Permanent Protection Visa (Subclass 866) Australia: Eligibility and Requirements

Who is eligible for a permanent protection visa (Subclass 866)?

A permanent protection visa (Subclass 866) is available to a person who is in Australia, who arrived in Australia holding a visa that was in effect and was immigration cleared on arrival, and who satisfies either the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa) of the Migration Act 1958. The visa is permanent from the date of grant, and the criteria are strict.

Those two parts of the test sit in different places in the law, and they do different work. The arrival requirement is a validity requirement. It is found in item 1401 of Schedule 1 to the Migration Regulations 1994, and it decides whether an application can be made at all. The protection criteria are criteria for the grant of the visa. They are found in section 36 of the Act and in Part 866 of Schedule 2 to the Regulations, and they decide whether the visa is granted.

There is a third layer that is easy to miss. Under section 36(1A), an applicant must satisfy the criteria in both section 36(1B) and section 36(1C), and at least one of the subsections in section 36(2). Section 36(1B) requires that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. Section 36(1C) requires that the applicant is not a person whom the decision maker considers, on reasonable grounds, to be a danger to Australia's security, or a person who, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

At the time of application, clause 866.211 requires the applicant either to claim to engage Australia's protection obligations and to give the reasons why, or to claim to be a member of the same family unit of another applicant who has made those claims. This is a low threshold at lodgement. It is a claim, not a finding. The assessment of whether the claim is made out happens at the time of decision, under clause 866.221.

Eligibility for the Subclass 866 therefore has four working parts. The applicant must be able to make a valid application. The applicant must engage Australia's protection obligations on one of the two statutory grounds, or be a member of the same family unit of a person who does. The applicant must not be caught by the security and character provisions. The applicant must satisfy the remaining criteria in Part 866 of Schedule 2, including the health criteria, the public interest criteria and the requirement to be in Australia when the visa is granted. The Subclass 866 protection visa page sets out how those parts fit together in practice.

Is the Subclass 866 protection visa permanent residence?

Yes. The Subclass 866 is a permanent visa. A person granted a Subclass 866 becomes an Australian permanent resident from the date of grant, with the right to live in Australia indefinitely, to work and to study.

This is the reason the Subclass 866 matters so much more than the temporary protection alternatives. It is not a temporary permission that has to be renewed while the risk in the home country is reassessed every few years. It is permanent residence, and it carries the ordinary consequences of permanent residence, including access to Medicare and a pathway to Australian citizenship once the residence requirements in the citizenship legislation are met.

The Department of Home Affairs describes the permanent protection visa as allowing a person found to engage Australia's protection obligations to remain in Australia as a permanent resident, and to travel to and enter Australia for a period of five years from the date of grant. The five year period is the travel facility, not the visa. The visa does not expire. When the travel facility expires, a holder who wishes to leave and return to Australia as a permanent resident needs a Resident Return visa, in the same way as any other permanent resident whose travel facility has run out.

One condition is specific to protection visas and should be understood before grant rather than after it. Condition 8559 attaches to the Subclass 866. The holder, and members of the same family unit, must not enter the country or countries from which protection was granted unless the Department approves that entry in writing beforehand. Approval is given only where there are compassionate or compelling circumstances. Entering the country of protection without written approval, even briefly, breaches the condition and exposes the visa, and the visas of family members, to cancellation.

The Department also recommends that a protection visa holder does not travel on a passport issued by the country of nationality, because doing so may be treated as evidence that protection from that country is no longer needed. An Australian travel document, such as a Convention travel document, is obtained from the Australian Passport Office.

Does an applicant have to still hold a valid visa to apply?

No. A person may apply for a Subclass 866 protection visa after their substantive visa has expired, provided they arrived in Australia holding a visa that was in effect and were immigration cleared on arrival.

This is the single most misunderstood point in this area, and it is stated wrongly on a great many websites. There is no requirement in item 1401 that the applicant hold a visa at the time of application. There is no equivalent of the Schedule 3 criteria that apply to onshore partner visa applicants who have become unlawful. A person who arrived lawfully on a visitor visa or a student visa, and who has overstayed, can still make a valid application for a permanent protection visa.

Three related propositions are also stated wrongly and are worth correcting plainly.

Condition 8503 does not prevent a protection visa application. The no further stay conditions in Schedule 8 are expressed to prevent the grant of a substantive visa "other than a protection visa". Conditions 8534 and 8535 carry the same carve out. No waiver is needed for a protection visa. What those conditions block is a partner, student or skilled visa lodged in Australia.

The section 48 bar does not prevent a protection visa application. Section 48 restricts what a person can apply for in Australia after a visa refusal or cancellation, but protection visas remain among the classes that stay available.

Departing Australia does not "end" a protection visa application. The operative provision is clause 866.411, which requires the applicant to be in Australia when the visa is granted. The application does not disappear, but the visa cannot be granted while the applicant is offshore, and the bridging visa the applicant is relying on will generally cease on departure.

What does prevent a valid application is the arrival requirement itself. A person who was not immigration cleared on last entry to Australia, and a person who is an unauthorised maritime arrival, cannot make a valid application for a permanent Subclass 866. That restriction is the practical dividing line in this visa class, and it is why the Subclass 866 is, in substance, the protection visa for people who came to Australia lawfully and then found that they could not safely go home.

What does the refugee criterion in section 36(2)(a) require?

The refugee criterion in section 36(2)(a) requires the applicant to be a refugee within the meaning of section 5H of the Migration Act 1958, which means a person who is outside their country of nationality and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country.

Where the applicant has no nationality, section 5H(1) applies to a person who is outside their country of former habitual residence and who, owing to a well-founded fear of persecution, is unable or unwilling to return to it.

The definition of a "well-founded fear of persecution" is in section 5J, and it has three elements. The applicant must fear being persecuted for at least one of five reasons, being race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance of that persecution. The real chance must relate to all areas of the receiving country, not only to the applicant's home town or province.

Section 5J then removes two situations from the definition. Under section 5J(2), there is no well-founded fear of persecution if effective protection measures are available to the applicant in the receiving country. What counts as an effective protection measure is set out in section 5LA, and it covers protection from the state and, in some circumstances, from a party or organisation that controls a substantial part of the territory. Under section 5J(3), there is no well-founded fear of persecution if the applicant could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. That carve out is itself limited. A modification does not count if it would conflict with a characteristic fundamental to the applicant's identity or conscience, or would require the applicant to conceal an innate or immutable characteristic.

Persecution has its own statutory content. Under section 5J(4), one or more of the five reasons must be the essential and significant reason for the persecution, the persecution must involve serious harm to the applicant, and it must involve systematic and discriminatory conduct.

Two points follow for anyone assessing their own eligibility. First, harm alone is not enough. The harm must be connected to one of the five reasons, and the connection must be the essential and significant reason for it. A person facing violence from a creditor, a former business partner or a criminal group very often faces real and serious harm without any Convention reason for it. Second, relocation and state protection are not objections the Department raises late. They are built into the definition, and a claim that does not deal with them is incomplete from the day it is lodged.

What does complementary protection under section 36(2)(aa) require?

The complementary protection criterion in section 36(2)(aa) requires substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.

Complementary protection does not require any Convention reason. That is what it is for. It is the ground that covers real risk of serious mistreatment where the reason for the mistreatment is not race, religion, nationality, political opinion or membership of a particular social group.

The catch is that "significant harm" is defined, and the definition is closed. Under section 36(2A), a person will suffer significant harm only if they will be arbitrarily deprived of their life, the death penalty will be carried out on them, they will be subjected to torture, they will be subjected to cruel or inhuman treatment or punishment, or they will be subjected to degrading treatment or punishment. Nothing outside those five categories is significant harm, however severe it is. Loss of employment, loss of housing, destitution, social exclusion and the collapse of family support are all devastating, and none of them is significant harm on its own. The terms torture, cruel or inhuman treatment or punishment and degrading treatment or punishment are each defined in section 5(1) of the Act, and several of those definitions require the harm to be intentionally inflicted.

Section 36(2B) then removes three situations. There is taken not to be a real risk of significant harm if the applicant could take reasonable steps to relocate to an area of the country where there would not be a real risk, if the applicant could obtain protection from an authority of the country such that there would not be a real risk, or if the risk is one faced by the population of the country generally and is not faced by the applicant personally. The third of those defeats many claims based on generalised violence or instability.

Nothing requires an applicant to choose between the two grounds. Both are assessed in the one Subclass 866 application, and only one has to be satisfied. Where the facts allow it, both are ordinarily put, because they fail for different reasons. A refugee claim can fail on the absence of a Convention reason while the same facts still establish a real risk of significant harm. The complementary protection test is examined in more detail on that page.

What else has to be satisfied at the time of decision?

Beyond the protection criteria, a Subclass 866 applicant must satisfy the remaining time of decision criteria in Part 866 of Schedule 2 to the Migration Regulations 1994, which run from clause 866.221 to clause 866.232, together with clause 866.411.

The health criteria are in clauses 866.223 to 866.224B. They apply the public interest criteria dealing with the health requirement, and the medical examinations required of protection visa applicants are set by departmental instrument rather than being at the applicant's option.

The public interest criteria are prescribed in clause 866.225. They are public interest criterion 4001 and public interest criterion 4003A for every applicant, and public interest criterion 4019, the Australian values statement, for applicants who were aged 18 or over at the time of application. Public interest criteria 4001 and 4003A are character criteria. An applicant who fails one of them cannot be granted the visa.

Clause 866.226 is the national interest criterion. Its scope was narrowed by the High Court in 2023, which held that matters going to why a person failed the character test cannot be recycled as stand-alone reasons for concluding that a grant is not in the national interest.

Clause 866.227 deals with applicants who have been offered temporary stay in Australia under Temporary Safe Haven arrangements. Clause 866.231 deals with applicants who have been made an offer of permanent stay of a kind described in the Regulations, and clause 866.232 requires that the applicant does not hold a Resolution of Status visa. Clause 866.230 deals with a child taken to have applied under regulation 2.08 after the parent's application was made.

Clause 866.411 is short and absolute. The applicant must be in Australia. It is a time of decision criterion, so it applies at the moment of grant, not only at lodgement. An applicant who is overseas when the file is ready for decision cannot be granted the visa.

Identity sits across all of this. Sections 91W and 91WA of the Act deal with identity, nationality and citizenship documents. If an applicant is asked for evidence of identity and refuses to provide it, or provides a bogus document, without a reasonable explanation, the decision maker is required to draw an unfavourable conclusion about the applicant's credibility. People who left their country in a hurry, or who travelled on documents obtained irregularly, frequently have a reasonable explanation. It has to be on the record early, in the applicant's own words, rather than emerging under questioning at the protection visa interview.

Can a partner and children be included in a Subclass 866 application?

Yes. A partner and children who are in Australia can be included in the one Subclass 866 application as members of the same family unit, and they do not need to have protection claims of their own.

The mechanism runs in two stages. At the time of application, clause 866.211(3) requires only that the person claims to be a member of the same family unit of another applicant who has made protection claims. No assessment of the relationship is required for the application to be valid. At the time of decision, clause 866.221(3), read with paragraphs 36(2)(b) and 36(2)(c) of the Migration Act 1958, requires more. The family member must in fact be a member of the same family unit of an applicant who engages Australia's protection obligations and who has been granted a Subclass 866 visa. The relationship has to be established, and the head of the family unit has to be identified, before the family members can be granted.

Two practical consequences follow, and both are commonly misunderstood.

The first is that the family members' visas depend on the main applicant's claim. If the main applicant is found not to engage protection obligations, the family members included on that basis are refused with them. A family unit member who has protection claims of their own should have those claims recorded as their own claims, not folded silently into someone else's statement.

The second is geographic. Clause 866.411 requires an applicant to be in Australia when the visa is granted, and the combined application provisions in item 1401 allow a family member's application to be combined with the main application only where it is made at the same time and place. A spouse, parent or child who is outside Australia cannot be granted a Subclass 866 and cannot usefully be added to an onshore application. Family outside Australia has to be considered separately and later, and the options available then depend on the status the main applicant holds at that point.

What can stop a Subclass 866 application before it starts?

Four provisions can prevent a valid Subclass 866 application, and each of them operates before the merits of a claim are ever considered.

The first is the arrival requirement in item 1401 of Schedule 1, already described. A person who was not immigration cleared on last entry, and a person who is an unauthorised maritime arrival, cannot make a valid application for the permanent Subclass 866.

The second is section 48A. Once a person has applied for a protection visa in Australia and that application has been refused, section 48A prevents them from making another protection visa application while they remain in Australia. There is no ordinary exception. The only relief is section 48B, a personal and non-compellable power of the Minister to lift the bar, and the Minister has no duty even to consider exercising it. The practical effect deserves to be stated bluntly. A first protection visa application is not a trial run. If it is refused, and the review rights are exhausted, the door is generally closed. This is the reason why eligibility and the strength of the claim should be assessed before anything is lodged rather than afterwards.

The third is section 46A, which bars an unauthorised maritime arrival in Australia from making a valid visa application unless the Minister personally lifts the bar for a specified class of visa. The fourth is section 91K, which bars a person who previously held a Temporary Safe Haven visa from applying for another visa unless the Minister exercises the power in section 91L.

A refusal is not the same as a bar. A Subclass 866 refusal carries a right of merits review in the Administrative Review Tribunal. The period for applying is short and it is strictly applied, the Tribunal has no power to extend it, and the clock runs from the day the applicant is taken to have received the decision rather than the day they actually read it. The Tribunal conducts a fresh review on the merits and is not bound by the delegate's credibility findings, which is why a protection visa refusal is worth assessing properly and quickly rather than treated as final.

How My Migration Lawyers works on a Subclass 866 eligibility assessment

My Migration Lawyers acts for people who are already in Australia and who need to know, before anything is lodged, whether they can make a valid Subclass 866 application and what their claim actually rests on.

The first step is the part most often skipped. The firm works through the client's arrival and visa history, because item 1401 and section 48A decide whether an application can be made at all, and no amount of evidence cures an invalid application. The client's immigration history is checked against the Department's own records rather than reconstructed from memory, and the bridging visa position is worked out at the same time, because the conditions attached to a bridging visa determine whether the client can work and study while the application is decided.

The second step is the claim itself. The firm presents the client's own account and the client's own evidence in the form the law requires. The written statement is the client's evidence. It is prepared from what the client tells the firm, it is read back to the client in their own language where an interpreter is needed, and the client corrects and confirms it before it is filed. The client decides which claims are advanced. The firm's role is to identify which of the client's experiences engage section 36(2)(a) and which engage section 36(2)(aa), to put both grounds in the alternative where the facts allow it, to address relocation, state protection and personal risk before the Department raises them, and to support the account with country information and corroborating material.

The third step is the parts of the file that are not about the claim at all. Identity documents and any gaps in them are dealt with early, because sections 91W and 91WA make an unexplained gap a credibility problem. Health examinations and the public interest criteria are managed so that a satisfied claim is not lost on a criterion that had nothing to do with protection. Interview preparation is done on accuracy and consistency, not on rehearsed answers, and the firm attends the interview and makes written submissions afterwards where they are needed.

Protection matters at the firm are led by Weiwei Zhang, Principal Lawyer. Everything a client tells the firm in the course of the matter is covered by legal professional privilege. Protection visa eligibility turns on facts that most people cannot assess for themselves, and section 48A means there is usually only one opportunity to put the claim properly. An assessment of eligibility can be requested through the firm's consultation request form.