Heisei 30 Nen (Gyou-ko), No 232 argued that the treatment the plaintiff received was not persecution since it did not involve harm to life and body, consistent with a standard metric of persecution in past administrative and judicial practice. 39 The Tokyo High Court introduced a different analysis from the past general practice in Japan and found that the harm the plaintiff experienced in Georgia was destruction of the basis of his livelihood or subsistence that amounted to persecution. 40 Secondly, in discussing the element of a ‘well-founded fear of being persecuted’, the Court pointed out that the government of Georgia still refuses to allow the plaintiff to re-enter its territory and thus, the plaintiff’s fear of persecution is continuing at the present moment. 41 Thirdly, in terms of the ‘Refugee Convention reason’ for the persecution, it was clear for the Tokyo High Court that the reason was race or ethnicity. The Court considered that having an Armenian ethnicity in Georgia caused persecution and well-founded fear. 42 With respect to the issue of the nullification of the deportation order, it was a point of dispute whether or not the deportation order could designate Georgia as the destination. Article 53(1) of the Immigration Control and Refugee Recognition Act (1951) provides that any person subject to deportation shall be deported to a state of which they are a national or citizen. 43 Article 53(2) of the Act follows that if the person cannot be deported to such a state, the person shall be deported to any of the states that art 53(2) lists, for instance, a state in which they once resided, pursuant to their wishes. Because the plaintiff is not ‘a national or citizen’ of any state and thus, a stateless person, he would be deported to a state pursuant to his wishes. In the deportation proceedings, the plaintiff consistently expressed that he did not wish to be deported to Georgia where he would face a risk of persecution. 44 Concerning the interpretation of the phrase ‘pursuant to their wishes’, the defendant argued that art 53(2) does not prohibit deportation to a state where the concerned person does not wish to go and that the purpose of the article is to take into account the opinion of the person about destination options when repatriation to the state of origin is unfeasible. 45 The Tokyo High Court concluded that ‘the defect of the disposition in this case is significant and evident’ and that the entire disposition of the deportation order is nullified. 46 The Court explained that it is manifestly irrational to designate a state in relation to which the person demonstrates a rational explanation as to why they do not to wish to be deported there. 47 It thus concluded that the defendant’s 39 40 41 42 43 44 45 46 47 Tokyo High Court, Heisei 30 232 (n 6) 6. The term ‘judicial and administrative practices’ has been deliberately used in preference to the term ‘case law’, as there is no consensus if case law is a source of Japanese law and, even if the term is used, the understanding often differs from other jurisdictions. ibid 27–28. See also Part V of this case note. The direct translation of the term used by the Tokyo High Court is ‘right to live’. The authors of this note assume that this right derives from the Constitution of Japan (3 November 1946) and was utilised as a concept by the Court in this decision. We have used the terms ‘livelihood or subsistence’, which is used interchangeably by the Court as the content of that right to avoid confusion. Tokyo High Court, Heisei 30 232 (n 6) 28���30. ibid. Immigration Control and Refugee Recognition Act (Cabinet Order No 319 of 4 October 1951). Tokyo High Court, Heisei 30 232 (n 6) 24. ibid 7. ibid 31–32. ibid 31. 321