Subclass 866 Protection Visa Australia: Full Guide

What is a protection visa in Australia?

A protection visa is a permanent Australian visa for a person who is already in Australia and who cannot safely return to their home country. The Subclass 866 Protection visa is the protection visa available to people who arrived in Australia lawfully, and it is the only permanent protection visa granted onshore. It is granted under section 65 of the Migration Act 1958, and the criteria that decide it sit in section 36 of that Act.

The word people usually search for is "protection visa". The word the Department of Home Affairs, the Administrative Review Tribunal and the courts use is "Subclass 866". They are the same visa. A person who holds a student visa, a visitor visa, a temporary work visa or any other substantive visa, and who has come to fear return to their country, applies for the Subclass 866 Protection visa. There is no separate onshore visa for people who arrived by plane with a visa and no different visa for people who fear a particular type of harm.

Once granted, the Subclass 866 Protection visa is permanent from the day of grant. It is not a temporary status that is later converted, and it is not conditional on the applicant remaining in the same circumstances. Temporary protection under the Subclass 785 Temporary Protection visa and the Subclass 790 Safe Haven Enterprise visa applies to a different group, people who arrived in Australia as unauthorised maritime arrivals, and those visas are not available to a person who arrived with a visa.

A protection visa application is also an application for the applicant's family. The members of the family unit who are in Australia are included in the one application rather than lodging separately. Clause 866.411 of the Migration Regulations 1994 then requires the applicant to be in Australia when the visa is granted, which matters far more than most applicants realise and is explained further below.

The rest of this guide sets out who can apply, what has to be proved, how the Department decides the application, what happens to a person's status and work rights while the application is pending, and what the options are if the application is refused. It is written by the protection visa team at My Migration Lawyers, and the statutory references are given in full so that the position can be checked against the legislation itself.

Who can apply for a Subclass 866 Protection visa?

A person can apply for a Subclass 866 Protection visa if they are in Australia, they arrived lawfully, and no statutory bar prevents them from making a valid application. Immigration status at the time of applying matters less than most people expect. A person may apply while holding a substantive visa, and a person whose visa has already expired may still apply, although the consequences for their bridging visa are very different and are set out later in this guide.

Two bars genuinely stop an application from being made at all.

The first is section 48A. A person whose protection visa application has already been refused, or whose protection visa has been cancelled, may not make a further protection visa application while they remain in Australia. This is not a discretion exercised by a delegate. It is a bar written into the Act, and it applies regardless of how much stronger the second application would be. The only relief is section 48B, a personal and non-compellable power of the Minister to lift the bar. It is exercised rarely. The practical consequence is blunt. A first protection visa application is not a trial run. A weak or incomplete first application is usually the last application a person will ever make in Australia.

The second is section 46A. A person who arrived in Australia as an unauthorised maritime arrival cannot make a valid protection visa application unless the Minister personally lifts that bar. Length of residence in Australia does not change this, and nor does the strength of the claim.

Beyond those two bars, the requirement is that the application is validly made. The Department requires Form 866, lodged through ImmiAccount, together with the applicant's statement of claims, identity documents and supporting evidence. The application must be complete on its own terms. Section 5AAA of the Migration Act places the responsibility for specifying all particulars of the protection claim, and for providing sufficient evidence to establish it, on the applicant. Section 5AAA(4) states that the officer deciding the application has no responsibility or obligation to specify, or to assist in specifying, any particular of the claim. A claim that is not put is generally a claim that is not decided.

What must be proved to be granted a protection visa?

Two separate legal tests can result in a protection visa, and an application is assessed against both. The first is the refugee criterion in section 36(2)(a) of the Migration Act. The second is the complementary protection criterion in section 36(2)(aa). They are not alternative descriptions of the same idea. They use different language, they are proved by different evidence, and a person can fail one and succeed on the other.

The order is fixed. A delegate must first assess whether Australia owes protection obligations to the applicant as a refugee under section 36(2)(a). Only if the applicant is found not to be a refugee does the delegate then assess the complementary protection criterion in section 36(2)(aa). This sequence is set out in the Department's own Protection Visa Processing Guidelines, and it is the reason a well prepared application addresses both criteria expressly rather than leaving the second to be inferred.

Both criteria are forward looking. Neither asks whether the applicant has suffered in the past. Each asks what would happen if the applicant were returned now. Past harm is powerful evidence of future risk, and it is often the strongest evidence available, but it is evidence rather than the test itself. An applicant who has suffered a great deal and who can no longer show a present risk will not meet either criterion. An applicant who has never been harmed at all may meet both.

Both criteria are also assessed against a specific country. For the refugee criterion this is the applicant's country of nationality. For complementary protection the term used in section 5(1) of the Act is the "receiving country", which means the country of the applicant's nationality or, for a person with no nationality, the country of their former habitual residence. Whether the applicant could in fact be returned to that country is not relevant to identifying it.

There are further requirements beyond section 36. The applicant must satisfy the public interest criteria applied to the visa, including health and character requirements, and identity must be established to the decision maker's satisfaction. Where every criterion is met, section 65(1)(a) requires the visa to be granted. Where the decision maker is not satisfied, section 65(1)(b) requires the visa to be refused. There is no residual discretion to grant a protection visa on compassionate grounds.

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

The refugee criterion is met where the decision maker is satisfied that the applicant is a refugee, as that term is defined in section 5H(1) of the Migration Act. Section 5H(1) defines a refugee as a person who, owing to a well-founded fear of persecution, is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country. Section 5J then defines what a well-founded fear of persecution means, and it is section 5J, not the general idea of being a refugee, that decides most applications.

The three elements of a well-founded fear

Section 5J(1) contains three elements, and all three must be satisfied.

The first is the reason for the fear. Under section 5J(1)(a) the applicant must fear being persecuted for one or more of five reasons only: race, religion, nationality, membership of a particular social group, or political opinion. Sections 5K and 5L set out how membership of a particular social group is established. This list is closed. A person who fears a criminal gang, a creditor or a violent former partner, and who cannot connect that fear to one of the five reasons, does not meet the refugee criterion no matter how real the danger is. That applicant's case belongs under complementary protection instead.

The second is the level of risk. Under section 5J(1)(b) there must be a "real chance" of persecution. A real chance is a substantial one rather than a remote one, and it is well below the balance of probabilities. An applicant does not have to show that persecution is more likely than not.

The third is geographic. Under section 5J(1)(c) the real chance of persecution must relate to all areas of the receiving country. If there is an area of the country where the applicant would not face a real chance of persecution, and relocation there is reasonable, the criterion is not met. Relocation defeats more claims than most applicants expect, and it is the element that a properly prepared application addresses directly rather than leaving to the delegate.

Two further provisions can end a claim that otherwise looks strong. Section 5J(2) provides that there is no well-founded fear where effective protection measures are available to the applicant in the receiving country, and section 5LA sets out what effective protection measures are. Section 5J(3) provides that there is no well-founded fear where the applicant could take reasonable steps to modify their behaviour so as to avoid a real chance of persecution.

When an applicant cannot be asked to modify their behaviour

Section 5J(3) does not apply where the modification would conflict with a characteristic that is fundamental to the person's identity or conscience, or would conceal an innate or immutable characteristic, or would require the person to do any of the things listed in section 5J(3)(c). Those exceptions are what protect claims based on religion and on sexual orientation or gender identity. An applicant is not required to hide their faith or to conceal their sexual orientation in order to be safe. The Department's own guidelines say so expressly. My Migration Lawyers explains how these exceptions operate in practice on its pages on protection visa claims based on religious persecution and LGBTI protection visa claims.

What counts as persecution

Fear alone is not enough. Section 5J(4) requires three things of the persecution feared. Under section 5J(4)(a) one of the five reasons must be the essential and significant reason for it. Under section 5J(4)(b) it must involve serious harm. Under section 5J(4)(c) it must involve systematic and discriminatory conduct, which means selective targeting rather than random violence.

Section 5J(5) gives a non-exhaustive list of what may amount to serious harm. It 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 person's capacity to subsist, and denial of the capacity to earn a livelihood of any kind where that denial threatens the person's capacity to subsist. Individual incidents that would not meet the threshold on their own may meet it when considered together, and a failure to assess harm cumulatively can amount to jurisdictional error.

Section 5J(6) deals with conduct in Australia. Where an applicant's fear arises from events after they left their country, the claim is known as a sur place claim, and it is valid. A conversion, a political activity or a public disclosure that occurs in Australia can found a protection claim. Section 5J(6) requires the decision maker to disregard conduct engaged in only for the purpose of strengthening the claim, so the genuineness and the timing of that conduct will be examined closely.

Complementary protection under section 36(2)(aa)

Complementary protection is met where the Minister has 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. It exists for people who face genuine danger that has nothing to do with race, religion, nationality, political opinion or membership of a particular social group.

"Significant harm" is defined in section 36(2A), and the definition is a closed list of five categories. The applicant will be arbitrarily deprived of their life. The death penalty will be carried out on them. They will be subjected to torture. They will be subjected to cruel or inhuman treatment or punishment. They will be subjected to degrading treatment or punishment. Each of those terms is separately defined in section 5(1) of the Act. If the harm feared does not fall within one of those five categories, this pathway does not assist, however serious the harm is.

Section 36(2B) then removes three situations from the definition of a real risk. There is taken not to be a real risk of significant harm where it would be reasonable for the applicant to relocate to an area of the country where there would not be such a risk, under section 36(2B)(a); where the applicant could obtain protection from an authority of the country such that there would not be such a risk, under section 36(2B)(b); or where the risk is one faced by the population of the country generally and not by the applicant personally, under section 36(2B)(c).

Section 36(2B)(c) is the provision that defeats the largest number of complementary protection claims. Generalised violence, civil conflict, high crime rates and economic collapse affect the whole population. They are serious, and they are frequently the honest reason a person does not want to return, but they are not a personal risk within the meaning of the section. A complementary protection claim succeeds where the applicant can show the risk attaches to them individually. My Migration Lawyers sets out how the threshold is argued in practice on its page on complementary protection under section 36(2)(aa).

Section 36(2C) contains ineligibility provisions that mirror the exclusions applying to refugee claims, and section 36(3) to section 36(7) deal with an applicant who has an existing right to enter and reside in a third country. A person granted a protection visa on complementary protection grounds receives exactly the same visa as a person granted it as a refugee. There is no lesser status and no different conditions.

How the Department decides a protection visa application

A protection visa application is decided on the applicant's own account of what happened, tested against country information and against the rest of the material on the file. There is no independent evidence of persecution in most cases, because people who flee do not collect documents as they go. That is understood. What it means in practice is that credibility carries the weight that documents would carry in any other visa application.

The written statement of claims is the foundation of the application. It should set out the applicant's own account in their own words, in chronological order, with dates, names and places given to the level of detail the applicant can honestly provide. Where the applicant cannot remember a date or a name, the statement should say so rather than guess. A guess that turns out to be wrong is treated as an inconsistency, and inconsistencies are what refusals are built on.

Identity is assessed separately from the protection claim. Sections 91W and 91WA deal with documentary evidence of identity, nationality and citizenship. Under section 91W(1) an officer may request that evidence, and under section 91W(2) the grant of the visa is prevented where the applicant refuses or fails to comply with the request, or produces a bogus document in response to it, and does not have a reasonable explanation. Section 91WA applies where a bogus document is provided as part of or in connection with the application itself, or where the applicant destroys or disposes of identity documents after lodging. Section 91WA(2) preserves the position where the applicant has a reasonable explanation and either provides genuine documentary evidence or takes reasonable steps to do so. People who left their country using false papers, or who have no papers at all, very often have an entirely reasonable explanation. It must be placed on the record early and in writing, not produced for the first time at interview.

The interview is the decisive stage in most applications. A delegate questions the applicant about their claims, usually at length and usually with an interpreter. Answers are compared with the written statement, with any earlier visa applications, and with country information. Under sections 56 and 57 the Department may invite further information and must, in defined circumstances, give the applicant an opportunity to comment on adverse information before relying on it. What happens at the interview, and how to prepare for it without sounding rehearsed, is covered on the protection visa interview page.

Bridging visas and work rights while a protection visa is pending

A person who lodges a valid protection visa application while they still hold a substantive visa is granted a Bridging visa A, and that bridging visa carries permission to work. This is the single most misunderstood point in the whole subject, and it is stated incorrectly on a great many websites.

The position is set by clause 010.611(1)(b) of the Migration Regulations. Where a person has applied for a protection visa that has not been finally determined, the Bridging visa A is granted with no conditions, and condition 8101, the "no work" condition, cannot be imposed on it. Clause 010.211(4)(b) puts the matter beyond doubt by providing that the "compelling need to work" criterion does not apply to a protection visa applicant. A protection visa applicant on a Bridging visa A does not have to prove financial hardship to be allowed to work, because the question never arises.

The position is materially worse for a person who waits until their substantive visa has already expired. That person is granted a Bridging visa E instead, and under clause 050.613A condition 8101 applies by law unless the person falls within a specified class. To have the condition removed, the applicant must demonstrate both a compelling need to work and an acceptable reason for the delay in applying for the protection visa. The Department's published guidance treats lack of knowledge of the process, reliance on a previous adviser without evidence, and waiting to gather documents as reasons that will not usually be accepted. This is why the timing of lodgement is a legal decision with financial consequences that can run for years, and not an administrative step.

Travel is the other point that catches applicants out. Clause 866.411 requires the applicant to be in Australia when the visa is granted, so the visa simply cannot be granted while the applicant is overseas. Departing Australia does not end the application, and it is not a bar to lodging, but a Bridging visa A generally ceases on departure and does not permit return. An applicant who leaves without first obtaining a Bridging visa B can find that they cannot come back, and that the application cannot be granted because they are not here.

What condition 8503 and section 48 do not do to a protection visa

Condition 8503 does not prevent a protection visa application. This is the most persistent error in online material about protection visas in Australia, and it costs people time they do not have. Condition 8503, the "no further stay" condition, provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa "other than a protection visa". Conditions 8534 and 8535 carry the same words. The carve out is in the condition itself. No waiver is required, and an applicant who has been told they must first obtain a waiver of condition 8503 before applying for protection has been told something the Schedule does not say. What condition 8503 does block is an onshore partner, student or skilled visa application.

Section 48 does not prevent a protection visa application either. Section 48 bars a person whose visa has been refused or cancelled, and who does not hold a substantive visa, from applying for most visas while they remain in Australia. Protection visas are among the prescribed classes that remain available. The bar that matters for protection is section 48A, which is a different provision with a different trigger, and it applies only where a protection visa application has already been refused or a protection visa cancelled.

Leaving Australia does not end a protection visa application. The application remains on foot. The practical difficulty is clause 866.411 and the bridging visa position described above, not the survival of the application itself.

These three points are grouped here deliberately. None of them is a barrier to lodging a protection visa application, and treating them as barriers has caused applicants to delay lodging until their substantive visa expired. That delay is the decision that costs them their work rights and, in some cases, their lawful status.

What happens if a protection visa is refused

A refused protection visa application carries a right of merits review in the Administrative Review Tribunal, and the period for applying is short and strictly applied. The Tribunal has no power to extend it, and the period runs from the day the applicant is taken to have received the decision rather than the day they actually read it. Missing it is generally final. The deadlines that apply, including the shorter period for a person in immigration detention, are set out on the protection visa refusals page.

Review in the Tribunal is a fresh assessment on the merits. The Tribunal is not confined to the material the delegate had and can consider new evidence, and it will ordinarily invite the applicant to a hearing where the claims are tested again. The Tribunal may affirm the refusal or set it aside and remit the application to the Department with directions. Where a matter is remitted, the Department then decides the application again.

What a review is not is a second chance to tell the story differently. The delegate's reasons will set out precisely which claims were rejected and why, and the Tribunal will have those reasons. A review that ignores the findings and simply repeats the original account tends to fail on exactly the same basis. The work that makes a difference is identifying each adverse finding, deciding which findings can be answered with evidence and which cannot, and putting the answer squarely to the Tribunal.

Section 48A then becomes decisive. Once the application has been finally determined, the applicant cannot make another protection visa application while they remain in Australia, whatever new material emerges afterwards. The only remaining avenue is a request that the Minister exercise the personal power in section 48B, which cannot be compelled and is granted rarely. This is the reason the first application, and the review that follows it, deserve the effort that many applicants only begin to apply once it is too late.

How My Migration Lawyers runs a protection visa matter

My Migration Lawyers acts for people who are already in Australia and who are applying for a Subclass 866 Protection visa, and for people whose protection visa has been refused. Protection matters at the firm are led by Weiwei Zhang, Principal Lawyer.

The firm's role is to present the applicant's own account and the applicant's own evidence in the form the law requires. The statement of claims is the client's evidence, drafted from what the client says, and returned to the client to read, correct and confirm before anything is lodged. The client decides which claims are advanced. What the firm brings is the legal framework around that account: identifying which of the five reasons in section 5J(1)(a) the claim engages, or whether it belongs under complementary protection instead, and making sure that relocation under section 5J(1)(c) and section 36(2B)(a), state protection under section 5J(2) and section 36(2B)(b), and personal as against generalised risk under section 36(2B)(c) are each answered in the application rather than left for a delegate to decide without assistance.

Protection work is not suited to a standard form process, and the firm does not run it that way. Every matter begins with an assessment of whether a protection claim is genuinely available on the facts, and an honest answer where it is not. An applicant who is told early that the law does not assist them keeps the ability to consider other options while they still hold a visa. An applicant who is not told loses it.

If you are considering a protection visa, or your protection visa has been refused and the review period is running, you can request a consultation with My Migration Lawyers. Consultations are held by video, and the firm acts for clients across Australia.