Bokhim, Machindra Bikram v. Director of Immigration

HCAL 3544/2019

[2021] HKCFI 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3544 OF 2019

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Before: Hon Chow J in Chambers

Date of Decision: 15 March 2021

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D E C I S I O N

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INTRODUCTION

1.This is an application by the Applicant for leave to apply for judicial review of the decision of the Director of Immigration on 12 November 2019 rejecting the Applicant’s request for reconsideration of the Director’s earlier decision on 16 July 2019 refusing the Applicant’s application for extension of stay in Hong Kong.

BASIC FACTS

2.The Applicant is a Nepalese national born in Nepal on 16 May 1975.  On 27 November 2011, he married the late Ms RAI, Ganda Devi (“Ms RAI”), a Hong Kong permanent resident, in Hong Kong.  He applied for, and was granted, a dependant visa to join Ms RAI on 5 March 2015.  He entered Hong Kong on 18 March 2015, and was permitted to remain in Hong Kong as Ms RAI’s dependant with a limit of stay, which was last extended to 18 March 2019.  On 5 May 2017, Ms RAI passed away.

3.On 4 March 2019, the Applicant submitted an application for extension of stay in Hong Kong on his own merits without a sponsor.

4.On 26 March 2019, the Immigration Department (“ImmD”) issued a letter to the Applicant noting that there were substantial changes in his circumstances based upon which he acquired his resident status in Hong Kong, and his extension application fell outside any of the prevailing immigration policies for granting an extension of stay.  ImmD requested the Applicant to submit further information, if any, by 8 April 2019 to facilitate processing of his extension application.

5.On 8 April 2019, ImmD received the Applicant’s letter dated 6 April 2019, in which the Applicant stated, inter alia, that he had adapted to the living environment in Hong Kong and wished to make Hong Kong as his permanent home.

6.On 16 July 2019, the Director refused the Applicant’s application for extension of stay (“the Original Decision”). In the Director’s letter to the Applicant dated 16 July 2019, the following reason was given for the Original Decision:

“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 the HKSAR as a dependant of your wife, Ms. RAI, GANDA DEVI (‘Ms. RAI’).  Since there is a substantial change in circumstances that you have lost sponsorship from Ms. RAI, you are no longer eligible to remain in the HKSAR on dependant status. Based on available information, we do not find strong extenuating grounds justifying our exceptional consideration on your case.  Your application for extension of residence is therefore refused.”

7.On 23 September 2019, the Applicant, through Lakshmi & Laxmi Litigation & Immigration Consultants (“L&L”), requested for reconsideration of the Original Decision with some new supporting documents.  The Applicant submitted, inter alia, that: (i) he had contributed to the local economy by investing HK$500,000 in a Hong Kong company, and (ii) his two siblings in Hong Kong vouched to support him and undertook to provide him with monetary assistance and accommodation.

8.On 12 November 2019, the Director rejected the Applicant’s request for reconsideration of the Original Decision (“the Reconsideration Decision”).  In the Director’s letter to L&L dated 12 November 2019, the following reason was given for the Reconsideration Decision:

“After careful consideration of all the information made available and circumstances of the case, we can find no reason or justification for reversing our decision. The refusal decision previously conveyed to your client by letter of 16 July 2019 still stands.”

9.The Applicant has been overstaying in Hong Kong since 19 March 2019.

10.On 29 November 2019, the Applicant made the present application for leave to apply for judicial review of the Reconsideration Decision.

DISCUSSION

11.It can be seen from the Applicant’s his affirmation dated 29 November 2019, and the attachments thereto that the Applicant raises 3 broad complaints against the Reconsideration Decision, namely:

(1)  unreasonableness, in that (i) the Director did not consider the fact that he was a layman and presented his application in an “unadvised and simplistic way”, (ii) the Director failed to understand that his situation was beyond his control and the decision was contrary to natural justice, (iii) the Director failed to give proper weight on the information before him, and (iv) the decision was not one that, in the circumstances, a reasonable person in the Director’s position would have made;

(2)  procedurally unfairness, in that (i) there was no adequate explanation for the decision such as would have enabled a legitimate challenge to the Reconsideration Decision to be made, and (ii) the Director failed adequately to consider his rights under the Basic Law of Hong Kong; and

(3)  discrimination / racial discrimination.

12.In relation to the Applicant’s challenge to the Reconsideration Decision based on the unreasonableness ground, it is trite that the Applicant has a high hurdle to overcome.  The law confers upon the Director a wide discretion to make immigration decisions which the court will not interfere with on the unreasonableness ground save in the most exceptional of circumstances.  The general strict immigration policy adopted by the Director is well known and has been upheld by the courts in many previous cases.  The weight that the Director may give on any particular circumstances of the Applicant’s case is a matter for the Director, not the court.  The Applicant’s situation plainly falls outside the Director’s well established dependant policy.  It is also open to the Director to consider that there are no strong extenuating grounds justifying exceptional consideration of the Applicant’s case.  There is no basis to contend that the Reconsideration Decision is unreasonable in the public law sense.

13.In relation to the Applicant’s challenge to the Reconsideration Decision based on the procedural unfairness ground:

(1)  There is no general duty on the part of the Director to give reasons for rejecting an application by an immigrant for an extension of stay.  In any event, the Director has given clear and intelligible reasons for -

(a)  the Original Decision, namely, that (i) the Applicant had lost the sponsorship from Ms. RAI and were no longer eligible to remain in the HKSAR on dependant status, and (ii) there were no strong extenuating grounds justifying exceptional consideration of the Applicant’s case; and

(b)  the Reconsideration Decision, namely, that there was no reason or justification for reversing the Original Decision.

(2)  The Applicant has not identified any alleged rights under the Basic Law which the Director had failed to consider.  In any event, any such rights would be subject to s 11 of the Hong Kong Bill of Rights Ordinance and/or the Immigration Reservation to the ICCPR (see Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59).

14.Lastly, in relation to the Applicant’s challenge to the Reconsideration Decision based on the discrimination / racial discrimination ground, the Applicant has failed to explain how he has allegedly been discriminated or racially discriminated against.  The fact that he has not been permitted to stay or remain in Hong Kong because he is not a Hong Kong permanent resident and does not have the right of abode in Hong Kong or other legal rights to stay or remain in Hong Kong cannot be regarded as discriminatory or racially discriminatory of the Applicant.  Any argument based on the right to equality under the Hong Kong Bill of Rights or the Basic Law would be subject to s 11 of the Hong Kong Bill of Rights Ordinance and/or the Immigration Reservation to the ICCPR.

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

DISPOSITION

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

The Applicant, acting in person

Ms Hikki Wong, Senior Government Counsel, Ms Jenny Ng, Government Counsel, of Department of Justice, for the Putative Respondent