Nasir Afzaal v. Director of Immigration

HCAL 215/2020

[2020] HKCFI 1721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 215 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.This is an application for leave to apply for judicial review of the decision of the Director of Immigration refusing to grant an extension of stay to the Applicant dated 13 January 2020.

BASIC FACTS

2.Under the Director’s Dependant Visa Policy, the spouse of a Hong Kong permanent resident is eligible to apply to enter Hong Kong for residence to join the Hong Kong permanent resident as his/her dependant if, inter alia, (i) there is reasonable proof of a genuine relationship between the Applicant and the sponsor, and (ii) the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.

3.The Applicant is a Pakistani national born on 20 September 1991.  On 17 August 2017, he married Ms M, a Hong Kong permanent resident, in Pakistan.

4.In February 2018, the Applicant applied to enter Hong Kong to join Ms M as her dependant.  The application was approved on the basis of their relationship, and the Applicant was granted permission to enter and remain in Hong Kong as a dependant of Ms M with limit of stay up to 14 July 2019.

5.On 28 June 2019, the Immigration Department received an application from the Applicant for an extension of stay to continue to reside in Hong Kong as a dependant of Ms M.

6.On 4 November 2019, Ms M submitted a letter to the Immigration Department stating that she had separated from the Applicant since 1 November 2019, and would not continue to sponsor the Applicant’s application for an extension of stay in Hong Kong.  As the Applicant could not meet all the eligibility criteria of the Director’s Dependant Visa Policy and there were no strong extenuating grounds justifying exceptional consideration of the Applicant’s case, the application for an extension of stay was refused. The Applicant was notified of the refusal of his application by a letter dated 5 November 2019, and he was required to leave Hong Kong on or before 19 November 2019.

7.On 14 November 2019, the Applicant submitted a new application to the Director for an extension of stay on his own merits (“the Subject Application”).  His reasons for wishing to stay in Hong Kong were as follows:

(1) He was trying to reconcile with Ms M and he would have a lower chance of being able to do so if he were required to leave Hong Kong.

(2) He had a stable job and was able to support his own living and contribute to the expenses of his wife and children (according to the Director, the 2 children are Ms M’s children from her previous marriage).  He would never seek any financial assistance from the Hong Kong Government.

(3) He would not have any social support from his family and friends back in Pakistan and would face great financial and social hardship if he were to return to Pakistan.

8.On 19 November 2019, the Immigration Department requested the Applicant to provide, by 3 December 2019, (i) a written declaration regarding his current relationship or situation with Ms M, and (ii) any document in support of exceptional consideration of his application.  Upon his request, the Immigration Department granted the Applicant an extension of time up to 17 December 2019 to provide the documents sought.

9.By a letter dated 20 December 2019, the Applicant informed the Immigration Department that he was still trying to reconcile with Ms M.  No other document was submitted to the Immigration Department.

10.On 13 January 2020, the Director decided to refuse the Subject Application (“the Decision”).  In the Immigration Department’s internal file minute (M.1) setting out the deliberation of the Subject Application, the following was stated:

“10. As the case stands, Applicant lost the continual sponsorship from Sp(W) which rendered the current application falling outside the prevailing dependant visa policy. No other eligible sponsor was quoted. Though the Applicant claimed to be in the course of reconciliation with Sp(W), reasonable time of around two months has lapsed but there is still no sign that Applicant could secure continual sponsorship from Sp(W) nor that Sp(W) ever expressed to us her intention to sponsor Applicant again.

11. It is noted that Applicant has secured a job in Hong Kong and is able to support a living himself, but self-sustainability is not an extenuating ground warranting a special consideration departing from the prevailing immigration policy.

12. Applicant is able-bodied adult of Pakistan origin and had lived outside HK for years before he commenced temporary residence in HK as a dependant in 7/2018. Applicant has no reported close family linkage in HK while his family members are living in his home country as he claimed.

13. After considering all the available information and circumstances of this case, I recommended refusing his application as Applicant has lost his sponsorship as a dependant without any eligible sponsors and there is no indication of any extenuating/humanitarian grounds warranting an exceptional consideration…”

11.By a letter dated 13 January 2020, the Director informed the Applicant of the refusal of the Subject Application, and required him to leave Hong Kong on or before 27 January 2020.

12.On 21 January 2020, the Applicant made the present application for leave to apply for judicial review of the Decision.

13.Subsequently, the Applicant made a request to the Director for an extension of stay pending the outcome of the present application.  That request was refused.  In his letter to the Immigration Department dated 24 March 2020, the Applicant stated that he was in the course of applying to divorce Ms M.

DISCUSSION

14.In his Form 86, the Applicant did not state the relief sought, or any ground on which relief was sought.  In his affirmation filed in support of the application, the Applicant merely stated the following:

“The decision taken by the Director of Immigration in relation to my application for extension of stay is not fair because they failed to give me time to reconcile with my wife and they also failed to consider other factors which I stated in my letters. Due to the decision taken by the immigration in such a short time, I will be deprived of my family and won’t be able to play any role in the upbringing of my children.”

15.In my view, the intended application for judicial review is not reasonably arguable and has no realistic prospect of success.

16.Generally, an immigration decision of the Director can only be challenged by way of judicial review on the grounds of illegality, irrationality, or procedural unfairness.  None of the matters stated by the Applicant in his affirmation gives rise to any such ground.

17.In respect of the specific matters raised by the Applicant:

(1) The suggestion that the Director failed to give him time to reconcile with his wife is unsustainable, in that the Decision was made nearly two months after the date of the Subject Application when the Applicant stated that he was trying to reconcile with his wife.  In any event, the Director was under no duty to give the Applicant time to reconcile with his wife.

(2) In respect of other factors relied upon by the Applicant, they were considered by the Director, as set out in M.1.  Anyhow, it is well established that the Director is under no legal duty to consider humanitarian or compassionate grounds when making immigration decisions.  To the extent that the Director decides to take into account such factors (including family matters), the weight to be put on them is also a matter for the Director (Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534 (CA), at §96; BI v Director of Immigration [2016] 2 HKLRD 520 (CA), at §105).  On the facts of this case, the Director, in the exercise of the discretion conferred on him by law and having regard to the well-established stringent immigration policy in Hong Kong adopted by him, was entitled to refuse the Subject Application.  I do not see any legally valid basis for the Applicant to challenge the Decision by way of judicial review.

DISPOSITION

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

The Applicant acting in person

Mr Felix Lee, GC, of the Department of Justice, for the Putative Respondent