habitual residence is unable or owing to such fear, is unwilling to return to it....
Although the amended Convention/Protocol definition inadequately covers various categories of refugees which have come under attention since the Protocol of 1967, the general view is that the definition is nevertheless not outdated, and represents existing international law in force on the subject.
Several requirements must be met in order for a person to come within the definition. One is that the person must be "outside" his or her country of nationality or habitual residence. Many people may find themselves in refugee-like situations, and may have fled considerable distances, but if no border has been crossed they will not be considered refugees. As long as a person is outside his or her country of nationality or habitual residence, it is unnecessary that he or she originally departed for fear of persecution. A person may already be out of the country when the situation changes, and now, because of the changed circumstances, may have a well-founded fear of persecution should a return be made to the country.
Another element in the definition is the requirement that the refugee have a "well-founded fear" of persecution. This term certainly covers loss of life or imprisonment for one of the reasons specified in the definition. Clearly a person is not a refugee if that person is outside his or her country simply because he or she is able to earn a better living in the new country. However, the definition may include the economic persecution of a particular class of if the reason for the persecution is that the persons are members of that class.
The determination as to whether there is a "well-founded fear" of persecution has both a subjective and objective element. The decision-maker must be satisfied that the person in question has a real fear of persecution. While one person may have a genuine fear, another person in similar...