Mudassar Ijaz Alias Muhammad Afzal v. Director of Immigration

HCAL 1796/2020

[2020] HKCFI 3017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1796 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 (“the Director”) dated 17 June 2020 refusing to grant a dependant visa to the Applicant.

BASIC FACTS

2.The Applicant is a Pakistani national born on 7 June 1968.

3.On 9 September 1992, the Applicant came to Hong Kong using the identity of Mudassar IJAZ, and was permitted to remain as a visitor until 9 December 1992.  He was arrested by the Police on 19 October 1996 and was charged with the offences of theft and breach of condition of stay.  He was convicted of those 2 offences and sentenced to 3 months’ imprisonment on 23 October 1996.  He was repatriated to Pakistan under a removal order on 11 January 1997.

4.On 25 May 2008, the Applicant came to Hong Kong again as a visitor, this time using the identity of Afzal MUHAMMAD (“ID 2”). He overstayed in Hong Kong and was arrested by the Police on 29 December 2008.  Upon enquiry, the Applicant admitted that he had used false particulars to apply for a Pakistani passport under ID2 in Pakistan.  On 7 January 2009, the Applicant was convicted of the offence of making a false representation to an immigrant assistant and was sentenced to 6 months’ imprisonment.  On 28 April 2009, the Applicant was discharged from prison.  On 5 June 2009, a removal order was issued against the Applicant.

5.On 3 July 2013, the Applicant married Ms Bibi Maryam, who acquired the right to land in Hong Kong according to s 2AAA of the Immigration Ordinance on 16 October 2012.  She acquired the Hong Kong permanent resident status on 29 November 2019.

6.In July 2013, the Applicant applied for a dependant visa with his wife as sponsor.

7.Under the Director’s Dependant Policy, an applicant for a dependant visa must satisfy certain eligibility criteria, including the requirement that there is no known record to the detriment of the applicant (“the No Known Record Requirement”), and other normal immigration requirements (including being of clear criminal record and raising no security or criminal concerns to Hong Kong).

8.The aforesaid application for a dependant visa was refused by the Director in January 2016 on the ground that he failed to meet the No Known Record Requirement and other normal immigration requirements.

9.On 30 May 2019, the Immigration Department received another application for a dependant visa from the Applicant with his wife as sponsor.  On 17 June 2020, the Director refused the application on the same ground as in the Applicant’s previous application.  The Director also considered that there was no strong compassionate or humanitarian reasons or other special extenuating grounds which would warrant the Director exercising his discretion to depart from the Dependant Policy.

10.On 9 September 2020, the Applicant made the present application for leave to apply for judicial review of the Director’s decision dated 17 June 2020.

11.In view of the Applicant’s request for an oral hearing of the leave application, an ex parte hearing was scheduled to be held on 1 December 2020.  The court also directed that attendance of the Director at the hearing was not required.

12.The Applicant’s application for legal aid for the purpose of the present proceedings was refused by the Director of Legal Aid on 17 November 2020.  Shortly before the hearing on 1 December 2020, the Applicant (through solicitors) requested for an adjournment of the present hearing on the ground that he had a pending appeal against the decision of the Director of Legal Aid to refuse to grant him legal aid.  The request for adjournment was refused by the court.  Generally speaking, the fact that there is a legal aid appeal pending determination is not of itself a sufficient reason to adjourn the hearing of a cause or matter in respect of which legal aid is sought. 

DISCUSSION

13.Attached to the Applicant’s Affirmation dated 9 September 2020 is a document entitled “Grounds on which Relief is Sought”, in which the following is stated:

“(I) The respondent’s decision to refuse the applicant’s application were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(II) The respondent has unlawfully [fettered] his discretion by refusing the application on the grounds that they didn’t satisfy with the requirements.

(III) The respondent failed to meet the greater care and duty [owed] to a self-represented … applicant.

(IV) The Director of Immigration acted in a procedurally unfair manner in dealing with the applicant’s application to get a dependant visa.

(V) In refusing the applicant’s application, there is no indication that the Director of Immigration interacted with the facts of applicant’s application.”

14.The grounds of judicial review raised by the Applicant are general, with no particulars in support.  The Director’s Dependant Policy is well recognized, and has been upheld by the courts in many previous cases.  In particular, it is now clear that the No Known Record Requirement and the normal immigration requirements are in the nature of eligibility criteria for a dependant visa (see BI v Director of Immigration [2016] 2 HKLRD 520; H v Director of Immigration, FAMV 415/2019, 12 November 2020).  The Director was entitled to refuse the Applicant’s application for a dependant visa on the ground that he failed to meet the eligibility criteria for a dependant visa.  There is no principle of law which requires the Director to exercise any special care or duty towards a “self-represented” person.  There is also no basis to contend that the Director had not considered the Applicant’s personal or factual circumstances in making his decision.  The Immigration Department’s detailed consideration of the Applicant’s application, including his personal and family circumstances, can be found in its internal file minute (M.4) which it is not necessary to set out in this decision.

15.The Applicant attended the hearing on 1 December 2020 in person.  At the hearing, the Applicant explained that he had two names or identities because, according to him, his life would be in danger if he were to return to his home country.  By way of background, I should mention that the Applicant, upon his discharge from prison in 2009, made a torture claim which was rejected by the Director in 2014.  He then raised a non-refoulement claim on other grounds which was rejected by the Director in June 2016 and July 2017.  His appeal to the TCAB was dismissed in January 2018, and his application for leave to apply for judicial review of the TCAB’s decision in HCAL 322/2018 was dismissed by Deputy High Court Judge Bruno Chan on 8 October 2019.  His latest application for an extension of time to appeal the order of the Judge was rejected on 2 November 2020.  The Applicant’s submissions at the hearing on 1 December 2020 does not raise any further points of substance in support of the present application.

16.In all, I do not see any ground on which the Director’s exercise of discretion to refuse to grant a dependant visa to the Applicant may be challenged on public law grounds.  The intended application for leave to apply for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

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

The Applicant acting in person