Key Takeaways
- Who can apply for protection visa 866? Almost anyone who is in Australia and fears serious harm on return, including visitor visa holders, students, working holiday makers, sponsored workers, bridging visa holders and people whose visa has expired, unless a statutory bar applies.
- The visa a person holds does not decide the claim. It decides the practical position: which bridging visa follows, whether work is permitted, and which credibility questions the Department is likely to ask.
- People who lodge while their current visa is still in effect are generally in a much better position than people who lodge after it expires, because a Bridging visa A usually follows and work rights are protected.
- Spouses, de facto partners, dependent children and certain other dependent relatives in Australia can be included in the same application as members of the family unit.
- A person whose risk arose after arriving in Australia can apply, but conduct in Australia is disregarded unless the decision maker is satisfied it was not engaged in to strengthen the claim.
Who can apply for protection visa 866?
Almost anyone who is in Australia and fears serious harm if returned to their country can apply for a Subclass 866 protection visa, whatever visa they hold or have held, unless a specific statutory bar applies. Who can apply for protection visa 866 is therefore a wide group. What differs between people is their practical position once they apply.
The law does not reserve the Subclass 866 visa for any particular kind of visa holder. A tourist, a student, a skilled worker and a person who has overstayed can all make a valid application. The question the Department asks is not "which visa do you hold?" It is "does Australia owe you protection?"
But the visa a person holds does matter in practice. It affects which bridging visa follows lodgement, whether the person can work, and what the Department will compare the protection claims against. A student will be asked about their studies. A visitor will be asked about the reasons given for their visitor visa. A person who has overstayed will be asked why they waited.
This article explains who can apply for protection visa 866 by applicant type. For each group, it sets out the position, the main risks and the steps to take. The legal test itself is explained in our article on whether you are eligible for a protection visa, and the complete visa requirements are on our Subclass 866 protection visa page.
The one rule that applies to everyone
Everyone who applies must be in Australia, and the application must include their claims for protection from the start. And everyone should understand that a refused protection visa application generally prevents a further protection application while the person remains in Australia, under section 48A of the Migration Act 1958. Whoever the applicant is, the first application must be done properly.
Who can apply for protection visa 866 on a visitor visa?
Visitor visa holders are among those who can apply for protection visa 866, and they are one of the largest groups of applicants. A no further stay condition on the visitor visa does not prevent the application.
The position
When people ask who can apply for protection visa 866, visitors are usually the first group in mind. A visitor who lodges while the visitor visa is still in effect is generally treated as also applying for a Bridging visa A. The bridging visa comes into effect when the visitor visa ends. A Bridging visa A held by a protection visa applicant cannot carry the no work condition.
The main risk
The main risk for visitors is inconsistency with the visitor visa application. That application usually described strong ties at home and an intention to return. The protection claim says the opposite. Both can be true, but the difference must be explained in the claims.
The next step
Visitors should lodge before the visitor visa expires, with the claims fully prepared. Our article on applying for a Subclass 866 protection visa on a tourist visa sets out the process in detail.
Who can apply for protection visa 866 as an international student?
International students can apply for protection visa 866 while holding a student visa, after a student visa refusal or cancellation, or after the student visa has expired. Conditions 8534 and 8535 do not prevent the application.
The position
Students are part of the answer to who can apply for protection visa 866 at every stage of their visa. A student who lodges while the student visa is in effect is generally treated as also applying for a Bridging visa A. A student whose visa was refused or cancelled can still apply, because protection visas remain available to people caught by section 48.
The main risk
The Department will look at the student visa history, including the genuine student information given at the time, attendance, course changes and any cancellation. Claims that arise only after study problems will be tested closely. The claims must explain why the fear is real and why it was not raised earlier, if that is the case.
The next step
Students should obtain advice before the student visa ends or before any cancellation takes effect. Our article on whether international students can apply for a Subclass 866 protection visa deals with this group in detail.
Who can apply for protection visa 866 on a working holiday or sponsored visa?
Working holiday makers, sponsored workers and other temporary visa holders can apply for protection visa 866. Their current visa does not prevent the application, and in most cases they will be able to keep working on a bridging visa.
Working holiday makers
Working holiday makers are in a similar position to visitors. The earlier visa application will be compared with the protection claims. Lodging before the visa ends preserves the bridging visa position.
Sponsored workers
A sponsored worker who applies for protection does not need the employer's consent to apply. The sponsored visa continues until it ends or is cancelled. If the employment ends, the conditions of the sponsored visa may be affected, so advice should be obtained on both visas together.
Why these applicants should act before the visa ends
For all temporary visa holders, the practical advantage of lodging while the current visa is in effect is the same. The bridging visa that follows is more favourable, and the question of delay is smaller.
Who can apply for protection visa 866 while another application is pending?
People who hold a bridging visa because another visa application is pending can apply for protection visa 866. A pending partner, skilled or other application does not prevent a protection visa application.
Holding more than one application
Bridging visa holders fall within who can apply for protection visa 866 in the same way as any other applicant. A person can have a protection visa application and another visa application on foot at the same time. Each is decided under its own criteria. The information given in each must be consistent, because the Department can read both.
Choosing the right application
For some people, a protection application is not the right step. A person with a strong partner visa pathway may not need protection, and a protection application lodged without genuine claims will be refused and trigger section 48A. When considering who can apply for protection visa 866, the better question for this group is whether they should. Our article on the Bridging visa A explains how bridging visas interact.
After a refusal of the other application
If the other application is refused, the protection application continues. The person's bridging visa position depends on which application it was granted for. Advice should be obtained on the effect of each decision.
Who can apply for protection visa 866 after their visa has expired?
People whose visa has expired can apply for protection visa 866, but they are unlawful non-citizens until they are granted a bridging visa, and their position is more difficult than that of people who lodge while holding a visa.
The bridging visa
Being unlawful does not change who can apply for protection visa 866. It changes what happens next. A person who lodges while unlawful does not receive a Bridging visa A. They must apply for a Bridging visa E. The Bridging visa E generally carries a no work condition at first. Removing it requires the person to show a compelling need to work and, for a protection visa applicant, an acceptable reason for the delay in applying.
The delay
The Department will ask why the person did not apply earlier. A long delay can be used to question whether the fear is genuine. It is not decisive. There are many genuine reasons, including fear of authorities, lack of knowledge, trauma and changes in circumstances. But the reason must be in the claims. Our article on delaying a Subclass 866 protection visa application explains how delay is assessed.
The risk of detention
An unlawful non-citizen can be detained. A person in this position should act immediately, with advice. Our guide to bridging visas in Australia compares the Bridging visa A and the Bridging visa E.
Who can apply for protection visa 866 from immigration detention?
A person in immigration detention can apply for protection visa 866, subject to the same bars as everyone else. Detention usually means removal is being considered, so the application must be prepared and lodged urgently.
Why speed matters
A person in detention may be removed if no valid application is on foot and no other legal process prevents removal. The claims still need to be complete and accurate. A rushed claim that leaves out key facts can be refused, and the refusal then triggers section 48A.
Practical issues
People in detention often have limited access to documents, phones and interpreters. A lawyer can obtain records, arrange interpreters and take instructions in detention. Our article on urgent immigration lawyer advice explains what to have ready.
Who can apply for protection visa 866 as a family?
Members of the same family unit who are in Australia can be included in one protection visa 866 application with the main applicant, and a single visa application charge applies to the combined application.
Who is in the family unit
In a family, the question of who can apply for protection visa 866 is answered by the definition of the family unit. The family unit generally includes a spouse or de facto partner, dependent children and certain other dependent relatives. Each person must be in Australia when the application is made.
Family members with their own claims
A spouse or child may have claims of their own. These should be set out clearly. In some families, the strongest claims belong to someone other than the person who expected to be the main applicant.
Children born in Australia
A child born in Australia while the parent's application is being decided is generally taken to have applied as well. The birth should be notified to the Department promptly.
Family members outside Australia
Family members outside Australia cannot be included in a Subclass 866 application. Once a person is granted the visa, there may be options for family members overseas through other pathways, and advice should be obtained at that stage.
Who can apply for protection visa 866 after a relationship ends?
People whose relationship ended while they were in Australia, including partner visa applicants and holders, can apply for protection visa 866 if they fear serious harm on return, but a protection application is not always the right pathway.
When protection may be relevant
Some people face harm on return because their relationship has ended. They may fear violence from a former partner or from relatives, or face serious consequences because they are separated, divorced or have children outside marriage. Where that harm meets the legal test, a protection claim may be available.
When another pathway may be better
A partner visa applicant whose relationship ended because of family violence may be able to continue under the family violence provisions of the partner visa. That is a different legal test and does not depend on showing a risk of harm on return. Our page on the family violence provisions for partner visas explains who qualifies. The right choice depends on the facts, and advice should be obtained before either application is lodged.
Consistency between applications
The partner visa file will contain statements about the relationship and about the applicant's life at home. A protection claim must be consistent with that file, or the differences must be explained.
Who can apply for protection visa 866 as a child or young person?
Children can apply for protection visa 866, usually as members of their parent's family unit, and a child can also have protection claims of their own that must be assessed.
Children with their parents
Most children are included in a parent's application. Their protection usually depends on the parent's claims succeeding. Where a child faces a separate risk, such as forced marriage, recruitment or harm connected to their own identity, the child's claims should be set out separately.
Young adults
A young adult who has turned 18 may no longer be a dependent member of the family unit. Such a person may need to make their own application, with their own claims.
Children without a parent in Australia
A child in Australia without a parent or guardian can still make a protection claim, but additional requirements and safeguards apply. These cases need specialist advice from the start.
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Who can apply for protection visa 866 when the risk arose after arrival?
People whose risk of harm arose after they arrived in Australia can apply for protection visa 866. These are called sur place claims. They are assessed under the same test, with one important limit on conduct in Australia.
How sur place claims arise
The timing of the risk does not limit who can apply for protection visa 866. A sur place claim can arise because of events in the home country after the person left, such as a change of government, new laws or a conflict. It can also arise because of something about the person that became known after they left, such as their religious conversion, political activity or sexual orientation.
The limit on conduct in Australia
Section 5J(6) of the Migration Act requires the decision maker to disregard conduct in Australia unless the applicant satisfies them that the conduct was engaged in otherwise than for the purpose of strengthening the claim. Genuine conduct can support a claim. Conduct undertaken only to create a claim cannot, and it damages credibility.
What evidence helps
Evidence that the change in the home country is real, that the applicant's circumstances are known or likely to become known, and that the applicant's conduct is genuine and long-standing all help. Our pages on religious persecution and LGBTI protection visas deal with two common kinds of sur place claim.
Who can apply for protection visa 866 after living in another country?
People who lived in another country before coming to Australia, or who hold a second nationality, can apply for protection visa 866, but their claims must deal with every country they have a right to enter and reside in.
Dual nationals
A person with two nationalities must generally show a well-founded fear, or a real risk of significant harm, in each country of nationality. A claim about only one country may fail if the person could live safely in the other.
Residents of a third country
Section 36(3) of the Migration Act can defeat a claim where the applicant has not taken all possible steps to use a right to enter and reside in another country. The provision is about an existing right, not past residence. A person whose permission to live in the third country has ended may not be affected.
What to gather
Anyone in this group who is considering who can apply for protection visa 866 should gather evidence of their actual status in every other country: passports, residence permits, expired visas and any evidence of risk there.
Who cannot apply for protection visa 866?
People who cannot apply for protection visa 866 include people outside Australia, most people who have already been refused a protection visa while in Australia, and people caught by other statutory bars such as the bar on unauthorised maritime arrivals.
People outside Australia
The Subclass 866 visa is an onshore visa. People outside Australia must consider the offshore humanitarian program.
People already refused a protection visa in Australia
This is the most important limit on who can apply for protection visa 866. Section 48A generally prevents a further protection visa application in Australia after a refusal. Only the Minister can personally lift the bar, and requests are rarely granted.
People caught by other bars
Unauthorised maritime arrivals and transitory persons face statutory bars that only the Minister can lift. A small number of other bars apply in narrower circumstances.
People who can apply but should not
A person with no genuine fear of harm can technically lodge an application, but the application will be refused and the refusal will trigger section 48A. Anyone considering who can apply for protection visa 866 as a way to remain in Australia should first obtain advice on every other option. Our page on visa refusals explains the options after other visa refusals.
How My Migration Lawyers acts for people who can apply for protection visa 866
My Migration Lawyers acts for every group of people who can apply for protection visa 866, including visitors, students, workers, bridging visa holders, people whose visa has expired and families, and the firm handles many complex matters of each type.
The firm is led by Weiwei Zhang, Principal Lawyer. My Migration Lawyers regularly acts in matters involving earlier visa refusals, long delays in applying, sur place claims, family members with separate claims, and clients in urgent situations.
Assessing the client's position
The firm first confirms whether the client falls within who can apply for protection visa 866, and confirms the client's immigration position. It checks the client's visa history and travel records itself, confirms that a valid application can be made, and identifies the bridging visa that will follow. It then identifies the credibility questions the Department is likely to ask for that type of applicant.
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 decides which claims are advanced. The firm deals directly with the issues that affect the client's group, such as the earlier visitor or student visa application, or the reasons for delay.
After lodgement
The firm acts as the Department's contact point, responds to requests for information, prepares the client for the interview and attends with them. If the application is refused, the firm advises on review within the deadline.
Book a consultation with My Migration Lawyers through our online booking page to confirm whether you can apply and how. If your visa is about to expire, you can also call 1300 040 300. You can also read more about our protection visa lawyers.
Frequently Asked Questions
Can I apply for a protection visa while my partner visa application is still being processed?
Yes. A pending partner visa application does not prevent a protection visa application, and both can be on foot at the same time. Each is decided under its own criteria. The information in both applications must be consistent, because the Department can read both files. A protection application should only be made where there is a genuine fear of harm, because a refusal generally prevents any further protection application while you remain in Australia.
Can my employer find out if I apply for a protection visa?
The Department does not ordinarily need your employer's consent for you to apply for a protection visa. Protection information is handled with particular care because disclosure could put applicants at risk. If you hold a sponsored visa, your employment and visa conditions still apply while that visa remains in effect, so you should obtain advice on how the protection application and the sponsored visa interact.
I overstayed my visa several years ago. Can I still apply?
Yes, if no other bar applies. You will need a Bridging visa E to become lawful, and it will usually carry a no work condition at first. The Department will ask why you did not apply earlier, so the reasons for the delay must be explained in your claims. Because you can be detained while unlawful, you should obtain advice and act without further delay.
Can my adult child be included in my protection visa application?
Possibly. Adult children may be included where they meet the definition of a member of the family unit, which generally requires dependence on the main applicant. An adult child who is not dependent may need to make their own application. If the adult child has their own protection claims, those claims should be made clearly, whether in the family application or in their own.
My situation at home changed after I arrived in Australia. Can I still apply?
Yes. A claim based on events after you left your country is called a sur place claim, and it is assessed under the same legal test. Evidence that the change is real and that it affects you personally is important. Conduct in Australia is disregarded unless you satisfy the decision maker it was not engaged in only to strengthen your claim.
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.
