Rai Ranju v. Director of Immigration

HCAL 1021/2020

[2020] HKCFI 1632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1021 OF 2020

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.In this application for leave to apply for judicial review, the Applicant seeks to challenge the “Decisions dated 13.02.2018 and 22.04.2020” made by the Director of Immigration.  The Applicants has failed to state the relief sought or the grounds on which relief is sought in her Form 86 dated 19 May 2020, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.  These requirements are mandatory.  On this ground alone, the application for leave to apply for judicial review stands to be dismissed.  For the sake of completeness, I shall briefly deal with the merits of the application, having received the Director’s Initial Response dated 15 July 2020.

BASIC FACTS

2.The Applicant is an Indian national born on 13 June 1991.  She was granted permissions to work as a foreign domestic helper (“FDH”) in Hong Kong for two employers under different employment contracts from 20 January 2013 till 16 July 2019.

3.On 2 April 2017, the Applicant and Mr Rana, a Hong Kong permanent resident, registered their marriage in Hong Kong.  On 25 April 2017, the Applicant applied for permission to reside in Hong Kong as Mr Rana’s dependant (“the Dependant Visa Application”).

4.Under the Director’s Dependant Visa Policy, one of the eligibility criteria for the grant of a dependant visa is that there must be reasonable proof of a genuine relationship between the applicant and the sponsor.

5.For the purpose of assessing the Dependant Visa Application, officers of the Immigration Department conducted two field visits to the Applicant and Mr Rana’s reported matrimonial home on 17 October 2017 and 7 November 2017 respectively, but neither of them was present in the reported premises on the two occasions.  On 6 February 2018, they were interviewed separately by officer(s) of the Immigration Department.  After consideration of the available information and the circumstances of the case, including, inter alia, (i) major and obvious discrepancies in their answers to the same queries regarding their personal belongings and their recent common activities, and (ii) the absence of any reasonable explanation for the discrepancies, the Director refused the Dependant Visa Application as he was not satisfied that the alleged matrimonial relationship between the Applicant and Mr Rana was genuine.  The discrepancies in the answers given by the Applicant and Mr Rana are fully set out in the Immigration Department’s internal minute (M.5), which I do not propose to repeat in this decision.  A refusal letter dated 13 February 2018 was issued by the Immigration Department to the Applicant (“the First Decision”).

6.On 31 May 2019, the Immigration Department received a request from the Applicant’s former legal representatives (Mohnani & Associates) for reconsideration of the Dependant Visa Application.  The Director found no reason or justification for reversing the original decision, and rejected the said request by a letter dated 9 July 2019.

7.On 16 July 2019, the Applicant submitted a new application for entry for employment as a FDH for a third employer.  The application was refused on the ground that she did not meet the normal immigration requirements.  In particular, the Director considered that the bona fides of the Applicant to work in Hong Kong as a FDH was in doubt.  She was required to leave Hong Kong on or before 16 August 2019.

8.On 12 August 2019, the Immigration Department received a second request from Mohnani & Associates for reconsideration of the Dependant Visa Application.  Further submissions and supporting documents were received from Mohnani & Associates by way of letters dated 23 September 2019 and 21 October 2019 respectively.

9.On 9 January 2020, two field visits were conducted by officers of the Immigration Department to the Applicant and Mr Rana’s reported matrimonial home.  Only the Applicant was located during the first visit, and both the Applicant and Mr Rana were located during the second visit.  They were interviewed separately.  After consideration, the Director found no reason or justification for reversing the original decision.  A refusal letter dated 22 April 2020 was issued by the Immigration Department to the Applicant (“the Second Decision”).

10.The Second Decision was reached based on the available information and circumstances of the case, including, inter alia, (i) in the interview conducted on 9 January 2020, there were discrepancies in the answers of the Applicant and Mr Rana in relation to, amongst other matters, the date of birth of the Applicant, the number of times they had meals together in the past 2 days, and the religion of the Applicant, (ii) the new information submitted in support of the reconsideration request was prepared after the date of the original decision (for instance, the bank statements of the Applicant and Mr Rana’s joint bank account were from March 2018 onwards, which were considered as having little weight in support of the reconsideration request), and (iii) the new information did not outweigh the factors leading to the original decision on a balance of probabilities.  The Immigration Department’s deliberation of the reconsideration request is set out in the department’s internal minute (M.9), which I do not propose to repeat in this decision.

DISCUSSION

11.As earlier mentioned, the Applicant has failed to state any ground of judicial review in her Form 86.  In her affidavit filed on 19 May 2020 in support of the application, she merely states the following:

“I want to judicial review the decisions of Extension Section of Director of Immigration in refusing my change of status and extension of stay applications. Their decisions dated 13.02.2018 and 22.04.2020 not to grant me change of status and extension of stay are UNFAIR and UNREASONABLE.”

12.A bare assertion that a decision sought to be challenged is unfair and unreasonable is plainly not sufficient to give rise to any arguable ground of judicial review.

13.The eligibility criterion of reasonable proof of a genuine relationship between the applicant and his/her sponsor under the Director’s Dependant Visa Policy is well established.  It is for the Director to assess whether, in any given case, the applicant has produced sufficient proof of a genuine relationship with his/her sponsor.  The court should not interfere with the Director’s assessment on this issue unless it is unreasonable in the Wednesbury sense.  Having read and considered the Immigration Department’s internal minutes (M.5 and M.9), I do not consider the Director’s assessment that the Applicant had failed to produce reasonable proof of a genuine relationship with Mr Rana to be unreasonable in the Wednesbury sense.  The Director’s decisions are lawful, and there is no basis to attack them on procedural unfairness ground.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

14.Also, the Applicant has failed to make the application for leave to apply for judicial review promptly and in any event within three months from the date when grounds (if any) for the application first arose.  In relation to the First Decision made on 13 February 2018, it is obvious that there has been substantial delay in seeking leave to apply for judicial review.  In relation to the Second Decision made on 22 April 2020, generally speaking, an applicant cannot get around or avoid the time requirement by asking the decision-maker to “reconsider” his original decision (see Nisa Azizan v Director of Immigration, HCAL 203/2015, 15 April 2016, at [28]-[36]).  In my view, the Applicant should be regarded as having failed to apply for leave to apply for judicial review of the Second Decision promptly.

15.Having regard to my view that the intended application for judicial review has no merits, there would plainly be no good reason to extend the period for the Applicant to make the present application for leave to apply for judicial review.

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 Sylvia Lee, GC and Ms Angel Zhi, GC of the Department of Justice, for the Putative Respondent