Protection Visa Refused? How a Lawyer Can Assess Your Appeal

What does a lawyer do first when a protection visa is refused?

A lawyer assesses a refused protection visa by reading the written decision record and testing every adverse finding in it against the criteria in the Migration Act 1958. Nothing sensible can be said about a refusal until that has been done. A refusal of a Subclass 866 protection visa is a decision made under section 65 of the Migration Act not to grant the visa. The decision record sets out the findings of fact the delegate made, the evidence those findings were based on, and the reasons for the decision.

Most people arrive at a lawyer with the outcome and very little else. They know the visa was refused. They often do not know which criterion they failed. They often do not know whether the delegate accepted their account and refused them anyway, which is an entirely different problem from not being believed. The decision record answers both questions, and the answers change everything that follows.

The assessment has three parts. The first is identifying the criterion that was not met. A protection visa is granted on one of two bases. The refugee criterion in section 36(2)(a) depends on the definition of refugee in section 5H and the definition of a well-founded fear of persecution in section 5J. The complementary protection criterion in section 36(2)(aa) depends on the definition of significant harm in section 36(2A). A decision record that refuses on both will usually deal with them separately, and the reasons for each can be quite different.

The second part is identifying which findings carry the refusal. A long decision record may contain dozens of findings, and most of them do not matter. What matters is the small number of findings that, if left standing, decide the case again the same way.

The third part is asking whether those findings can be displaced, and by what. Evidence that does not touch the findings that carried the refusal does not help, however genuine it is. This is the point at which an honest assessment becomes valuable, because it is also the point at which a person can be told that the strongest new document in their possession answers a question the delegate never asked.

There is one step that comes before all of it. The date on the refusal letter, and the date the applicant is taken to have received it, are checked first, because the period for applying to the Administrative Review Tribunal is short and the assessment is worthless if it finishes after the period has ended. An assessment done properly and delivered late is not an assessment. On a refusal that has already been sitting for some weeks, the deadline is calculated before the reasons are read at all.

The documents needed for the assessment are limited and most applicants already hold them. They are the refusal letter, the decision record, the written statement of claims that was filed, any documents lodged in support, and any letter from the Department inviting comment on information before the decision was made. Where the first application was lodged by somebody else, those documents may have to be requested, and that request is also made early rather than late.

My Migration Lawyers acts for people whose protection visa applications have been refused, and this assessment is the first piece of work done on every one of those matters. The firm's protection visa refusal page sets out the review pathway in general terms. What follows here is the assessment itself.

Why the decision record, and not the applicant's memory, drives the assessment

The decision record is the only reliable account of what was decided, because it is the document a Tribunal or a court will work from. An applicant's memory of the protection visa interview is evidence of what happened in the room. It is not evidence of what the delegate concluded.

That distinction matters more in protection matters than in almost any other visa type. Protection interviews are long, they are often conducted through an interpreter, and they are frequently the most distressing conversation a person has had with an official since they left their country. People come out of them with a strong impression of how it went. The impression is often wrong in both directions. Applicants who felt the interview went badly are sometimes refused on a narrow point unrelated to anything said that day. Applicants who felt understood are sometimes refused because the delegate accepted every word and still found that the harm feared did not meet the statutory definition.

Reading the record also shows which claims the delegate treated as having been made. This is the single most common surprise. A person who fears harm for three reasons may find that only two of them appear in the decision record, because the third was never clearly put in the written statement or at interview. A claim that was never advanced is not a claim the delegate failed to consider. It is new material, and the way new material is handled on review is a different question with a different answer.

Finally, the record shows how the delegate used country information. Under Ministerial Direction No. 84, made under section 499 of the Migration Act, where the Department of Foreign Affairs and Trade has prepared a country information report expressly for protection status determination purposes and that report is available to the decision maker, the decision maker must take that assessment into account where it is relevant. The direction does not prevent the decision maker from considering other information about the country. Identifying which report was used, and which version of it, is part of the assessment.

Which findings in a Subclass 866 refusal matter most

The findings that matter most are credibility findings, country information findings, and findings under the statutory carve-outs in sections 5J and 36(2B). In practice, refusals turn on these far more often than on any dispute about what the law means.

Credibility findings

A credibility finding is a finding that the account given is not accepted. It is the hardest finding to shift, and it is the most common reason a protection visa is refused. A lawyer reads these findings closely, because they are rarely as broad as they first appear. A delegate may reject one episode and accept the rest. A delegate may accept the whole account of past events and still find that the fear of future harm is not well founded. A delegate may make no adverse credibility finding at all and refuse on relocation.

Where an adverse credibility finding rests on an inconsistency, the assessment asks what the inconsistency actually was, whether it was put to the applicant, and whether there is an explanation that was never on the record. Interpreting problems, trauma, the order in which events were recounted, and the difference between a summary written by somebody else and the applicant's own words are all ordinary explanations for apparent inconsistency. They are only useful if they are identified and supported.

Sections 91W and 91WA deal separately with identity and with bogus documents. Where an applicant is asked for documentary evidence of identity, nationality or citizenship and refuses or fails to comply, or produces a bogus document, the decision maker must draw an unfavourable inference about credibility unless the applicant has a reasonable explanation. People who left a country in a hurry, or who travelled on documents obtained by others, very often have a reasonable explanation. It has to be stated, and it has to be stated on the record.

Country information findings

Country information findings decide whether the fear is objectively supported. The assessment asks three questions. Which country information did the delegate rely on. Was the most recent Department of Foreign Affairs and Trade country information report used, given that each new report states on its face that it replaces the previous report. Was the information relied on for the proposition it actually supports, or for a broader proposition it does not.

Country information is also the material that supports the applicant's own account. It is not only a tool used against a claim. A claim that looks thin on its own often becomes plausible when placed next to a report describing exactly that pattern of conduct in exactly that region.

Relocation, state protection and general risk findings

Section 5J(1)(c) requires that the real chance of persecution relate to all areas of the receiving country. Section 5J(2) and section 5LA deal with effective protection measures, which is the question of whether the state can protect the applicant. Section 36(2B) sets out three matters that mean there is taken not to be a real risk of significant harm for complementary protection purposes: that it would be reasonable for the person to relocate to an area where there would not be a real risk, that the person could obtain protection from an authority of the country, and that the risk is one faced by the population generally rather than by the person.

These findings are often the whole of the refusal, and they are frequently the most vulnerable part of it.

The errors that appear most often in protection visa refusals

The error seen most often is the treatment of relocation as a single test that applies to both protection criteria. It is not one test. The refugee criterion asks, under section 5J(1)(c), whether there is a real chance of persecution in all areas of the receiving country, and that assessment includes whether the applicant can reach the proposed area safely and lawfully. The complementary protection criterion asks, under section 36(2B)(a), whether relocation would be reasonable in the sense of practicable, which is the test as it stood before 16 December 2014. The Department's own Complementary Protection Guidelines state plainly that findings made for the purposes of section 5J(1)(c) cannot be adopted for the purposes of complementary protection, and that relocation must be considered afresh by reference to the wording of section 36(2B)(a). A decision record that reasons about relocation once and applies the result to both criteria has not done what the law requires. The complementary protection page sets out that criterion in more detail.

The second error concerns behaviour modification. Section 5J(3) provides that a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution, but that carve-out does not extend to a modification that would conflict with a characteristic fundamental to the person's identity or conscience, or conceal an innate or immutable characteristic. In Appellant S395/2002 the High Court held that an applicant cannot be expected to hide or change behaviour that is the manifestation of a protected characteristic in order to avoid persecution, and that the question is what a person would do on return, not what they could or should do. The position is different for complementary protection, because in DQU16 the High Court found that the principle in Appellant S395 does not apply to complementary protection claims. A decision record that reasons from what an applicant would choose to do on return has to be read against the right criterion, and the answer is not the same for both.

The third error is the claim that is raised but not dealt with. A decision record that does not address a claim clearly made, or the evidence supporting it, may be affected by legal error. The Department's own guidance on judicial review identifies failure to address claims or evidence submitted by the applicant as a category of jurisdictional error, alongside identifying the wrong issue, asking the wrong question, ignoring relevant material and relying on irrelevant material.

The fourth is the use of a superseded country information report where a more recent one was available. That is a finding about the facts, not about the law, and it is usually best answered at the Tribunal rather than in a court.

What can be fixed on review, and what cannot

New evidence can be put before the Administrative Review Tribunal, because review by the Tribunal is a fresh consideration of the merits of the application. Under section 54 of the Administrative Review Tribunal Act 2024 the Tribunal may exercise all the powers and discretions conferred on the original decision maker. It decides the application again. This is why documents that arrived after the refusal, statements that were never prepared, expert evidence, medical evidence and current country information are all capable of changing the outcome at the Tribunal stage.

What cannot be fixed on review is a missed deadline. The time limit to apply to the Tribunal for review of a protection visa refusal is short. It is measured from the day the applicant is taken to have received the decision under section 494C of the Migration Act, which is not always the day the letter was actually read. For a reviewable protection decision that period cannot be extended, and an application made after it has ended is not properly made, which means the Tribunal has no jurisdiction to consider it. This is the single most important date in the matter and the first thing checked on any new refusal.

Nor can a refusal be answered by starting again. Section 48A prevents a person in the migration zone who has been refused a protection visa from making a further protection visa application. Only the Minister can lift that bar, using the personal and non-compellable power in section 48B, and that power is exercised rarely. A protection visa refusal is not a first attempt that can be improved on next time. In practical terms, the review is the case.

Tribunal review, judicial review, or a request to the Minister

The assessment ends with a recommendation about which path fits the refusal, and the three paths answer different questions. Tribunal review asks whether the visa should have been granted. Judicial review asks whether the decision was affected by legal error. A request to the Minister asks for a discretionary act of grace where the law has been applied correctly and the outcome remains hard to accept.

Most refused applicants are still at the first stage, and for them the question of judicial review does not arise yet. Where a refusal relies on section 5H(2), section 36(1C) or section 36(2C), the review path is different again, because those decisions are dealt with under section 500 of the Migration Act, the period for applying is far shorter, and the Tribunal has no power to extend it. Identifying which path a refusal falls into is part of the triage, not an afterthought, because the wrong path costs the right one.

Judicial review, if it is reached, goes to the Federal Circuit and Family Court of Australia. A court does not decide whether the visa should be granted. It decides whether the decision was affected by jurisdictional error, and if it finds one, the usual result is that the matter goes back to be decided again. The firm's judicial review page explains that jurisdiction and its strict time limit in more detail.

Where a Tribunal decision has affirmed a refusal, the remaining avenue is section 351 of the Migration Act, which allows the Minister to substitute a more favourable decision if it is in the public interest to do so. This is the point at which a great deal of published material is now wrong. Section 417 of the Migration Act, which many older articles still name as the protection visa intervention power, has been repealed. Section 351 now provides that discretion for both reviewable migration decisions and reviewable protection decisions. Any advice or request that still cites section 417 for a decision made under the current system is citing a provision that no longer exists.

How My Migration Lawyers assesses a refused protection visa

My Migration Lawyers takes refused protection visa matters as a regular part of its practice, and Subclass 866 refusals make up a substantial share of that work. The firm acts for applicants whose first application was prepared without a lawyer, for applicants whose first application was prepared by somebody else, and for applicants who are within the review period and need an answer quickly.

The assessment runs in a fixed order. The review deadline is calculated first, from the date of deemed receipt, before anything else is read. The decision record is then read in full and the findings that carry the refusal are isolated. The written statement and the material that was before the delegate are compared against the claims the decision record treats as having been made. The criteria that were not met are identified separately for section 36(2)(a) and section 36(2)(aa). The applicant is then told, in plain terms, what a review would have to establish and what evidence would be needed to establish it.

The firm does not construct claims. The account of what happened is the applicant's own account, given by the applicant, reviewed and corrected by the applicant before it is filed. The applicant decides which claims are advanced. The firm's work is to present that account and that evidence in the form the Migration Act requires, against the criteria the decision record says were not met, and to say honestly where a claim is weak.

An honest assessment sometimes produces an unwelcome answer. A refusal can be lawful, carefully reasoned and correct on the evidence that was available, and a review can still be the right step because the Tribunal decides the application again on the material put before it. A refusal can also be one where the findings are unlikely to move without evidence that does not exist and cannot be obtained. Where that is the position, it is said in those words. A person deciding whether to spend money and another year of their life on a review is entitled to know which of those two situations they are in, and no responsible advice avoids the question because the answer is uncomfortable.

Every protection matter at the firm is reviewed by Principal Weiwei Zhang, who also acts in Tribunal reviews and judicial review matters. Advice on a refusal is given after the decision record has been read, not before. A general description of what the firm does in this area is on the protection visa lawyers page, and a refusal can be sent to the firm for assessment through the consultation request form. Where the review period is close to expiring, that should be said in the first line of the request, because the date governs everything else.