Statement Calling for Normalizing the Complaint Review Mechanism on Refugee Status Determination Consistent with the Spirit of Amending the Administrative Complaint Review Act
It has been four years since the major amendment of the Administrative Complaint Review Act (“Act”) in April 2016, which was executed to ensure that the status of petitioners will be improved and the administrative procedures will be implemented appropriately. Consequently, over these years, multifarious administrative procedures have been conducted in accordance with the amended Act.
Meanwhile, in the process of making amendments to the Act, a broad range of exceptions were established for a particular administrative procedure, the refugee status determination procedure, as special provisions attached to the amended Act, including one that authorizes leaving out the opportunity for petitioners to give an oral opinion statement (Article 61-2-9, paragraph (6), the Immigration Control and Refugee Recognition Act). Ensuring the opportunity for petitioners to state their opinion orally is a crucial element in guaranteeing the appropriate implementation of administrative procedures. Therefore, the Japan Federation of Bar Associations (JFBA) expressed its grave concerns for such a provision, which might potentially dilute the spirit of the amended Act. See Statement on the Draft Revision of the Immigration Control and Refugee Recognition Act in Line with the Revision of the Administrative Appeal Act, May 23, 2014.
Statistics published recently revealed that in the 6,022 cases of complaint reviews on refugee status determination that were adjudicated last year, the petitioners’ opportunity to give an oral opinion statement was deemed waived in as many as 4,388 cases, which leaves us skeptical about the arbitrariness of the waiver. It is also a serious problem that in the 1,634 cases where petitioners did not waive the chance to give an oral opinion statement, it was in only 582 cases that they actually had the opportunity to make the oral opinion statement, which accounts for only 9.7% of the total number of cases determined in the year. Besides, in the 6,022 appeals filed, there was only one case where the complaint was upheld (i.e. the number of cases where petitioners were recognized as refugees), which means that the other 6,021 cases were dismissed, reducing the upholding rate as low as 0.017%. See Number of Applicants Recognized as Refugees in 2019, the Ministry of Justice.
This situation is much more dire than the concerns expressed in the aforementioned JFBA statement. As far as the complaint reviews on refugee status determination are concerned, considering that the opportunity to give an oral opinion statement had been acknowledged in principle under the previous objection filing mechanism before the Act was amended, there is no doubt that the status of petitioners has considerably declined compared to the past and the guarantee of appropriate administrative procedures has even gone backwards.
Just recently, in June this year, the Expert Committee on Detention and Deportation, an advisory body established under the 7th Immigration Policy Discussion Panel to the Ministry of Justice, published the Proposal to Solve the Issues of Deportation Evasion and Long-term Detention, in which it proposed the partial revocation of the effect of the suspension of deportation. Given the serious situation where the spirit of amending the Act has become considerably diluted as described above, it is obvious that what needs to be done first before implementing the “Proposal,” is to normalize the complaint reviews on refugee status determination.
Thus, the JFBA strongly urges the Government to normalize the mechanism of the complaint reviews on refugee status determination as the premise before advancing the discussion, in a decent way, toward improving the issues of immigration control/detention and deportation. The authorities should set about the action requested in this statement before implementing anything else, by taking immediate measures such as revising the Immigration Control and Refugee Recognition Act, returning to the spirit of amending the Act.
August 27, 2020
Japan Federation of Bar Associations