Applying for Protection Visa Subclass 866

Applying for Protection Visa Subclass 866: What the Department Must Be Satisfied Of

An application for a Protection Visa Subclass 866 succeeds only if the Department of Home Affairs is satisfied that you meet every criterion in section 36 of the Migration Act 1958 and in Part 866 of Schedule 2 to the Migration Regulations 1994. Lodging the form starts the process. The grant depends on proof.

The Protection Visa Subclass 866 is a permanent visa for people who arrived in Australia on a valid visa and who engage Australia's protection obligations. The Department's own guidelines state that an applicant must meet the criteria in section 36 of the Act and both the time of application and the time of decision criteria in Schedule 2. Each criterion is a separate hurdle. Failing one criterion is enough for refusal, even where the protection claims are strong.

This article works through those criteria one at a time. It explains what a Protection Visa Subclass 866 gives the holder, what the Department must be satisfied of before it can grant the visa, how family members are included, and what the applicant must keep doing from lodgement until the decision. For the threshold rules on who can lodge, see our guide to permanent protection visa eligibility and requirements. For an overview of the visa and how we act on it, see our Subclass 866 Protection visa page.

The practical lesson is simple. Applying for a Protection Visa Subclass 866 is not a single event. It is a process that runs until the decision, and the applicant carries legal obligations for the whole of that time.

What Does the Protection Visa Subclass 866 Give You?

The Protection Visa Subclass 866 gives you permanent residence in Australia from the day it is granted, with the right to live, work and study here indefinitely. The Department of Home Affairs lists these benefits for visa holders:

• Permanent residence. You become an Australian permanent resident on the day the visa is granted. You can live, work and study in Australia permanently, and you can access government services such as Medicare.
• A travel facility. You can travel to and from Australia for five years from the date of grant, as many times as you like while the visa is in effect. After the travel facility expires, you need a Resident Return visa (Subclass 155 or Subclass 157) to re-enter Australia as a permanent resident.
• Family sponsorship. You may be able to sponsor eligible family members for permanent residence through the offshore Humanitarian Program.
• A pathway to citizenship. If you become eligible, you can apply for Australian citizenship. For citizenship purposes, your permanent residence starts on the day the visa is granted.

Condition 8559 and travel to your home country

Travel condition 8559 applies to every Protection Visa Subclass 866. You and members of your family unit must not enter the country from which you were granted protection unless the Department approves that entry in writing before you travel. The Department states that it gives approval only where compassionate or compelling circumstances justify the travel. Entering that country without written approval, even for a short time, breaches condition 8559. The Department may then cancel your visa and the visas of your family members.

The Department also recommends that holders do not use a passport issued by their country of nationality. If a holder does so, the Department may consider that the person no longer needs protection and may cancel the visa. Holders who wish to travel are directed to the Australian Passport Office to apply for a travel document.

Time of Application and Time of Decision Criteria for the Protection Visa Subclass 866

The criteria for the Protection Visa Subclass 866 fall into two groups: criteria you must meet when you apply, and criteria you must meet when the decision is made. The distinction matters. Meeting a criterion on the day of lodgement does not mean it is still met on the day of decision.

Time of application criteria: clause 866.211

Clause 866.211 sets out the time of application criteria. Under clause 866.211(2), the applicant must claim that Australia has protection obligations to them as a refugee or under the complementary protection provisions, and must make claims explaining why. Alternatively, under clause 866.211(3), the applicant must claim to be a member of the same family unit of another applicant who has made those claims. At this stage the Department does not test whether the claims are true or whether the family relationship exists. The claim itself is enough.

Time of decision criteria: clauses 866.221 to 866.232 and 866.411

The time of decision criteria are in clauses 866.221 to 866.232, with a further criterion in clause 866.411. These are the criteria that decide whether a Protection Visa Subclass 866 is granted:

• Clause 866.221: the protection obligations criterion, or membership of the same family unit of a person who meets it and has been granted the visa.
• Clauses 866.223 to 866.224B: the health criteria.
• Clause 866.225: public interest criteria 4001 and 4003A for all applicants, and public interest criterion 4019, the Australian values statement, for applicants who were 18 or older when they applied.
• Clause 866.226: the decision maker must be satisfied that the grant of the visa is in the national interest.
• Clause 866.227: the applicant, or a member of their family unit, must not have been offered temporary stay under Temporary Safe Haven visa arrangements, unless the Minister has determined under section 91L that section 91K does not apply.
• Clause 866.230: a child born after a parent applied must be a member of the same family unit as an applicant who meets the protection criterion and has been granted the visa.
• Clauses 866.231 and 866.232: the applicant must not have been made an offer of permanent stay of the kind described in regulation 2.07AQ, and must not hold a Resolution of Status (Class CD) visa.
• Clause 866.411: the applicant must be in Australia at the time of decision.

The Migration Act adds further criteria in section 36(1A). Every applicant must satisfy section 36(1B), which deals with ASIO security assessments, and section 36(1C), which deals with danger to Australia's security or community. The sections below explain the criteria that decide most cases. Our definitive guide to the protection visa in Australia places them within the wider framework.

The Protection Obligations Criterion for a Protection Visa Subclass 866

The central criterion for a Protection Visa Subclass 866 is that the Department is satisfied Australia has protection obligations to you, either because you are a refugee under section 36(2)(a) or because you meet the complementary protection criterion in section 36(2)(aa). Clause 866.221(2) links the Schedule 2 criterion directly to those provisions of the Act.

Refugee: section 36(2)(a)

A refugee is defined in section 5H, and the applicant must have a well-founded fear of persecution under section 5J. The Department's guidelines describe three elements. The first is a subjective element: you fear persecution for at least one of five reasons, being race, religion, nationality, membership of a particular social group or political opinion. The second is an objective element: there must be a real chance of persecution. The third is a relocation element: the real chance of persecution must relate to all areas of your country.

Under section 5J(4), the reason must be the essential and significant reason for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm, including a threat to life or liberty, significant physical harassment or ill-treatment, and significant economic hardship that threatens your capacity to subsist. Under section 5J(2), you are taken not to have a well-founded fear if effective protection measures are available to you in your country. Claims based on religious persecution and claims based on sexual orientation or gender identity are common examples of refugee claims.

Complementary protection: section 36(2)(aa)

If you are not a refugee, the Department must consider complementary protection. The test is whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of your removal from Australia, there is a real risk you will suffer significant harm. Significant harm includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

Section 36(2B) sets three limits. There is taken to be no real risk if it would be reasonable for you to relocate to a safe area of your country, if you could obtain protection from an authority of your country, or if the risk is faced by the population generally and not by you personally.

Protection in another country: section 36(3)

Section 36(3) is a criterion many applicants overlook. If you have a right to enter and reside in another country, including another country of which you are a national, and you have not taken all possible steps to use that right, Australia is taken not to have protection obligations to you. Exceptions apply, for example where you would face persecution or significant harm in that other country. Dual nationals and people with residence rights elsewhere must address this point directly in a Protection Visa Subclass 866 application.

The Department decides the protection criterion on your evidence. Section 5AAA makes it your responsibility to specify all particulars of your claim and to provide sufficient evidence to establish it. Our guides on the protection visa statement of claims and on evidence that supports a protection claim explain how claims are presented.

Security, Character and the Australian Values Statement

No Protection Visa Subclass 866 can be granted unless the applicant satisfies the security and character criteria in section 36 of the Act and the public interest criteria in clause 866.225. These criteria apply to every applicant, including family members who make no claims of their own.

ASIO security assessment: section 36(1B)

Section 36(1B) requires that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. An applicant who receives an adverse security assessment cannot satisfy section 36(1A). For protection visas, the security requirement sits in the Act, not in the Regulations. Public interest criterion 4002 was removed from the protection visa criteria in 2014, after the High Court held that the Regulations could not validly impose a security requirement for a protection visa.

Danger to Australia: section 36(1C)

Section 36(1C) requires that there are no reasonable grounds for considering that the applicant is a danger to Australia's security, or that the applicant, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. Section 36(2C) contains similar ineligibility provisions for complementary protection. Section 5H(2) also excludes certain people from the refugee definition, including a person for whom there are serious reasons for considering that they committed a serious non-political crime before entering Australia.

Character: public interest criteria 4001 and 4003A

Public interest criterion 4001 concerns the character test in section 501(6) of the Act. Public interest criterion 4003A requires that the Foreign Minister has not determined that your presence in Australia may be associated with the proliferation of weapons of mass destruction. Under the Department's guidelines, an applicant who does not satisfy these criteria cannot be granted a Protection Visa Subclass 866.

The Department asks for a police certificate from each country where you have lived for 12 months or more during the past 10 years since turning 16, other than the country from which you claim protection. It states that you should not arrange police certificates until it asks for them.

The Australian values statement: public interest criterion 4019

Applicants who were 18 or older when they applied must sign the Australian values statement. They must also have read, or had explained to them, the Life in Australia booklet. The statement is part of the application form. Signing it has no bearing on whether the application is valid, but it is a time of decision criterion, so an unsigned statement prevents the grant. The Department's guidelines provide for a written reminder to be sent before any refusal on this ground.

The national interest: clause 866.226

The decision maker must also be satisfied that the grant of the visa is in the national interest. The Act and the Regulations do not define the national interest for this purpose.

A common error about the integrity criterion

One widespread error should be corrected. Public interest criterion 4020, the integrity criterion that applies to most other visas, is not among the criteria prescribed for the Protection Visa Subclass 866. That does not make false information safe. The Department warns that giving false or misleading information is a serious offence and that it may refuse the application. False information also destroys credibility, and bogus identity documents are dealt with under sections 91W and 91WA.

Health Requirements for the Protection Visa Subclass 866

Every applicant for a Protection Visa Subclass 866 must meet the health criteria in clauses 866.223 to 866.224B, which means completing the health examinations the Department requires. After lodgement, the Department issues a health identifier, known as a HAP ID, and explains how to arrange the examinations. The examinations are conducted by Bupa Medical Visa Services.

Family members included in the application must also complete their examinations. The health criteria are time of decision criteria, so the visa cannot be granted until the Department is satisfied that they are met. Arranging the examinations promptly when the Department asks is part of keeping the application moving. Our protection visa documents checklist sets out what else to have ready.

Identity, Nationality and Citizenship for the Protection Visa Subclass 866

The Department must make a finding about who you are and which country you are a national of before it can decide a Protection Visa Subclass 866 application. The Department's guidelines describe identity as central to the assessment of protection claims and of any security or character risk. Nationality matters because it identifies the country against which your claims are tested.

The Department may require documents as evidence of identity, nationality or citizenship, and it states that it is your responsibility to cooperate and provide this evidence. If you cannot provide these documents, you should give a statement with the application explaining why you have no travel or identity documents.

Sections 91W and 91WA of the Migration Act require refusal where an applicant fails to provide identity evidence when asked, provides a bogus document, or destroys identity documents, unless the applicant has a reasonable explanation and, in some cases, provides genuine evidence or takes reasonable steps to obtain it. The Department may also collect biometrics, being a scan of your fingerprints and a digital photograph of your face. It uses this information in assessing your claims and in completing character and security checks.

Family Members on a Protection Visa Subclass 866 Application

Members of the same family unit can be granted a Protection Visa Subclass 866 on the strength of one family member's claims, without proving claims of their own. Under sections 36(2)(b) and (c) of the Act and clause 866.221(3), a family member can be granted the visa if they are a member of the same family unit of an applicant who engages protection obligations and has been granted the visa. Each family member must still satisfy the health, character and security criteria.

Who counts as a member of the family unit

The Department lists the members of the same family unit as:

• the spouse or de facto partner of the family head;
• a dependent child or step-child of the family head;
• a dependent child or step-child of the family head's partner; and
• other dependent relatives of the family head.

A dependent child is a child or step-child under 18. A child aged 18 or older can still be a dependent child if they are incapacitated for work due to the loss of bodily or mental functions, or are wholly or substantially reliant on the parent or step-parent for financial, psychological or physical support. A child of any age who is married, engaged to be married or in a de facto relationship is not a dependent child and must apply separately.

Other dependent relatives can include a parent, sibling, grandparent, grandchild, aunt, uncle, cousin, niece or nephew, or a step equivalent. They qualify only if they have no spouse or de facto partner, usually live with the family head, and are wholly or substantially reliant on the family head for financial, psychological or physical support. Evidence of each relationship should be provided, such as birth and marriage certificates, and financial evidence that dependants aged 18 or older rely on you.

Timing is critical: section 91WB

Section 91WB requires a family member to have applied for the same class of visa before the visa was granted to the person who engages protection obligations. A person who becomes the spouse of a Protection Visa Subclass 866 holder after grant, or who lodges only after the grant, cannot be granted the visa as a member of the family unit. That person must make their own claims. After lodgement, a spouse, de facto partner or dependent child can be added on Form 1436, but only while the application is undecided and only if they are in Australia.

Why You Must Be in Australia When the Protection Visa Subclass 866 Is Granted

Clause 866.411 requires the applicant to be in Australia at the time of decision, so a Protection Visa Subclass 866 cannot be granted to a person who has left Australia. The rule applies to family members as well. If the main applicant is granted the visa while a family member is overseas, that family member cannot be granted the visa as a member of the family unit.

The consequences of leaving are serious. The Department's guidelines state that an applicant who is not in Australia when a protection visa is refused cannot seek merits review of that refusal. Many bridging visas do not allow travel. Travel to the country from which you seek protection can also damage the credibility of your claims. Our guide to bridging visas in Australia explains the different bridging visas and their conditions.

What Applying for a Protection Visa Subclass 866 Involves After Lodgement

Applying for a Protection Visa Subclass 866 requires you to keep acting on the application until the Department decides it, by notifying changes, answering requests, attending the interview and adding evidence. The Department states that it can decide the application using only the information given at lodgement, and that you may not get another opportunity to present your claims. It also states that it cannot give updates on processing status. You must check ImmiAccount to see whether the Department needs more information.

Notify every change of circumstances

You must tell the Department about changes to your name, phone number, email, address or passport, changes to your marital or de facto status, a pregnancy, the birth of a child, a death in your family, or a decision to withdraw the application. Changes are notified on Form 1022. Incorrect answers in the application are corrected on Form 1023. A child born after lodgement and before the decision is taken to be included in the application, unless the child is an Australian citizen at birth, and the birth must be notified as soon as possible.

Respond to requests by the date set

The Department may ask for more information and set a date for the response. After that date, it can decide the application on the information it holds. If the Department receives information from another person that could lead to refusal, it will give you an opportunity to comment. Our guide on responding to a section 56 request for more information explains how these requests work.

Attend the interview

The Department contacts you if it requires you to attend an interview. Most interviews are held by videoconference and are audio recorded. You make an oath or affirmation, and the officer asks about your claims, identity, family and the information in your application. The Department provides an interpreter if you need one. You must make every reasonable effort to attend, because if you do not, the Department can decide the application on the information available. See our pages on the protection visa interview and on protection visa interview questions.

Keep adding evidence

You can give the Department more information in writing at any time until it decides the application. Documents you did not attach at lodgement should be attached in ImmiAccount as soon as possible. Information you want considered at the interview should be lodged well before the interview. If a lawyer or migration agent prepares the application, you remain responsible for every claim in it.

What Happens If a Protection Visa Subclass 866 Is Refused?

If the Department refuses a Protection Visa Subclass 866, the refusal letter states the reasons, your review rights with the Administrative Review Tribunal and the time limit for applying, which is short and strictly applied. The Department does not refund the application charge after a refusal. Section 48A generally prevents a further protection visa application while you remain in Australia, so review by the Tribunal is usually the next step. Our pages on protection visa refusals and on appealing a protection visa refusal to the ART explain the process. The Administrative Review Tribunal publishes information about applying for review.

How My Migration Lawyers Helps With Your Protection Visa Subclass 866 Application

My Migration Lawyers acts in many Protection Visa Subclass 866 matters and regularly handles complex cases, including applicants with dual nationality, missing identity documents, character history, large family units and dependants aged 18 or older. We build each application around the grant criteria from the start, not only around the form.

Our work on a Protection Visa Subclass 866 application follows a set path:

• Mapping every criterion. We check each time of application and time of decision criterion against your circumstances, including section 36(3), character history and family composition, before anything is lodged.
• Presenting your account. We take your own account of what happened and what you fear, and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Choosing the correct framework. We assess whether your claims fall under the refugee criterion, the complementary protection criterion, or both, and we research the country information relevant to them.
• Structuring the family unit. We confirm who qualifies as a member of your family unit, gather the relationship and dependency evidence, and make sure every family member applies before a decision is made.
• Managing the application to decision. We lodge the application, prepare change of circumstances notifications, respond to Department requests and prepare you for the interview.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video, so you can speak with us wherever you live. Our protection visa lawyers page explains how we act in these matters.

If you are applying for a Protection Visa Subclass 866, every criterion must be met on the day of decision, not only on the day you lodge. Book a consultation with My Migration Lawyers, or call us on 1300 040 300.