Protection Visa Complementary Protection

Protection visa complementary protection is the legal route by which a person in Australia can be granted a Subclass 866 protection visa even though they are not a refugee. Protection visa complementary protection applies where there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia, the person faces a real risk of significant harm. It is set out in section 36(2)(aa) of the Migration Act 1958.

This article explains how protection visa complementary protection works as a whole: when it is considered, what the test requires, how it differs from the refugee criterion, which claims it covers and which it does not, who is excluded, and how a claim should be prepared. It is written for applicants whose fear of harm may not fit neatly within the refugee definition, and for those whose protection visa has been refused on the refugee criterion. The broader requirements for the visa are set out on the Subclass 866 protection visa page, and the firm's service is described on the complementary protection page.

What is protection visa complementary protection?

Protection visa complementary protection is the part of Australian protection law that gives effect to Australia's non-refoulement obligations under human rights treaties other than the Refugee Convention. Non-refoulement means an obligation not to return a person to a place where they face a specific type of serious harm.

The Department of Home Affairs' Complementary Protection Guidelines identify three treaties as the source of those obligations:

• the International Covenant on Civil and Political Rights;
• the Second Optional Protocol to that Covenant, aiming at the abolition of the death penalty; and
• the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Before complementary protection was written into the Migration Act, claims of this kind were usually considered only through the Minister's personal intervention power, after a person had already been refused. The Migration Amendment (Complementary Protection) Act 2011 changed that. Its key provisions commenced on 24 March 2012. Since then, protection visa complementary protection claims have been assessed in the same protection visa application as refugee claims, with full review rights.

Section 36(2) now contains four alternative criteria for a protection visa:

• the refugee criterion in section 36(2)(a);
• the family member of a refugee criterion in section 36(2)(b);
• the complementary protection criterion in section 36(2)(aa); and
• the family member of a complementary protection holder criterion in section 36(2)(c).

A person who satisfies section 36(2)(aa), and the other criteria for the visa, is granted the same Subclass 866 visa as a refugee.

When does protection visa complementary protection apply?

Protection visa complementary protection is considered only after the decision maker finds that the applicant does not meet the refugee criterion. Section 36(2)(aa) applies to a non-citizen in Australia other than one found to engage protection obligations as a refugee. The Complementary Protection Guidelines state that an applicant will be assessed against the complementary protection criterion only if they have been found not to engage protection obligations under section 36(2)(a).

This has three practical consequences.

First, there is no separate application. The same Subclass 866 application is assessed against both criteria, one after the other. The guide to Form 866 explains how claims are recorded in the application.

Second, the facts that support the protection visa complementary protection claim must be in the application. The Department assesses the claims the applicant makes and those that clearly arise from the material. An applicant who fears harm for a reason that is not a Convention reason should still describe that harm in full. The protection visa statement of claims guide explains how to set out the account.

Third, a refusal decision must deal with both criteria. If the Department finds that the applicant is not a refugee but does not properly consider complementary protection, that is a significant error that can be raised on review.

What is the protection visa complementary protection test?

The protection visa complementary protection test asks whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm. Each part of that sentence has a settled meaning.

Receiving country

The receiving country is the country of which the applicant is a national, determined by that country's law. If the applicant has no nationality, it is the country of their former habitual residence. This is defined in section 5(1) of the Migration Act.

Significant harm

Significant harm is exhaustively defined in section 36(2A). A person suffers significant harm if they will be arbitrarily deprived of their life, the death penalty will be carried out on them, or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. The last three are defined in section 5(1). The harm must fall within one of these five categories. Harm outside them, however serious, does not meet the criterion.

Real risk

The Full Federal Court held in Minister for Immigration and Citizenship v SZQRB that the "real risk" test is the same as the "real chance" test used for the refugee criterion. A real chance is one that is not remote or far-fetched. The High Court in Chan Yee Kin described it as a substantial chance, which may be well below a fifty per cent likelihood. The risk must be personal to the applicant, and it is assessed objectively and looking forward. Unlike the refugee criterion, there is no need to show a subjective fear.

Necessary and foreseeable consequence

The harm must be a necessary and foreseeable consequence of removal. There must be a real, not speculative, link between removal and the risk. The guidelines explain that past harm is relevant but does not create a presumption of future harm, and that a significant change in the home country since the applicant left may mean the risk is no longer real.

How is complementary protection different from refugee status?

Protection visa complementary protection is not simply a weaker version of the refugee criterion. It is easier to meet in some respects and harder in others. Applicants and their advisers need to understand both.

Where complementary protection is easier

• No Convention reason is needed. The refugee criterion requires that the persecution be for race, religion, nationality, membership of a particular social group or political opinion. Complementary protection has no such requirement. A person threatened by a criminal gang, a creditor or a family in a private dispute may qualify, even though the reason for the harm is personal.
• No systematic and discriminatory conduct requirement. Section 5J(4) requires persecution to involve systematic and discriminatory conduct. Section 36(2)(aa) does not.
• Conduct in Australia is not disregarded. Section 5J(6) requires conduct in Australia engaged in for the sole purpose of strengthening a refugee claim to be disregarded. The guidelines state that section 5J(6) does not apply to complementary protection, so any real risk arising from that conduct must still be assessed.
• No subjective fear is required. The risk is assessed objectively.

Where complementary protection is harder

• Relocation is assessed on reasonableness. Under section 36(2B)(a), there is no real risk if it would be reasonable, in the sense of practicable, for the applicant to relocate to a safe area. For the refugee criterion, section 5J(1)(c) asks only whether the real chance of persecution relates to all areas of the country. The two tests are different, and findings on one cannot simply be adopted for the other.
• Behaviour modification can be expected. In DQU16 v Minister for Home Affairs, the High Court held that the principle in Appellant S395/2002, that a refugee cannot be required to hide a protected characteristic to avoid persecution, does not apply to complementary protection. If the applicant can avoid the harm by changing their behaviour on return, the harm may not be a necessary and foreseeable consequence of removal. This is one of the most significant limits on protection visa complementary protection and is often overlooked.
• Personal risk is required. Under section 36(2B)(c), there is no real risk if the risk is one faced by the population of the country generally and not by the applicant personally.
• Protection by an authority is assessed differently. Under section 36(2B)(b), there is no real risk if the applicant could obtain protection from an authority of the country such that there would not be a real risk of significant harm. The guidelines emphasise that this is a different test from effective protection under sections 5J(2) and 5LA for refugees.

This comparison explains why the facts of a protection visa complementary protection claim must be developed carefully for both criteria. An argument that is strong under one may be weak under the other.

What claims fall within complementary protection?

Protection visa complementary protection most often matters where the applicant faces serious harm, but the reason for the harm is not one of the five Convention reasons. Common examples of the kinds of claims that may be assessed under section 36(2)(aa) include:

• threats to life from criminal groups, money lenders or private individuals, where the authorities cannot or will not protect the applicant;
• blood feuds and revenge killings between families;
• a real risk of the death penalty being carried out;
• torture or severe ill-treatment in detention;
• serious violence within the family, where the harm is not found to be for a Convention reason; and
• forced marriage, where the circumstances would amount to torture or cruel, inhuman or degrading treatment.

Many of these claims may also engage the refugee criterion. Family violence claims, for example, are often assessed first as claims of persecution for membership of a particular social group. The Department's guidelines direct officers to consider the refugee criterion first where a Convention reason may be present. For LGBTI applicants, whose claims are usually assessed first as claims based on membership of a particular social group under the LGBTI protection visa framework, the separate guide to complementary protection for LGBTI applicants explains how these claims are assessed.

What does protection visa complementary protection not cover?

Protection visa complementary protection does not cover every hardship a person may face on return. The Complementary Protection Guidelines identify several categories that will generally not meet the criterion.

• Poverty and lack of services. Deprivation of economic or social rights, such as lack of housing, education or work, is not significant harm unless, in exceptional circumstances, it results from a deliberate act that falls within one of the five categories.
• Lack of medical treatment. The absence of medical treatment available in Australia will generally not amount to significant harm. Australia's position is that such claims succeed only in very exceptional circumstances.
• Separation from family in Australia. Harm caused by the act of removal itself, such as separation from children who remain in Australia, is not significant harm, because it does not arise in the receiving country.
• General crime. A high crime rate and poor policing are not enough. There must be a particular risk to the applicant.
• Lawful sanctions. Acts arising only from lawful sanctions that are consistent with the International Covenant on Civil and Political Rights are excluded from the definitions. Harsh sanctions, such as flogging or amputation, are not protected by this exception.

These limits are important because many people believe complementary protection is a general humanitarian safety net. It is not. Humanitarian considerations outside the five categories are generally matters for the Minister's personal powers, not for the protection visa.

Who is excluded from protection visa complementary protection?

A person who meets the protection visa complementary protection test can still be ineligible for the visa. Section 36(2C) provides that a person is taken not to satisfy section 36(2)(aa) if there are serious reasons for considering that they committed a crime against peace, a war crime or a crime against humanity, committed a serious non-political crime before entering Australia, or have been guilty of acts contrary to the purposes and principles of the United Nations. A person is also ineligible if the Minister considers, on reasonable grounds, that they are a danger to Australia's security, or, having been convicted by a final judgment of a particularly serious crime, a danger to the Australian community. Section 36(1B) separately requires that the applicant not be assessed by ASIO to be a risk to security.

Because Australia's obligations under these treaties are absolute, a person who is ineligible for the visa may still be found to engage non-refoulement obligations. Section 36A requires a decision maker to consider and record whether a protection finding is made before considering ineligibility. That finding affects whether the person can be removed to the receiving country, but it does not give them a visa.

Can family members be included?

Yes. Section 36(2)(c) allows a member of the same family unit as a person who satisfies the complementary protection criterion to be granted a protection visa, provided they meet the other criteria. The Department's guidelines note that, under section 91WB, the family member must have applied before the person on whose claim they rely was granted a protection visa. In practice, family members should be included in the same application from the start.

How to prepare a protection visa complementary protection claim

A protection visa complementary protection claim is prepared in the same way as any protection claim, but with particular attention to the elements of section 36(2)(aa) and section 36(2B).

The applicant's own account must identify:

• who the applicant fears, and why that person or group would want to harm them;
• what harm is feared, in enough detail to show which of the five categories of significant harm it falls within;
• what has already happened, if anything, to the applicant or to people in a similar position;
• why the authorities cannot protect the applicant, including any attempts to seek help and what happened;
• why relocation is not reasonable, having regard to the applicant's age, gender, health, family, language, work skills and resources; and
• why the risk is personal, rather than a risk shared by everyone in the country.

Supporting evidence should address the same points. Country information is essential, because it shows whether the authorities protect people in the applicant's position and whether a safe area exists. Under ministerial directions made under section 499, decision makers must take into account relevant country information assessments prepared by the Department of Foreign Affairs and Trade. The guide to evidence in a protection visa application explains the types of supporting evidence that carry weight.

Credibility also matters. The guidelines state that the assessment of whether there are substantial grounds for believing there is a real risk includes the assessment of the applicant's credibility. The applicant's account will be tested at the interview. The protection visa interview page explains how to prepare.

Common mistakes in protection visa complementary protection claims

The most common mistakes in protection visa complementary protection claims are made at the drafting stage, long before a decision is made. They include:

• Leaving out non-Convention harm. Applicants sometimes describe only the part of their story that seems to fit the refugee definition. A fear of a creditor, a gang or a family member is omitted because it seems "personal". That omission can remove the protection visa complementary protection claim altogether.
• Describing harm too generally. A statement that the applicant "will be killed" or "will be harmed", without saying by whom, why and how, does not allow the decision maker to identify a category of significant harm or assess the risk.
• Ignoring relocation. Many refusals turn on section 36(2B)(a). An account that does not explain why the applicant could not live safely in another city leaves that finding open.
• Ignoring state protection. An applicant who never sought help from the police, or who did and was turned away, should explain what happened and why.
• Relying on general country conditions. Evidence that a country is violent or corrupt is not enough without a link to the applicant personally.
• Overlooking behaviour modification. Where the harm is linked to something the applicant does, the account should explain why stopping it would not remove the risk, or why the conduct is a protected characteristic that engages the refugee criterion instead.

Each of these mistakes can be corrected before lodgement. Correcting them after a refusal is possible at the Tribunal, but new claims raised late may be examined with more scepticism.

Protection visa complementary protection at the Tribunal

If the Department refuses the protection visa, the Administrative Review Tribunal reviews the decision on its merits and considers both the refugee criterion and the complementary protection criterion afresh. The time limit to apply for review is short and strictly applied.

A review is often the stage at which a protection visa complementary protection claim is properly developed for the first time. The Department's decision record will show whether complementary protection was addressed, which categories of significant harm were considered, and how relocation and state protection were assessed. The review submissions should answer those findings directly. The protection visa refusals page and the guide to appealing a protection visa refusal to the ART explain the review process.

How My Migration Lawyers handles protection visa complementary protection claims

My Migration Lawyers assesses protection visa complementary protection in every Subclass 866 matter it takes on, alongside the refugee criterion. The firm deals with complex protection cases, acts in many protection visa matters of this exact type, including claims based on threats from criminal groups, creditors, families and other private actors, and is capable of handling them at the Department and at the Administrative Review Tribunal.

The firm's work on these claims includes:

• Identifying the correct criterion. Each claim is analysed to determine whether it engages a Convention reason, complementary protection, or both.
• Matching the harm to section 36(2A). The feared harm is described so that the category of significant harm is clear.
• Addressing section 36(2B). Relocation, state protection and personal risk are addressed directly, with country information.
• Presenting the applicant's own account. The statement is the applicant's own evidence. The applicant reviews and corrects it, and the applicant decides which claims are advanced.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang and acts for protection visa applicants across Australia, with consultations by video. More about the firm's protection work is on the protection visa lawyers page.

If you fear serious harm on return but are unsure whether your claim fits the refugee definition, or your protection visa has been refused, have your protection visa complementary protection position assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.