Key Takeaways
- Subclass 866 eligibility means satisfying every criterion in section 36 of the Migration Act 1958 and in Schedule 2 of the Migration Regulations 1994, not only the protection test. Failing any one criterion means the visa cannot be granted.
- At the time of application, clause 866.211 requires the applicant to claim that Australia owes them protection and to state why, or to claim to be a member of the family unit of an applicant who does.
- At the time of decision, the applicant must satisfy the protection criterion in clause 866.221, the health criteria in clauses 866.223 to 866.224B, and the public interest criteria in clause 866.225, which include PICs 4001, 4003A and, for applicants aged 18 or over, 4019.
- Sections 36(1B) and 36(1C) of the Act add security and danger criteria that apply to every applicant, and sections 91W and 91WA can prevent grant on identity grounds.
- The visa must be granted while the applicant is in Australia, and in practice most applications that fail do so on the protection criterion itself: credibility, relocation, state protection and personal risk.
What is Subclass 866 eligibility?
Subclass 866 eligibility is the set of legal criteria a person must meet to be granted a permanent protection visa in Australia. It includes the protection test in section 36 of the Migration Act 1958 and every time of application and time of decision criterion for the Subclass 866 in Schedule 2 of the Migration Regulations 1994.
Most explanations of Subclass 866 eligibility stop at the refugee test. That is the central criterion, but it is not the only one. A person who is owed protection can still be refused if a health, character, security, identity or other criterion is not met. And a person who meets every other criterion will be refused if the protection criterion is not met.
This article sets out Subclass 866 eligibility criterion by criterion, in the order the law applies them. For each criterion, it explains what is required, who it affects and where applications usually fail. It is written for people who want to see the whole structure before they apply, and for people who have been told they are "not eligible" and want to understand why.
The protection test itself is explained in more depth in our article on whether you are eligible for a protection visa. Our page on the Subclass 866 protection visa explains the visa and the process.
What the Subclass 866 visa gives
The Subclass 866 is a permanent visa. A person granted the visa can live, work and study in Australia permanently, enrol in Medicare, and later apply for Australian citizenship if the residence and other requirements are met. That is why Subclass 866 eligibility is assessed so carefully.
How Subclass 866 eligibility is built: the Act and the Regulations
Subclass 866 eligibility is built from two sources. The Migration Act sets out the protection, security and danger criteria in section 36. The Regulations set out the time of application criteria in clause 866.211 and the time of decision criteria in clauses 866.221 to 866.232.
Section 36 of the Act
Section 36(1A) requires every applicant to satisfy section 36(1B), section 36(1C), and at least one of the criteria in section 36(2). Section 36(2) contains the refugee criterion, the complementary protection criterion and the family unit criteria.
Schedule 2 of the Regulations
Schedule 2 contains the criteria specific to the Subclass 866. Some must be met when the application is made. Most must be met when the decision is made. The Department's own processing guidelines describe the time of decision criteria as clauses 866.221 to 866.232.
Other provisions in the Act
Other provisions in the Act also affect Subclass 866 eligibility. Sections 91W and 91WA deal with identity documents. Section 48A deals with repeat applications. Section 501 contains the general character test.
Why the order matters
The Department does not need to decide every criterion if one clearly fails. But an applicant preparing an application should address every criterion, because a gap in any one can end the application.
Who decides Subclass 866 eligibility, and on what evidence?
Subclass 866 eligibility is decided by a delegate of the Minister in the Department of Home Affairs, and on review by the Administrative Review Tribunal. The decision maker must be satisfied that each criterion is met, on the evidence before them.
The responsibility of the applicant
Section 5AAA of the Migration Act places the responsibility on the applicant to specify all the particulars of the claim and to provide sufficient evidence to establish it. The decision maker does not have to make the applicant's case for them. That is why the application, the statement of claims and the supporting evidence need to be complete from the start.
What evidence is considered
The decision maker considers the application, the statement of claims, documents, the interview, country information and the Department's own records, including earlier visa applications. Each of these can support or undermine Subclass 866 eligibility.
The standard of satisfaction
The decision maker must be satisfied that the criteria are met. For the protection criterion, the question is whether there is a real chance of persecution or a real risk of significant harm, which is a lower threshold than "more likely than not". But the decision maker must first accept the facts on which the claim depends.
Subclass 866 eligibility at the time of application
At the time of application, Subclass 866 eligibility requires a valid application under Schedule 1 of the Regulations and the time of application criteria in clause 866.211.
A valid application
The application must be made in Australia, online, by a person who is not in immigration clearance, with the visa application charge paid, and no statutory bar must apply. The most important bar is section 48A, which generally prevents a further protection visa application in Australia after an earlier refusal.
Clause 866.211
Clause 866.211 requires one of two things. Under clause 866.211(2), the applicant must claim to engage Australia's protection obligations, as a refugee or under complementary protection, and must make claims as to why. Under clause 866.211(3), the applicant must claim to be a member of the same family unit as another applicant to whom clause 866.211(2) applies.
What this means in practice
An application must contain the claims from the start. A person cannot lodge a placeholder and add the reasons later. Our guide to Form 866 explains how the claims are recorded in the application form, and our article on the protection visa statement of claims explains how they are set out in detail.
The protection criterion: the core of Subclass 866 eligibility
The protection criterion is the core of Subclass 866 eligibility. Clause 866.221 requires the decision maker to be satisfied either that the applicant meets section 36(2)(a) or (aa) of the Act, or that the applicant is a member of the same family unit as another applicant who does and who has been granted the visa.
The refugee criterion
Section 36(2)(a) applies to a person who is a refugee under section 5H. The person must have a well-founded fear of persecution for a Convention reason: race, religion, nationality, membership of a particular social group or political opinion. Section 5J sets out when a fear is well founded, including the requirement that the real chance of persecution relates to all areas of the country.
Complementary protection
Section 36(2)(aa) applies where there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of removal. Significant harm is defined in section 36(2A). Section 36(2B) sets out when there is taken to be no real risk. Our page on complementary protection explains this pathway.
The family unit criterion
Clause 866.221(3) allows a member of the same family unit to be granted the visa where another applicant satisfies the protection criterion and has been granted a Subclass 866 visa. The family member's Subclass 866 eligibility then depends on that grant.
Where applicants fail
Most refused applications fail here. The usual reasons are that the decision maker does not accept the applicant's account, that relocation within the country is found to be reasonable, that state protection is found to be available, or that the risk is found to be faced by the population generally. Our article on evidence in a protection visa application explains how these issues are proved.
Security and danger criteria in Subclass 866 eligibility
Security and danger criteria form part of Subclass 866 eligibility for every applicant. Section 36(1B) requires that the applicant is not assessed by ASIO to be a risk to security, and section 36(1C) requires that there are no reasonable grounds for considering the applicant a danger to Australia's security or, having been convicted of a particularly serious crime, a danger to the community.
Section 36(1B)
If ASIO issues an adverse security assessment, the criterion is not met and the application must be refused.
Section 36(1C)
The particularly serious crime ground requires a conviction by final judgment, a crime that is particularly serious, and a finding that the applicant is a danger to the community. All elements must be established.
The related exclusions
Section 5H(2) excludes certain people from refugee status, and section 36(2C) makes certain people ineligible for complementary protection, on grounds involving serious crimes and danger. These provisions affect a small number of applicants, but they are decisive when they apply.
Health criteria in Subclass 866 eligibility
The health criteria in Subclass 866 eligibility are set out in clauses 866.223 to 866.224B of Schedule 2. They require the applicant, and included family members, to undergo the health examinations the Department requires.
What is required
Applicants are asked to attend medical examinations with an approved provider. The Department sends instructions once the application is being processed. Applicants should attend promptly. Family members included in the application must attend their own examinations. A missed examination is one of the simplest ways for an otherwise strong application to stall.
Why it matters
Health examinations are usually completed after the Department has made progress on the protection assessment. A delay in completing them can delay the decision. Applicants who have been found to engage protection obligations should complete them without delay, because the visa cannot be granted until the health criteria are satisfied.
Public interest criteria in Subclass 866 eligibility
The public interest criteria in Subclass 866 eligibility are in clause 866.225. They require the applicant to satisfy PICs 4001 and 4003A, and applicants aged 18 or over at the time of application must also satisfy PIC 4019.
PIC 4001 and the character test
PIC 4001 requires the applicant to satisfy the Minister that they pass the character test, or that a decision not to refuse the visa has been made. Criminal history, associations and conduct can all be relevant. Our page on visa cancellations explains the character test in more detail.
PIC 4003A
PIC 4003A deals with whether the Foreign Minister has determined that the applicant's presence in Australia may be directly or indirectly associated with the proliferation of weapons of mass destruction. It affects very few applicants. Where it is raised, the applicant should obtain advice immediately.
PIC 4019, the values statement
Applicants aged 18 or over at the time of application must sign the Australian values statement. This is a straightforward requirement, but it must be completed.
Identity and Subclass 866 eligibility
Identity affects Subclass 866 eligibility directly through sections 91W and 91WA of the Act. A failure to comply with a request for identity evidence, or the use of a bogus identity document, without a reasonable explanation, prevents grant of the visa.
Section 91W
The Department may ask the applicant to produce evidence of identity, nationality or citizenship. The request must warn of the consequences. If the applicant refuses or fails to comply, or produces a bogus document, and has no reasonable explanation, the visa cannot be granted.
Section 91WA
Section 91WA applies where a bogus identity document is provided with the application, or identity documents are destroyed or disposed of after lodgement, without a reasonable explanation and without genuine identity evidence or reasonable steps to obtain it.
Identity and credibility
Even where these sections do not prevent grant, identity findings affect the whole assessment, because they decide which country the claims relate to. Our protection visa documents checklist explains the identity documents usually provided.
Subclass 866 eligibility for family members
Subclass 866 eligibility for family members usually depends on the main applicant satisfying the protection criterion and being granted the visa, but each family member must meet the other criteria that apply to them.
Who counts as a family member
A member of the same family unit, as defined in the Act and Regulations, generally includes a spouse or de facto partner, dependent children and certain other dependent relatives. Each must be in Australia and included in the application.
Family members with their own claims
A family member with their own protection claims can satisfy the protection criterion in their own right. Where the main applicant's claim is weak, a family member's own claim may be the stronger basis for the whole family. Both should be identified before lodgement.
The other criteria
Each family member must satisfy the health criteria and the relevant public interest criteria. Adults must satisfy the character requirements and, if aged 18 or over at the time of application, the values statement.
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Other time of decision criteria in Subclass 866 eligibility
The remaining time of decision criteria in Subclass 866 eligibility deal with narrow situations, including temporary safe haven arrangements, children born after the application, offers of permanent stay and holders of a Resolution of Status visa.
Clause 866.227
Clause 866.227 requires that the applicant, or a member of their family unit, has not been offered temporary stay in Australia under Temporary Safe Haven visa arrangements, unless the Minister has determined that the related bar in section 91K does not apply.
Clause 866.230
Clause 866.230 applies to a child born after a parent applied, who is taken to have applied for the same visa. The child must be a member of the same family unit as an applicant who satisfies the protection criterion and has been granted the visa.
Clause 866.231
Clause 866.231 requires that the applicant has not been made certain offers of permanent stay in Australia described in the Regulations.
Clause 866.232
Clause 866.232 requires that the applicant does not hold a Resolution of Status visa.
Who these affect
These criteria affect relatively few applicants. But anyone with an unusual immigration history, including past safe haven arrangements or earlier permanent visa offers, should have their Subclass 866 eligibility checked against them before lodgement.
Subclass 866 eligibility at the time of grant
At the time of grant, Subclass 866 eligibility requires the applicant to be in Australia. The visa cannot be granted to a person who is outside Australia when the decision is made.
Travel while the application is pending
A Bridging visa A does not allow travel. A person who wants to travel must apply for a Bridging visa B, and travel carries serious risks for the application. Travel to the country the applicant claims to fear is likely to be treated as evidence against the claim. Our article on the Bridging visa A explains the travel rules.
After grant
Once granted, the Subclass 866 is a permanent visa. Travel after grant is governed by the visa's travel facility, and holders should understand the effect of returning to the country they feared.
Where Subclass 866 eligibility is usually lost
In practice, Subclass 866 eligibility is usually lost on the protection criterion rather than on the other criteria, and within the protection criterion it is usually lost on credibility, relocation, state protection or personal risk.
Credibility
Most refusals rest on a finding that the decision maker does not accept all or part of the applicant's account. Inconsistency between the application, the statement of claims, the interview and earlier visa applications is the most common cause.
Relocation and state protection
Many applicants whose account is accepted are still refused because they could relocate within their country, or could obtain protection from the authorities. These issues must be addressed with evidence.
Personal risk
Claims based on general conditions in the country, without a personal risk, usually fail.
Procedural failures
Applications are also lost through missed requests for information, missed interviews and missed review deadlines. Our guide to the protection visa interview explains how to prepare, and our page on protection visa refusals explains the steps after a refusal.
Common misunderstandings about Subclass 866 eligibility
Several common beliefs about Subclass 866 eligibility are wrong, and acting on them can lead to delay or to a refusal that cannot be undone.
"My visa type decides whether I am eligible"
It does not. Visitors, students, workers, bridging visa holders and people whose visa has expired can all make a valid application. The visa type affects the bridging visa and the credibility questions, not Subclass 866 eligibility itself.
"A no further stay condition stops me"
It does not. Condition 8503 expressly excludes protection visas.
"If I apply and fail, I can apply again"
Generally not while in Australia. Section 48A prevents a further protection visa application after a refusal. The first application must be the best application.
"If my country is dangerous, I am eligible"
Not on its own. The risk must be personal to the applicant, and relocation and state protection must be addressed. Our article on when you need a protection visa lawyer explains when these issues make legal advice essential.
How My Migration Lawyers assesses Subclass 866 eligibility
My Migration Lawyers assesses Subclass 866 eligibility against every criterion before an application is lodged, and the firm acts in many complex protection matters where more than one criterion is in issue.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly handles protection matters involving character questions, identity problems, family members with their own claims, unusual immigration histories and claims that depend on relocation and state protection findings.
Before lodgement
The firm checks validity and the section 48A position, reviews the client's immigration history itself, and identifies every Schedule 2 criterion that may be in issue. It advises the client honestly on the risks.
Preparing the claim
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 address the protection criterion and any other criterion likely to be raised.
After lodgement
The firm acts as the Department's contact point, responds to requests, prepares the client for the interview and attends with them, and makes sure health and other requirements are completed on time. If the application is refused, the firm advises on review within the deadline.
Book a consultation with My Migration Lawyers through our online booking page to have your Subclass 866 eligibility assessed. 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
What are the main Subclass 866 eligibility requirements?
The main requirements are that you are in Australia, make a valid application with your protection claims, and at the time of decision are found to be a refugee or to meet the complementary protection test, or are a member of the family unit of someone who is. You must also satisfy the security and danger criteria in section 36, the health criteria, the character and other public interest criteria, and the identity provisions. The visa must be granted while you are in Australia.
Can I meet Subclass 866 eligibility if I have a criminal record?
Possibly. A criminal record is assessed under several criteria, including section 36(1C), the refugee exclusions, the complementary protection ineligibility provisions and the character test in PIC 4001. Whether a record prevents grant depends on the offence, the sentence, whether the conviction is final and whether you are considered a danger to the community. Every conviction must be disclosed and advice should be obtained before lodgement.
Do I have to do a medical examination for a Subclass 866 visa?
Yes. The health criteria in Schedule 2 require the applicant and included family members to undergo the health examinations the Department requires. The Department sends instructions during processing. The visa cannot be granted until the health criteria are satisfied, so examinations should be completed promptly once requested.
Is the Subclass 866 visa permanent?
Yes. The Subclass 866 protection visa is a permanent visa. A person granted it can live, work and study in Australia permanently and access Medicare. After meeting the residence and other requirements, the holder may be able to apply for Australian citizenship. Travel after grant is governed by the travel facility attached to the visa.
Can my family meet Subclass 866 eligibility through my application?
Yes, if they are members of your family unit and are in Australia and included in the application. Clause 866.221(3) allows a family member to be granted the visa where another applicant satisfies the protection criterion and is granted the visa. Each family member must still meet the health, character and other criteria that apply to them.
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.
