Protection Visa 866 Police Checks

Protection Visa 866 police checks are one of the few parts of a protection application that are purely procedural, yet they cause real problems. Applicants obtain the wrong certificate, contact the wrong authority, miss a request, or discover that a certificate shows something they did not disclose. Each of those mistakes can delay a decision or damage an otherwise strong claim.

This article explains which Protection Visa 866 police checks are required, how to obtain each one, what to do when a certificate cannot be obtained, and why an applicant must never approach the authorities of the country they fear. It is a practical guide for applicants and their families who are already in Australia and have lodged, or are about to lodge, a protection visa application.

Do you need police checks for a Protection Visa 866?

Yes. Protection Visa 866 police checks are part of how the Department decides whether an applicant meets the character requirement in Public Interest Criterion 4001, which clause 866.225 of Schedule 2 to the Migration Regulations 1994 requires at the time of decision.

The Department's Protection Visa Processing Guidelines state the rule directly. All protection visa applicants aged 17 or older require an Australian penal check. Applicants who have lived in another country for more than 12 months since turning 16, other than the one from which they are claiming protection, also require a check from that country.

That rule applies to each applicant in the application, not only the main applicant. A spouse, partner or adult child included in the application needs their own Protection Visa 866 police checks if they meet the age and residence thresholds.

Police checks are only one part of the character assessment. The wider legal tests, including the danger to the community criterion and the exclusion grounds, are explained in the firm's guide to the Subclass 866 protection visa. This article deals only with the certificates.

Which Protection Visa 866 police checks are required?

There are three categories to consider for each applicant. The first is always required. The second depends on where the applicant has lived. The third is the country the applicant must not approach.

The Australian police check

Every applicant aged 17 or older needs an Australian National Police Check issued by the Australian Federal Police. This applies even to an applicant who arrived recently and has never been charged with anything in Australia. The check confirms the position across all Australian states and territories.

Police certificates from other countries

An applicant who has lived in any other country for more than 12 months since turning 16 needs a police certificate from that country. This commonly includes countries where an applicant worked, studied or waited before coming to Australia. It can include a country the applicant passed through on the way to safety if they stayed long enough to meet the threshold.

The period is calculated since turning 16. Time spent in a country as a young child does not count for this purpose. An applicant should prepare an accurate list of every country and the dates they lived there before working out which Protection Visa 866 police checks they need. That list must also match the address and travel history given in the application. The firm's guide to Form 80 explains why those dates must be consistent across every document.

The country you are claiming protection from

The Department's rule expressly excludes the country from which the applicant is claiming protection. An applicant is not required to provide a police certificate from the country they fear, and they should not try to obtain one. The reasons are explained in detail below.

Names and identity details on Protection Visa 866 police checks

Protection Visa 866 police checks are only useful if the Department can be sure the certificate relates to the applicant. That depends on the identity details used to obtain it.

Many protection applicants have more than one version of their name. A name may be transliterated differently from another script, written in a different order, or recorded with or without a family name. Some applicants have used a different name in a passport, a previous visa application or a third country. Each of those variations matters.

The applicant should:

• apply for each certificate using the name and date of birth shown in the identity documents provided to the Department;
• list every other name used, including earlier spellings and names used in other countries, in the application itself;
• make sure the certificate shows the same date of birth format and details as the application; and
• explain any difference between the name on a certificate and the name in the application before the Department asks.

Identity is a central issue in protection applications. Section 91W of the Migration Act allows the Department to request documentary evidence of identity, nationality or citizenship, and an unexplained mismatch can lead to questions the applicant would rather not face. A police certificate issued in a different name without explanation invites exactly that kind of question.

How to get the AFP National Police Check for a protection visa

The AFP National Police Check is the one certificate every adult applicant needs. It is also the one most often obtained incorrectly.

The Department's published instructions state that applicants should complete the AFP National Police Check application and select Commonwealth employment or purpose as the purpose type, using code 33 where the form asks for a code. The Department's policy material explains that this produces a Complete Disclosure certificate. A Standard Disclosure certificate is not acceptable for immigration purposes, and the Department may ask for another certificate if the wrong type is provided.

The practical steps are:

• Apply directly to the Australian Federal Police or an accredited body that issues the AFP National Police Check for immigration purposes.
• Select Commonwealth employment or purpose, and use code 33 where a code is requested.
• Provide the identity documents the application asks for. The Department's policy material notes that fingerprints are not required for the National Police Check.
• Check that the name and date of birth on the certificate match the application exactly.
• Upload the certificate as issued, without alteration, when the Department requests it or at the time the firm advises it should be provided.

Protection Visa 866 police checks are uploaded through the applicant's ImmiAccount. The firm's step-by-step guide to creating an ImmiAccount explains the account itself.

A certificate that shows a conviction is not a reason to delay providing it. The certificate should be provided with a clear explanation, and the conviction must already have been disclosed in the application.

Protection Visa 866 police checks from third countries

Police certificates from other countries are where most delay occurs. Each country has its own authority, its own forms and its own processing time. Some issue certificates through an embassy or consulate in Australia. Some require fingerprints taken in Australia. Some will only deal with a representative in that country.

An applicant should start early. The steps that usually help are:

• identifying the correct issuing authority for each country from the Department's country information for police certificates;
• confirming whether the application can be made from Australia, and whether fingerprints are needed;
• keeping copies of every application, receipt, email and response; and
• arranging a certified translation where the certificate is not in English.

A third country is a country the applicant does not fear. Contacting its embassy or police authority for a certificate does not raise the same risk as contacting the country the claim is made against. It is still important that the applicant's dealings with any government are accurate and consistent with the account they have given of their travel and residence.

Some applicants lived in a third country without lawful status, or left it in difficult circumstances. That does not remove the need for Protection Visa 866 police checks from that country. It may, however, affect how the request is made, and it is a matter on which advice should be obtained before any contact is made.

What if you cannot obtain a police certificate?

Some police certificates cannot be obtained. A country may have no functioning process, may refuse to issue certificates to non-residents, or may not respond. The Department recognises this. Its guidelines refer to specific procedures in its Penal Checking Handbook for cases where a certificate would otherwise have been required but cannot be obtained.

An applicant in this position should not simply leave the certificate out. The right approach is to:

• make a genuine attempt to obtain the certificate through the correct channel;
• keep evidence of that attempt, including forms, receipts and correspondence;
• explain in writing why the certificate cannot be obtained; and
• provide the explanation to the Department with the other Protection Visa 866 police checks.

The explanation should be specific. A general statement that a certificate is unavailable carries little weight. A useful explanation identifies the country, the authority approached, the date of each attempt, the response received, and the reason the certificate cannot be issued. Where the authority requires the applicant to attend in person, or to hold residence status the applicant no longer holds, that should be said plainly and supported with the authority's own published requirements where possible.

A common illustration is an applicant who spent several years in a transit country while waiting to travel on. That country may issue certificates only to current residents, or only through a local agent. The applicant's inability to meet those requirements is a genuine reason, and it should be documented rather than assumed. Protection Visa 866 police checks from transit countries are the certificates most often missing from applications, and they are the ones where a careful written explanation does the most good.

The Department also has procedures for applicants who refuse to obtain a certificate that has been requested. An applicant who refuses without a proper reason makes it harder for the Department to be satisfied that they meet PIC 4001. A refusal and an inability are treated very differently. That difference is why the evidence of each attempt matters.

Why you must never contact the police of the country you fear

This is the most important rule about Protection Visa 866 police checks. An applicant must not contact the police, courts or government of the country they are claiming protection from to obtain a police certificate or any similar document.

There are three reasons.

The Department does not require it. The Department's rule on police checks expressly excludes the country from which protection is claimed. There is no requirement to be met by contacting that country.

The Department itself avoids it. The Protection Visa Processing Guidelines direct officers not to send requests for information to the authorities of the country against which the applicant is claiming protection, noting that doing so may result in sur place claims. In simple terms, the approach itself can alert the feared authorities and create new risk.

It can be used against the claim. Voluntary dealings with the authorities a person says they fear can be raised by a decision maker when assessing whether the fear is genuine. An applicant who approaches those authorities for a certificate gives the decision maker a reason to ask that question.

The same caution applies to family members who remain in the home country. Asking a relative to visit a police station on the applicant's behalf can expose that relative and can create the same credibility problem. Any document from the home country that relates to the claim, such as a summons or a warrant, is evidence for the protection claim itself. The firm's article on what evidence supports a protection claim explains how that kind of document is handled.

Why Protection Visa 866 police checks must match your application

Protection Visa 866 police checks confirm or contradict what the applicant has already told the Department. The application form asks whether any applicant has been charged with an offence awaiting legal action, convicted of an offence in any country, or subject to an arrest warrant. A police certificate is an independent answer to those questions.

If a certificate shows a conviction that the applicant did not disclose, the problem is no longer only character. It becomes a credibility problem, and credibility decides most protection claims. A decision maker who finds that an applicant was not truthful about a conviction may doubt the rest of the account.

The safest course is to answer every character question accurately before any certificate is obtained, and to explain any matter in full. Where the applicant is unsure whether an old matter resulted in a conviction, that uncertainty should be resolved before the application is lodged. The firm's guide to Form 866 covers the character questions in the form, and its guide to the protection visa statement of claims explains why consistency across documents matters so much.

Protection Visa 866 police checks during a long wait

Protection applications can take a long time to decide. The firm's article on protection visa processing times explains why. Police certificates have a limited period of currency, so a certificate provided early in the process may no longer be current when the Department is ready to decide.

This has several practical consequences:

• The Department may ask again. A request for updated Protection Visa 866 police checks is common where time has passed. It is not a sign that anything is wrong.
• Requests come with a deadline. A request is often made by letter, and the letter sets a time to respond. The firm's guide to responding to a section 56 request for more information explains how those letters work.
• New matters must be reported. If an applicant is charged or convicted while waiting, section 104 of the Migration Act requires them to notify the Department of the change. The firm's guide to Form 1022 explains how.
• Addresses must stay current. A request that goes to an old email or postal address is still treated as received in many cases. An applicant who moves must update their details.

A missed request is one of the avoidable causes of refusal. An applicant who receives a request for Protection Visa 866 police checks and cannot meet the deadline should tell the Department before the deadline passes, explain why, and provide evidence that the certificate has been applied for.

Common mistakes with Protection Visa 866 police checks

The same mistakes with Protection Visa 866 police checks appear again and again. Most of them are easy to avoid once they are known.

• Obtaining the wrong AFP certificate. A Standard Disclosure certificate, or a check obtained for employment purposes, is not accepted. The Department may ask for a new one, which adds time.
• Missing a third country. An applicant who lived in a country for more than 12 months since turning 16 and does not provide a certificate from it leaves a gap that the Department will ask about.
• Contacting the feared country. This is the most serious mistake. It is never required and can cause real harm.
• Providing an altered or incomplete copy. A certificate must be provided as issued. A cropped scan, a missing page or an unofficial translation invites questions about authenticity.
• Letting a certificate go out of date. Where a decision is some time away, a certificate may need to be replaced. Waiting until the Department asks, and then missing its deadline, is avoidable.
• Forgetting family members. Every applicant aged 17 or older needs their own Protection Visa 866 police checks. An adult child who turned 17 during processing needs one too.
• Not disclosing a conviction first. A conviction that first appears on a certificate is far more damaging than one disclosed and explained in the application.

Each of these mistakes can be avoided by preparing the Protection Visa 866 police checks as a planned part of the application rather than as a last-minute task.

Police checks and the rest of the protection application

Police checks do not win or lose a protection claim on their own. They sit within a much larger application that includes identity documents, the statement of claims, country information and the interview. The firm's protection visa documents checklist sets out the full set of documents.

What Protection Visa 866 police checks can do is delay a decision, raise a character question that could have been managed, or undermine credibility. Each of those outcomes is avoidable with preparation. Where a refusal does occur, the time to seek review is short and strictly applied. The firm's page on protection visa refusals explains the next steps.

How My Migration Lawyers manages Protection Visa 866 police checks

My Migration Lawyers manages Protection Visa 866 police checks as part of the whole protection matter, not as a separate administrative task. The firm acts in many protection visa matters, including complex cases where an applicant has lived in several countries, has a past conviction, or cannot obtain a certificate from a third country. It is capable of handling each of those situations from lodgement through to review.

In a typical matter, the firm:

• works out which Protection Visa 866 police checks each applicant needs, based on an accurate residence history;
• advises on how to obtain the AFP National Police Check correctly and checks the certificate before it is provided;
• identifies the issuing authority for each third country and the safest way to make the request;
• prepares a written explanation, with evidence of attempts, where a certificate cannot be obtained;
• ensures that every character answer in the application is consistent with what the certificates will show; and
• tracks and responds to Department requests for updated certificates within the time allowed.

The firm presents the applicant's own account and evidence in the form the law requires, and the applicant decides which claims are advanced. The firm's protection work is led by Principal Lawyer Weiwei Zhang. More about the practice is on the protection visa lawyers page, and the full framework of the visa is set out in the Subclass 866 Protection Visa complete guide.

If you are unsure which Protection Visa 866 police checks you need, or you have received a request you cannot meet, book a consultation with My Migration Lawyers online, or call 1300 040 300.