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If you are a refugee seeking protection in Australia you may consider applying for a Protection, Class XA Subclass 866, visa.

In order to qualify for a Protection visa, you will need to meet various criteria including, amongst other things, the requirements outlined below.

Section 36 of the Migration Act

Section 36 of the Migration Act 1958 (Cth) (‘the Act’) sets out criteria to be met for a Protection visa.

The criteria in section 36 of the Act are to be read together with relevant provisions of Schedule 2 of the Migration Regulations 1994 (Cth) (‘the Regulations’).

Pursuant to section 36(1A) of the Act, an applicant for a Protection visa must satisfy:

(a)    both of the criteria in subsections (1B) and (1C); and
(b)    at least one of the criteria in subsection (2).

Section 36(1B) of the Act provides that a criterion for a Protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security.

Under section 36(1C), a criterion for a Protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:

(a)    is a danger to Australia’s security; or
(b)    having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.

As well as satisfying both of the criteria in sections 36(1B) and 36(1C), the applicant must show that he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

Under section 36(2)(a), a criterion for a Protection visa is that the visa applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

Section 5H(1)(a) of the Act provides that a person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country.

Alternatively, in the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, they are unable or unwilling to return to that country: section 5H(1)(b) of the Act.

Under section 5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.

If a person is found not to meet the refugee criterion in section 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a Protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.

Protection obligations do not arise under the refugee and complementary protection provisions in situations where an applicant is assessed as a risk to security or has committed certain serious crimes.

Decision-makers are also expected to take into account country information assessments, such as those prepared by the Department of Foreign Affairs and Trade, for the purposes of protection status determination, to the extent that they are relevant to the matter under consideration.

Moreover, whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed on the facts as they exist at the time when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

It is to be noted that further requirements must be met in order to qualify for the grant of a Protection visa.