Key Takeaways
- The success rate for protection visa Subclass 866 applications in any published period says little about an individual case. What decides an individual case is credibility, consistency, country information and whether the claim is framed against the legal test.
- Credibility is assessed by looking at the detail of the account, whether it is consistent with itself and with earlier statements, whether it is consistent with country information, and whether it is plausible.
- Everything an applicant has told the Department, including in earlier visitor, student or partner visa applications, can be compared with the protection claims. Consistency must be checked across all of it before lodgement.
- A claim should be framed against both the refugee criterion and complementary protection, and should deal directly with relocation, state protection and personal risk.
- Preparation is the part of the outcome an applicant controls. It happens before lodgement, before the interview and before any response to the Department.
What is the success rate for protection visa Subclass 866?
The success rate for protection visa Subclass 866 applications changes from month to month in the Department's published figures, and it does not predict any individual outcome. What decides an individual application is how the claim is prepared and how it stands up to the questions the decision maker must ask.
This article is written for people who have not yet lodged, or who are about to. They want to know their chances before committing to an application that, if refused, generally cannot be repeated in Australia. That is the right question to ask. But the answer does not come from a national percentage.
A published success rate for protection visa Subclass 866 applications combines people from many countries, with many kinds of claims, decided at different times, some with advice and some without. It says nothing about which of those applications were well prepared. The figures and what they measure are discussed in our article on protection visa success rates in Australia.
The factors that decide the outcome
The factors that decide the outcome are the ones this article deals with: credibility, consistency, country information, the framing of the claim, corroborating evidence, timing and the interview. Each of them is affected by preparation. That is why the success rate for protection visa Subclass 866 applications prepared with care can look very different from the success rate for applications lodged in a hurry.
Why the first application matters so much
Section 48A of the Migration Act 1958 generally prevents a further protection visa application in Australia after a refusal. The first application is therefore not a trial run. It is the application.
What do decision makers weigh when deciding a Subclass 866 claim?
Decision makers weigh whether they accept the applicant's account, whether the accepted facts meet the refugee or complementary protection test, and whether any exception, such as relocation or state protection, answers the risk.
The order of the assessment
The decision maker first makes findings of fact. What happened to the applicant? What do they fear? Who would harm them and why? Only then does the decision maker apply the legal test to the facts they accept. A claim that is not believed never reaches the legal test.
The standard the applicant must meet
The applicant must satisfy the decision maker. Section 5AAA of the Migration Act places the responsibility on the applicant to specify all the particulars of the claim and to provide sufficient evidence to establish it. The decision maker does not have to build the case.
Why this matters for the success rate for protection visa Subclass 866
Most refusals turn on the first stage, the findings of fact. That is where preparation has the greatest effect. Our article on evidence in a protection visa application explains the evidence that supports those findings.
How the success rate for protection visa Subclass 866 differs by type of claim
The success rate for protection visa Subclass 866 applications differs by type of claim because each type of claim raises its own questions, and the questions that decide one kind of claim are often not the questions that decide another.
Political claims
Political claims usually turn on whether the applicant's profile is high enough to attract attention, and whether the authorities know of the applicant's activity. Evidence of membership and activity, and of any adverse attention, is central.
Religious claims
Religious claims often turn on the genuineness of belief or conversion, and on how the religion would be practised on return. The applicant cannot be required to hide their religion to be safe. Practice in Australia is disregarded unless it was not engaged in to strengthen the claim.
Claims based on sexual orientation or gender identity
These claims usually turn on the applicant's own account of identity and experience. Decision makers are expected to approach them with sensitivity and must not require the applicant to live discreetly.
Claims involving family or community violence
Claims involving violence by family or community members often turn on state protection and relocation. Evidence about how the authorities respond to such violence, in practice, is central.
Complementary protection claims
Claims that rely only on complementary protection must show a real risk of one of the specific types of significant harm, personal to the applicant. General danger is not enough.
Knowing which questions apply to your type of claim is part of preparing it properly.
How is credibility assessed in a protection visa claim?
Credibility is assessed by looking at the detail of the account, its internal consistency, its consistency with earlier statements and with country information, and its plausibility, while allowing for the effects of trauma, time and interpretation.
Detail
A detailed account of the central events is more likely to be accepted than a general one. Detail means what happened, when, where, who was involved, what was said and how the applicant responded. The detail should be the applicant's own memory, not a reconstruction.
Internal consistency
The account should be consistent with itself. Dates, sequences and names should not change from one part of the account to another.
External consistency
The account should be consistent with earlier statements and with country information. Where it is not, the reason must be explained.
Plausibility
The decision maker will ask whether events happened in a way that makes sense. Plausibility findings should be made carefully, and an applicant can explain why events that seem unusual did in fact happen.
Allowances decision makers should make
The Department's guidance recognises that trauma, the passage of time, cultural factors and interpretation can affect how an applicant gives evidence. Where the decision maker is unsure about an aspect of a generally credible account, the benefit of the doubt may be given. These allowances are more likely to be made where the reasons for any difficulty are explained.
Why consistency across every statement decides the success rate for protection visa Subclass 866
Consistency across every statement the applicant has ever made to the Department decides the success rate for protection visa Subclass 866 applications more than any other single factor, because inconsistency is the most common basis for an adverse credibility finding.
What the Department compares
The Department can compare the protection application with visitor, student, partner and other visa applications, with arrival and departure records, with the statement of claims, with the interview and with documents. Anything the applicant has said before is on the record.
Common sources of inconsistency
Common sources of inconsistency include earlier visa applications that described a stable life at home, employment or study histories that differ between forms, travel that is not mentioned in the protection claims, and family details that change between applications.
How to deal with inconsistency before lodgement
Before lodgement, every earlier statement should be reviewed and compared with the protection claims. Each difference should be identified. Where there is a genuine explanation, such as concealing danger in order to leave, or an earlier form completed by someone else, it should be set out in the claims. An explained difference is far less damaging than an unexplained one. Our article on the protection visa statement of claims explains how this is done.
Consistency with what you will say at interview
The statement of claims will be read before the interview and compared with the answers given. The statement must be the applicant's own account, in language the applicant understands, read back and corrected before it is lodged.
How country information affects the success rate for protection visa Subclass 866
Country information affects the success rate for protection visa Subclass 866 applications because decision makers rely on it to decide whether the account is plausible, whether people in the applicant's situation are at risk, and whether relocation or state protection is available.
What decision makers use
The Department relies on its own country information and on reports from reliable sources. Its published guidance on the use of country of origin information describes how decision makers are expected to weigh it.
Making country information work for the claim
The claim should be read against current country information before lodgement. Where the information supports the claim, it should be identified and provided. Where it appears to contradict the claim, the reason it does not apply to the applicant should be explained.
Specific rather than general
Information about people in the applicant's specific situation, such as a particular ethnic or religious group, a particular political profile or women in a particular position, is more persuasive than general information about the country.
How framing the claim affects the success rate for protection visa Subclass 866
Framing the claim correctly against the legal test affects the success rate for protection visa Subclass 866 applications because a true account that is not connected to the legal criteria can still be refused.
Consider both pathways
The refugee criterion in section 36(2)(a) and complementary protection in section 36(2)(aa) are separate tests. A claim should be assessed against both. Some claims fail the refugee test because there is no Convention reason, but succeed under complementary protection. Our page on complementary protection explains the second test.
Identify the Convention reason
For a refugee claim, the reason for the harm must be identified clearly. Membership of a particular social group, religion and political opinion often overlap, and each should be considered. Our pages on religious persecution and LGBTI protection visas deal with two common grounds.
Deal with the exceptions
The claim should deal directly with relocation, state protection and whether the risk is personal. These are the issues on which many accepted accounts still fail.
How corroborating evidence affects the success rate for protection visa Subclass 866
Corroborating evidence improves the success rate for protection visa Subclass 866 applications by supporting the account the decision maker must assess, but a claim can succeed without documents where the account is credible.
What corroboration means
Corroboration is evidence that supports the applicant's account from another source. Examples include medical records, police or court documents, letters from organisations, photographs, messages and statements from witnesses.
Quality over quantity
One reliable document that goes to a central event is worth more than many general documents. A false or doubtful document can damage the whole claim. Our protection visa documents checklist sets out what is usually provided.
When documents are not available
Many genuine applicants have few documents. Where documents are unavailable, the reason should be explained. The decision maker is expected to take account of the difficulty genuine refugees face in obtaining documents.
How timing affects the success rate for protection visa Subclass 866
Timing affects the success rate for protection visa Subclass 866 applications in two ways: a long delay after arrival can be used to question the claim, and lodging in a rush can leave the claim incomplete.
Delay
The Department will ask why an applicant did not apply earlier. Genuine reasons should be explained. Our article on delaying a Subclass 866 protection visa application explains how delay is assessed.
Rushing
A claim lodged quickly to beat a visa expiry date may leave out important detail. The best course is usually to prepare properly and lodge before the current visa ends, so that the bridging visa position is preserved without sacrificing the quality of the claim.
How witness and family evidence affects the success rate for protection visa Subclass 866
Witness and family evidence can support the success rate for protection visa Subclass 866 applications, but it is weighed carefully, because statements from people close to the applicant are not independent.
Statements from family members
Statements from family members can confirm events, threats and the current situation at home. They carry more weight when they are specific, consistent with the applicant's account, and explain how the writer knows what they describe.
Statements from people in Australia
Statements from people in Australia, such as religious leaders, community organisations or partners, can support claims about identity, belief or relationships. They are more useful when the writer describes what they have personally observed over time.
What reduces the weight of witness evidence
Statements that repeat the applicant's account word for word, that use legal language, or that are provided without identity details for the writer usually carry little weight. A few specific statements are better than many general ones.
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Why the interview decides the success rate for protection visa Subclass 866
The interview often decides the success rate for protection visa Subclass 866 applications, because it is where the decision maker tests the account in detail, puts inconsistencies to the applicant and forms a view on credibility.
What happens at the interview
The interview is conducted by a Department officer, usually with an interpreter, and it may last several hours. The officer asks about the applicant's background, the events at the centre of the claim, what the applicant fears and why they cannot be protected or relocate. Our guide to the protection visa interview explains the process.
How to prepare
Preparation does not mean memorising answers. It means understanding the process, reviewing everything previously lodged, and being ready to explain any difference truthfully. An applicant who hears about an inconsistency for the first time at the interview is at a disadvantage.
Interpreters
The applicant should tell the officer immediately if they do not understand the interpreter. Interpretation problems that are not raised at the time are difficult to rely on later.
After the interview
A written submission after the interview can address issues raised on the day. It should be provided promptly.
Mistakes that lower the success rate for protection visa Subclass 866 before lodgement
The mistakes that lower the success rate for protection visa Subclass 866 applications most often happen before lodgement, and most of them are difficult to repair afterwards.
Lodging a short claim to add detail later
Detail added after lodgement is often treated as invented. The claim should be complete from the start.
Using someone else's words
A statement written by another person in language the applicant does not use will be exposed at interview. The statement must be the applicant's own account.
Leaving out harmful facts
Facts that seem harmful, such as a return trip home or an earlier visa application describing a stable life, will be found. They should be disclosed and explained.
Relying on general country conditions
A claim that describes the country rather than the applicant usually fails.
Choosing the wrong ground
A claim framed only as a refugee claim, when complementary protection is the stronger pathway, or the reverse, may miss the point the decision maker must decide.
Lodging without reviewing the immigration history
Every earlier application and decision should be reviewed before lodgement. The Department will review them.
What you control and what you do not
An applicant controls the preparation of the claim, the consistency of their evidence, the explanation of any difficulty and the response to every request. An applicant does not control country conditions, the decision maker assigned, or the timing of the decision.
What you control
You control whether your account is complete and in your own words. You control whether earlier statements have been reviewed and differences explained. You control whether relocation, state protection and personal risk are dealt with. You control whether you respond to requests on time, attend the interview and keep your contact details current.
What you do not control
You do not control what the country information says, how long the Department takes, or which officer decides your case. Worrying about those things does not change the success rate for protection visa Subclass 866 applications. Preparation does, and it is available to every applicant who starts early.
When advice makes the biggest difference
Advice makes the biggest difference before lodgement. Our article on when you need a protection visa lawyer explains why.
How My Migration Lawyers prepares protection visa Subclass 866 applications
My Migration Lawyers prepares protection visa Subclass 866 applications with the factors that decide them in view from the first consultation, and the firm acts in many matters of this type, including complex claims with earlier visa histories, limited documents and relocation or state protection issues.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers is capable of handling protection matters where the facts are difficult, the claim relies on more than one ground, or the applicant's earlier statements need careful explanation.
Before lodgement
The firm reviews the client's full immigration history itself, identifies inconsistencies with earlier applications, and assesses the claim against both the refugee criterion and complementary protection. It reads the claim against current country information.
Preparing the claim
The statement of claims is the client's own account. My Migration Lawyers helps the client set it out completely and in order, and presents the client's evidence in the form the law requires. The client reviews and corrects the statement and decides which claims are advanced. The firm prepares submissions that deal with relocation, state protection and personal risk.
After lodgement
The firm acts as the Department's contact point, prepares the client for the interview, attends with them and provides post-interview submissions where needed. The firm does not promise outcomes. It works to make sure that the factors within the client's control are addressed before the decision is made.
When to contact the firm
The best time to contact the firm is before anything is lodged. At that point every factor that affects the success rate for protection visa Subclass 866 applications can still be addressed: the account, the consistency of earlier statements, the evidence and the framing of the claim. After lodgement, much can still be done, but some choices have already been made. Anyone weighing the success rate for protection visa Subclass 866 applications before deciding whether to apply should obtain advice on their own facts first.
Book a consultation with My Migration Lawyers through our online booking page before you lodge. If your visa is about to expire, you can also call 1300 040 300. You can also read more about our protection visa lawyers.
Frequently Asked Questions
Can I find out my chances before I apply for a protection visa?
No one can give you a percentage. What can be done before you apply is an assessment of your claim against the legal test, a review of your earlier visa applications for inconsistencies, and a check of the claim against country information. That assessment shows where the claim is strong and where it is exposed, which is more useful than any published success rate for protection visa Subclass 866 applications.
Will my earlier visa applications be used against me?
They can be compared with your protection claims. If an earlier visitor, student or partner visa application described your life differently, the Department may ask why. There are often genuine explanations, such as concealing danger in order to leave. The explanation should be given in the protection application itself, before the Department raises the difference at interview.
Do I need documents to succeed in a protection visa claim?
Not necessarily. A claim can succeed on the applicant's own evidence where it is credible and consistent, and decision makers are expected to take account of the difficulty genuine refugees face in obtaining documents. Reliable documents that support the central events do help. False or doubtful documents can destroy an otherwise genuine claim, so it is better to explain a missing document than to provide an unreliable one.
What if I do not understand the interpreter at my interview?
Tell the officer immediately. Interpretation problems can cause answers to be recorded incorrectly and can create apparent inconsistencies. If they are raised at the time, the officer can address them. If they are raised only after a refusal, it is much harder to show that the problem affected the outcome. A post-interview submission can also record any concern about interpretation.
Is it better to lodge quickly or to take time to prepare?
It is usually best to prepare properly and lodge before your current visa expires. Lodging while you still hold a visa generally gives you a better bridging visa. But lodging a rushed or incomplete claim can lead to inconsistencies and refusal, and a refusal generally prevents another protection application in Australia. Advice early allows both goals to be met.
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.
