Protection Visa (subclass 866)

Who Can Apply for the 866 Visa?

The 866 visa is only for people who are already in Australia. To make a valid application you generally must:

• be in Australia when you apply
• have arrived in Australia lawfully on a valid visa (for example a visitor, student or work visa) and have been immigration cleared on arrival
• not be prevented from applying by a statutory bar (see “If you have applied before” below)

People who arrived without a valid visa, including people who arrived by boat, cannot apply for the 866. They are generally limited to temporary protection, through the Temporary Protection visa (subclass 785) or the Safe Haven Enterprise visa (subclass 790).

There is no offshore version of the 866. People outside Australia who need resettlement use the offshore Humanitarian Program, which is a separate process.

Refugee or Complementary Protection: The Two Ways to Qualify

Home Affairs first considers whether you are a refugee. If you are not, it then considers whether you qualify for complementary protection.

Refugee criteria

You must have a well-founded fear of persecution in your home country (or, if you have no nationality, the country where you usually lived) for one or more of the five reasons: race, religion, nationality, membership of a particular social group or political opinion. The harm you fear must be serious, such as a threat to your life or liberty, significant physical harassment or ill treatment, or serious economic hardship or denial of access to basic services that threatens your ability to survive.

Complementary protection

If you do not meet the refugee definition, you may still be protected if there is a real risk you would suffer significant harm as a necessary and foreseeable result of being returned. Significant harm means:

• being arbitrarily deprived of your life
• the death penalty being carried out on you
• torture
• cruel or inhuman treatment or punishment
• degrading treatment or punishment

Complementary protection does not require the harm to be linked to one of the five refugee reasons, which is why it can help people whose fear is real but does not fit the refugee definition.

Things that can defeat a claim

Even where the harm you fear is real, your claim may not succeed if:

• you could safely and reasonably relocate to another part of your home country
• the authorities in your home country could give you effective protection
• you have a right to enter and live in a safe third country and have not taken all possible steps to use that right
• the risk you face is one faced by the population generally, rather than by you personally
• there are serious reasons to consider that you have committed serious crimes, or you are assessed as a danger to Australia’s security or community

Identity, Health, Character and Security

You must establish your identity, nationality or citizenship. Provide your passport and any national identity documents you have. If you cannot provide them, you need to give a reasonable explanation and show that you have taken reasonable steps to obtain them. Giving false or altered identity documents can lead to refusal and other serious consequences.

You and any family members in your application must also meet the health, character and security requirements. Health examinations and police certificates are usually requested during processing, and security checks are carried out by Australian agencies.

How to Apply for the 866 Visa: Step by Step

1. Get advice early. Check that you can make a valid application and whether the 866 is right for your situation.
2. Prepare your statement of claims. Write a detailed, honest account of who you are, what has happened to you and what you fear would happen if you returned. Include dates, places and names wherever you can.
3. Collect supporting evidence. Gather identity documents and any evidence that supports your claims (see the checklist below).
4. Lodge your application online and pay the application charge. Family members who are in Australia can be included in the same application.
5. Receive a bridging visa. A valid application usually leads to the grant of a bridging visa, so you can stay lawfully while your application is decided.
6. Attend your interview. Most applicants are interviewed by a Home Affairs officer. An interpreter can be provided.
7. Complete health and character checks when asked, and respond to any requests for information by the deadline given.
8. Receive a decision. If the visa is granted you become a permanent resident. If it is refused, read the decision record carefully and check the review deadline straight away.

Document Checklist

• passport and any national identity card, birth certificate or family register
• a detailed statement of your protection claims
• evidence supporting your claims, such as police reports, court documents, medical reports, threats you have received, membership cards or letters from organisations
• evidence about your family members included in the application, such as marriage and birth certificates
• details of where you have lived and travelled, and any previous visa applications in Australia or other countries
• police certificates and health examinations, when requested

Documents that are not in English must be translated into English. Do not delay lodging just because you cannot get every document. Tell Home Affairs which documents are missing and why.

The Interview: How to Prepare

The interview is usually the most important part of the process. The officer will ask about your background and your claims, and will test whether your account is consistent and believable.

• Read your statement again before the interview and correct any mistakes in writing beforehand.
• Answer in your own words, and say so if you do not know or do not remember something. Guessing can damage your credibility.
• Tell the officer if you do not understand the interpreter or a question.
• Raise any medical or psychological issues, such as trauma, that affect your ability to give evidence, and provide reports where possible.

Bridging Visa While You Wait

If you lodge a valid 866 application while you hold a visa, you are usually granted a bridging visa that lets you stay in Australia until a decision is made, including during any review. Work rights depend on the conditions of your bridging visa, so check your grant notice. If your bridging visa does not let you work, you may be able to apply for a new bridging visa with work rights, for example if you can show a compelling need to work. Keep your contact details up to date with Home Affairs so you do not miss any letters or emails.

If Your Protection Visa Is Refused

You can usually ask the Administrative Review Tribunal (ART) to review the decision. The ART is independent of Home Affairs and can consider new evidence and hold a hearing.

• The deadline is strict. For most people it is 28 days after you are notified of the decision, and it is shorter if you are in immigration detention. Late applications cannot be accepted.
• There is no upfront fee to apply for review of a protection decision. A fee may become payable after the decision if your review is not successful.
• If the ART finds that you are owed protection, it sends your case back to Home Affairs to finish processing, including health and character checks.

If the ART affirms the refusal, the remaining options are limited. They may include judicial review in the courts (only for an error of law) or a request for Ministerial intervention, which is discretionary and granted only in a small number of cases.

If you have applied before

If you have already had a protection visa refused (or cancelled) while in Australia, you generally cannot make another protection visa application unless the Minister personally allows it. This is why it is so important to put your full claims forward in your first application.

866 vs 785, 790 and 851: Comparing Protection Visas

After Your 866 Visa Is Granted

• Medicare and Centrelink: You can enrol in Medicare and may be eligible for social security payments and settlement support.
• Family: You may be able to propose immediate family members overseas under the offshore Humanitarian Program, or sponsor a partner under the partner visa program. Family members you did not declare in your application can be harder to sponsor later, so list everyone.
• Travel documents: If you cannot use your own passport, you may be able to apply to the Australian Passport Office for a travel document.
• Travel to your home country: Returning to the country you sought protection from can raise serious questions about whether you still need protection and may put your visa at risk. Get advice before booking any travel there.
• Travel after five years: Your visa lets you travel in and out of Australia for five years from grant. After that you need a Resident Return visa to come back as a permanent resident.
• Citizenship: Once you meet the residence requirement and other criteria, you can apply for Australian citizenship.

Common Mistakes to Avoid

• Leaving out important claims or events and raising them for the first time later, which can affect credibility.
• Using a statement written by someone else, or a template, that does not reflect your own experience.
• Giving dates or details that do not match earlier visa applications, without explaining the difference.
• Missing the 28 day review deadline after a refusal.
• Lodging a protection claim that is not genuine just to stay in Australia longer. This can lead to refusal, a bar on further applications and serious immigration consequences.

Protection Visa 866: Frequently Asked Questions

Can I apply for an 866 visa if my visa has been refused or my visitor visa is about to expire?

Possibly. What matters is that you arrived lawfully on a valid visa and are not barred from applying. Your other visa history can affect your bridging visa and work rights, so get advice as soon as possible and do not wait until the last day.

Can I work while my protection visa is being processed?

It depends on the conditions of your bridging visa. Some bridging visas allow work and some do not. Check your grant notice. If you cannot work, you may be able to apply for a bridging visa that allows work.

Will my claims be shared with my home country?

Information in protection applications is treated as confidential. Home Affairs does not tell the authorities of the country you fear that you have applied for protection.

How much does it cost to apply?

The government application charge is small and one charge covers family members included in the same application. See our protection visa costs page for the current fee. Health checks, translations and professional fees are extra.

How to Apply for the Protection Visa – Subclass 866