Complementary Protection

COMPLEMENTARY PROTECTION

The definition of a refugee in the Refugee Convention is limited. This definition does not include all people who have a clear need for protection.

The Refugee Convention defines a refugee as:

Any person who owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.

Complementary protection is protection for those who are not refugees according to the Act, but who cannot return to their home country because they will suffer certain types of harm which engage Australia's other protection obligations. These obligations come from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

A person can be granted a protection visa on the basis of complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer 'significant harm' if they were removed from Australia to their home country.

Significant harm

Significant harm is different to serious harm. It is defined as:
  • arbitrary deprivation of life
  • the death penalty
  • torture
  • cruel or inhuman treatment or punishment, or
  • degrading treatment or punishment.
It is not considered to be a real risk that a person will suffer significant harm if:
  • it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm
  • they could obtain protection from the authority of the country so that there would not be a real risk that they will suffer significant harm, or
the real risk is one faced by the population of the country generally and is not faced by them personally.

Since the Refugee Convention was signed, a number of other international treaties have been signed. These extend protection to people beyond those defined as refugees under the Refugee Convention. These include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

Countries that have signed these treaties cannot send people back to places where they face a real risk of being arbitrarily deprived of their life, or a real risk of being tortured or exposed to other cruel, inhuman or degrading treatment or punishment.

Complementary protection in Australia

While Australia had signed these treaties, before 2012 the only way a person could be protected under these treaties was by the Minister for Immigration personally deciding to let the person stay.

After many years of advocacy, the Parliament of Australia passed legislation in 2011 to introduce a system of complementary protection. The purpose of this system is to consider the protection needs of people who are not refugees according to the definition in the Refugee Convention, but who may face torture or serious human rights violations if they are returned to their country of origin. After 24 March 2012, a person’s claim for protection under ‘complementary protection’ was considered at the same time as a refugee claim.

During 2013-2015, the Australian Government proposed a number of changes that would have abolished, or significantly changed, this system of complementary protection. However, these proposals have so far been unsuccessful.
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