Section 36(2)(aa) of the Migration Act
Complementary Protection
Complementary protection is the second pathway to a protection visa. It applies where you do not meet the refugee definition, but returning would expose you to a real risk of significant harm. No Convention reason is needed. If it succeeds you are granted the same permanent subclass 866 visa as a person found to be a refugee.
Reviewed by Weiwei Zhang, Principal Lawyer Last updated 30 July 2026
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The refugee definition requires persecution for one of five reasons: race, religion, nationality, political opinion or membership of a particular social group. A great many people face serious harm for reasons that fit none of them. A blood feud, a criminal gang, a debt, a domestic dispute, a personal vendetta.
Complementary protection exists for exactly that gap. It commenced on 24 March 2012 and it reflects Australia's obligations under human rights law rather than the Refugees Convention.
Complementary protection exists for exactly that gap. It commenced on 24 March 2012 and it reflects Australia's obligations under human rights law rather than the Refugees Convention.
The harm it covers is exhaustively defined in section 36(2A), which means the list is closed. If what you fear is not on that list, this pathway does not assist however serious it is.
The Test
What Is the Complementary Protection Test
Short answer
Section 36(2)(aa) requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk you will suffer significant harm. Four elements: substantial grounds, necessary and foreseeable consequence, real risk, and significant harm as defined.
Section 36(2)(aa) requires substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk you will suffer significant harm. Four elements: substantial grounds, necessary and foreseeable consequence, real risk, and significant harm as defined.
The criterion sits in section 36 of the Migration Act 1958. Subsection 36(2A) defines significant harm. Subsection 36(2B) sets out when a risk is taken not to be real. Subsection 36(2C) sets out who is excluded. All four provisions have to be worked through, not just the first.
The Full Federal Court confirmed in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 that the test is significant harm, not irreparable harm. That matters. An earlier version of the Bill used irreparable harm, which would have excluded forms of torture leaving no permanent injury. The enacted test is lower and it is the one that applies.
The Full Federal Court confirmed in Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 that the test is significant harm, not irreparable harm. That matters. An earlier version of the Bill used irreparable harm, which would have excluded forms of torture leaving no permanent injury. The enacted test is lower and it is the one that applies.
Eligibility at a Glance
You are a non-citizen in Australia
You do not meet the refugee criterion in section 36(2)(a)
There are substantial grounds for believing you face a real risk
The risk arises as a necessary and foreseeable consequence of removal
What you face is significant harm as defined in section 36(2A)
Relocation within your country is not reasonable
State protection is not available to reduce the risk
The risk is personal to you, not one faced by the population generally
None of the exclusions in section 36(2C) applies to you
The Five Types of Significant Harm
Section 36(2A) defines significant harm exhaustively. That word matters: the list is closed. Harm that is serious but falls outside these five categories does not engage complementary protection, however grave it is.
Significant harm under section 36(2A)
Provision
The harm
What it covers in practice
36(2A)(a)
Arbitrary deprivation of life
Extrajudicial killing and unlawful killing by a third party. The courts have read this as requiring another actor
36(2A)(b)
The death penalty will be carried out
Capital punishment. It is not enough that the offence carries the death penalty in law
36(2A)(c)
Torture
Severe pain or suffering intentionally inflicted for a purpose such as obtaining information or punishment
36(2A)(d)
Cruel or inhuman treatment or punishment
Severe pain or suffering, or extreme humiliation, intentionally inflicted
36(2A)(e)
Degrading treatment or punishment
Extreme humiliation which is unreasonable, intentionally inflicted
The definitions of torture, cruel or inhuman treatment and degrading treatment are set out in section 5(1) of the Migration Act and each contains an intention requirement. Harm that is severe but not intentionally inflicted, such as a lack of medical treatment, often fails on that element rather than on severity.
Not sure whether what you fear falls inside the section 36(2A) list? That is the first question to answer.
When It Applies
When Does Complementary Protection Apply Instead of Refugee Status
Short answer
Whenever the harm is real but the reason for it is not one of the five Convention grounds. These are the situations that arise most often, and in each of them the refugee criterion fails on the reason rather than on the seriousness of what is feared.
Whenever the harm is real but the reason for it is not one of the five Convention grounds. These are the situations that arise most often, and in each of them the refugee criterion fails on the reason rather than on the seriousness of what is feared.
Blood Feuds and Family Vendettas
A feud between families, a revenge killing obligation, or a dispute carried across generations. The risk of being killed is real and often well documented, but it exists because of who your family is rather than because of your race, religion, nationality, politics or membership of a social group. The refugee criterion usually fails on that. Section 36(2A)(a) does not require any reason at all.
Criminal Gangs, Cartels and Extortion
Where a gang, cartel or organised criminal group has targeted you, the harm is usually severe and specific. It is also usually motivated by money, territory or revenge rather than by anything Convention related. Complementary protection is often the only viable pathway, and it turns on showing the risk is personal to you rather than the general insecurity everyone in that country faces.
Debt, Business Disputes and Land Conflicts
An unpayable debt to people who use violence, a business partner with reach into the police, a contested inheritance or land claim. These generate credible threats to life without any Convention nexus. The evidentiary work is showing the threat is real and that the state cannot or will not protect you, which is where these claims are usually won or lost.
Family and Honour Based Violence
Family violence, honour based violence, forced marriage and female genital cutting can engage the refugee criterion through membership of a particular social group, and frequently do. Where that argument is not accepted, complementary protection often is, because torture and cruel or inhuman treatment do not require any reason. Both should be argued rather than one. See Protection Visa LGBTI.
Both criteria should be argued in the alternative. An application pleading only one has given away half its case.
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What Defeats a Claim
What Defeats a Complementary Protection Claim
Short answer
Section 36(2B) sets out three circumstances in which a risk is taken not to be real, even where the harm feared is genuine. Relocation, state protection, and generalised risk. Most complementary protection refusals turn on one of these three rather than on whether the harm would occur.
Section 36(2B) sets out three circumstances in which a risk is taken not to be real, even where the harm feared is genuine. Relocation, state protection, and generalised risk. Most complementary protection refusals turn on one of these three rather than on whether the harm would occur.
Reasonable Relocation, s 36(2B)(a)
If it would be reasonable to relocate to an area of your country where there would not be a real risk.
State Protection, s 36(2B)(b)
If you could obtain protection from an authority of the country such that the risk is reduced to less than a real one.
Generalised Risk, s 36(2B)(c)
If the risk is one faced by the population of the country generally, rather than by you personally.
No Intention Behind the Harm
Torture, cruel or inhuman treatment and degrading treatment each require intention. Harm that is severe but not intentionally inflicted often fails here.
A Third Country You Can Go To
Another nationality, or a right to enter and reside in a third country, can defeat the claim unless you would face harm there too.
The Exclusions in s 36(2C)
Serious crimes, crimes against humanity and acts contrary to the purposes of the United Nations exclude a person entirely.
Relocation Is the Most Common Defeater
It is not enough that another part of the country exists and is safer. The question is whether relocation would be reasonable for you, taking account of your circumstances: whether you have any connection there, whether you could support yourself, whether the people who threaten you have reach across the country, and whether internal movement is practically possible. That argument has to be made with evidence, not asserted.
How Long It Stays Valid
On state protection, the Full Court in MZYYL held that the question is whether the level of protection offered by the receiving country reduces the risk to something less than a real one. A police force that exists on paper but does not function, or one that is complicit in the harm, does not meet that standard, and country information is how that is shown.
Relocation and state protection defeat more claims than the harm test does. Both need answering in the application.
Who Is Excluded
Who Is Excluded From Complementary Protection
Short answer
Section 36(2C) excludes a person entirely where there are serious reasons for considering they have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime, or acts contrary to the purposes and principles of the United Nations. The same exclusions apply to Convention refugees.
Section 36(2C) excludes a person entirely where there are serious reasons for considering they have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime, or acts contrary to the purposes and principles of the United Nations. The same exclusions apply to Convention refugees.
Commenced
2012
Complementary protection has been part of Australian law since 24 March 2012.
Types of significant harm
5
Exhaustively defined in section 36(2A). The list is closed.
Convention reason needed
$
None
The reason for the harm is irrelevant. Only the harm itself matters.
Exclusions under section 36(2C)
Ground
Effect
A crime against peace, a war crime or a crime against humanity
Excluded
A serious non-political crime
Excluded
Acts contrary to the purposes and principles of the United Nations
Excluded
A right to enter and reside in a safe third country
May defeat the claim
The threshold applied
Serious reasons for considering
The threshold is serious reasons for considering, which is lower than a criminal standard of proof. A conviction is not required and an acquittal is not conclusive. Where any part of your history could raise these provisions, it needs to be addressed in the application rather than left to surface later.
Australia may also decline protection where you have a right to enter and reside in a safe third country, including through another nationality. The Department can approach other countries to establish whether such a right exists. If you hold more than one nationality, raise it at the outset.
The Department applies a 1.4% surcharge to online card payments, which adds approximately $164 to an $11,710 charge.
Department charges are set by the Department of Home Affairs and typically increase on 1 July each year. Use the Department's visa pricing estimator or the current visa pricing table to confirm the exact charge for your circumstances.
Australia may also decline protection where you have a right to enter and reside in a safe third country, including through another nationality. The Department can approach other countries to establish whether such a right exists. If you hold more than one nationality, raise it at the outset.
The Department applies a 1.4% surcharge to online card payments, which adds approximately $164 to an $11,710 charge.
Department charges are set by the Department of Home Affairs and typically increase on 1 July each year. Use the Department's visa pricing estimator or the current visa pricing table to confirm the exact charge for your circumstances.
Get a written quote for professional fees before you commit to anything.
Arguing It
How Is a Complementary Protection Claim Argued
Short answer
In the alternative, always. The application argues the refugee criterion first, then argues that if it is not accepted, complementary protection applies on the same facts. Delegates decide section 36(2)(a) first and reach 36(2)(aa) only if it fails, so a claim that is not pleaded is a claim that is not considered.
In the alternative, always. The application argues the refugee criterion first, then argues that if it is not accepted, complementary protection applies on the same facts. Delegates decide section 36(2)(a) first and reach 36(2)(aa) only if it fails, so a claim that is not pleaded is a claim that is not considered.
The four elements of section 36(2)(aa)
Element
What it requires
Substantial grounds for believing
An objective standard, assessed on the evidence
Necessary and foreseeable consequence of removal
An objective standard, assessed on the evidence
A real risk
More than remote or speculative, and personal to you
Significant harm
One of the five categories in section 36(2A)
The two criteria need different things from the same facts. The refugee criterion needs a nexus to a Convention ground. Complementary protection needs the harm to sit inside the section 36(2A) list, and an intention behind it, except in the case of arbitrary deprivation of life. A single narrative covering both is weaker than a submission addressing each element in turn.
Country information carries more weight here than on almost any other visa. The delegate must be satisfied of a real risk, and that finding is made against published country reporting. A submission engaging directly with the relevant sources is far stronger than one asserting the position in general terms.
Relocation and state protection have to be answered before the Department raises them. Leaving those two elements unaddressed is the most common structural weakness in a complementary protection submission.
Country information carries more weight here than on almost any other visa. The delegate must be satisfied of a real risk, and that finding is made against published country reporting. A submission engaging directly with the relevant sources is far stronger than one asserting the position in general terms.
Relocation and state protection have to be answered before the Department raises them. Leaving those two elements unaddressed is the most common structural weakness in a complementary protection submission.
Both criteria, argued in the alternative, with each element addressed. That is what a complete submission looks like.
Who We Act For
Where Complementary Protection Claims Commonly Arise
Short answer
Complementary protection claims arise wherever serious harm occurs for reasons unconnected to the Refugees Convention. Nationality does not establish a claim and it never has. Every application is assessed on what happened to that person and what they personally face on return.
The pattern is consistent. Gang and cartel violence, blood feuds, honour based violence, debt enforcement, land disputes and the death penalty for ordinary criminal offences. Serious harm, no Convention nexus, and a state that cannot or will not protect.
Complementary protection claims arise wherever serious harm occurs for reasons unconnected to the Refugees Convention. Nationality does not establish a claim and it never has. Every application is assessed on what happened to that person and what they personally face on return.
The pattern is consistent. Gang and cartel violence, blood feuds, honour based violence, debt enforcement, land disputes and the death penalty for ordinary criminal offences. Serious harm, no Convention nexus, and a state that cannot or will not protect.
Bangladesh
Cambodia
China
Colombia
Egypt
Fiji
India
Indonesia
Iran
Lebanon
Malaysia
Myanmar
Nepal
Pakistan
Russia
Singapore
Sri Lanka
Vietnam
Not listed? It makes no difference. Nationality is not a criterion, and there is no country list that qualifies or disqualifies a claim.
Wherever you are from, the question is whether the harm you face sits inside section 36(2A).
Evidence
What Evidence Supports a Complementary Protection Claim
Short answer
Four things, and the emphasis differs from a refugee claim. Your statement, evidence that the threat is real and directed at you, country information on both the harm and the state response, and material answering relocation. The last of these is the one most applications neglect.
Four things, and the emphasis differs from a refugee claim. Your statement, evidence that the threat is real and directed at you, country information on both the harm and the state response, and material answering relocation. The last of these is the one most applications neglect.
Your Statement of Claims
Chronological and specific. Who threatened you, when, how, and why they are able to reach you. On a complementary protection claim the reason for the harm does not need to be Convention related, but the identity and capability of whoever poses the risk does need to be established.
Evidence the Threat Is Real Identity
Threatening messages and calls, police reports even where no action followed, medical records of previous assaults, photographs, court or debt documents, news reporting of the incident or the group, and statements from people with direct knowledge of the threat.
Country Information on Two Points
First, that harm of this kind occurs in your country to people in your position. Second, that the state cannot or will not protect against it. The second point defeats section 36(2B)(b) and it is the one most submissions leave out.
Material Answering Relocation
Information
Evidence of the reach of whoever threatens you, your lack of connection to other regions, restrictions on internal movement, and whether you could realistically support yourself elsewhere. Relocation defeats more complementary protection claims than any other provision.
Documents Commonly Required
A written statement of claims, chronological and specific
A submission addressing section 36(2)(aa) element by element
Identification of which of the five categories in section 36(2A) applies
Threatening messages, calls, letters or social media contact
Police reports, event numbers or court documents, even where no action followed
Medical records of previous assaults or injuries
News reporting of the incident, the group or the pattern of harm
Statements from people with direct knowledge of the threat
Country information showing harm of this kind occurs to people in your position
Country information showing the state cannot or will not protect against it
Material answering relocation: the reach of the threat and your ties elsewhere
Health examination results, and identity documents for every family member included
Passport, national identity documents and evidence of nationality
Accredited English translations of every document not in English
Relocation and state protection are where these claims are lost. Have both answered before lodgement.
Refusals
Why Are Complementary Protection Claims Refused
Short answer
Rarely because the delegate disbelieves the harm exists. Complementary protection claims are usually refused on section 36(2B): relocation is reasonable, state protection is available, or the risk is one faced by the population generally. The harm test itself is often accepted.
Rarely because the delegate disbelieves the harm exists. Complementary protection claims are usually refused on section 36(2B): relocation is reasonable, state protection is available, or the risk is one faced by the population generally. The harm test itself is often accepted.
Common Refusal Grounds
A finding that relocation to another part of the country would be reasonable
A finding that state protection is available and reduces the risk to less than a real one
A finding that the risk is faced by the population generally rather than personally
Harm that falls outside the five categories in section 36(2A), however serious it is
No intention behind the harm, where torture or cruel or inhuman treatment is claimed
The claim never pleaded, because only the refugee criterion was argued
A right to enter and reside in a safe third country
Inconsistency between the statement, the interview answers and the documents
An exclusion under section 36(2C) engaged by the applicant history
A request for further information answered late or incompletely
If the Claim Has Been Refused
Review rights generally apply to the Administrative Review Tribunal, which reconsiders the claim afresh. Where complementary protection was never pleaded before the Department, it can still be raised at the Tribunal, and that is one of the more common ways these matters are salvaged. See Protection Visa Refusal
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The Process
How to Make a Complementary Protection Claim
Short answer
There is no separate application. Complementary protection is one of the criteria for a subclass 866 protection visa, so it is claimed inside that application. What differs is how the claim is framed and which elements the submission has to address.
There is no separate application. Complementary protection is one of the criteria for a subclass 866 protection visa, so it is claimed inside that application. What differs is how the claim is framed and which elements the submission has to address.
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4
5
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7
8
01
Identify Which Harm Applies
Work out which of the five categories in section 36(2A) covers what you fear. If none of them does, this pathway does not assist and that needs to be known early.
02
Plead the Refugee Criterion First
Argue section 36(2)(a) on the facts, then argue complementary protection in the alternative. Delegates reach 36(2)(aa) only if the refugee criterion fails.
03
Establish Who Poses the Risk
The reason for the harm does not matter, but the identity and capability of whoever threatens you does. Name them and evidence their reach.
04
Address the Intention Element
Torture, cruel or inhuman treatment and degrading treatment each require intention. Arbitrary deprivation of life does not. Frame the claim around the category that fits.
05
Answer Relocation Before It Is Raised
Evidence the reach of the threat, your lack of connection to other regions, and whether you could realistically live there. This defeats more claims than anything else.
06
Answer State Protection
Country information showing that the police or authorities cannot or will not protect against this harm, or are complicit in it.
07
Show the Risk Is Personal
Section 36(2B)(c) excludes generalised risk. The submission has to distinguish your position from that of the population at large.
08
Lodge, Then Prepare for the Interview
The delegate will test the account in detail. Preparation begins at lodgement, not when the invitation arrives.
There is no separate charge and no separate form. See Protection Visa (866) for the application itself, and The Protection Visa Interview for what happens next.
Both criteria, argued in the alternative. Have the submission reviewed before it is lodged.
The Leading Case
What Did MZYYL Decide
Short answer
In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 the Full Federal Court confirmed that the test in section 36(2)(aa) is significant harm, not irreparable harm, and that the section 36(2B) circumstances relieve Australia of the obligation rather than forming part of the harm test itself.
The distinction matters. The Bill as originally introduced used irreparable harm, and the Australian Human Rights Commission warned that some forms of torture leaving no permanent injury might fall outside it. Parliament enacted the lower significant harm threshold instead.
On state protection the Court held that the question under section 36(2B)(b) is whether the level of protection offered by the receiving country reduces the risk of significant harm to something less than a real one. Protection that exists formally but does not function does not meet that standard.
Complementary protection has generated a substantial body of case law since 2012, on arbitrary deprivation of life, on the intention requirement in the other categories, and on relocation. The right authorities depend on which category is engaged, which is one reason these claims benefit from being run by lawyers.
In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 the Full Federal Court confirmed that the test in section 36(2)(aa) is significant harm, not irreparable harm, and that the section 36(2B) circumstances relieve Australia of the obligation rather than forming part of the harm test itself.
The distinction matters. The Bill as originally introduced used irreparable harm, and the Australian Human Rights Commission warned that some forms of torture leaving no permanent injury might fall outside it. Parliament enacted the lower significant harm threshold instead.
On state protection the Court held that the question under section 36(2B)(b) is whether the level of protection offered by the receiving country reduces the risk of significant harm to something less than a real one. Protection that exists formally but does not function does not meet that standard.
Complementary protection has generated a substantial body of case law since 2012, on arbitrary deprivation of life, on the intention requirement in the other categories, and on relocation. The right authorities depend on which category is engaged, which is one reason these claims benefit from being run by lawyers.
The category you plead determines the law that applies. Getting that choice right is the whole exercise.
How We Help
How My Migration Lawyers Assists With Complementary Protection
Short Answer
We identify which category of significant harm applies, plead both criteria in the alternative, gather the country information on both limbs, and answer relocation and state protection before the Department raises them. That is where these claims are won and lost.
We identify which category of significant harm applies, plead both criteria in the alternative, gather the country information on both limbs, and answer relocation and state protection before the Department raises them. That is where these claims are won and lost.
1
Identifying the Right Category
We work out which of the five categories in section 36(2A) covers what you fear, and whether the intention element can be met. Where none applies, we tell you early rather than after a refusal.
2
Pleading Both Criteria in the Alternative
The refugee criterion first, complementary protection second on the same facts. Delegates reach section 36(2)(aa) only if 36(2)(a) fails, so an unpleaded claim is an unconsidered claim.
3
Drafting the Statement of Claims
Chronological and specific, establishing who threatens you, how, and why they can reach you. On these claims the identity and capability of the threat matters more than the motive.
4
Answering Relocation Before It Is Raised
Section 36(2B)(a) defeats more complementary protection claims than anything else. We evidence the reach of the threat, your ties elsewhere, and whether relocation is realistically open to you.
5
Answering State Protection
Country information showing the police or authorities cannot or will not protect against this harm, or are complicit in it, applying the standard the Full Court set in MZYYL.
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Distinguishing Personal From Generalised Risk
Section 36(2B)(c) excludes risk faced by the population at large. We frame the claim so that your position is distinguished from general insecurity.
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Country Information Research
Reporting on both limbs: that harm of this kind occurs to people in your position, and that the state does not protect against it. Home Affairs runs on its own country information and it has to be engaged with.
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Gathering Evidence of the Threat
Threatening messages, police reports, medical records, news reporting, court and debt documents, and statements from people with direct knowledge.
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Advice on the Section 36(2C) Exclusions
Where any part of your history could engage the exclusions, we address it in the application rather than leaving it to surface at the interview or after.
10
Third Country Rights
Where you hold another nationality or a right of residence elsewhere, we deal with it directly, because it can defeat the claim if it emerges later.
11
Written Legal Submissions
A submission addressing each element of section 36(2)(aa) in turn, identifying the category under 36(2A), and answering each limb of 36(2B) with evidence.
12
Interview Preparation and Attendance
The delegate tests the account in detail. We prepare you, and we attend so that procedural problems are raised at the time rather than after the decision.
13
Responding to Department Requests
Where adverse information is put to you for comment, or further material is requested, we respond within time and in the form required.
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Raising It at Review Where It Was Never Pleaded
Where an earlier application argued only the refugee criterion, complementary protection can still be raised at the Tribunal. That is one of the more common ways these matters are salvaged.
What Working With Us Looks Like
Lawyers, not agents
Your matter is handled by Australian lawyers, and everything you tell us is covered by legal professional privilege.
Nothing is reported
We do not report to the Department, and nothing you tell us reaches your home country or your embassy.
Fees quoted in writing
You know the professional fee before you engage us. The Department charge of $50 covers the whole application.
One firm from start to finish
The same team runs the assessment, the statement, the lodgement, the interview and any review. Nothing is handed off midway.
Both criteria, every element answered. Tell us your situation before the application is lodged.
After the Grant
What Happens if the Claim Succeeds
Short answer
You are granted the same subclass 866 permanent protection visa as a person found to be a refugee. There is no lesser status, no shorter visa and no different conditions. Complementary protection is a different route to the identical outcome.
Permanent residence from the day of grant, full work and study rights, Medicare, government support, a five year travel facility, and a pathway to citizenship. The one caution is the same as for any protection visa. The travel facility does not extend to the country you sought protection from, and returning there can put the visa at risk. See Protection Visa (866).
You are granted the same subclass 866 permanent protection visa as a person found to be a refugee. There is no lesser status, no shorter visa and no different conditions. Complementary protection is a different route to the identical outcome.
Permanent residence from the day of grant, full work and study rights, Medicare, government support, a five year travel facility, and a pathway to citizenship. The one caution is the same as for any protection visa. The travel facility does not extend to the country you sought protection from, and returning there can put the visa at risk. See Protection Visa (866).
The same visa, the same rights, the same pathway to citizenship. A different route, an identical outcome.
Questions
Protection Visa Frequently Asked Questions
Answers to the questions Indonesians applicants ask most often. See also our 30 protection visa FAQs and 30 LGBT protection visa FAQs.
What Is Complementary Protection
It is the second pathway to an Australian protection visa, in section 36(2)(aa) of the Migration Act. It applies where you do not meet the refugee definition but there is a real risk you will suffer significant harm if returned. No Convention reason is required.
What Counts as Significant Harm
Section 36(2A) defines it exhaustively as five things: arbitrary deprivation of life, the death penalty being carried out, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment. The list is closed, so harm outside it does not engage this pathway.
How Is It Different From Refugee Status
The refugee criterion requires persecution for a Convention reason: race, religion, nationality, political opinion or membership of a particular social group. Complementary protection requires no reason at all. What matters is the harm itself and whether it falls inside section 36(2A).
Do I Get a Different Visa if I Succeed on Complementary Protection
No. You are granted the same subclass 866 permanent protection visa as a person found to be a refugee, with the same rights, the same conditions and the same pathway to citizenship. It is a different route to an identical outcome.
What Is the Real Risk Test
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. A real risk is more than remote or speculative, and it must be personal to you rather than faced by the population generally.
What Is the Relocation Rule
Section 36(2B)(a) provides that there is taken not to be a real risk if it would be reasonable for you to relocate to an area of the country where there would not be a real risk. Relocation defeats more complementary protection claims than any other provision.
Does It Cover Gang Violence and Blood Feuds
It can. Gang violence, cartel targeting, blood feuds, debt enforcement and land disputes usually have no Convention nexus, so the refugee criterion fails on the reason rather than the seriousness. Complementary protection is often the only viable pathway in those cases.
Does Poverty or Lack of Medical Treatment Count
Generally no. Torture, cruel or inhuman treatment and degrading treatment each require intention. Severe suffering caused by poverty, economic collapse or the absence of medical care usually fails on the intention element rather than on severity.
Who Is Excluded From Complementary Protection
Section 36(2C) excludes a person where there are serious reasons for considering they have committed a crime against peace, a war crime or a crime against humanity, a serious non-political crime, or acts contrary to the purposes and principles of the United Nations.
When Did Complementary Protection Start in Australia
24 March 2012. Before that date, a person who faced serious harm for a reason unconnected to the Refugees Convention had no statutory pathway to a protection visa and could only seek ministerial intervention.
What Did MZYYL Decide
In Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 the Full Federal Court confirmed that the test is significant harm rather than irreparable harm, and that on state protection the question is whether protection reduces the risk to something less than a real one.
Can I Argue Both Refugee and Complementary Protection
Yes, and you should. The application argues the refugee criterion first and complementary protection in the alternative on the same facts. Delegates reach section 36(2)(aa) only if the refugee criterion fails, so an unpleaded claim is an unconsidered claim.
About the Reviewer
Who Reviewed This Page
Weiwei Zhang is an Australian lawyer practising exclusively in Australian migration law and is the Principal Lawyer at My Migration Lawyers. She reviews the firm's published legal guidance for accuracy.
Weiwei Zhang
Managing Director and Principal Lawyer, My Migration Lawyers
Weiwei Zhang
Principal Lawyer
Weiwei Zhang is an Australian lawyer practising exclusively in Australian migration law and is the Principal Lawyer at My Migration Lawyers. She reviews the firm's published legal guidance for accuracy.
Last Reviewed
16 September 2026
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