The tug of war continues: Fukuoka High Court overrules Oita District Court that doubted, then affirmed, Oita Prefectural Govt’s denial of welfare benefits to superannuated NJ Permanent Resident
Posted by Dr. ARUDOU, Debito on November 18th, 2011
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Hi Blog. Last November I mentioned in my Debito.org Newsletter about this weird case of administrative exclusionism and atypical jurisprudence in Japan, thus:
16) Kyodo: Court overrules Oita Pref who tried to deny a 78-year-old NJ welfare benefits
Kyodo: A Japanese court repealed on Thursday a decision by Oita Prefecture in southwestern Japan not to examine a request from a 78-year-old Chinese woman to look into a decision by Oita City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…
17) Mainichi: “NJ have no right to welfare payments”, rules Oita District Court two weeks later. Gee that was a quick kibosh.
After a half-month interlude of light and reason (as in September 30 to October 18), where it actually looked like a Japanese courtroom was actually going to be nice to somebody and rule against The State, another court has come along and put things back to normal:
Mainichi: The Oita District Court ruled on Oct. 18 that foreigners with the right to permanent residence but without Japanese citizenship are not entitled to welfare benefits, rejecting the claims of a 78-year-old Chinese woman who sued after being denied benefits by the Oita city government…
According to the ruling, the woman has Chinese nationality but was born in Japan and holds the right to permanent residence. In December 2008, the woman applied to the welfare office in Oita city for welfare payments, but was turned down with the reason that she had “a comfortable amount of money” in her savings.
The main issues of the trial became whether the woman held the right as a foreigner to receive welfare payments and whether her financial status justified her receiving aid…”
COMMENT: Gee, that was quick by Japanese judicial standards! I guess they know the value of putting the kibosh on something before the floodgates open: Can’t have all the goddamn foreigners expecting to have rights to something like our social welfare benefits, especially at an advanced age.
Then, as the clock continues to run out for this superannuated NJ, we now have another flip, fortunately in the more inclusive direction:
Court rules noncitizens are eligible for welfare
The Yomiuri Shimbun (Nov. 17, 2011), courtesy of lots of people
FUKUOKA–The Fukuoka High Court ruled Tuesday that permanent residents in in Japan with foreign nationalities are eligible to receive public welfare assistance, overturning a lower court ruling.
The high court accepted an appeal by a 79-year-old woman who is a permanent resident in Japan with Chinese nationality. She filed the lawsuit, claiming that the Oita city government illegally rejected her request for public welfare assistance.
Presiding Judge Hiroshi Koga said in the ruling, “Foreign citizens with permanent residency [in Japan] are legally guaranteed the same status as Japanese citizens who receive the same treatment.”
The high court overturned the Oita District Court’s ruling and nullified the Oita city government’s decision not to grant the woman public welfare benefits.
According to a lawyer for the plaintiff, it is the nation’s first court ruling to present a legal basis for foreign permanent residents in Japan to receive public welfare benefits.
According to the ruling, the woman applied for the public welfare at the Oita city government in December 2008, but the city government rejected her request.
The point at issue in the lawsuit was whether the Daily Life Protection Law can be applied to noncitizens.
Article 1 of the law limits recipients to Japanese citizens. As for non-Japanese residents, each local government has made respective judgments based on a 1954 notice issued by the then Health and Welfare Ministry, which said the law would be applied with some modification.
Though there are many foreign permanent residents in Japan who receive public welfare benefits, their eligibility has not been legally guaranteed.
The high court ruling noted Diet deliberations in 1981 on ratifying the U.N. Convention Relating to the Status of Refugees, which stipulates that countries “shall accord to refugees within their territories treatment at least as favorable as that accorded to their nationals.”
At the time, the Diet presented a view that Japan would not need to revise the Daily Life Protection Law to eliminate nationality clauses in it because the government has already been applying the law with necessary modifications.
The high court judged that the Japanese government had at that moment become obliged under international law to provide public welfare assistance to foreign residents in the country.
The high court also pointed out that the central government in 1990 limited the range of noncitizen recipients to those with permanent resident status in terms of management of the public welfare system.
毎日新聞 2011年11月16日 東京朝刊
COMMENT: Okay, that’s good news and a good precedent. Glad they took it away from the denizens of Oita, who clearly started saying “Chotto…” to the petty bureaucrats, then backtracked within two weeks as the wagons encircled to rule against the alleged foreigner (I would like to hear more about her, i.e., if she is in fact a Zainichi or not — there is a difference between ippan eijuusha and tokubetsu eijuusha, after all, and that will be noted by any legal exceptionalists who want to stop further positive precedent building). But the fact that she’s born here, raised here, speaks Japanese as her native language, and is approaching eighty years of age, yet STILL was denied benefits by heartless bureaucrats, backed up by the judiciary, is more than a bit scary. If this gets appealed to the Supreme Court (after all, the GOJ is a sore loser in court), I hope the judges are in a good mood when they start deliberating. Maybe we should send them sweets. Arudou Debito