Rights of “foreigners” in Japan
The more I study about laws in Japan, the harder it is to find due-process for “foreigners” in Japan.
Most of my friends/clients/business partners are concerned with their immigration process, and everybody finds it’s difficult to find the right outcomes and answers.
Administrative Laws
Administrative Procedure Act (行政手続法) is the act to seek to advance a guarantee of fairness and progress towards transparency by providing for common rules concerning procedures for dispositions, administrative guidance and notifications, and procedure for establishing “Administrative Orders, etc”.
In addition to Administrative Procedure Act, we also have State Redress Act (国家賠償法), and the Article 1 states as follows.
Article 1 : When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor.
Exempt
These Acts, however, have exemption.
Administrative Procedure Act is not applied to the immigration procedures.
Article 3 (1) The provisions of Chapters 2 to 4 inclusive shall not apply to the Dispositions and the Administrative Guidance specifically listed as follows: …
… (x) Dispositions and Administrative Guidance concerning departure and immigration of foreign nationals, recognition of refugees, and naturalization;
State Redress Act includes the following clause.
Article 6 : In cases where the victim is a foreign national, this Act shall apply only when a mutual guarantee exists.
Basically Japanese citizen can follow the so-called “Administrative Laws” so that we can raise appeal against the exercise of public authority by an administrative agency when the exercise when it’s unjust or illegal.
In case the public authority infringe our rights to enjoy the fundamental human rights, we should be able to claim.
Make a case
Because Dispositions and Administrative Guidance concerning departure and immigration of foreign nationals, recognition of refugees, and naturalization have been the exemption from Administrative Procedure Act, some “foreigners” stood up for the rights.
The most well-known case is McLean v Minister of Justice, 1978.
Austing Zeng wrote a very insightful article about this case, so I recommend to go through it.
https://austin-zeng.com/the-rights-of-foreigners-to-political-protest-in-japan/
In short, McLean was trying to renew his working visa, but Immigration Bureau declined the application because
- The Constitution of Japan, Article 22 is only for Japanese citizen, and it does not prescribe anything about foreigners.
Constitution, Article 22 / Every person shall have freedom to choose and change his residence and to choose his occupation to the extent that it does not interfere with the public welfare.
2. McLean did not submit the “Notification of the accepting organization” when he changed his main workplace
3. He was joining anti-Vietnam war protest after entering Japan
Although his case was determined to be illegal at District Court, the Higher and the Supreme Court overturned the decision, and made it legal.
Hard to change
Laws of Japan are hybrid. Originally it took the essence of German Law, but American Law took over after the World War II.
It’s a rigid constitution, so it takes time to change. The laws are based on statutory law system, so it’s hard to change.
The laws, however, took some effects from American Law based on Case Law System, so it does care about what kind of cases we had in the past.
Now what?
Japan is facing a severe population decline — it’s obvious. The Government of Japan, therefore, created several systems to invite foreign workers to Japan such as Specified Skilled Worker, but the number of the workers are far behind from what the government originally planned because the entire process is too complicated.
Finally it’s time?
Japanese media started to draw attention to this irregular system. https://www3.nhk.or.jp/news/special/izon/20200529ginou.html
Even if new systems are created, it does not bring the expected result.
The new systems pursue the environment where everyone can “cohabitate”. “Cohabitation” connotes a feeling that the difference will never be diminished.
We need a society that embraces “diversity”.
