A PROTECTION VISA is a classification of Australian visa that allows people to stay in Australia when they are seeking asylum and are owed the Australian protection obligations. In Australia, there are two different types of Protection Visas available for those in need:
- The Temporary Protection Visa (Subclass 785) (‘Temporary Protection Visa’)
- The Permanent Protection Visa (Subclass 866) (‘Permanent Protection Visa’)
How Do I Know Which Protection Visa To Apply For?
Every person’s circumstances are different, and there are innumerable factors for consideration when determining your best Visa pathway. Ultimately, it will always be the decision of the Visa Applicant to determine what Visa they wish to apply for – however, advice from specialised and experienced Migration Lawyers (such as those at Sambi Legal)) can help you ensure that you are making an educated, informed, and cost-effective decision that offers you the best prospects of a positive outcome.
Understanding the differences to the Protection Visas is crucial when figuring out which Visa to apply for. As the names suggest, the Temporary Protection Visa enables you to stay in Australia temporarily (for a period up to three years), whereas the Permanent Protection Visa allows you to permanently stay in Australia as a Permanent Resident.
The primary difference in the eligibility requirements for these visas are that the Temporary Protection Visa is for immigrants who arrive in Australia without a visa and are seeking asylum, unlike the Permanent Protection Visa – which is for immigrants who arrived in Australia on a different, valid Visa; but now wish to seek asylum.
Whilst the protection obligations owed by Australia and the eligibility requirements for these visas are very similar, this article will focus on the Permanent Protection Visa (Subclass 866).
How To Apply For A Protection Visa
- Engage in Australia’s Protection Obligations (or be a family member of someone who does); and
- Have arrived in Australia legally with a valid visa; and
- Meet all other Visa requirements such as character, health and security.
Australia’s Protection Obligations
In order to engage Australia’s PROTECTION OBLIGATIONS, the applicant needs to be a refugee according to the Migration Act 1958 (Cth) (‘the Act’).
In short, a refugee is someone who is outside their home country and because of a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or seek protection from that country. In addition to the existence of a ‘well-founded fear of persecution’, there needs to be a real chance of present persecution and as such, past persecution may be used to establish the existence of a well-founded fear, but alone is not enough to make someone a refugee.
The Act specifies five particular reasons someone may have a well-founded fear of persecution, namely they must fear serious harm because of their: race; religion; nationality; membership of a particular social group; or political opinion. As examples, our office have assisted people obtain Protection Visas because they were political dissidents of their home country, were homosexual and feared persecution because of the home country’s societal expectations, etc. It is important to note that the ‘real chance of persecution’ must relate to everywhere in the country and not only a specific area.
A further criterion of having a ‘well-founded fear of persecution’ is that the persecution feared must involve both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. The definition of ‘serious harm’ includes many things such as a threat to liberty, physical harm, significant economic hardship, denial of basic needs, etc. Additionally, for the persecution to be systematic and discriminatory, it needs to be specifically targeted against the person (or a member of their family) and affects the person (or their family member) in such a way that singles that person out from the broader community.
Through our extensive experience in assisting in both applications and appeals for clients seeking to obtain and/or keep their Protection Visa, our office has repeatedly seen and can confirm that difficulties of whether someone engages Australia’s protection obligations tend to arise when they have not taken all possible steps to help avoid or remedy the threats to their protection.
EXAMPLE
If you have a right to enter and reside in a different country where you would not face persecution or significant harm, and you have not tried to exercise that right, you may not be taken to be a refugee.
Character Requirements
- Have committed a crime against peace, a war crime, or a crime against humanity;
- Have committed a serious, non-political crime before entering Australia;
- Have been guilty of acts contrary to the purposes and principles of the United Nations;
- Be a danger to Australia’s security; and/or
- Have been convicted of a particularly serious crime and are a danger to the Australian community.
Complementary Protection Obligations
- Arbitrary deprivation of life;
- The death penalty;
- Torture;
- Cruel or inhuman treatment or punishment; and/or
- Degrading treatment or punishment.
Other Eligibility Requirements
There are a long list of other requirements relating to the grant of a Permanent Protection Visa, such as those that relate to health and character.
This article will not identify every requirement, however, provides the following list of hurdles often faced by our clients before they come to us for assistance; and which may jeopardise your Protection Visa application:
- If you have a substantial criminal record;
- If you have been convicted of a sexually based crime involving a child;
- If you are or have been involved in groups that are suspected of being involved in criminal conduct (such as outlaw motorcycle clubs);
- If there is a risk that while in Australia you would engage in criminal conduct;
- If you are considered a public health and safety risk to the Australian community (especially active tuberculosis);
- If you are considered likely to be a significant burden to Australia in relation to the cost of social security benefits, allowances and pensions; and/or
- If it is determined that your presence in Australia will likely disrupt the access to health and community services to current Australian Citizens and Permanent Residents, particularly where those services are in short supply.
It is important to note that the Department Of Home Affairs (being the relevant Department of the Australian Government) will consider all of your circumstances, even if you appear to fall short of any requirements discussed here. In fact, even if you do not meet the health and Character Requirements, your Permanent Protection Visa may still be granted – so it is paramount to always seek advice from experienced professionals, who know the ins-and-outs of Immigration Law in Australia, and can help you obtain the best possible outcome for you and your loved ones.
