Key Takeaways
- Yes. Pakistani citizens can apply for a Subclass 866 protection visa if they are physically in Australia when they apply and when the visa is granted, and they are not barred by an earlier refusal.
- Being a Pakistani citizen is not a bar to protection. What matters is whether the applicant meets the refugee test or the complementary protection test.
- A person whose protection visa was refused while in Australia generally cannot apply again unless the Minister personally intervenes under section 48B of the Migration Act.
- Pakistani citizens who hold, or can obtain, another nationality or a right to live in another country may have their claims assessed against that country as well.
- Travelling back to Pakistan, or using a Pakistani passport in dealings with Pakistani authorities, can seriously undermine a protection claim.
Can Pakistani citizens apply for a Subclass 866 protection visa? Yes. A citizen of Pakistan who is in Australia can apply, as long as they meet the basic threshold conditions and are not barred by an earlier protection visa refusal. Whether the visa is then granted depends on the strength of their claims.
This guide answers the question can Pakistani citizens apply for a Subclass 866 protection visa in practical terms. It covers who is allowed to apply, what a valid application needs, how dual nationality affects a claim, which visas Pakistani citizens usually hold when they apply, what happens after lodging, and who should not apply. The definitive guide to the Subclass 866 protection visa sets out the full criteria.
Can Pakistani Citizens Apply for a Subclass 866 Protection Visa?
Yes. Pakistani citizens can apply for a Subclass 866 protection visa if they are physically in Australia, make a valid application, and are not prevented from applying by section 48A of the Migration Act 1958 because of an earlier refusal.
The Subclass 866 is Australia's permanent onshore protection visa. It is only available to people who are already in Australia. A person in Pakistan cannot apply for it from Pakistan. The answer to can Pakistani citizens apply for a Subclass 866 protection visa is therefore always tied to where the person is. If they are in Australia, lawfully or not, they can generally apply.
The Subclass 866 protection visa page explains the visa, and the guide to protection visa eligibility explains what an applicant must be able to show.
Is being a Pakistani citizen a bar to protection in Australia?
No. Australian law does not exclude any nationality from applying for protection. A Pakistani citizen is assessed under exactly the same legal tests as a citizen of any other country.
Some people believe that because Pakistan is a democracy with courts and police, its citizens cannot be refugees. That is not the law. The question is whether the individual applicant faces a real chance of persecution or a real risk of significant harm, and whether the Pakistani state can protect them. When people ask can Pakistani citizens apply for a Subclass 866 protection visa, they are often really asking whether their own situation is serious enough. That depends on the facts, not on nationality.
It is equally true that a Pakistani passport does not help a claim. Many applications from Pakistani citizens are refused because the Department finds that state protection or relocation within Pakistan is available. Knowing that someone can apply is only the first step.
What are the threshold conditions for Pakistani applicants?
The threshold conditions are the requirements a Pakistani citizen must meet before the Department will consider the merits of their claims. If any of them is not met, the application cannot proceed. Before anyone can answer can Pakistani citizens apply for a Subclass 866 protection visa for a particular person, these conditions must be checked.
Being in Australia at application and at grant
The applicant must be in Australia when the application is lodged and when the visa is granted. A Pakistani citizen who leaves Australia while the application is being processed puts the application at risk. The question can Pakistani citizens apply for a Subclass 866 protection visa from overseas has a clear answer: no.
Not barred by an earlier refusal
Under section 48A, a person whose protection visa application has been refused while they were in the migration zone, or whose protection visa has been cancelled, cannot make a further protection visa application while they remain in Australia. The only exception is where the Minister personally decides under section 48B that the bar should not apply. The Minister is not required to consider a request.
Unauthorised maritime arrivals
Under section 46A, a person who arrived in Australia by boat without a visa cannot make a valid application unless the Minister lifts the bar. This rarely affects Pakistani citizens, who usually arrive by air with a visa.
A valid application
A valid application is made online on Form 866 through ImmiAccount. The guide to creating an ImmiAccount explains the first step, and the guide to the Form 866 application explains the form. The application must include evidence of identity and nationality, usually a Pakistani passport and national identity card. Each family member who is to be included, such as a spouse or dependent child in Australia, should be included in the application. The protection visa documents checklist lists the usual documents.
Can Pakistani citizens apply for a Subclass 866 protection visa if they are unlawful?
Yes. A Pakistani citizen whose visa has expired can still apply for a Subclass 866 protection visa, provided section 48A does not apply to them. Being unlawful does not remove the right to apply. It does make the position more urgent.
A person without a visa can be detained and removed from Australia. Lodging a valid protection visa application does not by itself make a person lawful. They may need to apply for a bridging visa, and the bridging visa available to an unlawful person usually has more restrictive conditions than one granted to a person who applied while holding a visa. When an unlawful person asks can Pakistani citizens apply for a Subclass 866 protection visa, the practical answer is yes, but the application and any bridging visa should be dealt with as soon as possible. The page on urgent immigration advice explains what to do when time is short.
What must you show once you are allowed to apply?
Once a Pakistani citizen has made a valid application, they must show that Australia owes them protection under the refugee test or the complementary protection test. Answering can Pakistani citizens apply for a Subclass 866 protection visa with a yes does not mean the visa will be granted. The criteria for the grant are explained in the guide to permanent protection visa eligibility.
The refugee test in section 36(2)(a) requires a well-founded fear of persecution for one of five Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance of serious harm, the Convention reason must be the essential and significant reason, and the risk must relate to all areas of Pakistan.
The complementary protection test in section 36(2)(aa) requires a real risk of significant harm, such as arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment, as a necessary and foreseeable consequence of removal to Pakistan. There is no real risk if the applicant could reasonably relocate within Pakistan, could obtain protection from the authorities, or faces only a risk faced by the population generally. The complementary protection page explains this test.
For Pakistani applicants, the issues that most often decide the case are state protection and relocation. The Department often finds that the Pakistani police can protect a person from non-state actors such as relatives, militants or rivals, or that the person could move to Islamabad, Lahore or Karachi. An applicant should be ready to explain, with evidence, why neither is realistic in their case.
Can Pakistani citizens apply for a Subclass 866 protection visa if they hold another nationality?
Yes, but the claim will be assessed against every country of nationality, and against any other country where the applicant has a right to enter and reside. A Pakistani citizen who is also a citizen of another country must usually show that they cannot be protected in that country either.
Section 36(3) of the Migration Act provides that Australia does not owe protection obligations to a person who has not taken all possible steps to avail themselves of a right to enter and reside in any country apart from Australia, including a country of which they are a national. There are important exceptions. Under sections 36(4), 36(5) and 36(5A), section 36(3) does not apply to a country where the person has a well-founded fear of persecution or faces a real risk of significant harm, or where there is a risk they would be sent on to a country where they would face that harm. Under section 36(6), whether a person is a national of another country is decided solely by the law of that country.
This matters for Pakistani citizens because Pakistan permits dual nationality with a list of countries published by its Directorate General of Immigration and Passports, which includes the United Kingdom, Canada, the United States and Australia. A Pakistani citizen who also holds British or Canadian citizenship, for example, must explain why they cannot live safely in that country. When a dual national asks can Pakistani citizens apply for a Subclass 866 protection visa, the honest answer is that they can apply, but their other nationality will be examined closely.
For anyone asking can Pakistani citizens apply for a Subclass 866 protection visa while holding residence rights elsewhere, a right to live in another country, such as long-term residence in a Gulf state or elsewhere, can also be relevant. It should be disclosed and addressed in the application, not left for the Department to discover.
What documents prove identity and nationality for Pakistani applicants?
Pakistani applicants usually prove identity and nationality with a Pakistani passport and a national identity card issued by the National Database and Registration Authority (NADRA). Other useful documents include a birth certificate, a NADRA family registration certificate, school and university certificates, and a marriage certificate where a spouse is included.
The Department must be satisfied of the applicant's identity and nationality before it can grant the visa. A person who does not have a passport or identity card should explain why, and provide whatever other evidence exists. Documents should be genuine and their origin should be explained, because the Department may verify them. Anyone asking can Pakistani citizens apply for a Subclass 866 protection visa without a current passport should know that the lack of a passport does not in itself prevent an application, but identity must still be established.
Can Pakistani citizens apply for a Subclass 866 protection visa while on a visitor or student visa?
Yes. Pakistani citizens can apply while holding a visitor visa, a student visa, a work visa, a partner or family visa, or a bridging visa, and also after their visa has expired. The visa held affects what happens next, but not whether a person can apply.
Visitor visas
Many Pakistani applicants arrive on a visitor visa. A No Further Stay condition on the visitor visa does not prevent an onshore protection visa application. The Department will compare the protection claim with the reasons given in the visitor visa application, so any difference should be explained. The guide to applying on a tourist visa covers this.
Student visas
Pakistani students can apply while their student visa is still valid. The Department will look at the student visa application and at why the claim was not made earlier. The guide for international students explains the specific issues.
Work, partner and family visas
Holders of work, partner or family visas can also apply. A pending partner or other visa application does not prevent a protection application, but the two applications should be consistent with each other. Where a Pakistani citizen is sponsored by a partner, the question can Pakistani citizens apply for a Subclass 866 protection visa at the same time is common. They can, but they should consider how each application affects the other, including which bridging visa applies and what each application says about their plans.
Bridging visas and expired visas
A person on a bridging visa, or whose visa has expired, can still apply if section 48A does not apply to them. A person without a visa is unlawful and should seek advice immediately, because the bridging visa options are more limited.
What happens to your current visa after you apply?
A Pakistani citizen who applies while holding a substantive visa usually keeps that visa until it expires, and is usually granted a bridging visa that takes effect when it ends. Many applicants receive a Bridging Visa A. Work rights depend on the conditions of the bridging visa. The guides to bridging visas and the Bridging Visa A explain the options.
A common follow-up to the question can Pakistani citizens apply for a Subclass 866 protection visa is whether the applicant can keep working. The answer depends on the bridging visa conditions, which should be checked in writing, because working in breach of a condition can lead to cancellation. Applicants should also keep their address and contact details up to date, because the Department sends requests and interview invitations electronically and the deadlines can be short.
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Does it matter when Pakistani citizens apply?
Yes. Delay can damage credibility, because the Department may ask why a person who fears returning to Pakistan did not apply as soon as they could. A delay does not bar an application, but it must be explained.
There can be good reasons for delay. The risk may have arisen after the applicant arrived, for example because of a blasphemy complaint, a change in the political situation, or a threat from family. The applicant may not have known that protection was available. The guide on delay in a Subclass 866 application explains how the Department treats it. Anyone asking can Pakistani citizens apply for a Subclass 866 protection visa after years in Australia should know that they can, but that the reasons for the timing will be tested.
Who should not apply for a Subclass 866 protection visa?
A Pakistani citizen who does not have a genuine fear of persecution or serious harm in Pakistan should not apply. An application made only to stay in Australia longer, or to obtain work rights, will be refused, and the consequences are serious.
After a refusal, section 48A generally prevents any further protection visa application in Australia unless the Minister intervenes. A weak application can therefore use up the only chance a person has, including a person whose circumstances later change. Giving false or misleading information, or false documents, in a visa application is also a serious matter under the Migration Act and can lead to refusal, cancellation and other consequences.
For those reasons, the question can Pakistani citizens apply for a Subclass 866 protection visa should never be answered by lodging first and thinking later. It should always be followed by a second question: should this person apply, and is the claim ready? An honest assessment before lodging protects the applicant.
Can Pakistani citizens apply for a Subclass 866 protection visa after a refusal?
Generally, no. A Pakistani citizen whose protection visa application was refused while they were in Australia cannot lodge a new one unless the Minister personally allows it under section 48B. The usual path after a refusal is review by the Administrative Review Tribunal. The time limit to apply for review is short and strictly applied, and it runs from notification of the decision. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process.
Can Pakistani citizens apply for a Subclass 866 protection visa without a lawyer?
Yes. The law does not require an applicant to have a lawyer or a registered migration agent, and many people lodge the application themselves. The claims and the evidence are always the applicant's own.
However, a protection application is not a simple form. The applicant must identify every relevant claim, explain it consistently, deal with country information, state protection and relocation, and prepare for an interview. Because section 48A usually prevents a second application after a refusal, mistakes in the first application can be very difficult to correct. The guide on when you need a protection visa lawyer explains the considerations. For anyone asking can Pakistani citizens apply for a Subclass 866 protection visa on their own, the most important step is to read the requirements carefully and make sure the account is complete and accurate before lodging.
Can you travel to Pakistan or use your Pakistani passport after applying?
Travelling to Pakistan while an application is pending, or after protection is granted, can seriously undermine a claim. A person who says they fear harm in Pakistan but returns there voluntarily will be asked to explain why. The applicant must also be in Australia when the visa is granted, and leaving Australia can end a bridging visa.
Contact with Pakistani authorities can raise similar questions. Renewing a Pakistani passport at the High Commission, for example, may be treated as seeking the protection of the state the applicant says they fear. That does not automatically defeat a claim, but it must be explained honestly. Anyone asking can Pakistani citizens apply for a Subclass 866 protection visa while planning a trip home should get advice before travelling.
What claims do Pakistani applicants usually make?
Pakistani applicants commonly make claims based on blasphemy accusations, religion (including Ahmadi, Shia, Christian and Hindu applicants), political opinion, militant threats, honour-based violence, blood feuds, and sexual orientation or gender identity. Once the question can Pakistani citizens apply for a Subclass 866 protection visa is answered, it is these claims that decide the outcome. The claim types, and how the Department assesses them, are explained in the separate guide to protection visas for Pakistani nationals.
How My Migration Lawyers helps Pakistani citizens apply for a Subclass 866 protection visa
My Migration Lawyers acts for Pakistani citizens in Australia who need to know whether they can and should apply for protection. The firm deals with complex protection matters and acts in many Subclass 866 matters of this exact type. It is capable of answering the question can Pakistani citizens apply for a Subclass 866 protection visa for the individual client, and of acting from the first consultation to decision, and at review if the visa is refused.
For every client who asks can Pakistani citizens apply for a Subclass 866 protection visa, the firm starts with the threshold conditions and then turns to the claims. The work includes:
- Assessing the framework. Checking the threshold conditions, including section 48A and any other nationality, and whether the claim fits the refugee test, complementary protection or both.
- The applicant's own account. Taking the applicant's own account with an interpreter. It is the applicant's evidence, which they review and correct before it is lodged, and the applicant decides which claims are advanced.
- Country information. Engaging with DFAT country information and more recent reports on Pakistan.
- State protection and relocation. Addressing the two issues on which Pakistani claims most often fail.
- Form 866 and documents. Preparing the Form 866 application, identity documents and supporting evidence, including for family members.
- Interview and requests. Preparing the applicant for interview and responding to requests for information under section 56 or invitations to comment under section 57.
- Review. Applying to the Administrative Review Tribunal within time if the application is refused.
My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The protection visa lawyers page explains how the firm acts in Subclass 866 matters.
If you are a Pakistani citizen in Australia and afraid to return, book a consultation with My Migration Lawyers online, or call 1300 040 300.
Frequently Asked Questions
I am a Pakistani citizen whose visitor visa expires next month. Can I still apply for a protection visa?
Yes. You can apply while your visitor visa is still valid, and a No Further Stay condition does not stop you from applying for a protection visa in Australia. Applying before your visa expires is usually better, because you are more likely to receive a bridging visa that keeps you lawful while the application is decided. You will need to explain any difference between your protection claims and the reasons you gave for your visit.
My previous protection visa was refused. Can I apply again?
Generally, no. Under section 48A of the Migration Act, a person whose protection visa application was refused while in Australia cannot make another protection visa application unless the Minister personally decides to allow it under section 48B. The Minister does not have to consider a request. If the refusal is recent, review by the Administrative Review Tribunal may still be available, but the time limit is short and strictly applied.
Can my wife and children be included in my protection visa application?
Yes, if they are in Australia. Family members such as a spouse or dependent children who are in Australia should be included in the same application. They may be granted the visa as members of your family unit even if they do not have their own claims. Family members who are still in Pakistan cannot be included in an onshore Subclass 866 application, and other visa options would need to be considered later.
Do I need my Pakistani passport to apply?
You should provide it if you have it. The Department must be satisfied of your identity and nationality, and a Pakistani passport and national identity card are the usual evidence. If you do not have them, you should explain why and provide other evidence of identity. You should not contact Pakistani authorities to obtain new documents without advice, because that contact may be raised when your claim is assessed.
Can I travel back to Pakistan while my application is being processed?
You should not. You must be in Australia when the visa is granted, and leaving can end your bridging visa and put the application at risk. Returning to the country you say you fear will also be treated as evidence against your claim, and you will be asked to explain it. If there is an urgent family reason to travel, get advice before making any plans.
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.
