Protection Visa Subclass 866 Checklist

A Protection Visa Subclass 866 checklist is a set of checks to complete before a protection visa application is lodged. Most checklists online list documents. That is useful, but it misses the point. A protection visa application is rarely lost because a birth certificate was missing. It is lost because the applicant was not eligible to apply, lodged at the wrong time, left out a claim, contradicted an earlier visa application, or made a mistake that cannot be undone.

This Protection Visa Subclass 866 checklist is written for the person who is about to lodge, often without a lawyer. It sets out the checks that matter most, in the order they should be done, and explains why each one matters. A separate protection visa documents checklist covers the documents themselves.

Why a Protection Visa Subclass 866 checklist must start with risk

A Protection Visa Subclass 866 checklist must start with risk because a protection visa application is, in most cases, a single opportunity. Section 48A of the Migration Act prevents a person whose protection visa application has been refused from making a further protection visa application while they remain in Australia, unless the Minister personally lifts the bar under section 48B. The Department's guidelines confirm that the bar applies even if the person holds a substantive visa at the time.

That means there is usually no second attempt. A weak first application is not a practice run. It can end the applicant's ability to seek protection from inside Australia. Every check below is designed to reduce that risk before lodgement, when problems can still be fixed.

The checklist has five parts:

• Validity and bars. Can the applicant make a valid application at all?
• Timing and status. When should the application be lodged, and what happens to the applicant's visa?
• The claims. Are all claims identified, complete and matched to the law?
• Consistency and identity. Does the application agree with everything the Department already knows?
• Family, travel and after lodgement. Who must be included, what must be avoided, and what happens next?

Who this Protection Visa Subclass 866 checklist is for

This Protection Visa Subclass 866 checklist is for people who are in Australia and are considering applying for protection. It is most useful to three groups:

• People preparing their own application. They need to know which mistakes cannot be repaired after lodgement.
• People who have been told they can simply fill in the form. Friends, community contacts and online groups often say that a protection visa application is easy. The form is not the difficult part. The claim is.
• People who have already started the online form. A saved but unsubmitted application can still be changed. Once it is lodged, the record is fixed and every later answer is compared with it.

The Protection Visa Subclass 866 checklist is not a substitute for advice on a specific claim. It shows where the risks are, so the applicant can decide which ones need a lawyer's attention before the application is lodged.

Checklist part 1: validity and bars

The first part of the Protection Visa Subclass 866 checklist asks whether the applicant can make a valid application. An invalid application is not assessed at all, so no other item on the Protection Visa Subclass 866 checklist matters until this part is cleared.

Check 1: is the applicant in Australia?

A Subclass 866 application can only be made by a person who is in Australia. The visa must also be granted while the applicant is in Australia.

Check 2: did the applicant arrive holding a visa and was the applicant immigration cleared?

The Department's information states that the applicant must have arrived in Australia holding a visa that was in effect and must have been immigration cleared on arrival. A person whose visa was cancelled at the airport, or who was detained on arrival, has not been immigration cleared.

Check 3: is the applicant an unauthorised maritime arrival?

Unauthorised maritime arrivals cannot make a valid Subclass 866 application unless the Minister personally lifts the bar under section 46A. The Department's guidelines explain that item 1401 of Schedule 1 to the Migration Regulations excludes these applicants, and others who did not hold a visa or were not immigration cleared on arrival.

Check 4: has the applicant applied for a protection visa in Australia before?

If the applicant has previously been refused a protection visa in Australia, or had one cancelled, section 48A usually prevents a new application. This check must be done before anything else is prepared.

Check 5: are there barriers that only appear to apply?

Several things that applicants fear are not barriers. Condition 8503, the no further stay condition, does not prevent a protection visa application. The Department's own guidance on that condition says so expressly. An expired visa and unlawful status do not prevent an application either, although they affect the bridging visa, as explained below. The Subclass 866 protection visa page and the guide to protection visa eligibility explain these rules in more detail.

Checklist part 2: timing and visa status

The second part of the Protection Visa Subclass 866 checklist deals with timing. When the application is lodged affects the applicant's bridging visa, their work rights and, sometimes, how their claim is assessed.

Check 6: when does the applicant's current visa expire?

Lodging a valid protection visa application does not cancel the applicant's current visa. It continues on its own terms. A bridging visa is usually granted with the application and comes into effect when the substantive visa ends.

Which bridging visa is granted depends on the applicant's status at lodgement. A person who lodges while holding a substantive visa will usually receive a bridging visa with conditions that follow their existing visa. A person who lodges after their visa has expired is usually unlawful and may be granted a Bridging visa E, which may carry a no work condition. The guide to bridging visas in Australia explains each type.

Check 7: if the applicant is already unlawful, is there an acceptable reason for the delay?

A Bridging visa E holder who applies for a protection visa may later seek permission to work. To be eligible, the Department's Bridging visa E guidance requires evidence of a compelling need to work and an acceptable reason for the delay in applying, including why the applicant did not apply while they held a substantive visa. That reason should be recorded carefully from the start.

Check 8: how long has the applicant waited, and why?

Delay in lodging can be taken into account in assessing credibility. The Department's guidelines accept that there can be good reasons for delay, such as changed conditions at home, fear, or incorrect advice, and state that delay should not be the only reason for rejecting a claim. The explanation must still be given clearly. The guide on whether delay affects a Subclass 866 claim covers this in detail.

Checklist part 3: the claims

The third part of the Protection Visa Subclass 866 checklist is the most important. It asks whether every claim is in the application, in enough detail, and matched to the correct legal test.

Check 9: are all claims identified?

Section 5AAA of the Migration Act makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it. The Department has no obligation to identify claims for the applicant. A claim left out of the application may never be properly assessed, and because of section 48A there may be no later opportunity to raise it in a new application.

Check 10: is each claim assessed under both legal grounds?

A Subclass 866 visa can be granted under the refugee criterion in section 36(2)(a) or under complementary protection in section 36(2)(aa). Where the facts support both, both should be argued. A claim that does not meet the refugee test because the harm is not for a Convention reason may still meet the complementary protection test.

Check 11: does the statement answer the questions the Department will ask?

The Department's information asks applicants to explain why they left, what harm they experienced, who caused it, what they fear, why they fear it, whether there is a safe area in their country and whether the authorities can protect them. The statement of claims must answer each question in detail. Vague answers are one of the features the Department's guidelines describe as an application lacking particulars.

Check 12: are state protection and relocation addressed?

Many claims that are otherwise accepted fail on these two points. The application must explain why the authorities would not or could not protect the applicant and why the applicant could not live safely in another part of the country.

What if an item on the Protection Visa Subclass 866 checklist cannot be met?

Not every item on the Protection Visa Subclass 866 checklist is a pass or fail. Some items, such as the validity requirements in Checks 1 to 4, are absolute. If the applicant is not in Australia, or has already been refused a protection visa in Australia, a valid Subclass 866 application usually cannot be made, and the right course is to obtain advice on the options that remain.

Most other items can be managed. A missing identity document can be explained. A delay in lodging can be explained. An inconsistency with an earlier visa application can often be explained by an error made by the person who completed the earlier form. A claim that is weak under the refugee test may be stronger under complementary protection.

What cannot be managed is an item on the Protection Visa Subclass 866 checklist that is ignored. A problem that is identified and explained in the application is treated very differently from a problem the Department discovers for itself. The purpose of the checklist is to find the problems first.

Using the Protection Visa Subclass 866 checklist with the application form

The Protection Visa Subclass 866 checklist lines up with the parts of the online application. Working through both together reduces the chance of a gap.

• Details of the people included. The form asks for every person included in the application, whether each is raising their own claims, and evidence of their relationship to the main applicant. This is where Checks 16 and 17 apply.
• Personal history. The form asks for education, employment, addresses, travel and relationship history. The Department's information asks applicants to leave no gaps in these timelines and to explain periods of unemployment. This is where Check 13 applies.
• Claims for protection. The claims questions are where Checks 9 to 12 apply. They are the questions that decide the case.
• Documents. The form asks the applicant to list the documents provided, those that will be provided later, and those that cannot be provided, with an explanation. This is where Checks 14 and 15 apply.

The guide to preparing Form 866 explains these questions in detail. Using the Protection Visa Subclass 866 checklist alongside it means each section of the form is tested against the risks that matter.

Checklist part 4: consistency and identity

The fourth part of the Protection Visa Subclass 866 checklist compares the application with everything the Department already holds.

Check 13: does the application agree with earlier visa applications?

The Department compares the protection application with the applicant's earlier visa applications, travel records and other dealings with it. Differences in employment, travel, family details or purpose of travel will be noticed. Innocent differences should be identified and explained in the application, not discovered at interview.

Check 14: are identity documents genuine and explained?

Under section 91W, the Department may require documentary evidence of identity. Under section 91WA, a bogus identity document lodged with the application requires refusal unless the section 91WA(2) exception applies. Every identity document should be genuine, and its origin should be explained. Where there is no passport or identity document, the reason should be stated in the application.

Check 15: are documents translated?

Documents not in English should be translated by a NAATI accredited translator, as the Department's guidelines and the application form require.

Checklist part 5: family, travel and after lodgement

The final part of the Protection Visa Subclass 866 checklist covers the people included in the application and the conduct that can damage it after lodgement.

Check 16: are all family members in Australia included?

Members of the same family unit in Australia can be included in the application, with evidence of their relationship. Section 91WB provides that a person can only be granted a protection visa on the basis of being a member of the same family unit of a protection visa holder if they applied before that person's visa was granted. A spouse or dependent child in Australia who is left out may lose that pathway. The Department allows a spouse or dependent child in Australia to be added after lodgement using Form 1436, but only before a decision is made.

Check 17: are family members outside Australia listed?

The application form asks for details of members of the same family unit who are not included, including those outside Australia. They must be disclosed accurately.

Check 18: does the applicant intend to travel?

The Subclass 866 visa can only be granted while the applicant is in Australia. Most bridging visas do not permit travel. Travel to the home country, in particular, can be treated as evidence that the applicant does not fear harm there. The safest position is not to travel while the application is pending without advice.

Check 19: are character and health matters disclosed?

At the time of decision, the applicant must satisfy the health criteria and public interest criteria, including the character requirements in PICs 4001 and 4003A and, for applicants 18 or over, the values statement in PIC 4019. Criminal history, charges and past visa cancellations must be disclosed accurately. The guide to Form 80 explains the character questions the Department often asks.

Check 20: who will receive the Department's letters?

Deadlines for section 56 requests and section 57 invitations run from when the letter is received, and the response times are short. The applicant must monitor their ImmiAccount and email. Where a representative is appointed using Form 956, correspondence may go to the representative instead.

Check 21: how will changes be reported?

Changes in circumstances, such as a new address, a birth, a marriage or a change in family, must be notified. The guide to Form 1022 explains when it is required.

The Protection Visa Subclass 866 checklist in short

For quick reference, the Protection Visa Subclass 866 checklist can be summarised as follows. Each item should be answered before lodgement.

• The applicant is in Australia.
• The applicant arrived holding a visa and was immigration cleared.
• The applicant is not an unauthorised maritime arrival, or the Minister has lifted the bar.
• The applicant has not been refused a protection visa in Australia before.
• Apparent barriers, such as condition 8503 or an expired visa, have been checked and understood.
• The expiry date of the current visa is known, and the effect on the bridging visa has been considered.
• If the applicant is unlawful, the reason for the delay in applying is recorded.
• Any delay in lodging is explained.
• Every claim is identified.
• Each claim is considered under both the refugee and complementary protection tests.
• The statement answers the Department's questions in detail.
• State protection and relocation are addressed.
• The application is consistent with earlier visa applications and travel records.
• Identity documents are genuine, and any gap is explained.
• Documents not in English are translated.
• Family members in Australia are included with relationship evidence.
• Family members outside Australia are listed.
• Travel plans have been considered with advice.
• Character and health matters are disclosed accurately.
• Arrangements are in place to receive the Department's letters and meet deadlines.
• Changes in circumstances will be reported.

What this Protection Visa Subclass 866 checklist cannot do for you

This Protection Visa Subclass 866 checklist identifies risks. It cannot resolve them. Several of the checks require legal judgement: whether a claim falls within the refugee criterion or complementary protection, whether an inconsistency with an earlier visa can be explained, whether the timing of lodgement will affect work rights, and whether the evidence addresses state protection and relocation.

Those judgements are where applicants who lodge alone most often go wrong. The guide on when you need a protection visa lawyer explains the stages at which legal advice makes the most difference. If a visa has already been refused, the protection visa refusals page explains the review options. The time limit to apply for review is short and strictly applied.

How My Migration Lawyers works through the Protection Visa Subclass 866 checklist

My Migration Lawyers works through every item on this Protection Visa Subclass 866 checklist before a protection visa application is lodged. The firm deals with complex protection matters, acts in many Subclass 866 applications of this exact type, and is capable of handling them from the first consultation through to decision and review.

In practice, the firm:

• confirms validity and bars, including any earlier protection application and the applicant's arrival and visa history, which the firm obtains itself where possible;
• advises on timing, including the bridging visa and work rights that will follow lodgement;
• takes the applicant's account in detail and presents it as the applicant's own evidence, reviewed and corrected by them, with the applicant deciding which claims are advanced;
• matches each claim to the refugee and complementary protection tests, including state protection and relocation;
• checks consistency against earlier visa applications and travel records;
• includes family members correctly and advises on travel, character and health disclosure; and
• manages correspondence and deadlines after lodgement, including interview preparation.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang, and its protection visa lawyers act for applicants across Australia.

A protection visa application is usually a single opportunity. Have it checked before it is lodged. Book a consultation with My Migration Lawyers online, or call 1300 040 300.