Key Takeaways
- Protection visa Subclass 866 eligibility can be lost even where the applicant genuinely fears serious harm. The Migration Act 1958 contains exclusion, ineligibility, third country and character provisions that operate alongside the protection test.
- Under section 36(1A), every applicant must satisfy the security criterion in section 36(1B), the danger criterion in section 36(1C), and at least one of the protection criteria in section 36(2).
- A person may be excluded from refugee status under section 5H(2), or be ineligible for complementary protection under section 36(2C), where there are serious reasons for considering that they committed certain serious crimes.
- Section 36(3) can defeat a claim where the applicant has a right to enter and reside in another country, including a second country of nationality, and has not taken all possible steps to use it.
- Many applicants who are refused are not excluded at all. They are refused because relocation or state protection was found to be available, which is why those issues must be answered with evidence from the start.
Can you lose protection visa Subclass 866 eligibility even if your fear is real?
Yes. Protection visa Subclass 866 eligibility depends on more than a real fear of harm. The Migration Act 1958 also contains exclusion, ineligibility, third country, security and character provisions, and any one of them can prevent grant of the visa.
Most writing on protection visa Subclass 866 eligibility explains the refugee test and complementary protection. That is the starting point. But in practice, many applicants with a genuine fear of harm are refused for reasons that sit outside those tests. Some are excluded because of their past. Some are found to have protection available elsewhere. Some are found able to relocate within their own country.
This article deals with those reasons. It is written for people whose situation is not simple: people with a criminal history, people with a second nationality or residence rights in another country, people who have lived in a third country before reaching Australia, and people whose claims depend on showing that nowhere in their country is safe.
The general eligibility requirements are explained in our article on whether you are eligible for a protection visa and in our guide to permanent protection visa eligibility. This article goes further, into the provisions that decide difficult cases.
How protection visa Subclass 866 eligibility is structured in the Migration Act
Protection visa Subclass 866 eligibility is structured in layers. Section 36(1A) of the Migration Act requires every applicant to satisfy section 36(1B) and section 36(1C), and to satisfy at least one of the criteria in section 36(2). The Schedule 2 criteria in the Migration Regulations 1994 then add further requirements.
The protection criteria in section 36(2)
Section 36(2)(a) applies to a person who is a refugee. Section 36(2)(aa) applies to a person who meets the complementary protection test. Sections 36(2)(b) and (c) apply to members of the same family unit as a person who meets one of those tests.
The security and danger criteria
Section 36(1B) requires that the applicant is not assessed by the Australian Security Intelligence Organisation to be a risk to security. Section 36(1C) requires that there are no reasonable grounds for considering the applicant a danger to Australia's security, or a danger to the Australian community having been convicted by final judgment of a particularly serious crime.
The exclusion and ineligibility provisions
Section 5H(2) excludes certain people from the definition of refugee. Section 36(2C) makes certain people ineligible for complementary protection. Section 36(3) to (5) deal with protection available in other countries.
The Schedule 2 criteria
Schedule 2 of the Regulations adds time of decision criteria, including health, character public interest criteria and identity. Our page on the Subclass 866 protection visa summarises them.
Why the structure matters
An applicant can satisfy the protection test and still fail protection visa Subclass 866 eligibility at another layer. A proper assessment checks every layer before lodgement, not only the claims.
Who needs a protection visa Subclass 866 eligibility check beyond the protection test?
Anyone whose history includes a criminal matter, a security-related role, a second nationality, residence rights in another country, or long periods spent outside their home country needs a protection visa Subclass 866 eligibility check that goes beyond the refugee and complementary protection tests.
These are not unusual situations. They arise regularly in protection matters. The difficulty is that applicants often do not realise their history is relevant, so they do not mention it until the Department raises it.
Common profiles
The following situations call for a full check before lodgement:
- a conviction or pending charge in Australia or overseas, however minor it seems
- service in the military, police, intelligence services or a prison system
- membership of, or work for, a political party or armed group involved in conflict
- a second passport, or eligibility for citizenship of another country through a parent or spouse
- permanent residence or a long-term visa in a third country
- years spent living in a country other than the country of claimed persecution
Why early identification helps
When these issues are identified before lodgement, the application can deal with them directly, with the evidence that answers them. When they are discovered later, the decision maker often treats the late disclosure as a credibility problem. A protection visa Subclass 866 eligibility assessment that ignores them is incomplete.
When is a person excluded from refugee status under section 5H(2)?
A person is excluded from refugee status under section 5H(2) where there are serious reasons for considering that they have committed certain serious crimes or acts, even if they would otherwise meet the definition of refugee.
The three grounds
The first ground covers crimes against peace, war crimes and crimes against humanity. The second covers serious non-political crimes committed before entering Australia. The third covers acts contrary to the purposes and principles of the United Nations.
The threshold
The threshold is "serious reasons for considering". It is lower than proof beyond reasonable doubt, and lower than a criminal conviction. A person does not need to have been charged or convicted for the provision to apply. But it is a real threshold. Suspicion or allegation alone is not enough.
Who is affected in practice
In practice, the question most often arises for people who served in military, police, security or intelligence roles, people who held positions in governments or armed groups accused of serious abuses, and people with serious criminal allegations in their home country. Protection visa Subclass 866 eligibility for these applicants depends on the facts of their role and the evidence about it.
Why this matters early
Information about past roles often appears in the application itself, in earlier visa applications, or at interview. An applicant should understand how their history will be assessed before it is described. Honest disclosure is essential. A misunderstanding of what the provision covers can lead to incomplete answers, which then damage credibility.
When is a person ineligible for complementary protection?
A person is ineligible for complementary protection under section 36(2C) of the Migration Act on grounds similar to the refugee exclusions, together with grounds relating to danger to Australia's security and to the community.
Complementary protection under section 36(2)(aa) protects people who face a real risk of significant harm, even if they are not refugees. Our page on complementary protection explains the test. Section 36(2C) then removes that protection in defined cases.
The grounds in section 36(2C)(a)
Section 36(2C)(a) applies where there are serious reasons for considering that the applicant committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations.
The grounds in section 36(2C)(b)
Section 36(2C)(b) applies where there are reasonable grounds for considering that the applicant is a danger to Australia's security, or is a danger to the Australian community having been convicted by final judgment of a particularly serious crime.
The two parts use different thresholds. Section 36(2C)(a) uses "serious reasons for considering". Section 36(2C)(b), like section 36(1C), turns on whether the Minister "considers, on reasonable grounds" that the person is a danger.
A person can be ineligible but still owed protection
The Department's own guidance recognises an important point. Australia's non-refoulement obligations under the international human rights treaties that underpin complementary protection have no exceptions. A finding under section 36(2C)(b) means the person is ineligible for the visa. It does not mean the risk of harm has disappeared. That difference affects what happens next, and it is one reason these cases need specialist advice. Protection visa Subclass 866 eligibility and the question of removal are separate questions.
How do security and particularly serious crime affect protection visa Subclass 866 eligibility?
Security and particularly serious crime affect protection visa Subclass 866 eligibility through sections 36(1B) and 36(1C), which apply to every applicant regardless of whether they are a refugee.
Adverse security assessments
If ASIO issues an adverse security assessment, section 36(1B) is not met and the application must be refused. A qualified security assessment does not have the same automatic effect, but it may be relevant to other criteria.
Particularly serious crime and danger to the community
The particularly serious crime ground has several parts. The applicant must have committed a crime. They must have been convicted by final judgment. The crime must be particularly serious. And the applicant must be a danger to the community. All parts must be established. A conviction on its own does not mean the applicant is a danger to the community.
Why the detail matters
The components of section 36(1C) are technical. Whether a conviction is final, whether a crime is particularly serious, and whether a person is a present danger all require careful legal analysis and evidence. A person with any conviction, in Australia or overseas, should obtain advice on protection visa Subclass 866 eligibility before the application is lodged.
When does protection in another country defeat a protection visa claim?
Protection in another country defeats a protection visa claim under section 36(3) where the applicant has not taken all possible steps to use a right to enter and reside in a country other than Australia, including a country of which they are a national, subject to the exceptions in sections 36(4) and (5).
This provision surprises many applicants. It means protection visa Subclass 866 eligibility is assessed against every country the applicant can lawfully live in, not only the country they fled.
Dual nationals
A person with two nationalities must generally show a well-founded fear, or a real risk of significant harm, in each country of nationality. A claim about only one country may fail if the person can safely live in the other.
Residence rights in a third country
A person who holds permanent residence or another right to enter and reside in a third country may be expected to use that right. The key word is "right". A mere possibility of obtaining a visa in the future is not the same as an existing right.
The exceptions
Section 36(4) and (5) remove the obstacle where the applicant has a well-founded fear of persecution in that third country, faces a real risk of significant harm there, or fears being sent from that country to a place where they would face that harm.
What evidence is needed
Applicants with any connection to a third country should gather evidence of their actual legal status there. Documents about citizenship laws, residence permits, expired visas and the practical position of people like them in that country can all matter.
How relocation and state protection defeat claims where the harm is real
Relocation and state protection are the most common reasons a genuine applicant fails protection visa Subclass 866 eligibility. They apply even where the decision maker accepts that the applicant was harmed and would be harmed again in their home area.
Relocation
For a refugee claim, section 5J(1)(c) requires that the real chance of persecution relates to all areas of the applicant's country. For complementary protection, section 36(2B)(a) provides that there is no real risk if it would be reasonable for the applicant to relocate to an area where there would not be a real risk. The applicant must show why no other part of the country is safe and reasonable for them.
State protection
Section 5J(2) provides that a fear is not well founded if effective protection measures are available from the state or from another body controlling the relevant area. Section 36(2B)(b) is the equivalent for complementary protection. An applicant must show why the police or authorities would not, or could not, protect them.
Harm faced by the population generally
Section 36(2B)(c) provides that there is no real risk where the risk is one faced by the population of the country generally and not by the applicant personally. General crime, poverty or instability is not enough.
Conduct in Australia
Section 5J(6) requires the decision maker to disregard conduct in Australia unless the applicant satisfies them that the conduct was engaged in otherwise than for the purpose of strengthening the claim. Activity undertaken only to create a claim will not help, and it can damage credibility.
Our article on evidence in a protection visa application explains the type of evidence that answers these issues.
How family members are affected by protection visa Subclass 866 eligibility problems
Family members included in the application usually depend on the main applicant satisfying the protection criterion, so an exclusion or ineligibility finding against the main applicant can affect the whole family unless another member has their own claims.
Sections 36(2)(b) and (c) allow a member of the same family unit to be granted the visa where another applicant meets the protection criterion and is granted the visa. If the main applicant is excluded, that pathway may not be available to the family.
Family members with their own claims
Where a spouse or child has their own claims, those claims should be made clearly and assessed separately. In some families, the strongest claims belong to a family member rather than the person listed as the main applicant. Protection visa Subclass 866 eligibility for the whole family can depend on how those claims are identified and presented.
Character issues of a family member
Each family member must also satisfy the character, security and health criteria that apply to them. An issue affecting one family member needs separate advice.
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What other criteria can end protection visa Subclass 866 eligibility at the decision stage?
Other criteria that can end protection visa Subclass 866 eligibility at the decision stage include identity, character, health and the values statement, all of which are assessed at the time of decision.
Identity
Under section 91W, the Department may request evidence of identity, nationality or citizenship. A failure to comply, or the provision of a bogus document, without a reasonable explanation, prevents grant. Section 91WA has a similar effect for bogus documents provided with the application. Our protection visa documents checklist explains what identity evidence is usually provided.
Character
Public interest criteria 4001 and 4003A set character requirements. The general character test in section 501 also applies. Our page on visa cancellations explains the character test in the cancellation context, where the same concepts apply.
Health
The applicant and included family members must undergo the required health examinations. The health criteria for protection visa applicants are set out in Schedule 2.
The values statement
Applicants aged 18 or over at the time of application must satisfy public interest criterion 4019, the values statement.
What happens if you engage protection obligations but are not eligible for the visa?
A person who engages Australia's protection obligations but fails protection visa Subclass 866 eligibility on another ground will be refused the visa, but the finding about their protection claims is still recorded and may affect what happens next.
The Department's guidance requires decision makers to assess the claims even where a visa must be refused on identity or other grounds, because Australia's non-refoulement obligations continue. In some cases, the person may be referred to the Minister for consideration of a personal intervention power after review.
These are complex situations. They involve review rights, possible judicial review and ministerial powers, and the time limits are short. Our page on protection visa refusals explains the first steps after a refusal, and our page on judicial review explains when the courts can intervene.
Common errors about protection visa Subclass 866 eligibility
The most common errors about protection visa Subclass 866 eligibility come from treating technical provisions as if they were simple rules. Several of them are repeated widely and are wrong.
"Any criminal record means refusal"
This is wrong. A conviction must be assessed against the specific elements of each provision. For the particularly serious crime ground, a conviction alone does not establish danger to the community.
"An allegation from my home country will exclude me"
This is also wrong. The exclusion provisions require serious reasons for considering that the person committed the relevant crime or act. An allegation may be investigated, but it is not enough on its own, particularly where the allegation comes from the authorities the applicant fears.
"If I once lived in another country, I cannot be protected"
Past residence is not the test. Section 36(3) is concerned with an existing right to enter and reside. A right that has ended, or never existed, does not engage the provision.
"The Department will ask if it needs to know"
This belief leads to incomplete applications. The Department does ask, often at interview, and a late answer is usually treated with suspicion. Our guide to the protection visa interview explains how these issues are tested, and our article on the protection visa statement of claims explains how to deal with them in writing.
How My Migration Lawyers handles complex protection visa Subclass 866 eligibility matters
My Migration Lawyers acts in complex protection matters where eligibility turns on more than the claims themselves, and the firm handles many cases involving criminal history, dual nationality, third country residence and relocation findings.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers is capable of handling protection visa Subclass 866 eligibility questions that sit at the edge of the law, and it approaches each of them with care, because a mistake at the first stage is difficult to repair.
Before lodgement
The firm reviews the client's full history, including past roles, convictions, nationalities and residence rights. It identifies every provision that may be raised, and advises the client honestly on the risks. Where a third country or relocation issue exists, it identifies the evidence needed to address it.
Preparing the claims
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 decides which claims are advanced. The firm prepares submissions that deal directly with exclusion, third country, relocation and state protection issues rather than leaving them for the decision maker to raise.
After lodgement and at review
The firm responds to requests for information and to any adverse information, attends the interview with the client, and advises on review and other options if the application is refused.
When to seek advice
The right time to seek advice on protection visa Subclass 866 eligibility is before anything is lodged, and before any earlier conviction, role or residence right is described to the Department.
Book a consultation with My Migration Lawyers through our online booking page to discuss your protection visa Subclass 866 eligibility. If your matter is urgent, you can also call 1300 040 300. You can also read more about our protection visa lawyers.
Frequently Asked Questions
Does a criminal conviction make me ineligible for a Subclass 866 protection visa?
Not automatically. A conviction is assessed under several provisions, including section 36(1C), section 36(2C), the character public interest criteria and section 501. For the particularly serious crime ground, the Department must be satisfied that the crime was particularly serious, that the conviction is final, and that the person is a danger to the community. Each element needs separate analysis, so advice should be obtained before the application is lodged and the conviction must always be disclosed.
I have citizenship of two countries. Does that affect protection visa Subclass 866 eligibility?
Yes. Under section 36(3), a person who has not taken all possible steps to use a right to enter and reside in another country, including a country of nationality, may not be owed protection by Australia. A dual national generally needs to show a well-founded fear or a real risk of significant harm in each country of nationality, or that an exception in section 36(4) or (5) applies. The claims and evidence must deal with both countries.
Can I be refused because I could move to another city in my country?
Yes. This is one of the most common reasons for refusal. For a refugee claim, the real chance of persecution must relate to all areas of the country. For complementary protection, there is no real risk if relocation to a safe area would be reasonable. The applicant must explain, with evidence, why no other part of the country would be safe and reasonable for them, having regard to their personal circumstances.
I lived in another country before coming to Australia. Will that be held against me?
It may be relevant, but it depends on your legal status there. Section 36(3) is concerned with an existing right to enter and reside in another country, not with the fact that you once lived there. If your right has ended, or you have a well-founded fear or real risk of significant harm there, the provision may not apply. Evidence of your actual status in that country should be gathered before lodgement.
If I am refused on character grounds, can I still be sent back to the country I fear?
The visa decision and the question of removal are separate. The Department's guidance recognises that a person can be ineligible for a protection visa while still engaging Australia's non-refoulement obligations, and requires the protection claims to be assessed even where the visa is refused on other grounds. What happens next depends on review rights and other legal processes, so urgent legal advice is essential in this situation.
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.
