The protection visa framework

Topic Refugee and protection law 🇦🇺 Verified: 2026-05

Overview

Australia's protection visa framework allows persons who are in Australia and who engage Australia's protection obligations under the Refugees Convention (or its Protocol) or under international human rights law to apply for the Subclass 866 Protection Visa. The framework has two limbs: the refugee criterion (based on the Refugees Convention definition) and the complementary protection criterion (based on Australia's non-refoulement obligations under other international treaties). Only persons who are already in Australia may apply for the Subclass 866 visa.

Australia is a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol. The Migration Act 1958 incorporates Australia's protection obligations. However, Australia applies significant restrictions on protection visa access for persons who arrived by boat without authorisation (unauthorised maritime arrivals or UMAs), who are subject to a separate regime.

Offshore protection claims are determined under a separate "offshore entry" system, or through the humanitarian program. This page concerns the onshore protection visa framework only.

Legal basis

Section 36(2)(a) — the refugee criterion: the applicant is a non-citizen in respect of whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol
Section 36(2)(aa) — the complementary protection criterion: the applicant is a non-citizen in respect of whom Australia has protection obligations because Australia has declared it would be contrary to its international obligations to remove the person
Section 5H — statutory definition of "refugee"
Section 5J — when a person has a "well-founded fear of persecution"
Section 5K — membership of a particular social group
Section 5L — social group defined by innate or unchangeable characteristic or sexual orientation
Section 36(2B) — humanitarian concern criterion (third limb for secondary applicants only)
Sections 198A–198AHA — the offshore processing framework

How it works

The refugee criterion — s 36(2)(a)

To satisfy the refugee criterion, an applicant must establish that they are a refugee as defined in the Convention and in s 5H of the Act. The key elements are:

The applicant is outside their country of nationality (or, if stateless, outside their country of former habitual residence)
They have a well-founded fear of persecution (s 5J)
The persecution is for reason of one or more of the five Convention grounds: race, religion, nationality, membership of a particular social group, or political opinion
They are unable or unwilling to avail themselves of the protection of their country

Australia's statutory definition of "well-founded fear" requires both a subjective fear and an objective basis for that fear. Section 5J(1) provides that a person has a well-founded fear of persecution if they fear persecution and there is a real chance they would be persecuted if removed.

Complementary protection — s 36(2)(aa)

Complementary protection covers persons who do not meet the refugee definition but face a real risk of significant harm if removed. "Significant harm" is defined in s 36(2A) and includes:

Arbitrary deprivation of life
Death penalty
Torture
Cruel or inhuman treatment or punishment
Degrading treatment or punishment

Complementary protection was introduced in 2011 to give statutory effect to Australia's obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT).

Exclusions from protection

Protection is not available where there are serious reasons to consider the applicant has committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime outside Australia, or acts contrary to the purposes and principles of the United Nations (Art 1F of the Convention).

The UMA bar

Persons who entered Australia as unauthorised maritime arrivals (UMAs) on or after 19 July 2013 are subject to the offshore processing regime and cannot apply for a protection visa in Australia. Their claims must be determined in offshore processing countries (Papua New Guinea or Nauru, under regional processing arrangements). This is one of the most significant restrictions in Australian refugee law.

Review by the ART

A refusal of a protection visa application may be reviewed by the ART (Migration and Refugee Division) unless the applicant is an excluded fast-track applicant, in which case review is before the Immigration Assessment Authority (IAA) — a faster and more limited review process.