International Human Rights and Refugee Law Norms Disregarded in Regressive Japanese Judgement

London, 12 November 2010

On 29 October 2010, The Tokyo District Court, 38th Civil Division upheld the decisions of the Japanese Ministry of Justice and the Japanese Immigration Bureau to refuse the granting of refugee status to 18 Rohingya applicants and to issue them with deportation orders to Burma. The Court revoked the decisions of the Japanese Ministry of Justice and the Japanese Immigration Bureau with regard to two other Rohingya applicants. This is the first case the Equal Rights Trust has come across, of a court of law in a democratic country ordering the deportation of Rohingya to Burma.
Rohingya are one of the most vulnerable, discriminated against and persecuted minorities in the world today. They have been arbitrarily stripped of their nationality by the Burmese government and are consequently stateless. In Burma, they face severe restrictions of movement (they require travel passes to move from one village to the next), marriage (they require state permission to marry), education and employment and are particularly vulnerable to extortion, arbitrary arrest, imprisonment and forced labour.

The Court failed to recognise the strong evidence produced before it, which established that Rohingya as a social group are at heightened risk of persecution in Myanmar. The justification of the Court in ruling that 18 of the 20 applicants were not refugees demonstrates a lack of sensitivity to the ground realities suffered by Rohingya in Burma, and is a regressive step in refugee protection. The reasons given by the Court include:

  1. During the mass exodus in 1992 when 250,000 Rohingya fled Burma, approximately 500,000 Rohingya remained in the country, indicating that the entire population did not suffer persecution.
  2. Some of the applicants had not previously experienced forced labour in Burma, and had families who were living relatively peaceful lives in Burma.

This was despite evidence being submitted to establish that once returned to Burma, according to Burmese law, the 18 Rohingya would be imprisoned and subjected to forced hard labour in shackles. ERT research also demonstrates that Rohingya prisoners in Burma are likely to be targeted and beaten by prison guards and other prisoners while in prison.

The Court refuted the argument that the intended deportation of Rohingya back to Burma would be a violation of Japan’s non-refoulement obligations under the 1951 Refugee Convention and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Furthermore, the Court did not take into consideration Japan’s obligations under Article 7 of the International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee in its General Comment 20 has stated that “states parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”.

The Court also rejected the argument that arbitrary deprivation of nationality constitutes persecution, despite growing international consensus in this regard. See for example, EB (Ethiopia) v. Secretary of State for the Home Department [2007] EWCA Civ 809. See also Guy Goodwin Gill, The Refugee and International Law [2nd edition 1996], page 70.

ERT understands that the 18 failed Rohingya applicants will be appealing this decision to a higher court in Japan. It is hoped that this regressive judgement will be overruled by Japan’ s higher courts.

Court: Tokyo District Court, 38th Civil Division

Case citation: 2006 [Gyo-U] no. 472; 2007 [Gyo-U] nos. 472, 493 - 498, 715 and 785; 2008 [Gyo-U] nos. 55, 132, 133, 404 - 408, 686 and 756; 2009 [Gyo-U] no. 367

To read a transcript of the case: please click here.

For more information contact: Amal de Chickera, Head of Statelessness and Nationality Projects at amal.dechickera@equalrightstrust.org

 

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