LGBTI Protection Visa Australia Subclass 866

The LGBTI Protection Visa Australia Subclass 866 is the permanent visa Australia grants to a person already in Australia who cannot safely return home because they are lesbian, gay, bisexual, transgender or intersex. There is no separate "LGBTI visa". The applicant applies for the ordinary Subclass 866 Protection visa, and the Department assesses the claim using its own guidelines on sexual orientation and gender identity.

This article explains what the LGBTI Protection Visa Australia Subclass 866 actually is as a visa product: what it gives the holder, who can lodge, which bars stop an application, who can be included, what happens between lodgement and decision, and which bridging visa applies while the applicant waits. How the claim itself is proved is covered in the guide to what an LGBTI protection claim must prove. This page deals with the visa itself.

What is the LGBTI Protection Visa Australia Subclass 866?

The LGBTI Protection Visa Australia Subclass 866 is a permanent Protection visa in Class XA, granted to a person in Australia who engages Australia's protection obligations. The Migration Act provides for three classes of Protection visa: the permanent Protection visa (Subclass 866), the Temporary Protection visa (Subclass 785) and the Safe Haven Enterprise visa (Subclass 790). For an LGBTI applicant who arrived lawfully, the Subclass 866 is almost always the visa in question.

The Department's Protection Visa Processing Guidelines state that an applicant is eligible for a Protection visa if they are in Australia, they are found to engage Australia's protection obligations (or they are a member of the same family unit of a person who does), and they satisfy the other criteria in the Act and the Regulations. The LGBTI Protection Visa Australia Subclass 866 is therefore not a humanitarian discretion or a favour. It is a visa with legal criteria, and an applicant who meets them is entitled to it.

The label "LGBTI" describes the claim, not the visa. The same Subclass 866 is granted to people who fear persecution because of religion, political opinion or ethnicity. What changes for an LGBTI applicant is the way the Department is directed to interview them and assess their evidence. Annexure 6 of the Protection Visa Processing Guidelines, headed "Gender and sexual orientation", governs that assessment. The firm's service page on the LGBTI protection visa explains how the firm acts on these claims, and the general page on the Subclass 866 Protection visa explains the visa for all applicants.

What does a Subclass 866 grant give an LGBTI applicant?

An LGBTI Protection Visa Australia Subclass 866 grant gives the applicant permanent residence in Australia. The Department's guidelines state that, apart from the travel condition on the visa, holders of permanent Protection visas have all the rights of other Australian permanent residents. That includes the right to:

• Live in Australia permanently. The visa does not expire. The applicant no longer depends on a temporary visa, an employer or a partner to stay.
• Work. There is no restriction on the type of work or the employer.
• Access Medicare and the public health system. This matters for many LGBTI applicants, including transgender applicants who need continuity of treatment and applicants living with HIV.
• Access welfare benefits, subject to the usual eligibility rules of Services Australia.
• Sponsor or propose certain relatives for entry to Australia, through the family and humanitarian programs.
• Travel. The visa permits the holder to travel to and re-enter Australia for five years after the date of grant, under clause 866.511 of the Regulations.

The holder may also be eligible for settlement services, subject to each program's criteria. A permanent Protection visa is also a permanent visa for the purposes of later steps, such as an application for Australian citizenship once the residence requirements are met.

For an LGBTI applicant, permanence has a practical value beyond the legal status. An applicant who was on a partner, student or visitor visa no longer has a status that depends on a relationship, a course or a family sponsor who may withdraw support if they learn about the applicant's sexuality. The LGBTI Protection Visa Australia Subclass 866 removes that dependence.

Can a Subclass 866 holder travel back to their home country?

No, not without permission. Permanent Protection visas granted on or after 3 June 2013 carry condition 8559. Under that condition, a holder who wishes to visit their home country (the country from which protection was sought) must first obtain written approval from a delegate of the Minister. The Department's own information on the Subclass 866 visa states the same thing: a person granted a Protection visa cannot travel to the country they sought protection from without permission from the Australian Government.

Travel to other countries is a different matter. The holder can travel to and return from third countries within the five-year travel facility. The restriction attaches only to the country from which protection was sought.

The travel condition matters in practice. A person who claimed to fear for their life in a country, and who then returns there, invites the question of whether the fear was real. For many LGBTI applicants, the condition also means planning for the reality that visiting a parent, attending a family event or dealing with property at home may not be possible for some time. That reality should be understood before the LGBTI Protection Visa Australia Subclass 866 application is lodged, not after the grant.

Who can lodge an LGBTI Protection Visa Australia Subclass 866 application?

An LGBTI Protection Visa Australia Subclass 866 application can be lodged only by a person who is in Australia when they apply. The applicant must also be in Australia when the visa is decided, under clause 866.411 of the Regulations. A person overseas cannot apply for this visa.

The validity rules sit in section 46 of the Migration Act, regulation 2.07 and item 1401 of Schedule 1 to the Regulations. The key requirements are:

• Lawful arrival. Under item 1401(3)(d), a person who arrived without a visa in effect, or who was not immigration cleared on their last entry, cannot make a valid Subclass 866 application. The guidelines explain that this excludes unauthorised maritime arrivals who arrived on or after 16 December 2014 and people who arrived by air without a visa. Those applicants may only be able to apply for a temporary Protection visa, not the LGBTI Protection Visa Australia Subclass 866.
• The right form, lodged the right way. The application is made on Form 866 and, under the legislative instrument LIN 20/169, it must be lodged online unless the Department has authorised lodgement by mail.
• A residential address. Regulation 2.07(4) makes an application invalid if the applicant does not give a residential address. There is no power to waive this.
• At least the bare bones of the claims. The guidelines state that a permanent Protection visa application that contains no claims at all will be invalid.
• The visa application charge. Section 46(1)(ba) requires the prescribed charge to be paid. The current amount is published on the Department's visa pricing page.

A person does not need to hold a current visa on the day they lodge an LGBTI Protection Visa Australia Subclass 866 application. Many people apply after their visitor, student or partner visa has expired. What matters for the Subclass 866 is how they last entered Australia, not what they hold now. The guides to applying from a tourist visa and from a student visa explain how the application interacts with those visas.

The two pathways to the visa, in brief

There are two legal pathways to the LGBTI Protection Visa Australia Subclass 866, and the Department must consider both. The first is the refugee criterion in section 36(2)(a) of the Migration Act. The second is complementary protection in section 36(2)(aa).

• Refugee pathway. The applicant must have a well-founded fear of persecution for a Convention reason. LGBTI applicants are generally assessed as members of a particular social group defined by sexual orientation or gender identity.
• Complementary protection pathway. If the applicant is not a refugee, the Department must consider whether there are substantial grounds for believing that there is a real risk of significant harm, such as torture, cruel or inhuman treatment, or arbitrary deprivation of life, as a necessary and foreseeable consequence of removal.

The guidelines direct officers to assess the refugee criterion first and then, if it is not met, complementary protection. Both pathways lead to the same LGBTI Protection Visa Australia Subclass 866 grant, with the same permanent rights. The detail of each test is outside this article. The guide to complementary protection for LGBTI applicants explains the second pathway in depth.

Which bars stop an LGBTI Protection Visa Australia Subclass 866 application?

Several provisions of the Migration Act prevent a person from making a valid Protection visa application at all. An application made by a person affected by a bar is not a valid application, and the Department cannot consider it. The main bars are:

• Section 48A: a previous Protection visa refusal. A person who has already applied for and been refused a Protection visa of any class cannot make a further valid Protection visa application while in the migration zone. This applies even if they hold a substantive visa. Section 48A(1B) applies the same bar to a person whose Protection visa was cancelled.
• Section 46A: unauthorised maritime arrivals. A person who arrived by sea without a visa and became unlawful on arrival is barred from applying for any visa while in Australia as an unlawful non-citizen or while holding certain visas.
• Section 46B: transitory persons. A person taken to a regional processing country, or their child in some circumstances, is barred in the same way.
• Section 91E: safe third country and Comprehensive Plan of Action cases. The guidelines note that there are currently no prescribed safe third countries.
• Section 91K: former Temporary Safe Haven visa holders who have not left Australia since that visa ceased.

Each of these bars can be lifted only by the Minister personally, under sections 48B, 46A(2), 46B(2), 91F and 91L. The guidelines state plainly that the Minister does not have a duty to consider whether to exercise any of these powers.

The section 48A bar is the one that matters most in an LGBTI Protection Visa Australia Subclass 866 matter. It means that a person who lodges a rushed application, without the claim properly stated, may not be able to lodge a second one. A person who was refused a Protection visa years earlier on an unrelated claim, and who only now feels able to disclose their sexuality, is caught by the same bar. The guidelines note that the bar no longer applies if the person leaves Australia and returns, but that is a serious step with its own consequences.

Can a partner or children be included in the application?

Yes. An LGBTI Protection Visa Australia Subclass 866 application can include members of the applicant's family unit who are in Australia, and they can be granted the same visa if the main applicant is granted. Clause 866.221(3) allows a family member to be granted the visa as a member of the same family unit of an applicant who is granted a Subclass 866 visa on protection grounds.

For Protection visa applicants, regulation 1.12(4) defines a member of the family unit to include the applicant's spouse or de facto partner, a dependent child, a dependent child of that child, and certain dependent relatives who live in the household. A same-sex partner can be a de facto partner or spouse under Australian law. The partner must be in Australia and must have made a valid application, either within the main application or as a separate applicant.

There is an important point for LGBTI applicants whose partner is Australian or a permanent resident. That partner cannot be included, because they do not need a visa, and the relationship may open a different pathway. The page on the same-sex partner visa explains that pathway. The choice between a partner visa and an LGBTI Protection Visa Australia Subclass 866 application is a strategic decision that should be made with advice, because a Protection visa refusal triggers section 48A and can affect other options.

What happens between lodgement and decision?

After an LGBTI Protection Visa Australia Subclass 866 application is lodged, it passes through a sequence of steps before a decision is made. The order and timing vary, but the stages are consistent:

• Lodgement and acknowledgment. The application is lodged online. The Department acknowledges it and confirms whether it is valid.
• Bridging visa. The associated bridging visa application is considered at the same time (see the next section).
• Personal identifiers. The Department may require photographs, fingerprints or a signature under section 257A. The guidelines state that a failure to comply with such a requirement results in the application being invalid.
• Identity checks. Under section 91W, an officer can ask the applicant to produce evidence of identity, nationality or citizenship. Giving a bogus document in response, without a reasonable explanation, prevents the grant of the visa.
• Requests for further information. Under section 56, the Department can invite the applicant to give more information. The guide to responding to a section 56 request explains how.
• Health examinations. The applicant must meet the health criteria in clauses 866.223 to 866.224B and will be asked to undertake medical examinations when the Department requires them.
• Interview. Most applicants are interviewed about their claims. For LGBTI applicants, Annexure 6 sets out how the interview must be conducted. The page on the protection visa interview explains how the firm prepares clients.
• Procedural fairness. Under section 57, if the Department intends to rely on certain adverse information, it must give the applicant particulars and invite comment.
• Decision and notification. The applicant is notified of the grant or the refusal. The date of notification matters because review time limits run from it.

Throughout this period, section 5AAA of the Migration Act places responsibility on the applicant to specify all the particulars of the claim and provide sufficient evidence to establish it. The Department is not obliged to build the claim for the applicant. That is why the application stage of an LGBTI Protection Visa Australia Subclass 866 matter carries so much weight. The Department does not publish a fixed waiting period that applies to every case. The guide to protection visa processing times explains what affects the wait.

Which bridging visa does an LGBTI applicant hold while waiting?

When a person in Australia lodges an LGBTI Protection Visa Australia Subclass 866 application, they also apply for a bridging visa, because Form 866 is a prescribed form for a bridging visa application. The Department's guidelines confirm this. The bridging visa is what keeps the applicant lawful if their substantive visa ends while the Protection visa application is being decided.

Which bridging visa is granted depends on the applicant's status on the day they lodge:

• An applicant who holds a substantive visa, such as a student or visitor visa, is usually granted a Bridging visa A. It generally comes into effect only when the substantive visa ceases.
• An applicant who is already unlawful when they lodge is generally considered for a Bridging visa E, which has its own criteria and conditions.

Work rights on the bridging visa are not automatic in every case and depend on the visa granted and its conditions. A bridging visa also does not permit travel unless it is a Bridging visa B. An applicant who leaves Australia while the application is pending must be in Australia at the time of decision, so departure can end the application. The guide to bridging visas in Australia explains each class.

What other grant criteria apply to an LGBTI applicant?

Meeting the protection test is necessary but not sufficient. An LGBTI Protection Visa Australia Subclass 866 application must also satisfy the other time of decision criteria in Schedule 2 of the Regulations and in section 36 of the Migration Act:

• Health. The health criteria in clauses 866.223 to 866.224B.
• Character. Public interest criteria 4001 and 4003A, prescribed by clause 866.225(a).
• Security and danger to the community. Section 36(1B) and section 36(1C) of the Migration Act.
• The Australian values statement. Public interest criterion 4019, for applicants aged 18 or over. Signing it does not affect validity, but it must be satisfied before grant.
• National interest. Clause 866.226 requires the decision maker to be satisfied that the grant is in the national interest.
• Being in Australia at the time of decision, under clause 866.411.
• No right to live safely in another country. Under section 36(3), protection obligations are taken not to arise if the applicant has a right to enter and reside in another country and has not taken all possible steps to use it, subject to the exceptions in sections 36(4) to 36(5A).

For most LGBTI Protection Visa Australia Subclass 866 applicants, these criteria are satisfied without difficulty. They become live issues where there is a criminal history, a previous visa cancellation, doubts about identity documents, or a second nationality. The guide to permanent Protection visa eligibility and requirements explains how these criteria operate for all applicants.

What happens if the Subclass 866 application is refused?

A refusal of an LGBTI Protection Visa Australia Subclass 866 application can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied, and it runs from the date the applicant is notified of the decision, not the date they read it. The Tribunal considers the application afresh and can take new evidence into account.

Two consequences of refusal must be understood from the outset. First, the section 48A bar means that a refused applicant generally cannot lodge a fresh Protection visa application while in Australia. Second, a refusal remains on the person's immigration record. The Department's Protection visa factsheet states both that giving false information can bring large fines and up to 10 years in jail and that a refusal stays on the person's record. A genuine claim is damaged, not strengthened, by exaggeration. The guide to appealing a protection visa refusal to the ART and the protection visa refusals page explain the review process.

How My Migration Lawyers handles an LGBTI Protection Visa Australia Subclass 866 matter

My Migration Lawyers acts for LGBTI applicants throughout the LGBTI Protection Visa Australia Subclass 866 process. The firm deals with complex protection cases, acts in many Subclass 866 matters involving sexual orientation, gender identity and intersex status, and is capable of handling these matters from the first consultation through to review at the Administrative Review Tribunal.

On an LGBTI Protection Visa Australia Subclass 866 matter, the work usually involves:

• Checking validity and bars first. How the applicant last entered Australia, whether any earlier Protection visa application was made, and whether any section 48A, 46A or other bar applies.
• Assessing both pathways. Whether the facts engage the refugee criterion, complementary protection, or both.
• Presenting the applicant's own account. The statement is the applicant's own evidence. The applicant reviews and corrects it, and decides which claims are advanced.
• Family members. Advising on whether a partner or children should be included, and whether a partner visa is a better or parallel option.
• Bridging visa position. Explaining which bridging visa is likely and what it means for work, study and travel.
• Through the life cycle. Responding to section 56 and section 57 letters, preparing the applicant for interview and attending with them.
• Refusal and review. Where the Department refuses, analysing the decision and preparing the review within time.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers act for applicants across Australia by video from the Sydney office. Consultations are confidential. The general Protection visa guide explains the wider framework.

If you are thinking about applying for an LGBTI Protection Visa Australia Subclass 866, the first decisions are the ones that are hardest to undo. Book a consultation with My Migration Lawyers online, or call 1300 040 300.