More and more people are thinking about transitioning from a tourist visa to a protection visa (Subclass 866). This is a significant legal step for those who can be deemed to be in critical danger in their home country and who can prove they cannot, therefore, return to their home country due to safety concerns.
This pathway is specifically designed for those who arrived in Australia on a valid visa and who now seek permanent asylum under Australia’s international obligations. The status is therefore intended for individuals who wish to seek asylum after arriving on a tourist visa.
The Protection Visa (subclass 866) is a temporary visa that lets you stay in Australia permanently if you engage Australia's protection obligations.
Successfully navigating this complex visa category is reliant upon a close and careful assessment of its benchmarks. It is important therefore, before initiating such a claim, that the complex protection visa eligibility standards and the specific requirements of the Subclass 866 are clearly understood. Potential claimants should also be prepared for the fact that that, applying for this visa is a very complex process involving multiple steps and numerous legal considerations.
Eligibility Criteria for a Protection Visa
To be eligible for a Protection visa (Subclass 866), an applicant must demonstrate that they fall within Australia's protection obligations, which is a set of key eligibility requirements by which Australia's immigration and refugee protection policies are bound.
Should you arrive in Australia by plane with a valid visa and are immigration clear, you are eligible to apply for a Permanent Protection visa. To do so under Australia’s Migration Act 1958, - the fundamental legal instrument that applies in such cases - this generally means you must meet the definition of a refugee or qualify for complementary protection.
What does this mean?
Under standard international law, you can be considered a refugee if you are outside your country of nationality and have a well-founded fear of unjust persecution should you return. In assessing refugee status, various factors are considered, with the risk of persecution or harm being among the most significant. The assessing government must not return you to your home country if there is a risk you may suffer harm, due to a widely accepted prohibition under international laws and norms known as “refoulement”. However, even if you cannot meet the strict “refugee” definition under such principles, the case may be assessed on grounds of complementary protection. This applies if there are deemed to be substantial and real risks should you be sent home and/or it is decided that you will suffer “significant harm” if returned. To qualify for this status, you must prove a risk of serious harm or persecution, enough to claim refoulement should you be required to return. .
- Examples considered applicable “significant harm” possibilities include: Arbitrary deprivation of life or the death penalty.
- Torture.
- Cruel, inhuman, or degrading treatment or punishment.
Along with these basic prerequisites, there are additional requirements that must be met for eligibility, such as health, character, and security checks. As an applicant, you must provide evidence of medical examinations to ensure you are in good health and that the Australian community is under no risk of communicable diseases or other threats.
Proving a Well-Founded Fear
The cornerstone of a successful claim is the ability to provide compelling evidence of real and on-going persecution.
Most importantly, to meet the refugee criteria, this persecution must be linked to one of five designated grounds for protection. These are
- Race,
- Religion,
- Nationality,
- Membership of a particular social group (such as LGBTQ+ individuals or victims of domestic violence in certain contexts), or,
- Political opinion.
These protections are established under the Refugee Convention, the core international treaty that underpins Australia’s obligations to asylum seekers and refugees.
It is important here to understand that it is not enough for you to simply state a fear, or to claim a belief of persecution. It is therefore imperative that we work with you to confirm and substantiate that this fear is “well-founded.”
This process involves proving there is a “real chance” of persecution across your entire country of origin. Specifically, this means that, under the circumstances, it is clear that internal relocation is not a viable or safe option for you and that this is firmly and irrevocably established.
Documentary evidence, country reports, and detailed personal statements are among the kind of evidentiary instruments which must underpin your case to objectively substantiate your claims that your profile or activities make you a target in your home country.
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A Step-by-Step Approach to your Application Process
Should you need to make a visa application for a Subclass 866 there are several formal stages that must be followed strictly to maintain your lawful status in Australia in the period during which your status is being assessed. This is a complex process that requires careful attention to detail of you and your legal team at every step.
- Lodgement: Your application will be typically submitted online via ImmiAccount. Once a valid application is lodged, you will usually be granted a Bridging Visa, allowing you to remain in Australia lawfully while your case is processed. Approval from the Department of Home Affairs is required at each stage, including the granting of a Bridging Visa and permanent residency.
- Biometrics: Shortly after lodgement, you and any family members included in the application will be required to provide biometrics, which involve a digital photograph and a scan of your fingerprints.
- Department Interview: The most critical stage is an interview with Department of Home Affairs officials. An officer from the Department of Home Affairs will ask detailed questions regarding your claims.
At this crucial stage, our representatives will assist you in preparing for this interview to ensure you can relay your story clearly and consistently. It is important you respond to any requests from the Department within the specified timeframes to avoid unnecessary delays.
- Health and Character: You must also undergo health examinations and meet strict character requirements to be granted permanent residency. After the interview and health/character checks, it is necessary to finalise protection visa applications within the required timeframes, as the process can take considerable time depending on your circumstances.
Common Mistakes Leading to Visa Refusal
Applicants need to recognise that a visa refusal can have devastating consequences. These can lead to a section 48 bar which prevents you from applying for most other visas that may be possible while in Australia.
One of the most frequent errors leading to refusal that we see is the use of inconsistent statements. If the information in your initial protection claim differs from your original tourist visa application or your oral testimony during an interview, the Department will likely question your credibility and deny your application for any visa.
Other common pitfalls include:
- Lack of supporting documentation: Failing to provide independent evidence to corroborate personal claims.
- Migration law compliance: Not responding to Department requests (Requests for Information) within the strict 28-day statutory deadlines.
- Providing misleading information: Any attempt to provide "bogus" of fake documents can lead to an automatic refusal and long-term exclusion periods.
How Australian Migration Lawyers Can Help
All applicants must be aware that navigating the complexities of refugee law requires more than just filling out forms; it requires a strategic legal approach.
As a team of experienced migration lawyers, we provide comprehensive legal representation throughout the entire journey. We assist with initial eligibility assessments, the meticulous gathering of proper and comprehensive evidence, and in drafting detailed legal submissions that frame your story within the context of the Migration Act.
Whether you are preparing your initial application or require protection visa help after a setback, our team is equipped to represent you at Department interviews or before the Administrative Review Tribunal (ART) if an appeal is necessary.
We stand ready to help clients access their rights and available migration programs, including opportunities for family reunion and humanitarian pathways.
We understand the high stakes involved and are committed to protecting your future.
We’re here to help
The journey from a tourist visa to permanent protection is often complex and can be challenging and deeply personal. If you fear returning to your home country, do not navigate this process alone.
Contact us today to book a confidential consultation with our legal experts and take the first step toward securing your safety in Australia.
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Book a Consultation
If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.
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Frequently Asked Questions (FAQ)
Can I work while my protection visa application is being processed?
In most cases, when you apply for a Subclass 866 visa while on a valid tourist visa, you will be granted a Bridging visa. Whether you have work rights depends on the conditions of that Bridging visa, but we can often apply to have work restrictions removed if you can demonstrate financial hardship.
What happens if my protection visa is refused?
If the Department refuses your application, you generally have the right to apply for a merits review at the Administrative Review Tribunal (ART). You must act quickly, as the timeframes for lodging an appeal are very short, often only 28 days.
Can I include my family in my Subclass 866 application?
Yes, you can include your partner and dependent children in your application, provided they are also in Australia at the time of lodgement. They must also meet health, character, and security requirements. Members of the same family unit or family unit can apply together on the same application, supporting family unity and the well-being of the Australian community.
Does a tourist visa “intent” affect my protection claim?
The Department may consider whether you intended to seek protection when you first applied for your tourist visa. While seeking asylum is a legal right, we must carefully manage any perceived inconsistencies between your entry intentions and your protection claims to maintain your credibility.
What is the difference between a permanent protection visa, a permanent visa, and temporary visas like those held by SHEV holders?
A permanent protection visa (Subclass 866) is a lasting visa that allows you to stay in Australia indefinitely and, in time and under set conditions,become an Australian permanent resident. This provides greater stability, the ability to reunite with family, and access to long-term opportunities compared to temporary visas such as those held by SHEV holders, who face limited pathways to permanent residency and ongoing uncertainty. As a permanent resident, you can live in Australia permanently and work towards Australian citizenship.
When does my permanent residence start?
Your permanent residence starts on the date your permanent visa is granted. This date is significant for Australian citizenship purposes, as it marks the beginning of your eligibility period for applying for citizenship as an Australian permanent resident.
Are there travel restrictions for protection visa holders?
Yes, the Australian government requires written approval for travel to certain countries, especially the country from which you sought protection. Travel is only allowed in compassionate or compelling circumstances, and you must provide evidence of such circumstances to obtain approval.
What are Australia’s protection obligations?
The government must not return people to their home country if they have not been immigration cleared or if there is a risk of harm or persecution. This is a key part of Australia’s commitment to protecting refugees and upholding international law.
Why is family unity important for the Australian community?
Keeping families together supports the mental health and social well-being of individuals and strengthens the Australian community as a whole, promoting social cohesion and integration.
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