5.3 Complementary Protection and Non-Refoulement

5.3 Complementary Protection and Non-Refoulement

Complementary protection must be assessed independently when a person does not meet the statutory refugee definition. It protects against specified extreme harm without requiring race, religion, nationality, particular-social-group membership, or political opinion as the reason.

Criterion and real-risk inquiry

Under section 36(2)(aa), the Minister must have substantial grounds for believing that, as a necessary and foreseeable consequence of removal to a receiving country, there is a real risk the person will suffer significant harm. The inquiry is forward-looking and evidence-based. It considers the person’s particular circumstances, credible country information, likely actors, state response, and all reasonably available areas of return.

The real-risk concept is not a balance-of-probabilities requirement, but speculative or merely possible harm is insufficient. Analyse each claimed harm, source, likelihood, location, and reason the applicant personally faces it.

Exhaustive significant harm categories

Section 36(2A) states that significant harm occurs where the person will be:

• arbitrarily deprived of life;
• subjected to the death penalty being carried out;
• subjected to torture;
• subjected to cruel or inhuman treatment or punishment; or
• subjected to degrading treatment or punishment.

The Act defines torture, cruel or inhuman treatment, and degrading treatment. Severe pain, intention, purpose, extreme humiliation, and lawful-sanctions qualifications differ between definitions. Do not replace the statutory elements with a general humanitarian-hardship test. Poverty, lack of preferred medical treatment, discrimination, or distress may be grave without falling within an exhaustive category unless the facts meet its definition.

Correct section 36(2B) mapping

The prior guide reversed the paragraphs. The current exceptions are:

1. paragraph (a)—reasonable relocation: no real risk is taken to exist if it would be reasonable for the person to relocate to an area without the risk;
2. paragraph (b)—authority protection: no real risk if an authority of the country can provide protection such that the risk is removed; and
3. paragraph (c)—general population risk: no real risk where the risk is faced by the population generally and not by the non-citizen personally.

Relocation requires more than theoretical physical access. Assess the person, proposed area, safety, support, lawful residence, essential needs, and reach of the actor. Authority protection must actually remove the real risk, not merely show that police exist. For paragraph (c), identify whether an individual characteristic or circumstance creates a personal risk different from the general hazard.

Exclusions and other countries

Section 36(2C) excludes specified international crimes, serious non-political crime, acts contrary to UN purposes, security danger, and certain particularly serious criminals who endanger the community. Section 36(3) and related provisions address rights to enter and reside in another country, subject to their statutory exceptions. These are separate from the merits of harm in the claimed receiving country.

Evidence method

Use current, attributable country sources and explain why they apply to this person. Medical or psychological evidence can support past harm and vulnerability but does not itself prove future country conditions. Where accounts changed, give the client a fair opportunity to explain and assess the explanation in context.

Scenario

A resident of a city exposed to indiscriminate shelling invokes complementary protection. Paragraph 36(2B)(c), not paragraph (a), addresses a risk faced by the population generally and not personally. The agent should examine whether the applicant has a personal feature—location, occupation, disability, ethnicity, prior targeting, or inability to access shelter—that makes the risk personal. If a safe area is proposed, paragraph (a) separately asks whether relocation there is reasonable; paragraph (b) separately asks whether authority protection removes the risk.

Alternative protection analysis

Run complementary protection as a separate statutory pathway after, and not as a substitute for, refugee analysis. Create one row for each alleged form of significant harm and identify the actor, future-risk evidence, receiving country, personal exposure, relocation possibility, available authority protection, general-population issue, and any section 36(2C) exclusion. Test whether the harm fits one of the exhaustive section 36(2A) categories; hardship, poor services, discrimination, or danger may be serious without meeting that definition. Address cumulative facts where they bear on the defined harm, but do not invent an open-ended humanitarian discretion. Check third-country residence or entry rights and the practical durability of those rights. In submissions, state why the risk is necessary and foreseeable on the evidence and why each paragraph of section 36(2B) does or does not apply. This structure keeps complementary protection legally distinct while using the same disciplined credibility and country-research record.