Form 866: Protection Visa Subclass 866

What Is Form 866 for the Protection Visa Subclass 866?

Form 866 is the application a person in Australia makes to be granted the permanent Protection visa, Subclass 866. The Department of Home Affairs decides the application under the Migration Act 1958 and the Migration Regulations 1994, and every part of Form 866 supplies information the Department needs to decide whether each legal criterion for the Subclass 866 is met.

That is the most useful way to understand Form 866. It is not a set of unrelated questions. It is the evidence file for a visa with defined criteria. The claims questions go to whether Australia has protection obligations. The identity and travel questions go to identity, nationality and the identity provisions in sections 91W and 91WA. The character questions go to the character and exclusion provisions. The declarations go to the Australian values requirement. Seeing Form 866 this way explains why every question matters.

Form 866 is lodged online through ImmiAccount. The Department's current requirement is online lodgement, and the paper form may be posted only where the Department has given written authorisation. Form 866 can only be lodged by a person who is in Australia. Many Subclass 866 applicants hold a visitor visa or a student visa when they apply, and some apply after their visa has expired. Condition 8503, the no further stay condition that appears on many visitor visas, does not prevent a Form 866 application, because the condition itself excludes protection visas from its effect. The circumstances of arrival will still be examined, including why the fear was not raised earlier. Our guides for applicants on a tourist visa and on a student visa cover those issues.

For a question by question guide to the claims section of Form 866, see our article on preparing Form 866. This article deals with how Form 866 connects to the Subclass 866 visa itself.

What the Subclass 866 Visa Gives a Successful Applicant

The Subclass 866 is a permanent visa, and a person granted it becomes an Australian permanent resident on the day of grant. The Department's Subclass 866 page states that the visa allows the holder to live, work and study in Australia permanently.

The Department lists the main entitlements. The holder can access government services such as Medicare and Centrelink, sponsor eligible family members for permanent residence through the offshore Humanitarian Program, travel to and from Australia for five years from the date of grant, attend English language classes if eligible, and apply for Australian citizenship if eligible. For citizenship purposes, permanent residence starts on the day the visa is granted.

Two travel rules attach to the visa and are worth understanding before Form 866 is lodged. First, condition 8559 applies. The holder and members of the family unit must not enter the country or countries from which protection was granted unless the Department approves that entry in writing before travel, and approval is given only for compassionate or compelling circumstances. Entering without approval, even briefly, may lead to cancellation of the visa and the visas of family members. Second, the Department recommends that the holder not use a passport issued by their country of nationality, because doing so may suggest that protection is no longer needed. After the five year travel facility ends, a Resident Return visa is needed to re-enter Australia as a permanent resident.

For an overview of the visa and how our lawyers act on it, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866.

Permanent Subclass 866 or Temporary Protection: Questions 1 and 2 of Form 866

Whether a Form 866 application is considered for the permanent Subclass 866 depends on how the applicant arrived in Australia. The first two questions of Part C of Form 866 record that.

Question 1 asks whether the applicant arrived in Australia with a valid visa. Question 2 asks whether, on arrival with that visa, 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. An applicant who answers no to either will only be considered for a Temporary Protection visa or a Safe Haven Enterprise visa. The Department explains that a person is immigration cleared when they enter at an airport or seaport, provide a passport and a visa in effect, and leave the port with the permission of an Australian Border Force officer.

The Department's Subclass 866 page adds further threshold requirements. The applicant must not hold, and must never have held, a Temporary Protection visa, a Temporary Safe Haven visa, a Temporary (Humanitarian Concern) visa or a Safe Haven Enterprise visa. The applicant must not have been refused a protection visa, or had one cancelled, since last arriving in Australia. Form 866 also lists application bars for a national of two or more countries and a person with protection in a prescribed safe third country. Only the Minister can lift an application bar. Our guide to permanent protection visa eligibility explains these requirements in more detail.

How Form 866 Maps to the Subclass 866 Criteria

Each Subclass 866 criterion is proved through particular parts of Form 866, and knowing which part serves which criterion is the best guide to what each answer must achieve. The criteria fall into two groups: validity requirements that must be met when the application is made, and criteria that must be met when the decision is made.

Validity requirements

The validity requirements for a Subclass 866 application are set by item 1401 of Schedule 1 to the Migration Regulations 1994 and a legislative instrument. Form 866 summarises them. The applicant must pay the visa application charge, be in Australia, provide a residential address, provide personal identifiers when requested, not be prevented by an application bar, and complete the form and put forward reasons for claiming protection or be a member of the family unit of someone who does. An invalid application cannot be considered at all.

Protection obligations: Questions 74 to 83

Clause 866.221 of Schedule 2 requires the Department to be satisfied that the applicant meets section 36(2)(a) or section 36(2)(aa) of the Migration Act 1958, or is a member of the same family unit of an applicant who does and who has been granted the visa. Section 36(2)(a) is the refugee criterion. Section 36(2)(aa) is the complementary protection criterion. Questions 74 to 83 of Form 866 are where the facts for those criteria are set out: the countries the applicant cannot return to, the harm experienced and feared, who is responsible and why, whether the authorities can protect the applicant, and whether relocation is possible.

Identity: Questions 5 to 22 and 43 to 56

Identity, nationality and citizenship must be established. Questions 5 to 22 of Form 866 record names, dates of birth, citizenship and rights of residence. Questions 43 to 56 record the travel documents used to leave home and enter Australia. Sections 91W and 91WA of the Migration Act 1958 require refusal where identity evidence is not provided when requested, or a bogus identity document is provided, without a reasonable explanation. The Department's Subclass 866 page asks applicants who cannot provide identity documents to provide a statement explaining why.

Character, exclusion and security: Part B Question 3 and Part C Questions 24, 70 and 73

Clause 866.225 requires the applicant to satisfy public interest criteria 4001 and 4003A. Public interest criterion 4001 is the character requirement, tied to the character test in section 501. Sections 36(1A) and 36(1B) contain the security requirement. Sections 5H(2), 36(1C) and 36(2C) contain the exclusion and ineligibility provisions for serious crimes and danger to Australia's security or community. Form 866 collects the relevant facts in the character question at Question 3 of Part B, military service at Question 24, intelligence work at Question 70 and criminal history at Question 73.

Health: after lodgement

Clauses 866.223 to 866.224B contain the health criteria. Form 866 asks at Question 57 whether the applicant has previously had a health examination for an Australian visa. After lodgement, the Department issues a HAP ID and explains how to arrange the health examinations.

Australian values: Question 86

Clause 866.225 also requires public interest criterion 4019 for applicants aged 18 or over at the time of application. That is met by signing the Australian Values Statement at Question 86 of Form 866.

Why Consistency Across Form 866 Decides So Much

Consistency across Form 866 matters because the same facts are used for more than one Subclass 866 criterion. A date of departure recorded at Question 45 is part of the identity assessment, part of the travel history at Question 67 and part of the account of events at Question 76. If those answers do not agree, the Department cannot rely on any of them with confidence.

The Department's guidelines describe identity as resting on three pillars: biometrics, documentation and biography. They direct officers to consider contradictions, inconsistencies and omissions both within the application and between the application and other information, such as travel movement records and identity documents. Where a significant inconsistency raises credibility concerns, the applicant is invited to comment under section 57.

Form 866 is also compared with documents lodged later. If the Department asks for Form 80, the personal particulars form, the history on Form 80 will be read against Form 866. Our guide to completing Form 80 explains that form. At interview, the officer will question the applicant on the answers given in Form 866, and our guide to preparing for the protection visa interview covers how those answers are tested. The practical rule is to build every answer on Form 866 from documents, and to explain every gap before lodgement.

What the Department Must Be Satisfied Of

The Department must be satisfied that every Subclass 866 criterion is met, and the responsibility for putting the material before the Department sits with the applicant. Section 5AAA of the Migration Act 1958 provides that it is the applicant's responsibility to specify all particulars of the claim and to provide sufficient evidence to establish it. The Department does not have to make the case for the applicant.

That is why Form 866 warns that a decision may be made on the information in the written application and that the applicant may not be given another opportunity to present the claims. The Department's Subclass 866 page repeats the point: it is in the applicant's interest to provide as much information as possible, and the Department can decide using only the information provided at lodgement.

The legal tests are forward looking. For the refugee criterion, the question is whether there is a real chance the applicant would be persecuted for a Convention reason if returned, and whether that real chance relates to all areas of the country. For complementary protection, the question is whether there are substantial grounds for believing that there is a real risk of significant harm as a necessary and foreseeable consequence of removal. Past harm is evidence, not the test. The Department assesses the claims against independent country information.

The Department's guidelines also recognise that applicants often cannot document their claims. They allow officers to give the benefit of the doubt where the applicant has made a genuine effort to substantiate the claims, has provided the evidence available or explained its absence, and has given claims that are generally coherent and plausible. Our guide to evidence in a protection visa application explains what tends to carry weight.

Family Members in a Subclass 866 Application

Members of the same family unit can be included in one Form 866 application and granted the Subclass 866 with the main applicant. The Department's Subclass 866 page explains that members of the family unit include a spouse or de facto partner, dependent children and step-children, and other dependent relatives who meet the dependency test. They must be in Australia at the time of application and must meet health, character and security requirements.

Form 866 requires a separate Part C for every person included. Question 2 of Part B records whether each person is raising their own claims. That choice has legal consequences under clause 866.221. A family member who relies only on membership of the family unit is granted the visa if the main applicant is granted it. A family member who has their own claims should raise them, because if the main applicant's claims fail, a family member's own claims may still succeed. The Department's guidelines direct officers to assess the strongest claims first and then the claims of other applicants in order of strength.

A partner or dependent child in Australia can be added after lodgement using Form 1436, provided the application has not been decided. A child born after lodgement and before the decision is taken to be included in the application, and the birth should be notified on Form 1022.

The Subclass 866 Process After Form 866 Is Lodged

After Form 866 is lodged, the Subclass 866 application moves through a sequence of steps set out on the Department's Subclass 866 page. The Department sends an acknowledgement letter and may grant a bridging visa. The type of bridging visa, and whether it permits work, depends primarily on the applicant's immigration status when Form 866 was lodged. Our guide to bridging visas in Australia explains the differences.

The Department then collects biometrics, a digital photograph and fingerprints. Failure to provide them when requested makes the application invalid. The Department issues a HAP ID for health examinations. The Department's Subclass 866 page states that a police certificate is required from each country the applicant has lived in for 12 months or more during the past 10 years after turning 16, other than a country from which protection is claimed, and that applicants should not arrange police certificates until the Department asks.

The Department may request further information under section 56 of the Migration Act 1958, with a date for a response. It may invite the applicant to an interview. The Department states that most protection visa interviews are conducted by videoconference, that they are audio recorded, and that the applicant will be asked to make an oath or affirmation. If the Department holds information from another source that could lead to refusal, it must generally give the applicant an opportunity to comment under section 57. Our pages on the protection visa interview and on protection visa interview questions explain that stage, and our article on protection visa processing times explains what affects the time taken.

The Department notifies the decision in writing. A grant letter confirms the visa grant number, the date of grant and any conditions. A refusal letter sets out the reasons, the right to review by the Administrative Review Tribunal and the time limit for applying.

Documents to Lodge With Form 866

The documents lodged with Form 866 support the criteria described above, and the Department's Subclass 866 page sets out what it expects. Documents should be attached in ImmiAccount when Form 866 is lodged, not held back for later.

For identity, the Department asks for colour scans or photographs of all pages of current and expired passports, a birth certificate, a national identity card, a driver's licence and proof of any change of name. An applicant without travel or identity documents should provide a statement explaining why. For family members, the Department asks for evidence of each relationship, such as birth and marriage certificates, evidence of a de facto relationship, and evidence that any dependant aged 18 or over is dependent on the applicant. For character, the Department asks for military service records or discharge papers where any person in the application served in the armed forces of any country, and copies of any visas or residence permits held.

For the claims themselves, the applicant should attach any document that supports what happened and what is feared. All documents not in English must be translated into English, and translators in Australia must be accredited by the National Accreditation Authority for Translators and Interpreters. The Department states that documents do not need to be certified. Each document is attached once, even if it supports more than one point. Our protection visa documents checklist sets out a practical list.

Staying in Australia Until the Subclass 866 Decision

The applicant must be in Australia when the Subclass 866 is granted. Clause 866.411 of Schedule 2 to the Migration Regulations 1994 requires the applicant to be in Australia at the time of grant, so the visa cannot be granted while the applicant is overseas.

Travel during processing is therefore a serious risk. Most bridging visas granted to protection applicants do not permit travel. Travel to the country from which protection is claimed can also damage the credibility of the claim itself. An applicant who needs to travel for a compelling reason should obtain advice before making any arrangement.

What a Subclass 866 Refusal Means

A refusal of the Subclass 866 has lasting consequences, which is why Form 866 needs to be right the first time. Section 48A of the Migration Act 1958 generally prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in Australia. Form 866 itself warns that an applicant who is refused protection is unlikely to be able to apply for another visa while still in Australia.

Merits review by the Administrative Review Tribunal is usually available. The time limit for applying is short and strictly applied, and it runs from notification of the decision. Our pages on protection visa refusals and on appealing a protection visa refusal to the ART explain the process. A refusal should be taken to a lawyer immediately, not at the end of the review period.

How My Migration Lawyers Acts on Form 866 and the Subclass 866

My Migration Lawyers prepares Form 866 with every Subclass 866 criterion in view, from validity through to the decision. The firm acts in many Subclass 866 matters and regularly deals with complex cases, including applicants whose visas have expired, applicants with identity document problems, family applications where more than one person has claims, and applicants with character or security issues that must be addressed.

On a Subclass 866 matter, the firm's work usually covers:

• Eligibility and bars. Confirming how the applicant arrived, whether they were immigration cleared, and whether any application bar or prior visa prevents a valid Subclass 866 application.
• The claims. Taking the client's own account and presenting it in the form the law requires against section 36(2)(a) and section 36(2)(aa). The statement is the client's own evidence, reviewed and corrected by the client, and the client decides which claims are advanced.
• Identity and character. Building the identity, travel and character answers on Form 866 from documents, and addressing sections 91W and 91WA and the exclusion provisions where they arise.
• Family members. Advising who should be included and who should raise their own claims.
• After lodgement. Managing biometrics, health, police certificates, requests for information, interview preparation and responses to section 57 invitations.

The firm's 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 these matters.

A Subclass 866 application stands or falls on Form 866 and the evidence lodged with it. Book a consultation with My Migration Lawyers before Form 866 is lodged, or call 1300 040 300.