The ‘well-founded fear of persecution’ element of the refugee definition is assessed both objectively (is the fear well-founded?) and subjectively (is there fear?). 

To meet the criteria for well-founded fear, the fear must be subjectively genuine and objectively reasonable. The subjective element is sometimes met by an assessment of the individual’s credibility where the case is not completely clear from the facts on record. The objective element is met by an understanding of the conditions in the country of origin as well as the individual’s description of the situation are instructive.

It is not necessary that the applicant’s fear be based on his or her own experience; the applicant’s fear may stem from the experience of similarly situated individuals. In this way, the 1951 Convention protects not only persons who have been persecuted but also those who wish to avoid risking persecution.

The 1951 Convention does not define persecution and no universally accepted definition has evolved. The core meaning of persecution clearly includes the threat of deprivation of life or physical freedom. In its broader sense whether something amounts to persecution under the 1951 Convention turns on the assessment of a range of factors, including: (i) the nature of the freedom that has been threatened, (ii) the nature and severity of the restriction, and (iii) the likelihood of the restriction eventuating in the particular case.

The 1951 Convention refugee definition specifies that a person will qualify for refugee status only if he or she fears persecution ‘for reason’ of one or more of the five grounds listed in Article 1A(2). This is often referred to as the ‘nexus to the Convention’ requirement. It is satisfied if the Convention ground is a relevant factor contributing to the persecution – it does not need to be its sole or even dominant cause. 

Article 1 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination defines racial discrimination to include distinctions based on race colour, descent or national or ethnic origin. This broad meaning is a valid definition of race under the 1951 Convention.

Freedom of religion is a fundamental human right. It includes the right to have or not to have a religion, to practice one’s religion and to change religions. Religion under the 1951 Convention refers not only to established institutionalised religions; it also covers any belief system, defined by UNHCR as ‘convictions or values about a divine or ultimate reality, or the spiritual destiny of mankind.’ (page 3, section 6 of the link provided above)

Nationality as a ground for refugee status includes citizenship and also extends to groups of people defined through their real or perceived ethnic, religious, cultural or linguistic identity, regardless of whether this difference has been legally formalised.

A particular social group is defined by UNHCR as ‘a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.’ 

To be granted refugee status under this ground means that you are part of a group that is at risk of being persecuted due to the state’s unwillingness or inability to protect them. It does not require that all members of the group have to be at risk nor that there must be cohesiveness amongst members of a group

It should be noted that this is the ground with the least clarity and it is not defined by the 1951 Convention itself. It is being invoked in many refugee status determinations, with many states having recognised the following examples as ‘particular social groups’: women, families, tribes, occupational groups, and sexual orientation and gender identity, as constituting a particular social group for the purposes of the 1951 Convention. This is a non-exhaustive list. 

Article 19 of the Universal Declaration of Human Rights enshrines the right to freedom of opinion. It states: ‘Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.’ 

Political refugees will be most wanted by their state of origin as their political opinion is against the government’s practices and causing a threat to the state. Where the opinion has been expressed, and the applicant has been threatened, well-founded fear can be established under the 1951 convention. 

The requirement that a refugee be outside their country of nationality is a factual issue that is easily determined. It should be noted that a refugee does not necessarily need to have left the country of origin for fear of persecution for the convention reasons, but they may find themselves outside the country when an event occurs which engenders well-founded fear of persecution and satisfies this ground. 

An individual who fulfils the criteria of the convention reasons but is still inside the country of origin is an Internally Displaced Person (IDP). 

Unwillingness to avail oneself of this external protection is understood to mean unwillingness to expose oneself to the possibility of being returned to the country of nationality where the feared persecution could occur. 

For a complete overview and analysis of the rights of refugees, please refer to: “The Law of Refugee Status“, James Hathaway (1991) and “The Rights of Refugees under International Law“, James C. Hathaway (2005), Cambridge: Cambridge University Press, pp. 936.