Through an Hourglass Darkly? Navigating The Risk Landscape of the Reasonably Foreseeable Future

Abstract

Abstract As refugee law has developed over time, broad authoritative principles have been espoused as interpretive aids to the refugee definition. The maxim that a well-founded fear of being persecuted entails a forward-looking appraisal of risk is one example. In some jurisdictions, such as Australia, the temporal yardstick of the reasonably foreseeable future has been introduced to guide decision-makers over the complex terrain of risk assessment. However, a close study of the case law reveals formulaic use, inconsistency and conflation of the standard with risk and its indicia—and if the standard is intended as a real risk heuristic this is far from clear or warranted. This study critically examines the reasonably foreseeable future notion in case law in Australia, including its origins as an imported, limiting standard of due diligence from other areas of international law. It signals refugee law’s vulnerability to the standard and cautions against applying the gloss of foreseeability and reasonableness as an unnecessary and obscure overlay to interpretation. It recommends instead the unadulterated real chance standard paired with narrative conventions on time, as strategies adopted in other areas of law to sensibly navigate the fraught notion of foreseeability. It proposes that the ordering of the definitional elements of well-founded fear, downstream of being persecuted, is critical to the analysis and, in simple terms, slow and deliberate thinking is required to pinpoint the temporal underpinnings of harm in relation to risk.