Already having taken steps to avoid harm is not the same as whether one can reasonably take steps to avoid harm for a Convention reason

The s 5J definition of well-founded fear of persecution deems that no such fear exists if it is reasonable to modify behaviour to avoid the harm: s 5J(3). This effectively reverses S395 (see Minister for Immigration and Border Protection v SZSCA at [36] per Gageler J).

Whether a person can take reasonable steps to modify behaviour to avoid the harm is not the same as whether a person has (already) modified his behaviour to avoid harm due to a Convention reason.

See for example, ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [34]-[36] where Rangiah J explains the difference in the context of a person who had suffered sexual abuse and remained silent because of that abuse. That is not the same as a person who has suffered sexual abuse and the decision-maker purports to apply s 5J(3) to arrive at the conclusion that it is reasonable for the person to stay silent forever about the abuse and in that way, avoid harm.

The distinction was the subject of an argument in DQU16 at [5].

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