Determining whether an applicant's "fear" (in the sense of forward-looking anticipation of risk) is, or is not, "well-founded" is thus purely probative in nature. An interpretation of "fear" as a forward-looking expectation of danger is also more consistent with the internal structure of the Refugee Convention, in particular with the approach taken in Articles 1(C)(5–6) and 33.
Critique of the Traditional Approaches
If, on the other hand, the reason for maintaining the subjective element is the need to consider evidence of the applicant's particular physical or psychological characteristics that make him subject to harm greater than that experienced by other persons, then the subjective element is superfluous. These types of vulnerabilities can and should be considered as part of the analysis of whether the anticipated harm rises to the level of "persecution" and regardless of the subjective element.
Fear as One of Two Essential Elements
The Risk of Unwarranted Denials of Protection
In other words, a negative finding regarding the applicant's subjective fear of forced sterilization would have constituted valid grounds for the denial of refugee status. In this case, the failure of the applicant to express his subjective fear of persecution on the basis of social group membership effectively excused the tribunal from considering evidence indicating his risk of persecution on that particular Convention ground.
The Challenge of Implementation
As Sulejman's discussion illustrates, the bipartite approach by its very nature allows for the possibility of denying refugee status to those truly at risk. Such persons are therefore particularly likely to be denied refugee status because they do not demonstrate a subjective fear of persecution (regardless of their actual risk). To the extent that such persons are unable to express their trepidation, faithful application of the subjective fear requirement would naturally result in denial of refugee status.
To the extent that a child is unable to effectively communicate his or her trepidation (or to link it to the risk involved), a strict application of the two-pronged test will naturally lead to the denial of refugee status. One way courts objectify the subjective fear inquiry is by asking whether a "reasonable person" would experience fear in the face of the risk identified. Where the applicant has behaved in a way that appears inconsistent with the presence of fear, at least in the opinion of the decision maker, the subjective element is deemed unsatisfied and refugee status is denied.
This is because under the two-pronged approach, the absence of subjective fear as evidenced by one of these surrogate indicators automatically leads to denial of the claim. Trial Div. 1998) (Joyal, J.) (Can.) ("The subjective basis for fear of persecution rests solely on the credibility of the applicants.");
Fear to Supplement an Objectively Weak Claim
Fear” as Forward-Looking Expectation of Risk
We argue here that, in light of the duty to interpret a treaty based not only on text, but also to take into account its context, object and purpose,118 the latter understanding of "fear" as a forward-looking expectation of risk . is more legally authentic. Moreover, this understanding of "fear" which requires only an anticipatory assessment of risk is also fully consistent with another principle of treaty interpretation, namely that equal attention must be given to all legally authoritative versions of the treaty. In the context of the Refugee Convention, equal weight must therefore be given to the French version of the treaty and to the common practice of courts interpreting "craignant avec raison" (the French equivalent of "well-founded fear") to make substantial use of apprehension to assess "well-founded fear." Finally, as far as possible, a treaty should be interpreted in a way that avoids internal inconsistency.
In the case of the Refugee Convention, this means aligning the "well-founded fear" approach with Articles 1(C)(5-6). 679 ("A treaty shall be interpreted in good faith in accordance with the ordinary meaning attributed to the terms of the treaty in their context and in light of its object and purpose.") [hereinafter the Vienna Convention]. Having regard to the object and purpose of the Convention, the Refugee Convention was designed to provide substitute protection.
Taking Account of the Convention’s
Although clearly less problematic from a protection point of view, the view that evidence of tremors is appropriately used to bolster an otherwise weak case is also contrary to the object and purpose of the Convention. In sum, the object and purpose of the Convention as upheld by senior courts strongly supports an interpretation of "fear" that emphasizes its anticipatory rather than emotional qualities. The substantive consideration of subjective fear as part of the "well-founded fear" inquiry is inconsistent with established protection principles, and is otherwise inconsistent with the goals of refugee law.
Prevailing practice under the equally authoritative French language version of the Refugee Convention127 also supports the view that the well-founded fear requirement neither conditions access to refugee status on the showing of fear nor allows evidence of trembling (where present ) to overlook otherwise insufficient evidence. of actual risk. Courts applying “craignant avec raison” do not require a demonstration of fear; indeed, the test for "raison craignant avec" generally does not appear to require any consideration of the applicant's subjective state of mind. This, in turn, should return attention to the object and purpose of the Refugee Convention, which,138 as mentioned above, are oriented towards an understanding of refugee status that focuses on protection from the actual risk of being persecuted.
Internal Consistency
Ensuring Attention to the Applicant’s Case
Another way in which the subjective element can be argued to further define the well-founded fear inquiry is by giving primacy to the appellant's testimony. The rationale for this understanding of the subjective element appears to be that the appellant's testimony constitutes the "best evidence". Essentially, this understanding of the subjective element aims to protect individuals who face a real but unverifiable risk of future persecution.
In this section, we elaborate on our view that a subjective element is not necessary to specify the well-founded fear inquiry in any of the ways described above. A subjective element is therefore not necessary to ensure that evidence adduced by the applicant is taken into account. A subjective element that would extend even further, which actually requires substantive prioritization of the applicant's evidence, is not necessary and may amount to overcompensation.
Admissibility of the Applicant’s Evidence
The Federal Rules of Evidence state that “[a]ll relevant evidence is admissible.”157 “Relevant” evidence is defined as “[e]vidence indicating the existence of any fact material to the determination that the claim is more or less likely to be without evidence.”158 The Australian approach is similar, with the Evidence Act 1995 codifying the view that “[e]vidence relevant to the proceedings is evidence which, if admitted, could meaningfully affect ( indirectly or directly) to assess the probability of the existence of a disputed fact in the procedure. The facts that can be proven in a judicial investigation are disputed facts and facts relevant to the case, and all facts, whether relevant to the case or not, that affect the legal admissibility or weight of the evidence presented. It's even obvious. they simply tend to "increase or decrease the probability of the existence of the disputed fact".
Even without a subjective element, New Zealand decision makers routinely consider all probative information a risk of persecution. For example, the High Court of Australia in Wu Shan Liang recognized that “the decision-maker must not, by a process of fact-finding on particular elements of the material offered, exclude reasonable speculation about the chances of persecution arising from an examination of all material.” Minister for Immigration. Objective' is defined as 'external to the mind; real.”165 The word “subjective”, on the contrary, is defined as.
Taking the Applicant’s Evidence Seriously
Yet it certainly follows that the result of a decision to classify evidence adduced by applicants for refugee status as 'subjective' is that it is unlikely to be given the weight it deserves on the basis of a non-categorical assessment of its evidential value . missing evidence, and to assign weight based solely on their “conscientious judgment” of the relative value of each piece of evidence for the overall risk assessment. Advocating this variant of the subjective element thesis is probably rooted in a desire to overcome the tendency of some decision-makers to dismiss claims in which the applicant's testimony constitutes most or all of the evidence of risk. . However, a clear answer has already emerged in the case law and, in some cases, in the codified laws of States parties: it is now widely recognized that the credible oral testimony of an applicant can constitute the entire body of evidence in support of his or her claim. 168 Canadian courts, for example, recognize that by swearing on the truth of her statements, the petitioner “creates a presumption that [her] allegations are true, unless there is reason to doubt their truth.”169 Similarly, decision-makers of New Zealand refugees do not require external corroboration if the applicant's testimony is plausible, credible and candid.170 The US Immigration Regulations state that “the applicant's testimony, if credible, may be sufficient to bear the burden of proof without corroboration.” 171 a posi - This has repeatedly led the Ninth Circuit Court of Appeals to assert the duty to consider whether an applicant's "credible testimony alone [is sufficient] to determine her eligibility for asylum and /or preventing removal.”172.
In the light of such clear confirmations of the true value of an applicant's witness evidence, it is difficult to understand how appropriate it is to go further and point out that a subjective element is necessary for such evidence to be effective. exceeds other evidence presented. 265/92, the Refugee Status Appeals Authority recognized that it is unreasonable “to attack the credibility of [an asylum seeker] on the grounds that written evidence is not produced in support of the allegation.” The Authority further ruled: “[It is clear that there must be valid reasons to doubt the credibility of an applicant, and there is no requirement that testimony that is plausible, credible and frank must be supported by external corroboration.” Refugee Appeal No. Canada, for example, the Federal Court of Canada has rightly held that “it was open to the Council to prefer the evidence to that of the applicant” for so long.
Attention to Particular Susceptibilities
Conclusions
The subjective element of the duty to demonstrate a "well-founded fear" of persecution is widely accepted and often misunderstood. But in reality, the dominant understanding of the subjective element is not nearly so benign. So this brings us back to the fundamental question of why one might insist on asserting a bipartite understanding of the well-founded fear standard, rather than admitting—as we advocate here—that the standard requires only evidence of a forward-looking expectation of actual risk.
Yet, as we have shown, a notion of "fear" (and of the equally authoritative French language notion of "craindre") meaning anticipatory concern is entirely within the accepted ordinary meaning of those terms. There is, in fact, no textual or principled impediment to adopting a notion of "well-founded fear" that is solely focused on anticipatory fear; on the contrary, it is a view fully supported by language and by the context, object and purpose of the Refugee Convention. Objectively, there is a real chance that the refugee claimant will be persecuted if returned to the country of nationality.
