Publish Date: May 01, 2014
As a signatory to the Refugees Convention (the Convention), Australia has certain protection obligations towards refugees which is reflected under numerous provisions that can be found within the Migration Act 1958 (Cth) (the Act). In order for a person to be seen as a ‘refugee’ under Australian law, there are a number of factors which are taken into account when making a determination of who may be considered as a refugee.
Who is a refugee under international law?
Turning to Article 1A of the Convention, a refugee is anyone who:
“[O]wing to 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 former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
Who is a refugee under Australian law?
There is no explicit definition of who is a ‘refugee’ under the Act, however, the laws do recognise that Australia has an obligation to protect refugees under the Convention by offering a Protection visa to any person who has reached Australia.
It should be noted that the Act does specify other instances where a person may have not reached Australia, but have been found to be a refugee suffering from real humanitarian concerns and in such an instance, a number of other visa options are available.
The definition of ‘persecution’ under the Migration Act
Although ‘refugee’ isn’t defined in the Act, guidance of who may be considered as a refugee can be found in other sections, such as 91R which provides a person faces serious harm if:
However, when looking at s 91R, particular attention should be paid to s 91R(3) as well due to the fact that the decision maker is to disregard conduct engaged by the applicant to further their refugee claim while in Australia. The subsection is often referred to as the sur place claim exclusion, and if we look to the 2001 Explanatory Memorandum, the provision was designed to maintain (per the discussion in Minister for Immigration and Citizenship v SZJGV  HCA 40):
“[T]he integrity of Australia's protection process by ensuring that a protection applicant cannot generate sur place claims by deliberately creating circumstances to strengthen his or her claim for refugee status.”
In addition to subsection s 91R(3), s 91S of the Act also clarifies circumstances where a person can or cannot invoke the notion of membership of a particular social group.