Requirements for Protection Visa 866

The requirements for Protection Visa 866 are set by section 36 of the Migration Act 1958 and by Schedules 1, 2 and 4 of the Migration Regulations 1994. They sit in three layers. The application must be valid. The applicant must meet the criteria at the time of application. And the applicant must meet the criteria at the time of decision, including the protection criterion, security, character and health. This article sets out the requirements for Protection Visa 866 in that order, as a legal checklist.

Most guides explain the requirements for Protection Visa 866 as a single list. That hides an important point. A requirement at one layer cannot be fixed at another. An application that is invalid is not assessed at all, however strong the claim. An applicant who meets the refugee test can still be refused on character or security grounds. Understanding the layers is the first step to understanding why applications succeed or fail.

What are the requirements for Protection Visa 866?

The requirements for Protection Visa 866 are, in summary:

• A valid application. The application must meet section 46 of the Migration Act, regulation 2.07 and item 1401 of Schedule 1 to the Regulations. It must be made in Australia, in the approved manner, with the visa application charge paid, and no application bar must apply.
• Time of application criteria. Under clause 866.211, the applicant must claim to engage Australia's protection obligations and make claims explaining why, or claim to be a member of the same family unit of another applicant who does.
• The protection criterion. Under section 36(2) and clause 866.221, 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 and has been granted the visa.
• Security and danger to the community. Under section 36(1B) and section 36(1C), the applicant must not be assessed by ASIO as a risk to security, and there must not be reasonable grounds for considering them a danger to Australia's security or, having been convicted of a particularly serious crime, a danger to the community.
• Health. The applicant must meet the health criteria in clauses 866.223 to 866.224B.
• Public interest criteria. The applicant must meet PICs 4001 and 4003A, and PIC 4019 if aged 18 or over at the time of application.
• Other time of decision criteria. These include clauses 866.226 to 866.232 and clause 866.411, which requires the applicant to be in Australia at the time of grant.

Each layer of the requirements for Protection Visa 866 is explained below. The broader framework of the visa is explained in the complete guide to the Subclass 866 protection visa, and the Subclass 866 protection visa page summarises how the firm acts in these matters.

Layer 1: requirements for a valid Protection Visa 866 application

The first of the requirements for Protection Visa 866 is a valid application. Under section 47(3) of the Migration Act, an invalid application cannot be considered. A decision that an application is invalid is not a refusal, so it cannot be reviewed by the Administrative Review Tribunal.

Section 46 and regulation 2.07

Section 46 sets out general validity requirements. The application must be for a visa of a specified class, must satisfy the prescribed criteria and requirements, must be accompanied by any visa application charge, and must not be prevented by any bar in the Migration Act.

Regulation 2.07 requires the applicant to complete the form in accordance with its directions. The Department's guidelines explain that only substantial compliance is needed. However, the application must contain at least the bare bones of a claim. An application with no claims at all is invalid. Under regulation 2.07(4), the applicant must also provide a residential address. There is no power to waive that requirement.

Item 1401 of Schedule 1

Item 1401 sets the specific validity requirements for the Protection (Class XA) visa, which contains Subclass 866. The application must be made in Australia, by the applicant being in Australia, in the manner specified by legislative instrument. In practice, the application is lodged online through ImmiAccount unless the Department has authorised a paper application in writing. The guide to creating an ImmiAccount explains that step.

Item 1401(3)(d) has a significant effect. 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 visa. Most Subclass 866 applicants therefore arrived lawfully on a visa, such as a visitor or student visa.

Application bars

Several bars in the Migration Act prevent a valid application. Section 48A generally prevents a person who has been refused a protection visa, or had one cancelled, while in Australia from making another protection visa application while they remain in Australia. Section 46A bars unauthorised maritime arrivals. Section 91K applies to certain former Temporary Safe Haven visa holders. In each case, only the Minister, personally, can lift the bar, and the Minister has no duty to consider doing so.

The Subclass 866 eligibility guide explains how these bars are identified in practice.

Layer 2: time of application criteria

The second layer of the requirements for Protection Visa 866 is the time of application criteria in clause 866.211. They are the simplest to meet, but they matter.

Under clause 866.211(2), the applicant must claim to be a person to whom Australia owes protection obligations, under the refugee definition or the complementary protection provisions, and must make claims as to why. Under clause 866.211(3), an applicant may instead claim to be a member of the same family unit of another applicant to whom clause 866.211(2) applies.

At this stage, the Department does not test whether the claims are true or whether the family relationship exists. It only asks whether the claim has been made. The testing happens at the time of decision. The applicant does not need to choose between the refugee and complementary protection grounds at this stage. Claims should be set out fully, so that the decision maker can assess them against every ground they support. An applicant whose claims do not fit the refugee definition may still meet the complementary protection test on the same facts, and a family member who has their own claims should make them rather than rely only on the relationship. The time of application criteria are the easiest of the requirements for Protection Visa 866 to meet. But the claims made at this stage frame everything that follows, which is why the statement of claims should be complete when the application is lodged.

Layer 3: the protection criterion in section 36(2)

The most important of the requirements for Protection Visa 866 is the protection criterion. Under section 36(1A)(b), the applicant must satisfy at least one of the criteria in section 36(2). Clause 866.221 of the Regulations reflects the same requirement.

The refugee criterion: section 36(2)(a)

Under section 36(2)(a), the applicant must be a person to whom Australia has protection obligations because they are a refugee. Section 5H defines a refugee as a person outside their country of nationality, or former habitual residence, who owing to a well-founded fear of persecution is unable or unwilling to return or to seek that country's protection.

Section 5J defines a well-founded fear. The applicant must fear persecution for one of five reasons: race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance of persecution, and that real chance must relate to all areas of the country. Under section 5J(4), the reason must be the essential and significant reason for the persecution, the persecution must involve serious harm, and it must involve systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm, including a threat to life or liberty and significant physical harassment or ill-treatment.

Section 5J(2) provides that there is no well-founded fear if effective protection measures are available in the receiving country. Section 5J(3) provides that there is no well-founded fear if the person could take reasonable steps to modify their behaviour to avoid a real chance of persecution, except where the modification would conflict with a characteristic fundamental to their identity or conscience, conceal an innate or immutable characteristic, or require one of the other listed things.

The complementary protection criterion: section 36(2)(aa)

If the applicant is not a refugee, the Department must then consider complementary protection. Under section 36(2)(aa), there must be substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm.

Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Section 36(2B) provides that there is taken not to be a real risk if it would be reasonable to relocate within the country, if an authority of the country could provide protection, or if the risk is faced by the population generally and not by the applicant personally.

Members of the same family unit: sections 36(2)(b) and (c)

An applicant who does not personally meet either test may still meet the protection criterion as a member of the same family unit of a person who does. Clause 866.221(3) requires that the other person has been granted a Subclass 866 visa. Section 91WB also requires the family member to have applied before that person's visa was granted.

Protection in another country: section 36(3)

Section 36(3) provides that Australia is taken not to have protection obligations to a person who has not taken all possible steps to use a right to enter and reside in another country, subject to exceptions in sections 36(4) to 36(5A) where the person would face persecution or significant harm there, or be returned from there to a country where they would. This requirement is often overlooked by applicants with dual nationality or residence rights elsewhere.

The legal test for each ground is explained further in the guide to evidence in a protection visa application.

Common misunderstandings about the requirements for Protection Visa 866

Several common beliefs about the requirements for Protection Visa 866 are wrong. Each one leads applicants to make poor decisions.

"My country is dangerous, so I qualify"

General danger is not enough. For complementary protection, section 36(2B)(c) provides that there is taken not to be a real risk of significant harm if the risk is faced by the population of the country generally and not by the applicant personally. For the refugee ground, the persecution must be for a Convention reason and must involve systematic and discriminatory conduct, not random violence. The requirements for Protection Visa 866 are personal. The applicant must show why they, individually, are at risk.

"I must have been harmed already"

Past harm is not a requirement. The test looks forward. The question is whether there is a real chance of persecution, or a real risk of significant harm, if the applicant returns. Past harm is often strong evidence of future risk, but an applicant who has not yet been harmed can still meet the requirements for Protection Visa 866 if the risk is real.

"I need documents to prove everything"

Documents help, but they are not required for every claim. The applicant's own detailed and consistent account is evidence. The Department's guidelines recognise that applicants often cannot obtain documents, and that the benefit of the doubt may be given where the applicant is generally credible. The protection visa documents checklist explains what is usually provided.

"I must apply while my visa is still valid"

The requirements for Protection Visa 866 do not include holding a current visa. A person who arrived lawfully and whose visa has expired can generally still apply. Delay in applying may, however, be raised as a credibility issue. People on a visitor visa should read the guide to applying on a tourist visa.

A broader list of requirements, costs and steps appears in the guide to protection visa requirements, costs and applying.

Security, character and exclusion requirements for Protection Visa 866

The requirements for Protection Visa 866 include security, character and exclusion criteria that apply even to an applicant who meets the protection criterion.

Under section 36(1B), the applicant must not be assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. Under section 36(1C), there must not be reasonable grounds for considering that the applicant is a danger to Australia's security, or that, having been convicted by a final judgment of a particularly serious crime, they are a danger to the Australian community.

Section 5H(2) excludes a person from the refugee definition if there are serious reasons for considering that they have 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. Section 36(2C) applies equivalent exclusions to complementary protection.

The character requirements are in PICs 4001 and 4003A. PIC 4001 is generally satisfied where the applicant passes the character test, or where the Minister has decided not to refuse the visa despite character concerns. The Minister also has the power in section 501 to refuse a visa on character grounds. Character issues in protection matters raise complex questions, including Australia's non-refoulement obligations.

Health and public interest requirements for Protection Visa 866

The health requirements for Protection Visa 866 are in clauses 866.223 to 866.224B. Applicants are required to undergo the health examinations the Department specifies. The details depend on the applicant's circumstances and are set by the Department's health guidelines.

The public interest criteria are in clause 866.225. All applicants must satisfy PICs 4001 and 4003A. Applicants aged 18 or over at the time of application must also satisfy PIC 4019, which concerns the Australian values statement. A values statement that is not signed when required can prevent grant.

The other time of decision requirements for Protection Visa 866

The remaining requirements for Protection Visa 866 are technical, but each can prevent a grant:

• Clause 866.226 is the national interest criterion. The High Court has limited how it can be used in protection matters.
• Clause 866.227 concerns Temporary Safe Haven visa arrangements and the bar in section 91K.
• Clause 866.230 applies to a child born after the parent applied. The child must be a member of the same family unit of an applicant who meets the protection criterion and has been granted the visa.
• Clause 866.231 excludes a person who has been offered certain forms of permanent stay in Australia.
• Clause 866.232 excludes a person who holds a Resolution of Status visa.
• Clause 866.411 requires the applicant to be in Australia when the visa is granted.

The last of these is the one most often breached in practice. An applicant who leaves Australia while the application is being processed cannot be granted the visa while they are away, and most bridging visas end when the holder departs.

In what order are the requirements for Protection Visa 866 assessed?

The requirements for Protection Visa 866 are assessed in an order set partly by the Migration Act. Section 36A requires the decision maker to consider first whether the applicant is a refugee under section 36(2)(a) and, if so, whether section 36(1C) is satisfied. If the refugee criterion is not met, or it is met but section 36(1C) is not, the decision maker must then consider complementary protection under section 36(2)(aa).

The Department's guidelines explain that these assessments are made without reference to section 36(3), which concerns protection in another country, and, for complementary protection, without reference to the exclusions in section 36(2C). Once either protection criterion is otherwise met, the remaining requirements for Protection Visa 866 can be assessed in the order the officer chooses. As a matter of policy, all parts of section 36 are assessed before any character referral under section 501.

This order matters to applicants in a practical way. It means the Department makes a finding on whether protection obligations are owed even where the visa is ultimately refused for another reason. That finding can be important if the applicant's circumstances later change, or if the case goes to review.

Which requirements for Protection Visa 866 cause the most refusals?

The requirements for Protection Visa 866 that cause the most refusals are the protection criterion itself and the credibility findings that sit beneath it. In most refused cases, the Department does not accept the applicant's account, or accepts it but finds that the applicant could be protected by the authorities or could relocate within their country.

Section 5AAA makes the applicant responsible for specifying all particulars of the claim and providing sufficient evidence to establish it. The Department has no obligation to establish the claim for the applicant. That is why meeting the requirements for Protection Visa 866 is not only a legal question. It is a question of evidence.

If the visa is refused, it can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied. The protection visa refusals page explains what to do.

How My Migration Lawyers assesses the requirements for Protection Visa 866

My Migration Lawyers assesses the requirements for Protection Visa 866 layer by layer, before an application is lodged. The firm deals with complex protection matters and acts in many Subclass 866 applications, including cases involving earlier refusals, character questions, family members and claims under both the refugee and complementary protection grounds. It is capable of handling matters of this kind from assessment to decision and review.

The assessment covers:

• Validity. Whether a valid application can be made, including whether any bar applies.
• The protection criterion. Which ground the applicant's own account and evidence support, including state protection, relocation and protection in another country.
• Family members. Who can be included, and whether each person must make their own claims.
• Security, character and health. Any issue that could prevent grant even if the protection criterion is met.
• Evidence. What the applicant can provide, and how the statement of claims should present the applicant's own account. The statement is reviewed and corrected by the applicant, and the applicant decides which claims are advanced.

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

If you need to know whether you meet the requirements for Protection Visa 866, book a consultation with My Migration Lawyers online, or call 1300 040 300.