Amos Yee as refugee and pedophile

Yee as refugee

Foreword

I express no opinion on the normative or ethical acceptability of the statements of Mr Amos Yee. I also assume as correct (this may be a big assumption) the findings of fact made by the American immigration judge, Samuel B Cole, and do not question the reliability of the witness statements.

The refugee definition

In In the Matter of Amos Pang Sang Yee, an American court granted Yee's application for asylum on the basis that he had suffered persecution by the Singaporean authorities on account of his political opinions.

Article 1A(2) of the Convention Relating to the Status of Refugees (the "Convention") defines a refugee as any 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Thus, in order for Yee to succeed in his claim of being within the refugee definition, four elements must be satisfied. Firstly, Yee must prove that he had a well-founded fear of persecution. Secondly, that persecution must be based on one of the five Convention grounds. Thirdly, Yee must be outside his country of origin. Fourthly, he must be unable or unwilling to avail himself of the protection of his country. The third and fourth elements are uncontroversial.

A well-founded fear of persecution itself consists of two limbs. There is the subjective limb relating to whether the asylum seeker felt fear, and the objective limb relating to whether such fear was well-founded. The subjective limb is satisfied by the statement of the asylum seeker, so long as there are no facts which seriously contradict his statement (UNHCR, Note on Burden and Standard of Proof in Refugee Claims, 16 December 1998). As for the objective limb, the determination of whether an asylum seeker's fear is well-founded involve the consideration of such factors as:

general social and political conditions, the country’s human rights situation and record; the country’s legislation; the persecuting agent’s policies or practices, in particular towards persons who are in similar situation as the applicant, etc.?

Furthermore,

past persecution or mistreatment would weigh heavily in favour of a positive assessment of risk of future persecution.

Therefore, if acts of persecution had occurred against Yee, those would be weighty considerations in assessing whether he had a well-founded fear of persecution.

Acts of persecution

Acts of persecution are acts which in themselves amount to gross violations of basic human rights or acts which cumulatively amount to the same.

According to the Canadian Supreme Court in Canada (Attorney General) v. Ward:

'Persecution', for example, undefined in the Convention, has been ascribed the meaning of ‘sustained or systemic violation of basic human rights demonstrative of a failure of state protection.’

The European Parliament and Council in Art. 9(1) of the EU Recast Qualification Directive put it as such:

In order to be regarded as an act of persecution within the meaning of Article 1A of the Geneva Convention, an act must:

(a)??be sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms; or

(b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a).

Acts of persecution in Art. 9(2)(c) of the EU Recast Qualification Directive are understood to include:

(b) legal, administrative, police, and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner;?

(c) prosecution or punishment which is disproportionate or discriminatory.

In In the Matter of Amos Pang Sang Yee, the (redacted) expert witness cited in Part 1C testified that "Yee's conditions of pre-trial release were extraordinary, as it is not normal to impose a complete ban from social media on a defendant as a condition of bail."

Kenneth Jeyaretnam, cited in Part 1D, stated as follows: "Jeyaretnam explained that others in Singapore have made similarly offensive comments regarding religion and have not been investigated or prosecuted, including Lee Kuan Yew himself. Another example is Jason Neo, who was investigated after he publicly disparaged Muslims online but was never prosecuted, likely because Neo was previously a youth leader in the PAP."

On these bases, it may be concluded that Yee suffered acts of persecution in the form of disproportionate and discriminatory measures, prosecution and punishment. Nonetheless, in determining whether the acts were disproportionate, the Court should have formed its own assessment based on the standards set out in international human rights law on the treatment of minors and sentencing for similar offences.

As such, Yee had a well-founded fear of persecution.

Internal flight alternative

An internal flight alternative refers to the realistic possibility of a refugee relocating to a part of his country of origin which is safe.?There is no legal requirement for a refugee to resort to an internal flight alternative before seeking international protection. Nonetheless, internal flight alternatives have been taken into account in refugee status determination.?

In the present case, there is no need to consider the existence of an internal flight alternative because the agent of persecution is claimed to be the State. As stated by UNHCR (UNHCR, Interpreting Article 1 of the 1951 Geneva Convention Relating to the Status of Refugees, April 2001):

The need for such an analysis does not arise in every case. [...] In practical terms, this excludes virtually all cases where the feared persecution emanates from or is condoned or tolerated by state agents, as these are normally presumed to exercise authority in all parts of the country.

Similarly, UNHCR also stated that (UNHCR, Guidelines on International Protection No. 4: "Internal Flight or Relocation Alternative" Within the Context of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees, 23 July 2003, HCR/GIP/03/04):

National authorities are presumed to act throughout the country. If they are the feared persecutors, there is a presumption in principle that an internal flight or relocation alternative is not available.

The Convention ground of political opinion

Political opinion has a broad meaning.

In the understanding of UNHCR (UNHCR, Guidelines on International Protection No. 1: Gender-Related Persecution Within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, 7 May 2002, HCR/GIP/02/01):

Political opinion should be understood in the broad sense, to incorporate any opinion on any matter in which the machinery of state, government, society, or policy may be engaged.

Art. 10(1)(e) of the EU Recast Qualification Directive adopts the following understanding:

the concept of political opinion shall in particular include the holding of an opinion, thought or belief on a matter related to the potential actors of persecution mentioned in Article 6 and to their policies or methods [...]

According to the statement of facts, the YouTube video forming the subject matter of Yee's first prosecution was titled "Lee Kuan Yew is Finally Dead". In that video, Yee called Lee, Singapore's former Prime Minister, a "dictator" who controlled the mainstream media and silence his opponents by arresting them, who had "fooled" the international community into thinking Singapore was a democratic country when it was really an authoritarian one, and who was, apparently like Jesus, "power hungry and malicious" and full of "bull".

Yee also uploaded a line drawing entitled "Lee Kuan Yew ButtF***ing Margaret Thatcher."

Yee was subsequently prosecuted for wounding religious feelings and obscenity.

Yee's acts, as recollected in the statement of facts, constitute the expression of political opinion. Based on the statement of facts (which may be tinged by bias), which seems to support the proposition that the media produced by Yee was of a primarily political nature, Yee was therefore persecuted on a Convention ground.

The Convention ground of religion

Although Yee did not submit such an argument before the Court, the possibility that Yee had suffered persecution on the ground of religion bears considering.

The ground of religion is understood in Art. 10(1)(b) of the EU Recast Qualification Directive as such:

The concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief.

As just mentioned, Yee had been prosecuted for wounding religious feelings and obscenity due to statements he had made about Jesus. Yee was later again prosecuted for wounding religious feelings and for "other crimes for making derogatory posts targeting Islam and Christianity".

Although the concept of religion encompasses expressions of religious views, the question of whether Yee could be said to have been persecuted on the ground of religion should be answered by reference to the concept of freedom of thought, conscience and religion in international human rights law. As stated by UNHCR (UNHCR, Guidelines on International Protection No. 6: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees, 28 April 2004, HCR/GIP/04/06):

The right to freedom of thought, conscience and religion is one of the fundamental rights and freedoms in international human rights law. In determining religion-based claims, it is therefore useful, inter alia, to draw on article 18 of the 1948 Universal Declaration of Human Rights (the “universal declaration”) and articles 18 and 27 of the 1966 International Covenant on Civil and Political Rights (the “International Covenant”). Also relevant are the General Comments issued by the Human Rights Committee, the 1981 Declaration on the Elimination of all Forms of Intolerance and Discrimination based on Religion or Belief, the 1992 Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities and the body of reports of the Special Rapporteur on Religious Intolerance. These international human rights standards provide guidance in defining the term “religion” also in the context of international refugee law, against which action taken by States to restrict or prohibit certain practices can be examined.

Exclusion from refugee status due to having committed serious, non-political crimes

Because Yee satisfies the Convention definition of a refugee, he is eligible for international protection. Nonetheless, he would be excluded from such protection if there are serious reasons for considering that he had committed a serious non-political crime prior to his admission as a refugee (Art. 1F(b), the Convention).

In determining the seriousness of a crime, UNHCR takes account of the following factors (UNHCR, Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, HCR/GIP/03/05):

the nature of the act, the actual harm inflicted, the form of procedure used to prosecute the crime, the nature of the penalty, and whether most jurisdictions would consider it a serious crime.

The New Zealand Court of Appeal (S v. Refugee Status Appeals Authority, CA262/97, 2 April 1998) also considers that:

The level of penalty inflicted or likely to be inflicted in those circumstances by the contracting state and probably, by the state in which the crime was committed, are relevant factors.

Although the standard by which the seriousness of a crime is measured is international and not domestic, even the sentences which Yee received attest to the fact that the crimes of which he was convicted were not serious. In his first brush with the law, Yee was sentenced to four weeks in jail. In his second brush with the law, Yee was sentenced to six weeks' incarceration. Thus, even by domestic standards, the crimes of which Yee was convicted were not serious.

UNHCR establishes a gradient whereby murder, rape and armed robbery are clearly serious crimes while petty theft is not. Yee's crimes were much closer to the latter than to the former.

This is reinforced by the position of the UK Upper Tribunal (Immigration and Asylum Chamber) (AH Algeria v. The Secretary of State for the Home Department [2013] UKUT 00382 (IAC)), which held that the level of seriousness of a crime must be measured by comparison to crimes against peace, war crimes, genocide, crimes against humanity, and acts contrary to the purposes and principles of the United Nations.

Yee's crimes are clearly not serious enough to exclude him from international protection. As such, on the basis of the facts as set out in In the Matter of Amos Pang Sang Yee, Yee is a refugee entitled to international protection.

Yee as pedophile

In October 2020, Yee was arrested in Illinois on state charges of solicitation and possession of child pornography. Yee pled guilty. He was warned that he may be deported back to Singapore. However, the legality of deporting Yee back to Singapore is dubious.

Lawful grounds for expulsion

A refugee does not cease to be a refugee upon the commission of a crime, however heinous. The conditions for cessation of refugee status are clearly delineated in Art. 1C of the Convention and do not include the commission of a crime, whatever the severity may be. Refugees lawfully on the territory of the country of asylum may not be expelled "save on grounds of national security or public order" (Art. 32(1), the Convention).

The solicitation and possession of child pornography does not amount to a threat to national security. UNHCR explained the meaning of national security as such (UNHCR, Commentary of the Refugee Convention 1951 (Articles 2-11, 13- 37), Written by Professor Atle Grahl-Madsen in 1963; re-published by the Department of International Protection in October 1997):

If a person is engaged in activities aiming at facilitating the conquest of the country where he is staying or a part of the country, by another State, he is threatening the security of the former country. The same applies if he works for the overthrow of the Government of his country of residence by force or other illegal means (e.g. falsification of election results, coercion of voters, etc.), or if he engages in activities which are directed against a foreign Government, which as a result threatens the Government of the country of residence with repercussions of a serious nature. Espionage, sabotage of military installations and terrorist activities are among acts which customarily are labeled as threats to the national security.

Generally speaking, the notion of “national security” or “the security of the country” is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence or the external peace of the country concerned.

The notion of public order or, in French, ordre public, may be found in international human rights law. It is again doubtful that the solicitation and possession of child pornography constitutes a threat to the public order of the United States.

Non-refoulement in refugee law

The principle of non-refoulement is a norm having the character of jus cogens and a principle in both international refugee law and international human rights law. Art. 33(1) of the Convention sets it out as such:

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.

However, there is a caveat, as expressed in Art. 33(2) of the Convention:

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

It is manifestly clear that Yee, pedophile though he may be, presents no danger to the security of the United States. As UNHCR relates, this term has the same meaning as the term "national security" which was expounded on extensively above (UNHCR, Commentary of the Refugee Convention 1951 (Articles 2-11, 13- 37), Written by Professor Atle Grahl-Madsen in 1963; re-published by the Department of International Protection in October 1997).

Neither is Yee a danger to the community of the United States, although this is arguable. It is possible, although by no means certain, that the solicitation and possession of child pornography is a particularly serious crime for the purposes of refoulement. However, a conviction for a particularly serious crime is not sufficient for a refugee to be excluded from non-refoulement because it does not necessarily prove that that refugee constitutes a danger to the community (A v Minister for Immigration and Multicultural Affairs [1999] FCA 227). Furthermore, as held by the UK Immigration Appeal Tribunal (S.B. (Haiti) v. Secretary of State for the Home Department [2005] UKIAT 36):

It is the history and pattern of offending as a whole which must be examined when considering danger to the community.

Yee's once-off offence does not establish the pattern necessary to conclude that he is a recalcitrant sex offender.

Non-refoulement in human rights law

There are two bases upon which it may be argued that Yee is protected by the principle of non-refoulement in international human rights law.

Firstly, it may be argued that Yee is protected by the principle of non-refoulement because he faces a threat to his liberty if returned to his country of origin. As stated by the Human Rights Committee (HRCttee, General Comment No. 31, Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add.13, 26 April 2004), non-refoulement is inherent in the Art. 2 obligation of States to respect and ensure the rights enumerated in the International Covenant on Civil and Political Rights (ICCPR) for all persons in their territory and all persons under their control. This rule is engaged where there are substantial grounds for believing that there is a real risk of irreparable harm. In the context of the Convention on the Rights of the Child, the Committee on the Rights of the Child has stated that this extends to the right to liberty (CRC, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside their Country of Origin, CRC/GC/2005/6, 2005). There is little reason why the same cannot be said of the right to liberty in the ICCPR. Therefore, it is submitted that Yee cannot be subjected to refoulement as a result of the obligation of the United States to respect and ensure his right to liberty.

Secondly, it may be argued that Yee is protected by the principle of non-refoulement because he faces cruel, inhuman or degrading treatment or punishment ("CIDT") if returned to his country of origin. Whether he faces such treatment or punishment in his country of origin is certainly debatable, and may be answered by reference to the concept of CIDT in international human rights law. Factors that may be relevant to this determination include the past incarceration of Yee in "an adult facility where Yee was the youngest inmate and was mixed in with violent criminals", where "the lights in the prison were kept on 24-hours a day, making it difficult to sleep" (In the Matter of Amos Pang Sang Yee). Other factors include Yee's past stay in an adult mental health facility, "where the food was apparently medicated" and where "Yee also could not sleep because of the screams of mental patients, who in some cases were banging their heads against the facility walls" (In the Matter of Amos Pang Sang Yee). Were such treatment or punishment to constitute CIDT and if there were substantial grounds for believing that Yee would be subject again to such treatment or punishment, he would indubitably be protected by the principle of non-refoulement: Art. 7 ICCPR prohibits refoulement in case of CIDT (HRCttee, General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7), HRI/GEN/1/Rev.9 (Vol. I), 1992).

In the event that Yee faces CIDT if returned to his country of origin, his return is absolutely prohibited; it is irrelevant whether he poses a danger to the national security of the United States or a danger to that community. Thus, the Committee against Torture stated categorically that (CAT, Gorki Ernesto Tapia Paez v. Sweden, CAT/C/18/D/39/1996, 2 April 1997):

The Committee considers that the test of article 3 of the Convention is absolute. Whenever substantial grounds exist for believing that an individual would be in danger of being subjected to torture upon expulsion to another State, the State party is under obligation not to return the person concerned to that State. The nature of the activities in which the person concerned engaged cannot be a material consideration when making a determination under article 3 of the Convention.

Similarly, the European Court of Human Rights made clear that (ECtHR, Chahal v. The United Kingdom, Application No. 22414/93, 15 November 1996):

The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion (…). In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.

Therefore, if Yee faces CIDT if returned to his country of origin, he cannot be subject to refoulement by the United States.

Conclusion

On the basis of the facts set out in In the Matter of Amos Pang Sang Yee, I conclude that Yee is a refugee who is not excluded from international protection. Furthermore, it follows from the finding of the immigration judge in In the Matter of Amos Pang Sang Yee that Yee probably cannot lawfully be returned from the United States to his country of origin despite soliciting and possessing child pornography, although more facts will be needed to confirm this assessment.

Please note that, however, that I have not subjected the findings of fact and witness testimony in In the Matter of Amos Pang Sang Yee to any scrutiny at all. The replies of the government of Singapore have also not been considered in this piece. They are linked here:

I hope you found this piece interesting - I certainly enjoyed writing it!