Protection Visa Significant Harm

Protection visa significant harm is the kind of harm that a person must face a real risk of suffering before they can be granted a Subclass 866 protection visa on complementary protection grounds. Protection visa significant harm is defined in section 36(2A) of the Migration Act 1958, and the definition is exhaustive. If the harm an applicant fears does not fit one of its five categories, the complementary protection criterion is not met, however serious the harm may be.

This article goes through each of the five categories of protection visa significant harm in turn. For each, it explains what the law requires, what the Department of Home Affairs' guidelines say, and what the applicant's evidence needs to show. It is written for people preparing a protection visa application whose fear may not fit the refugee definition, and for applicants whose claim was refused because the harm was found not to be significant harm. The complementary protection criterion as a whole is explained on the complementary protection page.

What is protection visa significant harm?

Protection visa significant harm is the harm referred to in the complementary protection criterion in section 36(2)(aa) of the Migration Act. That criterion is met where 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.

Section 36(2A) provides that a non-citizen will suffer significant harm if:

• the non-citizen will be arbitrarily deprived of their life;
• the death penalty will be carried out on the non-citizen;
• the non-citizen will be subjected to torture;
• the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
• the non-citizen will be subjected to degrading treatment or punishment.

The Department's Complementary Protection Guidelines state that this is an exhaustive list of relevant harm. The last three categories are defined in section 5(1). Arbitrary deprivation of life is not defined and takes its ordinary meaning.

The categories can overlap. A public beating, for example, may be both degrading and cruel or inhuman. The guidelines state that decision makers need not decide which category applies, provided the harm falls within at least one of them.

How is significant harm different from serious harm?

Protection visa significant harm is narrower than the serious harm required for persecution under the refugee criterion. Serious harm, under section 5J(5), is a non-exhaustive list that includes significant economic hardship, denial of basic services and denial of a livelihood, where they threaten a person's capacity to subsist. Significant harm does not include those forms of harm as such.

The guidelines state that the definitions of torture, cruel or inhuman treatment and degrading treatment are not intended to encompass violations of socio-economic rights, such as the right to earn a living, to adequate housing or to medical treatment. Those deprivations can amount to significant harm only in exceptional circumstances, where the resulting harm falls within one of the defined categories and is intentionally inflicted.

On the other hand, protection visa significant harm does not need to be for a Convention reason, and it does not need to involve systematic and discriminatory conduct. A person at real risk of being killed by a criminal group for a purely personal reason may face significant harm even though they are not a refugee.

How is the risk of protection visa significant harm assessed?

The risk of protection visa significant harm is assessed by asking whether there is a real risk, in the sense of a real chance, that the harm will occur. The Full Federal Court in Minister for Immigration and Citizenship v SZQRB held that the real risk test is the same as the real chance test used for refugee claims. A real chance is one that is not remote or far-fetched, even if it is well below fifty per cent.

The guidelines add four further points. The risk must be personal to the applicant. It is assessed objectively, so the applicant does not need to prove a subjective fear. It looks forward, so past harm is relevant but does not create a presumption. And there must be substantial grounds for the belief, meaning evidence, facts and country information that support it, including an assessment of the applicant's credibility.

The existence of a pattern of gross human rights violations in a country is relevant, but it is not enough by itself. The applicant must show why they personally face the harm. The broader requirements of the visa are set out on the Subclass 866 protection visa page.

Arbitrary deprivation of life as protection visa significant harm

Arbitrary deprivation of life is the first category of protection visa significant harm. It comes from the right to life in Article 6 of the International Covenant on Civil and Political Rights. The guidelines explain that "arbitrary" is broader than "unlawful". It includes elements of injustice, unpredictability, unreasonableness and lack of proportionality. A killing may be lawful under local law and still be arbitrary, for example where it is discriminatory or occurs without due process.

Arbitrary deprivation of life may be caused by:

• The State. Extra-judicial killings, including excessive use of force by police or security forces, are arbitrary. The necessary and proportionate use of force in self-defence or lawful arrest is not.
• Non-state actors. A killing by a criminal group, a family or another private actor may be arbitrary where the State does not adequately prevent and punish such killings.
• Generalised violence. In extreme conflict, indiscriminate killing of civilians may amount to arbitrary deprivation of life, but the risk must still be personal to the applicant.

The guidelines state that a high crime rate and poor policing are not enough. There must be extremely widespread violence coupled with a particular risk to the individual, or a specific threat to the applicant. They also state that a shortened life expectancy because of lack of medical treatment is generally not arbitrary deprivation of life, because the death would result from natural causes.

The death penalty as protection visa significant harm

The second category of protection visa significant harm is that the death penalty will be carried out on the applicant. The wording is precise. Section 36(2A)(b) is concerned with whether the death penalty will be carried out, not whether it could be imposed.

The Complementary Protection Guidelines give examples where a real risk would usually not be established:

• where the death penalty applies to an offence, but there is no real likelihood the applicant will be tried, for example because there is no warrant and the authorities have no interest in them;
• where the death penalty may be imposed, but country information shows that executions are rare or do not occur; or
• where the Australian Government has obtained a reliable assurance from the receiving country that the death penalty will not be imposed.

The guidelines add that decision makers must assess the true state of the law in light of current country information. They refer to a Federal Court decision in which a finding that there was no real risk was held unreasonable, because the country's leadership had publicly stated an intention to resume executions.

Evidence of a pending prosecution, such as a court summons, an arrest warrant, an Interpol notice or a judgment, is directly relevant. Where the death penalty would be imposed without due process, or for an offence that is not among the most serious crimes, the guidelines state that the harm may be better described as arbitrary deprivation of life. The type of crime is not relevant to whether there is significant harm, but it may be relevant to whether the applicant is excluded under section 36(2C).

Torture as protection visa significant harm

Torture is the most extreme form of protection visa significant harm short of death. Section 5(1) defines torture as an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

• for the purpose of obtaining information or a confession from the person or a third person;
• for the purpose of punishing the person for an act that they or a third person has committed or is suspected of committing;
• for the purpose of intimidating or coercing the person or a third person;
• for a purpose related to any of those purposes; or
• for any reason based on discrimination that is inconsistent with the International Covenant on Civil and Political Rights.

Torture does not include an act or omission arising only from, inherent in or incidental to lawful sanctions that are not inconsistent with that Covenant.

Three points in the definition are often misunderstood.

• Torture need not be committed by an official. Unlike the Convention against Torture, the definition in the Act does not require the involvement of a public official. A private person can commit torture, although the availability of protection from the authorities must then be considered.
• The threshold is severe pain or suffering. The guidelines describe the threshold as very high. It includes mental suffering, and a credible threat of physical torture may itself amount to psychological torture.
• There must be a purpose. Severe pain inflicted for a reason outside the listed purposes is not torture, but may be cruel or inhuman treatment or punishment.

The guidelines direct decision makers to consider torture first where it is claimed, because of the specific obligations that flow from a finding of torture.

Cruel or inhuman treatment or punishment as protection visa significant harm

Cruel or inhuman treatment or punishment is the fourth category of protection visa significant harm. Section 5(1) defines it as an act or omission by which either:

• severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
• pain or suffering, whether physical or mental, is intentionally inflicted on a person, so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature.

It does not include an act or omission that is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights, or one arising only from lawful sanctions that are consistent with the Covenant.

The two limbs are alternatives. The first covers severe suffering inflicted without one of the purposes required for torture. The second covers suffering that is less than severe but is cruel or inhuman in nature. The guidelines state that the assessment is partly subjective, and that the applicant's characteristics, such as gender, age and health, are relevant.

The guidelines give examples of treatment that has been found to breach Article 7, including forms of corporal punishment such as caning, whipping, flogging and stoning, and particularly harsh prison conditions, such as extreme overcrowding, denial of medical treatment, prolonged solitary confinement and violence by guards. Corporal punishment imposed under religious or morality laws, for example for apostasy, blasphemy or same-sex conduct, can therefore be protection visa significant harm even where it is lawful in the receiving country. Claims of that kind usually also engage the refugee criterion, as explained on the religious persecution and LGBTI protection visa pages.

Degrading treatment or punishment as protection visa significant harm

Degrading treatment or punishment is the fifth category of protection visa significant harm. Section 5(1) defines it as an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. It excludes acts that are not inconsistent with Article 7 of the Covenant and humiliation arising only from lawful sanctions consistent with the Covenant.

Each part of the definition does work.

• Extreme humiliation. The guidelines describe degrading treatment as treatment that humiliates or debases a person, shows a lack of respect for their dignity, or arouses fear, anguish or inferiority capable of breaking their resistance. It may be humiliation in the eyes of others or in the person's own eyes.
• Intended to cause. The humiliation must be intended, not merely a side effect.
• Unreasonable. Whether the humiliation is unreasonable is assessed by proportionality in the circumstances.

The guidelines note that a Federal Circuit Court decision suggested that differential treatment based on race may, in some circumstances, be degrading, and that the Minister has accepted that racially discriminatory treatment may in certain circumstances amount to degrading treatment. Where a racial element is present, the refugee criterion should be considered first.

Why intention matters for protection visa significant harm

Intention is an essential element of three of the five categories of protection visa significant harm. Torture and cruel or inhuman treatment require that pain or suffering be intentionally inflicted. Degrading treatment requires that extreme humiliation be intended.

The High Court considered this in SZTAL v Minister for Immigration and Border Protection. The applicants feared short periods of detention in poor prison conditions on return. The Court held that it was open to the Tribunal to find that the officials did not intend to inflict severe pain or suffering, where the poor conditions resulted from a lack of State resources that the State was trying to address. The guidelines draw from this that mere negligence, or knowledge that harm may result, is not enough. There must be an actual intention to produce the result, although in some cases intention may be inferred.

This matters most in claims about prison conditions, lack of medical care and general deprivation. A claim based on those facts must identify a deliberate act or omission, not only a bad situation.

Rape, family violence and forced marriage

The Complementary Protection Guidelines state that rape or the threat of rape, female genital mutilation, forced abortion and forced sterilisation are very likely to breach Article 7 and therefore to constitute protection visa significant harm. Forced marriage and family violence may also amount to torture or cruel, inhuman or degrading treatment, depending on the circumstances.

For family violence, the guidelines direct decision makers to consider not only whether laws against domestic violence exist, but whether they are effectively implemented, and whether the applicant could obtain protection without first suffering injuries so severe that the authorities would be willing to act. They also direct that these claims be considered first under the refugee criterion, because they often involve membership of a particular social group.

Published Tribunal decisions illustrate how these claims are assessed. In 2321242 (Refugee) \[2024\] AATA 4448, a review involving continuing domestic abuse despite court protection orders, with threats that persisted after the applicant left, the Tribunal remitted the matter to the Department for reconsideration. A remittal returns the application to the Department. It is not a grant, and each claim turns on its own facts.

What the evidence must show for each category

The evidence for protection visa significant harm must show which category applies, who would inflict the harm, why, and why the risk is real and personal. In practical terms:

• Arbitrary deprivation of life: who wants to kill the applicant, why, what they have done to others, and why the authorities would not prevent it.
• Death penalty: the charge or likely charge, the penalty in law, whether executions are carried out in practice, and any documents showing the applicant is wanted.
• Torture: who would inflict severe pain, for which listed purpose, and any history of torture of the applicant or people in the same position.
• Cruel or inhuman treatment: the treatment feared, its severity, and why it would be intentionally inflicted.
• Degrading treatment: the humiliation feared, why it would be extreme and unreasonable, and why it would be intended.

Medical reports documenting past torture or injury, country information on prison conditions and executions, and court documents are often decisive. Where an applicant has been tortured, the effects of trauma on memory and consistency should also be explained by a qualified practitioner, because inconsistencies in the account of protection visa significant harm are otherwise likely to be treated as a credibility problem rather than as a symptom of what the applicant has been through. The guides to evidence in a protection visa application and the protection visa documents checklist explain how to gather it.

When significant harm is found but the claim still fails

A finding that the feared harm is protection visa significant harm is only the first step. The claim can still fail because:

• the risk is not real, for example because the threat is old and the persecutor has lost interest;
• relocation is reasonable under section 36(2B)(a);
• protection from an authority would remove the real risk under section 36(2B)(b);
• the risk is general, faced by the population as a whole rather than the applicant personally, under section 36(2B)(c);
• behaviour modification would avoid the harm, following the High Court's decision in DQU16; or
• the applicant is ineligible under section 36(2C).

The applicant's statement should address each of these points. The guide to the protection visa statement of claims explains how to present the account, and the protection visa interview page explains how it will be tested.

If the Department refuses the application, the Administrative Review Tribunal can review both the refugee and complementary protection criteria. The time limit is short and strictly applied. The protection visa refusals page explains what to do.

How My Migration Lawyers presents protection visa significant harm

My Migration Lawyers assesses protection visa significant harm in every Subclass 866 matter it takes on where the refugee criterion may not be met. The firm deals with complex protection cases, acts in many protection visa matters of this exact type, including claims involving threats to life, torture, family violence and the death penalty, and is capable of handling them at the Department and at the Administrative Review Tribunal.

The firm's work includes identifying the correct category of significant harm, addressing intention, obtaining medical and country evidence, and dealing with relocation, protection and personal risk. The statement is the applicant's own evidence. The applicant reviews and corrects it, and the applicant decides which claims are advanced. For LGBTI applicants, see also the guide to complementary protection for LGBTI applicants.

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 protection visa significant harm on return, or your application was refused on complementary protection grounds, have your claim assessed. Book a consultation with My Migration Lawyers online, or call 1300 040 300.