Can I Apply for a Protection Visa if I Was Involved in a Protest?
If you have been involved in a political protest against your government and fear the possibility of negative reprisals, you may be eligible to apply for a Protection (subclass 866) visa. The purpose of a subclass 866 visa is to allow individuals escaping persecution in their home country to stay in Australia permanently.
What are the Requirements for a Protection Visa (SC 866)?
To apply for a protection visa (Subclass 866), you must have lawfully arrived in Australia previously on a valid visa. You will also be unable to make further applications for a protection visa if you have had a protection visa refused or cancelled in the past unless the Minister declares otherwise.
In order to be eligible to apply for a protection visa, you will need to establish that you are either a refugee who is owed protection obligations or that there is a real risk that you will suffer significant harm if you are removed from Australia.
Effect of Participation in a Protest
Although you will not be required to meet the health requirements under Public Interest Criteria 4005 or 4007 as part of a protection visa application, you will still need to meet Public Interest Criteria 4001, which involves the character test. If you have been involved in a violent or harmful protest, you may not pass the character test on the basis of either not being of good character or posing a risk of inciting discord or unrest within the community.
However, if you were involved in a peaceful and non-violent protest, the character test likely should not be an issue for your visa application. To successfully meet the requirements for a protection visa, you will need to have a well-founded fear of persecution that is not insubstantial or speculative. However, the persecution does not necessarily have to be likely, as was confirmed by the High Court.
In assessing whether you may be at risk of persecution, the relevant country information report from the Department of Foreign Affairs and Trade may be used to provide the factual background for your home country. Although country information will be considered, the focus is still on any evidence that you can provide yourself about possible dangers you face. As an example, in the case of 1821954 (Refugee) [2024] AATA 4207, the applicant was able to establish that there was a risk of harm or persecution if they were to return to Hong Kong based on numerous threats they had received in the past.
Other Visa Pathways for Hong Kong Nationals
Following the passage of the National Security Law in Hong Kong and the political turmoil that has resulted in mass protests, the Australian government has made changes to allow Hong Kong nationals to more easily and quickly secure visas. If you are a Hong Kong national, you will be able to stay in Australia for longer periods of time on certain temporary visas and receive priority application processing.
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How Can Agape Henry Crux Help You?
Speak with one of our Accredited Specialist Immigration Lawyers (s), our team of immigration lawyers and migration agents at Agape Henry Crux. If you are concerned about your migration journey, the team specialises in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
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This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.
