Re Rana Mukta

CACV 245/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2014

(ON APPEAL FROM HCAL NO 117 of 2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 25 September 2014, the Applicant issued a Form 86 seeking leave to apply for judicial review to challenge the decision of the Director of Immigration [“the Director”] refusing to renew her dependant visa. The decision was first set out in a letter of 28 August 2013 and it was subsequently maintained in two letters of 29 November 2013 and 26 June 2014.

2.The application was considered by Au J.  On 25 November 2014, Au J refused to grant leave for the following reasons, set out in the CALL-1 Form:

“ 1. Leave is refused for the following brief reasons.

2. It is trite that leave would only be granted if the applicant could show that the intended judicial review has reasonably arguable grounds which have a realistic prospect of success. See: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR676 at paragraphs 14-17 per Li CJ.

3. Moreover, it has also been firmly accepted that the dependency policy is not itself a policy of family reunion: Murali Duraisamy v Director of Immigration (unreported, HCAL 152/2004, 2 November 2005) at paragraph 20 per A Cheung J (as the learned CJHC then was).

4. Finally, the proper role of this court sitting in judicial review is not to sit on appeal from the Director’s determination or decision but only to play a supervisory role. This means that this court is not concerned with the merits of the decision, but rather the legality of the decision as well as the fairness of the decision-making process: Mumtaz Hussain v The Chief Executive in Council (unreported, HCAL 163/2002, 18 November 2003) at paragraph 8 per A Cheung J (as he then was).

5. The policy under the dependency visa requires the applicant to show that there is dependency (financial and emotional) on her husband. See: Christian Bulao Palmis v Director of Immigration, (unreported, HCAL 2104/2001, 19 February 2003), at paragraphs 25 and 26 per Hartmann J (as the NPJ then was).

6. In the present case, given that the husband has refused to sponsor the applicant effectively for the renewal of the dependant visa, the applicant cannot demonstrate to the Director of Immigration the necessary dependency. In fact, the applicant’s case as set out in her solicitors’ letter dated 25^th February 2014 that she can financially support herself in Hong Kong is a factor showing that there is no dependency. See: Christian Bulao Palmis v Director of Immigration, supra, para 25.

7. Finally, it must also be noted that there is no general duty on the Director to take into account of humanitarian and compassionate grounds (see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332F-G per Li CJ).

8. But as a matter of discretion, when and if the Director does consider an application on this ground in a particular case (as in the present), how she exercises her discretion after taking into account of all the circumstances is ultimately a question for her entirely (Lam Khiet Phung v Director of Immigration (unreported, HCAL 9/2004, 24 January 2006, Chu J, at paragraph 66.). The discretion, when exercised, is of course still subject to the supervision of the court in a judicial review on the traditional public law grounds.

9. As far as I can see, the allegations that the applicant is subject to the husband’s abuse (again see solicitors’ letter dated 25^th February 2014) cannot be a reasonable ground to support her application to remain in Hong Kong on humanitarian and compassionate grounds. There is nothing to show why she cannot return to her hometown. In any event, it cannot be said that the Director’s decision not to continue to grant her the dependent visa based on this allegations is irrational or Wednesbury unreasonable.

10. In the premises, the applicant cannot show any arguable grounds to say that the Director’s decision is wrong in law, or Wednesbury ureasonable.

11. The leave application is thus refused.”

3.The Applicant appealed against the decision of Au J.  Though the court has written to draw her attention to BI v Director of Immigration [2016] 2 HKLRD 520, CACV 9 of 2015, she told us at the hearing that she did not receive the letter. We therefore gave her time to put in supplemental written submissions on that authority. She lodged her supplemental submissions on 6 June 2016. We read and considered the same. We now give our judgment in the appeal.

4.The Applicant is a Nepalese and she married a Hong Kong resident in 2007.  She first came to Hong Kong on 30 May 2009 as the dependant of her husband.

5.Her dependant visa was renewed in 2010 up to 30 May 2013.

6.Though they have not been divorced, her relationship with her husband had deteriorated.  She said she was a victim of abuse by her husband.  She ceased to live with her husband since at least 2011. She presented evidence showing that she had been maintaining herself through working in the hotel and catering industry and had become financially independent. 

7.She had started a restaurant business with some partners since January 2013.

8.When her visa came up for renewal in May 2013, she could not procure the sponsorship of her husband.  By a letter of 20 August 2013, she explained her personal situation to the Immigration Officer.  Her solicitors also made representations on her behalf in a letter of 21 August 2013.

9.On 28 August 2013, the Director refused to renew her dependant visa in these terms:

“ I refer to your application on 30-05-2013 for extension of stay in Hong Kong as a dependant of your spouse RANA, LALIT BAHADUR.

Under existing immigration policy, a person may be allowed to remain in Hong Kong to join his/her spouse already residing here as his/her dependant if it is satisfied, among others, that his/her purpose of taking up residence in Hong Kong is to join his/her spouse as a dependant and that his/her spouse is able to support his/her living at a standard well above the subsistence level.

During the assessment of your application, we were informed that your spouse RANA, LALIT BAHADUR no longer wished to sponsor your stay in Hong Kong. Having considered all the available information and circumstances of your case, we are not satisfied that you have any other eligible sponsor in Hong Kong nor can we find grounds for approving your application exceptionally. Therefore, I regret to inform you that your application is refused.

As your limit of stay expired on 30-05-2013, you are now required to leave Hong Kong on or before 11-09-2013.”

10.The Applicant through her solicitors by a letter of 5 November 2013 provided further information to the Director regarding her finance and tenancy.

11.On 29 November 2013, the Director maintained his decision after considering the additional materials.  The Director further reiterated that her permission to stay in Hong Kong expired on 30 May 2013 and required the Applicant to leave Hong Kong by 13 December 2013.

12.Notwithstanding that, the Applicant remained in Hong Kong.  Her solicitors suggested in a letter of 10 December 2013 that she reserved her right to advance a claim for protection against cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

13.Her solicitors wrote to the Director again on 25 February 2014.  In the letter, her solicitors advanced the argument that it is in the public interest to protect a dependant spouse from mental, physical and sexual abuse and domestic violence.  As the Applicant, according to the solicitor, had to separate from her husband to avoid being further abused mentally, physically and sexually, it is not in the public interest to reject her application for renewal of her dependant visa because of such lack of sponsorship.  The solicitor also emphasized at para 27 of the letter that the Applicant did not ask the Director to consider her application on compassionate and/or humanitarian grounds.  Instead, the solicitor reiterated that “the Director is duty bound to consider the facts and circumstances of the case as a whole on public interest grounds”.

14.She also set out her predicament when she was living with her husband and explained why she had to leave him in a letter of 17 February 2014.  In that letter, she said her husband had threatened to send her back to Nepal and he could cause harm to her there easily.  She thought she would be unsafe if she went back to Nepal.

15.On 26 June 2014, the Director informed the Applicant that he decided to stand by his previous decisions notwithstanding the further information and submissions.  She was told that she should leave Hong Kong by 10 July 2014.

16.In the Form 86, the Applicant challenged the decision of the Director on the basis that it was Wednesbury unreasonable or against the public interest to refuse to renew her dependant visa.  The public interest she identified was the protection of a dependant spouse against mental, physical and or sexual abuse and domestic violence.

17.Having read all the materials in the appeal bundle, we must say we have considerable sympathy with the Applicant.  Apparently, based on the information produced by her, she had suffered at the hands of her spouse and she worked hard to support herself in difficult times.  Despite all the adversity she faced, she was able to start a restaurant business with some partners.  It is no small achievement for a person in her position. 

18.However, we cannot let our sympathy distort our application of the law.  We are bound by our judicial oath to administer justice according to law, not according to our sympathy.

19.The relevant legal principles regarding the administration of the dependant visa policy were set out in the recent decision of this court (another division) in BI v Director of Immigration [2016] 2 HKLRD 520.  The following propositions are relevant in the present context:

(a) Hong Kong has to maintain a restrictive and stringent immigration policy;

(b) The making of immigration policy and the administration of such policy is in the hands of the Government and the Director of Immigration, not the court;

(c) The Director has a wide discretion in immigration matters;

(d) It is not appropriate for the court to usurp the role of the Director as the court is not equipped with the necessary knowledge and expertise to carry out the responsibility of the Director;

(e) The court will only intervene in respect of the decision of the Director if the Director acted against the principle of legality, the principle of fairness or the principle of rationality in the administration of his immigration policy;

(f) The Dependant Visa policy is one of the several exceptional schemes under which the Director could allow a limited number of persons in different categories to immigrate to Hong Kong.  The other schemes are Employment as Professionals or Entry for Investment under the General Employment Policy, Immigration Arrangements for Non-local Graduates, Employment under the Admission Scheme for Mainland Talents and Professionals, Capital Investment Entrant Scheme and Quality Migrant Admission Scheme;

(g) The Dependant Visa policy is not a general family reunion policy and the key consideration is dependency.  It is a policy allowing an applicant who is genuinely dependent upon the sponsor for maintenance and support to apply for permission to reside in Hong Kong. 

20.At §§105 to 108, the Court of Appeal in BI, supra said:

“ 105. It had been explained in the long line of cases approved by the Court of Appeal in Safder Tehseen v Permanent Secretary of Security that the courts are not equipped to exercise immigration control in place of the Director.  This court should take this opportunity to reiterate categorically and firmly that as a matter of Hong Kong law the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director.

106. Arguments in courts in cases of this nature usually concentrated on the personal and family situations of the applicants.  However, in terms of immigration control, there are many socio-economic as well as security factors which the courts cannot even begin to grapple.  It would also involve consideration of the long term population strategy for Hong Kong.  On the facts of a particular case, it can be tempting for a judge to find the personal or family situation of an applicant deserving of sympathy and conclude that the application should be accorded with exceptional treatment.  A judge succumbing to such temptation would, in effect, usurp the role of the Director in the administration of immigration control and inevitably make a decision at the risk of placing priority on the personal and family situation of an applicant over other highly relevant factors with which the court is not familiar and not in a position to assess properly.  As such, it is against proposition (2) set out in [92] above.  

107. In our judgment, the court should acknowledge that immigration control involves decisions of high political as well as socio-economic contents which should be accorded with a broad margin of discretion in accordance with well established principles of judicial review.  In R v Immigration Appeal Tribunal ex parte Singh, Lord Bridge also accepted this proposition.  

108. In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration, we would not rule out completely the possibility of mounting a judicial review based on irrationality (or Wednesbury unreasonableness).  However the courts must have regard to the wide discretion of the Director in assessing the merits of such a challenge and humanitarian consideration is only relevant in the context of whether an applicant merits exceptional treatment against a policy of stringent immigration control.”

21.There is no doubt that the Director was correct in rejecting the Applicant’s application for renewal of dependant visa when she could not put forward evidence of dependency.  Actually, according to her evidence, she was no longer a dependant of her spouse in 2013.  The fact that she was genuinely married to the spouse was neither here nor there if dependency ceased.

22.The Applicant submitted her case was different from BI and BH since she, unlike them, had been a Hong Kong resident from 2009 to 2013. However, she was only a non-permanent resident and as at May 2013 (when her visa status became due for renewal) she had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years to enable her to apply for permanent resident status under Article 24(4) of the Basic Law.

23.Further, because of the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance, as explained in BI v Director of Immigration, supra, para 91(5) and (6), Art 39 of the Basic Law and the Hong Kong Bill of Rights cannot afford her any valid objection to the refusal of the Director to renew her visa. 

24.Properly understood, the Dependant Visa policy is a policy of limited scope.  One may even say that compared with other parts of the world it is a very narrow one; nonetheless it is the policy which the Director has adopted for Hong Kong and, as explained in BI, supra, it is not for this court to tell the Director that he should adopt another policy.  In this connection, the citation of the English case of R (on the application of Balakoohi) v Secretary of State of the Home Department [2012] EWHC 1439 (Admin) cannot assist the Applicant because Hong Kong’s immigration policy is different from that adopted in England in this respect.  We do not have the equivalent of the English policy as set out in their Immigration Directorate’s Instructions on Family Members Victims of Domestic Violence and Immigration Rules HC 395 referred to in that case. 

25.Our immigration policy has an element of flexibility in terms of exceptional humanitarian considerations, see BI, supra, at §92(8):

“ (8) When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so. If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration. In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.”

26.However, in the present case, the solicitor for the Applicant had categorically disavowed any reliance on humanitarian grounds.

27.In any event, it is clear from the correspondence that the Director had examined the matter from the humanitarian angle and come to the view there was insufficient grounds for approving her application exceptionally.

28.In her supplemental submissions of 6 June 2016, the Applicant also referred to the protection against torture or cruel, inhuman or degrading treatment or punishment as explained by the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743. But she had not made any application for CAT or USM screening and there is no evidence of risk of torture or cruel, inhuman or degrading treatment or punishment if she is to be removed and sent back to Nepal. Her bare and general assertion of fear of harm from her husband is mere conjecture, unsupported by any specific information. In any event, it is not a ground for the renewal of dependant visa, which is the subject matter of her application for judicial review.   

29.As regards the argument of public interest advanced by the solicitor in correspondence, we cannot understand how the argument can get off the ground.  Whilst it is no doubt correct that the law should protect persons against spousal abuse, it by no means follows that the Director should be obliged to renew a dependant visa to a person subject to spousal abuse.  The necessary protection is available in terms of our criminal law and civil remedies against domestic violence and other spousal abuse.  It is in the public interest that as far as Hong Kong is concerned immigration control has to be stringent.  A victim of spousal abuse has no priority over other applicants for immigration to Hong Kong.

30.With proper appreciation of the overall immigration policy adopted by the Director and the nature of the Dependant Visa policy, there is no basis for suggesting that the Director’s decision is Wednesbury unreasonable or otherwise unlawful.

31.Au J was correct in refusing leave and we have no ground to disturb his decision.

32.For these reasons, notwithstanding our sympathy for the Applicant, we must dismiss the appeal. 

THE APPLICANT APPEARING IN PERSON