Form 866: Protection Visa Application Explained

What Is Form 866?

Form 866 is the Department of Home Affairs application form for a Protection visa, and it is the document through which a person in Australia asks for Australia's protection. The form is titled Application for a protection visa. It collects the identity, history, family and protection claims of every person included in the application.

Form 866 is used for a permanent Protection visa, the Subclass 866, and for an initial Temporary Protection visa or Safe Haven Enterprise visa. The form states that, once lodged, the application is taken to be an application for only one of those classes of visa, depending on the applicant's eligibility. Two questions at the start of Part C decide which, as explained below.

Form 866 is also the name commonly used for the online application. The Department's current requirements are that a Protection visa application must be lodged online through ImmiAccount. The Department's Protection Visa Processing Guidelines explain that the paper Form 866 may be sent by post only where the Department has given written notice of authorisation. Form 866 itself states that applications cannot be lodged in person or hand delivered to any office of the Department. The online application asks the same questions in the same order, so this article refers to Form 866 throughout.

This article explains how Form 866 is organised, what each part of the form asks and why, and what happens once it is lodged. For a detailed guide to the claims questions at Questions 75 to 83, see our article on how to prepare Form 866. For an overview of the visa itself, see our Subclass 866 Protection visa page and our definitive guide to the protection visa.

How Form 866 Is Organised

Form 866 has three parts, and the structure matters because it decides who completes which questions. Part A is the explanatory notes, Part B identifies every person in the application, and Part C records the personal details and claims of each person.

Part A contains information the applicant keeps, including the eligibility rules, the application bars, the requirements for a valid application, the evidence to provide, information about who can give immigration assistance, and an application checklist.

Part B is completed once for the whole application. It records the family composition, the character history of every person named, any family members not included, who helped with the form, who should receive correspondence, payment details and interpreter details.

Part C is completed separately for each person included in the application. The form states that a separate Part C must be completed for every person named in Question 2 of Part B. Part C runs from Question 1 to Question 87 and covers visa eligibility, personal details, family, travel, visa history, residential, employment and education history, criminal history, protection claims, documents and the declarations.

Form 866 opens each of Parts B and C with the same instruction. The applicant must answer all questions, and if a question does not apply, must write N/A. The form warns that failure to do so may lead to the application being considered invalid. Where more space is needed, a separate sheet can be attached, identifying the part and question number and signed.

Who Is Included in a Form 866 Application?

A Form 866 application can include the person seeking protection and the members of their family unit who are in Australia. Question 2 of Part B lists every person included, and for each one records whether that person is raising their own claims for protection.

Form 866 explains that members of the same family unit include a partner, whether spouse or de facto partner, dependent children and certain other dependants. The Department's Subclass 866 page explains who can be a dependent child or other dependent relative. All persons included must be in Australia at the time of application.

The column in Question 2 asking whether each person is raising their own claims is more important than it looks. The form states that each applicant raising their own claims must complete Questions 75 to 83 in their own Part C. A partner or adult child who has their own reasons to fear harm should say so, rather than relying entirely on the main applicant's claims. The Department's guidelines recognise, for example, that a woman included in a family application may have her own gender-related claims and may need to be interviewed separately.

Question 4 of Part B asks about members of the family unit who are not included in the application, whether in Australia or overseas, and why they are not included. The declaration at Question 87 records that a person not included in the application will have no automatic right of entry to Australia because the applicant holds a Protection visa. That is a decision to make carefully at the outset.

A child born after lodgement and before a decision is taken to be included in the application, and the Department should be notified of the birth. A partner or dependent child in Australia can be added after lodgement using Form 1436, provided the application has not yet been decided.

Part B of Form 866: Character, Assistance and Communications

Part B of Form 866 records character information for every person in the application, and it records who helped prepare the form and who will receive correspondence. Each of those answers has consequences.

Question 3 of Part B is the character question. It asks whether any person named in the application has been charged or convicted, been the subject of an arrest warrant or protection order, been associated with an organisation engaged in violence, served in a military or police force or militia, overstayed a visa or been removed from any country, among other matters. Every yes requires details and court documents. The form defines an organisation engaged in violence to include war, insurgency, freedom fighting, terrorism and protest, so a political activist may need to answer yes.

Questions 5 to 7 ask whether anyone assisted with Form 866, whether that person is a registered migration agent, Australian legal practitioner or exempt person, and whether they were paid or given a gift. Form 866 warns that some applicants have been victims of scams by fraudulent advisers who promise guaranteed visas, and that no one can guarantee a Protection visa or a processing timeframe.

Question 8 records where written communications should be sent. A lawyer or registered migration agent acting for the applicant lodges Form 956, and an authorised recipient who is not a representative is appointed with Form 956A. Our guide to Form 956 and Form 956A explains the difference. Documents sent to the authorised recipient are treated as received by the applicant.

Questions 10 and 11 deal with interpreters. Question 10 records whether an interpreter helped complete the application and requires the interpreter's details. Question 11 asks whether the statement and other information were read back to the applicant in their own language. The Department's guidelines list, as a reason to seek further information, an application where it is apparent the applicant does not speak English but the interpreter's declaration has not been signed. An applicant should never sign Form 866 without having it read back in a language they understand.

Part C of Form 866: Visa Eligibility and Personal Details

The first questions of Part C decide which visa the application is for, and the personal details that follow contain several answers that bear directly on the claim.

Question 1 asks whether the applicant arrived in Australia with a valid visa. Question 2 asks whether, on arrival, the applicant was immigration cleared and allowed entry at the border. Form 866 states that an applicant who answers yes to both will be considered for a permanent Protection visa, and an applicant who answers no to either will only be considered for a Temporary Protection visa or Safe Haven Enterprise visa. Questions 3 and 4 ask whether the applicant has previously been refused a Protection visa in Australia or had one cancelled, which goes to the application bars.

The personal details questions include names, date of birth, citizenship and statelessness. Question 22 asks whether the applicant has a right to enter or reside in any country other than their country of nationality or former habitual residence. That question engages section 36(3) of the Migration Act 1958, which deals with a person who has not taken all possible steps to use a right to enter and reside in another country.

Questions 26 and 27 ask which languages and dialects the applicant speaks, reads and writes, and whether an interpreter will be needed at interview, in which language and dialect. The dialect answer matters. An interpreter who speaks the national language but not the applicant's regional dialect can distort the applicant's evidence at interview. Question 28 asks about factors to consider at interview, such as disability access.

Questions 29 and 30 ask for ethnic group and religion, including denomination. For many applicants these are the characteristics on which the claim itself is based. The answers must match the claim exactly. An applicant claiming persecution as a member of a minority denomination must record that denomination, not the majority religion of their country. Our pages on religious persecution and on LGBTI protection visas explain how claims based on those characteristics are assessed.

Question 34 requires the current residential address in Australia. Form 866 states that a post office box is not acceptable and that failure to give a residential address will result in the application being invalid. Question 38 asks whether the applicant agrees to communication by email, which the Department describes as its preferred and fastest method.

Form 866 Questions on Travel, Departure and Documents

Questions 43 to 56 of Form 866 record how the applicant left their home country and reached Australia, and every answer is compared with passports and the Department's movement records.

Question 47 asks how the applicant left their home country. An applicant who left legally gives details of the travel document used. An applicant who left illegally must describe how they departed, including details of any fraudulent documents used. Question 49 asks for the travel document used to enter Australia and where that document is now. Question 55 asks about every other travel document ever held or used, including expired, lost and stolen documents.

These answers must be accurate because section 91WA of the Migration Act 1958 requires refusal of a Protection visa where the applicant provides a bogus document as evidence of identity, nationality or citizenship, or destroys or disposes of such evidence, unless there is a reasonable explanation and genuine evidence is provided or reasonable steps are taken to provide it. Disclosing a fraudulent document used to escape is very different from relying on one to prove identity.

Questions 51 to 53 ask whether the current passport is valid for return home, how it was obtained, and whether it has been extended by the authorities of the home country. A passport renewed through the home country's embassy after the applicant arrived in Australia can raise a question about whether the applicant fears those authorities. It may have a sound explanation, and that explanation should be given.

Visa History, UNHCR and Embassy Contact on Form 866

Questions 57 to 66 of Form 866 record the applicant's visa history, any earlier protection claims elsewhere, and contact with foreign authorities in Australia. Several of these answers are frequently misunderstood.

Question 58 asks whether the applicant has ever applied to enter any country other than Australia and what reasons were given. Question 59 asks about visa refusals by other countries. Question 60 asks about removal or deportation from any country. The reasons given in earlier visa applications, including the application for the visa used to enter Australia, will be compared with the claims. Our guides for applicants who arrived on a tourist visa or a student visa deal with that comparison.

Questions 61 to 64 ask whether the applicant has ever applied for refugee status or protection in any other country, registered with or been assessed by the United Nations High Commissioner for Refugees, or lived in a refugee camp or detention centre outside Australia. Evidence of UNHCR registration should be attached.

Question 66 asks whether the applicant is registered with, or has had any contact with, the embassy, high commission, consulate or other representatives of any country in Australia, including their home country. Contact with the home country's embassy is not automatically fatal, but it will be examined. An applicant who visited the embassy to renew a passport or register a birth should say so and explain why.

Form 866 History, Claims and Documents Questions

The later questions of Form 866 record the applicant's full history, criminal history, protection claims and supporting documents. They are the questions most often completed too briefly.

Questions 67 to 72 require travel for the last 30 years, addresses for the last 20 years, employment and unemployment with no gaps, and all education since birth. Question 73 asks about convictions, pending charges, criminal investigations, serious crimes not charged and any involvement in crimes against humanity. Question 74 asks whether the applicant is making their own claims for protection, and if so, Questions 75 to 83 must be completed.

Questions 75 to 83 are the claims questions. They ask which countries the applicant cannot return to, why the applicant left, what harm occurred and why, whether help was sought, whether relocation was tried or is possible, and whether the authorities can and will protect the applicant. Form 866 instructs that these answers must be given in the applicant's own words, and warns that a decision may be made on the written application and the applicant may not be given another opportunity to present the claims. Our guides to the protection visa statement of claims and to evidence in a protection visa application explain how those answers are supported.

Question 84 lists every document provided and whether it is provided now, later or cannot be provided. Question 85 explains why a document cannot be provided. Documents in another language must be accompanied by an English translation by a translator certified by the National Accreditation Authority for Translators and Interpreters.

Signing Form 866: The Values Statement and Declaration

Form 866 ends with two declarations, and the rules on who signs differ between them. Question 86 is the Australian Values Statement. It must be signed by each person included in the application who is aged 18 or over. Signing it is a time of decision requirement for applicants aged 18 or over, rather than a validity requirement.

Question 87 is the declaration that the information provided is truthful and honest in every way, and that the applicant will inform the Department of changes in personal circumstances, including a change of address for more than 14 days. It must be signed by each applicant aged 18 or over. A parent or legal guardian signs for an applicant under 15, and an applicant aged 15 to 17 may sign for themselves or have a parent or guardian sign.

The declaration also contains consents to the Department making enquiries, disclosing information to other Australian agencies and to the United Nations, and making enquiries with countries where the applicant may have a right to reside other than the country from which protection is claimed. Form 866 warns that giving false or misleading information is a serious offence.

Common Form 866 Errors Outside the Claims Questions

Most discussion of Form 866 focuses on the claims questions, but many avoidable problems arise elsewhere in the form. The errors below are the ones most often seen in applications prepared without advice.

• The wrong dialect at Question 27. Recording only the national language when the applicant is most comfortable in a regional dialect can lead to an unsuitable interpreter at interview.
• A religion or ethnicity that does not match the claim. Questions 29 and 30 should describe the characteristic on which the claim is based, including the specific denomination.
• An undisclosed right of residence. A second nationality, a long term visa or a residence permit elsewhere must be disclosed at Question 22.
• A vague departure answer. Question 47 requires details of how the applicant left, including any fraudulent document used. A vague answer creates an identity problem later.
• Undisclosed embassy contact. Contact with the home country's embassy in Australia must be disclosed at Question 66 and explained.
• Family members left out. Every family member, including those not included in the application, must be recorded at Question 4 of Part B and Question 39 of Part C.
• The representative's email at Question 37. Form 866 states that the applicant's own email addresses are listed there, not a migration agent's or lawyer's email address.
• A missing interpreter declaration. Where an interpreter helped, Questions 10 and 11 of Part B must be completed.

Each of these is easy to get right before lodgement and harder to explain afterwards. The Department compares Form 866 with passports, earlier visa applications and later evidence, and a small error in one of these questions can become a credibility issue.

What Happens After Form 866 Is Lodged

After Form 866 is lodged, the Department acknowledges the application and begins a sequence of steps that the applicant must keep up with. The Department's Subclass 866 page describes an acknowledgement letter, a possible bridging visa, biometrics collection, health examinations, requests for information and, in many cases, an interview.

Biometrics are a digital photograph and fingerprints. Form 866 states that failure to comply with a request for biometrics will make the application invalid. The Department issues a HAP ID for health examinations. Requests for further information set a date for a response. Our article on responding to a section 56 request explains those requests, and our guide to bridging visas in Australia explains lawful status during processing.

Changes of circumstances, such as a new address or the birth of a child, are notified on Form 1022. An answer on Form 866 that was wrong when given is corrected on Form 1023. The interview, if one is held, will test the answers on Form 866 against the applicant's oral evidence. Our protection visa interview page explains that stage.

How My Migration Lawyers Prepares Form 866

My Migration Lawyers prepares Form 866 as a complete legal application, from the family composition in Part B to the declarations in Part C. The firm acts in many Subclass 866 matters and regularly handles complex cases, including family applications where more than one person has claims, applicants who left their country on fraudulent documents, applicants with earlier visa refusals or embassy contact to explain, and applicants whose visa has expired.

The firm's work on Form 866 usually covers:

• Structuring the application. Deciding who is included, who raises their own claims and how family members not included are recorded.
• Checking eligibility and bars. Confirming the answers to Questions 1 to 4 and whether any application bar applies before lodgement.
• Answering the identity and travel questions accurately. Building the answers from passports and records, and disclosing departure documents with a proper explanation.
• Presenting the claims. Taking the client's own account and presenting it in the form the law requires. The statement is the client's own evidence, reviewed and corrected by the client, and the client decides which claims are advanced.
• Managing lodgement and what follows. Lodging through ImmiAccount, managing biometrics, health, requests for information and interview preparation.

The protection practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so clients anywhere in Australia are assisted in the same way. Our protection visa lawyers page explains how the firm acts on Protection visa matters.

Form 866 is best prepared once, properly, before it is lodged. Book a consultation with My Migration Lawyers, or call 1300 040 300.