Refugee Law: Defining persecution
September 6th, 2007 • Australia, Human Rights, Law
This is the fourth post in an on-going series on Refugee Law, following what I’m learning in Refugee Law with Dr Michelle Foster. To read the full series go here.
A critical part of coming within the Convention definition is satisfying that the person is being persecuted for one of the enumerated reasons. International law doesn’t provide us with a definition of persecution, the framers of the Convention rightly thought that it would dangerous to limit persecution when we know how imaginatively evil humankind can be, so decision makers have often had to decide for themselves what persecution actually means, which has lead to some problems.
Firstly, it is clear that ‘mere’ discrimination is not enough to amount to Convention persecution. Secondly, the dictionary isn’t very helpful here as it focuses more on the intent of the persecutor rather then the belief or actions of the refugee. For the purposes of determining if a refugee is being persecuted, questions of the intent of their persecutors are obviously very hard to determine. Thirdly, while international criminal law has formulated definitions of persecution for prosecuting criminals, the different context of the definition makes it ill-suited for application to refugee cases.
The general consensus, not shared by Australian or US courts (though they are on the path to it), is what Hathaway calls the “Human Rights Approach”. This sees persecution as contravention of the rights granted by various international agreements, for example the UDHR, ICCPR, ICESCR, CEDAW, CRC and CERD, sometimes known as “The International Bill of Rights”. These agreements are widely ratified and represent an international consensus of what everyone is guaranteed. Thus, if it can be demonstrated that the rights contained in those agreements have been contravened this can be considered clear indication of persecution.
While Australia and the US haven’t been as explicit in accepting this standard for persecution the Courts have suggested similar ideas of “a significant departure from the standards of the civilized world” (Chen Shi Hai) and talking about the freedoms guaranteed in a democratic society (Chan v MIEA). They thus are making reference to societal mores rather then international instruments, but arguably are working off similar ideas.
It is also important to remember that it is not just personal persecution that is in question here. If it can be demonstrated that you are part of a group that is undergoing persecution then that can be enough. Also, persecution is a forward looking concept. Thus, past acts of persecution are neither required nor sufficient. This can be good, in that you don’t have to wait for the persecution to begin to flee, but bad in that even in cases of known persecution refugee status can be rejected. However, obviously past persecution is probably good evidence of future persecution, and in the US creates a legal presumption of persecution.
Finally, the standard of proof of persecution is generally set quite low. Unlike in other trials that require a balance of probabilities in Australia all that is required is a “real chance” that is substantial and not remote. This is similar to other common law jurisdictions such as Canada which require a reasonable as opposed to mere possibility, and the US that requires a reasonable possibility, and even a 10% chance of death could be enough. Issues of evidence in these trials is an obvious area of difficulty, with people often rapidly fleeing and unable to bring documentary evidence. Thus their testimony and research done by the Tribunal and Department is critical in determining the issue, and so a higher standard of proof would be unfair.
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