The meaning of refugee
To be a refugee in Australia, an asylum seeker must be assessed as meeting certain legal criteria. The meaning of a 'refugee' in the Migration Act 1958 (the Act) is a person in Australia who is:
- outside their country of nationality or former habitual residence (their home country) and
- owing to a 'well-founded fear of persecution', is unable or unwilling to return to their home country or to seek the protection of that country
The definition is forward-looking. Even if a person has suffered persecution in the past, they are not a refugee by the meaning in the Act unless they have a well-founded fear of persecution
and there is a real chance they will be persecuted in their home country
now, if they were to return. However, past events could establish a real chance of persecution if the person were to return.
A person might become a refugee after arriving in Australia. This could occur if there is a change of circumstances in their home country or a change in personal circumstances after they left that gives them a well-founded fear of persecution if they were to return.
Well-founded fear of persecution
The Act states that a person has a well-founded fear of persecution if:
- they fear persecution for at least one of five reasons specified in the Act
- there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
- the real chance of persecution relates to all areas of their home country
- at least one of the five reasons is the essential and significant reason for the persecution
- the persecution involves both 'serious harm' to the person and 'systematic and discriminatory conduct'.
The five reasons
To have a well-founded fear of persecution, a person must fear serious harm because of their:
- membership of a particular social group, or
- political opinion.
A person who leaves their home country for reasons of war, famine or because they are seeking better economic opportunities might not be a refugee according to the definition in the Act. They must have a well-founded fear of persecution for one of the above reasons to be a refugee and must meet other requirements.
Particular social group
There are two types of particular social groups described in the Act. One provides criteria to be met if a person claims to have a well-founded fear of persecution because they are a member of a particular social group that consists of their family. The other type provides that a person is to be treated as a member of a particular social group if:
- each member of the group shares a characteristic
- the person shares, or is perceived as sharing, the characteristic
- any of the following apply:
- the characteristic is innate or immutable (cannot be changed)
- the characteristic is so fundamental to a person's identity or conscience, they should not be forced to renounce it (go against it); or
- the characteristic distinguishes the group from the rest of society; and
- the characteristic is not a fear of persecution.
To have a well-founded fear of persecution, the persecution feared must involve serious harm to the person. Serious harm includes, but is not limited to:
- a threat to the person's life or liberty
- significant physical harassment of the person
- significant physical ill treatment of the person
- significant economic hardship that threatens the person's capacity to subsist (ability to survive)
- denial of access to basic services, where the denial threatens the person's capacity to subsist (ability to survive)
- denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist (ability to survive).
Systematic and discriminatory conduct
To have a well-founded fear of persecution, the persecution feared must also involve systematic and discriminatory conduct.
- Systematic means the harm is not random or generalised, but is targeted against the person.
- Discriminatory means the conduct of the persecutor affects the person or members of a group in a way that singles that person or a group out from the rest of the community.
This means that if the serious harm feared by the person is not directed at them or a group to which they belong, for one of the five reasons above, the person does not have a well-founded fear of persecution and will not be a refugee.
Real chance of persecution
For the fear of persecution to be well founded, there must be a 'real chance' that the persecution would happen in the reasonably foreseeable future if the person was to return to their home country. Real chance means that the fear of persecution is not remote or far-fetched.
If there is a place in their home country where the person can live without a well-founded fear of persecution, they will not be a refugee. However, they must be able to safely and legally access that place.
Seeking protection from authorities in their home country
If the government or other parties that control all or a large part of the person's home country is willing and able to offer effective protection to the person, they might not meet the definition of refugee. However, the person must be able to access the protection and the protection must be of a durable nature (provided on an ongoing basis). If the protection is able to be provided by the government, the protection must also include an appropriate criminal law, a reasonably effective police force and an impartial judicial system. If this protection is able to be provided, the person does not have a well-founded fear of persecution and will not be a refugee.
A right to enter and reside in another country
If a person has a right to enter and reside in another country in which they do not fear persecution or significant harm, they must take all possible steps to exercise that right. If they do not, they might not be a refugee.
According to the Act, a person does not have a well-founded fear of persecution if they can take reasonable steps to modify their behaviour so as to avoid a real chance of persecution in their home country. However, this would not be the case if such a change would:
- conflict with a characteristic that is fundamental to the person's identity or conscience
- require the person to conceal or hide a characteristic that is innate or immutable (one that they could not change), or
- require the person to:
- change their religious beliefs, including by renouncing a religious conversion, or conceal their true religious beliefs, or cease to be involved in the practice of their faith
- conceal their true race, ethnicity, nationality or country of origin
- change their political beliefs or conceal their true political beliefs
- conceal a physical, psychological or intellectual disability
- enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child
- alter their sexual orientation or gender identity or conceal their true sexual orientation, gender identity or intersex status.
A person who has been assessed to be a refugee by the meaning in the Act can only be granted a protection visa if they also meet other requirements, such as health, security and character checks.
A person is not considered a refugee, even if they meet all the other criteria, if there are serious reasons for considering that they have:
- committed a crime against peace, a war crime, or a crime against humanity
- committed a serious, non-political crime before they entered Australia, or
- been guilty of acts contrary to the purposes and principles of the United Nations.
In addition, a refugee will not be granted a protection visa if they are considered, on reasonable grounds, to:
- be a danger to Australia's security, or
- having been convicted of a particularly serious crime, are a danger to the Australian community.
If a person is assessed to be a refugee but does not meet other criteria for the grant of a protection visa, we will not return them to their home country if it would breach Australia's protection obligations. Other options will be considered to resolve the person's status.
Complementary protection is protection for those who are not refugees according to the Act, but who can't 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) and have been incorporated into the Act.
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 is different to serious harm. It is defined as:
- arbitrary deprivation of life
- the death penalty
- 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.