Tourist Visa to Protection Visa

What does moving from a tourist visa to protection visa involve?

Moving from a tourist visa to protection visa in Australia means lodging a valid Subclass 866 Protection Visa application while you are in Australia, and then proving your claims through a process that runs from lodgement to a final decision.

The tourist visa to protection visa pathway is lawful and common. The Migration Act 1958 does not require you to have arrived in Australia intending to seek protection. It requires you to be in Australia and to engage Australia's protection obligations under section 36 of the Act. My Migration Lawyers has published a general guide on applying for a Subclass 866 Protection Visa on a tourist visa, which explains who can apply.

This article deals with a different question. It sets out the full tourist visa to protection visa pathway, stage by stage, from the decision to apply through to grant or refusal. It explains what a refusal costs at each stage, and what My Migration Lawyers does at each stage to protect the application.

The stages are these:

• Before lodging: checking for bars, identifying the legal grounds and gathering evidence.
• Lodgement: what the application must contain and which bridging visa you receive.
• Processing: requests for information, adverse information and the interview.
• Decision: grant or refusal.
• After refusal: the bridging visa, review at the Administrative Review Tribunal, the section 48A bar, judicial review, Ministerial intervention and removal.

Each stage depends on the one before it. An error made before lodgement usually cannot be repaired at the interview, and an error at the interview usually cannot be repaired after refusal.

Why a refusal on the tourist visa to protection visa pathway costs more than people expect

A refusal on the tourist visa to protection visa pathway costs more than people expect because section 48A of the Migration Act generally prevents a refused applicant from making another protection visa application while they remain in Australia.

Most people assume that if one application fails, they can apply again with better evidence. For protection visas, that is not the law. Section 48A(1) applies to any person who has applied for and been refused a protection visa of any class. It applies even if the person later holds another substantive visa. Since 28 May 2014, the bar applies to a further application on any grounds, not only the same claims.

This changes how the whole tourist visa to protection visa process should be approached. The first application is not a trial run. It is, in most cases, the only application the person will make in Australia.

What is lost at each stage if the application fails

The practical cost of a refusal grows as the matter moves through each stage:

• At the primary stage, a refusal triggers the section 48A bar and starts the clock on the bridging visa.
• At the review stage, a missed Tribunal deadline generally ends merits review, and the Tribunal decides on the record the applicant builds.
• After the Tribunal, the remaining options are narrow. A court can correct legal error only. The Minister's intervention power is personal and discretionary.
• When every option ends, the person has no visa and no pending process, and the law requires removal.

This is not said to frighten anyone. It is said because the tourist visa to protection visa pathway rewards people who prepare properly at the start, and it is unforgiving to people who do not. Our protection visa lawyers approach every matter on that basis.

Stage 1: What must be checked before a tourist visa to protection visa application is lodged?

Before a tourist visa to protection visa application is lodged, three things must be checked: whether any legal bar prevents a valid application, which legal grounds the claims fall under, and what evidence exists to prove identity and the claims.

This is the stage at which a tourist visa to protection visa matter is most often won or lost. It is also the stage at which advice is most effective, because nothing has yet been put on the record.

Checking for bars

The first question is whether the person can make a valid application at all. Section 48A bars a further application by a person previously refused a protection visa in Australia, and section 48A(1B) applies the same bar after a protection visa cancellation. A person who left Australia after a refusal and later returned is generally no longer caught by section 48A, subject to limited exceptions in section 48A(1A).

Section 46A prevents an unauthorised maritime arrival from making a valid application unless the Minister lifts the bar. Section 91E applies to persons covered by a safe third country agreement, although no safe third countries are currently prescribed. A tourist visa holder who arrived by air with a visa is rarely affected by section 46A, but the immigration history must still be checked. Our guide to protection visa eligibility explains what can stop an application before it starts.

Identifying the legal grounds

The second question is which limb of section 36(2) the claims engage. Section 36(2)(a) applies to a refugee, meaning a person with a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. Section 36(2)(aa) provides complementary protection where there is a real risk of significant harm as a necessary and foreseeable consequence of removal.

The grounds determine what the evidence must prove. They also determine which exceptions the Department will test, including whether the person could relocate within their country, whether the authorities could protect them, and whether the risk is faced by the population generally. The full criteria are set out on our Subclass 866 Protection Visa page.

Gathering identity and supporting evidence

The third question is evidence. Under section 91W the Department may request evidence of identity, nationality or citizenship. Failure to comply, or giving a bogus document, without a reasonable explanation prevents the grant of the visa. Section 91WA has a similar effect where a bogus identity document is given with the application, or identity documents are destroyed after lodgement.

Evidence about the claims themselves matters just as much. Our article on evidence in a protection visa application explains what actually supports a claim, and the protection visa documents checklist sets out what is usually needed.

What My Migration Lawyers does at this stage

Before any tourist visa to protection visa application is lodged, My Migration Lawyers checks the immigration history for section 48A and other bars, identifies the grounds that fit the client's circumstances, and identifies the issues the Department is likely to test. The firm then works with the client on the statement of claims. The statement is the client's own account and evidence, which the firm presents in the form the law requires. The client reviews and corrects it, and the client decides which claims are advanced.

Stage 2: What happens when a tourist visa to protection visa application is lodged?

When a tourist visa to protection visa application is lodged, the application is made online in ImmiAccount, and if the tourist visa is still in effect the applicant is also treated as applying for a Bridging visa A.

What the application must contain

Clause 866.211 of Schedule 2 to the Migration Regulations 1994 requires the applicant, at the time of application, to claim to engage Australia's protection obligations and to make claims as to why. The Department states that the application should include all details of the claims and of the applicant's identity, with no gaps in education, work, travel, address or relationship history. The applicant must tell the truth and is responsible for the claims in the form, even if someone else completed it.

The claims must be in the application from the start. Detail added late is often treated as invented. Our article on the protection visa statement of claims explains how the statement is structured, and our guide to Form 866 explains the form itself.

Family members in Australia who are members of the same family unit can be included in a combined application, with a single visa application charge for the group.

Which bridging visa you receive

Lodging while the tourist visa is still in effect is also an application for a Bridging visa A under item 1301 of Schedule 1. The Bridging visa A does not come into effect until the tourist visa ceases. 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 it operates.

If the tourist visa has already expired, the applicant is an unlawful non-citizen at the time of application and may be granted a Bridging visa E instead. Condition 8101 must initially be imposed on that visa. The bridging visas explained guide compares the two.

Condition 8503 does not stop a tourist visa to protection visa application. It prevents the grant of a substantive visa other than a protection visa while the person remains in Australia. No waiver is needed.

What a mistake at lodgement costs

A mistake at lodgement costs more than a mistake at any later stage, because everything after lodgement is measured against what was lodged. An incomplete statement of claims, an unexplained gap in the personal history, or an inconsistency with the earlier visitor visa application will be raised at interview and relied on in any refusal. At the Tribunal, it will still be on the file.

Stage 3: What happens while a tourist visa to protection visa application is being processed?

While a tourist visa to protection visa application is being processed, the Department may request further information, may put adverse information to the applicant for comment, and will usually invite the applicant to an interview.

The Department does not give processing status updates. It communicates through ImmiAccount and by email. Contact details in the application must be accurate and checked regularly, because a missed request can mean a missed deadline.

Requests for information

Under section 56 of the Migration Act, the Department may request further information. A request has a deadline and should be answered fully and consistently with the claims already made. Our article on responding to a section 56 request explains how to approach one. A section 91W request for identity evidence must be treated with particular care, because failure to comply without a reasonable explanation prevents grant.

Adverse information and section 57

Where the Department holds information that would be a reason, or part of the reason, for refusal, section 57 generally requires it to give the applicant particulars of that information and an invitation to comment. The response is often decisive. It is the applicant's opportunity to answer a problem before the decision is made, rather than after.

The protection visa interview

Most applicants are interviewed. The interview is where the Department tests the claims, the personal history and the explanations for any inconsistency, including inconsistency with the earlier visitor visa application. Our guide to the protection visa interview explains what happens, and our article on preparing for the protection visa interview sets out how to prepare.

Changes of circumstances

A change in address, family situation or other details should be notified to the Department. Our guide to Form 1022 explains when and how.

Why staying in Australia matters during processing

Clause 866.411 requires the applicant to be in Australia when the visa is granted. A Bridging visa A does not permit travel, and travel requires a Bridging visa B. There is a further risk. Under section 338A(2) of the Act, a decision made in relation to a non-citizen who is not physically present in the migration zone when the decision is made is not a reviewable protection decision. A person who travels during a tourist visa to protection visa application may lose Tribunal review as well as the visa.

What My Migration Lawyers does at this stage

Once appointed, My Migration Lawyers is the Department's contact point for the application. The firm responds to requests for information, answers adverse information, prepares the client for the interview and attends the interview with the client. Appointment is made through Form 956.

Stage 4: What happens when the Department decides a tourist visa to protection visa application?

When the Department decides a tourist visa to protection visa application, it either grants the Subclass 866 Protection Visa or refuses it and gives written reasons, together with information about review rights.

If the visa is granted, the applicant becomes a permanent resident with the rights attached to a Subclass 866 Protection Visa. The applicant must be in Australia at the time of grant. Family members included in a combined application who satisfy the secondary criteria are granted the visa at the same time. A grant ends the tourist visa to protection visa process, and the bridging visa ceases when the substantive visa is granted.

If the visa is refused, the decision record matters more than anything the applicant remembers about the process. It sets out which claims were accepted, which were rejected and why. It shows whether the refusal turned on credibility, on relocation, on state protection, on identity, or on a legal criterion. That analysis decides what can be done next and how quickly. Our page on protection visa refusals explains the first steps to take.

The date of notification also matters. Time limits after refusal run from events set by the Act, not from the day the applicant happens to read the letter. A refusal notice should be taken to a lawyer the day it arrives.

What happens to your bridging visa after a tourist visa to protection visa refusal?

After a tourist visa to protection visa refusal, a Bridging visa A granted for the application does not end immediately, but it ceases a fixed period after the refusal decision unless a valid application for Tribunal review is made.

Under clause 010.511 of Schedule 2 to the Regulations, for a Bridging visa A granted on or after 19 November 2016, the visa ceases a set period after the refusal decision. If the applicant applies to the Administrative Review Tribunal, the Bridging visa A continues while the review runs and then ceases a set period after the Tribunal's decision. The periods are measured from the decision itself, not from when the applicant reads it.

When the bridging visa ceases and no other visa is held, the person becomes an unlawful non-citizen. That brings a risk of detention and removal. A person whose bridging visa is a Bridging visa E, rather than a Bridging visa A, must check its own conditions and ceasing events, which may differ. Our guide to how the Bridging visa A ceases explains the rules in more detail.

Can you appeal a tourist visa to protection visa refusal to the ART?

Yes. Most refusals of a Subclass 866 Protection Visa are reviewable protection decisions under section 338A of the Migration Act, and the applicant can apply to the Administrative Review Tribunal for merits review.

The deadline to apply is short and strictly applied. A late application generally cannot be accepted, and merits review is then lost. This is the most time-critical point on the entire tourist visa to protection visa pathway.

Not every refusal can be reviewed in the same way. Section 338A excludes certain refusals, including refusals relying on security or specific character and serious criminality provisions, and decisions made while the applicant was outside the migration zone. Our article on appealing a protection visa refusal to the ART explains which refusals the Tribunal can review.

What the Tribunal does

The Tribunal stands in the shoes of the original decision maker and reconsiders the application on its merits. It can affirm the refusal, set it aside, or remit the matter to the Department. The review is a fresh consideration, but the Tribunal will still look closely at what was said in the original application and at interview. Our Subclass 866 refusal ART guide explains the process in detail, and our article on preparing for a protection visa ART hearing explains how to prepare for the hearing.

What a refusal at the Tribunal costs

If the Tribunal affirms the refusal, the bridging visa ceases a set period later. Merits review is then finished. What remains is narrow and discretionary, as explained below.

Can you lodge a new tourist visa to protection visa application after a refusal?

No. Section 48A of the Migration Act prevents a person who has been refused a protection visa from making a further protection visa application while they remain in Australia, on any grounds, even if they hold another substantive visa.

This is why the tourist visa to protection visa pathway usually allows only one attempt. A person cannot obtain a new tourist visa, or rely on new events, and simply lodge again from inside Australia.

The only exception within Australia is section 48B. Under section 48B, the Minister may personally determine that it is in the public interest to allow a further application. The power is personal and non-compellable. The Minister does not have to consider a request, and requests are rarely granted.

A person who leaves Australia after a refusal and later returns is generally no longer caught by section 48A, subject to limited exceptions. For a person who fears returning home, that is not a real option.

What options remain after the Tribunal affirms a tourist visa to protection visa refusal?

After the Tribunal affirms a tourist visa to protection visa refusal, the remaining options are judicial review in a court and a request for Ministerial intervention. Both are narrow, and neither is a second merits hearing.

Judicial review

A court on judicial review does not decide whether the applicant is a refugee. It decides whether the Tribunal made a legal error in reaching its decision, such as misapplying the law or failing to follow a required procedure. If an error is found, the usual result is that the matter goes back to the Tribunal to be decided again. There is a strict statutory time limit for applying to the court. Our judicial review page explains how the process works.

Ministerial intervention under section 417

Section 417 of the Migration Act allows the Minister to substitute a more favourable decision for a decision of the Tribunal, if the Minister thinks it is in the public interest to do so. The power can only be engaged after the Tribunal has made its decision. It is personal, non-delegable and non-compellable. A decision by the Minister not to intervene cannot be reviewed on its merits.

A first request for Ministerial intervention may support a Bridging visa E in some circumstances. A repeat request generally does not. Our article on how a lawyer assesses a refused protection visa explains how Tribunal review, judicial review and a request to the Minister compare.

Removal once all options end

When every option has ended and the person holds no visa, they are an unlawful non-citizen. Under section 189 of the Migration Act, an unlawful non-citizen is liable to be detained, and under section 198 removal action is required as soon as reasonably practicable. This is the final cost of a refusal on the tourist visa to protection visa pathway, and it is the reason the first application deserves full preparation.

What does a refusal cost at each stage of the tourist visa to protection visa pathway?

A refusal on the tourist visa to protection visa pathway costs something different at each stage, and the cost increases as the options narrow:

• Before lodgement: nothing has been lost yet. This is where advice has the greatest effect.
• At lodgement: an incomplete or inconsistent application becomes the record that every later decision maker reads.
• During processing: a poorly answered request, adverse information left unanswered, or a weak interview becomes a reason for refusal.
• At refusal: section 48A bars a further application in Australia, and the bridging visa begins to run out.
• At the Tribunal: a missed deadline generally ends merits review. An affirmed refusal leaves only narrow options.
• After the Tribunal: judicial review corrects legal error only, section 417 is discretionary, and removal follows when all options end.

The broader framework is explained in our protection visa guide.

When should you get legal advice on the tourist visa to protection visa pathway?

The best time to get legal advice on the tourist visa to protection visa pathway is before the application is lodged, and the next best time is the day any letter from the Department or the Tribunal arrives.

A person can lawfully lodge a protection visa application without a lawyer. The question is not whether it is permitted. The question is whether the applicant can afford the consequences of an error, given that section 48A usually removes the chance to try again in Australia.

Points at which advice matters most

Advice has the greatest effect at these points in a tourist visa to protection visa matter:

• Before lodgement, when the grounds, the evidence and the statement of claims can still be prepared properly.
• Before the tourist visa expires, because lodging while it is in effect gives a Bridging visa A without the no work condition.
• When a section 56 request, a section 91W identity request or a section 57 invitation to comment arrives, because each has a deadline and each answer becomes part of the record.
• Before the interview, because credibility is often decided there.
• The day a refusal arrives, because the Tribunal deadline is short and strictly applied and the bridging visa begins to run out.
• The day the Tribunal decides, because the time limit for judicial review is strict.

Situations that need advice in every case

Some tourist visa to protection visa matters carry extra risk from the start. These include a person with any earlier visa refusal or cancellation, a person whose tourist visa has already expired, a person with missing or inconsistent identity documents, a person who waited a long time after arrival before applying, and a person whose claims depend on complementary protection rather than the refugee criterion. In each of these situations, a small error can decide the outcome.

Our article on when you need a protection visa lawyer explains these situations in more detail.

How My Migration Lawyers handles a tourist visa to protection visa matter

My Migration Lawyers acts for people in Australia on visitor visas who cannot safely return home, and the firm acts in many tourist visa to protection visa matters at every stage, from first advice through to Tribunal review.

The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly deals with complex protection matters, including cases involving earlier visa refusals, missing identity documents, delay after arrival, inconsistency with the visitor visa application, and claims that rely on complementary protection. The firm is capable of handling these matters with the care they require.

Before lodgement

My Migration Lawyers checks for section 48A and other bars, identifies the legal grounds, and identifies the issues the Department will test. The firm works with the client on the statement of claims, which is the client's own account and evidence. The firm presents that account and evidence in the form the law requires. The client reviews and corrects the statement, and the client decides which claims are advanced.

During processing

The firm acts as the Department's contact point, responds to requests for information and adverse information, prepares the client for the interview and attends it with the client.

After a decision

If a refusal occurs, My Migration Lawyers analyses the decision record immediately, advises on Tribunal review within the deadline, and prepares the review. Where the Tribunal affirms the refusal, the firm advises on judicial review and Ministerial intervention.

The right time to seek advice on a tourist visa to protection visa application is before anything is lodged. If a refusal has already arrived, the right time is today.

Book a consultation with My Migration Lawyers. If your matter is urgent, you can also call 1300 040 300.