Protection Visa 866 Character Requirements

What Are the Protection Visa 866 Character Requirements?

The Protection Visa 866 character requirements are the provisions that can prevent the grant of a Subclass 866 visa because of an applicant's criminal record, conduct or associations, even where the applicant is owed protection. They come from two places. The first is section 36 of the Migration Act 1958, which contains security and character provisions specific to protection visas. The second is clause 866.225 of Schedule 2 to the Migration Regulations 1994, which requires the applicant to satisfy public interest criteria 4001 and 4003A.

The protection visa 866 character requirements matter to a wide range of applicants, not only those with serious convictions. They are relevant to anyone who has been charged or convicted of an offence in any country, who has served in a military, police or security force, who has been associated with an organisation involved in violence, who has overstayed a visa, or who has been the subject of an arrest warrant or Interpol notice. Form 866 asks about each of these matters.

This article explains each part of the protection visa 866 character requirements, the order in which they are assessed, the police checks involved, and why full disclosure is essential. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

The Four Layers of the Protection Visa 866 Character Requirements

The protection visa 866 character requirements operate in four layers, each with a different legal test and a different consequence. Understanding which layer applies is the first step in assessing any character issue.

• Security under section 36(1B). The applicant must not be assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. An adverse security assessment means the criterion cannot be met.
• Danger to Australia or the community under section 36(1C). The applicant must not be a person whom the decision maker considers, on reasonable grounds, to be a danger to Australia's security, or who, having been convicted by final judgment of a particularly serious crime, is a danger to the Australian community. Section 36(2C)(b) contains a mirror provision for complementary protection.
• Exclusion and ineligibility. Under section 5H(2), a person is not a refugee if there are serious reasons for considering that they have committed a crime against peace, a war crime or a crime against humanity, committed a serious non-political crime before entering Australia, or been guilty of acts contrary to the purposes and principles of the United Nations. Section 36(2C)(a) contains a mirror provision for complementary protection.
• Public interest criteria 4001 and 4003A. Public interest criterion 4001 concerns the character test in section 501(6). Public interest criterion 4003A concerns association with the proliferation of weapons of mass destruction.

The Department's Protection Visa Processing Guidelines describe section 36(1C) and section 36(2C)(b) as "mirror provisions". If any of them applies, the applicant does not satisfy section 36(1A), and the application must be refused. Our guide to permanent protection visa eligibility explains how section 36(1A) fits within the wider criteria.

The Order in Which Character Is Assessed

The order of assessment matters, because it decides what happens to the protection claim when a character issue arises. Section 36A of the Migration Act 1958 requires the decision maker first to assess whether the applicant is a refugee under section 36(2)(a) and, if so, whether section 36(1C) is satisfied.

If the applicant is not a refugee, or is a refugee but does not satisfy section 36(1C), the decision maker must then assess the complementary protection criterion in section 36(2)(aa). The Department's guidelines state that it is a policy requirement that all subsections of section 36 be assessed before any character concern is referred for consideration under section 501.

This sequence under the protection visa 866 character requirements has a practical consequence. A character issue does not mean the protection claim is ignored. The decision maker must still make findings about whether the applicant engages Australia's protection obligations. Those findings can matter a great deal later, because a person who is refused on character grounds but owed protection is in a different legal position from a person who is not owed protection at all. The protection visa 866 character requirements therefore operate alongside the protection claim, not instead of it.

Who the Protection Visa 866 Character Requirements Apply To

The protection visa 866 character requirements apply to every person included in the application, not only the person making the protection claims. A spouse, de facto partner or dependent child included as a member of the family unit must meet the character provisions in the same way as the primary applicant.

The penal checks reflect this. All protection visa applicants aged 17 or older require an Australian penal check, and older family members who have lived in third countries may also need overseas police certificates. Form 866 asks the character questions about every person named in the application, and the declaration requires the applicant to confirm that the answers are complete for each of them.

A character issue affecting one family member can create difficult choices for the family. A person who fails the character provisions cannot be granted the visa, even if the family member making the claims is owed protection. Where a character issue affects a family member, it should be identified before lodgement so that the family understands the consequences and can plan for them. This is one of the most practical reasons to assess the protection visa 866 character requirements for the whole family at the outset, rather than only for the person whose claims are being advanced.

Public Interest Criterion 4001 and the Section 501 Character Test

Public interest criterion 4001 is the part of the protection visa 866 character requirements that applies the general character test in section 501(6) of the Migration Act 1958. The Department's guidelines describe public interest criterion 4001 as relating to whether the applicant passes that test.

Under public interest criterion 4001, the applicant must satisfy one of three alternatives. The applicant passes the character test, or the Minister is satisfied, after appropriate inquiries, that there is nothing to indicate the applicant would fail it, or the Minister has decided not to refuse the visa despite reasonably suspecting that the applicant does not pass it.

The character test in section 501(6) is failed in a range of circumstances. They include:

• having a substantial criminal record, as defined in section 501(7), which includes a sentence of imprisonment of 12 months or more;
• having been convicted of certain offences committed in immigration detention;
• having been convicted or found guilty of a sexually based offence involving a child;
• association with a group, organisation or person that the Minister reasonably suspects has been involved in criminal conduct;
• involvement in people smuggling, people trafficking, genocide, war crimes, crimes against humanity, torture, slavery or other crimes of serious international concern;
• past and present criminal or general conduct showing that the person is not of good character; and
• a significant risk that the person would engage in criminal conduct, harass or endanger others, or vilify or incite discord in the community.

Failing the character test does not automatically lead to refusal. Where the Department considers refusal under section 501(1), it applies Ministerial Direction No. 110, made under section 499. The Department's guidelines state that one of the considerations under that Direction is whether there are non-refoulement obligations in relation to the person. Any such obligations identified in the protection assessment must be weighed against the seriousness of the conduct. Our page on visa refusals explains the wider refusal framework, and our page on visa cancellations explains the related cancellation powers under section 501.

Public Interest Criterion 4003A and Security Assessments

Two further parts of the protection visa 866 character requirements concern security rather than criminal conduct. Public interest criterion 4003A provides that an applicant must not be a person whose presence in Australia the Foreign Minister, or a delegate, determines may be directly or indirectly associated with the proliferation of weapons of mass destruction. Section 36(1B) requires that the applicant is not assessed by ASIO to be directly or indirectly a risk to security.

These provisions affect very few applicants, but their effect is decisive when they apply. The Department's guidelines state that where an adverse security assessment is issued, the application must be refused under section 36(1B). Security assessments are conducted by ASIO, and the applicant may not be told the detail of the concern. Where an applicant has had any connection with a government, military, intelligence service or organisation that could attract security interest, that history should be disclosed accurately in Form 866 and explained, so that the assessment is made on complete information. These parts of the protection visa 866 character requirements reinforce the same rule as every other part: disclose fully, explain clearly and support the explanation with evidence.

Police Checks and the Protection Visa 866 Character Requirements

Police checks are the main way the Department establishes whether an applicant meets the protection visa 866 character requirements. The Department's guidelines explain who needs a penal check.

• Australian penal check. All protection visa applicants aged 17 or older require an Australian penal check.
• Overseas police certificates. Applicants who have lived in another country for more than 12 months since turning 16 also require a check from that country, other than the country from which they are claiming protection.
• No certificate procedure. Where a country has no procedure for issuing a certificate, the Department's penal checking guidance contains procedures for that situation.

The exclusion of the country from which protection is claimed is important. An applicant is not required to approach the authorities they fear in order to obtain a police certificate. That rule protects applicants from having to reveal their location or their application to a persecutor.

The Department states that applicants should not arrange police certificates until it asks for them. When it does ask, the request should be answered by the date given. Where a certificate cannot be obtained from a third country, the reason should be explained in writing. Our protection visa documents checklist sets out the documents commonly requested.

Disclosure in Form 866

Full and accurate disclosure is the most important thing an applicant can do to manage the protection visa 866 character requirements, and it is the part of the protection visa 866 character requirements that is entirely within the applicant's control. Form 866 asks whether any applicant has ever been charged with an offence awaiting legal action, convicted of an offence in any country, been the subject of an arrest warrant or Interpol notice, served in a military or police force, been associated with an organisation involved in violence, overstayed a visa, or been removed or deported from any country.

The declaration at the end of the form requires the applicant to confirm that, except as disclosed, they are not aware of any matter that would bring into question whether they pass the character test in section 501. It warns that giving false or misleading information is a serious offence and that an application may be refused, or a visa cancelled, if false or misleading information has been given.

Non-disclosure is often more damaging than the matter itself. A minor conviction disclosed with an explanation may have little effect. The same conviction discovered later, after the applicant denied it, raises questions about the credibility of the entire protection claim. Our guide to Form 866 explains how the character questions should be answered, and our guide to the protection visa statement of claims explains how the account and the disclosures fit together.

Protection Visa 866 Character Requirements and the Protection Claim

A character problem and a protection claim can both be true at the same time, and the law deals with that situation in a specific way. Where an applicant is owed protection but fails the character provisions, the protection visa can be refused. Refusal does not, however, remove Australia's non-refoulement obligations under the Convention against Torture and the International Covenant on Civil and Political Rights, which have no character exceptions.

The Migration Act 1958 reflects this through the concept of a "protection finding" in section 197C. Where a person has a protection finding in relation to a country, section 197C(3) prevents their involuntary removal to that country, subject to a later decision under section 197D that a protection finding would no longer be made. A person refused a protection visa on character grounds may therefore remain in Australia without a visa, with serious consequences for their liberty and status.

This is why the protection claim should be prepared fully even where a character issue exists. The findings made about the claim will shape what happens after any refusal. Our page on complementary protection explains the complementary protection criterion.

Protection Visa 866 Character Requirements After Grant

The protection visa 866 character requirements do not end when the visa is granted. A Subclass 866 visa holder must obey Australian law, and the visa can be cancelled on character grounds under section 501 of the Migration Act 1958 in the same way as other visas.

Section 501 includes a mandatory cancellation power. It applies where a visa holder is serving a sentence of imprisonment on a full-time basis and has a substantial criminal record, including a sentence of 12 months or more, or has been convicted of a sexually based offence involving a child. After mandatory cancellation, the former holder may ask for the cancellation to be revoked, within a short and strictly applied time limit. Non-refoulement obligations are relevant to that request, but they do not guarantee that the cancellation will be revoked.

Section 197C(3) may prevent the removal of a former holder to the country from which protection was granted, but it does not restore the visa. A former holder in that position may face detention or an uncertain status in Australia. Our page on visa cancellations explains the cancellation powers and how a revocation request is made. For holders, the practical message of the protection visa 866 character requirements after grant is simple: permanent residence is secure only as long as the holder remains of good character.

Common Character Issues in Subclass 866 Applications

Most character issues in Subclass 866 applications are not the serious criminal matters that attract attention, and many can be managed with proper disclosure and evidence. The protection visa 866 character requirements should be considered in each of these situations.

• Minor convictions or traffic offences. These should be disclosed, with court documents. They rarely lead to refusal on their own.
• Pending charges in Australia. A pending charge must be disclosed, and the outcome may affect the assessment. Advice should be obtained before any plea is entered, because a conviction can have migration consequences.
• Family violence orders. Form 866 asks about family and domestic violence charges, convictions and orders where the applicant is the respondent. Ministerial Direction No. 110 treats family violence seriously.
• Military or police service. Service does not itself exclude an applicant, but it will be examined for possible involvement in serious crimes.
• Convictions in the home country. A conviction imposed by the persecuting state may itself be part of the persecution. It must still be disclosed and explained.
• Overstays and earlier visa problems. These are relevant to general conduct and should be disclosed with an explanation.

In each of these situations, the right approach under the protection visa 866 character requirements is the same. The matter is disclosed, the documents are obtained, and a short written explanation places the matter in context. Where the matter is recent or urgent, such as a new charge or a court date while the application is pending, advice should be obtained immediately. Our guide on urgent immigration lawyer advice explains what to prepare when time is short. Leaving a character matter unexplained is the most common way a manageable issue under the protection visa 866 character requirements becomes a reason for refusal.

If a Character Issue Leads to Refusal

If a Subclass 866 application is refused because of the protection visa 866 character requirements, the review options depend on the provision relied on and on who made the decision. A refusal by a Department delegate under section 65, for example because section 36(1C) was not met, is generally reviewable by the Administrative Review Tribunal. A refusal by a delegate under section 501 is also generally reviewable, but on its own procedure and time limit. A decision made personally by the Minister is not reviewable on its merits.

In each case the time limit is short and strictly applied. Section 48A of the Migration Act 1958 generally prevents a second protection visa application while the applicant remains in Australia. Judicial review may be available for legal error. Our pages on protection visa refusals, on appealing a protection visa refusal to the ART and on judicial review explain the options.

Practical Steps for Applicants With a Character Concern

An applicant with any concern about the protection visa 866 character requirements should take the following steps before lodging, or as soon as possible after.

• Identify every matter that must be disclosed, in every country, including matters removed from official records.
• Obtain the documents, such as charge sheets, court orders, sentencing remarks and certificates of completion.
• Consider whether the matter is connected to the protection claim, for example where a charge was fabricated or politically motivated.
• Disclose accurately in Form 866, with a clear written explanation.
• Obtain advice before responding to any character request, including an invitation to comment under section 501.
• Obtain advice before any criminal plea while the application is pending.

How My Migration Lawyers Acts on Character Issues in Subclass 866 Applications

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases involving character issues, including applicants with convictions in Australia or overseas, pending charges, family violence orders, military service and charges brought by the authorities of the home country. The firm assesses the protection visa 866 character requirements alongside the protection claim, because each affects the other.

• Character risk assessment. We identify which of the character provisions could apply and how serious the risk is.
• Disclosure strategy. We ensure that every matter is disclosed accurately in Form 866, with the documents and explanation it needs.
• The applicant's own account. The statement of claims is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Responses to character invitations. We prepare responses to invitations to comment, including submissions on Ministerial Direction No. 110 and non-refoulement.
• Review and further options. If a refusal occurs, we act on Tribunal or judicial review within the time limits.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video. Our protection visa lawyers page explains how the firm acts in these matters.

A character issue should be assessed before it becomes a refusal. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.