The appellants assert a claim to the effect that while they would lose all of the basis of life they have developed in Japan should they be deported, the “benefit to be accomplished by refraining from granting special permission to stay in Japan” as contended by the appellee is nothing but abstract equivalent control over entry into and departure from Japan, and further that this case is a case where special permission to stay in Japan should by rights have been granted whether dependent on the old guidelines or the new guidelines, and each of the decisions in this case and each of the dispositions to issue a deportation order constitute a violation of the principle of proportionality and should be held illegal. However, the principle of proportionality is merely a single criterion for exercising discretionary power, and the revocation of a judgment by the Minister of Justice on whether special permission to stay in Japan should be granted or not is limited to cases where the judgment has been made beyond the bounds of discretionary power or through an abuse of such power (see Article 30 of the Administrative Case Litigation Act), and it is not reasonable to rely solely on the principle of proportionality and to determine whether or not the disposition constitutes a violation of such a principle of proportionality.

[Tokyo High Court Judgment on April 19, 2012]

## Court Case 2 [Applicability of positive elements and negative elements in the Guidelines on Special Permission to Stay in Japan, and Judgment on the Deviation from or Abuse of Discretionary Power]

The Guidelines on Special Permission to Stay in Japan are understood to indicate basic matters to be considered in judging whether or not special permission to stay in Japan should be granted, based on the assumption that the Ministry of Justice has broad discretionary power to judge whether or not special permission to stay in Japan should be granted, and are not considered, in their nature, as if only the elements described in the guidelines form the bases on which special permission to stay in Japan should be granted or not.

Therefore, it is not reasonable to judge whether the decision in this case constitutes a deviation from or abuse of the discretionary power only by citing whether the positive elements and negative elements described in the Guidelines on Special Permission to Stay in Japan are applicable or not. More specifically, although the assertion of the appellant cannot be said to be reasonable if it means that the judgment on whether special permission to stay in Japan should be granted or not is to be based only on the applicability of the positive elements and negative elements in the Guidelines on Special Permission to Stay in Japan, it is needless to say that those factors must be considered as important factors in determining whether or not there was any deviation from or abuse of the discretionary power in the decision in this case.

(...) It is recognized that the Director-General of the Tokyo Regional Immigration Bureau has made the subject decision against the appellant by comprehensively evaluating and judging those elements for consideration, and since the conclusion of such decision is taken to be reasonable, it cannot be said that the appellant formed a wrong assessment of the facts relating to the appellant in making a decision on whether or not to grant special permission to stay in Japan in this case and, in that sense, that there was a deviation by the appellant from his discretionary power.

[Tokyo High Court Judgment on June 20, 2012]