The Refugee criterion

To be found to be a refugee, a person must meet the definition of ‘refugee’. The definition includes the requirement that the person has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

Visa applications made before 16 December 2014


For protection visa applications made before 16 December 2014, the definition of ‘refugee’ in Chapter 1, Article 1 of the Refugees Convention applies.

The definition of ‘refugee’ in the Refugees Convention is supplemented by sections 91R and 91S of the Migration Act, which related to ‘Persecution’ and ‘membership of a particular social group’ respectively.

Visa applications made on or after 16 December 2014


For protection visa applications made on or after 16 December 2014, the definition of ‘refugee’ in the Refugees Convention does not apply. Instead, the following definitions in the Migration Act apply:
 

  • ‘refugee’ (section 5H)

  • ‘well-founded fear of persecution’ (section 5J)

  • ‘membership of a particular social group’ (sections 5K and 5L)

  • ‘effective protection measures’ (section 5LA)

  • ‘receiving country’ (section 5).

     

The complementary protection criterion

An applicant for a protection visa who is found not to be a refugee may nevertheless be a person to whom Australia has protection obligations on ‘complementary protection’ grounds.

‘Complementary protection’ refers to circumstances where:

there are substantial grounds for believing that, as a necessary and foreseeable consequence of a non-citizen’s removal from Australia to a receiving country, there is a real risk the non-citizen will suffer significant harm. "Section 36(2)(aa) of the Migration Act 1958 (Cth)"

The complementary protection criteria requires that the Minister for Immigration and Border Protection has substantial grounds for believing that, as a necessary and foreseeable consequence of a person being removed  from Australia to a receiving country, there is a real risk that he or she will suffer significant harm. The legislation provides that a person would suffer ‘significant harm’ if:
 

  • He or she will be arbitrarily deprived of his or her life; or

  • The death penalty will be carried out on the person; or

  • He or she will be subjected to torture; or

  • He or she will be subjected to cruel or inhuman treatment or punishment; or

  • He or she will be subjected to degrading treatment or punishment.