Commonwealth Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Next] [Download] [Help]

MIGRATION ACT 1958 - SECT 5J

Meaning of well-founded fear of persecution

             (1)  For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

                     (a)  the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

                     (b)  there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

                     (c)  the real chance of persecution relates to all areas of a receiving country.

Note:          For membership of a particular social group, see sections 5K and 5L.

             (2)  A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:          For effective protection measures, see section 5LA.

             (3)  A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

                     (a)  conflict with a characteristic that is fundamental to the person's identity or conscience; or

                     (b)  conceal an innate or immutable characteristic of the person; or

                     (c)  without limiting paragraph (a) or (b), require the person to do any of the following:

                              (i)  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;

                             (ii)  conceal his or her true race, ethnicity, nationality or country of origin;

                            (iii)  alter his or her political beliefs or conceal his or her true political beliefs;

                            (iv)  conceal a physical, psychological or intellectual disability;

                             (v)  enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

                            (vi)  alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

             (4)  If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

                     (a)  that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

                     (b)  the persecution must involve serious harm to the person; and

                     (c)  the persecution must involve systematic and discriminatory conduct.

             (5)  Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

                     (a)  a threat to the person's life or liberty;

                     (b)  significant physical harassment of the person;

                     (c)  significant physical ill-treatment of the person;

                     (d)  significant economic hardship that threatens the person's capacity to subsist;

                     (e)  denial of access to basic services, where the denial threatens the person's capacity to subsist;

                      (f)  denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist.

             (6)  In determining whether the person has a well-founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback