Understanding Protection Visa Subclass 866

Protection Visa Subclass 866 is the visa most people mean when they talk about seeking asylum in Australia after arriving on a visitor, student or work visa. Understanding Protection Visa Subclass 866 properly means understanding three things: who it is for, who it is not for, and what happens if an application is lodged for the wrong reasons or at the wrong time.

This article is a decision guide. It is written for people who are already in Australia, who are afraid to go home, and who are trying to work out whether Protection Visa Subclass 866 is the right path for them before they commit to it. It explains the entry requirements, the two legal grounds, the permanent consequences of a refusal, and how the visa compares with the other options a person may have.

What is Protection Visa Subclass 866?

Protection Visa Subclass 866 is a permanent visa granted to a person in Australia who engages Australia's protection obligations. In the Migration Regulations 1994 it is the Subclass 866 visa in the Protection (Class XA) visa class.

Protection Visa Subclass 866 is not a temporary or bridging arrangement. If it is granted, the holder becomes a permanent resident of Australia. They can live and work in Australia indefinitely, study, access Medicare and, in time, apply for Australian citizenship.

The visa exists because Australia has obligations under international law not to return a person to a country where they face serious harm. Those obligations are written into section 36 of the Migration Act 1958. A person who meets them, and who also meets the other criteria for the visa, is granted Protection Visa Subclass 866.

The firm's Subclass 866 protection visa page sets out the requirements in summary. This article focuses on whether the visa is the right fit for a particular person.

What Protection Visa Subclass 866 gives the holder

Protection Visa Subclass 866 gives the holder permanent residence from the day it is granted. The practical effect is significant for a person who has been living on a bridging visa, sometimes for years.

The holder can:

• live in Australia without a time limit;
• work for any employer, or run a business, without the work restrictions that apply to many temporary visas;
• enrol in study;
• access Medicare; and
• in time, apply for Australian citizenship once the residence requirements are met.

Protection Visa Subclass 866 also gives the holder the security of knowing that the Department has accepted, through a formal decision, that Australia owes them protection. That finding is the foundation of everything that follows.

There are limits. A protection visa can be cancelled on the grounds that apply to other visas, including character grounds. A holder who returns to the country they feared may also invite questions about whether protection is still needed. The visa is permanent, but it is not unconditional in every sense.

Who is Protection Visa Subclass 866 designed for?

Protection Visa Subclass 866 is designed for a person who meets all of the following:

• they are in Australia;
• they held a valid visa when they last entered Australia and were immigration cleared on arrival; and
• they have a genuine fear of serious harm if they return to their country of nationality, or their country of former habitual residence if they have no nationality.

The entry requirement is the one people most often overlook. The Department's Protection Visa Processing Guidelines explain that, under item 1401(3)(d) of Schedule 1 to the Migration Regulations, applicants who are unauthorised maritime arrivals, or who did not hold a valid visa or were not immigration cleared when they last entered Australia, cannot lodge a valid application for Protection Visa Subclass 866. They may only apply for a Temporary Protection visa (Subclass 785) or a Safe Haven Enterprise visa (Subclass 790).

In practice, this means Protection Visa Subclass 866 is the pathway for people who came to Australia lawfully on a visitor visa, a student visa, a working holiday visa, a sponsored work visa or a partner visa, and who now cannot safely return.

Who cannot apply for Protection Visa Subclass 866?

Several groups cannot make a valid application for Protection Visa Subclass 866 unless the Minister personally allows it.

• People who arrived without a valid visa or without immigration clearance. As explained above, their pathway is a temporary protection visa, not Subclass 866.
• Unauthorised maritime arrivals. Section 46A of the Migration Act bars them from making a valid visa application, including for a protection visa, unless the Minister lifts the bar.
• People previously refused a protection visa in Australia. Section 48A prevents a further protection visa application while the person remains in Australia. Only the Minister can lift that bar under section 48B.
• People who have had a protection visa cancelled since their last arrival. The same section 48A bar applies.
• Certain other groups. The application form also lists people who are nationals of two or more countries and people who have held a Temporary Safe Haven visa as subject to application bars.

An application made by a person caught by one of these bars is not a valid application. The Department does not assess it.

What does not stop a Protection Visa Subclass 866 application

Many people wrongly believe they are disqualified from Protection Visa Subclass 866. The most common mistaken beliefs are these.

A no further stay condition. Condition 8503 is often placed on visitor visas. Schedule 8 of the Migration Regulations states that the holder will not be entitled to be granted a substantive visa, other than a protection visa, while in Australia. The Department's policy confirms that condition 8503 does not prevent the holder from applying for a protection visa. Conditions 8534 and 8535, which appear on some student visas, contain the same carve out.

The section 48 bar. Section 48 limits the visas a person can apply for in Australia after a visa refusal or cancellation, if they do not hold a substantive visa. Protection visas are among the limited classes that remain available. A refused student visa or partner visa does not close the Protection Visa Subclass 866 pathway.

An expired visa. A person whose visa has expired can still apply, provided they originally entered on a valid visa and were immigration cleared. What matters is how the person entered Australia, not what has happened to their visa since. The urgency is greater, however, because an unlawful non-citizen is liable to detention.

The firm's articles on applying for a Subclass 866 protection visa on a tourist visa and on international students applying for a Subclass 866 protection visa explain those two situations in more detail.

Is Protection Visa Subclass 866 the right path for you?

Protection Visa Subclass 866 is the right path only if the honest answer to one question is yes. Is there a real risk that you will suffer serious harm if you return to your country?

That question has a legal meaning. A person must meet one of two grounds.

The refugee ground. Under section 5H and section 5J of the Migration Act, a person is a refugee if they have a well-founded fear of persecution for one of five reasons: race, religion, nationality, membership of a particular social group, or political opinion. The persecution must involve serious harm and systematic and discriminatory conduct.

The complementary protection ground. Under section 36(2)(aa), a person who is not a refugee may still be owed protection if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed, there is a real risk they will suffer significant harm. Significant harm includes arbitrary deprivation of life, the death penalty, torture, and cruel, inhuman or degrading treatment or punishment. The firm's page on complementary protection explains that test.

Each ground also has limits. A person generally does not meet either ground if they could relocate safely within their own country, if effective protection is available from their own government, or if the risk is one faced by the population generally rather than by them personally.

A person who meets neither ground should not apply for Protection Visa Subclass 866, even if every other visa option has closed. The next section explains why.

What Protection Visa Subclass 866 decisions actually turn on

Most Protection Visa Subclass 866 decisions do not turn on a technical point of law. They turn on whether the decision maker accepts the applicant's account, and whether that account, once accepted, meets one of the legal grounds.

Three things usually decide that question.

Credibility. The decision maker compares everything the applicant has said: the application form, the written statement, earlier visa applications, the interview and any later evidence. Inconsistencies are the most common reason claims are rejected. Some inconsistencies have innocent explanations, such as interpreting problems, trauma or fear of disclosure. Those explanations need to be given early and clearly.

Country information. The decision maker assesses the claim against current information about conditions in the applicant's country. A claim that is plausible in light of that information is easier to accept. A claim that conflicts with it needs more support.

Supporting evidence. Documents are not always available to people who fled. Where they are, they should be used carefully. Where they are not, the absence should be explained. The firm's article on evidence that supports a protection claim explains how decision makers treat both.

The written statement is where these three things come together. The firm's guide to the protection visa statement of claims explains how that document should be approached.

The cost of a refused Protection Visa Subclass 866 application

A refused Protection Visa Subclass 866 application is not a neutral event. It has permanent consequences that many people do not understand until it is too late.

The section 48A bar. Once a protection visa application is refused, section 48A prevents the person from making another protection visa application of any class while they remain in Australia. The Department's bridging visa guidelines confirm that, since 28 May 2014, the bar applies even if the new application would be made on different grounds. The only way through is the Minister's personal, non-compellable power under section 48B.

The loss of other options. A person who applies for protection when another visa was available to them may find that the other pathway has become harder or closed while the protection application was pending.

The record. A refused claim, and the findings made about credibility, remain on the person's immigration record and can be relevant to later applications.

For these reasons, a weak first application is not a free attempt. It is often the end of the road. The firm's article on whether delaying a Subclass 866 application affects a claim explains the opposite risk, which is waiting too long.

How Protection Visa Subclass 866 compares with other options

A person who is afraid to return home may have more than one option. Understanding Protection Visa Subclass 866 includes understanding when another visa is the better choice.

• A partner visa. A person in a genuine relationship with an Australian citizen or permanent resident may be eligible for a partner visa. Where that option exists, it should be assessed before, or alongside, any protection claim. The firm's partner visa lawyers page explains the partner pathway.
• Other substantive visas. Some people have study or work options that remain open. The section 48 bar and no further stay conditions may affect those options, and advice is needed on each one.
• Protection Visa Subclass 866. This is the right choice where the fear of harm is genuine and the facts meet one of the legal grounds, and where the person entered lawfully.

These options are not always exclusive. The order in which applications are made, and what is said in each, can matter. A statement made in one application can be compared with a statement made in another. That is one reason advice before lodging is valuable.

What happens after a Protection Visa Subclass 866 application is lodged

After a Protection Visa Subclass 866 application is lodged, the process usually follows these stages:

• A bridging visa. Most applicants who lodge while holding a substantive visa, or shortly after it expires, are considered for a bridging visa that lets them remain lawfully while the application is decided. The firm's overview of bridging visas in Australia explains how they work.
• Checks and requests. The Department conducts identity, security and character checks and may ask for more information or documents.
• An interview. Most applicants are interviewed about their claims. The firm's guide to the protection visa interview explains what happens.
• A decision. The Department grants or refuses the visa. The applicant must be in Australia when the visa is granted.
• Review. If the visa is refused, the applicant can generally apply to the Administrative Review Tribunal. The time to do so is short and strictly applied.

Processing can take a long time. The firm's article on protection visa processing times explains why the wait varies.

Family members and Protection Visa Subclass 866

A Protection Visa Subclass 866 application can include members of the applicant's family unit who are also in Australia, such as a spouse or de facto partner and dependent children. Each person included is assessed, and each must meet the criteria that apply to them, including character and health criteria.

Family members who are not in Australia cannot be granted Protection Visa Subclass 866, because the visa can only be granted to a person in Australia. Their position needs separate consideration.

This makes one rule especially important. Every member of the family, whether in Australia or overseas, should be declared accurately in the application. A family member who is left out of the application can be very difficult to add later, and an omission can also be treated as a credibility issue. The firm's guide to Form 866 explains where family members are declared.

A family member who is in Australia but whose own circumstances differ, for example a partner who may have a separate claim, should also be considered carefully. In some cases it is better for a family member to make their own claim as well as being included in the family application.

Travel while waiting for Protection Visa Subclass 866

Travel is one of the most serious risks for a person waiting on Protection Visa Subclass 866. The visa can only be granted while the applicant is in Australia. Most bridging visas do not allow travel at all, and a bridging visa usually ends when the holder leaves Australia.

Travel to the country the person fears is especially damaging. A decision maker is entitled to ask why a person who fears serious harm in a country would choose to return there. The Department's guidelines treat travel to the feared country as a matter to be assessed on a case-by-case basis. Anyone considering travel for an emergency should obtain advice first.

Common misunderstandings about Protection Visa Subclass 866

Several misunderstandings about Protection Visa Subclass 866 lead people to make poor decisions. Each is corrected here.

"General danger in my country is enough." It usually is not. Both grounds focus on the risk to the individual. A risk faced by the population generally, such as general crime or economic hardship, does not by itself meet the complementary protection ground, and it will not meet the refugee ground unless it is linked to one of the five reasons.

"Poverty or lack of work at home is a protection claim." It is not. Economic hardship, on its own, is not persecution or significant harm under the Migration Act. A person whose only reason for staying is financial should consider other visa options.

"I can apply now and add my real reasons later." This is dangerous. A claim raised late, after an earlier account that left it out, is often treated with suspicion. The best practice is to raise every claim, with its supporting facts, in the first application.

"If I am refused I can simply apply again." The section 48A bar means that is usually not possible. The first Protection Visa Subclass 866 application must be complete.

"Only refugees get this visa." Protection Visa Subclass 866 is also granted on the complementary protection ground. A person who is not a refugee may still be owed protection if the significant harm test is met.

"A lawyer can create a stronger story." A lawyer cannot and must not do that. A lawyer's role is to present the applicant's own account and evidence clearly, accurately and in the form the law requires, and to identify the legal grounds the facts support.

How My Migration Lawyers helps people understand Protection Visa Subclass 866

My Migration Lawyers advises people who are deciding whether Protection Visa Subclass 866 is the right path, and acts for them when it is. The firm acts in many protection visa matters, including complex cases involving expired visas, previous refusals of other visas, and claims under both the refugee and complementary protection grounds. It has the experience to handle those matters from the first assessment through to review.

When a person first contacts the firm about Protection Visa Subclass 866, the work usually includes:

• confirming how the person entered Australia and whether any application bar applies;
• assessing whether their account meets the refugee ground, the complementary protection ground, or both;
• identifying other visa options and whether they should be pursued first or alongside;
• advising on bridging visa and travel consequences before anything is lodged; and
• where the claim should proceed, presenting the person's own account and evidence in the form the law requires.

The applicant decides which claims are advanced. The statement remains their own evidence, reviewed and corrected by them.

The firm's protection practice is led by Principal Lawyer Weiwei Zhang. More information is on the protection visa lawyers page, and the full legal framework is in the Subclass 866 Protection Visa complete guide.

If you are in Australia and afraid to return home, obtain advice on Protection Visa Subclass 866 before you lodge anything. Book a consultation with My Migration Lawyers online, or call 1300 040 300.