The Australian Government provides, in section 5H of the Migration Act 1958, its current definition of what is a ‘refugee’. Section 5H relevantly states:
Meaning of refugee
(1) For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person:
(a) in a case where the person has a nationality–is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality–is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
This wording, including a “well-founded fear of persecution”, mirrors the general international agreement on who will constitute a refugee. The 1951 Convention on the Status of Refugees utilises the following definition:
someone who is unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.
The Convention definition provides the five areas in which a person is taken to be persecuted; these are:
– Political opinion
– Membership of a particular social group [this includes ethnicity and sexuality].
These are the five bases upon which refugee claims in Australia need to be based. If a person is established as being a refugee, they will be entitled to Australia’s protection under the Convention, as enshrined in the Migration Act 1958.
The existence of temporary protection visas and other non-permanent options (such as the Safe Haven Enterprise Visa) are an unfortunate result of the position of some countries, including Australia, seeking to wriggle out of some of their international obligations to refugees. There are those who argue that by refusing refugees permanent protection Australia is breaching its obligations under the relevant international conventions.