Can Fijian Tourists Apply for a Subclass 866 Protection Visa?

Can Fijian tourists apply for a Subclass 866 protection visa? Yes. A Fijian citizen who is in Australia on a visitor visa can apply for protection without leaving the country. The visitor visa does not stand in the way. What decides the case is whether the person genuinely fears serious harm in Fiji and can prove that the Fijian authorities cannot protect them.

This article answers "can Fijian tourists apply for a Subclass 866 protection visa" for Fijians who came to Australia as visitors. It explains the visitor visa Fijians hold, the No Further Stay condition, work rights, what happens after the visa expires, how the visitor visa application is used, and the effect on a family member who sponsored the visit.

Can Fijian tourists apply for a Subclass 866 protection visa?

Yes. Fijian tourists can apply for a Subclass 866 protection visa if they are in Australia, have not previously been refused a protection visa in Australia, and lodge a valid application on Form 866 through ImmiAccount. A visitor visa is not a barrier.

The Subclass 866 visa is a permanent visa for people in Australia who engage Australia's protection obligations. The Subclass 866 protection visa page explains what the visa provides, and the definitive guide to the Subclass 866 protection visa explains each criterion. The rules that apply to visitors of every nationality are covered in the guide to applying for a Subclass 866 on a tourist visa. This article applies them to Fijian visitors.

The threshold conditions do not change with nationality. The applicant must be in Australia when applying and when the visa is granted, and section 48A of the Migration Act 1958 generally bars a second protection visa application after a refusal in Australia. The practical answer to "can Fijian tourists apply for a Subclass 866 protection visa" is therefore yes, once, and it must be done properly.

Which visitor visa do Fijians usually hold?

Fijians who visit Australia hold a Visitor visa (Subclass 600). Fijian passport holders are not eligible for the Electronic Travel Authority (Subclass 601) or the eVisitor (Subclass 651), so the visitor visa must be applied for and granted before travel.

The streams Fijians use most often are:

• the Tourist stream, for holidays and visits to family and friends;
• the Sponsored Family stream, where a relative in Australia sponsors the visit; and
• the Business Visitor stream, for meetings, conferences and short business trips.

Close family and church links between Fiji and Australia mean that many Fijian visits are to see relatives, attend a funeral, wedding or birthday, help with a new baby, or join a church conference or community event. Can Fijian tourists apply for a Subclass 866 protection visa whichever stream they hold? Yes. The stream decides the visa conditions and whether a sponsor is affected, not whether the person can apply.

Fijians who are in Australia as workers under the Pacific Australia Labour Mobility scheme hold a different visa and face different issues. They are not covered by this article. Can Fijian tourists apply for a Subclass 866 protection visa if they first came on a work visa and later returned as visitors? Yes. What matters is the visa held and the person's circumstances at the time of lodging.

Does condition 8503 stop a Fijian visitor applying?

No. Condition 8503 does not stop a Fijian visitor from applying for a Subclass 866 protection visa, because the condition carves out protection visas in its own words.

Condition 8503 is in Schedule 8 to the Migration Regulations 1994. It provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. It is mandatory on the Sponsored Family stream and is often imposed on the Tourist stream.

Can Fijian tourists apply for a Subclass 866 protection visa if their grant notice says "No Further Stay"? Yes. They do not need a waiver and they do not need to go back to Fiji to lodge.

Is a protection visa the right application?

Condition 8503 does block most other onshore applications, such as a partner visa, unless the condition is first waived. A waiver is possible only in limited circumstances set out in the Migration Regulations. This creates a real risk. A Fijian visitor who has a genuine relationship with an Australian partner, but who cannot lodge a partner visa because of condition 8503, may be tempted to lodge a protection visa instead. That is a mistake if there is no genuine fear of harm in Fiji. The protection application will fail, and a refusal can harm the person's later visa history.

Can Fijian tourists apply for a Subclass 866 protection visa as a substitute for a partner or work visa? No. They should not. The guide to protection visa eligibility explains what a protection claim requires. Anyone with more than one possible pathway should get advice on which one fits their facts.

Can Fijian tourists apply for a Subclass 866 protection visa and work?

A Fijian visitor cannot work while the visitor visa is in effect, but is usually permitted to work once a Bridging Visa A takes effect after the visitor visa ends.

The Tourist stream and the Sponsored Family stream carry condition 8101, which provides that the holder must not engage in work in Australia. The Business Visitor stream carries condition 8115, which limits work to business visitor activities. Lodging a protection visa application does not lift those conditions while the visitor visa lasts.

A Fijian who lodges while the visitor visa is still in effect is usually granted a Bridging Visa A. It comes into effect when the visitor visa ends. Under clause 010.611(1)(b) of Schedule 2 to the Migration Regulations, a Bridging Visa A granted to a person whose protection visa application has not been finally determined has no conditions. The guide to the Bridging Visa A explains the details. Always check the grant notice to confirm the conditions that apply.

Can Fijian tourists apply for a Subclass 866 protection visa and start work straight away? No. Work must wait until the visitor visa has ended and the Bridging Visa A is in effect. Working before then is a breach of the visitor visa and can lead to its cancellation, which would make the person's position much harder.

Can Fijian tourists apply for a Subclass 866 protection visa after the visa expires?

Yes. A Fijian whose visitor visa has expired can still apply for a Subclass 866 protection visa, but they are an unlawful non-citizen until a bridging visa is granted, and the matter is urgent.

Under the Migration Act, an unlawful non-citizen in Australia is liable to be detained. A person who applies for protection after their visa has expired does not receive a Bridging Visa A. They usually need to apply for a Bridging Visa E. A Bridging Visa E granted to a protection visa applicant usually carries condition 8101, which means no work. Having that condition removed generally requires showing a compelling need to work and an acceptable reason for the delay in applying for protection.

The guide to bridging visas in Australia explains the options. A person who is already unlawful should read the guide to urgent immigration lawyer advice and obtain advice immediately.

Many Fijians who overstay do so while living with relatives and working informally. Can Fijian tourists apply for a Subclass 866 protection visa after years of overstaying? Yes, if the other conditions are met. But the Department will ask why a person who feared returning to Fiji did not apply sooner, and it will look closely at whether the fear is genuine. Evidence showing when the danger in Fiji arose, and why the person did not come forward earlier, is essential.

How does the Department use the visitor visa application?

The Department keeps the visitor visa application and compares it with the protection claim. Inconsistencies are put to the applicant, usually at interview.

To be granted a visitor visa, a Fijian applicant had to satisfy the Department that they genuinely intended a temporary stay. Most applications described a short visit and gave evidence of reasons to return to Fiji. That evidence commonly included:

• a letter from an employer in Fiji confirming leave;
• bank statements or evidence of a business or farm in Fiji;
• evidence of a spouse, children or elderly parents in Fiji;
• a return ticket or itinerary; and
• an invitation from a relative in Australia.

A Fijian who later seeks protection should expect questions about these documents. If the visitor visa application said the person was returning to a job in Suva, the officer may ask how that fits with a claim that the person had to escape a violent spouse in the same town. If the application listed a spouse as a reason to return, and the protection claim says that spouse is the source of the harm, the officer will want to understand both statements. Can Fijian tourists apply for a Subclass 866 protection visa when their visitor visa application named the person they now fear? Yes. The explanation for that must be clear and truthful.

Explaining the differences

A difference between the visitor visa application and the protection claim is not fatal on its own. A person escaping family violence, for example, may have had good reason not to disclose it when applying to visit. What damages a claim is a difference that is left unexplained, or an explanation that changes.

The explanation must be true and consistent across Form 866, the written statement and the interview. Section 234 of the Migration Act makes it an offence to give false or misleading information in connection with a visa application. The guides to interview preparation and to the protection visa statement of claims explain how the account is set out and tested.

Can Fijian tourists apply for a Subclass 866 protection visa after telling the Department they would go home? Yes. The reason for the change must be explained honestly.

Why did a Fijian visitor not claim protection at the airport?

The Department may ask why a Fijian who feared harm did not raise it on arrival. The law does not require a claim to be made at the airport, but the applicant should be able to explain the timing.

Honest explanations are common. Some people did not know that protection was available. Some believed the problem at home would settle down while they were away. Some felt ashamed to disclose family violence or a family dispute to a stranger. Some learned of a new threat only after arriving. Can Fijian tourists apply for a Subclass 866 protection visa where the threat arose after they left Fiji? Yes. Events after departure are assessed in the same way, although conduct in Australia is treated differently under section 5J(6) for the refugee test.

Can Fijian tourists apply for a Subclass 866 protection visa soon after arriving?

Yes, and applying promptly generally supports credibility. Unexplained delay does not defeat a claim, but it can be used to doubt it.

The Department sometimes treats a protection application lodged just before a visitor visa ends as a way to extend a stay. The answer is evidence showing what happened and when. The article on whether delaying a Subclass 866 application affects a claim explains how delay is assessed.

Can Fijian tourists apply for a Subclass 866 protection visa in the last week of their visa? Yes. But the reason for applying then, and not earlier, should be clear from the evidence.

Can a Fijian visitor's visa be cancelled?

Yes, in some circumstances. A visitor visa can be considered for cancellation if the Department forms the view that the holder is not a genuine visitor, has breached a condition, or gave incorrect information in the visa application.

Applying for protection is not, by itself, a breach of the visitor visa. However, working in breach of condition 8101 before the bridging visa takes effect, or having given false information to obtain the visitor visa, exposes the person to cancellation. Any notice of intention to consider cancellation needs prompt advice.

Can Fijian tourists apply for a Subclass 866 protection visa if their visitor visa has already been cancelled? In many cases, yes. Section 48 of the Migration Act limits the visas a person may apply for after a refusal or cancellation since last entering Australia, but a protection visa remains available. The cancellation will affect the bridging visa position and may bear on credibility.

What happens to the relative who sponsored the visit?

A relative who sponsored a Fijian visitor in the Sponsored Family stream can be affected if the visitor remains in Australia beyond the period of stay on the visitor visa.

The Sponsored Family stream carries condition 8531, which provides that the holder must not remain in Australia after the end of the period of stay permitted by the visa. Departmental policy is that the breach occurs whether the person remains lawfully or unlawfully. A visitor who stays on a bridging visa after lodging a protection application therefore breaches it. Any security bond lodged by the sponsor may be forfeited, and the sponsor may be barred for a period from sponsoring other visitors.

Can Fijian tourists apply for a Subclass 866 protection visa when an aunt, uncle or cousin sponsored them? Yes. But the sponsor should be told of the possible consequences before the application is lodged.

Can family members who came as visitors be included?

Yes. A spouse, partner or dependent child who is in Australia, including one who arrived as a visitor, can be included in the same Form 866 application as a member of the family unit. Everyone included must be in Australia on the day of lodgement. Can Fijian tourists apply for a Subclass 866 protection visa together if they arrived on different dates or different visitor visas? Yes. Separate visitor visas do not prevent one family application.

A family member who is still in Fiji cannot be included. Each person included who has their own reasons to fear harm can set out their own claims, and each will need a bridging visa. The guide to Form 866 explains how family members are included, and the guide on how to create an ImmiAccount explains the first step.

Can Fijian tourists apply for a Subclass 866 protection visa with their children when the children do not fear harm themselves? Yes. The children can be included as members of the family unit. Where a child or partner has claims of their own, those claims should be recorded too, because they may matter if the main claim is not accepted.

Visitor visas and job promises

A protection visa is not a way to work in Australia. DFAT country information has reported that many Fijian asylum seekers were recruited through scam advertisements promising jobs in Australia, and the Department is aware of that pattern.

For a Fijian visitor, the practical point is this. Anyone who suggests coming to Australia on a visitor visa and then lodging a protection application in order to work is not offering a lawful pathway. Working on a visitor visa breaches condition 8101. A protection application without a genuine fear of harm will be refused, and section 48A then generally prevents another protection application in Australia. Can Fijian tourists apply for a Subclass 866 protection visa just to stay and work? They can lodge the form, but they should not, and it will fail. Genuine applicants should present their evidence with particular care so that it stands apart from applications that have no basis. The separate My Migration Lawyers article on whether Fijian citizens can apply for a Subclass 866 protection visa explains this issue in more detail.

What claims do Fijian visitors raise?

Fijian visitors raise the same kinds of claims as other Fijian applicants, and those claims are assessed the same way whatever visa the person arrived on. They include domestic and family violence, political opinion, ethnicity, land and religion, criminal threats, debts and family disputes, and claims by LGBTI Fijians. Can Fijian tourists apply for a Subclass 866 protection visa on any of these claims? Yes, where the facts meet the legal test. A separate My Migration Lawyers guide to protection visas for Fijian nationals explains each claim type, how DFAT country information on Fiji is used, and why state protection, relocation and the generalised risk exclusion are often decisive. The guide to protection visa evidence explains the evidence that supports a claim.

What happens if the protection visa is refused?

If the Department refuses the protection visa, the applicant can usually apply to the Administrative Review Tribunal for review. The time limit is short and strictly applied, and it runs from the date the applicant is notified of the decision.

By the time of a decision, the visitor visa has usually ended, so the person's lawful status depends on the bridging visa and on whether review is sought in time. A person who does not seek review in time, or whose review fails, will be expected to leave Australia. Can Fijian tourists apply for a Subclass 866 protection visa from Fiji after they have left? No. The Subclass 866 visa can only be applied for by a person who is in Australia. Can Fijian tourists apply for a Subclass 866 protection visa a second time after a refusal? Generally no. Section 48A prevents a further protection visa application in Australia unless the Minister personally intervenes under section 48B. The pages on protection visa refusals and on appealing a refused protection visa to the ART explain review.

How My Migration Lawyers acts when Fijian tourists apply for a Subclass 866 protection visa

"Can Fijian tourists apply for a Subclass 866 protection visa" is often the first question a Fijian visitor asks, but the harder question is whether the claim will meet the legal test. My Migration Lawyers acts for Fijian visitors in Australia who fear returning to Fiji. The firm deals with complex protection matters and acts in many Subclass 866 matters of this exact type, including applications by visitor visa holders, applications after a visitor visa has expired, family violence claims, and cases where the visitor visa application must be reconciled with the protection claim. It is capable of handling these matters from the first assessment to decision, and at review if the visa is refused.

For a Fijian asking "can Fijian tourists apply for a Subclass 866 protection visa in my situation", the work includes:

• Assessing the claim. The firm assesses whether the facts fit the refugee test, complementary protection, or both, and whether another visa pathway is more appropriate.
• The client's own account. The firm takes the client's account with an interpreter where needed. It is the client's own evidence, which the client reviews and corrects before it is lodged. The client decides which claims are advanced.
• The visitor visa record. The visitor visa application and supporting documents are reviewed so that any difference is explained truthfully.
• Country information. Current information on Fiji, and on the client's village, province and community, is gathered and addressed.
• State protection and relocation. The evidence is prepared to answer whether the Fijian police and courts could protect the client and whether the client could live safely elsewhere in Fiji.
• Form 866 and documents. The firm prepares the application and supporting documents, including identity and nationality evidence, in the form the law requires.
• Interview and requests. The client is prepared for the protection visa interview, and the firm responds to any section 56 or section 57 request.
• Review. If the visa is refused, the firm assesses and lodges a Tribunal application within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers page explains how it acts in Subclass 866 matters more generally. If you are a Fijian visitor in Australia and fear returning home, book a consultation with My Migration Lawyers online, or call 1300 040 300.