Protection Visa Statement of Claims: Examples, Structure and Evidence

What is a protection visa statement of claims?

A protection visa statement of claims is the written account, attached to your Subclass 866 application, that sets out in your own words what happened to you, what you fear on return, who you fear, and why the authorities of your country cannot or will not protect you. It is not a form. It is a separate document, usually a signed and dated narrative, that carries the substance of the application. Everything else in the application identifies you. The statement of claims is the part that asks Australia for protection.

Form 866 sets aside questions 75 to 83 for your reasons for claiming protection. Those questions ask which country or countries you are seeking protection from, why you left, what you think will happen if you return, whether you experienced harm and who caused it, whether you sought help after the harm, whether you moved or tried to move to another part of the country, whether you will be harmed or mistreated on return, whether the authorities can and will protect you, and whether you could relocate somewhere safe. Each question carries the instruction that if there is insufficient space you should attach additional details. In practice the boxes on the form are never sufficient. The attached statement is where the real answer goes, and the form is cross-referenced to it.

The form itself gives the warning that matters most. It states that a decision may be made on the information provided in your written application and that you may not be given another opportunity to present these claims. No interview is guaranteed. A protection visa application can be refused on the papers. An applicant who writes three short paragraphs on the assumption that the rest can be explained later has accepted a risk that is entirely avoidable.

Section 5AAA(2) of the Migration Act 1958 puts the burden squarely on the applicant. It provides that it is the responsibility of a protection visa applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations, and to provide sufficient evidence to establish that claim. Section 5AAA(4) removes any doubt about the other side of that arrangement. The decision maker has no responsibility or obligation to specify, or to assist in specifying, any particulars of the claim, and no obligation to establish it or assist in establishing it. A claim that is not articulated is, for most practical purposes, a claim that has not been made.

That is why the statement of claims is treated as the foundation of a Subclass 866 protection visa application rather than as supporting material. The decision maker reads it first, tests it against country information, and returns to it at every later stage. If the application is refused and reviewed, the statement is the document the Tribunal compares every later answer against. Inconsistency between what was written at lodgement and what is said a year later is one of the most common reasons a genuine account is not accepted.

What the law requires a statement of claims to establish

A statement of claims has to satisfy one of two separate statutory tests, and it should be written to address both. The first is the refugee criterion in section 36(2)(a) of the Migration Act, which is met where the applicant is a refugee within the meaning of section 5H(1). The second is the complementary protection criterion in section 36(2)(aa). They fail for different reasons, so a statement that is written only for one has halved the application before it is read.

For the refugee criterion, section 5J(1) sets three elements. The applicant must fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance of that persecution occurring. The real chance must relate to all areas of the receiving country, which means internal relocation is built into the definition of refugee itself and is not an afterthought. Sections 5J(2) and 5J(3) then remove the fear from the definition in two situations: where effective protection measures within the meaning of section 5LA are available in the receiving country, and where the person could take reasonable steps to modify their behaviour to avoid a real chance of persecution, other than a modification that would conflict with a characteristic fundamental to their identity or conscience or conceal an innate or immutable characteristic.

Section 5J(4) then defines what persecution means. One or more of the five reasons must be the essential and significant reason for the persecution. The persecution must involve serious harm. The persecution must involve systematic and discriminatory conduct, which the Department's own guidance describes as selective harassment rather than random acts of violence. Section 5J(5) gives a non-exhaustive list of what may amount to serious harm: a threat to life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the capacity to subsist, denial of access to basic services where that denial threatens the capacity to subsist, and denial of the capacity to earn a livelihood of any kind where that denial threatens the capacity to subsist.

The complementary protection criterion works differently. Under section 36(2)(aa), the question is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal to a receiving country, there is a real risk the applicant will suffer significant harm. There is no requirement that the harm be for one of the five reasons. Section 36(2A) then defines significant harm, and this is where many statements lose ground. The list is closed. It covers arbitrary deprivation of life, the death penalty being carried out, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. Nothing outside those five categories is significant harm, however severe it feels.

The contrast is worth stating plainly, because it is routinely blurred. Serious harm under section 5J(5) is illustrated by a list that is expressly non-exhaustive. Significant harm under section 36(2A) is defined by a list that is exhaustive. A statement that describes the loss of employment, housing, family and community, and stops there, may support a refugee claim through cumulative discrimination and still fall outside complementary protection entirely. Section 36(2B) adds three further limits: a real risk is taken not to arise where it would be reasonable to relocate within the country, where protection could be obtained from an authority of the country, or where the risk is one faced by the population generally rather than by the applicant personally.

Every one of these elements is a question your statement of claims has to answer. Written properly, the statement is not a story with legal argument bolted on. It is a factual account, in the applicant's own voice, arranged so that a decision maker working through sections 5J and 36(2A) finds the relevant facts where they expect to find them.

How should a protection visa statement of claims be structured?

A protection visa statement of claims should be structured chronologically, in numbered paragraphs, moving from who you are, to what happened, to why it happened, to what you fear now, and finishing with the matters a decision maker is required to consider against you. Numbered paragraphs are not a formality. They allow the Department, a Tribunal, and your own lawyer to refer to a specific paragraph rather than to a page, and they make inconsistencies easier to correct before lodgement rather than after refusal.

The following order works for almost every claim type.

Identity, background and receiving country

Open with your full name, date of birth, nationality, and the country or countries you say you cannot return to. Name the towns and regions you lived in and the dates you lived there. State your religion, ethnicity, language, political involvement, occupation and family composition where any of them is relevant to the claim. This section looks administrative and it is doing real work. It establishes the receiving country, and it establishes the characteristic that the later claim depends on.

The events, in order, with dates

Set out what happened to you, event by event, in the order it happened. Each event should answer four questions: when it happened, where it happened, who did it, and what they said or did. Approximate dates are acceptable where an exact date is not known, and it is better to write that an event occurred in the middle of a particular year than to invent a day. Do not compress years of harassment into a single sentence. A pattern of conduct is legally relevant under section 5J(4)(c), and it cannot be assessed if it is summarised out of existence.

Why it happened

State, in your own words, why you believe you were targeted. This paragraph is aimed at section 5J(4)(a), which requires that one of the five reasons be the essential and significant reason for the persecution. Say what the people who harmed you said about why they were doing it. Reported speech is powerful here, and it is the kind of detail a decision maker is looking for when testing whether a claim has been lived rather than assembled.

What you fear on return

Describe what you believe will happen to you if you return, who you believe will do it, and why you believe they still have the will and the ability to find you. This is the forward-looking part of the claim and it is the part applicants most often leave implied. A decision maker cannot infer the future harm you fear from the past harm you describe.

Why the authorities will not protect you

Section 5J(2) and section 36(2B)(b) both turn on state protection, and Form 866 asks the question directly at questions 79 and 82. If you reported the conduct to police, say when, to which station, what was recorded, and what happened next. If you did not report it, say why not, in concrete terms. A statement that the police are corrupt is an opinion. A statement that you attended a named police station, that the officer told you it was a family matter, and that the same officer was related to the person who threatened you, is evidence.

Why you cannot relocate

Because the real chance of persecution must relate to all areas of the receiving country under section 5J(1)(c), and because section 36(2B)(a) asks whether relocation would be reasonable, every statement should address relocation whether or not the applicant has ever tried it. Deal with the specific places a decision maker is likely to nominate, usually the capital and the largest regional cities. Explain how you would be located there, how you would live, and what has happened to you or to others who moved.

What has happened since you arrived in Australia

Events after departure can create or strengthen a claim. These are known as sur place claims and they arise often. Section 5J(6) requires conduct engaged in by a person in Australia to be disregarded for the refugee assessment where it was engaged in solely to strengthen the claim. Two points follow. First, describe conduct in Australia, such as religious conversion, political activity or living openly, in terms of what you actually do and have done, with the dates and the evidence. Second, the Department's own complementary protection guidance confirms that section 5J(6) does not apply to complementary protection, so conduct disregarded under section 5J(6) must still be considered under section 36(2)(aa).

The difficult parts

Finish by dealing with the weak points rather than leaving them to be found. Delay in applying, a return visit to the country you fear, an earlier visa application that gave a different reason for coming to Australia, missing documents, an earlier statement prepared by someone else: each of these is better explained by you, at lodgement, than raised against you later.

Protection visa statement of claims examples

The examples below are illustrative only. They are not drawn from any client matter. They show the same fact set written two ways, and they are included because the difference between a paragraph that fails and a paragraph that works is almost never the seriousness of the events.

Example one, an incident of harm.

A general version reads: "I was attacked several times by people in my neighbourhood because of who I am and I was very afraid."

A version that answers the statutory question reads: "On or about 14 March 2022, at approximately 9pm, I was walking home from work along the main road in my neighbourhood. Four men I recognised from the local market stopped me. One of them, whose first name I know as A, said that people like me bring shame on the area and that I should leave. They pushed me to the ground and kicked me in the ribs and back. I was treated at the district clinic the following morning for bruising to my ribs. I did not tell the clinic how the injuries occurred because I was afraid the staff would tell my family. This was the third time these men had confronted me since late 2021."

The second version gives a date, a place, identified persons, reported speech going to the reason for the harm, the nature of the injury, a document trail, an explanation for a gap in that document trail, and a pattern. Each of those is a separate statutory element.

Example two, state protection.

A general version reads: "The police in my country do not help people like me."

A version that answers the statutory question reads: "On 16 March 2022 I attended the police post in my district and told the duty officer that I had been assaulted. He wrote nothing down. He told me that this was a private matter between me and my community and that I should stop drawing attention to myself. I attended a second time in June 2022 after a further threat and was told the same thing by a different officer. I did not attend again because I was told by my cousin, who works as a driver for a local official, that my name had been mentioned to the officer in charge."

Example three, relocation.

A general version reads: "I could not live anywhere else in my country."

A version that answers the statutory question reads: "In August 2022 I moved to the capital and stayed with a former colleague in an outer suburb. To rent a room in my own name I had to produce my national identity card, which records my home district. Within about six weeks, two men came to the house and asked my colleague where I was. He believes they were sent by my uncle's family, who have relatives in the police in the capital. I left the following week and returned to my home district, where I stayed indoors until I was able to arrange travel to Australia."

Each example is short. None of them uses legal language. That is deliberate. The statement is the applicant's evidence, and it should read like the applicant speaking. The legal framework belongs in the accompanying submission, not in the statement of claims.

What the Form 866 questions are really asking

Each protection question on Form 866 maps onto a statutory element, and reading the form that way is the fastest route to a complete statement. Question 76, why you left, and question 77, what you think will happen on return, together establish the past and forward-looking halves of the claim. Question 78, whether you experienced harm and who was responsible and why, goes to serious harm under section 5J(5) and to the essential and significant reason under section 5J(4)(a). Question 79, whether you sought help after the harm, goes to effective protection measures under section 5LA. Question 80, whether you moved or tried to move within the country, goes to section 5J(1)(c) and section 36(2B)(a). Question 81, whether you will be harmed or mistreated on return and by whom and why, is the core of both the refugee and the complementary protection assessments. Questions 82 and 83 return to state protection and relocation and ask for reasons, not conclusions.

The practical consequence is that a statement of claims should be written so that each of those questions can be answered on the form with a short sentence and a cross-reference to the numbered paragraphs of the statement. That keeps the form and the statement consistent, and consistency is the currency of a protection matter.

Claim type changes the emphasis but not the structure. In an LGBTI protection visa claim, the account of self-realisation, concealment and the consequences of disclosure usually carries more weight than any single incident, and the Department's guidance recognises that hesitation and lack of detail in these claims must be interpreted with caution. In a claim based on family or community violence, the identity and reach of the individuals involved matters more than country conditions generally. In a religious or political claim, the documentary trail of membership, attendance and publication is often decisive. What does not change is that the statement must be internally consistent, because it will be tested line by line at any protection visa interview.

What evidence should be attached to a statement of claims?

Evidence should be attached in four groups: identity, corroboration of the events, corroboration of the characteristic or status that attracts the harm, and country information about the receiving country. Each group is doing a different job, and a statement that is strong on one and silent on the others is uneven in a way decision makers notice.

Identity comes first because it is a separate criterion, not an administrative step. The Department asks for colour scans of all pages of current and expired passports including the biodata page, birth certificate, national identity card, driver's licence, and proof of any change of name such as a marriage or divorce certificate. Where those documents cannot be produced, the Department's own guidance is to provide a statement explaining why you have no travel or identity documents. That explanation belongs in, or alongside, the statement of claims, and it should be specific about what was lost, taken or never issued, and why.

Corroboration of the events includes medical and clinic records, police reports or the absence of them, court or summons documents, threatening messages, photographs with metadata preserved, employment records showing dismissal, school records showing withdrawal, and statements from people who witnessed the events or the aftermath. Statements from family members and friends carry weight where they are dated, signed, specific about what the writer personally saw, and consistent with your own account. A statement that simply confirms you are a good person adds nothing.

Corroboration of the characteristic covers membership cards, baptismal or conversion records, party registration, publication history, social media history, and evidence of relationships and community involvement in Australia. Where the characteristic is one the applicant concealed, the absence of documents is expected rather than suspicious, and the statement should say so.

Country information is the fourth group and it is the one applicants most often omit. Under section 56(1) of the Migration Act, country information must be taken into account in the decision where it is considered relevant, and the Department maintains its own research resources. The point of supplying country information with a statement of claims is not to prove general conditions. It is to show that what you say happened to you personally is consistent with what independent sources say happens to people in your position. Country information that is current, from a credible source, and directed at your specific claim is worth more than a large volume of general material.

One point deserves emphasis, because it stops people applying. Independent evidence is not a precondition. The Department's protection visa processing guidelines state plainly that there is no requirement for a claim to be supported by independent evidence before it can be accepted, and that where an officer cannot confirm a claim through research they may give the applicant the benefit of the doubt. That benefit is conditional. It is given where the account is coherent, plausible, does not conflict with generally known facts, and where the officer is satisfied as to the applicant's general credibility. In other words, the internal quality of the statement is what makes the benefit of the doubt available. That is the single strongest argument for preparing the statement carefully.

Mistakes that weaken an otherwise genuine statement of claims

The most damaging mistakes are not exaggeration. They are omission, borrowed language, and unexplained inconsistency.

Borrowed language is the most common. A statement that recites "I have a well-founded fear of persecution for reasons of my membership of a particular social group" tells the decision maker nothing and invites the finding that the claim was drafted rather than lived. Statutory language belongs in the legal submission that accompanies the statement. The statement itself should contain facts.

Unexplained delay is next. Delay in lodging a protection visa application is a legitimate matter for a decision maker to weigh. The Department's guidance lists common and accepted reasons, including changes in country conditions or personal circumstances after arrival, being unaware of the right to seek protection, fear, stress or anxiety, and the receipt of inadequate or incorrect immigration advice. The same guidance makes clear that delay should not be the only reason for rejecting a claim. The practical lesson is that the reasons for delay should cover the whole period, and should be set out by the applicant in the statement rather than extracted at an interview.

Inconsistency with your own immigration history is a close third. Visitor and student visa applications, arrival cards and earlier bridging visa forms are all on the file. If an earlier application said the purpose of travel was tourism or study, the statement should deal with that directly. Silence reads as concealment.

Other recurring problems include leaving relocation unaddressed, describing conduct in Australia without dates or evidence, failing to explain a return visit to the country feared, submitting an unsigned or undated statement, submitting a translation without a translator's declaration, and adopting a statement prepared by someone else without reading it. That last one causes real damage. If the application is refused and the applicant then says at review that parts of the statement were not accurate, the credibility problem is no longer about the country conditions.

A final and avoidable mistake is treating the statement as final. Further information and further claims can be provided at any time after lodgement and before a decision is made. A short statement lodged under time pressure can be supplemented with a fuller one. What cannot be undone is a decision made on an incomplete application, which is exactly what Form 866 warns may occur. Where a refusal has already been made, the statement then becomes the document the Administrative Review Tribunal review of a protection visa refusal is conducted against, and review deadlines in protection matters are short and strictly applied.

How My Migration Lawyers prepares a protection visa statement of claims

My Migration Lawyers prepares the statement of claims as the client's own evidence, presented in the form the law requires. The account is the client's. The firm's work is to draw it out properly, to identify which statutory elements each part of it goes to, to find the gaps before the Department does, and to make sure that nothing the client has actually experienced is left unsaid because nobody asked the right question. The firm does not write a story for a client and it does not suggest what a client should have experienced. The client reads the statement, corrects it, and decides which claims are advanced.

In practice that means a long first conference, a written chronology built from the client's own memory and documents, a review of the client's complete immigration history so that the statement is consistent with what is already on the Department's file, targeted country information selected for the individual claim rather than the country generally, and a legal submission that sits alongside the statement and does the statutory analysis so that the statement itself can stay in the client's voice. Where the claim engages both the refugee criterion and complementary protection, both are argued, because they fail for different reasons.

Protection matters at My Migration Lawyers are conducted by Weiwei Zhang, Principal Lawyer. Consultations are held by video, which means the firm acts for clients anywhere in Australia. Where English is not the client's first language, the statement is prepared in the language the client thinks in and then translated, so that the account does not lose its detail on the way into English.

If you are preparing a Subclass 866 application, or you have lodged one with a statement you are no longer confident in, the sensible step is to have it reviewed before a decision is made rather than after. You can read more about how the firm runs these matters on our protection visa lawyers page, or request a consultation and set out your situation in the form.