Exclusion clause (refugee law)
Statutory definition
Section 5H(2) of the Migration Act 1958 (Cth) provides that a person is not a refugee if there are serious reasons to consider that the person has committed a crime against peace, a war crime, or a crime against humanity; a serious non-political crime outside Australia before entering Australia; or acts contrary to the purposes and principles of the United Nations. These grounds correspond to Art 1F(a), (b), and (c) of the Refugee Convention.
Explanation
The exclusion clauses operate as an absolute bar to refugee status — they cannot be outweighed by the severity of any harm the person might face on return. Where the exclusion clauses apply, the person also loses the benefit of non-refoulement under Art 33 of the Refugee Convention (though separate non-refoulement obligations under the CAT and ICCPR may still apply). The "serious reasons to consider" standard is lower than the criminal law standard of proof beyond reasonable doubt. In practice, exclusion is assessed during the protection visa process and is subject to review by the ART.