Protection Visa Interview: How to Prepare and When to Hire a Lawyer

How do you prepare for a protection visa interview?

Preparation for a protection visa interview means mastering the application that has already been lodged, not rehearsing a new account of events. The delegate deciding a Subclass 866 protection visa application works from the written statement of claims, the application forms, the documents on the file, and every account the applicant has previously given to the Department. The interview tests whether the person in the room can explain that material, in their own words, under questioning.

That single point changes what useful preparation looks like. It is not a memory exercise and it is not a performance. It is a disciplined review of the applicant's own file, done far enough in advance that problems can be fixed rather than merely noticed.

Preparation that works follows a settled sequence.

• Read the statement of claims again, slowly, and in the applicant's own language where that is easier. Every date, place, name and event in that statement is a question the delegate is entitled to ask.
• List every other account the applicant has given. This includes any entry interview conducted on arrival in Australia, earlier visa applications, and statements made in a family member's application.
• Identify where those accounts differ from the current claims, and work out the honest explanation for each difference.
• Collect the original identity documents. The Department asks applicants to bring originals to the interview, which may include a passport, national identity card, birth certificate or driver licence.
• Arrange English translations. The Department requires translations certified by a translator accredited by the National Accreditation Authority for Translators and Interpreters.
• Provide new documents well ahead of the interview date. Material given to the Department at the last moment may not be considered in time, and the officer may postpone the interview and ask for the information in writing instead.

Two further parts of preparation are commonly missed. The first is the interpreter. The Department provides an interpreter where one is needed, and any request about the interpreter's gender should be made in advance, because departmental policy is that every effort is made to meet such a request. Dialect matters as much as language, and the request should name it.

The second is what the applicant intends to say about gaps in memory. Almost every genuine claim contains a date that cannot be fixed, a name that has been forgotten, or a sequence of events that has become confused. Departmental policy accepts that this happens, for reasons explained below. What causes real difficulty is not the gap itself. It is an attempt to fill the gap with an answer that later turns out to be wrong.

A fuller description of how the day is structured is set out on the My Migration Lawyers page on the protection visa interview.

Why does the Department interview protection visa applicants?

The Department interviews a protection visa applicant when the delegate needs further information about the claims, or needs the applicant's comment on information that would be a reason for refusing the application. Both situations are governed by the Migration Act 1958. An invitation to give additional information is made under section 56(2). An invitation to comment on relevant information is made under section 57(2).

The difference between the two matters, and establishing which one has been issued is the first task when an interview letter arrives.

"Relevant information" has a defined meaning in section 57(1). It is information that the officer considers would be the reason, or part of the reason, for refusing to grant the visa; that is specifically about the applicant or another person rather than about a class of persons; and that was not given by the applicant for the purpose of the application. In plain terms, where the invitation is issued under section 57, the Department already holds something that points towards refusal, and the interview is the applicant's opportunity to answer it.

Section 58 governs the form of the invitation. Under section 58(1) the invitation must specify whether the response is to be given in writing, at an interview, or by telephone. Under section 58(3), an invitation to respond at an interview must also state the date, time and place. Interviews for applicants in Australia must be scheduled within a period prescribed by subregulation 2.15(3) of the Migration Regulations 1994. That period runs from the day the applicant is taken to have received the invitation under section 494C of the Migration Act, not from the day they actually read it. The period is short, and it is shorter again for an applicant in immigration detention.

More time may be allowed, but it is not guaranteed. Section 58(5) permits an officer to give an applicant additional time to respond to an invitation to attend an interview. It does not oblige the officer to do so, and a request for more time should be made in writing, with reasons, as soon as the conflict is known.

One misconception should be dealt with plainly. An invitation to interview is not a signal that an application is failing, and the absence of an interview is not a signal that it is succeeding. Departmental policy lists several reasons for choosing an interview over a written request, including that an interview is the most efficient way of obtaining the information, that the credibility of claims which country information suggests may succeed cannot be tested in writing, and that the officer wishes to observe how the applicant responds to questions. The decision to interview is not an indication of the outcome.

What happens on the day of a protection visa interview?

A protection visa interview is conducted by a departmental officer, is audio-recorded with the applicant's consent, and moves through identity, background, and then each protection claim in turn. Interviews may be held in person at a departmental office, by video conference, or by telephone.

Recording is the default position. Departmental policy requires all interviews to be audio-recorded, provided the officer first obtains the applicant's consent, and the officer must explain why the interview is being recorded. Where consent is refused, the officer takes comprehensive written notes instead and asks the applicant to sign a pro forma recording that refusal. Consent is usually in the applicant's interests. A recording is a complete account of what was asked and what was answered, which matters a great deal if the decision is later reviewed.

Other people may attend. A migration agent or legal representative may attend with the applicant. An interpreter is provided where one is needed, is bound by confidentiality, and takes no part in the decision. A support person such as a friend or relative may attend with permission, which must be sought in advance, and that person should bring photographic identification. Joint applicants and family members may be interviewed separately, because a dependent applicant may hold protection claims of their own that have never been written down.

The officer may ask the applicant to make an oath or affirmation under section 91V(1) of the Migration Act, confirming that the information given in connection with the application is true. An applicant who intends to make an oath should bring their religious book. An affirmation has equal force, and departmental policy is that no inference is to be drawn from the choice of an affirmation. If an applicant refuses the request, an inference unfavourable to their credibility may be drawn only where they were warned of that consequence at the time the request was made.

Finally, the interview does not close the evidence. Under section 55 of the Migration Act an applicant may give the officer additional relevant information at any time before a decision is made, including during the interview itself, and the officer must have regard to it. That provision is one of the most useful tools available to protection visa lawyers, and it is examined further below.

Credibility, consistency and identity: what the delegate is assessing

The delegate assesses three separate things: whether the claims are credible, whether the account is consistent with the rest of the material on the file, and whether the applicant's identity, nationality or citizenship is supported by genuine documents. Preparation that deals with only one of the three is incomplete.

Credibility rests on a statutory foundation that applicants are rarely told about. Section 5AAA of the Migration Act provides that it is the responsibility of a protection visa applicant to specify all particulars of their claim and to provide sufficient evidence to establish it. It also provides that the officer has no responsibility or obligation to specify, or assist in specifying, any particular of the claim, or to establish or assist in establishing the claim. The delegate is not there to draw the case out of the applicant. That task belongs to the applicant, and it is the main reason an unprepared interview goes badly.

There is no legal requirement for a delegate to test credibility at all. Departmental policy is that an officer may test the credibility of the claims, or of the applicant, where the officer considers it necessary in the circumstances of the case. Where credibility is not tested, the claims are taken at face value for the purpose of assessing them against the refugee criterion in section 36(2)(a) and the complementary protection criterion in section 36(2)(aa).

Where credibility is tested, the limits on the delegate are worth knowing, because they are frequently misstated. Departmental policy provides that an applicant's demeanour at interview may be taken into account, but that demeanour must not be the sole basis for an adverse credibility finding and, at best, should be only a minor factor in the overall assessment of the evidence. Policy also directs officers to consider what may be affecting demeanour, including the difficulty of giving evidence orally through an interpreter, anxiety or bewilderment caused by the interview itself and by the significance of the outcome, the effect of past torture or other trauma, the effect of a disability or of mental health issues, the effect of detention, embarrassment when discussing personal matters such as sexual orientation, and the applicant's educational, social and cultural background.

The same restraint applies to detail. Policy directs that officers should not require an unrealistic degree of precision from an applicant if that level of knowledge would not ordinarily be expected of a person in a similar position, and that it is not enough to find a claim implausible, vague or incoherent without explaining why and without supporting the finding by reference to evidence such as country information. An applicant who cannot recall a date is not, on that basis alone, an applicant who has not been believed.

None of this means the interview is a low-stakes conversation. It means the pressure points are known in advance, which is precisely why they can be prepared for.

How should inconsistencies in earlier accounts be handled?

Inconsistencies should be identified before the interview and explained during it, because a significant inconsistency that is left unexplained is one of the most common routes to a refusal. An inconsistency should never be discovered by the applicant for the first time when a delegate reads it back to them.

Inconsistencies come from predictable places. An entry interview conducted at an airport or seaport, where an officer records the reasons a person gives for leaving their home country and for being unwilling to return, is the most common. Earlier visa applications are the next, particularly where a visitor or student visa application described a different reason for coming to Australia. Travel movement records, identity documents and statements made in a family member's application account for most of the rest.

Departmental policy on this is more balanced than applicants expect. An inability to give a precisely accurate or consistent account of past events should not lead to automatic non-acceptance of a claim, and officers are directed to take care not to join a series of minor inconsistencies together in order to avoid accepting an applicant's claims. Where significant inconsistencies do give rise to credibility concerns, the applicant should be invited to explain or comment on them under section 57 of the Migration Act.

Policy also recognises mitigating circumstances, and names several. Traumatic experiences, including torture, may affect an applicant's demeanour, the timing of their application, their compliance with immigration law, and the consistency of their statements since arriving in Australia. Forgetfulness is expressly recognised: an applicant may be unable to reconstruct a chronology, and may remember the events that affected them most without being able to place them in the order in which they happened. Where two applicants give differing accounts of the same event, policy treats that as a possible difference in perception and requires the applicant to be given an opportunity to comment on the difference.

Delay is treated the same way. A delay in lodging the protection visa application, or in producing evidence, must be explored with the applicant before it is held against them, and policy provides that a delay should not be the only reason for rejecting a claim or a piece of evidence.

None of this is self-executing. A mitigating circumstance has to be raised, and raised with something behind it. An explanation that the applicant said something different on arrival because they had been told to, or because they were frightened of being returned immediately, is capable of being accepted. It is far more likely to be accepted where it is put in an orderly way, at the right time, and supported where relevant by medical or psychological evidence obtained before the interview rather than after the refusal.

Can a protection visa be refused because of identity documents alone?

Yes. Sections 91W and 91WA of the Migration Act operate separately from the assessment of the protection claim, and either can prevent the grant of a Subclass 866 protection visa even where the fear of harm is accepted.

Section 91W(1) allows the Minister or an officer to request, either orally or in writing, that a protection visa applicant produce documentary evidence of their identity, nationality or citizenship for inspection. The notice must warn the applicant that the visa cannot be granted if they refuse or fail to comply with the request, or if they produce a bogus document in response to it, and the applicant must be given a reasonable period in which to respond. Where the applicant refuses or fails to comply, or produces a bogus document, and does not have a reasonable explanation, section 91W(2) prevents the grant of the visa.

Section 91WA covers the related situation where a bogus document was provided as part of, or in connection with, the protection visa application itself, or where the applicant has destroyed or disposed of documentary evidence of their identity, nationality or citizenship. The questions are again whether there is a reasonable explanation, and whether the applicant has provided documentary evidence of identity or taken reasonable steps to do so.

Several practical points follow. A request may be satisfied by documents the officer did not expect, including Australian documents such as a driver licence. Documents produced for inspection may be retained temporarily so that a document examiner can inspect them, and a document found to be bogus is forfeited to the Commonwealth and may be seized. Before the Department relies on an assessment that a document is not genuine, that information must be put to the applicant for comment under section 57, and departmental policy requires the section 57 letter to be sent separately from, and before, any notice under section 91W or 91WA. Those letters arriving in sequence is not an accident, and each one is an opportunity that closes.

The protection claims are assessed either way. Departmental policy records that Australia's non-refoulement obligations are absolute, so an applicant's claims must still be considered, and the findings explained, even where the grant of the visa is prevented on identity grounds. A refusal on this basis carries the same merits review rights as any other refusal.

What happens if an applicant cannot attend the interview?

An applicant who cannot attend should contact the Department before the scheduled time and ask for the interview to be rescheduled, because non-attendance allows the delegate to decide the application on the material already held. Section 58(5) permits an officer to allow additional time or to reschedule an interview. It does not require the officer to do either.

Non-attendance is not, in itself, a reason to refuse a protection visa. Departmental policy is that where an applicant fails to attend, the officer may proceed to a decision on the information before them once the time for giving the information or comment has passed and a further short period allowed as a matter of policy has elapsed. That additional period exists so that an applicant who missed the interview because of an accident or an emergency has a chance to explain. The real risk is different from refusal for non-attendance: the officer may decline to accept claims that the interview would have been the opportunity to explain.

The position after the interview is more generous than most applicants realise. Where information relevant to the application is provided after the interview but before the decision is made, the officer must have regard to it, whether or not it was invited and whether or not a timeframe for responding has expired. An applicant who realises on the way home that an answer was wrong, or who later obtains a document that supports a claim, still has a route to put that material before the delegate. Applicants should also understand that a different officer may make the decision, and that a further interview will not necessarily be offered before it is made.

When should an applicant hire a lawyer for a protection visa interview?

A lawyer should be engaged before the interview rather than after the decision, and there are four situations in which an applicant should not attend alone.

The first is an invitation issued under section 57, or any letter that puts adverse information to the applicant. In that situation the Department already holds material that would be the reason, or part of the reason, for refusing the application. What is said in response at the interview, and what is left unsaid, will appear in the decision record and will be read again by the Administrative Review Tribunal if the matter goes that far.

The second is any conflict between the current claims and an earlier account. Where an entry interview, an earlier visa application or a family member's application says something different, the explanation needs to be identified, prepared, and where possible supported, before the day rather than improvised in the room.

The third is a question about identity or documents. A request under section 91W, a suggestion that a document is not genuine, or the absence of original identity documents engages a refusal pathway that runs separately from the protection claim and has its own procedural steps and its own deadlines.

The fourth is a claim that turns on a legal test rather than on the facts. Whether a group is a particular social group, whether relocation within the receiving country is reasonable, whether effective state protection is available, and whether the exceptions in section 36(2B) defeat a complementary protection claim are legal questions. They are answered in submissions and country information, not in the applicant's evidence about what happened to them.

The limits should be stated honestly. A representative may attend a protection visa interview, but the evidence must be the applicant's own. A lawyer cannot answer the delegate's questions for the applicant and cannot supply an account the applicant does not hold. The value of representation lies in the work done before the interview, and in what is put to the delegate in writing around it.

How My Migration Lawyers prepares a client for a protection visa interview

My Migration Lawyers prepares a client for a protection visa interview by working from the same file the delegate is working from, identifying the issues likely to be tested, and making sure the client's own account and evidence are before the delegate in the form the law requires.

The work runs in a set order. The firm obtains and reads the lodged application, the statement of claims and the documents on the file, together with any earlier accounts given to the Department. The interview invitation is then read closely to establish whether it was issued under section 56 or section 57 and, if under section 57, exactly what information has been put and what it is said to show. That single question determines how the interview should be approached.

The client's statement is reviewed with the client. Where it is incomplete or unclear, the client corrects it. The statement remains the client's own evidence, read back to them and approved by them, and the client decides which claims are advanced. The firm's task is to make sure that what the client says is actually before the delegate, in an order the delegate can follow, and supported by the documents and country information that bear on it.

Before the interview, the firm explains how the interview is conducted, what the delegate is entitled to ask, which parts of the claim are most likely to be tested, and how to deal with a question where the honest answer is that the client does not remember. Translations are arranged where documents are not in English. Where the claim rests on a legal test, written submissions are prepared that address the test and the country information relevant to it.

Weiwei Zhang, Principal Lawyer at My Migration Lawyers, attends the interview as the client's representative. After the interview, further evidence and submissions can still be put to the delegate under section 55 while the application remains undecided, and the firm uses that window where the interview has shown what the delegate is concerned about. Where an application is refused, the firm advises on protection visa refusals and review by the Administrative Review Tribunal, where the time limit is short and strictly applied.

Consultations are held by video anywhere in Australia, and a consultation can be requested online. An applicant whose interview has already been scheduled should not wait until the end of the period stated in the letter before seeking advice, because that period runs from the day the invitation is taken to have been received, not from the day it is read, and because the work that makes a difference is done before the interview rather than during it. More about Weiwei Zhang and the firm's protection visa practice is available on the My Migration Lawyers website.