1978.10.04

1975 (Gyo-Tsu) 120

Judgment of the Grand Bench

Tokyo High Court

1. foreign nationals are not guaranteed the right to sojourn or the right to demand its continuation
2. determination of the existence of a reasonable ground for finding the renewal of term of sojourn to be appropriate on the basis of Article 21 para. 3 of the Cabinet Order on Immigration Control is left to the discretion of the Minister of Justice, and unless there are grounds for refusal of disembarkation or grounds similar to those for compulsory deportation, it is not impermissible to refuse renewal
3. The court, when reviewing the decision of the Minister of Justice on the existence of reasonable grounds for finding the renewal of the term of sojourn on the basis of Article 21 para. 3 of the Cabinet Order on Immigration Control to be appropriate, assuming that the decision has been made as an exercise of the discretionary power of the Minister of Justice, must examine whether the factual basis for the decision was totally missing or not, such as in cases where there was an error in the material fact which served as a basis of the decision, or whether it is evident that the decision significantly lacks appropriateness in the light of socially accepted views such as in cases where the assessment of facts was evidently unreasonable. Only when these points are found to be in the affirmative mat the court find it to be in excess of the scope of discretionary power or abuse of such power and to be unlawful.
4. Constitutional guarantee on the freedom of political activities extends to foreign nationals staying in Japan, except those activities which are considered to be inappropriate by taking into account the status as a foreign national, such as activities which have influence on political decision-making and its implementation in Japan.
5. Constitutional guarantee of fundamental human rights for foreign nationals does not extend as far as to bind the exercise of discretionary power of the state, i.e. does not include guarantee that acts which are guaranteed as fundamental human rights under the Constitution during the sojourn should not be considered as negative circumstances in renewing the term of sojourn.
6. Activities of the appellant in the present case cannot be instantly disregarded as being outside the scope of constitutional guarantee as political activities of a foreign national during the sojourn, but it cannot be denied that these activities include those criticising the immigration policy of Japan, or criticising the basic foreign policy of Japan and may affect the friendly relationship between Japan and the United States. Even if the Minister of Justice, by taking into account those activities, decided that there was no reasonable ground to find it appropriate to renew the term of sojourn, it cannot be regarded as an excess of the scope of discretionary power or abuse of discretionary power.

Concerning item 1: Article 22, para.1 of the Constitution

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 [official translation]

Concerning items 2,3, and 6:
Article 21, para.3 of the Cabinet Order on Immigration Control

When there was an application based upon the preceding provision, the Minister of Justice may give permission only when there is a reasonable ground which is sufficient to find the renewal of the term of sojourn to be appropriate based upon the documents submitted by the foreign national in question.

Concerning items 3 & 4:
Article 30 of the Law on Administrative Litigation

Regarding discretionary decisions of an administrative agency, the court may rescind the decision only when the decision was in excess of the scope of the discretionary power or the discretionary power was abused.

Concerning item 4:
Article 19 of the Constitution

Freedom of thought and conscience should not be violated.

Article 21 of the Constitution

Freedom of assembly and association as well as speech, press and all other forms of expression are guaranteed.
No censorship shall be maintained, nor shall the secrecy of communication be violated.

Concerning item 5:
Chapter 3 of the Constitution

Jokoku appeal in the present case is dismissed.
The cost of the jokoku appeal is to be borne by the appellant.

1 On the grounds of appeal 1 to 4, 6 to 11 of the representatives of appeal Mikio Akiyama and Junichiro Hironaka

1. Facts of the present case

(1) The gist of the facts ascertained by the original instance court is as follows:

(i) The appellant is a foreign national with US citizenship. The appellant arrived in Japan on April 21, 1969 after obtaining a visa issued by the Japanese Embassy in Korea on her passport and disembarked on receiving a stamp for the permission to disembark and stay for one year from the immigration officer of Shimonoseki Immigration Office as a person qualified to stay in Japan on the basis of article 4, para.1, subpara.16 of the Cabinet Order on Immigration Control and para.1, subpara.3 of the Ministerial Ordinance on the Specific Qualification for Sojourn and the Period of Sojourn.
(ii) The appellant applied for a renewal of the period of sojourn for one year on May 1, 1970. The appellee rendered a decision to "renew the period of sojourn from May 10 to September 7 for 120 days as a period to prepare for departure" on August 10 of the same year. Therefore, the appellant further applied for a renewal of one year from September 8 of the same year. On September 5 of the same year, the appellee rendered a decision (hereinafter, 'the decision in the present case') on September 5 that there was no reasonable grounds to find the renewal to be appropriate and the sojourn was not to be renewed.
(iii) The reason why the appellee decided that there was no reasonable grounds to find the renewal to be appropriate was because of the following change of the job without permission and political activities during the period of sojourn.
(a) Although the appellant had been found qualified for sojourn as an English language teacher at P Foreign Language School, she resigned from the School after only 17 days of the entry into Japan and found a job in the Q Foundation as an English teacher, and thus failed to work as an English teacher at the institution which was authorised at the time of entry into Japan.
(b) The appellant participated in Foreigners' Beheiren [abbreviation for the Peace in Vietnam Movement] (this is an organisation set up by several foreign nationals staying in Japan in June 1968 for the purpose of opposing interference in the Vietnamese War by the United States, to Japan's participation in US Far Eastern policy, and to the draft Immigration Control Law which suppresses political activities of foreign nationals staying in Japan. It is separate from Beheiren, and does not have membership), attended its regular public meeting nine times between June and December 1969, and on July 10th, in support of the hunger strike to destroy the bill on Immigration Control Law organised by young resident Chinese leftists from July 2 to 13 by the West Entrance of Shinjuku Station, distributed leaflets to passers-by in which the purpose of the strike etc. were printed, on September 6 and October 4, took part in the regular public meeting of Beheiren, on October 15 and 16, participated in the Vietnamese War Moratorium Day movement and went to the US Embassy in order to protest against the Vietnamese War, on December 7, took part in public demonstration against Yokohama Detention Centre for Immigrants, on February 15, participated in the public meeting of anti-war broadcasting in Asaka, on March 1, joined the anti-war demonstration near the US Camp Drake, on March 15, took part in a public meeting 'Meeting of Citizens of Oizumi' with Beheiren and distributed anti-war leaflets, on May 15, went to the US Embassy to protest against the invasion of the US military force into Cambodia, on May 16, took part in the May 16 Moratorium Day US-Japan People's Meeting and also in the demonstration against the invasion of the US military force of Cambodia, on June 14, took part in the United Action Meeting of Workers, Students and Citizens against US-Japan Security Treaty held at Yoyogi Park, on July 4, took part in the public meeting for the US-Japan Coalition of People and Support of the anti-war soldiers of US and Japan held at Shimizudani Park, on July 7, joined the protests against the visit of the US Secretary of State, Mr.Rogers, at Haneda Airport, and thus was involved in political activities. It should be added that the public meetings and demonstrations etc. in which the appellant took part were within the scope of peaceful and lawful activities, and the manner of participation of the appellant was not leading or active.
(2) The second instance court ruled that whether or not to accept a foreign national into the country was basically the prerogative of the host country, and that the decision of whether there is a reasonable ground to find the renewal of sojourn to be appropriate is left to the free discretion of the Minister of Justice. The above-cited political activities of the appellant were within the scope of freedom of expression permissible to foreign nationals on sojourn and no disadvantage should entail. However, if the Minister of Justice finds these activities to be undesirable for Japan and the Japanese people when deciding on the renewal of the term of sojourn and decides that there is no reasonable ground to find the renewal to be appropriate, in this particular case where there is no circumstance which makes the decision obviously inappropriate from the viewpoint of everybody, it should be regarded as being within the scope of discretion granted to the Minister and therefore, the decision in the present case was not against the law.
(3) The appellant's arguments can be summarised as follows: (i) the original judgment which ruled that whether or not to accept a foreign national into the country was basically the prerogative of the host country, and that the decision of whether there is a reasonable ground to find the renewal of sojourn to be appropriate is left to the free discretion of the Minister of Justice, has erred in the interpretation and application of Article 22 para. 1 of the Constitution, Article 21 of the Cabinet Order on Immigration Control, and is unlawful due to the absence of reasons, (ii) the approach and method of the original instance court in reviewing a discretionary decision such as the decision in the present case are against precedents and are against the law for insufficiency of examination and absence of reasons, and also in contradiction to the interpretation of Article 30 of the Law on Administrative Litigation, (iii) the decision in the present case by the appellee is in excess of the scope of discretion, and imposes disadvantage on a foreign national on the ground of political activities which are guaranteed by the Constitution; the original judgment which found the decision not to be against the law is against empirical rules, lacks reasons, erred in the interpretation and application of Article 21 of the Cabinet Order on Immigration Control, and against articles 14,16,19 and 21.

2. The judgment of the present Court

(1) Article 22, para. 1 of the Constitution merely provides for the guarantee of freedom of residence and movement within Japan and has nothing to do with the entry of a foreign national into Japan. This is based upon the same view that under international customary law, the state has no duty of accepting a foreign national, and unless there is a specific treaty, the state may freely decide whether to accept a foreign national into the country, and if a foreign national is to be accepted, on what condition this should be allowed (Supreme Court case 1954 (A) Case No.3594, Judgment of the Grand Bench, Supreme Court June 19, 1957 (Keishu 11-6-1663). Therefore, it goes without saying that foreign nationals are not guaranteed the right to enter Japan, but also are not guaranteed the right to stay or continue to stay in Japan as the appellant argues. On the basis of the above-cited interpretation of the Constitution, the Cabinet Order on Immigration Control which has the same effect as law makes it a rule that foreign nationals are allowed to disembark in Japan with specific qualifications for a specific period (except for Article 4, para.1, subparas 1, 2, and 14). Therefore, the foreign national who was allowed to disembark, must leave Japan as a matter of course on expiry of the period of sojourn. Admittedly, the Cabinet Order on the Control of Immigration provides that if a foreign national desires to extend the period of stay, this person may apply for renewal of the period of sojourn (Art.21, paras. 1 & 2), but it also provides that the Minister of Justice may give permission "only when there is a reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate" (ibid., para.3). Therefore, it is evident that also under the Cabinet Order on Immigration Control, the renewal of the term by a foreign national who is staying in Japan is not guaranteed as a right.
The reason why the Cabinet Order on Immigration Control allows the disembarkation and sojourn of foreign nationals only for a fixed period and the renewal is allowed only when the Minister of Justice determines that there is a reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate is because the law is designed to allow the Minister of Justice to make this decision by taking into account the circumstances of the stay, necessity and reasonableness of the stay etc. after a fixed period. The reason why the grounds for renewal of the period of stay are provided in a general manner without specific criteria for determination is because the law intends to leave the determination of the presence or absence of grounds for renewal to the discretion of the Minister of Justice and to make the discretion sufficiently broad. The Minister of Justice, when deciding whether the renewal of the period of sojourn should be allowed or not, must consider not only the appropriateness of the application by the foreign national in question, the entire behaviour of the foreign national, political, economic and social circumstances within Japan as well as the international situation, diplomatic relations, international comity and other circumstances from the viewpoint of the maintenance of public security and good morals in Japan, ensurance of health and hygiene, stability of the labour market and other interest of the state which are the purpose of immigration control and regulation of sojourn of foreign nationals, and make a timely and accurate decision. An appropriate result cannot be expected unless such a decision, due to its nature, is left to the discretion of the Minister of Justice who is responsible for the administration of immigration control. From this viewpoint, it is only natural that the discretion be given to the Minister of Justice in deciding whether there is a "reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate". It should not be considered that it is not allowed to refuse renewal unless there are grounds similar to those for refusing disembarkation or grounds for deportation as the appellant argues.

(2) If an administrative agency adopts rules for the exercise of its discretionary power, such rules are intended to ensure the appropriateness of the decisions of the agency, and therefore, even if a decision were made in contradiction to such rules, in principle, it may generate the problem of appropriateness of the decision, but the decision is not as a matter of course, against the law. Instances where the decision becomes unlawful are limited to cases where the decision was made in excess of the discretionary power granted by law or where there was an abuse of discretion. Only in such cases may the court annul the decision. Article 30 of the Law on Administrative Litigation makes this rule clear. However, since the reason, purpose, and scope of discretion granted by law to an administrative agency differ, and circumstances in which the decision is found unlawful for excess or abuse of discretion vary, each kind of decision has to be examined individually. As far as the decision of the Minister of Justice concerning the existence of a "reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate" is concerned, in the light of the nature of the discretionary power of the Minister as referred to above, it should be regarded as unlawful as excess or abuse of discretion only when it totally lacks factual basis or when it is evident that it significantly lacks appropriateness in the light of socially accepted views. Therefore, the court, when examining and deciding the legality of the above-cited decision of the Minister of Justice, assuming that the decision has been made as an exercise of the discretionary power of the Minister of Justice, must examine whether the factual basis for the decision was totally missing or not, such as in cases where there was an error in the material fact which served as a basis of the decision, or whether it is evident that the decision significantly lacks appropriateness in the light of socially accepted views such as in cases where the assessment of facts was evidently unreasonable. It is reasonable to conclude that only when this is answered in the affirmative, can the decision be found to be in excess of discretion or abuse of discretion and therefore unlawful. The judgment of the petit bench of the Supreme Court on Case 1962 (O) No.752, July 11, 1969 (Minshu 23-8-1470) concerns different circumstances and is unsuitable for the present case, and other precedents are not different from the present judgment.

(3) Based upon the above, the appropriateness of the decision in the present case will be examined in the following.
According to the facts cited above, the reason why the appellee has decided that there was no "reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate" and refused renewal of the term of sojourn against the application of the appellant was because of the failure to report the change of job and political activities during the sojourn, and it can be surmised from the original judgment that emphasis was laid on the political activities.
It should be understood that the guarantee of fundamental rights included in Chapter Three of the Constitution extends also to foreign nationals staying in Japan except for those rights, which by their nature, are understood to address Japanese nationals only. This applies to political activities, except for those activities which are considered to be inappropriate by taking into account the status of the person as a foreign national, such as activities which have influence on the political decision-making and its implementation in Japan. However, as mentioned above, permission of sojourn of foreign nationals in Japan is left to the discretion of the state. Foreign nationals staying in Japan are not guaranteed the right to stay in Japan or request to continue to stay in Japan under the Constitution, and merely granted a status by which they can have the period of stay renewed only when the Minister of Justice, by his discretion, determines that there is a "reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate". Guarantee of fundamental rights to foreign nationals by the Constitution should be understood to be granted only within the scope of such a system of the sojourn of foreign nationals and does not extend so far as to bind the exercise of discretionary power of the state, i.e. does not include guarantee that acts which are guaranteed as fundamental human rights under the Constitution during the sojourn should not be considered as negative circumstances in renewing the term of sojourn. Even if the activities of a foreign national are constitutional and lawful, the Minister of Justice is by no means hindered from assessing those activities as undesirable in terms of appropriateness for Japan, and from assuming from such activities that this foreign national may act against the interest of Japan, despite the fact that such activities of the foreign national are guaranteed by the Constitution in the above sense.
Judging from the manner of activities, above-cited activities of the appellant during the period of sojourn cannot immediately be regarded as activities to which constitutional guarantee does not extend. However, it cannot be denied that the above-cited activities of the appellant include those criticising the immigration policy of Japan, or criticising the basic foreign policy of Japan or protests against the Far-Eastern policy of the United States as well as the Treaty on Mutual Cooperation and Security between Japan and the United States which criticise the basic diplomatic policy of Japan and may affect the friendly relationship between the United States and Japan. Even if the Minister of Justice, by considering the international and domestic situation at that time, having found the activities of the appellant to be undesirable to Japan and also having found the appellant to be a person who may act against the interest of Japan in the future, decided that there was no reasonable ground to find it appropriate to renew the term of sojourn, it cannot be regarded as an excess of the scope of discretionary power or abuse of discretionary power. In the present case, where there are no other grounds on which the existence of circumstances in which excess or abuse of discretion can be assumed, the decision of the appellee in the present case cannot be found to be against the law. There is no issue of unconstitutionality as argued by the appellant on the part of the appellee for finding that there was no reasonable ground to acknowledge that the renewal of the period of sojourn is appropriate by taking into account political activities of the appellant.
(4) The judgment of the original instance court which is in line with the above is justifiable and is not against the judgements cited by the appellant, and therefore, the original judgement is neither unconstitutional or illegal. The argument of the appellant blames the original judgment for views different from the above, and cannot be accepted.

2 On item 5 of the appeal
The method adopted by the original instance court in recording the statement of both parties did not result in a defective statement of facts of the judgment, and therefore, the original judgment is not against the law as argued by the appellant. The arguments of the appellant cannot be accepted.
Therefore, the justices unanimously decide as the main text in accordance with Article 7 of the Law on Administrative Litigation, articles 401, 95, and 89 of the Code of Civil Procedure.

Chief Justice
OKAHARA, Masao
JusticeKISHI, Seiichi
AMANO, Buichi
KISHIGAMI, Yasuo
ERIKUCHI, Kiyoo
OTSUKA, Kiichiro
TAKATSUJI, Masami
YOSHIDA, Yutaka
DANDO, Shigemitsu
MOTOBAYASHI, Yuzuru
HATTORI, Takaaki
TAMAKI, Shoichi
KURIMOTO, Kazuo
FUJISAKI, Masato
MOTOYAMA, Toru