Pursuant to the United Nations Convention relating to the Status of Refugees 1951 (‘Refugee Convention’), as amended by the 1967 Protocol (‘the Protocol’ ), Australia offers different types of protection to non-citizens within Australia who can prove that they are a refugee.
Generally, Australia has an obligation to provide protection to refugees within its territory, and not to return those people to a place where their lives / freedoms would be threatened on the basis of their race, religion, nationality, membership of a particular social group, or political opinion.
Australia also offers ‘Complementary Protection’ to non-citizens within Australia who do not meet the definition of refugee, but can demonstrate that they will suffer ‘significant harm’ if they are removed from Australia.
What is a refugee?
Refugee — is a person “owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his or her habitual residence, is unable, or, owing to such fear, is unwilling to return to it.”(Article 1A(2) of the Refugee Convention)
Therefore, in order to obtain a refugee status, you must prove that you have a well founded fear of being persecuted and the persecution feared is because of your:
- race, religion, nationality, membership of a particular social group or political opinion; and
- you are:
- outside your country of nationality and unable or unwilling (due to the fear of persecution), to avail yourself of the protection of that country; or
- without a nationality and outside your country of former habitual residence and unable or
- unwilling (due to their fear of persecution), to return to that country.
IMPRANT! On 29th June 2015 the Australian Government has made a number of changes to Australia’s processes for assessing asylum claims, including shifting the burden of proof on to asylum seekers, removing the references to the Refugee Convention from Australia’s migration legislation, removing the reasonableness test from consideration of relocation options for people facing persecution, requiring the Administrative Appeals Tribunal to draw unfavourable inferences about the credibility of refugee claims in some circumstances and creating new grounds to deny Protection visas to people who provide false identity documents.
Thus, well founded fear of persecution due to race, religion, nationality, membership of a particular social group or political opinion is the basis of the new definition of a ‘refuge’.
One of the stated bases for persecution must be essential and the significant reason for persecution
The applicant cannot return to any part of their home country for fear of this persecution
The persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory’ conduct
The definition uses the context of what is occurring ‘today’ in the home country to assess the risk to applicants or membership of particular social group:
Can be members of the same family – a member of the family unit is exposed to the persecution
Each member of the particular social group share the characteristics and it is intrinsic and so fundamental to their identity, that it cannot or should not be forced to be changed.
Distinguishes the group from the rest of society
Cannot be a fear of persecution alone.
‘Serious harm’ is defined as:
- Threat to life or liberty;
- Significant physical harassment or ill-treatment of the person;
- Significant economic hardship that threatens ability to subsist;
- Denial of access to basic services that threatens ability to subsist;
- Denial of capacity to earn a livelihood of any kin and threatens capacity to subsist.
The ‘complementary protection’ definition of a ‘significant harm’ includes:
- Arbitrary denial of life;
- Death penalty to be carried out;
- Cruel or inhumane treatment or punishment;
- Degrading treatment or punishment.
This page provides a summary information on March 2017. Australian immigration law is complex and it changes on a regular basis. If you have any additional questions or require further clarification, please, do not hesitate and contact me regarding this matter and, if appropriate, to arrange a mutually convenient time for an appointment.
Viktor Ovcharenko MARN 0964258