Protection Visa Requirements Australia

The protection visa requirements Australia applies to onshore applicants start with one rule: the applicant must be in Australia. The Subclass 866 visa is for people already here who fear returning to their country. Beyond that, the application must be valid, the applicant must not be caught by an application bar, and the claims must meet the refugee or complementary protection test. This article explains the protection visa requirements Australia imposes on people applying from inside the country, and the practical rules that decide whether an application can even be made.

Many people searching for protection visa requirements Australia wide are already in the country on a visitor visa, a student visa or a visa that has expired. The questions they need answered first are practical. Can I apply from here? Does it matter how I arrived? Does it matter that my visa has ended? What happens if I have applied before? Those questions are answered below.

What are the protection visa requirements Australia sets for onshore applicants?

The protection visa requirements Australia sets for onshore applicants are, in summary:

• Be in Australia. The application must be made in Australia, by a person who is in Australia. Clause 866.411 also requires the applicant to be in Australia when the visa is granted.
• Have arrived in a way that allows a Subclass 866 application. Under item 1401(3)(d) of Schedule 1, unauthorised maritime arrivals and people who arrived without a visa or were not immigration cleared generally cannot apply for a Subclass 866 visa.
• Not be caught by an application bar. The bars in sections 46A, 48A and 91K of the Migration Act can prevent a valid application.
• Make a valid application. The application must be lodged in the approved manner, with the charge paid, at least the bare bones of a claim, a residential address and any required personal identifiers.
• Meet the protection criterion. The applicant must be a refugee, meet the complementary protection test, or be a member of the same family unit of a person who does.
• Meet security, character and health criteria. These apply at the time of decision.

The first four of these protection visa requirements Australia applies at the application stage. They are the focus of this article. The protection criterion is explained in the complete guide to the Subclass 866 protection visa, and the firm's work in these matters is described on the Subclass 866 protection visa page.

Why the Subclass 866 visa is only for people in Australia

The Subclass 866 visa is only for people in Australia because it is the visa for the onshore component of Australia's Humanitarian Program. The Department's guidelines describe the program as having two parts. The onshore component offers protection to people in Australia who engage Australia's protection obligations. The offshore component offers resettlement to people outside Australia who need humanitarian help, through different visas and a different process.

Australia's protection obligations are obligations of non-refoulement. They are obligations not to return a person to a place where there are substantial grounds for believing they would face a real risk of certain types of harm. Those obligations arise under the Refugee Convention and its 1967 Protocol, the Convention Against Torture, and the International Covenant on Civil and Political Rights. The Migration Act gives effect to them through the refugee criterion in section 36(2)(a) and the complementary protection criterion in section 36(2)(aa).

The practical result is simple. A person overseas cannot apply for a Subclass 866 visa. A person in Australia who leaves while their application is being processed cannot be granted the visa while they are away. Most bridging visas held by applicants also end when the holder departs. Among the protection visa requirements Australia imposes, physical presence is the one that applies from the first day to the last.

Does it matter how you arrived in Australia?

Yes. How a person arrived is one of the most important protection visa requirements Australia applies to the Subclass 866 visa.

Item 1401(3)(d) of Schedule 1 to the Regulations provides that unauthorised maritime arrivals who arrived on or after 16 December 2014, and other people who did not hold a visa in effect or were not immigration cleared when they arrived, cannot make a valid application for a Subclass 866 permanent protection visa. The Department's guidelines explain that these people may only be able to apply for a temporary protection visa, and that separate rules, including the section 46A bar for unauthorised maritime arrivals, apply to them.

Most people who apply for a Subclass 866 visa arrived lawfully. They entered on a visitor visa, a student visa, a working holiday visa, a work visa or another temporary visa, and passed through immigration clearance at an airport. For those people, arrival is not a barrier. The guides to applying on a tourist visa and as an international student deal with the questions these applicants most often ask.

Does a right to live in another country affect the protection visa requirements Australia applies?

Yes. A right to enter and live in another country can defeat a claim, even where the applicant fears harm in their own country. This is one of the protection visa requirements Australia applies that applicants rarely think about.

Section 36(3) of the Migration Act provides that Australia is taken not to have protection obligations to a person who has a right to enter and reside, temporarily or permanently, in another country, including another country of which they are a national, and who has not taken all possible steps to use that right. Section 36(6) provides that nationality of another country is decided by that country's law.

There are exceptions in sections 36(4), 36(5) and 36(5A). The rule does not apply to a country where the person would face persecution or significant harm, or from which they would be sent on to a country where they would face that harm. People with dual nationality, permanent residence elsewhere or a right to live in a spouse's country should have this issue assessed before applying. It is one of the protection visa requirements Australia checks as part of every assessment.

Can you apply for a protection visa in Australia if your visa has expired?

Yes. The protection visa requirements Australia sets do not include holding a current visa at the time of application. A person who arrived lawfully and whose visa has since expired can generally still make a valid Subclass 866 application, provided no bar applies.

However, two practical consequences follow. The first is status. A person whose visa has expired is an unlawful non-citizen until they are granted a bridging visa. The Form 866 application also operates as an application for a bridging visa, but the type of bridging visa and its conditions depend on the person's circumstances. A person who applies while still holding a substantive visa is usually in a better position than one who applies after it has expired.

The second is credibility. The Department's guidelines list delay in applying for protection as a factor that may be taken into account in assessing credibility. A person who stayed in Australia for a long time, or let their visa expire, before seeking protection may be asked to explain why. There can be good reasons. They must be explained clearly. The guide on whether delaying a Subclass 866 application affects the claim explains how delay is assessed.

The bridging visa that comes with a protection visa application

A protection visa application in Australia is also an application for a bridging visa. The Department's guidelines explain that Form 866 is a prescribed form for a bridging visa, so a person who applies for a protection visa in Australia also makes an associated bridging visa application. Understanding that bridging visa is part of understanding the protection visa requirements Australia applies in practice, because it sets the applicant's status while they wait.

Which bridging visa follows depends on the applicant's status at the time of application.

• A person who holds a substantive visa when they apply will usually be granted a Bridging A visa. It generally comes into effect when the substantive visa ends. The Bridging A visa guidelines state that, for a protection visa applicant whose application has not been finally determined, the no-work condition cannot be imposed on the Bridging A visa.
• A person who has no visa when they apply may be granted a Bridging E visa. The guidelines state that a no-work condition generally applies to a Bridging E visa granted in these circumstances unless an exception applies. A protection visa applicant who wants that condition removed must generally show both a compelling need to work and an acceptable reason for the delay in applying.

This is one of the clearest practical reasons to apply while a substantive visa is still held. The difference can affect an applicant's ability to support themselves for the whole period the application is being processed. The guides to bridging visas in Australia and the Bridging A visa explain the conditions in detail. Bridging visa rules are technical, and the protection visa requirements Australia sets should always be considered together with the bridging visa the applicant is likely to receive.

Application bars: who cannot apply in Australia

Some people in Australia cannot make a valid protection visa application at all. These bars are among the protection visa requirements Australia enforces most strictly, because a barred application is invalid and is not assessed.

Section 48A: an earlier protection visa refusal

Under section 48A of the Migration Act, a person who has applied for and been refused a protection visa while in Australia cannot make a further protection visa application while they remain in Australia. The guidelines note that this applies even if the person holds a substantive visa. Section 48A also applies to a person whose protection visa was cancelled. Only the Minister can lift the bar, personally, under section 48B, and the Minister has no duty to consider doing so.

The guidelines explain that a person who has been refused and then leaves Australia and returns is generally no longer caught by section 48A, subject to limited exceptions. But for a person who remains in Australia, the first protection visa application is usually the only one.

Section 46A: unauthorised maritime arrivals

Section 46A bars an unauthorised maritime arrival who is in Australia, and who is an unlawful non-citizen or holds certain visas, from making a valid visa application unless the Minister lifts the bar.

Section 91K: former Temporary Safe Haven visa holders

Section 91K bars certain former holders of Temporary Safe Haven visas from making a further visa application unless the Minister lifts the bar. The guidelines note that the bar does not apply if the person has left Australia since that visa ceased.

The Subclass 866 eligibility guide explains how to identify whether any of these bars applies.

What makes an application valid

An application that is not caught by a bar must still meet the validity requirements. These are the technical protection visa requirements Australia applies before any assessment of the claims begins.

• Manner of lodgement. The application must be made in the manner specified by legislative instrument. In practice, it is lodged online through ImmiAccount unless the Department has authorised a paper application in writing. The guide to creating an ImmiAccount explains the process.
• The visa application charge. Under section 46(1)(ba), the charge prescribed in Schedule 1 must be paid. Family members who claim to be members of the applicant's family unit may apply in a combined application, with only one charge payable.
• Substantial compliance with the form. Regulation 2.07 requires the form to be completed in accordance with its directions. The guidelines explain that substantial compliance is enough, but the application must include at least the bare bones of a claim. An application with no claims is invalid.
• A residential address. Under regulation 2.07(4), the applicant must give a residential address. There is no power to waive this requirement. The guidelines allow flexibility, for example accepting the address of a shelter or of a friend with whom the applicant is staying.
• Personal identifiers. The Department may require the applicant to provide personal identifiers, such as a photograph or signature, under section 257A. The guidelines state that a failure to comply with that requirement will result in the application being invalid.

If an application is invalid, section 47(3) provides that it cannot be considered. Section 47(4) provides that a finding of invalidity is not a refusal. That means it is not a decision the Administrative Review Tribunal can review.

What the application must contain to meet the protection visa requirements Australia sets

Meeting the validity rules only gets an application in the door. To meet the protection visa requirements Australia sets at the time of decision, the application must also contain the claims and evidence the Department will assess.

Under section 5AAA of the Migration Act, the applicant is responsible for specifying all particulars of the claim and for providing sufficient evidence to establish it. The Department has no obligation to establish the claim for the applicant. In practice, this means the application should contain:

• A detailed statement of claims. The applicant's own account of who they fear, what has happened, why they would be targeted, and why they cannot be protected or relocate safely. The statement of claims guide explains its structure.
• Identity evidence. Passport, national identity documents and other evidence of identity and nationality, translated where needed. Sections 91W and 91WA impose strict rules on identity documents.
• Supporting evidence. Documents, witness statements and other material that support the claims. The protection visa documents checklist lists what is usually provided.
• Family members. Any spouse, de facto partner or dependent child in Australia who wishes to be included.

Protection visa requirements Australia applies to family members

The protection visa requirements Australia applies to family members allow a family to apply together, but only if each person is in Australia.

Under item 1401 of Schedule 1, a person claiming to be a member of the family unit of a protection visa applicant may apply at the same time and in the same application. The Department's guidelines explain that a member of the family unit for protection visa purposes includes the applicant's spouse or de facto partner, their dependent children, and certain other relatives who have no partner of their own, usually live in the applicant's household and are dependent on the applicant.

At the time of decision, a family member who does not have their own claims can be granted the visa as a member of the same family unit of a person who meets the protection criterion and has been granted the visa. Section 91WB requires the family member to have applied before that person's visa was granted. A family member who is outside Australia at the time of decision cannot be granted the visa. A child born in Australia after the parent has applied is generally taken to have applied for the same visa.

These rules mean the family's circumstances should be settled before lodgement. A partner or child who is left out, or who applies too late, may not be able to rely on the main applicant's grant.

Common misunderstandings about protection visa requirements in Australia

Several misunderstandings about protection visa requirements Australia imposes lead people to wait when they should act, or act when they should wait.

• "I can apply from overseas." No. The Subclass 866 visa can only be applied for in Australia.
• "I cannot apply because my visa has expired." Usually wrong. A person who arrived lawfully can generally apply after their visa expires, although delay may need to be explained.
• "If I am refused, I can simply apply again." Usually wrong. Section 48A generally prevents a second application while the person remains in Australia.
• "Lodging a basic application now is enough." Risky. A thin application is valid if it contains the bare bones of a claim, but it is weak, and later detail may be treated as a changed account.
• "I need a lawyer to lodge." No. There is no requirement to be represented. But the application is often the only one the person will make, so legal advice before lodgement is valuable.

What happens if an application does not meet the protection visa requirements Australia sets?

If an application does not meet the validity requirements, the Department will treat it as invalid. The guidelines state that if the invalidity can be fixed quickly and easily, such as an unpaid charge, the applicant should be given a chance to fix it. An application that cannot be fixed is invalid and cannot be reviewed by the Tribunal.

If the application is valid but the applicant does not meet the protection criterion or another time of decision requirement, the visa will be refused. A refusal can generally be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied. The protection visa refusals page explains the next steps.

How My Migration Lawyers checks the protection visa requirements Australia sets before you apply

My Migration Lawyers checks the protection visa requirements Australia sets before an application is lodged, so that the applicant does not lose their one opportunity to apply on a technical point. The firm deals with complex protection matters and acts in many Subclass 866 applications, including for people on visitor and student visas, people whose visas have expired and people with earlier visa refusals. It is capable of handling matters of this kind from assessment to decision.

Before lodgement, the firm:

• Confirms eligibility to apply. It checks how the applicant arrived and whether any bar applies, using the applicant's visa and travel history, which the firm obtains itself where possible.
• Advises on timing and status. It explains the effect of applying before or after a visa expires, and the bridging visa that is likely to follow.
• Prepares a valid and complete application. The statement of claims is the applicant's own account, reviewed and corrected by the applicant, and the applicant decides which claims are advanced.
• Includes family correctly. It identifies who can be included in a combined application.

The firm is led by Principal Lawyer Weiwei Zhang and acts for applicants across Australia through its protection visa lawyers practice, with consultations by video.

If you are in Australia and need to know whether you meet the protection visa requirements Australia sets, book a consultation with My Migration Lawyers online, or call 1300 040 300.