Character Requirements for Protection Visa 866

Character Requirements for Protection Visa 866: Records From the Home Country

The character requirements for Protection Visa 866 apply to what an applicant has done, and what has been alleged against them, in their home country as well as in Australia. Many protection visa applicants have charges, convictions, arrest warrants or other records in the country they have fled. Some of those records are ordinary criminal matters. Others are part of the very persecution the applicant fears.

The character requirements for Protection Visa 866 are found in section 36 of the Migration Act 1958 and in public interest criteria 4001 and 4003A, which clause 866.225 of the Migration Regulations 1994 requires the applicant to satisfy. Public interest criterion 4001 applies the character test in section 501(6), which takes account of criminal records and conduct in any country. The exclusion provisions in section 5H(2) and section 36(2C)(a) also apply to serious non-political crimes committed before the applicant entered Australia.

This article deals with home country records: what must be disclosed, how police certificates work for protection applicants, the difference between prosecution and persecution, how foreign convictions and Interpol notices are assessed, and how to present the evidence. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

What Form 866 Requires an Applicant to Disclose

Form 866 requires disclosure of a wide range of matters from any country, and the character requirements for Protection Visa 866 cannot be assessed properly unless those answers are complete. The form asks whether any person included in the application has ever:

• been charged with an offence that is currently awaiting legal action;
• been convicted of an offence in any country, including any conviction now removed from official records;
• been charged or convicted of family or domestic violence offences, or been the respondent to a protection order;
• been the subject of an arrest warrant or an Interpol notice;
• served in a military force, police force, militia or intelligence agency, or undergone military or weapons training;
• been associated with an organisation engaged in violence, including protest or insurgency;
• been removed, deported or excluded from any country, or overstayed a visa in any country.

Part C of the form asks each applicant further questions about convictions, pending charges, criminal investigations of which they are aware, serious crimes committed but not charged, and involvement in crimes against humanity.

The declaration requires the applicant to confirm that, except as disclosed, they are not aware of any investigation that could lead to criminal charges and have no matter that would bring into question whether they pass the character test in section 501. The form warns that giving false or misleading information is a serious offence. Our guide to Form 866 explains how these questions should be answered.

Police Certificates Under the Character Requirements for Protection Visa 866

Police certificates for protection visa applicants follow a specific rule that protects applicants from having to approach the authorities they fear. The Department's Protection Visa Processing Guidelines state that all protection visa applicants aged 17 or older require an Australian penal check. Applicants who have lived in another country for more than 12 months since turning 16 also require a check from that country, other than the country from which they are claiming protection.

This rule is one of the most important practical features of the character requirements for Protection Visa 866. An applicant who fears the police or government of their home country is not asked to apply to those authorities for a certificate. Doing so could reveal the applicant's location, alert the persecutor to the protection application, or put family members at risk.

Under the character requirements for Protection Visa 866, certificates may still be required from third countries, such as a country where the applicant studied or worked before coming to Australia. Where a third country has no procedure for issuing a certificate, or a certificate cannot be obtained, the Department's penal checking guidance provides for that situation, and the reason should be explained in writing. The Department states that applicants should not arrange police certificates until it asks. Our protection visa documents checklist lists the documents commonly requested.

Why Home Country Records Are Common in Protection Cases

Home country records are common in protection cases because persecution is often carried out through the legal system. Governments that target political opponents, religious minorities, journalists, activists or sexual minorities frequently do so by arresting, charging and convicting them. A record that would suggest bad character in an ordinary visa application may, in a protection application, be evidence of the very harm the applicant fears.

The character requirements for Protection Visa 866 do not ignore this. They require the decision maker to assess what the record actually shows. An applicant arrested at a peaceful protest and convicted under a law against "insulting the state" is in a very different position from an applicant convicted of armed robbery. Both records must be disclosed. Only one of them is likely to count against the applicant.

The difficulty for many applicants is fear. Some worry that disclosing a home country conviction will lead automatically to refusal, and they leave it out. That is the most damaging choice an applicant can make under the character requirements for Protection Visa 866. The Department may already hold the information, or may obtain it, and an undisclosed record will then be treated as a credibility problem affecting the entire claim. A disclosed record, explained with evidence, can instead strengthen it.

Prosecution or Persecution Under the Character Requirements for Protection Visa 866?

The distinction between prosecution and persecution is central to how home country records are treated under the character requirements for Protection Visa 866. As a general rule, a person who fears prosecution and punishment under a law that applies to everyone, for an ordinary crime, is not a refugee. States are entitled to enforce their criminal laws.

A charge, conviction or punishment can, however, amount to persecution in several situations.

• The law itself is persecutory. A law that criminalises a person's religion, political opinion, sexual orientation or ethnicity targets them for a Convention reason. Prosecution under such a law can be persecution.
• The law is applied in a discriminatory way. A law of general application may be enforced only against members of a particular group, or enforced against them far more harshly.
• The punishment is disproportionate. A penalty grossly out of proportion to the offence, particularly where imposed for a Convention reason, can amount to serious harm.
• The charge is a pretext. Fabricated charges are sometimes used to target political opponents, journalists, religious minorities and others. The real reason for the prosecution may be a Convention reason.
• The process is fundamentally unfair. Torture to obtain a confession, denial of a fair trial and detention without process can all be part of persecution.

Under section 5J of the Migration Act 1958, persecution must involve serious harm and systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm that include a threat to life or liberty and significant physical harassment or ill-treatment. Each claim of this kind, and each response to the character requirements for Protection Visa 866 that relies on it, must be supported by the applicant's account and by country information about how the relevant law is used. Claims based on religious persecution and on sexual orientation or gender identity often involve laws of exactly this kind.

How Foreign Convictions Are Assessed Under the Character Requirements for Protection Visa 866

A conviction imposed in the home country is assessed under the character requirements for Protection Visa 866, but its weight depends on the circumstances in which it was imposed. A conviction for an ordinary crime, following a fair process, will usually be treated like any other conviction. It may contribute to a substantial criminal record under section 501(7), and a serious non-political crime committed before entering Australia may engage the exclusion provisions.

A conviction imposed by the persecuting state is different. Where the evidence shows that the conviction was obtained through a fabricated charge, a coerced confession or a trial that did not meet basic standards of fairness, the decision maker may give it little weight. The Department's Complementary Protection Guidelines note, in the context of exclusion, that a charge or conviction may be highly probative but will not be determinative, and that it must be assessed in the context of the other evidence.

The applicant should not assume that the decision maker will reach that conclusion without help. The application should explain the conviction, why it is unreliable, and how it connects to the protection claim. Supporting evidence can include court documents, reports from lawyers who acted in the proceedings, statements from witnesses, and country information about the use of the relevant law against people in the applicant's position. Our guide to evidence in a protection visa application explains what carries weight.

Pending Charges and Arrest Warrants in the Home Country

Pending charges and arrest warrants in the home country must be disclosed under the character requirements for Protection Visa 866, and they often form part of the protection claim itself. Form 866 asks whether any applicant is the subject of an arrest warrant or Interpol notice, is aware of a criminal investigation, or has charges pending in any country.

Where a warrant or charge relates to ordinary criminal conduct, the applicant should expect the decision maker to consider whether they are fleeing prosecution rather than persecution. Where it relates to political activity, religious practice, sexual orientation or another Convention characteristic, it may be strong evidence of the risk the applicant faces on return.

The applicant should provide whatever documents are available, such as the warrant, summons or charge sheet, with English translations, and explain how the documents were obtained. Decision makers are alert to fraudulent documents, and a document that cannot be explained can damage credibility. Sections 91W and 91WA also apply to identity documents, and the same care should be taken with any document that supports the claim.

Interpol Notices

An Interpol notice is disclosed and assessed under the character requirements for Protection Visa 866 in the same way as an arrest warrant. The character test in section 501(6) includes, among its grounds, a person who is the subject of an Interpol notice from which it is reasonable to infer that they would present a risk to the Australian community. The existence of a notice is therefore a serious matter.

Interpol notices can, however, be sought by states for improper purposes, including to pursue political opponents abroad. Where the applicant believes a notice has been sought by the persecuting state because of their political opinion or another Convention reason, that belief should be explained and supported with evidence. The notice, and the circumstances in which it was issued, may then support the protection claim rather than undermine it.

Character Requirements for Protection Visa 866 and Serious Crimes Before Arrival

A serious crime committed in the home country before the applicant came to Australia can engage the exclusion provisions, not only the general character test. Under section 5H(2)(b) of the Migration Act 1958, a person is not a refugee if there are serious reasons for considering that they committed a serious non-political crime before entering Australia. Section 36(2C)(a) applies the same rule to complementary protection.

This part of the character requirements for Protection Visa 866 does not depend on a conviction. The Department's guidelines explain that "serious reasons for considering" requires strong evidence, but not a charge or conviction. A non-political crime is one committed for wholly or mainly non-political motives, and offences involving violence against a person's life or liberty are generally not treated as political offences.

The provision is aimed at genuinely serious crimes, not at charges fabricated by a persecuting state or minor offences. Where the home country alleges that the applicant committed a serious crime, the applicant must address the allegation directly, explaining what happened, why the allegation is false or exaggerated if that is the case, and what evidence supports that explanation. Our pages on visa refusals and on complementary protection explain the wider framework.

Military Service, Desertion and Draft Evasion

Military service, desertion and draft evasion raise distinct questions under the character requirements for Protection Visa 866 and the protection claim. Form 866 asks about service in any military, police or security force and about military training. Service will be examined for possible involvement in serious crimes, which could engage the exclusion provisions in section 5H(2) and section 36(2C)(a).

Desertion and draft evasion are usually crimes in the home country, and they are disclosed under the character requirements for Protection Visa 866 like any other charge. Punishment for desertion or evasion under a law of general application is not usually persecution. It can be, however, where the punishment is disproportionate, where it is imposed for a Convention reason, or where the service the person refused would have required them to take part in acts contrary to basic rules of human conduct. These claims depend heavily on country information and on the applicant's reasons for refusing service. They should be explained in the application in full.

Overstays, Removals and Earlier Immigration Breaches

Immigration history in other countries is also relevant to the character requirements for Protection Visa 866. Form 866 asks whether any applicant has overstayed a visa in any country, or been removed, deported or excluded from any country. These matters are relevant to the assessment of general conduct under the character test and to the credibility of the applicant's travel history.

An earlier overstay or removal does not usually prevent the grant of a protection visa on its own. It should be disclosed with an explanation of the circumstances, such as a period spent in a third country while trying to reach safety. Unexplained gaps or inconsistencies in the travel history can raise questions about identity, about whether the applicant has a right to reside in another country, and about credibility.

Presenting Home Country Records Under the Character Requirements for Protection Visa 866

Home country records should be presented in the application in a way that allows the decision maker to understand them immediately, because the character requirements for Protection Visa 866 are applied by an officer who may know little about the legal system of the applicant's country. The character requirements for Protection Visa 866 are applied to the whole of the evidence, and a clear presentation can prevent a disclosed matter from becoming a concern.

• Disclose everything Form 866 asks about, including matters the applicant considers unfair or fabricated.
• Obtain the documents that exist, with English translations, and explain how they were obtained.
• Explain the connection to the claim, where a charge or conviction is part of the persecution feared.
• Support the explanation with country information about how the relevant law or process is used against people in the applicant's position.
• Keep the account consistent across the application, the statement of claims and the interview.

Our guide to the protection visa statement of claims explains how the account is structured, and our guide to protection visa interview questions explains how these matters are likely to be explored at interview.

Family Members With Home Country Records

The character requirements for Protection Visa 866 apply to every person included in the application, so a family member's home country record must also be disclosed. Form 866 asks the character questions about each person named in the application, and each person aged 17 or older requires an Australian penal check.

A family member's record is often connected to the family's claims. A spouse may have been charged because of the applicant's political activity, or an adult child may have been detained to put pressure on the family. Where that is the case, the record should be explained as part of the claim. Where a family member has an ordinary criminal record unrelated to the claims, it should still be disclosed, with documents, because it will be assessed for that person's own grant.

Common Mistakes With Home Country Records

The same mistakes with home country records appear repeatedly, and each one is avoidable under the character requirements for Protection Visa 866.

• Leaving out a conviction the applicant considers unfair. It must be disclosed, with the explanation.
• Assuming a removed or expunged conviction does not count. Form 866 asks about convictions removed from official records.
• Providing documents without explaining them. A warrant or judgment with no account of how it was obtained invites doubt.
• Approaching the home country authorities for a police certificate. This is not required, and it can create risk.
• Changing the account at interview. An account of a charge or arrest that differs from the written application damages credibility.
• Ignoring the connection to the claim. A politically motivated charge is often the strongest evidence of risk, and should be presented as such.

If a Home Country Record Leads to Refusal

If a Subclass 866 application is refused because of a home country record, whether on character grounds or because the decision maker found the applicant was fleeing prosecution, the applicant can usually apply to the Administrative Review Tribunal for review. The time limit is short and strictly applied, and it runs from notification. The Tribunal considers the case afresh, and it can take new evidence into account, including evidence about the reliability of a foreign conviction. Our pages on protection visa refusals and on appealing a protection visa refusal to the ART explain the process. Section 48A of the Migration Act 1958 generally prevents a second protection visa application while the applicant remains in Australia, so the review is usually the most important remaining step.

How My Migration Lawyers Acts Where the Home Country Has Laid Charges

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases involving home country records, including applicants facing fabricated political charges, convictions under laws that criminalise religion or sexual orientation, arrest warrants, Interpol notices, desertion and draft evasion. The firm assesses the character requirements for Protection Visa 866 alongside the protection claim, because in these cases the two are often the same set of facts.

• Disclosure and documents. We identify every matter that must be disclosed, obtain and translate the documents, and explain how they were obtained.
• Prosecution or persecution. We assess whether the charge, conviction or punishment amounts to persecution, and research the country information about how the relevant law is used.
• The applicant's own account. We take the applicant's account and present it in the form the law requires. The statement is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Character submissions. We address the weight to be given to foreign convictions and notices under public interest criterion 4001 and the exclusion provisions.
• Review. If an application is refused, we act on the Tribunal review within the time limit.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video. Our protection visa lawyers page explains how the firm acts in these matters.

A charge laid by the state an applicant fears should be explained, not hidden. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.