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Guide to Refugee Law in Australia: Chapter 2

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2 COUNTRY OF REFERENCE Introduction .......................................................................................................... 2-2 Country of reference – the Refugees Convention ................................................ 2-3 Country of reference under the Migration Act ...................................................... 2-3 Receiving country – refugee and complementary protection criteria post 16 December 2014 ............................................................................................ 2-4 Receiving country – complementary protection criterion pre 16 December 2014 ............................................................................................................. 2-5 Determining the country of reference ................................................................... 2-6 What is a ‘country’? ...................................................................................... 2-7 Country of nationality .................................................................................... 2-8 What is nationality? ................................................................................ 2-9 The factual assessment of nationality .................................................. 2-11 Dual or multiple nationality ................................................................... 2-13 Statelessness and country of former habitual residence ............................ 2-16 Identifying the country of former habitual residence ............................. 2-17 More than one country of former habitual residence? .......................... 2-19 Where an applicant has no right of return ............................................ 2-20 Other issues ............................................................................................... 2-23 Where applicant is a national of a country and former resident of a second country.................................................................................................. 2-23 Where family members are of different nationalities ............................. 2-24 Children born in Australia ..................................................................... 2-24 Refusal of country to accept return of citizen........................................ 2-26 September 2021 2-1 Country of Reference 2 COUNTRY OF REFERENCE1 Introduction In assessing the criteria for a protection visa, it is necessary to establish the person’s ‘country of reference’ – usually the country in which they claim to fear harm. The considerations vary somewhat depending upon whether the claim is one for refugee status or for complementary protection and, in both cases, the date of the protection visa application. For protection visa applications made prior to 16 December 2014, there are different requirements in determining the relevant country for the purpose of the refugee criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (the Act) and the complementary protection criterion in s 36(2)(aa). For the refugee criterion, the country is established by reference to the definition of a refugee in in art 1A(2) of the 1951 Convention relating to the Status of Refugees (the Convention). However, for the purposes of the complementary protection criterion, decision-makers must apply the pre 16 December 2014 definition of ‘receiving country’ in s 5(1) of the Act.2 Protection visa applications made on or after 16 December 2014 are no longer assessed by reference to art 1A(2) of the Convention. Instead, the definition of ‘refugee’ is codified in s 5H of the Act.3 For such applications, the relevant country of reference for both the refugee and complementary protection criteria is determined under the post 16 December 2014 definition of ‘receiving country’ in s 5(1).4 Although the concept of country of reference in each of these contexts overlap, and in some cases is the same, there are some variations. This chapter will firstly outline the considerations relevant to country of reference in the context of the Convention, and the definition of ‘receiving country’, before discussing concepts common to both of those contexts. 1 Unless otherwise specified, all references to legislation are to the Migration Act 1958 (Cth) (the Act) and Migration Regulations 1994 (Cth) (the Regulations) currently in force, and all references and hyperlinks to commentaries are to materials prepared by Migration and Refugee Division (MRD) Legal Services. 2 The complementary protection criterion in s 36(2)(aa) and definition of receiving country in s 5(1) were introduced by the Migration Amendment (Complementary Protection) Act 2011 (Cth) (No 121 of 2011), which commenced on 24 March 2012 and applied to applications not finally determined as at that date: s 2; sch 1, item 12, and Proclamation, Migration Amendment (Complementary Protection) Act 2011 (Cth) dated 21 March 2012 (FRLI F2012L00650) fixing date of commencement as 24 March 2012. 3 The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended s 36(2)(a) of the Act to remove reference to the Refugees Convention (the Convention) and instead refer to Australia having protection obligations in respect of a person because they are a ‘refugee’. ‘Refugee’ is defined in s 5H, with related definitions and qualifications in ss 5(1) and 5J–5LA. These amendments commenced on 18 April 2015 and apply to protection visa applications made on or after 16 December 2014: table items 14 and 22 of s 2 and item 28 of sch 5; Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Commencement Proclamation dated 16 April 2015 (FRLI F2015L00543). 4 The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth) (No 135 of 2014) amended the definition of ‘receiving country’ in s 5(1) of the Act in respect of protection visa applications lodged on or after 16 December 2014: table items 15 and 22 of s 2 and items 18 and 28 of sch 5. Prior to that date, ‘receiving country’ applied only to the determination of the complementary protection criteria in s 36(2)(aa). September 2021 2-2 Country of Reference Country of reference – the Refugees Convention For protection visa applications made prior to 16 December 2014, s 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom Australia has protection obligations under the Convention as amended by the 1967 Protocol relating to the Status of Refugees (the Protocol).5 Generally speaking, as a Contracting State to the Convention and Protocol, Australia has protection obligations to persons who are ‘refugees’ as defined in those instruments. Article 1A(2) of the Convention as amended by the Protocol defines a refugee as any person who: owing to 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; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear is unwilling to return to it. (emphasis added) In the case of a person who has more than one nationality, the term “the country of his nationality” shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national. For applicants who make claims under the Convention, the first issue to be determined is the country or countries against which those claims are to be assessed.6 For the purposes of art 1A(2), applicants who have a nationality must be considered in relation to their country or countries of nationality; conversely, applicants who are stateless must be considered in relation to their country or countries of former habitual residence.7 Thus, the first task is to identify either the country (or countries) of nationality; or in the case of stateless persons the country (or countries) of former habitual residence.8 Country of reference under the Migration Act The Migration Act defines the country of reference (receiving country) for the complementary protection criterion (regardless of application date) and, with respect to post 16 December 2014 protection visa applications, for the refugee criterion. 5 Note that the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (No 113 of 2012) came into effect on 18 August 2012 and amended s 36(2)(a) to include the wording ‘in respect of whom’ Australia has protection obligations, sch 1, item [7]. Prior to this amendment this provision applied to persons ‘to whom’ the Minister is satisfied Australia has protection obligations 6 Not all applicants make claims under the Convention. An alternative criterion is that the applicant is a non-citizen in Australia who is a member of the family of a person in respect of whom Australia has protection obligations and who holds a protection visa of the same class: see s 36(2)(b) of the Act and sch 2 to the Regulations, discussed in Chapter 1 – Protection visas. For applicants who rely on the alternative (family membership) criterion and do not claim to be refugees,
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