Key Takeaways
- Sexual orientation, gender identity and intersex status can ground a protection visa claim in Australia, made under the Subclass 866 protection visa. There is no separate LGBT visa.
- The claim succeeds only if there is a real chance you would be persecuted on return, or a real risk of significant harm under the complementary protection criterion in section 36(2)(aa) of the Migration Act 1958.
- You cannot be refused on the basis that you could stay closeted. Section 5J(3)(c)(vi) of the Migration Act expressly excludes any modification that would require you to alter or conceal your sexual orientation, gender identity or intersex status.
- The visa application charge is AUD 50 for everyone included in the one application, and the Department of Home Affairs does not publish a processing time for this visa.
- If the visa is refused, an application to the Administrative Review Tribunal must be made within 28 days of notification, or 14 days if you are in immigration detention. The Tribunal cannot extend either period.
- A refused protection visa applicant is barred by section 48A from making a second protection visa application, unless the Minister personally lifts the bar under section 48B. The first application is usually the only one.

Can you get an Australian protection visa because you are LGBT?
1. Can you get a protection visa in Australia because you are LGBT?
Yes. Sexual orientation, gender identity and intersex status can all ground a valid protection visa claim in Australia, and the Migration Act 1958 says so expressly. You do not qualify simply by being gay, lesbian, bisexual, transgender or intersex. You qualify if, because of who you are, there is a real chance you would be persecuted if you returned to your country, or a real risk you would suffer significant harm there.
That is the whole test, and everything else in this guide is detail underneath it. The question the decision maker asks is not "is this person LGBT". It is "what would happen to this person if they went home and lived as themselves".
Australia has decided LGBT protection claims for decades. The High Court settled the most important principle in 2003, and Parliament wrote it into the Act in 2014. Both are covered below.
2. Which visa is the LGBT protection visa in Australia?
There is no separate LGBT visa. The visa is the Subclass 866 protection visa, which is the onshore permanent protection visa for people who are already in Australia. An LGBT claim is one kind of claim made under the Subclass 866, not a different application form or a different process.
This matters for a practical reason. People search for a "gay asylum visa" or an "LGBT refugee visa" and then cannot find it on the Department of Home Affairs website, because it is not listed under that name. It is listed as Protection visa (subclass 866).
You apply for a Subclass 866 protection visa if you are in Australia on any visa, or even if your visa has expired. You cannot apply for it from overseas. There is more on how the application works further down, and our page on the Subclass 866 protection visa sets out the requirements in full.
3. What does a Subclass 866 protection visa give you if it is granted?
A Subclass 866 protection visa is a permanent visa. If it is granted you can live, work and study in Australia permanently, you can enrol in Medicare, you can access government services available to permanent residents, and you can later apply for Australian citizenship if you meet the citizenship requirements.
It is not a temporary permission to stay while things settle down at home. It is permanent residence, granted because Australia accepts it owes you protection obligations.
That is also why the assessment is careful. A permanent visa granted on protection grounds is one of the most heavily scrutinised decisions the Department makes, and the standard of preparation expected of the applicant is correspondingly high.
4. Which law decides an LGBT protection claim?
Section 36(2) of the Migration Act 1958 sets the criteria, and sections 5H, 5J, 5L and 5LA supply the definitions. There are two separate pathways, and an applicant can rely on both.
The first is the refugee criterion in section 36(2)(a). It applies where the Minister is satisfied Australia has protection obligations "because the person is a refugee". "Refugee" is defined in section 5H, and it turns on a "well-founded fear of persecution" for one of five reasons: race, religion, nationality, membership of a particular social group, or political opinion. LGBT claims run through the fourth of those, membership of a particular social group.
The second is the complementary protection criterion in section 36(2)(aa), covered at question 11.
One warning about older material. Until 2014, serious harm was defined in section 91R of the Migration Act. Section 91R was repealed by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014, and the current definitions apply to applications lodged on or after 16 December 2014. Any guide that still tells you section 91R governs your claim is describing law that does not apply to you.
5. Does the law protect transgender and intersex people as well?
Yes, and the Migration Act names them. Section 5J(3)(c)(vi) refers to a modification that would require a person to "alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status".
That is the only place in the refugee definition where Parliament listed these characteristics by name, and it is a strong statutory foundation. It tells a decision maker that gender identity and intersex status are characteristics a person cannot be asked to hide or change in order to stay safe.
Gender identity claims do raise issues a sexual orientation claim does not. Transition, identity documents that no longer match the person, access to hormone treatment, and the visibility that comes with presenting in a gender the country of origin does not accept are all part of the risk picture. They need to be put in evidence properly, because a decision maker who is not shown them will not assume them.
6. Does the harm have to come from the government?
No. Harm from family, community, employers, religious authorities or criminal groups can found a protection claim. The question is not who threatens you. It is whether you would face a real chance of persecution and whether protection is actually available to you.
This is where section 5J(2) comes in. A person does not have a well-founded fear of persecution "if effective protection measures are available to the person in a receiving country". Effective protection measures are defined in section 5LA.
So a claim based on family violence, forced marriage or community violence against an LGBT person is not weaker because the state is not the persecutor. It stands or falls on whether the state would in fact protect you, which in many countries it would not, particularly where the same state criminalises your relationship. Question 14 deals with this in more detail.
The legal test: what you actually have to prove
7. What is a "particular social group", and why does it matter?
A particular social group is one of the five reasons for persecution recognised in the refugee definition, and it is the one almost every LGBT claim relies on. Section 5L of the Migration Act sets out when a person is treated as a member of one. A characteristic must be shared by each member of the group, the person must share it or be perceived as sharing it, and one of three further things must apply: the characteristic is innate or immutable, or it is so fundamental to a member's identity or conscience that the member should not be forced to renounce it, or it distinguishes the group from society. The characteristic must not itself be a fear of persecution.
Sexual orientation satisfies this comfortably. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 the High Court proceeded on the basis that homosexual men in Bangladesh comprised a particular social group, whether or not that society recognised them as a group.
The point worth understanding is that section 5L was written in 2014 and draws on the earlier case law without simply reproducing it. The Administrative Review Tribunal's own guidance notes that there are significant differences between the two constructs. A claim should be framed against the words of section 5L, not against pre-2014 case law alone.
8. What does "well-founded fear of persecution" mean?
It means there is a real chance you would be persecuted if you returned. "Real chance" was settled by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, where Mason CJ described it as a substantial as distinct from a remote chance of persecution occurring.
A real chance is well below fifty per cent. You do not have to show that harm is more likely than not. You have to show it is a substantial possibility rather than a far-fetched one. That is a low threshold, and applicants who assume they must prove harm is certain routinely understate their own claim.
Section 5J(1) then adds three requirements. You must fear persecution for one of the five reasons, there must be a real chance of it if you returned, and the real chance must relate to all areas of the receiving country. That last requirement is the relocation point, dealt with at question 13.
Section 5J(4) sets out what "persecution" requires. The protected reason must be "the essential and significant reason" for the persecution, the persecution must involve serious harm to you, and it must involve "systematic and discriminatory conduct". All three must be present.
9. What counts as "serious harm"?
Section 5J(5) gives six instances of serious harm: a threat to your life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens your capacity to subsist, denial of access to basic services where that threatens your capacity to subsist, and denial of capacity to earn a livelihood of any kind where that threatens your capacity to subsist.
That list is not exhaustive. Section 5J(5) says it applies "without limiting what is serious harm". Other harm can qualify.
For LGBT claims, the economic limbs are often overlooked and are often the strongest. Being dismissed from work, blacklisted in a small professional community, thrown out of the family home and cut off from family financial support can together amount to serious harm under paragraphs (d), (e) and (f), even where nobody has been physically assaulted. Prosecution and imprisonment under a criminal law engage the threat to liberty limb directly.
10. Is it enough that your country criminalises same-sex relationships?
No, not on its own. The existence of a criminal law is important evidence, but the question is what would happen to you, and that requires evidence about how the law and the society actually operate.
Two things matter. First, whether the law is enforced, and how. A rarely prosecuted law can still be the instrument of police extortion, arbitrary detention, blackmail and violence by others who know the victim cannot go to the police. That is harm flowing from the law even without a conviction.
Second, whether harm comes from outside the state anyway. In many countries the serious risk is family and community violence, and the criminal law matters mainly because it removes any possibility of state protection.
The Department relies on country information, including Department of Foreign Affairs and Trade country information reports, when assessing this. A claim that simply asserts "homosexuality is illegal in my country" and stops there is doing only a fraction of the work. The claim has to connect the law and the country conditions to what would happen to this applicant.
11. What is complementary protection, and when does it apply to an LGBT claim?
Complementary protection is the second pathway, in section 36(2)(aa). It applies where the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of your removal to a receiving country, there is a real risk you will suffer significant harm.
"Significant harm" is a closed list in section 36(2A). There are five limbs and only five: you will be arbitrarily deprived of your life, the death penalty will be carried out on you, you will be subjected to torture, you will be subjected to cruel or inhuman treatment or punishment, or you will be subjected to degrading treatment or punishment. Unlike the refugee criterion, there is no need to link the harm to a protected reason.
The "real risk" threshold is the same as the "real chance" threshold under the refugee criterion. The Full Federal Court held this in Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505. Complementary protection is not a higher bar in that respect.
Section 36(2B) then removes the risk in three situations: where it would be reasonable for you to relocate within the country, where you could obtain protection from an authority of the country, or where the risk is one faced by the population generally and not by you personally.
Complementary protection is the right pathway for an LGBT applicant where the refugee limb is contested, for example where the decision maker doubts the particular social group nexus but accepts the risk of serious violence. Our page on complementary protection under section 36(2)(aa) explains how the two limbs are run together.

Being told to hide it, or to move: the two arguments that decide most LGBT claims
12. Can you be refused because you could hide your sexuality or gender identity?
No. This is the single most important rule in LGBT protection law, and it is now written into the Migration Act.
Section 5J(3) says a person does not have a well-founded fear of persecution if they could take reasonable steps to modify their behaviour to avoid a real chance of persecution. But it then carves out modifications that would conflict with a characteristic fundamental to the person's identity or conscience, or conceal an innate or immutable characteristic, or require the person to do any of a list of six things. The sixth is to "alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status".
So a decision maker cannot reason that you would be safe because you would keep quiet, stay closeted, avoid the wrong neighbourhoods or not be seen with a partner. That reasoning is not open to them.
Note the structure of the provision, because it is often miscited. Section 5J(3) has three lettered paragraphs, (a), (b) and (c). The six behaviour items are subparagraphs (c)(i) to (c)(vi). Material that cites them as "section 5J(3)(a) to (f)" is citing the section wrongly, and a decision maker will notice.
The principle predates the section. In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 the High Court set aside a Tribunal decision that had reasoned the applicants had lived discreetly in Bangladesh and would continue to do so. Gummow and Hayne JJ said that to say an applicant "is 'expected' to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal", and that "The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection."
The same judgment makes a second point that matters just as much. Their Honours said "Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts". Sexual identity covers the whole range of behaviour and activities of life that identity informs: who you live with, who you are seen with, what you can say about your own life. Persecution that forces all of that underground is still persecution.
13. Can you be told to move to a safer part of your own country?
Sometimes, but only where relocation is genuinely reasonable for you. Relocation appears twice in the Act. Section 5J(1)(c) requires the real chance of persecution to relate to "all areas of a receiving country". Section 36(2B)(a) removes the complementary protection risk where it would be reasonable to relocate to an area without a real risk of significant harm.
The High Court dealt with reasonableness in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51. Whether relocation is reasonable turns on the circumstances of the particular applicant. In SZATV the Tribunal had in substance required the appellant to move, abandon his profession and live discreetly, and the Court held that was not a reasonable adaptation of behaviour. Relocation is not reasonable where it would require an applicant to abdicate or repudiate a fundamental right.
Applied to an LGBT claim, the two rules work together. A decision maker cannot say "move to the capital and you will be fine" if being fine in the capital depends on you living closeted. That is section 5J(3) all over again, wearing a different hat.
What matters for relocation is the practical reality: whether the criminal law is national, whether family and community networks reach across the country, whether you could actually support yourself in the new place, and whether internal registration or reporting requirements would expose you.
14. Can you be refused because the police in your country could protect you?
Yes, if effective protection measures are genuinely available to you. Section 5J(2) says a person does not have a well-founded fear of persecution if effective protection measures are available in the receiving country, and section 5LA defines what those are. For complementary protection, section 36(2B)(b) does the same job.
The practical answer in most LGBT claims is that protection is not available, and the reason is usually visible on the face of the country's own law. If reporting a bashing or a blackmail attempt means telling the police what you were doing and with whom, and that conduct is itself a criminal offence, the protection is theoretical.
This needs to be shown, not asserted. Country information on police attitudes, on whether complaints by LGBT people are investigated, and on documented cases of police themselves being the source of harm is how a claim is properly put.
15. What if nothing has happened to you yet?
That is not a bar. The test is forward looking. Section 5J(1)(b) asks whether there is a real chance you "would be persecuted" if you returned, not whether you have been persecuted already.
Past harm is powerful evidence when it exists, because it shows what the country does to people like you. But many applicants have never been harmed for the obvious reason that they were never open. A person who left at twenty-two, having never told anyone, and who has lived openly in Australia since, may face a much higher risk on return than the record of their past suggests.
The claim in that situation is built on country conditions, on what happens to people who are known or suspected, and on what would now be known about the applicant. It is a harder claim to prepare, not a weaker one in principle.
Evidence and the protection visa interview
16. What evidence do you need to prove your sexual orientation or gender identity?
There is no prescribed list, and no document proves a person's identity. What the Department and the Administrative Review Tribunal look for is a detailed, consistent and internally coherent personal account, supported by whatever independent material genuinely exists.
In practice the material that carries weight includes a full personal statement covering your own understanding of your identity over time, statements from a partner or former partners, statements from friends who knew about your identity in your home country or who know now, evidence of involvement with LGBT organisations, support services or community groups in Australia, evidence of any harm, threats or discrimination already suffered, and country information about conditions for LGBT people in your country.
Notice what is not on that list. Photographs of a relationship, messages and social media are peripheral. They can help, but the case is carried by the narrative and by country information, not by a folder of pictures.
17. What if you have no evidence because you kept your identity hidden?
That is normal and it is understood. Most applicants who genuinely fear persecution for their sexual orientation or gender identity spent years making sure no record existed. The absence of evidence is a consequence of the very risk being claimed.
The case is then built on the personal account. The account has to be specific rather than general, and it has to cover the things a truthful account naturally contains: when you understood your identity, what you did about it, who if anyone you told and what happened, how you managed concealment day to day, what you were afraid of and why, and what changed after you arrived in Australia.
The Tribunal's own guidance recognises that applicants face real difficulties in substantiating claims, and that a generally credible applicant who cannot substantiate everything should not be penalised for that alone. What defeats claims is not the absence of documents. It is vagueness, and it is inconsistency between the application, the statement and the interview.
18. What happens at the protection visa interview?
The interview is where most protection claims are actually decided. A departmental officer takes you through your claims in detail and tests them against your written application, your other visa applications, your travel history and the country information.
For an LGBT claim the questioning usually covers how and when you understood your identity, your relationships, your life in your country and how you managed it, who knew, what happened when people found out, what you believe would happen on return, and your life in Australia since arriving.
Preparation matters more here than anywhere else in the process, because inconsistency between the interview and the written claims is the most common reason for an adverse credibility finding. Our page on the protection visa interview sets out how the interview runs and how we prepare clients for it.
19. Can the Department ask you explicit questions about your sex life?
The law does not treat sexual identity as a matter of sexual acts, and questioning that proceeds on that footing misconceives the task. In Appellant S395/2002 the High Court said in terms that "Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts", and warned that language expecting an applicant to live discreetly often reveals that the decision maker has wrongly confined the inquiry to sexual acts rather than to the range of behaviour and activities of life that sexual identity informs.
The proper inquiry is about identity, relationships, fear and the consequences of being known. If an interview drifts into explicit territory, that is a matter to raise at the time and to address in any submissions, and it is one of the reasons to have a representative present.
20. What if you are bisexual and have been married to a person of the opposite sex?
A marriage or an opposite-sex relationship does not contradict a bisexual claim. It is a common and predictable feature of a bisexual applicant's history, and often it is a direct product of the same social pressure the claim is about.
Bisexual applicants are disbelieved more often than gay and lesbian applicants, and the reasoning that does it is usually the same: the applicant was married, has children, and therefore cannot be what they say they are. That reasoning does not survive contact with the statutory test. Section 5L asks whether the applicant shares a characteristic, or is perceived as sharing it, not whether their life has looked uniformly one way.
The claim needs to meet the point head on rather than avoid it. The marriage, the reasons for it, what the applicant understood about themselves at the time and what the applicant's spouse knew all belong in the statement, put forward by the applicant rather than extracted at interview.
21. Does coming out only after you arrived in Australia damage your claim?
Not by itself, but you must be ready for section 5J(6). That subsection says that in deciding whether a person has a well-founded fear, any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that they engaged in the conduct "otherwise than for the purpose of strengthening the person's claim to be a refugee".
This is squarely relevant to LGBT claims, because for many applicants Australia is the first place they have been able to live openly. The answer is not to hide that. It is to show why the conduct is genuine, which usually means showing a continuous identity that predates arrival even where it was never acted on, and showing that the openness in Australia is how the person now lives rather than something assembled after a refusal.
Note that section 5J(6) puts the onus on the applicant. It is not enough for the conduct to look genuine. The applicant has to satisfy the decision maker.
22. What if you did not mention your sexuality when you first applied for another visa?
That is very common and it is explicable, but it has to be explained. Applicants routinely do not disclose an LGBT identity on a student or visitor visa application, because the application is often lodged in the home country, sometimes with the help of family, and disclosure there would create the very exposure they fear.
Delay and non-disclosure are treated as credibility issues, so they should be dealt with in the statement rather than left to be raised against you. Separately, be careful about documents. Sections 91W and 91WA of the Migration Act are mandatory refusal provisions dealing with identity evidence and bogus documents. Under section 91WA the Minister must refuse a protection visa where an applicant provides a bogus document as evidence of identity, nationality or citizenship, or destroys or disposes of such documentary evidence, unless the applicant both has a reasonable explanation and provides the evidence or has taken reasonable steps to do so. Those two conditions are cumulative.
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Applying, cost, work rights and Medicare
23. Can you apply for a protection visa while you hold a student or visitor visa?
Yes. You can apply for a Subclass 866 protection visa while you hold any substantive visa, including a student, visitor, working holiday or temporary work visa. You can also apply if your visa has already expired.
Two things people get wrong here. A "no further stay" condition, condition 8503, 8534 or 8535, does not block a protection visa. Schedule 8 excludes protection visas from those conditions, so no waiver is needed. And the section 48 bar, which stops many onshore applications after a refusal or cancellation, does not block a protection visa either, because protection visas remain available.
What does block a second protection visa is section 48A, dealt with at question 30.
24. How do you apply for a Subclass 866 protection visa, and what does it cost?
You apply on Form 866, Application for a protection visa, normally online through ImmiAccount. The visa application charge is AUD 50, and it covers everyone included in the one application.
That is the government charge only. It is not the cost of preparing the claim, and the low charge should not be read as a sign that the application is simple. The Subclass 866 is one of the most demanding applications in Australian migration law, and it is decided largely on the quality of the written claims.
Because the Department cannot grant the visa unless you are in Australia, under clause 866.411 of Schedule 2 to the Migration Regulations 1994, you must be here when the decision is made.
25. How long does a Subclass 866 protection visa take?
The Department does not publish a processing time for the Subclass 866. Its own visa page states that processing times for this visa are unavailable, and the visa does not appear in the processing times tool.
Anyone quoting you a specific number of months for a protection visa is not taking it from the Department. The Department has said publicly that most new protection visa applications are now being decided far faster than in recent years, but it has not attached a figure to that, and neither should we.
What you can plan around is this. You remain lawfully in Australia on a bridging visa while the application is decided, and if the visa is refused there is a short and unextendable period to seek review.
26. Can you work while you wait?
Usually yes, and if you applied while holding a substantive visa you do not need to ask. A protection visa applicant who applies while holding a substantive visa is granted a Bridging visa A, and condition 8101, the no work condition, cannot be imposed on it. You do not have to show a compelling need to work.
The position is different if you were unlawful when you applied. You will be granted a Bridging visa E, and condition 8101 applies by operation of law. To have work rights you must apply for a further Bridging visa E and show both a compelling need to work, as defined in regulation 1.08, and an acceptable reason for the delay in making the protection visa application. Both limbs must be met, and it is the second that defeats most requests.
Our guide to Bridging visa A work rights and conditions sets out how the conditions operate.
27. Can you get Medicare while you wait?
Yes, in most cases. Services Australia allows enrolment for people who have applied for a permanent residency visa or a permanent protection visa, and the Subclass 866 is a permanent protection visa.
You will generally need your passport or ImmiCard, your current visa, and evidence from the Department of Home Affairs that you have applied. Where your bridging visa does not permit work, Services Australia requires additional documents showing a relationship to an Australian citizen, permanent resident or eligible New Zealand citizen. That is the practical consequence of the work rights position above.
28. Can your partner and children be included in your application?
Members of your immediate family unit who are in Australia can be included in the one application, and the AUD 50 charge covers them.
For a same-sex couple this raises a question worth getting advice on before lodging, because including a partner may require establishing the relationship in a country where no documentary record of it could ever have existed. Separately, a partner who has their own protection claim may be better served by their own application rather than by being included in yours, because a dependant's claim is not assessed in its own right in the same way.
This is a strategic decision made at the start of the matter. It is difficult to unwind later.
If your LGBT protection visa is refused
29. Can you challenge an LGBT protection visa refusal, and by when?
Yes, and the deadline is short and cannot be extended. An application for review of a protection visa refusal must be made to the Administrative Review Tribunal within 28 days after the date on which you were notified of the decision, or within 14 days if you are in immigration detention. The Tribunal's Migration, Protection and Character Practice Direction states in terms that the Tribunal cannot extend the time for filing.
Read "notified" carefully. Notification is deemed, not actual. Under section 494C of the Migration Act, where the decision is sent electronically you are taken to have received it at the end of the day it was transmitted. Where it is posted within Australia, notification is taken to occur seven working days after the date of the letter. The clock starts then, whether or not you opened the email.
The Tribunal reconsiders the claim afresh. It can take new evidence, and a refusal based on an adverse credibility finding is not the end of the matter, because the Tribunal forms its own view. Our page on protection visa refusals and Tribunal review sets out the process.
Since the Administrative Review Tribunal commenced on 14 October 2024, the Immigration Assessment Authority and the fast track system have been abolished. Applicants who would once have received a limited paper review now receive full merits review.
30. Can you make a second protection visa application?
Generally no. Section 48A of the Migration Act provides that a person who has applied for a protection visa in the migration zone and been refused may not make a further protection visa application while they remain in the migration zone. The bar applies regardless of the grounds of the new claim, so a genuinely new claim does not lift it.
The only route past it is section 48B. The Minister may determine personally that section 48A does not apply, and that opens a window ending at the end of the seventh working day after the notice is given. The Minister has no duty to consider a request, and a refusal to consider one is not a reviewable decision.
That is why the first application matters so much. There is usually no second one.
How My Migration Lawyers prepares an LGBT protection claim
An LGBT protection claim is won or lost on the written case and on the interview, not on paperwork. Our work on these matters is built around that.
We take the personal statement seriously and spend the time it needs. The statement is the case. It has to be specific, chronological and complete, it has to deal with the difficult points such as a past marriage, late disclosure or a previous visa application, and it has to do so before the Department raises them.
We pair the statement with current country information on conditions for LGBT people in your country, drawn from Department of Foreign Affairs and Trade country information reports and other sources a decision maker will accept, so that the claim is anchored to material the Department itself relies on.
We prepare clients properly for the protection visa interview, and we make submissions on the law where a decision maker has gone wrong, including on the discretion reasoning that section 5J(3)(c)(vi) and Appellant S395/2002 put beyond argument.
My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. We act in protection visa applications, Administrative Review Tribunal reviews and judicial review in the Federal Circuit and Family Court, we work with clients across Australia by video, and we quote a fixed fee in writing before any work starts.
If you are weighing up an LGBT protection claim, or you have been refused and the clock is running, you can request a consultation with a protection visa lawyer. Our LGBTI protection visa page covers sexuality and gender identity claims in more detail, and our protection visa lawyers page sets out how we run these matters from start to finish.
Frequently Asked Questions
Can I leave Australia while my protection visa application is being decided?
No, not without losing the application in practice. Clause 866.411 of Schedule 2 to the Migration Regulations 1994 requires you to be in Australia when the visa is granted, so the Department cannot grant it while you are overseas. Your bridging visa will also generally cease when you depart, which can leave you unable to return. If you have an urgent reason to travel, get advice before you book anything, not after.
Do I have to pay a fee to apply to the Administrative Review Tribunal?
Not when you lodge. The Administrative Review Tribunal does not charge a fee at lodgement for a protection review. A fee of AUD 2,203, as published by the Tribunal in September 2026, becomes payable only if the Tribunal affirms the decision under review, or sets it aside and substitutes a new decision. Cost is therefore not a reason to miss the 28 day deadline, because nothing is payable to start the review.
What happens if the Tribunal also refuses my protection visa?
You may be able to apply to the Federal Circuit and Family Court of Australia for judicial review. That is not a rehearing of your claim. The Court can only set the decision aside for jurisdictional error, which means an error of law in how the decision was made. The application must be filed within 35 days of the date of the migration decision, although unlike the Tribunal deadline the Court can extend that period if you ask and explain why.
What happens if I miss the deadline to apply to the Tribunal?
The review right is lost, and it cannot be revived. The Tribunal has no power to extend the 28 day period, or the 7 working day period for a person in immigration detention. Once a protection visa is refused and the review period expires, you are also barred by section 48A of the Migration Act 1958 from making a further protection visa application in Australia. If you think you may already be out of time, get advice immediately rather than assuming nothing can be done.
Do I need a lawyer to apply for a protection visa?
No, you can lodge Form 866 yourself. Whether you should is a different question. A protection visa is decided on the quality of the written claims and on the interview, the deadlines after a refusal are short and cannot be extended, and section 48A means there is usually no second application. Those three features together are why most applicants who can get proper representation do so before lodging rather than after a refusal.
























