Protection Visa Subclass 866 Requirements

The Protection Visa Subclass 866 requirements include a second pathway that many applicants never hear about: complementary protection. Under section 36(2)(aa) of the Migration Act 1958, a person who does not meet the refugee definition can still be granted a Subclass 866 visa if there is a real risk they will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia. This article explains the Protection Visa Subclass 866 requirements for complementary protection: what significant harm means, how the risk is assessed, and where the test differs from the refugee test.

Complementary protection matters because many genuine claims do not fit the refugee definition. A person may face serious harm from a criminal gang, a family, or a community for reasons that are not race, religion, nationality, membership of a particular social group or political opinion. Those claims can fail the refugee test and still meet the Protection Visa Subclass 866 requirements through complementary protection.

What are the Protection Visa Subclass 866 requirements for complementary protection?

The Protection Visa Subclass 866 requirements for complementary protection under section 36(2)(aa) are these:

• The applicant is in Australia and is not a refugee. Complementary protection is assessed only after the Department finds the applicant does not meet the refugee criterion in section 36(2)(a).
• Significant harm. The harm feared must be one of the five kinds in section 36(2A).
• A real risk. There must be substantial grounds for believing that there is a real risk of that harm.
• A necessary and foreseeable consequence of removal. The risk must flow from the applicant being returned to their receiving country.
• No exception under section 36(2B). The risk must not be avoidable by reasonable relocation, must not be removed by protection from an authority, and must be personal to the applicant, not merely faced by the population generally.
• No ineligibility under section 36(2C). The applicant must not be excluded because of serious crimes or danger to Australia's security or community.

The other Protection Visa Subclass 866 requirements, including validity, health, character and the requirement to be in Australia at grant, apply equally to complementary protection claims. They are covered in the complete guide to the Subclass 866 protection visa. The firm's approach to these claims is described on the complementary protection page.

Why complementary protection is part of the Protection Visa Subclass 866 requirements

Complementary protection is part of the Protection Visa Subclass 866 requirements because Australia has obligations not to return people to serious harm under treaties other than the Refugee Convention. The Department's Complementary Protection Guidelines identify them as the International Covenant on Civil and Political Rights, its Second Optional Protocol on the abolition of the death penalty, and the Convention Against Torture.

Before 2012, those obligations were generally met through the Minister's personal intervention power, which could only be used after a refusal by the Department and by the Tribunal. The complementary protection provisions commenced on 24 March 2012. Since then, these claims have been assessed in the same Subclass 866 application as refugee claims.

In practice, this means an applicant does not need to choose. The Department must first assess the refugee criterion. If it is not met, section 36A requires the Department to assess complementary protection. An applicant whose facts support both grounds should present the evidence for both. The Subclass 866 eligibility guide summarises both grounds, and the Subclass 866 complete guide explains how they fit into the application process. Treating complementary protection as an afterthought is one of the most common ways the Protection Visa Subclass 866 requirements are misapplied in self-prepared applications.

The five kinds of significant harm

Significant harm is one of the core Protection Visa Subclass 866 requirements for complementary protection. Section 36(2A) sets out five kinds, and the Department's guidelines describe the list as exhaustive.

Arbitrary deprivation of life

This is killing that is unlawful, unjust, capricious, disproportionate or without due process. The guidelines explain that a killing can be arbitrary even if it is lawful in the country concerned, and that it can arise where the state fails to protect a person against killings by others. A high crime rate alone is not enough. There must be a particular risk to the individual.

The death penalty

Significant harm arises if the death penalty will be carried out on the applicant. The focus is on whether it will be carried out, not merely whether it could be imposed. Where executions do not occur in practice, the risk may not be real.

Torture

Section 5(1) defines torture as an act or omission by which severe pain or suffering, physical or mental, is intentionally inflicted for a purpose such as obtaining information or a confession, punishment, intimidation or coercion, or for a reason based on discrimination inconsistent with the ICCPR. Unlike the Convention Against Torture, the Act's definition does not require the torturer to be a public official.

Cruel or inhuman treatment or punishment

This covers intentionally inflicted severe pain or suffering, or pain or suffering that can reasonably be regarded as cruel or inhuman in nature, provided it is inconsistent with Article 7 of the ICCPR and does not arise only from lawful sanctions consistent with the ICCPR.

Degrading treatment or punishment

This covers an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable.

What significant harm does not include

The Protection Visa Subclass 866 requirements for significant harm are narrower than many applicants expect, and knowing the limits helps an applicant focus the evidence on what the law actually protects against. The Department's guidelines identify several kinds of hardship that will usually not qualify.

• Poverty and lack of services. A state's failure to provide adequate housing, education or food, arising from general economic conditions, is very unlikely to be significant harm. Deliberate action that denies a person shelter, food or the basic necessities of life may be different, but only in exceptional cases.
• Inadequate medical treatment. The absence of the same medical care available in Australia will generally not amount to significant harm. The guidelines state Australia's position that these claims succeed only in very exceptional circumstances.
• Separation from family in Australia. Harm arising from being separated from family who remain in Australia is a consequence of removal from Australia, not of treatment in the receiving country. The guidelines state it is not significant harm.
• Harm that is not intended. Torture and cruel or inhuman treatment must be intentionally inflicted, and degrading treatment must be intended to cause extreme humiliation. The High Court has held that poor prison conditions resulting from a lack of state resources may not meet this requirement.

On the other hand, the guidelines state that rape or the threat of rape, female genital mutilation, forced abortion and forced sterilisation are very likely to constitute significant harm. Forced marriage and domestic violence can also amount to significant harm in some circumstances, depending on the risk and the protection available. Corporal punishment such as flogging, stoning or amputation will generally be cruel or inhuman treatment, even where it is lawful in the country concerned.

Examples of claims that may meet the Protection Visa Subclass 866 requirements

Claims that may meet the Protection Visa Subclass 866 requirements through complementary protection take many forms. The Department's guidelines discuss several examples drawn from Australian and international decisions. They are described here in general terms only.

• Harm from a family or community. A person at risk of being killed by relatives or others over an allegation of adultery or dishonour, where the authorities in practice tolerate such killings and relocation is not reasonable.
• Female genital mutilation. A girl at real risk of female genital mutilation from her family, where the practice is widespread despite being prohibited by law, and her circumstances expose her personally.
• Forced marriage and domestic violence. A woman at risk of being forced back into a marriage, with laws that require submission to a husband and high levels of domestic violence.
• Indiscriminate violence that reaches the individual. A civilian from an area of intense armed conflict, where the violence is so widespread that the risk is personal to the applicant and relocation is not reasonable.
• Harsh punishment. A person facing punishment such as flogging, stoning or amputation, which will generally be cruel or inhuman even if lawful locally.

None of these examples means a particular claim will succeed. Each one depends on the applicant's own facts and evidence. The examples show the range of situations in which the Protection Visa Subclass 866 requirements for complementary protection can be met even though the refugee test is not. Claims based on sexual orientation or gender identity usually fall under the refugee test first, as explained on the LGBTI protection visa page, with complementary protection as the alternative.

How the real risk is assessed

The risk threshold is one of the most important Protection Visa Subclass 866 requirements, and it is often misunderstood. Getting it right changes how the Protection Visa Subclass 866 requirements are argued, because it tells the applicant how much the evidence must show. Section 36(2)(aa) requires substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk of significant harm.

The Department's guidelines, relying on the Full Federal Court in SZQRB, state that the real risk test is the same as the real chance test used for refugees. A real chance is a substantial chance, not a remote or far-fetched possibility, and it does not require the harm to be more likely than not.

Several features of the assessment favour applicants who have strong evidence:

• It is objective. Unlike the refugee test, there is no need to show that the applicant subjectively fears the harm. The question is whether the risk is real on the evidence.
• It looks forward. Past harm is relevant but not required. An applicant who has not yet been harmed can still face a real risk.
• It is personal. The applicant must be personally at risk. They do not have to be singled out, but general violence alone is not enough.
• Cumulative harm counts. A series of acts that would not individually reach the threshold may together amount to significant harm.

The substantial grounds requirement is about evidence. The guidelines list factors such as past harm, evidence that the applicant is targeted, such as an arrest warrant, the laws and practices of the country, and how the country treats people in similar situations. Credibility is also central. The guide to evidence in a protection visa application explains how that material is presented.

The three exceptions in section 36(2B)

Section 36(2B) contains three circumstances in which there is taken not to be a real risk. The guidelines explain that they are not exclusions applied at the end. They are part of deciding whether the risk is real.

Reasonable relocation: section 36(2B)(a)

There is no real risk if it would be reasonable for the applicant to relocate to an area of their country where there would not be a real risk of significant harm. The High Court has held that reasonable means reasonable in the sense of practicable. The guidelines list relevant factors, including age and gender, family and community support, language, disability or trauma, financial and practical barriers, the route to the new area, and the quality of protection available there. Mere reluctance to move is not enough, but the decision maker must identify a specific place and assess the applicant's real prospects there.

Protection from an authority: section 36(2B)(b)

There is no real risk if the applicant could obtain protection from an authority of the country such that the risk would be less than real. The guidelines state that the existence of laws and police is not enough. The question is whether this applicant could actually obtain protection that reduces their risk below a real one.

Risk faced by the population generally: section 36(2B)(c)

There is no real risk if the risk is faced by the population generally and not by the applicant personally. The guidelines explain that the applicant does not need to show they would be singled out, but they must show a personal risk, usually because of a characteristic that distinguishes them from the general population. The complementary protection guide for LGBTI applicants shows how these exceptions are applied in one category of claim.

Where complementary protection differs from the refugee test

Complementary protection shares the same visa, but several of the Protection Visa Subclass 866 requirements work differently from the refugee test. The Department's guidelines are explicit that findings under the refugee test cannot simply be adopted for complementary protection.

• No Convention reason is needed. The harm can be for any reason, or for no identifiable reason.
• No subjective fear is needed. The assessment is objective.
• Relocation is tested for reasonableness. Under the refugee test in section 5J(1)(c), the question is whether the risk exists in all areas of the country, and reasonableness is not considered. Under section 36(2B)(a), reasonableness in the sense of practicable is the test.
• The protection test is different. Under the refugee test, the question is whether effective protection measures are available under section 5LA. Under section 36(2B)(b), the question is whether protection would reduce the applicant's own risk to less than a real one.
• The sur place rule does not apply. Section 5J(6), which requires certain conduct in Australia to be disregarded for the refugee test, does not apply to complementary protection. The guidelines state that conduct disregarded for the refugee test must still be considered for complementary protection.
• Behaviour modification is treated differently. The High Court in DQU16 held that the refugee principle that a person cannot be expected to hide a protected characteristic does not apply to complementary protection. If the applicant would voluntarily modify their behaviour on return and avoid the risk, the harm may not be a necessary and foreseeable consequence of removal.

That last point is often misunderstood. It means complementary protection claims based on conduct the applicant would stop on return need careful analysis, and a claim based on a protected characteristic should usually be argued under the refugee test first.

Ineligibility under section 36(2C)

The Protection Visa Subclass 866 requirements also include ineligibility provisions for complementary protection. Under section 36(2C)(a), an applicant is taken not to meet section 36(2)(aa) if there are serious reasons for considering they have committed a crime against peace, a war crime, a crime against humanity, a serious non-political crime before entering Australia, or acts contrary to the purposes and principles of the United Nations. Under section 36(2C)(b), the same applies where there are reasonable grounds for considering them a danger to Australia's security, or, having been convicted by final judgment of a particularly serious crime, a danger to the community.

The guidelines note an important consequence. Australia's non-refoulement obligations under the ICCPR and the Convention Against Torture have no exceptions. A person found ineligible for a visa may still be found to engage those obligations. Section 36A requires a protection finding to be recorded, and that finding affects whether the person can be removed.

Common mistakes with the Protection Visa Subclass 866 requirements for complementary protection

Common mistakes with the Protection Visa Subclass 866 requirements for complementary protection are made by applicants and, sometimes, by decision makers. They are worth knowing because each one can decide a case.

• Not making the claim at all. An applicant who frames the whole claim around one Convention reason may leave the complementary protection facts unexplained.
• Relying on general country conditions. Evidence that a country is violent does not show personal risk. The applicant must explain what distinguishes their situation.
• Ignoring intention. Torture, cruel or inhuman treatment and degrading treatment all require intention. Evidence should show that the harm would be deliberate.
• Assuming refugee findings carry over. The guidelines state that findings on relocation and protection under the refugee test cannot simply be adopted for complementary protection. Each must be considered afresh.
• Overlooking section 5J(6). Conduct in Australia that is disregarded for the refugee test must still be considered for complementary protection.

If a refusal appears to contain one of these errors, it may be a ground for review. The guide to appealing a protection visa refusal to the ART explains how the Tribunal reconsiders the Protection Visa Subclass 866 requirements on both grounds.

Evidence that meets the Protection Visa Subclass 866 requirements for complementary protection

The evidence that meets the Protection Visa Subclass 866 requirements for complementary protection is specific to the applicant. It should address each element: the harm feared, who would inflict it and why, whether it would be intentional, why the risk is personal, why the authorities could not reduce it, and why relocation would not be practicable.

Useful evidence often includes the applicant's detailed statement, arrest warrants or court documents, medical and psychological reports, statements from witnesses, and country information about how people in the applicant's situation are treated. The statement of claims guide explains how the applicant's account should be set out, and the protection visa interview page explains how it will be tested.

If the Department refuses the visa, the refusal can generally be reviewed by the Administrative Review Tribunal, which considers both grounds afresh. The time limit to apply is short and strictly applied. The protection visa refusals page explains the next steps.

How My Migration Lawyers presents complementary protection claims

My Migration Lawyers presents complementary protection claims alongside refugee claims, so that no viable ground is left unmade. The firm deals with complex protection matters and acts in many Subclass 866 applications where the Protection Visa Subclass 866 requirements for complementary protection are central, including claims involving criminal groups, family and domestic violence, forced marriage, the death penalty and harm in detention. It is capable of handling claims of this kind through to decision and review.

The work includes:

• Identifying the kind of significant harm. The applicant's account is analysed against each of the five categories in section 36(2A), including the intention requirement.
• Addressing section 36(2B). The evidence deals with relocation, protection from authorities and why the risk is personal.
• Presenting both grounds. The claim is argued under the refugee test and, in the alternative, under complementary protection, with the differences between them kept in view.
• The applicant's own account. The statement is the applicant's own evidence, reviewed and corrected by the applicant, and the applicant decides which claims are advanced.

The firm is led by Principal Lawyer Weiwei Zhang and acts for applicants across Australia through its protection visa lawyers practice.

If you need advice on whether your claim meets the Protection Visa Subclass 866 requirements through complementary protection, book a consultation with My Migration Lawyers online, or call 1300 040 300.