Subclass 866
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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.
Systematic & Discriminatory Conduct
The phrase "systematic & discriminatory conduct" further qualifies the persecutory harm threshold.
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.
The "Five Reasons"
- 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.
- 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. - 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. - 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.
- 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:
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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.