the refugee definition
The 1951 Refugee Convention defines who is a ‘refugee’ under international law. According to the 1951 Convention, a refugee is a person who is outside their country of origin and has a well-founded fear of persecution. Persecution must be on specific grounds; because of the person’s race, religion, nationality, political opinion or membership of a particular social group.
The 1951 Convention also defines who is not entitled to international protection. For example, the refugee definition excludes people suspected of committed a war crime or a crime against humanity.
The key elements of the refugee definition from the 1951 Convention are mirrored in Australia’s Migration Act 1958 (Cth). Australia’s legislation defines a refugee as a person who is outside their country of origin and is unable or unwilling to return because of a well-founded fear of persecution. This fear of persecution must relate to one of the grounds articulated in the 1951 Convention.
Key Elements
Outside the country of nationality or habitual residence
This requirement means a refugee must have fled their country of nationality or habitual residence to seek asylum. A person may fear persecution in their home country, but they will not be recognised as a refugee unless they have crossed an international border.
Well-founded fear of persecution
Well-founded fear of persecution is one of the most contentious elements of the refugee definition and is defined in greater detail in Australia’s Migration Act than in the 1951 Convention.
To satisfy the test for well-founded fear, there must be a risk of persecution, and the asylum seeker must fear persecution. According to the Migration Act, a fear of being persecuted is well-founded if there is a ‘real chance’ of being persecuted, which means that there is a substantial likelihood of harm, rather than an unrealistic possibility.
The risk of persecution must relate to all areas of the country. To determine whether there is a real chance of persecution, decision-makers rely on current information about the country.
Persecution is not defined in the 1951 Convention or in Australian law. Leading experts define persecution as ‘the sustained or systemic denial of basic human rights demonstrative of a failure of state protection’. This may be a threat to someone’s life or liberty, significant physical harassment, significant economic hardship that threatens their capacity to survive or discriminatory denial of access to basic services.
Convention grounds
The fear of persecution must have a direct nexus with the asylum seeker’s race, religion, nationality, political opinion or membership of a particular social group. Membership of a particular social group has been the most difficult and controversial element to define. A particular social group, according to the Migration Act, is a collection of persons who share a certain characteristic or element which unites them and is fundamental to their identity, but it is not normally the fear of persecution itself. Some examples of particular social groups may be divorced women or LGBTIQA+ individuals in the country of origin.
Unable or unwilling to return and seek protection from the State
Finally, a refugee is someone who is unable or unwilling to return to their country of nationality or habitual residence and they cannot seek protection from the state. A person may fear persecution for one of the Convention grounds and satisfy the other elements of the definition, but they may not be recognised as a refugee if effective protection measures are available to them in their home country. Effective protection measures include protection that the person can access and is durable. This element is designed to limit refugeehood to those most in need of international protection.
Complementary protection in Australia
The refugee definition in the Migration Act has been complemented by other provisions which provide protection for asylum seekers who do not meet the refugee definition, but nevertheless cannot be returned to their country of origin. Since 2012, the Migration Act has recognised that asylum seekers may be owed complementary protection where there is a real risk that they may face serious harm such as the death penalty, torture, or be exposed to cruel, inhuman or degrading treatment. Complementary protection provisions give effect to Australia’s international obligations under other international human rights treaties.
Once an asylum seeker has been determined to be a refugee or in need of complimentary protection, protection visas are the mechanism by which Australia can offer protection for that individual.
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Last updated 2 April 2023