Gurung Bikash Kumar v. Director of Immigration and Another

HCAL 1042/2017

[2021] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1042 OF 2017

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Before: Hon Chow J in Court

Date of Hearing: 19 January 2021

Date of Decision: 27 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 (i) the decision (“the 2015 Decision”) of the Director of Immigration made on 21 January 2015 and conveyed to the Applicant by a letter dated 26 January 2015 refusing to grant to the Applicant an extension of stay, and (ii) the decision (“the 2017 Decision”) of the Chief Executive in Council made on 22 August 2017 and conveyed to the Applicant by a letter dated 1 September 2017 rejecting the Applicant’s objection to the 2015 Decision and confirming the 2015 Decision.

BASIC FACTS

2.The Applicant is a Nepalese national born in Nepal on 20 August 1976.  On 14 August 2020, the Applicant married Ms Gurung Bal Kumari (“the Wife”), a Hong Kong permanent resident, in Nepal.  The Applicant was at the time of that marriage a widower with two children born in 2004 and 2006 respectively, while the Wife was a divorced woman with two children (“the Step-Children”), who were also Hong Kong permanent residents, born in 1989 and 1994 respectively.

3.On 21 December 2010, the Applicant entered Hong Kong as a dependant of the Wife with permission to remain until 21 December 2011.  On 28 November 2011, the Applicant applied for an extension of stay under the Director’s Dependant Policy, and was granted an extension of stay as a dependant of the Wife until 21 December 2014.

4.On 24 October 2014, the Wife passed away in Nepal.

5.On 2 December 2014, the Applicant applied for an extension of stay on his own merits without any sponsor (“the 2014 Application”).

6.By a letter dated 10 December 2014, the Director requested the Applicant to provide further information and documents in relation to the 2014 Application, which the Applicant did by a letter dated 18 December 2014.

7.By a letter to the Applicant dated 26 January 2015, the Director refused the 2014 Application.  In that letter, the Director stated as follows:

“You were previously approved to remain in the HKSAR as a dependant of your wife, Ms. GURUNG, BAL KUMARI in 2011. Since there is a substantial change in circumstances that you have [lost] the sponsorship from your wife, 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 case. Your application for extension of stay is therefore refused.”

8.The Immigration Department’s internal deliberation of the 2014 Application can be found in its File Minute (M.1), the relevant parts of which state as follows:

“Case Background

2. Applicant was first approved of entry dependant visa to join his resident wife, GURUNG, BAL KUMARI … in 11/2010. Subsequent extension of stay was granted to him on 08/2011 with latest L/S till 21-12-2014. On 02-12-2014, Applicant submitted an E/S application on his own merit since Sp(W) passed away on 24-10-2014 vide Death Certificate …

Family Situation

3. According to the ID520 …, applicant reported that he only had a brother in Hong Kong, whereas applicant’s mother, his two natural children and his three other siblings are all residing in Nepal. Besides, Applicant was grown up in Nepal till his mid thirties. With strong established network and close linkages, there is no undue hardship for applicant to return to Nepal.

Financial, Employment and Residential Situation

4. Applicant’s secured accommodation at Yau Ma Tei with his step-daughter, paying half of the rent of HK$3,500 per month as per letter and tenancy agreement …. He is currently working as a Scaffolder earning HK$730 on a daily basis … According to the copies of bank passbook …, applicant had a balance of HKD$29,517 as at 16-12-2014. However, the nature of his occupation remains technical in level. There is no indication that he possesses professional skills and knowledge that are not readily available in the local labour market.

Reason for Remaining in Hong Kong

5. Applicant stipulated in his letter … reasons for remaining in HK. He stated that he is used to the Hong Kong environment, which has better hospital facilities, job opportunities, social services and vocational training than in Nepal. Yet, seeking for betterment should not be considered as a reason justified for exceptional consideration. Applicant furthered that the government in Nepal is unstable and the number of crimes has risen, thus it would not be safe for him to return. However, his claim is unsubstantiated; there is no evidence that his life would be endangered if he was returned to his home country.

6. Another reason stated by the applicant was to take care of his two step-children in HK to fulfill his responsibility as a step-father … Yet, applicant failed to mention his step-children in the ID520 furnished upon this application. APPLIES record revealed that his late wife’s HKPR children are adult at the age of 20 and 24 y.o. respectively. In fact, Mr. PUN, UDAYA VEER …, the natural father of the two step-children of applicant, is believed to be residing in Hong Kong as per APPLIES record at float. Thus, applicant’s intention to take care of his step-children cannot be regarded as a compassionate ground for exceptional consideration. Moreover, applicant’s natural children, who are at a younger age, are currently residing in Nepal as mentioned in ID520 … The reason for applicant’s decision to take care of his adult age step-children instead of his 8 y.o. and 10 y.o. natural children is questionable.

Consideration & Recommendation

7. After carefully considering all the available information, I recommend refusing this application o.g.o.:-

(i) The previous permissions of stay were granted to applicant to join his wife as dependant. The loss of sponsorship after Sp(W) deceased has rendered him falling outside the prevailing dependant policy and all other immigration policies;

(ii) Applicant only remained in Hong Kong as dependant for around 4 years and has no strong linkage here other than his brother. His mother, three of his other siblings and natural children are currently residing in Nepal. There is no anticipated hardship for the able-bodied applicant to return to his home country;

(iii) Applicant was previously residing in Nepal and only came to HK at the age of 34. It is believed that he is completely competent to resettle in his home country;

(iv) There is no indication that applicant [possesses] any special skills which are not readily available in HK; and

(v) Applicant’s intention to remain is believed to be seeking for betterment, there are no compassionate grounds justifying our exceptional consideration for this application.”

9.By letters dated 2 and 9 February 2015 and 9 March 2015, the Applicant’s solicitors provided some further information and documents, and requested the Director to reconsider the 2015 Decision.  After consideration of the additional information and documents, by a letter to the Applicant’s solicitors dated 24 June 2015, the Director informed the Applicant that he could find no reason or justification for reversing the 2015 Decision, and the refusal decision previously conveyed to the Applicant on 26 January 2015 still stood.

10.By a letter to the Chief Secretary for Administration dated 7 July 2015, the Applicant lodged an objection (“the Section 53 Objection”) against the 2015 Decision and the Director’s further decision dated 24 June 2015[1] pursuant to s 53 of the Immigration Ordinance, Cap 115 (“the Ordinance”).  In that letter, the Applicant stated, for the first time, that his family members in Nepal had died and disappeared “due to recent earth quake”.

11.After a process of representations and responses from the Director and the Applicant which took place between 17 July 2015 and 17 February 2017, the details of which it is not necessary to set out in this decision, the Section 53 Objection was submitted to the Chief Executive in Council for consideration on 2 August 2017.

12.On 22 August 2017, the Chief Executive in Council considered the Section 53 Objection.  The Council advised and the Acting Chief Executive ordered that the 2015 Decision refusing the Applicant’s application for extension of stay should be confirmed.  By letter dated 1 September 2017, the Security Bureau conveyed the 2017 Decision to the Applicant.

13.On 8 December 2017, the Applicant made the present application for leave to apply for judicial review seeking, inter alia, an order of certiorari to quash the 2015 Decision and the 2017 Decision.  The Applicant also requested for an oral hearing of the application if leave was not granted on paper.  The following grounds on which relief was sought were advanced:

“(1) The learned immigration officer of the Director of Immigration (Respondent) is in breach of procedural fairness in the following parts:

(i) the learned immigration officer of the Director of Immigration (Respondent) had unlawfully fettered his discretion by refusing to grant extension of stay without any valid reason or reasonable ground.

(ii) the learned immigration officer of the Director of Immigration acted in a procedurally unfair manner in dealing with the Applicant’s request.

(iii) the Respondent’s decision to refuse to accept the Applicant’s application for extension of stay was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness.

(2) The learned immigration officer of the Director of Immigration failed to understand the loss of sponsor was act of God and was beyond the control of the applicant. Therefore his decision is against the natural justice.

(3) Both respondent[s] failed to put proper weight on the information before them, their decision was based on [bias] and discrimination.”

DISCUSSION

14.Leaving aside challenges based on constitutional grounds, generally speaking, in an application for judicial review, an immigration decision of the Director can only be challenged on the grounds of illegality, irrationality, or procedural unfairness.

15.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).  It is for the Director, not the court, to administer the scheme of immigration control in Hong Kong.

16.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).

17.The above principles also apply to decisions made by the Chief Executive in Council upon review of immigration decisions of the Director under s 53 of the Ordinance.

18.In the present case, in view of the fact that the Applicant no longer had an eligible sponsor, his application for extension of stay fell outside the Director’s prevailing Dependant Policy.  In this regard, it may be noted that neither the Applicant’s Step Children nor his brother in Hong Kong were eligible to act as the Applicant’s sponsor under the Director’s Dependant Policy.  His application based on his own merits was subject to the Director’s well recognised overall restrictive immigration policy.  It was 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 was entitled to take the view that there was no extenuating ground which would warrant exceptional consideration of the Applicant’s application for extension of stay.  There is nothing in the materials before the court which could support the Applicant’s challenge to the 2015 Decision of the Director, or the 2017 Decision of the Chief Executive in Council.

19.Although the Applicant has alleged irrationality, fettering of discretion, procedural unfairness, bias and discrimination on the part of the Director or his officer, they are bare allegations not supported by evidence.

20.In so far as the Applicant complains about the absence of reasons:

(1)  In relation to the 2015 Decision of the Director, the reasons given by the Director in the letter of 26 January 2015 are adequate, and sufficient to enable the Applicant to properly understand the basis of that decision.

(2)  In relation to the 2017 Decision of the Chief Executive in Council, where the Chief Executive in Council merely confirms a decision of the Director in a statutory objection under s 53 of the Ordinance, it has no general duty to give reasons for its decision (see Mumtaz Hussain v The Chief Executive in Council, HCAL 163/2002 (unreported, 18 November 2003), at §§29-30).  I would add, in any event, that it is clear the Chief Executive in Council agreed with the reasons given by the Director for rejecting the Applicant’s application for an extension of stay, and the absence of reasons has not caused any real or material prejudice to the Applicant.

21.In so far as the Applicant contends that the loss of his sponsor was an Act or God and beyond his control, the court is sympathetic to the Applicant’s position.  However, as earlier mentioned, it is for the Director, not the court, to administer the scheme of immigration control in Hong Kong.  The court cannot interfere with the Director’s immigration decision in any given case merely because it may have exercised a relevant discretion differently.  The Applicant’s argument that the Director’s decision is contrary to natural justice is based on a misunderstanding of the principles of natural justice as applied by the court.  The Applicant had been given full and proper opportunities to make representations to the Director and the Chief Executive in Council before the relevant decisions were made.

22.None of the matters raised by the Applicant in his Form 86 or Affirmation dated 8 December 2017 gives rise to any sufficient public law ground for the court to interfere with the decisions of the Director and Chief Executive in Council in the present case.

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

DISPOSITION

24.The application for leave to apply for judicial review is dismissed.

25.The principles for making an award of costs against an unsuccessful applicant in an application for judicial review are well established (see Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841).  The Court of Final Appeal has made it clear that an award of costs against an applicant should not be made unless there are special or unusual circumstances which justify such an award, and the discretion of making an award of such costs should be sparingly exercised.  The circumstances of the present case are not, I consider, special or unusual, or sufficiently special or unusual, as would justify an award of costs being made against the Applicant.  Accordingly, I make no order as to costs.

The Applicant acting in person

Mr Gilbert Mok, Government Counsel, of the Department of Justice, for the Putative Respondents