Sambahamphe, Prakash and Others v. Director of Immigration

HCAL 429/2020

[2020] HKCFI 1941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 429 OF 2020

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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 dated 3 March 2020 refusing the Applicants’ applications for extension of stay in Hong Kong as dependants of their stepmother.

BACKGROUND FACTS

2.The 1^st, 2^nd and 3^rd Applicants are Nepalese nationals born in Nepal on 10 December 1992, 31 July 1994 and 26 December 1995, and are now 27, 26, and 24 years of age respectively.  Their natural parents were reported to be Mr Sambahamphe, Randhoj (“F”) and Ms Phul Maya Limbu, who passed away on 3 September 2003.  F married Ms Limbu Bal Kumari (“Ms Limbu”) in Nepal on 7 March 2006.

3.In March 2010 and June 2011, the Immigration Department (“ImmD”) received the Applicants’ applications for entry for residence in Hong Kong as dependants of Ms Limbu.  Their applications were refused on 9 May 2014 as the Director was not satisfied that they were dependants of Ms Limbu and they were coming to Hong Kong to join Ms Limbu as her dependants.  In June 2014, the Applicants requested for reconsideration of their applications (“the Reconsideration Application”).  Upon reconsideration, the Director approved the Applicants’ applications on 31 March 2015.  On 9 May 2015, the Applicants entered Hong Kong and were permitted to remain as dependants of Ms Limbu until 9 May 2016.

4.On 18 April 2016, the Applicants submitted applications for extension of stay (“the First Extension Applications”). In the applications, Ms Limbu declared that she was willing to sponsor the Applicants’ applications.  On 27 April 2016, the Director granted to each of the Applicants an extension of stay until 9 May 2019.

5.By a letter dated 9 January 2017, Ms Limbu informed ImmD for the first time that she had divorced F and the Applicants were no longer her dependants.  In that letter, Ms Limbu stated as follows:

“I … would like to inform your department that since I have divorced with [F] and do not take any responsibility for the children any more and I do not have any bearings and any relationship with them and the father himself.

The children … are no more dependent of mine.

I hope your department will understand the situation and treat as such …”

6.It subsequently transpired that the divorce took place on 21 January 2014, although that fact was not disclosed to the Director at the time of the Reconsideration Application made in June 2014 or the First Extension Applications made in April 2016.

7.On 18 April 2019, the Applicants submitted another round of applications for extension of stay (“the Subject Applications”).  Ms Limbu declared in the “Declaration of Sponsor” that she was willing to sponsor the Applicants in relation to their applications.  On 23 April 2019, the Applicants and Ms Limbu, through Lakshmi & Laxmi Litigation & Immigration Consultants (“the Consultant”), submitted letters to ImmD stating, inter alia, that Ms Limbu was willing to continue to act as the Applicants’ sponsor.  On 3 May 2019, the Consultant sent a further letter to ImmD stating, inter alia, that Ms Limbu and the Applicants had a strong bond, and she was responsible for their maintenance, care and support, both emotionally and financially, and the Applicants had stable employment in the construction industry as construction skilled workers since 2015.

8.By a letter dated 3 March 2020, ImmD informed the Applicants that the Subject Applications were refused (“the Decision”). In that letter, the following was stated:

“Under the existing immigration policy, a person may be allowed to remain in the HKSAR as a dependant provided that, amongst other things, he/she has an eligible sponsor in the HKSAR. An application for extension of stay is not granted automatically but only when the Director of Immigration is satisfied that circumstances have not changed since the original approval for residence was granted.

You were previously approved to remain in HKSAR as a dependant of Ms. LIMBU BAL KUMARI (‘Ms. LIMBU’).  Since there is a substantial change in circumstances that Ms. LIMBU had divorced your natural father, Mr. SAMBAHAMPHE, RANDHOJ, the step-parent and step-children relationship between Ms. LIMBU and you no longer exists.  You are no longer eligible to remain in the HKSAR on dependant status.  Based on the available information, we do not find strong extenuating grounds justifying our exceptional consideration of your cases. Your applications for extension of stay are therefore refused.”

9.ImmD’s deliberation and assessment of the Subject Applications can be found in its internal file minute (M17), the relevant parts of which state as follows:

“6. In 04/2019, AP1 to AP3 submitted extension of stay applications under the sponsorship of Ms. LIMBU. Ms. LIMBU declared at ID481A that she was willing to sponsor AP1 to AP3 as her dependants, at encl. (2). Besides, divorce document between Ms. LIMBU and Mr. SAMBAHAMPHE was furnished certifying that their marriage was dissolved on 21-01-2014 in Nepal at encl. (9).

7. Applicants revealed in L/R’s letter at encl. (6) that they have secured employment as a construction worker. AP1 has a balance of HK$77 in his local bank account as at 27-03-2019 while AP2 has a balance of HK$1,838 as at 21-05-2018, at encl. (8²) and (8³) respectively.

8. Applicants also reported that they were living with Mr. SAMBAHAMPHE in a rental flat in Jordan with monthly rental fee of HK$9,500. The tenancy agreement under the name of Mr. SAMBAHAMPHE as tenant good till 31-10-2020 was submitted at encl. (7).

9. Upon record check, AP1 to AP3 and Ms. LIMBU did not disclose the information that Ms. LIMBU had divorced Mr. SAMBAHAMPHE on 21-01-2014 when they made the Reconsideration Request in 06/2014 and submitted their E/S applications in 04/2016 respectively. The case was thus referred to GIS for further investigation on AP1’s to AP3’s and Ms. LIMBU’s suspected offences of making false representation on their parental relationship under ref. INGI-2335-19 which was still underway.

Consideration and Recommendation

10. Considering Ms. LIMBU had divorced Mr. SAMBAHAMPHE on 21-01-2014 and the step-mother and step-children relationship between Ms. LIMBU and AP1 to AP3 no longer exists, the absence of eligible sponsorship has rendered the current applications outside the prevailing dependant visa policy. With reference to DoJ’s memo at encl. (12), DoJ’s feedback was positive on our intended refusal of extension of stay applications.

11. It is noted that AP1 to AP3 have secured employment in Hong Kong, but self-sustainability is not an extenuating ground warranting a decision departing from prevailing policy. AP1 to AP3 are not eligible to remain in Hong Kong for employment under the General Employment Policy as the said Policy is not applicable to nationals of Nepal.

12.  Having considered all the available information and circumstances of the case, there is no indication of extenuating ground which may warrant exceptional consideration. I therefore recommend refusing the current applications. Draft refusal letter is prepared at float for your perusal.”

APPLICATION FOR JUDICIAL REVIEW

10.On 16 March 2020, the Applicants made the present application for leave to apply for judicial review of the Decision. The Applicants did not state the relief sought, or any ground on which relief is sought, in the Form 86, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court (Cap 4A).

11.In the Applicants’ joint affirmation dated 16 March 2020, the following was stated:

“Our extension of stay application(s) are refused by the Director of Immigration. We are [of] the view that the said decision is Wednesbury unreasonable and we request for review [of] the Director’s decision”.

12.In a document entitled “Grounds on which relief is sought” attached to the Applicants’ joint affirmation, the following is stated:

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

(1) the Respondent had unlawfully fettered his discretion by refusing the extension of stay applications submitted by the Applicants for the extension without providing any reasonable or detailed reasoning;

(2) the Respondent acted in a procedurally unfair manner in causing an unsubstantiated delay in reaching a decision dated 3^rd March 2020 for their request for extension of stay applications;

(3) the Respondent’s decision to refuse the Applicant’s applications for extension of stay for their mother’s dependants are in breach of the rights enjoyed by the Applicants under the Basic Law of Hong Kong;

(4) the Respondent has acted unfairly by fettering their discretion by not offering a detailed reasoning on why the extension of stay application has been refused. The Respondent has simply provided a standard reply which is not beneficial to a lay person like the Applicant;

(5) the decisions of the Respondent is tainted by bias on his part which involves unfair discrimination against the Applicant. The vice exists where the discrimination is partial and unequal in the sense that … it is not founded upon any rational distinction between other classes of the extension of stay application. There has been unprecedented delay of 19 months by the Respondent;

(6) the Applicant verily believe that the Respondent is irrational, not justified, unreasonable, biased and totally wrong.  Therefore, the Applicant craves leave from the Honorable Court to apply for judicial review against the Respondent’s decision.”

13.At the hearing on 4 August 2020, the Applicants emphasised that the divorce between their father and Ms Limbu did not change their relationship with their stepmother, and they still loved each other.

DISCUSSION

14.The Director maintains a policy (“the Dependant Policy”) under which he has a discretion to grant permission to a person to remain in Hong Kong as a dependant of a Hong Kong permanent resident (sponsor) upon individual assessment.  Under the Dependant Policy (version 4/2009), a Hong Kong permanent resident may sponsor the following dependants to join him/her for residence in Hong Kong:

(1) his/her spouse;

(2) his/her unmarried dependant child under the age of 18; and

(3) his/her parent aged 60 or above.

15.After being admitted as a dependant under the Dependant Policy, such person is required to apply for extension of stay from time to time prior to the expiry of his/her limit of stay if he/she wishes to continue to stay in Hong Kong as a dependant of the sponsor.  Such application will only be considered where the Director is satisfied that the circumstances upon which the applicant acquired his/her current immigration status have remained unchanged.  The relevant policy of the Director relating to an application for extension of stay of a dependant states as follows:

“In general, non-permanent residents (other than foreign domestic helpers, imported workers, Mainland residents admitted as student, entrants admitted under the Admission Scheme for Mainland Talents and Professionals, Capital Investment Entrant Scheme, Quality Migrant Admission Scheme and Immigration Arrangements for Non-local Graduates, and their dependants) may apply for extension of stay in the HKSAR within 4 weeks before their limit of stay expires. Such applications will be considered only where it is satisfied that the circumstances upon which the applicant acquired his/her current immigration status remain unchanged.”

16.In the present case, at the time when the Director granted the First Extension Applications, the Director was not aware of the divorce between the F and Ms Limbu and proceeded on the basis that the stepmother and step-children relationship continued to exist between Ms Limbu and the Applicants.  However, by the time of the Subject Applications, the Director became aware of the divorce and that the stepmother and step-children relationship between Ms Limbu and the Applicants had ceased.  In view of the material change of circumstances, the Director was entitled to refuse to extend the Applicants’ stay in Hong Kong as dependants of Ms Limbu.

17.I shall now deal with the various grounds of judicial review raised by the Applicants briefly.

18.In so far as it is alleged that the Director unlawfully fettered his discretion in applying the Dependant Policy to refuse the Subject Applications, it was held by the court in Gurung Deu Kumari v Director of Immigration [2010] 6 HKC 137, at §24 per Andrew Cheung J (as he then was), that “there is no unlawful fettering of the Director’s discretion by his adherence to the established dependent policy.  The 1^st applicant’s case clearly falls outside the established categories.  The need to draw a line (in this case the age of 60) cannot be challenged.  Some line has to be drawn, and any anomalous results are justified by the need for certainty and a workable rule”.  In my view, the Director is entitled to apply his existing policy to consider an application for extension of stay of a dependant, provided that he is prepared to depart from the policy in any case where there exist strong extenuating grounds warranting exceptional consideration.  This was the approach adopted by the Director in relation to the Subject Applications.  I do not consider that the Director unlawfully fettered his discretion in the present case.

19.In so far as it is alleged that the Director failed to give proper reasons for the Decision, it seems to me that ImmD’s letter dated 3 March 2020 accurately and succinctly stated the Director’s reasons for the Decision.  Those reasons, while brief, are adequate in the circumstances (see Pagtama v Director of Immigration, HCAL 13/2014 (12 January 2016), at §227 per Au J (as he then was)).

20.In relation to the allegation of delay, there was a gap of about 10.5 months between the date of the Subject Applications and the date of the Decision.  While the time taken by the Director to make the Decision is substantial, and it would be preferable for the Director to have made the Decision within a shorter period of time, it has not been shown that the Applicants have suffered any prejudice as a result of the delay.  In any event, there would be no purpose in remitting the Subject Applications to the Director for fresh consideration on this ground, since the outcome would be the same absent any material change of circumstances (none has been suggested).

21.In relation to rights under the Basic Law, the Applicants have not identified any relevant right which they can rely upon in support of the Subject Applications.  I am unable to see any right which they can successfully rely upon in the present case.  On the other hand, it is well established that for persons who have no right to enter and remain in Hong Kong, rights under the Basic Law, other than those which are absolute and non-derogable, are subject to the Immigration Reservation and s 11 of the Hong Kong Bill of Rights Ordinance, which provides that “[a]s regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation” (see Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59, at §§26-35 and 41).

22.In relation to the allegation of discrimination, the Applicants have not explained how they have been unlawfully discriminated against.  There is, I consider, no substance in this allegation.

23.Lastly, in relation to the irrationality ground, it is well established that the law confers upon the Director a wide discretion in immigration matters (MA v Director of Immigration, HCAL 10/2010 (6 January 2011), at §97 per Andrew Cheung J (as he then was)). While the exercise of such discretion by the Director is subject to the court’s supervisory jurisdiction in judicial review, a person seeking to challenge an immigration decision made by the Director on the irrationality ground has to overcome a very high threshold (Chan Heung Mui v Director of Immigration, CACV 168/1992 (24 March 1993), at §37 per Litton JA (as he then was)).  It is for the Director, and not the court, to administer the scheme of immigration control in Hong Kong.  The Director’s Decision in this case is not so defiance of logic or contrary to common sense that it can be regarded as unreasonable or irrational.

24.In all, the intended application for judicial review of the Decision is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

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

The Applicants acting in person

Ms Hikki Wong, SGC (Ag), of Department of Justice, for the Putative Respondent