PROTECTION VISA

ONSHORE PROTECTION VISA – SUBCLASS 866

Our Immigration Lawyers can help you with your Onshore Protection Visa. Most of our protection visa clients are international students and tourists who fear to return to their home country and would like to stay in Australia permanently. We have a proven success record in assisting nationals of China, Pakistan, India, Fiji, Malaysia, Iran, Nepal, Mauritius, Afghanistan, Egypt, Sri Lanka and many other countries.

ABOUT SUBCLASS 866 VISA

Australia is a signatory to the 1951 Refugee Convention and the 1967 Protocol. This means that Australia has voluntarily committed to comply with their provisions in good faith and to take the necessary steps to give effect to those treaties under domestic law (Vienna Convention on the Law of Treaties, Article 26).

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TOP PROTECTION VISA COUNTRIES

PAKISTAN

The Pakistan government is increasingly silencing critical voices of journalists and activists under the pretext of national security. Enforced disappearances, extrajudicial killings, and torture take place with impunity, while security forces exercise undue political influence over civilian authorities. Blasphemy-related violence against religious minorities, fostered in part by government persecution and discriminatory laws, is frequent. Authorities have failed to establish adequate protection or accountability for abuses against women and girls, including “honor” killings and forced marriage. Over 490 people have been executed since the government ended an unofficial ban on the death penalty in late 2014.

READ MORE

Source: Human Rights Watch

Top Protection Claims from PAKISTAN:

  • Shia Muslims
  • Christians
  • Same sex relationships
  • Gender identity
  • Cast marriages
  • Property Disputes

MALAYSIA

After more than 60 years in power, the ruling UMNO-led coalition that had governed Malaysia since independence was defeated in May 2018 by the Pakatan Harapan alliance, led by former Prime Minister Mohamad Mahathir, who established a new party and joined longtime political foes to oust his former protégé Najib Razak. Having run on an election manifesto promising to abolish oppressive laws and make Malaysia’s human rights record “respected by the world,” expectations for the new government are high. With a range of rights-restricting laws on the books, a police force with a history of abuse and impunity, and government institutions weakened by the efforts of the prior administration to maintain political control and suppress discussion of government corruption, the new government faces steep challenges to meeting its human rights pledges.

READ MORE

Source: Human Rights Watch

Top Protection Claims MALAYSIA:

  • Same sex relationships
  • Gender identity
  • Minority groups
  • Ah Long 大耳窿

CHINA

China remains a one-party authoritarian state that systemically curbs fundamental rights. Since President Xi Jinping assumed power in 2013, the government has arbitrarily detained and prosecuted hundreds of activists and human rights lawyers and defenders. It has tightened control over nongovernmental organizations, activists, media, and the internet through a slew of new laws that cast activism and peaceful criticism as state security threats. In 2016, the government abducted and forcibly disappeared several critics in Hong Kong and other countries. The government’s highly repressive rule in the ethnic minority regions of Xinjiang and Tibet persists. Despite legislation to protect against custodial torture, the practice remains widespread, including of Communist Party members accused of corruption.

READ MORE

Sexual Orientation and Gender Identity China has no law protecting people from discrimination on the basis of sexual orientation or gender identity, and there is no legal recognition of same-sex partnership. Possibly because their activism is not considered threatening to the state, LGBT individuals enjoyed some success advancing legal cases in 2016. In January, a Hunan court heard a case filed by Sun Wenlin against the local Bureau of Civil Affairs, which had refused to marry Sun and his male partner. Though the court ruled against Sun in April, his case—the first gay marriage lawsuit accepted by Chinese courts—attracted wide media attention. In June, a Henan court accepted a case filed by Yu Hu against a mental health hospital that had subjected him to 19 days of involuntary “therapy” to “cure” his homosexuality. Also in June, a Guangdong university student, Qiu Bai, sued the Ministry of Education over textbooks that depict homosexuality as an illness. Qiu filed a similar suit in 2015, though she withdrew it later because the department had promised to look into the matter. She decided to sue again after the authorities’ pledge failed to materialize. In June, China voted against a UN resolution creating an expert post dedicated to addressing violence and discrimination based on sexual orientation and gender identity.

Source: Human Rights Watch

Top Protection Claims from CHINA:

  • Same sex relationships
  • Gender identity
  • Religious minorities
  • Opposition of state
  • Harsh & unfair treatment by the authorities
  • Falun Gong

INDIA

Under the ruling Bharatiya Janata Party government, pro-BJP vigilantes have committed violence against religious minorities, marginalized communities, and critics of the government. The failure of authorities to investigate attacks, while promoting Hindu supremacy and ultra-nationalism, has further encouraged violence. Supreme court rulings in 2017 strengthened fundamental rights, equal rights for women, and accountability for security force violations. However, security forces continue to commit arbitrary arrests, torture, and extrajudicial killings with impunity. New laws and policies aimed at justice for sexual violence survivors have not ended barriers to reporting such crimes. Foreign funding regulations are used to target nongovernmental organizations critical of the government.

READ MORE

Source: Human Rights Watch

Top Protection Claims from INDIA:

  • Same sex relationships
  • Gender identity
  • Cast marriages
  • Religious minorities

IRAN

President Hassan Rouhani secured a second four-year term in office in May 2017, in an election marked by debate over the state of civil and political rights in Iran. But despite harsh criticisms he made on the human rights situation during his campaign, he has done little to curtail the rampant violations of the security apparatus and the judiciary. Authorities responded to widespread protests expressing frustration against the government, including allegations of corruption and the lack of political and social freedoms, with mass arbitrary arrests and unfair trials. Several women have also been arrested and detained for their protests against mandatory dress laws.

READ MORE

Source: Human Rights Watch

Top Protection Claims from IRAN:

  • Same sex relationships
  • Gender identity
  • Christian converts
  • Religious minorities
  • Military service

EGYPT

President Abdel Fattah al-Sisi’s government continues to oversee Egypt’s worst human rights crisis in decades and has escalated the use of counterterrorism laws to prosecute peaceful dissidents. The government has arrested scores of al-Sisi’s critics, including potential presidential candidates, ahead of the 2018 presidential elections that was held in an unfair and unfree environment. Police and the National Security Agency have systematically used torture and enforced disappearances. The government has sent thousands of civilians to military courts, undermined the judiciary’s independence, and executed dozens of people following flawed trials. The government continues to ban most forms of independent organization and peaceful assembly.

READ MORE

Source: Human Rights Watch

Top Protection Claims from EGYPT:

  • Same sex relationships
  • Gender identity
  • Coptic Christians
  • Jehovah’s Witnesses
  • Military service

LEBANON

In May 2018, Lebanon held parliamentary elections for the first time since 2009. Public critique of authorities has resulted in prosecutions, threatening freedom of speech and security forces are cracking down on LGBT activities. Detainees report torture and ill-treatment despite the passage of a 2017 law criminalizing torture. Open burning of waste is threatening the health of nearby residents, despite the passage of a law prohibiting the practice in late 2018. Parliament repealed a law that allowed rapists to escape prosecution by marrying the victim, but women continue to face systematic discrimination and violence. Approximately 74 percent of the estimated 1.5 million Syrian refugees lack legal status, restricting their movement and access to work, healthcare, and education.

READ MORE

Source: Human Rights Watch

Top Protection Claims from LEBANON:

  • Same sex relationships
  • Gender identity
  • Minority religious groups

BANGLADESH

The Bangladesh government has intensified its crackdown on civil society, media, and critics. Authorities have killed and disappeared members of the political opposition, while failing to protect bloggers, gay rights activists, and religious minorities from violent and often fatal attacks by militant groups. The government’s response to extremist violence has perpetuated security forces’ long-standing use of arbitrary arrests, enforced disappearances, and extrajudicial killings. Rights to freedom of speech and assembly are under sustained attack by the increasingly authoritarian government. Bangladesh has one of the highest rates of child marriage in the world.

READ MORE

Source: Human Rights Watch

CAMBODIA

The ruling Cambodian People’s Party maintains power through violence, politically motivated prosecutions, repressive laws, and corruption. Prime Minister Hun Sen, in power since 1985, oversees one-party rule in the National Assembly since government-controlled courts dissolved the main opposition Cambodia National Rescue Party, detained opposition leader Kem Sokha, and banned more than 100 opposition members from politics in the lead up to sham elections in July 2018. The government has also intensified its crackdown on independent media, local human rights defenders, and land rights activists. Rights to free expression and peaceful assembly are sharply curtailed, and there is no accountability for serious abuses.

READ MORE

Source: Human Rights Watch

INDONESIA

Indonesian President Joko “Jokowi” Widodo’s rhetorical support for human rights has not led to meaningful policy initiatives. Religious minorities face harassment, intimidation, and violence from Sunni militants, government officials, and security forces. Indonesian authorities restrict foreign media access to Papua on the pretext of a low-level insurgency. Indonesian security forces rarely face justice for serious abuses, particularly in Papua. The government has failed to deliver on a promised reconciliation mechanism for the 1965-66 massacres. The Indonesian government abets widespread attacks on sexual and gender minorities through officials’ hateful rhetoric and discrimination. Authorities targeted private gatherings of LGBT individuals and criminalized consensual same-sex conduct.

READ MORE

Source: Human Rights Watch

SINGAPORE

Singapore’s political environment is stifling. Citizens face severe restrictions on their basic rights to freedom of expression, association, and peaceful assembly through overly broad criminal laws and regulations. In 2017, the country tightened the already strict limits on public assemblies contained in the Public Order Act, which requires police permits for any “cause-related” assembly outside the closely monitored “Speakers’ Corner.” The rights of the LGBT community are severely curtailed: sexual relations between men remains a criminal offense, and there are no legal protections against discrimination on the basis of sexual orientation or gender identity.

READ MORE

Source: Human Rights Watch

SRI LANKA

Sri Lanka has stalled on efforts to address accountability and reconciliation from its three-decade-long civil war, which ended in 2009. Despite government pledges, there has been little progress in prosecuting those responsible for wartime abuses or providing justice for victims. The draconian Prevention of Terrorism Act remains in effect, facilitating torture and other abuse. The government has failed to initiate reforms to the security sector and criminal justice system, such as establishing accountability for police abuses or bringing criminal laws in line with international standards. Muslims and other religious minorities face ongoing threats and violence from ultra-nationalist groups.

READ MORE

Source: Human Rights Watch

RUSSIA

Today, Russia is more repressive than it has ever been in the post-Soviet era. The state has tightened control over free expression, assembly, and speech, aiming to silence independent critics, including online. The authorities crack down on critical media, viciously harass political activists and peaceful protesters, engage in smear campaigns against independent groups, increasingly use their power to ban foreign organizations as “undesirable,” and penalize Russian nationals and organizations for supposed involvement with them. Chechen authorities are waging their war on human rights defenders, resorting to such tactics as fabrication of criminal cases, attacks on property and threats of retaliation against family members. With Moscow’s tacit blessing, local security officials forcibly disappear and torture those deemed undesirable, including gay or bi-sexual men, suspected jihadists, presumed drug users and critics of the government.

READ MORE

Source: Human Rights Watch

PROTECTION VISA REQUIREMENTS

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.

This 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.

FEAR OF PERSECUTION

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 must be 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.

COMPLEMENTARY PROTECTION REQUIREMENTS

The complimentary protection provisions enable visa applicants to claim protection on broader grounds than those contained in the Refugee Convention, reflecting Australia’s obligations under international human rights law.

International human rights law precludes countries from sending people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

MIGRATION ACT 1958 (CTH)

Section 36(2A) of the Migration Act 1958 (Cth) largely gives effect to those obligations in domestic law. People at risk of this kind of harm are eligible for a protection visa. In this way, human rights law provides a ‘complement’ to protection under the Refugee Convention, hence the name ‘complementary protection’.

Specifically, section 36(2A) provides that Australia is not permitted to remove people to countries where they face a real risk of one or more of the following:

  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment.

Complementary protection introduced greater efficiency, transparency and accountability into Australia’s protection regime. Prior to March 2012, Australia was unable to guarantee that people who did not meet the refugee definition in the Refugee Convention, but who nonetheless faced serious human rights abuses if returned to their country of origin or habitual residence, would be granted protection.

Particular social group

There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person will be a member of a particular social group if:

  • each member of the group shares a characteristic
  • the person shares, or is perceived as sharing, the characteristic
  • any of the following apply:
    • the characteristic is innate or immutable (cannot be changed)
    • the characteristic is so fundamental to a person’s identity or conscience, they should not be forced to renounce it (go against it); or
    • the characteristic distinguishes the group from the rest of society
  • the characteristic is not a fear of persecution.
Serious harm

To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:

  • a threat to the person’s life or liberty
  • significant physical harassment of the person
  • significant physical ill treatment of the person
  • significant economic hardship that threatens the person’s capacity to subsist (ability to survive)
  • denial of access to basic services, where the denial threatens the person’s capacity to subsist (ability to survive)
  • denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist (ability to survive).
Systematic and discriminatory conduct

To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.

  • Systematic means the harm is not random or generalised, but is targeted against the person.
  • Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.

This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.

Real chance of persecution

For the fear of persecution to be well founded, there must be a ‘real chance’ that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.

If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.

Seeking protection from authorities in their home country

If the government or other parties that control all or a large part of the person’s home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.

A right to enter and reside in another country

If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.

Modifying behaviours

According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution their home country. However, this would not be the case if such a change would:

  • conflict with a characteristic that is fundamental to the person’s identity or conscience
  • require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
  • require the person to:
    • change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be
    • involved in the practice of their faith
    • conceal their true race, ethnicity, nationality or country of origin
    • change their political beliefs or conceal their true political beliefs
    • conceal a physical, psychological or intellectual disability
    • enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
    • alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.

Helping People Just Like You

What matters to us most is what our clients have to say about their experience once everything has been resolved. Below are some of the messages we have received from people we’ve represented.

John Wellington
John W.
I have worked with several migration agencies in Australia but nothing comes close to Gold Migration. The most recent application is my Partner visa which is quite a complex one due to a character requirement issue I had back in the UK a few years ago. They accepted me as a client when everyone said no to me. To the team at Gold Migration, I cant thank you enough for what you did for me. You changed my life and I hope you can help more people like me.read more
Dimitri Stef
Dimitri S.
Such a great team and really helpful service! Thank you so much for assisting me with my situation so professionally and compassionately
Sarah McNeil
Sarah M.
Such a lovely firm made of people who genuinely care. Kiri was so helpful and kind!
Joanna Taylor
Joanna T.
Very professional service. The whole team worked hard and efficiently and I was very happy with the service provided by Kiri. I would have no hesitation recommending them!
Anthony
Anthony
Thanks to Andreas and the team at Gold. They are best in the business and I don’t hesitate to recommend them to anyone!!
Sotirios Patsatzoglou
Sotirios P.
Amazing service! Helped me fix my own mistakes - without you my immigration future would have been over!
Elias Gianakos
Elias G.
What can I say? They have the best team! The best in Melbourne!
Elvis Otia
Elvis O.
Gold Migration is very impressive. I was quoted a higher fee than others but I went with them in the confidence to deliver which was instilled in me. I have had 3 failed attempts at getting a visitor's visa for my wife. Not only did Gold deliver, but did so when they said they would. Big thanks to the team here. My wife has arrived the country, and thanks for Gold. Money well spent.read more
Carmen Lau
Carmen L.
I'm very satisfied with their legal service, which was very professional, sophisticated, and efficient. More importantly, they listened to my concerns, and requests regarding issues of my visa, and thus provided professional advices upon it with actions taken in place.read more

frequently asked questions

Can I lodge a Protection (866) Visa whilst in Australia?

If you are eligible, yes you can. The Protection (866) Visa can only be lodged whilst you are in Australia.

What are my options if I am not in Australia yet?

There are 4 different offshore visas that you may be eligible to apply for. They are the Refugee (200) Visa, the In-Country Special Humanutarian (201) Visa, the Emergency Rescue (203) Visa and the Woman At Risk (204) Visa.

How would I be eligible for a Protection (866) Visa?

You must be in Australia, and arrived here legally, on a valid visa, and be immigration cleared on arrival. You must also be a genuine refugee, meet the DHA’s identity requirements, not have held specific visas and more.

Do I need to have an interview with the Department of Home Affairs?

Yes, the DHA will interview you to discuss the claims on your application.

Can I travel back to my home country after a Protection Visa is granted?

A protection visa holder with Condition 8559 must apply to the DHA for permission to travel to their home country before they depart.

I am scared to go back to my home country because I will be persecuted. What are the different reasons that the DHA accepts this?

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 and/or political opinion.