A person holding a valid tourist visa can generally lodge an onshore Protection visa (Subclass 866) application, provided they are immigration cleared and hold that visa at the time of lodgement.
Protection visa applications are one of the recognised exceptions to the Section 48 bar, meaning they can generally be lodged onshore even where a person is otherwise barred from applying for most other visas.
Eligibility rests on either the refugee definition or complementary protection grounds, both of which require well-founded fear or a real risk of significant harm, not general instability in the home country.
A Bridging Visa is typically granted once an application is lodged, though the specific bridging visa type depends on individual circumstances.
Timing matters: lodging after the tourist visa expires can affect eligibility and immigration status.
The Protection visa (Subclass 866) application charge is separate from legal fees and is periodically reviewed by the Department of Home Affairs.
A Protection visa application is also one of the recognised exceptions to the Section 48 bar. The Section 48 bar generally prevents a person without a substantive visa, or who has had a visa refused or cancelled, from lodging most further visa applications while in Australia. Protection visa applications, along with a small number of other visa types, fall outside this bar. This means many people who could not otherwise apply for a new visa onshore may still be able to lodge a Protection visa application.
By contrast, unauthorised arrivals face different legal pathways and restrictions, particularly in relation to permanent residency eligibility. This is sometimes referred to as the fast track assessment process, which applies to certain unauthorised maritime arrivals and involves a more limited review pathway than the standard process. Understanding these distinctions is essential before taking any steps. Properly preparing protection claims to meet the requirements set out in Australian law is crucial for a successful application, and this is where tailored legal advice can make a significant difference.
One of the most persistent visa myths in Australia is that a tourist visa prevents someone from seeking asylum. This is incorrect. Australia’s protection obligations recognise that a person’s need for refugee protection may arise after they have arrived in the country. These obligations are shaped by the Refugee Convention, which requires Australia to assess protection claims and provide equal treatment to asylum seekers regardless of their mode of arrival. Australia also applies what is known as the non-refoulement obligation, which prevents the removal of a person to a country where they would face persecution or significant harm.
Once a protection visa application is lodged, the applicant’s immigration status changes. In most cases, an applicant who holds a substantive visa such as a tourist visa at the time of lodgement will be granted a Bridging Visa A, which allows them to remain lawfully in Australia while their claims are assessed.
Where a person does not hold a substantive visa at the time of lodgement, a Bridging Visa E may apply instead, generally with more limited conditions.
A Bridging Visa may also provide work rights and access to certain services, depending on the individual circumstances. In some cases, the bridging visa may grant permission to work or study while the application is processed. Managing bridging visa conditions correctly is crucial, as breaches can have serious consequences for the protection application, which may include unlawful non-citizen status and associated detention risk if conditions are not met or the bridging visa expires without a further grant.
To be granted a protection visa, an applicant must satisfy strict legal criteria under the Migration Act 1958. This includes demonstrating a well-founded fear of persecution for reasons such as race, religion, nationality, political opinion, or membership of a particular social group.
If a person does not meet the refugee definition, they may still qualify under complementary protection grounds. This applies where there is a real risk of significant harm, such as torture, cruel or inhuman treatment, or arbitrary deprivation of life, if the person were returned to their home country. Strong, well-prepared evidence is essential in meeting these thresholds. Applicants must submit supporting documents, including proof of identity and other relevant documents, to prove their eligibility for protection. Submitting a complete application with all required documents increases the chances of approval. Applicants must also pass character requirements as part of the overall assessment. There is an application charge for lodging a protection visa, (currently AUD $50), but a fee waiver may be available for those facing financial hardship.
Nicholas Merlin Esq. is a Senior Australian Migration Lawyer at Australian Migration Lawyers, admitted in Victoria in 2022, with 20 years of combined US and Australian legal experience.
在拉籌伯大學（La Trobe University）及法律學院（The College of Law）完成澳洲法律學業後，他於2022年獲維多利亞州最高法院核准成為澳洲律師。其後，他取得執業律師編號5513285，並以此從事移民法相關業務。他是維多利亞州律師公會（Law Institute of Victoria）的會員。
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