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Since 24 March 2012, there has been an additional basis for the grant of a Protection (Class XA) (subclass 866) visa. Whether a person is owed protection by Australia will depend upon an assessment of their claims under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention), together with an assessment of their complementary protection claims. Both assessments will be undertaken when processing applications for a protection visa.
Complementary protection is the term used to describe a category of protection for people who are not refugees as defined in the Refugees Convention, but who also cannot be returned to their home country, because there is a real risk that they would suffer certain types of harm that would engage Australia's international non-refoulement (non-return) obligations.
Australia's non-refoulement obligations, in addition to those under the Refugees Convention, are derived from international human rights conventions to which Australia became a party in the 1980s and 1990. These are:
- the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol aiming at the abolition of the death penalty
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Non-refoulement obligations may be engaged under these treaties where there are 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 that the person will suffer significant harm.
Significant harm is where a person will be subjected to:
- arbitrary deprivation of his or her life
- the death penalty
- cruel or inhuman treatment or punishment
- degrading treatment or punishment.
Australia has previously met its non-refoulement obligations under these treaties through the Ministerial Intervention process, after an application for protection had been refused by both the department and the Refugee Review Tribunal.
Assessment of complementary protection
Assessment of complementary protection claims has now been incorporated into the existing primary protection assessment framework. This means that an assessment of applications for protection will consider refugee claims and complementary protection claims as part of one integrated process. This reflects the government's commitment to ensuring that an applicant's claims for protection are assessed in the shortest practicable amount of time.
To ensure the primacy of the Refugees Convention, an applicant's claims for protection will first be considered against the existing refugee criteria set out in the Migration Act 1958 (the Migration Act). This means that their claims will be considered under the complementary protection criteria only if they have been found not to meet the definition of a refugee.
An applicant’s claims for protection will continue to be assessed individually. Where it is found that Australia has protection obligations to an applicant on the basis of the Refugees Convention or complementary protection, they may be granted a protection visa if all other visa requirements are met. Where Australia does not have a protection obligation to an applicant, the applicant should either seek advice about other visa options or depart Australia voluntarily. Failing this, they may be removed from Australia.
New or unfinalised applications
Since 24 March 2012, the department has assessed all new and unfinalised applications against the complementary protection criteria, in addition to the Refugees Convention, before an application is decided. All cases that did not have a determination on a primary assessment before this date will also be assessed against both the Refugees Convention and complementary protection criteria.
Applications at merits review
If an applicant is undergoing or scheduled to undergo a merits review of a decision by the department to refuse their application, and the merits review was not determined before 24 March 2012, their claims will be assessed against the complementary protection criteria by the merits reviewer.
If an applicant is found to be owed protection by Australia under the complementary protection criteria as set out in the Migration Act, and they satisfy health, character and security requirements, they may be granted a protection visa. This is the same visa granted to an applicant who is found to be owed protection in Australia under the Refugees Convention and the Migration Act.
Fact Sheet 61a. Produced by the National Communications Branch, Department of Immigration and Border Protection, Canberra.
Last reviewed January 2014.