Photo/Illutration Shoichi Ibusuki, a lawyer representing the plaintiffs, shows a video capturing the moment when immigration officials told the two Sri Lankan men that they would be deported, at a news conference on Sept. 22 in Tokyo’s Kasumigaseki district. (Yuri Murakami)

The Tokyo High Court on Sept. 22 ruled that the constitutional rights of two Sri Lankan men were violated when they were informed that their refugee status applications were denied and deported the next day before they could seek legal recourse.

The high court overturned a lower court ruling in siding with the men, concluding that the Immigration Services Agency of Japan “robbed an opportunity for judicial judgment and violated the (Sri Lankan) men’s rights of access to a court that is guaranteed by the Constitution.”

The high court ordered the central government to pay the two men a total of 600,000 yen ($5,400).

For a court to rule that the deportation processing of foreign nationals was unconstitutional is unprecedented, one of their attorneys said.

“Japan has treated refugee status applicants extremely cruelly,” Chie Komai, a lawyer representing the plaintiffs, said at a news conference on Sept. 22.

“It means a great deal that the court has struck a hard blow against (the government) and said it is unconstitutional,” Komai added.

There have been many cases in which foreign nationals were deported immediately after they were notified that their refugee status application was denied, Komai said.

The Sri Lankan men had sued the Japanese government, seeking 10 million yen in compensation. 

They were unhappy about the way they were treated because it deprived them of an opportunity to file a lawsuit seeking to reverse the immigration agency's decision.

Both the first trial and the Tokyo District Court dismissed the men’s claims with prejudice on the merits.

But the men won a reversal in the high court.

A representative of the Immigration Services Agency of Japan said, “We will respond after further evaluating the ruling.”

A foreign national, when his or her application for refugee status is denied, is allowed to contest the decision and challenge the central government.

As long as the legal process continues, the person is not deported and can remain in Japan.

When the appeal is denied, the person can then file a lawsuit.

According to the high court’s ruling, the two Sri Lankans in December 2014 requested the Tokyo Regional Immigration Services Bureau to extend their provisional release status, which temporarily halted their detainments.

But their request was not granted and they were detained.

They were then told that their appeal of the denial of their refugee status application had been rejected.

To file a lawsuit, they asked the bureau to let them contact their lawyer.

But they were deported the following day.

The high court’s ruling pointed out that under the central government’s guidelines regarding disputes over refugee status, immigration authorities are required to immediately notify the applicants of the results.

But the Sri Lankan men were not notified of the results for 40 or more days after the decision, the court said.

The court said the immigration authorities “intentionally delayed notifying (the men) of the results of dismissal so that they could deport them before they filed a lawsuit.”

The ruling of the first trial concluded that there was “no unjust intention to obstruct the plaintiffs from filing a lawsuit.”

In the appeals trial, the central government argued that notifying them of the results in advance would increase the risk of them fleeing, which would interfere with the deportation process. 

But the high court in the ruling concluded that such a possibility “remains abstract” and “notifying them at the last minute before their deportation was not reasonable.”

The government argued that the Sri Lankan men abused the refugee status application process. 

But the high court dismissed such a claim and said the men’s case “should be reviewed judicially, including the issue of whether their application was abusive or not.”

The immigration authorities “did not give the men more time for them to think about filing a lawsuit,” and it is “not acceptable to practically rob an opportunity for judicial judgment,” the ruling said.

In January this year, the Nagoya High Court handed down a ruling in a similar case, in which a different Sri Lankan man was deported without having an opportunity to file a lawsuit asking for refugee status.

The Nagoya court concluded that the immigration authorities’ handling of the man’s case was illegal but did not deem it unconstitutional.

In the two Sri Lankan men's case, Shoichi Ibusuki, another lawyer representing the plaintiffs, said, “There have been very few court decisions regarding the immigration authorities’ handling that touch on a constitutional violation.”

The high court’s ruling “deemed that the mindset of the immigration authorities is not right,” Ibusuki said. “They will not be able to continue similar practices in the future, and it will affect forcible repatriations.”

One of the two plaintiffs who was deported to Sri Lanka, who is 50 years old, has been under oppression for political reasons and has been forced into hiding and to move about, according to his lawyers.

He welcomed the high court’s decision, his lawyers said.

Eriko Suzuki, a professor at Kokushikan University who specializes in policies regarding foreign nationals, said, “The ruling is groundbreaking because it touches on the infringement of the rights of people whose refugee status application is dismissed.”

“In similar lawsuits in the past, the courts always gave an endorsement to immigration administrative officials,” Suzuki said. “In that sense, this time, the court showed the independence of the judiciary and it was a legitimate decision.

“The idea of recognizing the rights of foreign nationals only within the framework of their visa status is a violation of the international human rights treaty that Japan, too, has signed.” 

Suzuki added that Japan “needs to realize the obvious, which is that people who do not have resident’s status, too, have human rights.” 

As many foreign nationals reside in Japan, there “needs to be a law that guarantees the rights of foreigners who live, study and work in Japan,” Suzuki said, hoping the high court’s decision will bring about a change.

(This article was written by Yuri Murakami, Roppei Tsuda and Kazuya Ito.)