UNHCR Representation in Japan
国連難民高等弁務官(UNHCR) 駐日事務所
Wesley Center, 6-10-11, Minami Aoyama,
Tel.: +81 (0)3 3499 2011
Minato-ku, Tokyo 107-0062, Japan
Fax: +81 (0)3 3499 2272
東京都港区南青山 6-10-11 ウェスレーセンター Email: jpnto@unhcr.org

18 January 2013
Re: Request for inquiry in the case of **Dear Mr. Fukutaka Hashimoto,I wish to refer to your letter dated 13 December 2012, enquiring about UNHCR’s position on
several issues of law relevant to the case of ** (appellant and petitioner for acceptance of finalappeal) and the Government of Japan (appellee and opponent), **, including the standard ofproof in refugee status determination with, first, in respect of the well-foundedness of the fearof persecution, and, second, in respect of assessing the credibility; the treatment of asylumseeking children; and the detention of asylum-seeking children on grounds of illegal entry orstay. Please find below reference to UNHCR’s guidance on the issues you raised.
UNHCR, being a subsidiary organ of the United Nations, has been entrusted by the UN
General Assembly with the mandate to provide international protection to refugees and,
together with Governments, to seek solutions to the problem of refugees. 1 Paragraph 8(a) of its
Statute and the Preamble of the 1951 Convention relating to the Status of Refugees (“1951Convention”) 2 confer responsibility upon UNHCR to supervise the application of international
conventions for the protection of refugees 3 , whereas Article 35(1) of the 1951 Convention
obliges States Parties to cooperate with UNHCR in the exercise of its functions. 4 Similar
obligations for states are laid down in Article II(1) of the 1967 Protocol relating to the Statusof Refugees (“1967 Protocol”). UNHCR’s supervisory responsibility is exercised in part by theissuance of interpretative guidelines on the meaning of provisions and terms contained ininternational refugee instruments, in particular the 1951 Convention. Such guidance isincluded in the UNHCR Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status (“UNHCR Handbook” and “UNHCR Guidelines”) 5 as well as other notes andguidance, including UNHCR’s Note on Burden and Standard of Proof in Refugee Claims 6 ,Guidelines on the Applicable Criteria and Standards relating to the Detention of AsylumSeekers and Alternatives to Detention (“UNHCR Detention Guidelines”) 7 , and Guidelines on
1

UN General Assembly, Statute of the Office of the United Nations High Commissioner for Refugees, 14 December
1950, A/RES/428(V), http://www.unhcr.org/refworld/docid/3b00f0715c.html.
2
UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty
Series, vol. 189, p. 137, at: http://www.unhcr.org/refworld/docid/3be01b964.html.
3

According to Article 8(a) of the 1950 Statute of the Office of the United Nations High Commissioner for Refugees(“the Statute”) ‘The High Commissioner shall provide for the protection of refugees falling under the competence of
his Office by: (a) Promoting the conclusion and ratification of international conventions for the protection ofrefugees, supervising their application and proposing amendments thereto;’ [emphasis added].

4“Article 35 – Cooperation of the national authorities with the United Nations”1. The Contracting States
undertake to cooperate with the Office of the United Nations High Commissioner for Refugees… in the exercise of
its functions, and shall in particular facilitate its duty of supervising the application of the provisions of thisConvention.”

5UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol Relating to the Status of Refugees, (re-issued) December
2011, HCR/1P/4/ENG/REV. 3, available at: http://www.unhcr.org/refworld/docid/4f33c8d92.html.
6

UN High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims, 16 December
1998, available at: http://www.unhcr.org/refworld/docid/3ae6b3338.html.

7

UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers andAlternatives to Detention, 2012, available at: http://www.unhcr.org/refworld/docid/503489533b8.html.

International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the1951 Convention and/or 1967 Protocol relating to the Status of Refugees. 8 UNHCR preparedthe Handbook in 1979 at the request of Member States of the Executive Committee of theHigh Commissioner’s Programme (“Executive Committee”) to provide guidance togovernments in applying the terms of the 1951 Convention and 1967 Protocol. In 2002,UNHCR began issuing Guidelines, as envisaged under the 2002 UNHCR Agenda forProtection, 9 which was endorsed by the Executive Committee 10 and the UN General
Assembly. 11 The Handbook and Guidelines are based on the accumulated views of UNHCR,
State practice, Executive Committee Conclusions, academic literature and judicial decisions atnational, regional and international levels, over a sixty-year period. 12 The Handbook andGuidelines are intended to provide legal interpretive guidance for governments, legal
practitioners, and decision-makers, including the judiciary. They are not “binding” per se, theyare nonetheless recognized and applied by national authorities and courts as an authoritative
source in interpreting the refugee definition and related procedural requirements. 13On the question of standard of proof in establishing the well-foundedness of the fear ofpersecution, UNHCR’s 1998 Note on burden and standard of proof in refugee claims sets out anumber of key principles. 14 In general, the determination of refugee status does not purport toidentify refugees as a matter of certainty, but as a matter of likelihood. 15 The phrase “wellfounded fear of being persecuted” is the key phrase of the refugee definition. In this context,
the term “fear” means that the person believes or anticipates that he/she will be subject topersecution. This is established very largely by what the person presents as his/her state ofmind on departure. Normally, the statement of the applicant will be accepted as significant
demonstration of the existence of the fear. 16
Further, a substantial body of jurisprudence has developed on what standard of proof is to beapplied in asylum claims to establish wellfoundedness. This jurisprudence largely supports theview that there is no requirement to prove well-foundedness conclusively beyond doubt, oreven that persecution is more probable than not. To establish “well-foundedness”, persecution
must be proved to be reasonably possible. 178UN High Commissioner for Refugees, Guidelines on International Protection No. 8: Child Asylum Claims underArticles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, 22
December 2009, HCR/GIP/09/08, available at: http://www.unhcr.org/refworld/docid/4b2f4f6d2.html
9UNHCR, Agenda for Protection [Global Consultations on International Protection/General], Goal 1, June 26,
2002, A/AC.96/965/Add.1, at 5, available at http://www.unhcr.org/refworld/docid/3d4fd0266.html.

10

UNHCR Executive Committee, General Conclusion on International Protection, Oct. 8, 2002, No. 92 (LIII) –2002, available at http://www.unhcr.org/refworld/docid/3dafdce27.html.

11
UN General Assembly, Office of the UNHCR, Resolution Adopted by the General Assembly, Feb. 6, 2003,
A/RES/57/187, ¶ 6, available at http://www.unhcr.org/refworld/docid/3f43553e4.html.
12Page 1 (Foreword), UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, (re-issued) December
2011, HCR/1P/4/ENG/REV. 3, available at: http://www.unhcr.org/refworld/docid/4f33c8d92.html.
13For example, Netherlands: Osman Egal v. State Secretary for Justice, AWB 98/3068 VRWET, Netherlands, The:The Hague District Court, 2 July 1998, available at: http://www.unhcr.org/refworld/docid/3ae6b73718.html. New
Zealand: Refugee Appeal No. 1/92 Re SA, New Zealand: Refugee Status Appeals Authority, 30 April 1992, available
at: http://www.unhcr.org/refworld/docid/3ae6b73d8.html. United Kingdom: Horvath v. Secretary of State for theHome Department, United Kingdom: House of Lords (Judicial Committee), 6 July 2000, available at:
http://www.unhcr.org/refworld/docid/3ae6b6e04.html. R v. Secretary of State for the Home Department, Ex parteAdan, Ex parte Aitseguer, United Kingdom: House of Lords (Judicial Committee), 19 December 2000, available at:
http://www.unhcr.org/refworld/docid/3ae6b73b0.html. United States of America: Immigration and NaturalizationService v. Cardoza-Fonseca, 480 U.S. 421; 107 S. Ct. 1207; 94 L. Ed. 2d 434; 55 U.S.L.W. 4313, United States
Supreme Court, 9 March 1987, available at: http://www.unhcr.org/refworld/docid/3ae6b68d10.html.
14

UN High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims, 16 December
1998, available at: http://www.unhcr.org/refworld/docid/3ae6b3338.html.
15

Ibid., para. 2.

16

Ibid., paras. 13 and 14.

17Ibid., para. 17. Also, UNHCR, Interpreting Article 1 of the 1951 Convention Relating to the Status of Refugees,

As for indicators for assessing well-foundedness of fear UNHCR has considered the following:‘18. While by nature, an evaluation of risk of persecution is forward-looking andtherefore inherently somewhat speculative, such an evaluation should be made basedon factual considerations which take into account the personal circumstances of theapplicant as well as the elements relating to the situation in the country of origin.
19. The applicant’s personal circumstances would include his/her background,experiences, personality and any other personal factors which could expose him/her topersecution. In particular, whether the applicant has previously suffered persecution orother forms of mistreatment and the experiences of relatives and friends of theapplicant as well as those persons in the same situation as the applicant are relevant
factors to be taken into account. Relevant elements concerning the situation in thecountry of origin would include general social and political conditions, the country’s
human rights situation and record; the country’s legislation; the persecuting agent’s
policies or practices, in particular towards persons who are in similar situation as theapplicant, etc. While past persecution or mistreatment would weigh heavily in favourof a positive assessment of risk of future persecution, its absence is not a decisive
factor. By the same token, the fact of past persecution is not necessarily conclusive of
the possibility of renewed persecution, particularly where there has been an importantchange in the conditions in the country of origin.’ 18
On assessing the credibility of the applicant’s statements UNHCR considers that credibility isestablished where the applicant has presented a claim which is coherent and plausible, notcontradicting generally known facts. 19 Further, where there is an element of doubt in the mindof the adjudicator as regards the facts asserted by the applicant that should not prejudice theapplicant’s claim; that is, the applicant should be given the “benefit of the doubt”. 20As for the treatment of asylum-seeking children UNHCR’s submissions to the InterAmerican Court of Human Rights in the framework of request for an Advisory Opinion onMigrant Children presented by MERCOSUR of February 2012 explains the general principles
for the protection of asylum-seeking and refugee children (section 2) as well as guidance forearly identification of children and their needs (section 3), appropriate and child-sensitive
asylum procedures (section 4), and child appropriate reception standards (section 5). 21
Finally, on the detention of asylum-seekers for their illegal entry or stay, including thedetention of asylum-seeking children reference can be made to the 2012 UNHCR Guidelines
on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers andAlternatives to Detention. 22 Guideline 9.2 specifically refers to the detention of children.
April 2001, para. 10, available at: http://www.unhcr.org/refworld/docid/3b20a3914.html; UNHCR, Advisory
Opinion by UNHCR on the Interpretation of the Refugee Definition, 23 December 2004, paras. 10 and 11 available
at: http://www.unhcr.org/refworld/docid/4551c0374.html; and UNHCR, In the High Court of Appeal, On Appeal
From the Seoul Administrative Court. Between Messaoud Bennacer (Appellant) and Minister of Justice(Respondent): Written Submission on Behalf of the United Nations High Commissioner for Refugees, paras. 17 and18, 31 May 2005, available at: http://swigea56.hcrnet.ch/refworld/docid/42da722f4.html.
18

UN High Commissioner for Refugees, Note on Burden and Standard of Proof in Refugee Claims, 16 December
1998, available at: http://www.unhcr.org/refworld/docid/3ae6b3338.html.
19

Ibid., para. 11.

20

Ibid., para. 12.

21

UN High Commissioner for Refugees, UNHCR Submissions to the Inter-American Court of Human Rights in theframework of request for an Advisory Opinion on Migrant Children presented by MERCOSUR, 17 February
2012, available at: http://www.unhcr.org/refworld/docid/4f4c959f2.html.
22UN High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to theDetentionofAsylum-Seekers
andAlternatives
toDetention,
2012, availableat:
http://www.unhcr.org/refworld/docid/503489533b8.html.

We hope that the guidance provided herewith clarifies the issues you have raised. UNHCR
remains at your disposal for any further questions that may arise on the abovementionedmatters.

Yours sincerely,
Naoko Obi
Senior Protection OfficerUNHCR JapanMr. Fukutaka HashimotoPresident
Daini Tokyo Bar Association