Humanitarian & Refugee Protection Visa (Subclass 202 & 866) – If you fear persecution or significant harm from your country of origin you may be eligible for an Australian protection visa.

If you are seeking protection in Australia, are located in Australia and you arrived lawfully, you may be eligible to apply for a Permanent Protection (subclass 866) Visa. As a summary, you may be eligible for this visa if:

• you are in Australia and you entered Australia with a valid visa
• you are claiming Australia’s protection as a refugee or under Australia’s complementary protection scheme; and
• you are not barred from lodging a Protection visa application.

An Permanent Protection (subclass 866) Visa allows you to:

• stay in Australia indefinitely
• work and study in Australia
• enrol in Medicare, Australia’s health care scheme
• apply for Australian citizenship once you are eligible
• sponsor eligible relatives for permanent residence; and
• travel to and from Australia for five years from the date the visa is granted (after that time, you will need a resident return visa or another visa to return to Australia). You will not, however, be able to travel to the country from which you have sought protection unless the Minister has approved the entry in writing.

If you are seeking protection in Australia and did not arrive lawfully, you can only apply for a Temporary Protection Visa (TPV) (Subclass 785) or a Safe Haven Enterprise visa (SHEV) (Subclass 790).

How your application will be processed will depend on the date and mode of your arrival in Australia, and whether or not you were previously transferred to a regional processing centre outside of Australia (in Nauru or Papua New Guinea).

A TPV allows you to:

• stay in Australia for up to three years
• work in Australia
• enrol in Medicare, Australia’s health care scheme
• receive some social security payments
• if you are a minor, you will potentially have access to government-funded education.

If you wish to travel outside of Australia as the holder of a TPV, you must apply for approval and show compassionate or compelling circumstances that justify the travel. You will not be able to travel to the country from which you have been granted protection.

Just prior to the expiry of your TPV, you will need to apply for another TPV or a SHEV. You will have your claims for protection assessed again to determine whether you face a real chance of persecution, or a real risk of significant harm, in your country of origin.

A TPV does not allow you to:

• travel to the country from which you have been granted protection
• apply for another Australian visa, other than another TPV or the SHEV
• sponsor family members for a visa.

If you are seeking protection in Australia and did not arrive lawfully, you can only apply for a temporary protection visa.

The relevant visas are the SHEV (subclass 790) and the Temporary Protection visa (subclass 785).

You may be eligible for a SHEV if:

• you are invited to apply for a SHEV and lodge a valid application
• you are assessed as engaging Australia’s protection obligations
• you or at least one member of your family has an intention to work or study in a regional area of Australia and will not apply for Centrelink payments
• you meet other requirements, such as health and character.

SHEV allows you to:

• stay in Australia for up to five years
• work in Australia
• enrol in Medicare, Australia’s health care scheme
• receive some social security payments
• access short-term counselling for torture and trauma
• access the Adult Migrant English Programme
• if you are a minor, have access to government-funded education.

If you wish to travel outside of Australia as the holder of a SHEV, you must apply for approval and show compassionate or compelling circumstances that justify the travel. You will not be able to travel to the country from which you have been granted protection.

Prior to the expiry of your SHEV, you are eligible to apply for another SHEV or a TPV. You will have your claims for protection assessed again to determine whether you face a real chance of persecution, or a real risk of significant harm, in your country of origin.

You may also be able to apply for some other types of visas if you have held a SHEV for at least 3.5 years and if, during that time:

• you have lived in certain regional areas of Australia;
• you have not accessed certain Centrelink payments; and
• you have worked or studied full time at certain education institutions.

You could also be eligible to apply for a substantive visa if a member of your family unit that was included on your SHEV application meets the above requirements and that family member is included, or has included you, in any subsequent visa application.

The areas that are currently considered part of regional Australia for the SHEV ‘pathway’ requirements are postcodes in New South Wales apart from Sydney, the Central Coast, Newcastle and Wollongong, and all postcodes in Tasmania.

If you are eligible to apply for a visa other than another SHEV or a TPV, you will need to meet all the criteria for that visa.

A SHEV does not allow you to:

• travel to the country from which you have been granted protection
• sponsor family members for a visa.

Broadly speaking, in order to be recognised as a refugee under Australian law, you must demonstrate that there is a real chance that you will be seriously harmed in your country of origin because of your:

• race
• religion
• nationality
• political opinion; and/or
• membership of a particular social group.

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 to your country of origin, you would face a real risk of one or more of the following forms of significant harm:

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

In addition to demonstrating that you meet one or more of the grounds for protection, you must also pass the relevant identity, health and character checks.

You are able to include family members in your subclass 866 visa application if they satisfy particular criteria, and they are also in Australia. Please consult us for more details.

If the Department of Immigration refuses your application for a visa based on your protection claims, you may be able to apply for a review of the decision by making an application to the Administrative Appeals Tribunal (AAT) or the Immigration Assessment Authority (IAA).

The AAT and the IAA can reconsider an application for protection that has been refused by the Department delegate. If the AAT or IAA decides that an applicant is a refugee or a person owed complementary protection in Australia, it will send the application back to the Department with a direction that the applicant is entitled to protection.

This does not mean that an applicant who receives a positive decision from the AAT or IAA will automatically be granted a visa. Other criteria must also be satisfied.

If your protection application has been refused by the Department, you only have a limited amount of time in which to apply to the AAT or IAA for review. If you are unsuccessful with your initial visa application, you should consult an experienced immigration lawyer immediately.

While the Federal Circuit Court, the Federal Court and ultimately the High Court of Australia­­ can review the legality of the decision-making process, an application to the AAT or IAA is your last chance to have an independent body decide your claims for a protection visa on their merits. The potential impact of a negative AAT or IAA decision is therefore enormous.