to be free to decide whether it accepts foreign nationals and what conditions it imposes on foreign nationals to be accepted unless it concludes any special treaty. In the light of this situation, it is understood that the Constitution guarantees to foreign nationals neither the freedom to enter the country nor the right to reside in the country. Under the Constitution interpreted as the above, the Immigration Control Act adopts the residence status system as a system that forms the basis for immigration and residence management of foreign nationals and that stipulates that they are not allowed to enter and reside in Japan unless the activities that they intend to engage in Japan fall under the activities permitted under the status of residence that they are granted. The detention system under the Immigration Control Act is established based on such background. Under the said system, foreign nationals who have engaged in activities other than those permitted under the status of residence and are deemed to be disadvantageous to the country should be detained before the procedure for deportation to forcibly remove them outside the country, in principle. For this reason, the plaintiff's claim that detention should be restricted to cases in which there is a substantial need for detention cannot be accepted. The provisional release system is an exceptional system to provisionally give permission for release under certain conditions only in special circumstances, and there are no specific provisions for criteria of judgment in the Immigration Control Act. When this is taken into account, it is clear that the decision on whether to approve the application for provisional release is left to the broad discretion of principal inspectors etc. Therefore, there are no reasonable grounds to believe that principal inspectors etc. are required to grant permission for provisional release if there is no substantial need for detention.

[Tokyo High Court Judgment on October 29, 2009]

## Court case 5 [Hearing of opinions by refugee examination counselors]

The appellant argues that (i) the refugee examination counselor involved in this petition for objection conducted examinations based on prejudgments and prejudices and the requirements specified in Paragraph 2, Article 61-2-10 of the Immigration Control Act were not satisfied, and it is not acceptable that the refugee examination counselor conducted proper hearing of opinions which satisfied the requirements stipulated in the law with regard to this petition for objection; (ii) the statement of the appellant in this criminal case serves as the basis for assessment of the credibility in the statement regarding the eligibility as a refugee, and it is illegal to take procures using the evidence quite irrelevant to this application for refugee recognition without disclosing it to the appellant, in order to assess the eligibility as refugee, because it is a surprise attack against the appellant, and the appellant is given no chance to explain about it. However, on the assumption that the appellant’s claims are deemed reasonable, it is hard to recognize that the refugee examination counselor involved in this petition for objection conducted examinations based on prejudgments and prejudices. Because there is no reason to believe so, the factor shown as (i) cannot be accepted. With regard to the factor shown as (ii), even after considering the fact that the evidence used without being disclosed to the appellant is the statement made by the appellant and that it is assumed the appellant’s claims in this legal case are deemed reasonable, as shown the above, it is hard to recognize the appellant as a refugee after all. Therefore, it is hard to recognize that the above factors have an impact on the validity of decision concerning dismissal of the appeal.

[Tokyo High Court Judgment on April 23, 2009]