A Well-Founded Fear of Being Persecuted … But When?

Abstract

It is well established that the ‘well-founded fear’ test in refugee law requires a prospective assessment of potential future harm. Yet, the requisite timeframe for this test is rarely examined. Analysis of jurisprudence across a wide range of jurisdictions reveals that Australian courts have been unusually cognisant of the question of timing of harm. Indeed, they have been particularly insistent that a flexible and longer-range assessment is appropriate, encapsulated by the ‘reasonably foreseeable future’ test. This article provides an in-depth analysis of the principles set out by Australian courts and tribunals, and identifies particularly challenging contexts in which timing has played an important role. It also assesses the extent to which decision makers at the tribunal level adhere to the flexible approach formulated by the judiciary. It is hoped that our analysis of Australian jurisprudence may prove helpful in other jurisdictions in which the issue of timing of harm is equally pertinent, but far less developed.