Top 5 Protection Visa Application Mistakes

The top 5 protection visa application mistakes are made at the moment of lodgement, before the Department has read a single word of the claim. They concern whether the application is valid, whether it should be made at all, what the form says, what documents are attached, and when it is lodged. Each can cause lasting harm, and some cannot be undone.

This article explains the top 5 protection visa application mistakes at the lodgement stage, why each matters, and how each can be avoided. It is written for people in Australia who are considering applying for a protection visa, or who have just lodged one and want to check it. Mistakes in the written statement of claims and at the interview are covered in separate articles. This article is about the application itself.

Why lodgement mistakes are so costly

Lodgement mistakes are costly because the protection visa system gives most applicants only one real opportunity. That is why the top 5 protection visa application mistakes deserve attention before anything is submitted.

Section 48A of the Migration Act 1958 prevents a person who has been refused a protection visa in Australia from making a further protection visa application while they remain in Australia. The Department's bridging visa guidelines explain that, since 28 May 2014, the bar applies even if the new application would be based on different grounds. Only the Minister can lift it, using a personal, non-compellable power under section 48B.

Section 5AAA also makes it the applicant's responsibility to set out all particulars of their claim and to provide sufficient evidence. The Department's guidelines explain that officers have no obligation to identify or establish claims for the applicant.

Together, these rules mean that the first application must be valid, complete and made for the right reason. The firm's guide to Form 866 explains how the application is prepared.

The top 5 protection visa application mistakes at a glance

The top 5 protection visa application mistakes at lodgement are:

• Lodging when an application bar applies. An invalid application is not assessed at all.
• Lodging for the wrong reason. A protection application made without a genuine fear of harm, simply because other options have closed, carries permanent consequences.
• Getting personal particulars or family members wrong. Errors in the form create inconsistencies, and omitted family members are difficult to add later.
• Attaching the wrong documents. Bogus, unexplained or poorly translated documents can do serious harm.
• Lodging at the wrong time. Lodging after a visa has expired, or in a rush, affects the bridging visa, work rights and credibility.

Each of the top 5 protection visa application mistakes is explained below.

Mistake one: lodging when an application bar applies

The first of the top 5 protection visa application mistakes is lodging an application that cannot be valid. The Department's Protection Visa Processing Guidelines explain that an application made by a person affected by an application bar is not a valid application.

The most common bars and limits are these.

• Arrival without a valid visa. The guidelines explain that, under item 1401(3)(d) of Schedule 1 to the Migration Regulations 1994, applicants who are unauthorised maritime arrivals, or who did not hold a valid visa or were not immigration cleared when they last entered Australia, cannot lodge a valid application for the permanent Subclass 866 visa. Their pathway is a temporary protection visa.
• An earlier protection refusal. Section 48A prevents a further protection application in Australia after an earlier refusal or cancellation.
• Unauthorised maritime arrival. Section 46A bars a valid application unless the Minister lifts the bar.
• Other bars. The application form also lists people who are nationals of two or more countries and people who have held a Temporary Safe Haven visa.

Just as important is knowing what does not stop an application. A no further stay condition, such as condition 8503 on a visitor visa, expressly excludes protection visas. A refusal of another visa does not prevent a protection application.

How to avoid it. Before lodging, the applicant should confirm how they last entered Australia, whether they have ever applied for a protection visa in Australia before, and whether any other bar applies. The firm's guide to the Subclass 866 protection visa explains who can apply.

Who makes the top 5 protection visa application mistakes?

Anyone can make the top 5 protection visa application mistakes, but they are most common in a few situations.

• Applicants who apply on their own. An applicant without advice may not know which bars apply, which documents are needed, or how the form will be compared with earlier applications.
• Applicants helped by friends or community members. Informal helpers often mean well, but may not know the law, may fill in the form with their own understanding of the facts, or may suggest attaching documents of uncertain origin.
• Applicants whose visa is about to expire. Time pressure produces rushed forms, incomplete statements and unchecked documents.
• Applicants with complicated histories. Several earlier visa applications, travel through several countries or family members in different places all create more room for error.

Recognising these situations is the first step. An applicant in any of them should allow extra time and obtain advice before lodging. The firm's article on hiring an immigration lawyer after lodging your own visa application explains what can be done where an application has already been lodged. Most of the top 5 protection visa application mistakes are avoidable with that preparation.

Mistake two: lodging for the wrong reason

The second of the top 5 protection visa application mistakes is lodging a protection application when the applicant does not genuinely fear serious harm. This usually happens when a person's other visa options have closed and a protection visa appears to be the only application still open to them.

The consequences are serious. A refused application triggers the section 48A bar, which generally prevents any later protection application in Australia. If the person's circumstances later change, and a genuine claim arises, the bar may prevent them from making it. A refused application, and any findings about credibility, also remain on the person's immigration record.

A protection application is also not a neutral way to remain lawfully while other options are explored. The applicant will be questioned about their fear, and inconsistencies with their earlier visa applications will be put to them.

How to avoid it. A protection application should be made only where the applicant genuinely fears serious harm on return and the facts may meet the refugee or complementary protection criteria. Where the real concern is something else, such as a relationship with an Australian partner, other visa options should be assessed first. The firm's article on whether an applicant is eligible for a protection visa explains what to check before applying.

Mistake three: getting personal particulars or family members wrong

The third of the top 5 protection visa application mistakes is error in the application form itself. The form asks for detailed personal particulars, including names, dates, addresses, employment, education, travel and family members. Every answer can later be compared with other documents.

Common errors include:

• different spellings or versions of names without explanation;
• dates of birth, addresses or employment that differ from earlier visa applications;
• travel history that leaves out a country or a period;
• answers to character questions that are incomplete; and
• family members who are not declared.

Family members deserve particular attention. Every member of the family, whether in Australia or overseas, should be declared accurately. A family member who is left out can be difficult to add later, and the omission may itself be treated as a credibility issue. Family members in Australia who wish to be included in the application should be included from the start.

How to avoid it. Before the form is completed, the applicant should gather their passport, any earlier visa applications and a full list of addresses, employment, travel and family members. Every answer should be checked against those documents. Where something differs from an earlier application, the difference should be explained. The firm's guide to Form 80 explains why personal particulars must be consistent across every document.

Online lodgement and ImmiAccount

Most protection visa applications are lodged online through ImmiAccount. The online process creates its own opportunities for the top 5 protection visa application mistakes.

Common problems include selecting the wrong application type, entering details that differ from the paper documents, uploading documents to the wrong applicant, uploading illegible scans, and using an email address that is not checked regularly. Each can cause delay, and some can create inconsistencies that must later be explained.

The applicant should check every screen before submitting, save a copy of the completed application, and keep a record of every document uploaded. The email address given should be one the applicant checks every day, because that is where the Department will send its letters. The firm's step-by-step guide to creating an ImmiAccount explains the account. Careful online lodgement avoids several of the top 5 protection visa application mistakes before they start.

Mistake four: attaching the wrong documents

The fourth of the top 5 protection visa application mistakes is attaching documents that harm the application.

Bogus identity documents. The Department's guidelines explain that section 91WA prevents grant where the applicant provides a bogus document as evidence of identity, nationality or citizenship as part of or in connection with the application, unless the applicant has a reasonable explanation and either provides documentary evidence of identity or has taken reasonable steps to do so. A document of doubtful origin should never be attached.

Unexplained documents. A summons, warrant or letter from the home country can support a claim, but only if the applicant can explain how and when it was obtained. A document that cannot be explained invites questions about authenticity.

Poor translations. A partial or informal translation can omit or change important details. Every document not in English should be translated completely and accurately.

Documents that conflict with the claim. A document that describes events differently from the statement creates an inconsistency, even if it is genuine.

How to avoid it. Every document should be reviewed before it is attached: its origin, its authenticity, its translation and its consistency with the claim. Where identity documents are missing, the reason should be explained. The firm's protection visa documents checklist explains the documents an application should include, and its article on evidence that supports a protection claim explains how documents are weighed.

Representatives and authorised recipients

Many applicants appoint a lawyer or registered migration agent to help with the application, and some appoint a person to receive correspondence. Getting the appointment wrong can contribute to the top 5 protection visa application mistakes, because letters may go to the wrong place.

A representative or authorised recipient is appointed using the Department's forms. Once an appointment is made, the Department sends correspondence to that person. If the appointment is incomplete, or is not updated when the applicant changes representative, requests and decisions may be missed. The firm's guide to Form 956 and 956A explains how appointments work.

An applicant should also be cautious about unregistered helpers who offer to prepare applications for a fee. Only lawyers and registered migration agents may lawfully give immigration assistance for reward. An application prepared by an unqualified helper is more likely to contain the top 5 protection visa application mistakes, and the applicant, not the helper, bears the consequences.

Mistake five: lodging at the wrong time

The fifth of the top 5 protection visa application mistakes is timing. Lodging too late and lodging in a rush both cause problems.

Lodging after the visa has expired. A person who lodges while still holding a substantive visa, such as a visitor or student visa, is usually considered for a Bridging visa A. A person who lodges after their visa has expired is unlawful, is liable to detention, and may be considered for a Bridging visa E, which often carries a no work condition in the first instance. The Department's bridging visa guidelines explain that a protection applicant seeking permission to work on a further Bridging visa E must show a compelling need to work and an acceptable reason for any delay in applying.

Unexplained delay. A long delay between arriving in Australia and applying for protection may prompt the question why the applicant did not seek protection sooner. Delay is not fatal, but it must be explained. The firm's article on whether delaying a Subclass 866 application affects a claim explains this.

Lodging in a rush. An applicant whose visa is about to expire may lodge a hurried application with an incomplete statement and unchecked answers. That creates the other lodgement mistakes described in this article.

How to avoid it. Where possible, the applicant should seek advice well before their visa expires, so that the application can be prepared properly and lodged while they are still lawful. The firm's overview of bridging visas in Australia explains the different bridging visas.

What a complete protection visa application includes

Avoiding the top 5 protection visa application mistakes is easier with a clear picture of what a complete application contains. A well-prepared application usually includes:

• the completed application, with accurate personal particulars for every applicant;
• a detailed statement of claims in the applicant's own words;
• identity documents, or a written explanation of why they are unavailable;
• supporting evidence relevant to the claims, with complete translations;
• a legal submission explaining how the facts meet the refugee or complementary protection criteria; and
• where a representative is appointed, the correct appointment form.

The statement is the most important of these documents. The firm's guide to the protection visa statement of claims explains how it is prepared.

What happens straight after lodgement

After a valid application is lodged, the applicant should receive an acknowledgement, and the Department will consider any associated bridging visa. The application then waits for assessment, which can take a long time. The firm's article on protection visa processing times explains why.

This is the point at which some of the top 5 protection visa application mistakes can still be caught. A short review of the lodged application in the first days after lodgement, while the details are fresh, is one of the most useful steps an applicant can take. The applicant should check the acknowledgement and the bridging visa grant carefully, confirm that every applicant is included, and keep copies of everything lodged. If an error is found, it should be corrected promptly.

A lodgement checklist to avoid the top 5 protection visa application mistakes

Before an application is lodged, the following checklist helps avoid the top 5 protection visa application mistakes.

• I entered Australia on a valid visa and was immigration cleared, or I have been advised which protection visa I can apply for.
• I have never been refused a protection visa in Australia, and no other bar applies to me.
• I genuinely fear serious harm if I return, and I have considered whether any other visa option is more appropriate.
• Every personal particular in the form matches my passport and earlier visa applications, or any difference is explained.
• Every family member is declared accurately.
• Every document is genuine, explained, fully translated and consistent with my claim.
• My statement of claims is complete and in my own words.
• I am lodging while I still hold a substantive visa, or I understand the consequences of lodging after it has expired.
• The email address in the application is one I check every day.

An application that meets every item on this list is far less likely to contain any of the top 5 protection visa application mistakes.

Correcting a mistake after lodgement

Some lodgement mistakes can be corrected. An invalid application cannot be made valid, but many errors in a valid application can be fixed before a decision is made.

The Department's guidelines explain that an applicant may submit further information or evidence at any time after lodgement before a decision is made. Section 104 of the Migration Act also requires an applicant to notify the Department if circumstances change so that an answer in the application becomes incorrect. The firm's guide to Form 1022 explains how changes are notified.

A correction should be made as early as possible, and should explain what was wrong and why. Where the correction concerns identity documents, the consequences under sections 91W and 91WA mean that advice should be obtained first. A correction made promptly and honestly is far better than an error discovered by the Department.

How My Migration Lawyers helps avoid the top 5 protection visa application mistakes

My Migration Lawyers prepares and lodges protection visa applications with the care that a one-opportunity process demands. The firm acts in many protection visa matters, including complex cases involving expired visas, previous visa refusals, missing identity documents and large families, and it is capable of handling those matters from the first assessment through to review.

Before and at lodgement, the firm's work typically includes:

• confirming how the applicant last entered Australia and whether any application bar applies;
• assessing whether a protection application is the right path, and identifying any other visa options;
• obtaining and reviewing earlier visa applications, and checking every personal particular against them;
• ensuring every family member is declared accurately;
• reviewing every document for authenticity, translation and consistency; and
• advising on timing so that the application is lodged while the applicant remains lawful wherever possible.

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 are about to apply and want to avoid the top 5 protection visa application mistakes, book a consultation with My Migration Lawyers online, or call 1300 040 300.