Key Takeaways
- After you lodge a protection visa on tourist visa grounds, the Department may send a section 56 request, a section 57 invitation to comment or a section 91W identity request, will usually invite you to an interview, and then decides the application.
- The processing stage is where most applications are won or lost. Under section 55 of the Migration Act 1958 you can give further information at any time before the decision, and the Department must take it into account.
- If you do not respond to a section 56 or section 57 invitation within the time given, section 62 allows the Department to decide the application without asking you again.
- Section 104 requires you to tell the Department in writing, as soon as practicable, when your circumstances change. Form 1022 is the usual way to do this.
- A lawyer can be appointed at any stage before the decision by lodging Form 956, and the Department then deals with the lawyer about the application.
What happens after you lodge a protection visa on tourist visa grounds?
After you lodge a protection visa on tourist visa grounds, the Department assesses the application, may ask for more information, may invite you to comment on adverse information, will usually interview you, and then makes a decision. Each of those steps can change the outcome of a protection visa on tourist visa application.
Many people lodge a Subclass 866 Protection Visa application on their own while they are still on a visitor visa. The first sign that the process is moving is often a letter in ImmiAccount. It may be a request for more information under section 56 of the Migration Act 1958, an invitation to comment under section 57, a request for identity evidence under section 91W, or an invitation to attend an interview.
This article explains what each of those letters means and how to respond. My Migration Lawyers has already published a general guide on applying for a Subclass 866 Protection Visa on a tourist visa. This article deals with the stage after lodgement, when a protection visa on tourist visa application is being processed and the applicant has to respond correctly and on time.
The requirements of the visa itself are set out on our Subclass 866 Protection Visa page. What matters here is what the Department does with the application once it has it, and what you must do in return.
Why the processing stage decides a protection visa on tourist visa application
The processing stage decides a protection visa on tourist visa application because the decision maker must decide on everything that is on the file at the date of decision, and that includes everything you add, or fail to add, after lodgement.
Section 54 of the Migration Act requires the decision maker to have regard to all of the information in the application. Section 55 allows you to give additional information at any time before the application is decided, and that information must be taken into account. This is what makes the processing stage so important. A thin application can be strengthened before the decision. A strong application can be damaged by a careless answer at interview.
The Department can decide without further contact
The Department states that it may decide a protection visa application on the information provided, and that the applicant may not get another opportunity to present claims. Section 56 allows an officer to seek more information, but it does not require the officer to do so. A person who lodged a protection visa on tourist visa grounds and is waiting for the Department to ask for more detail may never be asked.
There is usually only one application
Section 48A of the Act generally prevents a person who has been refused a protection visa from making another protection visa application while they remain in Australia. That bar applies on any grounds. The only exception is a personal and non-compellable power of the Minister under section 48B, which is rarely exercised. Our definitive guide to the protection visa explains the bar in the context of the whole process.
The practical result is simple. The protection visa on tourist visa application that is already lodged is, for most people, the only one they will have in Australia. The time to correct gaps is while it is still being processed.
What is a section 56 request in a protection visa on tourist visa matter?
A section 56 request is a written or oral invitation from the Department to give further information that the decision maker considers relevant to the application.
In a protection visa on tourist visa matter, a section 56 request often asks for identity documents, translations, details of events in the claims, evidence of family relationships, or an explanation of a gap in personal history. The request can also be used to ask the applicant to expand on parts of the account that the officer doubts.
How the response must be given
Section 58 of the Act requires the invitation to say whether the response is to be given in writing, at an interview or by telephone. If the response is to be given other than at an interview, it must be given within the period stated in the invitation. Sections 58(4) and 58(5) allow the Department to give additional time or reschedule an interview.
If you do not respond within the time allowed, section 62 permits the Department to decide the application without giving you any further opportunity. Missing a section 56 deadline in a protection visa on tourist visa application can therefore mean the application is decided on an incomplete file.
How to respond properly
Answer the question that is actually asked. Provide the document requested or explain why it cannot be obtained and what steps have been taken. Documents not in English should be translated by a translator accredited by NAATI. Upload the response through ImmiAccount and keep a copy. Our article on responding to a section 56 request explains the process step by step.
A section 56 response is also a chance to add information under section 55. If the request reveals that the officer has misunderstood part of the claims, the response should correct that misunderstanding directly.
What is a section 57 invitation to comment?
A section 57 invitation is a letter that gives you the particulars of adverse information the decision maker holds, explains why it is relevant, and invites you to comment before a decision is made.
Section 57 applies to "relevant information". This is information that would be the reason, or part of the reason, for refusing the visa, that is specifically about the applicant or another person and not just about a class of persons, and that was not given by the applicant for the purpose of the application. General country information is usually not relevant information for this purpose.
Common section 57 issues in a protection visa on tourist visa matter
In a protection visa on tourist visa matter, section 57 letters commonly deal with information in the earlier visitor visa application, travel movement records, third party information, or a document examiner's assessment of an identity document. The Department's guidelines state that where significant inconsistencies between the application or interview and other information give rise to credibility concerns, the applicant should be invited to explain or comment on them under section 57.
Information you give at interview is different
Adverse information that you give yourself, including at interview, is not relevant information for the purpose of section 57. The Department's guidelines give this as an example. This means the decision maker can rely on something you said at interview without sending you a separate letter about it. That is one reason preparation for the interview matters so much.
How to respond to a section 57 letter
A section 57 response is often the most important document filed after lodgement. It should address each item of adverse information, explain it truthfully, and attach evidence where evidence exists. A short denial rarely helps. Where the adverse information comes from the visitor visa application, the response should explain why the earlier application said what it did. The response must be given within the period in the invitation, and section 63 prevents a refusal before the comments are received, the applicant says they do not wish to comment, or the time ends.
What does a section 91W request for identity evidence mean?
A section 91W request means the Department is asking you to produce evidence of your identity, nationality or citizenship, and refusing or failing to comply without a reasonable explanation prevents the visa from being granted.
Identity is a threshold issue in every protection visa on tourist visa application. Section 91W also prevents grant where the applicant gives a bogus document in response to the request without a reasonable explanation. Section 91WA has a similar effect where a bogus identity document was given with the application, or identity documents were destroyed after lodgement, unless the applicant has a reasonable explanation and either provides documentary evidence of identity or has taken reasonable steps to do so.
How the Department uses section 91W alongside section 57
The Department's guidelines require an officer who has concerns about a document to put the relevant information to the applicant under section 57 first. Only after the comments are received, or the time expires, may the officer make a bogus document finding and send a separate section 91W and section 91WA letter. Those letters are not section 56 or section 57 requests, so the prescribed periods in section 58 do not apply. A reasonable period is given instead.
How to respond
The response should provide whatever genuine identity documents are available. Where documents cannot be obtained, it should give a full and truthful explanation, supported by evidence of the steps taken to obtain them. The Department assesses reasonableness on the individual circumstances and up to date country information. Our protection visa documents checklist sets out the identity documents usually relied on.
A section 91W or section 91WA problem does not mean the claims are ignored. The claims are still assessed. But a visa cannot be granted while the identity bar applies, so this request must be treated as seriously as the interview.
What happens at a protection visa on tourist visa interview?
At a protection visa on tourist visa interview, an officer of the Department asks you about your situation, your family, the reasons you are applying and the information in your application, and the recording is considered by the person who decides the case.
The Department conducts most protection visa interviews by videoconference. If the interview is in person, the invitation gives the office details. The interview is audio recorded with your permission. The Department describes the interview as an opportunity to clarify your claims, and also states that you must give all the information it needs to make a decision.
Who can attend
Your migration agent or legal representative can attend the interview. If you need an interpreter, the Department will provide one. You may also be able to bring a support person, but you must ask the officer named in the invitation for permission beforehand. Our guide to the protection visa interview explains the format of the day.
What to bring and what to send before the interview
The Department asks applicants to bring their original identity documents and any other proof supporting their claims, with English translations certified by a NAATI accredited translator. It also asks that further information be submitted through ImmiAccount before the interview. Material sent very late may still be considered, but the officer may need more time and the interview may not proceed as planned.
If you do not attend, the Department can decide the application on the information available. You must make every reasonable effort to attend and tell the Department as soon as possible if you cannot.
What the interview tests
The interview tests identity, background, the events described in the claims, the chronology, and the reasons for fearing return. It also tests whether the protection visa on tourist visa claims fit the legal test, including whether relocation within the home country would be reasonable and whether the authorities could protect you. Our article on protection visa interview questions sets out the kinds of questions asked.
The Department's guidelines recognise that trauma and the passage of time can affect memory. An officer must not join a series of minor inconsistencies together to avoid accepting a claim. But significant inconsistencies will be put to the applicant, and saying "I do not remember" is only a proper answer where it is true.
Consistency with the visitor visa application and Form 866
The officer can compare what you say at interview with your Form 866, your statement of claims and the visitor visa application you made to come to Australia. A visitor visa application usually describes a stable life at home and an intention to return. The protection claims describe danger. Both can be true, but the difference must be explained. A protection visa on tourist visa applicant who has not reread their own Form 866 and visitor visa application before the interview is at real risk. Our guide to Form 866 explains what the form asks and why the answers matter.
Interpreters
The interpreter is bound by confidentiality and impartiality. The interpreter only interprets and is not involved in the decision. If you have a concern about an interpreter, for example because they may know your community, raise it in writing before the interview rather than on the day. Where a request is made about the gender of the interpreter, the Department's guidance is that every effort should be made to meet it. If you do not understand the interpreter during the interview, say so immediately so that it is recorded.
Preparation is not coaching. Nobody should tell you what to say. Preparation means knowing your own account, understanding which parts are likely to be tested, and being ready to explain any inconsistency honestly. Our article on preparing for a protection visa interview explains what good preparation involves.
What changes must you tell the Department about while you wait?
You must tell the Department in writing, as soon as practicable, whenever your circumstances change so that an answer in your application is no longer correct.
This obligation comes from section 104 of the Migration Act, and it applies to every protection visa on tourist visa applicant until the visa is decided. The Department lists changes it expects to be told about, including changes to your name, phone number, email, address or passport, changes to your marital or de facto status, pregnancy, the birth of a child, a death in your family, and a decision to withdraw the application.
Form 1022, Form 1023 and Form 929
Form 1022 is the Department's form for notifying a change in circumstances under section 104. Form 1023 is used to correct an answer that was wrong when it was given, which section 105 requires you to do as soon as practicable. The difference matters. A change is something new. A mistake is something that was never correct. Both are uploaded through ImmiAccount.
Changes to your address, contact details or passport are handled differently. Subsection 52(3B) of the Act requires you to tell the Department of any change in contact information, and the Department accepts Form 929 or an update through ImmiAccount for this purpose. Updating your address does not notify any other change, so a change in family circumstances still needs its own notification. Our article on Form 1022 and change of circumstances explains when each is used.
A new child or a new family member
A child born in Australia after the application is lodged and before it is decided is generally taken to be included in the application. The Department asks parents to notify the birth using Form 1022 with the birth certificate. A spouse, de facto partner or dependent child who is in Australia may be added after lodgement using Form 1436, but only before the application is decided.
New events that affect the claims
A change in the claims themselves is different from an administrative change. If new danger arises, or new evidence becomes available, it should be put to the Department under section 55 with a clear explanation. Our article on protection visa evidence explains what kind of evidence actually supports a claim.
The My Migration Lawyers Difference
Affordable Fees
Complex Matter Capability
Instalment Payment Options
Two-Day Cooling-off Period
Can you work and travel while a protection visa on tourist visa application is processed?
Yes, you can usually work if you lodged while your tourist visa was still in effect, but you should not travel without a Bridging visa B, and travel carries real risk for a protection claim.
Work on a Bridging visa A
A person who lodged a protection visa on tourist visa grounds while the visitor visa was still in effect is also treated as applying for a Bridging visa A. That bridging visa comes into effect when the tourist visa ends. Condition 8101 (no work) cannot be imposed on a Bridging visa A held by a protection visa applicant whose application has not been finally determined. Our guide to the Bridging visa A explains how it operates.
Work on a Bridging visa E
A person who lodged after the tourist visa expired will usually hold a Bridging visa E. Condition 8101 must initially be imposed. A further Bridging visa E without that condition requires a compelling need to work and an acceptable reason for the delay in applying for the protection visa. The bridging visas explained guide compares the options.
Travel on a Bridging visa B
A Bridging visa A does not allow travel. To leave and return, a Bridging visa A or B holder must be granted a Bridging visa B, which requires substantial reasons for wishing to leave and re-enter Australia. A Bridging visa E holder cannot be granted a Bridging visa B. Our article on the Bridging visa B sets out the criteria.
Clause 866.411 requires the applicant to be in Australia when the visa is granted. Travel to the country you claim to fear is likely to be treated as evidence against the claim. For almost every protection visa on tourist visa applicant, the safest course is to remain in Australia until a decision is made.
How do you appoint or change a representative after lodgement?
You appoint a lawyer or registered migration agent after lodgement by lodging Form 956 through ImmiAccount, and the Department then deals with that representative about the application.
Form 956 is used to appoint a registered migration agent, legal practitioner or exempt person to give immigration assistance. Form 956A is used to appoint or withdraw an authorised recipient, who receives correspondence but does not give advice. The Department also asks applicants to tell it if they no longer want a person to act for them or receive their correspondence. Our article on Form 956 and Form 956A explains the difference.
A person who lodged a protection visa on tourist visa grounds through someone else, and now wants a different representative, can tell the Department in writing that the earlier appointment has ended and lodge a new Form 956. Our guide on how to change your immigration lawyer explains how to change without losing a deadline. The key point is timing. Any deadline in a section 56 or section 57 letter continues to run while representation changes.
Why a lawyer can take over a protection visa on tourist visa application mid-process
A lawyer can take over a protection visa on tourist visa application at any stage before the decision, and section 55 allows the lawyer to put further information and submissions before the decision maker.
Most people who lodge alone do so because they were told the form was simple. Form 866 can be completed without a lawyer. The difficulty is that the Department tests the claims against a detailed legal framework in section 36 and sections 5H and 5J of the Act. A claim that is true but does not address relocation, state protection, or why the applicant is personally at risk can still be refused.
What a lawyer reviews on taking over
A lawyer taking over reviews the lodged Form 866, the statement of claims, the visitor visa application, the identity documents and every letter from the Department. The aim is to identify gaps, inconsistencies and legal issues before the Department raises them. Our article on hiring a lawyer after lodging your own application explains what can and cannot be changed after lodgement.
What a lawyer can file
The lawyer can prepare a further statement from the client, submissions on the legal test, and supporting evidence, all under section 55. The statement is the client's own account. The client reviews and corrects it, and the client decides which claims are advanced. The lawyer's role is to present the client's account and evidence in the form the law requires. Our article on the protection visa statement of claims explains how a statement is structured.
When to bring a lawyer in
The earlier the better. The best time is before the interview invitation arrives, because a further statement and submissions can then be considered before the interview. The second best time is as soon as a section 56, section 57 or section 91W letter arrives. Our article on when you need a protection visa lawyer deals with this question in more detail.
What happens if a protection visa on tourist visa application is refused?
If a protection visa on tourist visa application is refused, you generally have a right to apply to the Administrative Review Tribunal, and the deadline to apply is short and strictly applied.
The refusal letter should be read on the day it arrives, because the time to apply starts running from notification. The Tribunal reviews the decision on its merits. Because of section 48A, merits review is usually the only remaining step in Australia. Our page on protection visa refusals explains what to do immediately, and our article on whether you can appeal a protection visa refusal to the ART explains the review process.
How My Migration Lawyers handles a protection visa on tourist visa application in processing
My Migration Lawyers acts in many protection visa on tourist visa matters that are already lodged and in processing, including applications that were first lodged by the applicant alone.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with complex protection matters at the processing stage, including section 57 letters about the visitor visa application, section 91W identity requests, gaps in personal history, delay after arrival, and claims that rely on complementary protection as well as the refugee criterion. The firm is capable of taking over a file mid-process and moving quickly when a deadline is running.
What the firm does when it takes over
My Migration Lawyers lodges Form 956 so the Department deals with the firm. The firm reviews everything on the file, including the Form 866, the statement of claims and the visitor visa application. It identifies the issues the Department is likely to test and advises the client on them.
What the firm does before the decision
The firm works with the client on any further statement, which remains the client's own account, reviewed and corrected by the client. It prepares submissions and evidence under section 55, responds to section 56, section 57 and section 91W letters, prepares the client for the interview, and attends the interview with the client. If a refusal occurs, the firm advises on review at the Administrative Review Tribunal within the deadline. Our protection visa lawyers page sets out the full scope of the firm's protection work.
When to contact the firm
If you have lodged a protection visa on tourist visa application and have received a letter from the Department, or expect an interview, the right time to seek advice is now, before the deadline or the interview date.
Book a consultation with My Migration Lawyers through our online booking page. If your deadline is close, you can also call 1300 040 300.
Frequently Asked Questions
I lodged my protection visa on tourist visa grounds by myself. Can a lawyer still help me now?
Yes. A lawyer can be appointed at any stage before the Department decides the application, by lodging Form 956 through ImmiAccount. Once appointed, the lawyer can review what you lodged, including your Form 866 and your statement of claims, and identify gaps or inconsistencies. Under section 55 of the Migration Act, further information and submissions can be given at any time before the decision, and the Department must consider them. The earlier the review happens, the more time there is to correct problems before the interview or before a response is due.
I received a letter asking me to comment on information. What happens if I miss the deadline?
The Department can decide your application without giving you another chance. Section 62 of the Migration Act allows a decision to be made once the time for responding to a section 56 or section 57 invitation has passed. If you need more time, ask the Department for an extension in writing before the deadline, and explain why. Section 58 allows the Department to give additional time, but it does not have to. Information you send later, before the decision is made, must still be considered, but the safest course is to respond within the time given.
My interview is soon and I told my tourist visa application I would go home. Will this be raised?
Very likely. The officer can compare your protection claims with the information you gave in your visitor visa application. A visitor visa application usually says the applicant will return home, while a protection claim says they cannot safely return. Both can be true, for example where a person concealed danger in order to leave. The important point is to explain the difference truthfully. The explanation is stronger if it is already in a written statement on the file before the interview, rather than given for the first time when the officer asks.
Can I ask for a different interpreter at my protection visa interview?
Yes. You can raise a concern about an interpreter, and it is best to do so in writing before the interview rather than on the day. The Department provides an interpreter where one is needed. The interpreter is bound by confidentiality and impartiality and is not involved in the decision. Where an applicant asks for an interpreter of a particular gender, the Department's guidance is that every effort should be made to meet the request. If you do not understand the interpreter during the interview, say so immediately so that the problem is recorded.
I moved house and changed my phone number after lodging. Do I need to tell the Department?
Yes. Subsection 52(3B) of the Migration Act requires you to tell the Department of any change in your contact information, and the Department accepts Form 929 or an update through ImmiAccount for this purpose. This is separate from the section 104 obligation to notify other changes in circumstances, such as a new relationship or the birth of a child, which is usually done on Form 1022. Keeping your contact details up to date matters because the Department sends interview invitations and requests for information by ImmiAccount and email, and a missed letter can mean a missed deadline.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
