Subclass 866 Complementary Protection for LGBTI Applicants

What complementary protection actually is

Australia can grant a subclass 866 protection visa on either of two grounds. The first is the refugee criteria. The second is complementary protection.

Complementary protection exists to fill a gap. The Refugee Convention only protects people who fear persecution for one of five reasons: race, religion, nationality, political opinion, or membership of a particular social group. A person can face torture, execution or a lifetime of violence for reasons that fit none of those five categories, and before complementary protection was written into Australian law in 2012 there was no visa pathway for them.

Section 36(2)(aa) of the Migration Act 1958 now provides that a protection visa may be granted where the Minister is satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to a receiving country, there is a real risk the applicant will suffer significant harm.

The word "complementary" matters. It is not a lesser form of protection and it is not a fallback for weak claims. If it is made out, the visa granted is exactly the same subclass 866 permanent visa, with the same permanent residence, the same work rights, the same Medicare access and the same pathway to citizenship. Nothing about the visa itself is different. Only the legal route to it is.

Why complementary protection matters for LGBTI applicants

On the face of it, LGBTI applicants should not need complementary protection. Sexual orientation and gender identity are well established as founding membership of a particular social group, and most claims are properly framed as refugee claims first. Our page on LGBTI protection visa claims sets out how that ground works.

In practice, complementary protection carries a large number of LGBTI cases, for four reasons.

The nexus can be rejected even when the danger is accepted. A decision maker may accept entirely that a man will be attacked by his brothers if he returns, and still find that the attack is a family matter rather than persecution for reason of membership of a particular social group. That finding kills the refugee claim. It does not touch complementary protection, because complementary protection has no nexus requirement at all. The question is simply whether the risk of significant harm is real.

Harm from criminals and opportunists. LGBTI people in many countries are targeted for extortion, blackmail, robbery and assault precisely because they cannot go to the police. Decision makers sometimes characterise this as ordinary criminality rather than persecution. Complementary protection does not care about the motive of the person inflicting the harm.

Where the claim is about a single catastrophic outcome. Where a country imposes capital or corporal punishment for same sex conduct, the claim can be run directly as a real risk of the death penalty or of torture, without needing to argue about social groups at all.

Where identity itself is disputed. This is the hardest one. Where a decision maker does not accept that an applicant is gay, the refugee claim collapses with it. Complementary protection sometimes survives, because the risk may arise from what has already happened, what is already known about the applicant in their community, or what has already been published about them, regardless of what the decision maker concludes about their actual orientation. A person outed publicly faces the consequences of being believed to be gay whether or not an Australian delegate accepts that they are.

That last point is the reason our immigration lawyers argue both grounds in almost every LGBTI matter. Running only the refugee claim leaves the applicant with nothing if the credibility finding goes against them.

The legal test in section 36(2)(aa)

The provision has several elements, and each one is a place where a claim is won or lost.

Substantial grounds for believing. This is the threshold for the belief itself, not the probability of the harm.

As a necessary and foreseeable consequence of removal. The harm must flow from being returned. Harm that might happen anywhere, or that is speculative and disconnected from return, does not qualify.

To a receiving country. Usually the country of nationality. For stateless applicants it is the country of former habitual residence. Where an applicant holds more than one nationality, each must be considered, and a safe second nationality can defeat a claim.

A real risk. This is the standard of proof, and it is the single most misunderstood element. A real risk is not a probability. The Federal Court has treated "real risk" in the complementary protection provisions as equivalent to the "real chance" test used in refugee law, which means a risk that is not remote or far fetched. A risk well below fifty per cent can satisfy it. Applicants routinely assume they must prove harm is likely. They do not.

Of significant harm. This is the closed list dealt with next.

What counts as significant harm

Section 36(2A) defines significant harm exhaustively. There are five categories and nothing outside them qualifies, no matter how serious.

Arbitrary deprivation of life. Being killed unlawfully or outside any proper legal process. This covers extrajudicial killing by state forces, and killing by non state actors such as militias, vigilante groups or family members where the state will not intervene.

The death penalty. A real risk of being sentenced to death, or of a death sentence being carried out. Unlike the other categories, this one does not require the applicant to show the sentence would be unlawful in the receiving country. A lawfully imposed death sentence still engages the provision.

Torture. Defined in section 5 of the Act as an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for purposes such as obtaining information or a confession, punishment, intimidation or coercion, or for a reason based on discrimination of any kind.

Cruel or inhuman treatment or punishment. Severe pain or suffering, whether physical or mental, that is intentionally inflicted, or pain or suffering that is cruel or inhuman in nature and is intentionally inflicted.

Degrading treatment or punishment. Treatment that causes, and is intended to cause, extreme humiliation which is unreasonable.

Two observations about this list matter enormously in practice.

First, it is genuinely closed. Losing your employment, your family, your housing and your community is devastating, and none of it is significant harm within the meaning of the Act unless it falls into one of these five categories. A claim built around social exclusion and its consequences, without more, will fail on complementary protection even where every fact is accepted.

Second, the definitions carry an exclusion for lawful sanctions that are not inconsistent with Australia's obligations under the International Covenant on Civil and Political Rights. That exclusion has limits, and imprisonment under a law criminalising same sex conduct is not saved simply by being lawful in the country concerned, because the underlying law is itself inconsistent with the Covenant. This is technical ground and it is argued, not assumed.

The intention requirement, and why it defeats good claims

This is the single most important limitation in complementary protection, and it is the one most often missed.

Torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment all require the harm to be intentionally inflicted. Degrading treatment goes further and requires that the extreme humiliation was intended.

The practical consequence is stark. Suffering that is real, severe and directly connected to being LGBTI will not qualify if nobody intended to inflict it.

Consider an applicant living with HIV whose country has almost no antiretroviral supply. The consequence of return may be death. But if the cause is a poor and under resourced health system rather than a deliberate decision to withhold treatment from that person or from people like them, the harm is not intentionally inflicted and the claim struggles. If the evidence shows treatment is deliberately denied to people known or suspected to be gay, or that clinics turn away patients on that basis, the picture changes completely, because the denial is then intentional.

The same distinction runs through many LGBTI claims. Destitution caused by general unemployment is not significant harm. Destitution caused by a deliberate and coordinated refusal to employ, house or serve a person because of who they are can be, where it reaches the required severity.

This is why complementary protection claims live or die on country evidence that goes to intention, not just to outcome. Establishing that something terrible will happen is only half of it. The evidence has to establish that someone means for it to happen.

Arbitrary deprivation of life and the death penalty are the two categories that do not carry this problem, which is part of why they do so much work in LGBTI cases.

The death penalty and criminal punishment

Where a country prescribes death for same sex conduct, the claim is comparatively direct. A real risk of a death sentence engages the provision on its own terms.

The argument that usually arises is not about the law but about enforcement. Decision makers frequently find that a capital provision exists on the statute books but is rarely or never applied, and conclude the risk is not real. That finding can be met, but it has to be met with evidence: documented prosecutions, sentencing records, reporting from credible human rights monitors, and evidence about whether the absence of recorded executions reflects genuine non enforcement or simply an absence of reporting.

Corporal punishment raises a separate and often stronger argument. Judicial flogging or caning imposed for same sex conduct is capable of amounting to torture or to cruel or inhuman treatment or punishment. Here the intention element is satisfied on the face of it, because a sentence of flogging is by definition the intentional infliction of severe pain as punishment. The lawful sanctions exclusion is the contested point, and the answer turns on whether the sanction is consistent with the Covenant, which corporal punishment generally is not.

Imprisonment itself can found a claim in two ways: through the conditions of detention, and through what happens to a person known to be gay inside a prison system where the authorities will not or cannot protect them.

Torture and treatment in detention

Detention is where a large number of LGBTI complementary protection claims are strongest, because the intention element is usually easy to establish and the state is directly responsible.

The claims that arise include beatings in police custody, sexual violence by officers or by other detainees with official acquiescence, forced anal examinations used as purported evidence of same sex conduct, extortion by police who threaten exposure, and detention without charge on public morality or vagrancy provisions rather than under any law naming sexuality.

Forced anal examinations deserve specific mention. They have been condemned by United Nations bodies as a form of torture or cruel, inhuman and degrading treatment. They are intentional, they are inflicted by state officials, and they are carried out for the purpose of obtaining evidence. Where country evidence establishes the practice, the elements of the definition are squarely met.

Where an applicant has already experienced any of this, the evidentiary task shifts. Past harm is not the test, because the question is always about future risk, but past harm is powerful evidence of what the state is prepared to do.

Violence from family and community

For many LGBTI applicants the danger is not the state at all. It is a father, a brother, an uncle, a husband, or a community that has decided what should happen to them.

Refugee claims on these facts often run into a nexus problem. Complementary protection does not, because the motive of the person inflicting the harm is irrelevant to the definition. A brother who intends to kill his sister for bringing shame on the family intends to deprive her of life. Whether he does so for a Convention reason changes nothing about the risk.

What does have to be established is the state protection exclusion, dealt with in Body C. Harm from private individuals only sustains a claim where the authorities are unable or unwilling to protect against it. In countries where same sex conduct is criminalised, this is often straightforward, because the applicant cannot report the threat without exposing themselves to prosecution. Where the conduct is not criminalised, it is harder, and the evidence must go to how police actually respond to reports of this kind rather than to what the law says they should do.

Conversion practices and forced medical treatment

So called conversion practices can found a complementary protection claim, and the framing matters.

Where an applicant faces being confined, drugged, subjected to electroconvulsive treatment, forced fasting, exorcism, beatings framed as treatment, or psychiatric detention intended to change their sexual orientation or gender identity, the elements are often clearly met. The infliction is intentional. The purpose is coercion or punishment or is based on discrimination. The severity is frequently sufficient for torture or for cruel or inhuman treatment.

So called corrective rape, where a person is raped with the stated purpose of changing their orientation, is capable of amounting to torture where the state is involved or acquiesces, and to arbitrary deprivation of life where it carries a real risk of death.

The evidence required is about the practice in the applicant's country and community: whether it occurs, whether it is carried out by clinics, religious institutions or families, whether the state regulates or tolerates it, and whether this applicant's family has the will and means to arrange it. A general claim that such practices exist somewhere in the country will not carry a claim on its own.

Forced marriage

Forced marriage is a common thread in claims by lesbian, bisexual and transgender applicants, and it is frequently underargued.

A forced marriage is not, by itself, in the closed list of significant harm. The claim has to be built on what the marriage means in practice: repeated sexual violence within it, physical violence for refusing it, confinement, or the risk of being killed for refusing or fleeing it. Each of those can be brought within torture, cruel or inhuman treatment, or arbitrary deprivation of life.

The intention element is generally satisfied, because the harm within a forced marriage is deliberate. The difficult elements are usually severity and state protection, and both have to be addressed with evidence rather than assertion.

Transgender and intersex applicants

Transgender and intersex applicants face risks that differ from those in most sexuality based claims, and complementary protection often fits them better.

Recurring categories include forced or coerced surgery, including surgery required by law as a precondition to changing legal gender documents; denial of identity documents matching a person's presentation, which can make it impossible to work, bank, travel or access healthcare without disclosure and therefore without risk; deliberate withholding of hormone treatment where its cessation causes severe physical and psychological harm; and violence in detention where a person is held in a facility matching their birth sex.

Forced sterilisation as a legal precondition to gender recognition has been characterised internationally as a serious violation, and it is intentional by definition, which places it within reach of the definitions in a way that many other harms are not.

The evidentiary work here is heavier than in a typical claim, because decision makers are less familiar with the material and because the country evidence is thinner. It usually needs medical evidence about the consequences of withdrawing treatment, and country evidence specific to transgender or intersex people rather than to LGBTI people as an undifferentiated group.

The three exclusions in section 36(2B)

Even where significant harm is established, section 36(2B) removes the risk from consideration in three situations. These exclusions decide a very large proportion of complementary protection cases.

Relocation. The risk is taken not to be real if the applicant could reasonably relocate within the receiving country to an area where there would be no real risk. The operative word is reasonably. In LGBTI claims, relocation findings are usually contestable, because the reasoning tends to assume that anonymity in a large city equals safety. It ignores whether the applicant could actually find work and housing without family support, whether the criminal law applies nationally rather than regionally, whether family or community networks extend to that city, and whether living safely there would in practice require concealment.

State protection. The risk is taken not to be real if the applicant could obtain protection from an authority of the country such that there would be no real risk. Where the applicant's conduct is criminalised, this is usually answered quickly, because seeking police protection means disclosing an offence. Where it is not criminalised, the evidence must address how police actually treat complaints from LGBTI people, not what the law provides on paper.

Risk faced by the population generally. The risk is taken not to be real if it is one faced by the population of the country generally and is not faced by the applicant personally. This is the exclusion most often used against claims arising from general violence, instability or poor conditions. In LGBTI claims it can usually be answered directly, because the whole point of the claim is that the applicant faces something the general population does not.

All three exclusions are matters the applicant should address in the written claim before the Department raises them. A claim that is silent on relocation invites a finding on relocation.

Can you be expected to be discreet under complementary protection?

This is the most important unsettled question in this area, and any honest guide has to say so.

In refugee claims, the position is protective and clear. Section 5J contains an express carve out: a fear is not taken to be avoidable by modifying behaviour where doing so would require a person to conceal an innate or immutable characteristic, or to act against a characteristic fundamental to their identity or conscience. That is why a refugee claim cannot lawfully be refused on the basis that the applicant would be safe if they were simply discreet.

The complementary protection provisions in section 36(2)(aa) and section 36(2A) contain no equivalent wording. That gap is real, and it has been the subject of argument about whether a decision maker assessing complementary protection can reason that an applicant would face no real risk because they would live discreetly.

Where this arises, the response is usually built two ways: that reasoning of that kind is inconsistent with the protective purpose of the provisions and with the international instruments they implement, and that in any event a requirement to live in permanent concealment is itself capable of causing severe mental suffering.

If you have received a decision which reasons that you would not be at risk because you would not tell anyone, that reasoning should be examined closely. It may be an error capable of being challenged, on review or on judicial review.

Evidence that works in a complementary protection claim

Complementary protection is an evidence driven ground far more than a narrative one. The claims that succeed tend to share the same features.

Country information that speaks to intention, not only outcome. For most categories the question is whether someone means to inflict the harm. Reporting that describes a state of affairs is less useful than reporting that describes conduct, policy, prosecutions, sentences and official statements.

Country information that is specific and current. Material about the region, city or community the applicant would return to carries more weight than national generalisations. Material that is several years old invites a finding that conditions have changed.

Medical evidence where the harm is medical. Where the claim involves withdrawal of hormone treatment, HIV treatment, or the consequences of past torture, a treating clinician's report about the specific consequences for this applicant is worth more than general material.

Psychological evidence where it explains the account. A report can explain why an account was disclosed late, why memory is fragmented, or why an applicant presented flatly at interview. It should explain, not advocate.

A statement that does the legal work. The statement should not merely describe what is feared. It should connect each feared harm to a category of significant harm, and it should deal with relocation, state protection and general risk before the Department does.

Corroboration that survives scrutiny. Threatening messages, police reports, medical records, court documents, and statements from people who know the applicant. Anything relied on should be capable of being explained if questioned.

The protection visa interview is where this material is tested. A complementary protection claim that is clearly structured in writing is much easier to defend at interview than one that is left for the delegate to piece together.

If your claim is refused

A refusal on complementary protection grounds is reviewable in the same way as any other protection refusal. You have 28 calendar days from the day you are taken to have received the decision to apply to the Administrative Review Tribunal, and the Tribunal has no power to extend that period. The clock runs from deemed receipt, not from the day you read the letter.

The Tribunal reconsiders the whole case afresh and accepts new evidence, which matters here more than in most areas, because complementary protection refusals frequently turn on gaps in country evidence that can be filled. Our page on protection visa refusals explains the process.

Certain kinds of reasoning in a complementary protection decision are worth examining closely: a finding that harm would not be intentional where the evidence showed deliberate conduct, a relocation finding made without considering whether relocation was reasonable for this applicant, a general risk finding applied to a harm faced specifically because of the applicant's identity, and reasoning that assumes discretion or concealment. Errors of this kind may be reviewable.

How our protection visa team runs these claims

My Migration Lawyers is a fully digital Australian immigration law firm acting for protection visa applicants across every state and territory by video and email.

In LGBTI matters our protection visa lawyers run the refugee ground and complementary protection together as a matter of course. They are not alternatives and they are not a first and second choice. They test different things, they fail for different reasons, and a claim argued on only one of them is a claim with a single point of failure.

The work involves identifying which categories of significant harm the facts actually engage, gathering country evidence that goes to intention and to severity, obtaining medical or psychological evidence where the harm requires it, addressing relocation and state protection in the written claim rather than waiting for them to be raised, and preparing the applicant to give evidence about difficult material without ever telling them what to say.

If you are considering a protection visa application, or you have been refused and the 28 days is running, you can book a consultation online with one of our immigration lawyers, or reach the same team through our contact page.