Why Japan recognizes only a few refugees? Institutional challenges

“Japan recognizes too few refugees”
“No it’s not a matter of numbers. We did a thorough screening, and the result was that only a few made it through.”

This is a typical discussion between participants with different positions such as lawyers, the Justice Ministry and support organizations. Views on the current situation vary depending on their position, however the challenge we face is that the refugees who flee in search of help seek life are not being helped.

The refugee recognition rate in Japan is less than 1%, what about the rest of the world?

In 2016, 10,091 people sought refugee status in Japan and only 28 were recognized. The situation varies from country to country and it is not possible to make an easy comparison but it is a fact that Japan recognizes the fewest refugees in the world. If we take for example the recognition rate of Syrian refugees in 2015, it was 99.8% in Germany, 94% in the US and 90% in Australia. However of the 69 Syrians who applied in Japan between 2011 and 2016, only 7 people were granted refugee status.
This article will explain the institutional challenges in order to answer the question why Japan recognizes so few refugees.

What exactly is the issue?- The absence of political will and focus on “controlling” refugees

The first problem is that Japan does not have enough political will to accept refugees proactively. Essentially, the refugee issue is a simple matter of ‘saving people’s lives’. However in reality, we see problems when a country accepts more refugees than it can cope with, or when the acceptance of the people has not been obtained. So there must be a political decision as to how far the doors should be opened to refugees.
For example in Germany, the constitution recognizes the right of refugees to seek help (the right of asylum) because of its history of persecuting the Jews. The fact that the society recognizes the importance of helping refugees must have been one of the factors that allowed Prime Minister Merkel to play a leading role. Canada has a history of building the country by accepting immigrants and refugees, and people have a common understanding that accepting others will grow social power and this social background is not unrelated to Prime Minister Trudeau taking power by promising to accept refugees.

The reality that the refugee issue is not considered a priority in politics in Japan is actually a reflection of the fact that people are not interested in refugee issues in society. In November 2011, both the House of Representatives and the House of Councilors adopted the “Continuous Efforts with regards to Refugee Protection and Refugee issue solution Act” and expressed that Japan would work on protecting refugees. The law is revolutionary as it talks about strengthening partnerships with international organizations and civil groups. To realize such initiatives it is also important to attract more interest. There is a misunderstanding or bias that associates accepting refugees with deterioration in security or increased social risk and this might lead to holding up initiatives in politics.
In addition, there has not been enough discussion about accepting immigrants, let alone refugees. Building an immigration policy with a view on how to accept people and build society together would lead to a discussion on how to accept refugees as members of society.

The second problem comes from the evaluation process for refugee status, where the Immigration Bureau takes control of the procedures and hence the emphasis is on control rather than protection for the refugees. For example, even if a person asks at an airport to be protected as a refugee, they are not permitted to enter Japan and they are detained straight away. There is a case where someone’s application for refugee status is rejected, as soon as their refugee status is rejected he or she would be detained and deported immediately.
Of course, people who might pose a threat to security need to be screened when entering Japan and this is an important role of the Immigration Bureau. Essentially, the Immigration Bureau should check potential social security risks and a separate, independent governmental organization should review refugee status. We need such an organization to manage not only legal procedures but also to direct policies which will look after refugees until they achieve independence. What refugees are most afraid of is to be sent back to their home country where their lives are in danger. A wrong decision should never occur and the refugee forcibly sent back to his or her home country, this is the most important rule(Non-refoulement principle: No sending-back) in the refugee convention.

We have pointed out that the essential problem comes from the lack of political will and that refugee protection is treated as part of immigration control. Next we will explain some specific problems in the refugee recognition process.

Historical background of the Refugee Convention

refugeeintheworld.jpgUnder the 1951 Refugee Convention, refugees were defined as those who ‟owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

The convention adopted in 1951 has been regarded as one of the basis on which various countries have conducted their judgements on refugees. It is important to have international agreements but the Refugee Convention isn’t all encompassing. The reason being, the convention was a product of its time, and its interpretation has been left in the hands of each country.
The Refugee Convention was created to aid those who had become refugees following the Second World War. But it’s difficult to deny the fact that a convention adopted under the backdrop of the Cold War was politically used by Western nations to criticize Communism. It is thought that “political opinion” was listed among the forms of persecution to reflect the background of the times. After the end of the Cold War, many people were chased from their home countries as a result of civil wars erupting across the world, but the definitions of the Refugee Convention haven’t changed.

In reaction to actual changes, both the UNHCR and countries around the world have made efforts to broaden their interpretations of the convention in order help refugees who exist in the real world. For example, the UNHCR has been trying to encourage the recognition of refugees to follow an international standard through the publication of the handbooks for determining refugee status. For example, in reaction to the Syrian crisis, they have published a guideline called `International Protection Considerations with Regard to People Fleeing the Syrian Arab Republic’. In Europe, various countries have tried to create a shared protection policy through the creation of guidelines for the protection of refugees, or raising the level of refugee protection by getting favorable court case results to accumulate.

How has Japan responded to these changes in the world? Japan adopted the Refugee Convention in 1981, after refugees from Indochina were stranded ashore in the late 1970s. But unlike Europe, Japan hasn’t had many opportunities to directly involve itself with the global changes surrounding refugees, and neither the government nor society has had a clear sense of will to create a system to help refugees. You could say that it’s a reflection of Japanese society’s weak will to protect the human rights of foreign nationals.

■Explanation of key points■
The Japanese refugee recognition system has flaws in these two standards:
 1. Standards regarding who they recognize as “refugees” (standards of recognition)
 2.Standards on whether bureaucratic procedure is carried out correctly (due process)

The first issue is the definition of refugees and the interpretation regarding persecution. The explanation of the convention is singular, but in reality the interpretation differs from country to country, and as a result whereas country A may decide to recognize someone as a refugee, country B may not. Although the right to interpret the convention is left to each country, it does not mean that arbitrary interpretations are allowed. The Japanese interpretation goes beyond `strict’ to a level where it in part misses the intention of refugee protection, and lawyers and researchers have pointed out that it does not hold up to international standards. Recognition of facts is an extremely important part of the process of refugee recognition, and is conducted through comparing what the applicant says with information from their home countries. In Japan, that collection of information is required from the applicant themselves, and very strict standards are given to judge whether or not the information is reliable.

The second issue surrounds that of whether the screening process is conducted appropriately. Key issues include whether the refugee who goes through the screening process is given ample opportunity to prove that they are a refugee, and whether a fair process is being followed. Whether those who want to are able to apply for refugee status, whether there’s a linguistic support system in place to let the refugee make their claims in the appropriate way, whether they can get support from lawyers, whether they have been given the opportunity to explain themselves if there is evidence that would harm their case, and that the existence of such evidence is explained. And if their applications are rejected, whether the reasons why are clarified.

“Theory of individual recognition” – if you’re not personally targeted by the government, you’re not a refugee?

The theory of individual recognition is a Japan specific interpretation that unless you are personally recognized and persecuted by the government, you are not a refugee. This theory makes those who can be recognized as a refugee severely limited.

*The case of one Syrian man
Arrived in Japan in 2012. Application for refugee status was rejected, and currently going through court procedures. Participated in demonstrations against the Assad government after witnessing innocent children being murdered. However, the Japanese government said `although it cannot be denied that there is the danger of being attacked during the demonstrations, it’s a problem that is shared by all people who participate in demonstrations of that kind, and is not a danger that is unique to the appealing party’ as a reason to reject his application. So the decision was that refugees are those who are individually in danger, and Syrians who participate in demonstrations are all in danger so are thus not refugees.

*The case of one woman from Africa
Arrived in Japan in 2009. Following court procedures, was designated a refugee in the autumn of 2016. In the beginning, the government rejected her claims on the basis that she `was not in a leadership position.’ She was attacked when she was with her companions in the opposition party, and obtained a medical record from a hospital showing that she had miscarried as proof of her story, but her application was rejected. In the end the Nagoya high court decided that she was a `refugee’ since she would be in danger of her life if she went back to her home country even if she wasn’t in a leadership position, taking into consideration the human rights situation in Uganda where even general party members are arrested and suffer through violence. She won. This was a ground-breaking case of victory.

In reality, it is extremely difficult to accurately perceive who the government is targeting to suppress or monitor, and it is completely possible to think that those in leadership positions who are harder to persecute will be left alone, while the government’s attacks are aimed at more general party members. It’s necessary for court decisions to be made based on the fact that human rights abuses can be made against a group rather than against individuals.

The interpretation of persecution is narrow – forced labor isn’t persecution?

Japan has a tendency to interpret persecution in a limited way. In American, Canadian and European refugee recognition institutions, persecution includes important human rights violations beyond threats to a person’s life and physical freedom. We’ll put aside whether `important human rights violations ‘ is limited to things such as physical constraint and forced labor, or whether it includes issues such as not recognizing freedom of religion, and taking away opportunities for education and employment for now. In Japan, persecution strongly tends to be limited to that concerning threats to a person’s life and physical freedom, and furthermore there are cases where even when physical freedom is taken away, persecution isn’t recognized.

For example, one ethnic minority Rohingya refugee from Myanmar (Burma) who had fled persecution and had undergone forced labor for several days was rejected on the grounds that `forced labor was limited to 2 or 3 days, and they weren’t necessarily always unable to eat’ so their life wasn’t threatened. The weak recognition of human rights that underlies this kind of decision is also a problem.

The burden of proof is too high- Can we actually make it black and white?

Another peculiarity of the Japanese system is that the standards of proof of refugee status are high. During the screening process, refugees are required to provide objective proof that they cannot return to their home country. But it is not realistic to expect a refugee fleeing persecution to have brought proof with them. This would in fact expose them to even more danger if it were to be discovered by the authorities before they leave their country. Sometimes people burn all evidence before they leave their country, for fear of putting their families in danger. Even if they manage to get on a plane to leave their country, they may be afraid of being refused entry at their destination and sent back to their home country. So, to conceal their place of origin, they tear up their passports and flush them down the toilet. From the refugee’s point of view, this is the logical thing to do.
Escaping with objective proof is highly dangerous, but in Japan we can see from the many cases where refugee status has been denied, that it is seen as very important.

*Example 1 “You say that soldiers attacked your mother while they were looking for you, but there is no documentation to back this up. “
(From : Twenty Verdicts in Favor of Refugees, p24)

*Example 2 “You say that after you were expelled from the university, a warrant was issued for your arrest by the intelligence agency, but there is no objective proof of this and your statements are based on hearsay from your relatives.
((From: Twenty Verdicts in Favor of Refugees, p24-25)

The UNHCR says the difficulty of proving refugee status should be taken into account and that they need to be given the benefit of the doubt.

“After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.”
(From UNHCR Handbook, paragraph 203)

Even though there is a principle that the accused should get the benefit of the doubt in criminal cases in Japan, this is not extended to refugees.
There is also a high burden for refugees in terms of whether their assertions and the evidence backing them up can believed, ie whether or not it is credible. If the details of their assertions change even slightly over the course of several interviews with the Immigration Bureau, or if there is little evidence to back them up, this is taken as a reason not to believe them. For example, if someone’s family was attacked and killed in front of them, they are asked to provide details of what kind of injuries they had on which parts of their bodies. If they give an even slightly different explanation over the course of multiple interviews which last several hours, this is judged to be inconsistent. Many refugees are wary of government workers because of their experiences in their home country. In such cases, it’s possible they won’t tell the whole story straight away, but reveal it little by little.

The screening of refugees is supposed to be a consideration of the possibility of future danger, but it is impossible to prove a future possibility 100 percent. That’s why the definition of a refugee is not someone who has suffered persecution in the past, but someone who is in danger of suffering persecution in the future. The standard of proof should be based on that.

Is the process fair to refugees?

While the standard of proof is extremely high, it is also important to look at whether refugees are being given sufficient opportunity to make and prove their assertions, and whether the process is fair.

For example, there is the problem of language. In interviews, there is not always a neutral interpreter provided in the appropriate language (ideally the native language and if not then the official language of the country of origin); and documents to be used in evidence are required to be in Japanese, making it very difficult to convey someone’s assertions properly. Small mistakes in translation during screening can be fatal, but there is no sound or video recording of the interviews, and written records are made only in Japanese. If there is a problem with the interpretation, it is very hard to check. In addition, applicants who have enough Japanese ability to translate their own evidence documents are extremely rare. There is no public funding for translation costs, so the system makes it almost impossible to provide full documented proof through their own efforts.

When someone is not accepted as a refugee, the reasons are not made clear which is a problem. This is because if the basis on which the government declines to designate someone a refugee is not revealed, refugees and their lawyers do not get the opportunity to produce counter evidence (the principle of a level playing field in terms of access to information). If a clear explanation were given as to what evidence is lacking, it would be possible to gather more documentation and make an objection.

The requirement that refugees need to gather evidence themselves to prove their status (burden of proof) is also an issue. For example, information about the human rights situation in the country in question is something that the government can gather themselves. In the case of Japan, it is the refugee’s responsibility to gather evidence that the government could gather for itself. In order to make this fairer, the burden should be split between both sides.

Finally — in order for Japan to accept refugees

In recent years, the number of applicants for refugee status has risen, but the number recognized remains low. It is difficult for JAR to say how many more people would be recognized if the systemic problems explained above were to be resolved because we do not have information about all applicants. But going on the 700 people we work with annually from 66 countries, we can say with certainty that the number of applicants recognized as refugees is too low. Lawyers estimate that the number of applications that should be accepted is in hundreds. And the number of applicants who have been rejected, who then go through the courts and are accepted, proves that the system is not working properly.

On the other hand, it is true that some of the applicants are not genuine refugees. In the past few years, the Ministry of Justice has been reviewing the system to make it stricter and exclude these people. This is known as the problem of “fake refugees.” It is a fact that some people seek refugee status in order to gain permission to work. This stems from the fact that while there are Japanese companies short of workers, the government does not accept migrant labor. In other words, it is closely linked to the absence of an immigration policy needed by the economy. Making the refugee screening system stricter would not only fail to tackle the root of the problem, but it might mean that even more people who should be given asylum are not.

No country has a clear-cut answer to the refugee crisis. But compared with the countries neighboring those from where refugees are fleeing, and with certain European countries that are dealing with the arrival of many refugees, we can at least say that there is a lot more Japan can do. JAR will continue to aim to protect refugees as appropriate, by working to resolve the systemic problems described above.
*1 Tokyo Shimbun newspaper, Feb 16, 2017 
*2 UNHCR, UNHCR The Need for International Protection for People fleeing the Syrian Arab Republic,Oct 2014
*3 Lawyers for Burmese, “Statement”, October 29, 2010