Protection Visa Subclass 866 Refusals

Protection Visa Subclass 866 Refusals: What a Refusal Means

Protection Visa Subclass 866 refusals are decisions by the Department of Home Affairs that an applicant does not meet the criteria for a permanent protection visa, and they carry consequences that no other refusal in the migration system carries. A refusal ends the application at the Department level, but it does not end every option.

Three effects matter most in Protection Visa Subclass 866 refusals. First, section 48A of the Migration Act 1958 generally prevents a further protection visa application while the person remains in Australia. Second, the refusal letter opens a review right to the Administrative Review Tribunal, and the time limit to use it is short and strictly applied. Third, once the application is finally determined, a person who holds no other visa has no lawful right to remain and must leave Australia.

This article is an overview of Protection Visa Subclass 866 refusals. It explains how refusals are made and notified, how a refusal differs from an invalid application, what happens to your visa status and your family, and what options remain. It does not repeat the review process in detail. For that, see our guide to the Administrative Review Tribunal process for a Subclass 866 refusal. For the visa itself, see our Subclass 866 Protection visa page and our complete guide to the protection visa in Australia.

How Are Protection Visa Subclass 866 Refusals Decided and Notified?

Protection Visa Subclass 866 refusals are made under section 65 of the Migration Act 1958, which requires the decision maker to refuse the visa if not satisfied that the applicant meets every criterion. The decision maker is a delegate of the Minister within the Department. The Department's own guidelines state that refusal decisions on protection visas are to be made by officers at a set seniority level with the delegation to act under section 65.

When the decision is made

Under section 67 of the Act, a decision to grant or refuse a protection visa is taken to be made when a record of the decision is made. The Department's practice is to prepare a written decision record setting out the claims, the findings and the reasons. In most Protection Visa Subclass 866 refusals, the decision record is the single most important document the applicant will receive, because it shows exactly which findings led to the refusal.

What the refusal letter must contain

Section 66 of the Act requires the Department to notify the applicant of a refusal in the prescribed way. The notification must specify the criterion the applicant did not satisfy, or the provision that prevented the grant. It must give written reasons, other than information that cannot be disclosed. It must also state whether the decision can be reviewed, and the time limit for applying for review.

The Department of Home Affairs states that a refusal letter tells the applicant why the application was refused, what review rights exist with the Administrative Review Tribunal, and the time limit for lodging a review application. The Department also states that it does not refund the application fee after a refusal.

Why the date of notification matters

The review time limit runs from the day the applicant is notified of the decision. Where the Department uses one of the methods in section 494B of the Act, such as email, section 494C deems the applicant to have received the notice at a set point. That point can pass before the applicant has opened or read the letter. If you have appointed an authorised recipient, the notice goes to that person, and receipt by them counts as receipt by you. In Protection Visa Subclass 866 refusals, a missed email or an old address can cost the applicant the review right.

Is a Refusal the Same as an Invalid Application?

No. A refusal is a decision on a valid application, while a finding of invalidity means that no valid application was ever made. The difference decides which rights the person has afterwards, so it is one of the first questions to answer in any matter involving Protection Visa Subclass 866 refusals.

Section 47 of the Migration Act 1958 requires the Department to consider a valid application and prevents it from considering an application that is not valid. Section 47(4) provides that a decision that an application is not valid is not a decision to refuse the visa. An invalid application is simply not considered on its merits.

An application can be invalid for reasons unrelated to the strength of the claims. Examples include:

• No claims at all. The Department's guidelines state that an application containing no claims for protection does not substantially comply with the form and is invalid.
• No residential address. Regulation 2.07(4) of the Migration Regulations 1994 requires a residential address, and there is no power to waive it.
• Biometrics not provided. If the Department requires a photograph and fingerprints under section 257A and the applicant does not provide them, the application is invalid.
• An application bar applies. An unauthorised maritime arrival, a person who was not immigration cleared on last entry, and a person already barred by section 48A cannot make a valid application.

The consequences differ sharply. A refusal of a valid application usually carries a right of review to the Administrative Review Tribunal. A finding of invalidity does not, because it is not a refusal. However, because no valid application was made, the section 48A bar is not triggered by an invalid application in the same way as by a refusal. Whether a person can still apply again after an invalidity finding depends on the reason for invalidity and must be checked against the facts before anything further is lodged.

Why Are Protection Visas Refused?

Most Protection Visa Subclass 866 refusals follow one of a small number of findings: the decision maker does not accept the applicant's account as credible, does not accept that the feared harm reaches the level the law requires, or finds that the applicant could be protected or could relocate safely within their home country. Some turn on identity, character or security criteria instead.

Behind most of these findings sits section 5AAA of the Act. It places the responsibility on the applicant to specify all particulars of the claim and to provide sufficient evidence to establish it. A decision maker who is not satisfied on the material provided must refuse. Gaps, inconsistencies and claims raised for the first time late in the process are the most common triggers.

This article does not examine the reasons in depth. For the substance of how claims are proved, see our guides to evidence in a protection visa application, the protection visa statement of claims and preparing for the protection visa interview. Where the refusal turned on the complementary protection test, our page on complementary protection explains the separate legal standard.

What Happens to Your Visa Status After a Protection Visa Refusal?

After a refusal, your lawful status depends on the visa you hold, and in most Protection Visa Subclass 866 refusals that visa is a bridging visa linked to the refused application. A bridging visa keeps a person lawful while a substantive visa application is being decided. It does not end at the moment of refusal. It is designed to cease a set period after the refusal if no review is sought, which gives the person time to apply for review or to make arrangements to leave.

If you apply for review in time

If a valid application for review is made to the Administrative Review Tribunal within the time limit, the bridging visa linked to the protection application generally continues while the review is running. It then ceases a set period after the Tribunal decides the review. The conditions on that bridging visa, including any permission to work, depend on the type of bridging visa and the conditions imposed on it. Our guide to bridging visas in Australia explains the different classes.

If you do not apply for review

If no review application is made within the time limit, the application becomes finally determined. The bridging visa then ceases at the end of its set period. A person who holds no other visa at that point becomes an unlawful non-citizen.

When an application is finally determined

Section 11A of the Migration Act 1958 provides that a visa application is finally determined when it is no longer subject to any form of review by application to the Tribunal. That happens when the review period expires without a valid review application, or when the Tribunal makes its decision on the review, unless the Tribunal sends the matter back to the Department for reconsideration.

The Department of Home Affairs states the consequence plainly. You do not have a lawful right to stay in Australia if the Department or a merits review tribunal has finally determined your protection visa application, you do not engage Australia's protection obligations, and you do not hold another visa. The Department states that you must return home or go to another country where you have a right of entry.

The section 48 bar on other visas

Protection Visa Subclass 866 refusals also trigger section 48 of the Act for a person who does not hold a substantive visa. Section 48 limits the classes of visa a person can apply for in Australia after a visa has been refused or cancelled since their last entry. The permitted classes are prescribed in regulation 2.12 and include certain partner visas and bridging visas. Our article on applying for a partner visa after a visa refusal explains how section 48 operates in that setting.

The Section 48A Bar After Protection Visa Subclass 866 Refusals

Section 48A of the Migration Act 1958 prevents a non-citizen in the migration zone whose protection visa application has been refused from making a further protection visa application while they remain in the migration zone. This is the single most important consequence of Protection Visa Subclass 866 refusals.

The bar is not limited to repeat claims on the same ground. Amendments that took effect in May 2014 mean that, once a protection visa application has been refused, a person cannot make another protection visa application on any ground. A person refused on refugee grounds cannot lodge a fresh application relying on complementary protection, and a person refused on complementary protection grounds cannot lodge a fresh refugee claim.

The bar applies whether or not the refusal was reviewed. It continues to apply after the Tribunal affirms the refusal. It also applies where a protection visa has been cancelled.

Only the Minister can lift the bar

Section 48B of the Act allows the Minister, personally, to determine that section 48A does not apply to a person, if the Minister thinks it is in the public interest. The power is non-compellable. The Minister has no duty to consider a request. The Department describes section 48B, together with its pre-removal assessment processes, as the safeguard for genuinely new protection claims that arise after a refusal.

In practical terms, the section 48A bar means that Protection Visa Subclass 866 refusals cannot be cured by lodging a better second application. The first application, and any review of it, carries the full weight of the claim. Our article on the Subclass 866 Protection visa eligibility requirements explains how the bar fits with the other threshold requirements.

How Does a Refusal Affect Family Members Included in the Application?

A refusal of the main applicant usually means the refusal of every family member who relied on that applicant's claims. Members of the same family unit can apply together in one application. The main applicant must meet the refugee test in section 36(2)(a) or the complementary protection test in section 36(2)(aa). A family member who does not make their own claims relies on sections 36(2)(b) or (c), which require them to be a member of the same family unit as a person who is granted, or is owed protection under, those provisions.

If the main applicant is refused, the family members who relied on that applicant cannot usually meet sections 36(2)(b) or (c). They are refused as well. Each family member who makes independent claims must have those claims considered, and a family member's own claims can succeed even where the main applicant's claims fail.

The section 48A bar and family members

Each person included in the application is an applicant for the visa. A refusal of the application therefore generally engages section 48A for each included family member who remains in Australia, not only for the main applicant. The Department's guidelines recognise this effect. They note that where a child also has a second application that is going to be refused, the parent may be invited to withdraw it so that the family is not made subject to a section 48A bar by that refusal.

Adding family members after a refusal

Family members can be added to a protection visa application only after it is made and before it is decided. Once the Department has decided the application, a partner or dependent child can no longer be added to it. Where family members are in Australia but were not included, their position must be considered separately, including whether they can make their own application.

This is why Protection Visa Subclass 866 refusals affect the whole household. A spouse or child who never made a claim of their own can be left with no protection pathway in Australia.

What Happens When the Protection Visa Application Is Finally Determined?

Once the application is finally determined and the person holds no other visa, the Department expects the person to leave Australia, and it will take steps to remove a person who does not depart voluntarily. The Department's Subclass 866 page states that if you do not depart voluntarily and become unlawful in Australia, it will take steps to remove you.

Section 198 of the Migration Act 1958 requires an officer to remove an unlawful non-citizen from Australia as soon as reasonably practicable in the circumstances the section sets out, including where the person's visa applications have been finally determined. An unlawful non-citizen can also be detained under section 189.

A person on a departure pathway may be granted a Bridging E visa while arrangements to leave are made. That visa can carry conditions that require the holder to apply for a passport, present a ticket or leave Australia by a set date.

Genuinely new protection claims that arise at this stage must be raised through the proper channel, not held back. For readers weighing their position at this stage, our protection visa refusals page and our general visa refusals page set out how we act after a refusal.

What Are the Options After Protection Visa Subclass 866 Refusals?

The main option after Protection Visa Subclass 866 refusals is merits review by the Administrative Review Tribunal, and after the Tribunal the only remaining avenues are narrow powers held personally by the Minister. Because section 48A generally prevents a fresh application, the order of these options matters. Each one depends on the step before it.

Merits review by the Administrative Review Tribunal

Most Protection Visa Subclass 866 refusals are reviewable protection decisions under section 338A of the Migration Act 1958, and the applicant can apply to the Tribunal for review. Merits review is not limited to checking for legal error. The Tribunal stands in the shoes of the decision maker and makes a fresh decision on the evidence and the law at the time of the review. New evidence can be put before it.

The Tribunal can affirm the refusal, set the refusal aside and substitute a new decision, or set it aside and remit the matter to the Department with a direction on a prescribed matter, such as a finding that the applicant meets a specified criterion. If the applicant does not attend a hearing after proper notice, the Tribunal can dismiss the application, and reinstatement is available only if applied for within a short period.

The time limit to apply for review is short and strictly applied. It runs from the day of notification. The Tribunal cannot extend it, and an application made late is not properly made. The Administrative Review Tribunal publishes information on how to apply. Our guides on whether you can appeal a protection visa refusal to the ART, what to expect in an ART review and preparing for the protection visa ART hearing explain the process in detail.

Ministerial intervention after the Tribunal

If the Tribunal affirms the refusal, section 351 of the Migration Act 1958 allows the Minister, if the Minister thinks it is in the public interest, to substitute a more favourable decision for the decision of the Tribunal. The power is personal to the Minister and non-compellable. The Minister is not required to consider a request.

Section 417, which previously held this power for protection decisions, has been repealed. Section 351 now covers both reviewable migration decisions and reviewable protection decisions. Material that still refers to section 417 as the current power for Tribunal protection decisions is out of date.

A request for ministerial intervention is not a review and is not a visa application. The Department treats a person with an ongoing request as being on a departure pathway. A first request may support the grant of a Bridging E visa, but a further request after one has been finalised generally does not.

A request under section 48B

Where genuinely new protection claims arise after a refusal, the person can ask the Minister to make a determination under section 48B allowing a further protection visa application. This is also a personal and non-compellable power. It is not a way to re-argue claims that have already been decided.

What Is Not Available After a Protection Visa Refusal?

Several options that people assume exist are not available after Protection Visa Subclass 866 refusals.

• A second protection visa application. Section 48A generally prevents it while the person remains in Australia, on any ground, unless the Minister makes a determination under section 48B.
• A late review application. The Tribunal cannot extend the time limit for review of a protection decision.
• Review of an invalidity finding. A decision that an application was invalid is not a refusal and cannot be taken to the Tribunal for merits review.
• Review of every refusal. Refusals relying on certain provisions, including section 36(1B) security assessments, are excluded from ordinary review, and some character and exclusion refusals go through a different review pathway. A decision made while the applicant is outside the migration zone is not a reviewable protection decision.
• Reopening a Tribunal decision. Once the Tribunal makes its decision, the application is finally determined and the Tribunal cannot reopen or vary it.
• A protection visa granted from overseas. Clause 866.411 of the Migration Regulations 1994 requires the applicant to be in Australia at the time of grant.

How Protection Visa Refusals Differ From Other Visa Refusals

Protection Visa Subclass 866 refusals differ from other refusals in three ways: the section 48A bar, the separate review category, and what is at stake if the person is returned. Each difference changes how the matter must be handled.

A person refused a student, visitor or skilled visa may, subject to section 48 and the other rules, apply for a different visa or apply again later from outside Australia. A person refused a protection visa cannot make another protection visa application while in Australia. The section 48A bar applies only to protection visas and has no equivalent for other visa classes.

The review category is also different. Refusals of most onshore visas are reviewable migration decisions under section 338. Protection refusals are reviewable protection decisions under section 338A, heard in the Tribunal's protection jurisdiction. The rules on who can apply and which decisions are excluded are set out separately.

Finally, the stakes are different in kind. A refused partner or skilled applicant generally loses a migration opportunity. In Protection Visa Subclass 866 refusals, the person is expected to return to the country they say they fear. Our guide to the protection visa refusal lawyer's assessment of an appeal explains how a refused matter is evaluated.

What to Do and What Not to Do After a Protection Visa Refusal

The first thing to do after one of these refusals is to work out the date of notification and the review deadline, and the second is to obtain and read the decision record. Every other step follows from those two.

What to do:

• Find the date you were notified. Check the letter, your email, your ImmiAccount and any authorised recipient. The time limit runs from notification.
• Obtain the full decision record. The reasons show which findings led to the refusal and which issues the review must address.
• Check your bridging visa. Confirm what visa you hold, its conditions and when it will cease.
• Identify every family member affected. Confirm who was included in the application and how the refusal affects each of them.
• Gather new evidence. Evidence the Department did not have, or did not accept, can be put before the Tribunal.
• Obtain legal advice before the time limit runs. The review is usually the last full hearing of the claim.

What not to do:

• Do not wait. A late review application cannot be accepted.
• Do not lodge a new protection visa application. It will be invalid because of section 48A.
• Do not travel. Leaving Australia can end review rights and the protection pathway.
• Do not contact the authorities of the country you fear without advice, including to obtain documents.
• Do not change your account to answer the refusal. A claim that shifts after refusal is rarely accepted. The task is to explain and support your own account, not to replace it.

How My Migration Lawyers Acts on Protection Visa Subclass 866 Refusals

My Migration Lawyers acts in many Protection Visa Subclass 866 refusals and regularly deals with complex cases, including refusals on credibility, refusals involving identity documents, refusals affecting whole families and refusals where the applicant delayed in applying. We are capable of handling these matters from the day the refusal letter arrives through to the Tribunal decision.

Our work on Protection Visa Subclass 866 refusals follows a set path:

• Confirming the deadline and the review right. We establish the date of notification, whether the decision is reviewable and the last day to apply.
• Lodging the review application. Where review is available, we lodge it with the Tribunal within time.
• Analysing the decision record. We identify each finding the refusal relied on and whether it is open to challenge on the evidence.
• Taking your account and your evidence. We take your own account and present it in the form the law requires. Your statement is your own evidence. You review it, correct it and approve it, and you decide which claims are advanced.
• Preparing the case for the Tribunal. We prepare written submissions, country information and evidence that responds to the reasons for refusal, and we prepare you for the hearing.
• Advising on status and family. We advise on your bridging visa, the position of each family member and the options that remain after the Tribunal.

The practice is led by Principal Lawyer Weiwei Zhang. Consultations are held by video, so you can speak with us wherever you live in Australia. Our protection visa lawyers page explains how we act in these matters.

If you have received one of the Protection Visa Subclass 866 refusals described in this article, the time limit is already running. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.