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  • Kyodo: Court overrules Oita Pref who tried to deny a 78-year-old NJ welfare benefits

    Posted by arudou debito on October 12th, 2010

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    Hi Blog.  Here’s a bit of good news, albeit a bit incomplete based upon this article alone.  May there be more outcomes like this.  Pity these things happen to the elderly too.  Arudou Debito in Sapporo

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    Decision not to examine foreigner’s request on welfare benefits repealed in Oita
    Japan Today/Kyodo Friday 01st October, 2010, Courtesy of Clankshaft

    http://www.japantoday.com/category/national/view/decision-not-to-examine-foreigners-request-on-welfare-benefits-repealed-in-oita

    OITA — A Japanese court repealed on Thursday a decision by Oita Prefecture in southwestern Japan not to examine a request from a 78-year-old Chinese woman to look into a decision by Oita City that rejected her application for welfare benefits.

    A three-judge panel at the Oita District Court acted on a suit filed by the woman, who has obtained permanent residency status in Japan, against the Oita prefectural government decision that turned away the woman’s request, filed in February last year, to examine the Oita municipal government decision not to provide welfare benefits to her.

    The prefectural government dismissed the woman’s request without examining it, saying she was not eligible to seek benefits because she does not have Japanese nationality.

    In Thursday’s ruling, the district court said the prefectural government must review the municipal government decision in line with the woman’s request, and decide whether she should be given benefits.

    Presiding Judge Kenji Kanamitsu brushed aside the prefectural government’s argument that the city’s decision not to provide her with benefits was a ‘‘unilateral administrative action’’ against a foreigner who has no right to seek welfare benefits, and not an ‘‘administrative decision’’ as she claimed, whose appropriateness can be reviewed under the administrative appeal law.

    Judge Kanamitsu said the woman is ‘‘obviously’’ eligible to ask the prefectural government to review the municipal government decision.

    ‘‘An application for welfare benefits has been rejected, and it means the same to the applicants, regardless of their nationalities,’’ the judge said.

    The Chinese woman has filed a separate suit against the Oita municipal government seeking a repeal of its decision not to provide welfare benefits to her. The district court is scheduled to give a ruling on the suit on Oct. 18.

    The Ministry of Health, Labor and Welfare has not recognized foreigners’ legal rights to seek welfare benefits but has instructed prefectural governments to act ‘‘similarly’’ with cases of Japanese nationals in deciding on applications for such benefits from foreigners.

    ENDS

    13 Responses to “Kyodo: Court overrules Oita Pref who tried to deny a 78-year-old NJ welfare benefits”

    1. Mumei Says:

      The above article is quite limited in details. Below are two other articles.
      Apparently, this woman was born in Japan (「日本で生まれ育った」) to a Chinese father and a Japanese mother. Now a days, this would qualify her for dual-citizenship, and since she has apparently only lived in Japan (「ずっと日本で暮らしてきた」), probably would not have given given up her Japanese citizenship. However, due to her age (78), I assume she did not qualify due to the prior citizenship laws which have since changed. So for all intents and purposes, she is Japanese but only without citizenship. While it is a good ruling, I wonder how relevant it is to general foreigner rights.

      外国人に不服審査請求権認める 生活保護めぐり大分地裁
      http://www.asahi.com/national/update/0930/SEB201009300005.html

      大分市が生活保護の申請を却下したことを不服として、大分県に出した審査請求が門前払いされたのは違法だとして、日本の永住資格を持つ大分市の中国籍の女性(78)が県を訴えた裁判の判決が30日、大分地裁(金光健二裁判長)であり、外国人であることを理由に門前払いにした県の処分を取り消した。

       訴状などによると、女性は中国人の父と日本人の母の間に生まれ、ずっと日本で暮らしてきた。2006年4月ごろから、同居の親族の暴力などで自宅を追い出され、大分市の病院に入院した。医療費支払いなどに困り、08年12月に市に生活保護を申請したが、「自身と夫名義の預金が相当額ある」と却下された。

       市の却下を不服として行政不服審査法に基づいて県に審査請求をしたところ、県は「外国人は生活保護に関する却下処分に対して不服申し立てする権利がない」などの理由で、請求そのものを不適法だとして却下した。

       女性は裁判で「すべて国民は、健康で文化的な最低限度の生活を営む権利を有する」という憲法25条の「生存権」を根拠に、「適法に定住する外国人には生活保護法による保護申請を行う権利がある」などと主張した。

      —-
      生活保護却下の裁決取り消し=中国人女性の訴え認める-大分地裁
      http://www.jiji.com/jc/zc?k=201009/2010093000731

       外国人であることを理由に、生活保護申請の却下処分に対する審査請求を大分県が門前払いした裁決は生存権を保障した憲法に違反するなどとして、永住資格を持つ大分市内の中国籍の女性(78)が裁決取り消しを求めた訴訟の判決が30日、大分地裁であった。金光健二裁判長は女性の訴えを認め、県の裁決を取り消した。
       判決によると、女性は日本で生まれ育った。生活に困窮し2008年、大分市に生活保護を申請したが預金があるとして却下されたため、県に審査請求。しかし県は09年3月、却下を裁決した。
       裁決で県は、生活保護法は対象を日本国民に限定しているとした上で、外国人に対する保護は厚生省(当時)局長通知に基づく法を準用した行政上の措置にすぎず、保護決定は行政不服審査法でいう「処分」に当たらないため、審査請求はできないとした。
       これに対し判決は「保護申請却下は、生活保護法による保護を否定する旨の決定にほかならず、『処分』に当たることは明らか」と指摘。「却下決定に処分性が認められる以上、審査請求は可能で裁決は違法」とした。(2010/09/30-17:08)

    2. sendaiben Says:

      Does this mean that my years of paying taxes are for naught? Or is that a separate issue?

      I presume the plaintiff has not been paying into the pension scheme, etc.

    3. adam Says:

      How and why she was never given Japanese citizenship escapes me entirely. I would call her a victim of Japan’s wars and postwar politics as much as anything. I understand that there are very delicate issues involved in the permanent resident status and race, but seriously, permanent residents who were born in country and have always lived in country but don’t have citizenship shouldn’t exist.

      In reading the article, it appears she had money troubles due to medical bills, and some problems with domestic violence that forced her to set herself up alone. I guess unpayable medical bills forcing people onto welfare is not just a problem in the US.

    4. john k Says:

      “..The prefectural government dismissed the woman’s request without examining it, saying she was not eligible to seek benefits because she does not have Japanese nationality…”

      This begs the question:

      I am paying into the Japanese pension system. But, i do not have Japanese nationality, i am keeping my British passport. Thus when i retire and wish to claim my pension, can/will/would the same occur to me, and be denied my pension, because i am not a Japanese national?

    5. HO Says:

      John K, you are confusing social insurance with social welfare.

      The woman applied for 生活保護 (“life protection”) which is a form of social welfare and is paid to people in poverty. There is no insurance premium that has to be paid, since the program is not an insurance.

      National pension is one of social insurance programs in which an insured has to pay premium to collect benefit.

    6. Eyeinthesky Says:

      “I am paying into the Japanese pension system. But, i do not have Japanese nationality, i am keeping my British passport. Thus when i retire and wish to claim my pension, can/will/would the same occur to me, and be denied my pension, because i am not a Japanese national?”

      Depends on if your country has a totalization agreement. If no, then yes u be screwed.

    7. HO Says:

      Eyeinthesky, to be precise, if one lives in Japan and pay pension premia long enough to establish pension rights, he can receive pension after retirement regardless of nationality, where he lives after retirement, or totalization treaty.

      The details of eligibility are so complicated due to long history of amendments of the rules and numerous grandfather rules that one should consult Japan Pension Service if he has established pension rights. A person covered by Kousei Nenkin used to be able to collect benefit by paying premia just for one year.

    8. Mark Hunter Says:

      Ho is essentially correct. In general, a person needs 25 years of service to recieve any workplace pension in Japan. If your country of origin and Japan have a pension treaty (like Canada does), then a combined 25 years of work, in which premiums have paid into either Japan’s or Canada’s pension systems, will give you each country’s pension at a value equal to the service put in for each country. In my case I have 26 years in total in Japan and Canada and will recieve both the Canadian portion and the Japanese portion here in Canada, where I now live. The upshot is that I will recieve from both countries in total an amount equal to the Canadian CPP as if I’d lived and worked in Canada the whole 26 years. Nationality is only a concern if your country has no pension agreement with Japan. If it doesn’t, start to kick some arse, as change can happen if you complain to your government. As for Kousei Nenkin, Ho’s assertion that only one year is necessary for a benefit, is wrong. In total, one must have 25 years of service from one’s country of origin and Japan. Of course, 25 years in Japan will also do the trick.

    9. Mark Hunter Says:

      Eyeinthesky, don’t worry. Nationality has no bearing on pension rights. If you work 25 years in Japan you will receive workplace benefits. It can be paid into an account almost anywhere. Check to see if your country has a treaty with Japan, in case you have years of work in your country of origin. Feel free to email me if you have questions as I’ve just been through this entire process with my employer and the J gov’t.

      – Would you be willing to write up your experiences as a separate blog entry for Debito.org? It can be mundane. The step-by-step is what people are most interested in. I know a lot of people, myself of course included, who would really appreciate it.

    10. Eyeinthesky Says:

      The 25 year rule was the issue many English teachers ect were facing before. They did not intend to stay in Japan for 25 years, but were required to pay into the pension system during their tour in Japan. After they left, they got a lump sum option or just lost what they paid into it. They also lost time on paying into a pension system, it was a bad deal. Of course we know that if you stay here 25 years, you can get a pension if you paid into it. The issue was the lost time if you didnt stay here that long; thus the totalization agreement. It took Japan forever to finally agree with the U.S. to do it, I dont know about other countries.

    11. Eyeinthesky Says:

      You can call the visa or consular section at the US embassy and they will send you a handout on the totalization agreement between the US and Japan, or make you visit the embassy to get it. To bypass the phone pay advice crap or message center, ask the operator to speak with somebody in the visa section or SSN section. Expect the run around, but I got my package. Also, the Japanese staff there is most knowledable about the subject, I got a clueless answer from the diplomat there before.

    12. Eyeinthesky Says:

      Also (sorry for not lumping it all together), there are many out there that tell you to get the lump sum, but be careful with that, you might end up voiding out the pension latter you was entitled to. Read about it here:

      http://www.stippy.com/japan-life/refund-get-back-your-national-pension-payments-when-you-leave-japan-lump-sum-withdrawal/

      Some folks might just want the money not realizng they throw away all those years.

    13. FG Watcher Says:

      Fucked Gaijin has the follow-up which ain’t good news. Court has now decided welfare payments don’t apply to foreign residents.

      http://www.fuckedgaijin.com/forums/showthread.php?t=25506

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