How Australia Assesses Protection-Visa Claims in 2025
(Refugee Convention & Complementary Protection explained)
Australia’s protection-visa system is built on two layers of safeguards inside the Migration Act 1958:
Refugee protection – drawn from the 1951 Refugee Convention.
Complementary protection – Australia’s promise not to return anyone to torture, death or other serious harm.
Together, they underpin the Protection visa (subclass 866), which lets eligible people stay in Australia permanently if they are already on-shore and engage Australia’s protection obligations.
Who can ask for protection?
You must be in Australia. The subclass 866 is only available to people who arrive on a valid visa and then seek asylum. (Unauthorised maritime arrivals are restricted to different processes.)
You can be a national or stateless. If you have more than one nationality, decision-makers look at each country in turn.
You must pass security & character checks. ASIO and Home Affairs screen every protection-visa applicant.
1. Refugee protection – the Convention test
Under s 36(2)(a) of the Migration Act a person is a refugee if they:
Are outside their country of nationality (or, if stateless, former habitual residence); and
Have a well-founded fear of persecution for reasons of race, religion, nationality, political opinion, or membership of a particular social group.
How officers decide “well-founded fear”
Real-chance standard – the risk must be credible, not remote.
Serious harm + systematic discrimination – threats to life, liberty or fundamental rights.
Convention nexus – the protected characteristic is an essential and significant reason for the harm.
State protection & internal relocation – a claim fails if the home government can and will protect you, or if you could live safely elsewhere inside the country.
No hiding who you are. The High Court in Appellant S395/2002 ruled that applicants cannot be told to “live discreetly” to avoid harm – they are entitled to live openly without persecution.refworld.org
2. Complementary protection – the non-refoulement safety-net
If a person doesn’t fit the Convention definition, section 36(2)(aa) still bars removal where there are substantial grounds they would face significant harm, such as:
Arbitrary deprivation of life
The death penalty
Torture
Cruel or inhuman treatment or punishment
Degrading treatment or punishment
Key points:
Motive is irrelevant. Unlike the Refugee test, the reason for the harm doesn’t matter – only the type of harm.
Same exclusions apply. A claim fails if you could relocate safely or get effective state protection.
Real-risk threshold. Decision-makers ask whether, on current evidence, there is a real (not fanciful) risk you will suffer one of the five harms.
The decision process
Lodge Form 866 with identity documents, a detailed statement and supporting evidence.
Interview & country-information check – Home Affairs tests credibility against independent reports (DFAT, UNHCR, NGOs).
Primary decision – assessment under Refugee grounds first, then complementary protection if needed.
Merits review – if refused, apply to the Administrative Review Tribunal within strict deadlines for a fresh hearing.
Judicial review – legal errors can be challenged in the Federal Circuit and Family Court.
Tips for a stronger application
Be consistent and precise. Any contradictions between your story, documents and earlier visa forms can damage credibility.
Gather corroboration early. Witness statements, medical reports, photos and country-condition articles help prove risk.
Explain why you can’t relocate or get protection at home. Address these issues directly in your statement.
Get qualified advice. Specialist migration lawyers understand evidence rules and strict timeframes.
Helpful links
High Court decision Appellant S395/2002 (sexual-orientation precedent) refworld.org
Frequently Asked Questions (FAQs)
What is the difference between a Protection visa and Australia’s offshore Humanitarian program?
A Protection visa (subclass 866) is for people who are already inside Australia and now seek asylum. The offshore Humanitarian program (subclasses 200–204) is reserved for refugees who apply from outside Australia and are resettled through UNHCR or another referral pathway.
Can I apply if I arrived in Australia by boat?
Unauthorised maritime arrivals are generally barred from lodging a subclass 866 application. Instead, they are considered under separate temporary protection arrangements and cannot access the on-shore permanent protection pathway.
How long does a Protection visa take to process?
Processing times fluctuate, but Home Affairs reports that newer on-shore claims are currently being finalised far faster than a few years ago—often within months instead of years—depending on case complexity and caseload.
Do I need a lawyer or migration agent?
It’s not mandatory, but professional representation can greatly improve the quality of your evidence, ensure all deadlines are met, and maximise your chances of success—especially if your case involves complex facts or appeals.
Can I include my family members?
Partners and dependent children who are already in Australia can usually be added to the same protection-visa application. Immediate family members overseas may be eligible for “split-family” visas once you are granted protection.
Ready to discuss your case?
Every protection claim is unique. If you fear persecution or serious harm, book a confidential consultation with One Planet Migration today. Our experienced Melbourne-based lawyers will guide you through the Protection-visa process, prepare persuasive evidence and represent you at every stage.
Take control of your future – schedule your consultation now.
Disclaimer: This article contains general information only and does not constitute legal advice. Although we strive to provide accurate and useful information, the nuances of Australian immigration law demand personalised advice from legal professionals. Given the dynamic nature of migration regulations, it is essential to consult with experienced immigration experts for tailored support.
