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On Feb. 19, the Cabinet approved a revision to the Immigration Control and Refugee Recognition Act that would change the way asylum-seekers are treated while they are in Japan waiting for their applications to be processed.

In recent years, some foreign nationals who have entered Japan in stated attempts to flee persecution in their home countries have been detained for indefinite periods of time, and, in 2019, a Nigerian man died in a facility in Nagasaki Prefecture after going on a hunger strike to protest his confinement. Since then, the government has endeavored to amend the law so as to avoid such tragedies, which have provoked concern among international human rights groups, and this bill, which has been sent to Japan’s legislature for approval, is the result.

The media greeted the revision as a solution to the arbitrary detention of foreign nationals, and not just refugees. In an editorial that appeared on March 1, the Asahi Shimbun gave the revision a mixed review in English, saying it is “worthy of note” that the bill creates a new “supervisory program” that allows “would-be deportees” to live with family members or others rather than in detention centers while their applications for asylum are reviewed. However, the editorial also picks apart the bill to determine if, in practice, it offers any significant changes.

This confusion of purpose seems to be built into the bill’s language, as pointed out by host Chiki Ogiue during the Feb. 24 installment of the TBS radio talk show “Session.” Having had trouble untangling the terminology, Ogiue asked Shoichi Ibuski, a lawyer who handles immigration cases, to decipher it. Ibuski mentions an opposition bill that also addresses the refugee problem and which differs from the ruling party bill, instead proposing the creation of an organization to oversee the system that is independent of the Immigration Services Agency. Moreover, the opposition bill states that refugee evaluation standards should align with those of other countries, which leave it to courts to decide whether to detain foreign nationals.

In Japan, such decisions are made by bureaucrats. Ibuski focuses on the word “control” in the immigration law, which extends to all aspects of the process, including detention. The media and, thus, the public have come to understand that this broad definition of government power over anyone who enters Japan is somewhat “normal,” but, in fact, it is peculiar to Japan, which claims it has the right to keep any foreign national in custody without the approval of a judge. The government revision not only retains this right, but doubles down on it, according to Ibuski, thus violating the constitutional guarantee of due process.

The standards that immigration authorities use to decide refugee status are difficult to meet due to the burden of proof shouldered by asylum-seekers. The government requires refugee applicants to provide documentary evidence that they face persecution if returned to their home countries, but one definition of an asylum-seeker is that of someone who flees their home in fear for their lives, usually leaving everything behind in the process. What government would give a citizen proof of their own persecution? These exceptions to conventional refugee recognition processes have been discussed for years, and the revision does nothing to change them, which means that regardless of the government’s intention to detain asylum-seekers, their chance of gaining asylum is about the same — near zero.

The revision opens the possibility of criminalizing reapplication if the applicant is subject to a deportation order. Under current law, even if they have been told to leave the country, an asylum-seeker can reapply and remain in Japan while the application is being studied, but the revision implies that immigration can detain that person as a lawbreaker. According to Ibuski, the government will have a “free hand” to decide anything it wants.

And what it wants was clarified by a legal advisory group to the ruling Liberal Democratic Party about the revision. In a discussion on the web program “No Hate TV,” host Yasumichi Noma produced a flowchart drawn up by the group as a means of explaining to LDP members the key purposes of the bill, which are to prevent foreign nationals from entering Japan in order to work illegally, and to reduce the number of undocumented immigrants and those who resist deportation orders to zero.

The public reason for the revision is to resolve the “human rights problem,” but the flowchart makes that seem more like a PR problem as far as the government is concerned, since the specific target of the revision is immigrants who are seen by the media and the international community as being unfairly detained.

Journalist Koichi Yasuda has elaborated on this theme by saying that the notion of “special permission” to reside in Japan has evolved over the years, and granting such permission has become increasingly rare since 2013, the year after the LDP regained power. The main problem, he says, is the lack of transparency with regard to how decisions are made. He mentions victims of trafficking, a category of immigrant subject to special permission.

In Japan, victims of trafficking are often women recruited for sex work without their realizing it until after they arrive in Japan. When their places of business are raided by the police, they no longer qualify for special permission because the purpose of the raid was to foil illegal activities, not to rescue victims of trafficking. In order for the women to receive special permission, they would have had to be rescued as soon as they got off the plane. Once they started working, they became lawbreakers and thus subject to deportation.

And after they’re deported, they cannot re-enter Japan for at least five years, although the revised bill says that if a person voluntarily repatriates, they may be able to revisit Japan after one year. For an asylum-seeker, that may be difficult, since they could very well be languishing in prison in a year’s time. Or they could be dead.

See www.philipbrasor.com for addenda to Media Mix contributions.

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