Amphaphong Phou - Ngene Case
|Publisher||Japan: District Courts|
|Author||Tokyo District Court|
|Publication Date||27 June 1980|
|Citation / Document Symbol||Gyo ku 35 of 1980|
|Cite as||Amphaphong Phou - Ngene Case, Gyo ku 35 of 1980, Japan: District Courts, 27 June 1980, available at: http://www.refworld.org/docid/3ae6b6fc8.html [accessed 2 March 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
AMPHAPHONG PHOV - NGENE - CASE
The execution of a mandatory warrant for deportation issued to the moving party by the opposing party on March 19, 1980 shall be suspended, only with respect to the deportation portion, until the day one month has elapsed from the date of pronouncement of the judgment of the first instance in the principal case (Case 1980 (gyo-u) No. 65 of this court).
The rest of the motion shall be rejected.
The costs of motion shall be borne by the opposing party.
1) The gist of the motion of this case is that the moving party prays for ruling to the effect that execution based on a mandatory warrant issued by the opposing party to the moving party on March 19, 1980 be suspended only with respect to the portion concerning deportation until the judgment of the principal case become final and conclusive.
2) In examining the case, according to the record of the case, it can be first recognized that if the execution of deportation of the moving party to outside the country is carried out on the basis of the mandatory warrant for deporation, it will become, in effect, extremely difficult for the moving party to maintain the principal lawsuit. (Since it can be recognized that, in the light of the issues of this lawsuit which will be mentioned later, the moving party himself constitutes the method of the most important evidence, and also that it will be difficult to find a person who can replace the moving party in this country, it can be recognized that the moving party is in an important position in the management of the lawsuit itself.) In the present situation where, even if the moving party obtains a final and conclusive judgment in his favor in the aforementioned lawsuit, it cannot be said that a system exists which will guarantee the restoration of the status quo of the moving party as it existed before the reentry and other incidents including the execution of deportation. It is evident that the moving party will suffer unrecoverable damage owing to the execution of deportation by the mandatory warrant for deportation. Therefore, it should be said that there is a pressing need to obviate the aforementioned damage.
3. The opposing party contends to the effect that the motion of this case falls under cases "where there appears to exist no reason with respect to the principal lawsuit." We think on this respect as follows.
2) Next, the opposing party contends to the effect that there is no mistake in the discretionary judgment passed by the Minister of Justice to the effect of not granting a special permit of residence. Upon examining this point, the following facts can be recognized on the basis of the moving party's evidence.
The moving party was born in Laos on September 14, 1955; after graduating from an overseas Chinese junior high school in that country and while he was helping in a retail business of daily miscellaneous goods, he became interested in Japan; on September 27, 1972 he was issued a passport from the government of the Laotian Kingdom, and after obtaining a tourist visa on that passport at the beginning of September 1974, he landed in Japan for the first time and spent about five months in this country. Then on June 27, 1975 he landed in Japan again in a similar manner as before, but since a political change was in progress in Laos at the time when the 60-day period of stay was to expire, he left for Taiwan on August 26 of the same year. During his stay in Taiwan, however, the Laotian Kingdom collapsed, and his passport became invalid. For this reason, he applied to the Diplomatic Department of the Taiwanese Government for the issuance of a passport by using the name of Lin Jing, and he was issued it on July 13, 1976. Further, after obtaining the issuance of a travel document for aliens from the Japanese consulate in Hong Kong on the 22nd of the same month. On the 28th of the same month he received a landing permit with the period of stay set at 60 days, and he thus landed in Japan for the third time. After that, he was leading a life working at restaurants and the like, without obtaining an extension of his period of stay even after his prescribed period of stay had elapsed. He was arrested by the police of the Kawaguchi Police Station on January 30, 1980.
The moving party maintains that since he is an Indo-chinese refugee the Minister of Justice must exercise his discretionary power by respecting this fact, whereas the opposing party asserts that he does not fall under the category of an Indo-chinese refugee since the said passport of the Republic of China in the possession of the moving party is the passport of one's own country, and the Republic of China has approved his entry on the basis of said passport. However, since, as mentioned previously, the moving party has been issued a passport of one's own country by the Laotian Kingdom as well and since the nationalities of his parents as well as the procedures whereby he was issued a passport of the Republic of China are not clear, there are still uncertain points with respect to the nationality of the moving party in the light of the nationality-related laws and regulations of said countries. Accordingly, whether or not he will ultimately be able to receive protection from the Republic of China is questionable depending on the results of examination. Also, according to the moving party's evidence, it can be recognized for the time being that his parents and brothers and sisters are being accommodated in a refugee camp in Ubon, Thailand. Therefore, even if the moving party does not fall directly under the category of Indochinese refugees to whom relief is extended by the Government, it cannot be said that this case appears to fall under the cases "where there appears to exist no reason with respect to the principal lawsuit" by assuming immediately at this stage that there was no mistake in the discretionary judgment passed by the Minister of Justice, if we take into consideration that facts have been recognized from the moving party's evidence such as that a special permit for stay has been granted to four Laotians of overseas Chinese descent who landed in Japan after obtaining tourist visas on passports issued by the Laotian Kingdom and subsequently resided illegally based on major reasons such as: that their passports issued by the former Laotian Government had become invalid; there are problems from the viewpoint of humanity in deporting them to Laos, which is under the regime of the present Laotian Government whose political system is different from that of the former Laotian Government; it is impossible to deport them to another country, and other reasons. In consequence, with respect to this matter there is no other way than to wait for examination in the future.
In addition, there is no other evidence sufficient to recognize that there are no reasons with respect to the principal lawsuit, and, further, there is no assertion or substantiation to the effect that the suspension of execution of the portion relating to deportation on the basis of the mandatory warrant for deportation of this case is feared to exert a grave influence on the public welfare.
4. Such being the case, it should be said that there are reasons for granting the motion of suspension of the execution. However, by taking into consideration factors such as that at the present stage the information for use as evidence concerning important issues is extremely lacking because, as already mentioned, the moving party is a foreigner and that his family members are in refugee accommodation facilities, and other reasons and the fact that there are still flexible factors with respect to the policy of the Japanese Government relative to Indochinese refugees or foreigners regarded correspondingly, the execution of the portion, relating to deportation shall be suspended for the time being until the day when one month has elapsed from the date of pronouncement of the judgment of the first instance. With respect to the portion in which the moving party seeks the suspension of execution for a period after the said period of time, it is considered appropriate to make a ruling anew at the said point of time; therefore, said motion shall be rejected. Finally, the court hereby issues a ruling as stated in the text, with respect to the burden of bearing expenses for pleading, by applying Article 7 of the Administrative Litigation Act and Articles 207, 92, and 89 of the Code of Civil Procedure.