Key Takeaways
- Can I apply for protection visa 866? Yes, most people in Australia can apply for a Subclass 866 protection visa, whatever visa they hold or have held, unless a specific statutory bar makes the application invalid.
- The most serious bar is section 48A of the Migration Act 1958. A person who has already been refused a protection visa in Australia generally cannot make another protection visa application while they remain in Australia.
- An earlier refusal of a student, visitor or partner visa does not stop a protection visa application. Protection visas are among the limited classes of visa still available to a person caught by section 48.
- Conditions 8503, 8534 and 8535 do not prevent a protection visa application. The protection visa exception is written into the conditions themselves.
- An invalid application is not assessed at all. It gives no bridging visa, no hearing and no review, so the validity question must be answered before anything is lodged.
Can I apply for protection visa 866?
Yes, in most cases. If you are in Australia, you can apply for a Subclass 866 protection visa unless the Migration Act 1958 contains a specific bar that applies to you. Whether you can apply for protection visa 866 is a different question from whether you will be granted it.
People ask "can I apply for protection visa 866" for many reasons. Some have had another visa refused. Some hold a visitor visa with a no further stay condition. Some have overstayed. Some were refused a protection visa years ago and want to try again. Each of these situations has a different answer, and the answer depends on the law that governs whether an application is valid.
The distinction between a valid application and a successful one matters. A valid application is assessed. It gives the applicant a bridging visa in most cases, an interview, a decision and, if refused, a right of review. An invalid application is not assessed at all. The Department simply treats it as never having been made.
This article deals only with the first question: can I apply for protection visa 866 in my situation? It does not deal with whether the claims are strong enough to succeed. That second question is covered in our article on whether you are eligible for a protection visa.
Why the validity question comes first
Some bars cannot be undone after an application is lodged. The most serious of them, section 48A, is triggered by a refusal of the first application. That is why the question "can I apply for protection visa 866" must be answered carefully before anything is lodged, not after.
What makes a protection visa 866 application valid?
A protection visa 866 application is valid if it is made on the correct form, in the correct way, by a person who is in Australia and not in immigration clearance, with the visa application charge paid, and if no statutory bar applies.
These requirements come from Schedule 1 of the Migration Regulations 1994, item 1401, together with the application bars in the Migration Act. Checking them is the first step in answering the question can I apply for protection visa 866, before anyone looks at the strength of the claims.
The form and method
The application is made online through ImmiAccount. Our guide to Form 866 explains the form section by section, and our guide on how to create an ImmiAccount deals with the account itself.
Being in Australia
The applicant must be in Australia when the application is made. A person outside Australia cannot apply for a Subclass 866 protection visa. They must look at the offshore humanitarian program instead. For anyone overseas asking can I apply for protection visa 866, the answer is no.
Not in immigration clearance
The applicant must not be in immigration clearance at the time of application. In practice, this means a person arriving at an airport has to complete immigration clearance before lodging.
The visa application charge
The application charge must be paid when the application is made. The charge is set by the Department and changes from time to time. The current charge is published on the Department's Subclass 866 page.
Claims at the time of application
Schedule 2 of the Regulations requires the applicant, at the time of application, to claim that Australia owes them protection and to state why. An application with no protection claims does not meet this requirement. So when someone asks "can I apply for protection visa 866 without explaining my claims yet", the answer is no. The claims are part of the application from the first day.
Can I apply for protection visa 866 after a protection visa refusal?
Generally no, while you remain in Australia. Section 48A of the Migration Act prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in Australia.
This is the bar people most often misunderstand, and it is the one that most often ends a case.
The bar applies to any ground
Section 48A applies whatever the new claims are. A person refused on one set of claims cannot make a new application on different claims. Parliament closed that argument some years ago.
The bar applies after cancellation
Section 48A also applies to a person whose protection visa was cancelled while they were in Australia.
Family members
A person who was included in an earlier protection visa application as a member of the main applicant's family unit, and whose application was refused, is generally also caught by the bar.
The only exception
The Minister may personally decide, under section 48B, that it is in the public interest to allow a further application. The power is personal and non-compellable. The Minister does not have to consider a request, and requests are rarely granted. Anyone asking "can I apply for protection visa 866 again" after a refusal should obtain advice before making any request.
Leaving Australia
A person who leaves Australia after a refusal and later returns is generally no longer caught by section 48A, subject to limited exceptions. For most people who fear returning home, that is not a real option.
Can I apply for protection visa 866 after another visa was refused or cancelled?
Yes. A refusal or cancellation of a visa that is not a protection visa does not stop you applying for a protection visa. Protection visas are among the limited classes of visa that remain available to a person caught by section 48 of the Migration Act.
Section 48 applies to a person in Australia who does not hold a substantive visa and who has had a visa refused or cancelled since they last entered Australia. It limits the visas that person can apply for while in Australia to the classes prescribed in regulation 2.12. The Protection class is one of them.
Common examples
International students are a common example. Our article on whether international students can apply for a Subclass 866 protection visa deals with their position in detail. A person whose student visa was refused can still apply. A person whose partner visa was refused can still apply. A person whose visitor visa was cancelled can still apply. In each case, the answer to "can I apply for protection visa 866" is yes, provided no other bar applies.
What the earlier refusal still affects
The earlier refusal does not stop the application, but it may still matter to the assessment. The Department will read the earlier application. If the earlier application described a life that is inconsistent with the protection claims, the difference will need to be explained. Our article on visa refusals explains the wider review options for non-protection refusals.
A warning about using protection as a last resort
A protection visa application is not a way to stay in Australia after other options have failed. An application made without a genuine fear of harm will be refused. The refusal then triggers section 48A. A person who asks "can I apply for protection visa 866 because nothing else is left" should first obtain advice on every other option.
Can I apply for protection visa 866 with condition 8503, 8534 or 8535?
Yes. Conditions 8503, 8534 and 8535 do not prevent a protection visa application. Each condition expressly excludes protection visas from its effect.
Condition 8503 is often called the no further stay condition. It provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while they remain in Australia. The Department's own policy states that the condition does not prevent the holder from applying for a protection visa.
Conditions 8534 and 8535 appear on many student visas and operate in the same way for protection visas.
No waiver is needed
A waiver is only needed to apply for a visa that the condition blocks, such as an onshore partner or skilled visa. No waiver is needed to apply for a protection visa. So the answer to "can I apply for protection visa 866 if my visa says no further stay" is yes. Our article on applying for a Subclass 866 protection visa on a tourist visa explains how this works for visitor visa holders.
Can I apply for protection visa 866 if my visa has expired or I am in detention?
Yes. A person who has become unlawful because their visa expired can still make a valid protection visa application, and so can a person in immigration detention, subject to the same bars that apply to everyone else.
The difference lies in what happens next, not in whether the application is valid.
If your visa has expired
A person who lodges while unlawful will not receive a Bridging visa A. They must apply for a Bridging visa E to become lawful. The Bridging visa E will usually carry a no work condition at first, and the person may need to explain the delay in applying. Our guide to bridging visas in Australia compares the options.
If you still hold a visa
A person who lodges while still holding a substantive visa, such as a visitor or student visa, is generally treated as also applying for a Bridging visa A. That bridging visa takes effect when the substantive visa ends. Our article on the Bridging visa A explains the work rights attached to it.
If you are in detention
A person in immigration detention can apply for a protection visa. The application process and the timing of the decision can differ, and advice is needed urgently, because detention usually means removal is being considered.
Why timing matters
Whether someone asks "can I apply for protection visa 866 before my visa expires" or after, the application is valid either way. But lodging before the substantive visa ends gives a much better bridging visa position. Our article on delaying a Subclass 866 protection visa application explains how delay affects both the bridging visa and the claims.
Can I apply for protection visa 866 if I arrived by boat or through a third country?
Usually not without the Minister's intervention. People who arrived in Australia as unauthorised maritime arrivals, and transitory persons brought to Australia from a regional processing country, face statutory bars on making a valid application.
Unauthorised maritime arrivals
Section 46A of the Migration Act provides that an application by an unauthorised maritime arrival who is in Australia and is an unlawful non-citizen, or who holds a bridging visa or certain temporary visas, is not valid. The Minister may personally lift the bar. This bar is not affected by how long the person has been in Australia.
Transitory persons
Section 46B applies a similar bar to transitory persons. It also requires the Minister's personal intervention.
Other statutory bars
The Migration Act contains further bars that apply in narrower circumstances, including bars relating to people covered by safe third country arrangements and to people who were offered temporary safe haven. They are rare. They are listed here because anyone asking "can I apply for protection visa 866" after arriving in unusual circumstances needs their immigration history checked in full.
Temporary protection visa holders
A person who holds a temporary protection visa or a Safe Haven Enterprise visa is in a different legal position. The Subclass 866 permanent protection visa is generally not available to them in the same way.
Can I apply for protection visa 866 without a passport?
Yes. A passport is not a validity requirement for a protection visa application. You can apply for protection visa 866 without a passport, but your identity, nationality and citizenship will still be assessed, and missing documents must be explained.
Many people who need protection do not have a passport. Some fled without one. Some had it taken. Some entered on documents that were not their own. None of these facts makes the application invalid.
What the Department does with identity
Identity is assessed as part of the decision, not at the validity stage. Under section 91W, the Department may ask for evidence of identity, nationality or citizenship. If the applicant refuses or fails to comply, or provides a bogus document, without a reasonable explanation, the visa cannot be granted. Section 91WA has a similar effect for bogus documents provided with the application.
What to do if documents are missing
The applicant should explain why documents are missing and what steps have been taken to obtain them. Other documents, such as national identity cards, birth certificates or school records, can help. Our protection visa documents checklist explains what is usually provided. So when people ask "can I apply for protection visa 866 if my passport is with my employer or lost", the answer is yes, but the explanation must be in the application.
Can I apply for protection visa 866 if I have a criminal record?
Yes. A criminal record does not make a protection visa application invalid. It is assessed later, as part of the character and security criteria, and it can lead to refusal in some cases.
How character is assessed
The Migration Act contains protection-specific provisions for serious crimes and for danger to Australia's security or community, as well as the general character test in section 501. These are decision criteria. They do not stop the application from being lodged.
Why it matters before lodgement
A person with a criminal history, in Australia or overseas, needs advice on how that history will be assessed before they lodge. Honest disclosure is essential. A person who asks "can I apply for protection visa 866 with a conviction" is really asking two questions: whether they can lodge, and whether the conviction will prevent grant. Only the first has a simple answer. Our page on visa cancellations deals with the character provisions more generally.
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Can I apply for protection visa 866 for my family?
Yes. Members of your family unit who are in Australia can be included in the same application, and a combined application can be made with a single visa application charge for the group.
Who can be included
The family unit generally includes a spouse or de facto partner, dependent children and certain other dependent relatives. Each person must be in Australia when the application is made.
Children born in Australia
A child born in Australia to a parent whose protection visa application is being decided is generally taken to have applied as well. The child should still be notified to the Department promptly.
The effect of a refusal on family members
If the application is refused, family members who were included are generally affected by section 48A in the same way as the main applicant. So when a family asks "can I apply for protection visa 866 together", the answer is yes, but everyone in the application shares the consequences.
Family members with their own claims
A family member who has their own protection claims should make them clearly. A family member who relies only on the main applicant's claims succeeds only if the main applicant succeeds.
Can I apply for protection visa 866 if I am outside Australia or planning to travel?
No, if you are outside Australia. A Subclass 866 protection visa can only be applied for in Australia, and the visa must also be granted while the applicant is in Australia.
Travel after lodgement
So the answer to can I apply for protection visa 866 and then travel is that travel carries serious risk. A Bridging visa A does not allow travel. Travel requires a Bridging visa B, which must be applied for and granted before departure. A person who leaves Australia without a bridging visa that allows return may not be able to come back. Travel to the country the applicant claims to fear is likely to be used as evidence against the claim.
What travel means for the outcome
Because the visa must be granted in Australia, an applicant who is overseas when the decision is ready cannot be granted the visa. For almost every applicant, the safest course is to remain in Australia until the application is decided. Our guide to the Subclass 866 protection visa sets out the grant requirements.
What happens if an invalid protection visa application is lodged?
An invalid application is not considered at all. The Department will not assess the claims, no bridging visa is granted on the basis of that application, and there is no review of the Department's view that the application was invalid through the ordinary merits review process.
The practical consequences can be severe. A person who believed they held a bridging visa may in fact be unlawful. A person who believed they had a claim on foot may have lost time. And some errors, such as lodging from outside Australia, cannot be corrected.
The better course is to answer the question "can I apply for protection visa 866" before lodgement, with the full immigration history in front of the adviser. If a validity issue is found early, it can often be managed. If it is found after lodgement, the options are narrower. Where a validity issue is raised by the Department, legal advice should be obtained immediately. Our article on urgent immigration lawyer advice explains what to have ready.
How My Migration Lawyers checks whether you can apply for protection visa 866
My Migration Lawyers checks every validity issue before a protection visa application is lodged, and the firm acts in many matters where the question of whether the client can apply for protection visa 866 is itself complex.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly acts for clients with earlier visa refusals, expired visas, no further stay conditions, earlier protection applications and family members with separate immigration histories.
What the firm checks
The firm reviews the client's full immigration history, including how the client entered Australia, every earlier visa application and decision, and any visa conditions. It obtains the client's Department records where needed. It confirms whether section 48A, section 46A or any other bar applies, and whether any family member has a different position.
What the firm does next
Once the firm has confirmed that a valid application can be made, it turns to the claims. The statement of claims is the client's own account. My Migration Lawyers helps the client set it out 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 then lodges the application and acts as the Department's contact point.
When to contact the firm
The right time to ask whether you can apply for protection visa 866 is before anything is lodged and, ideally, before your current visa ends.
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
Can I apply for protection visa 866 if my student visa was refused?
Yes. A refusal of a student visa, or of any other visa that is not a protection visa, does not prevent a protection visa application. Section 48 of the Migration Act limits the visas a person can apply for after a refusal, but protection visas remain available. The Department will still read the earlier student visa application, so anything in it that is inconsistent with the protection claims should be explained in the new application.
My protection visa was refused five years ago. Can I apply again now?
Not while you have remained in Australia since the refusal. Section 48A generally prevents a further protection visa application in Australia after a refusal, however much time has passed and whatever the new claims are. The Minister can personally allow a further application under section 48B, but the power is rarely used. If you have left Australia and returned since the refusal, your position may be different, and your travel history should be checked.
Do I need a waiver of condition 8503 before applying for a protection visa?
No. Condition 8503 expressly excludes protection visas. It prevents the grant of other substantive visas while you remain in Australia, but it does not prevent you from applying for, or being granted, a protection visa. Conditions 8534 and 8535 work the same way. A waiver is only needed if you want to apply for a different visa that the condition blocks.
Can I apply for a protection visa after my visa has expired?
Yes. An unlawful non-citizen can make a valid protection visa application if no other bar applies. The difference is the bridging visa. A person who lodges while still holding a visa is generally treated as also applying for a Bridging visa A, while a person who lodges after the visa has expired must apply for a Bridging visa E, which usually carries a no work condition at first. Lodging before the visa expires is almost always better.
Can I apply for a protection visa from outside Australia?
No. A Subclass 866 protection visa can only be applied for by a person who is in Australia, and it must also be granted while the person is in Australia. People outside Australia who need protection must consider the offshore humanitarian program, which has different requirements and is administered differently.
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.
