Protection Visa (Subclass 866)

To be granted a Protection Visa, you must be found to engage Australia’s protection obligations, by virtue of fact that you either:

1. Meet the definition of the refugee as defined in the Migration Act 1958.
2. Fit the legal criteria under Australia’s complementary protection scheme in the Migration Act 1958.

Under the Section 5H of the Migration Act 1958, a person is a refugee if they are:

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

You must demonstrate that any persecution you have suffered was for reasons relating to your:

1. Race
2. Religion
3. Nationality
4. Political opinion
5. Membership of the particular social group

You must also demonstrate that there is a real chance that if you return to your home country you will continue to be persecuted for one or more of these reasons. That is, your claims of persecution must be “forward looking”.

The persecution you have suffered must involve serious harm and must be systemic and discriminatory in nature. Following is a non-exhaustive list of what can constitute serious harm:

1. A threat to the person’s life or liberty
2. Significant physical harassment of the person
3. Significant physical ill-treatment of the person
4. Significant economic hardship that threatens the person’s capacity to subsist
5. Denial of access to basic services, where the denial threatens the person’s capacity to subsist
6. Denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist

The following legal criteria also apply:

1. Your fear of persecution must also be well founded, in that you subjectively believe you will suffer persecution if you return to your home country, and a reasonable person in your position would fear the same.
2. Notably, a person is deemed not to have a well-founded fear of persecution if effective protection measures are available to the person in their home country or another country which they have the right to enter and permanently reside in.
3. You must also prove that you are at risk of being subjected to such persecution in all areas of the country you fear returning to, and you cannot reasonably relocate to another area of your home country and secure your safety that way.
4. In addition, a person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than certain modifications such as, amongst other things, being forced to conceal your religion, race or political opinion, or another characteristic that is fundamental to your identity or conscience.

In order to be recognised as a person owed complementary protection by Australia, you must prove that as a necessary and foreseeable consequence of your removal from Australia, you would face a real risk of one or more of the following forms of significant harm:

1. Arbitrary deprivation of life
2. The death penalty
3. Torture
4. Cruel or inhuman treatment or punishment
5. Degrading treatment or punishment

There are other legal criteria you must satisfy to meet the definition of a refugee or to be owed complementary protection which we can inform you of once you have made contact with our firm.

As you can see, there are a lot of legal requirements to be granted a Protection Visa. Our experienced immigration lawyers have handled many successful protection visa applications for people from across the globe who came to Australia to seek refuge. We will ensure your application for a Protection Visa is given the best prospects of success possible in the circumstances.

We offer all our prospective clients an initial meeting, during which we will thoroughly explain the law surrounding Protection Visas to you and get the full details of your case for protection. We will then advise you whether you have a good case to present to the Department of Immigration and Border Protection. If you do not have a reasonable case to present to the Department of Immigration and Border Protection, we will be honest with you and advise you of as much, as having a failed permanent residency visa application on your immigration record can have adverse consequences to you in the future.

To organise an initial consultation with us, please contact one of our experienced immigration lawyers on (02) 9590 3987.