Protection Visa 866 Requirements

The Protection Visa 866 requirements for families decide who can be protected together. A spouse or de facto partner, dependent children and certain dependent relatives in Australia can apply with the main applicant. If the main applicant meets the protection criterion and is granted the visa, family members who are members of the same family unit can be granted the visa too, even without their own claims. But the rules on timing, dependency and presence in Australia are strict. This article explains the Protection Visa 866 requirements for family members and secondary applicants.

Families often make decisions that affect each other's protection without realising it. A partner who applies too late, a child left out of the application, or a family member who travels overseas can lose the ability to rely on the main applicant's grant. The Protection Visa 866 requirements set out below explain how to avoid those outcomes. A shorter summary of who can be included appears in the Subclass 866 eligibility guide.

What are the Protection Visa 866 requirements for family members?

The Protection Visa 866 requirements for family members are, in summary:

• Be a member of the family unit. Under regulation 1.12(4), this includes the main applicant's spouse or de facto partner, their dependent children, and certain other dependent relatives.
• Apply in time. The family member must apply before the main applicant's visa is granted. Section 91WB is strict about this.
• Be in Australia. Under section 36(2) and clause 866.411, only applicants in Australia can be granted the visa.
• Be a member of the same family unit at the time of decision. Under section 36(2)(b) or (c) and clause 866.221(3), the family member must be a member of the same family unit of a person who meets the protection criterion and has been granted the visa.
• Meet the other criteria. Each family member must satisfy the security, character, health and public interest requirements in their own right.

These Protection Visa 866 requirements sit alongside the main criteria for the visa, which are explained in the complete guide to the Subclass 866 protection visa and on the Subclass 866 protection visa page.

Who is a member of the family unit for a protection visa?

A member of the family unit is defined in regulation 1.12 of the Migration Regulations 1994. For protection visa applicants, the Department's guidelines explain that regulation 1.12(4) provides that a person is a member of the family unit of another person, called the family head, if they are:

• the spouse or de facto partner of the family head;
• a dependent child of the family head, or of the family head's spouse or de facto partner;
• a dependent child of a dependent child of the family head or of their partner; or
• a relative of the family head or of their partner who does not have a spouse or de facto partner, is usually resident in the family head's household, and is dependent on the family head.

The last category is wider than many people expect. It can include, for example, an unmarried adult relative who lives with and depends on the family head. But dependency must be real.

What dependent means

Regulation 1.05A(2) defines dependent for protection visa purposes. A person is dependent on another if they are wholly or substantially reliant on that person for financial, psychological or physical support. The guidelines explain that psychological dependency means real reliance for support with a person's outlook or mental state. It is not enough that the relationship is close or that the person's presence makes the other feel well.

Who is the family head

The term family head is not defined in the Act or the Regulations. The guidelines explain that the family head does not have to be a protection visa applicant, does not have to be in Australia, and does not have to be the person with the strongest claims. The officer considers the family's circumstances. Who is treated as the family head can affect which family members meet the definition, so this should be considered before the application is lodged. Getting this wrong is one of the less obvious ways the Protection Visa 866 requirements are missed, because a relative who is dependent on one family member may not be dependent on another.

Member of the same family unit: a wider concept

The Protection Visa 866 requirements use a second, wider term: member of the same family unit. It is defined in section 5(1) of the Migration Act. Two people are members of the same family unit if either is a member of the family unit of the other, or if each is a member of the family unit of a third person.

The guidelines give an example. Two siblings may not be members of each other's family unit. But if both are members of their mother's family unit, all three are members of the same family unit. They may have lodged separate applications, but they can be assessed together so that the family receives a consistent outcome. The guidelines note that the definition was made broader to lead to greater consistency where more than one family member applies.

How families apply: combined and separate applications

Under item 1401(3)(c) of Schedule 1 to the Regulations, a person claiming to be a member of the family unit of a protection visa applicant may apply at the same time and place as that person, in a combined application. The guidelines explain that only one visa application charge is payable for the combined application.

At the time of application, clause 866.211(3) requires the family member only to claim to be a member of the same family unit of another applicant who makes protection claims. The Department does not decide whether the relationship exists at that stage. That is decided at the time of decision.

Family members can also lodge separate applications. The guidelines state that separately lodged family members can still be assessed as members of the same family unit if other family members have undecided applications. Each person nonetheless remains a separate applicant, with their own assessment, their own decision letter and their own review rights.

One of the Protection Visa 866 requirements that families overlook is the option for a family member to make their own claims. A partner or adult child who has their own reasons to fear harm should state them. The guidelines confirm that family members in a combined application do not need to withdraw in order to be considered in their own right. If the main applicant's claim fails, a family member's own claim may still succeed. Stating individual claims is not a sign of weakness in the main claim. It is simply a way of making sure the Protection Visa 866 requirements are tested for each person on every available basis, rather than for the family as a whole on one basis only. It is also why the Protection Visa 866 requirements for families should be assessed person by person before lodgement.

When a family member can rely on the main applicant's grant

A family member who does not have their own claims can meet the Protection Visa 866 requirements through the main applicant. Under section 36(2)(b), a family member of a person who is a refugee can be granted the visa. Under section 36(2)(c), the same applies to a family member of a person who meets the complementary protection test. Clause 866.221(3) requires that the other person has been granted a Subclass 866 visa.

The guidelines explain that if one family member is found to engage protection obligations and meets the other criteria, the claims of the others do not need to be assessed. Their membership of the same family unit is enough, provided they also satisfy the security and character requirements in sections 36(1B) and 36(1C) and the other criteria.

Section 91WB: the timing rule

Section 91WB is one of the strictest Protection Visa 866 requirements for families. To be granted a protection visa as a member of the same family unit of a protection visa holder, the family member must have applied for the same class of visa before that person's visa was granted.

The guidelines give two examples of people who cannot rely on the relationship:

• a person who becomes the spouse of a protection visa holder after the grant; and
• a person who was the spouse before the grant but did not apply until after it.

Those people would need to make their own protection claims, or consider another visa pathway. This is why family circumstances, including new relationships, should be raised before the main application is decided.

If the relationship is doubted

If the officer doubts the claimed relationship, the guidelines allow the officer to request more information under section 56 and require adverse information to be put to the applicant under section 57. If the officer is still not satisfied, the applicant should be told, and may then make their own claims or provide more evidence. Relationship evidence, such as marriage certificates, birth certificates and evidence of living together or financial support, should be included from the start.

Evidence of family relationships for the Protection Visa 866 requirements

Evidence of family relationships is how the Protection Visa 866 requirements for family members are proved. The Department does not accept a relationship simply because it is claimed. At the time of decision, the officer must be satisfied that each person is a member of the same family unit.

For a spouse, the guidelines explain that section 12 of the Migration Act applies the recognition rules in the Marriage Act 1961, and that sections 5F and 5CB define spouse and de facto partner. A de facto relationship generally requires a mutual commitment to a shared life to the exclusion of all others, a genuine and continuing relationship, and living together or not living separately on a permanent basis. Evidence of the relationship should therefore show those features, not just a claim that it exists.

The evidence usually includes:

• Marriage certificates and, where relevant, evidence that the marriage is recognised in Australia.
• Birth certificates for children, showing each parent.
• Evidence of living together, such as leases, bills or letters at the same address.
• Evidence of dependency for adult relatives, such as evidence of financial support, living arrangements and the relative's own circumstances.
• Explanations where documents cannot be obtained, particularly where records are held by authorities the family fears.

The protection visa documents checklist lists the documents usually provided, and the guide to evidence in a protection visa application explains how evidence is assessed. Documents not in English should be translated by a NAATI accredited translator. Family evidence that is inconsistent with earlier visa applications, for example a spouse who was not declared in a visitor visa application, should be explained at lodgement.

Adding family members before a decision

Some family members can be added to an application after it is lodged but before it is decided. The guidelines set out the rules.

Children born in Australia: regulation 2.08

Under regulation 2.08, a child born in Australia to a parent with an undecided protection visa application is generally taken to have applied for the same visa on the date of birth. The child's application is combined with the parent's. No separate form is needed, but the guidelines state it is policy for the parent to lodge Form 1022 and provide a birth certificate. Regulation 2.08 does not apply to adopted children, or to a child subject to an application bar.

Each child is an applicant in their own right. The guidelines note that even if the parent is on a refusal pathway, findings on all criteria are still required for the child. Clause 866.230 provides that a child to whom regulation 2.08 applies must be a member of the same family unit of an applicant who meets the protection criterion and has been granted the visa.

Partners and dependent children: regulation 2.08A

Under regulation 2.08A, the main applicant may ask to add a partner or dependent child to an undecided permanent protection visa application. The partner or child must meet the Schedule 1 validity requirements, the additional applicant charge must be paid, and the original application must not yet have been decided. No application bar can apply to the person being added.

Family members who are outside Australia

Presence in Australia is one of the non-negotiable Protection Visa 866 requirements. Under section 36(2) and clause 866.411, only applicants who are in Australia can be granted the visa. The guidelines state that if the main applicant is granted the visa, a family member who applied but is not in Australia at the time of decision will not meet the criteria as a member of the same family unit.

This has two practical effects. First, family members overseas cannot be included in a Subclass 866 application at all, because the application must be made in Australia. Second, a family member who is in Australia and included in the application must stay in Australia until the decision. A trip overseas at the wrong time can mean that family member is left out of the grant.

Family members overseas may need to consider other pathways after the main applicant is granted the visa. Those options depend on the family member's circumstances and should be assessed separately.

Children and unaccompanied minors

The Protection Visa 866 requirements apply to children with some additional protections. The guidelines state that the best interests of the child is a primary consideration in actions concerning children, and that applications by unaccompanied minors are given high processing priority. Children should be interviewed by experienced officers where possible.

Where a child does not meet the criteria in their own right, and cannot be granted the visa as a member of the same family unit because their application was made after the parent's application was decided, the guidelines require the case to be referred to the Department's protection visa help desk before a refusal. The guidelines describe this as supporting the Department's objective to keep families together. That is a policy safeguard, not a right, and it is far better to include children correctly from the start.

Withdrawals and changes in family circumstances

Changes in family circumstances must be reported. Section 104 of the Migration Act requires applicants to notify the Department as soon as practicable of changes in circumstances relating to information in their application. Births, marriages, separations and changes in who lives in the household can all affect the Protection Visa 866 requirements for family members. The guide to Form 1022 explains how changes are reported.

A family member who wants to be assessed separately does not need to withdraw. The guidelines explain that family members in a combined application can be considered in their own right, with separate assessment, notification and review rights, without withdrawing. Withdrawing an application has consequences, including for the associated bridging visa, and should never be done without advice.

Common mistakes with the Protection Visa 866 requirements for families

The most common mistakes with the Protection Visa 866 requirements for families are avoidable if they are identified before lodgement.

• Leaving a partner or child out. A family member who is not included, and does not apply before the main applicant's grant, cannot rely on the relationship because of section 91WB.
• Not declaring family members consistently. A partner or child who was not disclosed in an earlier visa application will raise questions. The reason should be explained.
• Assuming a close relative is dependent. An adult relative must be wholly or substantially reliant on the family head. A close relationship alone does not meet the Protection Visa 866 requirements.
• Not stating a family member's own claims. If the main applicant's claim fails, a family member who relied only on the relationship will usually be refused.
• Travelling at the wrong time. A family member who is overseas at the time of decision cannot be granted the visa.

Each of these mistakes can leave a family member without protection while others are granted it. Checking the Protection Visa 866 requirements for every family member, not only the main applicant, is essential. The definitive guide to the protection visa sets out other common errors in protection applications.

If the family's application is refused

If the main applicant is refused, a family member who relied only on the relationship will usually also be refused, because there is no granted family member to rely on. A family member with their own claims will have those claims assessed.

Each family member receives their own refusal notice and has their own review rights. The guidelines state that the officer must explain each family member's review rights, because they may differ. Review by the Administrative Review Tribunal must be applied for within a short and strictly applied time limit. The protection visa refusals page and the Subclass 866 refusal and ART guide explain the process.

How My Migration Lawyers applies the Protection Visa 866 requirements to families

My Migration Lawyers applies the Protection Visa 866 requirements to the whole family before an application is lodged, so that each person is included correctly and no one is left without protection. The firm deals with complex protection matters and acts in many Subclass 866 applications involving partners, children, dependent relatives and families who have lodged separately. It is capable of handling family matters of this kind from lodgement to decision and review.

The work includes:

• Mapping the family unit. The firm identifies who can be included, who is dependent, and who should be treated as the family head.
• Timing. The firm makes sure every family member who needs to rely on the main applicant applies before any grant, and raises new relationships or births promptly.
• Individual claims. Family members with their own reasons to fear harm are given the opportunity to state them. Each statement is the person's own account, reviewed and corrected by them, and each person decides which claims are advanced.
• Relationship evidence. Marriage, birth, cohabitation and dependency evidence is prepared so the relationship is accepted.
• Presence in Australia. The firm advises the family on the risks of travel while the application is undecided.

The firm is led by Principal Lawyer Weiwei Zhang and acts for families across Australia through its protection visa lawyers practice.

If your family needs advice on the Protection Visa 866 requirements, book a consultation with My Migration Lawyers online, or call 1300 040 300.