Book contents
- Frontmatter
- Contents
- Table of cases
- Table of statutes
- Preface to the second edition
- Acknowledgments
- 1 Historical context to migration
- 2 Immigration control: an overview
- 3 Basic migration legislation and policy
- 4 The visa system and application procedures
- 5 Family and interdependency migration and other Australia-based visas
- 6 Business and investment visas
- 7 Skill-based visas
- 8 Temporary visas
- 9 Miscellaneous visas
- 10 Common visa requirements
- 11 Compliance: unlawful non-citizens, removal and deportation
- 12 History of the refugees convention and definitional framework
- 13 Refugee and humanitarian visas: the statutory structure
- 14 Convention grounds
- 15 Persecution
- 16 Well-founded fear of persecution
- 17 Limits on protection of refugees – cessation, exclusion exceptions and protection by another country
- 18 Time for a fundamental re-think: need as the criterion for assistance
- 19 The determination and review process for migration and refugee decisions
- Index
14 - Convention grounds
Published online by Cambridge University Press: 05 June 2012
- Frontmatter
- Contents
- Table of cases
- Table of statutes
- Preface to the second edition
- Acknowledgments
- 1 Historical context to migration
- 2 Immigration control: an overview
- 3 Basic migration legislation and policy
- 4 The visa system and application procedures
- 5 Family and interdependency migration and other Australia-based visas
- 6 Business and investment visas
- 7 Skill-based visas
- 8 Temporary visas
- 9 Miscellaneous visas
- 10 Common visa requirements
- 11 Compliance: unlawful non-citizens, removal and deportation
- 12 History of the refugees convention and definitional framework
- 13 Refugee and humanitarian visas: the statutory structure
- 14 Convention grounds
- 15 Persecution
- 16 Well-founded fear of persecution
- 17 Limits on protection of refugees – cessation, exclusion exceptions and protection by another country
- 18 Time for a fundamental re-think: need as the criterion for assistance
- 19 The determination and review process for migration and refugee decisions
- Index
Summary
Overview of grounds
Article 1A(2) of the Refugee Convention defines a refugee in terms of the reasons why a person fears being persecuted. A refugee must have a well-founded fear of being persecuted ‘for reasons of race, religion, nationality, membership of a particular social group, or political opinion’. After referring to Article 1 of the Convention, Gummow J explained in Applicant A v MIEA:
… [w]hilst as a matter of ordinary usage, a refugee might be one whose flight has been from invasion, earthquake, flood, famine or pestilence, the definition is not concerned with such persons. Accordingly, care is needed in resolving any apparent obscurity in the text of the definition by seeing the definition as reflecting, in a broad sense, humanitarian concerns for displaced persons.
Kirby J commented in the same case that the drafters of the Convention would not have included ‘categories of persecution’ in Article 1A(2) had they intended refugees to be defined as people who feared persecution for any reason.
In MIMA v Ibrahim, the High Court considered the meaning of ‘persecution’ in the context of the civil war that had prevailed in Somalia since 1991. In his discussion of the scope and purpose of the Convention, Gummow J cited observations made by Professor Hathaway on the restricted definition of ‘refugee’ contained in the Convention:
This phraseology was clearly adequate to comprise the traditional preoccupations of racial and religious minorities and would moreover bolster the condemnation of Soviet bloc politics through international law in two ways. First, the persecution standard was a known quantity, having already been employed to embrace Soviet bloc dissidents under the [International Refugee Organization] regime.[…]
- Type
- Chapter
- Information
- Migration and Refugee LawPrinciples and Practice in Australia, pp. 187 - 216Publisher: Cambridge University PressPrint publication year: 2008