Protection Visa Information

Protection Visa Information: Which Protection Visa Applies?

The first piece of protection visa information any person needs is which visa applies to them, and the answer depends on where the person is and how they arrived in Australia. A person in Australia who arrived holding a visa that was in effect and was immigration cleared is considered for the permanent Subclass 866 Protection visa. A person who arrived without a valid visa, or who was not immigration cleared, is considered only for a temporary protection visa. A person outside Australia cannot apply for an onshore protection visa at all.

This distinction shapes everything else. It decides whether the visa is permanent or temporary, whether a valid application can be made, and what rights the person has while the application is decided. Much of the protection visa information published online treats all protection visas as one visa. They are not.

This article explains the different protection visas, who is considered for each, the legal test they share, and the bars that can prevent an application. For a full guide to the permanent visa, see our Subclass 866 Protection visa page and our definitive guide to the protection visa in Australia.

The Permanent Protection Visa (Subclass 866)

The Subclass 866 Protection visa is the permanent protection visa for people who apply in Australia after arriving lawfully. It sits in Class XA of Schedule 1 to the Migration Regulations 1994. The holder becomes an Australian permanent resident on the day the visa is granted.

Protection visa information on the Subclass 866 visa usually begins with three threshold requirements.

• Presence in Australia. The applicant, and every family member included in the application, must be in Australia when the application is lodged. Clause 866.411 also requires the applicant to be in Australia when the visa is granted.
• Lawful arrival and immigration clearance. The applicant must have arrived holding a visa that was in effect and must have been immigration cleared, as defined in section 172 of the Migration Act 1958. The Department of Home Affairs states that a person whose visa was cancelled on arrival, or who was detained on arrival, has not been immigration cleared.
• No application bar. No bar under the Migration Act 1958 may apply, unless the Minister has lifted it.

Many Subclass 866 applicants arrived on a visitor visa, a student visa or a work visa. A visitor visa with condition 8503 does not prevent a protection visa application, because the condition itself excludes protection visas. Our guides on applying for a Subclass 866 Protection visa on a tourist visa and on permanent protection visa eligibility explain these requirements in detail.

The holder of a Subclass 866 visa can live, work and study in Australia permanently, access Medicare, and become an Australian citizen if eligible. Condition 8559 prohibits the holder from entering the country from which protection was granted without the Department's written approval given before travel. That condition is essential protection visa information for every applicant who hopes to visit family in the future.

Temporary Protection Visas (Subclass 785) and Safe Haven Enterprise Visas (Subclass 790)

A person who did not arrive holding a valid visa, or who was not immigration cleared, cannot be granted a permanent Subclass 866 visa and is considered only for a temporary protection visa. There are two temporary protection visas. The Temporary Protection visa (Subclass 785) is in Class XD. The Safe Haven Enterprise visa (Subclass 790) is in Class XE.

Form 866 confirms how this works in practice. The same form is used for a permanent protection visa and for an initial Temporary Protection visa or Safe Haven Enterprise visa application. When lodged, the application is taken to be an application for only one of these classes, depending on the applicant's eligibility. An applicant who wishes to be considered for a Safe Haven Enterprise visa must sign the declaration in the form about intending to work or study in regional Australia.

This protection visa information matters most to people who arrived by boat or who arrived by air but were not immigration cleared. Section 46A of the Migration Act 1958 prevents an unauthorised maritime arrival from making a valid visa application while in Australia unless the Minister personally decides to lift the bar. Form 866 also describes unauthorised air arrivals and offshore entry persons as affected by application bars.

The position of people who already hold a Temporary Protection visa or a Safe Haven Enterprise visa is different again. Some holders may be eligible to apply for a permanent Resolution of Status visa (Subclass 851), and subsequent temporary protection applications are made on a different form. Holders in this situation should obtain advice on their own circumstances, because protection visa information for first-time applicants does not apply to them.

The practical differences between the permanent and temporary visas are significant. A temporary protection visa is granted for a limited period, and the holder's future depends on further applications. Form 866 explains that a Safe Haven Enterprise visa holder who works or studies in regional Australia for a required part of the visa period, without receiving certain social security benefits, may become eligible to apply for certain other onshore visas, other than a permanent protection visa. That pathway has its own detailed rules. Protection visa information that does not distinguish between these visas can therefore mislead an applicant about what a grant will actually mean for them and their family.

Protection Visa Information for People Outside Australia

A person outside Australia cannot apply for a Subclass 866, 785 or 790 visa, because each of those visas requires the applicant to be in Australia. The pathway for people outside Australia is the offshore Humanitarian Program, which is a separate group of visas with separate criteria and processes.

Offshore humanitarian visas include the Refugee category visas, such as the Refugee visa (Subclass 200), and the Special Humanitarian Program, including the Global Special Humanitarian visa (Subclass 202). The Special Humanitarian Program allows a person in Australia to propose a family member or another person overseas who is subject to substantial discrimination amounting to a gross violation of human rights. The Department of Home Affairs states that a holder of a Subclass 866 visa can sponsor eligible family members for permanent residence through the offshore Humanitarian Program.

This is protection visa information that many families misunderstand. A family member overseas cannot be included in a Subclass 866 application, and a grant to the applicant in Australia does not give that family member an automatic right to enter Australia. The Form 866 declaration says so expressly. Families should plan for this before an application is lodged, and should understand that an offshore application is assessed on its own merits.

The Legal Test Is the Same for Every Onshore Protection Visa

Whichever onshore protection visa applies, the applicant must satisfy the same core test in section 36 of the Migration Act 1958. The difference between the visas lies in the applicant's arrival and status, not in the protection claim. Understanding this test is the most important protection visa information after the question of which visa applies.

The refugee criterion

Under section 36(2)(a), the applicant must be a refugee as defined in section 5H. A refugee is a person outside their country who has a well-founded fear of persecution there. Under section 5J, there must be a real chance of persecution involving serious harm and systematic and discriminatory conduct, for one of five reasons: race, religion, nationality, membership of a particular social group or political opinion. The real chance of persecution must relate to all areas of the country, and effective protection from the authorities must not be available. Claims based on religious persecution and on sexual orientation or gender identity are common examples.

The complementary protection criterion

Under section 36(2)(aa), protection is owed where there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, there is a real risk the applicant will suffer significant harm. Significant harm is defined in section 36(2A). It includes arbitrary deprivation of life, the death penalty, torture, and cruel, inhuman or degrading treatment or punishment. No Convention reason is needed. Section 36(2B) excludes risks that could be avoided by relocation, risks against which the authorities can protect, and risks faced by the population generally. Our page on complementary protection explains the test.

Family members

A member of the same family unit as a person who meets either criterion can also be granted the visa, without their own claims, provided they meet the other requirements.

Security, character, identity and health

Every protection visa applicant must also satisfy the security and character provisions in sections 36(1B) and 36(1C), the identity provisions in sections 91W and 91WA, and the health and public interest criteria in the Regulations. A strong protection claim does not overcome a failure on any of these.

Protection Visa Information on Application Bars

An application bar prevents a valid protection visa application from being made, and a person affected by a bar cannot overcome it by lodging anyway. Form 866 lists the circumstances in which a bar applies. Accurate protection visa information on bars is essential before any application is prepared.

• An earlier protection visa refusal or cancellation. Section 48A prevents a further protection visa application where a protection visa application has been refused, or a protection visa cancelled, since the person last entered Australia.
• Unauthorised arrival. An unauthorised maritime arrival is barred by section 46A unless the Minister lifts the bar. Other arrivals who were not immigration cleared are considered only for a temporary protection visa.
• Dual nationality. Form 866 lists being a national of two or more countries as a bar.
• Protection in a safe third country. Form 866 lists having protection in a prescribed safe third country as a bar.
• An earlier Temporary Safe Haven visa. Form 866 lists having held a Temporary Safe Haven (Class UJ) visa as a bar.

The Minister can lift a bar if it is in the public interest, and the Department advises affected persons. An applicant cannot waive a bar, and an invalid application gives the applicant nothing. A finding that an application is invalid is not a refusal decision that the Administrative Review Tribunal can review.

Protection Visa Information on Claims and Evidence

Whichever protection visa applies, the application succeeds or fails on the applicant's claims and the evidence that supports them. Section 5AAA of the Migration Act 1958 makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it. The Department is not required to build the case on the applicant's behalf, and it may decide the application on the information provided at lodgement.

The core of the application is the applicant's own account of why they fear returning. It should explain what happened, who was responsible, why the applicant was targeted, whether the authorities could help, and whether the applicant could live safely elsewhere in the country. It must be consistent with every other part of the application and with the applicant's earlier visa applications. Our guide to the protection visa statement of claims explains how that account is structured.

Supporting evidence can include police or medical records, threats received, witness letters, membership records and country information. A lack of documents does not automatically defeat a claim, because many applicants leave without papers, but gaps should be explained. Our guide to evidence in a protection visa application explains what carries weight. This protection visa information applies equally to permanent and temporary protection visa applicants, because the legal test is the same.

Protection Visa Information on Bridging Visas and Work Rights

A protection visa applicant may be granted a bridging visa that keeps them lawful while the application is decided, and the kind of bridging visa depends on the applicant's status when they applied. The Department states that the type of bridging visa, and whether the applicant can work, depends on a number of factors.

In general terms, an applicant who lodges while holding a substantive visa is in a stronger position than one who lodges after the visa has expired. Form 866 advises applicants who hold a valid visa to lodge before it expires, because a person who becomes unlawful may be detained. Our guide to bridging visas in Australia explains the different bridging visas and their conditions. This part of the protection visa information picture has immediate practical consequences for housing, work and family life while the application is decided.

Protection Visa Information on When to Apply

A protection visa application should be lodged once the claims and evidence are properly prepared, and before the applicant's current visa expires wherever possible. Both parts of that protection visa information matter.

Lodging too late can harm the applicant in two ways. A person who becomes unlawful before applying is usually in a weaker bridging visa position and may be detained. A long delay between arrival and application can also be treated as inconsistent with a genuine fear of returning home. The delay does not defeat a claim automatically, but the reason for it must be explained. Our article on whether delaying a Subclass 866 application affects the claim explains how decision makers assess delay.

Lodging too early, with incomplete claims, carries a different risk. The Department may decide the application on what was lodged, and claims added later are often doubted. Section 48A then generally prevents a fresh start. Good protection visa information on timing therefore balances urgency against preparation, with the applicant's current visa expiry date as the practical deadline.

What Happens After a Protection Visa Refusal?

If the Department refuses a protection visa, the usual next step is an application to the Administrative Review Tribunal for merits review, and the time limit for that application is short and strictly applied. The refusal letter states the reasons, the review rights and the deadline. The deadline runs from notification, and a late application generally cannot be accepted.

Because section 48A generally prevents a second protection visa application, the Tribunal review is usually the most important remaining step. The Tribunal considers the case afresh and can hear evidence from the applicant. If the Tribunal affirms the refusal, the remaining options are narrow. Judicial review is available only for legal error, not to argue the facts again. The Minister also has limited personal powers to intervene in some cases after a Tribunal decision, but those powers are non-compellable and are not a substitute for a properly prepared case.

Our pages on protection visa refusals, on the ART review of a Subclass 866 refusal and on judicial review explain each step. This protection visa information is relevant from the start, because the strength of the first application shapes every later option.

Common Errors in Online Protection Visa Information

A great deal of protection visa information online is general, out of date or written for a different country's system. The errors most likely to harm an applicant in Australia are these.

• Treating every protection visa as permanent. Only the Subclass 866 visa is permanent from grant. Temporary protection visas are granted for a limited period.
• Assuming that anyone in Australia can apply for the Subclass 866 visa. The arrival and immigration clearance requirements decide which visa is available.
• Assuming that family overseas can be included. They cannot. The offshore Humanitarian Program is a separate process.
• Assuming that a second application is possible. Section 48A generally prevents it.
• Assuming that a general fear of crime or hardship is enough. Both legal tests are demanding and are applied strictly.
• Relying on promises of a guaranteed outcome. No one can guarantee a protection visa. The Department's own Form 866 warns applicants about people who make such promises.

Reliable protection visa information comes from the Migration Act 1958, the Migration Regulations 1994, the Department and the Tribunal, applied to the individual applicant. Our protection visa FAQs answer many of the questions applicants ask most often, and our guide on when a protection visa lawyer is needed explains the points at which legal advice matters most.

How to Check Which Protection Visa Pathway Applies

The right pathway can usually be identified by answering a small number of questions before anything is lodged. Each answer changes the protection visa information that applies.

• Where is the person now? A person outside Australia is limited to the offshore Humanitarian Program.
• How did the person last arrive in Australia? Arrival with a visa in effect and immigration clearance points to the Subclass 866 visa. Arrival without a visa, or without immigration clearance, points to a temporary protection visa or to a bar.
• Has any protection visa been refused or cancelled since that arrival? If so, section 48A applies.
• Does any other bar apply? Dual nationality, protection in a safe third country and an earlier Temporary Safe Haven visa must be checked.
• What are the claims? The claims must be assessed against the refugee criterion and the complementary protection criterion.
• What is the person's current visa status? This affects the bridging visa and the urgency of lodging.

Our guide to protection visa eligibility works through these questions in more detail.

How My Migration Lawyers Advises on the Right Protection Visa Pathway

My Migration Lawyers acts in many protection visa matters and regularly handles complex cases, including applicants with uncertain arrival histories, earlier refusals, dual nationality questions, expiring visas and family members both in Australia and overseas. When a person asks the firm for protection visa information, the firm's first task is to identify which visa applies to that person and whether a valid application can be made.

• Pathway assessment. We confirm the applicant's arrival, immigration clearance, visa history and any application bar before advising on the visa that applies.
• Claims assessment. We assess the applicant's circumstances against the refugee criterion and the complementary protection criterion, and research the country information that applies.
• The applicant's own account. We take the applicant's account and present it in the form the law requires. The statement is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Status and family planning. We advise on lodging before the current visa expires, on the likely bridging visa, and on what options may exist for family overseas after grant.
• Representation at every stage. We act on the application, the interview and any review.

The practice is led by Principal Lawyer Weiwei Zhang, who acts in protection visa matters for clients across Australia. Consultations are held by video. Our protection visa lawyers page and our complete guide to the Subclass 866 Protection visa explain how the firm acts in these matters.

Protection visa information is only useful when it is applied to the person's own arrival, history and claims. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.