Protection Visa Australia: The Complete Guide to Subclass 866

What is a protection visa in Australia?

A protection visa is the permanent visa Australia grants to a person who is already in the country and to whom Australia owes protection obligations under the Migration Act 1958. The visa is the Subclass 866 Protection visa. It is applied for onshore, it is decided by the Department of Home Affairs, and if granted it gives permanent residence to the applicant and to the members of their family unit who are included in the application.

The phrase that matters is "protection obligations". Section 36(2) of the Migration Act sets out two ways a person can engage them. The first is that the person is a refugee as defined in section 5H, which turns on a well-founded fear of persecution for one of five reasons. The second is complementary protection under section 36(2)(aa), which applies where there is a real risk that the person will suffer significant harm if removed from Australia, whether or not that harm is connected to one of the five refugee reasons. A person only needs to satisfy one of the two grounds. Both are assessed in the same application, and both lead to the same permanent Subclass 866 visa.

The Subclass 866 is now the only protection visa open to new applicants. The Subclass 785 Temporary Protection visa and the Subclass 790 Safe Haven Enterprise visa were temporary visas for people who arrived by boat without a visa. They are closed to new applications, and existing holders have been moved to the permanent Subclass 851 Resolution of Status visa. The fast track assessment process that applied to those arrivals has also ended. Since 14 October 2024 protection visa refusals are reviewed by the Administrative Review Tribunal, not the former Immigration Assessment Authority.

That history explains a source of confusion. Much of what is published online about "protection visas" in Australia describes the temporary regime, the fast track process or the Refugee Review Tribunal, all of which no longer exist. A person who arrived in Australia lawfully on a visitor, student, work or other visa, and who now fears returning home, is dealing with one visa only, the Subclass 866, and with one review body, the Administrative Review Tribunal. This guide is about that pathway. The firm's service page on the Subclass 866 protection visa sets out how we act on these matters.

Who is eligible for a protection visa in Australia?

A person is eligible for a protection visa if they are in Australia, they can make a valid application, and the Minister is satisfied that Australia has protection obligations to them as a refugee or under complementary protection. Every one of those parts has to be met. Eligibility is therefore two questions, not one: can this person apply at all, and if they can, do they meet the protection criteria.

The first question is about validity. A protection visa application is only valid if the applicant is in Australia when it is made. It cannot be lodged from overseas. The applicant must not be barred. Section 46A bars a person who arrived as an unauthorised maritime arrival from making a valid application unless the Minister personally lifts the bar. Section 48A bars a person who has already had a protection visa refused, or a protection visa cancelled, from making a further protection visa application while they remain in Australia. The application must be made on the approved form with the identity information the form requires. If any of these fail, the Department does not assess the claims at all. It treats the application as never having been validly made.

The second question is the substantive test in section 36(2). The Minister, in practice a delegate in the Department, must be satisfied that Australia has protection obligations to the applicant. That satisfaction rests on the refugee criterion in section 36(2)(a) or the complementary protection criterion in section 36(2)(aa). The burden of putting forward the claims and the evidence sits with the applicant. The Department is not obliged to build the case for them, and the firm's page on protection visa lawyers explains how our lawyers assess both questions at the first consultation.

Meeting one of the two protection grounds is necessary but it is not the end of the assessment. Section 5H(2) excludes a person from the refugee definition where there are serious reasons for considering that they 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. Section 36(1C) and section 36(2C) exclude a person the Minister considers on reasonable grounds to be a danger to Australia's security, or who has been convicted of a particularly serious crime and is a danger to the Australian community. The applicant must also satisfy the health and character requirements that apply to the visa, including the public interest criteria in Schedule 4 of the Regulations.

There is a further limb that applicants often do not expect. Under section 36(3), Australia is taken not to have protection obligations to a person who has not taken all possible steps to avail themselves of a right to enter and reside in another country, including a country of which they are a national. Sections 36(4) and 36(5) qualify this where the person fears persecution or significant harm in that other country, or fears that country will send them on to a place where they face harm. Dual nationals and people with residence rights elsewhere have to deal with this squarely.

Members of the applicant's family unit who are in Australia can be included in the one application under sections 36(2)(b) and 36(2)(c). They do not need their own protection claims. If the main applicant is granted the visa, they are granted it too. They must, however, satisfy the health, character and identity requirements in their own right.

What are the two grounds for a protection visa?

The two grounds for a protection visa are the refugee criterion in section 36(2)(a) of the Migration Act and the complementary protection criterion in section 36(2)(aa). They are separate legal tests with different elements. An applicant only needs to satisfy one, and a well-prepared application usually advances both, because they fail for different reasons.

The refugee criterion requires the Minister to be satisfied that Australia has protection obligations to the applicant because the applicant is a refugee. Section 5H(1) defines a refugee as a person who is outside their country of nationality, or, if they have no nationality, outside their country of former habitual residence, and who, owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country or unable or unwilling to return to it. The fear must be of persecution for one of five reasons: race, religion, nationality, membership of a particular social group, or political opinion. Those five reasons are exhaustive. Fear of harm for any other reason, however real, is not a refugee claim.

Section 5J then defines what a well-founded fear of persecution means. It has three elements. The applicant must fear being persecuted for one of the five reasons. There must be a real chance that, if returned, the applicant would be persecuted for that reason. And the real chance must relate to all areas of the receiving country. Each element has its own body of law, and each is a place where applications fail.

The complementary protection criterion does not depend on the five reasons at all. Section 36(2)(aa) is met where the Minister is satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. Significant harm is defined in section 36(2A) as a closed list of five outcomes: arbitrary deprivation of life, the death penalty being carried out, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The last three are defined terms in section 5(1) of the Act. Nothing outside that list qualifies, no matter how serious.

The practical difference between the grounds is the reason for the harm. A person who fears being killed by a criminal gang over a debt has no refugee claim, because a debt is not one of the five reasons. That person may have a complementary protection claim, because arbitrary deprivation of life is significant harm and the reason for it is irrelevant under section 36(2)(aa). Conversely, a person who fears serious discrimination and harassment because of their religion may have a refugee claim, because serious harm under section 5J(5) is broader than significant harm under section 36(2A), but may struggle on complementary protection if the harm feared does not reach torture or cruel, inhuman or degrading treatment.

Both grounds are subject to relocation, state protection and, for complementary protection, a personal risk requirement. Under section 5J(1)(c) the real chance of persecution must exist in all areas of the country. Under section 36(2B)(a) there is taken to be no real risk of significant harm if it would be reasonable for the applicant to relocate to a part of the country where the risk does not exist. Section 36(2B)(b) removes the risk where the applicant could obtain protection from an authority of the country. Section 36(2B)(c) removes it where the risk is one faced by the population of the country generally and not by the applicant personally. Generalised violence, civil disorder or poverty, on their own, do not satisfy the complementary protection criterion.

Whichever ground is relied on, the decision maker asks the same practical questions. What does this person say will happen to them if they go back. Why. Who will do it. Does the country information support that account. Could they avoid it by moving or by seeking protection from the authorities. The firm's page on complementary protection explains the second ground in more detail, and the sections below take each part of the test in turn.

What counts as persecution under section 5J?

Persecution under section 5J of the Migration Act means serious harm inflicted for one of the five refugee reasons through systematic and discriminatory conduct, where that reason is the essential and significant reason for the harm. All three parts are required. Harm that is serious but random is not persecution. Harm that is discriminatory but minor is not persecution. Harm inflicted for a reason other than the five reasons is not persecution, even if the victim also happens to belong to a protected group.

Section 5J(4) sets out the structure. The reason in section 5J(1)(a) must be the essential and significant reason for the persecution. The persecution must involve serious harm to the person. And it must involve systematic and discriminatory conduct. Systematic and discriminatory conduct means selective targeting rather than, for example, random acts of violence that happen to fall on the applicant.

Section 5J(5) gives a non-exhaustive list of what serious harm includes: a threat to the person's life or liberty, significant physical harassment, significant physical ill-treatment, significant economic hardship that threatens the person's capacity to subsist, denial of access to basic services where that denial threatens the capacity to subsist, and denial of the capacity to earn a livelihood of any kind where that denial threatens the capacity to subsist. The recurring phrase is "capacity to subsist". Losing a job is not serious harm. Being shut out of all work in a way that leaves a person unable to feed themselves can be.

Three further provisions cut down claims that would otherwise succeed. Under section 5J(2) there is no well-founded fear if effective protection measures are available to the person in the receiving country. Section 5LA defines those measures as protection from the state, or from a party or organisation controlling the country or a substantial part of it, that is willing and able to offer protection, and that gives the person access to it. Where the agent of harm is the state itself, this provision rarely bites. Where the agent of harm is a private individual or group, the decision maker will ask whether the police and courts would in fact protect the applicant, and the country information on that point decides many cases.

Section 5J(3) provides that there is no well-founded fear if the person could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution. That rule has hard limits written into it. The modification cannot be one that would conflict with a characteristic fundamental to the person's identity or conscience, or that would conceal an innate or immutable characteristic. The subsection lists examples that can never be demanded: altering religious beliefs or concealing one's religion, concealing one's true race, ethnicity, nationality or country of origin, altering political beliefs or concealing them, concealing a physical, psychological or intellectual disability, entering into or remaining in a marriage against one's will, and altering sexual orientation or gender identity or concealing them. A decision maker cannot refuse a claim on the basis that a gay man could live discreetly, or that a convert could keep her faith private. The firm's pages on LGBTI protection visa claims and religious persecution claims deal with how this rule works in those two categories.

Section 5J(6) deals with conduct in Australia. Where an applicant has done something in Australia that would otherwise strengthen their claim, for example joining a political movement or publishing criticism of their government, that conduct must be disregarded unless the decision maker is satisfied it was engaged in otherwise than for the purpose of strengthening the claim. Genuine activity is counted. Activity manufactured for the application is not. Claims that arise after departure, known as sur place claims, are legitimate, but the applicant's motive is examined.

Two of the five reasons need their own explanation. Membership of a particular social group is governed by sections 5K and 5L. Under section 5L a group qualifies where its members share a characteristic, the characteristic is not solely a shared fear of persecution, the characteristic distinguishes the group from society, and the characteristic is either innate or immutable, or so fundamental to identity or conscience that the person should not be forced to renounce it, or one that, though not fundamental, marks the group out. Section 5K deals with the family as a social group and requires that a family member has actually been persecuted for one of the other four reasons. Political opinion includes opinion imputed to a person by the persecutor, whether or not the person holds it.

What is significant harm under complementary protection?

Significant harm under section 36(2A) of the Migration Act is one of exactly five things: arbitrary deprivation of life, the death penalty being carried out on the person, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The list is exhaustive. If the harm an applicant fears does not fall within one of those five categories, the complementary protection criterion cannot be satisfied, however severe the harm may be in ordinary language.

The three treatment categories are defined in section 5(1) of the Act. Torture is an act or omission by which severe pain or suffering, physical or mental, is intentionally inflicted for a purpose such as obtaining information or a confession, punishment, intimidation or coercion, or for a discriminatory reason, and it excludes pain arising only from lawful sanctions. Cruel or inhuman treatment or punishment is an act or omission by which severe pain or suffering is intentionally inflicted, or pain or suffering that is intentionally inflicted and is cruel or inhuman in nature. Degrading treatment or punishment is an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. Each of those definitions carries a requirement of intention. That requirement is what most often defeats claims based on poor medical care, general poverty, or the collapse of public services. Suffering caused by a weak health system is not intentionally inflicted. The deliberate withholding of treatment from a targeted person can be.

Arbitrary deprivation of life is not defined in the Act and takes its ordinary meaning. It captures killings that are unlawful, unjust, capricious or disproportionate, and it can extend to a return to a country where the person is not adequately protected against arbitrary killing. It is distinguished from the death penalty, which is its own category. The death penalty category requires that the penalty will actually be carried out. Return to a country that imposes the death penalty in law but does not carry it out, or where the sentence is likely to be commuted, does not by itself meet the test.

The risk threshold in section 36(2)(aa) is a real risk, and the risk must be personal. There must be substantial grounds for believing that the significant harm is a necessary and foreseeable consequence of removal. Section 36(2B)(c) then provides that there is no real risk where the risk is one faced by the population of the country generally and is not faced by the applicant personally. A person returning to a country in civil war, without more, does not satisfy the criterion. A person returning to a country in civil war who has been individually targeted by one side does.

The harm must arise in the receiving country. Section 5(1) defines the receiving country as the country of nationality, or, for a stateless person, the country of former habitual residence. Harm caused by the act of removal from Australia itself, such as separation from family who remain here, is not significant harm for this purpose. Where a person has more than one country of nationality, or more than one country of former habitual residence, the risk must be assessed against each.

Complementary protection is frequently the stronger ground in cases involving family violence, honour based violence, blood feuds, criminal retribution, and harm at the hands of private individuals where the connection to a refugee reason is contested. It is also frequently the weaker ground in cases of discrimination and economic exclusion that fall short of the five categories. A properly prepared application does not choose between the grounds. It sets out the facts once and shows how those facts satisfy each test.

What does not stop you applying for a protection visa?

Most of the things people believe disqualify them from a protection visa do not. The visa a person currently holds, a no further stay condition, a previous refusal of a different visa, and a visa that has already expired do not prevent a valid protection visa application. Delay caused by one of these mistaken beliefs is one of the most common and most damaging problems our protection visa team sees, because it changes a person's status while they wait, and it can be read against them at interview.

A no further stay condition does not stop a protection visa. Condition 8503 in Schedule 8 of the Migration Regulations 1994 provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. The protection visa exception is written into the condition itself. Conditions 8534 and 8535, which appear on many student and student guardian visas, carve out protection visas in exactly the same words, as does condition 8540. No waiver is needed. The holder does not have to leave Australia. What 8503 does block is a partner, student, skilled or other substantive visa lodged onshore, and that is what the waiver provisions in regulation 2.05 exist for.

The section 48 bar does not stop a protection visa. Section 48 prevents a person who is in Australia without a substantive visa, and who has had a visa refused or cancelled since they last entered, from applying for most visas. Protection visas are among the prescribed classes that remain available. A refused student visa or a cancelled visitor visa therefore does not close this pathway. The bar that does close it is section 48A, which is a different provision with a different trigger, and it is dealt with below.

The current visa does not stop a protection visa. Holders of visitor, student, working holiday, temporary skilled, bridging and most other temporary visas can all lodge. Nor does the expiry of a visa. A person who has become unlawful because their visa ceased can still make a valid protection visa application. The difference is what happens next. A person who holds a substantive visa when they apply will usually be granted a Bridging visa A, which keeps them lawful with the conditions that go with it. A person who is already unlawful will usually be granted a Bridging visa E, which can carry more restrictive conditions and which is granted after the person has come to the Department's attention. The firm's article on bridging visas in Australia explains the differences.

What does stop a protection visa application?

Three things stop a protection visa application before the claims are ever assessed: the section 48A bar after a previous protection visa refusal or cancellation, the section 46A bar on unauthorised maritime arrivals, and a failure to deal properly with identity under sections 91W and 91WA. Each of these is checked at the first consultation, because none of them can be fixed by better evidence later.

The section 48A bar is the most important provision in this area for anyone who has been in the protection system before. If a person has applied for a protection visa in Australia and that application was refused, or if a protection visa they held was cancelled, section 48A prevents them from making a further protection visa application while they remain in Australia. Since amendments that took effect on 28 May 2014, the bar applies on any grounds. A person refused on refugee grounds cannot come back with a complementary protection application, and a person refused on their own claims cannot come back as a member of a family unit. The only way through is section 48B, under which the Minister may personally determine that section 48A does not apply. That power is non-compellable. The Minister does not have to consider a request, and requests that succeed are rare. This is why a first protection visa application must be complete and correct. There is no ordinary second attempt.

The section 46A bar applies to people who entered Australia by sea without a visa and became unauthorised maritime arrivals. Such a person cannot make a valid application for any visa, including a protection visa, unless the Minister personally determines that section 46A does not apply to them. Length of time in Australia does not change this. Most people affected by section 46A have already been through the process, but anyone in that position must obtain advice before lodging anything, because an application made in the face of the bar is not a valid application.

Identity is dealt with by sections 91W and 91WA. Under section 91W, the Minister may ask an applicant to produce documentary evidence of their identity, nationality or citizenship. If the applicant refuses or fails to comply, or produces a bogus document, the visa must be refused unless the applicant has a reasonable explanation and either produces the evidence or takes reasonable steps to do so. Under section 91WA, where an applicant provides a bogus document as evidence of identity, nationality or citizenship, or has destroyed or disposed of documentary evidence of identity, the visa must be refused unless the applicant has a reasonable explanation and either produces documentary evidence of identity or has taken reasonable steps to do so. A bogus document is one that was not issued to the person, was counterfeit or altered, or was obtained by a false statement.

The identity provisions catch people who do not expect them. Someone who fled with false papers, or who left their real passport with a smuggler, or who has never held a birth certificate, may have an entirely reasonable explanation. The explanation has to be put on the record early and in writing, with whatever supporting evidence exists, rather than discovered by the Department at interview. Someone who used a false document to obtain the visa on which they entered Australia has a particularly serious problem and needs advice before the protection application is lodged, not after.

None of these bars is about the merits of the fear. A person with a compelling protection claim who is caught by section 48A has no application to make. That is the harsh reality of the current provisions, and it is the reason the firm treats the first protection visa application as the only one.

How do you apply for a protection visa?

A protection visa application is made in Australia on Form 866, lodged online through ImmiAccount with the applicant's identity documents, a written statement of their claims, and any supporting evidence, after which the Department acknowledges the application, grants a bridging visa where one is needed, and in due course invites the applicant to an interview. The form is long, it must be completed in full, and every answer in it can be tested later against the applicant's statement, their interview and their immigration history.

The statement of claims is the centre of the application. It is the applicant's own account, in their own words, of who they are, what has happened to them, what they fear will happen if they return, who they fear it from, and why the authorities of their country cannot or will not protect them. It should be in the first person. It should be chronological. It should be specific about people, places, dates and events where the applicant can be specific, and honest about gaps in memory where they cannot. It should address the elements of the legal tests without pretending to be a legal submission. And it must be true. The firm's article on the protection visa statement of claims explains how these documents are structured.

Consistency across the file is what the Department tests. The statement is read against the answers in Form 866, against the answers given in the applicant's earlier visa applications, against any statements made at the airport or to the Department on entry, and against the interview. An applicant who told a visa officer that they were coming to Australia to study, and who now says they left because of persecution, has to explain the difference. There is usually a real explanation. It needs to be given before the Department asks.

Identity documents are lodged with the application: passport, national identity card, birth certificate, and any other document that shows who the applicant is and where they are from. Where documents are missing, the applicant explains why and what steps they have taken to obtain them, because of the operation of sections 91W and 91WA described above. Our lawyers ask only for documents an applicant can realistically produce. Visa and travel history is obtained by the firm from Departmental records rather than from the client.

Supporting evidence is everything that corroborates the account. It can include medical reports, police reports, court documents, letters or statements from witnesses, membership records, photographs, messages and social media records, and reports about the applicant's country from reputable sources. Country information is central. The Department relies heavily on the country information reports published by the Department of Foreign Affairs and Trade and on international sources, and an application that engages with that material, including the parts that cut against the applicant, is far stronger than one that ignores it. The firm's articles on evidence in a protection visa application and the protection visa documents checklist list what is commonly used.

Timing matters. There is no statutory deadline for lodging a protection visa application, but delay is relevant. An applicant who has been in Australia for years on other visas, and who applies only when those options run out, will be asked why. The answer may be perfectly good. Fear can develop after arrival. Circumstances at home can change. A person may not have known that the visa existed. But the decision maker will weigh delay when assessing whether the fear is genuine, and the application should deal with it directly. The firm's article on Form 866 and how to prepare the application covers the mechanics of lodgement.

What happens while a protection visa application is being processed?

While a protection visa application is being processed the applicant remains in Australia on their existing visa or on a bridging visa, must not leave Australia without understanding the consequences, may be permitted to work depending on the visa they hold, and must keep the Department informed of any change of address or circumstances. The waiting period is not passive. Evidence can be added, the statement can be supplemented, and the Department can ask for further information at any time.

A person who holds a substantive visa when they lodge is usually granted a Bridging visa A. It comes into effect when the substantive visa ceases and keeps the person lawful until the protection application is finally decided, including through any review. A person who is unlawful when they lodge is usually granted a Bridging visa E once they have made themselves known to the Department. Bridging visa E holders can be subject to reporting conditions and to a no work condition, and their position needs individual advice.

Work rights depend on the bridging visa granted and the conditions attached to it. Many applicants who held a substantive visa at the time of lodging receive a bridging visa that allows them to work. Applicants who were unlawful may receive a bridging visa with condition 8101, which prohibits work, and there are limited circumstances in which that condition can be lifted. An applicant should read the grant notice for their bridging visa, not assume. Access to Medicare and other services likewise depends on the visa held and the applicant's circumstances, and should be checked rather than assumed.

Travel is the risk most applicants underestimate. A Bridging visa A does not permit the holder to leave and re-enter Australia. Leaving on it means the visa ceases and there is no right of return. A Bridging visa B can be applied for where there is a substantial reason to travel, but it is not granted as of course. More fundamentally, clause 866.411 of Schedule 2 to the Regulations requires the applicant to be in Australia when the visa is granted. If the applicant is overseas when the Department is ready to decide, the visa cannot be granted. Travel to the country the applicant claims to fear is likely to be treated as evidence that the fear is not well-founded, and the Department says so plainly on its own website. An applicant who needs to travel for any reason must obtain advice first.

The Department may write to the applicant under section 56 of the Act requesting further information, or under section 57 inviting comment on adverse information it proposes to rely on. These letters carry response periods. A failure to respond does not stop the Department deciding the application on what it has. Every letter from the Department during the processing period should be read the day it arrives, and acted on.

What happens at the protection visa interview?

At the protection visa interview a Departmental officer questions the applicant, usually through an interpreter, about their identity, their history, the events described in their statement and the reasons they fear return, so as to test whether the claims are credible and whether they satisfy the legal criteria. The interview is recorded. It is the single most important event in the processing of the application, and most refusals trace back to it.

The interview is not a conversation. The officer works from the applicant's file, from country information, and from a list of matters the Department wishes to test. Questions cover the applicant's identity and documents, their family, their education and employment, their travel history, how and when they left their country, what happened to them there, who harmed or threatened them and why, what they did about it, why they believe it would happen again, whether they could live safely elsewhere in the country, and what they have done since arriving in Australia. Where the applicant's account conflicts with earlier statements, the visa application on which they entered, or the country information, the officer will put the conflict to them and ask them to explain.

Credibility is assessed on the whole of the evidence. Consistency between the statement and the interview matters, but a decision maker is not entitled to reject an account merely because minor details differ, and the Department's own guidelines recognise that trauma, the passage of time, fear of authority and cultural factors affect how people recall and describe events. What does damage a claim is a material inconsistency that is not explained, an account that grows in the telling, or an answer that contradicts a document the applicant produced. The best preparation is not rehearsal. It is knowing one's own statement thoroughly, understanding which parts of the legal test each part of the story goes to, and being ready to explain the difficult points honestly.

The interpreter is provided by the Department. An applicant is entitled to say that they do not understand the interpreter, and should say so immediately if that is the case. An applicant may be accompanied by their lawyer, who can make a submission at the end and who receives the recording afterwards. Following the interview the Department may issue a further request for information or a letter inviting comment under section 57, and a written submission responding to the matters raised at interview is frequently the most valuable document on the file.

Preparation for the interview is part of what the firm does on every protection matter, and the firm's page on the protection visa interview explains what that involves. It is the applicant who answers the questions. The lawyer's role is to make sure that the file the officer is working from is complete, that the applicant understands what the officer is testing and why, and that nothing put to the applicant at interview comes as a surprise.

How long is a protection visa valid, and can you get PR after it?

A Subclass 866 Protection visa is a permanent visa, so the question of applying for permanent residence after it does not arise: the grant of the visa is the grant of permanent residence. The holder can live, work and study in Australia indefinitely, can access Medicare and social security on the same footing as other permanent residents, and can apply for Australian citizenship once they meet the residence and other requirements that apply to every permanent resident.

The visa has no expiry date for the purpose of remaining in Australia. What it does have is a travel facility, which is the period during which the holder can leave Australia and return on the visa. When the travel facility ends the holder remains a permanent resident while in Australia, but must obtain a Resident Return visa before travelling if they wish to re-enter. That is the same arrangement that applies to every permanent visa.

Travel is the one area where a protection visa holder is in a different position from other permanent residents. A protection visa was granted because Australia accepted that the holder faces persecution or significant harm in a particular country. Returning to that country voluntarily can be treated as evidence that the protection finding was wrong, or that circumstances have changed, and the Department states on its own website that holders should not travel to their home country without permission. A holder who is considering any travel to the country they were found to fear, for a family funeral, a sick parent or any other reason, should obtain legal advice before booking anything. The visa can be at risk.

How long does a protection visa take, and how much does it cost?

The Department of Home Affairs does not publish a standard processing time for the Subclass 866 Protection visa, and the government application charge for it is small, is a single charge covering everyone included in the one application, and is set out in the Department's current visa pricing table. Neither figure appears in this guide because both can change, and the Department's own pages are the only reliable source for the current position.

Processing time depends on the applicant's case and on the Department's caseload. Applications are not decided in strict date order. Applications the Department considers straightforward, or which raise issues it has already assessed for many other applicants from the same country, can be decided far more quickly than complex or unusual claims. Applications where identity is unclear, where the account changes, where character or security checks are required, or where further information is sought will take longer. The Department has said publicly that new applications are now being decided considerably faster than in recent years, but it has not committed to a timeframe, and no lawyer can promise one.

On cost, the visa application charge is not the real cost of a protection visa. The real cost of a poorly prepared application is a refusal that sits permanently on the applicant's immigration record, closes off other visa options, and triggers the section 48A bar so that no further protection application can be made in Australia. That is the figure worth weighing. Government charges for any review application to the Administrative Review Tribunal are also set by regulation and published by the Tribunal, and they too are left out of this guide for the same reason. My Migration Lawyers charges fixed professional fees for protection visa matters, and those fees are set out in a written costs agreement before any work begins, not on this website.

What happens if a protection visa is refused?

If the Department refuses a protection visa, the applicant can in most cases apply to the Administrative Review Tribunal for a full merits review of the decision, but the application must be lodged within a short, fixed period that runs from the day the applicant is taken to have been notified, and the Tribunal has no power to extend it. A refusal is not the end of the matter, but it starts a clock that cannot be stopped.

The review period is set by section 347(3) of the Migration Act. It is counted in days, not weeks. It runs from deemed notification, not from the day the applicant actually reads the decision. Where a decision is sent electronically, deemed receipt can be the day it is sent. Where it is posted, a deeming period runs from the date of the letter. A shorter period applies to applicants in immigration detention. An applicant who has moved, who has stopped checking the email address on the file, or whose former representative received the decision and did not pass it on, can lose the review right without ever having seen the letter. Applications lodged out of time are not validly made and the Tribunal cannot hear them. The date on the refusal letter is the most urgent piece of information in an applicant's life, and the deadline should be calculated before the reasons are read.

The Tribunal's review is a fresh hearing of the whole case. It is not limited to finding errors in the Department's decision. The Tribunal considers the applicant's claims anew, can receive new evidence and new claims that were never before the Department, holds a hearing at which the applicant gives evidence and is questioned by the Tribunal member, and makes its own decision on whether the applicant meets the criteria. The Tribunal can affirm the refusal, or it can set it aside and substitute a decision that the applicant does satisfy section 36(2), in which case the matter goes back to the Department for the visa to be granted subject to the remaining criteria. The firm's articles on the protection visa ART hearing and its page on protection visa refusals explain how the review runs.

A refusal letter should be read for the reasons, not only the outcome. Departmental refusals set out which elements of the test were not met and why. Common reasons include a finding that the account was not credible because of inconsistencies, a finding that the harm feared does not amount to persecution or significant harm, a finding that the applicant could relocate within their country or obtain state protection, a finding that the harm is not for one of the five reasons, and a finding that the risk is one faced by the population generally. Each of these calls for a different response at the Tribunal, and the review application is prepared around the reasons actually given.

The applicant's bridging visa generally continues while the review is pending, on the same conditions. If the Tribunal affirms the refusal, the protection visa application is finally determined. Section 48A then applies. The applicant cannot make another protection visa application in Australia. Their remaining options are limited to judicial review in the Federal Circuit and Family Court of Australia, which is confined to legal error and does not reconsider the merits, and to requests that the Minister exercise a personal, non-compellable intervention power under provisions such as section 417 or section 48B. Those requests are not appeals and the Minister is not obliged to consider them. A person whose review has failed is expected to depart Australia, and their bridging visa will reflect that.

Because of all of this, the moment a refusal arrives is the moment to obtain advice, not the week after. The firm's page on visa refusals explains what to do in the first days.

What people are told about protection visas that is wrong

Five things are commonly said about protection visas in Australia that are wrong, and each of them causes real damage: that a no further stay condition prevents an application, that a previous visa refusal prevents an application, that lodging a protection application is a safe way to obtain a bridging visa and buy time, that claims can be freely added later at the Tribunal, and that the lawyer writes the story. The law on each is settled.

It is wrong that condition 8503 blocks a protection visa. The words of the condition in Schedule 8 exclude protection visas from its operation. No waiver is required. This error is repeated widely and it causes people who could have applied to wait until their position has deteriorated.

It is wrong that section 48 blocks a protection visa. Section 48 bars most onshore applications after a refusal or cancellation, but protection visas remain available under it. The provision that does bar a protection application is section 48A, and it is triggered only by a previous protection visa refusal or cancellation, not by the refusal of a student, visitor or partner visa.

It is wrong that a protection application is a low risk way to obtain a bridging visa. The application charge is small, the bridging visa follows, and people are told that nothing is lost if the claim fails. Everything is lost. A refusal is permanent on the record, it engages section 48A so that no further protection application can be made, it damages the person's prospects of any future Australian visa, and the Department publishes warnings that false claims can lead to prosecution. The Department has also said publicly that most new applications are now decided much faster than in the past, which means the time bought is shorter than people expect and the consequences arrive sooner.

It is wrong that claims can be freely added at the Tribunal. The Tribunal can consider new claims and new evidence, and sometimes must. But a claim that appears for the first time at review, after it could have been made to the Department, will be examined for why it was not raised earlier, and the delay will be weighed against the applicant's credibility. Section 5J(6) separately requires conduct in Australia undertaken to strengthen a claim to be disregarded. Every claim the applicant has should be in the original application.

It is wrong that the lawyer writes the story. A protection visa statement is the applicant's own evidence. It is their account of their own life, and they will be questioned on it under conditions where any departure from it is held against them. A lawyer's role is to take that account in full, to identify which parts of it go to which elements of the legal tests, to put it into the form the Department requires, to make sure nothing the applicant has actually experienced is left out because they did not know it mattered, and to review it with the applicant until they confirm every word is theirs. The applicant decides which claims are advanced. A statement written for an applicant rather than by them tends to collapse at interview, and it should.

How My Migration Lawyers handles protection visa matters

My Migration Lawyers acts for people in Australia who fear returning to their country, from the first assessment of whether a valid application can be made through to the Department's decision and, where a refusal follows, the review before the Administrative Review Tribunal. Protection visas are one of the two areas of practice on which the firm concentrates, and the firm acts in many matters of exactly this type, including matters where identity is contested, where the applicant has an adverse immigration history, where earlier statements conflict with the current account, and where the claim rests on complementary protection rather than refugee grounds.

The first step in every matter is an assessment by a lawyer of the two questions this guide began with: whether the person can make a valid protection visa application at all, having regard to sections 46A, 48A, 91W and 91WA, and whether, on what the person says has happened to them, the account is capable of satisfying section 36(2)(a) or section 36(2)(aa). The firm gives that advice plainly. Where an application should not be made, the firm says so, because a refused protection visa closes doors that cannot be reopened.

The firm's protection visa work is led by Weiwei Zhang, Principal Lawyer, who is responsible for the firm's protection visa and Tribunal practice. The Principal's profile is at Weiwei Zhang. The firm acts for clients throughout Australia by video and email, and charges fixed professional fees agreed in writing before work begins.

A person who is in Australia and fears returning home, or who has received a protection visa refusal, can request a consultation through the firm's consultation request form. The consultation is with a lawyer, it is confidential, and it begins with the two questions that decide everything else: whether an application can be made, and whether it should be.