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15 - Persecution

Published online by Cambridge University Press:  05 June 2012

Mirko Bagaric
Affiliation:
Deakin University, Victoria
Athula Pathinayake
Affiliation:
Deakin University, Victoria
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Summary

Overview of persecution

As noted in Chapter 11, in order to qualify for refugee status, the harm feared by a claimant must constitute ‘persecution’. This renders the notion of ‘persecution’ central to the concept of a refugee.

The term ‘persecution’ derives from the Latin persequi, which means ‘to follow with hostile intent, or pursue’. The Convention drafters deliberately did not define the term ‘persecution’ with any degree of exactness, to ensure that the concept could be applied to new situations. To judge if a person has suffered, or is at risk of suffering, persecution under the Convention, the severity of the harm and the importance of the right affected are measured on quantitative and qualitative levels. Although the level of severity of harm must generally be high, it may vary depending on the importance of the relevant human right. As is noted by the UNHCR, ‘there is no universally accepted definition of “persecution”, and various attempts to formulate such a definition have met with little success’. Thus states have a wide discretion in interpreting the term. This has resulted in numerous irreconcilable decisions regarding its meaning. Goodwin-Gill has commented in relation to the concept of persecution that ‘practice reveals no coherent or consistent jurisprudence’.

Type
Chapter
Information
Migration and Refugee Law
Principles and Practice in Australia
, pp. 222 - 256
Publisher: Cambridge University Press
Print publication year: 2011

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