Protection Visa Subclass 866 Top 5 Mistakes

The Protection Visa Subclass 866 top 5 mistakes are, in most cases, mistakes in the written statement of claims. The statement is the applicant's own account of why they fear returning home. It is read before the interview, compared with every other document on the file, and used to test everything the applicant says afterwards. A weak or flawed statement is very difficult to repair.

This article explains the Protection Visa Subclass 866 top 5 mistakes that arise in the statement of claims, why each one matters, and how each can be avoided or corrected. It is written for applicants who are preparing a statement, who have already lodged one and are worried about it, or who are preparing for an interview or review and want to understand where their statement may be vulnerable.

Why the statement of claims decides so much

The statement of claims matters because it becomes the benchmark against which the applicant's credibility is measured. That is why the Protection Visa Subclass 866 top 5 mistakes are concentrated there.

The Department's Protection Visa Processing Guidelines explain that credibility is assessed by considering the claims in light of supporting documents, other evidence and country information. Where an applicant's accounts differ, the statement is usually the fixed point from which the differences are measured. Answers at interview are compared with it. Evidence at review is compared with it.

The statement also carries a legal responsibility. Section 5AAA(2) of the Migration Act makes it the applicant's responsibility to specify all particulars of their claim and to provide sufficient evidence to establish it. The guidelines explain that section 5AAA(4) provides that officers have no obligation to specify or establish claims for the applicant. The statement is where that responsibility is met.

The firm's guide to the protection visa statement of claims explains the structure of a good statement. This article focuses on what goes wrong.

Protection Visa Subclass 866 top 5 mistakes at a glance

The Protection Visa Subclass 866 top 5 mistakes in the statement of claims are:

• Leaving out claims or important facts. A claim that is not in the statement may be treated with suspicion when it appears later.
• Writing in general terms without detail. An account that never describes specific events is hard to accept.
• Contradicting earlier accounts. A statement that differs from earlier visa applications or the application form creates inconsistencies.
• Telling the story without addressing the legal test. A statement that does not explain why the facts meet the law leaves that analysis to the decision maker.
• Signing a statement that is not the applicant's own. A statement written by someone else, copied from a template or exaggerated will not survive the interview.

Each is explained below. The legal test the statement must meet is summarised in the firm's guide to the Subclass 866 protection visa.

Mistake one: leaving out claims or important facts

The first of the Protection Visa Subclass 866 top 5 mistakes is omission. Applicants leave things out for many reasons. They may not realise a fact is relevant. They may be ashamed or afraid. They may think a claim is too minor, or that a second reason for fear will complicate the first.

The consequences can be serious. Under section 5AAA, it is the applicant's responsibility to put forward every claim. A claim that first appears at interview may prompt the question why it was not in the statement. A claim that first appears at the Administrative Review Tribunal is subject to section 423A, which requires the Tribunal to draw an unfavourable inference about the credibility of a new claim or new evidence where there is no reasonable explanation for not raising it earlier.

Omissions are especially common in claims involving sexual orientation, gender identity, sexual violence and harm within the family. The firm's article on LGBTI protection visas in Australia discusses why disclosure in those claims is so difficult.

How to avoid it. Before the statement is written, the applicant should be asked about every possible reason for fear, including the reasons they might not think are relevant. Every family member's situation should be considered. The statement should include every claim the applicant wishes to advance, with the facts that support it. The applicant decides which claims are advanced, but that decision should be informed.

Who makes the Protection Visa Subclass 866 top 5 mistakes?

Anyone can make the Protection Visa Subclass 866 top 5 mistakes, but some situations make them far more likely.

• Applying in a hurry. An applicant whose visa is about to expire may rush the statement to lodge in time. A statement prepared in a few days, under pressure, is more likely to leave things out or contain errors.
• Relying on informal help. Friends, relatives and community members often help with statements. Their intentions are good, but they may not know what the law requires, may write in their own words rather than the applicant's, or may suggest adding things the applicant did not say.
• Writing in a second language. An applicant who writes the statement in English, when English is not their first language, may express things in ways they did not intend.
• Not reviewing earlier applications. Many applicants do not have copies of their earlier visa applications and do not remember exactly what they said.

Recognising these risks is the first step in avoiding the Protection Visa Subclass 866 top 5 mistakes. Where an applicant is in one of these situations, extra time and care are needed before the statement is signed.

Mistake two: writing in general terms without detail

The second of the Protection Visa Subclass 866 top 5 mistakes is vagueness. A statement that says "I was threatened many times", "the police did not help" or "people like me are persecuted" tells the decision maker very little.

A decision maker expects a person describing events they lived through to give some detail. Where did it happen? Who was involved? What was said? What happened next? How did the applicant respond? A statement that answers those questions for the key events is far more persuasive than one that stays at a general level.

General statements about conditions in the country are not a substitute for the applicant's own experience. Country information is important, but it is used to show that the applicant's account is plausible. It cannot replace the account itself.

How to avoid it. For each important event, the statement should record, as far as the applicant genuinely remembers, the date or approximate time, the place, the people involved, what was said and done, and the consequences. Where the applicant cannot remember a detail, the statement should say so. A guessed detail that proves wrong creates an inconsistency, which is worse than an honest gap. The firm's article on what evidence supports a protection claim explains how detail and corroboration work together.

Mistake three: contradicting earlier accounts

The third of the Protection Visa Subclass 866 top 5 mistakes is inconsistency with what the applicant has said before. Most applicants have made at least one earlier visa application, usually for a visitor or student visa. The Department holds those applications and will compare them with the statement.

Common points of conflict include:

• the stated purpose of the trip to Australia;
• employment history and income;
• marital status and family members;
• addresses and periods of residence;
• travel to other countries; and
• the date the applicant decided they could not return.

An earlier application that described a stable job and a plan to return home may be put to the applicant as inconsistent with a claim of fear. The same applies to differences between the statement and the answers in the application form itself.

How to avoid it. This is one of the Protection Visa Subclass 866 top 5 mistakes that is almost entirely preventable. Before the statement is written, every earlier visa application and statement should be obtained and reviewed. Where there are differences, the statement should acknowledge and explain them candidly. Many people who flee say what they need to say to obtain a visa. That is a common and understandable explanation, but it must be given, not left for the Department to discover. The firm's guide to Form 80 explains why personal particulars must be consistent across every document.

Supporting documents that conflict with the statement

Documents can reinforce the Protection Visa Subclass 866 top 5 mistakes rather than cure them. A document that says something different from the statement creates a new inconsistency, even if the document is genuine.

Common examples include a medical record that dates an injury differently from the statement, a letter from a community leader that describes events in a different order, or a translation that uses a different name for a place or person. Each difference may be innocent, but each will be noticed.

Every document should therefore be read against the statement before it is provided. Where there is a difference, it should either be corrected, if the document or translation is wrong, or explained, if the difference has a genuine reason. A document whose origin the applicant cannot explain should not be relied on. The firm's protection visa documents checklist explains which documents an application should include.

Statements from family members in the same application

Where family members are included in the same application, their accounts will also be compared. A spouse or adult child who describes shared events differently from the main applicant creates the same kind of inconsistency as a contradiction within one statement.

Family members should not be coached to give identical accounts. Genuine memories differ, and identical wording can itself raise doubts. What matters is that each family member's account is their own, is accurate, and is consistent with the others on the central facts. Where a family member has their own reasons for fear, those should be set out as well. Overlooking a family member's account is one of the less obvious Protection Visa Subclass 866 top 5 mistakes, and it can undermine an otherwise strong claim.

Mistake four: telling the story without addressing the legal test

The fourth of the Protection Visa Subclass 866 top 5 mistakes is legal rather than factual. A statement can be detailed, consistent and truthful, and still fail because it does not engage with the elements of the law.

For the refugee criterion, the statement should make clear why the applicant fears harm, and whether the reason is race, religion, nationality, membership of a particular social group or political opinion. The Department's guidelines explain that section 5J(4)(a) requires one of those reasons to be the essential and significant reason for the persecution.

The statement should also address the questions a decision maker will ask about every claim:

• Future risk. What does the applicant believe will happen if they return now, and why?
• State protection. Did the applicant seek help from the authorities, and what happened? If not, why not?
• Relocation. Why could the applicant not live safely in another part of the country?
• Modification of behaviour. Where the claim concerns religion, opinion or identity, why the applicant cannot be expected to hide it.

For complementary protection, the statement should describe the kind of harm feared in terms that allow it to be assessed against the categories of significant harm in section 36(2A). The firm's page on complementary protection explains that test.

How to avoid it. Of the Protection Visa Subclass 866 top 5 mistakes, this is the one where legal advice makes the most difference. The statement should present the facts in the applicant's own words, and a separate legal submission should explain how those facts meet each element of the test. The statement remains the applicant's evidence. The submission is where the legal argument is made.

Mistake five: signing a statement that is not the applicant's own

The fifth of the Protection Visa Subclass 866 top 5 mistakes is the most dangerous. It is signing a statement that the applicant did not write, does not fully understand, or cannot stand behind.

This happens in several ways. A friend or relative writes the statement in English and the applicant signs it without it being read back in their language. A statement is copied or adapted from someone else's. Events are exaggerated in the belief that a stronger story will succeed. Details are added that the applicant does not remember.

Decision makers read many statements. Statements that follow a familiar template, or that describe events in language the applicant would not use, are noticed. More importantly, the interview tests the statement against the applicant's own recollection. An applicant who cannot describe events that appear in their own statement, or who describes them differently, will face serious credibility concerns.

How to avoid it. The statement must be the applicant's own account. If someone helps prepare it, the statement should be read back to the applicant in their own language, line by line, and corrected until it is accurate. The applicant should be comfortable answering questions about every sentence. Nothing should be added that the applicant did not say. A lawyer's role is to help the applicant present their own account clearly and completely, never to improve it.

A checklist to avoid the Protection Visa Subclass 866 top 5 mistakes

Before a statement is signed, the following checklist helps avoid the Protection Visa Subclass 866 top 5 mistakes.

• Has every possible reason for fear been discussed, including those the applicant thought were not relevant?
• Does the statement include every claim the applicant has decided to advance, with the facts that support it?
• Does each key event have genuine detail: when, where, who, what was said and what happened next?
• Does the statement say honestly where the applicant cannot remember a detail?
• Have all earlier visa applications and statements been reviewed, and is every difference acknowledged and explained?
• Does the statement address future risk, state protection, relocation and, where relevant, modification of behaviour?
• Has every supporting document been read against the statement?
• Has the statement been read back to the applicant in their own language, line by line?
• Is the applicant comfortable answering questions about every sentence?

A statement that passes each of these checks is much less likely to contain any of the Protection Visa Subclass 866 top 5 mistakes. A statement that fails any of them should not be signed until the problem is fixed. Taking an extra week to get the statement right is almost always worth it.

Correcting a mistake after the statement is lodged

A mistake in a lodged statement is not always fatal. Understanding how to correct the Protection Visa Subclass 866 top 5 mistakes after lodgement can make a real difference.

The Department's guidelines explain that an applicant may submit further information or evidence at any time after lodgement before a decision is made. A correction or addition can therefore be provided. The key is how it is done.

• Act early. A correction made before the interview is far more credible than one made after the interview has exposed the problem.
• Explain it. A correction should explain what was wrong, why, and what the correct position is. An unexplained change looks like a changing story.
• Keep it consistent. The correction should fit with the rest of the evidence.
• Do not overcorrect. A correction should fix the problem, not rewrite the whole account.

Where a correction concerns identity documents, sections 91W and 91WA of the Migration Act have specific consequences, and advice should be obtained first. The firm's guide to Form 1022 explains how changes of circumstances are notified.

Protection Visa Subclass 866 top 5 mistakes at interview and review

The Protection Visa Subclass 866 top 5 mistakes in the statement usually surface at the interview. The officer will ask about the statement, test its detail, and put any inconsistencies to the applicant. The firm's guide to protection visa interview questions explains what to expect.

If the visa is refused because of a problem that began in the statement, the review is an opportunity to address it. The Administrative Review Tribunal reconsiders the claim afresh. A review should confront the specific findings, explain any inconsistency, and provide evidence that answers the concern. It should not present a new version of events. The firm's guide to appealing a protection visa refusal to the ART explains the process. The time to apply for review is short and strictly applied.

How My Migration Lawyers helps avoid the Protection Visa Subclass 866 top 5 mistakes

My Migration Lawyers prepares protection visa statements with the care the document deserves, because it knows the statement is where most claims are won or lost. The firm acts in many protection visa matters, including complex cases involving late disclosure, inconsistent earlier applications and multiple grounds of claim, and it is capable of handling those matters from the first statement through to review.

In preparing a statement, the firm's work typically includes:

• taking the applicant's full account over as many sessions as needed, with an interpreter the applicant trusts;
• obtaining and reviewing every earlier visa application and statement;
• recording genuine detail for each key event, and noting honestly what the applicant cannot recall;
• reading the statement back to the applicant in their own language until it is accurate;
• preparing a separate legal submission that explains how the facts meet the refugee and complementary protection criteria; and
• correcting any error promptly and with a clear explanation if one is found.

The firm presents the applicant's own account and evidence in the form the law requires. The applicant decides which claims are advanced, and the statement remains their own evidence, reviewed and corrected by them.

The firm's protection work is led by Principal Lawyer Weiwei Zhang. More about the practice is on the protection visa lawyers page, and the full framework is in the Subclass 866 Protection Visa complete guide.

If you want to avoid the Protection Visa Subclass 866 top 5 mistakes in your own statement, or you are worried about a statement you have already lodged, book a consultation with My Migration Lawyers online, or call 1300 040 300.