Khan Muhammad Kashif v. Director of Immigration

HCAL 2207/2020

[2021] HKCFI 97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2207 OF 2020

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BETWEEN

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Before:  Hon Chow J in Chambers

Date of Decision:  19 January 2021

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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 made on 20 October 2020 refusing to reverse his original decision made on 3 January 2020 refusing the Applicant’s application for extension of stay as a dependant of his brother.

BASIC FACTS

2.The Applicant is a Pakistani national born on 23 August 1997.  He was first granted a dependant visa under the sponsorship of his father on 5 August 2015.  Subsequent extension of stay was granted to the Applicant under the same sponsorship on 12 October 2016 with limit of stay till 14 October 2019.

3.On 11 June 2017, the Applicant’s father passed away.

4.On 10 October 2019, the Immigration Department received an application from the Applicant seeking an extension of stay as a dependant of his brother who was residing in Hong Kong (“the Application”).

5.On 3 January 2020, the Director decided to refuse the Application (“the Original Decision”), which was conveyed to the Applicant by a letter dated 6 January 2020.  In that letter, the following was stated:

“Under the existing immigration policy, a sponsor who is a Hong Kong permanent resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

(a) (i) his/her spouse; or

(ii) the other party to a same-sex civil partnership …

(b) his/her unmarried dependant children under the age of 18; and

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

Based on the available information, we are not satisfied that the above criteria are met and we do not find strong extenuating grounds justifying our exceptional consideration on your case.  Your application for extension of stay and change of sponsor is therefore refused.”

6.The Immigration Department’s detailed consideration of the Application can be found in its internal file minute (M.1), the relevant parts of which state as follows:

“Reasons for Remaining in Hong Kong / Difficulties in Returning to Pakistan

[4] According to encl.(14) and (15), Applicant’s reasons/ difficulties are summarized as follows:-

(i) Applicant has adopted the way of life in Hong Kong;

(ii) Applicant has a stable job and it will be Wednesbury unreasonable to expect him to return back to Pakistan and restart his life again;

(iii) Sp(B) is willing to be the sponsor of Applicant in Hong Kong [also see signed ID481A at encl.(2)];

(iv) Applicant is a law-abiding citizen and has a stable income;

(v) Applicant has never accessed to any public funds during his stay in Hong Kong; and

(vi) Applicant is able to maintain himself well above the standards without relying on public funds.

Employment, Financial, Accommodation and Other Aspects

[5] It was revealed at encl.(3) that Applicant is working as the post of Runner for MINT & BASIL TUNG CHUNG with monthly salary of HKD15,000. As per the tenancy agreement at encl.(4), Applicant is currently residing in a public housing estate with Sp(B) in Tung Chung with monthly rental of HKD1,134.

[6] Sp(B)’s employment proof was submitted at encl.(9) and (11). Salary slips at encl.(12) showed that his average monthly salary is HKD7,439.47 (7/2019 to 9/2019).

Consideration and Recommendation

[7] The absence of Sp(F)’s sponsorship has rendered the current application outside the prevailing dependant visa policy without any other eligible sponsors provided. In this context, Sp(B) is not an eligible sponsor in accordance with para.(3). Nevertheless, an application will not automatically come to an end even if Applicant fails to meet the eligibility criteria. The reasons for Applicant to remain in Hong Kong and his difficulties in returning to Pakistan were summarized at para.(4). Applicant who is an able-bodied adult of Pakistani origin had lived outside Hong Kong for many years before coming to Hong Kong as a dependant. There is no indication that Applicant cannot go back Pakistan and cannot secure a job in Pakistan.

[8] As per the ID520 at encl.(16), only Applicant’s brother is currently residing in Hong Kong. The other three siblings are all residing [in] Pakistan. It was also observed from the said ID520 that Applicant’s mother is residing Pakistan. However, re: EOEN-5003447-15 (case minutes at float). Applicant’s mother deceased on 11-10-1999. It was confirmed with Applicant’s legal representative via phone call on 03-01-2020 that Applicant’s mother has deceased already. It should be noted that Applicant’s willingness in remaining in Hong Kong entirely rests on Applicant but not the Director of Immigration (‘the Director’). The Director has no legal duty to take humanitarian grounds into consideration and does not enjoy unfettered discretion in making immigration decisions. Despite that, based on all available information and surrounding circumstances, there are no compelling factors for warranting an exceptional consideration.

[9]  Having considered all available information and surrounding circumstances of the case, substantial changes in circumstances in respect of Applicant are revealed and there are no extenuating grounds which warrant an exceptional consideration.  I recommend refusing this application.”

7.On 14 January 2020, the Immigration Department received a letter from the Applicant requesting for reconsideration of the Original Decision (“the 1^st Request for Reconsideration”), on the basis that he had secured an employment with a hair salon.  The Applicant failed, however, to provide supplementary documents/information as requested by the Immigration Department by letters dated 12 March 2020 and 14 May 2020. By a letter dated 22 June 2020, the Director informed the Applicant that the 1^st Request for Reconsideration was cancelled.

8.On 26 June 2020, the Immigration Department received a letter from the Applicant making a 2^nd request for reconsideration of the Original Decision (“the 2^nd Request for Reconsideration”), along with some supplementary documents in relation to his employment with the hair salon and its business.  The Director decided on 25 September 2020 that there was no reason or justification to reverse the Original Decision, and refused the 2^nd Request for Reconsideration.

9.On 15 October 2020, the Immigration Department received a letter from the Applicant making a 3^rd request for reconsideration of the Original Decision (“the 3^rd Request for Reconsideration”), along with various documents in relation to his brother, including his brother’s tenancy agreement, tax return, salary slips, etc.  The Director considered that the information and materials submitted by the Applicant did not constitute any new ground for reconsideration of the Original Decision, and there was no reason or justification to reverse it.  By a letter dated 21 October 2020, the Director informed the Applicant that the 3^rd Request for Reconsideration was refused.  The decision embodied in the letter of 21 October 2020 (“the 3^rd Reconsideration Decision”) constitutes the subject matter of the present application.

10.On 3 November 2020, the Applicant made the present application for leave to apply for judicial review of the 3^rd Reconsideration Decision.

DISCUSSION

11.In his Form 86, the Applicant fails to set out the relief sought, or any ground on which relief is sought.  In a letter to the court dated 3 November 2020 exhibited to his affirmation made on the same date, the Applicant states the following:

“This is to certify that I Khan Muhammad Kashif … would like to request that my father sponsor my dependant visa in Hong Kong. But my father [passed away] in Hong Kong June 2017. My mother also [passed away] long time before. Now I have my real brother in Hong Kong. He [has] good job and house. As well he is ready to sponsor. Kindly help me to grant my stay in Hong Kong. Since I am in Hong Kong my all record good. I never do any wrong thing in Hong Kong. I want to mix in Hong Kong community. I love Hong Kong. I have no other place to go. I request again kindly look into my matter.”

12.In view of the fact that the Applicant no longer has an eligible sponsor, it is clear that his application for extension of stay falls outside the Director’s prevailing Dependant Policy.  His application, if considered on the basis of his own merits, is subject to the Director’s overall restrictive immigration policy, which is well recognised and has been upheld by the courts in many previous cases.  It is a matter for the Director’s exercise of discretion whether to permit a person in the Applicant’s position to stay and remain in Hong Kong.  Save in the most exceptional of circumstances, the court would generally not interfere with the Director’s exercise of discretion in immigration matters.  The Director is entitled to take the view that (i) there is no extenuating ground which would warrant exceptional consideration of the Application, and (ii) there is no sufficient reason or justification to reverse the Original Decision.  There is nothing in the materials before the court which could support any public law challenge to the 3^rd Reconsideration Decision, which is neither illegal nor Wednesbury unreasonable, and there is no procedural unfairness leading to that decision disclosed on the papers before the court.

13.The intended application for leave to apply for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

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

The Applicant acting in person

Ms Christine Choi, Government Counsel and Ms Cathy Wong, Government Counsel, of Department of Justice, for the Putative Respondent