The Refugee Convention, now adopted by 147 states, is the primary instrument governing refugee status under international law. The Convention sets a binding and nonamendable definition of which persons are entitled to recognition as refugees, and thus to enjoy the surrogate or substitute national protection of an asylum state. The core of the article 1A(2) definition provides that a refugee is a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group.” A person is thus a refugee, and entitled to the non-refoulement and other protections of the Refugee Convention, only if there is a risk of the applicant “being persecuted,” meaning that a form of serious harm is threatened which bespeaks a failure of state protection. Moreover, that risk of being persecuted must be causally connected to one of the five enumerated forms of civil or political status. It must also be “well-founded” in the sense that there is a real chance that the risk of being persecuted for a Convention reason will, in fact, accrue if the applicant is sent home. In most respects, the Refugee Convention has effectively accommodated claims based on sexual orientation. A gay claimant will only be a refugee if he apprehends a form of harm that amounts to a risk of “being persecuted.” The Convention’s use of the passive voice “being persecuted,” rather than simply “persecution,” signals the need to demonstrate a predicament of risk that cannot or will not be dependably rectified by the applicant’s own country. As the Australian Federal Court held in Kord, the “use of the passive voice conveys a compound notion, concerned both with the conduct of the persecutor and the effect that conduct has on the person being persecuted.” That is, because the Convention is concerned with protection against a condition or predicament— being persecuted—consideration must be given to both the nature of the risk and the nature of the state response (if any), since it is the combination of the two that gives rise to the predicament of “being persecuted.” As senior courts have agreed, it is therefore necessary to show the “sustained or systemic violation of basic human rights demonstrative of a failure of state protection.”
Hathaway, James C. "Queer Cases Make Bad Law." J. Pobjoy, co-author. N. Y. U. J. Int'l L. & Pol. 44, no. 2 (2011): 315-88.