A defining characteristic of Japan's immigration administration is the significant "broad discretion" (広範な裁量 - kōhan na sairyō) vested in the Minister of Justice and immigration authorities when making decisions concerning the entry and stay of foreign nationals. Many crucial determinations—such as granting a visa (status of residence), renewing a period of stay, permitting a change of status, or deciding on special permission to stay for individuals facing deportation—are not based on a foreign national's absolute entitlement but rather on the discretionary judgment of these authorities. This principle has profound implications for applicants and the scope of judicial review when challenging unfavorable decisions.

The Legal Basis and Rationale for Broad Discretion

The foundation for this broad discretion lies in the concept of state sovereignty: the inherent power of a nation to control its borders and regulate the presence of foreign nationals within its territory. This principle is deeply embedded in Japanese immigration law and has been consistently affirmed by its judiciary.

The Landmark McLean Doctrine

The Supreme Court of Japan, in its Grand Bench decision on October 4, 1978 (Showa 50 (Gyo-Tsu) No. 120), commonly known as the McLean case, laid the cornerstone for understanding administrative discretion in Japanese immigration matters. The Court held that:

• The Japanese Constitution does not guarantee foreign nationals the right to enter or reside in Japan, nor the right to demand an extension of their stay.
• The permission for a foreign national to land and reside in Japan is a matter of the state's discretionary power, exercised by the Minister of Justice under the Immigration Control and Refugee Recognition Act (hereinafter "Immigration Control Act").
• In exercising this discretion, the Minister of Justice can consider a wide range of factors, including not only the foreign national's personal circumstances but also domestic and international situations, diplomatic relations, and the general public interest of Japan.
• The determination of whether "reasonable grounds" exist to grant an extension of stay (as per Article 21, Paragraph 3 of the Immigration Control Act) is, by its nature, entrusted to the broad discretion of the Minister.

This ruling established that decisions regarding a foreign national's stay are not merely a matter of checking boxes against fixed criteria but involve a comprehensive, policy-laden judgment.

Statutory Language Indicating Discretion

The Immigration Control Act itself contains language that signals discretionary power. Phrases such as "the Minister of Justice may grant permission," "when the Minister of Justice finds there are reasonable grounds to deem it appropriate," or "when the Minister of Justice finds that special circumstances exist" (as in the case of Special Permission to Stay under Article 50) all point to a decision-making process that is not purely mechanical but involves judgment and weighing of various factors.

Areas Where Broad Discretion is Prominently Exercised

This discretionary power is evident across a wide spectrum of immigration procedures:

1. Initial Landing Permission: While specific conditions for landing are outlined in Article 7 of the Immigration Control Act, the Minister of Justice retains highly discretionary power to grant Special Permission to Land under Article 12 to individuals who may otherwise be inadmissible.
2. Renewal of Period of Stay (Article 21): As affirmed in the McLean case and reiterated in subsequent rulings like the Tokyo District Court decision on November 20, 2012 (Heisei 23 (Gyo-U) No. 661), the assessment of "reasonable grounds" for renewal is a discretionary act. Authorities consider the foreign national's activities during their stay, compliance with Japanese laws, the stability of their livelihood, and other relevant circumstances.
3. Change of Status of Residence (Article 20): Similarly, applications to change from one status of residence to another are subject to the Minister's broad discretion. The Tokyo District Court, on June 19, 2013 (Heisei 24 (Gyo-U) No. 401), noted that because the Immigration Control Act defines the requirements for status changes in general terms without setting forth specific, detailed judgment criteria, the decision is inherently left to the extensive discretion of the Minister, who oversees immigration control and is informed about domestic and international conditions. The Nagoya District Court, on February 17, 2005 (Heisei 16 (Gyo-U) No. 11), made a useful distinction: while determining if an applicant factually meets the technical requirements for a new status is largely a factual認定 (fact-finding), the subsequent judgment on whether granting the change is "appropriate" (sōtō) considering all other circumstances is where broad discretion truly comes into play.
4. Special Permission to Stay (Article 50): This is perhaps the area where administrative discretion is at its widest. Special Permission to Stay is considered for individuals who have already been found deportable. The Minister of Justice may grant it if "special circumstances" are found to exist. The assessment of these circumstances—which can include family ties in Japan, humanitarian concerns, length of residence, degree of assimilation, and past conduct—is profoundly discretionary.
5. Provisional Release from Detention (Article 54): The decision to grant provisional release (karihōmen) to a foreign national detained pending deportation is also a discretionary one, typically made by the director of an immigration detention center or a supervising immigration inspector. The Tokyo High Court, on October 29, 2009 (Heisei 21 (Gyo-Ko) No. 209), affirmed this broad discretion, noting that provisional release is an exceptional measure to the general principle of detention during deportation proceedings.
6. Issuance of Certificate of Eligibility (CoE) (Article 7-2): While the CoE process involves verifying if an applicant meets the criteria for a specific status of residence, an element of judgment remains, especially if there are borderline factors or potential concerns that are not outright grounds for denial but might influence the overall assessment of suitability.

The Standard for Judicial Review: "Deviation from or Abuse of Discretion"

Given this broad administrative discretion, what recourse does a foreign national have if they receive an unfavorable decision? They can challenge the decision in court through administrative litigation. However, Japanese courts generally show significant deference to the discretionary judgments of immigration authorities.

A court will not simply substitute its own judgment for that of the Minister of Justice. Instead, it will review the decision to determine if there has been a "deviation from or abuse of discretion" (裁量権の逸脱又は濫用 - sairyōken no itsudatsu mata wa ran'yō). This is a high threshold for a litigant to meet. Generally, an abuse of discretion is found only if the administrative decision:

• Completely lacks a factual basis.
• Is based on clearly erroneous factual findings that were material to the decision.
• Is patently or manifestly unreasonable in light of generally accepted social norms or common sense (著しく合理性を欠く - ichijirushiku gōrisei o kaku). This means the decision is so irrational that it cannot be justified by any reasonable interpretation of the facts and law.
• Fails to consider crucial relevant factors that should have been taken into account, or conversely, takes into account factors that are entirely irrelevant to the statutory purpose.
• Violates fundamental legal principles such as equality or proportionality in an extreme and unjustifiable manner.

The introductory remarks to Section 2 of Chapter 6 in the provided PDF (concerning trends in Special Permission to Stay cases) succinctly summarize this standard, noting that a discretionary decision by the Minister (e.g., on Special Permission to Stay) would be deemed illegal only if "it completely lacks a factual basis or is clearly unreasonable in light of social norms, thus deviating from or abusing the scope of discretion."

Implications of Broad Discretion for Foreign Nationals and Their Sponsors

The pervasive nature of broad discretion in Japanese immigration law has several important implications:

1. Uncertainty in Outcomes: Even if an applicant appears to meet all the published criteria for a particular visa or permission, a favorable outcome is not guaranteed. Unstated policy considerations or a different weighing of factors by the authorities can lead to unexpected denials.
2. Importance of a Comprehensive and Persuasive Application: Applicants and their sponsors (e.g., employers, schools, family members) need to prepare thorough and well-documented applications that not only meet the letter of the law and guidelines but also proactively address any potential concerns and present a compelling case for a favorable exercise of discretion.
3. Limited Success in Litigation: Challenging a discretionary immigration decision in court is often an uphill battle due to the deferential standard of review. Litigants must be prepared to demonstrate not just that a different decision might have been preferable, but that the decision made was so flawed as to constitute an abuse of discretion. Success often hinges on identifying significant procedural errors or clear factual misapprehensions by the authorities.
4. Significance of Official Guidelines and Past Practices: While not legally binding in the same way as statutes, administrative guidelines published by the Ministry of Justice or the Immigration Services Agency, as well as discernible patterns in past decisions (if known), can provide valuable insights into how discretion is typically exercised. However, these do not fetter the Minister's ultimate authority to decide individual cases based on their specific merits and broader policy considerations.

Case Law Illustrating Discretion and Judicial Review

The McLean case serves as the overarching authority. Many of the PDF's case examples discussed in previous contexts—such as those concerning renewals of status of residence (e.g., Tokyo District Court, November 20, 2012), changes of status (e.g., Tokyo District Court, June 19, 2013), and especially Special Permission to Stay—implicitly or explicitly operate under this doctrine of broad discretion.
When courts review denials of Special Permission to Stay, for instance, they meticulously examine whether the Minister considered all relevant positive and negative factors (family ties, length of residence, humanitarian needs, nature of immigration violations, criminal record, etc.). A denial is rarely overturned unless the court finds that the Minister's balancing of these factors was so skewed as to be manifestly unreasonable, or that critical humanitarian aspects were ignored without proper justification, leading to a conclusion that shocks the conscience or basic notions of fairness.

Conclusion

"Broad discretion" is a fundamental and pervasive principle in Japanese immigration law, granting substantial authority to the Minister of Justice and immigration officials in making pivotal decisions affecting the lives of foreign nationals. This discretion allows the administration to respond flexibly to diverse individual situations and evolving national interests. However, it also introduces an element of uncertainty for applicants and places a high bar for successful judicial challenges to unfavorable decisions. For foreign nationals, their families, and their sponsors, a comprehensive understanding of this principle underscores the importance of meticulous preparation, full compliance with legal requirements, and the presentation of a compelling and well-supported case when seeking any immigration benefit in Japan. While administrative decisions are subject to judicial oversight, the scope of that oversight respects the specialized and policy-laden nature of immigration control.