Refugee
Statutory definition
Section 36(2)(a) of the Migration Act 1958 (Cth) provides that a criterion for a protection visa is that Australia has protection obligations to the non-citizen because the non-citizen is a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. The Convention definition, in Article 1A(2), is a person outside their country of nationality who is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
Explanation
To be recognised as a refugee in Australia, a person must establish:
- They are outside their country of nationality (or, if stateless, their country of former habitual residence)
- They have a well-founded fear of persecution (an objective, reasonable likelihood — not a certainty)
- The persecution is for a Convention reason — race, religion, nationality, membership of a particular social group, or political opinion
- They are unable or unwilling to avail themselves of the protection of their home country
A successful refugee finding leads to grant of a permanent Subclass 866 Protection Visa for onshore applicants (except unauthorised maritime arrivals).
How this term is used
The refugee definition in the Convention has been extensively interpreted by Australian courts. Key cases include SZATV v Minister for Immigration (2007) 233 CLR 18 (internal relocation); NAGV v Minister for Immigration (2005) 222 CLR 161 (nexus requirement); and Applicant A v Minister for Immigration (1997) 190 CLR 225 (particular social group).