Key Takeaways
- A protection visa for tourists in Australia should be lodged before the tourist visa expires. Lodging while the visa is still in effect gives the applicant a Bridging visa A, and condition 8101 (no work) cannot be imposed on that Bridging visa A.
- A tourist who lodges after the visa has expired is an unlawful non-citizen at the time of application. The bridging visa that follows is generally a Bridging visa E, and condition 8101 must initially be imposed on it.
- To remove the no work condition from a Bridging visa E, a protection visa applicant must show a compelling need to work and an acceptable reason for the delay in applying.
- There is no fixed deadline to apply for a Subclass 866 Protection Visa, and no Schedule 3 criteria apply to protection visa applicants. Delay can still be used to doubt that the fear of harm is genuine.
- A person who waits until the Department locates them is not normally regarded as having an acceptable reason for delay, and an unlawful non-citizen is at risk of detention and removal.
Protection visa for tourists in Australia: why the expiry date decides so much
A protection visa for tourists in Australia can be applied for before or after the tourist visa expires, but the date you lodge changes your bridging visa, your right to work and how the Department views your claims.
A person who holds a visitor visa and fears returning home can apply for a Subclass 866 Protection Visa. The law does not require the person to have come to Australia intending to seek protection. What the law does care about is timing. A protection visa for tourists in Australia lodged one day before the tourist visa expires produces a very different position from the same application lodged one day after.
Before expiry, the applicant stays lawful and receives a Bridging visa A that permits work once it comes into effect. After expiry, the applicant is an unlawful non-citizen, receives a bridging visa with no work rights at first, and must explain the delay. While unlawful and without any application lodged, the person can be detained and removed.
My Migration Lawyers has published a general guide on applying for a Subclass 866 Protection Visa on a tourist visa. This article deals with one question only: how the expiry date of the tourist visa affects a protection visa for tourists in Australia, and what a person should do when that date is close or has already passed.
What happens if you lodge a protection visa for tourists in Australia before your visa expires?
If you lodge a protection visa for tourists in Australia while your tourist visa is still in effect, you are also treated as applying for a Bridging visa A, and that bridging visa keeps you lawful once the tourist visa ends.
Under item 1301 of Schedule 1 to the Migration Regulations 1994, a protection visa application made by the holder of a substantive visa is also an application for a Bridging visa A. The tourist visa is a substantive visa. It does not end on the day you lodge. It continues until its own expiry date.
When the Bridging visa A starts
Clause 010.511 provides that the Bridging visa A does not come into effect while the applicant still holds the substantive visa. It sits behind the tourist visa and takes over when the tourist visa ceases. From that point it keeps the applicant lawful until the protection visa application is finally determined. Our guide to the Bridging visa A explains how it operates in more detail.
Work rights on the Bridging visa A
This is the most important practical difference. Under clause 010.611(1)(b), condition 8101 (no work) cannot be imposed on a Bridging visa A held by a protection visa applicant whose application has not been finally determined. The applicant does not have to prove financial hardship. The compelling need to work test does not apply to a protection visa applicant seeking a Bridging visa A.
For a person who has spent their savings on the trip to Australia, the right to work lawfully while the application is decided is often the difference between being able to stay and being forced to leave. A protection visa for tourists in Australia lodged on time protects that right.
Condition 8503 does not stop the application
Many visitor visas carry condition 8503 (no further stay). That condition prevents the holder from being granted a substantive visa, other than a protection visa, while they remain in Australia. The Department's own policy states that condition 8503 does not prevent the holder from applying for a protection visa. No waiver is needed. A person should never let an 8503 condition delay a protection visa for tourists in Australia until after the visa has expired.
Travel while the application is pending
A Bridging visa A does not permit travel. Clause 866.411 requires the applicant to be in Australia when the protection visa is granted. A person who needs to travel must first obtain a Bridging visa B, and travel to the country the applicant claims to fear is likely to be treated as evidence against the claim.
The full list of criteria for the visa itself is set out on our Subclass 866 Protection Visa page.
What happens if your tourist visa has already expired?
If your tourist visa has already expired, you can still lodge a protection visa application, but you are an unlawful non-citizen when you apply and you will not receive a Bridging visa A.
The Bridging visa A is only available to a person who held a substantive visa when the protection visa application was made. Once the tourist visa has ceased, that route is closed. The bridging visa available after a late protection visa for tourists in Australia is generally a Bridging visa E (Subclass 050).
Condition 8101 on a Bridging visa E
For a Bridging visa E granted to a protection visa applicant, condition 8101 (no work) must initially be imposed, unless the applicant falls within a class specified by the Minister in a legislative instrument. Department policy also sets other conditions as a minimum on an initial Bridging visa E, including a reporting condition and a requirement to notify a change of address.
Getting permission to work later
To be granted a further Bridging visa E without condition 8101, clause 050.212(8) requires a protection visa applicant to show two things. The first is a compelling need to work, which under regulation 1.08 generally means financial hardship. The second is an acceptable reason for the delay in applying for the protection visa. Both must be shown. Financial hardship alone is not enough.
Department policy treats the period of delay as running from arrival in Australia to the date of the protection visa application. The most important part of that period is the time between the expiry of the tourist visa and the lodgement of the application. The reason given should cover all, or almost all, of that period.
Why this matters to a tourist
A tourist who lodges the day before expiry has work rights once the Bridging visa A comes into effect, without any further test. A tourist who lodges the day after expiry must prove hardship and justify the delay before being allowed to work. Nothing about the protection claim itself has changed. Only the date has. Our bridging visas explained guide compares the Bridging visa A and Bridging visa E side by side.
Our protection visa lawyers regularly advise people in both positions. The earlier the advice, the more options remain.
Is there a deadline to apply for a protection visa for tourists in Australia?
No. There is no fixed statutory deadline to apply for a Subclass 866 Protection Visa, but the timing of a protection visa for tourists in Australia still affects the bridging visa and the credibility of the claim.
Many onshore visas are subject to Schedule 3 of the Migration Regulations. Schedule 3 imposes time limits on people who apply without holding a substantive visa. The Department's policy states plainly that no Schedule 3 criteria apply to protection visa applicants, because it would be inappropriate to refuse a visa solely because of unlawful status to a person to whom Australia owes protection obligations.
So a person whose tourist visa expired months ago is not barred from applying for a protection visa for tourists in Australia. A valid application can still be made. The absence of a deadline does not mean the passage of time has no effect. It has two separate effects.
The bridging visa effect
The first effect is on the bridging visa that follows a protection visa for tourists in Australia, explained above. Lodging after expiry means a Bridging visa E with no work rights at first. Lodging long after expiry makes an acceptable reason for delay harder to show.
The credibility effect
The second effect is on the claim itself. A decision maker may ask why a person who says they fear serious harm waited to seek protection. Delay is not decisive on its own. But unexplained delay can be used to doubt that the fear is genuine.
My Migration Lawyers has published a detailed article on how delaying a Subclass 866 Protection Visa application affects your claim. This article does not repeat that analysis. The point for a tourist is simpler. The expiry date of the visa is the one date you control, and a protection visa for tourists in Australia lodged before it avoids the bridging visa problem entirely.
What are the risks of staying in Australia after a tourist visa expires?
A person who stays after their tourist visa expires without lodging any application is an unlawful non-citizen, and an unlawful non-citizen is liable to be detained and removed from Australia.
This is the risk that people considering a protection visa for tourists in Australia most often underestimate. A tourist may believe there is time to think about a protection visa for tourists in Australia after the visa ends. In law, the moment the visa ceases, the person has no permission to be in Australia. There is no grace period.
No lawful status and no work rights
An unlawful non-citizen holds no visa at all. They have no right to work, and any work they do is unlawful. Department policy requires officers to consider the applicant's circumstances and actions during the period of delay when deciding whether to allow work on a later bridging visa.
Detention and removal
An unlawful non-citizen who is located can be taken into immigration detention. A person who has not made a protection visa application, and has no other application pending, can be removed. Removal of a person who fears serious harm is exactly the outcome a protection visa is designed to prevent.
Why lodging changes the position
Once a valid protection visa application is made, the person has a pending application for a visa that can be granted in Australia. That gives a basis for a bridging visa, and a basis to remain while the application is decided. A protection visa for tourists in Australia is therefore not only a visa application. For a person whose visa is about to expire, it is also the step that keeps them lawful.
What happens if the Department locates you before you lodge?
If the Department locates you as an unlawful non-citizen before you have lodged, you can still apply for a protection visa for tourists in Australia, but the delay will be viewed more harshly and you may be detained.
Department policy recognises that a person located by compliance action may be granted a Bridging visa E to await the determination of a substantive visa application or to resolve their status. An officer may grant a Bridging visa E where satisfied that the person will make a valid substantive visa application within a reasonable period.
How the delay is treated
Department policy states that an applicant who is an unlawful non-citizen and has delayed applying for a protection visa until they are located should not normally be regarded as having an acceptable reason for delay. Officers may find that the person delayed in order to remain in Australia for as long as possible rather than for reasons beyond their control. The policy gives, as an example, a person who applies only after being located, and who says their need for protection arose recently. That reason covers only the period shortly before location, so it is not treated as acceptable for the whole delay.
The practical result is that a person located first will usually find it much harder to obtain permission to work on a Bridging visa E. The same facts will also be raised when the credibility of the claim is assessed.
If you are in detention
A person in immigration detention is generally subject to strict time limits under section 195 of the Migration Act for applying for a visa. Department policy indicates that those time limits apply to substantive visa applications other than a protection visa application. A person in detention who fears harm on return should obtain legal advice immediately.
How delay after a tourist visa expires is viewed in the claims
In a protection visa for tourists in Australia, delay after the tourist visa expires is assessed as part of the credibility of the protection claims, and it must be explained in the applicant's own account rather than left for the decision maker to raise.
The Department compares the protection claims with the applicant's conduct. A person who arrived on a visitor visa, stayed past expiry and applied much later will be asked what happened in that time. There are often good answers. Some people did not know the protection system existed. Some were seriously unwell. Some faced new danger only after they arrived, because events changed in their home country. Some were prevented by circumstances beyond their control.
Department policy recognises two broad kinds of acceptable reason for delay for bridging visa purposes. The first is where personal circumstances beyond the applicant's control prevented the application. The second is where the protection claims arise from changes in the home country that happened after arrival and were beyond the applicant's control. The same kinds of explanation are relevant to credibility.
The explanation belongs in the statement of claims
The reason for delay must appear in the protection visa statement of claims itself. It must be accurate, in date order and supported where possible. Medical records, evidence of events in the home country and other documents can support the explanation. Our article on evidence in a protection visa application explains what actually persuades a decision maker.
Our definitive guide to the Subclass 866 visa explains how the whole process fits together. The explanation will also be tested at the protection visa interview. An account that changes between the written claims and the interview causes more damage than the delay itself.
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What to do in the last weeks of a tourist visa
In the last weeks of a tourist visa, a person who fears returning home should get legal advice, gather identity documents, prepare full claims and lodge the protection visa application before the visa expires.
The last weeks are the most valuable period in the whole process. Every step below is easier while the person is still lawful. A protection visa for tourists in Australia prepared in this window can be lodged with full claims and still keep the Bridging visa A and its work rights.
Confirm the exact expiry date and conditions
Confirm the exact date your permission to stay ends and whether the visa carries condition 8503. Condition 8503 does not stop a protection visa application, so it is not a reason to wait.
Get advice before anything is lodged
The first protection visa application usually decides the case. Under section 48A of the Migration Act, a person refused a protection visa generally cannot make a further protection visa application while they remain in Australia. Advice at this stage checks whether the claims engage section 36 of the Act and whether any bar applies. Our article on when you need a protection visa lawyer explains what that review involves.
Gather identity documents
Identity is a threshold issue in every protection visa for tourists in Australia. Under section 91W the Department may request evidence of identity, nationality or citizenship. Collect your passport, national identity card and birth certificate, and any other documents you can obtain. Our protection visa documents checklist sets out what is usually needed.
Prepare the claims in full
Clause 866.211 requires the applicant, at the time of application, to claim to engage Australia's protection obligations and to make claims as to why. A short claim lodged only to beat the expiry date is a serious risk. Details added later are often treated as invented. Our guide to Form 866 explains what the form asks and why short answers cause problems.
Lodge online before the expiry date
Every protection visa for tourists in Australia is lodged online through ImmiAccount. Lodge before the tourist visa ceases, not on the last evening, when a technical problem or a missing document can push the application past midnight.
Stay in Australia
Do not book travel. Clause 866.411 requires you to be in Australia when the visa is granted, and a Bridging visa A does not permit travel.
Common timing mistakes tourists make with a protection visa
The most common timing mistakes are waiting until after the tourist visa expires, lodging a thin claim to beat the deadline, and waiting until the Department makes contact.
Assuming there is time after expiry
There is no grace period for a protection visa for tourists in Australia. The day after expiry, the person is unlawful, loses access to the Bridging visa A and faces the acceptable reason for delay test before they can work.
Treating condition 8503 as a barrier
Condition 8503 does not stop a protection visa application. People who wait for an 8503 waiver they do not need can lose their lawful status while waiting.
Lodging a thin claim at the last minute
Lodging on time matters, but so does lodging properly. A thin protection visa for tourists in Australia lodged at the last minute keeps the Bridging visa A but can lose the case. The answer is to start early enough to do both.
Working after expiry
Working without permission as an unlawful non-citizen is unlawful. The applicant's actions during the period of delay are considered when the Department decides whether there is an acceptable reason for that delay.
Waiting to be located
A person who applies only after being located by the Department is not normally treated as having an acceptable reason for delay. It is always better to act first. If you have already been refused, our page on protection visa refusals explains the review options and the short, strictly applied deadline for the Administrative Review Tribunal.
How My Migration Lawyers handles a protection visa for tourists in Australia
My Migration Lawyers acts in many matters involving a protection visa for tourists in Australia, including urgent cases where the tourist visa is about to expire and cases where it has already expired.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with complex protection matters, including applicants who have become unlawful, applicants who need to explain a long delay, applicants with limited identity documents, and applicants whose claims arose after they arrived in Australia. The firm has the experience to act in these matters and to handle them carefully from the first consultation.
Before the tourist visa expires
When the expiry date is close, My Migration Lawyers works to a timetable that allows the protection visa application to be lodged before the tourist visa ceases. The firm checks for any bar, identifies the legal grounds under section 36 of the Act, and helps the client assemble identity documents and supporting evidence.
The statement of claims is the client's own account. My Migration Lawyers helps the client set it out completely and in order, and presents the client's evidence in the form the law requires. The client reviews and corrects the statement, and the client decides which claims are advanced.
After the tourist visa has expired
Where the tourist visa has already expired, the firm advises on lodging without further delay, on the Bridging visa E, and on whether an application for permission to work can be supported with evidence of a compelling need to work and an acceptable reason for delay. The explanation for delay is built into the claims from the start.
Why timing is the reason to call now
A protection visa for tourists in Australia is shaped by a date on a visa grant notice. Once that date passes, it cannot be undone. A consultation before it passes keeps the most options open.
Book a consultation with My Migration Lawyers through our online booking page. If your tourist visa is about to expire, you can also call 1300 040 300.
Frequently Asked Questions
My tourist visa expires this week. Can I still lodge a protection visa for tourists in Australia in time?
Yes, if the application is lodged online before the visa ceases. Lodging while the tourist visa is still in effect means the protection visa application is also an application for a Bridging visa A, which keeps you lawful after the tourist visa ends. Condition 8101 cannot be imposed on that Bridging visa A. The application must still contain your full protection claims, so the time left should be used to prepare them properly and to lodge before the final day, not in the last hours.
My tourist visa expired a few months ago. Is it too late to apply for protection?
No. There is no fixed deadline to apply for a Subclass 866 Protection Visa, and no Schedule 3 criteria apply to protection visa applicants. You can still make a valid application. However, you will not receive a Bridging visa A. The bridging visa that follows will generally carry a no work condition at first, and to remove it you will need to show financial hardship and an acceptable reason for the delay. The delay should also be explained in your claims.
Can I be detained while I prepare my protection visa application?
Yes, if your tourist visa has expired. An unlawful non-citizen is liable to be detained, and a person with no application pending can be removed. A person whose tourist visa is still in effect is lawful and is not liable to detention as an unlawful non-citizen. This is why the timing of the application matters so much. Once a valid protection visa application has been made, there is a basis for a bridging visa while the application is decided.
The Department contacted me after my visa expired. Can I still apply?
Yes. A person located by the Department as an unlawful non-citizen can still make a protection visa application. Department policy, however, states that a person who delayed until they were located should not normally be regarded as having an acceptable reason for delay. That affects permission to work on a Bridging visa E and may be raised when your claims are assessed. You should obtain legal advice immediately and not delay any further.
Should I apply for another visitor visa instead of a protection visa?
Not if you genuinely fear serious harm on return. A further visitor visa does not address the need for protection, and condition 8503 may prevent it being granted in Australia in any event. Condition 8503 does not prevent a protection visa application. The decision should turn on whether your circumstances engage Australia's protection obligations under section 36 of the Migration Act, which is a question for individual legal advice before your current visa expires.
Weiwei Zhang is the Principal Lawyer and Managing Director of My Migration Lawyers. My Migration Lawyers is one of Australia's leading immigration law firms, dedicated exclusively to Australian immigration law. The firm represents individuals, families and businesses across all areas of migration law, with particular expertise in complex immigration matters, Partner Visas, Protection Visas, corporate migration, visa refusals, Administrative Review Tribunal reviews, judicial reviews and visa cancellations.
