The Migration Act 1958 (Cth) provides the meaning of refugee, and also defines the following terms:
- “Refugee,”
- “Well-founded fear of persecution,”
- “Membership of a particular social group consisting of family,” and
- “membership of a particular social group other than family.”
It is important to define terms because they determine who is eligible for protection under the Act. In a world where people face persecution for their race, religion, nationality, political opinion, or membership in a particular social group, these definitions are essential to ensuring that those fleeing persecution can find safety in Australia.
In this article, we will explore the definitions in sections 5H to 5L of the Migration Act and discuss the role of lawyers in helping asylum seekers understand their rights under the Act.
Section 5H: Meaning of Refugee
Who is a refugee? The Migration Act 1958 enumerates under Section 5H the instances when a person can be classified as a ‘refugee’:
- In a case where the person has a nationality:
- that person is outside the country of his or her nationality;
- that person has a well-founded fear of persecution, and they are unable or unwilling to avail themselves of the protection of that country.
- In a case where the person does not have a nationality:
- that person is outside the country of their former habitual residence;
- that person has a well-founded fear of persecution and is unable or unwilling to return to it.
However, the law does not classify all persons under this Section as if the Minister has serious reasons for considering that:
- The person has committed the following:
- a crime against peace
- a war crime
- a crime against humanity.
- The person committed a serious non-political crime before entering Australia.
- The person has been guilty of acts contrary to the purposes and principles of the United Nations.
Section 5J: Meaning of Well-Founded Fear of Persecution
What does ‘well-founded fear of persecution mean?’ While Section 5H discusses the meaning of refugee, Section 5J pertains to a well-founded fear of persecution as a “reasonable fear in the circumstances.” This means the person must have a genuine and objective fear of facing persecution if they return to their home country.
Section 5J of the Act mainly defines this phrase in the following manner. A person has a well-founded fear of persecution if:
- The person fears persecution for race, religion, nationality, membership of a particular social group, or political opinion.
- There is a real chance that if the person returns to the receiving country, the person will face persecution for one or more of the reasons above.
- The real chance of persecution relates to all areas of a receiving country.
Moreover, the section requires that if a person fears persecution for one or more of the reasons above-mentioned:
- that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons for the persecution; and
- the persecution must involve serious harm to the person; and
- the persecution must involve systematic and discriminatory conduct.
What Are the Instances of Serious Harm?
This section enumerates the instances of ‘serious harm.’ The following are the instances:
- a threat to the person’s life or liberty;
- significant physical harassment of the person;
- significant physical ill-treatment of the person;
- significant economic hardship that threatens the person’s capacity to subsist;
- denial of access to basic services, where the denial threatens the person’s capacity to subsist;
- denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
When Is a Person Not Considered To Have a Well-Founded Fear of Persecution?
A person does not have a well-founded fear of persecution in the following instances:
- If effective protection measures are available to the person in a receiving country.
- If the person could take reasonable steps to modify their behaviour to avoid a real chance of persecution in a receiving country, other than a modification that would:
- conflict with a characteristic that is fundamental to the person’s identity or conscience; or
- conceal an innate or immutable characteristic of the person; or
- require the person to do any of the following:
- alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
- conceal his or her true race, ethnicity, nationality, or country of origin;
- alter his or her political beliefs or conceal his or her true political beliefs;
- conceal a physical, psychological, or intellectual disability;
- enter into or remain in a marriage to which that person is opposed or accept the forced marriage of a child;
- alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity, or intersex status.
Section 5K: Membership of a Particular Social Group Consisting of Family
Section 5K defines membership of a particular social group consisting of family as a person who is a member of a family group that is persecuted as a unit. This includes families that are persecuted because of the political activities of a family member, or because of the family’s race, religion, nationality, or membership in a particular social group.
Furthermore, this section explains how to determine if a person has a reasonable fear of being persecuted because they are a member of a social group that includes the person’s family. These are the steps for such determination:
- In cases where the cause of the fear or persecution is not one of the reasons listed in Section 5J, disregard any fear of persecution or any persecution that any other current or previous members of the family, whether alive or dead, have ever faced.
- Disregard any fear of persecution or any persecution, that:
- the first person has ever experienced; or
- any other member or former member, whether alive or dead, of the family has ever experienced.
Section 5L: Membership of a Particular Social Group Other Than Family
When is the person – who is a refugee – treated as a member of a social group? Section 5L says that the person is to be treated as a member of a particular social group other than the person’s family if:
- each member of the group shares a characteristic; and
- the person shares, or is perceived as sharing the characteristic; and
- the characteristic is an innate or immutable characteristic; and
- the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it; and
- the characteristic distinguishes the group from society; and
- the characteristic is not a fear of persecution.
Seeking Legal Help from Migration Lawyers
Lawyers play an important role in migration matters. Here are some of the specific roles that lawyers can play in relation to sections 5H to 5L:
- Advising asylum seekers on their rights under the Act. Lawyers can help asylum seekers to understand the definition of a refugee, the meaning of a well-founded fear of persecution, and the criteria for membership of a particular social group.
- Representing asylum seekers in court. If an asylum seeker’s claim for protection is challenged, a lawyer can represent them in court. Lawyers can help asylum seekers to present their case to the court, and they can argue for the interpretation of the Act that is most favourable to their client.
- Challenging the interpretation of the Act. Lawyers can also challenge the interpretation of the Act in court. This can be done by filing a case in the High Court or by submitting an amicus curiae (friend to the court) brief to the court.
JB Solicitors has a team of migration lawyers who can assist applicants to navigate the complex legal system in Australia. We can advise parties on their rights under the Migration Act, and represent them in court if their claims are challenged.
Contact us today.
