Complementary Protection in Australia two Years on: An Emerging Human Rights Jurisprudence

AuthorJane McAdam,Fiona Chong
Date01 September 2014
Published date01 September 2014
Subject MatterArticle
Jane McAdam and Fiona Chong∗∗
Since 24 March 2012, asylum seekers whose claims are processed in Australia have been
able to claim protection on broader grounds than those contained in the Refugee
Convention. This is known as ‘complementary protection’. Complementary protection
provides protection to those who face a real risk of arbitrary deprivation of life, the death
penalty, torture, or cruel, inhuman or degrading treatment or punishment if removed
from Australia. This article provides an in-depth analysis of complementary protection
in its first two years of operation in Australia. It examines: (a) the kinds of factual
scenarios giving rise to complementary protection; (b) case law developments in relation
to the content of, and exceptions to, the complementary protection criteria; and (c) the
extent to which Australia’s approach reflects international practice.
Since 24 March 2012, asylum seekers whose claims are processed in Australia have been
able to claim protection on broader grounds than those contained in the Refugee
Convention.1 Applicants for a protection visa now have their claims assessed not only
against article 1A(2) of the Refugee Convention, but also against complementary
protection criteria reflecting certain non-refoulement obligations owed by Australia under

BA (Hons), LLB (Hons) (Syd), DPhil (Oxford); Scientia Professor and Director, Andrew &
Renata Kaldor Centre for International Refugee Law, UNSW Australia; Non-Resident Senior
Fellow, Brookings Institution, Washington DC; Research Associate, Refugee Studies Centre,
University of Oxford.
∗∗ BEc, LLB (Hons) (UNSW); Research Assistant, Andrew & Renata Kaldor Centre for
International Refugee Law, UNSW Australia.
1 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150
(entered into force 22 April 1954) read together with the Protocol Relating to the Status of
Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October
1967) (‘Refugee Convention’). The law in this article is current as at June 2014; the conclusion
takes into account some proposed legislative changes up to November 2014.

Federal Law Review
Volume 42
international human rights law.2 Thus, pursuant to section 36(2) of the Migration Act
1958 (Cth), Australia is not permitted to remove people to countries where they face a
real risk of arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or
degrading treatment or punishment.3 Broadly speaking, this aligns Australian law with
comparable provisions in the European Union (EU),4 Ireland,5 Canada,6 the United
States (US),7 New Zealand,8 Hong Kong9 and Mexico,10 as well as the expanded refugee
categories in the regional refugee systems of Latin America11 and Africa.12
This article examines the operation of Australia’s complementary protection
provisions in their first two years. It is the first study to provide a comprehensive

2 For a detailed analysis of the changes to the law, set within an international and comparative
context, see Jane McAdam, ‘Australian Complementary Protection: A Step-by-Step
Approach’ (2011) 33 Sydney Law Review 687.
3 These obligations arise pursuant to Australia’s obligations under the International Covenant
on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered
into force 23 March 1976) (‘ICCPR’), arts 6, 7; Second Optional Protocol to the International
Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, opened for
signature 15 December 1989, 1642 UNTS 414 (entered into force 11 July 1991); Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for
signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (‘CAT’), art 3;
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3
(entered into force 2 September 1990), arts 6, 37. Other non-refoulement obligations have been
recognised in other contexts but have not been codified here, such as non-return to
generalised violence in certain circumstances and non-return to an unfair trial.
4 Council Directive 2004/83/EC of 29 April 2004 on Minimum Standards for the Qualification and
Status of Third Country Nationals or Stateless Persons as Refugees or as Persons Who Otherwise
Need International Protection and the Content of the Protection Granted [2004] OJ L304/12, arts
2(e) and 15 (‘Qualification Directive’); Council Directive 2011/95/EU of 13 December 2011 on
Standards for the Qualification of Third-Country Nationals or Stateless Persons as Beneficiaries of
International Protection, for a Uniform Status for Refugees or for Persons Eligible for Subsidiary
Protection, and for the Content of the Protection Granted (Recast) [2011] OJ L337/9, arts 2(f) and 15.
5 European Union (Subsidiary Protection) Regulations 2013 (Statutory Instrument 426 of 2013)
6 Immigration and Refugee Protection Act, SC 2001, c 27, s 97.
7 Immigration and Nationality Act, 8 CFR §§ 208.16–17 (1952) (CAT-based protection only).
8 Immigration Act 2009 (NZ) ss 130–1.
9 CAT-based protection only; refugee status determination is conducted by United Nations
High Commissioner for Refugees (‘UNHCR’). See Kelley Loper, ‘Human Rights, Non-
refoulement and the Protection of Refugees in Hong Kong’ (2010) 22 International Journal of
Refugee Law 404.
10 Decreto por el que se expide la Ley sobre Refugiados y Protección Complementaria y se reforman,
adicionan y derogan diversas disposiciones de la Ley General de Población [Law on Refugees and
Complementary Protection] (Mexico) (9 December 2010) DOF 27/01/2011
11 Cartagena Declaration on Refugees, adopted by the Colloquium on the International Protection
of Refugees in Central America, Mexico, and Panama, 22 November 1984, in ‘Annual Report
of the Inter-American Commission on Human Rights’ (1984–85) OAS Doc
OEA/Ser.L/V/II.66/doc 10, rev 1, 190–93.
12 Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10
September 1969, 1001 UNTS 45 (entered into force 20 June 1974).

Complementary Protection in Australia Two Years On
overview of: (a) the kinds of factual scenarios giving rise to protection under the
complementary protection criteria in Australia; (b) the legal development of the
elements of the complementary protection criteria; and (c) the application of exceptions
to the complementary protection criteria. In doing so, it elucidates some of the
differences between the complementary protection grounds and the refugee definition
(as interpreted in accordance with Australia’s legislative requirements),13 and the extent
to which the Australian approach reflects practices elsewhere. It follows on from
McAdam’s analysis of the interpretation and application of similar complementary
protection criteria in international and comparative jurisprudence prior to the
Australian regime’s entry into force.14
The article is based on analysis of all published decisions on complementary
protection by the Refugee Review Tribunal (RRT) and Australian courts up to 13 June
2014.15 As at that date, there had been 49 reported ‘successful’ complementary decisions
by the RRT.16 In February 2014, the Principal Member of the Refugee Review Tribunal
noted that it had remitted 91 cases to the Immigration Department with a
recommendation that a visa be granted for reasons of complementary protection —
representing 4.5 per cent of the total number of cases remitted, and less than two per
cent of the 6514 RRT decisions made.17 The most recent publicly available figures (from
January 2014) revealed that 75 protection visas had been granted based on the

13 This is an important consideration for any comparative analysis of the Australian system,
since Australia confines the meaning and operation of certain elements of the refugee
definition in a way that other legislative regimes may not (eg ‘good faith’ requirement in
Migration Act 1958 s 91R(3)).
14 See McAdam, above n 2.
15 We maintain an online database of all such decisions, updated weekly: Andrew & Renata
Kaldor Centre for International Refugee Law, UNSW, Case Summaries
. Not all RRT decisions are made
public. As RRT Deputy Principal Member Amanda MacDonald has explained:
On average the Tribunal publishes 40% of its decisions. Only decisions considered to be of
‘particular interest’ by the Principal Member are published, including those that represent a broad
cross section of decisions having regard to factors such as the country of reference, the outcome of
the review, whether there is detailed consideration of legal principles, and whether the factual
circumstances are complex or unusual, or whether they are common to a large number of cases.
Amanda MacDonald, ‘Refugee Status Determination and the RRT’ (Speech delivered to the
UNSW Forced Migration and Human Rights in International Law class, UNSW Material
Sciences Building, 2 April 2012) 7 n 5

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