WellFounded
Fear
1 Standard of proof
This part discusses the degree of proof which may be understood to be required by the expression
"wellfounded",
and what standard Japan applied in its practice during the 1980s and 1990s.
New Zealand applies the "real chance" test developed by the High Court of Australia, a more
lenient alternative to the balance of probabilities standard of civil cases. According to the test, it is
unnecessary for a refugee applicant to prove a 50 per cent chance of being persecuted. It is
understood that unless persecution is a "remote chance", "farfetched
possibility", or "mere
possibility", the required standard may be met.
This practice is necessary because these determinations entail a predictive appraisal of future
events. While the test of balance of probabilities is useful when there is a legally relevant relationship
between past causes and past effects, it is not appropriate when one prophesies the future.
Furthermore, the interests with which the Convention is concerned comprise fundamental human
rights including absolute ones. An error in the evaluation of a refugee application could result in
prolonged detention, torture or even death for the applicant.