Protection Visa Subclass 866 Application

How is a Protection Visa Subclass 866 application assessed?

A Protection Visa Subclass 866 application is assessed by a Department of Home Affairs officer who considers all the material on the file, decides which claims are credible, tests those claims against information about the applicant's country, and then decides whether Australia owes the applicant protection obligations. The officer records each finding, and the reasons for it, in a written record of assessment before the visa is granted or refused.

That is the short answer. The longer answer is more useful, because people who search for how a Protection Visa Subclass 866 application is decided usually want to know what the officer is actually looking for. They want to know what counts as evidence, why a claim can be disbelieved, how much weight a document carries, and what the decision record will say. Those are the questions this article answers.

This article does not set out every legal criterion for the visa. The eligibility rules are summarised on our page on the Subclass 866 Protection visa, and the wider picture is in our complete guide to the Subclass 866 Protection visa. The focus here is the assessment itself: how the decision maker reads, weighs and records a Protection Visa Subclass 866 application.

What material does the decision maker consider in a Protection Visa Subclass 866 application?

The decision maker considers every piece of relevant material on the file, whether it came from the applicant or from another source. The Department's Protection Visa Processing Guidelines direct officers to collect whatever relevant evidence is available before they consider whether the claims are credible.

The material usually falls into two groups.

Material from the applicant

The first group is material the applicant provides. It includes:

• the answers given in Form 866;
• the statement of claims lodged with the application, or provided later;
• oral evidence given at an interview;
• documents, such as identity documents, membership records, religious certificates, employment records, military records, news articles and police or court documents; and
• statements from other people who have direct knowledge of the events.

The officer reads all of this together. The answers in the form are compared with the statement, and the statement is compared with what the applicant says at interview. Our guide to Form 866 explains how the form is completed, and our guide to the Protection visa statement of claims explains how the applicant's account is set out.

Material from other sources

The second group is material the Department holds or obtains itself. It includes:

• country of origin information about conditions and laws in the applicant's country;
• expert reports, such as document examination reports and medical or psychological reports;
• travel movement records;
• earlier visa applications made by the applicant, including any visitor or student visa application; and
• information on other Department files that relates to the applicant.

This second group is where many applicants are caught out. An earlier visa application may list a different employer, a different address or a different marital status. The officer will compare it with the Protection Visa Subclass 866 application. Any difference that matters will be raised.

Claims the applicant did not expressly make

The officer must also consider implied claims. These are claims that the applicant did not raise in words, but which clearly arise from the material before the Department, including country information. The guidelines warn that failing to consider a claim, or failing to consider it fully, may amount to a jurisdictional error. A Protection Visa Subclass 866 application is therefore assessed on everything that clearly arises from the file, not only the headings the applicant chose.

That does not mean an applicant can leave claims out and expect the officer to find them. The duty to consider implied claims is limited to claims that clearly arise. It is not a safety net for a thin application.

Who has to prove a Protection Visa Subclass 866 application?

The applicant does. Section 5AAA(2) of the Migration Act 1958 makes it the applicant's responsibility to specify all particulars of the protection claim and to provide sufficient evidence to establish it. Section 5AAA(4) states that the officer has no responsibility or obligation to specify the claims, to help specify them, or to establish them for the applicant.

This rule applies to every Protection Visa Subclass 866 application made on or after 14 April 2015, and to applications that were still undecided on that date. Its stated purpose is to encourage applicants to put all their claims and evidence forward in the application itself.

Section 5AAA does not remove the officer's other duties. The guidelines state that the officer must still:

• consider and evaluate all relevant facts;
• comply with the procedural fairness requirements in the Migration Act, including the power to seek further information under section 56;
• consider implied claims; and
• make a robust assessment, giving the benefit of the doubt only where the officer is satisfied about the applicant's general credibility.

The practical meaning is simple. A Protection Visa Subclass 866 application succeeds or fails largely on what the applicant puts in front of the decision maker. The officer tests the case. The officer does not build it. That is why the quality of the applicant's own account, and the evidence that supports it, matters more than anything else in the process. Our guide to Protection visa evidence explains what kinds of material support a claim.

How credibility is assessed in a Protection Visa Subclass 866 application

Credibility is assessed by testing the applicant's claims against the other evidence and the applicant's own earlier statements, and then deciding how much weight each piece of evidence deserves. The guidelines state that credibility findings must have logical grounds. They must be based on facts and supported by evidence. They must not be based on the officer's subjective beliefs about whether a claim sounds true.

There is no legal requirement to test credibility in every case. If the officer does not test it, the claims are taken to be accepted at face value for the purpose of applying the refugee and complementary protection tests. In practice, credibility is tested in most contested files, and it is the issue on which a Protection Visa Subclass 866 application is most often decided.

Inconsistencies, contradictions and omissions

The officer looks for differences between the application, the statement, the interview, identity documents, travel records and third-party material. The question is whether a difference is serious enough to raise real doubt about the claims.

The guidelines contain an important protection for applicants. An inability to give a precisely accurate or consistent account of past events should not lead to automatic rejection of a claim. People forget dates, places and distances because of trauma or the passage of time. The guidelines state that an officer must take care not to join a series of minor inconsistencies together in order to avoid accepting a claim.

The officer is directed to ask whether the inconsistency concerns a material fact, whether there is a mitigating explanation, whether it is serious enough to bring the whole body of evidence into question, and whether the applicant has had a chance to respond.

Vague, implausible or thin claims

A claim may be doubted if it is vague, implausible or incoherent, or if it lacks the detail a person in the applicant's position would be expected to know. A person who says they were an active member of a political group, but cannot describe its activities, invites doubt. Detail, in the applicant's own words, is one of the strongest features of a credible Protection Visa Subclass 866 application.

Delay in applying or in raising a claim

Delay is often raised. The guidelines accept that there are many reasons for delay, including changes in country conditions, fear, stress, not knowing that protection could be sought, and poor or incorrect immigration advice. The officer is directed to explore the reasons for delay with the applicant before relying on it. The guidelines also state that delay should not be the only reason for rejecting a claim. Our guide to a delayed Subclass 866 Protection visa application deals with this issue in more detail.

Demeanour

Demeanour means the way a person gives evidence: their manner, hesitation, eye contact and emotion. The guidelines treat it with caution. They list many factors that affect demeanour, including giving evidence through an interpreter or by video, anxiety, trauma, disability, cultural background and the discussion of very personal matters. The guidelines state that demeanour must not be the sole basis for an adverse credibility finding and should, at best, be a minor factor.

Section 91V of the Migration Act also allows the officer to ask an applicant to confirm information on oath or affirmation. If the applicant refuses after being warned, a reasonable adverse inference may be drawn. The guidelines state that a Protection Visa Subclass 866 application may not be refused solely on the basis of that inference.

Mitigating circumstances

The guidelines direct officers to consider mitigating circumstances before making an adverse finding. These include mental or emotional trauma, torture, forgetfulness, differences in the way two people perceive the same event, and feelings of shame, fear or mistrust of authorities. Claims involving gender-based harm or sexual violence are specifically identified as claims where painful memories and shame may affect how the applicant gives evidence. Special allowances are also made for minors. The Department's approach to claims based on sexual orientation or gender identity is discussed in our guide to LGBTI Protection visas in Australia.

A mitigating circumstance does not make a claim true. It explains why an honest applicant might still give an imperfect account. Where such circumstances exist, they should be raised, with evidence, so the officer can take them into account when assessing the Protection Visa Subclass 866 application.

When does the benefit of the doubt apply to a Protection Visa Subclass 866 application?

The benefit of the doubt applies only where the officer is satisfied about the applicant's general credibility. It is not a presumption that every claim is true. The guidelines state that the applicant is not entitled to have claims accepted simply because it is possible that they could be true.

At the same time, officers must be sensitive to the difficulty many applicants face in obtaining documents. There is no requirement that a claim be supported by independent evidence before it can be accepted. Where an officer cannot confirm a claim through research, the guidelines say the officer should not attempt to find whether the events took place, and may instead consider giving the benefit of the doubt.

The guidelines set out the conditions. It may be appropriate to give the benefit of the doubt if the officer is satisfied that:

• the applicant has made a genuine effort to substantiate the claims;
• all documentary evidence available to the applicant has been provided, or the absence of it has been satisfactorily explained;
• the claims have been considered against all relevant country information and any independent expert advice;
• the claims are generally coherent and plausible, and are not contrary to country information or other known facts;
• the applicant has satisfactorily explained any concerns raised, such as delay; and
• there is no objective evidence that discounts the claims, and no reasonable prospect of obtaining further information that might discount them.

These conditions are a practical guide to what a well-prepared Protection Visa Subclass 866 application looks like. Each one is within the applicant's control, except the last.

How country information is used in a Protection Visa Subclass 866 application

Country information is used to test whether the applicant's account fits what is known about the country, and to decide whether the feared harm is real. It is also used to decide questions such as whether the authorities could protect the applicant and whether the risk exists in all parts of the country.

Ministerial Direction No. 84, made under section 499 of the Migration Act, requires the decision maker to take into account any country information assessment that the Department of Foreign Affairs and Trade has prepared expressly for protection purposes, where it is relevant. The Department's instruction on country of origin information explains that these reports are not meant to be the sole basis for a decision. The decision maker is not prevented from considering other relevant information that is more up to date. The officer must record in the decision record that the report was taken into account.

The instruction also states that there is no generally accepted hierarchy of sources. The usefulness of a source depends on the question being asked. Human rights organisations may be better for general conditions, and local media may be better for a particular event. Where sources conflict, the officer must weigh each one and explain the reasoning in the decision record.

The instruction warns officers about three errors: misquoting a primary source, false corroboration where several reports repeat the same original source, and round tripping where secondary sources cite each other. Anonymous blogs and openly edited websites do not meet the Department's evaluation criteria.

For applicants, this has a direct consequence. Country information supplied with a Protection Visa Subclass 866 application should be current, traceable to its original source and relevant to the applicant's specific claim. A general report that a country has human rights problems adds little. A reliable report that people in the applicant's exact situation are targeted, and that the police do not protect them, can be decisive.

How documents and expert reports are weighed

Documents and expert reports are weighed according to their reliability and their relevance to the material facts. The officer examines each relevant document and decides whether to accept it as genuine and, if not, why not.

A document that may be bogus can be referred to the Department's Document Examination Unit. Before making a finding, the officer should put the concern to the applicant and invite comment. The guidelines state that a bogus document does not necessarily mean the claims are untrue, but it may cast doubt on other documents. Section 91WA of the Migration Act requires refusal in some cases where a bogus document is provided as evidence of identity, nationality or citizenship without a reasonable explanation.

A lack of documents should not automatically lead to an adverse finding. The guidelines recognise that there may be genuine reasons why documents cannot be obtained.

Expert reports receive particular treatment. Officers are to have due regard to expert reports, such as reports from medical practitioners or psychologists. They should decide what weight to give a report, but should not substitute their own opinion for that of a reliable expert. If the officer does not accept an expert's conclusion, the decision record must give clear reasons. The guidelines also note that a mere letter of support is generally not independent evidence. Our Protection visa documents checklist sets out the documents that are usually relevant to a Protection Visa Subclass 866 application.

What happens before an adverse finding is made?

Before an adverse finding is relied on to refuse a Protection Visa Subclass 866 application, the applicant must usually be given a chance to respond. Under section 57 of the Migration Act, relevant information must be put to the applicant for comment before a decision is made. Relevant information is information that would be the reason, or part of the reason, for refusal, that is specifically about the applicant, and that was not given by the applicant for the purpose of the application.

The guidelines state that failing to comply with section 57 on credibility concerns may deny the applicant a proper chance to explain, and may cause the decision to be affected by jurisdictional error. Where a concern falls outside section 57, the officer still has a discretion to invite further information under section 56.

The interview is also used for this purpose. The officer explores concerns with the applicant, asks for clarification and may put information to the applicant on the spot. Our page on the Protection visa interview and our guide to Protection visa interview questions explain what to expect. A written invitation to comment is dealt with in our guide to a section 56 request for more information.

A section 57 letter is often the clearest view an applicant gets of the officer's thinking. It shows which parts of the Protection Visa Subclass 866 application the officer doubts, and why. A full, point-by-point response, supported by evidence, is essential.

What goes into the decision record for a Protection Visa Subclass 866 application?

The decision record for a Protection Visa Subclass 866 application must summarise the claims and evidence, record the officer's identity finding, set out the findings on each claim with the evidence taken into account, and state the conclusion. The officer must complete this record of assessment before the visa is granted or refused.

The guidelines require the record to be accurate, logical, balanced and based on sound reasoning. Findings must be supported by evidence. The record must be written in plain English and must quote the relevant legislation rather than paraphrase it. Emotive terms, personal opinion, generalisations and large blocks of text copied from other assessments are to be avoided.

Where claims are not accepted, the record must explain why. It must set out the information taken into account, particularly country information and any responses to section 56 or section 57 letters. It must explain why the officer preferred one piece of conflicting evidence over another. It must also give reasons for giving, or not giving, the benefit of the doubt. Where the officer accepts claims, there is no legal requirement to give reasons, but policy is to list the accepted claims briefly.

Section 36A of the Migration Act also requires the officer to record whether the applicant engages protection obligations, even where the visa is refused on another ground.

The record matters most after a refusal. Under section 352 of the Migration Act, if the refusal is taken to the Administrative Review Tribunal, the Department must give the Tribunal a statement setting out the findings of fact, the evidence on which they were based and the reasons for the decision. The decision record serves that purpose. A careful reading of the record shows exactly which findings need to be answered on review. The time limit to apply for review is short and strictly applied. Our page on Protection visa refusals and our guide to appealing a Protection visa refusal to the ART explain the next steps.

What makes a Protection Visa Subclass 866 application persuasive?

A persuasive Protection Visa Subclass 866 application is one that allows the decision maker to accept the material facts and apply the law to them without unresolved doubt. It does not depend on dramatic language. It depends on detail, consistency and evidence.

In practice, the features that carry most weight are these:

• A complete account at lodgement. Every claim the applicant wishes to advance is set out, in the applicant's own words, with dates, places and people identified as far as the applicant can recall them.
• Consistency across the file. The form, the statement, earlier visa applications and identity documents tell the same story. Any difference is identified and explained before the officer finds it.
• Evidence tied to each material fact. Documents, third-party statements and expert reports are linked to the specific facts they support.
• Relevant country information. Current, reliable sources that address the applicant's particular risk, not the country in general.
• Explanations for gaps. Missing documents, delay and memory difficulties are explained, with evidence of any trauma or health issue where it exists.
• Every ground considered. Where the facts may not meet the refugee test, the claims are also assessed against complementary protection.
• Prompt, complete responses. Every request and every invitation to comment is answered fully and on time.

None of these features changes the facts. They make sure the facts are presented in a form the decision maker can assess and accept.

How My Migration Lawyers helps with a Protection Visa Subclass 866 application

My Migration Lawyers prepares and manages each Protection Visa Subclass 866 application with the Department's assessment method in mind, from lodgement to decision. The firm deals with complex protection matters and acts in many Subclass 866 applications, including cases involving credibility concerns, identity questions, delayed applications, earlier visa histories that must be explained and section 57 letters. It is capable of handling matters of this kind at every stage.

The firm presents the client's own account and evidence in the form the law requires. The statement of claims is the client's own evidence, reviewed and corrected by the client, and the client decides which claims are advanced. Before lodgement, the firm checks the file for inconsistencies with earlier visa applications and identity documents, so that differences can be explained rather than discovered. It identifies relevant, current country information, and it arranges expert evidence where the client's circumstances call for it.

After lodgement, the firm prepares the client for interview, responds to section 56 and section 57 letters, and reviews any decision record carefully. The firm's Principal Lawyer, Weiwei Zhang, leads its Protection visa work. More information is on our Protection visa lawyers page. The firm works on a fixed fee agreed in writing before work starts.

Anyone preparing a Protection Visa Subclass 866 application, or concerned about how an existing application will be assessed, can book a consultation with My Migration Lawyers online. Prospective clients can also call My Migration Lawyers on 1300 040 300.