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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.
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.