Key Takeaways
- Yes. A person in Australia on a Subclass 600 Visitor visa, a Subclass 601 Electronic Travel Authority or a Subclass 651 eVisitor can make a valid visitor visa to protection visa 866 application.
- Condition 8503 (no further stay) does not stop a protection visa application, and no waiver is needed. The condition prevents the grant of other substantive visas, not a protection visa.
- The visitor visa stream decides which conditions you hold now. Condition 8101 or condition 8115 continues to apply until the visitor visa ends, but it cannot be imposed on the Bridging visa A of a protection visa applicant.
- Lodging while the visitor visa is still in effect gives you a Bridging visa A. Lodging after it expires gives you a Bridging visa E, with no work rights at first and a delay that must be explained.
- The Department can compare what you said in your visitor visa application with your protection claims. Any difference should be explained in the protection application itself.
Can you move from a visitor visa to protection visa 866 in Australia?
Yes. A person in Australia who holds a visitor visa can make a valid visitor visa to protection visa 866 application, whichever visitor visa or stream they hold.
This applies to the Subclass 600 Visitor visa in all of its streams: Tourist, Sponsored Family, Business Visitor, Approved Destination Status and Frequent Traveller. It also applies to a Subclass 601 Electronic Travel Authority and a Subclass 651 eVisitor. The visitor visa to protection visa 866 pathway exists because the Migration Act 1958 asks whether you engage Australia's protection obligations under section 36. It does not ask why you came to Australia or which visa you arrived on.
Many people on visitor visas believe they are blocked. They have read that their visa says "no further stay", or they have been told that a visitor cannot apply for anything in Australia. For a protection visa, that belief is wrong. A visitor visa to protection visa 866 application is not blocked by the visitor visa. What matters is that the application is prepared properly, because in most cases there is only one.
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 explains how each visitor visa stream and each visitor visa condition actually affects a visitor visa to protection visa 866 application, and what the visitor visa means for your work rights, your bridging visa and your credibility.
Does condition 8503 stop a visitor visa to protection visa 866 application?
No. Condition 8503 does not stop a visitor visa to protection visa 866 application, and you do not need a waiver of condition 8503 to apply for a protection visa.
The words of the condition answer the question. Condition 8503 provides that the holder will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa, while the holder remains in Australia. The protection visa is expressly excluded from the condition.
The Department's own policy on visitor visa conditions confirms this. It states that condition 8503 does not prevent the holder from applying for a protection visa. The Department's policy on "no further application" conditions says the same thing: such a condition does not prevent a person from applying for a protection visa where the validity requirements are met, and does not prevent a bridging visa application, because a bridging visa is not a substantive visa.
Why so many people get condition 8503 wrong
Condition 8503 is usually described as a "no further stay" condition. People read those words literally and assume they cannot stay in Australia on any basis. Others have heard that a waiver is needed and spend weeks preparing a waiver request that has no purpose for a protection claim.
A waiver of condition 8503 matters only if you want to apply for a different substantive visa in Australia, such as a partner visa or a skilled visa. It is not a step in a visitor visa to protection visa 866 application. Waiting for a waiver decision before lodging a protection claim can cost you time, your visitor visa and your work rights.
How long condition 8503 lasts
Condition 8503 keeps operating after the visitor visa ends, for as long as you remain in Australia. It stops operating when you leave Australia. This matters if your protection application is later refused and you look at other visa options, because condition 8503 will still restrict those options while you are in Australia. It does not affect the protection application itself.
Which visitor visa do you hold, and why does the stream matter?
The stream matters because it decides which conditions you hold today, and those conditions affect your work rights until you lodge, your sponsor if you have one, and how the Department reads your visitor visa file in a visitor visa to protection visa 866 application.
The stream does not decide whether you can apply. It decides the practical position around the application. Check the grant notice for your visitor visa. It states the subclass, the stream and every condition imposed. Our protection visa lawyers review that grant notice at the start of every visitor visa to protection visa 866 matter.
Tourist stream
Conditions 8101 (no work) and 8201 (no study or training for more than three months) are mandatory on a Tourist stream visa. Condition 8503 is discretionary, unless the visa was granted after sponsorship under clause 600.224 was approved. In that case condition 8503 and condition 8531 (must not remain beyond the period of stay) are mandatory. Condition 8558 (no more than 12 months in any 18 month period) may be imposed on a long validity Tourist stream visa.
Sponsored Family stream
Conditions 8101, 8201, 8503 and 8531 are mandatory on a Sponsored Family stream visa. This stream involves a sponsor in Australia and may involve a security bond. The sponsor issue is explained later in this article.
Business Visitor stream
Conditions 8115 (no work other than a business visitor activity) and 8201 are mandatory. Condition 8503 is discretionary. A business visitor may therefore hold no condition 8503 at all. The visitor visa to protection visa 866 position is the same either way.
Approved Destination Status stream
Conditions 8101, 8207 (no study or training at all), 8503 and 8530 (must not deviate from the organised tour) are mandatory. This stream is for citizens of the People's Republic of China travelling on an approved organised tour. A person who leaves the tour to seek protection will usually have breached condition 8530, and that should be addressed openly in the claims.
Frequent Traveller stream
Conditions 8115, 8201, 8503, 8516, 8527, 8531, 8572 and 8573 are mandatory, together with condition 8609 for applications made on or after 29 February 2020.
Electronic Travel Authority and eVisitor
The Subclass 601 Electronic Travel Authority and the Subclass 651 eVisitor carry conditions 8115, 8201, 8527 and 8528. Condition 8503 is not one of the conditions listed for these visas. A holder of either visa can make a visitor visa to protection visa 866 application in the same way as a Subclass 600 holder.
Can you work after lodging a visitor visa to protection visa 866 application?
No, not straight away. The work condition on your visitor visa continues to apply until the visitor visa ends, and only then does the Bridging visa A come into effect without a work condition.
This is the point most people misunderstand about a visitor visa to protection visa 866 application. Lodging the protection application does not remove condition 8101 or condition 8115 from the visitor visa. The Department's policy is clear that once a Subclass 600 visa has been granted with condition 8101, there is no legal basis to remove or waive that condition. While the visitor visa remains in effect, you remain bound by its conditions.
Condition 8101 and condition 8115 on the visitor visa
A holder of a Tourist, Sponsored Family or Approved Destination Status stream visa holds condition 8101 and must not engage in work in Australia. A holder of a Business Visitor or Frequent Traveller stream visa, an Electronic Travel Authority or an eVisitor holds condition 8115 and may only engage in a business visitor activity. Working in breach of either condition while the visitor visa is in effect is a breach that can lead to cancellation, and a cancellation creates new problems for the protection application.
Condition 8101 cannot be imposed on the Bridging visa A
The position changes once the visitor visa ends. Under clause 010.611(1)(b) of the Migration Regulations 1994, a Bridging visa A granted to a person whose protection visa application has not been finally determined is granted with no conditions. Condition 8101 cannot be imposed on it. The compelling need to work criterion that applies to other Bridging visa A holders does not apply to protection visa applicants.
The Department's policy also states that conditions on the previous visa that clause 010.611 does not provide for are of no effect on the Bridging visa A. The visitor visa conditions do not carry across. Our guide to the Bridging visa A explains when it starts and what it allows.
Why the timing of your visitor visa to protection visa 866 application matters for work
In practical terms, the earliest date you can work is the day after your visitor visa ceases, provided the Bridging visa A is in effect. If you lodge a visitor visa to protection visa 866 application while the visitor visa still has some time to run, you remain unable to work until that date. If you lodge after the visitor visa has expired, you receive a different bridging visa that does carry a work condition. The correct time to lodge is before expiry.
What happens to your visitor visa when you lodge?
Your visitor visa does not end when you lodge. It continues until its own expiry date, and a Bridging visa A sits behind it and comes into effect when the visitor visa ceases.
A valid protection visa application made by a person who holds a substantive visa is also treated as an application for a Bridging visa A. Under clause 010.511, the Bridging visa A is not in effect while the visitor visa is in effect. It then keeps you lawful until the protection visa application is finally determined. The bridging visas explained guide compares the Bridging visa A with the other bridging visas.
Travel after a visitor visa to protection visa 866 lodgement
A Bridging visa A does not allow travel. Travel needs a Bridging visa B. Clause 866.411 also requires the applicant to be in Australia when the protection visa is granted. For almost every person making a visitor visa to protection visa 866 application, the right course is to remain in Australia until the application is decided.
Condition 8503 after lodgement
Condition 8503 continues to operate while you remain in Australia, even after the visitor visa has ceased and you hold a Bridging visa A. It still does not affect the protection visa application. It only matters if you later want to apply for another substantive visa while in Australia.
What happens if your visitor visa expires before you lodge?
You can still make a visitor visa to protection visa 866 application after the visitor visa has expired, but you will be an unlawful non-citizen at the time of application and the bridging visa available is a Bridging visa E.
Condition 8101 must initially be imposed on that Bridging visa E. Under clause 050.212(8), a further Bridging visa E without condition 8101 needs both a compelling need to work and an acceptable reason for the delay in applying for the protection visa. That second requirement is difficult for many applicants to meet.
An expired visitor visa also creates a period of unlawful status, with a risk of detention and removal, and a delay that the Department may use to question whether the fear of harm is genuine. Our article on delaying a Subclass 866 Protection Visa application explains how delay is assessed.
A person whose visitor visa has already expired should not assume the position is lost. The application can still be made, and the explanation for the delay can still be given properly. But every further week makes the explanation harder.
How the Department compares your visitor visa application with your protection claims
The Department can compare what you said in your visitor visa application with the claims in your visitor visa to protection visa 866 application, and an unexplained inconsistency is often the basis for a finding that a claim is not credible.
A Subclass 600 applicant must show a genuine intention to stay in Australia temporarily under clause 600.211, and adequate means of support under clause 600.212. To meet those criteria, visitor visa applicants usually describe employment, property, family and other reasons to return home. A protection claim says that return is not safe.
Why the two applications can both be true
A person can have a job, a home and a family and still face serious harm. People who are in danger often present a stable life in a visitor visa application because they need the visa to leave. Some people also face new danger only after they arrive in Australia. These are genuine explanations. The problem is not the difference between the two applications. The problem is a difference that is left unexplained.
What the protection application should do about the visitor visa file
A properly prepared visitor visa to protection visa 866 application identifies anything in the visitor visa application that may appear inconsistent with the claims, and explains it in the applicant's own account. This includes the stated purpose of the trip, the travel dates, the stated employment and income, the stated family ties, and any invitation or supporting letter from a person in Australia.
The explanation belongs in the statement of claims, not in an interview answer given for the first time. Our article on the protection visa statement of claims explains how the statement is structured. Our guide to Form 866 explains the history questions, which also need to match or explain the visitor visa file.
Business visitors and Frequent Travellers
A Business Visitor or Frequent Traveller stream application may have described an employer, a business or a pattern of travel to and from the home country. A visitor visa to protection visa 866 application from one of these streams should explain why the person was able to travel home before and why return is now unsafe. Earlier returns are not fatal to a claim, but they must be addressed.
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What does the Sponsored Family stream mean for your sponsor?
The Sponsored Family stream and the sponsored Tourist stream carry condition 8531, and Department policy states that a breach of that condition can lead to forfeiture of a security bond and a sponsorship bar for the sponsor.
Condition 8531 requires the holder not to remain in Australia after the end of the period of stay permitted by the visa. The Department's policy states that it does not matter whether the holder remains lawfully or unlawfully. A person who lodges a visitor visa to protection visa 866 application and remains in Australia on a Bridging visa A after the visitor visa period has ended will therefore usually be treated as having remained beyond that period.
The policy states that, in that situation, a security bond lodged for a Sponsored Family stream or sponsored Tourist stream visa may be forfeited, and the sponsor may face a sponsorship bar, during which the sponsor cannot sponsor another applicant for a visitor visa.
What this does and does not affect
Condition 8531 does not stop the protection visa application, and it does not make a visitor visa to protection visa 866 application invalid. Its consequences fall mainly on the sponsor. Many applicants feel a strong obligation to the family member or friend who sponsored them, and that feeling sometimes delays a protection claim. That delay can cause far more harm to the applicant than the bond issue causes to the sponsor. Both issues should be considered together, with advice, before lodging.
The protection claims are the applicant's own. They are assessed against section 36 of the Migration Act, and they do not depend on whether the sponsor supports the application.
What do people get wrong about a visitor visa to protection visa 866 application?
People most often get wrong the effect of the visitor visa conditions. Most of those conditions have no effect on whether a protection application can be made.
"I need a condition 8503 waiver first"
No waiver is needed. Condition 8503 expressly excludes the protection visa.
"Condition 8558 means I cannot apply"
Condition 8558 limits the time you may spend in Australia on that visitor visa. The Department's policy states that it cannot be waived, but it does not prevent the holder from making a further visa application. It is not a bar to a visitor visa to protection visa 866 application.
"I can work as soon as I lodge"
You cannot work in breach of condition 8101 or condition 8115 while the visitor visa remains in effect. Work rights come with the Bridging visa A once the visitor visa ends.
"I should wait until I have more evidence"
Waiting past the visitor visa expiry date costs you the Bridging visa A and creates a delay that must be explained. Evidence can be gathered before lodgement and further evidence can be provided afterwards. Our protection visa documents checklist sets out what is usually needed.
"The visitor visa decides the outcome"
It does not. The visitor visa affects your bridging visa, your work rights and parts of your credibility. The protection visa is decided on your claims and evidence.
What still decides a visitor visa to protection visa 866 application?
A visitor visa to protection visa 866 application is decided on whether you engage Australia's protection obligations under section 36 of the Migration Act, and on the security, character and other criteria for the visa.
Clause 866.211 requires you, at the time of application, to claim to engage protection obligations and to make claims as to why. Section 36(2)(a) asks whether you are a refugee, 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) asks whether there is a real risk of significant harm as a necessary and foreseeable consequence of removal. Our page on complementary protection explains that second test, and the Subclass 866 Protection Visa page sets out all of the criteria.
The first application also matters because of section 48A. A person refused a protection visa generally cannot make another protection visa application while in Australia, on any grounds, unless the Minister personally lifts the bar under section 48B. Our protection visa guide explains the whole process, and our page on protection visa refusals explains what happens if an application is refused. If a refusal occurs, the deadline to apply to the Administrative Review Tribunal is short and strictly applied.
How My Migration Lawyers handles a visitor visa to protection visa 866 matter
My Migration Lawyers acts for many people in Australia on visitor visas who cannot safely return home, and a visitor visa to protection visa 866 application is a matter the firm handles regularly.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers deals with complex protection matters, including visitor visas with condition 8503, Sponsored Family stream visas with a sponsor and a security bond, visitor visas that have already expired, and cases where the visitor visa application and the protection claims appear to conflict. The firm is capable of handling those issues and addressing them in the application from the start.
Before lodgement
My Migration Lawyers reviews the visitor visa grant notice, the stream and every condition, and confirms the date by which the application should be lodged to secure a Bridging visa A. The firm checks whether section 48A or any other bar applies and reviews the visitor visa application for anything that needs to be explained.
The statement of claims is the client's own account and evidence. My Migration Lawyers helps the client set it out 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 is the Department's contact point. The firm responds to requests for information, prepares the client for the interview, attends with the client, and responds to any adverse information. If the application is refused, the firm advises on review at the Administrative Review Tribunal within the deadline.
The best time to seek advice on a visitor visa to protection visa 866 application is before the visitor visa expires and before anything is lodged.
Book a consultation with My Migration Lawyers. If your visitor visa is about to expire, you can also call 1300 040 300.
Frequently Asked Questions
My visitor visa has condition 8503. Can I still make a visitor visa to protection visa 866 application?
Yes. Condition 8503 provides that the holder is not entitled to be granted a substantive visa, other than a protection visa, while in Australia. The protection visa is expressly excluded, and the Department's policy confirms that the condition does not prevent a protection visa application. You do not need to request a waiver before lodging. A waiver would matter only if you wanted to apply for a different visa in Australia, such as a partner visa. Your time is better spent preparing your claims and lodging before the visitor visa expires.
I came on a Sponsored Family stream visa. Will my sponsor get into trouble if I apply for protection?
Your sponsor may be affected, but your application is not stopped. Sponsored Family stream visas carry condition 8531, which requires the holder not to remain in Australia beyond the permitted period of stay. Department policy states that a breach can lead to forfeiture of any security bond and a sponsorship bar for the sponsor. Those consequences fall on the sponsor, not on the validity of your protection application. Your claims are your own and are assessed on their merits, whether or not your sponsor supports them. It is sensible to get advice on both issues before you lodge.
I lodged my protection application but my visitor visa is still valid. Can I start working now?
No, not while the visitor visa remains in effect. Condition 8101, or condition 8115 on a business, frequent traveller, Electronic Travel Authority or eVisitor visa, continues to apply until the visitor visa ends. The Bridging visa A granted with your protection application comes into effect when the visitor visa ceases. At that point, because you are a protection visa applicant, the Bridging visa A has no work condition. Working before then risks cancellation of the visitor visa, which would create new problems for your application.
I arrived on an eVisitor or an Electronic Travel Authority. Is my position different?
Your right to apply is the same. A holder of a Subclass 651 eVisitor or a Subclass 601 Electronic Travel Authority can make a valid protection visa application while in Australia. These visas carry condition 8115, which limits work to business visitor activities while the visa is in effect, but condition 8503 is not one of their listed conditions. If you lodge before the visa expires, you receive a Bridging visa A that comes into effect when the visa ends. The same rules on claims, evidence and credibility apply.
My visitor visa application said I had a job and family at home. Will that be used against me?
It can be, if it is not explained. The Department can compare your visitor visa application with your protection claims. Visitor visa applicants usually describe a stable life at home to show they will return, and a person can have a stable life and still face serious harm. Some people also hide danger in order to obtain a visa and leave. Those are genuine explanations. The explanation should be set out in your statement of claims when you lodge, so the decision maker does not raise the difference for the first time at interview.
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.
