The Protection visa (subclass 866) is part of the Australian Humanitarian Programme. Australia has non-refoulement obligations under the 1951 Convention related to the Status of Refugees (Refugee Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. Non-refoulement obligations prevent Australia from forcibly deporting a person when there are substantial grounds for believing the person will be at real risk of a specific types of harm. Are you facing distress in your home country? You may be considered eligible for a Protection 866 visa if you qualify for being a refugee based on having a well-founded fear of persecution.
Refugee
A person is a refugee is the person is outside the country of which they are a national due to a well-founded fear of persecution and are afraid or unable to return to their country. If the person does not have a nationality, that person is outside the country in which were resident in and due to a legitimate fear of persecution, are afraid or unable to return.
If however the person has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime prior to entering Australia, or guilty of acts contrary to the purposes and principles of the United Nations, they are not to be taken to have refugee status
Well-founded fear of persecution
Reasons for persecution must be significant and involved serious harm, systematic and discriminatory output.
Reasons
Reasons a person may have a well-founded fear of persecution are if:
- They have a fear of being persecuted for their
- Race
- Religion
- Nationality
- Membership of a particular social group
- Political opinion, and
- There is a real risk that on their return to their country, they will suffer negative consequences due to those reasons, and
- Their risk is persecution exists in all parts of their country
Race
Race has a broader meaning and is more conceptual than ‘ethinicity’. The following factors may be considered when identifying a person’s race:
- Biological ancestry
- Self identification as a member of a race
- Spiritual, cultural and linguistic heritage
- Recognition by others as a member of a race
Religion
When considering if religion is the basis of the person facing persecution, the following must be factored:
- Is belief a religion
- Does the person belong to a religion
and then,
- Is the person holding a belief contrary to that of their persecutors
- Is the person practising the religion in a way that is contrary to their persecutors
- Is the person being persecuted for an absence of religion
Nationality
Nationality may:
- Refer to membership of an ethnic, cultural or linguistic group or minority
- Not be equivalent with citizenship
- Not be confined to notions of State
- Overlap with race, religion, particular social group and political opinion
Particular social group (PSG)
For one to be considered part of a particular social group (PSG), they have to:
- Be part of group that has a characteristic shared by each member of the group, and
- Have that characteristic that is shared with the group
The characteristic cannot be a fear of persecution.
Further to this, at least one of the following must be met:
- The characteristic is innate (inborn or natural) or immutable (cannot be changed)
- The characteristic is fundamental to the person’s identity and/or conscience
- The characteristic distinguishes the group from society
Modification of person’s behaviour
Another factor that the Department of Home Affairs (DOHA) will assess is if the person can take reasonable steps to modify their own behaviour that will result in their not being persecuted.
This is within reason; if any of the following is what is needed for the person to avoid discrimination in their country then they are taken to have a well-founded fear of persecution:
- Try to change a characteristic that is fundamental to the person’s identity or conscience
- Hide a characteristic of themselves that is natural or instinctive and cannot be changed
- Alter their religious beliefs through having to renounce their religion, conceal their religious beliefs or cease to be involved with the practice of their religion
- Hide their true race, ethnicity or country of origin
- Change or conceal their political beliefs
- Enter or stay in a marriage to which the person is opposed, or to accept the forced marriage of a child
- Change or hide their sexual orientation, gender identity or intersex status
Significant harm
The person must also be at risk of serious harm:
- Threat to their life (such as the death penalty) or liberty
- Significant physical harassment and/or ill treatment (torture, cruel, inhuman or degrading treatment or punishment)
- Significant economic hardship that threatens the person’s ability to survive
- Denial of access to basic services that threatens the person’s ability to survive
- Denial of their ability to earn a livelihood of any kind, that threatens their survival
No real risk
A person is also taken to not have a well-founded fear of persecution if:
- They are able to take reasonable steps to modify their own behaviour so as to avoid mistreatment
- They are able to relocate to a part of the country where they would not be at a real risk of significant harm
- They are able to access effective protection measures
- The risk is suffers by the entire population on not by the person personally
Effective protection measures
A person is not taken to have a well-founded fear of persecution should effective protection measures exist in their country. Protection may be offered by a State, party or organisation, including an international organisation that controls the relevant State or a substantial part of the territory of the relevant State. It is effective if:
- The relevant State, party or organisation is willing and able to offer protection
- The person can access the protection
- The protection is durable
- Where provided by the State, the protection consists of an appropriate criminal law, a reasonable effective police force and an impartial judicial system
Other requirements
The requirements for a Protection 866 visa are quite extensive so here are some other important general requirements to get your started:
- Must be in Australia
- Cannot be a holder of or ever held a Temporary Protection visa (subclass 785), Safe Haven Enterprise visa, Temporary Safe Haven visa, Temporary (Humanitarian Concern) visa, is an unauthorised maritime arrival, did not hold a valid visa or cleared immigration on their last entry into Australia
- Is not a risk to Australia’s security
- Has not been convicted of a particularly serious crime and is a danger to the Australian community
- Meets health and character requirements
Unauthorised maritime arrival
An unauthorised maritime arrival (UMA) is a person who entered Australia unlawfully by boat and as a result is an unlawful non-citizen. UMAs are unable to make a valid application for the Protection 866 visa.
Hopefully you have been able to identify if you may qualify for a protection 866 visa. For a visa such as this where it is based on serious claims, the Department of Home Affairs (DOHA) will be going through your application in great detail. We recommend that you get advice prior to applying, as any information provided to the DOHA in previous applications can trip you up for future applications.
