‘Time’ in Refugee Status Determination in Australia and the United Kingdom: A Clear and Present Danger from Armed Conflict?

Abstract

Abstract ‘Time’ plays an important role in refugee status determination (RSD) because whilst fear must be current, the fear relates to present or future risk. This article examines the role of time in RSD and how time impacts upon the granting of refugee protection. Thus it concentrates on the test of a ‘well-founded fear’ in article 1A(2) of the Refugee Convention. Claims from persons fleeing armed conflict raise particular challenges because of the fluidity, unstable conditions, and protracted character of conflicts. Furthermore, the unpredictable nature of conflict means that people are, at times, already fleeing from harm that might well eventuate in the future but that is not yet current. Drawing on jurisprudence of the senior courts and appeal tribunals in Australia and the United Kingdom (UK), the article shows how these have long engaged with considerations of time in refugee matters. In determining who qualifies for refugee protection, courts and tribunals look backwards and forwards. Hidden within this process are assumptions about time that lie – almost invisibly – at the heart of the protection regime. When assessing whether a person has a ‘well-founded fear’ of being persecuted, the courts in Australia and the UK embrace a future-looking approach; a ‘clear and present danger’ is not required. The timeframe is that of the ‘reasonably foreseeable future’, situated somewhere between the ‘not too remote’ and the ‘present or immediate future’. This necessarily contains a degree of predictive speculation, understood to mean an exercise in prediction falling short of fact-finding. To be sure, foreseeability and certainty of risk are not to be conflated. Yet, at times, conflation between the two has occurred (by courts and tribunals), leading to exclusionary practices and outcomes. This has been the case, for example, where the situation in the country of origin was relatively stable but nevertheless fluid, meaning that while there could be a significant risk in the future, the risk was low at the time the decision was made. Considering that armed conflict continues to be the main driver for people claiming refugee protection in Australia and the UK, how senior courts and appeal tribunals understand and apply the timeframe of reasonable foreseeability in fluid situations (between peace and conflict) is key. This article highlights some best practices in that regard, including ensuring that this timeframe does not expand and contract with the apparent certainty or uncertainty of a situation.