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16 - Well-founded fear of persecution

Published online by Cambridge University Press:  05 June 2012

Mirko Bagaric
Affiliation:
Deakin University, Victoria
Athula Pathinayake
Affiliation:
Deakin University, Victoria
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Summary

Overview

The notion of a well-founded fear is one of the constituent elements of the definition of a refugee. In Chan v MIEA the High Court held that ‘well-founded fear’ has both a subjective and an objective element:

The phrase ‘well-founded fear of being persecuted’…contains both a subjective and an objective requirement. There must be a state of mind – fear of being persecuted – and a basis – well-founded – for that fear.

It is important to emphasise that in determining whether a fear of persecution is well-founded the relevant point of inquiry is at the time when the decision is made, not at the point at which the applicant left his or her country, and must take into account not the current situation but what is likely to occur in the reasonably foreseeable future.

The subjective element

The subjective element focuses on the perceptions of the individual regarding the risk involved in returning to the relevant country. The applicants’ personal beliefs regarding the dangers awaiting them in their country of origin are rarely a defining consideration in the determination of refugee status. The best evidence of what an applicant believes is obviously his or her express comments on the subject matter. It is difficult to reject an applicant's claim that he or she fears persecution. This is especially so given that this belief does not need to have a rational basis. Nevertheless, in some cases a fact finder may be entitled to reject such an assertion on the basis that it is disingenuous. Examples are where the applicant voluntarily and regularly visits his or her country of origin or where there is absolutely no evidential basis for the fear.

Type
Chapter
Information
Migration and Refugee Law
Principles and Practice in Australia
, pp. 257 - 269
Publisher: Cambridge University Press
Print publication year: 2011

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