Z v. Japan (Minister of Justice)
|Publisher||Japan: District Courts|
|Author||Tokyo District Court|
|Publication Date||9 April 2003|
|Citation / Document Symbol||Heisei 14 (2002), Kou No 116|
|Cite as||Z v. Japan (Minister of Justice), Heisei 14 (2002), Kou No 116, Japan: District Courts, 9 April 2003, available at: http://www.refworld.org/docid/3f37682f4.html [accessed 29 May 2015]|
|Comments||The case summary was prepared by Julia White and Satoshi Yamamoto, under the supervision of Prof. Arakaki.|
1. The plaintiff first arrived in Japan on
2. The plaintiff arrived in Japan for the second time on
3. Oral inquiries into the plaintiff's refugee status claim were conducted on 6 and
4. Meanwhile, on
5. The plaintiff instituted judicial proceedings for the cancellation of the deportation order on
7. The judicial proceedings were converted to a claim for compensation under the State Redress Law on
The plaintiff's claim
8. The plaintiff claimed compensation under the State Redress Law for harm suffered as a result of the unlawful decline of his refugee status application. The plaintiff's principal claim was for compensation of 11,770,000 yen.
9. This case relates to the procedure followed by the Minister of Justice to determine the refugee status application of the plaintiff. The plaintiff was granted refugee status during the course of the judicial proceedings, and the facts on which his claim was based were not in dispute at the time of judgment. The following facts from the plaintiff's testimony were accepted by the Court.
10. The plaintiff is from Myanmar, of Rohingya ethnicity, born in 1972. His given name is L. Under the current military regime in Myanmar, Rohingyas are not considered nationals of Myanmar, and are not granted civil rights. Among other things, they face restrictions on their freedom of movement and property rights. In 1995 when the plaintiff applied for a national identity card he was told that it could not be issued in a Rohingya name, but that he could apply in another name. Thus he was issued with a national identity card in the Burmese name of Z, a name he had adopted at university as it was easier for his classmates to pronounce.
11. The plaintiff became involved in the pro-democracy movement in 1988, his final year of high school, holding positions in the recently established student union. In September of the same year, the military seized power in a coup d'etat and began to crack down on pro-democracy activists. The police visited the plaintiff's house, and he went into hiding for around six months. He returned home, and in 1990 he founded a political party which was mainly supported by Rohingya students.
12. The plaintiff was admitted to the science faculty of Sittwe Degree College in November 1991, and after two years of studies was admitted to the science faculty at Yangon University. He had not participated in pro-democracy activities while at Sittwe Degree College. However when he tried to board a flight to travel to Yangon in November 1993, the airport police found a notebook in his luggage in which he had written about his pro-democracy activities and his political opinions. He was handed over to the Military Intelligence Bureau and held for 13 days during which time he was beaten with sticks and belts. He was released after the intervention of his teachers.
13. In 1995 he again became involved in pro-democracy activities. Following the release of Aung Sang Suu Kyi in July 1995 he and his colleagues began to gather outside her residence, and eventually they were able to meet with her. They had three or four meetings with her, discussing the student democracy movement.
14. In August 1995 the plaintiff was seized by Military Intelligence Officers who appeared at his house in the middle of the night. He was held for two nights during which time he was beaten and kicked, and questioned about his membership of political organisations. On his release he was forced to sign a pledge (using the name L) saying that he would not participate in political activities in the future.
15. However the plaintiff and his colleagues continued with their activities and formed the Burmese Students Front (later to become the Students Democratic Front (SDF)). In December 1995 the conflict between the military regime and the National League for Democracy (NLD) became more serious and the military regime began arresting political activists. When they also began to target student activists in January 1996 he began to be concerned about his safety. He obtained a passport and a visa through a broker, and left for Japan on
16. He was refused entry into Japan, and returned to Bangkok from where he re-entered Burma. In Bangkok he met a fellow Rohingya who informed him that he could have applied for refugee status at Narita Airport.
18. The plaintiff was amongst those arrested and was questioned for two days. The questioning intensified once it became known that he had been arrested previously and had pledged not to participate in political activities. In addition to being beaten and kicked, he was only given food once in two days, and was prevented from sleeping. He was again forced to pledge against participating in further political activities. Again he used the name L and so from this time forth he used the name Z in his daily activities.
19. Following terrorist attacks against members of the regime in December 1996 and April 1997, student activists were placed under investigation. One of the plaintiff's colleagues was arrested after the second terrorist incident. Also in 1997, as a result of Myanmar joining ASEAN, the regime decided to reopen the universities which it had closed following the December 1996 demonstrations. The regime was therefore determined to prevent further uprisings and so began a crackdown on student activists from around December 1997.
20. As a result, the plaintiff again became concerned about his safety. He began preparations to leave the country in around October 1997, including approaching a broker to obtain the necessary documents. Then in January 1998 following the arrest of his colleague Y, he learned from Y's mother that the police who arrested Y had asked questions about Z's whereabouts. He therefore stepped up his preparations to leave the country. He left Myanmar on
Findings and reasoning
21. The Court accepted the evidence about the plaintiff's background as a student activist in the democracy movement in Myanmar. It found that based on his experience of arrest and mistreatment at the hands of the Myanmarese government, he had come to Japan to avoid persecution in Myanmar. It acknowledged his submission that he also suffered persecution on the basis of his ethnicity (Rohingya) but found that as there was sufficient evidence to find that he had suffered persecution on the grounds of his political opinion, it was unnecessary to consider whether he had also suffered persecution on the grounds of his ethnicity. The Court found that the plaintiff was a person who had a well-founded fear of persecution on the ground of his political opinion, that is, he was a refugee, and noted that the defendant now accepted this.
22. It thus found that the initial determination that the plaintiff was not a refugee was unlawful. However it noted that the basis for assessing whether the defendant had committed an unlawful act for the purposes of the State Redress Law was whether the defendant had breached her legal duty to the plaintiff. Specifically, the question was whether, despite the fact that the defendant should have determined that the plaintiff was a refugee on the basis of the evidence (including documents that the defendant had obtained, documents she should have obtained, and documents that it could reasonably be said she would have been able to obtain), she failed to reach that determination because of a mistaken evaluation of those documents, or a failure to obtain such documents. If she had breached her legal duty in this way, an unlawful act for the purposes of the State Redress Law would be established.
23. Before turning to examine the procedure followed by the defendant in this case, the Court examined the issue of burden of proof as it applies in refugee status applications. It rejected the defendant's argument that the burden of proof lies on the applicant.
24. Article 61-2-1 of the Act provides that the Minister of Justice should make a decision on refugee status based on the documents supplied by the applicant. Article 61-3-1 provides that where there is a risk that it might not be possible to reach a fair decision based only on the documents submitted by the applicant, the Minister of Justice may direct the Refugee Inquirer to conduct an investigation into the facts. Thus the article can be interpreted as placing the primary responsibility on an applicant to provide documents to prove his/her claim.
25. However, the Court noted that people who are exposed to persecution and likely to face difficulty leaving their home country can not be expected to prepare documents to support their refugee status claim before fleeing their country. Consequently it is not appropriate to place a strict burden of proof on them. Further, the Minister of Justice can obtain general information about the social and political conditions in applicants' countries. The testimony and documents provided by applicants can also provide a lead to other documentation. The Court noted that in the parliamentary debate prior to the passing of the Act, a member of the government committee stated that:
"When it comes to making a refugee status determination, with respect to the burden of providing proof that a person is a refugee, that is of course placed on the applicant. It is appropriate to understand that the task of corroborating the statements of the applicant with objective evidence belongs to the Refugee Inquirer."
The Court went on to state that, based on this understanding of the burden of proof:
"it is not appropriate to interpret [article 61-2] as stating that, with respect to refugee status applicants, the same burden of proof as in court proceedings is imposed and that the duty of proof of refugee status lies wholly on the refugee applicant, so that unless an applicant fulfils that burden he/she can not be recognised as a refugee. The Minister of Justice should also bear the duty of conducting an investigation of the necessary scope, in light of the applicant's testimony and the documents provided. It can be seen that Article 61-3-1, which provides for investigation by a Refugee Inquirer, is based on this understanding. Thus, the Minister of Justice is required, first, to evaluate the contents of the testimony and documents provided by the refugee status applicant, and while considering the credibility of that testimony and documentation, make a judgment on the necessity and scope of supplementary investigation. When making that judgment, she must pay careful attention to the fact that the subject of investigation is a foreigner who, naturally, speaks a different language, and has a different social, political and cultural background to Japanese people, and that it would not be unusual for people who have fled persecution in their country of origin to seek refugee status in an unfamiliar country to face different psychological conditions from normal people. The Minister of Justice must pay careful attention to the fact that their actions may not necessarily be the rational actions of ordinary people. That is, in evaluating and examining the testimony of refugee applicants, it is not appropriate to take the attitude that when contradictions or doubts appear as a result of a superficial and perfunctory examination, it is enough to immediately reject that testimony on the basis that it lacks credibility. Rather, it must be said that it is necessary to make a careful deliberation after considering the matter from the perspective that there may be a possibility that such contradictions or doubts may have arisen as a result of the translation process, or from linguistic differences, or differences in "common sense" or the psychological confusion or confused recollection that may be peculiar to refugees,. "
In summary, the Minister of Justice, who determines refugee status, has a duty to determine whether a person meets the refugee criteria after giving proper consideration of the situation of the refugee status applicant in question, making a fair and careful evaluation and examination of the testimony and documentation provided, and if necessary conducting a supplementary investigation. This is a legal duty which is owed to the refugee status applicant who is provided with the right of application.
26. The Court then turned to the facts of the case. It considered the testimony given by the plaintiff in his interview on 6 and 7 April and the evidence submitted up to the date of the determination of his refugee application. The Court found that the origin of the political persecution that the plaintiff claimed he came to Japan to escape (in the second instance) was clearly his participation in the student demonstrations of December 1996. Consequently, to determine whether or not he was a refugee it would have been necessary to investigate whether or not he had in fact participated in those demonstrations, and what role he had played. However the Court noted that there was no evidence that the plaintiff was questioned about these matters. The Court noted that instead the defendant focused on matters such as how the plaintiff could have known he was on the military regime's blacklist, and how he knew about the existence of the Rohingya Association in Japan.
27. The Court also noted the defendant's failure to clarify matters such as why the plaintiff had obtained his passport before the date he claimed to have felt at risk and decided to leave the country, and why the military regime began targeting student activists in December 1997, a whole year after the student demonstrations in December 1996. This was despite the fact that these were matters that the defendant relied on as grounds for doubting the plaintiff's testimony. Similarly, the defendant later claimed that the plaintiff's role in the student organisation was unclear, despite having failed to question the plaintiff about this.
28. The Court noted that the questioning, which focused on matters such as whether the plaintiff had decided to make a refugee application before or after speaking with his lawyer on 2 April, suggested that the Refugee Inquirer strongly suspected that the plaintiff had submitted a false refugee application to avoid deportation.
29. The Court noted that the plaintiff's first submission in support of his refugee application dated
30. The Court found that the conflict in Myanmar between the military regime and the NLD and other groups calling for democracy, and the oppression of democracy activists from 1988 until 1996, the time relevant to the plaintiff's claim, was a matter that was often reported by the Japanese media. Further the December 1996 demonstrations at the core of the plaintiff's claim were reported in relative detail. Therefore in this case the background facts about the oppression of democracy activists in Myanmar could be objectively established with relative ease. Whether or not the plaintiff met the refugee definition was therefore a matter of the credibility of his claims about participation in that democracy movement and his claims about having been subjected to oppression.
31. The Court therefore turned to consider the credibility of the plaintiff's testimony. It noted that on the one hand, after his first attempt to enter Japan the plaintiff had departed without applying for refugee status, and that the second time he had initially claimed to be entering Japan for business purposes. Thus it was natural for the defendant to have suspected that the plaintiff made a false refugee status application to avoid deportation. However, in his testimony the plaintiff had given satisfactory explanations for his actions, stating that the first time he came to Japan he did not know he could apply for refugee status at the airport, and that the second time he entered, although he was aware he could apply for refugee status at the airport, he had been warned that if he did so he would be detained for a long period. Consequently he had planned to first gain entry to the country, and then apply for refugee status. The Court found that as the plaintiff had provided a sufficiently convincing explanation with respect to the aforementioned doubts, the defendant should not have concluded that his testimony was false on the basis of those doubts. The Court therefore found that, having removed the cause for doubt about these points, the testimony of the plaintiff with regard to the events relating to his persecution was largely, if not entirely, consistent with the facts which eventually formed the basis for recognition of his refugee status. It could therefore easily be said that the plaintiff's testimony was credible. Thus, based on the evidence which the defendant gathered, or could have gathered (that is, if the Refugee Inquirer had made sufficient enquiries about the student demonstrations that were at the core of the plaintiff's claim), it had to be said that it was easily possible for the defendant to have reached the determination that the plaintiff was a refugee.
32. The Court then examined the reasons given by the defendant for having rejected the credibility of the plaintiff's testimony. The defendant's claims related to aspects of the plaintiff's testimony which it considered contained contradictions or discrepancies, or to be unnatural.
33. With respect to some aspects of the reasons the defendant gave for having doubted the plaintiff's testimony, the Court found that without giving the plaintiff an opportunity to comment on the information or explain the discrepancy, it could not be said that the defendant had made its determination following a fair and just evaluation and examination of the plaintiff's testimony.
34. For example, the defendant submitted that with respect to when the plaintiff decided to leave the country, on the one hand the plaintiff had testified that "in around December 1997, I vaguely thought about going to Japan. Therefore I decided to obtain a new passport", whereas on the other hand, he had also testified that "Around the beginning of February 1998, when "Y" was arrested, and I heard from his mother that I was on the list to be arrested, I decided to leave the country and apply for refugee status in Japan." The defendant claimed that not only were these statements themselves contradictory, but also that the latter statement conflicted with the objective evidence that the plaintiff had already been issued with his passport on 26 December 1997, and in that same month had obtained other documents relating to his entry to Japan. The defendant therefore found that the plaintiff's latter statement was not credible.
35. With respect to this claim by the defendant, the Court noted that the same testimony could easily be understood as saying that in about December 1997 the plaintiff sensed he was in danger and began preparations to leave the country, but as a result of Y's arrest in February 1998 he felt he could not hesitate any longer and determined to leave the country. On this interpretation there was no discrepancy in the statements and no conflict with the evidence. Consequently the Court found that the defendant's interpretation was erroneous, or at least, without seeking an explanation certainly did not permit a finding that the plaintiff's testimony was not credible.
36. Another example given by the Court related to the fact that the plaintiff had first denied having met Aung Sang Suu Kyi, but in his second written submission he had stated that he had met her, but that he had not mentioned this because he did not want to cause trouble for the NLD. The defendant stated that it had found the plaintiff's testimony was contradictory, and gave this as a basis for finding he lacked credibility. However, the Court found that given the question of whether or not the plaintiff had met Aung Sang Suu Kyi was highly relevant to his claim, and the information arose after the refugee status interviews had been completed, the Refugee Inquirer should have conducted a new interview to confirm the plaintiff's relationship with Aung Sang Suu Kyi and ask why he had not mentioned this in order to evaluate the truth of his submissions. However, there was no evidence that such an investigation had taken place. The Court found that this was a major flaw in the investigation.
37. The Court also faulted the defendant for failing to ask the right questions in order to elicit important information. For example, the defendant claimed that the fact that plaintiff did not immediately claim refugee status when he entered Japan on the second occasion was unnatural. However the Court considered that if the Refugee Inquirer had asked the plaintiff about this, it is likely the plaintiff would have given the same explanation he had given to the Immigration Inspector who had interviewed him with respect to the deportation proceedings, that is, that he had heard that if he applied for refugee status at the airport he was likely to be taken into detention, and therefore to avoid being detained he had wanted to gain entry into Japan on a business permit before applying for refugee status.
38. The Court also criticised the defendant for failing to recognise that the situation in Myanmar cannot be judged by the standards of a country that operates under the rule of law. For example, although the defendant found it unnatural that the Myanmarese government had cracked down on student activists in December 1997, a whole year after the demonstrations of 1996, the Court observed that this was not necessarily unnatural for a country in which political persecution is rampant. The Court noted that from the evidence the punishment of the students involved had continued throughout 1997, and that given two terrorist incidents were directed against the regime in late 1996 and in 1997 it was not unnatural for the regime to have cracked down on the students around that time. Moreover, as had become apparent in the original judicial proceedings, the crackdown also related to Myanmar's inclusion in ASEAN and the consequent reopening of the universities. While this corroborating evidence arose subsequent to the refugee determination, the Court criticised the defendant for its failure to raise its doubts with the plaintiff and ask further questions which could have elicited such further information.
39. With respect to yet other aspects of the plaintiff's testimony which the defendant found raised doubts about his credibility, such as the question of how the plaintiff knew about the existence of the Rohingya Association in Japan, the Court found that these aspects were not significant when determining whether or not the plaintiff was a refugee, and thus should not have been used as a basis for rejecting the credibility of the plaintiff.
40. The Court then looked at the reasons the defendant gave for its subsequent review of its decision to decline refugee status, resulting in the determination that the plaintiff was a refugee. The Court found that it was unable to accept any of the five reasons given by the defendant.
41. The first three reasons given by the defendant related to information the plaintiff gave in the original judicial proceedings, subsequent to the defendant's decision to decline refugee status, which the defendant claimed clarified or elaborated on the evidence given by the plaintiff in support of his refugee status application. Specifically the information related to the demonstrations of 9 and 10 December 1996; the plaintiff's explanation as to why he had only left Myanmar in March 1998 despite having felt at risk following the demonstrations in December 1996; and how he had been able to leave Myanmar, (which related to his use of the alias Z instead of his given name L).
42. The Court rejected each of these reasons on the grounds that the information would have been available to the defendant before the decision to decline refugee status, if it had not been for its flawed investigation of the facts and/or flawed assessment of the available information.
43. For example, with respect to the details about the demonstrations of December 1996 that the plaintiff had given in the original judicial proceedings, the Court emphasised that this information was crucial to the determination of his refugee status. Consequently, a standard investigation should have involved the defendant requesting the plaintiff to explain how the demonstrations came about, how the plaintiff came to participate in those demonstrations, and the circumstances at the demonstrations etc. The defendant should then have evaluated that evidence from various angles to consider whether the information given was so specific and realistic that only a person who had participated in those demonstrations could have given that evidence, and whether it conformed with the objective evidence about the demonstrations obtained from the media. The Court noted that in the course of the administrative appeal against the decline of refugee status, the plaintiff's lawyer had shown a video of the relevant student demonstrations and the plaintiff had answered questions about the event. The defendant's records relating to this incident indicate that when the plaintiff watched the video he had become very disturbed, and that this had made a significant impression on the interviewer. The Court noted that if a similar method had been used at the original refugee status hearing, or if detailed questions had been asked, from the plaintiff's testimony and evidence it should have been abundantly clear that his claims were sincere and realistic. The Court found that in this respect the investigation in this case was inadequate. Similar findings were made with respect to the date and circumstances of the plaintiff's departure from Myanmar.
44. The fourth reason given by the defendant for its subsequent overturn of the decline of refugee status was that in the original judicial proceedings the plaintiff had given evidence that following his departure from Myanmar, government authorities had searched his house and his relative's houses. The Court acknowledged that this information was only available subsequent to the determination, but it found that based on the plaintiff's testimony that since the arrest of Y the plaintiff had known he was a subject of investigation by the authorities, it was incorrect for the defendant to say that there was no evidence about the fact that the plaintiff was under investigation at the time of the determination.
45. The fifth reason given by the defendant was that the plaintiff had come to be a central member of the Rohingya Association in Japan since his release from detention. The defendant considered that this fact corroborated the plaintiff's claim that he was a central member in the 1996 demonstrations. However although the Court acknowledged that this fact only arose subsequent to the decision to decline refugee status, it found that given it is well known that asylum seekers often become involved in anti-government activities in the country where they make their refugee status claim for the purpose of strengthening that claim, it would have been inappropriate to allow the plaintiff's anti-government activities in Japan to influence the determination of his refugee status application.
46. The Court summarised its findings about the investigation carried out by the defendant as follows:
"based on the above, the testimony of the plaintiff up until the time of the decline of his refugee status application could certainly not be determined to be lacking in credibility, but rather, it must be said that after close questioning about the doubtful areas, after granting the opportunity to explain, and based on fair and careful evaluation examination, it was quite possible to reach the determination that the testimony was trustworthy. As already indicated, the defendant's claim that the original testimony was lacking in credibility, and that it was only based on facts that were disclosed subsequently that it was able to determine the credibility of that testimony cannot be accepted. Rather, seen in the light of the points raised above at [ ] it is highly likely that the Refugee Inquirer, fixing on his/her suspicion that the refugee application was submitted in order to avoid deportation, despite the existence of sufficient information to dispel this suspicion, failed to take this information into account, and, swayed by her first impression, focused her attention on the doubts and gaps in the plaintiff's testimony. It must be said that as a result, he/she failed to ask sufficient questions that were central to the refugee determination, and without giving a fair and careful evaluation or examination of the plaintiff's testimony reached an erroneous decision."
47. The Court found that by overlooking these flaws and inadequacies in the Refugee Inquirer's investigation, and reaching an erroneous decision, the defendant had failed to fairly take into account the circumstances faced by refugees, and had breached her legal duty as Minister of Justice to fairly and carefully evaluate and examine the plaintiff's testimony. Her actions were therefore unlawful. The Court found that this breach of the defendant's duty was negligent, given that if a proper awareness of how to conduct refugee status determinations had been maintained, it would have been easy to discover the flaws in the Refugee Inquirer's investigation. It was a fundamental and elementary breach of duty, and there was no evidence to suggest that it was unavoidable.
48. To determine what harm the plaintiff had suffered as a result of the defendant's breach of duty, the Court considered the status the plaintiff would have been granted if it had not been for the erroneous decline of his refugee status application.
49. The Court noted that, as argued by the defendant, the Act does not provide that everyone who is granted refugee status will receive a special residence permit. This is not in contravention of the Refugee Convention, which does not prevent the sending of refugees to third countries where a member country will not allow a refugee to remain in its territory. However, it found that refugee status was an important element in the consideration of whether to grant a special residence permit, and that it was normal for such permits to be granted to people who have been granted refugee status. Indeed, in this case, following the grant of refugee status and the cancellation of the deportation order, the plaintiff had been granted a special residence permit.
50. The Court found that only in exceptional cases where there was a risk to the national interest or security could persons at risk of persecution be returned to their country, but that even then the Act required the defendant to consider such persons' desire to be sent to a third country. Moreover, in practice, it is extremely unlikely that a third country would agree to take in a refugee from a safe country such as Japan unless, based on the applicant's request, such negotiations had been initiated from the time that applicant had first entered Japan and applied for refugee status. Further it would be contrary to humanitarian principles to keep a person in detention for extended periods on the grounds that there was no country to which to deport that person to. The grant of special residence permits to refugees can therefore be seen as a necessary measure to avoid such a situation. Given that there were no special circumstances in the plaintiff's case, the Court found that if the correct decision on his refugee status application had been made, he would have been granted a special residence permit.
51. The Court found that the decision to deport the plaintiff and the issue of the deportation order were based on the unlawful refugee status determination. Consequently any harm that occurred as a result of these dispositions was as a result of the unlawful refugee status determination. It was therefore unnecessary to consider the legality of those dispositions.
52. With respect to the detention order, the Court noted that if a correct investigation had been carried out by the Refugee Inquirer, he/she could have conveyed to the Supervising Immigration Inspector the likelihood that the plaintiff would be recognised as a refugee, in which case the Supervising Immigration Inspector may have deferred issuing the deportation order, with the effect of prolonging the plaintiff's stay in the Narita Airport Landing Prevention Facility. However, the Supervising Immigration Inspector is under no duty to conduct a separate refugee investigation. Given the plaintiff refused to leave Japan when ordered, he was clearly liable for deportation under the Act, in which case he was liable for detention. The Supervising Immigration Inspector's actions in issuing the detention order were therefore not in breach of his duties.
53. The Court also rejected the plaintiff's claim that to be held in the Narita Air Port Landing Prevention Facility amounted to an illegal custody, for the reason that there was no other way of dealing with people who had been refused permission to land but who refused to leave Japan. The Court noted that the facility was essentially different from a custodial facility. The Court further noted that there was a discrepancy in the plaintiff's testimony as to when he first applied for refugee status. Specifically it found that his claim that he had applied for refugee status immediately on arrival in Japan for the second time was lacking in accuracy and therefore could not be accepted.
54. The Court found that if a proper investigation had been conducted, the defendant would have determined that the plaintiff was a refugee by
55. The Court ordered the defendant to pay 8,000,000 yen to the plaintiff as compensation for the harm arising from this physical and mental hardship and 1,500,000 yen for his legal expenses under article 1 of the State Redress Law.