

Procedural fairness in a Protection Visa Credibility Assessment

Procedural fairness protects applicants in a Protection Visa Credibility Assessment. Under section 57 of the Migration Act, information that would be the reason, or part of the reason, for refusal, and that is specifically about the applicant, must generally be given to the applicant for comment before the decision. Information the applicant gave for the purpose of the application is excluded from that requirement.

The guidelines state that significant inconsistencies between the protection application or interview and other information about the applicant should be put to the applicant under section 57. They also state that, even where there is no legal obligation, officers have a discretion under section 56 to seek further information to resolve credibility concerns.

A section 57 letter is one of the most important documents in a protection application. It tells the applicant exactly which information the Department may rely on. A response that explains each issue clearly, with evidence where possible, can change the outcome. A response that is late, incomplete or simply repeats the original claim usually does not. The guide to responding to a section 56 request explains how to respond to requests for further information.

Protection Visa Credibility Assessment at the interview

The interview is where the Protection Visa Credibility Assessment is usually decided. The officer asks the applicant to explain the claims in their own words, then tests the account with detailed questions. The answers are recorded and compared with the written statement and earlier records.

The most important rules for the interview are simple. Answer the question that is asked. Say when you do not know or do not remember, rather than guessing. Correct the interpreter immediately if you are misunderstood. Do not try to recite the statement from memory, because an account that sounds memorised can itself raise doubts. If the interpreter speaks a different dialect, or the applicant does not understand a question, the applicant should say so straight away, so that the problem is recorded. Problems raised only after a refusal are much harder to establish, because the recording will show that nothing was said at the time. The pages on the protection visa interview and protection visa interview questions explain how to prepare.

Protection Visa Credibility Assessment at the Tribunal

If the visa is refused, the Protection Visa Credibility Assessment is made again by the Administrative Review Tribunal. The Tribunal is not bound by the delegate's credibility findings. It considers the matter afresh, hears the applicant, and can take new evidence into account. The time limit to apply for review is short and strictly applied from the date of notification.

The Tribunal has the Department's file, including the application, the interview recording and the refusal decision. New evidence is compared with what was said before. An applicant who changes the story at review, rather than explaining it, usually makes their position worse. The aim is to answer each adverse finding directly. The protection visa refusals page and the protection visa ART hearing guide explain how this is done.

Published Tribunal decisions show the range of approaches. In 1618576 (Refugee) \[2021\] AATA 1858, involving an applicant from Nigeria, credibility problems did not resolve the question of the applicant's future political risk. In 1926276 (Refugee) \[2022\] AATA 1746, involving an applicant from Iran, psychiatric illness was relevant to consistency and religious practice. In 1722231 (Refugee) \[2023\] AATA 4180, involving an applicant from Malaysia, a late disclosure was explained by fear of community exposure. Each matter was remitted to the Department for reconsideration. A remittal is not itself a visa grant, and these decisions are cited as published examples only.

Common mistakes in a Protection Visa Credibility Assessment

The most damaging mistakes in a Protection Visa Credibility Assessment are usually made before the interview, often with good intentions.

• Using a template or a borrowed story. Statements prepared by unqualified advisers sometimes follow a pattern that decision makers recognise, or contain events that did not happen to the applicant. In 1810702 (Refugee) \[2024\] AATA 1243, a published decision involving an applicant from China, fabricated allegations prepared by an agent were withdrawn and the genuine claims were considered. The matter was remitted. False material of this kind is a serious risk to any claim, even when the genuine claims are later considered.
• Exaggerating. Adding events to make a claim sound stronger is the fastest way to lose the parts that are true.
• Ignoring earlier applications. A statement that contradicts an earlier visa application, without explanation, invites an adverse finding.
• Guessing. A confident answer that later proves wrong does more damage than an honest "I do not remember".
• Changing the account after refusal. At review, a new version of events is compared with the old one. Explanation helps. Replacement usually does not.

Each of these mistakes is avoidable. The guide to when you need a protection visa lawyer explains when legal help makes the most difference to a Protection Visa Credibility Assessment, and the Subclass 866 refusal ART guide explains what can be done after a refusal.

How My Migration Lawyers handles the Protection Visa Credibility Assessment

My Migration Lawyers prepares applicants for the Protection Visa Credibility Assessment from the first consultation. The firm deals with complex protection cases, acts in many Subclass 866 matters where credibility is the central issue, and is capable of handling them from lodgement through to review at the Administrative Review Tribunal.

The work usually involves:

• Obtaining the full history. The firm obtains the applicant's visa and immigration history itself, including earlier applications, so that differences can be identified and explained before the Department raises them.
• Presenting the applicant's own account. The account is taken in detail, with an interpreter where needed, and focused on the material facts. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Explaining gaps and inconsistencies. Missing documents, delay and past inconsistencies are explained honestly and specifically.
• Interview preparation. The applicant is prepared for the way questions are asked, without rehearsing answers.
• Section 57 responses. Adverse information is answered point by point, with evidence.
• Review. Where credibility findings led to refusal, each finding is analysed and answered at the Tribunal.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia.

If you are worried that the Department will not believe you, the answer is preparation, not a better story. Book a consultation with My Migration Lawyers online, or call 1300 040 300.