Deportation for flytipping?

When I read one of Colin P.A. Jones’ columns I usually think he is a fine writer and knowledgeable about his subject, but this recent column on rights or otherwise of non-Japanese and half-Japanese did have one error that normally I might have accepted as the truth. He wrote as an aside:

(like the Peruvian man of Japanese extraction who, despite having resided in Japan for over a decade, the government has been trying to expel after he was fined for dumping an old washing machine in a vacant lot)

Over on reddit, someone asked for a source, so I did a quick Google and came up with this tale, headlined

国外退去は「妥当性を欠く」 洗濯機不法投棄のペルー国籍男性 東京地裁が処分取り消し命じる

I might translate that as "Deportation ‘inappropriate’. Peruvian washing machine flytipper. Tokyo District Court ordered to quash the conviction". Looking at the story in detail, he had at a maximum 6 years of legal residence followed by 4 years of overstaying due to a renewal refusal due to his flytipping offence, deportation, then two years later getting it overturned on appeal. I really do expect better from Mr Jones, and furthermore Eido has pointed out more issues over on Google+.

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12 Comments.

  1. Ken,

    Over on Google+, you wrote “it’s the courts, not the government that expels people.”

    That’s not quite right. A deportation order is issued by an immigration inspector, not a court.

    An individual can appeal the order, in which case it goes to a hearing. This is overseen by a special inquiry officer, who is appointed by the Ministry of Justice.

    If the special inquiry officer upholds the order, a final objection can made directly to the Justice Minister.

    The Minister has considerable discretionary powers. Even if he, or she, finds no reason in law to reject the finding of the hearing and the original immigration inspector, a deportation order can still be overturned.

    In such cases, the Minister will grant special permission to stay.

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  2. Hmmm. It’s not a great piece of work. Ken’s right that a university law lecturer writing as a law lecturer should be getting facts right: no bonus points for accuracy, only minus points for errors. Eido’s point about Japan as a signatory to the UN charter being obliged not to make people stateless involuntarily is a significant miss for a lawyer to make.

    Aside from this there are two large elements to the article that I don’t like.

    The first one is the racialised and paranoid language used. For example:

    Our mixed-race children deserve better than this

    No, our dual nationality children deserve better than this.

    Much as bureaucrats and nationalists may like simple categories,

    What have nationalists got to do with this? Is he trying to hint that all bureaucrats are nationalists? (Then say so, with evidence) (Compare: “Much as bureaucrats and racists…” and you’ll see the rhetorical sleight of hand.)

    So, despite being “Japanese,” my children do not apparently have a fundamental right to be raised in Japan by both parents.

    Why the scare quotes? His children are Japanese in the eyes of the law without question.

    If, as seems to be the case, there is an undefined line at which we are supposed to stop and shut up because we are not Japanese

    Where does it say we are supposed to “shut up”? A deceptive move has been made from the ambiguous wording of “[non-citizens] should enjoy the same rights as Japanese people, except to the extent that they influence national policy” which Jones argues could be taken to mean (on a very far-fetched analysis) that even this very article contravenes visa regulations, to that it clearly does have this far fetched “apocalyptic” meaning.

    This next bit is particularly bad:

    Why bother? Most half-Japanese children are blessed with more than one nationality, meaning that by birth they have a greater range of options elsewhere in the world than most “pure” Japanese children. Rather than trying to help build a better Japan only to be told it is a matter for Japanese people

    Notice how he mixes “Japanese” as an ethnicity, and “Japanese” as a legal nationality. Of course, he’s trying to say that non-citizen parents need to have stronger residential rights in order for Japanese children to have equal access to their rights regardless of parentage. But that’s not what he ends up saying.

    Furthermore, the law doesn’t see it as an issue of “purity”: why introduce the term here? And the “greater range” is “one more country”, unless you’re going to put forward some notion that Japanese are essentially (genetically?) more parochial than, say, Americans. In any case, upbringing is what usually internationalises a person, not where their parents are born – I know a fair few internationalised “pure” Japanese whose global options are not limited by their passport. These may seem like small points, but they’re part of the overall tone.

    In general there’s a conflation between the society and the government that hints at racial paranoia:

    Of course, the real barrier to putting a lot of effort into trying to improve the community we are a part of may be a question that some of us may have already tired of asking ourselves, which is this: Why bother?

    My children are precious to me, so why should I devote energy to raising them to be a part of a country whose government’s first instinct is to reject them?

    Because. The. Government. Is. Not. The. Whole. Country. And. Its. People. If your children were getting abuse thrown at them in the street, if schools were refusing to take them (or protect them from racist bullying), etc etc. then one could talk about “why bother?” If you genuinely want to give your children the free choice of nationality when they reach adulthood, I don’t see how denigrating the value of one of those nationalities will help – especially when it’s the place they’re growing up.

    Perhaps Jones (like a few western parents I know) needs to re-evaluate his own identity as a parent of Japanese-born/raised children. He writes about his relationship to the country like some people talk about their employer – it’s more like a commercial/career transaction. Call me conservative or old-fashioned, but I’m not sure that’s the best attitude towards the place your children are growing up.

    The second big problem is that for a lawyer, he’s very short on legal solutions. Like a pixellated picture, it gets vaguer and less clear the closer you look.

    In times of trouble, because of I am not Japanese, I probably cannot expect to rely on Japan’s government or laws to help me and thus, by extension, my children.

    This is horribly vague for a lawyer. It’s transforming the reasonable argument that the visa insecurity of non-citizen parents presents a risk to child welfare into a generalised “you will not get help, and neither will your kids because they’re not purebloods.” In times of trouble – outside of you losing your visa status – you get much the same protection as anyone else. Your kids legally will have access to all the benefits accruing to Japanese children (because they’re Japanese); it’s a matter of whether you or your Japanese partner (or his/her relatives helping out) can exercise them. Why write such a scary paragraph?

    And then take the case of the Peruvian man (regardless of Jones’ only telling half the story). What is the lesson we can draw from this example?

    (a) That long-term residents should not be deportated for such small crimes should not happen?
    Or
    (b) That parents of Japanese citizens should not be deported for such small crimes?

    In general, is he arguing that non-citizens who are parents of Japanese children should never be deported? If so, say that. I suspect he won’t say that, though, because it would raise the classic scare of immigrants having children just to stay in the country. (So what does he want?)

    As for the case of “[non-citizens] should enjoy the same rights as Japanese people, except to the extent that they influence national policy” – we can speculate about the meaning, but does he have any examples of any non-citizen being arrested/deported for critiquing Japanese government policy? That’s one important way a lawyer determines the meaning of the law – how it is enforced. I haven’t heard of anyone being thrown out for exercising free speech – perhaps he has. He, after all, is the law lecturer.

    If his wife dies he might not get another visa. So how about proposing a new visa status: parent of Japanese child dependants? Or how about a widow/widower of Japanese national visa? Or further speed up the permanent residence fast lane for parents? There. Done. Problem solved.

    My own preferred solution to all of this is to allow adult dual nationality. Perhaps it’s because I come from a country where it’s freely allowed, but I just don’t get what the problem with it is.

    As a final aside – this article has not been proofed properly. “because of I am not Japanese” is one example, and the “lifeboat” paragraph seems to be a sentence or two short.

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  3. Yuck:

    That long-term residents should not be deportated for such small crimes should not happen?

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  4. @VK: “If his wife dies he might not get another visa. So how about proposing a new visa status: parent of Japanese child dependants? Or how about a widow/widower of Japanese national visa? Or further speed up the permanent residence fast lane for parents? There. Done. Problem solved.”

    It may be even simpler. The “Spouse or Child of Japanese National” residency status could simply be amended to “Spouse, Parent or Child of Japanese National.” ‘Guardian’ could also be used to cover a general range of situations, if desired.

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  5. I agree with VK that Jones seems to frame his relationship with Japan exclusively as a contract with the government. Consequently, his “why bother?” question leaves out the reasons most of us would, and indeed do, bother.

    Then again, he is a lawyer, and his piece is aimed at shedding some light on what legal protections are available to him and his family.

    I would also be interested to know what exactly Jones would like to see. In July 2009, Following the Noriko Calderon case, the government revised its guidelines on granting special permission to stay.

    In many respects, they now resemble the rules in the UK which cover the discretion available to the Home Secretary. What I presume Jones would note is the legal difference between UK rules stating certain conditions, and Japanese guidelines indicating positive and negative factors which may be taken into account.

    I doubt anyone would argue UK immigration law is exemplary. For instance, there is considerable controversy in Britain over how far the right to family life should trump the deportation of a convicted criminal.

    In Japan, the Justice Minister frequently grants special permission to stay where there is a child. In the past, the Minister has even granted such permission to two illegal alien parents with a young child who is not a Japanese national. It was Noriko Calderon’s misfortune for her parents’ case to come up later, when the political winds had changed, leading to her parent’s own application being denied.

    Unlike the UK, the Minister is less likely to grant permission where there is just a partner who is a Japanese citizen or long-term resident. It does happen, but usually in cases where the partner needs some kind of care which the potential deportee is providing.

    The revised guidelines say that marriage to a Japanese partner will count as a positive factor in assessing whether to grant special permission to stay. Obviously, that didn’t prevent the deportation of Abubakar Awudu Suraj, even though he allegedly had none of the negative factors beyond overstaying.

    (Of course, not all criminal convictions for legal foreign residents lead to deportation orders, because not all immigration officials choose to interpret a conviction as a reason to deny the renewal of a visa.)

    In practice, then, the Justice Minister in Japan acts in a similar way to the Home Secretary in the UK. The difference is, UK immigration rules explicitly state conditions which can trump deportation while Japanese guidelines do not.

    The reason Jones raises the case of the Peruvian flytipper is to show how low the bar can for an immigration officer to decide a foreign resident is no longer entitled to a visa. The proposal to create a bereaved parent visa might be reasonable, but that doesn’t address his concern about what might constitute grounds for immigration to refuse to grant or extend such a visa.

    Before reading the details of that case, did anyone here think it likely that abandoning a washing machine next to your house might be sufficient grounds? For that offence, the man was fined 200,000 yen.

    You can be fined more than that for riding your bicycle while drunk or being a passenger in a car driven by a drunk. This year’s revision to the Copyright Law says you can be fined up to 2 million yen for illegal downloading.

    It’s fair to demand that Jones be more specific on what kind of legal framework would give him comfort. However, it would be interesting to know whether people share his concerns that the current statutes leave foreign residents too much at the mercy of capricious immigration officials.

    As an aside, I don’t think Eido Inoue is entirely correct to call Jones out on his “stateless” comment.

    Firstly, he already says he is imagining “apocalyptic scenarios”. It’s a common exercise by lawyers in testing the limits of the law. I have never heard of a de facto dual national having their passport taken away by Japan but the possibility is on the statute books. That’s the scenario he initially describes in the piece.

    Jones then goes on to pose a hypothetical where all states have laws comparable to Japan. In this scenario a dual national is stripped of their passport by both countries at the same time.

    You can’t say this couldn’t happen on account of the United Nations Human Rights charter.

    As a general point, many nations act in breach of the charter despite signing up to it, to the extent that it’s not safe to regard the charter as a bulletproof legal safeguard against government actions.

    In this imagined case, however, neither country would be stripping nationality on the understanding the individual would become stateless. They would both be doing so on the basis that the individual would retain the other nationality.

    Jones gives this hypothetical because he believes it illuminates how Japan’s legal right relies on other countries not claiming the same right.

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  6. @Justin Thyme:

    I understand he’s talking about hypotheticals, but he’s mixing up hypotheticals with reality, and he’s laced it through with clumsy hints (and he’s quite explicit at the end) that the “system” actively wants to push out half-blood children and their muggle parents. I must live in a different country to him. The country I live in, the people doing the “them and us” routine are the western lifers who put their kids through international school, and pack them off to American universities as fast as they can. (No offence meant to anyone here making sound parental judgements about their child’s education.)

    In general, imagining hypotheticals is half the issue. As a legal expert, he should bring his understanding and knowledge to bear on the probabilities and processes involved in these hypotheticals.

    For example, it’s a very fair point you make that signing up to the UN charter is no guarantee that its provisions will be upheld. However, not mentioning it at all is, I maintain, pretty poor. After all, what he’s putting forward is far less likely than courts in two countries not upholding the charter: the suggestion that in the same four-week period these two countries will simultaneously act to deprive a person of their respective passports, and just when that person is out of contact. This really sounds like the plot to a Hollywood film (probably starring Tom Hanks doing a funny accent.) Probably the person would be doing volunteer work with orphans in a poor country with no telephone (or better still, one with a weak connection and a comedic misunderstanding about the passports), and have very good teeth.

    Another hypothetical might be all your documentation being washed away in a tsunami (about as likely), while at the same time a computer glitch wipes your electronic immigration records. Are either of these hypotheticals actually informative? Is his suggestion a strike against Japan or against all countries that do not allow dual citizenship?

    The widower/child dependant visa was an idea to address the specific hypothetical of what if his wife died – not what if he commits a crime. These are two separate issues unless she dies at his hand. As you say, he’s really not clear what changes he wants to see. To me, he’s venting prejudices.

    I agree that fly-tipping, particularly if he’s paid the fine, is a ridiculous ground for refusing to prolong a visa, and it’s worrying that it happened. Then again, the decision was overturned; can we take such an example as standard immigration procedure, or was this a rogue immigration decision? Does he have something academic like stats, or is this just an anecdote? And is this an issue of general visa rights, or visa rights where there are children involved (which was not the case here)? What worries me is that Jones doesn’t seem to be offering any more insight than your average blogger without a law degree.

    As a parent, of course I want strong safeguards against my inadvertent removal from the country – so this issue is very important to me. But I don’t think I’ve learnt anything from that article in itself either about what could reasonably happen to me now, or what I could ask the government or lawmakers to do to change the situation.

    I didn’t really go over the last paragraph above:

    By all accounts Japan needs more children. Not only that, it needs more children who will stay in Japan after reaching adulthood.

    “Not only that?” What on Earth? Japan needs more children precisely because it needs more young adults working. What other reason is there? Background dancers for Eigo de asobo?

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  7. @VK: ““Not only that?” What on Earth? Japan needs more children precisely because it needs more young adults working. What other reason is there? Background dancers for Eigo de asobo? ”

    Japan is rapidly approaching what economists have called “peak kawaii”. Good god, man, do realize that at this very moment, 68% of AKB48 is over the age of 20? Something has to be done!

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  8. I have often wondered about the children of these “Colin Jones” and “David Arudou” types. Given that they are acclimatized to living day to day in Japan, what kind of feelings arise when they see their father figure flipping out at the motherland?

    We’re all aware of those posters on Debito who rave on about taking their kids somewhere and all the Japanese authority figures and random bystanders are laughing at them. What is it that these culturally dunderheaded Dads are doing?

    Are the kids embarrassed or what? My own daughter is already having nationalist tendencies and embracing the emperor at 6 years old, but what about the little kids with rabid gaijin fathers that rave looney tunes at all hours over the “black trucks”?

    How will it affect them going forward?

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  9. @VK:

    Well, you beat me too it. I tend to be a bit more emotional about it but ended up writing something similar over at my own blog (think DA will be upset at me self referencing, or proud?). Thanks for beating me to it with far more clarity.

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  10. @VK: You said what I did. Only better. THanks.

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  11. @iago: Heh, I guessed correctly which poem it was before clicking! :lol:

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