Protection Visa Checklist

A protection visa checklist is a series of questions to answer before deciding to apply for a Subclass 866 protection visa. It is not only a list of documents. The most important items on a protection visa checklist are the decisions: whether the fear is a protection claim under Australian law, whether now is the right time to apply, and what the applicant gives up by applying.

This protection visa checklist is written for people in Australia on a visitor visa, student visa, working holiday visa or other temporary visa, and for people whose visa has already expired. It takes them through each decision in order. Readers who have already decided to apply should also use the protection visa documents checklist.

What is a protection visa checklist for?

A protection visa checklist is for making a decision that is difficult to reverse. Once a protection visa application is lodged, the applicant's immigration history is reviewed, their claims are recorded, and, if the visa is refused, section 48A of the Migration Act usually prevents another protection visa application while they remain in Australia. The Department's guidelines state that the bar applies even if the person holds a substantive visa at the time.

That is why the protection visa checklist starts with the claim, not the paperwork. A person who lodges without a genuine protection claim does not gain time or options. They usually lose them. A person who has a genuine claim, but lodges it badly, may lose the only chance they have to present it in Australia.

This protection visa checklist has seven steps:

• Is the fear a protection claim?
• Can the applicant apply from where they are?
• What happens to the current visa and daily life?
• When is the right time to lodge?
• What does the applicant give up by applying?
• Who else is affected?
• Is the applicant ready to prove the claim?

Protection visa checklist step 1: is the fear a protection claim?

The first step of the protection visa checklist is to decide whether the fear falls within Australian protection law. A Subclass 866 protection visa can be granted on one of two grounds.

The refugee ground

Under section 36(2)(a) of the Migration Act, the applicant must be a refugee. In summary, they must have a well-founded fear of persecution for one of five reasons: race, religion, nationality, membership of a particular social group or political opinion. Section 5J(4)(a) requires the reason to be the essential and significant reason for the persecution. The persecution must involve serious harm and systematic and discriminatory conduct.

Complementary protection

Under section 36(2)(aa), a person may be protected if there are substantial grounds for believing there is a real risk they will suffer significant harm if returned. Significant harm includes being arbitrarily deprived of life, the death penalty, torture, and cruel, inhuman or degrading treatment or punishment. A Convention reason is not required. The complementary protection page explains this ground.

What is usually not a protection claim

Some fears, however real, usually fall outside both grounds:

• Economic hardship alone. Poverty, unemployment or a lack of opportunity at home, without more, is not persecution for a Convention reason.
• General violence faced by the whole population. Under the complementary protection test, a risk faced by the population of the country generally, and not by the applicant personally, is not enough.
• Private disputes without a protection dimension. A dispute with a business partner or neighbour may not engage protection obligations unless there is a Convention reason, or the harm is significant harm that the authorities will not prevent.
• A wish to stay in Australia. Family, work or study in Australia may be strong reasons to want to stay, but they are not protection claims.

Where a claim does fall within the law, it must also survive two further questions: whether the authorities in the home country can protect the applicant, and whether the applicant could relocate safely to another part of that country. The protection visa eligibility guide explains these tests further.

Protection visa checklist step 2: can you apply from where you are?

The second step of the protection visa checklist is validity. A Subclass 866 application can only be made in Australia. The Department's information states that the applicant must have arrived holding a visa that was in effect and been immigration cleared on arrival. Unauthorised maritime arrivals cannot apply unless the Minister lifts the bar. A person previously refused a protection visa in Australia is usually barred by section 48A.

Many things that people fear do not prevent an application. A no further stay condition such as condition 8503 does not prevent a protection visa application. Holding a visitor or student visa does not prevent one. An expired visa does not prevent one either, although it changes the bridging visa position. The Subclass 866 protection visa page sets out the validity rules in full.

Protection visa checklist step 3: what happens to your current visa and daily life?

The third step of the protection visa checklist is to understand what changes after lodgement. Lodging a valid protection visa application does not cancel the visa the applicant currently holds. That visa continues on its own terms until it expires. A bridging visa is usually granted at the same time as the application and comes into effect when the substantive visa ends.

The bridging visa then governs the applicant's daily life while the application is processed. The key points are:

• Which bridging visa. A person who lodges while holding a substantive visa will usually be granted a Bridging visa A. A person who lodges after their visa has expired is usually unlawful and may be granted a Bridging visa E.
• Work rights. Work rights depend on the bridging visa and its conditions, not on the protection application itself. A Bridging visa E may carry a no work condition. The Department's guidance allows a Bridging visa E holder who has applied for protection to seek permission to work, but only with evidence of a compelling need to work and an acceptable reason for the delay in applying.
• Travel. Most bridging visas do not permit travel. A Subclass 866 visa can only be granted while the applicant is in Australia.
• Current visa conditions. While the original visa remains in effect, its conditions still apply. A student, for example, must continue to meet the conditions of their student visa until it ends.

The guides to bridging visas in Australia and to the Bridging visa A explain these rules in more detail. For visitor visa holders, the guide to applying for a Subclass 866 protection visa on a tourist visa covers their specific position. Students should read the guide for international students applying for a Subclass 866 protection visa.

Protection visa checklist step 4: when is the right time to lodge?

The fourth step of the protection visa checklist is timing. In most cases, the right time is before the current visa expires, once the claim has been properly prepared.

Timing matters for three reasons.

• The bridging visa. Lodging while holding a substantive visa usually leads to a Bridging visa A with better conditions than a Bridging visa E.
• Credibility. The Department's guidelines state that a delay in lodging may be taken into account in assessing credibility, depending on the reasons for it. They list reasons that may explain delay, including changed conditions at home, fear, and incorrect advice, and state that delay should not be the only reason for rejecting a claim. The explanation must still be given. The guide on whether delay affects a Subclass 866 claim explains how this is assessed.
• Preparation. Lodging too quickly, with a short statement, can be as damaging as lodging too late. Detail added later can look like a changed account.

The balance is to prepare the claim fully, but without unnecessary delay. For a person whose visa is about to expire, that usually means obtaining advice immediately rather than waiting.

Claims that arose after the applicant came to Australia need particular care. For the refugee ground, section 5J(6) requires the Department to disregard conduct in Australia engaged in for the sole purpose of strengthening the claim. Evidence that the conduct is genuine is essential.

Protection visa checklist step 5: what do you give up by applying?

The fifth step of the protection visa checklist is the one most often skipped. Applying has consequences, and the applicant should understand them before lodging.

• One opportunity. Because of section 48A, a refusal usually ends the ability to make another protection visa application while in Australia. Only the Minister can lift the bar under section 48B.
• Full scrutiny of immigration history. The Department compares the protection application with every earlier visa application, travel records and other information it holds. Earlier statements about the purpose of travel, employment or family will be tested against the protection claim.
• Travel home. Travelling to the home country while the application is pending can be treated as evidence that the applicant does not fear harm there. After a protection visa is granted, the Department's information states that travel to the country from which protection was granted is restricted by condition 8559, and that use of a passport from the country of nationality may lead the Department to consider that the person no longer needs protection.
• Other visa plans. An applicant who is also considering another visa should obtain advice on how a protection application interacts with that plan before lodging.

None of these consequences is a reason not to apply if the claim is genuine. They are reasons to apply properly.

A protection visa checklist for people whose visa has already expired

A person whose visa has already expired is usually an unlawful non-citizen, and this protection visa checklist applies to them with extra urgency. An expired visa does not prevent a protection visa application, provided the other validity requirements are met. The person is still exposed to detention and removal while they remain unlawful, so the decision should not wait.

For this group, the protection visa checklist adds three points:

• The bridging visa. A protection visa application lodged while unlawful usually leads to a Bridging visa E. Its conditions may prevent work until permission is obtained.
• The reason for delay. To obtain permission to work, the Department's guidance requires an acceptable reason for the delay in applying, including why the person did not apply while they still held a substantive visa. The same delay may also be raised when the claim is assessed. The reason should be explained honestly and clearly from the start.
• Earlier dealings with the Department. A person who has been unlawful may have had contact with the Department, for example a compliance interview or a request to depart. What was said in those dealings forms part of the record and will be compared with the protection claim.

A person in this position should obtain advice immediately. The claim still needs to be properly prepared, but the risks of delay are higher than for someone who still holds a visa.

Protection visa checklist step 6: who else is affected?

The sixth step of the protection visa checklist looks at family. Members of the same family unit who are in Australia, such as a spouse or de facto partner and dependent children, can be included in the application. Each family member included must provide evidence of their relationship to the main applicant.

Section 91WB provides that a person can only be granted a protection visa on the basis of being a member of the same family unit of a protection visa holder if they applied before that person's visa was granted. The Department allows a spouse or dependent child in Australia to be added after lodgement using Form 1436, but only before a decision is made. Family members outside Australia cannot be included in an onshore application, but their details must be disclosed in the form.

Family members may also have their own protection claims. Where they do, those claims should be identified and set out, not left to rest on the main applicant's claim alone.

Protection visa checklist step 7: are you ready to prove the claim?

The seventh step of the protection visa checklist is readiness. Section 5AAA of the Migration Act makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it. The Department has no obligation to build the claim for the applicant.

Being ready means:

• A full account. The applicant can explain, in detail, what happened, who caused it, why, what they fear, why the authorities cannot protect them and why they cannot relocate. The statement of claims guide explains what the account must contain.
• Consistency. The account matches the applicant's earlier visa applications and travel history, or any difference is explained.
• Identity. Genuine identity documents are available, or their absence can be explained. Under section 91W, the Department may require documentary evidence of identity.
• Supporting evidence. Available documents, witness statements, expert reports and country information have been gathered and translated. The guide to evidence in a protection visa application explains what supports a claim.

Documents are not required for every event. The Department's guidelines state that there is no requirement for a claim to be supported by independent evidence before it can be accepted. The account itself must still be strong.

Who should not apply for a protection visa?

A person who does not have a protection claim should not apply for a protection visa. That includes people whose only reasons for wanting to stay are work, study, family in Australia or economic hardship at home.

The consequences of an application without a genuine claim are serious. The application will usually be refused. The applicant will then usually be barred by section 48A from making another protection visa application in Australia. Their immigration history will have been examined in detail, and any inconsistency may affect their credibility in other dealings with the Department. Anyone who suggests lodging a protection visa only to obtain a bridging visa or work rights is suggesting a course that exposes the applicant to real harm.

A person with a genuine claim, by contrast, should not be discouraged by the complexity of the process. The law provides a pathway for them. The task is to use it properly.

What to bring when you get advice on the protection visa checklist

A first consultation is most useful when the applicant brings the information the lawyer needs to work through this protection visa checklist. The most useful items are:

• Passport and identity documents, including any national identity card or birth certificate that is readily available.
• Current visa details, so that the expiry date and conditions can be confirmed. The firm can check visa status itself using the passport details.
• A short written outline of what happened and what the applicant fears, in their own language if that is easier. It does not need to be polished. It is a starting point for the full account.
• Details of family members in Australia and overseas.
• Any documents already held that relate to the claim, such as photographs, messages or letters.

The applicant does not need old visa application forms or copies of every earlier dealing with the Department. Where that history matters, it can usually be obtained. What matters most at the first stage is an honest account of why the applicant cannot return home.

The protection visa checklist in short

This protection visa checklist can be summarised in seven questions:

• Claim. Does the fear fall within the refugee ground or complementary protection?
• Validity. Is the applicant in Australia, did they arrive on a visa and were they immigration cleared, and have they never been refused a protection visa in Australia?
• Daily life. Does the applicant understand what bridging visa they will receive, and what it means for work and travel?
• Timing. Can the claim be prepared and lodged before the current visa expires?
• Consequences. Does the applicant understand that this is usually a single opportunity?
• Family. Are family members in Australia included, and are their own claims identified?
• Readiness. Is the account complete, consistent and supported where possible?

If the answer to any of these questions is unclear, that is the point at which advice is needed. If a protection visa has already been refused, the protection visa refusals page explains the review options. The time limit to apply for review is short and strictly applied.

How My Migration Lawyers helps with the protection visa checklist

My Migration Lawyers works through this protection visa checklist with people who are deciding whether to apply, and prepares and lodges the application where there is a genuine claim. The firm deals with complex protection matters, acts in many protection visa matters of this exact type, including applicants on visitor and student visas and applicants whose visa has already expired, and is capable of handling them from the first consultation to decision and review.

At the first consultation, the firm:

• assesses whether the fear is a protection claim under the refugee ground or complementary protection, and says plainly if it is not;
• checks validity and bars, including any earlier protection application, using the applicant's visa and travel history, which the firm obtains itself where possible;
• advises on timing and the bridging visa, including work rights;
• explains the consequences of applying, including section 48A; and
• sets out what is needed to prepare the claim, including the account, identity evidence and supporting evidence.

Where the applicant proceeds, the firm takes the applicant's account in detail and presents it as the applicant's own evidence, reviewed and corrected by them. The applicant decides which claims are advanced. My Migration Lawyers is led by Principal Lawyer Weiwei Zhang, and its protection visa lawyers act for applicants across Australia.

If you are working through this protection visa checklist and any answer is uncertain, obtain advice before you lodge. Book a consultation with My Migration Lawyers online, or call 1300 040 300.