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  • Print publication year: 2006
  • Online publication date: June 2012

11 - Well-founded fear of persecution

Summary

According to Chan v MIEA, the expression ‘well-founded fear of persecution’ contains both objective and subjective elements that must be satisfied before a person can be found to be a refugee. That is, the person must genuinely fear being persecuted, and his or her fear must have an objective basis.

Consistent with general administrative law principles, a decision-maker must decide whether an applicant has a ‘well-founded’ fear of being persecuted as at the date of the decision – not, for instance, as at the date that the applicant left his or her country nor at the date of the protection visa application.

In Chan's case, mason cj stated:

Chan v MIEA

I agree with the conclusion reached by mchugh j. that a fear of persecution is ‘well founded’ if there is a real chance that the refugee will be persecuted if he returns to his country of nationality … I prefer the expression ‘a real chance’ because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring … If an applicant establishes that there is a real chance of persecution, then his fear, assuming that he has such a fear, is well-founded, notwithstanding that there is less than a fifty percent chance of persecution occurring. This interpretation fulfils the objects of the Convention in securing recognition of refugee status for those persons who have a legitimate or justified fear of persecution on political grounds if they are returned to their country of origin.