Complementary Protection vs Refugee Criterion: Two Routes Under a Subclass 866 Claim
Protection Visa 866 hub: For the complete onshore Protection Visa pathway, including eligibility, refugee and complementary protection criteria, evidence, processing, refusals and ART review, see our Protection Visa 866 Australia guide.
An Australian subclass 866 Protection visa claim can engage more than one protection framework. The two central routes are the refugee criterion and complementary protection. They may arise from the same factual history, but they are not the same legal test.
The refugee criterion
Section 36(2)(a) of the Migration Act concerns a non-citizen in Australia in respect of whom Australia has protection obligations because the person is a refugee. Sections 5H and 5J contain important parts of the statutory refugee test.
A well-founded fear of persecution must be connected to at least one Convention reason: race, religion, nationality, membership of a particular social group or political opinion.
What does persecution involve?
The Act contains further requirements concerning serious harm and systematic and discriminatory conduct. A person does not satisfy the refugee criterion simply because conditions in the country are dangerous or difficult.
Complementary protection
Section 36(2)(aa) applies to a person who is not covered by the refugee paragraph but in respect of whom there are substantial grounds for believing that removal to the receiving country would, as a necessary and foreseeable consequence, expose the person to a real risk of significant harm.
What counts as significant harm?
Section 36(2A) identifies forms of significant harm including:
- arbitrary deprivation of life;
- the death penalty being carried out;
- torture;
- cruel or inhuman treatment or punishment; and
- degrading treatment or punishment.
The statutory definitions and case law matter. Ordinary hardship or disadvantage does not automatically reach this threshold.
Why complementary protection is not simply a “backup claim”
The factual evidence should be analysed against both frameworks where genuinely relevant. A claim may fail the refugee criterion because the feared harm lacks the required Convention nexus but still require analysis under complementary protection.
Conversely, not every serious problem meets the statutory definition of significant harm.
Internal relocation
For complementary protection, section 36(2B) provides that there is taken not to be a real risk in specified circumstances, including where it would be reasonable to relocate to an area without the real risk of significant harm.
The refugee criterion deals with geographic risk through its own statutory framework. Do not assume the wording is identical.
Protection from authorities
Complementary protection also contains a rule concerning the availability of protection from an authority of the receiving country. The refugee framework separately addresses effective protection measures.
See our guide on state protection in Protection visa cases.
Generalised violence
Section 36(2B) also addresses a risk faced by the population generally rather than the person personally. Applicants relying on conflict or widespread violence should explain why the real risk applies personally to them under the statutory test.
Build one factual chronology, then analyse both tests
An applicant should not invent separate stories for refugee and complementary protection. Prepare one accurate factual record covering identity, past harm, feared future harm, perpetrators, government response, relocation and current country conditions. Then analyse how those facts fit each legal criterion.
Evidence matters under both pathways
Personal statements, identity records, witness material, medical evidence and reliable country information can be relevant to both tests. The purpose of each document should be explained.
Family-unit criteria
Section 36 also contains criteria for certain members of the same family unit of a person who satisfies the refugee or complementary-protection criterion and holds the relevant protection visa. Family applications should therefore be assessed carefully rather than assuming each person’s legal position is identical.
For general evidence preparation, see our guide on Protection visa evidence and country information.
If you need advice about whether your circumstances engage the refugee criterion, complementary protection or both, contact Emigrate Lawyers.
Related guides: See our guides to internal relocation and state protection in Protection visa matters.
Official resource: Migration Act 1958.
This article is general information only. Protection criteria are technical and fact-specific.
Madhab Kharel
Principal Lawyer & Director, Emigrate Lawyers
Madhab Kharel is the Principal Lawyer and Director of Emigrate Lawyers, an Australian law firm assisting clients across Australia and internationally. His migration law practice includes Partner Visas, Protection Visas, visa refusals and cancellations, Administrative Review Tribunal matters, health and character issues, Schedule 3, Section 48, sponsorship limitations and employer-sponsored migration. He regularly advises clients with complex immigration histories and matters requiring detailed legal submissions and evidence strategy.
Reviewed by Madhab Kharel, Principal Lawyer
Date reviewed: 19 September 2026
