Fact Sheet 61a – Complementary Protection
From 24 March 2012, there is a new additional basis for the grant of a Protection visa. The assessment of whether a person is owed protection by Australia will include an assessment of the claims under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention) and an assessment of their complementary protection claims. Both assessments will be part of the processing of a person's application for a Protection visa.
Complementary protection
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 cannot be returned to their home country because there is a real risk the person would suffer certain types of harm that 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 that Australia became a party to in the 1980s and 1990s. 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 person's home country, there is a real risk that the person will suffer significant harm.
Significant harm is where a person will:
- be arbitrarily deprived of his or her life
- have the death penalty carried out
- be subjected to torture
- be subjected to cruel or inhuman treatment or punishment
- be subjected to 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 is being incorporated into the existing primary protection assessment framework. This means that 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 a person's claims for protection are assessed in the shortest practicable amount of time.
To ensure the primacy of the Refugees Convention, protection claims will first be considered against the existing refugee criteria set out in the Migration Act 1958. This means that Protection visa applicants will have their claims considered under the complementary protection criteria only if they have been found not to meet the definition of a refugee.
Client impact
A person's claims for protection will continue to be assessed individually. Where it is found that Australia owes a non-refoulement obligation to an eligible person, they may be granted a Protection visa. Where Australia does not have a non-refoulement obligation to a person, that person should either seek advice about other visa options, depart Australia voluntarily or they may be removed from Australia.
New and unfinalised applications
From 24 March 2012, the department will assess all new and unfinalised applications against the complementary protection criteria before finalising a case. All cases that did not have a determination on a primary assessment before this date will also be assessed against the complementary protection criteria.
Applications at merits review
If a person is undergoing or will undergo a merits review of their case and has not had a determination on their case by 24 March 2012, their claims will be assessed against the complementary protection criteria by the merits reviewer.
A person found to be owed protection under the complementary protection criteria will be granted a Protection (Class XA) (subclass 866) visa. This is the same visa granted to a person found to be owed protection under the Refugees Convention.
Further information is available on the department's website.
See: www.immi.gov.au
The department also operates a national general enquiries line.
Telephone: 131 881
Hours of operation: Monday to Friday from 8.30 am to 4.30 pm. Recorded information is available outside these hours.
Fact Sheet 61a. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
Last Reviewed April 2012.
© Commonwealth of Australia 2011.