A refugee is a person who is outside their country of nationality or habitual residence and is unable or unwilling to return due to a well-founded fear of persecution. The fear must relate to their race, religion, nationality, political opinion or membership of a particular social group.

The assessment of this criterion is very complex and does not have a single simple answer. Under the Act, a person may be considered to have a “well-founded fear of persecution” if:

1. they fear persecution due to their race, religion, nationality, membership of a particular social group or political opinion;
2. there is a real chance they would face this persecution if they returned;
3. the fear applies across all regions of their country, and relocation is not a viable option;
4. the persecution involves serious harm and is part of systemic and discriminatory conduct.

Complementary protection applies to people who do not meet the definition of a refugee but face serious harm if returned to their country. Significant harm includes: torture, cruel or inhuman treatment, degrading punishment, deprivation of life, or the death penalty. The Department will also consider whether the person can relocate safely, access protection from local authorities, and whether the risk is personal or general in nature.

Usually, a person will be given protection if there is sufficient evidence to establish that there is a real risk they will suffer from significant harm if they are forced to leave Australia and return to their home country.

Significant harm is defined as:

• torture
• cruel or inhumane treatment/punishment
• deprivation of life
• penalty of death, or
• degrading treatment/punishment.

The department will consider a number of factors in addition to establishment of significant harm, including:

• relocation possibilities
• assistance from the country’s authority or government, and
• whether the risk of harm is experienced on a personal level or whether it is applicable to the population of the country as a whole.