What are my options after being refused a Protection (Subclass 866) visa?
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It is no secret that there is a lot of misinformation out there about the Protection (Subclass 866) visa, and the Department of Home Affairs recently released a series of videos reminding migrants in Australia that the Protection visa is for people who face a real risk of significant harm or persecution if they return home, and not for people who just want to stay in Australia longer e.g. to work:
In particular, the Department of Home Affairs has reportedly found that 85% of Protection visa applications do not meet the requirements and are refused, although it is unclear as to whether this statistic takes into account applications for merits or judicial review which are ultimately remitted to the Department of Home Affairs for reconsideration (i.e. decisions to refuse a Protection visa application which are later found to have been affected by error).
To address the significant backlog of Protection (Subclass 866) visa applications that still awaiting finalisation at the Department level, the Department of Home Affairs has reportedly made changes which are resulting in most new Protection visa applications now being decided “almost 8 times faster compared to recent years”.
Additionally, to prevent the misuse of the Protection visa program, the Department has published an online tool to help prospective applicants conduct a preliminary self-assessment of their eligibility for a Protection visa. The Department’s website otherwise emphasises that the Protection visa is for asylum seekers and refugees, as opposed to persons who are simply trying to extend their stay in Australia e.g. for work.
Here at Inclusive Migration, our immigration lawyers do not encourage the lodgement of a Protection visa application where you do not have genuine protection claims that can be properly substantiated, i.e. where you do not genuinely fear for your safety in your home country, and we are unable to assist with the lodgement of such an application.
Nonetheless, we acknowledge that there are many migrants in Australia who are at genuine risk of significant harm or persecution in their home country, including on the grounds of race, religion, nationality, membership of a particular social group and/or political opinion. We have extensive experience in assisting genuine asylum seekers and refugees with their Protection visa applications, including preparing detailed legal submissions which address their satisfaction of the legislative and regulatory requirements for the grant of a Protection (Subclass 866) visa, and helping them prepare for their Protection visa interviews.
Due to the high rates of refusal for this particular visa subclass, we strongly urge all persons who are considering applying for a Protection (Subclass 866) visa to seek professional advice about their eligibility and options, so that they are not only aware of the information and documentation they should provide in support of their application, but can also make a fully-informed decision about their next steps.
What should I do if my Protection visa application has been refused?
In this blog post, we outline potential steps you may take after you have been refused a Protection (Subclass 866) visa, but again urge you to seek professional advice about your specific circumstances as the refusal of a Protection visa application can have a significant impact on the ongoing trajectory of your immigration options.
Option 1: Apply for review
Persons who have been refused a Protection (Subclass 866) visa in Australia are encouraged to seek professional advice about their review rights. In particular, they may generally be able to “appeal” the refusal of their Protection visa application by lodging an application for merits review with the Administrative Review Tribunal, who will conduct a de novo assessment of their eligibility for a Protection (Subclass 866) visa. What this means is that the Tribunal will generally look at the entire application again (and not just consider the delegate’s reasons for the refusal), so as to decide whether the applicant satisfies the relevant regulatory criteria for the grant of a Protection visa.
At the merits review stage, Protection visa applicants have an opportunity to address or explain any “gaps” or “inconsistencies” in their Protection visa application, provide further evidence in support of their protection claims and demonstrate to the Tribunal that they are still at risk of significant harm or persecution in their home country.
In circumstances where the Tribunal believes the Protection visa applicant is a refugee who is owed protection obligations, or is at risk of serious human rights violations in their home country, the Tribunal may then remit the application back to the Department of Home Affairs for reconsideration, with a direction that the applicant satisfies the relevant regulatory criteria. The Department of Home Affairs will then continue processing the Protection visa application, and may request further information e.g. police certificate(s) and/or visa medical examinations for the grant of the Protection visa.
In the 2023-24 financial year, 9% of review applications in the Refugee cohort (i.e. Protection visa applications) were successfully remitted to the Department of Home Affairs. While this would appear to suggest that most review applications in relation to Protection visa applications are ultimately unsuccessful, it is important to note that amongst the remaining review applications in the Refugee cohort:
part of the 45% of review applications in the Refugee cohort that are affirmed (i.e. where the Tribunal affirms the refusal of the Protection visa application by the Department) may have gone on to exercise their judicial review rights before the Federal Circuit and Family Court of Australia, where the Tribunal’s decision is affected by legal error;
13% of review applications in the Refugee cohort that are withdrawn may include applicants who have been granted other visas in the meantime (e.g. a Partner visa, a general skilled migration visa and/or an employer-sponsored visa) and therefore no longer needed to pursue their Protection visa application;
23% of review applications in the Refugee cohort that were dismissed by the Tribunal are in relation to applicants who ultimately did not appear before the Tribunal at a hearing; and
10% of review applications in the Refugee cohort that were dismissed by the Tribunal include circumstances where the applicant did not actually have standing to apply for review, and/or where the application for review was lodged or paid for out of time, resulting in the Tribunal not having jurisdiction to consider the review application.
Our immigration lawyers at Inclusive Migration have otherwise been able to assist genuine Protection visa applicants with the remittal of the Protection visa applications to the Department, and the grant of their Protection (Subclass 866) visas. This involves extensive legal research and the preparation of detailed legal submissions, so as to advocate for our clients, assist them with responding the Tribunal’s inquiries and address their satisfaction of the relevant legislative and regulatory criteria in a clear and concise and complete manner.
Nonetheless, it is important to note that review applications in the Refugee cohort can take a number of years to be finalised by the Tribunal. In particular, the Administrative Appeals Tribunal’s processing times for the Protection case category indicate that 50% of these review applications were finalised in 1,776 days, whereas 95% of these review applications were finalised in 2,249 days. This means that many review applications associated with Protection visa applications took about 6 years to be finalised by the Tribunal.
Since replacing the Administrative Appeals Tribunal on 14 October 2024, the Administrative Review Tribunal does not yet have similar statistics available and has stated that it is unable to guarantee finalisation of individual reviews in the same category within these timeframes. Whilst the Administrative Review Tribunal aims to reduce the backlog of review applications through the appointment of more Tribunal members, noting how recent these changes occurred, it would be unreasonable to expect an immediate significant reduction of the Tribunal's processing times.
Option 2: Apply for another visa
Persons who have been refused a Protection (Subclass 866) visa in Australia may still be eligible to apply for another visa in Australia, although they may face difficulties with any new visa application they lodge, for a number of reasons.
Firstly, Section 48 of the Migration Act 1958 (Cth) bars them from applying for most visas onshore, with the exception of the following visas which the may still apply for in Australia, subject of course to the meeting the requirements to apply for these visas:
Partner (Subclass 820/801) visas
Partner (Subclass 309/100) visas
Protection (Subclass 866) visa - where the Minister has personally intervened to allow them to lodge another Protection visa applicaiton
Medical Treatment (Subclass 602) visa
Territorial Asylum (Residence) visa
Border (Temporary) visa
Special Category (Subclass 444) visa
Bridging visa A
Bridging visa B
Bridging visa C
Bridging visa D
Bridging visa E
Bridging visa F
Bridging visa R
Resolution of Status (Subclass 851) visa
Child (Subclass 802) visa
Retirement visa
Investor Retirement visa
Skilled Nominated (Subclass 190) visa
Skilled Work Regional (Subclass 491) visa
Skilled Employer Sponsored Regional (Provisional) (Subclass 494) visa
While certain Protection visa applicants who hold a Bridging visa A or Bridging visa B may technically be able to travel overseas temporarily for the lodgement of an offshore visa application, this is contingent upon them not only having a valid passport or travel document, their eligibility for a Bridging visa B as well as their ability to obtain a visa to travel to a country where they would be safe (where required). Additionally, they will generally not be eligible for the grant of a Bridging visa in association with their offshore visa application. Moreover, in certain cases, a Protection visa applicant who renews their passport or travels overseas on a passport or travel document issued by the authorities in their home country, risks undermining certain aspects of their protection claims.
Secondly, it is likely that the Department will scrutinise any further visa application they lodge to ascertain the veracity of the information and documents they provide, which may increase the likelihood of them being found to have provided false or misleading information e.g. where there is inconsistent information provided across their previous visa application(s) and new visa application, and otherwise result in longer processing times. This is particularly since the overarching reason for the refusal of many Protection visa applications is that the Department does not believe their protection claims. As a result, Department may continue to have doubts about whether a person who has been refused a Protection visa genuinely meet the requirements for the grant of another visa (e.g. whether they are genuinely in a de facto or married relationship for the grant of a Partner visa), or whether they are just applying for another visa to extend their stay in Australia or secure a migration outcome.
Furthermore, persons who do not hold a substantive visa, and are s. 48-barred from applying for most visas in Australia, may need to meet additional requirements before they are able to even lodge a valid visa application in Australia. For instance, when it comes to lodging a Partner visa application, Schedule 1 of the Migration Regulations 1994 (Cth) requires that persons who do not hold a substantive visa (i.e. they are either unlawful or hold a bridging visa) must provide a sponsorship form from the sponsor, as well as statutory declarations from at least two (2) persons (not more than 6 weeks old and declaring that the Applicant and Sponsor are in a de facto/ married relationship) at the time of lodgement, otherwise the application will be invalid.
It is therefore important to seek professional advice about your next steps where you have been refused a Protection (Subclass 866) visa, even if you believe that you would meet the requirements for that visa.
Option 3: Request Ministerial intervention
You may be able to make a request for Ministerial intervention if you have received a decision from a merits review tribunal (i.e. the previous Refugee Review Tribunal, the previous Administrative Appeals Tribunal or the current Administrative Review Tribunal), as the Minister has the power under sections 351, 417 and 501J of the Migration Act 1958 (Cth) to exercise his personal discretion to grant you a visa.
In successful Ministerial intervention cases, even where the Minister does not grant an applicant a permanent visa, the Minister may grant them e.g. a Visitor visa which may effectively “remove” the s. 48 bar, thereby allowing them to lodge another visa application in Australia which they may otherwise be eligible for, e.g. a Parent visa, Partner (Subclass 820/801) visas or an Employer-sponsored visa.
Nonetheless, it is important to note that requests for Ministerial intervention are generally first reviewed by the Ministerial Intervention Unit to be assessed under the Minister’s guidelines, and that only cases with unique or exceptional circumstances would thereafter be referred for the Minister’s consideration. As a result, the Minister only intervenes in a rare number of cases, such that very few requests for Ministerial intervention are successful.
Examples of unique or exceptional circumstances that may be brought to the Minister’s attention include:
Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
Compassionate circumstances regarding your age and/or health and/or psychological state, that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship.
Exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia.
Circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in your case.
You cannot be returned to your country/countries of citizenship or usual residence due to circumstances outside your control.
Additionally, the following circumstances are regarded as being “inappropriate to consider”, and are generally finalised by the Ministerial Intervention Unit without referral to the Minister:
the request is made by a person who is not the subject of the request or their authorised representative
the person is in the community and:
is an unlawful non-citizen and remains an unlawful non-citizen throughout the course of their Ministerial intervention request
does not cooperate in ensuring that a valid travel document is available (or has not satisfied the Department that they are stateless)
the person has been found not to satisfy a fraud-related Public Interest Criterion for the grant of a visa
the person’s visa has been cancelled because they breached their visa conditions
the person has had a visa refused because they did not comply with the conditions of a previous visa
the person has been refused a visa or has had a visa cancelled on character grounds
the Australian Security Intelligence Organisation (ASIO) has determined that the person is a direct or indirect risk to national security through issuing the person with an Adverse Security Assessment (ASA) which remains in effect
the person could apply for a Partner visa onshore but is subject to a visa condition 8503 (which specifies that after entering Australia, the person cannot be granted another substantive visa other than a protection visa while they remain in Australia) and a request for a waiver of that condition has not been sought or decided
the person may be able to apply for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Migration Regulations 1994 (the Regulations)
the person’s application for a Partner visa onshore, as prescribed under regulation 2.12(1) of the Regulations, has been refused and the person is now barred from applying for a Partner visa onshore
the person has left Australia
the person has an ongoing application for a substantive visa (either onshore or offshore) with the Department
the person has an ongoing application for merits review of a visa decision with a relevant review tribunal
the person has had a remittal or a set aside decision from a relevant review tribunal or a court
the person’s review tribunal decision was in relation to the refusal or cancellation of a Bridging visa E
the person has an ongoing ministerial intervention request under any of the powers covered by these guidelines
a Notice of intention to remove has been issued to the person and the ministerial intervention request has not been initiated by the Department
the person holds a Bridging visa E with visa condition 8512 which specifies that the person must leave Australia by a specified date
the request raises claims only in relation to Australia’s non refoulement obligations.
Persons who wish to request Ministerial intervention are urged to seek professional advice about their options and about how they can substantiate the unique and exceptional circumstances of their Ministerial intervention request, particularly since the Department takes a dim view of “repeat” Ministerial intervention requests, especially where there has not been a significant change in circumstances since a previous Ministerial intervention request was finalised without referral to the Minister or without intervention by the Minister.
Our immigration lawyers at Inclusive Migration otherwise have extensive experience in assisting persons with presenting their unique and exceptional circumstances to the Ministerial Intervention Unit for the Minister’s consideration, with successful outcomes. Nonetheless, it is important to note that the prospects may vary based on the individual circumstances of each case, and that there are other important factors which should also be considered, especially since certain persons who have requested Ministerial intervention may not have access to permission to work whilst awaiting an outcome on their Ministerial intervention requests.
Additionally, while some Ministerial intervention requests may be finalised without referral relatively quickly, other Ministerial intervention requests may take a number of years to be finalised.
How we can help
At Inclusive Migration, our immigration lawyers have extensive experience with helping Protection visa applicants navigate complex immigration matters in a compassionate and empathetic manner. In particular, our expertise extends beyond Protection (Subclass 866) visa applications, such that we are able to assess a Protection visa applicant’s eligibility for other visas, and accordingly provide you with upfront, honest and pragmatic advice to serve your best interests.
We acknowledge that even where there is uncertainty as to whether a Protection visa applicant’s claims meet the legal threshold for the grant of a Protection (Subclass 866) visa, the same protection claims may otherwise serve as strong compelling reasons in another visa application. We have also consulted with many Protection visa applicants who were misled into applying for a Protection (Subclass 866) visa by other unscrupulous “representatives”, including vulnerable migrants who have fallen prey to work visa scams, been subject to exploitation in Australia, and otherwise believed that they were being sponsored for a “work visa” to work for someone in Australia. We therefore strongly believe that everyone’s story is worthy of being heard and considered, and invite you to consult with us for a detailed discussion of your case, so that we may help you turn your life around.
Should you wish to discuss your eligibility for a Protection (Subclass 866) visa or explore your eligibility for other visas in Australia, including where you have been refused a Protection (Subclass 866) visa, please email info@inclusivemigration.com.au or submit an enquiry using the contact form on our website. Our immigration lawyers would be happy to meet with you to provide you with true and accurate legal advice about the Australia’s Protection visa program, and otherwise assess your eligibility for other employer-sponsored, skilled migration and family migration options in Australia.
