Am I Eligible for a Protection Visa? What to Check Before Applying

Am I eligible for a protection visa in Australia?

A person is eligible for a Subclass 866 protection visa only if they are in Australia and engage Australia's protection obligations, either as a refugee under section 36(2)(a) of the Migration Act 1958 or under complementary protection in section 36(2)(aa). Those are the two grounds. There is no third one, and no general power to grant the visa because a person's situation is difficult or because returning home would be unwelcome.

Eligibility has two separate layers, and most applications that fail do so because only the first layer was considered. The first layer is whether the application can validly be made at all. That is governed by the application bars in the Migration Act and by the requirements for a valid application. The second layer is whether the criteria in Schedule 2 to the Migration Regulations 1994 are met at the time of decision. For the Subclass 866 protection visa those criteria sit in clauses 866.221 to 866.232, and protection obligations are only the first of them.

Only one of the two protection grounds needs to be satisfied. An applicant does not have to choose between them, and a claim should be put on both where the facts support both. The refugee criterion and the complementary protection criterion ask different questions, use different definitions and are decided on different tests, so a set of facts that fails one can still succeed under the other. Framing a claim as a refugee claim alone, when the facts fit complementary protection better, discards half of the available argument before the application is lodged.

The rest of this article sets out what to check, in the order a lawyer checks it: whether an application can be made, what the two protection tests actually require, what does not qualify, and what else has to be satisfied before a visa can be granted. Anyone weighing up an application should work through all four before lodging anything, because a protection visa application is not a low risk step. A refusal is recorded permanently and it closes off a second attempt. Protection visa lawyers exist for this assessment as much as for the application itself.

Who can apply for a Subclass 866 protection visa?

The Subclass 866 protection visa is for people who are already in Australia and who arrived legally on a valid visa. The Department of Home Affairs describes the visa in exactly those terms. A person outside Australia cannot apply for it, and clause 866.411 of the Migration Regulations requires the applicant to be in Australia when the visa is granted, not only when it is lodged.

What has happened to a person's immigration status since arrival matters far less than most applicants assume. The common assumptions are wrong in three specific ways, and the delay caused by those assumptions does real damage.

A no further stay condition does not prevent a protection visa application. Condition 8503 in Schedule 8 to the Migration Regulations states that the holder will not, after entering Australia, be entitled to be granted a substantive visa other than a protection visa while the holder remains in Australia. The exception for protection visas is written into the condition itself. Conditions 8534 and 8535, which appear on many student visas, carve out protection visas in the same way. No waiver is needed and there is no need to leave Australia. What those conditions do block is an onshore partner, student or skilled visa application, which is what a waiver is for.

The section 48 bar does not prevent a protection visa application either. Section 48 stops a person in Australia without a substantive visa, who has had a visa refused or cancelled since last entering, from applying for most visas. Protection visas are one of the limited classes that remain available. A refused student visa or a cancelled visitor visa therefore does not close this pathway.

Current visa status does not decide the question. Student visa holders, visitor visa holders, working holiday makers, sponsored workers and bridging visa holders can all lodge a protection visa application. So can a person who has already become unlawful because a visa expired, although the consequences for bridging visa entitlements and for work rights are very different in that case and the urgency is much higher.

An applicant can include members of the same family unit in the same application. Under clause 866.221(3), a member of the same family unit of a person who satisfies clause 866.221(2) and is granted a Subclass 866 visa can be granted the visa on that basis, without having to establish protection claims of their own. Family members who are not included, whether they are in Australia or overseas, still have to be declared in the application form.

There is a hard warning that belongs with all of this, and it is better said plainly than softly. The fact that a protection visa is the only application a person can still make is not a reason to make one. An application lodged because every other door has closed, rather than because the person genuinely fears return, will be refused, will remain on the immigration record permanently, and will trigger the bar described in the next section.

What can stop a protection visa application before it starts?

Three barriers can stop a protection visa application before the claim is ever assessed, and each one should be checked at the first consultation rather than after lodgement.

The section 48A bar is the most important of them. Under section 48A(1) of the Migration Act, a person who has previously applied for a protection visa of any class and been refused cannot make a further valid protection visa application while they remain in the migration zone. Under section 48A(1B), the same applies to a person whose protection visa was cancelled. The bar operates even if the person holds a substantive visa at the time of the later application. Only the Minister can lift it, using the personal and non compellable power in section 48B, and the Minister has no duty even to consider exercising that power. The practical consequence is the single most important point in this article: a weak first application is not a free attempt. It is the end of the road.

The section 46A bar applies to people who arrived in Australia as unauthorised maritime arrivals. Under section 46A(1) they cannot make a valid application for any visa, including any class of protection visa, while they are in Australia as an unlawful non-citizen or as the holder of certain prescribed temporary visas. The Minister may lift that bar under section 46A(2), and the lifting must be for a specified class of visa. Length of residence in Australia does not affect this bar.

Identity is the third barrier, and it is the one that is most often left until the interview. Sections 91W and 91WA deal with evidence of identity, nationality and citizenship. If an applicant is asked for documentary evidence of identity and refuses to provide it, or provides a bogus document, and has no reasonable explanation, the decision maker must draw an unfavourable inference about the applicant's credibility. Public interest criterion 4020(2A) separately requires the decision maker to be satisfied of the applicant's identity. People who left their country in a hurry, or who travelled on documents obtained irregularly, very often have an entirely reasonable explanation. That explanation has to be put on the record early and in writing, not discovered by the Department first.

What does the refugee criterion in section 36(2)(a) require?

The refugee criterion requires the applicant to be a refugee as defined in section 5H(1) of the Migration Act, which means a person who is outside their country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. For a person with no country of nationality, the question is asked about the country of former habitual residence. That country is called the receiving country.

Section 5J sets out what a well-founded fear of persecution means, and it has three elements that all have to be met. The applicant must fear being persecuted for at least one of five reasons: race, religion, nationality, membership of a particular social group, or political opinion. There must be a real chance of that persecution occurring. The real chance must relate to all areas of the receiving country. Sections 5K and 5L govern when a group counts as a particular social group, including family as a social group.

Two statutory provisions then take the claim away again, and they decide a large number of real cases.

Under section 5J(2), an applicant is taken not to have a well-founded fear of persecution if effective protection measures are available in the receiving country. Section 5LA defines those measures as protection that could be provided by the state, or by a party or organisation including an international organisation, where that state, party or organisation is willing and able to offer it. Where the feared harm comes from a family, a community, a gang or a militia rather than from the government, the claim has to address why the authorities are unable or unwilling to protect the applicant.

Under section 5J(3), an applicant is taken not to have a well-founded fear if they could take reasonable steps to modify their behaviour to avoid the persecution. That provision has limits written into it. A modification does not count if it would conflict with a characteristic fundamental to the person's identity or conscience, or if it would require the person to conceal an innate or immutable characteristic. This is why claims based on religion, political opinion, sexual orientation or gender identity are not answered by telling an applicant to be discreet. The same reasoning applies to internal relocation. A finding that a person could be safe elsewhere in the country cannot rest on that safety depending on concealment.

Section 5J(4) then defines what persecution is. One or more of the five reasons must be the essential and significant reason for the persecution. The persecution must involve serious harm. It must also involve systematic and discriminatory conduct, which means selective targeting rather than random violence or generalised disorder.

Section 5J(5) gives a non-exhaustive list of what may amount to serious harm. It includes a threat to the person's life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services where that denial threatens the person's capacity to subsist, and denial of the capacity to earn a livelihood of any kind where that denial threatens the person's capacity to subsist.

Discrimination on its own is usually not enough. Social disapproval, family rejection, being passed over for work and being insulted will not normally meet the threshold when taken one incident at a time. They can be cumulative. A sustained pattern of discrimination that together denies a person the ability to work, to obtain healthcare and to live safely can cross into persecution even where no single incident would. That is an argument that has to be built out of country information and a detailed chronology, not asserted.

One further provision catches applicants who become active after arriving in Australia. Under section 5J(6), conduct engaged in by the applicant in Australia is disregarded unless the decision maker is satisfied that the person engaged in it otherwise than for the purpose of strengthening a protection claim. Genuine conversion, genuine political activity and genuine public association are not defeated by this provision, but they have to be evidenced as genuine.

Finally, section 5H(2) excludes a person from the refugee definition where there are serious reasons for considering that they have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations.

How does complementary protection under section 36(2)(aa) work?

Complementary protection applies where a person is not a refugee but there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia to the receiving country, there is a real risk that they will suffer significant harm. No Convention reason is required. The harm does not have to be inflicted for reasons of race, religion, nationality, political opinion or membership of a particular social group, which is why this ground catches claims the refugee definition cannot reach.

Significant harm is defined exhaustively in section 36(2A). A non-citizen will suffer significant harm if they will be arbitrarily deprived of their life, if the death penalty will be carried out on them, or if they will be subjected to torture, to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. The last three terms are each defined in section 5(1) of the Act. The list is closed. Harm that falls outside it does not qualify, however serious it is in ordinary language.

The threshold is a real risk, not a probability. A risk well below fifty per cent can meet it. Applicants routinely assume they must prove that harm is more likely than not, and that assumption causes claims to be understated.

Section 36(2B) then removes the risk in three situations. There is taken to be no real risk where it would be reasonable for the applicant to relocate to an area of the country in which there would not be a real risk of significant harm, where the applicant could obtain protection from an authority of the country such that there would not be a real risk, or where the risk is one faced by the population of the country generally and is not faced by the applicant personally. The third of those defeats claims based on war, crime waves and general instability. The risk has to be personal.

There is one more filter that applies to both grounds. Under section 36(3), Australia is taken not to have protection obligations to a person who has not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia, including a country of which the person is a national. Sections 36(4) to 36(7) qualify that rule where the person has a well-founded fear of persecution or a real risk of significant harm in that third country, or fears being returned from it. Dual nationality, permanent residence elsewhere and a right of return to a former country of residence therefore have to be disclosed and addressed, not left out. This is discussed further on the page on complementary protection claims.

What is not a protection claim?

Hardship is not the test, and this is where genuine, sympathetic cases are lost. The Migration Act protects people from defined categories of harm for defined reasons. It does not provide a remedy for every serious difficulty a person would face on return.

Poverty and unemployment are not persecution or significant harm on their own. Economic hardship only counts under section 5J(5) where it is significant and threatens the person's capacity to subsist, and the complementary protection definitions in section 36(2A) are not intended to cover violations of socio-economic rights such as the right to earn a living or the right to housing.

Generalised violence is not enough by itself. A civil conflict, a high crime rate or unstable policing affects everyone in a country, and section 36(2B)(c) removes the real risk where it is faced by the population generally rather than by the applicant personally. The claim has to explain what makes this applicant a target.

The absence of medical treatment is rarely significant harm. Where removal would shorten a person's life because treatment available in Australia is not available at home, that is ordinarily not an arbitrary deprivation of life, because the deprivation arises from natural causes.

Harm caused by the removal itself does not count. Separation from a partner, from children or from a community in Australia is harm that arises from leaving Australia, not from the receiving country, and it falls outside the complementary protection criterion. Those facts may matter in other visa applications, and they may matter to the Minister in a request for intervention, but they are not a protection claim.

Prosecution is not persecution. A person facing an ordinary criminal charge at home, prosecuted under a law of general application and given a normal process, is not for that reason a refugee. The position changes where the law itself is discriminatory, where the punishment is grossly disproportionate, or where the process is a pretext.

What else has to be satisfied before a Subclass 866 visa can be granted?

Protection obligations are only one of the criteria in Schedule 2, and an applicant who engages them can still be refused. The time of decision criteria for the Subclass 866 visa sit in clauses 866.221 to 866.232, and they are checked in addition to clause 866.221(2).

The health criteria are in clauses 866.223 to 866.224B. Medical examinations are required for protection visa applicants, and family members included in the application are examined as well.

The public interest criteria are in clause 866.225. Clause 866.225(a) requires public interest criterion 4001, which is the character test in section 501(6) of the Migration Act, and public interest criterion 4003A, which concerns association with the proliferation of weapons of mass destruction. Clause 866.225(b) requires public interest criterion 4019, the Australian values statement, for applicants who were aged at least 18 on the date of application. Penal clearances are ordinarily required from Australia and from any other country in which the applicant has lived for more than twelve months since turning 16, other than the country from which protection is claimed.

Many online guides still list public interest criterion 4002, the security criterion, as a requirement for a protection visa. That is out of date. After the High Court decision in Plaintiff M47/2012 v Director General of Security, public interest criterion 4002 was removed from the protection visa criteria in December 2014, and the security requirement now sits in sections 36(1A) and 36(1B) of the Migration Act instead. Section 36(1C) separately prevents grant where there are reasonable grounds for considering that the applicant is a danger to Australia's security, or has been convicted by final judgment of a particularly serious crime and is a danger to the Australian community.

Character and security issues in a protection matter are not the same as character issues in an ordinary visa application, and they need to be identified before lodgement rather than after. An applicant with a criminal history, a prior adverse finding or a complicated immigration record should raise it at the first meeting.

What should be checked before lodging a protection visa application?

Six things should be checked before a protection visa application is lodged, and all of them are cheaper to resolve before lodgement than after.

Whether an application can validly be made. That means checking for an earlier protection visa refusal or cancellation and the section 48A bar, and for the section 46A bar.

Whether the claim fits one of the two grounds. The account has to be tested against section 5J and section 36(2A) as they are written, not against a general sense of danger.

Whether the account is consistent with what has already been told to the Department. An account given now that differs from the reason for travel recorded in an earlier student or visitor visa application will be put to the applicant, and the difference has to be explained in the application rather than at the protection visa interview.

Whether identity can be established. Passports, national identity documents, birth records and, where documents are unavailable, a consistent and detailed account of the applicant's life.

Whether the country information supports the claim. Departmental country information reports and other credible sources are what turn a personal account into an assessable claim, particularly for claims based on religion, political opinion, sexual orientation or gender identity.

Whether the timing creates risk. Visa expiry, work rights, bridging visa entitlements and travel plans all change depending on when the application is lodged, and a person who leaves Australia while an application is pending cannot be granted the visa while outside the country.

How My Migration Lawyers assesses protection visa eligibility

My Migration Lawyers assesses eligibility before an application is prepared, not after it is lodged. The firm acts for people who are already in Australia and who are deciding whether a Subclass 866 application is open to them and whether their circumstances meet the tests in the Migration Act.

The assessment is deliberately structured. We check the application bars first, because they decide whether there is anything to prepare. We then test the applicant's own account against the refugee criterion in section 36(2)(a) and the complementary protection criterion in section 36(2)(aa), and we advise which of them the facts support and why. Where the facts support both, both are advanced. We identify the parts of the account that a delegate will question, including anything inconsistent with an earlier visa application, and we address those matters in writing at the outset.

The claim remains the client's own. We present the client's account and the evidence in the form the law requires, using the statutory language a decision maker has to apply. The statement of claims is the client's own evidence, reviewed and corrected by the client before it is lodged, and the client decides which claims are advanced. Where we consider a claim is not supported by the law, we say so, in writing, before anything is lodged. A protection visa refusal is permanent on the record and it engages the section 48A bar, so advice that a claim is weak is worth more than an application that is filed anyway.

Protection matters at My Migration Lawyers are handled by Weiwei Zhang, Principal Lawyer. The firm also acts on protection visa refusals and Administrative Review Tribunal review, where the deadline to apply for review is short and strictly applied, and on claims based on religious persecution and on sexual orientation and gender identity. Consultations are conducted by video anywhere in Australia and can be requested online.