Protection Visa 866 Information

Protection Visa 866 Information: What Every Applicant Must Know Before Lodging

The most important Protection Visa 866 information for any applicant is that the first application usually decides the case. The Subclass 866 Protection visa is a permanent visa for people already in Australia who are owed protection because they are refugees or because they meet the complementary protection criteria. Section 48A of the Migration Act 1958 generally prevents a second protection visa application after a refusal while the person remains in Australia.

Much of the protection visa 866 information published online explains what the visa is. Far less explains the decisions an applicant makes at lodgement that cannot easily be undone. This article sets out both. The protection visa 866 information in this article is general. It covers who can apply, what the visa gives the holder, the points at which an application becomes fixed, and the practical rules about staying lawful while the application is decided.

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

What the Subclass 866 Visa Gives the Holder

A Subclass 866 visa is permanent from the day of grant, and the holder becomes an Australian permanent resident on that day. According to the Department of Home Affairs, the holder can:

• live, work and study in Australia permanently;
• access government services such as Medicare and Centrelink;
• sponsor eligible family members for permanent residence through the offshore Humanitarian Program;
• travel to and from Australia for five years; and
• become an Australian citizen, if eligible.

The visa also carries obligations. The holder and family members must obey Australian law and must tell the Department about changes such as a new address, a new passport, a change in relationship status, the birth of a child or a death in the family.

One obligation deserves particular attention in any reliable protection visa 866 information. Condition 8559 applies to the visa. 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 before travel. The Department states that approval is given only where compassionate or compelling circumstances justify the travel, and that entering without approval, even for a short time, may lead to cancellation of the visa and the visas of family members. The Department also recommends that holders do not use a passport issued by their country of nationality, because doing so may suggest they no longer need protection.

Protection Visa 866 Information on Who Can Apply

Only a person who meets the threshold requirements can make a valid Subclass 866 application, and these requirements are checked before the claims are considered. Accurate protection visa 866 information on eligibility starts with how the person arrived.

• The applicant must be in Australia. Family members included in the application must also be in Australia when it is lodged.
• The applicant must have arrived holding a visa that was in effect and been immigration cleared. Immigration clearance is defined in section 172 of the Migration Act 1958. A person who arrived as an unauthorised maritime arrival, or who was not immigration cleared on last entry, cannot make a valid Subclass 866 application. The Department states that a person whose visa was cancelled on arrival, or who was detained on arrival, has not been immigration cleared.
• No application bar must apply. Form 866 lists the bars. They include a protection visa refused or cancelled since the last arrival, nationality of two or more countries, protection in a prescribed safe third country, and having held a Temporary Safe Haven visa. The Minister can lift a bar in the public interest, but the applicant cannot.
• The applicant must have claims for protection, or be a member of the family unit of someone who does.

Many applicants hold a visitor visa or a student visa when they apply. Condition 8503, the "no further stay" condition, does not prevent a protection visa application, because the condition itself excludes protection visas. Our guides on applying for a Subclass 866 visa on a tourist visa and on international students applying for a Subclass 866 visa explain the issues that commonly arise. Our guide to permanent protection visa eligibility sets out the validity rules in more detail.

The Two Legal Tests Behind the Subclass 866 Visa

A Subclass 866 visa is granted only if the applicant is a refugee or meets the complementary protection criterion, and every piece of protection visa 866 information about eligibility comes back to these two tests. They are set out in section 36 of the Migration Act 1958.

The refugee test

Under section 36(2)(a), the applicant must be a refugee as defined in section 5H. In broad terms, a refugee is a person outside their country who has a well-founded fear of persecution there. Section 5J explains that there must be a real chance of persecution, that the persecution must involve serious harm and systematic and discriminatory conduct, and that it must be for race, religion, nationality, membership of a particular social group or political opinion. The real chance of persecution must relate to all areas of the country, and effective protection from the authorities must not be available.

The complementary protection test

Under section 36(2)(aa), protection is owed where there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk that the applicant will suffer significant harm. Significant harm is defined in section 36(2A) and includes torture, the death penalty and cruel, inhuman or degrading treatment. No Convention reason is needed, but section 36(2B) excludes risks that could be avoided by relocating, risks against which the authorities can protect, and risks faced by the population generally. Our page on complementary protection explains the test in more detail.

A well-prepared application addresses both tests, so that a failure under one does not end the case. This is basic protection visa 866 information that is often overlooked.

Decisions at Lodgement That Cannot Easily Be Undone

The Subclass 866 application becomes fixed in several ways at the moment it is lodged, and this is the protection visa 866 information applicants most often learn too late. The Department states that a decision may be made on the information in the written application, and that the applicant may not be given another opportunity to present the claims.

The one-application rule in section 48A

Section 48A of the Migration Act 1958 prevents a non-citizen whose protection visa application has been refused, or whose protection visa has been cancelled, from making a further protection visa application while in the migration zone. Only the Minister can lift that bar, personally, in the public interest. An applicant who lodges a weak application intending to improve it later may find there is no later. The Administrative Review Tribunal can review a refusal, but the review is of the same application.

The written claims become the benchmark

Every later statement, whether at interview, in a response to a request for information or at the Tribunal, is compared with the written claims. Where the account changes, the decision maker will ask why. New claims raised late are often doubted, and a claim that contradicts the original account can damage the credibility of the whole case. Our guide to the protection visa statement of claims explains how the account is presented so that it is complete from the start.

The history questions in Form 866

Form 866 asks for detailed personal history. The current form asks for residential addresses over a long period, overseas travel over an even longer period, and all employment, unemployment and education, with no unexplained gaps. These answers are compared with earlier visa applications, passports and records held by the Department. An error made carelessly at lodgement can later look like a deliberate attempt to mislead. This is protection visa 866 information that applicants who prepare their own forms often underestimate. Our guide to Form 866 walks through the form.

The character declarations

Form 866 asks whether any applicant has been charged with or convicted of an offence in any country, has been the subject of an arrest warrant, has served in a military or police force, or has been associated with an organisation involved in violence. The declaration also asks the applicant to confirm that nothing would bring into question whether they pass the character test in section 501. These answers must be complete and truthful. Non-disclosure can be more damaging than the underlying fact.

The class of visa

The Department treats a Form 866 application as an application for only one class of protection visa, depending on the applicant's eligibility. A person who arrived lawfully and was immigration cleared will be considered for the permanent Subclass 866 visa. A person who was not will be considered only for a temporary protection visa.

Protection Visa 866 Information About Bridging Visas and Staying Lawful

A valid protection visa application may lead to the grant of a bridging visa that keeps the applicant lawful while the application is decided. The type of bridging visa, and whether it allows work, depends on the applicant's immigration status when the application is lodged and other factors.

The timing matters. Form 866 advises applicants who hold a valid visa to lodge before that visa expires. A person who becomes unlawful before applying is in a weaker position and may be detained. A person who applies while holding a substantive visa is usually granted a different kind of bridging visa from a person who applies after their visa has expired. Our guides to bridging visas in Australia and to the Bridging visa A explain the differences.

Two further points belong in any practical protection visa 866 information.

• Biometrics must be provided when requested. The Department states that if an applicant does not allow biometrics to be collected, the application is invalid, and any bridging visa granted with it ends a short time after the applicant is told the application is invalid.
• Leaving Australia is a serious risk. Clause 866.411 of the Migration Regulations 1994 requires the applicant to be in Australia when the visa is granted. Most bridging visas do not allow travel, and travel can also undermine a claim that the applicant fears returning home.

What the Department Does With the Claim

After lodgement, the Department tests the claim against the law and against independent information about the applicant's country. The protection visa 866 information that matters most here is that the officer decides on the material in front of them.

Section 5AAA of the Migration Act 1958 makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it. The officer assesses whether the applicant is a refugee under section 36(2)(a), or whether complementary protection is owed under section 36(2)(aa). The officer also assesses identity, security, character and health. Most applicants are interviewed, usually by videoconference, and the interview is where credibility is tested directly. Our page on the protection visa interview explains what to expect.

Claims based on religion, political opinion, sexual orientation or gender identity are common examples of refugee claims. Our pages on religious persecution and on the LGBTI protection visa explain how those claims are assessed.

The officer will also compare the claims with country information, including reports prepared by the Department of Foreign Affairs and Trade. Where that information suggests the authorities can protect the applicant, or that the applicant could live safely in another part of the country, the application must deal with the point directly. Good protection visa 866 information on this stage is simple: the decision maker assesses what is put in front of them, so the application should anticipate the questions that will be asked rather than wait for them. If the officer receives adverse information from another source, the applicant will usually be invited to comment on it before a decision is made, and that invitation must be answered fully and on time.

Protection Visa 866 Information on Timing and Delay

The timing of a Subclass 866 application affects both lawful status and credibility. An application lodged while the applicant still holds a substantive visa usually leads to a better bridging visa position than one lodged after the visa has expired. That is practical protection visa 866 information that should shape when the application is made.

Delay also affects how the claim is assessed. A decision maker will usually ask why an applicant who says they fear returning home did not apply for protection soon after arriving. A delay does not defeat a claim automatically, but an unexplained delay can be treated as inconsistent with a genuine fear. Many delays have good explanations, such as events in the home country after the applicant left, a change in the applicant's own circumstances, or a lack of knowledge about the protection visa process. The explanation should be stated clearly in the application. Our article on whether delaying a Subclass 866 application affects the claim explains how delay is assessed. Accurate protection visa 866 information on timing therefore points in one direction: prepare properly, but do not wait longer than necessary.

Protection Visa 866 Information on Family Members

Members of the same family unit can be included in one Subclass 866 application, and they do not need their own claims for protection. A member of the family unit can include a spouse or de facto partner, dependent children and certain other dependants. All of them must be in Australia when the application is lodged, and each must meet health, character and security requirements.

A child born to an applicant after lodgement and before the Department decides the application is taken to be included in it. The Department must be told of the birth promptly. A partner or dependent child who is in Australia can also be added after lodgement, provided the Department has not yet made a decision.

Family members who are overseas cannot be included. The Form 866 declaration records that a person not included in the application does not have an automatic right of entry to Australia because the applicant holds a protection visa. After grant, the holder may be able to propose eligible family members through the offshore Humanitarian Program, but that is a separate application with its own criteria. This is protection visa 866 information that affects many families and should be considered before lodgement.

Where Online Protection Visa 866 Information Goes Wrong

A great deal of protection visa 866 information circulating online is incomplete or wrong, and relying on it can cost an applicant the only application they are likely to have. The most common errors are these.

• "Any fear of returning home is enough." It is not. The refugee test requires a real chance of persecution involving serious harm, for a Convention reason, in all areas of the country, where the authorities cannot provide effective protection. Complementary protection has its own strict test.
• "Economic hardship qualifies." Poverty, unemployment and lack of opportunity do not usually meet either test on their own.
• "The application can be improved at interview." The Department may decide the application without an interview. Claims first raised at interview are often doubted.
• "A second application can be made if this one fails." Section 48A generally prevents this.
• "A visitor visa with condition 8503 prevents an application." It does not.
• "Someone can guarantee the visa." No one can. The Department's own Form 866 warns about people who promise guaranteed visas.

Reliable protection visa 866 information comes from the legislation, the Department and the Administrative Review Tribunal, applied to the individual applicant's circumstances. For what happens if an application is refused, see our guide on appealing a protection visa refusal to the ART.

Protection Visa 866 Information for Applicants With Earlier Visa Problems

An applicant with an earlier visa refusal, a cancellation or a history of overstaying can often still apply for a Subclass 866 visa, but the history must be understood before lodgement. The key question is whether the earlier problem involved a protection visa. Section 48A applies only where a protection visa application was refused, or a protection visa was cancelled, since the applicant last entered Australia. A refusal of a visitor, student or partner visa does not trigger section 48A.

Earlier problems still matter in other ways. Earlier visa applications contain statements about the applicant's history, purpose of travel and intentions, and the decision maker will compare them with the protection claims. An overstay or an earlier refusal may affect the bridging visa that follows. Form 866 also asks whether any applicant has overstayed a visa or been removed or deported from any country. Clear protection visa 866 information for this group of applicants is that the earlier record should be reviewed and any inconsistency explained in the application itself.

Practical Protection Visa 866 Information on Documents

Identity documents and supporting evidence should be gathered before the application is lodged, not after. The Department accepts colour scans or photographs of original documents with English translations, and it states that documents do not need to be certified. Where identity documents are missing, the reason should be explained in writing at lodgement, because sections 91W and 91WA of the Migration Act 1958 can require refusal where identity evidence is not provided without a reasonable explanation.

Police certificates are treated differently. The Department states that applicants should not arrange them until the Department asks. Our protection visa documents checklist sets out what to collect. Our guide on how to create an ImmiAccount explains the online account through which the application is lodged.

How My Migration Lawyers Advises Before a Subclass 866 Application Is Lodged

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including applicants with expiring visas, condition 8503, missing identity documents, earlier visa refusals and family members in Australia and overseas. The firm's work begins before anything is lodged, because that is when the protection visa 866 information in this article matters most.

• Threshold checks. We confirm how the applicant arrived, whether they were immigration cleared and whether any application bar applies.
• Timing and lawful status. We advise on lodging before the current visa expires and on the bridging visa likely to follow.
• The applicant's own account. We take the applicant's account and present it in the form the law requires. The statement is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Consistency across the record. We check the Form 866 history questions against the applicant's earlier visa applications so that errors are corrected and explained before lodgement.
• Family members. We advise on who can be included now and what options may exist after grant.

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.

The right protection visa 866 information, applied to the applicant's own facts before lodgement, protects the only application most applicants will have. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.