Heisei 30 Nen (Gyou-Ko), No 232

Parties (including notable third parties)

Unnamed individual seeking recognition as a refugee and claiming statelessness (Plaintiff); The Minister of Justice of Japan and the relevant immigration authorities (Tokyo Regional Immigration Bureau) (Defendant)

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Summary of Facts

The Plaintiff was born in Tbilisi in 1967 to parents who were nationals of the former Soviet Union, his father being ethnically Armenian. He acquired Soviet nationality at birth and resided in Georgia until 1993, where he was educated and completed military service. Following Georgian independence in 1991 and the subsequent dissolution of the Soviet Union, the Plaintiff’s Soviet nationality ceased to exist. He was unable to acquire Georgian nationality due to restrictive nationality laws that imposed stringent conditions on non-ethnic Georgians. Although his personal circumstances did not strongly align with Armenian identity, he was classified as Armenian based on his father’s ethnicity.

During this period, non-Georgians were subject to widespread discrimination and violence, and the Plaintiff was personally assaulted and unable to obtain police protection. He fled to Russia in 1993 but was neither granted nationality nor lawful residence. He subsequently travelled through Europe seeking refugee protection, lodging applications in multiple countries, including Poland, Germany, France, Spain, Norway, Ireland, and the United Kingdom, but was unsuccessful. Attempts to obtain Russian nationality also failed due to administrative barriers.

In 2010, having exhausted avenues for protection in Europe, the Plaintiff travelled to Japan using a forged passport and applied for refugee status.

The proceedings before the Tokyo High Court concerned three principal issues: whether the Minister of Justice’s refusal to recognise the Plaintiff as a refugee should be set aside; whether the deportation order issued by the Tokyo Regional Immigration Bureau should be invalidated; and whether the refusal to grant special permission to remain in Japan was lawful.

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Legal Arguments

Legal Arguments by the Plaintiff

The Plaintiff argued that he is a stateless person who qualifies for refugee status on the basis of a well-founded fear of persecution in Georgia, his former habitual residence. He submitted that, due to his Armenian ethnicity, he would face discrimination, violence, and an absence of effective state protection if returned. In support of this claim, he relied on his past experiences in Georgia, including being assaulted and living in an environment marked by hostility toward non-ethnic Georgians. He contended that these circumstances demonstrated both a subjective fear of harm and an objectively reasonable risk of persecution. He sought to have the administrative decisions refusing to recognise him as a refugee, as well as related immigration determinations, set aside.

Arguments from the Defendant

First, in relation to refugee status, the Defendant argued that the Plaintiff’s experiences in Georgia did not amount to ‘persecution’. It relied on a narrow understanding of persecution, emphasising that the Plaintiff had not been arrested or detained and had not suffered harm to life or physical integrity. The Defendant also maintained that the Georgian Government generally respected the rights of ethnic minorities and that there was insufficient objective evidence to show that ethnic Armenians, as a group, were subject to widespread or systematic oppression.

Secondly, in relation to the deportation order, the Defendant argued that the relevant provision of the Immigration Control and Refugee Recognition Act did not prohibit deportation to a country that the individual did not wish to return to. It submitted that the requirement to act ‘pursuant to their wishes’ merely obliged decision-makers to consider the individual’s preferences, rather than to follow them. On this basis, they argue that it was permissible to designate Georgia as the destination for deportation despite the Plaintiff’s objections.

At first instance, the Tokyo District Court accepted the Defendant’s position, finding that the Plaintiff had not established a sufficient risk of persecution. It upheld the administrative decision denying refugee status, thus prompting the Plaintiff to appeal to the Tokyo High Court.

Outcome

The Tokyo High Court first considered the Plaintiff’s nationality status by examining his connections to the former Soviet Union, Russia, and Georgia and accepted that the Plaintiff is stateless.

In relation to refugee status, the Court held that the Minister of Justice’s refusal to recognise the Plaintiff as a refugee should be revoked. Applying the definition in Art 1(A)(2) of the Refugee Convention, the Court found that the Plaintiff, as a stateless person outside his former habitual residence, satisfied the requirements for refugee status. In assessing ‘persecution’, the Court departed from prior administrative practice in Japan, which had tended to require direct threats to life or physical integrity. Instead, it held that the severe disruption of the Plaintiff’s livelihood and subsistence arising from discrimination and insecurity in Georgia constituted persecution.

The Court further found that the Plaintiff had a ‘well-founded fear’ of persecution, noting in particular that the Georgian authorities continued to refuse him re-entry, demonstrating that the risk persisted. As to the Convention ground, the Court concluded that the persecution was linked to the Plaintiff’s ethnicity as Armenian, which exposed him to discriminatory treatment.

Turning to the deportation order, the Court considered the operation of Article 53 of the Immigration Control and Refugee Recognition Act. As the Plaintiff was stateless, he could not be deported to a country of nationality, and any alternative destination had to take account of his wishes. The Plaintiff had consistently objected to being returned to Georgia on the basis that he would face persecution there. The Court rejected the Defendant’s interpretation that the decision-maker could disregard those wishes and held that it was irrational to designate a country to which the individual had provided reasonable grounds for refusing return.

The Court held that the deportation order was fundamentally defective and declared it null. In concluding its judgment, the Court emphasised the serious implications of deporting stateless individuals. It observed that the Japanese authorities were very much aware that the Plaintiff was both a refugee and stateless with no country willing to receive him.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	Convention Relating to the Status of Refugees (1951)	Applied Article 1(A)(2) to determine whether the Plaintiff qualified as a refugee.
Domestic	Immigration Control and Refugee Recognition Act (Japan, 1951)	Art 53(1): Deportation to a country of nationality; Article 53(2): Deportation to another country (including consideration of the person’s wishes where stateless)

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Osamu Arakaki and Wawine Waworuntu Yamashita, ‘Tokyo High Court, Judgment, Heisei 30 Nen (Gyou-Ko), No 232 (29 January 2020)’ (2020) 2(2) The Statelessness & Citizenship Review 317.

• The article provides a summary of the case, and notes that the Tokyo High Court demonstrated the possibility that ‘the hardship of stateless persons can be linked to the term “persecution” even within an administrative or judicial environment where the term is restrictively interpreted as harm to life and body’ (page 323).
• It also highlights that the judgment adds to refugee law jurisprudence by recognising that ‘the attitude of the state of former habitual residence in refusing re-entry to a stateless person can be evidence of a continuing and sustained harm regarding a “well-founded fear of being persecuted”’ (page 323).
• However, the authors also observe limitations in the judgment: the Court did not clarify who may be considered a stateless person and the Court had ‘not explored the meaning of other important terms such as ‘country of former habitual residence’,’ while also not applying the definition of a stateless person in the 1954 Convention (page 323).