Protection Visa (Subclass 866)

Visa Conditions

As the visa applicant, you must,

• you, or a member of your same family unit, must engage Australia’s protection obligations
• have arrived legally in Australia on a valid visa
• meet all other visa requirements including health, character and security.

Visa Eligibility

• You must be in Australia when you apply for the visa.
• You must have arrived in Australia on a valid visa and be immigration cleared on arrival. You can’t make a valid application for this visa if you are an unauthorised maritime arrival.
• Be a refugee or engage Australia’s complementary protection criteria:As defined by the Migration Act 1958 (Migration Act), to engage Australia’s protection obligations, you must:
  • • be a refugee or
    • meet the complementary protection criteria

  Australia must not return people to their home country where there is a risk that the person may suffer harm because they engage Australia’s protection obligations.

• You might be required to submit documents as evidence of your identity, nationality or citizenship with your application.
• You can’t make a valid permanent protection visa application if you:
  • • have been refused a protection visa since your last arrival to Australia, or
    • have had a protection visa cancelled since your last arrival to Australia, or
    • are a national of 2 or more countries, or
    • have protection in a prescribed safe third country

  The Minister has the power to lift any application bar if it is determined to be in the public interest.

• You must not hold or ever held any of the visas listed below:
  • Temporary Protection visa (subclass 785)
  • Temporary Safe Haven visa (subclass 449)
  • Temporary (Humanitarian Concern) visa (subclass 786), or
  • Safe Haven Enterprise Visa (subclass 790)
• As part of the application process, DOHA will assess whether you meet Australia’s security requirements for the grant of a protection visa.
• Meet all the health and character requirements
• If you are 18 years of age or older, you must: have read, or have had explained to you, the Life in Australia booklet AND confirm you will respect the Australian way of life and obey Australian laws when you sign or accept the Australian Values Statement.

866 Visa Benefits

• live, work and study in Australia permanently
• access government services such as Medicare and Centrelink services
• sponsor eligible family members for permanent residence through the offshore Humanitarian Program
• travel to and from Australia for five, years
• if eligible become an Australian citizen
• attend 510 hours of English language classes for free, if you meet certain requirements

Australia’s protection obligations

Who is a refugee

To be a refugee in Australia, an asylum seeker must be assessed as meeting certain legal criteria. The meaning of a ‘refugee’ in the Migration Act 1958 (the Act) is a person in Australia who is:

• outside their country of nationality or former habitual residence (their home country) and
• owing to a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or to seek the protection of that country

The definition is forward-looking. Even if a person has suffered persecution in the past, they are not a refugee by the meaning in the Act unless they have a well-founded fear of persecution and there is a real chance they will be persecuted in their home country now, if they were to return. However, past events could establish a real chance of persecution if the person were to return.

A person might become a refugee after arriving in Australia. This could occur if there is a change of circumstances in their home country or a change in personal circumstances after they left that gives them a well-founded fear of persecution if they were to return.

A well-founded fear of persecution

The Act states that a person has a well-founded fear of persecution if:

• they fear persecution for at least one of five reasons specified in the Act
• there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
• the real chance of persecution relates to all areas of their home country
• at least one of the five reasons is the essential and significant reason for the persecution
• the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.

The five reasons

To have a well-founded fear of persecution, a person must fear serious harm because of their:

• race
• religion
• nationality
• membership of a particular social group, or
• political opinion.

A person who leaves their home country for reasons of war, famine or because they are seeking better economic opportunities might not be a refugee according to the definition in the Act. They must have a well-founded fear of persecution for one of the above reasons to be a refugee and must meet other requirements.

To find out what it means to be a refugee, and meet the complementary protection criteria, see Australia’s protection obligations.

General Notes

• If the visa is granted, do not use the passport or travel document issued to you by your country of nationality. If you do so, DOHA may consider that you are no longer in need of protection from your home country and may cancel your visa.
• Travel condition 8559 applies to this visa:
  You and members of your same family unit must not enter the country from which you (or the primary visa holder, if you hold the visa as a family member) were found to engage Australia’s protection obligations unless the Department approves the entry in writing.
  If you travel to that country without our written approval, we might cancel your visa. You can travel to any other country without our permission.
• Including family members:Members of the same family unit may apply together on the same application. They must:
  • be in Australia at the time of application
  • be eligible to apply for this visa

  Members of the same family unit are:

  • spouse or de facto partner of the family head
  • dependent child or step-child of the family head
  • dependent child or step-child of the family head’s partner
  • other dependent relatives of the family head

  The family head can be you. It can also be someone else in your family who has not applied for this visa.

  A dependent child is a child or step-child who is under 18 years old. A dependent child can be 18 years old or older if they are:

  • incapacitated for work due to loss of their bodily or mental functions; or
  • wholly or substantially reliant on their parent or step-parent for financial, psychological or physical support

  DOHA does not consider a child or step-child of any age to be a dependent child if they are currently married, engaged to be married or in a de facto relationship. Children who are not dependent must apply for their visa.

  Other dependent relatives may include relatives such as the family head’s:

  • parent
  • brother/sister
  • grandparent/grandchild
  • aunt/uncle
  • cousin
  • niece/nephew
  • or step equivalent to any of the above

  DOHA considers a relative to be a dependent relative of the family head if they:

  • do not have a spouse or de facto partner
  • usually lives with the family head; and
  • are wholly or substantially reliant on the family head for financial, psychological or physical support

  Members of the same family unit applying for this visa must meet DOHA health, character and security requirements.

• If a child is born after you submit your application and before DOHA make a decision on your application, the child will be taken to be included in that application.
  If a child is born in Australia, DOHA automatically grant them the same visas their parents hold at the time of the child’s birth.
  If either parent is an Australian citizen or Australian permanent resident at the time of the child’s birth, the child might be an Australian citizen by birth.