Japan is a signatory to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, and has incorporated provisions for refugee protection into its domestic law, primarily within the Immigration Control and Refugee Recognition Act (ICRRA). Understanding how Japan legally defines a "refugee" and the procedures involved in applying for and obtaining refugee status is crucial for those seeking protection and for those involved in assisting them. This article details Japan's definition of a refugee as found in Article 2, Item 3-2 of the ICRRA, and outlines the refugee status determination (RSD) process managed by the Minister of Justice, primarily under Article 61-2.

The Legal Definition of a "Refugee" in Japan (Article 2, Item 3-2)

Article 2, Item 3-2 of the ICRRA defines a "refugee" by direct reference to international instruments:
"A refugee prescribed in Article 1, A (2) of the Convention Relating to the Status of Refugees (hereinafter referred to as the "Refugee Convention") or a refugee who is to receive the same treatment as a refugee pursuant to the provisions of Article 1 of the Protocol Relating to the Status of Refugees (hereinafter referred to as the "Refugee Protocol")."

This means Japan adopts the definition set forth in the 1951 Refugee Convention. According to Article 1, A (2) of the Convention, as modified by the 1967 Protocol (which removed the original temporal and geographical limitations of the 1951 Convention), a refugee is a person who:
"...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Key elements of this definition include:

1. Well-Founded Fear: This is the cornerstone of the definition. It has both a subjective element (the individual genuinely fears persecution) and an objective element (there are objective reasons why this fear is justified, based on the conditions in their country of origin or former habitual residence).
2. Persecution: While not explicitly defined in the Convention, persecution generally refers to serious violations of fundamental human rights, including threats to life or freedom, or other severe deprivations of human rights. The harm feared must reach a certain level of severity.
3. Five Convention Grounds: The fear of persecution must be for one or more of the five enumerated reasons:
   • Race: This can include ethnic or tribal affiliation.
   • Religion: Including freedom of thought, conscience, and belief, and the right to practice or not practice a religion.
   • Nationality: This can refer to citizenship or membership of a particular ethnic or linguistic group.
   • Membership of a Particular Social Group: This is a more evolving category and can encompass groups defined by innate characteristics, a common background that cannot be changed, or a distinct identity in their country of origin that makes them a target for persecution (e.g., based on family, gender, sexual orientation, or past associations).
   • Political Opinion: This includes holding political opinions not tolerated by the authorities, whether expressed or imputed.
4. Outside Country of Nationality/Habitual Residence: The individual must be outside their country of origin (or former habitual residence if stateless).
5. Unable or Unwilling to Seek Protection: They must be unable to obtain protection from their own country, or unwilling to do so because of their well-founded fear.

Japan's definition is thus directly tied to these internationally recognized criteria.

The Refugee Status Determination (RSD) Process in Japan (Article 61-2)

Article 61-2 of the ICRRA lays out the primary procedures for applying for and being recognized as a refugee by the Minister of Justice.

1. Application for Refugee Status (Article 61-2, Paragraph 1)

"The Minister of Justice may, pursuant to the provisions of an Ordinance of the Ministry of Justice, upon application from a foreign national who is in Japan (including a foreign national who entered Japan without receiving landing permission...), recognize said foreign national as a refugee."

• Who can apply: Any foreign national who is physically present in Japan can apply for refugee status. This includes individuals who may have entered Japan unlawfully or who are overstaying their permitted period of stay. The legality of their entry or stay does not, in itself, bar them from applying for refugee recognition.
• Where to apply: Applications are typically submitted to a Regional Immigration Bureau.
• Required Information: The applicant must submit a written application form and provide documents or materials to substantiate their claim (e.g., identity documents, evidence supporting their fear of persecution). The specific forms and evidentiary requirements are detailed in the Ministry of Justice Ordinance (Enforcement Regulations of the ICRRA).

2. Factual Investigation by Refugee Inquiry Officers (Article 61-2-14 and Article 61-3)

Once an application is submitted, Refugee Inquiry Officers (難民調査官 - nanmin chōsakan) are responsible for conducting a factual investigation into the merits of the claim. Article 61-2-14, Paragraph 1, states that the Minister of Justice shall have Refugee Inquiry Officers conduct this investigation. Article 61-3 further details their powers, which (by mutatis mutandis application of provisions related to Immigration Inspectors and Immigration Control Officers) include:

• Questioning the applicant and other relevant persons.
• Requesting the submission of documents or articles.
• Making inquiries to public offices or public/private organizations.

The investigation aims to gather all relevant facts concerning the applicant's identity, background, experiences in their country of origin, the reasons for their fear of persecution, and the current conditions in that country. Refugee Inquiry Officers are required to give due consideration to the privacy of the applicant and any involved parties during their investigation.

3. Standard of Proof and Assessment

The Minister of Justice (based on the findings of the Refugee Inquiry Officers) makes a determination on whether the applicant meets the definition of a refugee under the Convention. Key aspects of this assessment include:

• Burden of Proof: While the applicant generally bears the burden of substantiating their claim, the ICRRA and its operational interpretations acknowledge the difficulties asylum seekers often face in providing exhaustive proof due to the circumstances under which they fled. Therefore, while the applicant must present a credible account and all available evidence, Refugee Inquiry Officers also have a duty to investigate the facts. The principle of "benefit of the doubt" may be applied in certain circumstances where the applicant's account is found to be generally credible, but full corroborating evidence is lacking due to the conditions in their home country.
• "Well-Founded Fear": Assessing this involves:
  • Subjective Element: Evaluating the genuineness of the applicant's stated fear.
  • Objective Element: Examining the current human rights situation and conditions in the country of origin to determine if there is an objective basis for such fear for this particular individual. This often involves referring to country of origin information (COI) from various sources.
• Credibility Assessment: A significant part of the process involves assessing the credibility of the applicant's statements and the evidence presented.

4. Effect of Refugee Recognition (Article 61-2, Paragraph 1, latter part)

If the Minister of Justice recognizes the applicant as a refugee:

• A Certificate of Refugee Status (難民認定証明書 - nanmin nintei shōmeisho) is issued to the individual.
• Grant of Status of Residence: For a refugee who does not already possess a status of residence (e.g., an asylum seeker who entered irregularly), the Minister of Justice will, as a general rule, grant them the status of residence of "Long-Term Resident" (定住者 - teijūsha) with a specified period of stay (Article 61-2-2, Paragraph 1). There are exceptions, for example, if the individual falls under certain serious criminality grounds of the Refugee Convention's exclusion clauses, or if they already hold another stable status of residence.
• Principle of Non-Refoulement: A fundamental protection for recognized refugees (and asylum seekers whose claims are being processed) is the principle of non-refoulement, which prohibits their return to a territory where their life or freedom would be threatened on account of one of the five Convention grounds. This is reflected in Article 53, Paragraph 3 of the ICRRA, which prohibits deportation to such territories.

5. Procedure in Case of Non-Recognition (Article 61-2-3)

If the application for refugee status is denied, the foreign national is notified in writing of the decision and the reasons for non-recognition.

• Objection Procedure (異議申出 - igi mōshide): A foreign national who has been denied refugee status may file an objection with the Minister of Justice within seven days from the date of receiving the notification of non-recognition.
• Role of Refugee Adjudication Counselors (難民審査参与員 - nanmin shinsa san'yoin): A key feature of the objection process is the involvement of Refugee Adjudication Counselors. These are independent experts (e.g., lawyers, academics, NGO members) appointed by the Minister of Justice. When an objection is filed, the Minister must seek the opinions of these counselors (usually a panel of three) after they have examined the case file and, in many cases, interviewed the applicant. While their opinions are not legally binding on the Minister, they are intended to provide an independent and expert perspective, enhancing the fairness and transparency of the appeal stage. The Minister is required to give due respect to their opinions when making the final decision on the objection.

Related Systems and Protections

• Permission for Provisional Stay (仮滞在許可 - kari taizai kyoka) (Article 61-2-4): Foreign nationals who have applied for refugee status and do not have a valid status of residence may be granted permission for provisional stay while their application is being processed. This regularizes their stay temporarily and can come with certain conditions.
• Refugee Travel Document (難民旅行証明書 - nanmin ryokō shōmeisho) (Article 61-2-12): Recognized refugees in Japan can apply for a Refugee Travel Document, which allows them to travel internationally and re-enter Japan, serving in lieu of a national passport.
• Revocation of Refugee Status (Article 61-2-8): Refugee status can be revoked under specific circumstances, such as if it was obtained by fraud, if the circumstances that led to refugee status have ceased to exist, or if the individual commits certain acts that disqualify them from refugee protection.

Conclusion

Japan's system for defining and determining refugee status is directly based on the 1951 Refugee Convention and its 1967 Protocol. The process involves a formal application, an investigation by Refugee Inquiry Officers, and a decision by the Minister of Justice based on whether the applicant has a well-founded fear of persecution for one of the five Convention grounds. While the applicant bears a general burden of proof, the process acknowledges the inherent difficulties faced by asylum seekers. If refugee status is granted, it leads to the issuance of a Certificate of Refugee Status and typically the grant of "Long-Term Resident" status, along with protection against refoulement. If denied, an objection procedure involving independent Refugee Adjudication Counselors is available. The system aims to provide protection to those who meet the international definition of a refugee, though the interpretation of criteria and the overall recognition rates have been subjects of ongoing domestic and international discussion.