WELL FOUNDED FEAR

This project is submitted to Prof. S. Sarkar for his kind perusal and marks
allocation.

OCTOBER 10, 2017

Ankush Chattopadhyay (13LLB011)
V th Year, School of Law, NorthCap University, Gurugram, Haryana
Introduction

The hallmark of a convention refugee is the inability or unwillingness to return home due to a
well-founded fear of being persecuted.
Not all involuntary migrants qualify as refugee in law: only those who face a genuine risk of
persecution in their state of origin are entitled to the protections established by the convention.
Well-Founded Fear entails two requirements.
The first The applicant perceives themselves to stand in terror of persecution and
their response to the prospect of returning to their home country must be an extreme
form of anxiety.
The second the refugees perception of risk must be consistent with available
information on conditions in the state of origin.
Well-founded fear has nothing to do with the state of mind of the applicant. It was intended to
restrict the scope of protection to persons who can demonstrate a present or prospective risk of
persecution, irrespective of the extent of mistreatment, if any, that they have already suffered
in the past.

Fear The Requirement for Prospective Assessment of Risk

The reference to fear in the convention has led many scholars to assume the relevance of a
psychological assessment of the applicants reaction to the conditions in their state of origin.
The word Fear is simply used to signal an anticipatory appraisal of risk.
For Ex A person may fear a particular event in the sense that they apprehend that it may
occur, yet they may or may not stand in terror of it actually happening.

Historical Foundation of the Prospective of Risk

The IRO definition of a refugee included persons who expressed valid reasons for not
returning to their country of nationality, including persecution, or fear, based on reasonable
grounds of persecution.
The Organization had competence over persons who had already suffered persecution in their
home state, as well as, over persons judged by the authorities to face the risk of persecution,
were they sent back to their country.
The definitional framework authorized an objective assessment of risk. Was the applicant an
individual who, even though they had not already been persecuted, might be in jeopardy in
their state of origin because of who they were/their beliefs?
An alternate method was thus established, intending to recognize the importance not only of
sheltering those already persecuted but also those who could be spared from prospective harm.
The structure of the IROs Constitution was the initial point of reference for the definition
adopted in the refugee convention. Its dualistic criterion was the major influence and was
submitted in multiple drafts to the Ad Hoc Committee on Refugees and Stateless Persons.
The US proposal spoke of persons outside their country because of persecution or fear of
persecution
The French and British both advocated the same suggestion albeit in different words owing
to a justifiable fear of persecution and serious apprehension based on reasonable grounds of
persecution
The compromise which reached was to establish present or prospective assessment of risk as
the norm for refugee protection, and to continue to honor the past persecution standards for
persons within the scope of a pre-1951 refugee arrangement. All other applicants will have to
demonstrate a present fear of persecution in their origin country.
The Convention provides for the cessation of refugee status upon the establishment of safe
conditions in the country of origin, whether or not the refugee continues to harbor a subjective
fear.

The Practical Imperative for Prospective Assessment of Risk

Why should states be expected to distinguish among persons similarly at risk on the basis of
variations of individual temperament or tolerance?
Why should an individual of stoic personality be viewed as less worthy of protection than one
who is easily scared, or who proclaims their concerns with great passion?
Logic dictates, that since the central issue is whether an individual can safely return to their
state, the applicants anxiety level is simply not a relevant consideration.

Subjective Fear as a Negative Constraint on the Objective Trump

Several Canadian Courts have explicitly adopted the UNHCRs position:

An evaluation of the subjective element is inseparable from the assessment of the personality
of the applicant, since psychological reactions of different individuals may not be the same in
identical conditions
Objective Trump is a method which makes it unnecessary to examine subjective fear in
cases with a strong objective foundation, and which enables evidence that tends to deny the
existence of risk to override even the most passionately stated fear of persecution.
The cases of Maria Beatrice Maldonado Verga, and Bakshish Gill Singh exemplify the
generally accepted world view that subjective fear must and can be accessed objectively.
But, how are we to objectively assess the subjective fear? The answer to this question was
provided in the case of Rouzbeh Amjadishad.
But, like any judgement in the times of continuous and constant change, flaws regarding the
health of the applicants and the role of authoritative body emerged -
Post Traumatic Anxiety
Combining not Deducing.
The more harmful interpretations of fear involve the disentitlement of persons whose claims
to refugee status may have been otherwise granted.
This usually happens under the following criteria's:
Persons who do not avail the earliest opportunity to flee their state of origin cannot
reasonably be said to fear persecution in that country.
Those who truly fear returning to their origin state ought to have claimed protection in
other potential countries rather than waiting to reach the desired country.
Genuinely fearful persons will not delay in making their need for protection known to
the Canadian Authorities.
These factors were set forth in the case of Harjinder Dhillon Singh.
The court later on went on to say that delay in departure or the presentation of a refugee claim
may need to be explained by a refugee applicant who wishes to be relied upon in support of
their case. It is entirely inappropriate, to equate delay with the absence of fear, thereby giving
unwarranted weightage to one factor in the determination of an applicants credibility.

Fear as an Aspect of the Objective Assessment of Risk

The decision of the House of Lords in Sivakumaran provides a through analysis of well-
founded fear
Lord Keith stated that the purpose of the convention is to provide protection and fair treatment
to those whom neither is available in their own country, but does not extend to assuaging the
feelings of persecution.
Lord Goff stated that the true objective of the convention is not to assuage fears however
reasonable and plausible but to provide a safe haven for those unfortunate people whose fear
of prosecution is well-founded.
These conclusions are historically and logically compelling.
Their explicit adoption in Canadian Law would serve two purposes:
Ending the importance being given to the emotional state of the applicant.
Negative inferences tending to show an absence fear is not a sufficient ground to deny
refugee status.
The question to be asked is whether there is reason to believe that they require safe haven from
the anticipated risk in their state of origin.

Well-Founded Assessment of Risk: Stating the Test

What is the threshold of concern that can substantiate a claim to refugee status?
The Convention itself states the most general terms justifiable, good reasons, reasonable
grounds. The explanation offered by the UNHCR also does nothing to further advance our
understanding.
This failure to come to devise a common objective test has forced states to device their own
tests. The US used the test of Balance of Probabilities refugee status shall only be granted
where harm is reasonably likely to occur
The Supreme Court of Canada agreed to this method in the case of Kwaitkowsky v. Minister
of Manpower and Immigration. It was further improved by implementing the reasoning of
Lugano v. Minister of Manpower and Immigration. Canada called it Kwaitkowsky Balance
of Probabilities Standard.
But, soon thereafter, the Supreme Court of Canada found the initiation to be unconstitutional
and so it was removed. In the case of Robert Satiacum, a powerful dissenting opinion did away
with the entire test of probabilities.
During this time, the US Supreme Court and the British House of Lords both delivered
important judgments on well-founded fear.
In the case of I.N.S. v Cordoza-Fonesca, The US Supreme Court rejected the balance of
probabilities test and came up with a better reasonable possibility test.
The same was used by the British House of Lords in the case of Sivakumaran. However, Lord
Keith went on to deliver a more restrictive standard of determination. It was further softened
by Lord Templeman and Lord Goff.
Canada went on to adopt the reasonable chance test in the case of Joseph Adjei v. Minister
of Employment and Immigration, which was indistinguishable from that of the American test.

Relevance of General Evidence of Respect for Human Rights

The appropriate starting point for an analysis is an examination of the countrys general human
rights record. Persons who flee countries that are known to commit persecutory behavior
should benefit from a rebuttable presumption that they have a genuine need for protection.
On the other hand, those applicants who come from states which generally have a great human
rights record face a tougher crowd. An effort should be made to gather background human
rights data from a broad cross-section of official and non-governmental sources.
Fact-finding is a responsibility that the applicant shares with the examining authorities.
Examining authorities must constantly be aware and on guard so as to avoid aligning the nature
of the risk with their own perceptions of reasonability.
There is always a risk the job of protection of refugees will be delegated to foreign policy
concerns. In case of political differences between the two states, the refugees will be dealt with
in a mild manner. While in case of good relations between the two states, it will be harder for
refugees to plead their case.
It must be noted that background human rights information, while important, must under no
circumstances, substitute the testimony of the applicant.

Role of Refugee Claimants Testimony

The heart of the refugee determination process is the careful consideration of the claimants
own evidence, whether provided orally or in documentary form. After the case of Singh et al
v. Minister of Employment and Immigration, Canadian law has required all applicants for
refugee status must receive an opportunity to be heard by the authority responsible for their
case.
In such a situation, what is the weight that should be attached to a claimants own testimony. In
Canada, as long as the claimants testimony is plausible, credible and frank, it may constitute
the whole of the evidence necessary.
The primary rule has been stated by the Federal Court of Appeal to be that: when a applicant
swears to the truth of certain allegations, it creates a presumption that those allegations are true
unless there is reasonable doubt towards their truthfulness.
Such an assumption should be dealt with cautiously, and in this basic premise, two form of
caution are appropriate.
Firstly, the decision-maker must be sensitive to the fact that most refugees have shared
experiences in their country of origin which give them good reason no to trust the
authorities.
Secondly, It is critical that a reasonable margin of error be given to any perceived flaws
in the applicants testimony.
As stated in the case of Francisco Edulfo Valverde Cerna, only significant concerns about the
plausibility of allegations should be considered sufficient to counter the presumption.
Evidence of Individualized Past Persecution

Past persecution is not and has never been condition precedent to recognition as a refugee.
The Convention is concerned with protection from prospective risk of persecution. This
principle was recognized in Canada through the decision of Guillermo Lautaro Diaz Fuentes.
The Federal Court of Appeal has also consistently affirmed the forward looking assessment of
risk, notably in the cases of:
Waldeck Sylvester v. Minister of Employment and Immigration,
Re Naredo and Minister of Employment and Immigration,
Alfredo Manuel Oyarzo Marchant v. Minister of Employment and Immigration.
Where evidence of past mal treatment exists, it is unquestionably an excellent indicator of the
fate that may await an applicant upon their return home. That which happened in the past may
happen in the future. Unless there has been a major change of circumstances in the country.
It is to be noted that in situations where the applicant is not the only one to have left their
country, then the testimony of all similar applicants before them shall be considered and used.

Evidence of Harm to Persons Similarly Situated

The concrete foundation for a claim to refugee status may be established by circumstantial
evidence. The best circumstantial indicator of risk is the experience of those persons most
closely connected to the claimant and share the same racial, religious, national, social or
political affiliations.
This principle was used by the Federal Court of Appeal, Canada in the case of Anthony Andre
Williams v. Minister of Employment and Immigration. This principle was also used in the
similar case of Chaudri v. Minister of Employment and Immigration.
These decisions show us the importance of seeking out contextualized surrogate indicators of
risk such as: what is happening to persons like the applicant?
By this method, it is possible to provide prospective protection and to reserve recognition for
those persons who are genuinely at risk of serious harm.

Assessing Risk Within the Context of Generalized Oppression

It is ironic that courts have shown reluctance to recognizing refugee persons whose
apprehension of risk is borne out in the suffering of large number of their fellow citizens.
This issue is often observed in the assertion that the claimant must be able to show that they
have been personally singled out for persecution. A judgment along the lines of this practice
was given in the case of Mohammed Said Sleiman.
This approach confuses the requirement to assess risk on the basis of the applicants particular
circumstances with an erroneous notion that refugee status must be based on a completely
personalized set of facts.
The true issue is whether the applicant faces a reasonable chance of being persecuted because
of who is they are/what they believe in, not whether they are unique. The tendency to reject
such claims arises from a mistaken belief that such people are not refugees, but simply
unfortunate.
The genuineness of claims brought in a form of broadly based harm is a function of two basic
issues?
Is the anticipated-state tolerated harm of sufficient gravity to constitute persecution?
Is there a connection between the risk faced and applicants race, religion, nationality,
social group or political opinion?
If both the conditions are fulfilled, then a claim under convention refugee can be made
irrespective of how many people are similarly affected.
This rejection of the evidence rule is supported by three concerns:
Historical context I which the convention was established.
It is makes clear that the convention was designed to protect persons within large group
whose fear of persecution is generalized.
The logic of protection based in need.
It is logically inconsistent from either a humanitarian or human rights perspective to
refuse cases arising from broadly base persecution.
Desirability of conformity with the reasonable chance.
The notion of restricting refugee status to persons who have been singled out for
persecution is inconsistent with the ruling of the Federal Court of Appeal.
While modern refugee law is concerned with recognizing the protection needs of particular
claimants, the best evidence that an individual faces a serious chance of persecution is usually
the treatment afforded to similarly situated persons in the state.
The issue is not whether the applicant is more at risk than anyone else in the country, but
whether the broadly based harassment and abuse is sufficiently serious to initiate a claim to
refugee status.
As Atle Grahl-Madsen noted: Once a person is subjected to a measure of such gravity that we
consider it persecution, that person is persecuted in the sense of the convention, irrespective
of how many others are involved.