Subclass 866

Expert Guidance for Your Protection Visas (Subclass 866)

Protection Visa Lawyers Australia

At Emigrate Lawyers, we understand the complexities and emotional challenges involved in seeking asylum in Australia. As dedicated protection visa lawyers in Australia, we are committed to providing compassionate, expert legal support to those escaping persecution, guiding you smoothly toward a safer, more secure future. Specialising in Protection Visas (subclass 866), our experienced team is here to assist you through every step of the application process. If you are concerned with protection visa Australia – you have found the right people.

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Understanding the Protection Visa (Subclass 866)

The Protection Visa (subclass 866) is designed for individuals who are already in Australia and seeking asylum due to fear of persecution in their home country. This visa allows you to live, work, and study in Australia permanently, providing you with the security and stability you need to rebuild your life.

Common Concepts & Eligibility Criteria

In its current form, s 36 of the Act provides that an applicant for a protection visa must be a non-citizen in Australia who meets one of the following:

  • the minister is satisfied that Australia has protection obligations because the applicant is a refugee;
  • the minister is satisfied Australia has protection obligations because the minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that the applicant will suffer significant harm (ie complementary protection); or
  • a member of the applicant’s family unit satisfies one of the above and holds a protection visa of the same class as that applied for by the applicant.

Protection visa applicants may be excluded from the grant of a protection visa, even if Australia has protection obligations in respect of them. See below under Exclusions.

Refugee

Subsection 5H(1) of the Act (which applies to applications lodged on or after 16 December 2014) defines a person as a refugee if the person is:

outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country.

Applicants who do not have a nationality — also known as stateless — will have their protection claims assessed against the country of their former habitual residence.

Well-founded fear of persecution
  • the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (ie a Convention reason);

  • there is a real chance that, if returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned above; and

  • the real chance of persecution relates to all areas of a receiving country.
An Applicant's fear of harm is well-founded if they face a "real chance" of being persecuted. This is a critical aspect when arguing an individual's feared persecution; the real chance test is always a forward-looking (future) test of harm. Future harm is not necessarily dependent on past instances of harm.

Systematic & Discriminatory Conduct

The phrase "systematic & discriminatory conduct" further qualifies the persecutory harm threshold.
Serious Harm
The persecution feared must involve serious harm. Section 5J(4)(5) provide the following examples of instances of serious harm.

  • a threat to life or liberty;

  • significant physical harassment;

  • significant physical ill treatment;

  • significant economic hardship that threatens the person’s capacity to subsist;

  • denial of access to basic services, where the denial threatens the person’s capacity to subsist; and

  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
This is not an exhaustive list, and each case is determined on its merits.
The "Five Reasons"
An applicant's claimed fear of persecutory harm must have a nexus to one of the five "reasons of" race, religion, nationality, membership of a particular social group or political opinion. Further, one or more of these reasons must be "essential and significant reason" for the feared persecution.
  1. Race
    Persecution on the grounds of race can include claims based on:

    • biological ancestry;

    • self-identification as a member of a race;

    • spiritual, cultural and linguistic heritage; and

    • recognition by others as a member of a race.
    Persecution on the grounds of race may also overlap with religion based claims.


  2. Religion

    An applicant may not fear harm on the basis of their beliefs, but the expression or practise of their belief may attract persecution.

    Where an applicant claims to be of a religion, assessors will likely undertake inquiries as to their level of knowledge and are permitted to do so.

    It is important to recognise that an applicant may fear religiously-motivated persecution where their religious beliefs are imputed (attached to them) based on some other factors (eg their race).

    An absence of religion can be grounds for religious based persecution (agnosticism, atheism or questioning a religion). Persecution can also arise from transgressions of religiously sourced laws or requirements, e.g. religious conversion, mixed marriage or apostasy.

  3. Nationality

    Nationality is not defined in the Migration Act. Nationality can take on a number of interpretations and meanings, including the the frequent overlap with "race". It can also be ethnically or linguistically sourced and is not limited to an individual's citizenship.

    Nationality may commonly be imputed to an applicant, leading to persecution.

  4. Membership of a particular social group

    Establishing persecution on the grounds of membership of a particular social group can be complex.

    Pursuant to s 5L of the Act (which applies to applications lodged on or after 16 December 2014), a person will be a member of a particular social group (other than the person’s family) if:

    • there is a characteristic shared by each member of the group;

    • the person shares, or is perceived as sharing, the characteristic;

    • the characteristic is not a fear of persecution; and

    • any of the following apply:

      • > the characteristic is innate or immutable;

      • > the characteristic is so fundamental to a member’s identity or conscience the member should not be forced to renounce it; or

      • > the characteristic distinguishes the group from society.
    Examples of particular social group may include, "young, able-bodied males", "caste-based groups" & "gender-based groups".

  5. Political Opinion

    Political opinion includes an applicant’s actual and imputed political opinion, however expressed. Political opinion is not restricted to the conventional meaning associated with party politics. In certain circumstances, an opinion contrary to government or administrative practices.

    If an applicant claims persecution on the basis of an explicitly propounded political opinion or expression, they will likely be questioned in detail about this by an assessor to determine genuineness.

Application Process

Navigating the application process can be complex and overwhelming. Our team at Emigrate Lawyers will:

Assess your eligibility and provide personalised advice.
Prepare and lodge your visa application, ensuring all necessary documentation is complete and accurate.
Prepare and compile your evidence to support and strengthen your protection visa application.
Prepare you for Department interview.
Represent you in any legal proceedings and communicate with the Department of Home Affairs on your behalf.
Provide ongoing support and updates throughout the process.

Protection Visa Australia - Benefits

The protection visa offers various benefits that can significantly improve the lives of those who obtain it. Here are some of the benefits of holding a protection visa:

Permanent Residency

One of the most significant benefits of the subclass 866 visa is that it grants permanent residency in Australia. This status allows visa holders to live indefinitely in the country, providing them with the security and stability they desperately need.

Work Opportunities

With permanent residency, protection visa holders can fully participate in the Australian workforce. They can seek employment in any field without restrictions, allowing them to build a sustainable future for themselves and their families.

study opportunities

Protection visa holders can access Australia’s educational system, giving them the opportunity to enhance their skills and qualifications. This access to education is vital for personal and professional development and can significantly impact their integration into Australian society.

Access to Healthcare

Protection visa holders are entitled to enroll in Medicare, Australia’s public healthcare system. This access ensures that they can receive necessary medical care without the burden of excessive costs. Healthcare access is a crucial component in maintaining the well-being of individuals and families seeking asylum.

Social Security Benefits

Another key advantage of the subclass 866 visa is eligibility for social security benefits. This support can be essential for new arrivals as they establish themselves in Australia. It provides a safety net, helping them cover basic needs while they find employment and housing. This is essential for lots of asylum seekers.

Family Reunification

Subclass 866 visa allows for family reunification, which is an invaluable benefit for many asylum seekers. This provision enables visa holders to sponsor eligible family members to join them in Australia, ensuring families can be together and support each other during the resettlement process.

Pathway to Citizenship

Permanent residents in Australia can eventually apply for citizenship, provided they meet the necessary requirements. For protection visa holders, this pathway offers the promise of becoming full members of Australian society, with the rights and responsibilities that citizenship entails.

Community Support and Integration

Australia offers various programs to assist protection visa holders in integrating into the community. These programs provide language classes, employment support, and cultural orientation, all of which are designed to help new arrivals adapt to their new environment.

Cultural and Linguistic Support

Language barriers can be a significant obstacle for new arrivals. Australia provides English language classes to help protection visa holders improve their language skills, which are crucial for successful integration and participation in society.

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Emigrate Lawyers – Your Trust, Your Protection, Your Future!

Why Choose Emigrate Lawyers?

Our team of seasoned immigration lawyers possesses in-depth knowledge and extensive experience in handling migration applications. We stay updated with the latest legal developments to offer you the best possible advice and representation.

We recognise that every client’s situation is unique. At Emigrate Lawyers, we take the time to understand your specific circumstances and tailor our services to meet your individual needs. Our goal is to provide you with the most effective legal strategies to ensure a successful outcome.

We believe in transparent and predictable legal costs. Our fixed fee guarantee ensures that you know exactly what to expect, with no hidden charges. This allows you to focus on your case without worrying about financial uncertainties.

Your satisfaction is our top priority. We are committed to delivering exceptional service and achieving the best possible results for our clients. Our track record speaks for itself, with countless successful Protection Visa applications and satisfied clients.