This article was written by Tanguy Mwilambwe - National Practice Director - Brisbane

Tanguy is the National Practice Director in the areas of Administrative Law and Immigration Law. He is able to assist clients in court matters throughout most Australian jurisdictions, in relation to Administrative and Immigration decisions. Tanguy has appeared in the Administrative Appeals Tribunal, Federal Circuit Court of Australia, Federal Court of Australia, state courts (including Supreme, District and Magistrates Courts)...

What Is A Refugee?


The 1951 Convention relating to the Status of Refugees, known as the Refugee Convention, provides the most widely accepted legal definition of a refugee.

“Any person who owing to a 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/her nationality and is unable, or owing to such fear, is unwilling to avail himself/herself of the protection of that country.”

What is the Refugee Convention?

This international treaty was drafted in the wake of World War II, when millions of people were displaced across Europe. A 1967 Protocol removed the Convention’s temporal and geographical restrictions, and it now applies to refugees all over the world.

Australia ratified the Convention in 1954 and the Protocol in 1973, which means it has committed to treating refugees in accordance with internationally recognised legal and humanitarian standards, and to share global responsibility for protecting refugees.

What is persecution?

The Convention does not define persecution, but at a minimum it encompasses a threat to life or freedom based on a person’s characteristic. A decision-maker is required to assess whether there is a “real chance” of persecution by examining the conditions of the person’s country of origin and their particular circumstances.

Section 5J of the Migration Act 1958 sets out the elements that must be met in Australia for a person to demonstrate a well-founded fear of persecution.

The asylum seeker must show that the key reason for their persecution is their race, religion, nationality, political opinion or membership of a particular social group, that it involves systematic or discriminatory conduct, and that it involves serious harm. Serious harm can include:

  • a threat to life or freedom
  • significant physical harassment or ill-treatment
  • significant economic hardship that threatens the person’s capacity to subsist, caused by such factors as denial of access to basic services or capacity to earn a livelihood.

Complementary protection

A person may be at serious risk of harm but not satisfy the definition of a refugee under the five Convention grounds.

International human rights law forbids countries from sending people to where they face a real risk of serious harm. In this way, it offers “complementary” protection.

Complementary protection has operated in Australia law since 2012.

Section 36(2A) of the Act provides complementary protection to asylum seekers, by stating Australia is not permitted to remove people to places where the face a real risk of one or more of:

  • arbitrary deprivation of life
  • the death penalty
  • cruel or inhuman treatment or punishment
  • degrading treatment or punishment

There are exceptions to complementary protection.

Section 36(2B) states a person is ineligible for complementary protection if:

  • it would be reasonable for them to relocate to another country
  • they can gain protection from authorities in the country
  • the real risk is one faced by the general population and not faced by the non-citizen personally

Section 36(2C) states complementary protection does not apply, if the person has:

  • committed a crime against peace, a war crime or a crime against humanity
  • committed a serious non-political crime before entering Australia
  • been guilty of acts contrary to the purposes and principles of the United Nations

These grounds for exemption also apply to Convention refugees.

In addition, the Act allows the Minister to deny protection to anyone they reasonably consider to be:

Non-refoulement

The cornerstone of refugee protection is the right not be sent back to any country where the refugee’s life or freedom would be threatened on at least one of the five Convention grounds. This is the principle of non-refoulement.

Refugee Status Determination (RSD) in Australia

Australia’s Refugee and Humanitarian Program comprises an onshore and an offshore component.

Onshore protection is available to asylum seekers who arrived on a valid visa. They can apply for a permanent protection visa which allows them to work and live in Australia as permanent residents. It excludes those who arrive by boat or without a valid visa.

The key steps in the RSD process are:

  1. Application is lodged with the Department of Home Affairs
  2. Departmental officer decides the application
  3. If refused, the asylum seeker can apply for a merits review in the Migration and Refugee Division of the Administrative Appeals Tribunal
  4. If the refusal is upheld, the asylum seeker can apply to the Federal Circuit Court, Federal Court, or High Court, for judicial review
  5. As a last resort, the asylum seeker can request the Minister personally intervene to grant a visa

Asylum-seekers who arrive in Australia without a valid visa cannot apply for permanent protection in Australia. They are restricted to applying for either a three-year Temporary Protection Visa or a five-year Save Haven Enterprise Visa, and are barred from reuniting with families.

Offshore protection comprises three categories: Refugee, Special Humanitarian, and Community Support Program. In the Refugee category are people in other countries who have been assessed as refugees by the United Nations High Commissioner for Refugees and referred to Australia for resettlement. The Special Humanitarian and Community Support Program categories apply to those who have support from people in Australia to resettle.

For help, advice or representation in any legal matter, contact Armstrong Legal.

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