How to Apply for a Protection Visa in Australia

How to Apply for a Protection Visa in Australia: The Short Answer

The first rule of how to apply for a Protection Visa in Australia is that you must be in Australia and you must lodge a Subclass 866 application online through ImmiAccount. Understanding how to apply for a Protection Visa in Australia means understanding more than the form. The application must be valid. It must set out your claims for protection. It must be supported by identity documents and evidence.

The Subclass 866 Protection visa is a permanent visa. It is for people who arrived in Australia on a valid visa and who fear serious harm if they return to their home country. The Department of Home Affairs decides the application. The Department assesses whether you are a refugee, or whether you meet the complementary protection criteria. It also assesses health, character, security and identity.

In practical terms, how to apply for a Protection Visa in Australia comes down to six steps. You confirm that no bar stops you from applying. You gather your identity documents. You prepare your statement of claims. You gather evidence that supports those claims. You complete the online application. You then pay the application charge and lodge. After lodgement, the Department deals with your bridging visa, health examinations, biometrics and, in most cases, an interview.

One point matters more than any other. The first application is the one that counts. If the Department refuses a protection visa, section 48A of the Migration Act 1958 generally prevents you from making another protection visa application while you remain in Australia. A weak first application is not a practice attempt. Anyone researching how to apply for a Protection Visa in Australia should treat the first lodgement as final.

For a full overview of the visa itself, see our Subclass 866 Protection visa page and our complete guide to the protection visa in Australia.

Who Can Apply for a Protection Visa in Australia?

You can apply only if you meet a set of threshold requirements, and these are checked before your claims are considered. They decide whether a valid application can be made at all, so they are the first stage of how to apply for a Protection Visa in Australia.

• You must be in Australia. The Department states that you must be in Australia when you apply. Members of your family unit who apply with you must also be in Australia.
• You must have arrived holding a visa and been immigration cleared. You must have arrived while holding a visa that was in effect, and you must have been immigration cleared under section 172 of the Migration Act 1958. A person who arrived as an unauthorised maritime arrival, or who was not immigration cleared on last entry, cannot make a valid Subclass 866 application.
• You must not have been refused a protection visa since your last arrival. Section 48A prevents a further protection visa application by a person whose earlier protection visa application was refused, or whose protection visa was cancelled, since they last entered Australia. Only the Minister can lift that bar, personally, in the public interest.
• You must never have held certain visas. You must not hold, and must never have held, a Temporary Protection visa (Subclass 785), a Safe Haven Enterprise visa (Subclass 790), a Temporary Safe Haven visa (Subclass 449) or a Temporary (Humanitarian Concern) visa (Subclass 786).

Many people apply for a protection visa while they hold a visitor visa, a student visa or a bridging visa. Some apply after their visa has expired. Each situation carries different risks. Our guide on protection visa eligibility explains them in more detail.

Family members can be included in how to apply for a Protection Visa in Australia. Members of the same family unit may apply together on one application. They must be in Australia at the time of application and must meet health, character and security requirements. A partner or dependent child can also be added after lodgement, provided they are in Australia and the Department has not yet decided the application.

What You Must Prove to Be Granted a Protection Visa

You must prove that Australia owes you protection obligations, either because you are a refugee or because you meet the complementary protection criteria. The legal test is in section 36 of the Migration Act 1958. Knowing how to apply for a Protection Visa in Australia is of little use unless your claims fit one of these two tests.

The refugee test under section 36(2)(a)

Under section 36(2)(a), you must be a refugee as defined in section 5H. In broad terms, a refugee is a person who is outside their country and who has a well-founded fear of persecution there. Section 5J explains what a well-founded fear means. There must be a real chance that you would be persecuted if you returned. The persecution must be for one or more of five reasons: race, religion, nationality, membership of a particular social group, or political opinion.

The persecution must involve serious harm, and it must involve systematic and discriminatory conduct. The real chance of persecution must relate to all areas of your country. If you could safely relocate within your country, or if your government could give you effective protection, the refugee test may not be met. Claims based on religious persecution and claims based on sexual orientation or gender identity are common examples of claims made under this test.

The complementary protection test under section 36(2)(aa)

If you are not a refugee, you may still be owed protection under section 36(2)(aa). This is called complementary protection. You must show substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, there is a real risk that you will suffer significant harm.

Significant harm is defined in the Act. It includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The complementary protection test does not require one of the five refugee reasons. It is often relevant where the harm is serious but its cause does not fit the refugee definition.

Family members under sections 36(2)(b) and (c)

A member of the same family unit as a person who meets the refugee or complementary protection test can also be granted the visa. That family member does not need their own separate claims. They must still meet health, character, security and identity requirements.

How to Apply for a Protection Visa in Australia Step by Step

The process of how to apply for a Protection Visa in Australia follows six steps, and the order matters. Skipping ahead to the online form before the claims and evidence are ready is the most common cause of a weak application.

Step 1: Check the application bars before anything else

The first step in how to apply for a Protection Visa in Australia is to check whether a bar applies. Confirm how you arrived in Australia and whether you were immigration cleared. Confirm whether you have ever lodged a protection visa application in Australia before, and what happened to it. Confirm whether you have ever held a Subclass 785, 790, 449 or 786 visa. If any of these issues exists, the application may be invalid or barred, and lodging without advice can close options permanently.

Step 2: Gather your identity documents

The Department expects evidence of your identity, nationality and citizenship. It asks for colour scans or photographs of original documents and their English translations. Useful documents include 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. Documents in a language other than English must be translated into English. The Department states that documents do not need to be certified.

If you cannot provide identity documents, you should not leave the gap unexplained. The Department asks you to provide a statement with the application explaining why you have no travel or identity documents. A clear and honest explanation given at the start carries far more weight than an explanation offered for the first time at interview. Our protection visa documents checklist sets out what to collect.

Step 3: Prepare your statement of claims

The statement of claims is the core of how to apply for a Protection Visa in Australia. It is your own account of why you fear returning to your country. The Department's own guidance lists the questions a statement should answer:

• What country are you seeking protection from?
• Why did you leave that country, and why are you unable to return?
• Have you experienced harm in that country, and who caused it?
• What do you fear will happen to you if you return, and why?
• Is there another area of that country where you would be safe, and could you relocate there?
• Are the authorities in your country able to protect you?
• When did you leave your home country, and how did you travel to Australia?

The statement must be truthful, detailed and consistent with every other part of the application. Dates, places and names must line up with your travel history, work history and address history. Our guide to the protection visa statement of claims explains how a statement is structured.

Step 4: Gather evidence that supports your claims

Evidence strengthens a claim, but a lack of documents does not automatically defeat one. Many applicants fled without papers. Useful evidence can include police reports, medical records, threatening messages, photographs, letters from witnesses, membership records, court documents and news reports. Country information about conditions in your home country is also relevant. Police certificates are requested separately, and the Department states that you should not arrange them until it asks. Our guide to evidence in a protection visa application explains what tends to carry weight.

Step 5: Complete the application in ImmiAccount

Under the current rules on how to apply for a Protection Visa in Australia, applications must be lodged online through ImmiAccount. If you do not have an account, our guide on how to create an ImmiAccount explains the process. The online form is the electronic Form 866. It asks about your identity, family, education, employment, travel, addresses and claims for protection. The Department asks that there be no unexplained gaps in your timelines. If you were unemployed for a period, say so. Our guide to Form 866 walks through the form in detail.

If a lawyer or migration agent helps you, a Form 956 records that appointment with the Department. Our guide to Form 956 and Form 956A explains how it works. Whoever prepares the form, you are responsible for its contents. The Department warns applicants to read and understand every answer before signing, and never to sign blank pages.

Step 6: Pay, lodge and keep your Transaction Reference Number

After the questions are answered, the online form prompts you to attach documents and pay the visa application charge. The Department will not process the application until the charge is paid. Once lodged, the system issues a Transaction Reference Number. You will use it to track the application and attach further documents later. This is the final step in how to apply for a Protection Visa in Australia, but it is the start of the assessment.

What Makes a Protection Visa Application Valid?

A protection visa application is valid only if it meets the requirements in item 1401 of Schedule 1 to the Migration Regulations 1994 and the related legislative instrument. An invalid application cannot be considered at all. Anyone learning how to apply for a Protection Visa in Australia needs to understand these rules, because an invalid application gives you nothing.

• It must be lodged in the right manner. The application must be made online. A paper Form 866 can be used only if the Department has given written authorisation.
• It must contain claims. The Department's guidelines state that an application that includes no claims for protection at all does not substantially comply with the form and is invalid. At least the essential elements of your claims must be stated.
• It must give a residential address. Regulation 2.07(4) requires a residential address. There is no power to waive this requirement.
• The application charge must be paid. The Department will not process an application until the charge is paid.
• Biometrics must be provided when requested. The Department may require a photograph and fingerprints under section 257A. If you do not provide them, the application will be invalid.

A finding that an application is invalid is not a decision to refuse a visa. Under section 47(4), it is not reviewable by the Administrative Review Tribunal. Validity must therefore be checked before lodgement.

Identity Documents and Sections 91W and 91WA

Anyone considering how to apply for a Protection Visa in Australia must treat identity as a legal requirement in its own right, not a formality. Sections 91W and 91WA of the Migration Act 1958 deal with evidence of identity, nationality and citizenship, and they can prevent the grant of a protection visa.

Under section 91W, the Department may ask you to produce evidence of your identity, nationality or citizenship. If you refuse or fail to comply, or if you provide a bogus document in response, and you do not have a reasonable explanation, the visa must be refused. Under section 91WA, the visa must also be refused if you provide a bogus identity document with the application, or destroy or dispose of identity documents after applying, unless you have a reasonable explanation and either provide genuine evidence or take reasonable steps to obtain it.

A reasonable explanation can exist. The Department's own guidelines recognise examples such as a government that refuses to issue documents because of persecution, poor record keeping in the home country, or documents taken by a third party. The key is to raise the explanation early, honestly and in writing. Never submit a document you know or suspect is not genuine.

How the Department Assesses Your Claims

The Department assesses your claims on the evidence you give it, and the law places the responsibility on you to make your case. Section 5AAA of the Migration Act 1958 provides that it is the applicant's responsibility to specify all particulars of their claim and to provide sufficient evidence to establish it. The Department does not have a responsibility to make your case for you.

This is the point many people miss when they research how to apply for a Protection Visa in Australia. The officer decides on the material before them. The Department states that it can decide an application using only the information provided at lodgement, and that you may not get another opportunity to present your claims. Claims left out of the application, or raised for the first time late in the process, are often treated with suspicion.

The officer tests credibility. Consistency across the application, the statement of claims, the interview and any earlier visa applications is examined closely. The officer compares your account with independent country information about conditions in your home country. The officer also considers any delay in applying. Our article on whether delaying a Subclass 866 application affects your claim explains how delay is assessed and how it can be explained.

What Happens After You Apply for a Protection Visa in Australia?

After you apply, the Department sends an acknowledgement letter, deals with your bridging visa, and then moves through health checks, biometrics, requests for information and, in most cases, an interview. Knowing how to apply for a Protection Visa in Australia includes knowing what the Department will ask of you after lodgement.

Your bridging visa

The bridging visa is often the first practical question after how to apply for a Protection Visa in Australia. The Department may grant a bridging visa that keeps you lawful while the application is processed. The type of bridging visa, and whether it allows you to work, depends on your visa status when you applied and other factors. A person who applies while holding a substantive visa is usually in a different position from a person who applies after their visa has expired. Our guide to bridging visas in Australia explains the differences.

Health examinations and biometrics

The Department issues a health identifier, known as a HAP ID, and explains how to book health examinations. It also contacts you to collect biometrics from you and any family members in Australia. Biometrics are a digital photograph of your face and a scan of your fingerprints. Refusing to provide them makes the application invalid.

Requests for more information

The Department may ask for further documents or information by a set date. After that date, it can decide the application on the information it holds. If the Department receives information from another person that could lead to refusal, it will give you an opportunity to comment. Our guide on responding to a section 56 request explains how these requests work.

The protection visa interview

Most protection visa interviews are conducted by videoconference. The interview is audio recorded. You are asked to make an oath or affirmation that your information is true, and the officer questions you about your claims, identity and history. The Department provides an interpreter if you need one. Your lawyer or migration agent can attend. Further information you want considered should be lodged in ImmiAccount well before the interview. See our pages on the protection visa interview and on how to prepare for the interview.

Telling the Department about changes

You must tell the Department about changes of address, passport, relationship status, pregnancy, the birth of a child or a death in your family. Changes of circumstances are notified on Form 1022. Mistakes in the application are corrected on Form 1023. A partner or dependent child is added on Form 1436.

The decision

The Department tells you its decision in writing. If the visa is granted, you become a permanent resident on the day of grant. If it is refused, the letter sets out the reasons and your review rights. Our article on protection visa processing times explains what affects waiting times.

Can You Apply for a Protection Visa in Australia on a Tourist or Student Visa?

Yes. You can apply for a protection visa in Australia while you hold a visitor visa or a student visa, provided you meet the other requirements. Many people research how to apply for a Protection Visa in Australia only after they arrive on one of these visas.

Condition 8503, the "no further stay" condition, does not stop a protection visa application. The condition itself states that the holder will not be entitled to be granted a substantive visa other than a protection visa while in Australia. A visitor visa with condition 8503 is therefore not a bar to lodging a Subclass 866 application.

However, the circumstances of your arrival will be examined. The officer may ask why you did not raise your fears when you applied for your visitor or student visa, and why you applied for protection when you did. Those questions must be answered honestly and consistently. Our guides on applying for a Subclass 866 Protection visa on a tourist visa and on international students applying for a Subclass 866 Protection visa cover these issues in detail.

Common Mistakes When People Apply for a Protection Visa in Australia

Most refusals trace back to decisions made at lodgement, not at the interview. Avoiding the mistakes below is a core part of how to apply for a Protection Visa in Australia.

• Leaving claims out of the application. Some applicants lodge a short application and plan to explain everything at interview. The Department may decide the application without an interview, and claims raised late are often doubted.
• Unexplained gaps and inconsistencies. Gaps in employment, address or travel history, and dates that do not match earlier visa applications, damage credibility.
• Signing an application without reading it. You are responsible for every claim in the form, even if someone else typed it. An application prepared by another person that you have not checked line by line is a serious risk.
• Generic claims. Statements that describe general country conditions without explaining what happened to you, and why you personally are at risk, rarely succeed.
• Leaving Australia. Clause 866.411 of the Migration Regulations 1994 requires you to be in Australia when the visa is granted. Most bridging visas also do not allow travel.
• Missing the interview or a deadline. If you do not attend, or do not respond by the date set, the Department can decide the application on the information it already holds.

The safest approach to how to apply for a Protection Visa in Australia is to prepare the claims and evidence fully before anything is lodged.

What If Your Protection Visa Application Is Refused?

If the Department refuses your application, you can usually apply to the Administrative Review Tribunal for merits review, but the time limit is short and strictly applied. The risk of refusal should shape how to apply for a Protection Visa in Australia from the first day. The refusal letter states the reasons for refusal, your review rights and the time limit. The time limit runs from when you are notified, not from when you read the letter. Late applications generally cannot be accepted.

Because section 48A generally prevents a second protection visa application while you remain in Australia, the Tribunal review is usually the only remaining path within the ordinary process. Our pages on protection visa refusals, on appealing a protection visa refusal to the ART and on the protection visa ART hearing explain the process. The Administrative Review Tribunal also publishes information about applying for review.

How My Migration Lawyers Helps You Apply for a Protection Visa in Australia

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including applicants with identity document problems, delayed applications, visa refusals in their history and condition 8503 on their visa. When a client asks us how to apply for a Protection Visa in Australia, the answer is a structured process that starts before any form is opened.

Our approach to how to apply for a Protection Visa in Australia follows a set path:

• Checking the bars first. We confirm how you arrived, your visa history and whether section 48A or any other bar applies before anything is lodged.
• Taking your account. We take your own account of what happened to you and what you fear, and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Testing the claims against the law. We identify whether your circumstances fit the refugee test, the complementary protection test, or both, and we research the country information that applies to your claims.
• Addressing identity and credibility issues early. Missing documents, gaps and earlier inconsistent statements are explained in writing at lodgement, not left for the interview.
• Lodging and managing the application. We lodge the application in ImmiAccount, respond to Department requests and prepare you for the interview.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video, so you can speak with us wherever you live. Our protection visa lawyers page sets out how we act in these matters.

If you are deciding how to apply for a Protection Visa in Australia, the first application deserves full preparation. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.