Key Takeaways
- Am I eligible for protection visa 866? You may be, if you are in Australia and there is a real chance you would suffer serious harm for a Convention reason, or a real risk you would suffer significant harm, if returned to your country.
- Serious harm has a legal meaning. Under section 5J(5) of the Migration Act 1958 it includes a threat to life or liberty, significant physical harassment or ill-treatment, and significant economic hardship or denial of services that threatens your capacity to survive.
- The refugee test also requires a reason for the harm: race, religion, nationality, membership of a particular social group or political opinion. Complementary protection does not require a reason, but it does require a real risk of specific types of significant harm.
- Many genuine claims fail on three questions: whether the authorities could protect you, whether you could live safely elsewhere in your country, and whether the risk is personal to you rather than faced by everyone.
- You are not required to hide a characteristic fundamental to your identity or conscience, such as your religion or sexual orientation, in order to be safe.
Am I eligible for protection visa 866?
You may be eligible for protection visa 866 if you are in Australia and there is a real chance you would be seriously harmed for a Convention reason, or a real risk you would suffer significant harm, if you were returned to your country. The answer to "am I eligible for protection visa 866" depends on your own facts, tested against a set of legal questions.
Most people who ask "am I eligible for protection visa 866" are frightened. They know they cannot go home safely. What they do not know is whether the reason they are afraid is the kind of reason Australian law recognises.
This article is a self-check. It takes the legal test in section 36 of the Migration Act 1958 and turns it into seven practical questions. For each question, it explains what the law requires, what usually satisfies it and what usually does not. At the end, you will have a clearer view of where your claim is strong and where it needs work.
A self-check is a starting point, not an answer. The requirements for applying, such as being in Australia and not being barred by an earlier refusal, are covered in our guide to permanent protection visa eligibility. The self-check below is about the claim itself.
The two ways to qualify
There are two main ways to satisfy the protection criterion. The first is to be a refugee under section 36(2)(a). The second is complementary protection under section 36(2)(aa). An applicant does not need to choose between them. The Department assesses both. Our page on complementary protection explains the second pathway in more detail.
How to use the self-check
Work through each question with your own facts, and write down the answer in a sentence or two. Where the honest answer is "I am not sure", that is a point where evidence or advice is needed. The answer to am I eligible for protection visa 866 is rarely decided by one question. It is decided by how all seven fit together, and by whether the decision maker accepts your account of them.
Am I eligible for protection visa 866 based on the harm I fear?
The first question in any "am I eligible for protection visa 866" self-check is what harm you fear. The harm must be serious harm for a refugee claim, or significant harm for complementary protection, and both terms have fixed legal meanings.
Serious harm for a refugee claim
Section 5J(5) of the Migration Act lists examples of serious harm:
- a threat to your life or liberty
- significant physical harassment
- significant physical ill-treatment
- significant economic hardship that threatens your capacity to subsist
- denial of access to basic services, where the denial threatens your capacity to subsist
- denial of your capacity to earn a livelihood of any kind, where the denial threatens your capacity to subsist
The harm must also involve systematic and discriminatory conduct. A single random incident is less likely to qualify than a pattern of targeting.
Significant harm for complementary protection
Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. These are narrower categories, but they do not require any particular reason for the harm.
What usually does not qualify
Discrimination that is unpleasant but does not reach these levels, fear of poverty or unemployment on its own, and fear of general crime usually do not qualify. If your fear is mainly about these things, the answer to "am I eligible for protection visa 866" may be no, and other visa options should be considered.
Am I eligible for protection visa 866 if the harm is not for a Convention reason?
The second question is why you would be harmed. For a refugee claim, you must fear harm for at least one of five reasons: race, religion, nationality, membership of a particular social group or political opinion. For complementary protection, no reason is required.
The five Convention reasons
Race and nationality include ethnicity and national origin. Religion includes belief, non-belief, conversion and leaving a faith. Political opinion includes opinions you hold and opinions the persecutor believes you hold. Membership of a particular social group is explained below.
Particular social group
Section 5L of the Migration Act explains when a person is a member of a particular social group. The group must share a characteristic that is innate or immutable, or fundamental to identity or conscience, and the group must be distinct from society. Groups recognised in practice include people of a particular sexual orientation, and in some countries women in particular situations. Our page on LGBTI protection visas deals with one common group, and our page on religious persecution deals with religion.
The essential and significant reason
The Convention reason must be the essential and significant reason for the harm. It does not need to be the only reason. But if the harm would happen for purely personal reasons, such as a private debt or a family business dispute, the refugee test may not be met, and complementary protection must be considered instead.
Am I eligible for protection visa 866 if the harm is not certain?
The third question is how likely the harm is. For a refugee claim, there must be a real chance of persecution. For complementary protection, there must be a real risk of significant harm. Both are well below "more likely than not", but both require more than a remote possibility.
What a real chance means
Certainty is not required to answer "am I eligible for protection visa 866" in your favour. A real chance is a substantial chance, as distinct from a remote or far-fetched possibility. A person can face a real chance of harm even if the chance is well below fifty per cent.
The role of past harm
Past harm is important evidence. If you were harmed before you left, and nothing has changed, that supports a finding that you face a real chance of harm on return. But past harm is not required. A person who left before anything happened can still qualify, and a person who was harmed in the past may not qualify if circumstances have changed.
Changes since you left
Events in your country since you left can strengthen or weaken the claim. A change of government, new laws, or a new conflict may create a risk that did not exist before. A person asking "am I eligible for protection visa 866" after such a change may have a sur place claim, which is assessed under the same test.
Am I eligible for protection visa 866 if the police could protect me?
The fourth question is who would harm you and whether your country's authorities could protect you. If effective protection is available from the state, the claim will usually fail, even if the risk of harm is real.
Harm by the state
Where the government, police or military are the source of the harm, state protection is usually not available by definition. The claim then turns on the other questions.
Harm by others
For many people, am I eligible for protection visa 866 becomes a question about the police. Where the harm would come from family, a criminal group, a community or a former partner, the question is whether the state offers effective protection. Section 5J(2) of the Migration Act provides that a fear is not well founded if effective protection measures are available. Section 36(2B)(b) is the equivalent for complementary protection.
What effective protection means
Effective protection generally requires an appropriate criminal law, a reasonably effective police force and an impartial justice system, available to you in practice. Laws on paper are not enough if they are not enforced for people like you. Evidence of attempts to seek help, and of what happened, is important. Our article on evidence in a protection visa application explains how this is proved.
Am I eligible for protection visa 866 if I could move elsewhere in my country?
The fifth question is whether you could live safely in another part of your country. If you could relocate safely and reasonably, the claim will usually fail.
The legal test
For a refugee claim, section 5J(1)(c) requires that the real chance of persecution relates to all areas of your country. For complementary protection, section 36(2B)(a) provides that there is no real risk if it would be reasonable to relocate to an area where there would not be a real risk.
What reasonable means
Reasonableness depends on your personal circumstances: your age, gender, health, family, language, education, finances and whether you would be found. A place that is safe for one person may not be reasonable for another.
The questions to answer
Can the people you fear find you elsewhere? Do they have reach across the country? Would you need to register your address, which would reveal where you are? Would you be able to live and work there? For many people asking "am I eligible for protection visa 866", this is the question that decides the claim.
Am I eligible for protection visa 866 if I could stay safe by hiding who I am?
The sixth question is whether you could avoid harm only by changing how you live. You are not required to hide a characteristic fundamental to your identity or conscience to be safe, but you may be expected to take other reasonable steps.
The rule in section 5J(3)
Section 5J(3) provides that a person does not have a well-founded fear if they could take reasonable steps to modify their behaviour to avoid persecution. But it excludes modifications that would conflict with a characteristic fundamental to identity or conscience, or require the person to conceal an innate or immutable characteristic. The Act gives examples, including altering religious beliefs, concealing a sexual orientation or gender identity, and changing political beliefs.
What this means in practice
This rule changes the answer to am I eligible for protection visa 866 for many religious, political and LGBTI applicants. A person who would need to hide their religion, their sexual orientation or their political beliefs to be safe can still qualify. The Department cannot expect them to live discreetly. But a person who could avoid harm by, for example, moving away from a particular neighbour may be expected to do so, subject to the relocation question above.
Am I eligible for protection visa 866 if my whole country is dangerous?
The seventh question is whether the risk is personal to you. Section 36(2B)(c) provides that there is no real risk of significant harm where the risk is faced by the population of the country generally and not by you personally.
General violence or instability
A country with high crime, political instability or economic crisis may be unsafe for everyone. That alone does not make a person eligible. The claim must explain why you, specifically, are at risk.
Personal risk within a general situation
General conditions can still matter. A person may face a heightened, personal risk because of their ethnicity, religion, political profile, gender or past conflict with a particular group. The claim must connect the general situation to the person.
Why this question matters
When people ask "am I eligible for protection visa 866" because their country is dangerous, this is often where the answer turns. A claim that describes only national conditions will usually be refused.
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Am I eligible for protection visa 866 if I face prosecution, not persecution?
Usually not, if the prosecution is under a fair law applied fairly. Prosecution for an ordinary crime is not persecution. But prosecution can become persecution where the law itself is persecutory, where it is applied in a discriminatory way, or where the punishment is disproportionate for a Convention reason.
Laws that target protected characteristics
A law that criminalises a religion, a political opinion or a sexual orientation is itself a source of persecution. Prosecution under that law can support a claim.
Discriminatory enforcement
A law that is neutral on its face may be enforced selectively against a particular group. Evidence of that pattern can turn prosecution into persecution.
Punishment and treatment in custody
Even for an ordinary crime, a real risk of torture, the death penalty or cruel or degrading treatment in custody may engage complementary protection. So a person facing criminal charges at home who asks "am I eligible for protection visa 866" should obtain advice rather than assume the answer is no.
Debts and private disputes
Debts, business disputes and family conflicts are usually private matters. They can support a claim only where the harm is serious, the authorities will not protect the person, and either a Convention reason or a real risk of significant harm is established.
Am I eligible for protection visa 866 if I waited before applying?
You can still be eligible for protection visa 866 if you waited before applying, but the delay will be examined, and the reason for it must be explained in your claims.
Why delay is examined
Decision makers sometimes reason that a person who genuinely feared harm would have sought protection quickly. A long gap between arrival and lodgement can therefore be used to question whether the fear is genuine.
Why delay is not decisive
There are many genuine reasons for delay. People may not know the protection system exists. They may fear authorities because of their experience at home. They may be traumatised, ashamed or unwilling to disclose what happened. Their situation at home may have changed after they arrived. None of these reasons is unusual.
What to do
The reason for the delay should be set out clearly and honestly. Our article on delaying a Subclass 866 protection visa application explains how delay is assessed. So a late applicant asking "am I eligible for protection visa 866" should not assume the answer is no. They should assume the question of delay will be asked.
Am I eligible for protection visa 866 if my family member is the one at risk?
You may be eligible for protection visa 866 as a member of the family unit of a person who is owed protection, even if you do not have claims of your own, provided you are included in the application and are in Australia.
Family members without their own claims
Sections 36(2)(b) and (c) of the Migration Act allow a member of the same family unit as a person who meets the protection criterion to be granted the visa. The family member's eligibility depends on the main applicant succeeding.
Family members with their own claims
Sometimes the person most at risk is not the person who expected to be the main applicant. A child may face forced marriage. A spouse may face harm because of their own religion or ethnicity. Their claims should be identified and set out clearly, because they may be the strongest claims in the family.
The limits
Family members must be in Australia and included in the application. Each must also meet the security, character and health criteria that apply to them.
What a self-check cannot tell you
A self-check can tell you whether your fear fits the legal categories. It cannot tell you whether the Department will accept your account, whether the country information supports it, or how the other criteria for the visa will be applied.
Credibility
Most protection decisions turn on whether the decision maker believes the applicant. Consistency across the application, the statement of claims, the interview and any earlier visa applications is essential. Our article on the protection visa statement of claims explains how the account is set out.
Country information
The Department relies on country information about conditions in your country. Your claim must be consistent with that information, or explain why it does not apply to you.
The other criteria
Being owed protection is not the only requirement. Security, character, health and identity criteria must also be met. These are summarised on our Subclass 866 protection visa page.
Only one first application
A refusal generally prevents a further protection visa application while you remain in Australia, under section 48A. Because of this, the question "am I eligible for protection visa 866" should be answered properly before lodgement, not tested by lodging. Our article on when you need a protection visa lawyer discusses when advice makes the biggest difference.
How My Migration Lawyers assesses whether you are eligible for protection visa 866
My Migration Lawyers assesses eligibility for protection visa 866 as the first step in every protection matter, and the firm acts in many complex cases where the answer depends on relocation, state protection, personal risk or a particular social group.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly handles claims that do not fit neatly into one category, including claims that combine refugee and complementary protection grounds, claims by family members with their own risks, and claims based on events after the client arrived in Australia.
At the first consultation
At the first consultation, the firm works through the same questions set out above, with the client's own facts. It identifies which pathway fits, where the claim is strong, and where it is vulnerable. It advises the client honestly if a protection application is not the right step.
Preparing the claim
If the client proceeds, the firm helps the client set out their own account 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 addresses relocation, state protection and personal risk directly, with evidence, rather than leaving them for the Department to raise.
After lodgement
The firm acts as the Department's contact point, prepares the client for the interview and attends with them. If the application is refused, the firm advises on review within the deadline.
Anyone asking "am I eligible for protection visa 866" should have that question answered on their own facts before anything is lodged.
Book a consultation with My Migration Lawyers through our online booking page. 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
Am I eligible for protection visa 866 if I have never been harmed?
You may be. Past harm is strong evidence, but it is not a requirement. The test looks forward: whether there is a real chance of serious harm for a Convention reason, or a real risk of significant harm, if you are returned. A person who left before anything happened, or whose risk arose after leaving, can still qualify. The claim must explain why the risk is real and why it applies to you personally.
Does fear of poverty or unemployment make me eligible?
Usually not on its own. Economic hardship can amount to serious harm only where it is significant, threatens your capacity to subsist, and is connected to a Convention reason, for example where a group is systematically denied work or basic services because of their religion or ethnicity. General poverty, unemployment or a weak economy faced by the population as a whole does not meet the test.
Can I be refused because the police in my country could help me?
Yes. If effective protection is available from the authorities, a fear of harm from private people is generally not well founded. Effective protection means more than laws on paper. It generally requires a working criminal law, a reasonably effective police force and an impartial justice system available to you in practice. Evidence of attempts to seek help, and of how the authorities responded, is important.
Will I be expected to hide my religion or sexuality to stay safe?
No. Section 5J(3) of the Migration Act does not require a person to modify behaviour in a way that conflicts with a characteristic fundamental to their identity or conscience, or to conceal an innate or immutable characteristic. The Act gives examples including religious beliefs, sexual orientation, gender identity and political beliefs. A person who could only be safe by hiding these characteristics can still qualify.
My whole country is dangerous. Is that enough?
Usually not. For complementary protection, there is taken to be no real risk where the risk is faced by the population of the country generally and not by the applicant personally. The claim needs to show why you face a personal risk, for example because of your ethnicity, religion, political profile, gender or a particular conflict. General conditions can still be relevant as background to that personal risk.
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.
