Australia's Complementary Protection Visa
Complementary protection is protection granted under the Migration Act 1958 to a person who does not meet the Refugees Convention definition but faces a real risk of significant harm if returned to their country. It is a distinct basis for the grant of a Protection (subclass 866) visa, separate from the refugee criteria.
Complementary protection claims are fact-sensitive and turn on the quality of the evidence and the precision of the legal framing. Visa Plan Lawyers advises on complementary protection claims, merits review before the Administrative Review Tribunal, and subsequent judicial review.
The Legal Framework
Complementary protection is set out in section 36(2)(aa) of the Migration Act 1958. The criterion is that the applicant is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations, because there are substantial grounds for believing that, as a necessary and foreseeable consequence of removal, there is a real risk the applicant will suffer significant harm.
Significant harm is defined in section 5(1) and includes arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.
How Complementary Protection Differs from Refugee Protection
Refugee protection under section 36(2)(a) of the Migration Act 1958 requires a well-founded fear of persecution for one of five Convention reasons: race, religion, nationality, membership of a particular social group, or political opinion. Complementary protection does not require a Convention reason. It addresses harm that remains serious enough to engage Australia's non-refoulement obligations but falls outside the Convention framework.
The practical implication is that a person who faces targeted violence, exposure to torture, or the death penalty for reasons not tied to a Convention ground may still establish a protection claim under the complementary protection criteria.
Exclusions and Statutory Bars
Complementary protection is not available where the applicant can take reasonable steps to modify their behaviour to avoid a real risk of significant harm, where the risk is faced by the population generally and not by the applicant personally, or where the applicant can reasonably relocate within the country to an area where the risk does not apply.
Character, security, and conduct-based exclusions in section 36 and related provisions also apply. Each exclusion is a separate ground of refusal and requires a distinct legal response.
Strategy Considerations
A well-prepared protection visa application usually advances both refugee and complementary protection claims where the facts support them. The claims rely on overlapping evidence but are assessed against different legal tests. Framing the claims separately, and marshalling the country information and expert evidence that supports each, produces a stronger application than relying on either in isolation.
Country information analysis is central. Visa Plan's assessment in a complementary protection matter draws from Department of Foreign Affairs and Trade country reporting, UNHCR materials, and other authoritative sources relevant to the applicant's circumstances.
Merits Review and Judicial Review
A refusal of a protection visa, including on complementary protection grounds, may be reviewed by the Administrative Review Tribunal through its Protection and Immigration Jurisdictional Area. Strict statutory time limits apply from notification of the decision.
The Administrative Review Tribunal conducts a full merits review and may affirm, vary, set aside, or remit the decision. Further review on questions of law is available in the Federal Circuit and Family Court of Australia.
Related Pages
- Protection Visas The main onshore protection pathway and overview of the framework.
- Offshore Humanitarian Visa Offshore pathways for persons outside Australia who are subject to persecution or substantial discrimination.
- Country Information Report Country-specific pages and the authoritative sources considered in each matter.
Speak with Visa Plan Lawyers
Complementary protection claims demand precise legal framing and disciplined evidence. Contact Visa Plan to discuss a protection visa application or merits review matter.
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