Understanding Protection Visas in Australia

Understanding protection visas in Australia is usually explained from the outside: who qualifies, what the law says, and what the visa gives. This article explains it from the inside. It follows a protection visa application from the day it is lodged to the day it is decided, and describes what the applicant experiences, what the Department does, and what the applicant must do at each stage.

It is written for people who have already applied, or who are about to apply, and who want to know what happens next. Understanding protection visas in Australia at this practical level helps applicants avoid the procedural mistakes that cause delay or refusal, and helps them prepare for the stages that decide the outcome.

What does understanding protection visas in Australia mean once you have applied?

Once a person has applied, understanding protection visas in Australia means understanding the process the application will go through. That process has a recognisable sequence, although not every application passes through every stage and the time each stage takes varies.

The stages are usually:

• a valid application;
• a bridging visa;
• identity, character and security checks, and requests for information;
• an interview;
• an invitation to comment on adverse information, where it arises;
• a decision; and
• review by the Administrative Review Tribunal, if the visa is refused.

The rest of this article takes each stage in turn. The legal requirements for the visa itself are set out in the firm's Subclass 866 Protection Visa complete guide.

Stage one: a valid protection visa application

The first stage in understanding protection visas in Australia is validity. An application that is not valid is not assessed at all.

A valid application must be made in the correct way, on the correct form, by a person who is eligible to apply. For the permanent Protection visa, the Department's guidelines explain that the applicant must have held a valid visa when they last entered Australia and must have been immigration cleared. The applicant must also not be prevented by an application bar, such as the section 48A bar that applies after an earlier protection visa refusal in Australia.

Most applications are made online through ImmiAccount. The firm's guide to creating an ImmiAccount explains the account, and its guide to Form 866 explains how the application itself is prepared.

Family members who are in Australia and who wish to be included should be included from the start. Every family member, whether in Australia or overseas, should be declared accurately. An omission at this stage can cause problems that are difficult to correct later.

Stage two: the bridging visa

The second stage in understanding protection visas in Australia is the bridging visa. A bridging visa allows the applicant to remain in Australia lawfully while the protection application, and any review, is decided.

The type of bridging visa, and its conditions, depend largely on the applicant's position when they lodge.

• A person who lodges while holding a substantive visa, such as a visitor or student visa, is usually considered for a Bridging visa A. Its conditions often reflect the conditions of the visa they held.
• A person who lodges after their visa has expired is usually in a weaker position. They may be considered for a Bridging visa E, which is designed for people who are unlawful or are about to become unlawful.

Work rights are the issue that affects daily life most. The Department's bridging visa guidelines explain that, for a protection visa applicant holding a Bridging visa E with a no work condition, a further Bridging visa E without that condition may be granted where the applicant shows a compelling need to work and an acceptable reason for any delay in applying for the protection visa. The guidelines also explain that dependent children of a parent granted permission to work can be granted work rights so that they may be eligible for Medicare.

That is one reason timing matters. A person who lodges promptly while still lawful is generally better placed than one who waits until after their visa has expired. The firm's overview of bridging visas in Australia and its article on Bridging visa A work rights and travel explain the details.

Why the time at each stage varies

Understanding protection visas in Australia includes accepting that the process is not quick, and that the time each stage takes is not fixed. Some applications move from lodgement to interview relatively quickly. Others wait much longer before any contact from the Department.

Several factors affect timing. The number of applications waiting at any time, the priority the Department gives to particular groups, the complexity of the claims, the need for identity or security checks, and the time it takes the applicant to respond to requests all play a part. An application that requires further information, or that raises character or identity questions, will usually take longer.

For the applicant, the practical lesson is to use the waiting time well. Understanding protection visas in Australia in this way means gathering evidence, keeping records, maintaining lawful status and preparing for the interview long before the invitation arrives. An applicant who is ready when the Department makes contact is in a far better position than one who starts preparing only after the interview date is set.

Stage three: checks and requests for information

While the application waits for assessment, the Department carries out identity, character and security checks. This stage is often invisible to the applicant, but it is part of understanding protection visas in Australia because it explains much of the waiting.

The Department may also ask the applicant for more information or documents. A request of this kind is usually made under section 56 of the Migration Act. Common requests include identity documents, police certificates and evidence supporting particular claims. The request will specify how and when the information is to be provided.

Identity requests deserve particular care. Section 91W allows the Department to request documentary evidence of identity, nationality or citizenship. The Department's guidelines explain that where a document is suspected to be bogus, the applicant is asked for a reasonable explanation and to provide, or take reasonable steps to provide, genuine evidence of identity. People who fled with no documents or with false documents often have a reasonable explanation, and it should be given clearly and early.

A request that is ignored or missed can lead to a decision being made without the information. The firm's guide to responding to a section 56 request for more information explains how to respond. The waiting period itself is explained in the firm's article on protection visa processing times.

Evidence and records through the process

Understanding protection visas in Australia means treating the application as a file that grows over time. Everything the applicant provides, and everything the Department sends, becomes part of the record on which the decision is made.

An applicant should keep a complete copy of the application as lodged, every document uploaded, every letter received and every response sent. They should also keep a note of the date each letter arrived and how it was received. Where a deadline is involved, that date can matter.

New evidence often becomes available during the wait. A family member may send a document, a news report may confirm an event, or a medical report may support an account of past harm. That evidence should be assessed before it is provided, translated where necessary, and explained in a short covering statement. The firm's article on evidence that supports a protection claim explains how decision makers weigh different kinds of documents.

Understanding protection visas in Australia at this practical level turns a long wait into preparation time rather than lost time.

Stage four: the protection visa interview

The interview is the stage that most often decides the outcome of protection visas in Australia. Understanding protection visas in Australia means understanding that the interview is where the decision maker tests the claim in person.

The Department's guidelines explain that, under sections 58 and 59 of the Migration Act, an applicant can be invited to an interview conducted by video conference, by telephone, or in person. In choosing the method, the officer considers the applicant's personal circumstances, including the method in which the applicant would most likely be able to speak freely on sensitive topics, such as gender-based claims.

The guidelines also state that all interviews must be audio-recorded, provided the officer obtains prior consent from the applicant. An interpreter is used where the applicant needs one.

At the interview, the officer asks about the applicant's background, the events that led them to leave, what they fear will happen if they return, and any inconsistencies in the evidence. The officer may also put country information to the applicant.

Preparation matters more than anything else at this stage. The firm's guide to the protection visa interview, its article on preparing for the protection visa interview and its guide to protection visa interview questions explain what to expect and how to prepare.

Interpreters, support and sensitive claims

Understanding protection visas in Australia also means understanding that the process is designed to allow applicants to give their evidence properly, including evidence about painful or sensitive events.

An applicant who needs an interpreter should say so, and should say which language and dialect they speak best. An interpreter who speaks a different dialect, or who the applicant cannot understand well, can cause misunderstandings that later look like inconsistencies. If the applicant has difficulty understanding the interpreter during an interview, they should say so at the time, so that it is recorded.

Some claims involve matters that are difficult to discuss, such as sexual violence, sexual orientation, gender identity or torture. The Department's guidelines recognise that the interview method may affect whether an applicant can speak freely on those topics. An applicant who would find it easier to speak with an interviewer or interpreter of a particular gender, or by a particular method, should raise this before the interview.

Understanding protection visas in Australia at this level makes one point clear. Delay in disclosing sensitive matters is common and often understandable, but it must be explained. The firm's article on LGBTI protection visas in Australia discusses late disclosure in that context.

Stage five: natural justice and adverse information

The fifth stage in understanding protection visas in Australia is natural justice. It arises where the Department holds information that could lead to refusal.

Section 57 of the Migration Act requires the Department, in general terms, to give the applicant particulars of relevant information that would be the reason, or part of the reason, for refusing the visa, and to invite the applicant to comment. The Department's guidelines explain that relevant information is information that is specifically about the applicant or another person, rather than about a class of people, and that was not given by the applicant for the purpose of the application.

That last point is important. Information the applicant gave, including what they said at interview, is generally not relevant information for section 57 purposes. The Department can rely on it without a further invitation to comment. That is why the interview and the written statement must be accurate from the start.

The invitation must say how the applicant is to respond, whether in writing, at an interview or by telephone, and within what period. The guidelines note that additional time can be given. An applicant who needs more time should ask for it before the period ends.

A response to a natural justice invitation should address each item of information directly, with evidence where possible. It is often the last opportunity to correct a misunderstanding before a decision is made.

Stage six: the decision

The sixth stage in understanding protection visas in Australia is the decision. The Department either grants or refuses the visa, and notifies the applicant in writing.

If the visa is granted, the applicant becomes a permanent resident, or a temporary protection visa holder if that is the visa they applied for. The permanent Protection visa can only be granted while the applicant is in Australia. A permanent Protection visa granted on or after 3 June 2013 carries condition 8559, which requires written approval before the holder enters the country from which they sought protection.

If the visa is refused, the decision will explain the reasons and will state whether the decision can be reviewed and within what period. The time limit is short and strictly applied. The notification date is critical, because the period runs from the date the applicant is taken to have received the decision. Understanding protection visas in Australia at the decision stage means checking the date on the letter, the method by which it was sent, and the review period it states, on the day it arrives. A decision sent by email can be taken to have been received very quickly, and waiting to read it is a common and costly mistake.

A refusal is usually based on one or more of these findings, and understanding protection visas in Australia means knowing which one applies: that the decision maker did not accept the applicant's account, that the account did not meet the refugee or complementary protection criteria, or that another criterion, such as character, was not met. The decision should be read carefully to identify which finding was made, because that finding shapes the review.

Stage seven: review by the Administrative Review Tribunal

Most refusals of a protection visa by the Department can be reviewed on the merits by the Administrative Review Tribunal. Understanding protection visas in Australia includes understanding that the Tribunal hearing is often the applicant's best opportunity to have the claim properly considered.

The Tribunal looks at the claim again. It can consider new evidence, hear from the applicant and witnesses, and reach its own conclusion. It can affirm the refusal, or send the matter back to the Department with a finding that the applicant is owed protection.

After a final refusal, including after review, the section 48A bar generally prevents another protection visa application while the person remains in Australia. For anyone understanding protection visas in Australia, the first application and the review are therefore usually the only opportunities.

The firm's page on protection visa refusals, its guide to appealing a protection visa refusal to the ART and its article on the protection visa ART hearing explain the review process.

Your obligations while you wait

Understanding protection visas in Australia also means understanding that the applicant has obligations throughout the process.

• Notify changes. Section 104 of the Migration Act requires an applicant to notify the Department if their circumstances change so that an answer in the application becomes incorrect. The firm's guide to Form 1022 explains how.
• Keep contact details current. Letters are often sent electronically. An applicant who changes email, phone number or address must update the Department.
• Comply with bridging visa conditions. Work, study, reporting and travel conditions must be followed. A breach can lead to cancellation of the bridging visa.
• Stay in Australia. The permanent visa can only be granted while the applicant is in Australia. Most bridging visas do not permit travel, and travel to the country the applicant fears can damage the claim.
• Keep records. Every letter, request, response and receipt should be kept. The decision will be made on the file, and the applicant should know what is on it.

These obligations are ordinary, but a failure to meet any of them can undermine an otherwise strong claim. Understanding protection visas in Australia means treating them as seriously as the claim itself.

Common procedural mistakes

Many protection visa applications are harmed not by weak claims but by avoidable procedural mistakes. Understanding protection visas in Australia means knowing what those mistakes are.

• Lodging after the substantive visa has expired. This can affect the bridging visa and work rights, and it can raise questions about why the applicant waited.
• Leaving out a family member or a claim. Omissions at lodgement are difficult to correct and can affect credibility.
• Missing a request. A section 56 request or a section 57 invitation that goes unanswered can lead to a decision without the applicant's response.
• Not preparing for the interview. The interview is recorded, and what is said can be relied on without further notice.
• Travelling without advice. Travel can end a bridging visa, prevent grant, and damage the claim.
• Missing the review deadline. The time to apply to the Administrative Review Tribunal is short and strictly applied.

Each of these mistakes can be avoided with planning. Understanding protection visas in Australia is, in large part, understanding the process well enough to avoid them.

How My Migration Lawyers guides clients through protection visas in Australia

My Migration Lawyers guides clients through every stage of the protection visa process in Australia, from the first assessment to the final decision and any review. The firm acts in many protection visa matters, including complex cases involving expired visas, identity issues, adverse information and interviews on sensitive topics, and it is capable of managing those matters at every stage.

The firm's work typically includes:

• confirming that the application will be valid and that no application bar applies;
• advising on the bridging visa and on work rights;
• responding to section 56 requests and section 91W identity requests;
• preparing the client for the interview and attending with them where appropriate;
• responding to section 57 natural justice invitations; and
• acting on review before the Administrative Review Tribunal where a refusal is made.

The firm presents the client's own account and evidence in the form the law requires. The client 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.

If you want help understanding protection visas in Australia as they apply to your own application, book a consultation with My Migration Lawyers online, or call 1300 040 300.