Key Takeaways
- There is no visa called a tourist protection visa. A person who arrived in Australia on a tourist visa and was immigration cleared applies for the permanent Subclass 866 Protection Visa, which is what most people mean when they search for a tourist protection visa Australia option.
- A protection claim does not have to exist on the day you arrive. Claims based on events after departure, known as sur place claims, can engage Australia's protection obligations under both the refugee criterion and complementary protection.
- Under section 5J(6) of the Migration Act 1958, conduct in Australia engaged in solely to strengthen a refugee claim is disregarded for the refugee assessment, but it may still be used to assess credibility.
- Section 5J(6) does not apply to complementary protection. The home country's reaction to anything the applicant has done in Australia must still be considered under section 36(2)(aa).
- A claim that arises after arrival is tested hard on timing and genuineness. The evidence and the explanation for the timing should be in the application from the start.
What People Mean by a Tourist Protection Visa Australia Search
A tourist protection visa Australia search is almost always a search for the Subclass 866 Protection Visa, because Australian law has no visa called a tourist protection visa.
The phrase is a common misunderstanding. People who are in Australia on a visitor visa and who now fear returning home search for a tourist protection visa Australia pathway, expecting a special visa for tourists. There is none. The tourist visa is simply the visa that brought the person to Australia. The protection application is a separate application, made in Australia, for a separate visa.
For a person who arrived on a visa and was immigration cleared, that visa is the permanent Subclass 866 Protection Visa. It is permanent from grant. It is the visa most people reach when they look for a tourist protection visa Australia answer.
Where temporary protection visas fit
The Temporary Protection visa (Subclass 785) and the Safe Haven Enterprise visa (Subclass 790) are not tourist pathways. Under item 1401(3)(d) of Schedule 1 to the Migration Regulations 1994, a person who is an unauthorised maritime arrival, or who did not hold a valid visa or was not immigration cleared when they last entered Australia, cannot make a valid application for the Subclass 866 visa. Those people may only be eligible for a Subclass 785 or Subclass 790 visa.
A tourist who arrived at an airport with a valid visitor visa and passed through immigration clearance is not in that group. The Department also states that a Subclass 866 applicant must not hold, or have ever held, a Subclass 785 or Subclass 790 visa, among others.
Can a tourist apply for a Subclass 866 protection visa in Australia?
Yes. A person in Australia on a tourist visa can make a valid application for a Subclass 866 Protection Visa, provided no application bar applies.
The law does not ask why the person came to Australia. It asks whether the person engages Australia's protection obligations under section 36 of the Migration Act 1958. Clause 866.211 of Schedule 2 requires the applicant, at the time of application, to claim to engage those obligations and to make claims as to why.
The general rules for applying from a visitor visa, including bridging visas and work rights, are covered in our guide on applying for a Subclass 866 Protection Visa on a tourist visa. This article deals with a narrower and harder question that arises in many tourist protection visa Australia matters. What happens when the danger did not exist, or was not known, when the person left home?
The one bar every applicant must check first
Section 48A(1) generally prevents a person who has been refused a protection visa from making another protection visa application while in the migration zone. It applies on any grounds. A new claim that arises after a refusal does not remove the bar. Only the Minister can lift it under section 48B, and that power is personal, non-compellable and rarely exercised. This is why a first tourist protection visa Australia application based on new events must be complete when it is lodged.
Tourist Protection Visa Australia: Claims That Arise After Arrival
A tourist protection visa Australia claim can be based entirely on events that happened after the person left their home country, and the law treats these claims as legitimate.
The Department's own Protection Visa Processing Guidelines recognise that a person who would not have engaged protection obligations when they departed may engage them later, because of events after departure. These are called sur place claims. The phrase means "in place". The person became at risk while they were already outside their country.
The guidelines give examples. The events can be the applicant's own activities outside their country. They can be actions taken by the home country. They can be actions of the Australian government or of third parties. They can be a combination of events before and after departure.
Sur place claims apply to both protection grounds
Sur place claims can arise under the refugee criterion in section 36(2)(a) and under complementary protection in section 36(2)(aa). The same legal tests apply as for any other claim. For the refugee criterion, the person must have a well-founded fear of persecution for a Convention reason, which means a real chance of persecution involving serious harm and systematic and discriminatory conduct. For complementary protection, there must be substantial grounds for believing there is a real risk of significant harm as a necessary and foreseeable consequence of removal.
The difference is not the test. The difference is the scrutiny. A decision maker looking at a tourist protection visa Australia application based on recent events will ask two questions early. Did the event really happen, and is the applicant's connection to it genuine?
Why this matters to visitors in particular
Many visitors arrive with no protection claim at all. They come for a holiday, a family visit or an event. While they are here, something changes. A government falls. A law is passed. A family member is arrested. A private life becomes public. For these people, a tourist protection visa Australia claim is not a plan made before travel. It is a response to a new and unexpected risk. That is exactly the situation sur place claims exist to deal with.
What events after arrival can create a tourist protection visa Australia claim?
The events that most often create a tourist protection visa Australia claim are political change at home, a crackdown on a group the person belongs to, the person's own activity in Australia, religious conversion, LGBTIQ+ identity, exposure by someone else, and events affecting family at home.
Each one raises different legal and evidential issues. Each one must still meet the section 36 tests. The list is not closed. Any genuine change that creates a real risk of serious or significant harm can support a tourist protection visa Australia application.
A change of government or law at home
A change of government, a coup, a new law or a change in how an existing law is enforced can create risk that did not exist when the person left. The Department's guidelines expressly recognise changes to legislation or societal attitudes after departure as a basis for sur place claims. A person who was safe under the old regime may be targeted under the new one because of their political opinion, their ethnicity, their religion, their past employment or their family connections.
The evidence usually combines country information about the change with evidence showing why the applicant personally is now at risk. Section 36(2B)(c) of the Act excludes a risk faced by the population generally rather than by the applicant personally, so a general description of instability is not enough.
A crackdown on a group you belong to
A government or a non-state group may begin to target a particular group after the person left. Examples include members of an opposition party, journalists, a religious minority, an ethnic group or human rights workers. The claim must show that the applicant is a member of the group, or would be seen as one, and that the targeting reaches people with the applicant's profile.
Political activity or social media posts in Australia
Protests, community organising, public statements and social media posts made in Australia can create a genuine risk. Many governments monitor their citizens abroad. A person who criticised the home government from Australia may face arrest, questioning or worse on return. Political opinion is a Convention ground, and a political opinion imputed to the applicant by the authorities also counts.
Activity in Australia is where section 5J(6) is most often raised. It is discussed in the next section. The key issues are whether the home authorities know, or are likely to learn, of the activity, and whether the activity reflects the applicant's genuine views.
Religious conversion in Australia
A person may convert to another religion, or leave their religion, while in Australia. In some countries apostasy or conversion is a criminal offence or leads to serious harm from family, community or the state. Under section 5J(3), a person cannot be expected to modify their behaviour by concealing their religion in order to avoid persecution. Our page on religious persecution claims explains how these claims are assessed.
Conversion claims are examined closely for genuineness, and in a tourist protection visa Australia application the timing of the conversion will be tested. The decision maker will want to understand how the applicant came to the faith, how they practise it, and how they would practise it if returned.
Coming out or identifying as LGBTIQ+ after departure
The Department's guidelines recognise that LGBTIQ+ applicants may not have identified as LGBTIQ+ before they left, or may have chosen not to express their sexual orientation or gender identity at home. Sur place LGBTIQ+ claims can arise from a change in the applicant's identity or expression after departure, from the agent of harm discovering it, or from changes in the law or in attitudes at home. A person cannot be expected to conceal their sexual orientation or gender identity to avoid persecution. My Migration Lawyers has a dedicated page on the LGBTI protection visa, and a detailed guide on what an LGBTI protection claim must prove.
Exposure by others
Risk can be created by someone else. A photograph shared online, a message forwarded to family, a report to the authorities or a news story can expose a person's religion, sexuality, political views or relationship. The guidelines give exposure by someone else as an example of how an LGBTIQ+ sur place claim can arise. The same logic applies to other claims. The question is whether the person who now knows can cause, or will cause, serious harm. Exposure claims are common in tourist protection visa Australia matters because the exposure often happens while the person is away.
Family events at home
Events affecting family members can create a claim. A relative may be arrested, attacked or threatened in a way that shows the applicant is now at risk too. Family members may learn of the applicant's conversion, relationship or political activity. A family may arrange a marriage the applicant refuses. Where the claimed particular social group is a family, the Act has specific rules in section 5K about how harm to other family members is assessed, and those rules need careful handling.
What does section 5J(6) mean for a tourist protection visa Australia claim?
Section 5J(6) means that conduct in Australia engaged in solely to strengthen a claim to be a refugee must be disregarded when deciding whether the applicant has a well-founded fear of persecution.
The Department's guidelines describe the provision as dealing with actions taken in bad faith in Australia to create or enhance a refugee claim. If a person joins a protest only to be photographed, or posts online only to build a claim, that conduct is set aside in the refugee assessment.
The word "solely" does the work
The test is whether the sole purpose of the conduct was to strengthen the claim. Conduct that reflects a genuine belief, a genuine faith or a genuine identity is not disregarded just because it also happens to support a claim. A person who genuinely converts, and who also knows the conversion is relevant to protection, is not caught merely because of that knowledge. The question is purpose, and the answer depends on the evidence. A well-prepared tourist protection visa Australia claim shows the history of the belief or identity, not only the recent activity.
Disregarded conduct can still hurt credibility
The guidelines state that conduct disregarded under section 5J(6) may still be taken into account when assessing the applicant's credibility. A finding that a person staged activity to build a claim can damage the whole application, including the parts of the claim that are true. In a tourist protection visa Australia matter, this is a real risk. It is why genuine activity must be presented with evidence of its genuineness, and why no one should ever be advised to create activity for a claim.
How the Department investigates
The guidelines allow officers to make their own enquiries into activity in Australia. Officers may research religious or political organisations in Australia and may contact them for general information, without disclosing the applicant's name. They may use material from earlier tribunal proceedings. If this research produces adverse information, the applicant may be invited to comment on it under section 57 of the Act.
Does section 5J(6) apply to complementary protection?
No. Section 5J(6) applies only to the refugee assessment, and the Department's guidelines state that it is not relevant to complementary protection.
This is one of the most important points in any tourist protection visa Australia claim involving activity in Australia. The guidelines state that, because section 5J(6) is not relevant in assessing complementary protection, the reaction in the applicant's home country to any activities the applicant undertakes in Australia, for any reason, cannot be disregarded. It must be considered on complementary protection grounds.
The practical effect is significant. Even where a decision maker finds that conduct in Australia was engaged in solely to strengthen a claim, the decision maker must still ask whether the home authorities or others would harm the applicant because of it. If there is a real risk of significant harm as a necessary and foreseeable consequence of removal, complementary protection may still be engaged. Our page on complementary protection explains the test, and our article on complementary protection for LGBTI applicants shows how it applies in one common category.
The guidelines go further. A person whose conduct has been disregarded under section 5J(6), and who is not granted a protection visa on that basis, may still engage non-refoulement obligations, and should not be removed until all of the consequences of their conduct have been assessed.
This does not make activity for its own sake a safe strategy. The credibility damage described above remains, and complementary protection has its own exclusions in section 36(2B). But a tourist protection visa Australia application that ignores complementary protection when section 5J(6) is in issue is incomplete.
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How is a genuine sur place claim evidenced?
A genuine sur place claim is evidenced by showing, with documents and a detailed personal account, what changed, when it changed, why the applicant is personally at risk, and how the home country or others know or would learn of it.
There is no legal requirement that every claim be supported by independent evidence. But in a tourist protection visa Australia application based on recent events, evidence of timing and genuineness carries great weight. Our guide to evidence in a protection visa application sets out the general principles.
Evidence of the change at home
For political change, a crackdown or a new law, the evidence usually includes reliable country information about what happened and when. It should also show how the change affects people with the applicant's profile. News reports, reports from international bodies and official statements are commonly relied on.
Evidence of the applicant's own activity
For political activity, the evidence may include membership records, photographs, the history of social media accounts, and statements from organisers. For religious conversion, it may include letters from a religious leader, records of instruction, baptism or equivalent records, and evidence of regular participation over time. For LGBTIQ+ claims, it may include messages, photographs of an ordinary nature, statements from partners or friends and evidence of community involvement. The guidelines state that officers must not ask for explicit photographs or films, and applicants do not need to provide them.
Evidence of exposure and knowledge
The claim must explain how the home authorities, the community or the family know or would learn of the activity or identity. Screenshots, messages from home, reports to police, and threats received are all relevant. Where exposure has not yet occurred, the account should explain why it is likely on return.
The statement ties it together
The evidence only works when it is connected to a clear account. The protection visa statement of claims sets out the applicant's own account of events in order. In a tourist protection visa Australia claim, the statement must also explain the timing. It should say why the claim was not made earlier and what caused it to arise when it did.
Why timing creates credibility risk in a tourist protection visa Australia application
Timing creates credibility risk because a claim that emerges late, or close to a visa expiry, can be treated as a reason to doubt that the claim is genuine.
The Department's guidelines list several reasons a person may delay. They include changes in country conditions or personal circumstances after arrival, waiting until a visa has nearly ceased, being unaware of the right to seek protection, fear, stress or anxiety, and receiving inadequate or incorrect immigration advice. The guidelines state that delay may be taken into account in assessing credibility, depending on the reasons.
Delay alone should not decide the claim
The guidelines also state that delay should not be the only reason for rejecting a claim. There should be other reasons supporting a finding that the claim is not credible. Officers are told to explore the reasons for any delay with the applicant before relying on it. For LGBTIQ+ claims, the guidelines recognise that sensitive claims are often raised late, and that applicants should be given the opportunity to explain delays or changes. Our article on delaying a Subclass 866 Protection Visa application deals with delay in detail.
The timing risks specific to visitors
A visitor who lodges a protection claim shortly before the tourist visa expires will face questions about whether the claim is a way to stay. A person whose conversion, activism or relationship began shortly before lodgement will face questions about purpose under section 5J(6). A person whose earlier visitor visa application described a secure life at home will face questions about consistency.
None of these questions is fatal. Each needs an answer. The answer should be in the tourist protection visa Australia application itself, supported by evidence, rather than left for the decision maker to raise at the protection visa interview.
New events after lodgement
Events can keep changing after the application is lodged. The guidelines state that information provided at any time before a decision must be considered under sections 54 and 55 of the Act. A new claim should be put to the Department promptly and with its own explanation, because information presented late in the process may also be doubted.
Why a new sur place claim needs a lawyer
A new sur place claim needs a lawyer because it engages the most technical parts of protection law at once: section 5J(6), the difference between the refugee test and complementary protection, credibility findings on timing, and the section 48A bar if the first application is not right.
A person with a tourist protection visa Australia problem based on recent events usually faces all of these issues together. The same activity can be disregarded under one test and decisive under another. The same delay can be explained or held against the applicant, depending on how the reason is presented. And a refusal will usually leave only review at the Administrative Review Tribunal, where the deadline to apply is short and strictly applied.
Our protection visa lawyers assess these claims before lodgement, when the evidence and the explanation can still be put together properly. The Definitive Guide to the Subclass 866 Visa explains the wider framework, and our page on protection visa refusals explains what to do if a decision has already gone against you.
How My Migration Lawyers handles a tourist protection visa Australia claim based on events after arrival
My Migration Lawyers acts in many protection matters for people who came to Australia as visitors, including tourist protection visa Australia claims based on events that happened after arrival.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with complex sur place matters, including claims based on political activity in Australia, religious conversion, LGBTIQ+ identity expressed after departure, exposure by others, and changes of government or law at home. The firm is capable of handling claims where section 5J(6) is in issue and where complementary protection must be run alongside the refugee criterion.
Before lodgement
My Migration Lawyers first checks whether any application bar applies, including section 48A. The firm then identifies which legal grounds fit the client's circumstances, and whether section 5J(6) is likely to be raised. It identifies the evidence needed to show what changed, when, and why the client is personally at risk.
The statement of claims is the client's own account and evidence. My Migration Lawyers helps the client set out that account completely and in order, and presents it in the form the law requires. The client reviews and corrects the statement, and the client decides which claims are advanced.
After lodgement
Once appointed, My Migration Lawyers deals with the Department on the client's behalf. The firm responds to requests for information, responds to any invitation to comment on adverse information, prepares the client for the interview and attends it. If new events arise, the firm puts them to the Department with an explanation. If a refusal occurs, the firm advises on review at the Administrative Review Tribunal.
If you are searching for a tourist protection visa Australia answer because something has changed since you arrived, the best time to get advice is before anything is lodged.
Book a consultation with My Migration Lawyers. If your matter is urgent, you can also call 1300 040 300.
Frequently Asked Questions
I came to Australia on a tourist visa and something has happened at home since I arrived. Can I still apply for a tourist protection visa Australia offers?
Yes, although the visa is the Subclass 866 Protection Visa, not a visa called a tourist protection visa. A protection claim can be based on events that happened after you left your home country. These are called sur place claims, and they are assessed under the same refugee and complementary protection tests as any other claim. The application must explain what changed, when it changed and why you are personally at risk. It should also explain the timing of the claim, because the Department will look closely at claims that arise after arrival.
I have been posting about politics at home on social media from Australia. Can that help my protection claim?
It can, if the posts reflect your genuine views and the authorities at home know or are likely to learn of them. Under section 5J(6), conduct in Australia engaged in solely to strengthen a refugee claim is disregarded for the refugee assessment and may be used against your credibility. However, section 5J(6) does not apply to complementary protection, so the home country's likely reaction must still be considered. The history of your accounts, your earlier views and how your activity became known are all relevant evidence.
I converted to a new religion after coming to Australia. Will the Department believe me?
The Department will assess whether your conversion is genuine, and it may make its own general enquiries with religious organisations in Australia. A conversion that reflects genuine belief is not disregarded simply because it is also relevant to protection. The evidence usually includes how you came to the faith, how you practise it, letters from a religious leader and evidence of participation over time. You cannot be expected to conceal your religion at home to avoid persecution, but the claim must show a real risk of harm because of the conversion.
My family found out I am gay after I left home. Is it too late to make a protection claim?
No. The Department's guidelines recognise that LGBTIQ+ claims may arise after departure, including where the agent of harm discovers the applicant's sexual orientation or gender identity after they left. Delay in raising a sensitive claim is common, and the guidelines state that applicants should be given the opportunity to explain it. The application should explain how your family found out, what they have said or done, and why you would be at risk on return. You do not have to provide explicit photographs or films.
I already lodged a protection visa application. What if something new happens before the decision?
You should tell the Department promptly. Information given at any time before the decision must be considered. A new claim should be put with its own explanation and evidence, including why it has arisen now. Information raised late in the process can be doubted, so it is better to provide it as soon as the event occurs rather than waiting for the interview. If a decision has already been made and the application was refused, section 48A generally prevents a further protection visa application while you remain in Australia.
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.
