Afghan v. Japan (Minister of Justice)

Presiding Judge: Judge Fujiyama, joined by Judge Hirosawa and Judge Higure

Decision

On the petition to suspend the execution of the written detention order pending the decision on the principal case ( No.290 Gyo-u ((Administrative Case)) 2001 lawsuit for revocation of decision to issue a detention order pending before the present Court), the Court decides as follows after having heard the agency in charge:

Conclusions

1. The execution of the written detention order on the applicant, issued by the agency in charge on 3 October 2003 and extended on 30 October 2003, shall be suspended from 10:00 a.m. on 9 November 2001 until the first instance decision on the principal case (Case No.290/2001 pending before the present Court which requests revocation of the written detention order) is delivered.

2. The applicant's other pleas shall be dismissed.

3. The costs involved in the present petition shall fall on the agency in charge.

Reasoning

Section 1: The parties' pleas

1. The applicant
The same as Conclusions.

2. The agency in charge
The petition should be dismissed.

Section 2: Facts

The case file reveals the following facts on a prima facie basis.

1. The applicant's nationality and date of birth
The applicant is a Hazara of Afghan nationality, born on 25 May 1976, and a Shi'a Muslim.

2. How the applicant entered and remained in Japan
Approximately since 1997, the applicant had come to Japan five to six times for the purpose of purchasing second-hand vehicle parts on behalf of his father's friend living in the United Arab Emirates.

The applicant left Afghanistan and moved to Peshawar, Pakistan, by road. He obtained travel documents through a broker, to whom he had asked for arrangements to enter another country, and entered the Republic of Korea via Thailand. He was handed over to a Korean broker upon entry and his travel documents were returned to the original broker. Having stayed in the Republic of Korea approximately for a month, he left the country around 18 July 2001 on a cargo ship (whose nationality is unknown) from the Port of Pusan and entered Japan around 23 July 2001.

Since then, the applicant had stayed in the premises of a car wrecking site in Sakura City, Chiba Prefecture and worked as a dealer of second-hand vehicle parts.

3. Application for refugee status
On 1 August 2001, the applicant submitted an application for refugee status to the Minister of Justice through the Tokyo Immigration Bureau.

4. The detention order on the applicant
On 3 October 2001, the Tokyo Immigration Bureau raided the applicant's residence in accordance with the warrant for inspection, search and seizure, together with the Chiba Prefectural Police, and uncovered seven Afghans, including the applicant.

On the same day, an immigration control officer of the Tokyo Immigration Bureau undertook an investigation of violations that might have been committed by the applicant and concluded that there were reasonable grounds to suspect that the applicant fell within Article 24, clause (1) of the Immigration Control and Refugee Recognition Act (hereinafter referred to as "the Immigration Act"). The officer obtained the written detention order by the agency in charge and executed it, detaining the applicant in the Tokyo Immigration Detention House. On 5 October 2001, the officer handed over the applicant to an immigration inspector of the Tokyo Immigration Bureau as a suspect who may fall within Article 24, clause (1).

On 30 October 2001, the agency in charge extended the period of the detention under the written detention order until 1 December 2001.

Section 3: The parties' arguments

1. The applicant
The applicant argues that the issuance and execution of the detention order is illegal because: (1) it is in violation of the Convention on the Status of Refugees (hereinafter referred to as "the Refugee Convention"); (2) the detention was executed with a view to preventing terrorism in Japan and to collecting information on terrorists who may be in Japan, which cannot be considered as legitimate purposes under the Immigration Act; and (3) as the issuance of detention order was illegal in breach of the Refugee Convention, its execution will give the applicant irreparable damage.

2. The agency in charge
The agency in charge argues that the applicant does not have the urgent need to avoid irreparable damage even if the detention order is executed. Further, since the detention order was issued in accordance with the law, the principal suit has no grounds. In addition, the suspension of the detention order will result in a grave effect against the public welfare. Consequently, argues the agency in charge, the present plea has no grounds.

Section 4: Judgments of the Court

1. Whether the present petition can be considered as a case "whose principal case (the merits) apparently has no grounds" (Article 25, para.3 of the Administrative Case Litigation Law)

(1) The requirements for the issuance of a written detention order
Article 39 of the Immigration Act provides that an immigration control officer may, if he has reasonable grounds to suspect that a suspect falls within any one of the clauses of Article 24, detain the suspect in accordance with a written detention order. As the agency in charge points out, any other ground is not required for the issuance and execution of a written detention order.

Article 3, para.2 of the Refugee Convention, however, provides that the Contracting States shall not apply restrictions other than those necessary, to the movements of refugees who fall under para.1 of the same article (refugees who, coming directly from a territory where their life or liberty was threatened in the sense of article 1, enter or are present in the said signatory state without authorization.) Taking into consideration that the status of the Refugee Convention possesses legal force to national legislation, it should be understood that when a supervising immigration officer issues a written detention order on the premise of the deportation procedures, it is necessary for him/her to consider, in addition to the grounds in Article 39 of the Immigration Act, a possibility that the subject may qualify a refugee. Further, if there is such a possibility, the officer should consider the probability of the subject qualifying as a refugee and whether it is necessary to restrict his/her movements in the light of Article 31, para.2 of the Refugee Convention. In other words, it is possible to issue a written detention order when it is evident that the subject does not qualify as a refugee in terms of Article 31, para.1 of the Refugee Convention at the time of consideration for the issuance of a written detention order, or when it is necessary to restrict his/her movements because of any grounds for deportation other than illegal entry (e.g. a conviction of the subject) and when there are possible difficulties in the inquiry of the facts for refugee status determination (Article 61-2-3) arising from the irregularities of his/her person. It should be understood that when there is probability to a certain degree that the subject qualifies as a refugee, the necessity of the detention should be considered in comparison to the degree of the probability and, only when it is necessary, a written detention order may be issued and executed.

In this regard, the agency in charge argues that "restrictions ... which are necessary" in Article 31, para.2 of the Refugee Convention means such restrictions as is regarded necessary in the light of national security and public order of a Contracting State; since detention in accordance with a written detention order prescribed by law is recognized as a right of a State under international law and since Article 32 of the Refugee Convention permits deportation "on grounds of national security or public order", a person may be detained in accordance with a written detention order prescribed under Article 39, para.1 of the Immigration Act, whether or not he/she is a Convention refugee, if there are reasonable grounds to suspect that he/she may fall within any of the clauses under Article 24 of the Immigration Act.

However, Article 31 of the Refugee Convention in principle prohibits punishment and restrictions on movements on the subject, even with the premise that he/she may have entered and remained in a State illegally, for refugees may frequently face difficulties in entering and remaining in a State in a regular manner. Therefore the Court should conclude that it is in breach of Article 31, para.2 of the Refugee Convention to issue a written detention order and execute on a person who may qualify as a refugee, only because there are reasonable grounds to suspect that he/she had entered or stayed in Japan illegally.

In addition, the said paragraph obliges the Contracting State to provide all the facilities necessary to obtain admission into another country for a refugee in terms of Article 31, para.1. Since it is understood that the provision of such facilities includes at least the prevention of detention, it conflicts and contradicts with the said provision to interpret detention only on account of illegal entry as "restrictions ... which are necessary" of the said provision. The argument of the agency in charge cannot be supported in this regard also. Furthermore, the agency in charge argues that it is unreasonable to prohibit the deportation procedures as well as the detention for that purpose unless the possibility that a subject may qualify as a refugee is dismissed after the refugee recognition procedures. This argument lacks its basis, however, because such inflexible responses will not be brought about as long as the necessity of restrictions on a refugee's movements is examined in comparison to the probability of the subject being a refugee.

(2) The probability of the applicant qualifying as a refugee

In accordance with the above interpretations of Article 39 of the Immigration Act and Article 31, para.2 of the Refugee Convention, when a supervising immigration officer issues a written detention order against a person who had applied for refugee status, he/she is to consider a general possibility that the applicant may qualify as a refugee and, if there is such a possibility, to consider how probable it is and whether the envisaged detention is considered as a necessary restriction on his/her movements.

On the probability that the applicant in this case may qualify as a refugee, there is no disagreement among the parties that, as was mentioned in Section 2-3 above, the applicant had submitted an application for refugee status to the Minister of Justice through the Tokyo Immigration Bureau on 1 August 2001 and that any decisions have not been taken in this regard. Furthermore, the following conclusions can be drawn from the clarifying materials on a prima facie basis. Namely, the Taliban, who has taken over de facto control over Afghanistan, generally persecute Hazaras and Shi'a Muslims, such as the applicant, for reasons of race or religion, and that the applicant was arrested by the Taliban when he tried to renew his travel documents and was detained for about twenty days, being subjected to violence, until his father paid US $ 8,000-9,000 and he was finally released. On the basis of these facts, it is probable to some degree that the applicant may qualify as a refugee in terms of Article 31 of the Refugee Convention, who, owing to well-founded fear of being persecuted for reasons of race, religion and political opinion, is outside the country of his nationality and is unable to avail himself of the protection of that country.

The agency in charge does not present clear arguments in this regard. According to the clarifying materials, the agency in charge apparently considers that the applicant and other ten persons who were detected by the agency at the same time entered Japan illegally in an organized manner, in the light of the facts that seven out of the eleven persons were detected when they were in the same residence in Sakura City, Chiba Prefecture, that some Pakistani nationals identified themselves as Afghan national after the detention and that some Afghans who have remained in Japan illegally had applied for refugee status under false names in order to camouflage their illegal entry. Accordingly, the agency in charge apparently considers that the applicant is not a refugee in terms of the Immigration Act or the Refugee Convention but that he is simply an economic refugee or someone who seeks to work in Japan by obtaining status of residence through the refugee recognition system.

However, the applicant has a driver's license issued in Japan which indicates his Afghan nationality as well as a driver's license issued in the United Arab Emirates which does the same; thus it is clear that he is of Afghan nationality and it cannot be said that he attempted to disguise himself as a refugee with false nationality. In addition, the clarifying materials do not prove that the applicant applied for refugee status under a false name. Furthermore, the relationship between the two Pakistanis who had declared false nationality and the applicant is, according to the clarifying materials, no more than that they were found out on the same day, as the former were found out at Adachi-ku and Higashi-Murayama City, Tokyo, while the latter was found out at Sakura City, Chiba Prefecture. There are no other clarifying materials to prove that they had had an organized relationship; the clarifying materials produced by the agency in charge are either so general that they cannot prove organized backgrounds in the present case or only effective in proving the vicious nature not of the applicant but of those who declared false nationality or names. On the other hand, the applicant acknowledged the existence of the third parties ("brokers") during the investigation by the Tokyo Immigration Bureau; the agency in charge brings this issue and apparently argues that this fact reveals that the applicant is not a refugee. However, the materials do not clarify the role of the "brokers" indicated in the applicant's statement. The possibility cannot be denied that the applicant, as a refugee, had unavoidable circumstances in which he had to enter Japan illegally through the third parties who help immigrants enter other countries, since, as was indicated above, he was arrested when he went to obtain travel documents and could not achieve his purpose. If that is the case, it is hasty to consider that, as the agency in charge argues, the applicant was a member of the organized activities through which the members enter Japan illegally and obtain status of residence as refugees in a fraud manner in order to work. In addition, the other persons who were found out together with the applicant had entered Japan in a manner different from that of the applicant; this also indicates that the applicant did not enter Japan in an organized manner. Thus the arguments of the agency in charge cannot be sustained.

With regard to the applicant's argument that he was under threat in Afghanistan, the agency in charge argues that Article 31, para.2 of the Refugee Convention does not apply to the applicant because he did not come to Japan directly from Afghanistan. However, the purposes of limiting the application of Article 31 of the Refugee Convention to refugees who come directly from a territory where their life or freedom was threatened (the provision does not only apply to a country of nationality or origin) are, on the one hand, to provide remedies for those who committed illegal acts such as illegal entry or presence in the country but to those who conformed to the prescribed procedures without delay after having fled from the threat and, on the other hand, to prevent adverse effects by illegal entry or presence of those who had settled in a third country for some time but entered another country without good reasons. Thus the provision does not necessarily require that refugees come directly, as a matter of form, from a territory where they were threatened; if they entered a Contracting State after a series of movements in order to be evacuated from a territory to avoid threat, they can be considered as refugees who come "directly" even if they transited third countries.

In the present case, the applicant left Afghanistan, where he was under threat, to Pakistan in order to flee from the threat; he did not choose to settle there but asked a broker to leave for another country, and then entered Japan illegally in the above-mentioned manner. The process of leaving Afghanistan and entering Japan can be considered as a series of movements, Pakistan, Thailand and the Republic of Korea being no more than transit territories. Thus the fact that the applicant came through these territories does not mean that he did not come directly to Japan.

(3) The necessity of his detention

As was acknowledged in (2) above, there is a probability that the applicant may qualify as a refugee. If that is the case, in accordance with the interpretations shown in (1) above, it should be considered, when issuing a written detention order, whether the detention can be considered as a necessary restriction on the applicant's movements in the light of Article 31, para.2 of the Refugee Convention. Thus the Court now examines whether detention is necessary in the present case.

In the present case, the applicant is a single person who had entered Japan illegally, has no family members in Japan and has not remained here for a long time" thus it cannot be said that he is based in Japan. He also acknowledged that he had no guarantor at the time of the issuance of a detention order, which may justify the suspicion that his appearance may not be ensured during the refugee status determination procedures or the deportation procedures. However, the agency in charge did not consider these circumstances when issuing the written detention order, and after the present petition to the Court has been made, the agency in charge does not provide explanations in this regard, stating that there is no need to consider such circumstances in the issuance of a written detention order, in spite of the request by the Court. In addition, the applicant had resided in the present place since the entry into Japan, which may not be for a long duration, until he was detained in accordance with the order; he also applied for an alien registration to the City Hall of Sakura City, where he resides, on 6 August 1991. Further, among others, he applied for refugee status to the Minister of Justice on 1 August 1991, which is not long after his entry, and presented himself to the Otemachi Office of the Tokyo Immigration Bureau for interview on 17 September 1991 upon request of the Bureau. Since then, there has been no change of circumstances that would throw doubt on the stability of his person. It cannot be concluded that, unless he is detained, specific difficulties or concerns in terms of ensuring his appearance and public welfare would arise, at the time of issuing the written detention order. Given these facts, the Court can hardly accept, in comparison to the probability that the applicant may qualify as a refugee (as was indicated in (2) above), that it was necessary to restrict his movements even by issuing and executing the written detention order.

Although the applicant did not have a guarantor when the written detention order was made as was indicated above, five persons, including not only his representative but also a bishop of the Catholic parish A, a director of the center B in the parish and a director of the association C submitted letters of guarantee during the present application procedure, stating that they and their colleagues would support the applicant. Furthermore the Catholic church D in Koto-ku, Tokyo, states that it would provide accommodations for the applicant in its premises and, when he has to move, the arrangements would be made in prior consultation with his counsel and under the responsibility of his counsel. Thus the present circumstances makes it even less necessary to detain the applicant than at the time of the issuance of the detention order.

(4) Conclusion

On the basis of the above reasoning, it should be said that the detention in the present case has been undertaken without giving considerations to the circumstances that should be considered by the immigration officer. Even if these considerations have been made, it is highly likely that the detention is in breach of Article 39 of the Immigration Act as well as Article 31, para.2 of the Refugee Convention. Thus the present petition to the Court cannot be considered as the case "whose principal case apparently has no grounds" in terms of Article 25, para.3 of the Administrative Case Litigation Law.

2. Whether the application meets the requirement of "the urgent need in order to avoid irreparable damage" (Article 25, para.2 of the Administrative Case Litigation Law)

The concept of "irreparable damage" in terms of Article 25, para.2 of the Administrative Case Litigation Law applies when damage caused by a disposition cannot be restituted or compensated, or when it is possible to be compensated, is not easy to bring back the original situation, in the light of the general social standards, given the nature and form of the damage.

The damage given to the applicant in the present case is deprivation of liberty through detention. Detention itself is grave violation of human rights of an individual, causing grave psychological and physical damage to the detainee. In particular, if a person is detained when he has applied for refugee status and has not yet been given decision with regard to the application, it cannot be denied that the detention will give adverse effects on his activities for refugee recognition or for obtaining admission to other countries. Given the unstable status of the applicant, he will experience immeasurable sufferings if these activities are prevented even for a day. In addition, a possibility cannot be denied that the psychological and physical damage caused by the detention may give adverse effects on his activities during the refugee recognition procedures, resulting in the rejection of his refugee status in spite of his eligibility. The damage caused by these disadvantages can be considered as the one which cannot be compensated afterwards or which is not easy in the light of the general social standards to be restituted.

The agency in charge argues that any damage caused by an administrative disposition or its execution is not "irreparable damage" in terms of Article 25, para.2 of the Administrative Case Litigation Law, if by the law authorizing the administrative disposition presupposes such damage, which will naturally arise as a result of the disposition and should be endured. The agency in charge continues, detention in terms of Article 39, para.1 of the Immigration Act is aimed at taking the subject into custody to investigate whether there are grounds that justifies his/her deportation and at facilitating a series of deportation procedures. Thus, according to the agency in charge, any disadvantage caused by such detention is no more than the damage which will arise naturally by the execution of the detention order and cannot be considered as "irreparable damage".

However, the Administrative Case Litigation Law makes it a rule that lawsuit for revocation of any disposition does not affect the effect of the disposition and then introduces the suspension procedures, with a view to preventing cases where the rigid enforcement of the rule result in irreparable damage that would make later favourable decisions ineffective. At the same time, the Law has the restitution procedures for the damage that is easy to be restituted afterwards. Accordingly, if it is likely that any disposition or any damage that is presupposed by law would make later favourable decisions ineffective, the necessity of the suspension system should be admitted. Furthermore, whether it is irreparable damage and whether the damage naturally arises from a disposition does not always correspond; the damage which naturally arises from a disposition may sometimes be irreparable, and the damage which is not supposed in a law to happen may sometimes be easily restituted afterwards. Thus it is sufficient to consider whether the damage can be regarded as irreparable in the light of the nature of the disposition and of the consequent damage as well as the applicant's circumstances. The language of the Administrative Case Litigation Law do not preclude such interpretations, since they do not exclude the damage which will naturally arise from a disposition.

Further, as stated above, the applicant in the present case will suffer irreparable damage through the disposition by way of detention.

Furthermore, when a petition is submitted to suspend the execution of a written deportation order, it is often the case in practice that the execution of the order is suspended as far as the deportation is concerned, but the detention being not suspended. One may suspect that the above reasoning is contrary to such practice. However, whether there will be irreparable damage which justifies the suspension should be decided in a flexible manner in the light of the possibility of later favourable decisions. The practice apparently has been supported due to very limited possibilities of later favourable decisions for the applicants, for example, in the cases where the existence of the grounds of deportation was not disputed and the issue in the principal case was whether the discretion of the Minister of Justice was abused in not granting special permission to stay. In the present case, it is probable to a significant degree that the applicant may qualify as a refugee, which makes it illegal to detain him without giving considerations to the probability; in addition, even if the applicant is not granted protection in Japan, he should be allowed a reasonable period before deportation to obtain admission into another country (Article 31, para.2 of the Refugee Convention). Thus it is likely to a significant degree that the applicant will be given favourable decisions. Accordingly the present case is different from the other cases in which the practice indicated above was applied, and cannot be treated in the same way.

3. Whether the suspension "is likely to result in a grave effect against the public welfare" (Article 25, para.3 of the Administrative Case Litigation Law)

The agency in charge argues that in cases in which a person who is issued a written detention order files a lawsuit for revocation of the disposition, and at the same time pleas for the suspension of the execution of the written detention order, it is unacceptable by any measure if such suspension and execution is accepted merely because the principal lawsuit has been filed or is pending. The agency in charge argues that this would be obviously contrary to Article 25, para.1 of the Administrative Case Litigation Law, which makes it a rule that an appeal against a disposition does not have the effect of suspension. ,Further, it is also unacceptable, the agency in charge argues, as it would make it impossible for a prolonged period, during which the principal case is pending, to detain a person, such as the applicant, who has reasonable grounds to be suspected as deserving for deportation, and such will stagnate the administration of immigration control for a long time and cause serious damage to it. The agency in charge adds that, even an alien who entered and has remained in Japan legally is subjected to legal control in terms of the status of residence and the period of stay under the Immigration Act and to significant restrictions, such as the payment of a bail bond, in terms of the provisional release under Article 54. Thus, argues the agency in charge, if the Court permits the suspension of the execution of the present detention order, an alien who has reasonable grounds to be suspected as deserving for deportation would stay in Japan without any such restrictions under the Immigration Act with the official approval of the judiciary. The agency in charge continues, this means that the Court actively interferes with a disposition with force and approves a provisional status, which is not only contrary to the object of Article 44 of the Administrative Case Litigation Law as well as the principle of separation of power, but also seriously disorganizes the status of residence system, the fundamental pillar of the alien control under the Immigration Act, and that such an action is also very likely to make it impossible to execute a written detention order, due to subjects' evasion in the absence of a measure equivalent to the payment of a bail bond in the case of the provisional release; it would induce and foster abusive lawsuit, similar to the present case, by those who remain illegally in Japan after the expiration of their period of stay, thus being likely to result in a grave effect against the public welfare. Furthermore, the agency in charge argues that the permission to suspend the execution of a written detention order is likely to result in a grave effect against the public welfare, because it would make it difficult to a series of procedures without hindrance, from the examination of possible grounds for deportation, the issuance of a written deportation order when the grounds for deportation was found and the execution of the order, and that despite the fact that the Administrative Case Litigation Law excludes the possibility of a provisional disposition in terms of the Civil Procedure Act in the administrative case procedures, it would result in granting a provisional status, similar to the one given under the latter law.

The suspension of the detention order in the present case, however, is not permitted simply because the principal lawsuit has been filed and is pending; as the Court has reasoned in 1 and 2 above, it is permitted after the Court has examined whether the requirements under Article 25 of the Administrative Case Litigation Law are met, including the probability that the applicant may qualify as a refugee and whether it is necessary to restrict his movements. Since the suspension is permitted after considering these requirements, it should be said that all the concerns expressed by the agency in charge are already resolved. Furthermore, since the suspension is provided for under the Administrative Case Litigation Law, its use does not conflict with the exclusion of a provisional disposition in terms of the Civil Procedure Act. The other arguments produced by the agency in charge are limited to the general impact of the suspension of a written detention order, lacking specificity and adequacy. There is no evidence, in the present case, that the suspension of the written detention order is likely to result in a grave effect against the public welfare.

Rather, the attitude of the agency in charge in the administration of the Immigration Act is on the verge of disregarding the existence of the Refugee Convention, the norms preceding the Law; this attitude is in itself contrary to the international order and thus results in a grave effect against the public welfare.

Section 5: Conclusions

In accordance with the above reasoning, the present petition can be considered as having good grounds and it is unnecessary to examine other issues. In the light of all the necessary considerations, including the need for smooth reception of the applicant by the guarantors, the suspension is to be enforced at 10:00 a.m. on 9 November 2001. The Court admits the applicant's cases as far as this issue is concerned and dismisses his other cases. With regard to the costs associated with filing of the petition, Article 7 of the Administrative Case Litigation Law as well as Article 61 and Article 64, the proviso, of the Civil Procedure Act will be applied. The Court decides as is stated in the Conclusions.