Complementary protection in Australian law
Overview
Complementary protection in Australian law refers to the protection obligation in s 36(2)(aa) of the Migration Act 1958 (Cth), which covers persons who do not meet the definition of a refugee under the Refugees Convention but who face a real risk of significant harm if removed from Australia. Significant harm includes arbitrary deprivation of life, the death penalty, torture, and cruel, inhuman or degrading treatment or punishment. Complementary protection was introduced in 2011 to give domestic effect to Australia's obligations under the ICCPR and the CAT.
Before 2011, persons who faced serious harm (other than Convention-based persecution) had no formal protection visa pathway in Australia. They could only remain in Australia through Ministerial intervention. The 2011 amendments to the Migration Act introduced complementary protection as a statutory criterion for the Subclass 866 Protection Visa, giving affected persons access to a merits-reviewable visa pathway.
Legal basis
- Section 36(2)(aa) — the complementary protection criterion: the applicant is a non-citizen in Australia in respect of whom Australia has protection obligations because the Minister has 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) — defines "significant harm":
- Arbitrary deprivation of life
- The death penalty being carried out
- Torture
- Cruel or inhuman treatment or punishment
- Degrading treatment or punishment
- Section 36(2B) — exceptions: complementary protection does not apply where the person has committed a serious crime outside Australia or there are serious reasons to consider they committed a war crime or crime against humanity
- Section 5(1) — definitions of "cruel or inhuman treatment or punishment" and "degrading treatment or punishment" (adopted from the CAT and ICCPR Committee's general comments)
How it works
The test
A person satisfies the complementary protection criterion if:
- There are substantial grounds for believing
- That as a necessary and foreseeable consequence of removal
- There is a real risk that the person will suffer significant harm
The "real risk" standard requires more than a mere possibility but does not require the harm to be more likely than not. It is equivalent to the "real chance" standard used in the refugee criterion.
Key differences from the refugee criterion
- Complementary protection does not require the harm to be linked to a Convention ground (race, religion, nationality, PSG, or political opinion)
- The harm must be a "necessary and foreseeable consequence" of removal to the receiving country — this means general country conditions giving rise to risk for everyone do not automatically qualify
- The harm must be individually faced, not merely a general risk affecting the broader population
Interaction with the refugee criterion
Decision-makers assess the refugee criterion (s 36(2)(a)) first. If the applicant does not satisfy the refugee criterion, they must then be assessed against the complementary protection criterion. An applicant may succeed on complementary protection grounds even if their refugee claim fails — for example, a person who faces a real risk of torture for reasons unconnected to a Convention ground.
Exclusions
Complementary protection is not available to a person 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 outside Australia prior to seeking asylum, or acts contrary to the purposes and principles of the United Nations.
Practical significance
In practice, the complementary protection criterion captures a small number of applicants. The majority of successful protection visa applicants satisfy the refugee criterion. However, complementary protection is significant in cases involving stateless persons, persons facing execution under domestic law, and persons who face treatment that is cruel or degrading but is not linked to a Convention ground.