Decree No. 15/2009/ND-CP Amending and supplementing some articles of Decree No. 97/2006/NĐ-CP dated September 15, 2006 on the application of administrative expulsion penalties

DECREE

Amending and supplementing some articles of Decree No. 97/2006/NĐ-CP dated September 15, 2006 on the application of administrative expulsion penalties

THE GOVERNMENT

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

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

Pursuant to the Ordinance on Handling Administrative Violations dated July 2, 2002, amended and supplemented by the Ordinance amending and supplementing certain provisions of the Ordinance on Handling Administrative Violations dated April 2, 2008;

Considering the proposal of the Minister of Public Security,

DECREE:

Article 1. Amending and supplementing some articles of Decree No. 97/2006/NĐ-CP dated September 15, 2006 on the application of administrative expulsion penalties:

1. Article 5 shall be amended and supplemented as follows:

“Article 5. Competence to decide on the application of administrative expulsion penalties

1. The Minister of Public Security has the authority to decide on the application of administrative expulsion penalties.

2. The Director of the Exit and Entry Administration Department; the Director of Provincial Police Departments under central cities (hereinafter referred to collectively as provincial police departments) have the authority to decide on the application of administrative expulsion penalties according to the delegation of the Minister of Public Security.

2. Article 6 is amended and supplemented as follows:

“Article 6. Procedure for applying administrative expulsion penalties

1. The agency discovering the violation, upon finding that a foreigner has committed an act of violation sufficient to warrant the application of administrative expulsion penalties, must immediately send the case file to the provincial police department where the foreigner is registered to reside or where the violation occurred to establish a file for the application of administrative expulsion penalties. In cases of violations discovered by prosecution agencies, central state management agencies, or specialized units under the Ministry of Public Security, the case files shall be sent to the Exit and Entry Administration Department to establish a file for the application of administrative expulsion penalties.

2. Within seven days from the date of receipt of the case file, the Director of the provincial police department shall be responsible for completing the file for the application of administrative expulsion penalties. The file shall include:

a) A summary of the background and acts of violation of the person proposed for expulsion;

b) Evidence and materials regarding the administrative violation;

c) Previous forms of handling (for cases of repeated or habitual violations);

d) A document proposing expulsion (for cases not delegated).

3. For cases where the Minister of Public Security delegates to the Director of the provincial police department, the Director of the provincial police department must review and issue a decision on administrative expulsion immediately after completing the file for the application of administrative expulsion penalties for foreigners who have violated the law. If the conditions for applying administrative expulsion penalties are not met, the Director of the provincial police department must notify the agency discovering the violation immediately.

4. For cases where the Minister of Public Security delegates to the Director of the Exit and Entry Administration Department, the Director of the provincial police department must transfer the file and the document proposing administrative expulsion to the Director of the Exit and Entry Administration Department for issuance of an expulsion decision immediately after completing the file for the application of administrative expulsion penalties.

Within five days from the date of receiving the expulsion proposal file from the Director of the provincial police department, the Director of the Exit and Entry Administration Department shall be responsible for reviewing and issuing a decision on administrative expulsion for foreigners who have violated the law. If the conditions for applying administrative expulsion penalties are not met, the Director of the Exit and Entry Administration Department shall notify the agency discovering the violation and the provincial police department where the file was established.

5. For cases where the Minister of Public Security issues the expulsion decision, the Director of the provincial police department must transfer the file and the document proposing administrative expulsion to the Exit and Entry Administration Department for review before submitting to the Minister of Public Security for decision immediately after completing the file proposing the application of administrative expulsion penalties.

Within five days from the date of receiving the expulsion proposal file from the Director of the provincial police department, the Exit and Entry Administration Department shall be responsible for examining the file proposing the application of administrative expulsion penalties. If the conditions are met, it shall prepare a report recommending the Minister of Public Security to issue an expulsion decision; if the conditions for applying administrative expulsion penalties are not met, it shall notify the agency discovering the violation and the provincial police department where the file was established.

Within three days from the date of receipt of the report proposing expulsion from the Director of the Exit and Entry Administration Department, the Minister of Public Security shall review and issue a decision on administrative expulsion for foreigners who have violated the law.

6. The Exit and Entry Administration Department, if directly discovering a foreigner's violation of the law or receiving the violation case file from prosecution agencies, central state management agencies, or specialized units under the Ministry of Public Security, shall proceed to establish a file for the application of administrative expulsion penalties according to Clause 2 of this Article. If the violator falls within the delegated category, the Director of the Exit and Entry Administration Department shall issue a decision on administrative expulsion; if not within the delegated category, it shall report to the Minister of Public Security or transfer to the Director of the provincial police department to issue an expulsion decision.

3. Article 7 is amended as follows:

“Article 7. Decision on Deportation Penalty

1. The decision on deportation penalty must clearly state the following contents:

a) Date of issuance of the deportation penalty decision;

b) Name, position of the person issuing the deportation penalty decision;

c) Name, date of birth, nationality, occupation, passport number of the person to be deported;

d) Administrative violation committed by the person to be deported;

đ) Provisions of legal normative documents applied; main form of administrative penalty, additional forms of administrative penalty, measures to remedy consequences (if any);

e) Time for implementing the deportation penalty decision;

g) Place of expulsion;

h) Border gate for implementing the deportation penalty decision;

i) Authority responsible for organizing the implementation of the deportation penalty decision;

k) Signature of the person issuing the deportation penalty decision.

2. The deportation decision must be sent to the party concerned, the authority or organization being the Vietnamese partner (if any), and the Ministry of Foreign Affairs before implementation.”

4. Article 9 shall be amended and supplemented as follows:

“Article 9. Suspension of Implementation of the Deportation Penalty Decision

1. The person to be deported may have the implementation of the decision suspended in the following cases:

a) Seriously ill, requiring emergency treatment, or due to health reasons unable to carry out the deportation penalty decision, with certification from a hospital or healthcare center at district level or higher, or other force majeure cases;

b) Required to fulfill civil, administrative, or economic obligations as prescribed by law.

2. Based on the proposal of the Director of the Exit and Entry Management Department, the Minister of Public Security shall consider and issue a decision to suspend the implementation of the deportation penalty decision for cases where the deportation decision was made by the Minister of Public Security.

3. Based on the proposal of the Provincial Police Chief, or the head of the foreigner management unit under the Exit and Entry Management Department, the Director of the Exit and Entry Management Department shall consider and issue a decision to suspend the implementation of the deportation penalty decision for cases where the deportation decision was made by the Director of the Exit and Entry Management Department.

4. Based on the proposal of the head of the exit and entry management unit, the Provincial Police Chief shall consider and issue a decision to suspend the implementation of the deportation penalty decision for cases where the deportation decision was made by the Provincial Police Chief.

5. When the conditions for suspension no longer exist, the deportation penalty decision shall continue to be implemented.”

5. Article 12 shall be amended and supplemented as follows:

“Article 12. Cases Where the Person to Be Deported Is Ill or Dies During the Deportation Process

1. A foreign national who falls ill during the deportation process shall be treated at the place of management. In case of serious illness, the Exit and Entry Management Department or the Provincial Police where the deportation application file is established shall be responsible for transporting them to a medical facility for treatment; simultaneously notifying the Ministry of Foreign Affairs to inform the diplomatic or consular agency of the country of which the person is a citizen.

2. If a foreign national dies during the deportation process, the Director of the Exit and Entry Management Department or the Provincial Police Chief where the deportation application file is established must immediately report to the competent investigation agency, the prosecution agency; the authority or organization being the Vietnamese partner (if any), while also notifying the Consular Department of the Ministry of Foreign Affairs to inform the diplomatic or consular agency of the country of which the person is a citizen to cooperate in handling the matter.

3. The repatriation of the body of a foreign national who died during the deportation process and the costs for burial and repatriation of the body shall be the responsibility of the family members, the organization or entity where the person worked, or the diplomatic or consular agency of the country of which the person is a citizen. In case these methods cannot be carried out, the Exit and Entry Management Department or the Provincial Police where the application file is established shall be responsible for carrying out the task.”

6. Article 13 shall be amended and supplemented as follows:

“Article 13. Responsibilities of the Exit and Entry Administration Department

1. Prepare files to enforce decisions on expulsion penalties, including:

a) Administrative decision on expulsion penalty;

b) Copy of passport or copy of other identity documents instead of passport of the person being expelled;

c) Certificates proving the completion of other obligations (if any);

d) Other related documents.

2. Send the expulsion penalty decision to the Consular Department of the Ministry of Foreign Affairs for notification to the diplomatic or consular agencies of the country of which the person is a citizen; at the same time, send a copy of the decision to the person being expelled for enforcement.

3. Collect and receive necessary information and documents for organizing the enforcement of the expulsion penalty decision.

4. Coordinate with relevant agencies to ensure the implementation of rights and obligations of the person being expelled.

5. Organize expulsion according to the decision.”

Article 2. This Decree takes effect from April 1, 2009. The Minister of Public Security shall be responsible for guiding the implementation of this Decree.

Article 3. Ministers, Heads of ministerial-level agencies, Heads of government-affiliated agencies, Chairpersons of provincial People's Committees under central cities are responsible for implementing this Decree./.