Proposals on Refugee Status Recognition System and Status of Refugee Applicants in Japan
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February 21, 2014
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (“JFBA”) prepared its “Proposals on Refugee Status Recognition System and Status of Refugee Applicants in Japan” on February 21 2014, and submitted the Opinion to the Minister of Justice on February 28, 2014.
Measures to be Taken for an Appropriate and Prompt Refugee Status Recognition
1 On Whole Procedure including First Instance
(1) Establishment of organization for carrying out appropriate refugee status recognition
The refugee status determination (the "RSD") procedures by a third-party organization, independent from government agencies having jurisdictions over the immigration control and foreign policy, and free from any political and diplomatic considerations, should be established. For this purpose, experts called “RSD Officers" who are skilled in the research of information on countries of origin, as well as credibility assessment and refugee status determination by international standards, should be appointed and trained on a continuous basis.
(2) Securing transparency and objectivity in the RSD Procedures
(i) Fairness and transparency should be secured by officially announcing the concrete criteria for refugee status determination.
(ii) The reason for the refugee status recognition should be disclosed in detail. Further detailed explanation should be given where the refugee status is denied;
(iii) Information and materials used for the refugee examination should be disclosed in their entirety;
(iv) Tangible criteria for granting the special permission to stay on humanitarian grounds (so-called "complementary forms of protection", the “SPS”) should be disclosed, whereby fairness and transparency in the decision should be secured. In other words, it should be clearly set forth in laws and ordinances that SPS should be granted to the people who are prohibited to be deported to their country of origin according to human rights treaties other than the Convention Relating to the Status of Refugees (the "Refugee Convention"). In addition, criteria should also be established for cases requiring humanitarian considerations other than the above.
(3) Increase in procedural rights of applicants for the RSD Procedures (the "Refugee Applicants" or the "Applicants")
(i) The entire process of interviews by a Refugee Inquirer, oral opinion statements and the inquiry session during the Objection procedure should be video/voice-recorded, and, immediately after the completion of the process, such records should be made available to the Applicant without restrictions;
(ii) Opportunities to give rebuttal or explanation should be offered at least as to important evidences which may probably be disadvantageous to the Applicant;
(iii) Status of a legal counsel acting as an attorney should be adequately recognized, and his/her attendance at the interviews should be permitted as rights of the Applicants and the attorney;
(iv) Sufficient materials should be kept at a resource center established for collecting information on countries of origin (the “COI”), and such materials should be made available to the Applicants.
(4) Offer of protection to people in vulnerable situations during the RSD Procedures Special consideration for people in vulnerable situations, including children, females, elderly people, mentally and physically disabled people and torture victims, should be clearly identified in relevant laws, and especially, at interviews. Attendance of an attorney, a physician, clinical psychologist or other experts, as well as any person who the Applicant relies on, should be allowed.
(5) Securing of quality of interpretation during the RSD
Quality of interpreters should be secured on an institutional base by introducing measure such as public qualification system for the interpreters.
(6) Promotion of rapid RSD
While the time required for the RSD should be shortened, measure such as limiting the number of times of application or simplifying the review process should not be applied without careful consideration.
If the refugee status cannot be determined during the average processing period due to any unavoidable reason, the Applicant should, in advance, be notified to that effect and the approximate expecting period for the process.
2 Objection Procedure
(1) Securing of transparency and independence in the selection of Refugee Examination Counselors (the "RECs")
The RECs should be appointed by a committee newly established for the selection of RECs, upon the criteria for the selection being clarified and publicly announced.
(2) Information disclosure concerning duty of RECs
(i) The number of cases processed and recognized by a REC should be disclosed;
(ii) Opinions of RECs, whether majority or minority, should be disclosed in their entirety;
(iii) Procedures for the allocation of cases to RECs should be disclosed, whereby fairness in such allocation should be ensured.
(3) Reducing the backlog of Objection cases
(i) The backlog of Objection cases should be reduced promptly by fundamentally reviewing the RECs' processing system, such as increasing the number of RECs significantly or appointing full-time RECs;
(ii) Refugee status should be determined within two (2) months following the submission by the RECs of their opinions to Minister of Justice, and, upon such determination, the detail thereof should be notified to the Applicant without delay.
(4) Establishing expertise of RECs
The RECs should be granted training opportunities by officers from the Office of the United Nations High Commissioner for Refugees (UNHCR) or other researchers on continuous basis, and opportunities should be expanded where examples of opinion papers by past RECs or judicial precedents can be studied.
(5) Respecting RECs' opinion for recognition
Minister of Justice should not change its practice of respecting the RECs' opinion for recognition.
Status of Applicants, Detention and Deportation
1 Status of Applicants
(1) Restriction on working
The provisions and practice of the Ordinance for Enforcement of the Act (the "Ordinance") should be amended to allow for the Applicants to work without resident status (such as those granted Permission for Provisional Stay (the “PPS”) or Provisional Release (the “PR”)) after six months from the Application.
(2) Financial aid
The government's financial aid program should be extended to strengthen the support for the livelihood of the Applicants, and operated in a sustainable and stable manner based on the legal grounds, instead of as a non-statutory operation as it is now.
(3) Legal aid
The government should provide the legal aid for the proceedings of the refugee status application (the "Application"), the Objection procedure and the litigation against denial of recognition of refugee status, regardless of whether the Applicant has any legitimate resident status or not.
(4) Permission for Provisional Stay (PPS)
The current interpretation and practice for the reasons for disqualifying foreign nationals from PPS (such as stipulating requirements such as the Application must be lodged within six month after landing, and there is no likelihood of fleeing) should be revised, so that the PPS will be in principle permitted.
2 Detention and Deportation of Applicants
The Alternatives to Detention system (the "ATD"), which the pilot project was conducted between April 2012 to March 2014, should be utilized more actively to avoid detention of the Applicants as far as possible.
Execution of a deportation order should be expressly prohibited where the deportation order (or denial of refugee status recognition) is still challengeable or the case is pending at the competent court.
3 Application for Refugee Status at Port of Entry/Departure
(1) Providing information and advice to apply for landing permission for temporary refuge at the port of entry/departure
Officers at the port of entry/departure (e.g. the immigration inspectors) should be statutorily required to inform the RSD system to the foreign nationals who in some way have expressed the intention to seek asylum in Japan. The practice and judging criteria to permit the landing permission for temporary refuge should be reviewed to expand the scope of the permissible cases. Furthermore, upon landing the asylum seekers should be advised to apply for the refugee status, in addition to the landing permission for temporary refuge.
(2) Detention and RSD at port of entry/departure
Current interpretation and practice relating to the necessity and appropriateness of detention of the Applicants at the port of entry/departure should be reviewed. Detention should be avoided as far as possible, by utilizing ATD or other measures.
Status of Those Who are Recognized as Refugee (the "Recognized Refugees"), and Those Granted Resident status under Special Permission to Stay based on Humanitarian Grounds (the " SPS Holders")
1 Status of the Recognized Refugees
(1) Recognized Refugees should be statutorily provided with the education (including high-level education), vocational training and clothes, food and housing, for the period and extent that enable them to build foundation for living and social activities in Japan.
(2) Integration of family of the Recognized Refugees must be adequately ensured, in light of the purposes of the covenants such as the International Covenant on Civil and Political Rights (the “ICCPR”, Article 23) and the Convention on the Rights of the Child (the “CRC”, Articles 9 and 10). For that, special consideration should be made so that each family member can obtain visa to Japan, and obtain and maintain the resident status in Japan.
(3) For acquisition of nationality (naturalization) by the Recognized Refugees, the officers who receive the applications (regional Legal Affairs Bureau) should be made well aware of the provisions and the purpose of Article 34 of the Refugee Convention (that requires facilitated and expedited procedures with minimum charges and cost), and should not fail to comply with it. In the mid and long run, the relevant provisions in the Nationality Act should be reviewed.
2 Status of SPS Holders
(1) The status of SPS Holders is in most cases the resident status of Designated Activities. However, the rules should be revised so that, if they live in Japan for a certain number of years (including the period before the status is granted), in principle their resident status can be changed to Long Term Residents.
(2) The SPS Holders should be assured of the status and rights similar to those granted to the Recognized Refugees to the extent possible, including eligibility for various social security programs, in light of their quasi-refugee status.