Definition of a Refugee

To engage in Australia’s protection obligations you need to be a refugee.

To be a refugee in Australia, an asylum seeker must be assessed as meeting certain legal criteria. The meaning of a ‘refugee’ in the Migration Act 1958 (the Act) is a person in Australia who is:
  • outside their country of nationality or former habitual residence (their home country); and
  • owing to a ‘well-founded fear of persecution‘, is unable or unwilling to return to their home country or to seek the protection of that country
The definition is forward-looking. Even if a person has suffered persecution in the past, they are not a refugee by the meaning in the Act unless they have a well-founded fear of persecution and there is a real chance they will be persecuted in their home country now, if they were to return. However, past events could establish a real chance of persecution if the person were to return.
A person might become a refugee after arriving in Australia. This could occur if there is a change of circumstances in their home country or a change in personal circumstances after they left that gives them a well-founded fear of persecution if they were to return.

Well-founded fear of persecution

The Act states that a person has a well-founded fear of persecution if:
  1. they fear persecution for at least one of five reasons specified in the Act
  2. there is a real chance that, if the person returns to their home country, they would be persecuted for one or more of those reasons
  3. the real chance of persecution relates to all areas of their home country
  4. at least one of the five reasons is the essential and significant reason for the persecution
  5. the persecution involves both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’.

The five reasons

To have a well-founded fear of persecution, a person must fear serious harm because of their:
  • race
  • religion
  • nationality
  • membership of a particular social group, or
  • political opinion.
A person who leaves their home country for reasons of war, famine or because they are seeking better economic opportunities might not be a refugee according to the definition in the Act. They must have a well-founded fear of persecution for one of the above reasons to be a refugee and must meet other requirements.
This is a complex visa with many steps, including an interview with the DHA, completing several forms and more. If you wish to book and appointment with one of our Registered Migration Agents, please call Gold Migration Lawyers on 1300 320 300 today.
This article does not constitute legal advice or create a Migration Agent-Client relationship. Please consult a Registered Migration Agent for up-to-date information.
Relevant Links
  • For the information of eligibility for a Protection Visa, please click here
  • For the FY2020 Protection Visa Statistical Breakdown, please click here