The Refugee Convention

On this page we have tried to simplify the Refugee Convention definition and we have broken down the definition of who a refugee is into 9 main parts. These 9 parts include the main things that are considered under Australian law to decide whether or not someone is a refugee and whether they will be given protection in Australia. When you ask for asylum in Australia you do this by applying for a Protection visa to the Department of Immigration and Citizenship. The person who decides your case at the Department of Immigration will decide whether or not they think you are a refugee. If they think that you are a refugee then they can give you a Protection visa to stay in Australia. Click here for the Convention and Protocol Relating to the Status of Refugees.

We hope that this information will help you to understand whether your situation makes you a refugee, but we recommend that you get advice from a registered migration agent to help you decide whether or not you are a refugee and whether or not to apply for protection. You can find information about how a registered migration agent can help you here.

9 Considerations to decide if you are a Refugee

To be a refugee who is given protection, ALL of the things below must apply personally to you and your situation. Please click on each of the headings below to find out more information about each part of the test which is applied in Australia to decide if someone is a refugee.

1. I am outside my home country

You can only apply to be a refugee if you are outside your home country. If you are in Australia and you are not from Australia, then your situation will meet this part of the definition.

2. I am afraid to go home

To be a refugee you must be afraid to go back to your home country.

3. I am afraid that if I go home I will face persecution

Persecution is “serious harm”. This means that you must be afraid that if you go home you will suffer serious physical or mental harm. Examples of serious harm are: unlawful arrest; unlawful imprisonment; torture; execution or deprivation of liberties.

4. I am afraid that I will be persecuted

To be found to be a refugee you must be afraid that if you go home you will be persecuted for one of five reasons described in the Refugee Convention. If you are afraid for another reason that is not in the Refugee Convention then you are not a refugee.

Race

If you are afraid that you will be persecuted because of your race in your home country, this is one of the 5 convention reasons and it does fit the refugee convention definition. Examples of being persecuted for your race include being harmed because you belong to a particular ethnic group who are targeted in your country.

Religion

If you are afraid that you will be persecuted because of your religion in your home country then this is one of the 5 convention reasons and fits into the refugee convention definition. Examples of being persecuted because of your religion include not being allowed to practice your religion freely in your country or being targeted because you converted from one religion to another.

Political opinion

If you are afraid that you will be persecuted because of your political opinion in your home country then this is one of the 5 convention reasons and fits into the refugee convention definition. An example of being persecuted because of your political opinion is if you are targeted in your home country because you are a member of a particular political party.

Nationality

If you are afraid that you will be persecuted in your home country because of your nationality then this is one of the 5 convention reasons and fits into the refugee convention definition. An example of being persecuted because of your nationality is if you are targeted in your home country because you come from a particular country.

Membership of a social group

If you are afraid that you will be persecuted because you are a member of a particular social group in your home country then this is one of the 5 convention reasons and fits into the refugee convention definition. A particular social group is an identifiable group of people who have some shared characteristic, attribute, activity, belief, interest, goal or aim and that is different from the rest of society. However the shared characteristic that people have in common cannot just be a shared fear of persecution. An example of a social group that meets the convention definition is “homosexual men in Ethiopia” because they have a shared set of characteristics and experiences that sets them apart from the rest of the society they live in. Other examples are: “Journalists in Sri Lanka” or “Academics in Iraq” or “Women in Afghanistan”.

If you are at risk only because of general violence in your community or because your country is at war – then you may not be a refugee. To be found to be a refugee you must be able to show that you personally will be specifically targeted for one of the 5 convention reasons listed above.

5. My fear of persecution is well founded

Even if you are afraid to go back home there must be a factual basis for your fear about returning home. It is not enough to be afraid to return. The reasons for your fear of going home should be supported by independent information about your country of origin. The stories about what has happened to you in your country in the past can be important to show that your fear is well founded, but you must also be able explain and prove why you are at risk of persecution if you go home now.

6. I cannot safely relocate to another part of my home country

If you can easily move from your village, community, town or city to another part of your home country to find safety it will be difficult to prove you are a refugee. You need to be able to show that you cannot easily move and find protection in any part of your home country to be a refugee from you home country.

7. The government in my home country cannot protect me

To be found to be a refugee you must be able to show that the government in your home country is unwilling or unable to protect. This includes the police and the military in your country.

8. I do not have a right to go and live in a safe third country

If you have a legal right to enter or remain in any country other than Australia and your home country – then this may affect your ability to apply for protection. If you can go to another country, other than Australia, and be safe from harm – and you have a visa or some other way to stay there permanently – then Australia will usually not grant you protection to stay in Australia.

9. I have not committed a war crime or any other serious crime

Even if your situation meets all the other parts of the definition of who a refugee is and you are a refugee according to the Refugee Convention definition, you can be excluded from protection in Australia if you have committed a war crime or other serious crime.

You can click on the video below to hear an explanation of the Refugee Convention definition. This video also explains what you have to be able to show to be found to be a refugee in Australia. We hope that if you watch this video it will help you to understand whether your situation fits the Refugee Convention definition and the Australian law about who can be accepted as a refugee in Australia.

Asylum Explained