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19/07/13

The definition of Refugee is found under Article 1A (2) of the UN Convention Relating to the Status of Refugees 1951. It states that a ‘refugee’ is someone who "owes well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country." This can be seen as a very broad definition which could perhaps lead to high numbers of cases in the area of refugee law, but every phrase of this definition has now been thoroughly examined in the courts worldwide.   

The first element requires “Well-founded fear” to be established. In the case of Adan, the court held that the fear must be operative cause of fleeing from the country of origin. In order to determine fear both subjective and objectives elements should be considered.  The subjective element includes one’s personal circumstances, experience and personality as it holds significance towards their psychological reactions. Conversely, objective aspect requires ‘real risk’ or a ‘reasonable degree of likelihood’ that such fear will actually occur. The claimant may find it challenging to satisfy this condition as it involves documentary evidence and witnesses, this may require the Government of their country of origin to cooperate but it expected that they will not be willing to do this.    

Once fear is recognised, the applicant must prove the likelihood of being persecuted again after returning back to their country of origin. Furthermore past persecution alone is not sufficient for a claim as a refugee. Persecution has not been given an exact definition but in the case of Hovarth it is held to be ‘sustained and systematic denial of core rights’. Moreover persecution ‘must constitute to violation of a basic human right, in particular a right from which derogation cannot be made under A.15 Convention for the Protection of Human Rights and Fundamental Freedoms.’ In addition, violation of a human right is required to be severe, if the violation is off a ‘higher category rights’ recurrence is not required to establish persecution. In Sivakumar protection against non-derogable rights can be recognised since refugee status was approved although torture was used on suspect of terrorism. 

 
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