The Project of Compilation and Documentation on
Refugees and Migrants
Research Center for Sustainable Peace
Institute of Advanced Global Studies
The University of TokyoJapan

vol.11
Spring 2021

The Project of Compilation and Documentation on Refugees and Migrants,
Research Center for Sustainable Peace
Institute of Advanced Global Studies
The University of TokyoRm. 304B Building 9, Komaba Campus, 3-8-1 Komaba, Meguro, Tokyo
cdr@hsp.c.u-tokyo.ac.jp

Publication Information:
Journal Title: CDR Quarterly, Volume 11
Publisher: The Project of Compilation and Documentation on Refugees anMigrants
Place of Publication: Tokyo. Publication Year: 2021
© The Project of Compilation and Documentation on Refugees and Migrants
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, without the prior permission in writing of the Project of Compilation and Documentation on Refugees and Migrants. Within
Japan, exceptions are allowed in respect of any fair dealing for the purpose of research or
private study, or criticism or review, as permitted under the Copyright Law of Japan. Enquiries concerning reproduction outside these terms and in other countries should be sent
to the Project of Compilation and Documentation on Refugees and Migrants, at the address above.
Logo mark design: Harada Masaaki; Cover design: Satoshi Yamamoto.

REMARKS FROM DIRECTOR
It is truly an honour for us to publish an independent journal concerning the issues relating to the movement of people. Until now in Japan there have been no journals or magazines
focused speci cally on the issues of the movement of people, and which utilise a multidisciplinary approach through which to view these issues. Moreover, there have been no journals
published in English, in this eld in Japan. The CDRQ is the rst of its kind in Japan. Although
the level of discourse in Japan has developed to a point, the situation and activities in Japan
have not been made well known to the rest of the world. The CDRQ will act as a doorway by
which to pass through the language barrier and open the discussion in Japan to the rest of theworld.
Japanese society is now facing serious decreasing of population and aging society. While
it is recognised that these issues should be tackled from a multidisciplinary perspective, there
has been an insuf cient platform for networking and discussion until now. Discussion acrossdisciplines and interactive information exchange connecting different elds of professionals is
important not only to bene t academia, but also to make research contribute to society. The
academic world should be more aware of facilitating engagement to the real world, as longas it tries to handle social issues. In this sense, I hope CDRQ to be one of the attempts toopen a new frontier in discourse.
It is challenging to keep a balance between setting up an open platform for discussion andestablishing an authoritative academic journal. However, I hope many of us might contributeto advancing the discussion and nding new solutions. Especially I expect those among theyounger generations will propose to undertake unconventional styles of research, eventhough these new approaches may not be immediately complete. I strongly believe that we
can improve our approach day by day, as long as we continue to try.
Yasunobu SATOCDR Director
Professor, Graduate School of Arts and Sciences,
The University of Tokyo

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Spring 2021

REMARKS FROM Prof. MACKEY
It was a great pleasure for me to be asked again by Prof Sato to carry out the role of visiting Professor at Todai, Komaba in late 2019. The aim of the course was to give HSP postgraduate students, as well as lawyers and government representatives, a reasonably full overview of international refugee and protection law.
To make it relevant, in the Japanese, context Prof Sato, Martin Treadwell and I decided tomake as many comparatives, as we could, between established international refugee and migration law and some relevant recent decisions of the Japanese courts. With the excellent
assistance of Prof Sato, and his team at the CDR Komaba, we were able to do this mainly byreference to the cases in this publication. Without this excellent assistance, the work of the
CDR team, and devoted translators we feel the course would have been far less topical, useful and interesting.
It is axiomatic that all legal proceeding, relating to international refugee, protection andmigration issues must always have an international dimension. Thus logically, around theworld, all decision-makers, judges, lawyers and legislators working in these elds can always
be greatly assisted and guided by reference to established jus cogens, and well-establishedprinciples and procedures of international law on these subjects. The greatest challenge thenis, of course, getting translations that safely allow sound comparisons to be made. This is well
explained in the remarks by Soojin Lee and Yukari Ando in their contributions. Martin and I
therefore recognise the task of translation is a complex one. (Indeed in the work of a refugee
judge we are met with this challenge in almost every case we hear.) Thus we apologise if wehave at times misunderstood the true meaning intended by the Japanese judges in thesecases, we used for our comparisons.
It is unfortunately often noted by UN agencies, and many domestic and internationalcommentators that Japanese refugee and migration law and practices, are often widely disparate from international refugee law on these subjects as widely applied in other parts of theworld. The result of these differing approaches contributes adversely on claimants and indeed
can lead to poor outcomes, serious backlogs, abuses and inef ciencies in the Japanese determination processes, treatment of claimants/ refugees and for the Japanese taxpayers.
The dif culty, we note, in reaching really sound conclusions, on the reasoning used by
Japanese judges, using ostensibly sound, if perhaps literal translations ,is illustrated by a brieflook at Sri Lankan Cessation case of Tokyo High Court, Heisei 30 Gyo- Ko No. 228 of 5
December 2018.

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We consider this case appears to make extremely important and internationally valid conclusions. Indeed, if we are right, it could be the rst stepping stone towards Japanese jurisprudence and decision making that is far more consistent with established international jus
cogens of non refoulement and wider refugee and protection law and procedures.

First, a small but important point with this case is that this is a “Cessation “case not “Termination” case. The word “termination” is not in the RC51, but is used several times in thetranslation. Simply put for any correct application of the “Cessation clause in RC51 Art 1C”
Cessation means just that: cessation, as de ned in Article 1C and NOT “termination” or any
other synonyms derived elsewhere. It has thus been wrongly, and potentially misleadingly,
used in either the Japanese decision itself or the translation on many occasions. “Termination”, is not a refugee law term as it can have a far greater coverage than Article 1C “Cessation” (e.g. . . Including “cancellation” on the grounds of fraud, “expulsion”, etc.).
The actual wording of the RC51 should thus be carefully used and follow the de nitionsin the Convention itself and further should not be reinterpreted by short reference backphrases found elsewhere in the RC51. (Such as Articles 31(1) and 33(1) which refer to“refugees”- i.e.as already de ned in Art 1A (2).
Next, and importantly, subject to our possible confusion and thus understanding as towhat is actually intended by the Court, we note the conclusions of the Court are that the MOJ
must follow the actual terms of Art 1C of the RC51 itself and that the MOJ was wrong, in Japanese law, to make up and apply their own rules on when and how Cessation can be applied. The Court thus rules the MOJ approach is awed and inconsistent with the terms of Art
1C itself which sets out the only correct way Cessation is to be applied.
If we are correct in this then logically, and as is a probable peremptory norm ( jus cogens)or well established customary international law, all interpretation of the terms of RC51, including the so called “Inclusion clause” Art 1A (2) (and “Exclusion “Art 1D, E, F, “Expulsion”
provisos as well) must be directly applied in the same way. Thus the MOJ and/or the Japanese
Courts cannot make up their own purely domestic interpretations inclusion rules which areoften seriously inconsistent with established international refugee law which applies the actual and intended terms of the RC51.
As examples of this, and indeed constitute some of the core problems with Japanese
refugee jurisprudence, are the seriously awed interpretations, applied by MOJ and Courts,to:- the term “being persecuted “from Art 1A (2),- using a domestically derived standard of proof that appears to be beyond international
criminal standards of “ beyond all reasonable doubt’ to assess prospective risk on return andnot at the much lower real chance or real risk on return, that is consistent with the RC51 andinternational refugee law itself,- and the Japanese Courts in determining appeals somehow (often many years later) assessing refugee status retrospectively, instead of the core task of RSD which is prospectively,
assessing risk and at times even without rstly nding material errors of law or procedures in
the primary MOJ decisions.”

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If this is a valid understanding by us of this Sri Lankan Cessation judgement, then optimistically, this important reasoning by the Tokyo High Court will be used as important guidance
to Japanese judges, the MOJ, lawyers, academics and claimants as to correct interpretation of

the “Inclusion” (and “Exclusion”) clauses as well as “Cessation.”
The whole intensive course is available in video recorded format from UTokyo On line Education.
Please refer to the following link:
Refugees and Migrants - International and Japanese Comparisons (7)https://ocw.u-tokyo.ac.jp/lecture_1871/
INTERNATIONAL REFUGEE LAW
https://ocw.u-tokyo.ac.jp/lecture_1872/
Allan MACKEY
Upper Tribunal Judge UK and Tribunal Chair NZ
former President, International Association of Refugee and Migration Judges
and Visiting Professor at the University of Tokyo

Editor’s Remarks

It’s been my pleasure to join this translation project, which started out as a class material
to Jdg. Allan Mackey’s intensive course in the Fall semester 2019, then became a single project to introduce Japan’s Refugee Case law to the world as a special edition of the CDRQ vol.
11.
I must admit that it was not easy to proofread the English version of the Japanese court
cases since the legal term and the concept is quite different as well as the structure of thelanguage. This is not a unique trouble you nd only in Japan, but is a quite common issue
when it comes to translate something to another language. I had a very similar experience
while I was still working at UNHCR Seoul of ce before joining the Ph.D. programme at theUniv. of Tokyo.
Throughout the Refugee status determination (RSD) process and in court appeals, I would
say translation and Interpretation of language is one of the most important issues for both the
refugee status applicants and the RSD authority. Not just to give statement and submit supporting evidence, but also to fully understand the result of their application such as decisionpaper and court papers. Moreover, the signi cance of the case law translation for academic
and research purpose is needless to say.
Therefore, I’d like to take this chance to say that this language barrier should not be an
excuse for miscomprehension and/or misrepresentation of the purpose and the philosophy ofinternational instruments for protection of refugees and asylum seekers, but should be taken
as a challenge to overcome, and as an opportunity to exchange and discuss common issues
and concerns (the reason why I introduced a few case laws from Korea). To that end, I hope
this case law translation would be utilized as a practical source for those who are interested
in refugee protection.
Lastly, I’d like to express my most sincere gratitude to everyone who participated in thisproject.

Soojin LEE

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Editor of CDRQ vol. 11
Ph.D. candidate, Graduate School of Arts and Science,
The University of Tokyo

CONTENTS
REFUGEE CASE LAW

5Introduction to the Translation project in 2019 of Japanese case law on
Refugee and Asylum seekers―How we prepared case law materialsWakaba HARA

6

REVOCATION OF THE IMMIGRATION’S NON-RECOGNITION DECISION AGAINST THE SECOND APPLICATION FOR REFUGEE STATUS
MADE BY AN IRANIAN WHO CONVERTED TO CHRISTIANITY (Decision in favor for the refugee, nal and established)―2018(Gyo-U) No. 287
Tokyo District Court, 17 September 2019 (Iran)Translated by Koei Matsushita

10

RIGHT TO ACCESS TO COURT OF A REFUGEE STATUS APPLICANT(Reverse af rmative decision at Hight Court in January 2021)―CASE REPORT: ACCESS TO JUSTICE FOR REFUGEE CLAIMANT
Nagoya High Court Judgment of 13th January 2021
Yukari ANDO

13

―Reiwa 1(2019) (Ne)No. 664
Nagoya High Court Court, 13 January 2021 (Sri Lanka)
Translated by Haruka Jifuku & Yukari Ando22

― Case Summary by Atty. Satoshi Ogawa
re. Reiwa 1(2019) (Ne)No. 664
Translated by Haruka Jifuku & Yukari Ando

35

―Heisei 28 (2016) (Wa) No. 3483
Nagoya District Court, 30th July 2019 (Sri Lanka)
Translated by Haruka Jifuku& Yukari Ando38

― Case Summary by Atty. Satoshi Ogawa
re. Heisei 28 (2016) (Wa) No. 3483

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Translated by Haruka Jifuku&Yukari Ando56

CESSATION OF REFUGEE STATUS by Art. 1(C) of the 1951 Refugee
Convention―Heisei 30 (2016) (Gyo-Ko) No. 228
Tokyo High Court, 5th December 2018 (Sri Lanka)
59

Translated by Erika Tanaka, Ryoko Koike, Koei Matsushita―Administrative contact by the Ministry of Justice dated 21 January
2019(Noti cation)
69

Translated by Koei Matsushita

DENIAL OF CLAIM FOR REVOCATION OF THE IMMIGRATION’SNON-RECOGNITION DECISION AGAINST AN APPLICANT, WHO
HAD BEEN RAPED DURING HER CUSTODY AT POLICE DUE TO HERPOLITICAL ACTIVITIES (decision in favor of the immigration)―Heisei 30 (2018) (Gyo-Ko)No. 197
Tokyo High Court, 21st November 2018 (Ethiopia)
74

Translated by Koei Matsushita―Excerpt from the lower court’s ruling of the above case
Heisei 28 (2016) (Gyo-U)No. 299
Tokyo District Court 31st May 201882

Translated by Masako Suzuki

DENIAL OF THE REFUGEE STATUS BASED ON COI ANALYSIS OF ANFORMER DIPLOMAT INSTEAD OF THAT OF THE INTERNATIONALORGANIZATION―Heisei 27 (2016) (Gyo-U) No. 158, 163, 164, 165
Tokyo District Court, 20th March 2018 (Syria)
88

Translated by Koei Matsushita

DENIAL OF THE REFUGEE STATUS OF A BURMESE ACTIVIST FOR
DEMOCRATIZATION BY DEMANDING STRICT LEVEL OF BURDEN
OF PROOF ON HIS ACTIVITIES, ETC (Decision in favor of the immigration)―Heisei 26 (2015) (Gyo-u) No. 73
Tokyo District Court, 23th February 2018 (Myanmar)
Translated by Koei Matsushita

122

COMPARATIVE CASE LAW

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REFUGEE STATUS CLAIM BASED ON RELIGIOUS CONVERSION

150

―2017guhap67316
Suwon District Court, 13 February 2018 (Iran)
Summarized and Translated by Soojin Lee

151

REFUGEE STATUS CLAIM BASED ON FGM―2016du42913
Supreme Court of Korea, 5 December 2017 (Liberia)
Summarized and Translated by Soojin Lee

163

REFUGEE STATUS CLAIM BASED ON POLITICAL OPINION (use offorged ID for refugee status application)―2013du16852
Supreme Court of Korea, 9 March 2017 (Myanmar)
Summarized and Translated by Soojin Lee

173

ANNEX

182

A Structured Approach to the Decision Making Process in Refugee andOther International Protection Claim- Flowchart recommended by Jdg. Mackey and IARMJ -183

REFUGEE ACT OF KOREAENFORCEMENT DECREE OF THE REFUGEE ACTCALL FOR CONTRIBUTIONS216

REFUGEE CASE LAWIntroduction to the Translation project in 2019 ofJapanese case law on Refugee and Asylum
seekers―How we prepared case law materialsWakaba HARA1
In the school year of 2019 at Tokyo University, Komaba campus, the biggest event at Research Center of Sustainable Peace (RCSP) was to welcome Judge Allan Mackey as the principal lecturer of the Intensive Course in the fall semester. Preparation of this intensive course
was initiated in late April by Judge Mackey and distinguished contributors, such as Yukari
ANDO of Osaka University, and Attorney Masako SUZUKI. Judge Mackey showed a greatinterest in case analysis and it was decided that the last 4 sessions of the Intensive Courseshould be devoted to the analysis of recent court cases.
I was a project researcher for RCSP at Komaba that year and engaged in this translation
project as an extension of my involvement in access to justice initiatives including pro-bonocoordination of corporate lawyers.
At rst, a list of 7 cases attached was shared by Yukari Ando, of which the English translations were available in the Japanese Yearbook of International Law, published by the International Law Association Japan Branch. However, it was obvious that we needed more cases.
Our team therefore intended to provide more comprehensive materials that re ect real aswell as the latest court practices in Japan. To that end, the outcome of the Intensive Course
would be more interesting in an academic context and was envisioned to aid the improvement of Japan’s refugee law practice which has often been criticized as insuf cient for thereal protection of refugees.
In mid-May, I had visited the of ce of Attorney Shogo Watanabe and Masako Suzuki, theleading practitioners in the area of refugee law, and received a photocopy of a few case decisions which would be a t for the Judge Mackey’s analysis. Yukari added some to this, andnally, as shown in the attached table, this effort resulted in 5 District Court decisions, 2 High
Court decisions and 1 of cial notice issued by Ministry of Justice. These set material, needed
to be translated in English, for the Intensive Course. Translation work of all the materials washandled as pro bono and on a volunteer basis by lawyers and graduate students.
The Tokyo District Court decisions on February 23, 2018 (Myammer) and March 20, 2018
(Syria) were selected by Attorney Shogo Watanabe, as typical recent cases, where status ofrefugees were not recognized by the court.
Translation of the Tokyo District Court decision on May 31, 2018 is a contribution of Masako Suzuki. It was originally translated by her in collaboration with Judge Mackey. The High
1. Attorney at law, Project Researcher (2019) at Research Center for Sustainable Peace (RCSP), Institute for the Advanced Global Studies,
Graduate School of Arts and Science of the University of Tokyo.

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CDRQ vol.11

CDRQ vol.11

Court decision of November 2018 is newly translated in this project.
The Nagoya District Court's decision on the refugee's "right to a trial" was issued on July17, 2019, when this translation project had just started. The original Japanese version of thedecision was arranged and provided by Yukari Ando, together with an English translationelaborated by her in cooperation with a graduate student. A case summary by the chief ofthe defense team was also provided. (Later in January 2021, Nagoya High Court ruled a reverse af rmative decision. Refer to Yukari Ando’s case report. A set of English translations of
the High Court decision and its case summary is also included.)
Furthermore, in September 2019, when we were in the middle of translation work, theTokyo District Court issued an af rmative ruling on the Iranian Muslim who converted toChristianity, which was added to the list.
Translation of the Tokyo High Court decision on December 5, 2018 and related governmental notice was demanding. Based on the observations of Judge Mackey, we have reviewed the translation after the course and completely modi ed the original version. (Refer toJudge Mackey’s remarks on the revised translation.)
Although we tried our best, translation of court decision, given the nature of the work,
cannot be 100 percent perfect, due to various differences language and judicial system. In
this regard, it must be noted that Judge Mackey and Judge Treadwell have no responsibility inthis translation project, especially with respect to the accuracy of the translation.
Finally, please let me forward my sincere gratitude to everyone who cooperated in thisproject, especially to Patrick Kongmalavong, Researcher at RCSP (2019) for his proof reading
and Soojin Lee for her enormous and irreplaceable contribution as Research Assistant incharge of implementation of the Intensive Course of Judge Mackey.

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CDRQ vol.11

JAPANESE COURT DECISIONS ON REFUGEE CASES 2018-2019-Tokyo District Court 17 September 2019 (Iran) (Christian convert)-Nagoya District Court 30 July 2019 (Sri Lanka) (Right to a fair trial)-Tokyo High Court 5 December 2018 (Case in which Cessation of refugee
status, Art. 1 (C) of the 1951 Convention was applied)-Administrative contact by Ministry of Justice dated January 21, 2019
-Tokyo High Court 21 November 2018 (Ethiopia)-Tokyo District Court 31 May 2018 (Ethiopia) (lower court decision of theabove)-Tokyo District Court 20 March 2018 (Syria)-Tokyo District Court 23 February 2018 (Myanmar)

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CDRQ vol.11

CASES CITED IN THE JAPANESE YEARBOOK OF INTERNATIONALLAW (SELECTED BY YUKARI ANDO)
Nagoya High Court, Judgment, September 7, 2016 (Nepal) p.374, Volume 61 (2018)
Eligibility for Refugee Status - Burden and Degree of Proof - Situation in Nepal - Article 1of the Convention Relating to the Status of Refugees - Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status
Osaka High Court, Judgment, November 27, 2015 (Iran) p.461,Volume 60 (2017)
Deportation Under the Immigration Control and Refugee Recognition Act - Validity of the
Designation of the Destination of Deportation Distinct from Validity of the Written Deportation Order Itself - Elements to be Considered in Exercising Discretion in Designating the Deportation Destination - Risk of Death Penalty for reviously Sentenced and Served Crimes

Tokyo District Court, Judgment, February 17, 2016 (Sri Lanka) p.469, Volume 60(2017)
Eligibility for Refugee Status - Meaning of Persecution Under the ICRRA - Author of Persecution - Burden and Degree of Proof - Credibility and Reasonableness of Statement Made by
Applicant - Discretion in Issuing a Special Permission to Stay - International Customary Law
on Freedom of Immigration Control
Tokyo District Court, Judgment, August 28, 2015 (RDC) p.485, Volume 59 (2016)
Obligation of Minister of Justice to Provide for Refugee Recognition - Violation of the Immigration Control and Refugee Recognition Act - Article 1A(2) and Article 1F(b) of the Convention relating to the Status of Refugees
Tokyo District Court, Judgment, October 1, 2010 (Ethiopia) p.402, Volume 56 (2013)
Recognition of Refugee Status - Non-refoulement - Special Permission to Stay - Nullity of
the Disposition of Issuance of a Written Deportation Order
Tokyo High Court, Judgment, May 27, 2009 (Myanmer) p506, Volume 54 (2011)
De nition of Refugee - Situation in Myanmar - The Effect of Activities of a Wife on the Issue Whether Her Husband Is Quali ed as a Refugee
Tokyo District Court, Judgment, February 2, 2007(Bangladesh) p.544, Volume 51 (2008)
Article 1 A(2) of the Convention Relating to the Status of Refugees (1951) - De nition of
the Term “being persecuted”- Persecution by Non-State Actors

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CDRQ vol.11

REVOCATION OF THE IMMIGRATION’S NONRECOGNITION DECISION AGAINST THE
SECOND APPLICATION FOR REFUGEE STATUS
MADE BY AN IRANIAN WHO CONVERTED TOCHRISTIANITY (Decision in favor for the
refugee, nal and established)―2018(Gyo-U) No. 2871
Tokyo District Court, 17 September 2019 (Iran)Translated by Koei Matsushita2(OMITTED)PART III. DECISION OF THIS COURT(OMITTED)
3. REFUGEE STATUS OF PLAINTIFF(1) PARTICIPATION IN DEMONSTRATIONS(OMITTED)(2) ON CONVERTING FROM ISLAM TO CHRISTIANITY
A. Regarding the situation of Christian converts in Iran(A)
As mentioned in Found Facts (1) A and B, in Iran, there have been cases where a Christian pastor was found guilty for the crime of apostasy. In September 2008, a law was approved by the Iranian authorities to impose severe punishments, including the death penalty,on those who converted from Islam.
However, as mentioned in Found Facts (2) A, the 2009 UK Home Of ce Report (which
was prepared in 2009) statesthat the Iranian authority will monitor people when they carry out evangelical
1. 平成30年（行ウ）第287号

難民不認定処分取消等請求事件

2. Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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CDRQ vol.11

activities against Muslims, and the leaders of the Evangelical Church are in dangerof physical restraint, etc., however
if ordinary believers keep a low pro le, they can continue to believe and there
will be no problem with the Iranian authority.
Therefore, the court denies that in Iran in 2009, there was a situation that those who converted from Islam to Christianity were highly likely to be arrested or prosecuted solely due tothe conversion. It is assumed that the former judgment was based on these facts.
(B)
However, as mentioned in Found Facts (2) B above, the 2013 UK Home Of ce Report(which was issued about 1 year after the Denial of Recognition of Refugee Status), unlike the2009 UK Home Of ce Report mentioned in (A) above, statesthat it became more common for Christians who had converted from Islam to
Christianity to be accused,that harassment and physical restraint had increased signi cantly in various cities
throughout Iran since the beginning of 2012,that the Iranian authority arrested hundreds of Christian and carried out a compulsory investigation against “House Churches” (the people’s homes repurposed as
churches) and arrested 40 Christians in September of the same year, andthat [i] the courts considered participation in “illegal House Churches” as crime,[ii] a person who was detained for his/her conversion to Christianity were requested
to sign document barring them from participating in Christian meetings by the Iranian authority, and [iii] detained Christians were requested to pay excessive bail totemporarily release them.
Also, as mentioned in Found Facts (2) E, the 2013 U.S. State Department Report (which
was issued about 1 year after the Denial of Recognition of Refugee Status) statesthat the Iranian authorities arrested Christians at a disproportionate rate to the
population,that the Iranian of cial report and the media de ned the "Christian Family
Church" (the people’s homes repurposed as churches) as an illegal network, andthat arrested members of the Family Church were often criticized for receiving
assistance from enemy states.
Furthermore, as noted in Found Facts (2) C, the 2015 UK Home Of ce Report states thatmembers of the Evangelical Church and the Family Church were exposed to a real risk of being persecuted in Iran.
According to the statements in the above reports, differently from 2009, those who converted from Islam to Christianity would often be arrested/prosecuted and detained by the Iranian authority should they gather in private houses and attend church services (i.e. the churchof home); it is found to have highly increased the probability of persecution by the Iranianauthority.
(C)
In light of the above, as of October 25, 2012 (when the Denial of Recognition of
Refugee Status was issued), it was not found that those who converted from Islam to Christianity in Iran would highly likely be arrested and prosecuted by the Iranian authority solely
due to conversion; however, it is found that the converts who congregate in private houses
and practice Christianity would highly likely be arrested and prosecuted by the Iranian authority even if they are not leaders of churches but just ordinary believers.

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CDRQ vol.11(D) (Omitted)3
B. About Plaintiff's activities as a Christian(A)
As mentioned in Found Facts from (6) C to E, Plaintiff, in Iran, had never been to achurch and had only read the Bible. However, since he entered Japan, he has continued toattend church “B” for more than 11 years, he has participated in almost all worship services
every Sunday and held volunteer activities and others, further, he was introduced a pastor “E”
who can speak Persian and studied the Bible for a year, and he brought his friend to the
Church “B”; therefore, it can be found that Plaintiff believed Christianity sincerely at the timeof the Denial of Recognition of Refugee Status.
As mentioned above, based on the Plaintiff's long-term activities as a Christian at achurch, etc., if he returns to Iran, he is expected not only to read the Bible at home but also
to regularly participate in worships and meetings with other Christians in churches andprivate houses, as well as his Christian activities in Japan; on the premise of the situation ofpersecution against those who converted from Islam to Christianity by the Iranian authority as
mentioned in (2) A (C) above, at the time of the Denial of Recognition of Refugee Status, it
was highly likely that the Iranian authorities arrested or prosecuted Plaintiff for above activities.
(B)
Defendant claims as follows:(1) Plaintiff was, in Japan, only engaged in activities similar to those of other general
Christians, and was not in a leader/director position, and was not involved in activities thatwere particularly interested and persecuted religiously by the Iranian authorities.
(2) Plaintiff is not likely to be known in the Iranian authorities about the fact that heconverted to Christianity in Japan; therefore the fact that he converted from Islam to Christianity would not come under the individual and concrete reason to have fear of being persecuted.
However, even if the Iranian authority is not interested in the Plaintiff because he is not ina leader/director position in Japan and the Iranian authority is not aware of the fact that hehas converted from Islam to Christianity, there is, as mentioned above (A), a high probabilityof being arrested or prosecuted, etc., by the Iranian authority upon the Plaintiff’s return to Iranon the premise that he will continue to engage in activities similar to his Christian activities inJapan; therefore, there was an objective circumstance that a reasonable person will have fearof being persecuted if the person was in the position.
Consequently, Defendant's claims on this point are groundless.
(Omitted)[End of document]

3. Translator’s comment: In summary, Defendant rebutted against the decision above based on some information of the country which isdisadvantageous to the Plaintiff; however, the court denies them.

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RIGHT TO ACCESS TO COURT OF A REFUGEESTATUS APPLICANT (Reverse af rmativedecision at Hight Court in January 2021)―CASE REPORT: ACCESS TO JUSTICE FORREFUGEE CLAIMANT
Nagoya High Court Judgment of 13th January
2021
Yukari ANDO1
INTRODUCTION
What is “Access to Justice” for refugee claimant?
Each of us might have a different image. One might think that a refugee claimant is anequal right to access to justice even though his/her legal status because a person has escapedfrom his/her own country. Another perhaps thinks that a refugee claimant is somehow limitedaccess due to his/her legal status. These images are not wrong, however, not correct.
This paper focuses on the contemporary refugee problems, particularly, the access tojustice for refugee claimant in Japan. Although there are many refugee claimants from all over
the world (See Table 1. below), effective protection for refugee claimants has not been welldeveloped yet. One of the reasons is that the following issues are not discussed satisfactorily:
What are contemporary refugee problems in Japan? How the solution can be found? To analyse the problematic issues, the recent Nagoya High Court judgment is utilised as a casestudy for this paper. This paper is organized as follows:
Section 1 explains the facts. In Section 2, judgments are explained. Section 3. Signi canceof the Judgement: Substantial opportunity to obtain judicial review, Section 4. Difference
from Nagoya District Court, and nally Section5. Challenges which left behind, one of themost remarkable principles in international law is addressed to protect refugees and refugeeclaimants. That is the principle of non-refoulement, but in this case, the Courts did not seem
to take it seriously.

1. Guest Associate Professor at Osaka School of International Public Policy, Osaka University.

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Table 1. Refugee Claimants in Japan (person)

Year

Refugee Application

Refugee
StatusOther Form of Protection

2015

7,586

27

125

2016

10,901

28

143

2017

19,629

20

94

2018

10,493

42

104

2019

10,375

44

101

2020

3,936

47

91

Source: MoJ News Release http://www.moj.go.jp/isa/publications/press/07_00003.html (2021.4.30)

14

CDRQ vol.11

Deportation Procedures in Japan

Source: Immigration White Paper http://www.moj.go.jp/isa/content/930002956.pdf (2021.4.30)
15

CDRQ vol.11

1. THE FACTS
The appellant, a Sri Lankan national, challenged the respondent (the State) on whether he
was arbitrarily deprived of his "right to access to the court" by collective deportation bycharter ight. The appellant, who had indicated his intention to le a lawsuit for cancellationof the refugee denial decision, was selected as a target of the collective deportation, and thenotice was “intentionally” delayed for more than a month (15th December 2014) from thedecision to dismiss the refugee denial (7th November 2014).
The appellant clearly stated that “I would like to do trial”. However, a Nagoya immigration of cer said, "Go back to Sri Lanka and do it there. The appellant claimed that the seriesof actions of the immigration of cers, including the immigration guard, who falsely explainedthat he could le a lawsuit after returning to Sri Lanka, violated his right to access to thecourt, and demanded payment of damages based on Article 1(1) of the National Redress Act.
The Nagoya District Court ruled that there was no provision to suspend the deportation except Article 61-2-6 of the Immigration Control and Refugee Recognition Act(hereinafter the
ICCRA) that deportation shall be suspended until a decision is made on an objection to thedisposition of non-refugee status in case the person has not obtained residence status.
The Nagoya District Court ruled that the wrong instruction that a lawsuit for revocation of
the disposition of non-recognition of refugee status could be led even after the deportation
was illegal under the same paragraph, and allowed the appellant to be compensated 88,000
yen and its delay damages, but the appellant was not satis ed with the essential part of thelawsuit instead of partial won of the unintended part and appealed.

2. NAGOYA HIGH COURT JUDGEMENT
Concerning the question of whether the series of acts by the immigration of cials leading
to the deportation violated the appellant's right to a trial (Article 32 of the Constitution) and/or the guarantee of due process (Article 31 of the Constitution).
The law states that "even before a decision is made on an objection to a disposition of
non-recognition of refugee status, the appellant may separately le a suit for cancellation of
the said disposition or le a lawsuit for cancellation of the issuance of a deportation order.
Even before a decision is made on an objection to a disposition of non-recognition of refugee
status, a separate lawsuit for cancellation of the disposition or a lawsuit for cancellation of theissuance of a deportation order is led. The Constitution of Japan permits the selection of deported persons for collective deportation, and if the deportation is suspended until the expiration of the appeal period after the decision to dismiss the objection is made and the opportunity to be tried is not secured, it is not considered to be extremely unreasonable and practically a denial of trial, it is not lacking in procedural guarantees, and it does not violate Article 13 of the Constitution. Therefore, it cannot be said that the series of acts of the immigration of cials leading up to this deportation violated the Constitutional right to a trial and the

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CDRQ vol.11

guarantee of due process.
Concerning whether the ICCRA, which adopts the free choice principle and administrative
measures are "illegal in terms of the application of Article 1, paragraph 1 of the National Rehabilitation Act about the Administrative Case Litigation Act which guarantees the opportunity for judicial review," the court stated that "there is no provision that stipulates that the deportation should be suspended after the decision to dismiss the objection to the refugee denial. It is dif cult to justify the deprivation of the opportunity for judicial review of the refugee
status of an applicant for refugee status because there is no provision stating that deportation
should be suspended after a decision to dismiss an objection to a disposition of non-recognition of refugee status is made, or because Article 52(3) of the ICCRA stipulates that a deported
person should be promptly deported. In the UN Human Rights Treaty Bodies (Human Rights
Committee, Committee against Torture), the Government has also taken measures to ensurethat applicants for refugee status have the opportunity for judicial review based on the obligation to provide information as stipulated in the Administrative Case Litigation Act. It is also
inconsistent with the external representations of the Government that it takes measures toensure the opportunity for judicial review of applicants for refugee status, based on the obligation to provide information as stipulated in the Administrative Case Litigation Law and that itgives consideration to the right to access to the court by con rming whether or not the deportee has the intention to le a lawsuit against the refugee status denial. This series of acts by
the immigration of cials deprived the appellant of the opportunity for effective judicial review of his refugee status.
In other words, (1) the Constitutional right to access to the court, the guarantee of due
process, Article 2(3), Article 14(1) of the ICCPR, and Article 16 of the Refugee Convention
provide legal remedy not being substantially deprived of the opportunity for judicial review
of refugee status. (2) Article 14(1) of the ICCPR guarantees everyone the right to a public
hearing by an independent and impartial tribunal on disputes. (3) Article 14(1) of the ICCPR
and the Administrative Case Litigation Act do not allow a person who has indicated an intention to le a revocation suit after the decision to dismiss the objection to be effectively deprived of the opportunity for judicial review of his refugee status because he has been subjected to collective deportation. Therefore, the judgment is af rmed to the extent that the State isrequired to pay a compensation fee, attorney's fees of 440,000 yen and delay damages, andthe remainder is dismissed, and the original judgment is modi ed.

3. SIGNIFICANCE OF THE JUDGEMENT: SUBSTANTIAL OPPORTUNITYTO OBTAIN JUDICIAL REVIEWThe issue, in this case, is the obligation to notify the time limit for ling an appeal and thetime difference between the dismissal of an objection decision and its noti cation. Concerning this time difference, the respondent argued that "it is normal for the notice of the decision
to dismiss the opposition to take about one month because of the need to consider the privacy of refugee status applicants and to secure interpreters, and there was no delay in thenotice of the decision to dismiss the opposition in this case. The decision to dismiss the opposition was indeed made on November 7, 2014, and according to the "Guidelines for Hand-

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CDRQ vol.11

ling Refugee Objections", Section 2, Notice of Decision, Paragraph 1, Notice to Appear No.
1, "Upon receiving noti cation of the result of the decision from the Director-General of the
Immigration Bureau of the Ministry of Justice, a notice to appear shall be promptly sent to theclaimant about the decision by registered mail or by telephone. In addition to the above,
there is also a provision that states, "When the Director of the Immigration Bureau of the Ministry of Justice noti es the applicant of the result of the determination, the Director of the Immigration Bureau of the Ministry of Justice shall promptly send a notice of appearance to theapplicant by registered mail or notify the applicant to appear by telephone. It is thought thatthe fact that the appellant did not respond to the court's request for clari cation and did not
explain the reasonable reason why it was not able to give notice affected the judgment.

4. DIFFERENCE FROM NAGOYA DISTRICT COURT
In this case, it is signi cant that the Nagoya High Court corrected the precedent and recognised "effective remedy" under Article 2(3) of the ICCPR in conjunction with "All persons
shall be equal before the courts and tribunals." under Article 14(1) of the ICCPR and Article
16(1) of the Refugee Convention. Effective remedy is an ancillary right that is recognised inconjunction with other rights. The Human Rights Committee made it clear in its General
Comment 32 that the right to access to justice does not change depending on the residence
status. In this case, the right to access the court under the ICCPR was combined with an effective remedy to allow the undocumented person the opportunity for substantive judicial
review. It is noteworthy that the Japanese court has fully recognised that the opportunity for
substantive judicial review for refugee claimants based on International Human Rights Treaties. Therefore, this is a landmark case. Furthermore, the fact that the Court pointed out thediscrepancy with the government's statement in the UN treaty review is also an unprecedented decision. As an effect of this decision, it is signi cant that the judiciary has clari ed thatthose who are denied refugee status at the administrative stage but wish to pursue judicial
proceedings for cancellation of refugee status will not be deported.
What is puzzling in this case, however, is that while the "effective remedy" in the ICCPR
and the Refugee Convention, in conjunction with the "right to access to the court" under the
ICCPR and the Refugee Convention, allowed substantial access to justice, it did not recognise
the right to access to the court and due process under the Constitution of Japan.

5. CHALLENGES IN JAPANThe right to seek and enjoy asylum has not yet crystallised. However, at least the minimum standard of protection has become a recognised right not only to refugees but also a potential refugee, in a way, to refugee claimant. Very few provisions under the Refugee Convention protect a person who does not have yet have refugee status. Martin states that theRefugee Convention is a treaty about the status of persons already accepted in the territory,
not based on a treaty about the admission of entry or asylum procedure. Most of the provi-

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CDRQ vol.11

sions of the Refugee Convention deal with a person who had already been provided refugee
status in the country of asylum. It is true because it is still left to the State’s will to determine
refugee status. This decides which international refugee law must face the dilemma between
State sovereignty and human rights protection. There are only a few provisions of rights forrefugee claimants such as Article 31, 32 and 33 under the Refugee Convention. The provisions which are relevant to protect refugee claimants are Article 31(1) non-penalization ofillegal entry or illegal presence, Article 32 prohibition of expulsion and Article 33 non-refoulement, the other provisions are relevant to a person who already has refugee status in the
country of refuge. Why does the Refugee Convention only partly protect a refugee claimant?
This comes as a rather surprising fact. As a victim of human rights abuse, why is there no international instrument to protect these people? The answer is found in the reality that there is
still a struggle between national sovereignty and international protection of human rights. A
State which is a party to the Refugee Convention has wide discretion on how to protect a
refugee. The author contends that international refugee law should also protect refugeeclaimants, namely the presumption of a refugee should be addressed more carefully. The current mechanism seems inadequate to take into account the presumption of refugee. Though it
is a big challenge to develop a world concept of international refugee law, state sovereignty
should be compromised to some extent to emphasise international solidarity and burdensharing. International refugee law calls upon development as was seen in the progress of human rights. Nobody predicted the development of human rights in the past decades when the
UHDR was adopted in1948 after World War II. Human rights concepts, however, have considerably spread outside the eld of international refugee law. One of the reasons why international refugee law was left behind was that the political will was not prepared to link human rights and refugees. Refugee issues tended to be considered humanitarian issues. It isargued that such a State has a responsibility not to expel and return the person in danger under the principle of non-refoulement. The principle of non-refoulement is also a provision thatcan protect a refugee claimant. The principle of non-refoulement is one of the safeguards that
protect refugee claimant as expanded in the Refugee Convention. This principle is stipulated
under Article 33 of the said Convention:
No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever
to the frontiers of territories where his life or freedom would be threatened on account of his
race, religion, nationality, membership of a particular social group or political opinion.
Contemporary international human rights law enlarges to protect all human beings regardless of the person’s legal status, in particular, the protection from torture and inhuman degrading treatment. The European Court of Human Rights and the Committee against Torture continuously state that the protection from torture under the European Convention on Human
Rights and the United Nations. Convention against Torture is “absolute”, in its protection,
therefore, is wider than the principle of non-refoulement under the Refugee Convention.
Whilst the Refugee Convention established the principle of non-refoulement, it was predominantly based upon Western concepts of refugees. If the principle of non-refoulement is
not practised, the refugee claimant is likely to have neither rights nor legal safeguards.
Although most of the provisions of the Refugee Convention do not indicate State obligations, the principle of non-refoulement very clearly indicates "prohibition of expulsion or return ('refoulement')." This provision does not allow reservation.

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Since this Convention came into force, this provision has been debated and interpreted indifferent ways by the representatives of States and scholars. Non-refoulement is generally interpreted as "the prohibition of the expulsion and return of refugees to the frontiers of territories where their lives or freedom may be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion." The principle of non-refoulement is the most signi cant provision under Article 33 of the Refugee Convention. It canbe recognised as a fundamental right. Guy Goodwin-Gill argued that Article 33 imposes aclear and binding obligation upon the contracting States to the Refugee Convention to follow
this principle. And he also argued that the principle is also recognised as customary international law. The UNHCR stated that the principle of non-refoulement is now almost universallyrespected. There is also an argument that the principle of non-refoulement can be regarded as
jus cogens. For instance, paragraph 5 of the 1984 Cartagena Declaration on Refugees statesthat "the principle of non-refoulement should be acknowledged and observed as jus cogens."
Until 1951, there had not been a single provision to protect refugee claimants' right except Article 33, "the principle of non-refoulement". There had neither been mechanisms to
implement the standard procedure concerning refugees. The drafters of the Refugee Convention intended to include non-refoulement as an absolute right without any exceptions. However, States were not ready to accept this idea. As a consequence of some States opposition,
Article 33(2) exclusion clause was amended at the end of its drafting process. The UNHCR
Executive Committee states that the fundamental principle of non-refoulement has found expression in various international instruments adopted at the universal and regional levels andis generally accepted. In the thirty-third Session it was recognised that "this basic principle isprogressively acquiring the character of a peremptory norm of international law." In 1989, theHigh Commissioner for Refugees recognised that the principle of non-refoulement" can be
regarded as jus cogens". From these views, it can be seen that the principle of non-refoulement is universally accepted. Is it possible to impose responsibility upon States, which have
not rati ed international human rights instruments but yet accept a considerable number ofrefugees such as Pakistan and Thailand? How is the principle of non-refoulement applicableto the States which do not ratify the Refugee Convention? In general, those countries also
have obligations to follow the principle of non-refoulement from the point of customary international law and general principles of law. Human Rights Watch annual report said "Thailand's obligations in refugee law terms stem from the acceptance of non-refoulement as a partof customary international law as well as from international human rights treaties that it has
rati ed. Various conclusions of the UNHCR Executive Committee reaf rms that the principleof non-refoulement forms part of the obligations owed to refugees by the entire international
community."
The UNHCR Executive Committee repeatedly emphasizes the principle of non-refoulement. Its forty-ninth session states "One essential component of the institution of asylum isthe principle of non-refoulement. This principle, embodied in Article 33 of the Refugee Convention, prohibits the expulsion and return of refugees in any manner whatsoever to the frontiers of territories where their lives or freedom may be threatened on account of their race,
religion, nationality, membership of a particular social group or political opinion. Refoulement can take several forms, including non-admission at the frontier and interdiction at sea."
They recognise the need for further examination of the principle to implement it effectively.
"The non-refoulement principle as it is being interpreted and applied in the human rights in-

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CDRQ vol.11

struments is, however, somewhat different in scope from the non-refoulement refugee protection. The areas of complementarily, as well as of difference, need further examination."
The principle of non-refoulement is stipulated in Article 53(3) of the ICCRA.
In Nagoya District Court, the State argued that since administrative organs naturally makedecisions based on laws and regulations when they take administrative measures, the principle of the rule of law is applicable at that point and the court's review is unnecessary. It
does not matter whether the plaintiff is recognised as a "refugee" or not, the Non-refoulement
principle is violated only when the plaintiff is assumed to be in a "territory where life or
liberty may be threatened," and "the fact that the plaintiff is deported within the time limit for
appealing does not mean that the principle is immediately violated. The appellant, on theother hand, argued that the plaintiffs' deportation was not a violation of the principle because
the plaintiffs were repatriated within the time limit for appeal. On the other hand, the appellant argued in the original trial that "if administrative organs make decisions based on laws
and regulations, the rule of law extends to them, and court review is unnecessary, then thetime limit for ling a suit under the Administrative Case Litigation Act (six months from thedate of knowledge of the disposition or decision in a suit for cancellation) is unnecessary, andthe administrative division of the court is unnecessary. This is equivalent to saying that theAdministrative Division of the court is unnecessary. The Nagoya High Court followed the original judgment, although it added "the non-refoulement principle prohibits deportation tocountries where there is a risk of political persecution, and judicial review in Japan is also
required to determine whether deportation is permissible based on the provisions of Article
53(3) of the ICCRA, which cites Article 33(1) of the Refugee Convention(2) The Principle ofNon-refoulement.
In this case, the principle of non-refoulement was judged separately from the guarantee ofthe opportunity to receive a judicial review. In this regard, the case commentary of the original judgement criticised that "the Principle of Non-refoulement and the guarantee of aneffective remedy in Article 2(3) of the ICCPR can be considered in connection with each other, and (omitted) a revocation suit must be able to be led. In addition, the Committee against
Torture's General Comment 4 (2017), para. 18(e), clari ed that "an order of deportation guarantees the right to le a cease-and-desist challenge to the enforcement of such order before
an independent administrative and/or judicial body within a reasonable period after notification of such order. Furthermore, the UNHCR Executive Committee stated that "(6) (vii)
Refugee claimants should be allowed to remain in the country during the appeal to a higher
administrative body or court. (6) (vii) Applicants for refugee status should be allowed to remain in the country during the appeal to a higher administrative body or court. The presenceor absence of a potential violation of the Principle of non-refoulement is required to be examined by an independent judicial or administrative body separate from the body conducting
the refugee screening procedure. This is because, if the effect of the suspension of deportation
does not work, the opportunity for the substantive judicial review at issue, in this case, is deprived, and irreparable damage may occur.
The UN Special Rapporteurs issued a joint statement on the bill to amend the ICCRA andwarned against the idea of not allowing the suspension of deportation for applicants who
have applied for refugee status for the third time or more in principle.
The UNHCR also stated concerns. The statements of these UN agencies should be respected and watched seriously.

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CDRQ vol.11―Reiwa 1(2019) (Ne)No. 6641
Nagoya High Court Court, 13 January 2021 (SriLanka)
Translated by Haruka Jifuku2 & Yukari Ando3

JUDGMENT
The Plaintiff:
The Attorney for Plaintiff: Esq. Chiharu Yaguchi,
The Assistant Attorneys for the Plaintiff: Esq. Yoshihiro Sorano, Esq. Satoshi
Ogawa, and others
The Defendant: The Japanese Government
The Representative, the Minister of Justice: A
Attorneys for Defendant: B, other two people and more

THE MAIN TEXT OF JUDGMENT
1. The original judgment shall be changed as below.
A.The defendant shall pay the plaintiff a sum of 440,000 yen together with an amountthereon at the rate of 5% per annum from December 18, 2014, until full payment of suchsum shall have been made;B. The plaintiff's other claims shall be dismissed;
2. The litigation expenses for the rst instance to the second shall be divided into fteen,
and the two will be paid by the defendant and the plaintiff will bear the remaining;

1. 令和3年1月13日判決言渡

令和1(ネ)第664号 損害賠償請求控訴事件（原審・名古屋地方裁判所平成28年（ワ）第3483号）

2. Currently interning at the NGO Foreigners’s Assistance KOBE (GQ net) from September 2019. Graduated from the International Relations Department, Kobe City University of Foreign Studies in March 2021. The former student intern at the Asia-Paci c Human Rights Information Center (HURIGHTS OSAKA), November 2019 - 2020 March.
3. Guest Associate Professor at Osaka School of International Public Policy, Osaka University.

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CDRQ vol.11

FACTS AND REASONS
1.

ClaimsA. The part in the original judgement against the plaintiff shall be removed.
B. The defendant shall pay another 3,212,000 yen together with an amount thereonat the rate of 5% per annum from December 18, 2014, until full payment of such sum
shall have been made.
2. Outline of the Facts (the abbreviation is based on the example of the original judgment unless other than speci ed separately. The same is below in this judgment. ）A. The appellant with the nationality of the Democratic Socialist Republic of Sri
Lanka illegally entered Japan in 2005 using a forged passport in the name of anotherperson. In June 2010, he received a deportation order based on Article 24, No. 4 of
the ICCRA (illegal immigration), and his application for refugee recognition was dismissed by the Minister of Justice (the Refugee Recognition Application) in June 2011.
On November 7, 2014, the Minister of Justice decided to dismiss the objection to thedisposition (decision to dismiss the objection), but the appellant was noti ed of it on
December 17, 2014. On the following day, June 18, he was deported to Sri Lanka bymass deportation (the deportation).
In this case, the appellant has sued the appellee by claiming as following: the Immigration Services Agency of Japan (hereinafter referred to as "immigration bureau")staff selected the appellant as a target of group deportation through the appellant intended to le a case for cancellation of the refugee recognition disapproval; the bureau intentionally delayed notifying him that the objection against the decision on the
refugee recognition application was dismissed up to 40 days after the selection toprevent the proceedings from being led, the notice of the above decision was, andfended him off contacting his lawyer after the notice; the bureau violated the appellant's right of access to the court by carrying out the deportation stating that the appellant could le a revocation case after going back to Sri Lanka. The appellant demanded the appellee pay 3,300,000 yen (3,000,000 yen for compensation and
300,000 for a legal fee) based on the State Redress Act Article 1, item 1, with anamount thereon at the rate of 5% per annum from December 18, 2014 (the day when
the deportation was carried out), until full payment of such sum shall have been
made as the Civil Code regulates (Before amendment by Law No. 44 (2017)).
The original judgment reviewed that the Immigration Control and Refugee Recognition Act(hereinafter ICCRA) does not regulate that deportation of foreign nationals
who have not obtained a status of residence should be stopped, except for the provision that deportation will be suspended until there is a decision on opposition to thedisposition of refugee disquali cation (Article 61-2-6, Paragraph 3). In the case of thedeportation target, the deportation cannot be legally cancelled unless the court decides, and immigration of cials are not obliged to pose a deportation process unless
those conditions are ful lled. The judgment concluded that It could not be said that

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there is an illegality in the application of Article 1, item 1 of the State Redress Act for
not cancelling the deportation by selecting the appellant who has been decided todismiss the objection and has not obtained the decision to cancel the deportation.
The court also decided that it was illegal to apply the same item to make a false
explanation as if the appellant could sue for revocation of the refugee disquali cationeven after the appellant was deported. Thus, the original judgment partly accepted
the appellant's request as A total of 88,000 yen (compensation 80,000 yen, legal fee
equivalent amount 8,000 yen) and the extent of the payment of late charges and dismissed the rest of the claims. Later, the appellant appealed for the lost part as a complaint.

1) "The deportation order" on page 3, line 23 and 25 and page 4, line 7 of the original judgment shall be changed to "the written deportation order", and "(Hereinafter,
simply referred to as" immigration of cer")" shall be added after "the immigration
control of cers of Nagoya Regional Immigration Bureau" on page 3, line 25. Besides,"...on December 15, 2014… though the plaintiff was allowed to extend the period ofprovisional release" shall be modi ed as "the appellant was allowed to extend theprovisional release period, and on the 17th of the same month after the decision todismiss the objection made on November 7, 2014, as B (d) explains below, he appeared in the Nagoya Regional Immigration Bureau and gained permission to extend
the provisional release period by the chief examiner. However, the appellant appeared at the Nagoya Immigration Bureau on December 15, 2014, and applied for
permission to extend the provisional release period on the grounds of making a trial."

2) At the end of page 4, line 13 of the original judgment, "the appellant had neverapplied for refugee recognition before making this refugee recognition application"
shall be added, and the statement that "noti ed the plaintiff" on page 6, line 7, shallbe modi ed as "noti ed the appellant on the same day who was detained in Nagoya
Regional Immigration Bureau as the deportation order was enforced."

3) The original judgment, page 7, lines 16 to 24, shall be amended as follows. "Theimmigration of cer announced the decision to dismiss the objection to the appellant
who was detained in the Nagoya Regional Immigration Bureau at around 3 pm on
December 17, 2014, and taught about the revocation suit against the decision using
instruction. Furthermore, at around 3:37 pm on the same day, the Immigration ofcer noti ed the appellant that he would be repatriated to Sri Lanka by enforcing thedeportation order at the Great Interrogation Of ce of the First Investigation Division.
In response, the appellant expressed his intention to oppose the deportation andstated, "I can le a suit on this for the next six months.", and "I will do my trial." Otherwise, the immigration of cer said, "You got me not to recognize you as a refugee",and "Go back to Sri Lanka.” Later, the appellant was taken to the Investigation Department No. 1 of the First Investigation Division, but he said, "I can try this in 6
months," "I will die after returning to the country", "show me the documents that theimmigration bureau is responsible for my safety" to the immigration of cer and others
for more than 30 minutes while holding instruction 2. However, the immigration of-

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CDRQ vol.11

cer said, "the discussion on your refugee recognition application is over," "you cando it after going back to your home", "you can le a trial without yourself." (X1, 2,
3-11, 3-12, X5, 6, Y31) ."4) A line break shall be added at the end of the 7th line on page 8 of the original
judgment and "D. On March 23, 2015, after the deportation of the case, the appellant
married a Japanese national in Sri Lanka by the Sri Lankan method. (Y32, 33) ” shallbe added.

5) The following content shall be added after a line break at the end of the 15th line
on page 8 of the original judgment.
“D. Article 53
a. Item 1
Any person subject to deportation shall be deported to a country of which he/she isa national or citizen.
b. Item 3
The countries outlined in the preceding two paragraphs shall not include any of
the following countries.
(i) The territories of countries prescribed in the Refugee Convention, Article 33,
paragraph (1) (except for cases in which the Minister of Justice nds it signi cantly
detrimental to the interests and public security of Japan)(ii) Countries prescribed in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 3, paragraph (1) (Omitted below).

6) The heading symbols B to F on page 8 to 9 of the original judgment shall be
moved down to C to G, and "Article 61-2-4, paragraph 1" on page 9, line 2 shall berevised as "Article 61-2-24, Paragraph 1 rst sentence", and added the following after
a line break at the end of the 24th line.
“I Article 61-2-9, Item 1
If a foreign national has an objection to any of the following dispositions, he/she
may le an objection with the Minister of Justice by submitting a document thatstates the matters provided by the Ordinance of the Ministry of Justice.
(i) Denial of recognition of refugee status (Omitted Below).

(4) Regulations by the International Covenant on Civil and Political Rights（hereinafter referred to as “ICCPR”)
A. Each State Party to the present Covenant undertakes:(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has beencommitted by persons acting in an of cial capacity;(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and todevelop the possibilities of judicial remedy; (Omitted below).

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CDRQ vol.11

B. Article 14, Item 1
All persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit at law,everyone shall be entitled to a fair and public hearing by a competent, independentand impartial tribunal established by law (Omitted below).
(5) Regulations by the Convention Relating to the Status of Refugees (hereinafterreferred to as “Refugee Convention”)
A Article 16
1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters about access to the Courts, including legal assistance and exemption from cautio judicatum solvi (omitted below).
B. Article 33
No Contracting State shall expel or return (“refouler”) a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would bethreatened on account of his race, religion, nationality, membership of a particularsocial group or political opinion.
(6) Regulations by the Regulations by the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as“CAT”)
Article 3
1. No State Party shall expel, return ("refouler") or extradite a person to anotherState where there are substantial grounds for believing that he would be in dangerof being subjected to torture.
2. to determine whether there are such grounds, the competent authorities shalltake into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, agrant or mass violations of human rights.

7) "If the deportation is illegal under the State Redress Act" on page 9, line 26 andpage 10, line 3 of the original judgment, shall be changed to "If the deportation isillegal under the application of Article 1, Paragraph 1 of the State Redress Act." Also,"ICCPR" on the 5th and 6th lines shall be revised as "ICCPR", and "(hereinafter referred to as "the Refugee Convention")" on the 15th and 16th lines shall be changed
into "(the Refugee Convention)". Along with, "CAT" on the 17th line shall be revisedas "CAT" and "immigration control guards" on the 23rd line shall be revised as "immigration control of cers including immigration guards".
Furthermore, on page 11, line 10, "and so on" shall be added after "Article 31 violation," and "Osaka Regional Immigration Bureau" on line 20 shall be changed to"Osaka Immigration Bureau." Besides, "he submitted a petition to request" on line 21
to "the defendant could fully get it" on the 23rd line should be changed to "he submitted the request, and wrote "I want to try a case" in the reason column of the applica-

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CDRQ vol.11

tion for permission to extend the provisional release period submitted on December
15, 2014. Therefore, if the opposition was dismissed, he indicated that he would lea revocation suit, and the Immigration Bureau also was aware of the appellant's intentions as it put the explanations on the reason for the application was "preparation
for litigation (objection against refugee disapproval)" in the written decision on theapplication."
The "defendant" on the 23rd line, 12th page, shall be revised as "immigration of cials including immigration control guards" in 3rd line and 5th line, and the "afternoti cation of dismissal of objection" on page 11, 26th line, shall be changed to"After the announcement of the decision on dismissal of objection." Also, after "Article 31 of the Constitution)" on page 12, line 18, "and so on" should be added.

8) "Being dismissed for taking" on page 13, line 3 of the original judgment, shall bemodi ed to "dismisses him to take" and "disposition for issuing deportation order" inline 24, page 14, lines 7, 8, and 10 shall be changed to "disposition for issuing thewritten deportation order."On page 15, line 5, "decision to dismiss the objection" shall be changed to "decision to dismiss the petition of the objection," and line 8 "from the date of the conclusion of rejection of the objection to that of the announcement to the representative" shall be modi ed as "Since it is required to consider the privacy of the personand secure an interpreter in practice, from the date of the conclusion of rejection of
the objection to that of the announcement to the representative."9) At the end of page 15, line 9 of the original judgment, "also, in the case of groupdeportation, to repatriate a large number of deportees at once using a charter plane at
the national expense, and the target person are not to be noti ed in advance of thedecision to dismiss the opposition and target are not allowed contact with third
parties after the noti cation in principle. This rule is made to prevent the target person
and related parties from interfering with the deportation after the noti cation and is anecessary and rational measure to achieve the administrative purpose of safely andsurely repatriating those who are subject to mass deportation" shall be added. Also, inline 19 and 20, "the immigration control guards" shall be replaced with "immigrationof cers including immigration control guards".

THE COURT DECISION
1. Regarding the immigration of cials' series of acts leading to the deportation, the court
decides that the appellee has substantially deprived the appellant, who had indicated his
intention to le a revocation suit over the disapproval of the case, from the judicial review. Thus, there is an illegality in the application of the State Redress Act Article 1-1.
Among the appellant's request, the court admits the payment of 440,000 yen and thedelay charges from December 18, 2014 (the date of the deportation) at a rate of 5
minutes per year for the following reasons.

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CDRQ vol.11

2.

Points at Issue(1)（if the deportation is illegal in the application of the State Redress Act Article 1-1)
(1)

Of the issues (1), the judgment criteria for the illegality of Article 1, Paragraph 1 of
the State Redress Act, the violation of Article 14, Paragraph 1 of the International Covenant on Civil Liberties, and the judgment of the non-refoulement principle areamended as follows. Others are described in the original judgment "Facts and Reasons''
No.3-1 (1) to (3) and quoted.

A. The "immigration control guards" on page 16 and line 12 of the original judgment
shall be revised as "immigration of cer including immigration control guards", and the"plaintiff who was a target to be deported" on line 25 shall be changed to "the appellant
who was a target of the written deportation order enforcement, and able to le a revocation suit and so on separately from the objection as described below."

B. "Immediately" shall be put after "the principle itself" on page 17, line 9 of the original
judgment and "by the principle of the rule of law" in line 10, and after "hence" in line 13,"non-refoulement prohibits deportation to a country where there is a risk of political persecution, and when to judge if the implementation possibility of deportation is possible,
it is required to consider it based on the provisions of Article 53, Paragraph 3 of the ICCRA, which cites Article 33, Paragraph 1 of the 1951 Convention in Japan's judicial review. However, crossing over it," shall be also added. Also, "the plaintiff is also" on the
15th line to "dif cult to say" on the 21st line shall be deleted, and "therefore" in the 21stand 22nd lines" shall be changed to "thus."(2) Violations of Article 32, 13, 31 of the Constitution

A. Regarding the series of actions leading to the deportation of immigration of cials, theappellant separates it into two: selecting the appellant for group deportation using achartered plane though he has indicated his intention to le a revocation suit after receiving a refusal of the objection; and the timing and method of notifying the appellantof the decision to dismiss the objection. The appellant claims that each act has violated
his right to a trial (Articles 32 and 13 of the Constitution) and protection of due processof law (Article 31 of the Constitution) and so on, and appeals that it is illegal in the application of Article 1, Paragraph 1 of the State Redress Act.
However, in terms of the mass deportation, the appellee has admitted that it does notprovide in-advance noti cation of the dismissal of the refugee disquali cation objection
to the target person and allow them to contact outsiders to realize the safe and reliable
deportation of the deportation evader. Regarding the deportation target whose objection
has been decided to be dismissed, as it can be said that the selection of the persons to be
repatriated and the announcement of the decision is made as a series, the illegality of theimmigration of cer’s acts leading to the deportation shall be considered under Article 1,
Paragraph 1 of the State Redress Act.

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B. First, the court examines whether the immigration of cials’ series of acts leading to
the deportation violated the right to a trial of the appellant (Article 32 of the Constitution)or protection of due process of law (Article 31 of the Constitution).
For foreign nationals who have applied for refugee status and have not obtained astatus of stay, the provision that the deportation will be suspended until the Minister ofJustice decides to dismiss the objection or makes a decision on the refusal (Article
61-2-6, Paragraph 3), but there is no statutory provision to suspend deportation otherthan this regulation.
However, in the rst place, the ICCRA and related regulations adopt the so-called
free-choice principle in which objection/revocation suits proceedings or both of themcan be taken as an appeal against refugee disquali cation (Article 61-2-9 of the ICCRA,
and Article 8 of the Administrative Case Litigation Law). Thus, refugee status applicants
can le a revocation suit simultaneously as/or separately from the objection on the
refugee disquali cation. Practically, the proceedings are concluded, the deportation of
the applicant is postponed (X7). Additionally, Article 52, Paragraph 3 of the ICCRA stipulates that deportees should be deported promptly, but a ruling and deportation order relating to an objection based on Article 49, Paragraph 1 of the Act enables to le a revocation suit and so on. Together with the ling of the revocation suit on the issuance disposition and a court decision based on the petition, the deportee can pose the deportation process based on the written deportation order. (Administrative Case Litigation Act,
Article 25, Paragraph 2). In this way, a deportee who has applied for refugee status determination may separately le a revocation suit against the disposition and issue a deportation order even before the decision on the opposition to the disposition of refugee
disapproval and have the opportunity to be tried for the refugee disquali cation by obtaining a court decision on the deportation cancellation together with the ling of a revocation suit against the disposition, and so on. The Japanese laws and regulations consider the right to a trial guaranteed by the Constitution for foreign residents, as well as
reviewing the disciplinary power of administrative disposition regarding deportation
reasons, the status of residence such as the existence of the same reason, and the effects
application for refugee status determination gives to the relations with the home country.
The legal aspects can be evaluated to secure the opportunity to receive a trial and harmonize with the residence system of Japan. Then, even if the deportee whose objection
to the refugee disquali cation has been decided to be dismissed has indicated in advance an intention to cancel the disposition, It cannot be said that it is not permissible
for the immigration of cers to select the deportee as a target for group deportation.
Moreover, it cannot be admitted that not posing the deportation process until the
period for ling the complaint expires after the refusal of the objection was decided or
not securing an opportunity to make a trial are signi cantly unfair and cannot be perceived as the refusal of the trial. Also, even if the above-mentioned procedural guarantee
is not secured, it cannot be admitted that there was a lack of procedural protections of
the deportee and cannot be said to be contrary to the provisions of Article 13 of the Constitution. Therefore, the court does not admit that the series of acts leading to the deportation of the immigration of cials infringed the appellant's constitutional right of accessto the court and the guarantee of due process.

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C. As described above, in the case of the deportee whose objection against the refugee
disquali cation has been decided to be dismissed, even though the selection of the person as a mass deportation subject and not posing the deportation process by the complaint period expired is not enough to con rm the violation of the right of access to thecourt and protection of due process of law, the deportee was not noti ed of the objection refusal after being selected as a group deportation subject.
As the bureau does not allow the deportee to contact the third party after the notification, it becomes practically impossible to le a revocation suit against the refugee
disquali cation. The court considers if the series of the immigration of cer’s acts on thispoint shall be illegal in the application of Article 1-1 of the State Redress Act concerning
the Immigration Act, which adopts the free-choice principle for appeals against the disposition, and the Administrative Case Litigation Act, which seeks to guarantee the opportunity to undergo judicial review for administrative dispositions.

(a) The Immigration Act limits refugee status applicants to foreign residents in Japan (Article 61-2, Paragraph 1), and if the foreigner leaves Japan by enforcing a deportation order, he/she will be disquali ed as a refugee, as it is understood that the bene ts of theaction for revocation of the above will be lost (Supreme Court 1993 (Gyotsu) No. 159,
July 12, 1988, Second Small Court Judgment, Refugee No. 179, p. 563). Therefore, if thebureau selects a deportee whose objection on the refugee disquali cation has been decided to be dismissed, as a target for mass deportation, the deportee will lose its judicial
review opportunities related to the refugee quali cation unless it les a revocation inadvance separately from the objection, assuming the operation mentioned above of theimmigration authorities.
However, as mentioned in section B above, the ICCRA adopts the so-called freechoice principle, enabling people to take measures such as objection and/or revocation
lawsuits against the refugee disquali cation. It entrusts the person with the choice ofadministrative appeal examination by ling an objection or judicial examination by cancellation lawsuit and adopts a mechanism to guarantee the opportunity to guarantee thefairness of the disposition. Besides, Article 46-1 of the Administrative Act Litigation Act
stipulates the instructing obligation of the administrative agency and intends to guarantee
the disposition subject the opportunity to undergo a judicial examination from the viewpoint of relief of rights and interests. It is equally valid in the decision to dismiss the objection to the case, and in fact, the period for ling the revocation proceeding is alsotaught in each noti cation of the refugee disquali cation and the decision on the objection dismissal (instruction 2, issued at the time of the noti cation of the objection dismissal, was directly instructing the period for ling the revocation suit against the dismissal of the objection, but the issued instruction 1, which was provided at the time of
the noti cation of the refugee disquali cation, illustrates the period for ling a revocation suit against the disposition of disapproval, and the period for ling the action is thesame.)
Furthermore, Article 14-3 regulates that the period for ling a revocation suit will notstart until a decision is made against it if an administrative appeal examination request is
made, and enables to le a revocation suit after the objection on the refugee disquali cation was dismissed. Regarding the above-mentioned objecting system on the refugee

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CDRQ vol.11

disquali cation (free choice principle) and the Administrative Case Litigation Act regulations, which attempts to substantially guarantee the opportunity to undergo a judicial
examination from the perspective of the mechanism for effective relief of rights, it is admitted that the rules seek to enable to le a revocation suit over refugee quali cation andeven after the decision to dismiss the objection on the refugee disquali cation is made,and guarantee the opportunity to undergo a judicial examination (the administrative appeal examination by opposition guarantees the opportunity for the Minister of Justice,which is the disposition administrative agency, to correct the illegal and unjusti ed disposition, while the judicial examination to correct illegality in the disposition by the
court independent of the disposition administrative agency. The administrative appeal
examination cannot be equated with the judicial examination in the rst place.) Also,
according to the above provisions, due to the absence of the regulations stipulating thatthe deportation shall be cancelled after the decision to dismiss the objection on refugee
disquali cation is made and the existence of Article 52-3 of the ICCRA, which stipulates
that deported persons should be promptly deported, it cannot be justi ed that the opportunity for judicial review on refugee quali cation can be substantially deprived. Furthermore, as mentioned in section B above, if a lawsuit against refugee disquali cation
has been led, the immigration bureau generally considers the right to a trial of the person who led the lawsuit and will suspend the deporting operation until the lawsuit isconcluded. As well as in the Universal Periodic Review (on ICCPR and the United Nations Convention against Torture), it is proved that the bureau secures opportunities forjudicial examination of refugee recognition applicants based on the teaching obligations
stipulated in the Administrative Case Litigation Law, and checks if the deportee is willingto le a proceeding against refugee disposition and decides if it proceeds the deportation
operation based on the response, with the consideration on their right of access to thecourt (X13 and 14).
Then, the above operation shall be considered in the case of a revocation proceeding
against refugee disquali cation is merely a de facto treatment at its discretion, even if it
does not impose a legal obligation on the immigration bureau. In light of the above-mentioned operational rights, It is unacceptable that the deportee who led an objection to
the refugee disquali cation has indicated that he intends to le a revocation suit over theobjection refusal, was not be noti ed of the decision to dismiss the opposition at an appropriate time and will be substantially deprived of the opportunity for judicial review
regarding refugee eligibility with the reason of becoming a group deportation subject,and it is inconsistent with the statement mentioned above. Regarding the content mentioned above, except the case when the objecting procedure is abusive used, it is reasonable to understand that the deportee who has led an objection to the refugee disquali cation have legally protected interests in not being substantially deprived of theopportunity for judicial review by ling a revocation suit after the decision to dismiss
objection is made. This interpretation shall be consistent and appropriate along with thestipulations of the right of access to the court in the Constitution and protection of due
process of law in various human rights treaties (Article 2.3, Article 14, Paragraph 1 of
ICCPR, Article 16 of the Refugee Convention).
Practically, if this is not the case, it is the immigration authorities that selects the persons to be repatriated unless the deportee has led a separate lawsuit to revoke the

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CDRQ vol.11

refugee disquali cation, the immigration bureau’s decision will determine whether there
is an opportunity for a judicial examination regarding the refugee quali cation of a deported person who intends to sue for revocation after the decision to dismiss the objection is made. This operation is not consistent with the fact that the act adopts a freechoice principle for appeals against refugee disquali cation, Article 14-1 of ICCPR guarantees everyone to have the right to a public hearing by an independent and impartial
court on disputes over civil rights and obligations, and the above provisions of the Administrative Case Litigation Act, which seeks to guarantee the opportunity to undergo
judicial examination for administrative dispositions.

(b) Based on the above, the deportation staff de ned the deportee, who had indicated his
intention to le a revocation suit and so on after the decision to dismiss the opposition
was made, as a group deportation target and delayed the noti cation of the objection
refusal to him until just before the deportation was carried out. Also, if the person is deported to his / her home country without being allowed to contact the third party after
the noti cation, it can be said that these series substantially deprived the appellant’s opportunities of getting a judicial review of acts related to the exercise of public authority.
Thus, the following actions shall be illegal to apply Article 1, Paragraph 1 of the State
Redress Act, unless there are special reasons that prove that the person appealed the objections abusively.
On the other hand, the appellee claims that its action was not illegal in the application of the State Redress Act Article 1-1, as there are no regulations that the deportation
should be cancelled after the decision on the objection to the disquali cation of refugees
is made, and the deportation operation that subjects to the mass deportation do not receive in-advance noti cation and not to be allowed to contact with a third party after thenoti cation is necessary to safely and reliably achieve the administrative purpose of repatriating a large number of repatriated refugees at once using a charter aircraft at national expense.
However, even if a certain degree of rationality is recognized in light of the administrative purpose for measures to cut the communication between the deportee and outsiders for group deportation and its reliable and smooth implementation, it cannot betolerated that deportees are substantially deprived a person that indicated his intentions
to le a revocation trial after the objection was dismissed, of the opportunity for judicial
review of refugee quali cation because they have been subject to mass deportation, as
the ICCRA and related legal system has applied a free-choice principle on the objection
against refugee disquali cation and in the presence of Article 14 (1) of the ICCPR andthe provisions mentioned above of the Administrative Case Litigation Act. Thus, the court
does not take the above-mentioned appellee’s claims.

(c) Considering this case on that matter, as stated in Premise Facts (2) A and C, the appellant had never applied for refugee status determination before the application for refugee
status determination, and on November 7, 2014, the Minister of Justice decided to dismiss the objection to the disquali cation. However, on December 17, 2014, 40 days
later than the decision was made, the appellant was noti ed of the refusal and repatriated to Sri Lanka by the method of mass deportation on the following day. When he ap-

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peared in the Nagoya Regional Immigration Bureau on the 15th before the announcement, he indicated his intention to make a trial for revocation of the disquali cation, but
the written deportation order was taken into practice and he was detained in the Nagoya
Regional Immigration Bureau.
Furthermore, since the appellant was selected as a target of group deportation to Sri
Lanka, the decision to dismiss the objection was not announced to him until the day before the deportation, and it seems that he was not allowed to contact the third party until
the case was repatriated although he repeatedly expressed his intentions for ling a revocation suit against the refugee disquali cation decision. In that case, it cannot be said
that the appellant has made an abusive opposition to the decision on refugee disquali cation, and he could not gain the opportunity for making a revocation trial due to not being noti ed of the decision at an appropriate time. Thus, it shall be said that the series ofactions of these immigration of cials substantially deprived the appellant of the opportunity for judicial review regarding the appellant's refugee quali cation.
Besides, the appellate is required to consider the privacy protection of the refugee
status applicant and secure an interpreter when notifying the decision to dismiss the objection, so it usually takes about one month to take it into practice. The appellee argues
that it has never delayed the noti cation practice even in this case, but even if it takes
such a considerable amount of time for the above noti cation, over a month has passed
since the decision to dismiss the opposition in this case, and any rational reasons for notannouncing the decision to the appellant when he was detained in the Nagoya Regional
Immigration Bureau as of December 15, 2016, can be hardly found. Instead, the announcement was made on the 17th of the same month, the day before the deportation,
to ensure and smooth the mass deportation; the appellee's allegations above do not inuence the above judgment and is deemed to have been due to such implementation.

(d) Considering the contents written above, a series of actions leading to the deportationof the immigration of cials led the appellant not to be noti ed of the decision on theobjection at an appropriate time as a person subject to group deportation, and the appellant was deprived of opportunities for judicial review regarding refugee quali cation.
Premising the provisions of Article 52, Paragraph 3 of the ICCRA and comparing with themechanism for appealing refugee disquali cation under the ICCRA and the provisions of
the Administrative Case Litigation Act and so on, Immigration of cials shall be perceived
that they have violated the duty of care that they should do in their duties in performing
the above acts, so the above acts of immigration of cials shall be illegal in the application of Article 1, Paragraph 1 of the State Redress Act.
3.

Point at Issue (2) (The Amount of the Damage)

As mentioned in section 2 above, the appellant was substantially deprived of the opportunity for judicial review regarding refugee quali cation due to the series of actions
leading up to the deportation of the immigration of cer, and they caused the appellant's
distress suffered by the appellant. It is reasonable to set the compensation fee to 400,000
yen, and the legal fee, which has a signi cant causal relationship with the damage, shallbe set to 40,000 yen, which is 10% of the damages.

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CDRQ vol.11

Considering the conversation between the immigration of cers at the Nagoya Immigration
Bureau and the appellant while the announcement of the deportation to Sri Lanka (premisefacts (2) c (a)) was announced, it is reasonable to admit that the immigration of cer made a
false explanation that the appellant could proceed could make a trial even after being repatriated to Sri Lanka. Since this act can be counted as a part of the above-stated behaviours
substantially deprived the appellant of the opportunity of having judicial review regarding the
refugee quali cation, it should not be regarded as an illegal act that requires further compensation fee.
Therefore, the appellant's request is partly accepted because there is a reason for requesting payment of 440,000 yen and delay charges at a rate of 5 minutes per year from December 18, 2014, until full payment of such sum shall have been made. The rest of the claim shallbe dismissed as a lack of reasoning, but the original judgment, which was different from thisone, is partially unjusti ed. Thus, since there are some reasons for this appeal, the court decided to change the original judgment and not to attach the provisional execution declaration
since it is not appropriate.

CONCLUSION
For those mentioned above, the defendant shall pay the plaintiff a sum of 88,000 yen together with an amount thereon at the rate of 5% per annum from December 18, 2014, thedate when the defendant gave the false instruction until full payment of such sum shall havebeen made as the Civil Code regulates, and the rest of the consolation money that theplaintiff claims shall be dismissed because there are no decent reasons. Additionally, referringto the cost of the lawsuit, it is decent that the plaintiff should charge all costs in comparison
with the amount of damage as mentioned above. Also, because there are no decent reasons,the declaration of provisional execution shall not be added.
Accordingly, this court decides as in the Formal Judgments.
Civil Affairs Division II, Nagoya High Court
The Chief Justice: Osamu Hagimoto
Justice: Mikikazu Sueyoshi, Tomohiro Hioki

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CDRQ vol.11― Case Summary by Atty. Satoshi Ogawa
re. Reiwa 1(2019) (Ne)No. 6641
Translated by Haruka Jifuku2 & Yukari Ando3

A case concerning the State redress claim was granted for deporting a refugee claimantand depriving him of the opportunity to sue for revocation of refugee disquali cation.
(Nagoya High Court, January 13th, 2021/ Won)

1.

Summary of the Judgement

A. The objectors on the refugee recognition refusal have a legal interest that they are"not substantially deprived of the opportunity to receive judicial review" for the
refugee applicability.

B.

In this case, it is illegal under the State Redress Act (1947) to deport a refugeeclaimant who has been willing to le a revocation suit as a subject to mass deportation (with notice of disposition and initiation of deportation at the same time) anddeprive them of the opportunity to le the suit.

2.

About the Case
The client was provisionally released, awaiting the refugee objection result (current"examination request"), and was preparing a revocation suit in the case when the current decision on the disquali cation would be maintained. He claimed that his political activities in his country of origin would put him at risk of life if he returned.
Otherwise, before the examination result was revealed, the Immigration Bureau has
selected the client as the target of collective deportation by charter ight. Even after
the examination was concluded, the authority never told the result to him to deprive
him of time to le a revocation of administrative dispositions against the denial of
refugee status. When the client appeared on the renewal date of the provisional release, he was suddenly detained and got noti cation of the dismissal and put in thedeportation process on the following day.
When he was noti ed of the dismissal of the objection from the bureau, an immig-

1 . 令和3年1月13日判決言渡

令和1(ネ)第664号 損害賠償請求控訴事件（原審・名古屋地方裁判所平成28年（ワ）第3483号）

2. Currently interning at the NGO Foreigners’s Assistance KOBE (GQ net) from September 2019. Graduated from the International Relations Department, Kobe City University of Foreign Studies in March 2021. The former student intern at the Asia-Paci c Human Rights Information Center (HURIGHTS OSAKA), November 2019 - 2020 March.
3. Guest Associate Professor at Osaka School of International Public Policy, Osaka University.

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CDRQ vol.11

ration of cer told him that "it was possible to le an appeal in six months." When theclient said, "I want to le a lawsuit for reasserting," the immigration guard made a false
explanation that he could still le a trial even after returning to his country of origin.
As the client physically left Japan for deportation, he no longer met the legal requirements of "refugees." The lawsuit for revocation of the refugee recognition refusal
lacked the bene t of the complaint, and the revocation suit was impossible to be led(the fact that the bene t of the complaint disappears by deportation is different fromthe lawsuit for revocation of the deportation order).
3.

Signi cance of this Judgement(1) Interpretation of the mechanism, conjecture of the report to the United Nations,interpretation of treaty conformity
The judges interpreted the Immigration Control and Refugee Recognition Act(hereinafter ICCRA) and the mechanism of administrative case litigation. In otherwords, they concluded that the ICCRA adopts a free choice principle to "guarantee
opportunities for correction to dispositions," and the Administrative Case Litigation
Act has con rmed the administrative agency's teaching obligations (Article 46 Paragraph 1) and the appeal period (Article 14,3) are for "substantially guaranteeing theopportunity to receive a judicial review from the viewpoint of effective rights relief,"
and af rmed the legal bene ts of judicial review opportunities.
In response to the state's objections, the judge pointed out the differences
between the contents of reports submitted by the government to the United Nations(such as con rmation of intentions of ling a revocation and having a considerable
time to guarantee opportunities for judicial review), and found that "it is unacceptablethat the opportunity for judicial review was lost for being a subject to the mass deportation."
Furthermore, the judgment clearly stated that the interpretation af rming the legal
interests of the opportunity for judicial review that "conforms to the provisions ofvarious human rights treaties (the International Covenant on Civil and Political
Rights(hereinafter ICCPR), Article 2 - Paragraph 3, and Article 14, and Article 16 of
the Refugee Convention) guarantees the right to trial and due process as stipulated in
the Constitution", and referred to the International Covenant on Economic, Social andCultural Rights.
In terms of the claims that the authority’s activity was a constitutional violation,
additionally, the judge concluded that the behaviour did not violate Article 32 of theor Article 31 of the Constitution since it was allowed to have a judicial examinationeven during the revocation process and it did not fall under the refusal of a trial.

(2) Differences with the Original Trial (LNF Newsletter No23 Case Report (2))
The original judgment was based on the premise that foreigners do not have freedom of residence, and their deportation was not restricted by the ICCRA regulations
and considered the case putting the duty conduct standard theory at the centre. Following that, the judges examined the duties of the immigration of cer who carriedout the deportation and partly admitted the of cer's behaviour as illegal on the pointthat they made a false explanation that they could try even after returning home.

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CDRQ vol.11

Thus, the judge concluded that the client's infringed pro ts as the right to receive accurate instruction" and allowed compensation of 88,000 yen.
In response, this judgment considers a series of acts as a whole, from selecting theclient as subject to group deportation to carrying out the deportation, and judged theillegality of the infringed pro t as "an opportunity to receive a judicial review forrefugee status," and granted damages of 440,000 yen.

(3) Impact on the Practical Immigration Control
Since it is illegal to deprive refugee claimants of the opportunity to le a revocation suit, this judgment would signi cantly impact the immigration administration in
general. At the very least, the deportation will be overhauled to avoid violating judicial review opportunities.
It is also a valuable case of the "right to access to the courts," which has a little
precedent, and I think it is also of great signi cance as a court case for interpretinginternational treaties conformity.
Satoshi Ogawa (Attorney at Law, Nara Bar Association)

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CDRQ vol.11―Heisei 28 (2016) (Wa) No. 34831
Nagoya District Court, 30th July 2019 (SriLanka)
Translated by Haruka Jifuku2& Yukari Ando3
JUDGMENT
The Plaintiff:
Attorneys for Plaintiff: Esq. Chiharu Yaguchi,
Esq. Yoshihiro Sorano,
Esq. Satoshi Ogawa,
Esq. Keigo Baba
Assistant Attorneys for Plaintiff: Esq. Sachiko Wadatani,
Esq. Koichi Kodama
The Defendant:
The Japanese Government
The representative, the Minister of Justice: Takashi Yamashita,
Address: 1-1-1 Kasumigaseki, Chiyoda-ward, Tokyo
Attorneys for Defendant: Esq. Hiroshi Ishii,
Esq. Tomomi Kato,
Esq. Kohei Nada,
Esq. Akiyoshi Ono,
Esq. Humiharu Hori,
Esq. Takaaki Ito,
Esq. Takako Saito,
Esq. Tatsuo Haneda,
Esq. Hideo Sachi,
Esq. Masayuki Yamada,Esq. Naruomi Tanaka

1. 令和元年7月30日判決言渡、平成28年(ワ)第３４８３号損害賠償請求事件
2. Currently interning at the NGO Foreigners’s Assistance KOBE (GQ net) from September 2019. Graduated from the International Relations Department, Kobe City University of Foreign Studies in March 2021. The former student intern at the Asia-Paci c Human Rights Information Center (HURIGHTS OSAKA), November 2019 - 2020 March.
3. Guest Associate Professor at Osaka School of International Public Policy, Osaka University.

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38THE MAIN TEXT OF JUDGMENT
4.

The defendant Japanese government shall pay the plaintiff a sum of 88,000 yen
together with the amount thereon at the rate of 5% per annum from December
18, 2014, until full payment of such sum shall have been made;5.

The plaintiff's other claims shall be dismissed;

6.

The plaintiff shall bear litigation expenses;

FACTS AND REASONS
1.

ClaimsThe plaintiff demands judgment that the defendant pays the plaintiff a sum of
3,300,000 yen together with the amount thereon at the rate of 5% per annum from
December 18, 2014, until full payment of such sum shall have been made.
2.

Outline of the Factsiv) The plaintiff, a national of the Democratic Socialist Republic of Sri Lanka (hereinafter, Sri Lanka), who entered Japan with a forged passport issued under another’sname was refused refguee status on July 5, 2011, after receiving a dismissal order.
Although the plaintiff protested against the refusal on July 5, 2011, (based on the previous Immigration Control and Refugee Recognition Act, which is the one before revised by Act No. 69 in 2014 (hereinafter, “Immigration Act”), and indicated a willingness to act for revocation of administrative dispositions against the denial of refugee
status if his claim was dismissed. The immigration control of cers deliberately postponed the announcement of the dismissal decision on December 17 of the same year
in order to prevent the plaintiff from bringing a revocation case against the disqualication of the refugee status after the decision on the refusal of the opposition. The
plaintiff had already been detained from December 15, and he could not contact alawyer after the decision to dismiss. The plaintiff charged the Japanese government
with paying the plaintiff a sum of 3,300,000 yen (3,000,000 yen for consoling his
mental damages and 300,000 yen for hiring attorneys) together with an interest
thereon at the rate of 5% per annum counting from December 18, 2014, until full
payment of such sum shall have been made as compensation for damages based on
Article 1-1 of State Redress Act. This claim was led by the immigration control of cers
who gave the plaintiff a false explanation that he could le a suit after going back to
Sri Lanka then deported him to his country of origin on July 18, which is an illegal
use of public authority.

v) Fact Premise (each proof of ling (if there is a branch number unless otherwise
speci ed, the branch number includes the branch number, the same shall apply here-

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CDRQ vol.11

inafter) and the fact that is easily recognized by the whole purpose of the argument,
which show whether if there are con icts between the parties or not(1)

Plaintiff

The plaintiff is a male, Sri Lankan national who was born in Sri Lanka on OO OO,
1978.
(2)

The deportation procedure

A. The condition of the deportation procedure(a)

Although the plaintiff entered Japan using a forged passport issued under
the name of another on July 4, 2005, he was detected for suspicion of Immigration Act Article 24-4 (b) (illegal residence) on June 15, 2010 and was
detained in Nagoya Regional Immigration Bureau after investigated by theimmigration control of cers of Osaka Regional Immigration Bureau on thesame day. (Y2 and Y6) for the violation.

(b)

When Nagoya Regional Immigration Bureau conducted a violation investigation to the plaintiff on June 16 to 22, 2010 and informed that he was
identi ed as a violator of Immigration Act Article 24-4 (b) (illegal residue),
the plaintiff said "I renounce the oral hearing because I want to go back to
Sri Lanka soon.", and signed and af xed his ngerprint on the oral hearing
renouncement. The bureau published a deportation order to the plaintiff,
falling under the Immigration Act Article 24-4 (b) on the same day (which
determines the destination as Sri Lanka. Hereinafter referred to as “the deportation order”) and informed him about a suit for revocation of the deportation order. The immigration control of cers of the Nagoya Regional
Immigration Bureau enforced the deportation order on the same day andcontinued detaining him in the bureau. Later, the plaintiff was relocated to
Immigration Detention Centre, West Japan Immigration Centre (hereinafter
to, “West Japan Immigration Centre”) on September 29 of the same year.
The plaintiff did not bring a suit for the revocation of the deportation order.
(Y7 and Y12).

(c)

On June 2, 2011, the plaintiff received a provisional release and cameout of West Japan Immigration Centre. Later, the supervising immigration
specter of Nagoya Regional Immigration Bureau rejected the application toextend the period of temporary freedom that the plaintiff applied for on
December 15, 2014, and enforced the deportation order on the same day
and detained him in Nagoya Regional Immigration Bureau although theplaintiff was allowed to extend the period of provisional release. (X3, Y12,
and Y14).

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CDRQ vol.11

B. The condition of the refugee status determination(a)

The plaintiff submitted an application for the refugee statusdetermination(hereinafter referred to as “RSD application”) at West Japan
Immigration Centre on December 12, 2010, and Osaka Regional Immigration Bureau accepted the application (furthermore, the provisional stay forthis RSD application was rejected under the Immigration Act Article 61-2-4
paragraph1 item8).

(b)

The Minister of Justice disquali ed this RSD application (hereinafter referred to as “the refugee status disquali cation decision”) on June 3, 2011,
and noti ed the plaintiff on July 5 of the same year. Moreover, the minister
informed the plaintiff about a suit for revocation of the refugee status disquali cation decision on the same day. The document that the minister issued to the plaintiff at that time had the following descriptions (hereinafterreferred to as “Instruction 1”). (Y19).
“As you can bring a suit for revocation of disquali cation of the RSD
application(the refugee status disquali cation decision), we stipulate
herein who is an eligible defendant of the suit and the deadline for lingsuch action based on the Administrative Case Litigation Act Article 46.
1. The eligibility for bringing a legal action for revocation of the disquali cation of the RSD application
The Japanese government
2. The time limit for ling a legal action for revocation(1) Within six months, from the day the disquali cation of the RSD application (this decision of the disquali cation as a refugee) was informed.
However, it is not limited if there are any justi cations.
(2) It is not possible to bring a suit for the disquali cation of the RSD
application (this decision of the disquali cation as a refugee) when it was
passed one year from the day the disquali cation was determined even if itis still within the period stated in (1). However, it is not limited if there are
any justi cations.
(3) In the case where the petitioner objects to the disquali cation of the
RSD application(this decision of the disquali cation as a refugee) based on
the Immigration Act Article 61-2-9, the time limit for such action is within
6 months from the day you were informed of the division against the objection, despite the period stated in (1) and (2). However, it is not limited if
there are any justi cations.
(4) It is not possible to bring a suit against the disquali cation of the
RSD application (this decision of the disquali cation as a refugee) if one
year or more has passed from the day the division against the objection
was determined. However, it is not limited if there are any justi cations.”(c)

On June 20, 2011, the chief of Osaka Regional Immigration Bureau determined not to give the plaintiff a Special Permission to Stay based on the

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CDRQ vol.11

Immigration Act Article 61-2-2 paragraph 2 (hereinafter referred to as “thisdisapproval of special permission to stay”) and informed the plaintiff assuch, also, informed him about a suit for revocation of disapproval of special permission to stay on July 5, 2011. (Y20).
(d) The plaintiff raised an objection against the Minister of Justice for the disquali cation of the RSD application and submitted an oral opinion statement to Nagoya Regional Immigration Bureau minister on July 5, 2011. On
August 12 of the same year, the plaintiff led a statement of objection. (Y21and Y23)On February 9, 2014, the plaintiff submitted a form to request to the
Osaka Regional Immigration Bureau to execute an interrogation concerning
the objection made at Osaka Regional Immigration Bureau. On February
14, the legal representative of the plaintiff, Ms. Chiharu Yaguchi (hereinafterreferred to as “Atty. Yaguchi”) submitted the petition of the same contents as
the plaintiff to Osaka Regional Immigration Bureau. Later, Atty. Yaguchi
submitted written statements about the objection and related documents to
Osaka Regional Immigration Bureau on February 6 and March 10, 2014.
Furthermore, the oral opinion statements and the interrogation of theplaintiff were carried out at Osaka Regional Immigration Bureau on thesame days. (Y24 and Y29).
(e)
The Minister of Justice decided to reject the disquali cation objection(hereinafter referred to as “the rejection decision”) on November 7, 2014,
and informed it the plaintiff with instruction for ling a legal action for revocation of the rejection decision on December 17, 2014. Besides, thedocument that the minister issued to the plaintiff at that time had the following descriptions (hereinafter referred to as "Instruction 2"). (X1, X2, Y29,
and Y30).
“As you can move to revoke the rejection decision on your RSD application disquali cation, the eligibility and the time limitation for lingsuch legal action is advised based on the Administrative Case Litigation
Act Article 46.
The eligibility for bringing a legal action for revocation of the RSD
application disquali cation
The Japanese government
1. The time limitation for ling an action for cancellation(1) Within six months, from the day when the decision on the objection against the RSD application disquali cation was informed.
However, it is not limited if there are any justi cations.
(2) It is not possible to bring a suit to this decision of the objection
about disqualifying as a refugee when it was passed one year from the
day this decision was determined even if it is still within the period
shown in (1). However, it is not limited if there are any justi cations.”

C. The background of the procedure of deportation

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CDRQ vol.11(a) Mass deportation via charter ight enforced by the defendant
It is a fact that there are individuals who evade deportation, refusing repatriation to their countries of origin including a handful of cases in whichplane companies refuse to board said individuals, thus rendering it impossible to enforce individual deportations using the national budget. As
such, since 2013, the immigration control authority has been enforcing
group deportations with the intention of ensuring safe and secure travel andhas been deporting multiple people who evade deportation via charter ight
all at once. The selection of peoples under this mass deportation scheme isdetermined upon considering their circumstances. That is whether they havebeen deported from Japan; the defendant also takes into account the circumstances of individuals who were expelled from Japan, such as whether if
there is an ongoing administrative lawsuit concerning the said individual, or
if there is an application for refugee status determination under the process
along with its progress. Considering the progress of the above and such, thepersons in the process of objecting to the decision of disquali cation as a
refugee would include those who are likely to complete the process by thedate of deportation.
Although the plaintiff was in the process of objecting to the decision, he
was selected as the target person because he did not bring a suit for revocation of the deportation order and the process was likely to be completed by
the date of deportation.

(b) The announcement about this decision of rejection of the complaint to theplaintiff and his reaction to it
The immigration control of cers of Nagoya Regional Immigration Bureau
informed the plaintiff about the deportation to Sri Lanka, at 3:36 pm on
December 17, 2014. After the announcement, the plaintiff stated, "I canbring a suit for this within six months." "I, I will bring a suit[sic]." "Will theimmigration bureau take responsibility for this?" "Please have this written
form and notarised." To this, the immigration control of cer responded, "Youcan bring a suit for this even after returning to your country." Also, when theplaintiff was taken to interrogation room 1 of the survey division 1 at 3:46
pm on the same day, he said, "If you make me get on a plane, I will bite myself. I will evacuate my bowels." (X3.11, X5, X6, Y31).
Although the immigration control of cers of Nagoya Regional Immigration Bureau told the plaintiff to pack up his belongings around 4:51 pm on
the same day, the plaintiff did not comply, as such the of cers packed up his
belongings instead.
Around 5:58 pm of the same day, the immigration control of cers of
Nagoya Regional Immigration Bureau made the plaintiff ride a minibus andescorted him to Haneda Airport. At that time, the plaintiff walked by himself
and did not resist.
At 5:43 pm on December 18, the plaintiff was deported to Sri Lanka by acharter plane (hereinafter referred to as “this deportation”). Accordingly, the

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CDRQ vol.11

plaintiff lost the bene t of the suit for revocation of this disquali cation of theapplication of RSD.
(3)

Provisions of the Immigration Act

A. Article 52-3
In enforcing a deportation order, an immigration control of cer (including a
police of cial or coast guard of cer who administers a written deportation orderunder the provisions of the preceding paragraph; hereinafter the same shall apply in this Article) shall show the deportation order or its copy to the alien subject to deportation and have him/her deported promptly to the destination
provided for in the following Article. However, the immigration control of cer
shall deliver him/her to the carrier if the alien is to be sent back by the carrier
under the provisions of Article 59.

B. Article 61-2, paragraph (1)The Minister of Justice may, if an alien in Japan applies following the procedures provided for by a Ministry of Justice ordinance, recognizes such person
as a refugee (hereinafter referred to as "RSD") based on the data submitted.

C. Article 61-2-2 paragraph (1)The Minister of Justice shall, when he/she recognizes an alien as a refugee
pursuant to the provisions of paragraph (1) of the preceding Article and the alien
who has led the application set forth in the same paragraph falls under the category of an alien without a status of residence (aliens other than those who arestaying in Japan under a status of residence listed in the left-hand column of Appendix Table I and Appendix Table II, those who have been granted permission
for landing for temporary refuge and have not stayed in Japan beyond the period
stated in the permit, and special permanent residents; the same shall apply hereinafter), permit the alien to acquire the status of residence of "Long-Term Resident", unless the alien falls under any of the following items:

D. Article 61-2-4 paragraph (1)The Minister of Justice shall, when an alien without a status of residence les
the application outlined in Article 61-2, paragraph (1), permit the alien to provisionally stay in Japan unless he/she falls under any of the following.

E. Article 61-2-4 paragraph (5)When an alien with the permission set forth in paragraph (1) subsequently
comes to fall under any of the following items, the period of provisional stay
granted to the alien (including the period of temporary stay extended pursuant
to the provisions of the preceding paragraph; the same shall apply hereinafter)shall be deemed to have terminated at the time he/she comes to fall under theitem.
(i) The objection outlined in Article 61-2-9, paragraph (1) has not been led
against denial of recognition of refugee status, and the period described in para-

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CDRQ vol.11

graph (2) of the same Article has passed.
(ii) The objection outlined in Article 61-2-9, paragraph (1) has been led
against denial of recognition of refugee status, but the complaint has been withdrawn, or a decision has been made to deny or dismiss the objection.

F.

Article 61-2-6 paragraph 3
When the procedures for deportation provided for in Chapter V are carriedout, removal pursuant to the provisions of Article 52, paragraph (3) (including
delivery in accordance with the clause of the same item and deportation in accordance with the provisions of Article 59) shall be suspended with respect toan alien without a status of residence who has led the application set forth in
Article 61-2, paragraph (1) and has not been granted the permission set forth in
Article 61-2-4, paragraph (1) or whose period of provisional stay pertaining to
the consent has passed (except for those who fall under items (i) to (iii) and item(v) of paragraph (5) of the same Article), until the alien falls under any of thecases listed in items (i) to (iii) of paragraph (5) of the same Article.

3.

Points at Issue(1)

Whether the deportation, in this case, is illegal under the State Redress Act(2)

The consolidation compensation

4.

Allegations(1)

Point at Issue (1) (Whether this deportation is illegal under the State Redress Act)

(Allegation by the plaintiff)

A. About the violation of Article 14-1 of International Covenant on Civil andPolitical Rights (hereinafter referred to as “ICCPR”)
Article 14-1 of the ICCPR obligates that everyone shall be entitled to a fairand public hearing by a competent, independent, and impartial tribunal established by law in the determination of his rights and obligations in a suit at law.
Additionally, on the related “General Comments” from United Nations Human
Rights Committee (hereinafter referred to as “HRC”) (hereinafter referred as“General Comments”), incumbent on the Member States shall protect the right
regardless of the national legal traditions nor its domestic law and recognizes
the situation that individuals are systemically, legally and practically barred fromaccessing to authoritative coats as a con ict with Article 14-1. Furthermore, the

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state rati ed not only ICCPR but also Convention Relating to the Status of
Refugees (hereinafter referred as “Refugee Convention”) and Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On
this occasion, the plaintiff was in Japanese territory and fell under the jurisdiction of Japan when he was informed about the decision to refuse his appeal,
therefore it would stand he have the right not to be deported as well as to standtrial which is guaranteed by Article 14-1 of the ICCPR, at least within the reasonable period until he would bring a suit for revocation to said refusal.
The deportation of the plaintiff, the immigrant control of cers, enforced, wasillegal thus infringing the aforementioned rights of the plaintiff.

B. Violation of the Principle of Non-refoulement
As Article 33-1 of Refugee Convention stipulates that “Contracting State shall
NOT expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social group or political opinion", which is known as the Principle of Non-refoulement, an examination by a court is needed as well as decisions by an administrative organ in an
examination of Non-refoulement, following the principle of the rule of law.
However, the administrative procedure did not recognize the plaintiff as a
refugee, and he was deported to Sri Lanka (this deportation) without any guarantee of a reasonable period until he would bring a suit for revocation of this decision of rejection of the objection. For these reasons, the deportation, in thiscase, violates the Principle of Non-refoulement.

C. Violation of Article 13, Article 32, Article 31 of the Japanese Constitution(a) The selection of target persons for the group deportations
It is hugely highly probable to violate the human rights of individual
target persons because they will be accommodated by surprise and deported
to detain all the deported targets. Therefore, as due diligence regulated in
Article 31 of the Constitution, the selection of target persons by the defendant should not be arbitrary, and the defendant has the responsibility to carefully consider whether the deportation can violate the human rights of thetargeted individuals. The intention toward bringing a suit for revocation of a
RSD disquali cation decision is an essential and considerable fact for theselection of target persons. Considering the plaintiff was in the procedure ofraising an objection for the 1st RSD application when this deportation was
enforced, and he submitted a petition to request that interrogation about thecomplaint would be done at Osaka Regional Immigration Bureau to the
Osaka Regional Immigration Bureau and written statements about the objection through his attorney, he could bring a suit for the revocation when the
defendant rejects the complaint, and the defendant could fully get it. Other-

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CDRQ vol.11

wise, the defendant selected the plaintiff as the target person for group deportation, which means violating the responsibility as mentioned above.
In addition, because it was evident that the plaintiff had an intention tobring an action as he claimed: "I will bring a suit" for many times after theannouncement of the rejection of the objection, and this phase objectively
reveals that the right to a trial could be deprived should the group deportation be enforced, the defendant had the responsibility to stop the expulsion
procedure of the plaintiff. However, the defendant deported the plaintiff andviolated the obligation as mentioned above.

(b) The time and measures of the announcement
Even though the plaintiff received the announcement that the objection
was rejected, around 3 pm on December 17, 2014 (the day before this deportation), he had not enough time to challenge the rejection under the detained situation, then deported the next day of receiving such decision. In
addition, although he claimed, as "I want to bring a suit", therefore indicating
his wish to make the petition, the plaintiff was forbidden from meeting his
attorney barring his intention to bring a legal action to seek revocation. The
plaintiff was given a fake explanation that he could bring a legal suit to seek
the cancellation of the disquali cation decision through an attorney evenafter the deportation.
The aforementioned announcement mediums aimed to deprive theplaintiff's time to bring a suit away, and the timing, as well as the medium ofcommunication, were arbitrarily controlled by the administrative agency thatordered the disposition. This infringes the right to a trial (Constitution Article
32, Article 13) and the right to due process (Constitution Article 31).
(The claim from the defendant)

A. Violation of Article 14-1 of the ICCPR
In accordance with customary international law, to begin with, a given state
does not have the duty to accept foreigners but has the right to freely decide
whether it agrees to let foreigners into its territory and what kind of conditions topropose upon reception. Under the Japanese constitution, aliens are not guaranteed the right to enter Japan, the right to stay nor the right to request the extension of staying in Japan. Moreover, there is no provision to proscribe these principles of the customary international law in the ICCPR, and it is accepted to legally take the procedure for deportation to even legal residing foreigners basedon Article 13 of the ICCPR. Considering those facts, it is thought that ICCPR
places the written above customary international law as the apparent premise
and it cannot be said that the bene t exceeded what ICCPR protects and theprotection of human rights regulated by the Constitution.

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Thus, even though the plaintiff lost the right to bring a suit for revocation of adecision of disquali cation as a refugee because of this deportation, there are
no reasons behind the plaintiff's argument because it does not necessarily meanthat it violates the plaintiff’s right to a trial nor it infringes Article 14 of the ICCPR.

B. Violation of the Principle of Non-refoulement
Since administrative organs make a decision based on legal imperatives
when they take administrative dispositions, they seem to follow the principles ofrules of law and the plaintiff's claim that examination by a court is needed does
not make any sense.
Additionally, non-refoulment is the principle that no one should be expelled
nor returned to a country where they would face torture, cruel, inhuman, or
degrading treatment or punishment, and other irreparable harm. Following thisprinciple, it can be de ned as the violation of non-refoulment if there is apremise that Sri Lanka is a place where the plaintiff would come under the fear
toward of life and freedom, but it cannot be de ned as the violation just because the defendant deported plaintiff to Sri Lanka during the stature of limitations of ling an action for revocation of a decision of disquali cation as a
refugee.

C. Violation of Article 32, Article 13, Article 31 of the Japanese Constitution(a) The selection of target persons for the group deportations
Referring to target persons for deportation, even if the person brings an action for revocation of the deportation order, and there is a request for a stay of
execution, the deportation would be exercised as long as there are no issues ofa stay of execution from the court, except the case that the deportation is
stopped based on the Article 61-2-6 paragraph 3 of Immigration Act because theperson is in the procedure of RSD. Furthermore, immigration control of cers are
regulated to immediately send the target persons for deportation back to theirnative country by the Immigration Act, and they do not have a legal obligation
to withhold deporting during the statute of limitations of ling an action for revocation if the target person for deportation shows its willingness to bring a suit
when the of cer con rm the person about the intention for bringing a lawsuit.
Additionally, referring to the way of treating target persons for deportation by
immigration bureau, the bureau evades deporting the person with considerations about his/her rights to a trial when they bring an action for revocation of adeportation order, including the case that there is an issue of a stay of execution
from court. However, even though the bureau avoids deporting because the person brings a suit for revocation of the deportation order, it does not necessarilymean that the bureau has a legal obligation to stop deporting nor to evade deporting just because the person shows an intention to bring a suit though he/she

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does not bring an action.
In the administrative procedural system, having a representative for objecting
to a decision is not related to bringing a suit for revocation of adverse decisions
after receiving a decision through the procedure. Thus, the plaintiff should not
be regarded as he had a high possibility to bring a suit for revocation of this decision of disquali cation as a refugee after receiving the announcement of thisdecision of rejection of the objection based on the facts that Esq. Yaguchi was
appointed as a representative to oppose the decision in this procedure of ling acomplaint, that he submitted the petition and related documents and he attended the date for the plaintiff’s oral statement of opinions and interrogation. Additionally, even though the plaintiff was in the situation that he could bring any
actions against the state, not limited to the suit for revocation of this decision ofdisquali cation as a refugee and the rejection of objection, he just claimed as "I
will bring a suit" without any details after receiving the announcement that thedefendant dismissed the complainant. Thus, it should not be regarded as heclearly showed his intention to bring a suit for revocation of this decision of disquali cation as a refugee and this decision of rejection of the objection withsuch an unspeci c intention indicator.

(b) The time and measures of the announcement
To begin with, it is not illegal that the announcement of this decision of rejection of objection was informed to the plaintiff a month later from the date ofcreation of the written decision because the Immigration Act does not regulate
the time of the announcement of a decision of rejection of objection regarding adisquali cation as a refugee to a representative. Additionally, in practice, it isaccepted that it takes a month from the date of the conclusion of rejection of theobjection to that of the announcement to the representative and there are nofacts that prove the time of the announcement was arbitrarily delayed. Furthermore, in terms of the remark by the immigration control of cers of Nagoya Regional Immigration Bureau, as "you can bring a suit after going back to yourcountry", it is evident that the remark was not for telling a falsehood on the purpose of preventing the plaintiff from bringing a suit for the revocation because
the statement was not only for this decision of rejection of the objection anddisquali cation as a refugee but for any kinds of lawsuits against the government.
(2) Point at Issue (2) (The amount of damage)(Allegation by the plaintiff)

A. Regarding the compensation
Although it is extremely highly possible for the plaintiff, who is an applicant
for refugee recognition, to stand trial on the decision about his eligibility as a

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refugee made by the Minister of Justice, his right to a trial was arbitrary violated
by immigration control of cers. As a result, he suffered from losing the opportunity to be tried on the decision of Minister of Justice, which is dif cult to restore, and he received signi cant mental stress. To redress the psychologicaldamages he endured, he needs a payment of more than 3,000,000 yen

B. About the attorney fees
To bring this suit, the plaintiff needed to entrust the tasks related to this suitto many attorneys. Thus, the defendant should pay the plaintiff at least 10% of
the amount of the compensation (300,000 yen) as the attorney fee.
(Allegation by the defendant)
Contest every point.

THE COURT DECISION
1.

The point at issue (1) (Whether this deportation is illegal under the State Redress Act)
(1) Introduction
The unlawful action regulated in Article 1-1 of the State Redress Act is that agovernment or public of cers, who are regarded as the exercises of public authority, traduce the legal obligations that they are in charge with for individual citizens,and it shall be de ned as traduction against written-above legal obligations if there
is a fact that public of cers take an act of transgressing without adequately performing their duties that they should have done. (ref. The judgment of the Supreme
Court of Japan, 1st Petty Bench, March 11, 1993, 47-4 Saikosaibansho Minji Hanreishu ("Minshu") p.2863). With the interpretations outlined above, the court willconsider whether there was an illegal action by the immigration control of cers.
(2) Violation of Article 14-1 of the ICCPR
The plaintiff claims that he had the right to be not deported until he would bringa suit for revocation of this decision of disquali cation as a refugee when he got theannouncement about this decision of rejection of objection because he had theright to a trial protected in the Article 14-1 of the ICCPR and its General Comments.
However, following the customary international law, the State does not have theobligation to accept foreigners, and the ICCPR stipulates that foreigners could be
expelled from the applicable territory through a legal decision. Because of this, it
shall be interpreted that ICCPR places the written-above customary internationallaw as the apparent premise. Besides, the HRC General Comments does not have a

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legally binding force against its Member States. Thus, it is not admitted that theplaintiff, who was in the position to be deported, was ensured to have the speci cright not to be deported until the statute of limitations of ling an action for revocation of this decision disquali cation as a refugee because the right to a trial stipulated in Article 14-1 of the ICCPR.
For these reasons, the court dismisses the claim from the plaintiff on this point.
(3) Violation of the Principle of Non-refoulement
The plaintiff claims that this deportation is illegal because it was taken without
examinations by a court even though the court needs to conduct investigations in
consideration of non-refoulment following the principles of rule of law.
Otherwise, the contents of non-refoulment shall only be admitted under the
principle to prohibit states from expelling or returning a refugee in any mannerwhatsoever to the frontiers of territories where his life or freedom would bethreatened, not as the reason for demanding the examinations by a court. Additionally, the rules of law do not directly protect the speci c rights of the plaintiff, andhis claim may have a leap in logic.
Thus, following the principles of non-refoulment and the rules of law, it shallnot be said that those principles protect the right to bring an action for revocationof the RSD application disquali cation and the right to a trial. Also, the plaintiff,
who was deported back to Sri Lank under the deportation order, himself did notchallenge the deportation order even though he had the opportunity to do so. Besides, no facts indicate that his life or freedom was threatened after he was sent
back to Sri Lank as a result of executing the deportation order. Therefore, it is dif cult to prove that the decision to disqualify the plaintiff’s RSD application and executing the deportation order were illegal, and the claim by the plaintiff shall not
be adopted.
(4) Violation of Article 32, Article 13, Article 31 of the Japanese Constitution

A. The selection of target persons for the group deportations
The plaintiff claims that the state has the responsibility to avoid selecting thepersons who are likely to bring a suit for revocation of the RSD application disquali cation decision and those who show its willingness to bring an action astarget persons for group deportations, and if he/she shows a willingness to bringa legal action in the course of the deportation process, the state has a duty tostop the deportation procedure even if the person was already selected to bedeported.
However, in the case where a foreigner without the status of residence le an
objection against the RSD disquali cation decision, the Immigration Act stipulates that the State shall stop a deportation procedure of a person who received
a deportation order until the state rejects the objection or the decision of rejection would be made (Article 61-2-6, paragraph 3), and there are no regulations

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to stop deportation besides this paragraph. Moreover, in terms of target persons
for deportation, the deportation would not be stopped as long as a court does
not decide stay of execution (Article 25, paragraph 1 of the Administrative Case
Litigation Act). Thus, following the regulations of the Immigration Act, it isneeded to immediately deport the persons to the destination without the casesthat regulated in Article 61-2-6, paragraph 3 or that the target brings a suit forrevocation of the deportation order or a lawsuit for con rmation of invalid, anda court makes a decision of stay of execution (Article 52, paragraph 3). It cannot
be said that there would be a duty to stop deportation besides in the cases mentioned above.
As the Immigration Act limits the applicants only to aliens who are in Japan(Article 61-2, paragraph 1), it should be understood that the alien would lose
his/her bene t from bringing a suit for revocation of a decision of disquali cation as a refugee if the person leaves Japan because of the deportation order (ref.
The judgment of the Supreme Court of Japan, 2nd Petty Bench, July 12, 1996,
43-9 Syoumugeppou p.2339). Following the above-mentioned regulations in the
Immigration Act, in the case that an alien who is in Japan applies for recognitionof refugee status after receiving the deportation order, he /she would lose theright to bring a suit for revocation of decision disquali cation as a refugee after
the objection against the decision disquali cation would be dismissed or thedecision of rejection would be made, regardless whether if there is a willingness
for bringing an action or not because there is a possibility to be deported fromJapan due to the exercise of the deportation order. Thus, it is impossible to nd
the evidence to limit the exercise of deportation order just because the person
would lose his/her right to a trial against a decision disquali cation as a refugee.
Furthermore, the aliens need to bring a suit for revocation of the deportation
order or a lawsuit for con rmation of invalid and get the conclusion of the decision of stay of execution to enable bringing a revocation for decision disqualication as a refugee.
Moreover, according to the evidence (X7), in the case that the alien brings asuit for revocation for decision disquali cation as a refugee, it can be admitted
that the state tries to reconsider the deportation of him/her until the lawsuit
ends. However, this is just practically operated at the Minister of Justice's discretion, and it does not necessarily mean that the state has the legal obligation totake this operation.
Thus, unlike the plaintiff’s claim, it is not admitted that the defendant has theduty and it is not regarded as the violation of the duty of the public of cers generally have, that the state selected the plaintiff as the target person and did notstop the deportation. Additionally, the plaintiff claims that even if he hadbrought a suit for revocation of the deportation order or a lawsuit for a con rmation of invalid to stop the exercise of this deportation order, the request would
have been highly possible to be dismissed because "there are no urgent needs,"
and he would have had no legal procedure to stop the exercise of this order.
Otherwise, according to the evidence (Y37), there is a precedence that the deportation order was executed on the part of deportation even though the de-

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portation was stopped because the alien was in the procedure of requesting an
investigation against the decision disquali cation as a refugee. Thus, theplaintiff, who has already conducted the oral statements of opinion and interrogations related to his lings of the objection, could not take the measure tostop the exercise of this order.

B. The time and measures of the announcement(a)

The time of the announcement
In terms of the point that the defendant announced this decision of
rejection of the objection on December 17, 2014, over a month later fromthe date when the defendant made the decision, the plaintiff claims that theadministrative agency ordering the disposition arbitrary controlled the timeand speci c measures to take the time to bring a suit from the plaintiff andrecognizes this action is unlawful constitutionally and legally. However, thereason why the plaintiff did not bring a suit for revocation of the decision of
rejection of objection is not that the defendant delayed the time of announcement of the decision, but is the defendant selected the plaintiff as thetarget person for this deportation. For this, the plaintiff's claim is regarded as
the same as claiming the selection of the plaintiff for this deportation is unlawful constitutionally and illegally. On this point, as mentioned in section
A, the defendant would not be admitted as infringing of the legal obligations
that public of cers need to follow, and the claim from the plaintiff will not
be adopted.

(b) The measure of the announcement
According to the fact premise (2), C-b, the plaintiff stated as "I can bring asuit for this within six months" and "I, I will bring a suit" when he received
the announcement of this decision of rejection of the objection, holding theInstruction 2. Also, referring to the pieces of evidence (X5 and X6), it is seenthat the immigration control of cers stated to the plaintiff before the statements he made "You were informed that you had not been recognized as a
refugee, correct?". In that case, knowing the contents of the Instruction 2,
which informs that the stature of limitations of ling an action for revocationis set as within six months, from the day when you were informed about thedisquali cation of application of recognition of refugee status (this decisionof the disquali cation as a refugee), the claim from the plaintiff shall be regarded as the meaning that he wanted to bring a suit for revocation of thedecision of disquali cation as a refugee and the rejection of objection. Indeed, the lawsuit that he mentioned clearly means the lawsuit for revocationof the decision of disquali cation as a refugee or the rejection of objection(Also, because Instruction 2 is for informing the stature of limitations of lingan action for revocation, it is not dif cult to expect that the instruction reminded the plaintiff about the lawsuit for revocation of the decision of disquali cation as a refugee. Additionally, the statute of limitations of ling an

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action for revocation of the decision of disquali cation as a refugee in Instruction 1 and the statutes of limitations for bringing a suit is the same). Given these circumstances, it can be said that it was suf cient for the immigration control of cers to realize the plaintiff’s intentions through his statements(The defendant claims that the immigration control of cers meant any lawsuits against the state by their statements, but the claim shall be dismissed
because it is unnatural in comparison with the background as above mentioned).
Furthermore, even though the plaintiff would lose the right to bring anaction for the revocation of the decision of disquali cation as a refugee if the
defendant deports him to Sri Lanka, the immigration control of cers stated,"You can bring a suit for this of course, but you do not have to be here aslong as you have an attorney because he can do that. You do not have to be
here." They also stated, "Do it after going back to your country." Considering
the statements, the court admits that they gave false instructions to the effectthat the plaintiff could bring an action for the revocation.
As mentioned in A of this section, because it is dif cult to de ne thisdeportation as illegal, receiving a false instruction does not seem to violate
the plaintiff’s right to a trial because he was deported to Sri Lanka no matter
whether the instruction was correct or not. However, considering Article 46of the Administrative Case Litigation Act, which regulates that the state shallinstruct the point at issues related to bringing an action for revocation, thepurpose is to correctly inform citizens about the opportunity for a remedy for
violation of the right. Like the premise, it is evident that the state shall articulate instructions, and the citizen has the right to receive the correct instruction from the state. However, the fact that the immigration control of cers
gave the false instruction as mentioned above should be understood as theyfailed to perform their legal obligations as public of cers, as such the court
recognizes it as illegal pursuant of the State Redress Act.
Moreover, in Instruction 1 and 2, there are no explanations that it is
impossible to bring a suit for revocation of the decision of disquali cation asa refugee nor the rejection of objection if the person would be deported dueto the deportation order. Thus, it is extremely dif cult for aliens who receive
the instructions to understand that they cannot bring an action for the revocation of the decision of disquali cation as a refugee nor the rejection of objection if they would be deported, even though they were told that they
could bring a suit for the revocation within six months. Thus, although it
cannot be said that the information in Instruction 1 and 2 are illegal, it isdoubtful whether they provide the appropriate instruction.

A. Point at issue (2) (The amount of consolation compensation)
As mentioned in section 1, even though it is dif cult to admit that the defendant violated the plaintiff's right to a trial, it is recognized that the defendant violated the plaintiff’s
right to receive the correct instruction from the state. Thus, the decent amount of consolation compensation for the damage shall be 80,000 yen.

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Indeed, considering the contents of the violated right of the plaintiff and the amount ofconsolation compensation that should be withheld, the decent attorney fee shall be 8,000
yen.

CONCLUSION
For those mentioned above, the defendant shall pay the plaintiff a sum of 88,000 yen
together with an interest rate of 5% per annum counting from December 18, 2014, the datewhen the defendant gave the plaintiff the false instruction until full payment of such sum shallhave been made as the Civil Code stipulates, and the rest of the consolation compensationthat the plaintiff claims shall be dismissed because there are no substantive reasons. Additionally, referring to the cost of the lawsuit, it is reasonable that the plaintiff should charge allcosts in comparison with the amount of consolidation compensation as mentioned above.
Also, because there are no substantive reasons, the declaration of provisional execution shallnot be added.
Accordingly, this court decides as in the Formal Judgments.

Civil Section 7, Nagoya Distinct Court
The Chief Justice: Ikukatu Maeda
Justice: Yukihira Terada
Syohei Mochida55

CDRQ vol.11― Case Summary by Atty. Satoshi Ogawa
re. Heisei 28 (2016) (Wa) No. 34831
Translated by Haruka Jifuku2&Yukari Ando3

On July 30, 2019, the Nagoya District Court decided concerning a casewherein national compensation was made to a refugee applicant who wasdeported. Although the court accepted partially the plaintiff’s claims, we
decided to appeal to the court because the judgment was problematic.

BACKGROUND
1. The state noti ed the plaintiff of the decision to refuse his appeal while the plaintiff
was detained. The aforementioned plaintiff had shown an intention to bring a suit to
revoke the decision to disqualify the refugee application. Until the deportation of him to
Sri Lanka was enforced, contact with his attorney was disallowed. Even though the state
took the plaintiff's right to bring a suit towards the revocation, the deportation would not
be assumed as illegal under the State Redress Act. (the Duty Standard Theory).
2. Although the plaintiff would lose his bene t to bring a suit for the revocation after thedeportation, the immigration control of cers provided false instructions that he could
bring an action even after repatriating to Sri Lanka. Considering the statement, it shall be
admitted as a violation of the plaintiff's " right to be given accurate instructions" and illegal under the Statement Redress Act. (the Duty Standard Theory).

FACT
1.

The state detained the plaintiff without any explanations on the day when he applied

1. 令和元年7月30日判決言渡、平成28年(ワ)第３４８３号損害賠償請求事件
2. Currently interning at the NGO Foreigners’s Assistance KOBE (GQ net) from September 2019. Graduated from the International Relations Department, Kobe City University of Foreign Studies in March 2021. The former student intern at the Asia-Paci c Human Rights Information Center (HURIGHTS OSAKA), November 2019 - 2020 March.
3. Guest Associate Professor at Osaka School of International Public Policy, Osaka University.

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CDRQ vol.11

for an Extension of Provisional Release.
2. The next day, the plaintiff was “noti ed” of the decision to refuse his appeal and received “instructions” that he could bring a suit for the revocation within six months,
during his detention.
3. After providing the “announcement” to the plaintiff, the state commenced procedures
to deport him. The immigration control of cers continually stated to the plaintiff,“...bring the suit for the revocation after going back to the country”.
4. The state did not allow the plaintiff to contact his attorneys and people outside, and it
deported him on the next day against his will.
5. The plaintiff lost the right to bring a suit for the revocation because he was removed
from Japan proper, thus rendering him ineligible per the legal requirements to seek
“refugee status” .

POINT AT ISSUE
1. Whether the state violated Article 32 of the Japanese Constitution "the right to a trial,"
Article 14-1 of International Covenant on Civil and Political Rights (ICCPR) and theprinciple of Non-refoulement by deporting the plaintiff and depriving him the opportunity to bring an action for the revocation from him.
2. Whether the state violated Article 32, Article 13 and Article 31 of the Japanese Constitution by selecting a refugee applicant for mass deportation, despite him showing an
intention for ling a lawsuit, and arbitrarily controlling the time to inform the decisionon the purpose of depriving his time for ling a lawsuit.

DECISION BY THE COURT
1. The Article 14-1 of ICCPR does not guarantee the speci c right not to be deported
during a reasonable period for ling a lawsuit.
2.

The principle of Non-refoulement does not demand an investigation by a court.

3. As long as a court does not make “a decision to stay of the execution," the defendantdoes not have a legal obligation to withhold deporting.

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4. The Minister of Justice tries to avoid deporting the person who takes the procedure ofbringing a suit at their discretion. However, it does not necessarily mean that the state
has a legal obligation to consider this operation.
5. Even though the state gave false instructions to the plaintiff, he would be deported
regardless of the contents of the instruction. Thus, this shall not be deemed as directly
violating "the right to a trial."
6. Because the plaintiff has the right to be given accurate instruction, giving the false
instruction to the plaintiff shall be assumed as illegal under the Duty Standard Theory.

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CESSATION OF REFUGEE STATUS by Art. 1(C)of the 1951 Refugee Convention―Heisei 30 (2016) (Gyo-Ko) No. 2281
Tokyo High Court, 5th December 2018 (SriLanka)
Translated by Erika Tanaka2, Ryoko Koike3, Koei
Matsushita4

JUDGMENT

Appellant the State
Appellee X

MAIN TEXT

1. The Appeal is dismissed.
2. The costs of an appeal to the court of second instance shall be borne by the Appellant.

1. 平成30年12月5日判決言渡、平成30年(行コ)第２２８号難民不認定処分無効確認等請求控訴事件（原審・東京地方裁判所平成27年（行ウ）第524号）
2. Student volunteer (The Graduate School of Law and Politics, The University of Tokyo)
3. Student volunteer (The Graduate School of Law and Politics, The University of Tokyo)
4. Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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FACTS AND REASONSPART I. PURPOSE OF THE APPEAL
1 The original judgment shall be revoked.
2 Among the claims of the Appellee, the mandamus action seeking an order to recognize
the Appellee as the refugee shall be dismissed, and all other claims of the Appellee shall berejected.

PART II. OUTLINE OF THE CASE
(THE ABBREVIATIONS BELOW ARE SAME AS THE JUDGEMENT OF FIRST INSTANCE)
1 In this case, the Appellee, who is a man of the nationality of the Democratic Socialist
Republic of Sri Lanka (hereinafter “Sri Lanka”), submitted an application for recognition of
refugee status (hereinafter referred to as the “Application of Recognition of Refugee Status”)
under the Article 61-2(1) of the Immigration Control and Refugee Recognition Act (hereinafter
the “ICRRA”); however, the Minister of Justice disposed a non-recognition decision of refugee
status to him (hereinafter referred to as the “Previous Non-Recognition Decision”) on 9,
November 2006; he led a sue seeking a revocation of the decision and others; then, Osaka
district court judged that the Previous Non-Recognition Decision should be revoked (hereinafter referred to as the “Previous Judgement”) and the Previous Judgement became nal andbinding.
The Previous Judgement was based on the fact that he was recognized as a person who
has a well-founded fear of being persecuted (Article 1A (2) of the Convention of Refugee
Status (the Refugee Convention)) on the grounds
that he was a member of a speci c social group of the Tamil andthat he was a member of a speci c social group; in other words, he is a supporter of the
Tamil Tigers of the Liberation of Tamil Eelam (LTTE).
However, on December 5, 2011, after the judgment on the previous case became nal
and binding, the Minister of Justice again rendered the Appellee a non-recognition decisionof refugee status (hereinafter referred to as “re-Non-Recognition Decision”) on the grounds
that the situation in his home country had improved since the Previous Non-Recognition Decision, and subsequently also rendered a decision to dismiss the objection pertaining to there-Non-Recognition Decision (hereinafter referred to as the “Decision to Dismiss the Objection”.)
In this case, the Appellee claims that,

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1) in the Previous Judgment, because the eligibility of refugee status at the time of the Previous Non-Recognition Decision was accepted, in order to render a re-non-recognition decision, it should be construed that it is necessary that [the foreign national] falls under Article
1 C (5) (the termination clause), “he can no longer, because the circumstances in connexion
with which he has been recognized as a refugee have ceased to exist, continue to refuse toavail himself of the protection of the country of his nationality,” and2) it is not found that the Appellee falls under above, thus
3) the Previous re-Non Recognition Decision is illegal.
Therefore, the Appellee requests against the Appellant that the Previous re-Non-Recognition Decision should be revoked, the Decision to Dismiss the Objection should be con rmed
as invalid and mandamus of recognition of refugee status.
(Omitted)

PART III. DECISION OF THIS COURT
1 In light of the fact that the Previous Judgment (of the revocation of the Previous NonRecognition Decision) has become nal and binding on the grounds that the Appellee falls
under the category of refugees, this court also decides thatin order for the Minister of Justice to render a re-non recognition decision to the Appellee,
it is necessary that [the Appellee] falls under the termination clause;at the time of the re-Non Recognition Decision or present, it is not found that [the Appellee] falls under the termination clause and he falls under the refugee;
therefore, among the claims of the Appellee, the part for the revocation of the re-Non Recognition Decision and the part for mandamus seeking an order for recognition of refugee
status are reasonable, but the action regarding a claim for con rmation of invalidity of theDecision to Dismiss the Objection are dismissed because it lacks the bene t of the claim.
(Omitted)
2. The Parties’ Argument in this instance(1) Issue(1) (legality of the re-Non-Recognition Decision)
A. With regard to foreign nationals for whose judgment of revocation of the non-recognition decision of refugee status has become nal and binding on the grounds that they fallunder the category of refugees, whether or not they need to fall under the termination clause
when they are subject to another non-recognition decision of refugee status(A) The Appellant argues that the termination clause of the Refugee Convention applies to"persons recognized as refugee" in the legal system of Japan , and that in order to be recognized as a "refugee" under the Refugee Convention in our country, it is necessary to go
through the procedures prescribed by the Minister of Justice, and that the binding force of thejudgment of revocation is not found to have had the same effect as the recognition of refugee

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status under the procedures prescribed by the Minister of Justice.
However, the term "refugee" in the Immigration Control Act of Japan means a refugee
who is subject to the Refugee Convention pursuant to the provisions of Article 1 of the
Refugee Convention or the provisions of Article 1 of the Refugee Protocol (Article 2, Item 3-2of the Immigration Control Act); and the provisions of Article 1A (2) of the Refugee Convention and Article 1 of the Refugee Protocol stipulate that the Refugee Convention shall be applied if the person satis es the substantive requirements prescribed in Article 1A (2) of the
Refugee Convention without the refugee recognition procedures in the contracting countries.
Therefore, the Appellant's assertion that the person needs to undergo the refugee recognition
based on the prescribed procedures by the Minister of Justice in order to be a refugee under
the Refugee Convention in our country is inconsistent with the explicit provisions of the Immigration Control Act. Thus, under the legal system of Japan, in the case of a foreign national
whose judgement of revocation of the non-recognition decision of refugee status has become
nal and binding on the grounds that they fall under the category of refugees,
the foreign national has been of cially recognized as a refugee (without a recognition decision of refugee status by the Minister of Justice) that is eligible for the Refugee Convention
at the time of the said non-recognition decision;and the Minister of Justice would also be restricted by above;
therefore, when the Minister of Justice intends to decide a non-recognition decision of
refugee status at the second time because of a change in circumstances after the said nonrecognition decision, it is necessary to decide whether or not the application of the Refugee
Convention will be terminated pursuant to the provision of termination clause. In addition,
the fact (that refugee recognition by the Minister of Justice is not a requirement for the application of the termination clause) is supported by
1) the termination clause is provided in Article 1 of the Refugee Convention together withthe positive requirements (Article 1A of the Refugee Convention) and the negative requirements (Articles D through F of the Refugee Convention) for refugees who are clearly not required to be recognized as refugees in the Member States
2) The provisions of "This convention shall cease to apply to any person falling under theterms of section A if;" in main paragraph and "because the circumstances in connexion withwhich he has been recognized as a refugee have ceased to exist" in (5) of the Pillar of thetermination clause stipulate that the termination clause applies to a person who falls under
the requirements prescribed in Article 1A (2) of the Refugee Convention or a person who has
been recognized as a refugee at some point in the past, but don’t stipulate the termination
clause applies to a person who has been recognized as a refugee by a Member State.
It is considered that
it is also understood in other Member States that a recognition of refugee status by aMember State shall not be required in order to be subject of the termination clause of the
Refugee Convention. (Exhibit A 33, pages 227, “The Law of Refugee Status” by James C.
Hathaway in 2008).
(B) In response to above, the Appellant points out that
1) the fact that the termination clause does not explicitly require the refugee status of thehost country is only a natural consequence of the fact that the termination clause establishes
the substantive requirements for refugees,

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2) in Japan, [a person] is of cially recognized and con rmed as a refugee under the
Refugee Convention only after the refugee recognition procedure (Article 61 Section 2 of the
Immigration Control Act) is processed by the Minister of Justice and protected as refugee, andArticle 61 (2) -7 of the Immigration Control Act, which embodies the termination clause,
provides that only persons who have been recognized as refugees by the Minister of Justice
are subject to the termination clause on the premise that it applies to persons recognized as
refugees,3) While the recognition of refugee status by the Minister of Justice itself grants a foreign
national a legal status that allows him/her to receive various protective measures, a judgement to revoke a non-recognition decision of refugee status only retroactively lapses the nonrecognition decision of refugee status, and its binding force does not result in the effect thatan application for recognition of refugee status should be granted,4) according to the logic of the judgment of the original instance court, in the procedureof recognition of refugee status, it is inevitable to decide whether or not the applicants forrecognition of refugee status are applicable for refugee status at the any time of past; and withthe eligibility in the past, to decide whether or not the termination clause would be applied
to the applicants. In other words, this is same as applying the termination clause to the procedure of recognition of refugee status and ignoring the provisions of the Immigration Control
Act.
However, as for 1), even if the State party to the Refugee Convention entrusts the determination of the refugee recognition procedures to the legislative discretion of each State party,
if the purpose of the Refugee Convention is to limit the application of the termination clauseto persons who have been recognized as refugees in the State party, it is possible to stipulate
to this effect in the termination clause, and as the termination clause does not require therecognition of refugee status by the country of stay; therefore, there is no reason to construe itin a limited way.
In addition, as for 2), In Japan, with regard to the fact that a refugee status under the
Refugee Convention can be con rmed with a prerogative only after the refugee status has
been recognized by the Minister of Justice, the judgment of revocation of the non-recognition
decision of refugee status on the grounds that the foreign national falls under the Refugee
Convention does not change in that the foreign national is of cially recognized as a refugee
status at the time of the decision; and the Minister of Justice would also be restricted by thedetermination of the judgement of revocation of non-recognition decision; it could be pointed out that [the foreign national] is prerogatively con rmed as a refugee under the Refugee
Convention; it could not be admitted that [the foreign national] would be granted protections
as a refugee only after being recognized as a refugee by the Minister of Justice because [theclaim] is inconsistent to an opinion of the prosecutor of the Civil Affairs Bureau of the Ministry of Justice at the time of accession to the Refugee Convention (Exhibit A6 and A7) and theAppellant's own claims on past refugee cases (Exhibit A 35, pages from 44 through 49). In
addition, since Article 61-2-7 of the Immigration Control Act (revocation of recognition of
refugee status) provides for the revocation of refugee status granted by the Minister of Justicein the past, it is only a natural consequence that the provision is limited to those who havebeen granted refugee status by the Minister of Justice; as discussed in (A) above, the applica-

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tion of the termination clause is also an issue in recognition procedure of refugee status, andthe fact that the termination clause is applied in revocation procedures of refugee status is nota reason for the application of the termination clause to be limited under Article 61-2-7 of the
Immigration Control Act.
Furthermore, regarding 3), as mentioned above, a judgment of revocation of a nonrecognition decision of refugee status on the grounds of eligibility of refugee status is still recognition and determination by public authority that the foreign national is a refugee under
the Refugee Convention at the time of the decision, and subsequent procedures should benaturally carried out in accordance with the decision of judgment of revocation; if the circumstances change thereafter, the Minister of Justice may, on the premise that a judicial
judgment on recognition of refugee status has been made by a judiciary, decide whether or
not the termination clause is applicable and then reissue a non-recognition decision of
refugee status. This does not restrict the administrative agency's right to make a primary decision.
Also, as for 4), in this case, in the previous judgment of revocation of the non-recognition
decision of refugee status, the judiciary made an of cial decision that [the foreign national]
falls under the category of refugee status, and the Minister of Justice is bound by the judgment; therefore, the court held that the conditions of the termination clause apply to thesecond procedures for recognition of refugee status. On the other hand, in general procedures for recognition of refugee status without such a premise, the applicability of the termination clause is usually not a problem.
A foreign national who has already been con rmed in the past (at the time of the preceding non-recognition decision) as a refugee andfalls under the termination clause and whose application of the Refugee Convention is
terminatedis not considered as a refugee subject to the Refugee Convention; therefore, in recognition
procedures of refugee status, it is natural to assume that the termination clause is applicable
under the Immigration Control Act; thus, it cannot be said that the provisions of the Immigration Control Act are ignored.
(C) Based on the above considerations, it is appropriate to construe that a foreign national
whose judgement of revocation of the non-recognition decision of refugee status has become
nal and binding on the grounds that he or she falls under the refugee status needs to fallunder the termination clause if he or she is to be non-recognition decision of refugee statusagain. There are no other grounds to in uence the above decision after considering what theAppellant asserts.
B. The eligibility of the provision of the termination clause at the time of the re-Non Recognition Decision(A) The Appellant claims thatat the time of the Non-Recognition Decision, the Sri Lankan authorities' enforcement and

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other actions against persons suspected of involvement in the terrorist organization LTTE cannot be immediately evaluated as "persecution," andthat the Appellee is not persons who fall under the risk pro le set forth by the UNHCR in
2012, and based on other circumstances, it cannot be said that the Appellee is likely to bedetained or tortured by the Sri Lankan authorities after his return.
However, it is unreasonable in the rst place that the above claim does not presume theapplication of the termination clause. Nevertheless, even after the end of the civil war in Sri
Lanka, the fact that arbitrary detention, torture, and ill-treatment are implemented by the military, police, and intelligence services, which are not merely crackdowns, has been mentioned by several reports including the views of UNHCR (pages 20 to 33 of the original
judgment); therefore, it cannot be said that such acts of the Sri Lankan government authorities
cannot be regarded as persecution immediately.
In addition, the risk pro le set forth by the UNHCR in 2012 merely requires a particularly
careful examination of the potential risks faced by such individuals, and clearly states that it
is not exhaustive (Exhibit B 16: translations, page 4 and page 25); it cannot be said that therisk pro le is intended to limit the persons who are persecuted.
The Appellant argues
that the second and third categories of risk pro les do not list all members of the LTTE or
those who have engaged in cooperative activities, such as those involved in the operation of
the LTTE, but only include former combatants or core executives of the LTTE; andtherefore, that the risk pro le assumes those who are more closely related to the LTTE than
the general (non-core executives) members of the LTTE.
However, this claim is inconsistent with the fact that the fourth category in the risk pro leincludes former LTTE supporters who have only been involved in cooperative activities suchas transferring LTTE personnel and others.
Further, the Appellant criticized [the judgement of rst instance] on the ground that, despite the improvement in the general situation in Sri Lanka between July 5, 2010 (the publication date of the 2010 UNHCR opinion) and December 21, 2012 (the publication date of the2012 UNHCR opinion), the court of the rst instance made an incorrect evaluation that there
was no signi cant change in the meantime.
However, while recognizing the fact that the general situation in Sri Lanka has improved
since the end of the civil war (the judgment of the rst instance, pages 15 to 17 and pages 33
to 34), the rst instance court judged the situation at the time of the re-Non-Recognition Decision on the basis of the circumstances of announcement of the 2012 UNHCR opinion (forinstance, timing of publication of reports (written after the announcement of the 2010 UNHCR opinion) by Denmark, the UK, and the FfT (Exhibit B7, B8 and A11, including the Human Rights Watch report cited in the UK report and others.) and speci c references of thecontents of the reports in the 2012 UNHCR opinion, etc.; thus, it can not be said that the rst
instance court overlooked the change of general situation in Sri Lanka.
After all, the Appellant's argument is that, given an overly limited understanding of the risk
pro le, the Appellee is not at risk of being detained or tortured by the Sri Lankan authorities
after his return. This shall not be adopted.

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In addition, the Appellant claims thateven if the possibility of the need for protection is not ruled out for those who do not fallunder the risk pro le, those who may have the need for protection do not include those who
simply talked to or exchanged information with LTTE members and that
it is unlikely that the Appellees who had little connection with the LTTE would need protection.
However, the Appellant's claim above is also questionable in its premise of understanding
regarding risk pro le and does not distinguish between the actual degree of association with
the LTTE and the degree of recognition from the Sri Lankan authorities or their supporters.
The Appellee was interrogated by the LTTE when he visited Jaffna around September 2004
and were asked for cooperation and provided information on the company he run; he wassubsequently questioned by the police about his visit to Jaffna; after the Appellee left Japan,
members of the "White Bang", which is said to have been supported by the Sri Lankan government authorities, visited the Appellees' home and company several times to persistently
ask about his whereabouts. Based on these facts, there is a speci c possibility that the Appellees was suspected by the Sri Lankan authorities as collaborators with the LTTE; therefore,
the Appellant's argument that the Appellee has merely conversed with or exchanged information with LTTE members shall not be adopted.
(B) The Appellant asserts that even if the termination clause is applicable, the Appellee
falls under the termination clause (5)because the evaluation basis facts on which the Appellee was evaluated as a refugee atthe time of the Non-Recognition Decision do not raise the risk of persecution against the Appellee as a result of the dramatic improvement in the general situation in Sri Lanka; in otherwords, fundamental changes have been made to eliminate the conditions that had caused thefear of persecution.
However, according to the risk pro le of the 2012 UNHCR opinion published approximately 1 year after the time of the re-Non-Recognition Decision, persons suspected of having a
relationship with the LTTE may be persecuted; as has already been discussed, it cannot bedenied that there is an objective circumstance that the Appellee may be persecuted even at
the time of the re-Non-Recognition Decision regardless of the improvement in the generalsituation in Sri Lanka after the end of the civil war. Therefore, the Appellant's claim that termination clause (5) applies [to the Appellee] shall not be adopted.
(C) As mentioned above, arbitrary detention, torture and ill-treatment by Sri Lankan
authorities have been reported even after the end of the civil war in Sri Lanka; the Appellee,
who has speci c possibility of being suspected by the Sri Lankan government authorities tobe a collaborator of the LTTE, cannot be deemed to fall under the termination clause at thetime of the re-Non-Recognition Decision, and still falls under the refugee category. Therefore, the re-Non-Recognition Decision in which the Appellee was deemed not to be a refugee
is illegal, and the part of the Appellee's requests for the revocation of the re-Non-Recognition
Decision is reasonable.
(2) Issue (2) (The eligibility of ful lment of requirement of merits for the Mandamus action)

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The Appellant asserts, in this instance, that the requirement of merits is not ful lled because
the situation surrounding Tamils, who are suspected to be former members of the LTTE
and related persons, has been irreversibly improved after the re-Non-Recognition Decision;
therefore, it cannot be said at this time that the Appellees who had only a weak relationshipwith the LTTE are at risk of being detained or tortured on the basis of treatment of former LTTE
personnel in Sri Lanka after the re-Non-Recognition Decision, UK Home Of ce Report (Exhibit B59 and B60), opinions of the report by the Australian Department of Foreign Affairs andTrade (Exhibit B53) and others.
The eligibility of the termination clause at this time is a problem for the ful llment of therequirement of merits for the Mandamus action. It is pointed out that, in determining the eligibility of the termination clause,
it is necessary to carefully evaluate the fundamental nature of the change in the foreign
national's home country and con rm in an objective and veri able manner that the situationthat justi es the granting of the status of refugee has ceased to exist andit is necessary to evaluate whether the change has fundamental, stable and persistentnature or not on the basis of information obtained from relevant professional bodies, including UNHCR (refer to Exhibit A4, A8 and Exhibit C3).
In this case, more than 9 years have passed since the end of the con ict between the government forces and the LTTE in May 2009, and more than 6 years have passed since the reNon-Recognition Decision in December 2011; in the meantime, the political situation in Sri
Lanka and the general treatment of former LTTE members have improved, as the Appellant
pointed out; the report of the Department of the UKL home of ce (Exhibit B59 and B60) andthe report of the Department of Foreign Affairs and Trade of Australia (Exhibit B53), both ofwhich are invoked by the Appellant, also report the changes in the circumstances after the reNon-Recognition Decision.
However, according to the 2012 UNHCR opinion published approximately 1 year after
the time of the re-Non-Recognition Decision, there is a risk pro le that persons suspected ofhaving a relationship with the LTTE may be persecuted, and there is no evidence to suggestthat the 2012 UNHCR opinion has been changed. Also, the report "Disgraced Peace: Torturein Sri Lanka since May 2009" published by the FfT in August 2015 (Exhibit A14) studied
forensic evidence-based cases of 148 people who had been tortured in Sri Lanka between
May 2009 and September 2013, with 142 of them having been linked to the LTTE by the Sri
Lankan authorities; the report also reports that the FfT has information on more recent casesof torture, including 2014 and 2015.
In addition, the "Concluding Observations on the 5th Periodic Report of Sri Lanka" issued
by the UN Committee against Torture on January 27, 2017 noted that in addition to the investigations by the UN High Commissioner for Human Rights from 2002 to 2011, in nongovernmental organizations, 48 points were identi ed as locations that were reported as torture sites or were used as transit points to torture sites; and [the report] reveals that they got
information that numerous individuals suspected of having any connection with the LTTE
have been subjected to barbaric torture, often including sexual assault, by the military andpolice in places of detention not generally known (Exhibit A37).
In addition, the report of the Department of Foreign Affairs and Trade of Australia dated

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January 24, 2017 (Exhibit B53), that the Appellant invokes, mentions that
the Sri Lankan authorities are still sensitive throughout the country to the possibility of there-emergence of the LTTE; the Sri Lankan authorities collect information and conduct sophisticated espionage activities, including “stop” and “watch” electronic databases, on former
LTTE members and supporters; the “interdiction” list contains names of individuals who havereceived a current court order, warrant of arrest or order to con scate the Sri Lankan passport;
the “lookout” list contains names of separatists and individuals of interest to the Sri Lankan
security forces because of criminal activity and others; although the persons on the “lookout”
list are not likely to be detained (based on Provisional translation by the Ministry of Justice
Immigration Bureau, the original text is” Those on a watch list are not likely to bedetained,”.), there were media reports that travelers from the United Kingdom (mostly Tamil)
had been detained (page 15 of the original text and page 20 of the translated text).
As described above, in Sri Lanka, there is information on recent cases of torture, including
2015, and is a report that Tamils returned to Sri Lanka was detained upon arrival at the airport; considering the political situation in Sri Lanka and the improvement in the generaltreatment of former LTTE persons, etc. up to the present time (October 15, 2018), it cannot be
said that it has been con rmed by objective and veri able means that the risk of persecution
has fundamentally, stably and persistently disappeared for the Appellee who has speci c possibility of being suspected as LTTE collaborators by the Sri Lankan government authorities,etc.; and the Appellees cannot be deemed to fall under the termination clause even after taking into account all other relevant evidence. Therefore, the Appellee still falls under the category of refugee under the Refugee Convention, and it is clear from the provision of Article61-2 of the Immigration Control Act that the Minister of Justice should recognize him as a
refugee; consequently, the part of the Appellee's requests for the mandamus of recognition of
refugee status is also reasonable.
According to the above, the part of the Appellee's request seeking the revocation of the reNon-Recognition Decision and the obligatory recognition of refugee status is well-grounded,and the action pertaining to the request for the declaration of nullity of the decision of dismissal of objection should be dismissed because it lacks the bene t of the action. The judgment of the second instance to the same effect is appropriate and the appeal of the case isgroundless. Therefore, the judgment of the second instance is rendered as in the main text todismiss the action.
Therefore, among the claims of the Appellee, the part for the revocation of the re-NonRecognition Decision and the part for mandamus seeking an order for recognition of refugee
status are reasonable, but the action regarding a claim for con rmation of invalidity of theDecision to Dismiss the Objection are dismissed because it lacks the bene t of the claim; thejudgement of rst instance is reasonable because it is same as above; the appeal of this caseis groundless and therefore the judgment of the second instance is rendered as in the main
text to dismiss the appeal.
(omitted)(end of document)

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CDRQ vol.11―Administrative contact by the Ministry ofJustice dated 21 January 20191(Noti cation)
Translated by Koei Matsushita2
Noti catio
21th January 201
Dear
Director General of Regional Immigration Bureau (in charge of refugee inquiry)
andDirector General of Branch of Regional Immigration Bureau (in charge of refugeeinquiry)

General Affairs Division, Immigration Bureau, Ministry of Justice
Yoshiko Gonda, Assistant to the Of ce of Refugee Recognition

Evaluation of the eligibility of refugee status to foreign nationals whose judgment of revocation of the non-recognition decision of refugee status has become nal and binding on
the grounds that they fall under the category of refugees (noti cation)
Recently, the *** court led a judgment against the State (hereinafter referred
to as the "Judgment") for the appeal of the revocation of the non-recognition
decision of refugee status (regarding ***), etc., and the Judgment became nal
and binding.
The Judgement has different contents from the interpretations of the past interms of evaluation, for the second time, of the eligibility of refugee status toforeign nationals whose judgment of revocation of the non-recognition decisionof refugee status has become nal and binding on the grounds that they fallunder the category of refugees.
In the interpretations of the past, it was understood that in order to be
regarded as a "refugee" of the Convention on the Status of Refugees in Japan(hereinafter referred to as the "Refugee Convention"), it was necessary to obtain
refugee status through the procedures prescribed by the Minister of Justice
1. 平成31年1月21日付法務省入国管理局総務課難民認定室補佐官事務連絡「難民に該当することを理由に難民不認定処分取消判決が確定している外国人に係る難民該当性の評価について（通知）」2. Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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including foreign nationals whose judgment of revocation of non-recognition of
refugee status has become nal and binding on the grounds that they fall under
the category of refugees. However, it is stated in the Judgement that, under thelegal system of Japan, in the case of a foreign national whose judgement of
revocation of the non-recognition decision of refugee status has become nal
and binding on the grounds that they fall under the category of refugees,
the foreign national has been of cially recognized as a refugee (without arecognition decision of refugee status by the Minister of Justice) that is eligible
for the Refugee Convention at the time of the said non-recognition decision;and the Minister of Justice would also be restricted by above;
therefore, when the Minister of Justice intends to decide a non-recognition
decision of refugee status at the second time because of a change incircumstances after the said non-recognition decision, it is necessary to decide
whether or not the application of the Refugee Convention will be terminatedpursuant to the provision of Article 1 C (Termination Clause) of the Refugee
Convention(See 1 below).
I hereby notify you that it will be implemented as described in 2 below upon
the arrival of this noti cation.
After, please notify the manager of the local branch of ce under yourjurisdiction.

NOTE
1. Outline of the Judgment(1) Outline of the caseIn this case, although the applicant applied for recognition of refugee status in ***, theapplicant was denied recognition of refugee status (hereinafter referred to as the "Previous
Decision of Non-Recognition") by ***, and therefore led a suit to seek revocation of it (hereinafter referred to as the "Previous Suit"); then, the court rendered a judgment to revoke thePrevious Decision of Non-Recognition, and the judgment of the Previous Suit became nal
and binding.
In *** after the judgement of the Previous Suit was nal and binding, the applicant wasagain decided as non-recognition of refugee status for the reason of *** and others; then, theapplicant objected this and requested the revocation of the non-recognition decision of
refugee status (hereinafter referred to as "the re-Non-Recognition Decision") and mandamus
of recognition decision of refugee status (hereinafter referred to as the “Mandamus ”).
(2) Summary of the Judgment on the legality of the re-Non-Recognition Decision
A. Judgment on the necessity of applying the termination clause regarding the re-NonRecognition Decision

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The State claimed that
under the legal system of Japan, the termination clause of the Refugee Convention is applicable to "persons recognized as refugees;"
and it should be construed that in order to be recognized as refugees in Japan
under the Refugee Convention, it is necessary to obtain recognition of refugee
status through the procedures prescribed by the Minister of Justice;
it is not recognized that the eligibility of the termination clause of the Refugee
Convention would have been problematic in this case because it is not deemedthat the binding force of the judgement of revocation has the same effect as therecognition of refugee status based on the prescribed procedures by the Ministerof Justice.
On the other hand, the Judgement stated,“Under the legal system of Japan, in the case of a foreign national whose
judgement of revocation of the non-recognition decision of refugee status has
become nal and binding on the grounds that they fall under the category of
refugees, the foreign national has been of cially recognized (without a recognition decision of refugee status by the Minister of Justice) as a refugee that is eligible for the Refugee Convention at the time of the said non-recognition decision; and the Minister of Justice would also be restricted by above; therefore,
when the Minister of Justice intends to decide a non-recognition decision of
refugee status at the second time because of a change in circumstances after thesaid non-recognition decision, it is necessary to decide whether or not the application of the Refugee Convention will be terminated pursuant to the provisionof termination clause.”
B. Conclusion on the eligibility of the Appellee's refugee status (non- eligibility of thetermination clause) at the time of the re-Non-Recognition Decision
The Judgement stated, “***, regarding the Appellee, it is not possible to recognize that theAppellee fall under the category of termination clause at the time of the re-Non-Recognition
Decision; and thus, he/she fall under the category of refugee.”C. Evaluation of the likelihood of persecution against the Appellee at the time of the reNon-Recognition Decision
The State claimed that, at the time of the re-Non-Recognition Decision, ***. [The Judgement stated,] “***; it is not found that it is immediately impossible to evaluate aspersecution.”
Furthermore, the Judgment stated, “Even at the time of the re-Non-Recognition Decision,
it cannot be denied that there is an objective circumstance in which there is a likelihood ofpersecution.” And the Judgement denied the State’s claim that, even if the termination clause
would apply, the Appellee has fall under the termination clause.

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CDRQ vol.11(3) Summary of the Judgment regarding the evaluation of the eligibility of refugee statusof the Appellee after the re-Non-Recognition Decision
Regarding the eligibility of refugee status of the Appellee after the re-Non-Recognition
Decision, concerning the Mandamus, the Judgment stated, “The eligibility, at present, of thetermination clause is an issue. In determining the eligibility of the termination clause, theessential nature of the change in the country of origin must be carefully evaluated, and it
must be objectively and provably ensured that the circumstances justifying the granting of
refugee status have ceased to exist; and whether the change is fundamental, stable and durable, in particular ***. Regarding the Appellee, it is not found that it is objectively and provably ensured that the possibility of persecution was fundamentally, stably and durably ceased
to exist; it is impossible to recognize the eligibility of termination clause to the Appellee evenwith the use of all other exhibits of this case.” And then, the Judgement stated that the Appellee fall under the refugee status of the Refugee Convention at the present time (i.e. at thedate of conclusion of oral argument).
(4) A part indicating clearly that the termination clause does not need to be applied ingeneral refugee recognition procedures
Regarding the application of the termination clause for the re-Non-Recognition Decision(mentioned (2) A above), the State stated, "According to the logic of the judgment of the original instance court, in the procedure of recognition of refugee status, it is inevitable to decide whether or not the applicants for recognition of refugee status are applicable for refugee
status at the any time of past; and with the eligibility in the past, to decide whether or not thetermination clause would be applied to the applicants. In other words, this is same as applying the termination clause to the procedure of recognition of refugee status.”
In response to the claim above, the Judgement stated, ”Regarding this case, in the antecedent judgement of revocation of non-recognition decision, the eligibility of the refugee
status was of cially recognized by administration of justice; and the Minister of Justice would
also be restricted by above; therefore the judgement stated that the provision of termination
clause shall be applied in the procedure of recognition of refugee status at the second time.
In the general procedures of recognition of refugee status without the premise like above, theeligibility of the termination clause would not be an issue usually.”
2 Evaluation of the eligibility for refugee status to foreign nationals whose judgment of
revocation of the non-recognition decision of refugee status has become nal and bindingon the grounds that they fall under the category of refugees
If, in light of the content of the Judgment, the second recognition procedure of refugee
status would be implemented to foreign nationals whose judgement of revocation of the nonrecognition decision of refugee status has become nal and binding,with the nal and binding of the said judgement, on the assumption that the foreign nationals' eligibility for refugee status (refugees who fall under Article 1 A (2) of the Refugee
Convention) at the time of the decision has already been of cially con rmed,
it is requested

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to decide whether or not [the foreign nationals] fall under Article 1 C of the Refugee Convention (the terminal clause); andto recognize immediately [the foreign nationals] as refugees when they don’t fall under
the termination clause. (At the time of the second decision, it is unnecessary to examine
again that [the foreign nationals] fall under the Article A (2).)
On the other hand, in the general recognition procedure of refugee status, which lacks thepremise that a judgment of revocation of the non-recognition decision of refugee status has
become nal and binding on the grounds that [foreign nationals] fall under the category of
refugee status, it is permissible to judge the eligibility of refugee status based on the con rmation of whether or not [foreign nationals] fall under Article 1 A (2) of the Refugee Convention.
(It is unnecessary to examine whether or not [they] fall under Article 1 C of the Refugee Convention (termination clause)).
[end of document]

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DENIAL OF CLAIM FOR REVOCATION OF THE
IMMIGRATION’S NON-RECOGNITIONDECISION AGAINST AN APPLICANT, WHO
HAD BEEN RAPED DURING HER CUSTODY AT
POLICE DUE TO HER POLITICAL ACTIVITIES(decision in favor of the immigration)―Heisei 30 (2018) (Gyo-Ko)No. 1971
Tokyo High Court, 21st November 2018
(Ethiopia)
Translated by Koei Matsushita2
JUDGMENT
Appellant: X
Appellee: the State

THE MAIN TEXT OF JUDGMENT
1.

The appeal is dismissed2.

The cost of an appeal to the court of the second instance shall be borne by
the appellant(Omitted)

PART II. OUTLINE OF THE SECOND CASE
(Omitted)
1. 平成30年11月21日判決言渡、平成28年(行コ)第197号難民不認定処分無効確認等請求控訴事件（原審・東京地方裁判所平成28年（行ウ）第299号）
Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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3.

The Appellant's claims in this appeal(1)

Eligibility for Refugee StatusA.

It is clear that "well-founded fear of being persecuted" is found even if it isbased only on facts found by the judgment of the rst instance court, that is,i)

the Appellant was arrested on the grounds of her political opinions andraped by 3 police of cers;ii) she gave birth 9 months later;iii) she is suffering from PTSD;iv) in Ethiopia, from the time mentioned in (1) above to the time of the
Denial of Recognition, the EPRDF control continued; in the 2010 election,
2450 seats out of 2453 seats were won by EPRDF; and in the 2015 elections, all seats were won by EPRDF; andv) it is reported that several opposition leaders insisted
1. that, two years before the 2010 election, the condition for the free andfair election was not ensured,that the EPRDF restricted political activities of opposition parties and theirmembers, andthat the arrest and detention of supporters of opposition parties were intensifying in Amhara and other states,
and
it is decided by the standard of the reasonable person adopted in the judgment of the rst instance.

B.

According to the Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status, although the "fear" in "well-founded fear of being
persecuted" is a subjective feeling, it requires objective support. Said handbook explains that in individual cases, the importance of these two factors candiffer, and even if the objective support is not suf cient, it can be consideredthat "well-founded fear" is proven only for the individual in light of the background, beliefs, and activities of the individual (even if others do not think so
in same objective circumstances). In this case, the judgment of the rst instance recognized that the Appellant had PTSD and did not consider the existence of "well-founded fear"; however, judging from the fact that there is noevidence to suggest that there were other incidents which caused PTSD, it isconsidered that [the PTSD] was caused by torture by police of cers, and fromthe facts mentioned in (4) and (5) above, there are objective circumstances thatwould make an ordinary person fear persecution.

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It is clear that the Appellant has the reasonable ground, reasonable possibility
and reasonable likelihood and others of fear of being persecuted based on thefacts
that "Ad Hoc Committee on Stateless and Related Issues" states in its
nal report that "well-founded fears" refers to cases in which the individual
can establish "reasonable grounds" that the person is afraid of being persecuted (A 71),that the above handbook states that there should be a suf cient reason
for the applicant's fear of persecution when "[the applicant] can prove, to areasonable degree, that staying in the country of origin is intolerable " (A65), andthat in the United States an indicator of "reasonable possibility" is adopted and in the United Kingdom it is suf cient if [the person] proves lesspossibility such as “reasonable likelihood," "substantial reason to think so"and "grave possibility" A 71).

C.

In Ethiopia in 2010, the ruling party, the EPRDF, no longer allowed thepeople to express their political views freely, continued its vigilance, and carried out thorough oppression; as a result, the EPRDF monopolized parliamentary seats in the same year's elections.
A Human Rights Watch report also con rmed that rape by persons inEthiopian government of cials continued after the Appellant was raped by police of cers, who were against women with anti-government views.
Therefore, even at the time of the Denial of Recognition, it is more obviousthat the Appellant is found to have a "well-founded fear of being persecuted".

(2)

About the degree of proof and othersA.

As the judgment of the rst instance pointed out, even if proof of "to the degree that no reasonable doubt is admitted" is required as to the degree of proof
for refugee status, the object is to have a "well-founded fear of being persecuted"; the proof of "to be persecuted" itself is not required. In this case, theAppellant is not required to prove “the fact that [she] will be persecuted, suchas being detained or raped, when [she] returns to the home country” itself "tothe degree that no reasonable doubt is admitted", but it is enough [for the Appellant] to prove “the fact that [she] is a person who has a well-founded fear of
being persecuted, such as being detained or raped, when [she] returns to thehome country” "to the degree that no reasonable doubt is admitted.” And thisis proven as (1) above.

B.

The judgment of the rst instance seems to take the approach of examining
whether each of the indirect facts is proved "to the degree that no reasonable

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doubt is admitted” and not deciding based on the facts without that kind of
proof; however, such an approach is not consistent with the generally andinternationally adopted approach as a method of deciding refugee status, andit cannot be said that such approach is always used in civil suits as well. It is
important to consider [the facts] not as indirect individual facts but as “a set offacts”; because, generally, the objects are not proven by subjective evidence(for the reason the facts provided in this case concerns future, and happened
overseas).

C.

From the standpoint mentioned in B above, the rst instance judgment was
inappropriate not nding facts concerning the situation in 2010 immediately
before the Appellant left the country, that is, (1) the Appellant was under threatof surveillance by the government authorities, and (2) the circumstances that
led to the closing of the cafe that she had been running, despite the Appellant's
statements.
Rather, these facts should be recognized as described in (1) above, and from
this, it is clear that objective facts supporting subjective fear exist.

(3)

Premature Decision3
The judgment of the rst instance is a premature decision because

A. it is not clear whether the judgment found the facts on the arguments that theAppellant was threatened or monitored by the person concerned with the government or supporter at the time of the 4th national election in 2010; if the
rst instance judgment did not nd the facts, although [the facts] are importantin deciding the existence of "well-founded fear of being persecuted," the reasons for not nding the facts were not clear, andB. although [the rst instance court] found the fact that the Appellant had suffered
PTSD and received treatment, it did consider the facts to decide the existenceor non-existence of "well-founded fear of being persecuted."

PART III. THE DECISION OF THIS COURT(Omitted)
3. Translator’s comment: It means “Shinri Fujin (審理不尽)” in Japanese

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2.

The decision on Appellant's arguments in this instance(1)

The Appellant claims as described in Part II. 3 (1) A above.
However, concerning ‘i’, even if the possibility (that the Appellant was arrested
for opposing the EPRDF or for supporting the CUD and was in custody at a police
station) could not be denied, it cannot be found that the Appellant was raped bythree police of cers while in custody [based on that the possibility is not denied].
Concerning ‘ii’, it is not clear in the evidence whether the Appellant's child wasborn due to rape by the three police of cers or not.
Concerning ‘iii’, considering that the Appellant had opened a cafe in Addis
Ababa City, where the police station (in that the Appellant was detained) was located, for approximately two years after being raped by three police of cers, andhad been in business for approximately two years, it is not found that the Appellant
had developed PTSD during at least the period before she arrived in Japan inNovember 2010, and more than ve years had passed after the rape before the arrival in Japan; although a doctor in Japan diagnosed that the Appellant had developed PTSD, it is impossible to conclude that the PTSD was caused by the damage sustained by rape.
Furthermore, even assuming (4) and (5), there is no evidence to suggest that the
opposition party supporters were widely detained by the EPRDF administration at
the time of the national election in May 2010 as they were after the election in
2005; the details of the threats that the Appellant claimed to have received at thenational election in May 2010 and the circumstances surrounding them are notclear. And even based on the Appellant's statement, the reason the café in Addis
Ababa was forced to close around 2009 is unclear, as per the rst instance judgment. Consequently, based on the facts found in ‘a’ to ‘e’, it is impossible to saythat there is a "well-founded fear of being persecuted" by the standard of a reasonable person.
Therefore, the Appellant's claims cannot be accepted.

(2)

The Appellant claims as described in Part II. 3 (1) B above.
However, as subtitled, the Handbook of Criteria for the Recognition of
Refugee(A 19) is merely a “guide” relating to the criteria and procedures for therecognition of refugee status, and as stated in the preface of its revised edition, it
cannot be legally binding as a guideline to the interpretation of the Refugee Convention; thus, it is justi ed and approved that the judgment of the rst instance decided that there must be an objective circumstance about the person’s subjective
fear of being persecuted that would cause a reasonable person to feel the same fear
when placed in the person’s position.
In this case, as described in (1) above, after two years passed from the rape by
three police of cers while she was in custody, the Appellant opened a cafe in Addis

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Ababa City and ran the business for 2 years, where the police station (at which she
was detained) was located; also, according to the statement of the Appellant, she
told café patrons that she had been raped and asked them not to vote for the EPRDF
at the 4th national election in 2010; considering this, it is impossible to nd thatshe developed PTSD at least before she arrived in Japan; thus, even if a doctor diagnosed that she has developed PTSD in Japan, it is impossible to nd that the rapeby three police of cers caused PTSD. In addition, considering the fact that the
EPRDF and its supporting parties won almost all the seats of the People's Congress(lower house) in the national election in 2010 and all the seats in the subsequentnational election in 2015 (Prerequisite Facts (5) C (D) and (E)), it is impossible tond that she was raped due to her expression of opposition against the EPRDF as
also described in (1) above. Therefore, even if the indicators of foreign countries
that the Appellant insisted were adopted, it is impossible to nd that there are objective facts to recognize “having a well-founded fear of being persecuted.”
Consequently, the Appellant's claim cannot be accepted.
(3)

The Appellant claims as described in Part II. 3 (1) C.
However, reviewing the reports produced by Human Rights Watch on which theAppellant points as the basis for her argument, indeed, the March 2010 (A 66) caseand January 2011 (A 67) case were subject to the Ethiopian government's monitoring and pressure on the public to ensure a vote on the ruling party EPRDF in the
run-up to the national elections in May 2005; it suggests that there was a dif cultsituation in publicizing opposition to the EPRDF. However, it is not found that the
supporters of opposition parties were arrested and detained [at the time] as well as
the national election in 2005. In addition, in the June 2008 case (A 68), theEthiopian government forces were reported to have detained and raped ordinary
citizens, but this case was reported only as an incident in the con ict with the
Ogaden National Liberation Front, a rebel group, in Ogaden, Somali. In the August2012 case (A 69), violence and rape by the Ethiopian government forces were reported, but this case was reported only as an incident happened in search of rebel
armies by the Ethiopian government after the attack on commercial agriculturalland in the Gambella region; it cannot be judged that the Ethiopian government
was trying to nd and arrest, i.e. suppress, opponents of the EPRDF.
Looking at the individual circumstances of the Appellant, as mentioned in (2)above, even based on the Appellant's statement, the Appellant states that she acted
in opposition to the EPRDF in the 2010 national election, but even so, it cannot be
deduced that she was detained again or was about to be raped.
Considering these facts, even at the time of the Denial of Recognition, it is notfound that the Appellant has a "well-founded fear of being persecuted”.
Therefore, the Appellant's claim above cannot be accepted.

(4)

The Appellant claims as described in Part II. 3 (2) A above.

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However, according to instructions above, even if considered from the position
that the Appellant claims, it should be said that the Appellant's having a "wellfounded fear of being persecuted" is not suf ciently established.
Therefore, the Appellant's claim above cannot be accepted.
(5)

The Appellant claims as described in Part II. 3 (2) B above.
However, in civil proceedings even if indirect individual facts leave a reasonable doubt as to its existence, such fact cannot be found; it is reasonable to construe that it is not permissible to nd major facts using such fact. There is no legal
basis to consider, premising the existence of the indirect fact, the existence of amajor fact by considering generally with other indirect facts when a reasonable
doubt remains only in the case of the determination of refugee status.
Therefore, the Appellant's claim above cannot be accepted.

(6)

The Appellant claims as described in Part II. 3 (2) C.
However, it cannot be denied that the statements concerning (a) and (b) pointed
out by the Appellant are ambiguous in themselves. As mentioned above, premising
the statements of the Appellant, it is not strange even if she had been detained or
about to be detained again by police under thorough monitor and suppression, because she was not acting ways which the government could not nd such as opening a café after about 2 years have passed since she was raped by 3 police of cers,
asking her customers to vote for the opposition CUD, and taking part in a stonelaying protest in the national election in 2010; however, evidence of them are notfound. Thus, it should be concluded that the statement of the Appellant concerning(i) and (ii) above cannot be relied upon as it is.
In addition, from the fact that the facts mentioned in (i) and (ii) above are notfound, it cannot be said that the existence of objective facts that supports the subjective fear is clear.
Therefore, the Appellant's claim above cannot be accepted.
The Appellant claims as described in Part II. 3(3).
However, regarding (i), even if the statement of the Appellant is taken as a precondition, the details of the threats and monitoring that the Appellant received andthe circumstances of such threats and monitoring are not clear, and it is not clear
whether such threats and monitoring were carried out under the direction or intention of the Ethiopian government authorities, as described in the judgment of the
rst instance; that is, it should be understood that it is impossible to nd (i) basedon Appellant’s statement.
Regarding (ii), the judgment of the rst instance did not make an explicit judgment indeed; but as mentioned in (1) above, just because the appellant is currently

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suffering from PTSD and receiving treatment, it cannot be found that the cause of
PTSD was the rape by 3 police of cers and that the reason of rape was the Appellant’s opposition to EPRDF; thus, it is impossible to nd that she has a “well-founded fear of being persecuted”.
Therefore, the Appellant’s claim above cannot be accepted.

CONCLUSION
According to the above, this appeal is groundless and shall be dismissed, and the judgment shall be rendered as stated in the main text.
(Omitted)

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CDRQ vol.11―Excerpt from the lower court’s ruling of theabove case
Heisei 28 (2016) (Gyo-U)No. 2991
Tokyo District Court 31st May 2018
Translated by Masako Suzuki2(1)

DEFINITION OF REFUGEES AND BURDEN OF PROOF

A. De nition of Refugees(a) As de ned under the Provisions of Article 2(1)-2 of the Immigration Control andRefugee Recognition Act (hereinafter called “the Immigration Act,”) the term "refugee"means a refugee who falls under the provisions of Article 1 of the Convention relating
to the Status of Refugees (hereinafter referred to as the "Refugee Convention") or theprovisions of Article 1 of the Protocol relating to the Status of Refugees (hereinafterreferred to as “the Protocol.”) And according to the de nition under the Refugee Convention and the Protocol, a “refugee” for the purpose of the Immigration Control andRefugee Recognition Act (hereinafter called “the Immigration Act”,) “owning to wellfounded 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 its 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 tosuch fear, is unwilling to return it.” Thus, it is reasonable to construe that the abovementioned “persecution” means assault or oppression causing such sufferings as an
ordinary person cannot endure, which is a deprivation or oppression against life or
physical freedom.
The Plaintiff contend that in light of “persecution” in the usual sense, the arrangement of sections, purpose and intentions of the draftsmen of the Refugee Convention, the meaning of “persecution” in the Refugee Convention is not limited to a
deprivation of life and physical freedom but includes other serious human rights violations.
Nevertheless, Article 31 (1) provides that, “the Contracting States shall not impose
penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article
1, enter or are present in their territory without authorization…,” and Article 33 (1)provides that, “No Contracting State shall expel or return (“refouler”) a refugee in any

1. 平成30年5月31日判決言渡、東京地方裁判所平成28年（行ウ）第299号難民不認定処分無効確認等請求事件
2. Izumibashi Law Of ce, Attorney at Law (admitted to practice in Japan, Tokyo Bar Association), Committee member of Japan Lawyers
Network for Refugees, Co-representative of Lawyers Network for Foreigners

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manner whatsoever to the frontiers of territories where his life or freedom would bethreatened on account of his race, religion, nationality, membership of a particularsocial group or political opinion,”
Therefore, it is reasonable to construe that the “persecution” for the purpose of the
Refugee Convention is a deprivation of or oppression against “life or freedom.” Considering, however, that this “freedom” is apposed with “life,” and that it is deemedthat to be a “refugee” is in such situations that a person “has a fear” when he/she
faces at risk of being persecuted (see Article 1 A (2) of the Refugee Convention,) it isreasonable to construe that this “freedom” means freedom pertaining to life (survival)
activities, namely the freedom of physical activities. In addition, in light of the factthat how the Contracting States control the economic activities of refugees in theirterritory depends on their domestic legal systems, it is construed that the above-mentioned “freedom” does not include freedoms of economic activities, etc.
(b) Next, it is construed that, in order to be considered to have a “well-founded fearof being persecuted,” there need be not only subjective elements that the concerned
person have such fear, but also objective elements that an ordinary person would
have a fear of being persecuted when he/she were placed in the same position.

B. Burden of Proof and other matters(a) Neither the Refugee Convention nor the Protocol de nes the burden of proof in
refugee claims, thus it is construed that where the burden of proof is placed is determined in accordance with the legislative policy of the Contracting States, and there
are no provisions on of the burden of proof in refugee claims under the laws and regulations in Japan.
Considering that the provisions of Article 61-2(1) of the Immigration Act and Article 55-1 of the Immigration Control Act Enforcement Regulations require any foreign
national who seeks to apply for recognition of refugee status to submit materials proving that he/she quali es for refugee status, it is reasonable to construe that with regards to the objective elements that clearly demonstrates the basis for the eligibility
for refugee status, the burden of proof shall be placed on the Plaintiff who is the applicant in the case, and thus in cases of revocation of denial of recognition of refugee
status, a decision shall be revoked when it is proven that the Plaintiff quali es forrefugee status.
(b) Next, with regards to the standard of proof in refugee claims, in administrative
cases, the provisions of Article 7 of the Administrative Case Litigation Act set out thatany matters concerning administrative case litigation which are not provided for inthis Act shall be governed by the provisions on civil actions, but there are no particular provisions for to the standard of proof in this Act.
And in civil cases, a high degree of probability beyond reasonable doubt is required to prove the existence or nonexistence of a fact, and the claim of that applicant must be convincing enough so that the average person would not cast any doubt
on its truthfulness, but this is suf cient and nothing more is required.
Also, there are no particular provisions for to the standard of proof in refugeeclaims in either the Refugee Convention or the Protocol thus it is construed that whatstandard of proof the Contracting States apply in refugee claims is determined in ac-

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cordance with the legislative policy of the Contracting States, but there are no provisions under the laws and regulations in Japan which allow a lower standard of proof
to be applied in refugee claims and subsequent legal proceedings.
Therefore, it is reasonable to construe that, as in ordinary civil cases, the degree of
proof necessary before a refugee claim should be accepted should be proven to ahigh degree of probability beyond reasonable doubt.

(2)

GIVEN THE ABOVE PREMISES, THE COURT SHALL DETERMINETHE P LAINTIFF ’ S ELIGIBILITY FOR REFUGEE STATUS .

(b) The Plaintiff claims that i) she belongs to the Amhara, ii) the Amhara people continue
to suffer hardships from discrimination in Ethiopia, and iii) this provides a basis for eligibility for refugee status. considering that i) Amharic is an of cial language spoken in
Ethiopia (Defendant’s Exhibit 15,) ii) a political party, the Amhara National Democratic
Movement (ANDM,) which represents ethnic Amhara and governs the region, is af liated with the Ethiopian People's Revolutionary Democratic Front (EPRDF) (Defendant’s
Exhibit 17,) and iii) 6 out of the 25 members of the Council of Ministers, which is thecabinet of the Government of Ethiopia established after the fourth national elections,were former members of the ANDM (Defendant’s Exhibit 22), the court nd it dif cult toconsider the fact that the Plaintiff belongs to the Amhara provides a basis for eligibility
for refugee status.
(c) The Plaintiff points out that i) her father had been imprisoned for about 10 years after
the Mengistu regime was overthrown because he was a high-ranking military of cer during the regime, ii) her senior sister was imprisoned after the regime was overthrown because she had been a military commander during the regime, iii) it is not known whether
she is alive and iv) this provides a basis for eligibility for refugee status. even when we
assume that the Plaintiff is correct in saying that all her family members including herself
had been under surveillance as well as in her statements which back up her claim (Defendant’s Exhibit 4&5,) the court doesn’t see that the Plaintiff herself has actually been
subjected to infringement of her rights or oppressive treatment by the Ethiopian authorities for her father and senior sister’s past. Rather, it nds from the Plaintiff’s statementsthat her father has lived in piece for a long time after he was released (Defendant’s Exhibit 4&5.) Thus, the court nd it dif cult to consider that even though they are related,
her father and senior sister’s past provides a basis for eligibility for refugee status. Also,
the Plaintiff claims that there was an incident that her father was attacked by unknown
perpetrators after she left the country. even when we assume that the Plaintiff is correctin her statements (Plaintiff’s Exhibit 50, Defendant’s Exhibit 12, and the Plaintiff herself,)
the court nd it dif cult to consider that the occurrence of the incident provides a basis
for eligibility for refugee status because the identities of the perpetrators as well as thereasons of the attack are not determined.
In addition, the Plaintiff claims that her younger brother has been expelled fromwork. even when we assume that the Plaintiff is correct in her statements (the Plaintiff
herself), the court nd it dif cult to consider that it provides a basis for eligibility forrefugee status, because the circumstances and reasons of her younger brother’s expulsion

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from work are not determined.

(d) Next, the Plaintiff claims that i) she has been supporting The Coalition for Unity and
Democracy (CUD,) ii) she has been participating in demonstrations as a CUD supporter,iii) she has been involved in political activities, such as calling upon her friends and acquaintances to support CUD and iv) this provides a basis for eligibility for refugee status.
In this regard, even when we assume that the Plaintiff is correct in her statements(Plaintiff’s Exhibit 50, Defendant’s Exhibit 5&12, and the Plaintiff herself,) and in her
claims that i) she is only a supporter who is not af liated to CUD, ii) she has only been
participating in demonstrations as a CUD supporter and iii) she has been involved inpolitical activities, such as calling upon her friends and acquaintances to support CUD,
as stated in the ndings, it is found that the Plaintiff was arrested in September 2005 after
the third national elections was held in the same year and subjected to rape by threepolice of cers while in custody. These ndings match the reports, which state that theEthiopian authorities have arrested a signi cant number of CUD members around thesame time the Plaintiff was arrested , and this fact implies that at that point of time, thePlaintiff was arrested for her being a member of a certain social group or having a political opinion.
The Plaintiff also claims that she had been subjected to intimidation and surveillance
by af liates and supporters of EPRDF during the fourth national elections held in 2010.
Based on the Plaintiff’s terrifying experiences after the third national elections, it is easy
to infer that as a CUD support, the Plaintiff had a subjective fear of being persecuted.
With regards to the fourth national elections, the EU election observation mission hasreported that the elections were largely peaceful and free od violence, while many opposition leaders have reported that there was a steep increase in the number of opposition party supporters who were arrested and detained after the elections. However. there
is not any strong evidence that suggests that a large number of opposition party supporters were arrested and detained as it happened after the third national elections. In addition, with regards to the Plaintiff’s individual circumstances, in addition to the fact thatat the time of the fourth national elections, it had been four years since the Plaintiff was
raped while in custody, even when we assume that the Plaintiff is correct in her statements which match the above claims (Plaintiff’s Exhibit 50, Defendant’s Exhibit 5 andthe Plaintiff herself,) there is no clear evidence about the details and circumstances of
the intimidation and surveillances to which the Plaintiff claimed to have been subjectedaround the time of the fourth national elections, as well as it is not clear whether such
intimidation and surveillance were carried out under the direction of the Ethiopian government. Considering these circumstances, the court does not nd that with regards to
the Plaintiff who was a mare CUD supporter as noted above, there were objective circumstances that con rmed the Plaintiff’s subjective circumstances after the fourth national elections up to the time of the denial of recognition of refugee status in this case.
Also, the Plaintiff stated that the EPRDF and its af liates obstructed the business of thecafé she had opened, and, in the end, they sealed and closed down the café in question(Plaintiff’s Exhibit 50, Defendant’s Exhibit 5 and the Plaintiff herself.) However, evenwhen we assume that the Plaintiff is correct in her statements, it is not clear in what position the EPRDF and its af liates obstructed the business of her café, and how they haveobstructed the business other than by telling the Plaintiff face-to- face that she won’t be

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operating the café. Similarly, the circumstances of the closure of the café are not clear,
including on what legal basis the EPRDF and its af liates sealed the café. Thus, the courtnds it dif cult to acknowledge the fact that the EPRDF and its af liates obstructed thebusiness of the café she was operating for her being a member of a certain social groupor having a political opinion. And therefore, the court does not consider these circumstances provide a basis for eligibility for refugee status.
(e) The Plaintiff claims that i) after she entered Japan, she joined anti-government groups
X and Y, ii) she has been actively taking part in their activities to oppose the policies of
the Ethiopian government and iii) this provides a basis for eligibility for refugee status.
Even when we assume that the Plaintiff is correct in her statements (Plaintiff’s Exhibit 50
and Defendant’s Exhibit 12,) her involvement in X’s activities is limited to being given
some information from the leaders of X and passing it to other people involved, as wellas her involvement in Y’s activities is also limited to talking to other members on thephone. Therefore, the court nds it dif cult to acknowledge the fact that such activities
would be particularly noted by the Ethiopian government. In addition, as stated in thendings, although it is found that the Plaintiff has participated in demonstrations to oppose the policies by the Ethiopian government, there are no speci c circumstances tosuggest that the Ethiopian government is aware of and paying a particular attention to
the Plaintiff’s activities. Therefore, the court does not consider her activities in Japandescribed above provide a basis for eligibility for refugee status.
II.

As above stated, the court nd it dif cult to consider that the Plaintiff met the criteria of
the refugee de nition as it does not nd that she cannot be protected in her country oforigin, owing to a well-rounded fear of being persecuted for being a member of a certain social group, or for having a political opinion at the time of the denial of recognition of refugee status in this case. Therefore, the court does not nd any ground fornullity in the denial of recognition of refugee status in this case, and also it dismisses
the Plaintiff’s action for the declaration of nullity of this case as unlawful.

3. About the issue 1 (the legality of the mandamus action in this case.)
The purpose of the mandamus action in this case is to try and compel the court torecognize the Plaintiff as a refugee, so it is understood that this is a mandamus action toappeal pursuant to the provisions of Article 3, paragraph 6, item 2 of the Administrative
Case Litigation Act, but as stated above, the court nds no grounds for the Plaintiff’s action for the declaration of nullity of this case. Therefore, the mandamus action for thiscase is illegitimate and to be dismissed because it does not comply with the procedural
requirements in the provisions of Article 37-3, paragraph 1, item 2 of the Administrative
Case Litigation Act.

CONCLUSION
From the forgoing, the portion of the Plaintiff’s action in this case which relate to the

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mandamus action to compel the Minister of Justice to recognize the Plaintiff as a refugee
shall be dismissed because it is unlawful, and the Plaintiff’s other claims shall be dismissed
because they are unfounded. Accordingly, the judgment is unanimously rendered as described in the main text.

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DENIAL OF THE REFUGEE STATUS BASED ON
COI ANALYSIS OF AN FORMER DIPLOMATINSTEAD OF THAT OF THE INTERNATIONALORGANIZATION―Heisei 27 (2016) (Gyo-U) No. 158, 163,
164, 1651
Tokyo District Court, 20th March 2018 (Syria)
Translated by Koei Matsushita2
JUDGMENT(Omitted)
Plaintiff of Third case and Fifth case

Plaintiff P3(Omitted)
Defendant

The State(Omitted)

THE MAIN TEXT OF JUDGMENT(Omitted)

1. 平成30年3月20日判決言渡、平成27年(行ウ)第１５８号シリア難民不認定処分無効確認等請求事件（第１事件）、平成27年(行ウ)第１６３号シリア難民不認定処分無効確認等請求事件（第２事件）、平成27年(行ウ)第１６４号シリア難民不認定処分無効確認等請求事件（第３事件）、平成27年(行ウ)第１６５号シリア難民不認定処分無効確認等請求事件（第４事件）
2. Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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2.
Among the Actions in these cases led by Plaintiff P3 and Plaintiff
P4, the party requesting the mandatory recognition of refugee status shall bedismissed.
3.
dismissed.
4.

The remaining claims of Plaintiff P3 and Plaintiff P4 shall be

The plaintiffs shall bear the court costs.

(Omitted)

FACTS AND REASONSPART I. JUDICIAL DECISION REQUESTED BY THE PARTIES
1.

Object of Claims(Omitted)(3)

Claim of Plaintiff P3 (Third case and Fifth case)A.

The denial of recognition of refugee status on Plaintiff P3 by the administrative agency reaching disposition on February 26, 2013 shall be revoked (Fifthcase).

B.

The administrative agency reaching disposition shall recognize the Plaintiff P3
as a refugee (Third case).

(Omitted)2.

Answer before the merits

Same as paragraphs 1 and 2 of the main text.
3.

Answer to the merits

The same as paragraph 3 of the main text.

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PART II. OUTLINE OF THIS CASE
In this case, the plaintiffs, who are foreign nationals of the Syrian Arab
Republic (hereinafter referred to as "Syria" or "home country".), applied forrecognition of refugee status in accordance with Article 61 - 2, Paragraph 1 ofthe Immigration Control and Refugee Recognition Act (hereinafter referred to as"Immigration Control Act".); however, they were denied recognition of refugee
status by the administrative agency reaching the disposition. Therefore, Plaintiff
P3 seeks revocation of the denial and mandates recognition of refugee status
and the remaining plaintiffs request to con rm the invalidity of the denials andmandates recognition of refugee status.
(Omitted)2.
Prerequisite Facts (There is no dispute between the parties regarding the fact that noevidence is presented.)(Omitted)(4)

Entry and Refugee Recognition Procedures for Plaintiff P3

A. Plaintiff P3 arrived at Narita Airport on August 21, 2012 and landed in Japanon October 19 of the same year after receiving landing permission for temporary refuge from an immigration inspector at Narita Airport Branch.

B. Although Plaintiff P3 led an application for recognition of refugee status withthe administrative agency reaching disposition on October 10, 2012, the administrative agency reaching disposition issued a denial of recognition of
refugee status (hereinafter referred to as "Denial on P3 ".), and on March 18 of
the same year noti ed thereof.

C. Plaintiff P3 led an objection to the Denial on P3 on March 25, 2013, but theadministrative agency reaching the disposition decided to dismiss the objection on May 11, 2015, and noti ed Plaintiff P3 thereof on July 9 of the sameyear.

D. P3's wife, P3's eldest daughter, and P3's eldest son (hereinafter referred to collectively as "P3’s wife and others".) arrived at Narita Airport on January 23,
2015, and landed in Japan with special landing permission (B - Ha 24).

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E. Plaintiff P3 and P3's wife gave birth to a second daughter, on ***** in 2017 (B–Ha 29).
(Omitted)
3.

Issues(Omitted)(2)

Whether Plaintiff P3 and Plaintiff P4 are refugees.

(3)

Legality of mandamus action and appropriateness thereof.

PART III. PARTY'S ARGUMENTS ON THE ISSUES(Omitted)2.

On issue (2) (Eligibility for Refugee Status of Plaintiff P3 and Plaintiff P4)<Claims of Plaintiff P3 and Plaintiff P4>(Omitted)(8)

Plaintiff P3

A. Living situation in Syria
Plaintiff P3 belongs to the line of the family of the patriarch of the blood relative group of the Kurds, Al-Abbas Sain. Al-Abbas Sain, a leading gure in Syria,
is a famous tribe in Iraq and Syria, possessing a vast landmass of 13 villages, awealthy tribe, and having once occupied part of the Republic of Iraq (hereinafterreferred to as "Iraq".) and Syria.
The patriarch of Al-Abbas Sain is in a position to provide assistance to people
in need, to solve problems, and to maintain order inside and outside the tribe,and its in uence is very large.

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Plaintiff P3 attended an elementary school in Tel Asafar from 6 to 12 years
old, and after graduating from elementary school, he worked on the farm andbakery which his father managed. Since his father died when Plaintiff P3 was
24 years old, Plaintiff P3 himself managed the farm and bakery and lived astable life. Plaintiff P3's annual income in Syria was several million Syrian
pounds, and his standard of living in Syria was well off to a considerable degree.

B. Participating in anti-government demonstrations
Plaintiff P3 participated in demonstrations held around Al-Malikiyah about 2times a week from around January 2012. Around April or May of the same year
in the demonstrations in Al-Qamishli, he saw with his own eyes that Syrian security forces opened re on the demonstrators, killing parents with a girl around2 years of age; as a result, he became strongly to wish to overthrow the government of Syria, to make [the government] liberal democratic nation and to liberate the people from genocide; he became to be a member of 3 tansikiyas (of AlMalikiyah, Tel ji alat, and Kurdish young men’s association) and to join anti-government demonstrations more actively.
Plaintiff P3 called for participation in demonstrations, guided demonstrations
wearing special clothes, and distributed yers; he began to appeal to participate
in demonstration widely. Also, he arranged buses for people to take part indemonstrations. Since Plaintiff P3 belongs to the family line of the patriarch of
Al-Abbas Sain, Plaintiff P3 participated in the demonstration, so that it was possible to lead many people into participating in the demonstration ef ciently.

C. Departure from Syria and entry into JapanOn July 15, 2012, while Plaintiff P3 was away from his home, the security
forces visited Plaintiff P3's home and beat Plaintiff P3's mother to nd Plaintiff
P3's whereabouts. Plaintiff P3 heard this from an acquaintance and found that
he was being pursued by the security forces. Plaintiff P3 was convinced that anarrest warrant had been issued for him because the security forces had come tohis house and because he had heard that the arrest warrant had been issued for
P 14, the leader of Tansikiya to which Plaintiff P3 belonged. He thought that if
he was arrested, he would certainly be killed. Plaintiff P3 then sensed his
danger and hid in Dundik (Tel Asafar), and did not return home until August 20of the same year when he left Syria.
Plaintiff P3 left Damascus Airport on the same day and heard from a broker
that he was wanted. After entering Japan, Plaintiff P3 was informed by his family that he had received at his home a judgment stating that he would be sentenced to imprisonment.

D. Recognition of Refugee Status of Brothers
The second younger brother of Plaintiff P3 (hereinafter referred to as "P 15".)
was descended from the family line of the patriarch of Al-Abbas Sain as well as

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Plaintiff P3 and was engaged in anti-government activities in Syria and activities
for the Kurds, so there was a risk of being persecuted. He was granted refugee
status in the United Kingdom in March 2013.
The elder brother of Plaintiff P3, P 16, who, like Plaintiff P3, was descended
from the patriarch of Al-Abbas Sain and worked to assist those wanted by the
Syrian government, was at risk of being persecuted and was granted refugee
status in the United Kingdom after living with his mother in a refugee camp in
Duhok.
The third younger brother of Plaintiff P3 (hereinafter referred to as "P 17."),
was descended from the patriarch of Al-Abbas Sain as well as Plaintiff P3, andas an actor, was performing a play on the theme of massacres by the Syrian government in 2012. Because of the risk of being persecuted, he was granted
refugee status in the United Kingdom in August 2016.

E. Refugee Status
As mentioned in (4) above, in Syria, since at least the Arab Spring in early
2011, Kurds living in Kurdish areas of northern Syria who have left Syria andapplied for refugee status in other countries are highly likely to fall under the
category of refugees, and in particular, those who have participated in anti-government activities or are considered to be supporting anti-government groups
should be considered to fall under the category of refugee.
Plaintiff P3, as described from A through C above, is a Kurd in the Kurdish
area of northern Syria, has extensive land in Syria and Iraq, belongs to the familyline of the patriarch of the af uent and famous kin group of the Kurds, Al-Abbas
Sain, and played a leading role in the anti-government demonstrations.
In July 2012, the Syrian government issued an arrest warrant for Plaintiff P3.
It is clear that the arrest warrant was issued for his active participation in antigovernment demonstrations in consideration of information of the country (e.g.
In Kurds areas, participants of anti-government demonstrations were detained,
targeted for enforced disappearance, and tortured areas for their participation in
the demonstrations.) and facts that many persons who participated in anti-government demonstrations, as well as Plaintiff P3, were detained by the Syrian
government. Also, based on the Country of Origin Information, it is easily supposed that there would be a serious violation of human rights such as torture if
Plaintiff P3 had been arrested.
As described above, Plaintiff P3 falls under a refugee. The fact that threebrothers of Plaintiff P3 were recognized as refugees in the United Kingdom also
underlies the refugee status of Plaintiff P3.
<Claims of Defendant>(Omitted)fl93

CDRQ vol.11(2)

Plaintiff P3

A. Participation in demonstration(a)

In Syria since March 2011, anti-government demonstrations had spreadthroughout the country and were frequent. Plaintiff P3 participated in thedemonstrations only in one area around Malikiya City, Hassaka province,
and there are no particular indications that the demonstrations in this area
attracted attention at home and abroad, concerning the anti-government
activities that were taking place throughout Syria at that time. Consideringthat the scale of the demonstration in major cities in Syria was reported to
be 50,000 people but the scale of the demonstration in which Plaintiff P3
participated was only several hundred to 1000 people on the premise of thestatement made by Plaintiff P3, that the Syrian authorities did not regulate
the demonstration in such a way that it would be dif cult to continue, andthat the demonstration was continuously held for more than half a year, thedemonstrations must have been regarded as small-scale demonstrations
comparing with the large number of anti-government activities that took
place in Syria since the same month, and it is dif cult to say that the Syrian
authorities paid particular attention to them.
Consequently, even in light of the general situation in Syria at the time, it
is dif cult to nd that the Syrian government authorities had a need to individually identify the participants who were not even in a leadership position in response to demonstrations of the aforementioned nature and thensubject them to persecution, and there are no circumstances to suggest thatsuch a situation existed.

(b)

Plaintiff P3 initially participated in the planned demonstrations as an individual citizen, not belonging to an organization. After becoming a member of an organization, Plaintiff P3 merely participated in the demonstrations or called for participation in the demonstrations, and these activities
did not go beyond the scope of just a participant; therefore, it is dif cult torecognize that Plaintiff P3 was in a position to lead anti-government activities.
Consequently, given the nature and scale of the demonstrations mentioned in ‘a’ above, it is highly unlikely that the Syrian government authorities will pay special attention to Plaintiff P3 as an object of persecution concerning the activities that Plaintiff P3 was conducting in the demonstrations.

B. About a line of the family of the patriarch of blood relative group, Al-Abbas
Sain(c) In the examination of Plaintiff P3, Plaintiff P3 statedthat Plaintiff P3 was in a line of the family of the patriarch of the blood
relative group, Al-Abbas sain, and in a position that was possible to lead

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many people to participate in the demonstration andthat many people become to participate in the demonstrations because
Plaintiff P3 participated in the demonstrations;however, there is an unnatural transition in Plaintiff P3’s process of statement and it is dif cult to nd reasonable grounds for the transition; thus it
has to be determined that there is no credibility in statements related to thispoint.

(d) Putting aside the point (A) above, Plaintiff P3 claims that his uncle is thepatriarch of blood relative group, Al-Abbas Sain, however Plaintiff P3 itself
is not in a special position such as the patriarch or others, merely in a lineof the family of the patriarch, and the extent of its in uence has not been
concretely proved.
In addition, Plaintiff P3 stated that he participated in three groups to makea large demonstration. However, even on the premise of the statement of
Plaintiff P3 of his examination, there is no speci c reason to believe that
there was any relationship between the related group to which Plaintiff P3
belonged and the blood relative group, Al-Abbas Sain; Plaintiff P3 was not
given a special status in each group despite that he was in a line of the family of the patriarch of blood relative group, Al-Abbas Sain; therefore, it isquite dif cult to nd that Plaintiff P3 played an outstanding role in eachgroup or between the groups even on the premise that Plaintiff P3 is in aline of the family of the patriarch of blood relative group, Al-Abbas Sain.
Furthermore, Plaintiff P3 has failed to provide any concrete explanationon the extent to which the number of participants in the group's demonstrations increased since Plaintiff P3 joined the group although Plaintiff P3
states that he encouraged participation in the demonstration.
From the above, it is dif cult to conclude that Plaintiff P3 had a particularin uence on the demonstration in which he participated because he belonged to the family line of the patriarch of the blood relative group, Al-Abbas Sain.

(e)

In light of the above, the fact that Plaintiff P3 is descended from the patriarch of the blood relative group. Al-Abbas Sain does not increase the risk ofbeing persecuted by the Syrian authorities in connection with the activities
that Plaintiff P3 allegedly carried out in Syria.

C. About the claim that the security forces visited his home in July 2012(f)

There is no objective evidence to support Plaintiff P3's claim that the security forces visited Plaintiff P3's home and beat his mother to con rm thewhereabouts of Plaintiff P3 on July 15, 2012. The only evidence in linewith this is the statement of Plaintiff P3.
Based on the statement of Plaintiff P3, Plaintiff P3 did not know the reason why the security forces visited Plaintiff P3's house, and although thesecurity forces (that Plaintiff P3 said they visited Plaintiff P3's house) did

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not speci cally refer to the activities of Plaintiff P3, such as participation ina demonstration; therefore, it is not clear for what purpose the security
forces visited Plaintiff P3's house.
Furthermore, concerning the statement made by Plaintiff P3 to the incident that an arrest warrant was issued to him based on the above circumstances, the existence of the arrest warrant itself or its contents was not conrmed. He merely states his conjecture based on vague and uncertain information.
Plaintiff P3 left Syria on August 20 of the same year after the date when
the arrest warrant was issued without any problem through regular departure procedures using his of cial passport. If the Syrian government paid
attention to Plaintiff P3 as an anti-government activist, and if an arrest warrant was issued due to this, it would be dif cult for the authorities of the
Syrian government to easily permit Plaintiff P3 to leave the country. Therefore, Plaintiff P3's departure from the home country in regular procedure
proves that the Syrian government does not pay attention to Plaintiff P3 as
an anti-government activist and that no arrest warrant has been issued forPlaintiff P3.

(g)

Concerning Plaintiff P3's claim that the judgment to impose a prison sentence on him was made after he departed from the home country, he statesthat the judgment document had been placed in the post or window of
Plaintiff P3's home. If it is true that Plaintiff P3 was tried for engaging in
anti-government activities and was found guilty in any way, it was unnatural as a subsequent response that the court merely placed the judgment
document in the home post of Plaintiff P3 in Syria.
In addition, according to the statement of Plaintiff P3, Plaintiff P3 had thejudgment document with him at least at the time when the examination of
Plaintiff P3 was conducted, and the grounds of the judgment document
were related to his participation in the demonstration; however, it was not
submitted in either the proceeding of lling objection or the present case.
Therefore, even from such circumstances, the veracity of the judgment
document itself was extremely doubtful, and it is quite dif cult to nd thefact that the court imposed a prison sentence on Plaintiff P3.

(h)

On the other hand, even if the issuance of an arrest warrant, etc. to
Plaintiff P3 was true, it is considered that it was not because Plaintiff P3 wasengaged in anti-government activities but because [the authority] tried tomake [Plaintiff P3] ful ll military service duty.
In this regard, Plaintiff P3 stated during questioning by the Immigration
Inspector at Narita Airport Branch that "My brother was wanted by the government, and I was told to appear for military service." This statement
should be deemed to have been made by Plaintiff P3 based on facts.
The issuance of arrest warrants, etc. in Syria because a person has
evaded being imposed a military service duty or ful lling a military service
duty does not immediately constitute a risk of being persecuted under the

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Refugee Convention.

D. Being Kurdish and belonging to its blood relative group.
Judging from the status of the settlement of Kurds in Syria, the content of
the measures taken by the Syrian Government toward Kurds, the historicalbackground of the Kurds in Syria, and the structure of con ict between eachpower after the civil war, it is not likely that, at the time of the administrative
disposition on Plaintiff P3, the Syrian Government was unilaterally oppressing
the Kurds in general on the grounds of their ethnic origin, rather, there was aconciliatory policy. Considering these circumstances, it is not found that theKurds, in general, were in a situation where they were persecuted for their ethnic origin in Syria.
Thus, in connection with the activities which Plaintiff P3 allegedly carriedout in Syria, the fact that Plaintiff P3 is Kurdish and is in the family line of thepatriarch of the blood relative group, Al-Abbas Sain, does not increase the riskof being persecuted by the Syrian authorities.

E. Regarding the fact that his relative was being protected in foreign countries
In the rst place, whether or not an applicant quali es as a refugee
should be determined for each applicant based on a comprehensive assessmentof all the individual and general circumstances recognized by the applicant, andnot based solely on the fact that the applicant belongs to a particular ethnic
group or activities in a particular ethnic group. Putting aside this point, no objective evidence has been submitted to support the above statement made by
Plaintiff P3 with regard to the eldest brother, and it is not clear from a perusal of
the copies of the residence permits of Plaintiff P3’s second and third brothers
that the refugee status was granted to them for any reason (In the United Kingdom, a large number of Syrian applicants for refugee status have been granted
refugee status. On the other hand, in European countries other than the United
Kingdom, Syrian applicants for protection are granted non-refugee status rather
than refugee status as protection. Plaintiff P3 has already been granted protection for humanitarian reasons in Japan.).
Consequently, the fact that the eldest brother of Plaintiff P3 and others
was protected by another country cannot be the basis for Plaintiff P3's refugee
status.

F.

Facts denying the refugee status of Plaintiff P3.
As for Plaintiff P3, the facts
that Plaintiff P3 had been granted the right to leave the country withhis passport issued,that he did not seek protection immediately after leaving Syria andwished to go to the United Kingdom (where he wanted to reside), andthat the family of Plaintiff P3 was living in Syria without any particular

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harm from the authorities of the government of Syria at the time of the
Administrative Disposition on Plaintiff P3
were recognized; based on these activities of Plaintiff P3, etc., it is notfound that Plaintiff P3 was in a circumstance where he had to feel a fear of being persecuted; these facts positively deny eligibility for refugee status of Plaintiff
P3.
In addition, Plaintiff P3 states that he paid bribes to a "P 18" broker who[Plaintiff P3] had requested departure procedures for obtaining his passport May
13, 2012, when he was granted his passport; even before the security forces
visited the home of Plaintiff P3 on July 15 of the same year and began to feel areal danger of harm to him, Plaintiff P3 already took concrete actions, such as
contacting the broker, to leave Syria. In addition to the above, considering that
Plaintiff P3 wanted to go to the United Kingdom, where he wanted to reside,
after leaving Syria, and did not immediately seek protection, it is strongly inferred that Plaintiff P3's primary purpose of leaving his home country was not toescape from the impending persecution to Plaintiff P3, but rather to seek a better
place to live by avoiding security risks and military service duty; according tothis, it is dif cult to nd that Plaintiff P3 is a person having "well-founded fear of
being persecuted”.

G. Summary
Considering all facts above, it can be concluded that none of the circumstances claimed by Plaintiff P3 support his eligibility of refugee status and, on
the contrary, some circumstances rather deny the eligibility of refugee status.
Therefore, Plaintiff P3 cannot be regarded as a refugee.
(Omitted)

PART IV. DETERMINATION OF THIS COURT(Omitted)
2.

Meaning of Refugees, etc.
(1)
Article 2 (3) -2 of the Immigration Control Act provides that "refugee" under the
Immigration Control Act means refugees who are subject to the Refugee Convention
according to the provisions of Article 1 of the Refugee Convention or Article 1 of the
Refugee Protocol. According to the above provisions of the Refugee Convention and

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the Refugee Protocol, "refugee" (However, stateless persons are excluded. Hereinafter
simply referred to as "refugee.") under the Immigration Control Act means "A person
who owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside thecountry of his nationality and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country." And it is appropriate to construe that the"being persecuted" referred to above means an attack or oppression that brings about
intolerable pain in a reasonable person, which compose an infringement or suppression of life or body. In addition, it is reasonable to construe that having" well-foundedfear of being persecuted " as mentioned above requires not only the existence of a subjective circumstance in which the person is afraid of being persecuted but also the existence of an objective circumstance in which a reasonable person would feel fear of
being persecuted even if placed in the person’s position.
(2)
Concerning recognition of refugee status, Article 61 - 2, Paragraph 1 of the Immigration Control Act provides that the Minister of Justice may recognize an applicant
as a refugee based on material submitted by the applicant for recognition of refugee
status; it premises that the applicant for recognition of refugee status submits the material. In addition, since those who have been recognized as refugees are granted favorable legal status, such as being able to acquire the status of residence of a permanent
resident according to Article 61- 2 -2, Paragraph 1 of the Immigration Control Act;
therefore, recognition of refugee status is a so-called "pro t-making disposition." In
general, concerning a pro t-making disposition, it is construed that the person subject
to such disposition bears the burden of proof about a ful llment of the requirements
for the disposition outlined in the underlying laws. Based on the above, it is reasonable to construe that the refugee recognition applicant bears the burden of proof ofeligibility for refugee status.
3.

Found facts regarding the domestic situation in Syria
According to the following evidence and the entire purport of the oral argument,
the following facts may be found (The number of pages of evidence indicates thenumber of pages of translations in the case of foreign languages and translations).
(1)

General situation in Syria

A. Political circumstances before 2011
President Hafez al-Assad, who was inaugurated as the President by a national referendum in 1971, remained in power for a long time but died in June
2000, and his second son, Bashar Hafez al-Assad, assumed the presidency in
July of the same year. In May 2014, the President (President Assad) received thecon dence of the people in a referendum on his second term of of ce in May

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2007, was reappointed, and was elected for the third term in June 2014. Bothpresidents are Alawite Muslims and Baathist parties. (A - All 2, B - All 7)

B. Arab Spring and Anti-Government Demonstrations (A-All 24, B-All 8)(a)

In uenced by democracy movements in various areas of the Middle East,"Arab Spring," a small-scale demonstration occurred in the capital city ofDamascus on March 15, 2011, and on the 18th of the same month, an antigovernment demonstration by several 1000 people occurred in the southern city of Daraa, spreading to various areas (B-All 5, All 9).
In April of the same year, President Assad issued a Presidential Decree
repealing the Emergency Act which came into force in 1963 and had given
strong powers to the security authorities (In addition, the Syrian government
announced in March 2011 that it had prohibited security forces from ringat demonstrators. B-All 20 <p. 28>, All 75 <p. 35>.)
The Syrian government expressed its view that since the beginning of theprotests the government had been the target of attacks by armed gangs andterrorists, and that some of the terrorists had received foreign funds. In thesame month, President Assad expressed his understanding that what was
happening in Syria was part of a conspiracy, by Israel at the apex and countries cooperating with Israel, to bring about sectarian hostilities with thehelp of some of the Syrian citizens(B-All 20 <p. 26>, All-75 <p. 35>).
On April 25 of the same year, the Syrian Army carried out its rst largescale military operation in Daraa, followed by large-scale military operations in various areas. In November of the same year, OHCHR (Of ce of
the United Nations High Commissioner for Human Rights) estimated that atleast 3500 civilians have been killed by government forces since March of
the same year. It was also reported that several 1000 people were detained
and tortured or ill-treated. (B-All 20 <p. 26>)(b)
President Assad issued a Cabinet Order on the right to participate inpeaceful protests in April 2011 (B-All 20 <p. 26>). However, according toa report by the U.S. State Department, [1] the Cabinet Order issued in
September of the same year gives the government broad authority overfreedom of assembly, [2] it requires the permission of the Ministry of Home
Affairs to hold demonstrations or public gatherings of three or more people,[3] violators are subject to imprisonment of up to one year and a ne of5000 Syrian pounds., and [4] the Ministry of Home Affairs permitted only
demonstrations by supporters of the government, etc. (A-All 1 <p. 46>, All
28 <p.12>). On May 31 of the same year, President Assad issued a presidential order granting pardons to all political prisoners (B-All 10.)In June of the same year, the Syrian government announced that 120
members of the security forces were killed by armed gangs in the northwestern city of Jisr ash-Shughur (B-All 20 <p. 241>, All 75 < p.46 and 47).
In the same month, President Assad stated that members of the military andsecurity forces, as well as innocent people, were killed in subversive activit-

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ies and terrorism, that the government would make efforts without sleep orrest to meet the needs of the nation, and that, among those calling forchange, there were a few groups of criminals or radical religious groups,
who had the aim to spread the crisis. The national broadcast station actively reported armed attacks against the government powers in each city.
On August 4 of the same year, President Assad issued a presidential orderapproving the Political Parties Law, which would lead to a multiparty system, and the law went into effect. However, the de facto one-party dictatorship by the Baath Party continued, and armed clashes between demonstrators and security forces also continued.
In the same month, President Barack Obama of the United States issued astatement calling for the resignation of President Assad because President
Assad was continuing an armed crackdown on anti-government demonstrations.
(c) The report of November 2011 by the Independent International Commission of Inquiry established in the UNHRC (United Nations Human Rights
Council.) mentions
that since the town was closed and a curfew was issued, thecitizens were directly subjected to violence,that Commission received many testimonies on how people
who went out of their homes were shot by snipers,that many of the reported cases occurred in the town of Daraa,
Homs, etc.,that an attorney in Daraa stated that the security forces established a base in the old city area of Daraa during the operation in
April of the same year,
that, when Daraa was attacked and closed, the armed forces
and security forces disturbed residents in the city to obtain foods
and other daily necessities, andthat water tanks and pipes (that residents used) were intentionally crashed by the armed forces and security forces (A-All 50).
Amnesty International's report of the same year mentions
that the armed forces and security forces mobilized snipers toshoot bullets into peaceful crowds and repeatedly deployed tanks
and other armored ghting vehicles for military operations in residential areas, calling on continued and quite excessive use offorce andthat the security forces occasionally raided the area altogether,searched all homes and arrested all men over 15 years of age, or
simply captured the street people indiscriminately (A-All 27 <p.
2>).
The same year's report by Human Rights Watch mentions
that the Syrian security forces and militias supported by the

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government, known locally as Shabiha, used force against demonstrators (Most of them was peaceful.) daily, often including lethal
force,
that at least in several cases, members of security forces resulted in being shot by a stray bullet or fell a victim to intentional
killing,that in some cases, demonstrators supported by defectors (fromthe armed forces) resorted to violence and, in towns such as Daraa,
the demonstrators set re to government buildings, destroyedbronze statues of President Assad and President Hafez al-Assad,and burned several vehicles belonging to the security forces,
that, according to some eyewitnesses, some members of the
security forces were killed by participants of demonstrations andthe incident generally occurred after the members of security
forces shot participants of demonstrations, andthat testimony of eyewitnesses, including defectors from thearmed forces, participants of protest activities, and journalists indicates that the participants of protest activities were unarmed in
the majority of cases recorded by Human Rights Watch and otherhuman rights organizations (A-All 31 <p. 1 – 2>).

C. Formation of anti-government armed organization and holding of elections (AAll 24, B-All 8, All 11)
In September 2011, the anti-government side announced the formation of a
coalition of activists called "Syrian National Council" (2011), and an armed organization called "Free Syrian Army" was formed by defectors from the government; the two powers agreed to cooperate in November of the same year (However, the Syrian National Council has become dysfunctional due to internal conicts and lack of cooperation with domestic organizations. B-All20 <p. 101>).
The anti-government armed groups have looted military supplies from military bases and secretly provided arms and bullets from outside patrons acrossborders with neighboring countries (B-All 20 <Page 41>).
In November of the same year, the Syrian government agreed to a peace plan
proposed by the Arab League, and based on the peace plan, released 1180
political prisoners arrested in connection with anti-government demonstrations(B-All 12, All 13).
On February 26, 2012, a national referendum to ask the propriety of theconstitutional amendment was carried out, and the new constitution draft wasapproved by 89.4% of af rmative votes. The new constitution draft included theintroduction of a multi-party system and the limitation of the term of of ce ofthe president; it deleted the de facto one-party rule of the Baath Party. However,
the anti-government side called for a boycott.
On May 7 of the same year, an election for the People's Assembly was held

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under a multi-party system for the rst time in practice, but powerful anti-government forces did not take part, and the ruling coalition "National Progressive
Front" won an overwhelming victory, winning about 70% of the votes.

D. Entering a civil war (A-All 24, B-All 7, B-All 11)(a)

President Assad accepted a cease re proposal by former UN SecretaryGeneral Ko Annan, who had been appointed as Ambassador Extraordinaryof the United Nations and the League of Arab States, and the cease recame into effect on April 12, 2012; a UN observer mission to Syria entered
Syria.
On June 16 of the same year, the mission suspended its activities due tothe intensi cation of armed con icts and was dissolved on August 19 of thesame year.
The anti-government forces launched an attack on Damascus on July 15of the same year, but the government intensi ed its offensive and almost
brought down again the anti-government groups in about 10 days. In thenorthern city of Aleppo, anti-government forces launched an attack on May
20, and the government started a mop-up operation on May 28.
The International Committee of the Red Cross (ICRC) announced in Julyof the same year that it would recognize the con ict in Syria as a civil
war3(B-All 20 <p. 37>).
The Syrian government adopted the Anti-Terrorism Law in the samemonth and established the Anti-Terrorism Court in September of the same
year. The Anti-Terrorism Act has also been described as binding on politicalactivists and others for the vague charge of "act of terrorism". (A-All 28 <p.
9>, A-All 49 <p. 11>, B-All 20 <p. 35, 36, 85>.)
On November 11 of the same year, the Syrian National Coalition, a newuni ed organization including the Syrian National Council and internal andexternal organizations, was formed, and the Free Syrian Army joined it (BAll 20 <p. 99, 100>).
The UN announced that as of March 2013, 1 million Syrians had ed thecountry, and according to the UN, at least 70,000 people have died since
the beginning of the anti-government demonstrations (B-All 14).

(b) UNHRC’ s report dated February 5, 2013 mentions
that, because armed anti-government groups launched attacks
from within residential areas where large numbers of civilians
lived, civilians were exposed to artillery bombardment and forced
to evacuate from their homes,that the government forces used armed force to carry out military actions without distinction of citizens or those directly involved

3. Translator’s comment: “a civil war” is a translation of “内戦” in Japanese. However, there is a word of “内線” in the original text. Bothhave same pronunciation, naisenn. From the context, I believe it is a mistake and choose “a civil war.”

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in hostilities,
that the Syrian government was characterized by indiscriminate
and widespread artillery bombardment, frequent urban bombardment, a genocide, indiscriminate artillery bombardments against
civilians, and attacks on civilian groups, and residents of areas
where fell under the control of anti-government forces (B-All 20<p. 48, 50>).
UNHRC’s report dated June 4 of the same year mentions
that the government forces deprived of liberty as a means of
war and did not stop collective punishment of areas that appeared
to support anti-government armed forces,that the government forces generally arrested and detained
people for the crime of exercising their basic human rights and, in
mid-January of the same year, the security forces made mass arrests
in a peaceful protest in Swider,that, in Daraa, the government forces and security forces arrested men on a large scale for only reason appropriate for military
service., andthat the government forces made extensive arbitrary arrests inareas of increased control. (B-All 20 <p. 60>)
Human Rights Watch's report about 2012 mentions
that the security forces arbitrarily arrested, illegally detained,
enforced disappearances, abuses and tortured tens of thousands ofpeople using a huge network of detention facilities in whole Syria,
that many of detained people were young men in their 20s or
30s, but also children, women and older,that arrested people were participants of peaceful protest activities, activists and journalists (who organized the protest activities,
lmed and reported), humanitarian supporters and doctors, andthat in some cases, to urge the activists to give themselves up,
the security forces detained their families including children (B-All
20 <69>).
The UN Human Rights Panel pointed out in September 2013 that a sharp
increase in crime and ill-treatment was reported throughout northern Syria,
and that it was caused by radical anti-government armed groups and foreign
ghters (A-All 3<p. 7>).
The U.S. State Department stated that the Assad regime, to suppress
protest activities against the government, continued to use lethal weapons
indiscriminately, including military attacks on urban and residential areas
across the country (A-All 49 <p. 10>)104

CDRQ vol.11(2)

Kurds in Syria

A.

The Kurds constitute about 9% of Syria's population, most of whom live in
the North and East (A-All 5). The governments of President Hafez al-Assad andPresident Bashar al-Assad restricted the use and education of Kurdish, the publication of Kurdish books and other materials, and cultural expression in Kurdish. The Kurdish political party is illegal. (A-All 1 <p. 61>, A-All 35, A-All 48,
A-All 57, B-All 20 <p. 32, 134>, B-All 76)

B.

President Bashar al-Assad stepped up security operations in the Kurdish region after the passing of the Provisional Administrative Law in Iraq in 2004,
under which the Kurds in Iraq gained autonomy (B-All 76). In March 2004,
when a soccer match between a team mainly composed of Kurds and a teammainly composed of Arabs was held in Al-Qamishli, northeastern Syria, violent
clashes occurred between supporters of both teams, and security forces red 5
live ammunition, killing at least 7 Kurds. Subsequently, protest activities were
held in Kurdish residential areas in northern and northeastern Syria, and Syrian
forces invaded and suppressed them. (A-All 35, B-All 20 <p. 22>, B-All 76)

C.

In addition to the preexisting Kurdish youth organizations, the Regional Coordination Committee (LCCs) was newly established, and anti-government
activities by the Kurds began to be conducted mainly by this committee. The
Regional Coordination Committee is a network of dozens of organizations
called Tansikiyas. The Regional Coordinating Committee joined the Kurdish
youth organization in late 2011 (2011), but soon broke up. (A-All 30, All 36,
All 48, All 57, All 59, All 63)

D.

In April 2011, President Assad issued an order to enable Kurds without nationality to apply for Syrian citizenship who had been registered as foreign
citizens in the Al-Hasakah This resulted in approximately 51000 Kurds receiving identi cation documents that clearly stated their citizenship (A-All 1 <p.
62>, All-5 <p. 11, 12>, B-All 20 <p.141>).
It is reported that the government had used to be tolerant of Kurds but is arrested, detained, and tortured several Kurdish activists (B-All 20 <p. 132>).
It has also been reported
that attacks by the authorities against anti-government forces in
Kurdish areas are not necessarily more intense than in other areas
and, and less violent and that the security forces are often restricted from attacking demonstrations in Kurdish towns (A-All 57 <p.
3>).
The 2014 Operational Guidelines Note issued by the UK Home Of ce men-

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tions
that the Kurds in Syria have suffered discrimination and social
alienation for tens of year under the Assad regime, andthat after the con ict began in March 2011, Syrian Kurds conducted their anti-government protest activities, but recently most of
the ghting has been against Islamist anti-government armed organizations (A-All 49).
Human Rights Watch's 2014 report mentions
that many Kurdish youths joined the anti-government activities
when violence erupted against the Syrian government in 2011, butthat most of Syria's Kurdish political parties took a cautious approach because of government repression and distrust of Syrian
Arab opposition parties, andthat the Syrian government suppressed Kurdish protest activities
but on the other hand implemented its longstanding pledge to
grant citizenship to stateless Kurdish registrants (Estimated 50,000
persons). (A-All 35)
The report of the Independent International Commission of Inquiry in August2012 mentions that in March of the same year, the Syrian government used extremely excessive violence against demonstrators who had been exercising theirright to peaceful protest activities in Al-Qamishli (A-All 58 <p. 4>)

E.

The Syrian government withdrew its security forces from Ahlin, Ain al-Araband Jazira in 2012, except for Al-Qamishli and strategically important areas
around it; after several months of coordination between the PYD (Syrian Kurdistan Democratic Party) and the Syrian government, it is appeared to tolerate
their mutual activities; the Syrian government delegated most of its security
and administrative authority in the region to the PYD (A-All 1 <p. 64>, All 35,
All 57).
In the three northern states of Syria, a temporary government with a local
government was established in January 2014 by an organization led by PYD,
and a temporary constitution was introduced by PYD in the same month. Subsequently, 22 councils were established in each state to deal with security,
justice, diplomacy, health, humanitarian issues, and other administrative issues,
and a two-instance people's court system was also established (A-All 35, All 38<p. 3, 4>).
There have been reports of human rights violations, including arbitrary arrests, abuse of pre-trial detention, and violations of due process, by YPG, a military organization of PYD, and Asayish, a police unit (A-All 19 <p. 8>).
On March 17, 2016, PYD and YPG declared the enforcement of the federal
system in the whole northern area including three northern states which they

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controlled effectively (B-All 77, All 78).

F.

It has been reported that around 2013 the Kurds in northeastern Syria were
often caught in a dilemma of armed groups, and were compelled by government forces or armed opposition groups to support one of them in the face oferce ghting (A-All 49 <p. 8>).
Human Rights Watch's 2014 report mentions
that civilians in areas (where the three Kurdish tribes are themajority) continued to suffer human rights and humanitarian law violations, andthat particularly during and after the ghting in the north andnortheast, [the civilians] suffered serious ill-treatment by non-state
Islamic armed groups such as ISIS and the Al-Nusra Front, including
indiscriminate bombardment in Kurdish areas, attacks targeting civilians, torture and killing (sometimes including beheading) of captured
civilians or combatants (A-All 35).
As of the middle of 2014, ISIS had established control over northern andnortheastern Syria (The establishment of the state was declared in June of thesame year.), and the expansion of ISIS's area of control and its brutal treatment
against its citizens were considered to be the causes of the signi cant displacement. The report of the Independent International Commission of Inquiry in
February 2015 mentions that ISIS forcibly displaced Kurds from Racca in July
2013 and forcibly banished Kurds living in Aleppo in November 2014. (A-All
19 <p. 2-4>, All 25, All 38 <p. 3>, B-All 53>
Situation in Daraa

(3)

A.

The Daraa province is located in the southern part of Syria, bordering neighboring Jordan, and the cities in Daraa province were the strongholds of antigovernment armed forces (B-All 9, All 20 <p. 47>, All 79).

B. Since March 2011, it has been reported that government forces and security
forces have blockaded the city of Daraa and surrounding cities and villages
one after another to prevent the acquisition of food and daily necessities, destroyed water tanks and pipes, and sniped at residents who had ed outside inbreach of curfew (A-All 26, All 31, All 38, All 39).
The Independent International Commission of Inquiry’s report in February
2013 mentions
that government army and militias of the government army deliberately destroyed houses and shops suspected of being members or

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supporters of the anti-government forces during the mopping-up operation, in addition, the destruction included arson, explosions, andmassive destruction, and loot was frequently implemented before thedestruction,that these actions were implemented at several places in Daraa
province in October 2012, andthat bombardment and subsequent ground sweeps by various government security forces and militia groups of government forces werecarried out in Tafas, Daraa province, and it is estimated that between
260 and 350 artillery shells were red into the urban area over many
days, thus hundreds of people were killed or injured as many civilian
targets were repeatedly attacked.
The same report also mentions, when several media reported the incident inHarak, a district in the Daraa governorate, in August of the same year,that the government army regained control of the town after 18days of ghting with the Free Syrian Army,that the residents who returned to Harak found arson houses andbodies severely injured by shrapnel, gun re from close range, andknives, andthat the bodies included women and children (B-All 20 <39>).
According to a U.S. State Department report of 2013, at a checkpoint in
Daraa, government army and security forces arrested men simply because they
were old enough to serve in the military (A-All 28 <p. 7>). A report by the
UNHRC in June of the same year mentions that government forces made extensive arbitrary arrests in areas of increased control and that they carried out massarrests in Daraa in mid-March of the same year (B-All 20 <p. 60>).
The report of the Independent International Commission of Inquiry in February 2014 mentions that the government army made arbitrary arrests during or
immediately after the ground war, carried out arrest operations in Daraa
province in September 2013, targeting adult men and young boys, but also detained children, women and the elderly (A-All 34 < p.2>). In this connection, in
March of the same year, Syria's of cial news agency SANA reported
that some satellite broadcasting stations reported young men wereforced to stop at checkpoints and serve in the military but this was nottrue, andthat such reports were completely false (B-All 20 <p. 77>).
During the period from March 2011 to around May 2012, there were several
reports that the security forces shot demonstrators and others in Al-Hara, Daraa
Province (A-Ni 7).
(4)

Military service

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In Syria, the National Military Service Act provides for the compulsory military
service of males aged 18 to 40 excluding Kurds without nationality. As a retired
reserve, it is obliged to reenlist for 5 years by the ages of 40 or 45. Conscientious
objection to military service is not provided for by law, and punishment for evading
the draft is imprisonment for a maximum of 5 years (It allows people who do notwant to serve in the military to pay exemption fees to avoid this.). The UK HomeOf ce's January Operational Guidelines Note in 2013 mentions that Syrian soldiers
who escaped were forced to re on unarmed civilians and opponents, including
women and children, and that they were at risk of being shot if they refused to doso. (A-All 1 < p. 37>, All 5 <p. 17, 18>, B-All 20 < p. 73-78>)
In March of the same year, it was reported that the Syrian government declared
its readiness to mobilize, summoned reservists up to the age of 35, and several students were arrested at a checkpoint and immediately transferred to the army to enlist (B-All 20 <p. 78>). Al-Hayat, an Arabic-language newspaper headquartered in
London, reported in January of the same year that the Syrian authorities had createdmother country defense forces separate from the regular army and that its personnel
was targeted at a wide range of people, from civilians who had completed military
service to those who had joined military service or were newly drafted into military
service (B-All 82).
B.

A report of Danish Immigration Service et al in May 2010 mentions
that a man who evaded military service duty (for 21 months.)
told
that those who were abroad at the time of his convocation anddid not comply with the convocation was immediately arrested by
the military police upon his return, and sentenced to imprisonmentfor 2 to 3 months,
that those who did not comply with the convocation and lived
in Syria were arrested, and sentenced to imprisonment for 3
months,that those who did not comply with the convocation even after
the imprisonment were sentenced to additional imprisonment for 6
months, andthat, according to an information source that a joint investigation team contacted with, a punishment for those who did notcomply with the convocation was [imprisonment] for from 2
months through 6 months but the imprisonment was not applied
actually for the reason that President Assad announced an order
granting amnesty every year (A-All 1 <p. 37, 38>, B-All 20 <p.
75>).
Syria's of cial news agency SANA reported in November 2011 that President
Assad issued a legislative order granting amnesty to people of suitable age who
failed to undergo conscription examinations or refused to join the army without

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reasonable grounds (B-All 20 <p. 76, 77>)
C. A report of the Danish Immigration Bureau mentions
that, in the early stages of the con ict, the Syrian government
implemented conscription by sending troops to areas known to beanti-government, along with a list of names of those who had beensummoned,that the security forces searched the relatives' homes of those
who were the subject of conscription, demanded identi cation [ofthe subject], and sometimes examined regarding those who were
not there,that in the areas controlled by the government, administrative
organizations are still functioning and the authorities search forconscription subjects in various ways and, when necessary, go to
the families of conscription subjects, conduct house search, issue
draft cards, and have intelligence agencies search for those who
evade the military service,that if those who evade the military service are arrested, heshall be detained in a security forces facility and subsequently
taken to a military court in Damascus, andthat there is a risk of torture and ill-treatment while in the custody of the security forces, and the OHCHR has reported cases of
torture and ill-treatment in the Army and Air Force intelligenceagencies (A-Ni 10).
Views of international organizations
An Operational Guidelines Note issued by the UK Home Of ce in 2014
mentions that Syrians of Kurdish origin are subject to national, social and legal
discrimination and discriminatory treatment on their ethnic basis; especially if
a person is treated as stateless, has activist experience, or is regarded as a supporter of anti-government or anti-government armed groups, the case is likely
to amount to state persecution and the person will usually be granted a refugee
status. (A-All 49 <p. 9>).
In addition, the Operational Guidelines Note mentions
that those regarded as anti-government supporters or activists are
subject to the attention of the Syrian authorities and are at risk of being treated in a manner equivalent to persecution, thus they are
refugees,that the government has not allowed any form of activities against
the Assad regime, those who have not been regarded as political inparticular, such as low-status activists, individuals who criticize thegovernment including citizen journalists, and families of those who

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are regarded as anti-government activists, are at risk of being persecuted or ill-treated,that the Syrian government is oppressive towards those opposed to
the government, the activities of the opposition are not allowed in the
country, the level of atrocities by the government that have led tokillings has gradually increased since March 2011, thousands of civilians have been killed in the streets, arbitrarily arrested and detained,
and Syrian civilians have been targeted and shot by government
snipers simply by recording demonstrations on mobile phones, andthat Refugee status should be granted if the applicant has previously participated in political activities of the anti-government, islikely to participate in such activities in the future because of his beliefs, or is regarded to have views against the government when hereturns to Syria.
An Operational Guidelines Note issued by the UK Home Of ce in 2013
mentions that in light of the situation in Syria, it may be appropriate to allow
protection if the applicant is found to be a deserter of the Syrian army or if there
is a high likelihood of them being drafted if they are returned to the country
since the Syrian authorities will consider them opponents to the regime (A-All 5<p. 19>)“The About the Need for International Protection of People Evacuating fromthe Syrian Arab Republic <Update 1>" by the UNHCR in December 2012
states that, regarding the large number of Syrians seeking international protection, it is determined that there is a high possibility that they will meet the requirements provided for in the de nition of refugees in the Refugee Convention because their well-founded fears are related to one of the Convention
reasons in many cases.
“The About the Need for International Protection of People Evacuatingfrom the Syrian Arab Republic <Upgrade 2>” by the UNHCR in October
2013statesthat it is considered that most Syrians seeking international protection are highly likely to meet the requirements for the de nition of
refugees under the Refugee Convention because they have a wellfounded fear of being persecuted in connection with one of thegrounds of the Convention, andthat when refugee recognition applications are determined on an
individual basis, those who are in fact or are deemed to be opposed(This includes, but is not limited to, members of political opposition
parties, human rights and civil society activists, protestors, citizens
residing in cities, villages and towns opposed to the government (orthose deemed to be so), defectors and deserters from the military, draft
dodgers, and the families and associates of political opponents to the
Syrian government (or a person deemed to be so), those who are op-

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posed to armed groups in areas under the effective control of antigovernment armed groups and Kurdistan armed groups (or those who
deemed to be so), and Kurdish or any other minorities, etc., (including
those who fall under some of above) are considered to be likely torequire international protection referred to in the Refugee Convention(A-All 3 <p. 13, 15, 16>).
The About the Need for International Protection of People Evacuating fromthe Syrian Arab Republic <Update 3>" by UNHCR in October 2014 statesthat since the publication of the above-mentioned Update 2, thesituation in Syria has worsened further in terms of security, humanrights, forced movement, and humanitarian needs, andthat the majority of Syrians seeking international protection have awell-founded fear of being persecuted in connection with one of thegrounds of the Convention, and therefore they are likely to meet therequirements for the de nition of a refugee under the Refugee Convention (A-All 19, <p. 1, 19>).
4.

Consideration of the domestic situation in Syria(1)

Syria's response to anti-government activities
According to Found Fact 3 (1), it is recognized that Syria was in a state of civil
war in 2012 and even ordinary civilians may be at risk of harm that they become
involved in armed con ict between government forces and armed oppositiongroups.
However, concerning the Syrian government's use of force to suppress peacefulanti-government demonstrations or protest activities, there are some reports as
Found Fact 3 (1) B (C), on the other hand, Ex-Ambassador Extraordinary and Plenipotentiary to Syria said about the anti-government activity on March 18, 2011, in
Daraa Found Fact 3 (1) B (A), “As for the situation since the day, a scenario wasdrawn in which the government mobilized security forces to use force against apeaceful uprising of people, and a victim was born by the shooting. However, if
we redraw the story by considering the testimonies of government of cials, thescribbled children's case was not serious, and at least outside efforts were made toincite demonstrations. Considering the smuggling activities that have been continuously carried out in the tribes of Daraa for a long time and the strong traditionof arms possession in the tribal community, the previous understanding that the
popular uprising in Daraa was a completely natural and peaceful demonstrationneeds to be reexamined from a new perspective and thoroughly. The Assad administration was wary of the popular uprisings in Daraa, saying that it could detect,through activities of of ciating monk P 20 in Qatar, the existence of the Muslim
Brotherhood at an early stage behind the popular uprisings.” (B-All 75 <p. 34>)
In September of the same year, a cabinet order was issued, which is said to give

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the government a broad range of power concerning freedom of assembly (Found
Fact 3 (1) B (B)) and the Anti-Terrorism Law was adopted and an Anti-Terrorism
Court was established in 2012 (Found Fact 3 (1) D (A)). On the other hand, theEmergency Situation Law was abolished in March 2011, pardons were granted to
all political prisoners in May of the same year, a new constitution with a multi-party
system and a presidential term limitation was approved by a national referendum in
February 2012, and elections of people’s council were held under a multi-party
system (Found Fact 3 (1) B (A), C).
In June 2011, 120 members of the security forces were killed by armed gangs in
the northwestern city of Jisr ash-Shughur (Found Fact 3 (1) B (B)), also the anti-government side had already formed an armed group from an early-stage (Found Facts
3 (1) C). The Syrian government pointed out attacks against the Syrian military andsecurity forces from the beginning (Found Fact 3 (1) A (A), (B)). Therefore, it is necessary to carefully consider whether the Syrian government used forces against amere peaceful anti-government demonstration or a protest activity.
Considering this point of view, there is room for doubt as to whether the reportsof the Syrian Government's use of force to suppress peaceful anti-government
demonstrations or protest activities can be immediately acknowledged as such.
Particularly in areas other than those regarded as strongholds of anti-government
armed forces and areas in con ict, it is necessary to examine concretely, based on
the individual circumstances of applicants for recognition of refugee status, whether
if the objective circumstances that could lead to fear of persecution can be recognized. The views of the UK Home Of ce and UNHCR as Found Fact 3 (5) cannot
be construed to mean that applicants for recognition of refugee status are uniformly
recognized as refugees regardless of their individual circumstances.
(2)

The Syrian Government's Response to the Kurds
As pointed out in 3 (2) D, the Syrian government has been reported to have arrested, detained, and tortured several Kurdish activists since March 2011, but the
speci c attributes of the targeted activists are unknown. It has also been reported
that attacks by the authorities against anti-government forces in Kurdish areas are
not necessarily more violent than in other areas, and that the security forces areoften restricted from attacking demonstrations in Kurdish towns.
As pointed out in Fact 3 (2) D, the report of the Independent International
Commission of Inquiry states that the Syrian government used extremely excessive
force against the demonstrators who were exercising their right to peaceful protest
in March 2012 in Al-Qamishli. However, it is not clear whether the demonstration
was truly peaceful, and what extremely excessive force speci cally means.
In addition, as stated in 3 (2) E and F, the Syrian Government withdrew its security forces over several months in 2012, except for Al-Qamishli and strategic areas
around that, and the PYD has come to be in charge of security and administration.
Even if the Kurds in Northeast Syria are possible to be involved in armed con ict
between government forces and anti-government armed groups, there is no evid-

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ence to nd that the Syrian government (or PYD) persecuted or attempted to persecute the Kurds who participated in peaceful anti-government demonstrations for
only such a reason.
The Syrian Government’s Response to People from Daraa Province(3)

According to Found Fact 3 (3), there is a district in Daraa province that serves asa base for anti-government armed groups, and since March 2011, there have been
many armed clashes between government forces and anti-government armed
groups; it can be seen that in the process, the government forces targeted civilians
without distinguishing them. However, it cannot be found that the Syrian government has persecuted or attempted to persecute people from Daraa province or its
residents in general. Therefore, it is necessary to examine concretely whether anapplicant for recognition of refugee status from Daraa province has an objective
reason to fear persecution in light of the individual circumstances.
5.

Found Facts regarding Plaintiff P3

The facts mentioned in (1) to (5) below are possible to be found based on the following evidence and the purport of the oral argument.
(1)Life in Syria

A.

Plaintiff P3 (Born in *** month, 1984.) belongs to the family line of the patriarch of the blood relative group of Kurds called Al-Abb <p. 14>, Plaintiff P3as
Sain. Al-Abbas Sain is an in uential tribe in the Al-Malkiya district of Al-Hasakah province in northeastern Syria. (A-Ha 2, Ha 4, B-Ha 15 <p. 14>, examination record of Plaintiff P3 <p. 1, 2>)

B.

Plaintiff P3, after graduating from elementary school at the age of 12, worked
in the farms and bakeries managed by his father and took over the management of the farms from the age of 18. When his father died at the age of 24,
he also took over the management of the bakeries. Plaintiff P3 lived a stable
life with an annual income of several million Syrian pounds. (A-Ha 2, Ha 7,
B-Ha 11, Ha 13 <p. 11,12>, examination record of Plaintiff P3 <p. 6>)

C.

Plaintiff P3 completed military service in July 2005 (A-Ha 2, Ha 3, B-Ha 13<p.4>, examination record of Plaintiff P3 <p.6>).

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Participation in anti-government demonstrations

A.

Plaintiff P3 has participated in demonstrations held around Al-Malkiya about
2 times a week since around January 2012. From several hundred to about1000 persons participated in the demonstration in which Plaintiff P3 participated (A-Ha 1, Ha 2, B-Ha 19 <p. 8>, examination record of Plaintiff P3 <p. 3,
4>).

B.

Plaintiff P3 witnessed that parents with an infant were shot to death when hewas watching a demonstration in Al-Qamishli, Al-Hasakah province aroundMay 201, examination record of Plaintiff P3 <p. 3>).
Plaintiff P3 then became a member of several Tansikiyas, calling for participation in the demonstrations, wearing special clothes to guide the demonstrations, distributing lea ets, and arranging buses to carry the demonstrators( A-Ha
2, B-Ha 15 <p. 5-7>, examination record of Plaintiff P3 <p. 3, 4, 10, 11>).

(3)

Departure fro Syria

A.

Plaintiff P3 was issued his passport on May 13, 2012 (B-Ha 3). Plaintiff P3
wanted to go to the United Kingdom, where his brother, P 15, was staying andpaid money to a broker to arrange departure procedures (A-Ha 2, B-Ha 13 <p.
7, 8>, Ha 15 <p. 12>, examination record of Plaintiff P3 <p. 15>). Plaintiff P3
left Syria from Damascus Airport on August 20 of the same year, arrived at Narita Airport on the 21st of the same month, received a stamp of approval for
landing from an immigration inspector at Narita Airport Branch Bureau stating
his status of residence as "temporary stay" and the period of stay as "15 Days"
and landed in Japan (B-Ha 2).

B.

Plaintiff P3 left Japan for France on August 23, 2012. Plaintiff P3 was informed in France that he could not go to the United Kingdom and was asked
whether or not he would apply for recognition of refugee status in France, andhe did not apply for recognition of refugee status. Then, his entry into France
was refused and he was sent back to Japan by an attendant of the French authorities, and he arrived at Narita Airport on May 31. (Plaintiff P3 did not havehis passport when he arrived at Narita Airport. B-Ha 2, from Ha 5 to Ha 9, Ha
15 <p. 16, 17>, Ha 19 <p. 17, 18>)

C.

On August 31, 2012, the immigration inspector at Narita Airport Branch interviewed Plaintiff P3 through an interpreter; Plaintiff P3 stated that his brotherhad been pursued by the government and that he had been told to appear for
military service. He also stated that he had started to participate in anti-estab-

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lishment meetings and that it became dangerous for him therefore he had decided to go to England where his brothers lived. (B-Ha 5.)

D.

Plaintiff P3 submitted his application for landing permission for temporary
protection to the Immigration Inspector General of Narita Airport Branch on
September 4, 2012. The application stated that he had planned and participated in an anti-Syrian government demonstration, that he had been wanted by
the government, that he had left the country to escape from it, that his brotherhad been wanted by Syria's Intelligence Department because his brother had
left the military and refused to kill people of the country, and that Plaintiff P3
had also been wanted by Syria's Intelligence Department for planning and participating in an anti-Syrian government demonstration (B-Ha 6).

E.

On September 5, 10, 12, and 19 2012, the Immigration Inspector and staff
members of Narita Airport Branch interviewed Plaintiff P3 through an interpreter (B-I 9, from Ha 7 to 9). On October 19 of the same year, the Immigration Inspector of Narita Airport Branch permitted Plaintiff P3 to land for temporary protection (Prerequisite Facts (4) A).

(4)

Status of Residence in JapanA.

Plaintiff P3 received permission to acquire the status of residence on February 1, 2013, with the status of residence of "Speci c activity.", the period ofstay of "Six months", and designated activities of "Routine activities conductedby a person staying in Japan who is applying for recognition of refugee status
or ling an objection (Excluding activities related to the management of business involving income or activities for which the person receives areward)." (B-Ha 2).

B.

Plaintiff P3 applied for permission to change the status of residence on
March 18, 2013, and on the same day received permission to change thestatus of residence, with the status of residence of “Speci c activity.”, the period of stay of “One year.”, and designated activities of “Activities by which aperson staying in Japan, for the time being, is employed at a public or privateorganization in Japan and receives a reward due to special circumstances
arising in the country of the person’s nationality or the country where the person had a habitual residence. (Excluding activities for which a person receives
a reward for engaging in the adult entertainment business stipulated in Article
2, Paragraph 1 of the Law on Control and Improvement of Amusement Business, or at a business establishment where a store-type adult entertainment
business stipulated in Paragraph 6 of the same article is operated, or activities

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for which a person engages in the non-store-type adult entertainment businessstipulated in Paragraph 7 of the same article, the video-transmitting type adultentertainment business stipulated in Paragraph 8 of the same article, the storetype telephone introduction business stipulated in Paragraph 9 of the same
article, or the non-store-type telephone introduction business stipulated in
Paragraph 10 of the same article.)”C.

On February 26, 2014, March 18, 2015, March 16, 2016, and February 20,
2017, Plaintiff P3 received permissions for extension of the period of stay withthe period of stay "One year." (B-Ha 2, Ha 28)

D.

On July 13, 2017, Plaintiff P3 received permission to change the status ofresidence with the status of residence of “Permanent resident.” and with theperiod of stay “One year. (B-Ha 28)”

(5)

Condition of the FamilyA.

P3’s wife and others received their passports on July 23, 2013 (from B-Ha 21
to 23).
P3’s wife and others arrived at Narita Airport on January 23, 2015, after living
in a refugee camp in Iraq. They landed in Japan with special landing permission(B-Ha 19 <p. 15>, Ha 25, Prerequisite facts (4) D).

B.

Plaintiff P3's second younger brother, P15, was granted refugee status in the
United Kingdom on March 15, 2013 (A-Ha 6-1, 6-2).
Plaintiff P3's third younger brother, P17, was granted refugee status in the
United Kingdom in August 2016 (A-Ha 5-1, 5-2).
Supplementary explanation on the above fact ndingsA.

A-1. Plaintiff P3 stated that on July 15, 2012, the security forces visited
Plaintiff P3's home and beat the mother of Plaintiff P3 and asked for thewhereabouts of Plaintiff P3 (A-Ha 2, examination record of Plaintiff P3 <p. 5>.
Plaintiff P3 explained that the incident occurred on July 9 of the same year
when the immigration inspector at Narita Airport Branch interviewed him on
September 5 of the same year. B-Ha 7.).
A-2. However, there is no evidence to support the above statement made by
Plaintiff P3, and the statement made by Plaintiff P3 lacks concreteness. The
statement made by Plaintiff P3 does not clarify the grounds that the person who
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visited his home was a member of the security forces, and it is not clear why the
security forces visited Plaintiff P3's home.
Plaintiff P3, in an investigation by the refugee inquirer, statedthat he was sheltered in the house of an acquaintance because hecould not return home, andthat the acquaintance’s son heard that the police told Plaintiff P3’s
family that the police would arrest Plaintiff P3 no matter where he washiding when the acquaintance's son checked Plaintiff P3’s house (BHa 15 <p. 9, 10>).
However, it is not clear from whom the son of the acquaintance above
heard what story and the reason why the police intended to arrest Plaintiff P3.
Plaintiff P3 statedthat he had taken the children of the village to his home andthat he heard that the reason was that Plaintiff P3 had participated in thedemonstration (examination record of Plaintiff P3, <p. 15>); however, it is notclear when Plaintiff P3 was talking about, and it is also not clear from whom thechildren of the village heard what story, and it can be considered that the reason(i.e. Because Plaintiff P3 participated in the demonstration.) was just an understanding of his family.
Plaintiff P3 further stated that although he had not seen the arrest warrant
issued for him, the security forces would not have come to his home unless anarrest warrant had been issued and that the arrest warrant should have been issued, but he only stated his guess.
A-3. According to the above statement (a) made by Plaintiff P3 cannot be accepted, and the fact that, in July 2012, the security forces visited Plaintiff P3's
home and beat Plaintiff P3's mother to nd Plaintiff P3 cannot be found.

B.

Plaintiff P3 statesthat he was told by the broker who requested departure proceduresthat since Plaintiff P3 was wanted, he was needed a bribe of US $5000 by agovernment of cial andthat after arriving at Narita Airport on August 21, 2012, he telephoned
his second brother, P15, and heard that Plaintiff P3 was wanted (A-Ha 2, examination record of Plaintiff P3 <p. 15>).
However, it is not clear how the broker above and P15 came to know that
Plaintiff P3 was wanted; therefore it cannot be found that Plaintiff P3 waswanted based on the above statement of Plaintiff P3.

C.

Plaintiff P3 states that after Plaintiff P3 left Syria, a judgment document stating that Plaintiff P3 shall be sentenced to imprisonment was placed in a mailbox of his home (examination record of Plaintiff P3<p. 13>). Plaintiff P3,
however, stated that the content of the judgment was con rmed by the uncle

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of Plaintiff P3 and that the judgment document was in the hands of Plaintiff P3
at the time of the examination, but his counsel decided not to submit it to thecourt. If the judgment document as stated by Plaintiff P3 is at his hand, there is
no reason not to submit it as evidence; therefore, at least, it cannot be foundthat Plaintiff P3 was sentenced to imprisonment for participating in the demonstration.

D.

6.

Regarding the nding of (3) C above, Plaintiff P3 stated that he did not tellthe immigration inspector that he had been told to appear for military service,
etc. (examination record of Plaintiff P3<p. 19>); however, the interview record(B-Ha 5) prepared at that time states that Plaintiff P3 came to participate in ananti-establishment meeting, sensed the danger of his own life and escapedfrom Syria in line with Plaintiff P3's assertion in this case; it is dif cult to consider that contents which Plaintiff P3 did not say were recorded, even taking
into consideration the fact that interpretation was used. The above statementof Plaintiff P3 cannot be accepted.
Whether or not Plaintiff P3 is a refugee(1)Participation in Anti-Government Protest ActivitiesA.

As Found Facts 5 (2), from around January 2012, it is found that Plaintiff P3
participated in demonstrations held in the vicinity of Malkiya about 2 times aweek and became members of several Tansikiyas, calling for participation indemonstrations, guiding demonstrations in special clothes, and distributing
yers.
However, as stated in 4 (1) above, there is room for doubt as to whether
the report that the Syrian Government used force to suppress peaceful anti-government demonstrations or protest activities is immediately acknowledged assuch, and concrete consideration should be given to the speci c circumstancesof Plaintiff P3.
The anti-government demonstration in which Plaintiff P3 participated washeld in a region in the northeastern part of Syria, around Malkiya, Hasaka
province. There is no evidence to prove that this region was a key place foranti-government activities, and the scale of the demonstration ranged from several hundred to about 1000 people. There is no evidence that the demonstration was controlled by the Syrian government. Plaintiff P3 participated in thisdemonstration for approximately half a year.
As stated in Found Facts 5 (2) B, it is found that Plaintiff witnessed theshooting of parents with an infant at a demonstration in Al-Qamishli, the sameprovince. However, Plaintiff P3 did not participate in the demonstration itself,

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and there is no evidence to prove how the demonstration was held.

B.

(2)

Plaintiff P3 belongs to the family line of the patriarch of the blood relative
group Al-Abbas Sain. Plaintiff P3 states that it was possible to invite many
people to participate in demonstrations by participating in demonstrations by
Plaintiff P3 himself and calling for participation(A-Ha 2, examination record of
Plaintiff P3 <p. 2, 9>), and he states that the leader of the Malkiya organization
told that if more than one organization cooperates, a large demonstration canbe made thus Plaintiff P3 belonged to more than one Tansikiyas and intended
to hold a large demonstration (B-Ha 19,p. 6>, the examination of Plaintiff P3<p. 18, 19>); however, there is no adequate evidence to show how many theparticipation of Plaintiff P3 increased the number of participants. In addition,
Plaintiff P3 states that P14 was killed (B-Ha 15 <p. 7>, examination record of
Plaintiff P3 <p. 18, 19>); but the statement is uncertain because it is based on
rumors that P14 was killed, and Plaintiff P3 does not state the speci c processes and circumstances of the murder, thus it is impossible to accept such afact.
The fact that the security forces visited his homeA.

As stated in 5 (6) above, the fact that the security forces visited the home ofPlaintiff P3 and beat the mother of Plaintiff P3 in July 2012 to ask where
Plaintiff P3 was located cannot be found, nor can the fact that Plaintiff P3 wassentenced to imprisonment for participating in the demonstration be found.

B.

Even if it was true that the security forces visited the residence of Plaintiff
P3, according to the fact that Plaintiff P3 stated to the immigration inspector
that he had been asked to appear for the military service as mentioned in 5 (3)C, it can be considered that the security forces visited the residence of Plaintiff
P3 for conscription or that he was sentenced to imprisonment for evading military service (Plaintiff P3 completed his military service in July 2005 mentioned
as Found Facts 5 (1) C. However, as Found in Facts 3 (4) A, it cannot bedenied that he might have been drafted as a reserve duty after retirement.).
As mentioned in 3 (4) A, there is a possibility that a person may be sentenced to imprisonment for evading military service in Syria; however, since themandatory military service by the state itself cannot be denied, excluding thecase that the punishment is arbitrary or excessive, it cannot be regarded as persecution in itself.
In addition, in light of the fact that President Assad has granted a generalamnesty to draft dodgers even after March 2011 (Found Facts 3 (4) A.), there isno suf cient evidence to show that arbitrary punishment or excessive punish-

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ment is being imposed on draft dodgers in Syria.
As mentioned in 3 (3) B, there are reports that the government and security forces made arbitrary arrests; however, the details of these arbitrary arrests
are unclear even based on these reports. The plaintiffs point out the treatment ofsoldiers who refuse to attack civilians, but this does not mean that draft dodgers
are generally at risk of persecution.
(3)

(4)

Regarding the fact that they are Kurds and othersA.

As mentioned in 4 (2) above, there is no evidence that the Syrian government has persecuted or attempted to persecute Kurds who participated inpeaceful anti-government demonstrations for such reasons.

B.

As mentioned in 5 (5) B, the second and third brothers of Plaintiff P3 havebeen granted refugee status in the United Kingdom. However, it is not clear
what speci c circumstances were used to grant refugee status to both of them,and this does not provide a basis for Plaintiff P3's refugee status.
Summary

According to the above discussion, even if the found facts are taken together, it is impossible to recognize the objective circumstances in which Plaintiff P3 fears persecution, and
it is impossible to recognize Plaintiff P3 as a refugee. Therefore, the administrative disposition on P3 disposition is legal.

PART V. CONCLUSIONAs described above, since the lings of Plaintiff P1 and Plaintiff P2 and the mandamus
actions of Plaintiff P3 and Plaintiff P4 are unlawful, both of them shall be dismissed. Since
the other claims of Plaintiff P3 and Plaintiff P4 are groundless, both of them shall be dismissed. The judgment shall be rendered as stated in the main text.
(Omitted)[end of document]

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DENIAL OF THE REFUGEE STATUS OF A
BURMESE ACTIVIST FOR DEMOCRATIZATION
BY DEMANDING STRICT LEVEL OF BURDEN
OF PROOF ON HIS ACTIVITIES, ETC (Decisionin favor of the immigration)―Heisei 26 (2015) (Gyo-u) No. 731
Tokyo District Court, 23th February 2018
(Myanmar)Translated by Koei Matsushita2
JUDGMENT
Plaintiff
Z1
Attorney for the same, Mr. Hironori Kondo, Mr. Shotaro Ogawa, Mr. Shogo
Watanabe, Mr. Yusuke Ogasawara, and others, as shown in the attached list of
attorneys 1.
Defendant
The State
The representative and the administrative agency concerned Minister ofJustice Z2
Designated attorneys Z3 and others, as shown in the attached list of attorneys 2.

THE MAIN TEXT OF JUDGMENT
1.

The Plaintiff’s claims shall be dismissed.

2.

The Plaintiff’s shall bear the court costs.

1. 平成30年2月23日判決言渡、平成27年(行ウ)第73号

難民の認定をしない処分取消請求事件

2. Attorney at law (Japan), Mimura Komatsu & Yamagata Law rm

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FACTS AND REASONSPART I. CLAIM
The administrative deposition of November 5, 2010, not to recognize thePlaintiff as a refugee by the Minister of Justice shall be revoked.

PART II. OUTLINE OF THIS CASE
In this case, the Plaintiff, who is a man of the nationality of the Federal
Republic of Myanmar (hereinafter referred to as "Myanmar".), applied to the
Minister of Justice for recognition of refugee status for the second time on
September 1, 2009, as a refugee with suf cient reason that the Plaintiff was
likely to be persecuted on the grounds of his political opinion. The Minister ofJustice (the administrative agency responsible for the disposition) rejected thePlaintiff's recognition as a refugee on November 5, 2010 (hereinafter referred toas the "Denial of Recognition of Refugee Status".). The Plaintiff appealed thisand requested the defendant state to which the administrative agency belongs to
revoke the denial of recognition of refugee status.

Prerequisite Facts (that are found easily by following shreds of evidence orthere is no dispute between the parties.)(1)

Origin of the Plaintiff
A Plaintiff is a man of Myanmar nationality who was born on ***** in 1967.

(2)
The Plaintiff's entry, overstay, and the rst application for recognition of refugee
statusThe Plaintiff arrived in Japan from the Republic of Korea (hereinafter referred
to as "South Korea".) on October 2, 1998, and entered Japan with permission
to land with a "temporary stay." as to the status of residence and a period ofstay of 15 days. However, without obtaining an extension or change of periodof stay, he stayed in Japan beyond the period of stay after October 17.

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B.

On October 20, 2004, the Plaintiff was arrested by a police of cer on suspicion of violating the Immigration Control and Refugee Recognition Act (Hereinafter simply referred to as "the Law") (illegal overstay.). The Immigration Inspector of the Tokyo Immigration Bureau (hereinafter referred to as "Tokyo Immigration Bureau".) found on the 28th of the same month that the Plaintiff
came under an illegal alien stipulated in Article 24, item 4 (b) of the Law. On
the same day, Plaintiff requested an oral hearing.

C.

The Plaintiff led an application for recognition of refugee status with the
Minister of Justice on October 29, 2004 (hereinafter referred to as "First
Refugee Recognition Application.”).

D.

On November 15, 2004, the Special Inquiry Of cer of the Tokyo Immigration Bureau judged, after the oral hearing, that there was no error in the ndings of the immigration inspector mentioned in B above. The Plaintiff led an
objection on the same day.

E.

Concerning the Plaintiff's rst application for recognition of refugee status,
the Minister of Justice decided not to recognize the Plaintiff as a refugee ofDecember 16, 2004 (hereinafter referred to as "The rst denial of refugee
status.".), and also decided that the Plaintiff's objection mentioned in D above
was groundless. The Tokyo Immigration Bureau Chief Examiner issued a deportation order (hereinafter referred to as "the deportation order".) to thePlaintiff on the following day, December 17.
On March 15, 2005, the Plaintiff led an action with the Tokyo District Court
for the revocation of the aforesaid determination and the deportation order.

F.

On the other hand, the Plaintiff led an objection with the Minister of Justiceon December 21, 2004, based on Article 61, 2-9, Paragraph 1, Item 1 of the
Act before the revision by Act No. 69 of 2014 (hereinafter referred to as "therst objection.".) against the rst denial of refugee status. The Minister ofJustice, on April 8, 2005, decided to dismiss the rst objection (hereinafter referred to as "the decision of the rst objection".) and noti ed the Plaintiff of it
on May 14.
On October 7 of the same year, the Plaintiff led an action with the Tokyo
District Court for revocation of the rst denial of refugee status.

G.

After the arrest of the offender referred to in B above, the Plaintiff was[handed over to the Tokyo Immigration Control Of cer on the same day and]detained at the Tokyo Immigration Detention House by the of cer under a detention order, and then continued to be detained there until he was granted a

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provisional release and discharged on June 29, 2005 (hereinafter referred to as"Provisional release in this case.”).

H.

(3)

The Tokyo District Court consolidated the oral arguments of both actions in E
and G above, and rendered a judgment on July 27, 2007, dismissing theclaims of Plaintiff (Exhibit A1. hereinafter referred to as " the Judgment of priorsuit.".).
The Plaintiff appealed against the Judgment of the prior suit and the Tokyo
High Court dismissed the appeal On March 6, 2008. The Plaintiff further led
a nal appeal and a petition for acceptance of nal appeal on March 26, 2009;
the Supreme Court dismissed the nal appeal and decided not to accept [thepetition] as the nal appellate court, thereby nalizing the Judgment of priorsuit (Exhibit A2 and 3).
The Plaintiff's second application for refugee statusA.

The Plaintiff led a second application for recognition as refugee status with
the Minister of Justice on September 1, 2009 (hereinafter referred to as "theapplication for recognition of refugee status".). In response, the Minister ofJustice decided not to recognize the refugee status on November 5, 2010 (thedenial of recognition of refugee status) and noti ed the Plaintiff of the decisionon the 18th of the same month. On the 25th of the same month, Plaintiff led
an objection to the denial of recognition of refugee status (hereinafter referred
to as “the objection”, Plaintiff’s Exhibits A from 1 through 4 and Defendant’s
Exhibits A 5, 8 and 9.).

B.

When the Minister of Justice heard the opinions of the refugee examination
counselors on the objection, 2 of the 3 refugee examination counselors statedtheir opinion that the Plaintiff came under would fall under the de nition of a
refugee (hereinafter referred to as "the majority opinion of the Counselors".);however, by adopting the opinion of the other refugee examination counselor
who stated that the Plaintiff did not come under failed to meet the de nition ofa refugee, the Minister decided to dismiss the objection on August 22 (hereinafter referred to as "the Decision on the objection".) and noti ed the Plaintiff of
this on June 20, 2014 (Plaintiff’s Exhibit A5 and Defendant’s Exhibit A12).

C.

On February 18, 2015, the Plaintiff led the action seeking revocation of thedenial of recognition of refugee status (an obvious fact).

(Omitted)

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PART III. THE DECISION OF THIS COURT
Found facts
According to the preamble facts and the following evidence, etc., the following facts
are found, and evidence against them cannot be relied upon.
(1)

General situation in Myanmar

A. The Establishment of the Military Government and the Political Situation under
the Military Government(c)

After Burma gained 1948 independence from the United Kingdom in
1948, the civil government was overthrown by a Coup d’etat led by General Z4 in 1962. The Burma Socialist Planning Party was formed in July of thesame year to pursue a socialist system; however, since the economy deteriorated to the point where Burma was recognized as one of the least developed countries by the United Nations, anti-government demonstrations
led by students had expanded in Yangon from March 1988, resulting inclashes with police and military forces. On August 8 of the same year, socalled general strikes by students and citizens were held throughout Burma(hereinafter referred to as "8888 General strikes"); then, [the movement]
became a democratic movement by a leading position of Z5. However, on
September 18 of the same year, the military forces of Coup d’etat, SLORC,
took full control and established a military junta. (Paragraph 3.02 of
Plaintiff’s Exhibit C 17, Defendant’s Exhibit B3, and the entire import of theoral argument)(d)

On July 20, 1989, SLORC placed Z5 under house arrest for violation of
the National Destruction Law and prohibited political activities and held ageneral election with the participation of multiple parties on May 27, 1990.
The NLD under Z5 won an overwhelming victory with 392 seats, morethan 80% of the total 485 seats; then, the NUP (as the ruling party) stopped
as a result to win 10 seats. SLORC nulli ed the election, refused to transfer
their political power, and imprisoned dozens of NLD members including
Z5, saying that a strong Constitution was necessary for the transition to a
civilian government.
From January 1993, the National Congress, which deliberates the basic
principles of the new Constitution, was held intermittently. The military
government appointed 701 members of the congress, but only 99 were
elected in the general election in 1990. In November 1995, the NLD boycotted the National Congress; as a countermeasure, SLORC deprived of themembership of all 86 members belonging to the NLD. (On the whole,paragraph 3.02 of Plaintiff's Exhibit 17 and the entire import of the oral ar-

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gument.)(e)

SLORC reorganized itself into SPDC on November 15, 1997, beginning a
dialogue with Z5 from around 2000 and indicated that it would ease regulations on the NLD around the middle of 2002. However, hardliners in the
military government became dissatis ed with this policy, and on May 30,
an armed group of SPDC orchestrated a surprising attack on a motorcade of
NLD parades in Dipaynn, near the city of Monywa in the north [of thecountry]; several leaders and supporters resulted in injury or death; thisresulted in the injury or death of several leaders and supporters. Z5 whilston the campaign was arrested and imprisoned to the Insane asylum; andpolitical activists, journalists, and students were arrested (The Dipaynn affair. Plaintiff's Exhibit C6, 7, Paragraph 3.02 of Plaintiff's Exhibit C17 andDefendant's Exhibit B3). However, many of those detained in the incident
were released sequentially by mid-June of the same year, Z5 was transferred
to his home and placed under house arrest. (The entire import of the oral
argument)(f)

In 2007, fuel prices increased by 5 times, triggering protests in Yangon
and other regions in August of the same year; on August 19, a demonstration led by a group of 1988 generation student leaders, including Z 17,
took place, and they were detained on August 21. The Buddhist monks
also took part in the protests (Saffron Revolution); on September 25 of thesame year, the military government imposed a curfew in Yangon and Mandalay from 9 PM to 5 AM, ordering strict observance of the prohibition ofassemblies of no more than 5 people, which had been in force since 1988;
on the 26th, the security forces and the military launched an armed suppression of the demonstrations, leading to their murder and arrest. Until
then, Buddhism had been encouraged in comparison with other religions;however, monitoring of the Buddhist community and others continued until
at least 2010, and many arrested monks were not released from physicalrestraint. (From page 8 and 9 of translation of Plaintiff's Exhibit C2,
Plaintiff's Exhibit C4, 15, paragraphs 3.02 and 19.02, Defendant's Exhibit
B3, and the entire import of the oral argument)(g)

The draft of the Constitution (which was drafted before the Saffron Revolution) was released to the public in a limited number of publications inMarch 2008 and was approved and enacted (the 2008 Constitution) in areferendum held on May 10 of the same year and 2 weeks later in the cyclone-affected areas. The 2008 Constitution allowed the Supreme Commander of the Armed Forces to appoint 1/4 of the seats in the lower houseand the upper house, as well as a wide range of powers including the control of key ministers for the military. In the 2010 general election held on
November 7, 2010, based on the 2008 Constitution, the USDP won bywinning 259 seats out of 330 seats in the People's Congress (Constant440.), the lower house, and 129 seats out of 168 seats in the National Congress (Constant 224.), the upper house, respectively (Defendant's Exhibits

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B3 and 12-2). (Paragraphs 3.03, 4.04, 4.05, 4.17, 5.01, 6.03 and 6.04 of
Plaintiff's Exhibits C17)The NLD boycotted both the referendum on the 2008 Constitution andthe 2010 general election (the entire import of the oral argument).

(h)

B.

The political situation after the 2010 general election(a)

On January 31, 2011, parliament convened and, on February 4 of thesame year, elected 3 Vice-Presidents; on March 30 of the same year, former
Prime Minister Z 32 of the 3 Vice-Presidents became President (Paragraphs
4.16, 4.19 and of Plaintiff's Exhibit C17, Defendant's Exhibit B3 and theentire import of the oral argument).

(b)

The Z 32 administration had implemented pardons since May 17, 2011,
and released more than 1200 prisoners including political prisoners such as
Z 17, on January 1 and 13, 2012 (Defendant's Exhibits B13-1, 13-2 and theentire import of the oral argument).

(c)

During this period, the NLD applied to the Federal Election Commission
for the establishment and registration of a political party on November 25,
2012, and the establishment of a political party was approved on December 12 of the same year. In the parliamentary by-election held on April 1,
2011, the NLD won 43 seats out of 45 seats. (The entire import of the oral
argument.)(d)President Z32 pardoned all political prisoners on December 30, 2013,(Defendant's Exhibit B13-3, 13-4, and the entire import of the oral argument.)

Plaintiff’s actions up to the decision regarding the rst objection.

A. Acting in Myanmar (Includes the Burmese era)(e) The Plaintiff was born in Yangon on *****,1967, and he met Z33 (Z11 after.
Hereinafter referred to as "Z11" before or after he was named Z11.) who
was also born in Yangon on the 9th of the same month. They were juniorhigh school classmates at the age of 13 in 1980. Both of them advanced to
Yangon University through the same high school. (Prerequisite facts (1),page 1 of Plaintiff's Exhibit A70, page 1 of Plaintiff's Exhibit A74, page 28
of Defendant's Exhibit A1, pages 1, 23, 25, 45, 47 and 48 of [deposition of]witness Z11.)
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(2)

Although house arrest on Z5 was lifted on May 13, immediately after the2010 general election, an appeal against the NLD's decision to dissolve theparty, which had been ordered around that time, was not accepted by theSupreme Court at the end of the month (Paragraphs 4.13, 4.15, 7.02, 7.03,
of Plaintiff's Exhibits C17, and Defendant's Exhibit B3).

(f)In 1987, when the government of Burma abolished the currency systemand banned its use, Declining Currency Order, students at the University of
Yangon protested which then turned into anti-government political activities, and eventually the university was closed down.
Z11 joined thismovement and became the central executive member of the All-Burma
Federation of Student's Unions (ABFSU) which was formed by students on
August 28, 1988, after 8888 general strikes ((1) A (A) above); by this time,
Z11 was used as the name for political activities (Plaintiff's Exhibit A68,
pages from 1 through 5, 23, 24, 26, 45, 47 and 48 of [deposition of] witness Z11 ). On the other hand, although the Plaintiff had distributed protest
yers after the abolition of the currency, he consulted with his relatives who
belonged to the Navy due to the arrest of his friend who had acted withhim, taking a leave of absence from the University of Yangon in his second
year in December 1987 and thereafter joined the Navy as the lowest grade
sailor on January 19 of the following year at the discretion of his relatives(Defendant's Exhibit A5). (Pages 3 and 4 of Plaintiff's Exhibit A70, page 1 ofPlaintiff's Exhibit A74, pages 28 and 29 of Defendant's Exhibit A1, pages 45
and 46 [of deposition] of the Plaintiff.)(g)

The Plaintiff was eventually accused of neglect of duty thus violating themilitary regulations; on May 12, 1991, he was imprisoned in Insein Prison,
lost his military register, and was discharged (Defendant's Exhibit A5.). The
Plaintiff was released from the prison in December of the same year andreturned to Yangon University that was opened again; however, he was notdirectly involved in political activities while in the university. The mother of
the Plaintiff, who had been a public servant, recommended that the Plaintiff
go abroad, and the Plaintiff applied for the passport twice in 1992 and1993; however, they were not approved. (Page 1 of Plaintiff's Exhibit A74,
page 30 of Defendant's Exhibit A1 and pages from 46 through 48 of [deposition of] the Plaintiff)
Z11 was arrested and detained for about 1 and a half months from April
1989 and for about 2 and a half months from August 1989. He was alsoarrested on April 17 of the same year for giving a speech to students in theauditorium of Yangon university, after the announcement of Z5’s winning
the Nobel Peace Prize in December 1991. As the central executive of cerof ABFSU, requestsed to respect a conclusion of the 1990 general election,
he was detained in the Insane asylum and imprisoned in Myingyan prisonby sentence of 15 years in prison; therefore, after return to the university,
the Plaintiff had not met with Z11 (pages from 1 through 3 of Plaintiff's Exhibit A70, pages 1 and 2 of Plaintiff's Exhibit A74 and pages from 4 through7 of [deposition of] Z11).

(h)

After dropping out of Yangon University in the 4th grade in 1994, hespent his time without any particular job. In 1997, before his mother diedin September, she made efforts to obtain a passport of the Plaintiff and arranged for him to go to a language school in Korea. In May of the follow-

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ing year, 1998, when he was able to obtain a passport and a visa for studying in Korea for three months, he left for Korea on June 10 of the same year
(Pages 30 and 31 of Defendant's Exhibit A1 and pages from 47 to 51 of [thedeposition of] the Plaintiff).

B. Activities in Japan

(3)

(a)

When the validity deadline of his visa approached after entering South
Korea, Plaintiff applied to renew said visa, but it was not easily accepted.
Even so, Despite this, the visa was renewed once, it was expected that hewould not be able to renew [the visa] for the second time and become an
illegal overstayer. Therefore, Plaintiff obtained a visa for sightseeing in Japan and participated in a sightseeing tour with a friend from Myanmar. He
entered Japan on October 2, 1998, with the status of residence "temporary
stay," and the period of sojourn was 15 days (Prerequisite fact (2) A, pages
31 and 32 of Defendant's Exhibit A1 and pages 50 [of deposition] of
Plaintiff)(b)

After entering Japan, the Plaintiff stayed in Japan beyond the period of
sojourn without obtaining an extension or change of period of sojourn.
From around March 1999 at the latest, he moved from job to job andworked illegally (Prerequisite fact (2) A, pages 31 and 32 of [deposition of]
the Plaintiff).

(c)

The Plaintiff, in the meantime, contributed to 2 magazines, Shujoser andAhara, about those imprisoned by the military government, under the pen
name Z34 (page 33 of Defendant's Exhibit A1 and pages 28 and 29 of [deposition of] the Plaintiff).

(d)

On October 20, 2004, after being arrested by police of cers on suspicionof overstaying, the Plaintiff applied to the Minister of Justice for the rst
refugee recognition application on the 29th of the same month, however,the Minister of Justice issued the rst denial of recognition of refugee status
on December 16, 2004. The Plaintiff led the rst objection on the 21st of
the same month, but the Minister of Justice issued the decision regarding
the rst objection to dismissing the rst objection on April 8, 2005, andnoti ed the Plaintiff of the decision on the 14th of the same month. During
this period, a Deportation Order was issued on December 17, 2004, to order the Plaintiff to leave Japan; then, on March 15, 2005, the Plaintiff led
an action for revocation. that and so on. (Prerequisite facts (2) from B
through F)

Plaintiff’s actions after the Decision regarding the regarding the rst objection

A. Launch of a revolutionary magazine

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The Plaintiff had been detained in the Tokyo Immigration Detention Center
until the Provisional release on June 29, 2005 (Prerequisite Facts (2)). Around
April of the same year when the Decision on the objection was made, Plaintiff
consulted with Z9 who was held at the detention center about issuance of amagazine criticizing the military government. On June 14 of the same year, theinaugural issue of a revolutionary magazine named Tuetis, meaning "fresh
blood" in Burmese, was published, which included the names of co-representatives (Z10, the Plaintiff, and Z9) as editorial staff and contact information, as well
as a poem titled "*****" which criticized dictatorship with the real name of thePlaintiff (Plaintiff's Exhibit A6).
The inaugural issue of the revolutionary
magazine was introduced to a reporter from BBC radio station Z35 through hiswife Z9. In an interview with this reporter, Z9 stated that [1] they decided to
ght with the pen because they could only write while they were unable to engage in democratization activities freely, [2] 10 or 15 people in detention wrote
together, completed with the support of their colleagues [out of the detention
center], [3] they published 150 copies for the rst issue, [4] read parts of "*****"
part, and [5] would do their best for issuance every month; these were radiobroadcasted by the radio station in Burmese (Plaintiff's Exhibit A18 and 48).
(Plaintiff's Exhibit A40, pages from 2 through 4 of Plaintiff's Exhibit A65, pages
from 10 through 12 of Defendant's Exhibit A6, and pages from 1 through 4, 34,
51 and 52 of [deposition of] the Plaintiff.)

B. Communication with the home country(a)

On July 7, 2005, immediately after the Provisional Release of the Plaintiff,the military government granted a pardon to release many leaders 1988
generation students and others. While the names of those released werereported on the Internet, Plaintiff found the cousin of Plaintiff's mother (Z
36 (page 16 of Defendant’s Exhibit A11)), and his son (Z13, one of the 1988
generation student leaders, 2 years older than the Plaintiff, and whom thePlaintiff studied directly under when the Plaintiff was a university student);
the Plaintiff made a telephone call to his brother in the home country andasked whether it was possible to contact with Z13.
Z37 was a friend of Z 11's brother, and just then Z37 and Z22 (the husband of and the Plaintiff's cousin) visited Z 11's brother whom he was also
close to. Then, there was also Z11 who had been released from Myingyan
Prison on October 10, 1999, and Z22 and Z11, who were classmates injunior high school, referred to the Plaintiff who was also a classmate. Z 22,
who had been working for a Japanese company, had come to Japan forbusiness around 2000, and had known the Plaintiff's telephone number bytalking with the Plaintiff by telephone; therefore, Z22 informed Z11 of thePlaintiff's telephone number and made an international telephone to thePlaintiff from his cellular phone. After Z 22 spoke with the Plaintiff, Z 11
took over the telephone call and Z 11 and Plaintiff exchanged their experiences from their school days. (Page from 7 through 9 of Plaintiff’s Exhibit

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A65, page 4 of Plaintiff’s Exhibit A70, page 2 of Plaintiff’s Exhibit A74, page
15 of Defendant’s Exhibit A6, pages 8, 9, 26, 27, from 29 through 31 andfrom 49 through 52 of [the deposition of] witness Z11, pages 8,9, 16, 17,from 36 through 39, 53 and 54 of [the deposition of] the Plaintiff)..

(b)

After that, the Plaintiff and Z 11 began to contact each other at a reasonable frequency in a manner that did not x phones at the opportunity
provided by the Z 11 on the Myanmar side to use a cellular phone (which
was unlikely to be wiretapped) (page 4 of Plaintiff’s Exhibit A70, page 2 ofPlaintiff’s Exhibit A74, and pages 44 and 45 of [the deposition of] witness
Z11).
In such communication, Plaintiff informed Z11 that Z11 should contact
Z22 and accept money for any urgent need. At that time, the Z11 plannedto acquire a mobile phone, however, this did not materialize because it
would cost about USD $2000. (Pages 11 of [the deposition of] witness Z11,
pages 11, 41, and 42 of [the deposition] of the Plaintiff.)(c)

Around this time, Z11 began to gather frequently with political activists
such as Z17 and Z19 at the house of Z18 (who was famous as one of the1988 generation student leaders released under the pardon above (a) (pages
4 and 5 of Plaintiff’s Exhibit A70, page 2 of Plaintiff’s Exhibit A74, page 17
of Defendant’s Exhibit A6, pages 7, 8, 28, 19, from 33 through 35 [of thedeposition] of witness Z11, pages 9 and 10 [of the deposition] of thePlaintiff).
In coordination with these political activists, Z11 consulted with Plaintiff
about entrusting acquaintances (who did not have political backgrounds
and was not expected to undergo rigorous baggage checks) with electronic
data and transporting it to Plaintiff on the occasion of their travels between
Myanmar and Japan to spread information about the inside and the antigovernment activities of Myanmar on the Internet; around October 2005,
the Plaintiff told Z11 that a woman suitable for a transporter would visit
Myanmar in a few days. On the 31st of the same month, Z11 prepared adocument on paper to be sent to the Plaintiff for spreading information; hetried to go to a partner who had a personal computer to burn it on a CD
and digitize. On the way, the bag (in which the document was stored) was
torn and the document was stolen. Z11 decided to leave the country after
consulting with Z18 and others because he thought that he was endangered. Following the advice of Plaintiff, Z11 asked Z22 to provide
500,000 kyat funds (Refer to Defendant’s Exhibit B3 for the currency rate.);in early November of the same year, Z11 evacuated to Thailand, and sincethen, they have been based there. Plaintiff later paid Z22 the equivalent of
500,000 kyats above. (p. 9 ~ 10 of Plaintiff’s Exhibit A65, p. 6 ~ 8 of
Plaintiff’s Exhibit A70, p. 3 ~ 4 of Plaintiff’s Exhibit A74, p. 16 of Defendant’s Exhibit A6, p. 10 ~ 13, p. 20, p. 32 ~ 37, p. 41 ~ 42, p. 54 of [the deposition of] witness Z11, and p. 11 ~ 12, 54. p. 41 of [the deposition] of
the Plaintiff.)

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The movement of the Z 11 and Z 2007 to Thailand was later reported in
the Chaemonian newspaper in Myanmar on August 25, 2007, quoting a
newspaper report in another newspaper on July 5 of the same year, that the1988 generation student leaders dispatched both people from Myanmar to
Thailand in the latter half of 2005 to successfully carry out terrorist violence
activities by communicating with anti-government organizations operating
outside the country. The Chaemonian newspaper on September 9, 2007,
reported the same purport (Plaintiff’s Exhibit A25, 66, 67).

C. Relationship with Z11’s activities (From around 2005 to around 2007)(a)

The Z11 increased the frequency of contact with the Plaintiff because thecommunication environment improved and the risk of interception of information exchange on telephones or the internet decreased outside Myanmar when he moved the base to Thailand (p. 8 of Plaintiff’s Exhibit A70
and p. 14 [of the deposition] of witness Z11).
The rst issue of the revolution magazine was published in Japan in June
2005, followed by the second issue published in July of the same year andcontinued publications as well as Z9 sent the magazines to the Chiang Mai
of ce of ABSDF and consulted on the design and others; since the 7th issue
published in December of the same year, Z11 had contributed articles toeach issue (Plaintiff’s Exhibit A6 ~ 17 (including brunch numbers), p.4 of
Plaintiff’s Exhibit A74, p. 18 and 19 of [the deposition of] witnes11, p.9,
51~ 55 of [the deposition of] the Plaintiff).

(b)

Around this time, with the cooperation of Z 38, a former member of
ABFSU and a female correspondent in Mae sot of the media called Voice ofAmerica, the Plaintiff began to provide funds for Z11 in a way that thePlaintiff handed over his bank’s cash card and sent 20,000 or 30,000 yen
every month to the account, then Z38 withdraw the money in Thai baht by
the cash card and hand over the money to Z11 when Z39, Burmese person
in Japan, visited Method (p. 9 of Plaintiff’s Exhibit A70, p. 4 of Plaintiff’s
Exhibit A74, p. 18 and 21 of Defendant’s Exhibit A6, p. 20 ~ 22 of [the deposition of] witness Z11 and p. 14 ~ 15, p. 11 of [ the deposition of] thePlaintiff).

(c)

Encouraged by former ABSDF leader Z40, Z11 formed the Burma Political Prisoner’s Union (hereinafter referred to as "BPPU.") in January 2006 at
Method to ensure the safety of former political prisoners who had ed fromthe crackdown by SPDC and to continue their political activities and assumed the post of its rst secretary (p. 10 of Plaintiff’s Exhibit A70, p. 18 of[the deposition of] witness Z 11)(d)

On the other hand, in June of the same year, Z11, together with Z19 andothers who were based in the same refugee camp in Mae sot, organized the
Association for Refugee Social Welfare (hereinafter referred to as "SWAR".
Refer to Plaintiff’s Exhibit A17-3), which was different from BPPU in that it

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focused on supporting refugees from Myanmar, including ethnic minorities,
without limiting to political prisoners. However, it changed its name from
SWAR to Refugees Burma in September of the same year because [SWAR]
was similar to Safe Action for Women, SAW (another group that carried out
activities in the eld), and it was dif cult to distinguish them (p. 10 ofPlaintiff’s Exhibit A65, p. 16 ~ 17, p. 40, p. 55 of the deposition of witness
Z11.). However, by around the same month, the Thai government began torelocate people living in refugee camps by distributing them to multiple
camps; therefore, the members of the organization were dispersed. As aresult, the activities in Mae sot were reduced. Z11 moved to the otherrefugee camp in October of the same year, and from around 11 of the same
year; he concentrated on activities to ensure educational opportunities fordisplaced people, and was distanced from the activities of Refugees Burma(p. 4 of Plaintiff’s Exhibit A74 and p. 22 of the deposition of witness Z11).
(P. 8 ~ 10 of Plaintiff’s Exhibit A70.) Plaintiff has recorded messages (thatwas telephoned by Z11 and colleagues close to Z11 in Mae sot) and partially uploaded them to the website set up by the Tuetit Revolutionary
Group (p. 9 of Plaintiff’s Exhibit A70, p. 4 ~ 6 of Plaintiff’s Exhibit A74, p.
19 ~ 20 of the deposition of Witness Z11).

(e)

Z 11 was recognized as a political refugee by the UNHCR in 2008; heleft Thailand on September 9 of the same year together with friends of
BPPU and Refugees Burma who were also recognized [as politicalrefugees], and he moved to the United States in Z 11. As a result, Refugees
Burma was dissolved (p. 11 of Plaintiff’s Exhibit A65, p. 20 of Defendant’s
Exhibit A6, p. 17 of Plaintiff’s Exhibit A11, p. 22 ~ 23, p. 37 ~ 38 of the deposition of Witness Z 11, p. 42 of the deposition of the Plaintiff.). Z11 later
acquired US permanent residency (Plaintiff’s Exhibit A 71, 72).

D. Plaintiff's actions in Japan during the period mentioned in C above(a) Publication of revolutionary magazines
The revolutionary magazine was continued to publish (As described in
C(A) above, articles written by Z11 have been contributed since Issue 7.)
containing about 10 to 15 articles, proses, poems, and caricatures criticizing
the military government in each issue, including many poems and proses
written by the Plaintiff using several different pen names to improve appearance as well as his real name. Although 200 to 300 copies of each issue ofthe revolutionary magazine were printed, distributed free of charge at Myanmar-related restaurants and general stores in Japan, distributed at demonstrations and festivals, and uploaded as a PDF le on the website of the Tuetit
Revolution Group (The documents were also sent to the Chiang Mai Of ceof ABSDF as described in C(a) above.), there is no evidence to con rm thatthe revolutionary magazine was published after issue 14 which published astatement issued by SWAR on August 8, 2006, to commemorate the 18th

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anniversary of the 8888 general strikes. In the postscript of all issues up to
No. 14, the real name of the Plaintiff was listed as the person in charge andthe contact address; while Z9, who was one of the co-representatives at thetime of the rst issue, listed as the responsible person and the contact address up to No. 3, became the typist in the 4th issue (issued in September2005) and was listed as 1 contact address again in the 5th issue, however,
his name disappeared from the postscript after the 6th issue (issued in
November of the same year). Also, Z9 obtained a status of residence in thesame year. There were approximately 10 people who belonged to the Tuetit
Revolutionary Group at the time the magazine was rst published, however,they tended to move away from the activities including Z9 when they obtained a status of residence. (Plaintiff’s Exhibits A6 ~ 17, p. 4, 6 ~ 7 ofPlaintiff’s Exhibit A65, p. 11 ~ 12, p. 2 ~ 3 Defendant’s Exhibit A6, p. 2 ~ 3of Defendant’s Exhibit A7, p. 2 ~ 4, p. 29 ~ 31, p. 35 of the deposition of thePlaintiff.)(b) Lectures
In 2005 or 2006 (2005), Plaintiff was present when Z14, a Myanmar writerand journalist residing in the United States, visited Japan and gave a lecture(Plaintiff’s Exhibit A21).

(c) First Hunger Strike
In 2006, when the rst president of ABSDF, the US-based political activist
Z41 (also known as Z16), came to Japan before the September 18 (the day of
military coup d`etat 18 years before), 5 members of the Tuetit Revolutionary
Group went on hunger strike for 24 hours from the afternoon of September
17 of the same year to the afternoon of the 18th in front of the Myanmar Embassy in α × cho-me, Shinagawa Ward, Tokyo. Plaintiff declared at the scenethat they would go on a hunger strike, but he did not participate in the hunger strike itself. Z16 visited the front of the Myanmar Embassy around noonon the 17th of the same year to encourage hunger strikers; at 3 PM when thehunger strike took place, he moved to the front of Takadanobaba Station andgave a speech; at night, he gave a speech at β in Kita-ku and ew to Seoul inSouth Korea on the morning of the 18th. In front of the Myanmar Embassy,
security cameras are installed on the premises of the Embassy (Plaintiff’s Exhibit C20). (Plaintiff’s Exhibit A19, 21, p. 5 of Plaintiff’s Exhibit A65,
Plaintiff’s Exhibit A75, p. 13 of Defendant’s Exhibit A6, p. 5 ~ 7, p. 31 ~ 33 ofthe deposition of the Plaintiff.)(d) Second Hunger Strike
From around 5 PM on September 16 to around 5 PM on the following day,10 people, including members of the Tuetit Revolutionary Group, went on
hunger strike in Gotanda Park (the last two hours were [implemented] infront of the Myanmar Embassy in Japan.) in 2007. The Plaintiff did not goon the hunger strike itself, but was involved in negotiations with the police,

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and responded to media interviews at the scene. (Plaintiff’s Exhibit A20, p. 6
of Plaintiff’s Exhibit A65 and p. 13 ~ 15 of Defendant’s Exhibit, p. 7 ~ 8, p.
32 ~ 34 of the deposition of the Plaintiff.) Before this, on the 14th of thesame month, Z11 sent letters (which requested pro-democracy people living
abroad to cooperate in holding protest demonstrations in front of the Myanmar Embassies around the world via email) stating that Myanmar's people
were facing dif culties in food, clothing, housing, and transportation andthat the standards of health, education, etc. were declining. (Plaintiff's Exhibit A23, p. 10 of Plaintiff's Exhibit A65, p. 8 of the deposition of the Plaintiff).
Also, the 1988 generation student leaders sent a letter stating their views thatthey were highly satis ed with the Tuetit Revolutionary Group and Refugees
Burma going on hunger strike in Tokyo on May 16 (Plaintiff's Exhibit A22).
The Plaintiff was interviewed by a BBC reporter, Z35, who was the same
reporter who reported the story of the rst issue of the Revolution Magazine;
the Plaintiff answered [to the reporter] that the hunger strike against the military government was scheduled to take place in a park because the police
did not permit in front of the Myanmar Embassy, and the hunger strike would
be held standing without eating or drinking anything other than water(Plaintiff's Exhibit A20, 41). The BBC radio broadcast on the evening of the
16th of the same month was reported above.
Plaintiff was allowed to use the title of Director of Refugees Burma in Japan(p. 9 of Plaintiff's Exhibit A70, p. 4 of Plaintiff's Exhibit A74, p. 17, p. 37 ofthe deposition of witness Z11). Around September 18, 2007, in the proximity of the 2nd hunger strike, the statement of Refugees Burma was preparedin the joint names of the Plaintiff, Z 24, and Z 23. It stated that the numberof refugees from Myanmar had been increasing year by year due to suppression and violence by a dictatorship, and that it would be brought to the attention of the UN Security Council, that all Myanmar nationals should berecognized as refugees, that all decisions made by the Constitutional National Assembly (Nyaunghnapin), ordered by the military government (Na a apa), and that the results of the 1990 general election should be implemented.
(Plaintiff's Exhibit A10, p. 10 of A65, p. 12 ~ 14, p. 40 ~ 41 of the depositionof the Plaintiff)

E. Activities related to ABFSU (Situation around 2009)(a)

The judgment of the previous suit which dismissed the Plaintiff's claim forrevocation of the rst denial of recognition of refugee status became xed
on March 26, 2009, when the nal appeal was dismissed and the decisionof non-acceptance was made in the Supreme court. (Prerequisite facts (2) F
and G.). Plaintiff led the Application for Recognition of Refugee Status on
September 1 of the same year (Prerequisite Facts (3) A.).

(b)

Before this, ABFSU was a student organization formed in 1988 under theleadership of Z17, but it was destroyed due to the arrest of the same person.
In 2007, ABFSU was temporarily reformed under the leadership of Z42.

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However, ABFSU did not form an organization because the same person
was imprisoned during the Saffron Revolution in September of the same
year and other members ed abroad. On the other hand, Z13 (See B (A)above.), one of the 88 generation student leaders, left Myanmar for Mae Sot
in Thailand in late 2006 or around 2007 and had an intention to rebuild
ABFSU. Plaintiff had heard about this in around 2008.
After that, according to what Plaintiff had heard from Z13, Z27 (an active
student generation) had been involved in the reorganization of ABFSU in
2007, but around that time they evacuated to Mae sot. At that time, there
were Z 13, Z 29, Z 27, and Z 28 as comrades aiming to rebuild ABFSU. Z
27 was scheduled to take charge of Org activities in lower Burma; Z 28 wasscheduled to take charge of Org activities in upper Burma; they scheduled
to reenter Myanmar, and ABFSU would be re-reorganized and its organization would be expanded. However, apart from Z27 and Z28, Plaintiff did
not know the number or name of the younger generation engaged in activities related to the re-reorganization of ABFSU and had not seen either ofthem. (For (B) as a whole, p. 9 and 11 ~ 12 of Plaintiff's Exhibit A65, p. 23~ 25 of Plaintiff's Exhibit A6, and p. 16 ~ 19 and 54 of the deposition of thePlaintiff.)(c) The Plaintiff states that he was involved in communicating with a person
identi ed as Z27 or giving money and goods by using "G Talk" and "G Mail"(p. 13 of Plaintiff's Exhibit A65, p. 24 ~ 25 of Plaintiff's Exhibit A6, and p. 6
of Defendant's Exhibit A11). The documents submitted by Plaintiff as evidence to support this statement include the following.
a.
Documents submitted to the Tokyo Immigration Bureau on
September 15, 2009 (See the entry seal at the Tokyo Immigration Of ce,
Plaintiff's Exhibit A26 ~ 34)
a-1. The contents of e-mails (dated July 26 and August 13 of thesame year) that were sent July 26 and August 13 of the same year
from"******@*****.com" (hereinafter referred to as "the Z27 Address ".)to "*****@*****.com" (hereinafter referred to as "the Address") " andthat was forwarded to "*****@*****.com." (hereinafter referred to as"the Forwarded Address.") (Plaintiff's Exhibit A26, 27).
a-2. The contents of the chat that were between the Z27 Address
and the Address from August 13 to September 2 of the same year andthat were forwarded to the Forwarded address (Plaintiff’s Exhibit A28 ~34).
b.

Submitted in the present caseb-1. E-mails, dated September 8 and 29 of the same year, thatwas sent to the Address from the Z27 Address (Plaintiff’s Exhibit A36,
42)
b-2. E-mails, dated September 12 and 14 of the same year from"*****@*****. com" (hereinafter referred to as “the Z27 Address”, that

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forwarded from the Z27 Address to the Address (Plaintiff’s Exhibit A36,
42).
b-3. A chat between the Z27 address and the Address on
September 14, 17, 18, and October 1 to 2 of the same year (Plaintiff’s
Exhibit A43 ~ 45, 50).
b-4. A chat of September 18 of the same year between the Z29
Address and the Address (Plaintiff’s Exhibit A46).
b-5. The contents of the e-mail dated October 3 of the same yearthat was sent from the Z27 Address to the Z29 Address and to the Address and that was forwarded from the Address to the Forwarded address (Plaintiff’s Exhibit A51-1).
b-6. An e-mail dated October 4 of the same year, addressed to
the Z29 Address from the Address (Plaintiff’s Exhibit A52-1)
b-7. An e-mail dated October 5 of the same year with the attachment of the image le of the ier from the Z27 Address to the Address, and an email dated the same day from the Z27 Address to the
Z29 Address (Plaintiff’s Exhibit A47)
b-8. E-mails dated October 8 and 10 of the same year, with photo image les showing the attachment of lea ets and statements, on
the walls and pillars in urban areas, calling for democratization fromthe Z27 Address to the Z29 Address and the Address and so on(Plaintiff’s Exhibit A54 ~ 57).
b-9. An email dated October 23 of the same year from“*****@*****.com”(hereinafter referred to as "the Z30 Address".) " tothe Address and an email dated 24 of the same month from the Address to the Z30 Address in reply thereto (Plaintiff’s Exhibit A59-1, 2)
b-10. An e-mail dated October 26 of the same year, with an attachment of a document le entitled "Proposed Plan for Urban
Struggle from Regional Struggle", that was addressed to the Addressfrom the Z30 Address, and that was forwarded from the Z29 Address
to the Address and so on. (1 ~ 3 of A 60), andan e-mail dated on the same day addressed to the Address from theZ30 Address (Plaintiff’s Exhibit A61).
Near the end of the attachment le, Z 13, Z 29, Z 27, Z 28, etc., werementioned and Plaintiff's name with the title of "ABFSU - Japan" wasalso mentioned as a temporary communication network. (Plaintiff’s
Exhibit A60-4)
b-11. An e-mail dated October 28 of the same year that was addressed from the Address to the Z 27, Z30 and Z29 Address, etc.
(Plaintiff’s Exhibit A 62)

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b-12. An e-mail dated December 19 of the same year, from theZ29 Address to the Address, to which 2 other document les, in addition to the one entitled "Proposed Plan for Urban Struggle from Regional Struggle" identical to (j) above, were attached. (Plaintiff’s Exhibit A63-1 ~ 4)2.

Consideration of the Plaintiff’s refugee status
Based on the facts found in paragraph 1 above, consider whether the Plaintiff falls
under the category of refugees, "a person who, owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of a particular socialgroup 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", who
are subject to the Refugee Convention under Article 1 of the Refugee Convention or
Article 1 of the Refugee Protocol as de ned by the Act.
(1)

About the Revolutionary Magazine

A. Spread as a movement
According to facts (3) A, B, and D (A), the revolutionary magazine waslaunched in June 2005 by the Plaintiff, Z9, and 1 other co-representative, andwas subsequently published to issue No. 14 (Plaintiff’s Exhibit A17), which
seems to have been published around August 2006. However, the circulation of
the magazine was only about 200 to 300 copies per issue, which was distributed mainly in Myanmar restaurants in Japan, and it does not appear that theanti-government movement spread throughout prominently via the magazine.
Z9, who was one of the co-representatives at the time of publication, contacted
a reporter of BBC radio station, Z 35, through his wife and was interviewed
about the publication of the revolution magazine; it was broadcasted. However,
his name disappeared from the postscript of the 6th issue published in November of the same year when he acquired the status of residence, and he stopped
activities related to the magazine. In addition, it appears that the number ofpeople who were involved in the publication of the revolution magazine andwho belonged to the Tuetiti Revolutionary Group also tended to decrease.

B. The Political background of the Plaintiff
According to facts found in (2), there is no evidence that the Plaintiff had
engaged in conspicuous political activities until the time when the denial regarding the rst objection was made, and it seems that the Plaintiff had engaged
in politically colored activities, at most,

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CDRQ vol.11(a) he was involved in the temporary distribution of protest yers after the issuance of the Declining Currency Order in 1987 in his home country, and(b) he contributed to 2 magazines in Japan in writing about the military government.
Concerning (a), after the arrest of a friend who distributed protest yers together, he consulted with his relatives and took the opportunity to show his intention to submit to the government to join the Navy. Also, concerning [2], he
only made two one-off contributions in his pen name; it is far from being accepted that both of them were acts to express a rm political opinion.
Consequently, there is no reason to believe that the Plaintiff, who had only
taken such actions until then and had no chance to be motivated to raise hispolitical orientation in particular, around April 2005, suddenly came up with theidea of launching the revolutionary magazine which contained a considerable
number of articles criticizing the military government and, after it was publishedin June of the same year, becomes the person in charge of editing, publishing or
his contact, or the producer of anti-government poetry and use his real name.

C. Summary
As described above, considering thatthe revolutionary magazine in which the Plaintiff was involved in
the publication and contribution was not widely published,
the number of its contributors was on the decrease,the publication period was only a little more than 1 year from June
2005 to around August 2006, and
the Plaintiff himself had not been involved in any notable politicalactivities before the publication of the revolutionary magazine,
it is dif cult to think that the government would likely persecute Plaintiff forbeing involved temporarily in the publication and contribution of the revolutionary magazine at that time when the denial of recognition of refugee status
was made 4 years after the magazine was stopped to issue.
(2)

On activities related to Z11

A.

Relationship with Z11
According to facts (2) A, (3) B and C, Plaintiff and Z 11 were acquaintances through junior high schools, high schools, and universities, and Z 11
committed himself to a student movement and served in prison until 1999. It isfound that Plaintiff resumed communication with Z 11 in July 2005 and that
Plaintiff talked over the phone about the activities of 88 generation student
leaders including Z 10 in his home country. In addition, it is found that they

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contacted more frequently and the Plaintiff provide 20000 yen or 30000 yen
every month after Z11 evacuated to Mae Sot in Thailand in October of the sameyear.

B. Regarding the density of communication when the Z 11 was in the homecountry
Concerning the frequency of calls made between the Plaintiff and Z 11
after they became in contact, the Plaintiff and Z 11 state during their interrogation that they had made a telephone call to the Plaintiff on a xed telephoneline in a neighboring house of Sweko in their country of origin at a xed time,
almost every day. Moreover, they stated that the content of the conversation
was political. (p. 9, 31 ~ 35, 52 ~ 53 of the deposition of witness Z 11, p. 9 ofthe deposition of Plaintiff)
However, the contents of these statements are inconsistent from thecontents of the written statement that they used multiple telephones differently
to prevent the government from discovering their communication (See facts
found (3) B (B).), the statements have changed irrationally and cannot be trusted.
The fact that the two persons communicated almost every day is contradictory
to the fact that the frequency of communication increased after Z 11 moved to
Mae Sot in Thai land; it is considered that these are obvious exaggerations, andit can be understood that the two persons communicated less frequently during
this period.

C. Regarding the impact on the Saffron Revolution
It is conceivable that there was a certain dialogue on political actions
between the two persons, and it cannot be denied that the Plaintiff might havemade remarks that provided an idea of action to be taken at the time of the increase in fuel prices in his home country or contributed in some way to the development of such an idea.
However, regarding the Plaintiff’s claim that the Plaintiff's idea resulted incivil action during the Saffron Revolution two years later, not only at the time of
the investigation in the application for recognition of refugee status but also inthis case, in July 2016, more than 1 year and 4 months after the ling of theles, the brief (3), in which the Plaintiff made additional arguments on the facts
underlying the Plaintiff’s refugee status, was not mentioned as the argument but
was mentioned only in their statements of Z11 and the Plaintiff. It was the nal
brief dated November 24, 2017, that [the claim] was mentioned as the argument.
Considering these circumstances, at least until Z 11 pointed out after theling of this case, the Plaintiff did not recognize that the conversation he had
had with Z 11 had affected civil action during the Saffron Revolution, and it is
dif cult to recognize that he thought at the time of the Denial of Recognition of
Refugee Status that he might have been persecuted for having done something

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that had such an impact.

D. Theft incident that triggered the evacuation of Z 11 to Thailand
Plaintiff claims that when Z 11 met with a theft incident that led to its
evacuation to Mae Sot in Thailand, some of the stolen materials included Z 11
and Plaintiff's name.
Even though the fact that the Z 11 met with a theft incident while
carrying the documents to prepare the electronic data to be delivered to thePlaintiff in Japan in the period immediately before Z11 evacuated to the Mae
Sot in Thailand is found (Found Fact (3) B (C); it seems not necessary to describe
the baggage in such a way that the name of the addressee can be easily identi able, or rather, harmful and no use when they would deliver the baggage hidingfrom the government, although the parties (concerned) already knew the purpose of the baggage delivery and delivery address. Because there is no reasonable explanation from Z 11 as to the reason why the address was stated (p.54 of
the deposition of witness Z 11), we cannot help but doubt that some of thestolen materials contained Plaintiff's name.
The above also applies to the name of Z 11, the sender of the document.
Even if the name of Z 11 was not mentioned in the stolen document, the possibility that the theft incident itself was targeted at Z 11 cannot be denied. Therefore, Z 11 can decide to evacuate that there was a risk that the Z 11 might be indanger based on the fact that he met the theft incident; thus, it is impossible toassume the fact that there was a document including the name in the stolen
documents from the fact that Z 11 evacuated to Thailand after the theft incident.

E. About the report of the Chemont State Newspaper
Concerning the Chemont National Newspaper, dated August 25, 2007,
that reported that the 88 student generation leaders were communicating with
anti-government groups operating outside the country via Z 11 and Z 19 who
had moved to Thailand (Plaintiff’s Exhibit A 25), Plaintiff claims that the antigovernment groups operating outside the country were Refugees Burma and theTuetit Revolutionary Group, and he testi es the same (p.11 of Plaintiff’s Exhibit
A 65, p. 15 of the deposition of the Plaintiff).
However, in the context of this article, “anti-government groups operating
outside” naturally means [the groups] in Thailand and it is dif cult to construethat this means [the groups] in Japan as Z11 admits (p. 13 of the deposition of
witness Z 11). It is not dif cult to imagine that there are many other anti-government groups outside Myanmar; therefore, it is dif cult to understand this article in the same way as the above Plaintiff's claim.

F.

Summary
As described above, the Plaintiff contacted Z 11, who is considered to be

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one of the 88 generation student leaders, had a certain conversation about political activities, and even after Z11 moved to Thailand, it is found that the Plaintiff
provided some amount of funds. However, the extent to which the Plaintiff was
found to have been involved in the action was limited to a certain period from
July 2005 to 2006 or 2007. In addition, as described in (1) B above, considering
the Plaintiff himself was found not to have been involved in the remarkable
political actions before June 2005 and it is thought that the government of thehome country would hardly recognize the fact that the Plaintiff was involved in
Z 11’s actions as above; at the time of the Application of the Denial of Recognition of Refugee Status, it is dif cult to think that it was in a certain situation that
the Government would likely persecute the Plaintiff for being involved in the Z
11’s actions.
(3)

About Lectures
Plaintiff claims that the Tuetit Revolutionary Group, including the lectures givenin (3) E (B) above, hosted 2 lectures in 2005 and 2006 by inviting 2 Myanmar authors, and he deposed in line with the claim. However, there is no evidence toaccurately identify the background and contents of these lectures.
About hunger strikes

A. Content of the hunger strike
According to (3) D (C) and (D),(a) on the occasion of the visit of Z 16, a political activist living in the UnitedStates and known as the rst chairman of ABSDF, to Japan in September
2006, 5 members of the Tuetit Revolutionary Group went on the rst hunger strike in front of the Myanmar Embassy, and the Plaintiff proclaimed thehunger strike at the scene.

(b) In September of the following year, 10 members of the Tuetit Revolutionary
Group participated in the second hunger strike in mainly Gotanda park,
and the Plaintiff negotiated with Police. In addition, the Plaintiff was interviewed by a reporter of BBC radio station, Z 35; and was broadcasted.

B. About Spreading of the movement
However, as can be seen from (3) D (C), even though it is seen that Z 16
visited to encourage demonstrators before the start of the demonstration at the
rst hunger strike, he left the site of the hunger strike at the time of the actual
start, made every effort to give speeches and give lectures in another place, andthen left Japan while the hunger strike was continuing. It is dif cult to recognizethat he was closely related to the hunger strike.

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According to facts (3) D (D), it is highly likely that the second hunger
strike was held at the request of the 88 generation student leaders including Z
11, and there is no accurate evidence to suggest that Plaintiff planned it, and thePlaintiff himself did not participate in the execution of the hunger strike. Therefore, it can be construed that Plaintiff only participated in the role of coordinating, moderating, and handling the media.
Also, only about 5 to 10 people participated in the execution of these
hunger strikes (Found Fact (3) D (C) and (R)); those who belonged to the Tuetit
Revolutionary Group, the main participant of these hunger strikes, tended tostay away from their activities after obtaining a status of residence (Found facts(3) D (A)).

C. Summary
As described above, while the hunger strike claimed by Plaintiff seems tohave been linked to anti-government activities overseas to some extent,
it is not likely that Plaintiff took the initiative in carrying out these activities,
the scale of the project was small in light of the number of people whowent on hunger strikes,
the status of the Tuetit Revolutionary Group, which was the main body ofthe participants, stopped its activities immediately after the second hunger strike in September 2007; the political spreading was lost, and it does
not seem that [the activities] xed as protest activities the following years,
andalso, as described said (1) B, the Plaintiff himself had not been involved inany notable political activities before June 2006,
at the time of the decision not to recognize the Refugee in November
2010, more than 3 years after the 2nd hunger strike, it is hard to believe that theGovernment was in a situation where there was a risk of persecution of thePlaintiff based on the fact that the Plaintiff was once involved in these hunger
strikes.
Refugees Burma
Plaintiff also claims that Plaintiff's position as director of the Japanese branch of
Refugees Burma, formed by Z 11 and others, is a fact that underlies his refugee
status.
However, according to found facts (3) C (D), Refugees Burma was recognized asa reduction of its activities because the Thai government divided the refugee camps
in which the parties concerned lived shortly after the change of the name from
SWAR. In Thailand, the actual status of the activities after that is not clear, and re144

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garding the activities in Japan, there is no speci c evidence on its speci c activities
other than the declaration with the Plaintiff's real name (Found fact (3) D (D).). In
addition, the declaration was stated once at the time close to the second hanger
strike and it does not seem that the declaration themselves had big impacts on theanti-government activities; therefore, Plaintiff’s claim above is not acceptable.
(6)

About international conference calls
The Plaintiff also claims that he participated in an international conference callpresided over by Z16 around 2007 with the leaders of the former ABSDF of eachcountry as a fact that underlies his refugee status. However, in addition to the factthat the only evidence to support this is Plaintiff's own written statement (p. 4 ~ 5 ofPlaintiff’s Exhibit A 74), Plaintiff's claim was made for the rst time in the brief (3)received on July 4, 2016, and it is dif cult to think that the Plaintiff considered hewas likely to be persecuted as a result of his participation at the time of the Denialof Application of Refugee Status; therefore, the Plaintiff’s claim above is not acceptable.

(7)

About ABFSU-related behaviors
Plaintiff claims that ABFSU was reorganized as a result of the exchange of
information and opinions using the Address. However, according to found facts (3)E (B) and (C), the communications using the Address, found by the evidence submitted by the Plaintiff, were made after the reorganization of ABFSU in June 2009,
thus it is not found that ABFSU was reorganized as a result of these communications in terms of the time.

A. About the user of the Address(c)

Nevertheless, according to (3) E (B), Z 27 is a person who is said to havebeen engaged in activities related to the ABFSU re-reorganization mentioned above in Myanmar; it is found that the Z 27 Address and the Address
were communicated by email or chat at a time immediately after ABFSU
re-reorganization. Plaintiff then claims that the Address was used by him
and stated it accordingly (p. 13 of Plaintiff's Exhibit A65 and p. 43 of thedeposition of the Plaintiff).

(d)

However, to nd that the Plaintiff was the person who exchanged mail orchat with the Z 27 Address, etc. using the Address, there must be a considerable number of doubtful points as follows. It cannot be denied that theAddress was used by a third party related to Plaintiff at the time of the exchange.

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CDRQ vol.11a.
All e-mails and chats from September 2 (hereinafter, the yearof the same year is omitted in this section.) to July 26 were not communications between the Z27 Address and the Address, but were forwarded
from the Address to the Forwarded Address (Found Facts (3) E (C) a). If
Plaintiff used the Address to send these communications, it is consideredthat there is little need to prove them in such a roundabout manner. Also,
the reason that the e-mails and chats are forwarded consistently to the
Forwarded Address is unclear, even though the received history was deleted in the Address.
b.
In a chat on September 14, [the comment from] the Address
indicated that he also intended to enter Myanmar immediately (After 49
of Plaintiff's Exhibit A 43-10), but it is dif cult to believe that Plaintiff intended to enter Myanmar at that time.
c.
In a chat on September 17, the User of the Addresscommented on the state of the 88 Student Movement and commented on
the relationship between Bakata and Z 43 (After 32 of Plaintiff's Exhibit A
44-10), but it is dif cult to nd that the Plaintiff was deeply involved in
the 88 Student Movement, and there is a doubt as to whether he has theknowledge to make such comments.
d.
In a chat on September 18 between the Address and the Z29
Address, a User of the Address offered to look up Z 28 (49 of Plaintiff's
Exhibit A46-10), but it is unnatural for Plaintiff to offer such an offer as toZ 28, who had in ltrated upper Burma, far from Japan, and was not acquainted with the Plaintiff.
e.
In a chat held from October 1 to the following 2,[1] a user of the Address states that the name he uses to receive money was Z 44 and that Z1 provide it from Japan,
and it is premised that a user of the Address and the Plaintiff
are different persons (After 27 of Plaintiff's Exhibit A 50-11),[2] comments from the sender, who was "△ △ △ △." (theoriginal language is also spelled the same as the Plaintiff's"△ △ △ △") different from the Address (21 of same 12.),have been entered into the chat room at that time (around38 of the same 12), and[3] it seems that a user of the Address transmits the result of
the conversation with Z 13 as if Z 13 stays in close,
therefore, there is a possibility that the user of the Address was not
the Plaintiff but the third party in Mae Sot in Thailand next to Myanmar.
The telephone number (45 of the Same 12) that was returned in responseto the question "My brother's phone number ?" from the Z 27 address ofthe chat would perhaps be that of the Plaintiff himself. However, "mybrother" means not only the chat partner but also older men in general;
there is a possibility that [the chat] was exchanged under the former chat

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at the beginning( "I heard that Z 1 sent it from Japan. I have to call tomorrow."(47 of the same 11)). Even if it was not so, from the point of viewthat the chat was nished in the mention that requested a call back for his
going out, the user of the Address would not necessarily have answered
the phone number above as his phone number. In addition, in the latere-mail dated October 24, the part which seems to be the phone numberof a user of the Address User is kept secret (Plaintiff's Exhibit A 59-2).
f.
On October 28, it was instructed to enter the e-mail addressof the encrypted name "△ △ △ △" from the Address to the Z 27 Addressand so on (Plaintiff's Exhibit A 62), but if the user of the Address wascommunicating continuously under the name of Z1, this instruction isincomprehensible.

(e)

In addition to the points pointed out in (B) above, the Plaintiff is not acquainted with Z 27 in the rst place, and considering that the relationshipbetween the two was, if it occurred, at most, after June 2009, it is highly
probable that the Plaintiff was not involved in all communications madeusing the Address by an account that is possible to be obtained without
suf cient identi cation as so-called free e-mail.

B. The evidentiary value of the contents of communication using the Address
In addition, the U.S. State Department and other agencies reported on thehuman rights situation in Myanmar in 2007 and 2011, which state that the government is suspected of periodically blocking free e-mail and putting e-mailunder surveillance (p. 21 of translation of Plaintiff's Exhibit C2, paragraph 16.07~ 16.15 of Plaintiff's Exhibit C 17.). During this period, it is dif cult to understand rationally that the group who recognized the situation in the country andwas still earnestly orchestrated to implement political activities that could be
suppressed by the government, may not contact without protection,without encryption or secret language. Otherwise, it would possibly expose the contents of
exchange to the government when they were involved in cross-border communications regarding political activities.
According to what had been actually communicated using the Address, atthe beginning of the communication between the Address and the Z27 Address,[the user of] the Address requests Z 27 to send a photograph of the activities in
Myanmar without warning (Plaintiff's Exhibit A43-9: 40), then Z 27 sends a photograph showing the results of the billposting (Plaintiff's Exhibit A 53 ~ 57), etc.;
after that, the basic notes (for example, using addresses with encrypted names
and not using real name and phone number for avoiding being traced), thatshould be told at the beginning, were exchanged; on the other hand, the realname of the Plaintiff, Z 1, were shown by himself as the sender of encryptedname and others regardless of the notes; that is, there was an incoherent situation.

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C. Summary
As described above, it is impossible to nd that Plaintiff is involved in allcommunications made using the Address, and even if there is a party involved,
the value of evidence is questionable.
Plaintiff argues, based on the communication made using the Address,
that Plaintiff actively supported the re-reorganization and activities of ABFSU in
Myanmar, but in light of the facts insofar, it cannot be adopted.
(8)Comprehensive Judgment
In summary,[1] The Plaintiff was, rst of allis, a man born in 1967, who belongs to the so-called
88 generations. However, he did not engage in any conspicuous political activities
in Myanmar or Japan until April 2005, when the Decision regarding the First Objection was made. It can be said that he was a person who grew older without participating in social protests in earnest.
[2] After the Decision regarding the First Objection, Z 11 formed the Tuetit Revolutionary Group and published the revolutionary magazine. And through Z 11,
one of the 88 generation student leaders who was an old acquaintance with thePlaintiff, the Plaintiff provided a small number of funds for Z 11's activities and was
involved in a hunger strike in front of the Myanmar Embassy. However, these activities were small or one-off, were not under the Plaintiff's rm resolve in leading
political activities, and were limited for more than about 2 years from 5 years and 5
months before the Application for Recognition of Refugee Status, the activities were
sporadic after 1 year and more; therefore, it is not found that these activities were
continued consistently including the time after that.
According to the Opinion of the Counselor's Majority:
the Plaintiff objectively proves the existence of the Revolutionary
Magazine which he published, edited and authored,
concerning the claims that he also led the hunger strike, communicatedwith the 88 generation student leaders, became the person in charge of the Japan
Branch of Refugees Burma, and was served as a central executive member of the
ABFSU re-grouped in his home country in June, the Plaintiff does not prove themobjectively and directly, however, his statements are concrete, consistent in principle, without any contradictions, and consideration should be given to the dif culty of proof,
therefore, as a whole, the Plaintiff's activities include the continuity and

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consistency of political beliefs and expressions of anti-government will, and thePlaintiff's initiative is found in part of activities,
thus, it is considerable to recognize the Plaintiff as refugee status(Plaintiff's Exhibit A 5). However, the actions of the Plaintiff with ABFSU, taken
together with the shreds of evidence submitted after the ling of this case, must be
evaluated as [3] above. Also, as mentioned as [2] above, the political activities that
Plaintiff temporarily engaged in after the Decision regarding the First Objection
were small and one-off and settled after a while. In addition to the background of
the Plaintiff mentioned as [1] above, it is dif cult to recognize that the evaluation of
the political belief, continuity, and consistency and initiative of the political expression of the Plaintiff in the majority opinion of the Counselor is appropriate.
Taken together, even in light of the political situation prevailing by the
military government in Myanmar at the time of the Denial of Recognition of
Refugee Status (Found Facts in (1) A (E) and (F).), the Plaintiff cannot be recognized
to be a person who owes a well-founded fear of being persecuted for political opinion.

CONCLUSION
Therefore, the Denial of Recognition of Refugee status which did not recognize thePlaintiff as a refugee is lawful; the Plaintiff's claims were groundless and shall be dismissed.
Concerning the burden of court costs, Article 7 of the Administrative Case Litigation Act andArticle 61 of the Code of Civil Procedure shall be applied, and the judgment shall berendered as stated in the main text.
Tokyo District Court, Civil Affairs Division 38.
Chief Judge Yutaka Taniguchi, Judge Kaoru Hirayama, Judge Baba Jun(The rest is omitted.)

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COMPARATIVE CASE LAW- Refugee Case law from the Republic of Korea -150

CDRQ vol.11

REFUGEE STATUS CLAIM BASED ON
RELIGIOUS CONVERSION―2017guhap673161
Suwon District Court, 13 February 2018 (Iran)
Summarized and Translated by Soojin Lee2

CASE SUMMARY• The claimant is a national of the Islamic Republic of Iran(hereinafterreferred to as Iran) who entered Korea under a C-3 visa (short-term visit),
then overstayed for 13 years.
• The claimant received a deportation order and detained at Hwa-sungdetention center where he lodged a refugee status application claiming that
he has converted from Muslim to Christian during his stay in Korea,
therefore he is in fear of being persecuted if returned to Iran.
• The chief of the detention center issued non-recognition decision against
the claimant’s claim. The claimant appealed to the minister of justice for asecond instance review but was rejected.
However, the district court reasoned that:
1) Although the court suspects on the possibility of the claimant’s
purpose of lodging a refugee application was to extend the period of
sojourn, the court also considers the circumstances that the claimant
delayed applying for refugee due to possible persecution on himself andhis family from the Iranian government for conversion, and to reduceany risk since the claimant was uncertain whether his refugee claim will
be recognized. Therefore it is dif cult to doubt the sincerity of theclaimant’s statement on conversion merely because the claimant failed
to apply for refugee status in timely manner.
2) The fact that the claimant was baptized and have been actively
practicing his religious belief by introducing Christianity to otherIranians and participated in street missionary activities;

1. 수원지방법원 2018. 2. 13. 선고 2017구합67316 판결 [난민불인정결정취소]2. Ph.D. candidate at the University of Tokyo, RA at the Research Center for Sustainable Peace, and an Editor of the CDRQ vol. 11 - Special
Issue. She worked as a Senior Protection Assistant at UNHCR representation in the Republic of Korea. She holds LLB from Soka
University(Japan), and LLM from Temple University (PA, USA).

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3) A national of Iran’s involvement in such missionary activities beyonda mere conversion to Christianity can cause an arbitrary arrest andquestioning with a possibility to mental and physical torture.
Therefore the court saw it is reasonable to consider that the claimant has awell-founded fear of being persecuted if returned to Iran for conversion to
Christianity. The court decided that the claimant’s refugee claim is recognizedunder the Refugee Act Art. 2 cla.13.

3. Refugee Act of Korea(Act No. 14408, Dec. 20, 2016) Article 2 (De nitions) Art.2 cla. 1 The term "refugee" means a foreigner who isunable or does not desire to receive protection from the nation of his/her nationality in well-grounded fear that he/she is likely to be persecuted based on race, religion, nationality, the status of a member of a speci c social group, or political opinion, or a stateless foreigner who
is unable or does not desire to return to the nation in which he/she resided before entering the Republic of Korea (hereinafter referred to as"nation of settlement") in such fear;

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CDRQ vol.11*Disclaimer: This is an unof cial translation and provided for reference and academic purpose only. The author cannot be held responsible
for any erroneous translations and is presented as is. The original case law in Korean is leading and is publicly available at the Korean Law
Information Center (https://www.law.go.kr/).

SUWON DISTRICT COURT
THE 5TH ADMINISTRATIONADJUDICATION
Case

2017Guhap67316“Appeal for the Cancellation of Denied
Refugee Status Recognition”

ClaimantA
Hwasung City
Legal counsel ***Attorney ***Defendant

Chief of the Hwasung Detention Center

Date of Hearing

30 January 2018

Date of Adjudication

13 February 2018

ORDER
1.

The defendant is to be responsible for all related litigation fees.

2.

The defendant’s denial of the claimant’s application for refugee recognition dated
15 February 2017 is cancelled.

CLAIMS
Same as order.

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GROUNDS
Proceedings of Defendant’s Denial

A. The claimant is a national of the Islamic Republic of Iran (hereinafter referred to asIran) who entered South Korea on 15 October 2000 with a short-term visa (C-3).

B. The claimant overstayed beyond the expiration date of sojourn period on 14
November 2000, then declared to the immigration of ce on 22 May 2002 during thegrace period voluntary departure for illegal migrants, and received an exit order toleave Korea by 15 October 2003.

C. On 16 October 2003, the claimant was granted a Non-professional Employment
visa (E-9) through the legalization measure for illegal migrant, then overstayed beyond the expiration date of sojourn period on 13 February 2005.

D. On 19 August 2016, the claimant was arrested for an illegal stay, then received adeportation order. While he was detained at the Hwasung Detention Center he applied for refugee status recognition with the defendant on 30 August 2016, claimed
that he has converted to christianity during his stay in Korea, therefore he will receive
religious persecution if returned to Iran.

E. On 15 February 2017, the defendant issued a non-recognition decision with areason that the claimant doesn’t have ‘a well-founded fear of being persecuted’.
[Evidence] Kap-1•The fact where the claimant applied for a refugee status only after being cracked
down as an illegal immigrant although the claimant asserts that his conversion to
Christianity was reported three times to the Iranian Embassy, the Iranian government, and his home town.
•The fact where the claimant, as a general believer, only participated in church
activities such as worship and Bible study, but never actively and openly evangelized, and his family in his home country also recognizes the claimant’s conversion
to Christianity without asking for or opposing it.
•The fact that after the conversion, the claimant visited the Iranian Embassy torenew his passport, but there were no disadvantages or problems related to the conversion of Christianity.
•The fact that an acquaintance of the claimant who knows information about
refugees or the church the claimant attends did not recommend or guide theclaimant to apply for refugee status.
•The fact that the conversion of Christianity in Iran is subject to government suppression is true, but it is dif cult to say that it is a serious violation of human rightsthat can be called persecution under the Refugee Convention, even if there is somediscrimination in education and economic activities.
On 13 March 2017, the claimant appealed the non-recognition decision to the

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minister of justice (appealed to the second instance review), then was rejected on 8
June 2017.
2.

The legality of the ruling

A. Claims of the claimant
Considering the following circumstances, the claimant has "a well-founded fearthat he will be persecuted" when he returns to Iran, therefore the defendant's decision on the case was established on different premises and is in violation of thelaw.

1) The claimant was running a supermarket with his father in Iran, then entered
Korea on 15 October 2000 to purchase goods for his supermarket. He resided in
Korea as a manual laborer knowing that his sojourn period had expired, he wasbaptized after learning about “C” church through his friend “B” while was hospitalized for a leg injury.

2) Later, “B” died on 26 January 2010 and was buried in Christian style but his
family refused to receive his body because he was a Christian convert, and theembassy was aware of this fact so it was impossible to transport “B”s body to Iran.
On the other hand, in the process of delivering “B”’s death insurance to his family(Evidence Kap-11, Kap-12), the claimant was rumored among the Iranians in
Korea that he is attending “C” church, then his home in Iran was visited by an intelligence of cer who monitors the religion (Evidence Eul-5).

3) The claimant was active in evangelizing, converted and baptized three Iranians, including “D” and “E”. “D” was forced to leave Iran after being baptized on
5 September 2019, and beaten to death by police authorities in Iran on 25 July
2015 (Evidence Kap-10). “E” and his spouse and daughter were baptized on 12
August 2012 then left to Iran on 17th, then the daughter ed to Turkey because
she could not live a religious life (Evidence Kap-9), and “C” church is the one that
the Iranian government is paying attention to and manages the information of Iranians entering.

4) The claimant renewed his passport twice at the Iranian Embassy in Korea, but
the claimant did not apply for refugee status at the time, so the person in charge
did not con rm further. “F” who informed the claimant’s family in Iran about theconversion of the claimant, and who had maintained a good cooperative relationship with the Iranian Embassy, and a good acquaintance of the claimant, has recently returned to Korea after going to Iran.

5) The claimant’s refugee claim was developed during his stay in Korea, and theclaimant delayed applying for refugee status due to the possibility of theclaimant's detention, an anticipation for the Iranian government's change in attitude toward Christianity, the impact on the claimant and his families. If theclaimant is forcibly deported to Iran, the claimant is highly likely to be a subjectof investigation from the moment he lands at the airport so he will be at a highrisk of being persecuted. Even the country of origin information on the Iranian

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government’s persecution against Christian converts is evident in reports by international organizations and such.

B. Related Laws
Related laws are provided as an attachment.

C. Agreed Facts
1) The claimant’s entry to Korea and application for refugee statusa)

The claimant was born in “G” of Iran on 23 December 1963. His father,brother, and sister are currently living in Iran (mother deceased in January2004).

b)

The claimant was running a supermarket with his father in Iran, and borrowed 3,500,000 Toman to travel to Korea, then entered Korea on 15 Octbober 2000 with a short-term visa(C-3). The claimant stayed illegal for 13
years, then was arrested and received a deportation order, then applied for a
refugee status recognition on 30 August 2016.

2) Iran’s repression of Christianitya)

The 2016 Annual Report of the United States Commission on International
Religious Freedom (Evidence Kap-13)on Iran's religious freedom, reported that
‘The Iranian government's religious freedom situation continued to deteriorate, especially for Christian converts, and since 2010, more than 550 Christians have been arrested, and as of February 2016, about 90 Christians havebeen imprisoned or awaiting trial for religious beliefs and activities. particularly for Christian converts and others’4.

b)

The UK Home Of ce's 2014 Country Information and Guidance on Christians in Iran and conversion to Christianity (Evidence Eul-9, Eul-10) reported
that ‘Those who convert from Islam to Christianity are considered apostatesand punished by criminal law in Iran, so those who actively preach the gospeland engage in conversion will be placed under the actual threat of persecution in Iran, and it will be appropriate to give them protection’5.

c)According to the UNHCR (United Nations High Commissioner for
Refugees)’s Response to the Factual Inquiry dated 3 July 2017 (Evidence
Kap-20), the Islamic law(Sharia law) does not recognize the right to convert toMuslims, and if Christians who converted from Muslim engage in notable religious activities, they are threatened with persecution upon return, and when

4. Translator’s comment: This excerpt was once translated from English to Korean for court submission, then translated to English again forthis paper. For more information on the COI, please refer to the following original COI report.
United States Commission on International Religious Freedom, USCIRF Annual Report 2016 - Tier 1 CPCs designated by the State Department and recommended by USCIRF - Iran, 2 May 2016, available at: https://www.refworld.org/docid/57307cf84.html [accessed 6 April
2021]
5. Translator’s comment: This excerpt was once translated from English to Korean for court submission, then translated to English again forthis paper. For more information on the COI, please refer to the following original COI report.
United Kingdom: Home Of ce, Country Information and Guidance - Iran: Christians and Christian Converts, December 2014, available at:https://www.refworld.org/docid/561f53164.html [accessed 6 April 2021]

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a Christian returns to Iran and attend and evangelize Christian church services, there’s a risk of arbitrary arrest and interrogation. During detention, it iscommon for those responsible to be exposed to physical and mental torturefor information or confession, and at least 193 Christians are arrested or imprisoned in 2016.

d)

The Ministry of Justice's 2013 Country Information Guide on Iran statesthat converting from Islam to Christianity can be disadvantaged in college
admissions and passport issuance, but in reality, new religious life is allowed(such as attending weekly worship), however, active engagement to the public
and evangelize can lead to serious oppression.

3) The claimant’s activity in Koreaa)

The claimant was introduced to “C” Church by his Iranian friend “B” andregistered as a member of “C” Church on April 30, 2006, and was baptized by
C Church on February 7, 2010.

b)

The claimant actively engaged in religious activities by inviting Iranians in
Korea to eat, introduce their faith, and bring a large number of Iranians to the“C” Church’s Iran team through evangelical activities on the street, especiallyintroduced “D” and “E” to church and baptized “D” on 5 September 2019,
and “E” on 12 August 2012.

c)

The “C” Church's 2017 Autumn Journal (Evidence Kap-24) contains interviews and photos related to Christian activities of the claimant, and photos ofdomestic volunteer activities.

d)“Lee **”, a witness working as a deacon in the Department of Foreign Mission in the “C” Church, testi ed in this court as follows, and the same church
members are also pleading for the authenticity of the claimant's Christian faith(Evidence Kap-23).

[Witness “Lee**”’s testimony]Q:

When did you get to know the claimant?

A:

It was in autumn 2010 when I was doing volunteer work at the Iran team.

Q:

Tell us the claimant’s faith as you have seenA:

I’ve been doing volunteer work for 8 years for the Iran team now, and he’s
been keeping his unwavering faith, the faith that can be modeled after even
by Koreans. In particular, the church is located in Dongdaemun, about twohours by bus from Hwasung but he never missed a weekly worship.

Q:

Do you remember when the claimant told you or sent you about inviting or
sharing with the Iranians about the christian doctrine?

A:

I've often seen it since I served in Iran team, and I've been invited his home
twice to talk to him.

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Q:

Can you explain to us what happened at that time?

A:

We talked about life, religious life, and shared prayers.

Q:

Are the Iranians who attended the meeting the claimant evangelized orcame to church at the same time?

A:

Some were the ones evangelized by him and some were the ones came tochurch at the same time.

Q:

Have you seen or heard the claimant doing evangelical work on the street?

A:

In the early days when the embassy’s surveillance wasn’t too much, hewent together with other volunteers near the church, and refrained fromdoing so when the embassy’s surveillance seems to be heavy. (omitted)

Q:

Have you seen any Iranians introduced to the church from the evangelicalwork on the street?

A:

Yes I have. Particularly a person named “xx” and “H”, and another person
named “I” recently, and “J” introduced two other people to the church.

Q:

Do you think the claimant was enthusiastic in evangelic activities to the
Iranians?

A:

It could be a bit different depending on the standard, but I think he wasvery enthusiastic. In fact, it is not easy for Koreans to evangelize. I havebeen a believer for nearly 30 years, but it is shameful that I didn’t do directevangelism, but the fact that K has conducted several people directly canbe seen as a great activity.

Q:

Is it known to Iranians in Korea that the claimant converted to Christianity
and worked hard on evangelism?

A:

I think so.

Q:

Why is that?

A:

I think because he is doing a lot of evangelism, the Iranians can recognize
it well.

Q:

So that means, the people of the Iranian Embassy can fully learn if they intend to, the claimant’s conversion to Christianity and he is living evangelism?

A:

You can say that.

D. Judgment
1) Comprehensively considering the provisions of Articles 1, 2(1) of the Refugee
Act, Article 1 of the 1951 Convention on the Status of Refugees (hereinafter referred to as the "Convention on Refugees") and Article 1 of the 1967 Protocol on
the Status of Refugees; the Minister of Justice shall recognize a refugee asprovided by the “Convention on Refugees” if there is an application from a foreigner who cannot be protected by the country of nationality or who does not

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want to return to the country of dwelling before entering the Republic of Korea
due to well-founded fear of being persecuted for race, religion, nationality, or
political opinion, or for being a member of a particular social group.
At this time, the ‘persecution' that a foreigner will receive is 'an act that causes
grave infringement or discrimination against the essential dignity of human beings,
including threats to life, body, or freedom.'
Furthermore, “well founded fear” of being persecuted should be proved by aforeigner who is applying for refugee status recognition, however, in considerationof the special circumstances of refugees, the foreigner in question shall not be
required to prove the entire claim on objective evidence, and it can be said thatthe claim is proved if the statement is consistent and persuasive, and if it is reasonable to acknowledge the claim based on the credibility of the overall statement
in light of the route of entry, the timeline of refugee application, the situation of
the country of origin, subjective degree of fear, the political, social and culturalenvironment of the region where the applicant lived, and the the degree of fear,
etc. felt by ordinary people in the area (see, e.g., Supreme Court decision 2016Du56080 decided 11 July 20176; Supreme Court decision 2016Du42913 decided
5 December 20177; Supreme Court decision 2007Du3930 decided 24 July
20078).
And refugees can be recognized when there is a “well founded fear of being
persecuted” as a result of actions such as expressing political opinions in the
country of dwelling after leaving the country of nationality, and providing thecause for persecution in order to be protected as refugee is not something thatshould be considered differently (see, e.g., Supreme Court decision 2013Du16852
decided 9 March 20179; Supreme Court decision 2007Du19539 decided 24 July

6. Translator’s comment: (대법원 2017.7.11 선고 2016두56080 판결) This is the case where the court reasoned on the meaning of "speci csocial groups" de ned in Article 2 subparagraph 1 of the Refugee Act and whether if sexual orientation of homosexuality falls within the
category of “speci c social groups”; the meaning of “persecution” that refugee applicant is at risk and the requirement for homosexuals tobe recognized as refugees; and who has the burden of proof for “well founded fear” of being persecuted.
The court concluded that in the case of serious infringement or discrimination against the dignity of human beings, including threats tolife, body, or freedom, beyond the general social criticism on the grounds of sexual orientation of refugee applicants; it can be considered as“being persecuted” as referred in the Refugee Convention. Therefore, in order for a homosexual to be recognized as a refugee, he/she must
be who entered Korea because his/her sexual orientation was disclosed in his/her country of origin therefore was persecuted speci cally,and has “well founded fear” of being persecuted by certain members of society or the government if they return to the country of origin. This
“well founded fear” of being persecuted shall be proved by the refugee applicant.
7. Translator’s comment: (대법원 2017.12.5 선고 2016두42913 판결) This case is discussed later in this section from pg. 163.
8. Translator’s comment: (대법원 2007.7.24 선고 2007두3930 판결) This the rst case in Korea where the refugee applicant was recognized
as a refugee at the Supreme Court level. At the time of the decision, the Refugee Act as an independent law was yet to be adopted, relevant
provisions for refugee and asylum seekers protection were provided under the Immigration Control Act. The de nition of the term “refugee”
was provided in the Art.2 Para.2(2) fo the Immigration Control Act, which was in accordance with the Art. 1(A)(2) of the 1951 Refugee
Convention. However, 1951 Refugee Convention lacks a precise de nition of the term “persecution”, so did the Immigration Control Act.
Against this backdrop, the court delivered for the rst time the meaning of “persecution” as “an act which may cause serious infringementof, or discrimination against the dignity of human being, including any threat to life, physical integrity, and/or freedom. This is one of theleading case that presented certain criteria and direction point on applying and understanding unfamiliar international instrument such as
the Refugee Convention.
9. Translator’s comment: (대법원 2017.3.9 선고 2013두16852 판결) This case is discussed later in this section from pg. 173.

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200810).

2) According to the above and previous evidence, the claimant has “well founded fear” of being persecuted by the Iranian government for his conversion to
Christianity if returned to Iran. Therefore, the claimant of this case falls within the
category of refugee provided under Art. 2 subparagraph 1 of the Refugee Act, thedefendant's disposition of this case against the claimant on this other premise is inviolation of law.

(a) Although the claimant’s sincerity for his refugee claim is doubtful as he applied for refugee status after he was detained and received deportation orderfor illegally staying for 13 years, the fact that the claimant is a refugee sur place
due to his conversion to Christianity after he entered Korea should be considered. Also it is possible that the claimant delayed applying for refugee dueto the Iranian government’s oppression on him and his family because of conversion, and that he was uncertain whether his refugee claim would be recognized. Therefore it is dif cult to deny the credibility of his statement regarding
his conversion.

(b) Rather, the claimant was introduced to “C” church by his Iranian friend “B”,
and registered as a congregation on 30 April 2006, then baptized at “C”
church on 7 February 2010. The claimant continued his religious life for a considerable period of time, and actively engaged in religious activities, such as
inviting Iranians to his home to introduce Christianity or bringing a large number of Iranians to “C” church through a evangelism activity on the street.

(c) Also in the autumn 2017 issue of the “C” church’s newsletter, an interview
of the claimant on his christian activity including photos and volunteer works
were introduced; the claimant seems to continue his religious activities evenafter the result of his refugee status determination; and church members suchas “C” church’s deacon Lee ** continue petition for the sincerity of theclaimant's Christian faith. Considering all of the above circumstances, it seems
that the claimant's religious life was announced objectively by actively engaging in religious activities externally.

(d) However, putting together the 2016 Annual Report of the United States
Commission on International Religious Freedom, the UK Home Of ce's 2014
Country Information and Guidance on Christians in Iran and conversion to
Christianity, the UNHCR’s response to the Factual Inquiry, and the Ministry ofJustice's 2013 Country Information Guide on Iran, an Iranian who go beyond amere conversion to Christianity and actively conduct evangelism, it seems thatthe person will be at a risk of arbitrary arrest and interrogation by the Iranian
government, and will be exposed to physical, metal torture.

(e) Determine to hide one’s religious belief because of possible discrimination
10. Translator’s comment: (대법원 2008.7.24 선고 2007두19539 판결) In this case, the court ruled 1) whether he/she can be recognized as a
refugee even if he/she expresses his/her political opinion in the country of residence after leaving the country of nationality; and 2) the
meaning of 'persecution' as a requirement to be recognized as a refugee, and the degree of burden of proof by a refugee applicant, andthe whether there is a 'well founded fear' of being persecuted.

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from the State if disclosed does not exactly falls under the term “persecution”
described in the Refugee Convention (Seoul High Court decision
2017Nu74803 decided 18 January 2018), the claimant of this case was actively engaged in evangelic activities and such activities were signi cantly disclosed externally, the claimant expected to face the risk of being exposed tophysical and mental harm if forcibly returned to Iran.
3.

Conclusion

It follows from the foregoing that the claimant’s appeal is well-grounded and therefore
the court accepts the claimant’s appeal and rules as stated in the order.
The presiding Judge ***Judge ***
Judge ***——————————————————————————RELATED LAWS[The Refugee Act of Korea]
Article 1 (Purpose)
The purpose of this Act is to prescribe matters concerning the status, treatment, etc.
of refugees in accordance with the 1951 Convention Relating to the Status of
Refugees (hereinafter referred to as the "Refugee Convention") and the 1967 Protocol
Relating to the Status of Refugees (hereinafter referred to as the "Refugee Protocol").
Article 2 (De nitions)
The terms used in this Act shall be de ned as follows:
1. The term "refugee" means a foreigner who is unable or does not desire to receive protection from the nation of his/her nationality in well-grounded fearthat he/she is likely to be persecuted based on race, religion, nationality, thestatus of a member of a speci c social group, or political opinion, or a stateless foreigner who is unable or does not desire to return to the nation in which
he/she resided before entering the Republic of Korea (hereinafter referred to as"nation of settlement") in such fear;
Article 5 (Application for Refugee Status)

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CDRQ vol.11(1) Any person who intends to obtain refugee status as a foreigner within the Republic of Korea may apply for refugee status with the Minister of Justice. In such cases,
the foreigner shall submit a written application for refugee status to the head of thelocal immigration of ce or foreigner-related of ce. <Amended by Act No. 12421, Mar.
18, 2014>(6) A refugee applicant may stay in the Republic of Korea until a decision of recognition or non-recognition of refugee status is made nal and conclusive (where an administrative appeal or administrative litigation against a decision of non-recognitionof refugee status is under way, until such procedures are complete).
(7) Matters necessary for detailed methods, procedures, etc. of application forrefugee status other than those provided for in paragraphs (1) through (6) shall beprescribed by Ordinance of the Ministry of Justice.
Article 18 (Recognition, etc. of Refugee Status)(1) Where the Minister of Justice deems that an application for refugee status is wellgrounded, he/she shall decide that the refugee applicant is recognized as a refugee
and issue a certi cate of recognition of refugee status to the refugee applicant.
(2) Where the Minister of Justice makes a decision on an application for refugee status that the refugee applicant does not constitute a refugee, he/she shall deliver a
notice of decision of non-recognition of refugee status to the refugee applicant by
including the grounds therefor and the message that the refugee applicant may raise
an objection within 30 days therein.

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REFUGEE STATUS CLAIM BASED ON FGM―2016du429131
Supreme Court of Korea, 5 December 2017
(Liberia)
Summarized and Translated by Soojin Lee2

CASE SUMMARY
The petitioner is a national of the Republic of Liberia (hereinafter referred toas Liberia), 14 years old female who was born in the refugee camp in Ghana
then entered Korea with her mother on 7 March 2012.
The The petitioner's mother applied for refugee status on behalf of thepetitioner claiming that if the petitioner returns to her country of origin, shemust join the ‘Sande Bush School’ and receive female genital mutilation.
The defendant did not recognize the petitioner’s refugee status with a reason
that ‘the petitioner’s mother’s refugee status cannot be recognized; therefore, thepetitioner cannot be recognized as well’.
The petitioner lost her case in the district court(Seoul Administrative Court
Decision 2015gudan2331 decided 9 July 2015). The district court reasoned thatthe petitioner failed to prove her membership to particular social group, and she
couldn’t state speci cs of the persecution she received from the ‘Sande society’,and the petitioner’s mother spent 25 years outside of her country of origin
without a threat by the 'Sande society’.
The petitioner lost her case in the appellate court(Seoul High Court Decision
2015nu55136 decided 31 May 2016), the court af rmed the original ruling.
The Supreme court reasoned that:1)

According to Article 76-2(3) to (4) of the former Immigration Act(amended by Act No. 11298, Feb. 10, 2012; hereinafter the same) and
Article 88-2 of the former Enforcement Decree of the Immigration Act(amended by Presidential Decree No. 24628, Jun. 21, 2013; hereinafter
the same), an administrative agency, upon receiving an application, shalldetermine refugee status after interviewing the applicant and investigating

1. 대법원 2017. 12. 5. 선고 2016두42913 판결 [난민불인정결정취소]2. Ph.D. candidate at the University of Tokyo, RA at the Research Center for Sustainable Peace, and an Editor of the CDRQ vol. 11 - Special
Issue. She worked as a Senior Protection Assistant at UNHCR representation in the Republic of Korea. She holds LLB from Soka
University(Japan), and LLM from Temple University (PA, USA).

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the facts. Upon deciding to deny refugee status, an administrative agency
shall provide the applicant with a written noti cation stating the reason
for its decision. The written noti cation is provided to ensure theadministrative agency’s issuance of a reasonable administrative disposition
after careful investigation and determination of the requirements forrecognition of refugee status; and to prove the basis for such disposition to
the applicant so that he/she may conveniently le an appeal; and (iii)
setting a clear scope of judicial review to uphold the trust and guarantee
the procedural right of interested parties.
2)
In full view of the language, structure, and legislative intent of Article 2
Subparag. 3 and Article 76-2(1), (3), and (4) of the former Immigration Act,
Article 88-2 of the former Enforcement Decree, Article 1 of the 1951
Convention Relating to the Status of Refugees, and Article I of the 1967
Protocol Relating to the Status of Refugees, an administrative agency thatreceived an application for recognition of refugee status, as a matter ofprinciple, may decide whether to recognize refugee status by examining
whether the applicant satis es the requirements for recognition of refugee
status prescribed under law, but may not deny refugee status by citing
other reasons that are irrelevant to the requirements.
3)“Persecution due to membership in a particular social group” is therequirement for recognition of refugee status. Here, “a particular socialgroup” refers to a group of individuals sharing an innate characteristic, an
immutable shared history, or a characteristic or religious faith sofundamental to their individual identities or conscience that they ought
not to be required to renounce it and who form a separate group which isperceived by the surrounding society as being distinct. Further,“persecution” to which a given foreigner is likely to be exposed means
acts causing serious infringement of, or discrimination against, inherent
human dignity, including threats to life, liberty, or security of a person.
4)“Female genital mutilation” refers to an act of partial or complete
removal of or injury to a female reproductive organ for non-medical
purposes, namely, traditional, cultural, and religious factors. Not only
does it directly in ict excruciating pain on a woman’s body but is also an
infringement of human dignity, thereby constituting “persecution due tomembership in a particular social group.” Therefore, in a case where afemale refugee status applicant is deported to her country of nationality,
and the same applicant is deemed to be at risk of being forced against her
will to undergo genital mutilation and cannot expect suf cient protection
from her country of nationality, such instance falls under cases where
refugees are unable to avail themselves of the protection of the country of
their nationality owing to a well-founded fear of being persecuted.
Moreover, the “risk of being forced to undergo female genital mutilation”
goes beyond a general and abstract risk to mean cases where a refugee
status applicant is exposed to an individual and speci c risk, and whether
such individual and speci c risk of female genital mutilation exists should

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be reasonably acknowledged based on objective evidence associated withthe applicant’s given condition, namely, familial, regional, and social
factors.

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CDRQ vol.11*Disclaimer: This is an unof cial translation and provided for reference and academic purpose only. The author cannot be held responsible
for any erroneous translations and is presented as is. The original case law in Korean is leading and is publicly available at the Korean Law
Information Center (https://www.law.go.kr/).

SUPREME COURT OF KOREA
THE 3RD DIVISIONADJUDICATION
Case

2016Du42913“Appeal for Revocation of Denial of Refugee
Status”

PetitionerA
B the mother of A, on behalf of A who is a minor

Respondent

Head of the Seoul Immigration Of ce

Original Judgment

Seoul High Court decision 2015Nu55136 decided
31 May 2016

Date of Adjudication

5 December 2017DISPOSITION
1.

The case is reversed and is remanded to the Seoul High Court.

REASONING
1. The court examined the following ex of cio.

A. In full view of Art. 2 Subparag. 3 and Art. 76-2(1) of the former Immigration Act(amended by Act No. 11298, Feb. 10, 2012), Art. 1 of the 1951 Convention Relating
to the Status of Refugees, and Article I of the 1967 Protocol Relating to the Status of
Refugees, any foreigner who, owing to a well-founded fear of being persecuted forreasons of race, religion, nationality, membership of a particular social group, or
political opinion, is unable or, owing to such fear, is unwilling to avail himself/herselfof the protection of the country of his/her nationality shall be recognized as a refugee

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within the meaning of the Convention following a procedure for application of
refugee status under the relevant law (see, e.g., Supreme Court Decision 2016Du56080 date 11 July 20173).
According to Article 76-2(3) to (4) of the former Immigration Act (amended by Act
No. 11298, Feb. 10, 2012) and Article 88-2 of the former Enforcement Decree of the
Immigration Act (amended by Presidential Decree No. 24628, Jun. 21, 2013), an administrative agency where a refugee application is lodged, shall determine the applicant’s refugee status by interviewing the applicant and investigating the facts. The
applicant shall be provided with a written noti cation stating the reasons for the decision if the agency determines to deny the applicant’s refugee claim. The purpose of
the written noti cation is to ensure that the competent administrative agency issues areasonable administrative disposition through a careful investigation and determination of the requirements for recognizing a refugee status; to provide the applicant thebasis for such disposition so that the applicant may conveniently le an appeal; andto set a clear scope of judicial review to uphold the trust and guarantee the procedural right of interested parties.
In full view of the language, structure, and legislative intent of the statutory provisions as seen supra, an administrative agency that received a refugee status application may decide whether to recognize refugee status by examining whether the applicant satis es the requirements to be recognized as a refugee prescribed under thelaw, but may not deny refugee status by only citing other reasons that are irrelevant to
the requirements.

B. Meanwhile, “persecution due to membership in a particular social group” is therequirement for recognition of refugee status. Here, “a particular social group” refers
to a group of individuals sharing an innate characteristic, immutably shared history,
or a characteristic or religious faith so fundamental to their individual identities orconscience that they ought not to be required to renounce it and who form a separate
group perceived as being distinct by the surrounding society. Further, “persecution” towhich a given foreigner is likely to be exposed means acts causing serious infringement of, or discrimination against, inherent human dignity, including threats to life,
liberty, or security of a person (see Supreme Court Decision decided 11 July 2017
2016Du56080).
“Female genital mutilation” refers to an act of partial or complete removal of or
injury to a female reproductive organ for non-medical purposes, such as traditional,
cultural, and religious factors. This is an act of direct harm that in ict excruciating
pain on a woman’s body, and infringement of human dignity, thereby constituting“persecution” due to membership in a particular social group. Therefore, in a casewhere a female refugee status applicant is deported to her country of nationality, andthe same applicant is deemed to be at a risk of being forced to receive genital mutilation against her will and cannot expect suf cient protection from her country of origin, such instance falls under cases where refugees are unable to avail themselves
3. Translator’s comment: (대법원 2017.7.11 선고 2016두56080 판결) see fn.6 of the case Suwon District Court decision 2017guhap67136
provided in this section from pg. 157.

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protection of the country of their origin owing to a well-founded fear of being persecuted. Moreover, the “risk of being forced to receive female genital mutilation” goesbeyond a general and abstract risk where a refugee status applicant is exposed to anindividual and speci c risk. The existence of such individual and speci c risk of female genital mutilation should be reasonably acknowledged based on objective
evidence associated with the applicant’s given condition, namely, familial, regional,
and social factors.

2. The reasoning of the lower court’s judgment and the record reveals the following.

A. The Petitioner is a fourteen-year-old girl (date of birth omitted), a national of the
Republic of Liberia (hereinafter “Liberia”). The Petitioner was born in a refugee campin Ghana, then followed her mother, she entered the Republic of Korea on 7th March
2012.

B. The Petitioner’s mother applied for the Petitioner’s refugee status claiming that if
the Petitioner returns to the country of nationality, the Petitioner would join “SandeBush School” where she would then be forced to receive female genital mutilation.

C. However, without considering the possibility of the Petitioner being forced to receive female genital mutilation if she were to return to her country of nationality, theRespondent decided not to recognize the Petitioner’s refugee claim on the ground:that “The Petitioner is not considered as a refugee given that the Petitioner’s mother’s
refugee status is not recognized.

3.

Examining these facts in light of the legal principles and statutory provisions as seen
earlier, not recognizing the Petitioner as a refugee solely on the ground that the Petitioner’s mother is not recognized as a refugee (hereinafter “instant disposition”) canbe deemed an unlawful disposition that was executed without any legal basis.
In addition, the relevant administrative agency responsible for determining thePetitioner’s refugee claim and the competent court responsible for determining thedisposition thereof should reasonably review objective evidence associated with thePetitioner’s given familial, regional, and social surroundings, such as the Petitioner’s
age and upbringing, tribal origin, status of female genital mutilation taking place in
the Petitioner’s country of nationality, background on why the Petitioner’s mother left
her country of nationality, and whether that country’s government is deemed to be
making all practical efforts necessary to eradicate female genital mutilation; and examine whether there exist an individual and speci c risk of the Petitioner being
forced to receiver female genital mutilation if she were to return to her country ofnationality.

4.

Yet, based on its stated reasoning, the lower court determined that the instant disposition was lawful. By doing so, the lower court erred by misapprehending the legal
principles on the interpretation and application of the requirements for refugee status
recognition, speci cation of disposition grounds, etc., which led to the failure to exhaust all necessary deliberations, thereby adversely affecting the conclusion of thejudgment.

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5.

Therefore, the lower judgment is reversed, and the case is remanded to the lower
court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices

Lee Ki-taik (Presiding Justice)Park Poe-young (Justice in charge)
Kim Chang-suk
Kim Jae-hyung——————————————————————————RELATED LAWS
[Former Immigration Control Act (Amended by Act No. 11298, Feb. 10, 2012)]
Chapter VIII-2 Recognition, etc. of Refugees
Article 76-2 (Recognition of Refugees)(currently deleted)4(1) When the Minister of Justice receives a request for recognition of refugee statusfrom a foreigner staying in the Republic of Korea under the conditions as prescribedby the Presidential Decree, he may recognize the foreigner as a refugee.
(3) When the Minister of Justice has recognized a foreigner as a refugee under paragraph (1), he shall deliver a refugee recognition certi cate to the foreigner, and if not,notify him of the reason in writing.
(4) The procedure of examination on a recognition of refugee under paragraph (1), andother necessary matters, shall be determined by the Presidential Decree.

[1951 Convention Relating to the Status of Refugees]
Article 1 (De nition of the Term “Refugee”)
A. For the purposes of the present Convention, the term “refugee” shall apply to any
person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and
30 June 1928 or under the Conventions of 28 October 1933 and 10 February

4. Translator’s Comment: At the time of the decision, legal provision regarding refugee and asylum seekers were provided under the Immigration Control Act. Any refugee relevant provision were deleted from the Immigration Control Act upon enactment of the Refugee Act inJuly 2013. Please see annex for the latest version of the Korean Refugee Act.

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1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;Decisions of non-eligibility taken by theInternational Refugee Organization during the period of its activities shall notprevent the status of refugee being accorded to persons who ful ll the conditions of paragraph 2 of this section;(2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside thecountry of his nationality and is unable or, owing to such fear, is unwilling toavail 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 ofsuch events, is unable or, owing to such fear, is unwilling to return to it.In thecase of a person who has more than one nationality, the term “the country of
his nationality” shall mean each of the countries of which he is a national,
and a person shall not be deemed to be lacking the protection of the countryof his nationality if, without any valid reason based on well-founded fear, he
has not availed himself of the protection of one of the countries of which he isa national.
B. (1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in article 1, section A, shall be understood to mean either:(a) “events occurring in Europe before 1 January 1951”; or(b) “events occurring in Europe or elsewhere before 1 January 1951,” andeach Contracting State shall make a declaration at the time of signature,
rati cation or accession, specifying which of these meanings it applies forthe purpose of its obligations under this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a noti cation addressed to the Secretary-General of the United Nations.
C. This Convention shall cease to apply to any person falling under the terms of section A if:(1) He has voluntarily re-availed himself of the protection of the country of his
nationality; or(2) Having lost his nationality, he has voluntarily re-acquired it; or

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CDRQ vol.11(3) He has acquired a new nationality, and enjoys the protection of the country of
his new nationality; or(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or(5) He can no longer, because the circumstances in connection with which hehas been recognized as a refugee have ceased to exist, continue to refuse toavail himself of the protection of the country of his nationality; Provided that
this paragraph shall not apply to a refugee falling under section A(1) of thisarticle who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;(6) Being a person who has no nationality he is, because of the circumstances inconnection with which he has been recognized as a refugee have ceased toexist, able to return to the country of his former habitual residence; Provided
that this paragraph shall not apply to a refugee falling under section A(1) of
this article who is able to invoke compelling reasons arising out of previous
persecution for refusing to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.When such protection or assistance hasceased for any reason, without the position of such persons being de nitively settled
in accordance with the relevant resolutions adopted by the General Assembly of theUnited Nations, these persons shall ipso facto be entitled to the bene ts of this Convention.
E. This Convention shall not apply to a person who is recognized by the competentauthorities of the country in which he has taken residence as having the rights andobligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect towhom there are serious reasons for considering that:(a) he has committed a crime against peace, a war crime, or a crime against humanity, as de ned in the international instruments drawn up to make provision in respect of such crimes;

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CDRQ vol.11(b) he has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[1967 Protocol Relating to the Status of Refugees]
Article I (General Provision)
1. The States Parties to the present Protocol undertaken to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter de ned.
2. For the purpose of the present Protocol, the term “refugee” shall, except as regards
the application of paragraph 3 of this article, mean any person within the de nitionof article 1 of the Convention as if the words “As a result of events occurring before
1 January 1951 and …” and the words … “as a result of such events,” in article 1 A(2), were omitted.
3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to
the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.

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REFUGEE STATUS CLAIM BASED ON
POLITICAL OPINION (use of forged ID forrefugee status application)―2013du168521
Supreme Court of Korea, 9 March 2017
(Myanmar)
Summarized and Translated by Soojin Lee2

CASE SUMMARY
The Petitioner is a national of Republic of the Union of Myanmar (hereinafterreferred to as Myanmar), a male who rst entered Korea with a E-9 visa (traineevisa) using his own identity then returned to Myanmar after the traineeship was
nished. The Petitioner re-entered Korea with E-9 visa using ‘B’’s name and ‘B’’s
passport, then lodged refugee application using ‘B’’s name.
The Petitioner claimed that he is the chair of the Korean chapter of ‘Karen
National Union’, where he is was actively involved and led political movement
against Myanmar authority for persecuting minorities including Karen.
The Minister of Justice denied the Petitioner’s refugee status after directlyinterviewed the Petitioner and looked into the relevant matter.
The district court ruled in favor of the Petitioner and reasoned that eventhough the Petitioner overstayed and used forged ID when applied for a refugee
status, in full review of the Country of Origin Information along with theprovided fact of the Petitioner’s participation in anti-government activities, it ishighly likely that the Petitioner has a well-founded fear of being persecuted by
the Myanmar government if returned to Myanmar(Seoul Administrative Court
Decision 2011Guhap38759 decided 26 July 2012).
The decision was af rmed at the appellate court(Seoul High Court Decision
2012Nu25745 decided 19 July 2013).

1. 대법원 2017. 3. 9. 선고 2013두16852 판결 [난민불인정처분취소]2. Ph.D. candidate at the University of Tokyo, RA at the Research Center for Sustainable Peace, and an Editor of the CDRQ vol. 11 - Special
Issue. She worked as a Senior Protection Assistant at UNHCR representation in the Republic of Korea. She holds LLB from Soka
University(Japan), and LLM from Temple University (PA, USA).

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CDRQ vol.11*Disclaimer: This is an unof cial translation and provided for reference and academic purpose only. The author cannot be held responsible
for any erroneous translations and is presented as is. The original case law in Korean is leading and is publicly available at the Korean Law
Information Center (https://www.law.go.kr/).

SUPREME COURT OF KOREA
THE 1ST DIVISIONADJUDICATION
Case

2013Du16852“Appeal for Revocation of Denial of Refugee
Status”

Petitioner

A (Name in Alphabet and the Date of Birth omitted)

Respondent

The Minister of JusticeOriginal Judgment

Seoul High Court decision 2012Nu25745 decided
19 July 2013

Date of Adjudication

9 March 2017DISPOSITION
1.

The nal appeal is dismissed.

2.

The cost of the nal appeal is assessed against the Respondent

REASONING
The grounds of appeal are examined.
1. Ground of appeal No. 1
According to the record, ‘A’ the Petitioner whose real name is ‘XXXX’ (Dateof Birth omitted), entered the Republic of Korea on 29 May 2001 using a passport issued under the false name ‘YYYY’ (Date of Birth omitted). Then the Peti-

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tioner applied for refugee status on 28 August 2009 by using such false identication.
On 17 June 2010, the Respondent directly interviewed the Petitioner who
used such false name and investigated the relevant matter and rendered a disposition of non-recognition decision on the Petitioner’s refugee status application on 25 May 2011 (hereinafter “the instant disposition”).
If so, the party subject to the instant disposition is not a person who does
not exist but is the Petitioner who used the false name ‘YYYY’, it is deemed
appropriate that the Petitioner has considerable legal interest in seeking a cancellation of the instant disposition.
Moreover, there exists a legal interest for challenging a disposition is a matter of ex of cio examination, and as such, a party’s claim thereof merely serves
as a purpose to invoke action ex of cio. Therefore, a lower court’s omission of
judgment on the relevant matter cannot be deemed a lawful ground for appeal(see, e.g., Supreme Court Decision 96Da32706 decided 24 January 1997).
Therefore, the lower court did not err by either misapprehending the legal
principle regarding legal interests in an appeal litigation or omitting judgment
as to preliminary objection thereof.
2. Ground of appeal No.2, and 4
A person can be recognized as a refugee in the event of a ‘well-foundedfear of being persecuted’ stemming from an act such as expression of a political opinion in a country of residence after leaving his/her country of nationality,
and such conclusion does not change even if having provided a cause of persecution to receive refugee protection (see, e.g., Supreme Court Decision
2007Du19539 decided 24 July 20083).
After nding the facts as delineated in its holding, the lower court foundthat the instant disposition was unlawful on the grounds that the Petitioner took
an active interest supporting the Karen people (an ethnic group from Burma) inboth Myanmar and in the Republic of Korea, and enhance their human rights,;that the Petitioner at the time of the instant disposition had a well founded fearof being persecuted by the Myanmar government for activities he carried out in
the Republic of Korea; and the Petitioner did not appear to have applied forrefugee status for merely an economic purpose.
The allegations in this part of the grounds of appeal are nothing more thannding fault with admission and exclusion of evidence and value judgments,
which are the prerogatives of the lower court as a fact- nder. Furthermore,even if examining the reasoning of the lower judgment in light of the record,
the lower court did not err by either misapprehending the legal principle on
3. Translator’s comment: (대법원 2008.7.24 선고 2007두19539 판결) Although the SC in this case ruled in disfavor of the Petitioner who is a
refugee applicant, the court reasoned that the refugee status can also be recognized even if ‘a well founded fear of persecution’ occurs as aresult of actions such as expressing political opinions in the country of residence after leaving the country of origin, and providing the causeof persecution to be protected as a refugee does not mean otherwise. Furthermore, the court reasoned that the term ‘persecution’ is a requirement to be recognized as a refugee, and is an act that causes ‘signi cant infringement or discrimination on human dignity including
treats to life, body, or freedom’.

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the recognition of refugee status or exceeding the bounds of the principle offree evaluation of evidence going against logical and empirical rules.
3. Conclusion
The nal appeal is dismissed, and the cost of the appeal is assessed against
the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices

Kim Yong-deok (Presiding JusticeKim Shin
Kim So-young (Justice in charge)
Lee Ki-taik——————————————————————————RELATED LAWS
[Former Immigration Control Act (Amended by Act No. 11298, Feb. 10, 2012)]
Chapter VIII-2 Recognition, etc. of Refugees
Article 76-2 (Recognition of Refugees)(currently deleted)4(1)

When the Minister of Justice receives a request for recognition of refugee statusfrom a foreigner staying in the Republic of Korea under the conditions as prescribed by the Presidential Decree, he may recognize the foreigner as a refugee.

[Administrative Litigation Act]
Article 8 (Scope of Application)(2)

With respect to the matters not provided for in this Act concerning administrative suits, the provisions of the Court Organization Act, the Civil Procedure Act,and the Civil Execution Act shall apply mutatis mutandis. <Amended by Act No.
6627, Jan. 26, 2002>

Article 12 (Standing to Sue)

4. Translator’s Comment: At the time of the decision, legal provision regarding refugee and asylum seekers were provided under the Immigration Control Act. Any refugee relevant provision were deleted from the Immigration Control Act upon enactment of the Refugee Act inJuly 2013. Please see annex for the latest version of the Korean Refugee Act.

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A revocation suit may be instituted by a person having legal interests to seek the revocation of a disposition, etc. The same shall also apply to a person with legal interests
to be restored by the revocation of a disposition even after the effect of such a disposition, etc. expires upon the lapse of period, the execution of the disposition, etc. andother causes.
[Civil Procedure Act]
Article 423 (Grounds for Appeal to Supreme Court)
An appeal to the Supreme Court may be led only when stating as the grounds therefor that there has been a violation of the Constitution, Acts, administrative decrees, or
regulations, which has affected the judgment.

[1951 Convention Relating to the Status of Refugees]
Article 1 (De nition of the Term “Refugee”)
A. For the purposes of the present Convention, the term “refugee” shall apply to any
person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and
30 June 1928 or under the Conventions of 28 October 1933 and 10 February
1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;Decisions of non-eligibility taken by theInternational Refugee Organization during the period of its activities shall notprevent the status of refugee being accorded to persons who ful ll the conditions of paragraph 2 of this section;(2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside thecountry of his nationality and is unable or, owing to such fear, is unwilling toavail 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 ofsuch events, is unable or, owing to such fear, is unwilling to return to it.In thecase of a person who has more than one nationality, the term “the country of
his nationality” shall mean each of the countries of which he is a national,
and a person shall not be deemed to be lacking the protection of the countryof his nationality if, without any valid reason based on well-founded fear, he

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has not availed himself of the protection of one of the countries of which he isa national.
B. (1) For the purposes of this Convention, the words “events occurring before 1 January 1951” in article 1, section A, shall be understood to mean either:(a) “events occurring in Europe before 1 January 1951”; or(b) “events occurring in Europe or elsewhere before 1 January 1951,” andeach Contracting State shall make a declaration at the time of signature,
rati cation or accession, specifying which of these meanings it applies forthe purpose of its obligations under this Convention.
(2) Any Contracting State which has adopted alternative (a) may at any time extend its obligations by adopting alternative (b) by means of a noti cation addressed to the Secretary-General of the United Nations.
C. This Convention shall cease to apply to any person falling under the terms of section A if:(1) He has voluntarily re-availed himself of the protection of the country of his
nationality; or(2) Having lost his nationality, he has voluntarily re-acquired it; or(3) He has acquired a new nationality, and enjoys the protection of the country of
his new nationality; or(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or(5) He can no longer, because the circumstances in connection with which hehas been recognized as a refugee have ceased to exist, continue to refuse toavail himself of the protection of the country of his nationality; Provided that
this paragraph shall not apply to a refugee falling under section A(1) of thisarticle who is able to invoke compelling reasons arising out of previous persecution for refusing to avail himself of the protection of the country of nationality;(6) Being a person who has no nationality he is, because of the circumstances inconnection with which he has been recognized as a refugee have ceased toexist, able to return to the country of his former habitual residence; Provided
that this paragraph shall not apply to a refugee falling under section A(1) of
this article who is able to invoke compelling reasons arising out of previous

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persecution for refusing to return to the country of his former habitual residence.
D. This Convention shall not apply to persons who are at present receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance.When such protection or assistance hasceased for any reason, without the position of such persons being de nitively settled
in accordance with the relevant resolutions adopted by the General Assembly of theUnited Nations, these persons shall ipso facto be entitled to the bene ts of this Convention.
E. This Convention shall not apply to a person who is recognized by the competentauthorities of the country in which he has taken residence as having the rights andobligations which are attached to the possession of the nationality of that country.
F. The provisions of this Convention shall not apply to any person with respect towhom there are serious reasons for considering that:(a) he has committed a crime against peace, a war crime, or a crime against humanity, as de ned in the international instruments drawn up to make provision in respect of such crimes;(b) he has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

[1967 Protocol Relating to the Status of Refugees]
Article I (General Provision)
1. The States Parties to the present Protocol undertaken to apply articles 2 to 34 inclusive of the Convention to refugees as hereinafter de ned.
2. For the purpose of the present Protocol, the term “refugee” shall, except as regards
the application of paragraph 3 of this article, mean any person within the de nitionof article 1 of the Convention as if the words “As a result of events occurring before
1 January 1951 and …” and the words … “as a result of such events,” in article 1 A(2), were omitted.
3. The present Protocol shall be applied by the States Parties hereto without any geographic limitation, save that existing declarations made by States already Parties to

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the Convention in accordance with article 1 B (1) (a) of the Convention, shall, unless extended under article 1 B (2) thereof, apply also under the present Protocol.

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ANNEX

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A Structured Approach to the Decision Making
Process in Refugee and Other International
Protection Claim- Flowchart recommended by Jdg. Mackey and IARMJ -* The Flowchart is provided with permission by IARMJ for its use on this Journal.

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REFUGEE ACT OF KOREA1
Act No. 11298, Feb. 10, 2012
Amended by Act No. 12421, Mar. 18, 2014
Act No. 14408, Dec. 20, 2016

Article 1 (Purpose)
The purpose of this Act is to prescribe matters concerning the status, treatment, etc.
of refugees in accordance with the 1951 Convention Relating to the Status of
Refugees (hereinafter referred to as the "Refugee Convention") and the 1967 Protocol
Relating to the Status of Refugees (hereinafter referred to as the "Refugee Protocol").
Article 2 (De nitions)
The terms used in this Act shall be de ned as follows:
1. The term "refugee" means a foreigner who is unable or does not desire to receive protection from the nation of his/her nationality in well-grounded fearthat he/she is likely to be persecuted based on race, religion, nationality, thestatus of a member of a speci c social group, or political opinion, or a stateless foreigner who is unable or does not desire to return to the nation in which
he/she resided before entering the Republic of Korea (hereinafter referred to as"nation of settlement") in such fear;
2. The term "person recognized as a refugee" (hereinafter referred to as "recognized refugee") means a foreigner recognized as a refugee under this Act;
3. The term "person granted a humanitarian stay permit (hereinafter referred to as"humanitarian sojourner") means a foreigner granted a stay permit from the
Minister of Justice as prescribed by Presidential Decree as a person who has
rational grounds for recognizing that his/her life, personal liberty, etc. is very
likely to be infringed by torture, other inhumane treatment or punishment orother events even though he/she does not fall under subparagraph 1;

1. This is an of cial English translation available at the Korea Legislation Research Institution (https://elaw.klri.re.kr/eng_service/main.do)

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4. The term "person who has applied for refugee status" (hereinafter referred to as"refugee applicant") means a person who falls under any of the following as aforeigner who has applied for refugee status to the Republic of Korea:(a) A person whose application for refugee status is being screened;(b) A person for whom the period for raising an objection or the period for ling an administrative appeal or administrative litigation has not yet expired
after being subject to a decision of non-recognition of refugee status or adecision of dismissal of an objection to a decision of non-recognition of
refugee status;(c) A person for whom an administrative appeal or administration litigation
against a decision of non-recognition of refugee status is under way;
5. The term "refugee desiring re-settlement" means a foreigner who desires to settle in the Republic of Korea among refugees outside the Republic of Korea;
6. The term "foreigner" means a person without the nationality of the Republic ofKorea.
Article 3 (Prohibition of Compulsory Repatriation)
No recognized refugee, humanitarian sojourner, nor refugee applicant shall be repatriated compulsorily against his/her will under Article 39 of the Refugee Convention
and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Article 4 (Application of Other Acts)
Except as otherwise provided for in this Act, the status and treatment of recognizedrefugees, humanitarian sojourners, and refugee applicants shall be governed by the
Immigration Act.
Article 5 (Application for Refugee Status)(1) Any person who intends to obtain refugee status as a foreigner within the Republic of Korea may apply for refugee status with the Minister of Justice. In such cases,
the foreigner shall submit a written application for refugee status to the head of thelocal immigration of ce or foreigner-related of ce. <Amended by Act No. 12421, Mar.
18, 2014>(2) Where ling an application under paragraph (1), the following documents shallbe submitted:
1. A passport or a certi cate of foreigner registration: Provided, That where it is
impossible to present such, a written explanatory statement thereon;

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2. Where there are materials, such as reference documents for refugee status
screening, such materials.
(3) An application for refugee status shall be led in writing: Provided, That where
the applicant does not know how to write or is unable to complete an application
form on the grounds of disabilities, etc., the public of cial who receives the application shall complete the application form and write down his/her name or af x his/her name and seal together with the applicant.
(4) An immigration control of cial shall positively help foreigners who inquire about
applying for refugee status or express their will to apply therefor.
(5) Where the Minister of Justice receives an application for refugee status, he/sheshall issue a certi cate of receipt to the applicant immediately.
(6) A refugee applicant may stay in the Republic of Korea until a decision of recognition or non-recognition of refugee status is made nal and conclusive (where an administrative appeal or administrative litigation against a decision of non-recognitionof refugee status is under way, until such procedures are complete).
(7) Matters necessary for detailed methods, procedures, etc. of application forrefugee status other than those provided for in paragraphs (1) through (6) shall beprescribed by Ordinance of the Ministry of Justice.
Article 6 (Application Filed at Ports of Entry and Departure)(1) Where a foreigner intends to apply for refugee status when undergoing an entry
inspection, he/she shall submit an application for refugee status to the head of thelocal immigration of ce or foreigner-related of ce having jurisdiction over the portof entry and departure prescribed by the Immigration Act. <Amended by Act No.
12421, Mar. 18, 2014>(2) The head of a local immigration of ce or foreigner-related of ce may allow a person who has submitted an application for refugee status at the port of entry and departure under paragraph (1) at a speci c place in the port of entry and departure
within seven days. <Amended by Act No. 12421, Mar. 18, 2014>(3) The Minister of Justice shall decide whether to refer to refugee status screening fora person who has submitted an application for refugee status under paragraph (1)within seven days from the date on which the application is submitted, and where
he/she fails to decide within such period, he/she shall permit such applicant to enter.

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(4) Basic food, clothing, and shelter shall be provided to refugee applicants at portsof entry and departure for the period prescribed in paragraph (2) as prescribed byPresidential Decree.
(5) Necessary matters, such as procedures for application for refugee status at portsof entry and departure, other than those provided for in paragraphs (1) through (4),shall be prescribed by Presidential Decree.
Article 7 (Posting of Matters Necessary for Application for Refugee Status)(1) The heads of local immigration of ces and foreigner-related of ces shall keep
documents necessary for application for refugee status at the local immigration ofces, foreigner-related of ces, and ports of entry and departure under their jurisdiction and post methods of receipt, rights of refugee applicants and other necessary
matters prescribed by this Act (including posting by electronic methods, such as theInternet) to enable anyone to read such posting. <Amended by Act No. 12421, Mar. 18,
2014>(2) Detailed methods for keeping documents and posting prescribed in paragraph (1)shall be prescribed by Ordinance of the Ministry of Justice.
Article 8 (Refugee Status Screening)(1) The head of a local immigration of ce or foreigner-related of ce who has received an application for refugee status under Article 5 shall interview the refugee
applicant and conduct a fact- nding investigation without delay, and shall report to
the Minister of Justice by attaching the results thereof to the application for refugee
status. <Amended by Act No. 12421, Mar. 18, 2014>(2) Where requested by a refugee applicant, a public of cial having the same genderas that of the refugee applicant shall interview the refugee applicant.
(3) The head of a local immigration of ce or foreigner-related of ce may, if necessary, audio or video record interviews: Provided, That where requested by a refugee
applicant, he/she shall not refuse to audio or video record. <Amended by Act No.
12421, Mar. 18, 2014>(4) The Minister of Justice shall place refugee screening of cers to take full charge ofinterview, fact- nding investigation, etc. at local immigration of ces and foreignerrelated of ces. Matters concerning the quali cations of and duties conducted byrefugee screening of cers shall be prescribed by Presidential Decree. <Amended by
Act No. 12421, Mar. 18, 2014>

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CDRQ vol.11(5) The Minister of Justice may omit part of the screening procedure prescribed inparagraph (1) for refugee applicants in any of the following cases:
1. Where a refugee applicant applies for refugee status while concealing facts,
such as submitting fabricated documents or making a false statement;
2. Where a person who has failed to be recognized as a refugee or a person
whose refugee status has been cancelled under Article 22 applies for refugee
status again without grave circumstantial changes;
3. Where a foreigner who has resided in the Republic of Korea for at least one
year applies for refugee status on the verge of the expiration of the period ofstay or a foreigner subject to expulsion applies for refugee status for the purpose of postponing the execution thereof.
(6) A refugee applicant shall respond to refugee screening in good faith. Where a
refugee applicant fails to appear at least three consecutive times in spite of a request
for appearance for an interview, etc., the Minister of Justice may terminate therefugee status screening.
Article 9 (Collection of Materials Favorable to Refugee Applicants)
The Minister of Justice shall utilize materials even favorable to refugee applicants asmaterials for screening by actively collecting such materials.
Article 10 (Fact-Finding Investigation)(1) The Minister of Justice may, if necessary to decide to recognize refugee status, orto cancel or withdraw refugee status prescribed in Article 22, have the public of cials in charge of refugees of the Ministry of Justice or refugee screening of cers of
local immigration of ces or foreigner-related of ces investigate such fact. <Amended
by Act No. 12421, Mar. 18, 2014>(2) If necessary to conduct an investigation prescribed in paragraph (1), refugee applicants or other relevant persons may be requested to appear for questioning or to
submit materials, such as documents.
(3) Where a public of cial in charge of refugees or a refugee screening of cer completes a fact- nding investigation concerning the recognition of refugee status, cancellation and withdrawal of refugee status, etc. under paragraph (1), the head of thedivision in charge of refugees of the Ministry of Justice or the heads of local immigration of ces or foreigner-related of ces shall report the details thereof to the Ministerof Justice without delay. <Amended by Act No. 12421, Mar. 18, 2014>
Article 11 (Cooperation of Relevant Administrative Agencies, etc.)

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CDRQ vol.11(1) The Minister of Justice may, if necessary for refugee status screening, request theheads of relevant administrative agencies or the heads of local governments (hereinafter referred to as the "heads of relevant agencies") or the heads of related organizations to render cooperation in terms of submission of materials, fact- nding investigation, etc.
(2) No head of any relevant agency nor the head of any related organization requested to render cooperation under paragraph (1) shall refuse such request without
good cause.
Article 12 (Right to Receive Assistance from Attorneys-at-Law)
A refugee applicant shall have a right to receive assistance from attorneys-at-law.
Article 13 (Accompanied by Trusted Persons)A refugee screening of cer may, when requested by a refugee applicant, allow the
refugee applicant to accompany trusted persons within the scope not impairing thefairness of the interview.
Article 14 (Interpretation)
Where a refugee applicant is unable to express his/her will in Korean suf ciently, theMinister of Justice may have an interpreter with a speci c quali cation prescribed byPresidential Decree interpret in the course of interview.
Article 15 (Con rmation of Refugee Interview Protocols)
Where a refugee applicant is unable to understand the matters written in a refugeeinterview protocol, the refugee screening of cer shall provide the refugee applicant
with interpretation and translation in a language the refugee applicant can understand after the refugee interview is terminated so as to enable the refugee applicant
to con rm such matters.
Article 16 (Reading and Reproduction of Materials, etc.)(1) A refugee applicant may request the reading or reproduction of the materials he/she has submitted and refugee interview protocols.
(2) Where there is a request for reading or reproduction prescribed in paragraph (1),the immigration control of cial shall comply therewith without delay: Provided, Thathe/she may restrict reading or reproduction where there are obvious reasons to recognize that the fairness of screening is likely to be substantially impaired.
(3) Detailed methods and procedures for reading and reproduction prescribed inparagraph (1) shall be prescribed by Presidential Decree.

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Article 17 (Prohibition of Disclosure of Personal Information, etc.)(1) No person shall disclose the addresses, names, ages, occupations, and appearances of a refugee applicant and of persons accompanying him/her at an interview
under Article 13 and other personal information, pictures, etc. by which a refugee
applicant, etc. is speci cally identi able, nor divulge such things to other persons:
Provided, That cases where the person in question agrees shall be exceptional.
(2) No person shall publish the personal information, pictures, etc. of refugee applicants, etc. prescribed in paragraph (1) in publications nor release such things
through broadcast media or information and communication networks without theconsent of the refugee applicants, etc.
(3) No information on application for refugee status shall be provided to the homecountry of the applicant.
Article 18 (Recognition, etc. of Refugee Status)(1) Where the Minister of Justice deems that an application for refugee status is wellgrounded, he/she shall decide that the refugee applicant is recognized as a refugee
and issue a certi cate of recognition of refugee status to the refugee applicant.
(2) Where the Minister of Justice makes a decision on an application for refugee status that the refugee applicant does not constitute a refugee, he/she shall deliver a
notice of decision of non-recognition of refugee status to the refugee applicant by
including the grounds therefor and the message that the refugee applicant may raise
an objection within 30 days therein.
(3) A notice of decision of non-recognition of refugee status prescribed in paragraph(2) shall include the grounds of the decision (including judgements on the factualand legal claims of refugee applicants), and deadline, methods, etc. for raising an
objection.
(4) A decision of recognition of refugee status, etc. prescribed in paragraph (1) or (2)shall be rendered within six months from the date on which an application forrefugee status is received: Provided, That under unavoidable circumstances, such
period may be extended within the scope of six months.
(5) A period extended under the proviso to paragraph (4) shall be noti ed to the
refugee applicant seven days before the former period ends.
(6) A certi cate of recognition of refugee status prescribed in paragraph (1) and anotice of decision of non-recognition of refugee status prescribed in paragraph (2)

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shall be issued to the refugee applicant or the proxy thereof through the head of thelocal immigration of ce or foreigner-related of ce, or served thereon under Article
14 of the Administrative Procedures Act. <Amended by Act No. 12421, Mar. 18, 2014>
Article 19 (Restriction on Recognition of Refugee Status)
Where the Minister of Justice has suf cient grounds to recognize that a refugee applicant falls under any of the following cases even in recognition that the refugee
applicant constitutes a refugee, he/she may make a decision of non-recognition of
refugee status, notwithstanding Article 18 (1):
1. Where a refugee applicant is currently provided with protection or aid by organizations or agencies of the United Nations other than the United Nations
Refugee Agency: Provided, That cases where the provision of such protection
or aids is suspended for some reason without the nal resolution of the statusof the person who currently receives such protection or aids in accordancewith the relevant resolution adopted at a general assembly of the United Nations shall be excluded;
2. Where a refugee applicant has committed a crime against world peace, war
crime, or crime against humanity prescribed by international treaties or generally-approved international regulations;3. Where a refugee applicant has committed a grave non-political crime outside
the Republic of Korea before entering the Republic of Korea;
4. Where a refugee applicant has committed an act against the objectives andprinciples of the United Nations.
Article 20 (Detention for Identi cation)(1) Where it is obvious that a refugee applicant has intentionally damaged his/her
identi cation card, such as a passport, or has exercised a false identi cation card in
an attempt to obtain refugee status by concealing his/her identi cation, the immigration control of cial may detain such refugee applicant after obtaining a detention
order from the head of the local immigration of ce or foreigner-related of ce under
Article 51 of the Immigration Act for the con rmation of the identi cation of such
refugee applicant. <Amended by Act No. 12421, Mar. 18, 2014>(2) Where the identi cation of a person under detention under paragraph (1) is conrmed or the identi cation of such person is not con rmed within ten days, suchdetention shall be lifted immediately: Provided, That where con rmation of identi -

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cation is delayed due to unavoidable causes, the head of a local immigration of ceor foreigner-related of ce may extend the detention by up to ten days. <Amended by
Act No. 12421, Mar. 18, 2014>

Article 21 (Objections)(1) A person subject to a decision of non-recognition of refugee status under Article
18 (2) or 19 or a person whose refugee status is cancelled or withdrawn under Article 22 may raise an objection to the Minister of Justice within 30 days from the dateon which he/she is noti ed thereof. In such cases, he/she shall submit an objection
accompanied by materials explaining the grounds therefor to the head of the local
immigration of ce or foreigner-related of ce. <Amended by Act No. 12421, Mar. 18,
2014>(2) Where an objection is raised under paragraph (1), no administrative appeal prescribed by the Administrative Appeals Act shall be led.
(3) Where the Minister of Justice receives an objection under paragraph (1), he/sheshall refer to the Refugee Committee prescribed in Article 25 therefor without delay.
(4) The Refugee Committee prescribed in Article 25 may conduct a fact- nding investigation directly or through refugee investigators prescribed in Article 27.
(5) Detailed matters concerning procedures for deliberation by the Refugee Committee shall be prescribed by Presidential Decree.
(6) The Minister of Justice shall decide whether to recognize refugee status under
Article 18 through deliberation by the Refugee Committee.
(7) The Minister of Justice shall make a decision on an objection within six months
from the date of receipt of the objection: Provided, That where he/she is unable to
make a decision on an objection within such period due to unavoidable causes, he/she may extend such period by up to six months.
(8) Where the period of deliberation on an objection is extended under the proviso
to paragraph (7), it shall be noti ed to the refugee applicant at least seven days before the expiration of such period.
Article 22 (Cancellation, etc. of Decision to Recognize Refugee Status)(1) Where a decision to recognize refugee status is found to have been made bysubmitting false documents, delivering false statements, or concealing facts, the Minister of Justice may cancel refugee status.
(2) Where a recognized refugee falls within any of the following cases, the Ministerof Justice may withdraw the decision to recognize refugee status:

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1. Where a refugee applicant receives protection from a nation of his/her nationality again;
2. Where a refugee applicant reinstates his/her nationality voluntarily after losing
his/her nationality;
3. Where a refugee applicant is under the protection of a nation of the nationality
he/she has newly acquired;
4. Where a refugee applicant resettles in the nation in which he/she resides ofhis/her free will after leaving such nation or staying outside such nation in fearof persecution;
5. Where a refugee applicant becomes unable to refuse protection from a nationof his/her nationality any more due to cessation of the causes which were themajor grounds for the decision to recognize refugee status;
6. Where a refugee applicant is able to return to the former nation of his/her permanent settlement due to cessation of the cause of stateless person by which
he/she became an eligible refugee.
(3) Where the Minister of Justice cancels or withdraws a decision to recognize
refugee status under paragraph (1) or (2), he/she shall prepare a notice of cancellation of refugee status or a notice of withdrawal of refugee status including the
grounds therefor and a message that an objection may be raised within 30 days
therein. In such cases, Article 18 (6) shall apply mutatis mutandis to methods ofnoti cation.
Article 23 (Non-Disclosure of Deliberation)
The Refugee Committee or a court may, if necessary for the safety of a refuge applicant or for the family, etc. thereof, make a decision of non-disclosure of deliberation
or review upon the request of the refugee applicant or by authority.
Article 24 (Accommodation of Refugees Desiring Resettlement)(1) The Minister of Justice may permit the settlement of refugees desiring resettlement
in Korea through the deliberation of the Foreigners' Policy Committee prescribed in
Article 8 of the Framework Act on Treatment of Foreigners Residing in the Republicof Korea on the major matters of refugees desiring resettlement, such as accommodation or non-accommodation, size, and origin. In such cases, a settlement permit
shall be deemed recognition of refugee status prescribed in Article 18 (1).

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CDRQ vol.11(2) Requirements, procedures, etc. for permission for settlement in Korea prescribedin paragraph (1) and other detailed matters shall be prescribed by Presidential Decree.
Article 25 (Establishment and Organization of Refugee Committee)(1) In order to deliberate on objections prescribed in Article 21, the Refugee Committee shall be established in the Ministry of Justice (hereinafter referred to as the"Committee").
(2) The Committee shall be comprised of not more than 15 members, including one
Chairperson.
(3) The Committee may have sub-committees.
Article 26 (Appointment of Members)(1) The members of the Committee shall be appointed or commissioned by the Minister of Justice among persons who fall under any of the following:
1. A person quali ed as an attorney-at-law;
2. A person who is or was in the position of at least associate professor teachingjurisprudence at school prescribed in subparagraph 1 or 3 of Article 2 of theHigher Education Act;
3. A person who is or was a public of cial of at least Grade IV in charge ofrefugee-related affairs;
4. A person with professional knowledge and experience with refugees.
(2) The Chairperson of the Committee shall be appointed by the Minister of Justiceamong the members of the Committee.
(3) The term of of ce of members shall be three years, and they may be re-appointed.
Article 27 (Refugee Investigators)(1) The Committee shall appoint refugee investigators.
(2) A refugee investigator shall conduct investigations concerning objections andhandle other administrative affairs of the Committee under the direction of the
Chairperson.
Article 28 (Operation of Refugee Committee)
Matters necessary for the operation, etc. of the Committee other than those provided
for in Articles 25 through 27 shall be prescribed by Ordinance of the Ministry of Justice.

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Article 29 (Exchanges and Cooperation with UN Refugee Agency)(1) Where the UN Refugee Agency requests statistical data and other materials on
the following matters, the Minister of Justice shall cooperate:
1. The status of recognized refugees and refugee applicants;
2. The situation of implementation by the Refugee Convention and the Refugee
Protocol;3. Refugee-related statutes (including prior announcement of legislation).
(2) The Minister of Justice shall, when requested by the UN Refugee Agency or
refugee applicants, cooperate to enable the UN Refugee Agency to conduct the following acts:
1. Interviewing refugee applicants;
2. Participating in the interviews of refugee applicants;
3. Presenting opinions on application for refugee status and objections.
(3) The Minister of Justice and the Refugee Committee shall provide the UN Refugee
Agency with convenience so that it can smoothly conduct the duty to check the situation of implementation of the Refugee Convention and the Refugee Protocol.
Article 30 (Treatment of Recognized Refugees)(1) Notwithstanding other Acts, a recognized refugee residing in the Republic of Korea shall be treated in accordance with the Refugee Convention.
(2) The State and local governments shall formulae and implement policies, adjust
relevant statutes, support relevant ministries and of ces, and take necessary measures for the treatment of refugees.
Article 31 (Social Security)
Notwithstanding Article 8 of the Framework Act on Social Security, etc., a foreigner
staying in Korea after becoming a recognized refugee shall be covered by social security at the same level as that of the citizens of the Republic of Korea.
Article 32 (Basic Living Security)
Notwithstanding Article 5-2 of the National Basic Living Security Act, a foreigner
staying in Korea after becoming a recognized refugee shall receive the protection
prescribed in Articles 7 through 15 of the same Act upon the request of the relevant
person.
Article 33 (Assurance of Education)

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CDRQ vol.11(1) Where a recognized refugee or his/her child is a minor under the Civil Act, he/she shall receive the same elementary education and secondary education as the
Korean people.
(2) The Minister of Justice may support recognized refugees to receive necessary education in consideration of their age, learning ability, educational conditions, etc. asprescribed by Presidential Decree.
Article 34 (Social Adaptation Education, etc.)(1) The Minister of Justice may implement social adaptation education, such asteaching the Korean language, for recognized refugees as prescribed by Presidential
Decree.
(2) The Minister of Justice may, if desired by recognized refugees, support the recognized refugees to receive vocational training as prescribed by Presidential Decree.
Article 35 (Recognition of School Career)
A recognized refugee may obtain the recognition of a school career equivalent to thedegree of school education he/she has completed in foreign nations as prescribed byPresidential Decree.
Article 36 (Recognition of Quali cations)
A recognized refugee may obtain recognition of a quali cation equivalent to or partof the quali cation he/she acquired in a foreign nation as prescribed by the relevant
statutes.
Article 37 (Permission for Entry of Spouses, etc.)(1) Where a spouse or a minor child of a recognized refugee applies for entry, theMinister of Justice shall permit such entry unless it falls under Article 11 of the Immigration Act.
(2) The scope of spouses and minors prescribed in paragraph (1) shall be governedby the Civil Act.
Article 38 (Exclusion from Application of Reciprocity for Recognized Refugees)
Notwithstanding other Acts, reciprocity shall not apply to recognized refugees.
Article 39 (Treatment of Humanitarian Sojourners)
The Minister of Justice may permit recruiting of humanitarian sojourners.
Article 40 (Subsidization of Living Costs, etc.)(1) The Minister of Justice may subsidize the living costs, etc. of refugee applicants asprescribed by Presidential Decree.

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CDRQ vol.11(2) Where six moths have passed from the date on which refugee status is applied,the Minister of Justice may permit the refugee applicant to obtain a job as prescribedby Presidential Decree.
Article 41 (Provision of Residential Facilities)(1) The Minister of Justice may install and operate residential facilities in which
refugee applicants will reside as prescribed by Presidential Decree.
(2) Matters necessary for the operation, etc. of residential facilities prescribed inparagraph (1) shall be prescribed by Presidential Decree.
Article 42 (Provision of Medical Services)
The Minister of Justice may provide refugee applicants with medical services as prescribed by Presidential Decree.
Article 43 (Assurance of Education)
A refugee applicant and a minor foreigner of his/her family may receive the samelevel of elementary education and secondary education as that of the Korean people.
Article 44 (Restriction on Treatment of Speci c Refugee Applicants)
In cases of refugee applicants who fall under Article 2 (4) (c) or 8 (5) 2 or 3, part of
the treatment prescribed in Articles 40 (1) and 41 through 43 may be restricted asprescribed by Presidential Decree.
Article 45 (Operation, etc. of Refugee Support Facilities)(1) In order to conduct the duties, etc. prescribed in Articles 34, 41, and 42 ef ciently, the Minister of Justice may install and operate refugee support facilities.
(2) The Minister of Justice may, when necessary, entrust part of the duties prescribedin paragraph (1) to civilians.
(3) Matters necessary for persons eligible to use, operation and management, civil
entrustment, etc. of refugee support facilities shall be prescribed by Presidential Decree.
Article 46 (Delegation of Authority)
The Minister of Justice may delegate part of the authority prescribed by this Act tothe heads of local immigration of ces and foreigner-related of ces as prescribed byPresidential Decree. <Amended by Act No. 12421, Mar. 18, 2014>
Article 46-2 (Legal Fiction in Application of Penalty Provisions to Public Of cials)

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Members who are not public of cials among the members of the Refugee Committee (including sub-committees) prescribed in Article 25 shall be considered as publicof cials in the application of Articles 127 and 129 through 132 of the Criminal Act.
Article 47 (Penalty Provisions)
A person who falls under any of the followings shall be punished by imprisonment
with labor for not more than one year or by a ne not exceeding ten million won:
1. A person who violates Article 17;
2. A person who becomes a recognized refugee or obtains a humanitarian stay
permit after submitting false documents, making false statements, or concealing facts.

ADDENDA
Article 1 (Enforcement Date)
This Act shall enter into force on July 1, 2013.
Article 2 (Applicability)
This Act shall apply starting from the rst application for refugee status led after thisAct enters into force.
Article 3 Omitted.

ADDENDA <Act No. 12421, Mar. 18, 2014>
Article 1 (Enforcement Date)
This Act shall enter into force three months after the date of its promulgation.
Articles 2 and 3 Omitted.

ADDENDUM <Act No. 14408, Dec. 20, 2016>
This Act shall enter into force on the date of its promulgation.

Last updated : 2018-06-27

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ENFORCEMENT DECREE OF THE REFUGEE ACT1
Presidential Decree No. 24628, 21 June 2013
Amended by Presidential Decree No. 25354, 21 May 2014
Presidential Decree No. 28870, 8 May 2018

Article 1 (Purpose)
The purpose of this Decree is to prescribe matters delegated by the Refugee Act andmatters necessary for the enforcement thereof.
Article 2 (Humanitarian Stay Permit)(1) Where a person who has applied for refugee status (hereinafter referred to as"refugee applicant") falls under any of the following cases, the Minister of Justice
may grant a humanitarian stay permit pursuant to subparagraph 3 of Article 2 of the
Refugee Act (hereinafter referred to as the "Act"):
1. Where a decision that such person does not constitute a refugee is made pursuant to Article 18 (2) of the Act;
2. Where a decision of dismissal is made on an objection raised pursuant to Article 21 (1) of the Act, pursuant to Article 11 (1) of this Decree.
(2) Where granting a humanitarian stay permit pursuant to subparagraph 3 of Article
2 of the Act, and paragraph (1), the Minister of Justice shall notify the refugee applicant of the details thereof in writing. In such cases, the Minister may prepare such
notice with a notice of decision of non-recognition of refugee status prescribed in
Article 18 (2) of the Act or with a notice of decision of dismissal of objection prescribed in Article 11 (1) of this Decree, stating the will to grant a humanitarian stay
permit.
(3) A person who has obtained a humanitarian stay permit (hereinafter referred to as"humanitarian sojourner") shall obtain the status of stay or obtain permission tochange the status of stay or extension of period of stay pursuant to Articles 23
through 25 of the Immigration Act.
Article 3 (Application for Refugee Status at Ports of Entry and Departure)

1. This is an of cial English translation available at the Korea Legislation Research Institution (https://elaw.klri.re.kr/eng_service/main.do)

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CDRQ vol.11(1) A person who intends to apply for refugee status when undergoing an entry inspection pursuant to Article 6 (1) of the Act (hereinafter referred to as "refugee applicant at a port of entry and departure") shall submit an application for refugee status
prescribed by Ordinance of the Ministry of Justice to the head of an Immigration
Of ce (hereinafter referred to as the "head of an Immigration Of ce"), the head of an
immigration of ce (hereinafter referred to as the “head of an of ce”), or to the headof a branch of ce of an Immigration Of ce or an of ce (hereinafter referred to as the"head of a branch of ce") having jurisdiction over the ports of entry and departureprescribed in the Immigration Act along with the documents prescribed in the subparagraphs of Article 5 (2) of the Act. <Amended by Presidential Decree No. 28870, May
8, 2018>(2) The head of an Immigration Of ce, the head of an of ce, or the head of a branchof ce who has received an application for refugee status pursuant to paragraph (1)shall investigate the refugee applicant at the port of entry and departure without delay by means of interviewing, etc. and forward such application for refugee status to
the Minister of Justice along with the results thereof. <Amended by Presidential Decree
No. 28870, May 8, 2018>(3) If necessary in the course of conducting an investigation prescribed in paragraph(2), the head of an Immigration Of ce, the head of the of ce, or the head of the
branch of ce may ask the refugee applicant at the port of entry and departure about
matters necessary to determine whether to refer the refugee applicant to refugee status screening, such as the name of the airplane, the name of the ship, personal information and reasons for applying, and request to present relevant materials.
<Amended by Presidential Decree No. 28870, May 8, 2018>(4) Article 5 (3) and (4) of the Act shall apply mutatis mutandis to the preparation of
applications for refugee status of refugee applicants at ports of entry and departure.
Article 4 (Installation, etc. of Waiting Rooms at Ports of Entry and Departure)(1) The head of an Immigration Of ce, the head of an of ce, or the head of a branchof ce having jurisdiction over the ports of entry and departure prescribed in the Immigration Act may install waiting rooms at ports of entry and departure so thatrefugee applicants can stay at ports of entry and departure for the period prescribedin Article 6 (2) of the Act. <Amended by Presidential Decree No. 28870, May 8, 2018>(2) Food, clothing, and shelter provided to refugee applicants at ports of entry anddeparture pursuant to Article 6 (4) of the Act shall be provided in consideration of

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the safety and hygiene of individuals, and custom, living culture, etc. of nations of
one's nationality.
Article 5 (Referring Refugee Applicants at Ports of Entry and Departure to Refugee
Status Screening)(1) Where a refugee applicant at a port of entry and departure falls under any of thefollowing cases, the Minister of Justice may not refer such applicant to refugee status
screening:
1. Where there are substantial grounds to deem that a refugee applicant at a portof entry and departure is likely to harm the safety or social order of the Republic of Korea;
2. Where it is impossible to verify the identi cation of a refugee applicant at a
port of entry and departure because the refugee applicant refuses to answer
questions regarding his/her personal information, etc.;
3. Where a refugee applicant at a port of entry and departure intends to obtain
refugee status by concealing the truth by means of submitting false documents,
etc.: Provided, That cases where the person in question les a report on thetruth voluntarily without delay shall be excluded;
4. Where a refugee applicant at a port of entry and departure is a native of a safe
nation free of the possibility of persecution or is from a safe nation;
5. Where a person who has failed to obtain refugee status or a person whose
refugee status has been cancelled intends to obtain refugee status again without major changes in circumstances;
6. Where there is are substantial grounds to deem that a refugee applicant at a
port of entry and departure falls under any of the subparagraphs of Article 19of the Act;
7. Where a refugee status application is incontestably groundless, such as applying for refugee status only for economic reasons.
(2) When a decision is made on whether to refer to refugee status screening pursuant
to Article 6 (3) of the Act, the Minister of Justice shall notify the refugee applicant at
the port of entry and departure of the results thereof without delay.
(3) The head of an Immigration Of ce, the head of an of ce, or the head of a branchof ce shall have a person for whom a decision is made on whether to refer torefugee status screening pursuant to paragraph (2) undergo an entry inspection pre-

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scribed by the Immigration Act without delay. <Amended by Presidential Decree No.
28870, May 8, 2018>(4) Entry permits prescribed in Article 12 of the Immigration Act or conditional entry
permits prescribed in Article 13 shall be granted to persons for whom a decision torefer to refugee status screening is made, on condition that in cases of conditional
entry permits, the period of permission may be determined within the extent of 90days, notwithstanding Article 16 (1) of the Enforcement Decree of the Immigration
Act.
(5) Where a person who has obtained a conditional entry permit pursuant to paragraph (4) fails to or is expected not to comply with the conditions within the periodof such permission due to unavoidable causes, the head of an Immigration Of ce,
the head of the of ce, or the head of the branch of ce may extend the period of
permission. <Amended by Presidential Decree No. 28870, May 8, 2018>(6) On the assumption that a person for whom a decision of referring to refugee status screening is made led a refugee status application on the date of such decision,
the Minister of Justice shall issue a certi cate of receipt of refugee status application
to such person and proceed with refugee status screening procedures.
Article 6 (Quali cation of Refugee Screening Of cers)
A refugee screening of cer prescribed in Article 8 (4) of the Act (hereinafter referred
to as "refugee screening of cer") shall be a public of cial of at least Grade V whotakes charge of immigration affairs and who has any of the following quali cations:
1. A refugee-related job career of at least two years;
2. Completion of refugee screening of cers education courses the Minister ofJustice determines.
Article 7 (Performance of Duties of Refugee Screening Of cers, etc.)(1) When a refugee screening of cer or a public of cial of the Ministry of Justice incharge of refugees (hereinafter referred to as "refugee screening of cer, etc.") requests
a refugee applicant and other related persons to appear pursuant to Article 10 (2) ofthe Act, he/she shall issue a written request for appearance, stating the purpose of
the request, date and time, and place for appearance, etc., and shall record the request for appearance in the register of requests for appearance, as prescribed by Ordinance of the Ministry of Justice: Provided, That he/she may make a request for appearance orally in an emergency.

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(2) Where interviewing a refugee applicant, the refugee screening of cer shall record
the details thereof in the refugee interview protocol prescribed by Ordinance of the
Ministry of Justice.
(3) A refugee screening of cer shall read the refugee interview protocol recorded
pursuant to paragraph (2) to the refugee applicant or have the refugee applicant readthe refugee interview protocol and then ask the refugee applicant if there is anything
wrong. In such cases, if the refugee applicant requests to add something to, delete orchange any of the matters recorded in the refugee interview protocol, the refugee
screening of cer shall record the matters requested in the refugee interview protocol
additionally.
(4) A refugee screening of cer shall have the following persons write down theirnames on or af x their signs and seals to the refugee interview protocol recorded
pursuant to paragraph (2): Provided, That when the refugee applicant is unable or
refuses to write his/her name or af x his/her sign and seal, the refugee screening ofcer shall record such fact in the refugee interview protocol:
1. Refugee applicant;
2. Where there is a person who provided interpretation or translation services in
the course of interviewing a refugee or after the completion of interviewing a
refugee pursuant to Articles 14 and 15 of the Act, the person who provided
interpretation or translation services.
Article 8 (Interpretation Services)(1) The Minister of Justice shall have persons uent in foreign languages and deemedsuitable to conduct the duty to provide interpretation services to refugees and havecompleted the educational courses the Minister of Justice determines (hereinafterreferred to as "interpreter dedicated to refugees") provide interpretation services in
the course of interviewing refugee applicants.
(2) If requested by a refugee applicant, the Minister of Justice shall have an interpreter dedicated to refugees of the same sex as the refugee applicant.
(3) Notwithstanding paragraphs (1) and (2), where there is no available interpreter
dedicated to refugees who is uent in the language a refugee applicant speaks or inan emergency, interpretation services may be provided by the following methods:

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1. First having the language used by a refugee applicant interpreted into anotherforeign language and then having an interpreter dedicated to refugees interpretthe foreign language into Korean;
2. Having a person uent in the language used by a refugee applicant provide
interpretation services after providing the person with prior education on interpretation.
(4) The Minister of Justice may pay allowances to persons who provide interpretation
services to refugee applicants as prescribed by the Minister of Justice.
Article 9 (Methods and Procedures for Reading and Reproduction)(1) Where a refugee applicant intends to request reading or reproduction of the materials he/she presented or refugee interview protocols (hereinafter referred to as "interview protocol, etc.") pursuant to Article 16 (1) of the Act, he/she shall le an application for reading or reproduction delivery prescribed by Ordinance of the Ministry of Justice with immigration control of cials, specifying the parts he/she wishes
to read or reproduce.
(2) Where receiving a reading application pursuant to paragraph (1), the immigration
control of cial shall determine the date, time and place of reading and notify the
refugee applicant who led the reading application thereof.
(3) Where receiving a reproduction delivery application pursuant to paragraph (1),the immigration control of cial shall reproduce the interview protocol, etc. requested and deliver the reproduction to the refugee applicant who led the reproductiondelivery application.
(4) An immigration control of cial shall take necessary measures to protect interview
protocols, etc. from damage likely to be caused in the course of reading the interview protocols, etc., by being present in the course of reading, etc.
(5) A refugee applicant who intends to request the reading or reproduction of interview protocols, etc. shall pay fees prescribed by Ordinance of the Ministry of Justice.
Article 10 (Deliberation of Refugee Committee on Objections)(1) The Refugee Committee prescribed in Article 25 of the Act (hereinafter referred toas the "Refugee Committee") shall make resolutions on agenda items at the presenceof a majority of members registered and by the vote of a majority of memberspresent.

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CDRQ vol.11(2) The Refugee Committee may, if necessary, have refugee applicants or other related persons appear to make statements at meetings, and listen to opinions of persons
with abundant experience and knowledge in matters to be deliberated.
Article 11 (Decision, etc. on Objections)(1) Where an objection is deemed to have grounds, the Minister of Justice shall makea decision of recognition of refugee status and issue a certi cate of recognition of
refugee status to the demurrant, and where an objection is deemed to be groundless,the Minister shall make a decision of dismissal of the objection and deliver a noticeof decision of dismissal of objection to the demurrant.
(2) When making a decision pursuant to paragraph (1), the Minister of Justice shallrespect the results of deliberation of the Refugee Committee on objections within theextent that it is not concerned to harm national security, maintenance of order, or
public welfare.
(3) A certi cate of recognition of refugee status and a notice of decision of dismissalof objection prescribed in paragraph (1) shall be delivered to the demurrant or theproxy thereof through the head of an Immigration Of ce, the head of an of ce, thehead of a branch of ce, the head of an immigration detention center, etc. or served
thereon pursuant to Article 14 of the Administrative Procedures Act. <Amended byPresidential Decree No. 28870, May 8, 2018>

Article 12 (Permission for Settlement in Korea of Refugees Desiring Resettlement)(1) Requirements for permission for settlement in Korea for refugees desiring resettlement prescribed in Article 24 (2) of the Act are as follows:
1. Not having any ground for restriction on recognition of refugee status prescribed in Article 19 of the Act;
2. No risk of impairing the safety, social order, or public health of the Republic ofKorea.
(2) If necessary to permit the settlement in Korea of refugees desiring resettlement,
the Minister of Justice may receive recommendations of refugees desiring resettlement from the United Nations Refugee Agency.
(3) The Minister of Justice may dispatch refugee screening of cers, etc. to local sites
to investigate if refugees desiring resettlement comply with the requirements for
permission for settlement in Korea prescribed in paragraph (1).

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CDRQ vol.11(4) Where intending to permit refugees desiring resettlement to settle in Korea, theMinister of Justice may implement medical examinations and basic adaptation education before permitting their settlement in Korea.
(5) The Minister of Justice shall permit refugees desiring resettlement to settle in Korea by undergoing the entry permission procedures prescribed in the Immigration
Act.
(6) The Minister of Justice shall determine matters necessary to permit refugees desiring resettlement to settle in Korea other than those provided for in paragraphs (1)through (5).
Article 13 (Education-Related Support)(1) Recognized refugees and their children may enter school prescribed in Article 2of the Elementary and Secondary Education Act or apply for transfer admission byfollowing standards and procedures prescribed by education-related statutes.
(2) Pursuant to Article 33 (2) of the Act, the Minister of Justice may recommend persons in need of subsidization of educational costs prescribed in Article 60-4 of the
Elementary and Secondary Education Act to the Minister of Education as prescribedby Ordinance of the Ministry of Justice among recognized refugees and their children.
Article 14 (Social Adaptation Education)
The Minister of Justice may implement social integration programs prescribed in Article 39 of the Immigration Act as social adaptation education for recognizedrefugees pursuant to Article 34 (1) of the Act.
Article 15 (Vocational Training)
The Minister of Justice may recommend persons in need of vocational skills development and training prescribed in Article 12 of the Act on the Development of Vocational Skills of Workers to the Minister of Employment and Labor as prescribed by
Ordinance of the Ministry of Justice among recognized refugees desiring vocational
training.
Article 16 (Standards, etc. for Recognition of School Career)
The academic records achieved by recognized refugees in foreign nations shall berecognized in accordance with standards prescribed by education-related statutes.
Article 17 (Subsidization of Living Costs, etc.)

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CDRQ vol.11(1) The Minister of Justice may subsidize the living costs, etc. of refugee applicants
for a period not exceeding six months from the date on which the refugee applicantsle refugee status applications pursuant to Article 40 (1) of the Act: Provided, That
under an unavoidable circumstance where continuing to subsidize living costs, etc.
is necessary due to critical diseases, physical disabilities, etc., the period of subsidizing living costs, etc. may be extended by up to six months.
(2) The Minister of Justice shall determine the subsidization or non-subsidization ofliving costs, etc. prescribed in paragraph (1) and the amount of subsidization in consideration of refugee applicants' period of stay in Korea, working or not working,using or not using refugee support facilities, presence or non-presence of dependent
family members, living conditions, etc.
(3) Matters necessary for applying for subsidization of living costs, etc. prescribed inparagraph (1) shall be prescribed by Ordinance of the Ministry of Justice.
Article 18 (Work Permits)
Work permits prescribed in Article 40 (2) of the Act shall be granted by the same
method as for granting permission for activities not covered by status of stay prescribed in Article 20 of the Immigration Act.
Article 19 (Installation and Operation of Residential Facilities)(1) The Minister of Justice may install and operate residential facilities in which
refugee applicants, etc. can dwell in refugee support facilities prescribed in Article
45 (1) of the Act (hereinafter referred to as "refugee support facility"), pursuant to Article 41 (1) of the Act.
(2) The Minister of Justice may make refugee applicants at the ports of entry and departure and refugees desiring resettlement as persons eligible to preferentially use
residential facilities pursuant to Article 41 (2) of the Act.
(3) The Minister of Justice may determine the period for using residential facilities up
to six months: Provided, That where continuing to use refugee support facilities isinevitably necessary when considering the health conditions, dependent family
members, etc., of the users of residential facilities, the period of using residential
facilities may be extended.
(4) The Minister of Justice may restrict persons who impair or are likely to impair thesafety and order of residential facilities from using residential facilities.
Article 20 (Medical Support)

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CDRQ vol.11(1) If deemed necessary to protect the health of a refugee applicant pursuant to Article 42 of the Act, the Minister of Justice may have the refugee applicant undergo
medical examinations or subsidize the medical examination costs, etc. of the
refugee applicant within budgetary limits.
(2) The Minister of Justice shall endeavor to provide refugee applicants with information on emergency medical services prescribed in the Emergency Medical Service
Act and information on other medical services available to the refugee applicants.
(3) The head of a relevant Ministry or agency who intends to provide medical services to a refugee applicant may request the head of an Immigration Of ce, the headof the of ce, or the head of the branch of ce to verify the identi cation of the
refugee applicant. In such cases, the head of an Immigration Of ce, the head of theof ce, or the head of the branch of ce shall verify if the person is a refugee applicant
and inform the Ministry or agency requesting such veri cation of the results thereof
without delay. <Amended by Presidential Decree No. 28870, May 8, 2018>
Article 21 (Restriction on Treatment of Speci c Refugee Applicants)
The Minister of Justice shall not provide the following support to refugee applicants
who fall under subparagraph 4 (c) of Article 2 of the Act or Article 8 (5) 2 and 3 pursuant to Article 44 of the Act: Provided, That the same shall not apply in an emergency or where such support is deemed necessary to be provided extraordinarily forhumanitarian purposes:
1. Subsidization of living costs, etc. prescribed in Article 40 (1) of the Act;
2. Provision of residential facilities prescribed in Article 41 of the Act;
3. Provision of medical services prescribed in Article 20 (1).
Article 22 (Operation of Council for Treatment of Recognized Refugees, etc.)
If necessary for the treatment of recognized refugees, refugee applicants, etc., theMinister of Justice may organize and operate a council comprised of public of cialsof relevant agencies. <Amended by Presidential Decree No. 25354, May 21, 2014>
Article 23 (Refugee Support Facilities)(1) For the ef cient performance of duties to support recognized refugees, refugee
applicants, etc., the Minister of Justice may establish residential facilities, food service facilities, educational facilities, medical facilities, athletic facilities, counsellingrooms, etc. in refugee support facilities.

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CDRQ vol.11(2) The Minister of Justice may allow any of the following persons to use refugee
support facilities: Provided, That the Minister of Justice may limit persons eligible touse refugee support facilities or determine persons eligible to preferentially use
refugee support facilities in consideration of the type, size of accommodation, etc. ofrefugee support facilities:
1. Recognized refugees;
2. Refugee applicants;
3. Humanitarian sojourners;
4. Spouses and minor children of persons who fall under subparagraphs 1
through 3.
(3) The Minister of Justice may exclude persons who impair or are likely to impair
the safety and order of refugee support facilities from persons eligible to use refugee
support facilities or restrict them from using such facilities.
(4) The Minister of Justice may entrust part of affairs concerning meal services, education, medical services, etc. managed at refugee support facilities to corporations ororganizations professionally providing the relevant services, pursuant to Article 45(2) of the Act.
Article 24 (Delegation of Authority)
The Minister of Justice shall delegate the following authority to the head of the competent Immigration Of ce, the head of the competent of ce, the head of the competent branch of ce, or the head of the competent immigration detention center (incases of the head of the competent immigration detention center, subparagraphs 3,
8, and 9 shall be excluded) pursuant to Article 46 of the Act: <Amended by Presidential
Decree No. 28870, May 8, 2018>

1. Humanitarian stay permits prescribed in subparagraph 3 of Article 2 of the Act;
2. Issuance of certi cates of receipt prescribed in Article 5 (5) of the Act and in
Article 5 (6) of this Decree;
3. Decision of referring to refugee status screening and entry permits prescribedin Article 6 (3) of the Act;
4. Refugee status screening prescribed in Article 8 of the Act;
5. Requests for cooperation prescribed in Article 11 (1) of the Act (excluding requests for cooperation related to objections prescribed in Article 21 of the
Act);

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6. Matters concerning decision of recognition of refugee status prescribed in Article 18 of the Act;
7. Matters concerning the cancellation and withdrawal of decision of recognitionof refugee status prescribed in Article 22 of the Act;
8. Permission of entry of spouses, etc. of recognized refugees prescribed in Article 37 of the Act;
9. Permission for recruiting activities prescribed in Article 39 of the Act and work
permits prescribed in Article 40 (2);
10. Provision of medical services prescribed in Article 42 of the Act.
Article 25 (Processing of Sensitive Information and Personally Identi able Information)
Where inevitable to perform the following duties, the Minister of Justice, the head of
an Immigration Of ce, the head of an of ce, the head of a branch of ce, the head of
an immigration detention center, or refugee screening of cers, etc. may process data
including information on ideology, belief and health prescribed in Article 23 of the
Personal Information Protection Act, information falling into genetic information or
criminal history records prescribed in subparagraph 1 or 2 of Article 18 of the Enforcement Decree of the said Act, and passport numbers or foreigner registration
numbers prescribed in subparagraph 2 or 4 of Article 19 of the said Decree:<Amended by Presidential Decree No. 28870, May 8, 2018>

1. Administrative affairs concerning refugee status screening prescribed in Article
8 of the Act;
2. Administrative affairs concerning fact- nding investigations prescribed in Article 10 of the Act;
3. Administrative affairs concerning cooperation prescribed in Article 11 of theAct;
4. Administrative affairs concerning the reading and reproduction of materials,
etc. prescribed in Article 16 of the Act;
5. Administrative affairs concerning recognition of refugee status, etc. prescribedin Article 18 of the Act;
6. Administrative affairs concerning protection for verifying identi cations prescribed in Article 20 of the Act;
7. Administrative affairs concerning objections prescribed in Article 21 of the Act;

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8. Administrative affairs concerning the cancellation of decision of recognition of
refugee status prescribed in Article 22 of the Act;
9. Administrative affairs concerning the accommodation of refugees desiring resettlement prescribed in Article 24 of the Act;
10. Administrative affairs concerning the guarantee of education prescribed in
Article 33 of the Act;
11. Administrative affairs concerning social adaptation education, etc. prescribedin Article 34 of the Act;
12. Administrative affairs concerning the permission of entry of spouses, etc. prescribed in Article 37 of the Act;
13. Administrative affairs concerning permission for recruiting activities prescribed in Article 39 of the Act;
14. Administrative affairs concerning the subsidizations of living costs, etc. prescribed in Article 40 of the Act;
15. Administrative affairs concerning the provision of residential facilities prescribed in Article 41 of the Act;
16. Administrative affairs concerning the provision of medical services prescribedin Article 42 of the Act;
17. Administrative affairs concerning the operation of refugee support facilitiesprescribed in Article 45 of the Act.

ADDENDA
Article 1 (Enforcement Date)
This Decree Shall enter into force on July 1, 2013
Article 2 Omitted.

ADDENDUM <Presidential Decree No. 25354, May 21, 2014>
This Decree shall enter into force on the date of its promulgation.

ADDENDA <Presidential Decree No. 28870, May 8, 2018>
Article 1 (Enforcement Date)
This Decree shall enter into force on May 10, 2018.
Article 2 Omitted.
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CALL FOR CONTRIBUTIONSCDRQ is an open journal published on a quarterly basis. The aim of the journal is to disseminate information collected from research activities of CDR and related partners. It also
welcomes contributions not only from academics but also from practitioners who are facing
real social problems. This journal primarily focuses on issues of movement of people. However the contents also include variety of related elds such as governance and con ict resolution and prevention, as these issues induce and escalate forced displacement and more
longer-term movement of people. The purpose of the journal is to provide a crosscutting perspectives on refugee and migrant issues with comprehensive awareness of the issues of
movement of people.
For more details, please access the of cial website of the CDR and download the “CDRQ
Handbook”: http://cdr.c.u-tokyo.ac.jp/Quarterly/Q_handbook.pdf
Of cial Website of CDR [http://cdr.c.u-tokyo.ac.jp/]

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