Protection Visa Subclass 866: Character Requirements

Protection Visa Subclass 866: Character Requirements and Convictions in Australia

The Protection Visa Subclass 866 character requirements can lead to refusal where an applicant has been convicted of an offence in Australia, even if the applicant is owed protection. Two separate provisions apply. The first is section 36(1C)(b) of the Migration Act 1958, which excludes a person who has been convicted by final judgment of a particularly serious crime and is a danger to the Australian community. The second is the character test in section 501, which applies through public interest criterion 4001 in clause 866.225 of the Migration Regulations 1994.

The two provisions within the Protection Visa Subclass 866 character requirements work differently. Section 36(1C)(b) is a criterion. If it applies, the visa must be refused. Section 501 involves a discretion. A person who fails the character test may still be granted the visa after the decision maker weighs the relevant considerations. Understanding which provision is engaged, and how, is the starting point for any applicant with a conviction.

This article explains both provisions, the Ministerial Direction that guides discretionary decisions, how to respond when the Department proposes refusal, the consequences of refusal and the review options. It also deals with pending charges. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

Protection Visa Subclass 866: Character Requirements and the Two Tests

The Department's Protection Visa Processing Guidelines set out the order in which the Protection Visa Subclass 866 character requirements are assessed, and that order explains why two separate tests apply. Section 36A requires the decision maker first to assess whether the applicant is a refugee and, if so, whether section 36(1C) is satisfied. If section 36(1C) is not satisfied, the decision maker must go on to assess complementary protection. The guidelines state that it is a policy requirement that all subsections of section 36 are assessed before any character concern is referred for consideration under section 501.

The consequences of each path under the Protection Visa Subclass 866 character requirements differ.

• If section 36(1C) or section 36(2C)(b) applies, the application must be refused under section 65. The guidelines state that it will then not be necessary to consider public interest criterion 4001 or to refer the application for consideration under section 501.
• If section 36 is satisfied but character concerns remain, the application may be referred to the Department's Visa Applicant Character Consideration Unit for possible refusal under section 501(1) or section 501(3).

In both cases, the decision maker will usually have made findings about the protection claim. Those findings matter after any refusal, because a person who is owed protection cannot be removed to the country they fear if a protection finding has been made. Our guide to permanent protection visa eligibility explains how section 36 fits within the criteria as a whole.

Section 36(1C)(b): A Particularly Serious Crime and a Danger to the Community

Section 36(1C)(b) is the part of the Protection Visa Subclass 866 character requirements that deals with the most serious offending. The Department's guidelines state that the ground comprises four components, and that it applies only if all four are established:

• The applicant must have committed a crime.
• The applicant must have been convicted by final judgment of that crime. A conviction under appeal may not yet be final.
• The crime must be particularly serious. The Migration Act 1958 defines what counts as a particularly serious crime by reference to the nature of the offence and its maximum penalty.
• The applicant must be a danger to the Australian community.

The guidelines state expressly that the fact that a person has been convicted by final judgment of a particularly serious crime does not in itself mean that they are a danger to the community. Danger must be assessed on the evidence, looking forward. Evidence of rehabilitation, the time since the offence, the circumstances of the offending, treatment programs completed and the applicant's conduct since release can all be relevant.

Section 36(2C)(b)(ii) contains a mirror provision for complementary protection. A person who falls within section 36(1C)(b) will therefore usually also fail the complementary protection criterion on the same facts.

What Counts as a Particularly Serious Crime?

Whether a crime is "particularly serious" is decided under the definition in the Migration Act 1958, not by the applicant's own view of the offence or by the sentence alone. This is a threshold question under the Protection Visa Subclass 866 character requirements, because section 36(1C)(b) cannot apply unless it is met.

In broad terms, the Act treats a crime as particularly serious if it is a serious Australian offence or a serious foreign offence. A serious Australian offence is an offence against an Australian law that involves violence against a person, a serious drug offence, serious damage to property, or certain offences relating to immigration detention, and that is punishable by imprisonment for life or for a fixed or maximum term of at least three years. A serious foreign offence is defined in a similar way for offences committed overseas.

The consequence is that the maximum penalty for the offence, not the sentence actually imposed, is often decisive at this stage. A person who received a short sentence or a community order for an offence carrying a significant maximum penalty may still have committed a particularly serious crime. That does not end the inquiry, because the decision maker must still be satisfied that the person is a danger to the Australian community. It does mean that the Protection Visa Subclass 866 character requirements can be engaged by offences that the applicant may regard as minor.

Protection Visa Subclass 866: Character Requirements Under Section 501

Where section 36 is satisfied, the Protection Visa Subclass 866 character requirements still require the applicant to satisfy public interest criterion 4001, which applies the character test in section 501(6). A person fails the character test in circumstances that include:

• having a substantial criminal record, which under section 501(7) includes a sentence of imprisonment of 12 months or more, or two or more sentences totalling 12 months or more;
• having been convicted of an offence committed in immigration detention, or of escaping from detention;
• having been convicted or found guilty of a sexually based offence involving a child;
• association with a group, organisation or person that the Minister reasonably suspects has been involved in criminal conduct;
• past and present criminal or general conduct showing that the person is not of good character; and
• a significant risk of future criminal conduct, or of harassing, endangering or inciting discord in the community.

Failing the character test does not mean the visa must be refused. Under section 501(1), a delegate may refuse the visa if the person does not satisfy the delegate that they pass the character test. Under section 501(3), the Minister may personally refuse the visa without first giving the person an opportunity to comment, where the Minister reasonably suspects the person fails the test and is satisfied that refusal is in the national interest.

Decisions under section 501(1) are made after an invitation to comment and a weighing of the considerations in the applicable Ministerial Direction. This makes the response to that invitation one of the most important documents in the case. Our pages on visa refusals and visa cancellations explain the section 501 framework more generally.

Personal Decisions by the Minister Under Section 501(3)

A small number of cases under the Protection Visa Subclass 866 character requirements are decided personally by the Minister rather than by a delegate. Under section 501(3), the Minister may refuse a visa without first inviting comment, if the Minister reasonably suspects that the person does not pass the character test and is satisfied that refusal is in the national interest.

A personal decision of this kind has two important features. It is made without the ordinary opportunity to respond before the decision, and it is not reviewable on its merits by the Administrative Review Tribunal. The person may be able to seek revocation in limited circumstances, and judicial review may be available for legal error, but the options are narrower than after a delegate's decision. Cases referred for a personal decision are usually those involving the most serious offending or public interest concerns. Where there is any indication that a case may be heading in that direction, the protection claim and the evidence of rehabilitation should already be on the Department's file, because there may be no later opportunity to provide them under the Protection Visa Subclass 866 character requirements.

Ministerial Direction No. 110 and Non-Refoulement

Discretionary decisions under section 501 are guided by Ministerial Direction No. 110, made under section 499 of the Migration Act 1958. The Department's Protection Visa Processing Guidelines state that one of the considerations under the Direction, in deciding whether to refuse a visa under section 501(1), is whether there are any non-refoulement obligations in relation to the person.

The guidelines also require that where a protection visa application is referred for section 501 consideration, any non-refoulement obligations identified in the protection assessment must be explained in the referral, so that the section 501 delegate can weigh them against the seriousness of the applicant's offending or other conduct.

Under this part of the Protection Visa Subclass 866 character requirements, the Direction also requires the decision maker to consider matters such as the protection of the Australian community, family violence, the strength, nature and duration of the person's ties to Australia, the best interests of minor children in Australia, and the expectations of the Australian community. The weight given to each consideration depends on the facts. Family violence is treated as a matter of particular seriousness.

For an applicant, this means the response to a proposed refusal must address both sides of the balance. It must deal with the offending honestly, and it must set out the non-refoulement obligations, the applicant's ties and the effect of refusal on others, with evidence.

Family Violence and the Protection Visa Subclass 866 Character Requirements

Family violence receives particular attention under the Protection Visa Subclass 866 character requirements. Form 866 asks whether any applicant has been charged with or convicted of family or domestic violence offences, and whether any applicant has been the subject of a domestic or family violence order or similar protection order as the respondent. The applicant must provide copies of any such orders.

Ministerial Direction No. 110 treats family violence as a matter of particular seriousness in section 501 decisions. Family violence conduct can be relevant even where it has not resulted in a conviction, for example where there are court findings or protection orders. An applicant with any history of this kind should expect it to be examined closely.

Disclosure is essential. The decision maker will usually obtain police and court records, and an applicant who has not disclosed a protection order or charge will face serious credibility concerns. Where there is a family violence history, the response to any proposed refusal should address it directly, with evidence of any behaviour change programs completed, the current state of the relationship, and the views and safety of the people affected.

Responding to a Notice of Intention to Consider Refusal

Before refusing a visa under section 501(1), the Department usually sends a notice inviting the applicant to comment on the proposed refusal, with a short deadline. The response is the applicant's opportunity to persuade the decision maker not to refuse, and it is often the most important step under the Protection Visa Subclass 866 character requirements.

A strong response usually includes:

• An honest account of the offending, accepting responsibility where appropriate and explaining the circumstances.
• Evidence of rehabilitation, such as completion of courses, treatment programs, employment and conduct since the offence.
• Expert evidence, such as a psychological or risk assessment report, where the risk of reoffending is in issue.
• Evidence of ties to Australia, including partners, children, family and community connections, with statements from those people.
• The best interests of any children, with evidence of the applicant's role in their lives.
• Non-refoulement, setting out the protection claim and the harm the applicant would face if returned.
• Submissions on the Direction, addressing each relevant consideration.

The deadline for comment is strictly applied, and a late response under the Protection Visa Subclass 866 character requirements may not be considered at all. An applicant who receives a notice should obtain advice immediately. Our guide on urgent immigration lawyer advice explains what to prepare when time is short.

Protection Visa Subclass 866: Character Requirements and the Consequences of Refusal

A refusal under the Protection Visa Subclass 866 character requirements has consequences that go well beyond the refusal of the protection visa itself.

• Other applications are refused. Under section 501F of the Migration Act 1958, if a visa application is refused under section 501, certain other visa applications the person has made are taken to be refused. The Department's guidance confirms that this includes a pending Bridging visa A application. The person may therefore become unlawful.
• Detention. An unlawful non-citizen is liable to be detained. Where a protection finding has been made, the person may also be unable to be removed to the country they fear.
• Future visas. A person refused a visa under section 501 faces serious restrictions on being granted most other visas in the future.
• Section 48A. The refusal of the protection visa generally prevents a further protection visa application while the person remains in Australia.

Section 197C(3) prevents the involuntary removal of a person to a country in relation to which a protection finding has been made, unless a later decision is made under section 197D. It does not give the person a visa. Our guide to bridging visas in Australia explains the bridging visas that can be affected.

Protection Visa Subclass 866: Character Requirements and Pending Charges

An applicant who is charged with an offence while a Subclass 866 application is pending faces a decision in the criminal court that can determine the outcome under the Protection Visa Subclass 866 character requirements. The charge should be disclosed to the Department, and migration advice should be obtained before any plea is entered.

Several matters should be considered with both the criminal lawyer and the migration lawyer.

• The sentence. A sentence of imprisonment of 12 months or more, including a suspended sentence, can create a substantial criminal record under section 501(7).
• The nature of the offence. Offences involving violence, family violence, drugs or children are treated with particular seriousness under the Direction.
• The effect on section 36(1C). A conviction for a serious offence may engage section 36(1C)(b), which is not discretionary.
• The timing. A conviction entered before the protection visa is decided must be assessed in the application.

A plea that seems sensible in the criminal proceedings, because it leads to a lighter sentence, can still have serious migration consequences. The two proceedings should be considered together from the start.

Evidence of Rehabilitation Under the Protection Visa Subclass 866 Character Requirements

Evidence of rehabilitation is central to both the danger assessment under section 36(1C)(b) and the discretion under section 501. The Department's guidelines state that a conviction for a particularly serious crime does not in itself mean the person is a danger to the community. The applicant's evidence about who they are now is what allows the decision maker to reach a different conclusion.

Useful evidence under the Protection Visa Subclass 866 character requirements can include:

• certificates for completed programs, such as drug and alcohol, anger management or behaviour change courses;
• reports from treating psychologists, psychiatrists or counsellors;
• a forensic risk assessment where the risk of reoffending is in issue;
• evidence of compliance with parole, bail or community orders;
• evidence of stable employment, study or community involvement;
• statements from family members, employers and community members who know about the offending; and
• the applicant's own statement, accepting responsibility and explaining what has changed.

Evidence should be current, specific and from people who know the full history. A reference that does not mention the offending carries little weight.

Protection Visa Subclass 866: Character Requirements and Review Rights

Review rights after a refusal under the Protection Visa Subclass 866 character requirements depend on the provision relied on and on who made the decision.

• Refusal under section 65 for failing section 36(1C). A refusal by a delegate is generally reviewable by the Administrative Review Tribunal.
• Refusal by a delegate under section 501(1). This is generally reviewable by the Tribunal, under its own procedure and a very short time limit.
• Refusal by the Minister personally. A decision made personally by the Minister is not reviewable on its merits. Judicial review may be available for legal error.

Every time limit is short and strictly applied, and it runs from notification of the decision. Our pages on protection visa refusals, on what to expect in an ART review and on judicial review explain these options. Our guide to when a visa appeal lawyer is needed explains the role of legal representation at review.

The Protection Claim Still Matters

Even where a conviction raises serious concerns under the Protection Visa Subclass 866 character requirements, the protection claim should be prepared fully. The decision maker must assess the refugee and complementary protection criteria before referring the case for section 501 consideration, and the findings made about the claim shape everything that follows. A strong protection finding supports the non-refoulement consideration under the Direction and determines whether section 197C(3) prevents removal. A weak or poorly prepared claim gives the applicant nothing to weigh against the offending. Our page on complementary protection explains the second protection criterion, which is often decisive in these cases.

How My Migration Lawyers Acts on Convictions in Subclass 866 Applications

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases involving the Protection Visa Subclass 866 character requirements, including applicants with convictions for violence, drug and family violence offences, applicants facing pending charges, and applicants who have received a notice of intention to consider refusal. The firm deals with both the character issue and the protection claim, because each affects the other.

• Early assessment. We assess whether section 36(1C), the section 501 character test, or both are engaged, and what the risks are.
• Advice on pending charges. We advise on the migration consequences of a plea and sentence, working alongside the applicant's criminal lawyer.
• Responses to proposed refusal. We prepare the response to a notice of intention to consider refusal, including evidence of rehabilitation, ties and non-refoulement, and submissions on Ministerial Direction No. 110.
• The applicant's own account. The statement of claims is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Review. We act on Tribunal and judicial review within the time limits.

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 explains how the firm acts in these matters.

Deadlines in character matters are short, and the consequences of refusal are severe. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.