Decree No. 15/2009/ND-CP dated February 13, 2009 of the Government amending and supplementing a number of articles of Decree No. 97/2006/ND-CP of September 15, 2006, regarding the application of the sanction of expulsion under administrative procedures

DECREE

AMENDING AND SUPPLEMENTING A NUMBER OF ARTICLES OF DECREE NO. 97/20067/ND-CP OF SEPTEMBER 15, 2006, REGARDING THE APPLICATION OF THE SANCTION OF EXPULSION UNDER ADMINISTRATIVE PROCEDURES

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;

Pursuant to the April 28, 2000 Ordinance on Entry, Exit and Residence of Foreigners in Vietnam;

Pursuant to the July 2, 2002 Ordinance on Handling of Administrative Violations, which was amended and supplemented under the April 2, 2008 Ordinance Amending and Supplementing a Number of Articles of the Ordinance on Handling of Administrative Violations;

At the proposal of the Minister of Public Security,

DECREES:

Article 1. To amend and supplement a number of articles of Decree No. 97/2006/ND-CP of September 15, 2006, providing for the application of the sanction of expulsion under administrative procedures:

1. Article 5 is amended and supplemented as follows:

"Article 5. Competence to decide on the application of the sanction of expulsion

1. The Minister of Public Security is competent to decide on the application of the sanction of expulsion under administrative procedures.

2. The director of the Immigration Department, the directors of Public Security Departments of provinces and centrally run cities (below referred to as provincial-level Public Security Departments) are competent to decide on the application of the sanction of expulsion under administrative procedures according to the Minister of Public Security's decentralization."

2. Article 6 is amended and supplemented as follows:

"Article 6. Order of applying the sanction of expulsion

1. If agencies detecting violations deem that foreigners committing acts of law violation are subject to the application of the sanction of expulsion, they must immediately send files on the violation cases to the concerned provincial-level Public Security Departments of the localities where such foreigners register their residence or where they commit the violation acts, for compilation of dossiers on the application of the sanction of expulsion. If procedure-conducting agencies, other state management bodies at the central level or professional units of the Ministry of Public Security detect such violations they shall send, the violation files to the Immigration Department for compilation of dossiers on the application of the sanction of expulsion.

2. Within seven days after the receipt of violation files, directors of provincial-level Public-Security Departments shall complete the dossiers on the application of the sanction of expulsion. Such a dossier comprises:

a/ The curriculum vitae and law-breaking acts of the person proposed for expulsion;

b/ Documents and evidence on acts of violating the administrative law;

c/ The already applied handling forms (for cases of repeated violation or recidivism);

d/ The written proposal on expulsion (for non-decentralized cases).

3. For cases already decentralized to directors of provincial-level Public Security Departments by the Minister of Public Security, immediately after completing dossiers on the application of the sanction of expulsion to foreigners who have committed administrative violations, the directors of concerned provincial-level Public Security Departments shall consider and issue expulsion decisions. If the conditions for application of the sanction of expulsion arc not fully met, they shall immediately notify the violation-detecting agencies thereof.

4. For cases already decentralized to the director of the Immigration Department by the Minister of Public Security, immediately after completing dossiers on the application of the sanction of expulsion, the directors of concerned provincial-level Public Security Departments shall transfer the files and written proposals on the application of the sanction of expulsion to the director of the Immigration Department for issuance of expulsion decisions.

Within five days after the receipt of written proposals on expulsion from directors of provincial-level Public Security Departments, the director of the Immigration Department shall consider and issue expulsion decisions against foreigners committing administrative violations. If the conditions for application of the sanction of expulsion are not fully met, he/she shall notify the violation-detecting agencies and the dossier-compiling provincial-level Public Security Departments thereof.

5. In case the Minister of Public Security issues expulsion decisions, immediately after completing dossiers proposing the application of the sanction of expulsion, the directors of concerned provincial-level Public Security Departments shall transfer the files and written proposals on application of the sanction of expulsion to the Immigration Department for consideration before submitting them to the Minister of Public Security for decision.

Within five days after the receipt of dossiers of proposal on expulsion from the directors of provincial-level Public Security Departments, the Immigration Department shall examine the dossiers. If the conditions for application of the sanction of expulsion are fully met, it shall make a report proposing the Minister of Public Security to issue an expulsion decision; if the conditions are not fully met. it shall notify such to the violation-detecting agency and the provincial-level Public Security Department which has compiled the expulsion proposal dossier.

Within three days after the receipt of expulsion proposals of the Director of the Immigration Department, the Minister of Public Security shall consider and issue expulsion decisions against foreign violators.

6. If the Immigration Department directly detects administrative violations committed by foreigners or receives violation files from procedure-conducting agencies, other state management bodies at the central level or professional units of the Ministry of Public Security, it shall compile the dossiers on application of the sanction of expulsion as provided for in Clause 2 of this Article. If the violators fall under its decentralized scope, the Director of the Immigration Department shall issue expulsion decisions; if not, he/she shall report the cases to the Minister of Public Security or transfer the cases to the directors of concerned provincial-level Public Security Departments for issuance of expulsion decisions."

3. Article 7 is amended as follows:

"Article 7. Expulsion decisions

1. An expulsion decision must clearly state:

a/ Date of its issuance;

b/ The full name and position of the issuer;

c/ The full name, birth date, nationality, occupation and passport number of the expelled person;

d/ The administrative violation act of the expelled person;

e/ Applicable law provisions; form of principal sanction, form of additional sanction, remedies (if any);

f/ The time for execution of the expulsion decision;

g/ The destination to which the violator is expelled;

h/ The border-gate where the expulsion decision will be executed;

i/ The agency responsible for the execution of the expulsion decision;

j/ The signature of the issuer.

2. Before executing expulsion decisions shall be sent to persons concerned, agencies or organizations being Vietnamese partners (if any) and the Ministry of Foreign Affairs."

4. Article 9 is amended and supplemented as follows:

"Article 9. Postponement of execution of expulsion decisions

1. Expelled persons will be entitled to postponement of expulsion in the following cases;

a/ They are so seriously ill that they need emergency medical treatment or cannot comply with the expulsion decisions for health reasons as certified by a hospital or a health center of district or higher level, or other force majeure cases;

b/ They are required to fulfill civil, administrative or economic obligations according to law.

2. At the proposal of the director of the Immigration Department, the Minister of Public Security shall consider and issue decisions to postpone the execution of expulsion decisions for cases in which the Minister of Public Security has issued the expulsion decisions.

3. At the proposal of directors of provincial-level Public Security Departments or the head of the foreigner-managing unit of the Immigration Department, the director of the Immigration Department shall consider and issue decisions to postpone the execution of expulsion decisions for cases in which the director of the Immigration Department has issued the expulsion decisions.

4. At the proposal of heads of immigration units, the directors of provincial-level Public Security Departments shall consider and issue decisions to postpone the execution of expulsion decisions for cases in which the directors of provincial-level Public Security Departments have issued the expulsion decisions.

5. As soon as the postponement conditions no longer exist, the expulsion decisions shall be executed."

5. Article 12 is amended and supplemented as follows:

"Article 12. Cases in which expelled persons get sick or die while the expulsion procedures are carried out

1. Foreigners getting sick while the expulsion procedures are carried out will be provided with medical treatment at the places where they are managed. In case of serious ailment, the Immigration Department or the provincial-level Public Security Departments which have compiled the expulsion proposal dossiers shall take them to medical establishments for treatment and at the same time notify the Ministry of Foreign Affairs thereof for further notification to the diplomatic missions or consulates of the countries of which such persons are citizens.

2. If foreigners die while the expulsion procedures are carried out. the director of the Immigration Department or directors of the provincial-level Public Security Departments which have compiled the expulsion proposal dossiers shall immediately report such to competent investigative bodies and procuracies; agencies or organizations being Vietnamese partners (if any) and at the same time notify the Consular Department of the Ministry of Foreign Affairs thereof for further notification to diplomatic missions or consulates of the countries of which those persons are citizens for coordinated settlement.

3. The transport of the bodies of foreigners who die while the expulsion procedures are carried out to their home countries and the expenses for burial and homeward transport of the bodies fall under the responsibility of their relatives, agencies or organizations where such persons work or diplomatic missions or consulates of the countries of which such persons are citizens. If not, the Immigration Department or the provincial-level Public Security Departments which have compiled the dossiers shall take the responsibility therefor."

6. Article 13 is amended and supplemented as follows:

"Article 13. Responsibilities of the Immigration Department

1. To compile dossiers on execution of expulsion decisions, each comprising:

a/ The expulsion decision under administrative procedures;

b/ Copy of the passport or copy of other personal papers substituting the passport of the expelled person;

c/ Papers certifying the fulfillment of other obligations (if any);

d/ Other relevant documents.

2. To send the expulsion decisions to the Consular Department of the Ministry of Foreign Affairs for notification to diplomatic missions or consulates of the countries of which such persons are citizens; and concurrently send a copy of the decision to the expelled person for compliance.

3. To collect, receive information and documents necessary for organization of the execution of expulsion decisions.

4. To coordinate with concerned bodies in guaranteeing the rights and obligations of the expelled persons.

5. To organize the expulsion under decisions."

Article 2. This Decree takes effect on April 1, 2009. The Minister of Public Security shall guide the implementation of this Decree.

Article 3. Ministers, heads of ministerial-level agencies, heads of government-attached agencies and presidents of provincial-level People's Committees shall implement this Decree.-