Key Takeaways
- Tourist visa protection visa eligibility does not depend on the tourist visa. A person in Australia on a visitor visa is eligible for a Subclass 866 Protection Visa only if they meet the criteria in section 36 of the Migration Act 1958 and the Schedule 2 criteria.
- The applicant must satisfy the security criterion in section 36(1B), the character and danger criterion in section 36(1C), and at least one limb of section 36(2): the refugee criterion, complementary protection or family membership.
- The refugee criterion requires a real chance of persecution in all areas of the home country, involving serious harm and systematic and discriminatory conduct, with a Convention ground as the essential and significant reason.
- Complementary protection requires a real risk of significant harm, but there is no real risk if relocation is reasonable, if protection from an authority is available, or if the risk is faced by the population generally.
- Most refused claims fail on credibility, internal relocation, state protection, the lack of a Convention reason, generalised risk or unexplained delay. Each of these can be identified and addressed before lodgement.
What is tourist visa protection visa eligibility?
Tourist visa protection visa eligibility means whether a person who is in Australia on a tourist or visitor visa meets the legal criteria for a Subclass 866 Protection Visa. The answer depends on section 36 of the Migration Act 1958 and Schedule 2 of the Migration Regulations 1994, not on the tourist visa itself.
A visitor visa does not make a person eligible, and it does not make a person ineligible. Tourist visa protection visa eligibility is decided by the same criteria that apply to every onshore protection applicant. What the visitor visa changes is the practical context: the bridging visa, the work rights, and the questions the Department will ask about what the applicant said when they applied to visit.
My Migration Lawyers has published a general guide on applying for a Subclass 866 Protection Visa on a tourist visa. This article goes further. It takes each eligibility criterion in turn, explains how it applies to a visitor visa holder, and then explains the reasons claims actually fail.
That second part matters most. People who understand why protection claims are refused are in a far better position to judge whether their own case is ready. For most applicants, the first application is the only one, so tourist visa protection visa eligibility should be tested before anything is lodged.
Tourist Visa Protection Visa Eligibility: What the Visitor Visa Does and Does Not Change
The visitor visa does not change the legal test for tourist visa protection visa eligibility, but it does affect bridging visa status, work rights and credibility.
What does not change
The Migration Act does not require a person to have arrived intending to seek protection. It does not require a particular type of entry visa. A person who arrived on a Subclass 600 Visitor visa is assessed under section 36 in exactly the same way as a student, a worker or a bridging visa holder. The general criteria are set out in our guide to protection visa eligibility, and the requirements of the permanent visa are explained in our article on permanent protection visa eligibility.
Condition 8503 (no further stay) is often misunderstood. It prevents the grant of a substantive visa other than a protection visa while the holder remains in Australia. The Department's policy states that it does not prevent a protection visa application, and no waiver is needed.
What does change
Three things change for a visitor. First, lodging while the tourist visa is still in effect is also an application for a Bridging visa A, and condition 8101 (no work) cannot be imposed on a Bridging visa A held by a protection visa applicant whose application has not been finally determined. Our guide to the Bridging visa A explains how that visa operates.
Second, the Department holds the visitor visa application. That application usually described a stable job, family and property at home, because it was designed to show the applicant would return. The protection claims say the applicant cannot safely return. Tourist visa protection visa eligibility is not lost because of that difference, but the difference must be explained.
Third, the time between arrival and lodgement is visible on the record. It is not a bar, but it is tested.
Tourist Visa Protection Visa Eligibility: The Threshold Criteria in Section 36(1A), (1B) and (1C)
Section 36(1A) requires every protection visa applicant to satisfy both section 36(1B) and section 36(1C), and at least one of the criteria in section 36(2).
This structure is the foundation of tourist visa protection visa eligibility. An applicant who is a refugee still cannot be granted the visa if the security or character criteria are not met. An applicant who meets security and character still needs a protection claim that satisfies section 36(2).
Security: section 36(1B)
Section 36(1B) provides that the applicant must not be assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security. If an adverse security assessment is issued, the application must be refused. For most visitor visa holders this criterion raises no issue, but it is part of the test in every case.
Character and danger: section 36(1C)
Section 36(1C) provides that the applicant must not be a person whom the Minister considers, on reasonable grounds, is a danger to Australia's security, or, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
The Department's guidelines break the second limb into four parts. The person must have committed a crime, been convicted by final judgment, the crime must be particularly serious, and the person must be a danger to the community. A conviction alone does not establish danger. Any criminal history, in Australia or overseas, needs to be assessed before a tourist visa protection visa eligibility decision is made.
Protection in another country: section 36(3)
Australia is taken not to have protection obligations to a person who has not taken all possible steps to use a right to enter and reside in another country, including any country of which they are a national, subject to exceptions where the person fears harm in that country or fears being returned from it. A visitor who holds dual nationality, or permanent residence elsewhere, must deal with this issue directly.
Claims at the time of application
Clause 866.211 requires the applicant, at the time of application, to claim to engage Australia's protection obligations and to make claims as to why, or to claim to be a member of the same family unit as such an applicant. The claims must be in the application from the start. Our Subclass 866 Protection Visa page sets out the full list of criteria.
Tourist Visa Protection Visa Eligibility: The Refugee Criterion
The refugee criterion in section 36(2)(a) is met if the applicant is a refugee as defined in section 5H of the Migration Act, which requires a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.
For most visitors, the refugee criterion is the centre of tourist visa protection visa eligibility. Section 5J sets out what a well-founded fear requires. Each element is a separate question, and a claim that fails any one of them fails the criterion.
A real chance of persecution
Section 5J(1) requires a real chance that the applicant would be persecuted if returned. A real chance is one that is not remote or far-fetched. It can be well below fifty per cent. The question looks to the reasonably foreseeable future, not only to what happened in the past. Past harm is strong evidence, but it is not required, and it is not enough on its own if circumstances have changed.
A real chance in all areas of the country
Section 5J(1)(c) requires the real chance to relate to all areas of the receiving country. This is where many visitor claims are tested hardest. If the feared person is a local figure, a family member or a gang in one city, the decision maker will ask why the applicant could not live safely somewhere else. The claim must explain the reach of the persecutor and why no area is safe.
Effective protection measures
Section 5J(2) provides that a fear is not well-founded if effective protection measures are available to the applicant in the receiving country. Section 5LA defines those measures. Protection may come from the state, or from a party or organisation that controls the relevant area. It must be available to the applicant, durable, and from an authority that is willing and able to offer it. A general statement that the police are corrupt is rarely enough. The claim needs specific facts and country information.
Behaviour modification
Section 5J(3) provides that a fear is not well-founded if the applicant could take reasonable steps to modify their behaviour to avoid a real chance of persecution. The section then protects core identity. An applicant cannot be required to alter their religious beliefs, conceal their race, ethnicity or nationality, alter or conceal their political beliefs, or conceal their sexual orientation, gender identity or intersex status. Claims based on religion or sexuality turn on this protection, as explained in our pages on religious persecution and LGBTI protection visas.
Serious harm and systematic and discriminatory conduct
Section 5J(4) requires that the persecution involve serious harm and systematic and discriminatory conduct. Section 5J(5) gives examples of serious harm. They include a threat to life or liberty, significant physical harassment or ill-treatment, and significant economic hardship or denial of access to basic services or to a livelihood, where that threatens the capacity to subsist. Discrimination or unpleasant treatment that does not reach this level is not persecution. Tourist visa protection visa eligibility under the refugee criterion therefore depends on the level of harm, not only on its existence.
A Convention reason as the essential and significant reason
Section 5J(4)(a) requires that the Convention ground be the essential and significant reason for the persecution. It is not enough that the ground is one of many factors, or that it is present in the background. This element is where many tourist visa protection visa eligibility assessments are won or lost, because it separates persecution from crime, revenge and personal conflict.
Exclusion from refugee status
Section 5H(2) excludes a person from the definition of refugee where there are serious reasons for considering that they have committed certain serious crimes, including a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations. These cases are uncommon but must be identified early.
Tourist Visa Protection Visa Eligibility: Complementary Protection
Complementary protection under section 36(2)(aa) is available to an applicant who is not a refugee where there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm.
Complementary protection is a separate path to tourist visa protection visa eligibility. It does not require a Convention reason. That makes it important for visitors whose risk arises from a personal conflict, a criminal group or a family, where the refugee criterion may not fit.
What counts as significant harm
Section 36(2A) defines significant harm exhaustively. It covers arbitrary deprivation of life, the carrying out of the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The harm must fall within one of these categories. Serious hardship that falls outside them does not qualify.
The three exceptions in section 36(2B)
Section 36(2B) provides that there is taken not to be a real risk of significant harm in three situations. The first is where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk. The second is where the applicant could obtain protection from an authority of the country such that there would not be a real risk. The third is where the risk is one faced by the population of the country generally and is not faced by the applicant personally.
The Department's guidelines state that the state protection test under section 36(2B)(b) is different from the refugee test in section 5LA, and findings under one cannot simply be adopted for the other. A claim that fails the refugee criterion on state protection may still succeed under complementary protection, and the reverse is also possible. For tourist visa protection visa eligibility, each exception must be addressed with evidence. Our page on complementary protection explains the test in more detail.
Can family members on a visitor visa be included in the application?
Yes. Family members in Australia can satisfy section 36(2)(b) or (c) as members of the same family unit as an applicant who meets the refugee or complementary protection criterion, and who holds a protection visa of the same class.
For many visitor families, this is how tourist visa protection visa eligibility works for a partner and children. The Regulations allow a combined application with a single visa application charge. Family members who have no claims of their own depend on the main applicant's claims succeeding. They must still meet the security, character, health and public interest criteria that apply to them.
Each family member should be considered separately. A partner or child may have independent claims that are stronger than the main applicant's. Where that is the case, those claims should be put forward in their own right rather than left to rely on the family unit.
Health, public interest and other Schedule 2 criteria
A Subclass 866 Protection Visa cannot be granted unless the Schedule 2 criteria are also met, including health requirements and public interest criteria, and clause 866.411 requires the applicant to be in Australia when the visa is granted.
These criteria rarely decide a visitor's case, but they are part of tourist visa protection visa eligibility. Applicants will generally be asked to undertake health examinations. Public interest criteria cover matters such as character and identity. Under section 91W the Department may ask for evidence of identity, nationality or citizenship, and failing to comply or giving a bogus document without a reasonable explanation prevents grant. The protection visa guide sets out how these requirements fit into the overall process.
Because the applicant must be in Australia at the time of grant, travel during processing carries serious risk. Travel to the country the applicant claims to fear is likely to be treated as evidence against the claim. An applicant who is outside Australia when the decision is made cannot meet clause 866.411, so travel can defeat tourist visa protection visa eligibility in practice.
The My Migration Lawyers Difference
Affordable Fees
Complex Matter Capability
Instalment Payment Options
Two-Day Cooling-off Period
Tourist Visa Protection Visa Eligibility: Why Claims Fail
Protection claims made from a visitor visa most often fail because the decision maker does not accept the account, finds the applicant could relocate or obtain protection, finds no Convention reason, finds the risk is general rather than personal, or doubts the claim because of delay.
Each of these reasons is predictable. Each is also something a properly prepared application addresses before the Department raises it. Understanding them is the most practical way to test tourist visa protection visa eligibility in a real case.
Credibility and inconsistency
Credibility is the most common reason for refusal. The Department compares the protection claims with the visitor visa application, the Form 866, the statement of claims, the interview answers and country information. The Department's guidelines recognise that fear, trauma, shame and mistrust of authorities can affect how an applicant tells their story, and that the benefit of the doubt may be given where the account is otherwise credible. But an officer is not required to accept claims uncritically.
In practice, credibility is lost through unexplained differences. A visitor visa application that said the applicant had a secure job, a new claim that appears for the first time at interview, or dates that shift between documents will all be tested. Our article on the protection visa statement of claims explains how a complete and consistent account is set out.
Internal relocation
Many claims fail because the decision maker finds the applicant could live safely in another part of the country. Under the refugee criterion, section 5J(1)(c) requires a real chance of persecution in all areas. Under complementary protection, section 36(2B)(a) asks whether relocation would be reasonable. A claim that describes harm in one town, but says nothing about the rest of the country, invites this finding.
State protection
A claim also fails where the decision maker finds the authorities could protect the applicant. Under section 5J(2) and section 5LA the question is whether effective protection is available. Under section 36(2B)(b) the question is whether protection would reduce the risk below a real risk. Evidence that the applicant sought help and was refused, or that the persecutor is connected to the authorities, is often decisive. Our guide to evidence in a protection visa application explains what supports these points.
No Convention reason
Personal disputes, ordinary crime and debt are the most common claims that fail the refugee criterion. A person who fears a moneylender, a business partner, a former spouse's family or a local criminal is often at real risk. But the refugee criterion requires that a Convention ground be the essential and significant reason for the harm. Revenge, extortion or a private debt is usually not enough on its own.
These claims are not automatically hopeless. The facts may reveal a Convention reason, such as a particular social group or an imputed political opinion. If they do not, complementary protection may still apply. Tourist visa protection visa eligibility in these cases depends on analysing the facts against both criteria, not only one.
Generalised risk
A claim that describes crime, poverty, instability or conflict affecting everyone in the country usually fails. Section 36(2B)(c) excludes a risk faced by the population generally and not by the applicant personally. The claim must explain what makes this applicant a target. Tourist visa protection visa eligibility cannot rest on country conditions alone.
Delay
A long delay between arrival and lodgement is often used to doubt that the fear is genuine. Delay is not a bar, and there are many legitimate reasons for it, including not knowing the protection system exists, fear of authorities, trauma, and new risk arising after arrival. But the reason must be explained in the claims. Our article on delaying a Subclass 866 Protection Visa application deals with this in detail.
What happens after a refusal
A refused applicant can apply to the Administrative Review Tribunal. The deadline is short and strictly applied. Section 48A generally prevents a further protection visa application while the person remains in Australia. Our page on protection visa refusals and our guide to appealing a protection visa refusal to the ART explain the next steps.
How to test your own tourist visa protection visa eligibility before lodging
The practical way to test tourist visa protection visa eligibility is to answer, with evidence, the same questions the decision maker will ask.
- Is there any earlier protection visa refusal or cancellation that engages section 48A, and is there any security or character issue under section 36(1B) or 36(1C)?
- Who is the feared person or group, and what harm do they intend?
- Why would they harm this applicant personally, and is a Convention ground the essential and significant reason?
- If not, does the harm fall within the categories of significant harm in section 36(2A)?
- Why could the applicant not live safely elsewhere in the country?
- Why could the authorities not protect the applicant?
- How is any difference from the visitor visa application explained, and why was the claim made when it was?
If any of these questions has no clear answer, the claim is not yet ready. The Department will usually test the answers at interview. Our guide to protection visa interview questions shows how each issue is raised in practice.
How My Migration Lawyers assesses tourist visa protection visa eligibility
My Migration Lawyers acts in many protection matters for people in Australia on visitor visas, and assesses tourist visa protection visa eligibility against each criterion in section 36 before any application is lodged.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with complex cases, including claims based on personal disputes or criminal groups, claims where relocation and state protection are contested, cases involving inconsistencies with the visitor visa application, and applications made after a long delay. The firm is capable of handling matters where both the refugee criterion and complementary protection must be argued.
The eligibility assessment
The firm reviews the client's immigration history for bars, security and character issues. It then analyses the facts against section 5J and section 36(2)(aa), identifies the reasons the claim might fail, and explains honestly which issues need evidence and which are genuine weaknesses.
Preparing the application
The statement of claims is the client's own account. My Migration Lawyers helps the client set it out completely and in order, and presents the client's evidence in the form the law requires. The client reviews and corrects the statement, and the client decides which claims are advanced. Once appointed, the firm deals with the Department, responds to requests for information, prepares the client for the interview and attends it.
The best time to test tourist visa protection visa eligibility is before the tourist visa expires and before anything is lodged. Our protection visa lawyers can review your circumstances and advise on your position.
Book a consultation with My Migration Lawyers. If your matter is urgent, you can also call 1300 040 300.
Frequently Asked Questions
How do I know if I meet tourist visa protection visa eligibility before my visa expires?
You meet tourist visa protection visa eligibility only if your circumstances satisfy section 36 of the Migration Act, not because you hold a visitor visa. The key questions are whether you face a real chance of persecution for a Convention reason, or a real risk of significant harm, in all areas of your country, and whether the authorities could protect you. Security, character and health criteria must also be met. Because a refusal usually prevents a second application in Australia, the assessment should be done against the evidence before lodgement, and ideally before the tourist visa expires so that a Bridging visa A is available.
I fear someone I owe money to. Can I still get a protection visa?
Possibly, but a debt dispute on its own usually does not satisfy the refugee criterion. The refugee criterion requires that race, religion, nationality, membership of a particular social group or political opinion be the essential and significant reason for the harm. A claim based only on a private debt often lacks that reason. However, the facts sometimes reveal a Convention reason, and complementary protection does not require one. If there are substantial grounds for believing you face a real risk of significant harm, such as torture or arbitrary deprivation of life, and relocation or state protection would not remove the risk, complementary protection may apply.
My tourist visa application said I had a good job at home. Will that ruin my protection claim?
No. A difference from the visitor visa application does not ruin a claim by itself. The Department can compare what you said in your visitor visa application with your protection claims, and it will want to understand any difference. Many people had a job, property or family and were still in danger. Some concealed the danger in order to leave. The difference becomes a problem only when it is not explained. Your statement of claims should address anything in the visitor visa application that looks inconsistent, in your own words, so that the explanation is on the record before the interview.
The police in my country will not help me. Is that enough?
No. A refusal of help by the police is not usually enough on its own. The Department assesses whether effective protection is available to you under section 5J(2) and section 5LA, and whether protection from an authority would remove the real risk under section 36(2B)(b). A general statement that the police are corrupt is rarely enough. Specific facts carry much more weight, such as reports you made that were ignored, threats that followed a complaint, or a connection between the person you fear and the authorities. Country information about how the authorities respond to cases like yours is also important.
I waited more than a year after arriving before seeking protection. Am I still eligible?
Yes. Delay does not remove eligibility. There is no deadline to apply for a Subclass 866 Protection Visa. However, the Department may treat a long delay as a reason to doubt that your fear is genuine. Legitimate reasons for delay include not knowing about the protection system, fear of authorities, trauma, and new danger that arose after you arrived. The reason must be explained in your claims. Delay also affects your bridging visa, because a person who lodges after the tourist visa has expired receives a Bridging visa E, not a Bridging visa A.
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.
