Subclass 866 Character Requirements

What Are the Subclass 866 Character Requirements for Exclusion and Security?

The Subclass 866 character requirements include exclusion and security provisions that can prevent the grant of a protection visa to a person who would otherwise be owed protection. The most serious of them are the exclusion clause in section 5H(2) of the Migration Act 1958, its complementary protection mirror in section 36(2C)(a), and the security provisions in sections 36(1B) and 36(1C)(a). They apply where there are concerns about the applicant's own past conduct, such as involvement in war crimes or serious crimes, or about the applicant's risk to security.

These parts of the Subclass 866 character requirements are different from the general character test in section 501. They are specific to protection visas, and they reflect exclusion rules in the Refugees Convention itself. They also turn on a different standard of proof. An applicant can be excluded without ever having been charged with or convicted of an offence.

This article explains how exclusion and security are assessed, the conduct that can engage them, and what happens when an applicant is excluded. The general character test and convictions in Australia are dealt with in separate articles in this series. For an overview of the visa, see our Subclass 866 Protection visa page and our complete guide to the Subclass 866 Protection visa.

Exclusion From Refugee Status Under Section 5H(2)

Section 5H(2) of the Migration Act 1958 provides that the definition of a refugee in section 5H(1) does not apply to a person if there are serious reasons for considering that the person falls within any of three categories. Under the Subclass 866 character requirements, those categories are:

• Crimes against peace, war crimes and crimes against humanity. These are defined by reference to international instruments prescribed by the Regulations.
• Serious non-political crimes committed before entering Australia. The crime must be serious, it must be non-political, and it must have been committed before the applicant entered Australia.
• Acts contrary to the purposes and principles of the United Nations. This category is interpreted narrowly and is generally reserved for conduct of an international character, such as serious acts of terrorism.

Under this part of the Subclass 866 character requirements, a person who falls within section 5H(2) is not a refugee, however well-founded their fear of persecution may be. The exclusion is not a balancing exercise. If the ground is established, the refugee definition does not apply.

The Department's Protection Visa Processing Guidelines note that information of this kind can also be relevant to other provisions, including section 36(1C), public interest criterion 4001 and the character test in section 501(6). One set of facts can therefore engage several of the Subclass 866 character requirements at once. Our guide to permanent protection visa eligibility explains how these provisions fit into the criteria for the visa as a whole.

Ineligibility for Complementary Protection Under Section 36(2C)(a)

Section 36(2C)(a) provides that a person is taken not to satisfy the complementary protection criterion in section 36(2)(aa) if there are serious reasons for considering that they have committed a crime against peace, a war crime or 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 Department's Complementary Protection Guidelines state that the crimes and acts in section 36(2C)(a) are the same as those in section 5H(2), and that the same considerations apply. The practical effect is that a person excluded from refugee status is usually also ineligible for complementary protection on the same conduct. There is no second path through the Subclass 866 character requirements once the exclusion ground is established.

This matters for how an application is prepared. An applicant who has any history that could engage the exclusion provisions should not assume that complementary protection offers a fallback. The exclusion issue must be dealt with directly, with evidence and legal argument, in the application itself. Our page on complementary protection explains the complementary protection criterion more generally.

Why Exclusion Works Differently From the Section 501 Character Test

Exclusion under the Subclass 866 character requirements works differently from the general character test in section 501, and the difference affects how a case must be prepared. Refusal under section 501(1) is discretionary. A person who fails the character test may still be granted a visa after the decision maker weighs considerations under Ministerial Direction No. 110, including any non-refoulement obligations. Our pages on visa refusals and visa cancellations explain that discretionary framework.

Exclusion under section 5H(2) and ineligibility under section 36(2C)(a) are not discretionary. If there are serious reasons for considering that the applicant engaged in the relevant conduct, the refugee definition does not apply, or the complementary protection criterion is taken not to be satisfied. There is no weighing of the applicant's family ties, the time spent in Australia or the hardship of refusal.

This is why exclusion cases are won or lost on the facts and on the legal characterisation of those facts. The questions are what the applicant actually did, whether the conduct falls within one of the defined categories, and whether any defence applies. Under this part of the Subclass 866 character requirements, arguments about the applicant's good conduct since arriving in Australia, while relevant elsewhere, do not answer an exclusion finding.

The "Serious Reasons for Considering" Standard

The exclusion grounds in the Subclass 866 character requirements apply where there are "serious reasons for considering" that the applicant engaged in the relevant conduct. This standard is central to every exclusion case under the Subclass 866 character requirements, and it is often misunderstood.

The Department's Complementary Protection Guidelines explain that a finding of serious reasons for considering requires strong evidence that the applicant committed the act or crime. It is not necessary to find that the person did in fact commit the crime. It is also not necessary for the applicant to have been charged with or convicted of the offence.

The guidelines add that evidence of a charge or conviction, or a confession by the applicant, may be highly probative but will not be determinative. The decision maker must assess that evidence in the context of the other evidence available and in the light of any findings about the applicant's credibility.

Three practical consequences follow for applicants facing the Subclass 866 character requirements on exclusion.

• An acquittal or the absence of charges does not end the inquiry. The decision maker can still find serious reasons for considering that the conduct occurred.
• A conviction does not automatically establish exclusion. A conviction imposed by a persecuting state, after an unfair trial or on fabricated evidence, may carry little weight.
• The applicant's own account matters greatly. What the applicant says in the application and at interview about their role in events will often be the most important evidence.

Serious Non-Political Crimes and the Subclass 866 Character Requirements

A serious non-political crime is the exclusion ground most likely to arise in ordinary Subclass 866 applications. The term "serious non-political crime" is not defined in the Migration Act 1958, but "non-political crime" is. Section 5(1) defines it as a crime where the person's motives for committing it were wholly or mainly non-political in nature.

The definition also picks up offences that are not "political offences" under section 5 of the Extradition Act 1988. The Department's guidelines explain that the effect is that offences involving acts of violence against a person's life or liberty, and certain prescribed offences, are not political offences. An applicant cannot avoid exclusion simply by showing that a violent crime was committed for political reasons.

Where the crime is not automatically excluded from being political, the decision maker considers whether the applicant's motivation was wholly or mainly non-political, whether any defence applies, whether the conduct was a crime in the country where it occurred, and whether it is serious. The guidelines state that it may be appropriate to refer to Australian law in deciding seriousness.

The crime must have been committed before the applicant entered Australia. Crimes committed in Australia are dealt with under different provisions of the Subclass 866 character requirements, including section 36(1C) and the character test in section 501.

War Crimes, Crimes Against Humanity and Service in Armed Forces

Applicants who have served in a military, police, security or intelligence force, or in a militia or armed group, can expect their service to be examined under the Subclass 866 character requirements. Form 866 asks directly whether the applicant has served in any of these forces or undergone military or weapons training, and whether they have been associated with an organisation engaged in violence.

Service itself is not a ground for exclusion. The question is whether there are serious reasons for considering that the applicant personally committed, or was responsible for, a crime against peace, a war crime or a crime against humanity. The Department's guidelines note that information about employment in certain occupations in certain countries may indicate a possibility of involvement, and that country information may show that such crimes took place in a location associated with the applicant.

Several issues commonly arise in these cases.

• Membership and complicity. Membership of an organisation that committed crimes does not by itself establish individual responsibility, but a senior role, or knowing contribution to the crimes, may.
• Compulsory service. Conscription is not itself a ground for exclusion, although the conduct during service will be examined.
• Child soldiers. The guidelines direct decision makers to consult the Department's War Crimes Screening Unit where there are indications an applicant may have committed a war crime, including as a child soldier.
• Defences. Defences such as duress may be relevant to crimes against peace, war crimes and crimes against humanity.

Acts Contrary to the Purposes and Principles of the United Nations

The third exclusion ground in the Subclass 866 character requirements applies where there are serious reasons for considering that the applicant has been guilty of acts contrary to the purposes and principles of the United Nations. It appears in section 5H(2)(c) for refugees and in section 36(2C)(a)(iii) for complementary protection.

This ground is interpreted narrowly. It is generally concerned with conduct capable of affecting international peace and security, such as serious acts of international terrorism, rather than ordinary crime. Where it is raised, it requires careful legal analysis of both the conduct and the applicant's role in it.

Evidence in an Exclusion Case

Evidence in an exclusion case must address the specific conduct alleged, and the applicant's account is usually the starting point. The decision maker assesses charges, convictions, confessions and country information together with the applicant's credibility, so every piece of evidence must be consistent with the others.

Useful evidence under this part of the Subclass 866 character requirements can include:

• service records, discharge papers and documents showing the applicant's rank, unit and duties;
• evidence of the dates and places of service, compared with country information about where and when crimes occurred;
• court documents, including evidence of an unfair trial or fabricated charges where a conviction was imposed by the persecuting state;
• statements from people with direct knowledge of the applicant's role; and
• country information about the organisation, its structure and whether its members were routinely involved in crimes.

The written account should explain the applicant's role clearly and accurately. An account that minimises the applicant's role, and is then contradicted by other evidence, can itself lead to adverse findings. Our guides to evidence in a protection visa application, to the protection visa statement of claims and to protection visa interview questions explain how the account and the interview fit together.

Security Under the Subclass 866 Character Requirements

Two security provisions also form part of the Subclass 866 character requirements. Section 36(1B) requires that the applicant is not assessed by ASIO to be directly or indirectly a risk to security. Section 36(1C)(a) excludes an applicant whom the decision maker considers, on reasonable grounds, to be a danger to Australia's security.

The Department's guidelines explain that there is some similarity between these provisions but also differences. Under section 36(1B), if an adverse security assessment is issued, the application must be refused. An applicant who is the subject of an adverse security assessment may not always fail section 36(1C)(a), but will fail section 36(1B). Section 36(2C)(b)(i) contains a mirror of section 36(1C)(a) for complementary protection.

Security assessments under the Subclass 866 character requirements are conducted by ASIO, and an applicant may not be told the detail of the concern. Where an applicant has any history that could attract security interest, such as involvement with a political or armed movement, work for a government agency, or contact with people of security concern, the history should be disclosed accurately and explained in the application.

What Happens When the Subclass 866 Character Requirements Lead to Exclusion

If an applicant is excluded under section 5H(2) or section 36(2C)(a), or fails section 36(1B) or section 36(1C), the protection visa must be refused. That is not, however, the end of the legal analysis.

Australia's non-refoulement obligations under the Convention against Torture and the International Covenant on Civil and Political Rights are absolute. Unlike the Refugees Convention, those instruments contain no exceptions for character or security. The Department's guidance on section 197D explains that the concept of a "protection finding" in section 197C reflects this. Where a person has a protection finding in relation to a country, section 197C(3) prevents their involuntary removal to that country, unless a later decision is made under section 197D that a protection finding would no longer be made.

For the applicant, this can mean that they are refused a visa but cannot be removed to the country they fear. Their status in Australia may then be uncertain, and they may face detention or strict conditions. This is why the Subclass 866 character requirements should never be assessed in isolation from the protection claim. The findings about the claim continue to matter after any refusal.

How Exclusion Issues Arise in Practice

Exclusion issues under the Subclass 866 character requirements usually arise from one of four sources.

• The applicant's own answers. Form 866 asks about military service, association with violent organisations, and involvement in serious crimes. Honest answers can raise questions that must then be explained.
• The interview. Questions about the applicant's role in events, their employment and their political activities can reveal matters not set out in the written application. Our page on the protection visa interview explains how the interview is conducted.
• Departmental information. The Department's guidelines refer to alerts and matches in its systems, and to allegations received from others.
• Country information. Reports about a region, an organisation or a period of conflict can connect the applicant's history with known crimes.

Many applicants who are asked about these matters under the Subclass 866 character requirements are not excluded. The purpose of the questions is to establish the facts. An applicant who gives a full, consistent and truthful account, with supporting evidence, is in a far better position than one who minimises or conceals their history. Our guide to Form 866 explains how the character questions should be answered.

Common Scenarios Under the Subclass 866 Character Requirements

The exclusion and security provisions in the Subclass 866 character requirements arise in a wide variety of situations. The most common include the following.

• A former conscript. The applicant served in the army because service was compulsory. The Department will ask where the applicant served, what they did and whether they witnessed or took part in abuses. Ordinary service, fully explained, does not usually lead to exclusion.
• A former police officer. The applicant fears reprisals after leaving the police force. The Department will examine the applicant's duties, including any role in arrests, interrogations or detention, against country information about police conduct.
• A member of an opposition movement. The applicant was part of a political movement that at times used violence. The questions are the applicant's own role, whether violence against persons was involved, and whether the non-political crime ground applies.
• An applicant accused by the home state of terrorism or other serious crimes. The accusation may itself be part of the persecution. The applicant must still address it, with evidence that the charges are fabricated or politically motivated.
• An applicant involved in moving other people across borders. Involvement in people smuggling or trafficking can engage both the exclusion grounds and the character test in section 501.

In each scenario, the outcome depends on detailed facts. Early advice allows those facts to be set out properly before the Department draws its own conclusions.

Review After an Exclusion Refusal

A refusal based on exclusion or security is generally reviewable by the Administrative Review Tribunal, and the time limit for applying is short and strictly applied. The Tribunal considers the exclusion issue afresh on the evidence before it. Where the decision raises a legal error, such as a misapplication of the "serious reasons for considering" standard, judicial review may also be available. Our pages on protection visa refusals, on the ART review of a Subclass 866 refusal and on judicial review explain these options.

How My Migration Lawyers Acts in Exclusion and Security Matters

My Migration Lawyers acts in many Subclass 866 Protection visa matters and regularly handles complex cases, including applicants with military, police or intelligence service, applicants with political histories involving armed movements, and applicants facing allegations of serious crimes before they came to Australia. These are among the most serious issues under the Subclass 866 character requirements, and they require careful preparation from the start.

• Early identification. We identify any history that could engage section 5H(2), section 36(2C)(a), section 36(1B) or section 36(1C) before the application is lodged.
• The applicant's own account. We take the applicant's account of their role in events and present it in the form the law requires. The statement is the applicant's own evidence. The applicant reviews it, corrects it and approves it, and the applicant decides which claims are advanced.
• Legal submissions. We address the "serious reasons for considering" standard, the definition of a non-political crime and any defences.
• Country evidence. We research the country information about the relevant events, organisations and places.
• Review and non-refoulement. If a refusal occurs, we act on Tribunal or judicial review and advise on the consequences of any protection finding.

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.

Exclusion issues under the Subclass 866 character requirements should be addressed before they are raised by the Department. Book a consultation with My Migration Lawyers today, or call us on 1300 040 300.