Seeking Refuge? - Rights of Women

Persecution may involve:
• Physical, sexual or mental violence or abuse.
• A legal measure, such as a law, which is
discriminatory, or is applied in a discriminatory
way. An example of this would be a law that
applies only to women.
• Prosecution or punishment which is more than
is necessary, or is discriminatory. An example of
this would be putting someone in prison for
doing something that is not criminal or harmful
to others.
• Denial of a legal remedy which is
discriminatory, or which results in a punishment
which is more than is necessary. An example of
this would be a State that has laws to forbid
domestic violence and to punish family
members who are violent, but which does not
apply them, leaving women without protection.
Whether or not what you fear may happen if you
are returned to your country would be considered
persecution under the Refugee Convention also
depends on who is responsible for it. This is also
the case for any harm that you have already
experienced. This means that whether or not a
particular fear or harm would be considered
persecution depends on what it is that you fear
and who is responsible for it.
Persecution can be carried out by different
people.
A State actor is someone who is linked to the
State in your own country, such as a police or
army officer, a Government official or a prison
guard.
A non-State actor is someone who is not
linked to the State in any way, for example,
someone in your family, someone from your
community or someone from a criminal gang
or political group.
If you fear harm from a State actor, for example,
a police or army officer, then any serious harm
that you fear will be considered to be persecution.
If you fear harm from a non-State actor, such as
a family member or criminal gang, it will only be
considered to be persecution if it is serious and
your State is unable or unwilling to protect you.
No State can protect all of its people from all
forms of harm. However, States must provide a
“sufficiency of protection” for their people. This
means that States should take reasonable steps to
protect people from persecution by, for example,
properly investigating criminal offences and
operating an effective legal system. This means
that if you fear serious harm from a member of
your family, you should be able to go to the police
for assistance. The police should be able to
investigate your concerns and, if necessary, take
action against the person you fear. You should
also be able to seek protection from the courts. If
you fear serious harm but you are unable to get
protection from the police or the courts, your
State may be failing to provide a sufficiency of
protection for you.
Finding out and deciding whether or not your
State is willing or able to protect you will involve
looking at the situation in your home country. This
may involve getting an expert to write a report or
looking at other reports that have been written on
your country, as well as looking at decisions that
have been made about your country in other
decided cases (known as case-law).
What is a well-founded fear of
persecution?
In order for your claim to be successful under the
Refugee Convention you have to show that you
have a well-founded fear of being persecuted for
one of the Convention reasons (race, religion,
nationality, political opinion or membership of a
particular social group).
A well-founded fear of persecution is one where:
• you fear that you, personally, will be harmed;
and
• looking at the information available, your fear
is reasonable.
This means that the person who is making the
decision about your case is looking to see if you
fear some future form of harm and whether there
is any evidence that shows that your fear is
justified. The fact that you have already been
persecuted may show that your fear of possible
future persecution is well-founded.
Persecution = serious harm + the failure of
State protection
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