Afghan v. Japan (Prosecutor)

Case No.225/2001 (Criminal Case)
20/06/2002
Presiding Judge: Judge Konishi

Judgment

Defendant: X (Afghan national)

On the appeal regarding the charges against the defendant under the Immigration Control and Refugee Recognition Act, the Court rules as follows after having heard the Prosecutor and the Defense Counsel.

Conclusion

The defendant shall be exempted from penalty.

Reasoning

Charges

The defendant, an alien of Afghan nationality, entered Japan illegally by air at the Fukuoka Airport on 10 June 2001, without having a valid passport or crewman's pocket-ledger, via the Republic of Korea from the United Arab Emirates. He has remained in Japan illegally since landing, residing in Yamaguchi Prefecture and other places until 27 February 2002.

Evidence (omitted)

Legal provisions applied

Charges: Articles 70, para.1 (1), Article 3, para.1 (1) and Article 70, para.2 of the Immigration Control and Refugee Recognition Act
Exemption from penalty: Article 70-2 of the Immigration Control and Refugee Recognition Act

Grounds for the exemption

1. The Court accepts the arguments produced by the Defense Counsel and decides that the defendant shall be exempted from penalty in accordance with Article 70-2 of the Immigration Control and Refugee Recognition Act (hereinafter referred to as "the Immigration Act") on the following grounds.

First of all, the Court arrived at the following findings on the basis of the evidence produced to the Court (details of the evidence omitted).

(1) The defendant is a Hazara of Afghan nationality, born in Parwan in 1972, and a Shi'a Muslim.

The Hazaras are an ethnic minority in Afghanistan, who are also a religious minority as Shi'ia Muslims. They are in adversary relationship with the ethnic and religious majority, the Pushtuns, who are Sunni Muslims. Since the civil war which will be referred later, it is assumed that the Hazaras are also in conflict with the Tajiks, who are Sunni Muslims as well. In addition, the Hazaras are considered as a group who are most distressed in economic terms in the country.

(2) Having graduated from the Department of Economics in Kabul University in 1991, the defendant joined the Islamic Unity Party (Hizb-i Wahdat), a political organization of Shi'a Hazaras, in 1992. He belonged to the Cultural Committee and was engaged mainly in interpretation and public relations. After the Najibullah regime collapsed in 1992 and a civil war erupted in Afghanistan, he was also engaged in military activities against the Taliban, the Pushtun force, and the Tajik forces, who had conducted military attacks against the Hazaras in Kot-e Sangi and Afshar, located in the west of Kabul. In March 1995, however, when the Tajik conducted military attacks against the Hazaras from Deh-Mozang in the west of Kabul to Karteh Sahe, he was forced to flee Kabul to Peshawar, Pakistan.

Since then the defendant has been unable to safely enter and leave Afghanistan.

(3) On the other hand, the defendant was employed by a second-hand vehicle parts company (company M) in 1994. He went back and forth between Kabul and Peshawar for business, while also being involved in activities for the Islamic Unity Party.

Having fled to Peshawar in 1995 as stated above, he continued to work for company M as well as the Islamic Unity Party in the city. He got married in 1996 and has a son and a daughter. In 1997, when the owner of company M founded a trading company of second-hand vehicle parts (company N) in the United Arab Emirates (hereinafter referred to UAE), he also moved to Sharjah, UAE and began to work for company N; his wife and children moved to his parents' house in Mazar-i Sharif, located in north Afghanistan. Company N changed its name in January 2001 (hereinafter referred to as "company N+"). The defendant had made legal entry into Japan eight times for the period of 1995 – 2000, purchasing and exporting second-hand vehicle parts for the above-mentioned companies; he had also traveled Singapore and the Republic of Korea for the same purpose. He is fluent in English and can engage himself in daily conversations in Japanese.

(4) After the battle in the west of Kabul in March 1995, the defendant's parents and younger brother had taken refuge in Mazar-i Sharif, located in north Afghanistan. In August 1998, however, Marar-i Sharif was taken under the control of Taliban, the Pushtun force; it is alleged that many Hazaras were killed in the process, including the defendant's younger brother whose whereabouts are still unknown. The defendant's parents, wife and children then fled to Parwan, located in east Afghanistan.

In 1999, the defendant took his wife and children who had stayed with his parents, to Sharjah, the UAE.

(5) The defendant left the UAE to Peshawar, Pakistan, around 7 April 2001 and entered Afghanistan with a view to meeting his parents in Parwan. When he dropped in at his uncle's house, his aunt told him that the Taliban came to his parents' house in Parwan to arrest the defendant and that, since they could not find him, they arrested his father instead. He felt terrified and immediately went back to Peshawar.

The defendant decided to seek asylum in Japan, met a smuggling broker in Peshawar through his uncle and waited for the completion of the arrangements in Sharjah, UAE. He let his wife and children go to Pakistan so that they could go back to his mother in Parwan.

(6) On the other hand, the defendant had started business with factory P Corporation (hereinafter referred to as "factory P"), trading second-hand vehicle parts in Yamaguchi Prefecture in Japan, since around 1999 as part of the business of company N. On 18 July 2000, he established and registered corporation Q, based in Hiroshima Prefecture, and became its executive.

As the defendant gained confidence of factory P, he rented a factory in Yamaguchi Prefecture (hereinafter referred to as "factory R") in the name of the corporation Q in September 2000, cosigned by factory P which was to use part of the premises. Around the same time, the defendant was invited by A, the executive director of the factory P, to join his corporation. A went to the UAE around November 2000, visited corporation N+ in Dubai and made an agreement with its owner that factory P would employ the defendant.

Having returned to Japan, A made an application for the issuance of a certificate of eligibility for residency status under Article 7-2 of the Immigration Act for the defendant, represented by an employee of factory P, to the Iwakuni Branch Office of the Hiroshima Immigration Bureau on 1 December 2000. However, it took time for him to receive a decision on the application. (In this regard, the notification of dismissal was rendered on 19 June 2001.) Therefore A instructed the defendant to apply for a temporary visitor visa to the Consulate General in Dubai, which was followed by the defendant on 14 April 2001. However, this also took time for the defendant to receive a decision on the application. (In this regard, the Ministry of Foreign Affairs of Japan rendered an instruction on 2 October 2001 to the Consulate General in Dubai not to issue the visa.)

(7) In May 2001, the defendant was contacted by the smuggling broker. He left Dubai, UAE, on 30 May 2001 and arrived at Seoul, Republic of Korea, on 1 June 2001 via Hong Kong. He then went to Pusan, arrived by air at the Fukuoka Airport on 10 June 2001 and entered Japan by showing a forged passport under the name of S of Dutch nationality.

In Japan, he had lived on the premises of factory R, lying to his colleague at factory P that he had entered with a temporary visitor visa, and had been involved in the purchase and export of vehicle parts for company N+ as he had been before.

(8) Toward the end of June 2001, the defendant was informed by A that the application for his certificate of eligibility for residency status was dismissed and the notification to this effect was delivered. Having heard that the dismissal was due to the uncertainty of the defendant's whereabouts in the UAE, A collected papers about the defendant from company N+ as well as the certificate of the permission to stay in the UAE from UAE's embassy in Tokyo. On the basis of these documents, A made a second application for a certificate of eligibility for residency status on behalf of the defendant to the Hiroshima Immigration Bureau. However, the notification of dismissal of the application was rendered on 10 October 2001.

(9) Because a certificate of eligibility for residency status had not been issued to him, the defendant decided to apply for refugee status. He consulted a Catholic church in Osaka, which had been supporting refugees, and was told to go for another Catholic church in Fukuoka. He applied for refugee status to the Fukuoka Immigration Bureau on 12 September 2001 with the church's support. The defendant, however, made the application under a false name "J" and pretended that he had landed in Japan on 22 August 2001; he also submitted a copy of a writ of detention, issued by the Taliban against "J". Afterwards, the defendant called the Catholic church in Osaka on 23 September and confided to B, who had been supporting refugees at the church, that he had applied for refugee status in Fukuoka under the false name. In accordance with B's advice, he decided to apply for refugee status in Osaka and, on 7 November 2001, he made an application to the Osaka Immigration Bureau, indicating his real name. In this application, however, the defendant made false statements about the date of entry and the routes that he had taken, saying that he had come from Peshawar and landed at Yokohama Port by water, via the Republic of Korea, on 22 August 2001. This application was dismissed and the notification was rendered on 27 February 2002.

When he made this application, he told the immigration authorities that he had applied for refugee status under a false name in Fukuoka and withdrew the latter.

2. On the basis of these findings, the Court, first of all, examines whether the defendant is considered as a refugee and, if so, whether his illegal entry and stay in Japan has been caused by his being a refugee. As has been stated, the defendant is a Shi'a Hazara of Afghan nationality. The Hazaras form an ethnic and religious minority in Afghanistan, being in conflict with the ethnic and religious majority, the Pushtuns, who are Sunni Muslims. In the civil war after 1992, the Hazaras had been the targets of military attacks by the Pushtuns and the Tajik groups. Thus it should be evident that the Hazaras were under the threat of persecution in Afghanistan. Further, according to the defendant's letter and statements at the trial, he was a member of the Hazaras' political organization, the Islamic Unity Party; when the Pushtuns and the Tajik groups conducted military attacks against the Hazaras in the Afghan civil war after 1992, he was also engaged in military activities to counter these attacks. Therefore the defendant was at risk of being persecuted by both groups; in fact, it is acknowledged that the Pushtun Taliban was trying to arrest him.

While the Prosecutor casts doubt on the credibility of the defendant's statements above, the Court finds that the defendant's account is detailed and concrete, and consistent in most part, without any account found particularly unnatural. Further, the defendant also seems to possess a special identification card which may indicate his membership to the Islamic Unity Party. The defendant's statements are found credible.

The Court then examines the defendant's motivations in entering and staying in Japan illegally. According to the above findings and the defendant's statement at the trial, it was decided in November 2000 that the defendant was to be transferred from company N+ to factory P. In order to come to Japan, he applied for a certificate of eligibility for residency status through those concerned with factory P. However, when he heard in April 2001 that the Taliban was looking after him with a view to arresting him, he decided to flee Pakistan and the UAE, where the Taliban's influence was strong, and chose to seek asylum in Japan.

As far as the defendant' choice of Japan as a place of refuge, as has been stated, it was obvious that he was motivated partly because he had previously come to Japan is capable of daily conversations in Japanese, and that he would be able to work in Japan since he was to be employed by factory P. This is not the only motivation, however, because he decided to seek asylum in Japan owing to fear of being persecuted in Afghanistan, the country of origin, as well as Pakistan and the UAE where the Taliban, which had taken control of Afghanistan, had strong influence. Even if the defendant was motivated by the possibility of working in Japan at the same time, it does not preclude the acknowledgement of his will to seek asylum.
After the entry into Japan, as has been stated, the defendant applied for a certificate of eligibility for residency status through those concerned with factory P, instead of applying for refugee status immediately; in addition, he had been involved in business such as purchasing vehicle parts. It is not readily comprehensible that the defendant thought that his stay in Japan would be legalized, even if he had entered Japan illegally, once the certificate of eligibility for residency status was issued, and that he had been involved in the abovementioned business merely to support himself during his stay in Japan. However, it is not impossible to understand the defendant's somewhat incomprehensible account above was caused by his wishes to put himself in a more favorable position having illegally entered and stayed in Japan. This finding is based on the following elements. The defendant had legally entered Japan eight times in the past in order to purchase vehicle parts. Further, according to the relevant evidence, after entering Japan illegally this time, he has been using his own bank account as well as another account in the name of company Q, which he has served as an executive; the defendant has also been doing business with factory P and other customers using his real name while residing in the very premises of factory R, and he has not deliberately attempted to hide his whereabouts or to present forged identity.

As has been stated, the defendant applied for refugee status by making false statements about the date of entry and the routes that he had taken. According to the defendant's statement, he had made false statements about the date of entry because he was aware that he should have applied for refugee status within 60 days after the day the person landed in Japan. As far as the false statements about the routes that he had taken are concerned, this was because he thought that it would be detrimental to the recognition of refugee status not to state that he had come directly from a territory where his life, physical being and liberty were at risk. It was also because the smuggling broker had told him that, in order to be granted refugee status, it would be better for him to state that he had landed by water instead of by air. This can also be comprehensible in light of the defendant's circumstances and the state of mind, and such conditions would not preclude the possibility of recognizing him as a refugee or finding the correlation between his being as a refugee and his illegal entry and stay in Japan.

As stated above, the defendant 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, Afghanistan, and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. In sum, the defendant can be regarded as a refugee in terms of Article 2, clause (3)-2 of Immigration Act, and can also be found that he had illegally entered and stayed in Japan owing to such fear mentioned above.

3. The Court then examines whether the defendant can be considered as having entered Japan directly from a territory which was likely to be harmful to his life, physical being, or physical liberty. Drawing also from the interpretations of Article 31 of the Refugee Convention provided in the 1999 Guidelines of the Office of the United Nations High Commissioner for Refugees, the term "entered Japan directly" of the Immigration Act should be interpreted as including the case in which an asylum-seeker entered Japan directly from the country of his origin or other countries where his protection, safety and security may not be ensured, going through transit countries within a short period without seeking or receiving asylum. As has been stated, the defendant left Afghanistan around 7 April 2001 and returned to UAE, where he had resided at that time, via Pakistan; he left Dubai, UAE, on 30 May 2001 and arrived at Seoul, Republic of Korea, on 1 June 2001 via Hong Kong; he then left the Republic of Korea from Pusan, arrived by air at the Fukuoka Airport on 10 June 2001 and entered Japan. On the basis of the relevant evidence, it is clear that Pakistan and the UAE had recognized the Taliban, which had taken control of almost all the territories of Afghanistan at that time, as the legitimate government of the country; thus the defendant was likely to be arrested in the UAE as well. Also it can be considered that the defendant had gone through transit countries, Hong Kong and the Republic of Korea, within a short period. Accordingly the defendant can be regarded as having entered Japan directly from a territory which was likely to be harmful to his life, physical being and liberty in terms of the Immigration Act.

4. The Court furthermore examines whether the defendant had, after having illegally entered and stayed in Japan, submitted a prompt report in the presence of an immigration inspector that he was a refugee and that he met other requirements under Article 70-2 of the Immigration Act. As has been stated, the defendant illegally entered Japan on 10 June 2001 and has stayed in Japan illegally. He applied for refugee status on 7 November 2001. (The application for refugee status to the Fukuoka Immigration Bureau on 12 September 2001, which was submitted under a false name, cannot be considered as submitting a (prompt) report in terms of Article 70-2.) Thus it is clear that five months had elapsed since the illegal entry before the application for refugee status.

The reasons for this delay have already been explained, however. The defendant had waited for a decision on the application for a certificate of eligibility for residency status, which had been submitted by A on behalf of the defendant, for approximately three months until he consulted B who worked for a Catholic church in Osaka in late September;
as has been stated, his state of mind are not incomprehensible in this regard. It can also be acknowledged that the reason why he waited until 7 November 2001 to apply for refugee status (after consulting B in September) was because he was advised so by B and others. While these months have passed before the defendant applied for refugee status, the application can be regarded as a "prompt report" in terms of Article 70-2, in light of his position and his state of mind as a refugee.

As has been stated, the defendant made false statements about the date of entry and the routes that he had taken before entry into Japan, when he applied for refugee status in November 2001. However, he provided true and correct information about other matters, including information relating to his qualification as a refugee and the background thereof. In addition, as far as the defendant's false statement regarding his date of entry is concerned, the gap between the true date and the false date was only 2 months (August 2001 which was false as opposed to June 2001 which was true); further, as far as his false statement about the routes he had taken before entering Japan, he merely omitted the fact that he had stayed in the UAE for approximately 2 months. Taking the defendant's motivations behind these statements into consideration, the mere fact that he made false statements does not preclude the above finding (that the defendant submitted a "prompt report" in terms of Article 70-2 of Immigration Act).

5. In conclusion, it is proved that the defendant meets the requirements set forth in each sections of Article 70-2 of the Immigration Act; he can also be regarded as having submitted a prompt report to this effect in the presence of an immigration inspector after having entered and stayed in Japan illegally. Therefore the defendant shall be exempted from penalty.