Limbu Dal Bahadur v. Director of Immigration

HCAL 755/2020

[2020] HKCFI 2211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 755 OF 2020

________________________

________________________

___________________

D E C I S I O N

___________________

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.

BASIC FACTS

2.The Applicant is a Nepalese national born in Nepal on 1 July 1977.  On 14 February 2011, he married Ms RAI, Sita, a Hong Kong permanent resident, in Nepal.

3.The Applicant applied to enter Hong Kong to join Ms RAI as her dependant. The application was approved, and the Applicant was granted permission to enter and remain in Hong Kong as a dependant of Ms RAI.  He entered Hong Kong on 25 August 2011, and his limit of stay was last extended to 25 August 2015.

4.On 20 April 2015, Ms RAI passed away in Nepal.

5.On 6 August 2015, the Applicant applied for extension of stay in Hong Kong on his own merits.  On 30 December 2015, the Director refused the application (“the 2015 Decision”), on the ground that the Applicant was no longer eligible to remain in Hong Kong on dependant status, and there were no strong extenuating grounds justifying exceptional consideration of his case.

6.On 7 January 2016, the Applicant requested for reconsideration of the 2015 Decision.  On 22 August 2016, the Director found no reason or justification to reverse the earlier decision and maintained the 2015 Decision (“the 2016 Decision”).

7.On 29 August 2016, pursuant to s 53 of the Immigration Ordinance, Cap 115, the Applicant, through his legal representatives, lodged an objection against the 2015 Decision (“the Section 53 Objection”).

8.On 28 August 2018, the Application applied for Verification of Eligibility for Permanent Identity Card (“the VEPIC Application”).

9.On 3 March 2020, the Secretary for Security informed the Applicant’s legal representatives that the Section 53 Objection had been considered by the Chief Executive in Council, and the Chief Executive ordered that the 2015 Decision should be confirmed.

10.On 30 March 2020, the Director refused the VEPIC Application.  On 9 April 2020, the Applicant applied for a Hong Kong Permanent Identity Card (“the HKPIC Application”), which was refused on the same day.  On 15 April 2020, the Applicant lodged an appeal to the Registration of Persons Tribunal against the refusal of his HKPIC Application.

11.On 16 April 2020, the Application requested for an extension of stay in Hong Kong (“the 2020 Application”) on the ground that he had lodged an appeal to the Registration of Persons Tribunal and all flights to Nepal had been suspended till 30 April 2020.  On the same day, the Director refused the 2020 Application (“the 2020 Decision”).  The Immigration Department’s internal deliberation of the 2020 Application can be found in File Minute (M.63), the relevant parts of which state as follows:

“Consideration

[4] Applicant’s permission to remain in Hong Kong as a dependant was last granted till 25-08-2015. His application for extension of stay and the reconsideration request were refused on 30-12-2015 and 22-08-2016 respectively. He has no valid permission to remain in Hong Kong since the expiry of his limit of stay on 26-08-2015. Though Applicant has lodged an appeal to the Tribunal against the decision on the refusal to issue a HKPIC pursuant to section 3D of the Registration of Persons Ordinance, Cap. 177 (‘Ordinance’), there is no indication that he is required to be present in Hong Kong pending the decision of his appeal, or that his departure from Hong Kong would jeopardize the consideration or processing of his appeal.

[5] Pursuant to section 3D(7) of the Ordinance, it specifically provides that the lodging of an appeal does not give the appellant a right to remain in Hong Kong pending the decision of the Tribunal…

The mere lodging of an appeal under section 3D of the Ordinance would not impose on the Director of Immigration a statutory duty to permit the appellant’s request for extension of stay in Hong Kong.

Recommendation

[6] Having considered all available information and circumstances of the case including that there is no indication that he is required to be present in Hong Kong pending the decision of his appeal or that his departure from Hong Kong would jeopardize the consideration or processing of his appeal, that section 3D(7) of the Ordinance provides that the appeal lodged by Applicant does not give him a right to remain in Hong Kong pending the decision of his appeal, and that there is no extenuating / humanitarian ground justifying his extension of stay in Hong Kong, I recommend refusing Applicant’s request for an extension of stay and requiring him to depart from Hong Kong on or before 04-05-2020…”

12.On 23 April 2020, the Applicant made the present application for leave to apply for judicial review.

DISCUSSION

13.In his Form 86, the Applicant did not state the relief sought, or any ground on which relief was sought.  In his Affirmation dated 23 April 2020, the Applicant stated the following:

“The Director of Immigration, Hong Kong, refused my application for extension of stay. So I pray for grant of leave for judicial review against the Director of Immigration, Hong Kong…”

14.Attached to the Applicant’s affirmation is a document entitled “Statement”, in which the following is stated:

“[2] I am a Nepalese National born in Nepal on 1^st July, 1977.

[3] I married to my deceased wife in Nepal on 14 February, 2011 and came to Hong Kong on 25 August 2011 as a dependent spouse to join my late wife.

[4] My permission of last stay under my late wife’s sponsorship was until 25 August 2015. My wife passed away on 20 April 2015 in Nepal. As my spouse was no more my application was accepted on the basis of my own merit. Information to support my application were submitted corresponding to the letter of the Director of Immigration.

[5] With my coming to Hong Kong and spending comfortable conjugal life days were easy and worry free. But with the demise of my wife, days started becoming harder. I had a great hope that the Director of Immigration would consider my extension on a humanitarian and compassionate ground which could have releaved me as [I] was deadly hurt from my wife’s death.

[6] But it was so disappointing that the Director of Immigration finally refused my extension of stay application subsequently.

[7] Even though the extension of stay was not considered I am given the permission to live here until today. I have not breached any rules and conditions during my stay now almost for nine years and with that I had applied for Right of Abode in Hong Kong.

[8] The application for Right of Abode also was refused by the Director of Immigration 09 April, 2020.

[9] My appeal application was also turned down by the Chief Secretary for Administration on 03 March 2020 regarding the refusal of my extension of stay by the Director of Immigration.

[10] My appeal to Legal Aid and Immigration tribunal are on process but the Immigration has given me the departure letter to depart on or before 04 May, 2020.

I am still maintaining well with my income and not facing any financial hardship. So I pray the Honour High Court to allow me for the judicial review on my refusals to grant me the extension of stay and disapproval of Right of Above in Hong Kong. The above information are true to the best of my knowledge and belief.”

15.Generally speaking, 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 or Statement gives rise to any such ground.

16.The fact that the Applicant has an outstanding appeal to the Registration of Persons Tribunal is not a ground for him to be permitted to remain in Hong Kong.  Under s 3D(7) of the Registration of Persons Ordinance, Cap 177, the service of a written notice of appeal under subsection (3) does not give the person by whom or on whose behalf it is served any right to remain in Hong Kong pending the decision of the Tribunal.  The fact that the Applicant may have an outstanding legal aid appeal is also no ground for him to be permitted to remain in Hong Kong.

17.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.  There is no material before the court to support any contention that the 2020 Decision is irrational, or unreasonable in the public law sense.

18.Finally, 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, 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, having regard to the well-established stringent immigration policy in Hong Kong adopted by him, was entitled to refuse the 2020 Application in the exercise of the discretion conferred on him by law.

19.Overall, there is no legally valid basis for the Applicant to challenge the 2020 Decision, or any of his earlier decisions to refuse to grant to the Applicant an extension of stay, by way of judicial review.

DISPOSITION

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

The Applicant acting in person

Mr Lilian Tang, Government Counsel, of the Department of Justice, for the Putative Respondent