Bhullar Jaswinder Kaur v. Director of Immigration

HCAL 2317/2018

[2020] HKCFI 1514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2317 OF 2018

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BETWEEN

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Before:  Hon Chow J in Chambers

Date of Decision:  15 July 2020

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D E C I S I O N

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INTRODUCTION

1.This is an application for judicial review of the decision (“the Decision”) of the Director of Immigration made on 14 September 2018 refusing to grant to the Applicant an extension of stay to take up employment for the post of “General Manager” of Mediworld Health Equipment Limited (“Mediworld”).

BRIEF BACKGROUND FACTS

2.The Applicant is an Indian national.  On 28 November 2012, she submitted an “Application for Entry for Employment as Professionals in Hong Kong” (“the Entry Application”) under the sponsorship of Mediworld.

3.In Mediworld’s “Application for Employing Professionals in Hong Kong” dated 14 November 2012, it was stated that the nature of business of Mediworld was “Import/Export of Health Related and Medical Equipment”.

4.In the Employment Contract dated 14 November 2012 submitted by the Applicant in support of the Entry Application, it was stated that she was employed as the “General Manager - Import/Export” of Mediworld with a basic salary of HK$41,000 per month.  Her duties included, amongst other things:

(1)  “general management of the Company business including trade development, quality compliance of trading products, maintaining standards, product marketing and customer services and relations”;

(2)  “lead and coach the teams to explore new business opportunities and new channels of distribution to expand sales to achieve long term business growth and market development objectives”;

(3)  “develop and implement sales and identify strategies to expand into new product trade categories”;

(4)  “manage multiple trade projects simultaneously and follow the project life cycles from start until end”;

(5)  “overseeing the setting up of offices in Mainland China”; and

(6)  “accountable for the financial performance of the company”.

5.The Entry Application was approved under the Director’s General Employment Policy, and the Applicant was issued with an employment visa dated 16 January 2013.  The Applicant’s husband (Mr Bhullar) and their three children, aged 17, 20 and 25 respectively (“the Children”), were also issued with dependant visas under the Applicant’s sponsorship.

6.On 10 March 2013, the Applicant’s family entered Hong Kong and were granted permission to remain in Hong Kong on employment/dependant status with limit of stay up to 10 March 2014.  Subsequent extensions of stay were granted to them, with limit of stay last extended up to 10 March 2018.

7.However, in the course of an anti-illegal worker operation carried out on 25 April 2017, the Applicant was found washing dishes in a restaurant.  The Applicant was arrested by the police for the suspected offence of breach of condition of stay/taking up unapproved employment.  She was handed over to the Immigration Department for further investigation.  No prosecution was eventually instigated against the Applicant due to insufficiency of evidence.

8.On 13 February 2018, the Applicant and the Children submitted applications for extension of stay in Hong Kong (“the EOS Applications”).    The Immigration Department visited Mediworld’s address twice but could not find any sign that Mediworld was operating at that address.  Separate interviews were conducted on 12 September 2018 with the Applicant and one Mr Singh Mukhtar (the Applicant’s alleged employer) in the presence of their legal representative.  The Immigration Officer who conducted the interview of the Applicant considered that she failed to demonstrate sound knowledge about Mediworld.

9.In the Immigration Department’s internal minute (M.5) detailing the consideration of the EOS Applications, the following was stated:

“Case Development

2. In view of the findings of TFS during the investigation against the suspected offence of BOC (TUUE) of applicant, case has been passed to EVV to conduct surprise field visit at the reported address [submitted by applicant’s L/R at encl. (23)] of the sponsoring company in 6/2018. During the 1^st field visit conducted during normal office hours on 04-07-2018 (Wed), there was no response from inside the office and no signage of the sponsoring company was observed outside the office premises. The staff of the Property Management Office of the building claimed no knowledge about the situation of the tenant of the said office [field visit report at encl. (24)]. During the 2^nd field visit conducted during normal office hours on 14-08-2018 (Tue), there was again no response from inside the office premises and only a signage with the name of the sponsoring company was observed on/next to the entrance of the premises. Another staff of the Property Management Office of the building was interviewed who claimed no knowledge about the situation of the tenant of the said office [field visit report at encl. (25)].

Interview with the applicant and applicant’s employer

3. In order to further assess the employment situation of the applicant, an interview was conducted with the applicant on 12-09-2018 at ES Office. Applicant’s employer Mr. SINGH, MUKHTAR also accompanied with the applicant and was willing to provide statements in support of the current application. Since both applicant and her employer could speak only limited English, the interviews were conducted with the voluntary assistance of applicant’s legal representative who could speak in Punjabi.

Consideration

4. The content of the interviews was summarized at encl. (27). It was observed that applicant failed to demonstrate sound knowledge on the sponsoring company and even the name and address of the sponsoring company were mistaken. While the company was reported to be located in Kwai Chung, applicant said that she went to work by MTR to Wan Chai station. The academic qualification she claimed was different from the academic certificates submitted during the application.

5. The L/R further submitted after the interview that applicant had poor memory due to the sickness and furnished a referral letter of applicant issued by Tsing Yi Cheung Hong General Out Patient Clinic dated 29-08-2018 at encl. (26). It was reported that applicant is suffering from classical migraine associated with RUL numbness during attack and applicant is referred to seek consultation from private physician.

Recommendation

6. After considering all available information, I recommend refusing the current E/S(EM) application as well as the E/S(DE) applications of applicant’s 3 children under ACXR-6754, 6755, 6756-18 on grounds that the bona fides of the applicant to take up the employment with the sponsoring company is not satisfied.”

10.On 14 September 2018, the Director rejected the EOS Applications.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

11.On 23 October 2018, the Applicant filed a Form 86 to challenge the Decision.  In a document attached to the Applicant’s Affirmation dated 23 October 2018 entitled “Grounds on which relief is sought”, the following is stated:

“The Respondent is in breach of procedural fairness in the following parts:

(1) The Respondent had unlawfully fettered her discretion by refusing the Extension of Stay Visa applications submitted by the Applicant without providing any reasonable or detailed reasoning.

(2) The Respondent acted in procedurally unfair manner in causing a unsubstantiated delay in reaching a decision dated 14^th September 2018.

(3) The Respondent’s decision to refuse Applicant’s application for Extension of Stay visas are in breach of the rights enjoyed by the Applicant under the Basic Law of Hong Kong.”

DISCUSSION

12.In respect of Ground (1), there is no basis to contend that the Director has fettered his discretion in refusing to grant the EOS Applications.  In so far as his “reason” for the Decision is concerned, it was stated in the Director’s letter dated 14 September 2018 to the Applicant’s lawyer that the EOS Applications were refused because he was not “satisfied with the bona fides of [the Applicant] to take up employment with the sponsoring company”.  Although the reason given by the Director was brief, it accurately reflected his reason for refusing the EOS Applications, and is, in my view, adequate in the circumstances of this case.

13.In respect of Ground (2), the time lapse between the date of the EOS Applications and the date of the Decision was a little over 7 months.  During that period of time: (i) the Director sent 4 letters to the Applicant in March, April, May and June 2018 requesting her to produce various supporting documents or information, (ii) officers of the Immigration Department visited Mediworld’s address twice in July and August 2018 to carry out investigation, and (iii) separate interviews were conducted with the Applicant and her alleged employer in September 2018, for the purpose of assessing the EOS Applications.  In my view, there is no basis to contend that the Director has been guilty of any delay in assessing the EOS Applications.  There is also no evidence to show that the Applicant has suffered any prejudice as a result of the alleged delay on the part of the Director in assessing the EOS Applications.

14.Lastly, in respect of Ground (3), the Applicant has failed to identify any right under the Basic Law which it is alleged has been interfered with or restricted.  There is no relevant right under the Basic Law that I can see which she could rely upon in support of the EOS Applications.

15.In all, none of the intended grounds of judicial review is reasonably arguable, or has any realistic prospect of success.

DISPOSITION

16.The application for leave to apply for judicial review is dismissed, with no order as to costs.

The Applicant acting in person

Ms Jenny Cheung, Senior Government Counsel (Ag.), of Department of Justice, for the Putative Respondent