Protection (Subclass 866) Visa Exclusion Grounds: Criminal Conduct and Serious Crimes
Australia has a long history of providing safety to those fleeing persecution. However, the right to a Protection (Subclass 866) Visa is not absolute. Under Australian migration law, there are specific exclusion grounds designed to ensure that individuals who have committed serious crimes or pose a threat to the community are not granted the privilege of a permanent residency (PR) visa.
What are Exclusion Grounds?
Even if the Department accepts that you are a genuine refugee or face significant harm in your home country, they can still refuse your visa application if you fall into an exclusion category. These rules are set out in Section 36 (2C) of the Migration Act 1958. Essentially, the law states that Australia’s protection obligations do not apply to people who have committed certain types of serious acts.
What are the Serious Crimes under Section 36(2C)?
The law focuses on three primary areas where an applicant will be excluded from protection:
For crimes against peace and humanity, including war crimes, crimes against humanity, or any act that violates international laws regarding armed conflict.
For serious non-political crimes, this applies to crimes committed outside of Australia before the applicant arrived. Serious crimes usually refer to violent crimes like armed robbery, serious assault, drug trafficking and others. If the Department believes the crime was purely criminal and not a result of political activism, exclusion applies.
For any acts that go against the purposes and principles of the United Nations (UN), such as involvement in terrorist activities.
Related: Understanding Section 501(6)(b): Can Your Friends or Groups You Are in Affect Your Visa?
How Does the Department Consider Danger to the Australian Community?
In addition to past crimes, the Department assesses whether you are a risk to Australia today. You may be excluded if:
You are considered a danger to Australia’s security, often involving an assessment by ASIO.
You have been convicted of a particularly serious crime and are considered a danger to the Australian community. In this context, a particularly serious crime is often one that resulted in a prison sentence of 12 months or more.
How Much Evidence Does the Department Need?
It is important to know that the Department does not need to prove you were convicted in a court of law to exclude you. The legal standard is serious reasons for consideration. This means if there is credible information, such as intelligence reports, news articles, or inconsistencies in your own story, that suggests you were involved in these activities, the Department can move to refuse your visa. You do not need to have been charged with a crime for these exclusion grounds to be triggered.
What Happens if You Are Excluded?
If you are found to be a genuine refugee but are excluded because of your background, the situation becomes very complex. You will not be granted a permanent SC 866 visa. Australia generally cannot send you back to a country where you will be killed or tortured. However, because you are excluded from a visa, you may be held in immigration detention for an extended period while the government seeks a third country to take you, or you may be granted a very restrictive temporary visa.
Related: Section 140: If My Visa Is Cancelled, Will My Family’s Visa Be Cancelled?
Why do you need an Immigration Lawyer for This Fight?
Exclusion cases are among the complicated matters in the migration system. The Department’s information is often based on adverse information from third parties that you may not even know about. Engage one of our Accredited Specialists in Immigration Law at Agape Henry Crux, who specialises in complex cases, for tailored professional advice and guidance. The team can assist in building evidence and preparing a formal legal submission to show you are not a danger to the Australian community.
Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.
Related:
Facing a Character Test Failure Under Section 501? Why You Need an Accredited Specialist
Visa Options After Character Cancellation – Is There Still Hope?
How Can Agape Henry Crux Help
Speak with one of our two Accredited Specialists in Immigration Law - Jason Ling or Angela De Silva at Agape Henry Crux. They specialise in highly complex visa matters. If you are unsure or in doubt, consider arranging a consultation with us to get tailored professional advice and guidance on your next best step. You can book a consultation with us by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English and Mandarin. If this isn’t your language, we can also help you arrange an interpreter.
Our founder and principal lawyer, Jason Ling, is recognised in the 2026 edition of The Best Lawyers in Australia™ and the 2027 edition of The Best Lawyers in Australia™. Agape Henry Crux is named as Best Immigration Law Firm 2025 - Sydney by APAC Insider Awards and in the 2027 edition of The Best Law Firms™ - Australia.
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.
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