Article 1A(2) defines that the term "refugee" shall apply to 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.”
Article 1F sets out that the provisions of the Refugee Convention shall not apply to any person if there are solid reasons to consider that they have committed a serious crime - such as a war crime, or a crime against humanity, or a serious non-political crime before they arrived in the country where they are seeking refugee. A person may also be excluded from seeking refugee status if they are guilty of acts contrary to the purposes and principles of the United Nations.
Article 31.1 of the Refugee Convention provides that:
“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.”
In plain English this means that it is not illegal under international law for a person to seek protection from persecution in Australia even if they arrive without proper visas and identity papers. The Refugee Convention recognises the chaotic and sudden nature of refugee flows, and outlines that states must not punish those asylum seekers who have no choice but to arrive in Australia as 'unauthorised entrants'. It is clear that policy such as mandatory detention, which does impose punishment on some asylum seekers, is against the intention of the Refugee Convention.
Critical to Australia's responsibility under the Refugee Convention is to protect from return persons who may be persecuted. Article 33 of the Convention explains the principle of non-refoulement or non-return:
“No contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, member of a particular social group or political opinion.”
This means that Australia has a responsibility to ensure that no person is forcibly returned to a country or state where they would face persecution. This is the basis of Amnesty International's casework for asylum seekers in Australia. Amnesty International works to make sure that no person would be deported from Australia to face persecution, torture or death.