A 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."
1951 Convention Relating to the Status of Refugees, as amended by the 1966 Protocol.
Also, from the Organization of American States, 1985:
"Persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or other circumstances which have seriously disturbed public order."
Many states give priority to refugees in the acceptance of applicants for immigration and on that basis, qualification as a refugee is essential.
In Ward v Canada, Canada's Supreme Court spoke of the:
"... rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.... as surrogate or substitute protection, activated only upon failure of national protection."
In that decision, the Court also clarified that the state from which refugee status was being sought, needed not to be complicit in the alleged persecution or the "well-founded fear".
Further, in Ward, the Court determined that if a refugee claimant established "fear", she or he might benefit from a presumption "that persecution will be likely, and the fear well-founded, if there is an absence of state protection."
"What exactly must a claimant do to establish fear of persecution? ...(T)he test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense.
"In summary, I find that state complicity is not a necessary component of persecution, either under the "unwilling" or under the "unable" branch of the definition. A subjective fear of persecution combined with state inability to protect the claimant creates a presumption that the fear is well-founded. The danger that this presumption will operate too broadly is tempered by a requirement that clear and convincing proof of a state's inability to protect must be advanced."
References
? United Nations High Commission for Refugees (UNHCR) at unhcr.org
? Ward v Canada, 1993 2 SCR 689, published at canlii.org/en/ca/scc/doc/1993/1993canlii105/1993canlii105.html