Gurmer Kaur v. The Director of Immigration

HCAL 315/2021

[2021] HKCFI 1531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 315 OF 2021

________________________

________________________

Before:  Hon Chow J in Court

Date of Hearing:  27 May 2021

Date of Decision: 4 June 2021

___________________

D E C I S I O N

___________________

INTRODUCTION

1.This is an application for leave to apply for judicial review of (i) the Director of Immigration (“the Director”)’s decision dated 29 January 2021 (“the Jan Decision”) refusing the Applicant’s application for extension of stay in Hong Kong; and (ii) the Director’s decision dated 5 March 2021 (“the March Decision”) refusing the Applicant’s request for reconsideration of the Jan Decision and maintaining the Jan Decision.

BASIC FACTS

2.The Applicant is an Indian national born in India on 6 November 1991.  On 14 January 2014, the Applicant first entered Hong Kong as a foreign domestic helper (“FDH”).  After completion of her first FDH contract, the Applicant was permitted to remain in Hong Kong as FDH with a new employer until 23 February 2017.

3.On 6 May 2016, the Applicant married the late Mr BHUIYAN (“B”), a Hong Kong permanent resident, in Hong Kong.  Her FDH contract was terminated on 25 September 2016.

4.The Applicant applied for, and was granted on 29 September 2016, a dependant visa to stay in Hong Kong as B’s dependant.  Her permission to remain in Hong Kong as B’s dependant was last extended to 29 September 2020.

5.In June 2020, B passed away.

6.On 29 September 2020, the Applicant, through her legal representatives, submitted an application for extension of stay on her own merits without any sponsor.  By a letter dated 29 January 2021 which embodied the Jan Decision, the Director informed the Applicant that her application for extension of stay was refused.  The following was stated in that letter:

“ 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.

Your client was previously approved to remain in the HKSAR as a dependant of [B]. Since there is a substantial change in circumstances that [B] has passed away, your client is 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 on your client’s case. Your client’s application for extension of stay is therefore refused.

…

As your client’s limit of stay on dependant status has already expired since 30 September 2020, your client is required to leave the HKSAR on or before 12 February 2021.  Staying in the HKSAR beyond this date without the permission from the Director of Immigration will be a breach of condition of stay, which is an offence under section 41 of the Immigration Ordinance, Chapter 115.  Any person who has breached his/her condition of stay in the HKSAR is liable to prosecution and removal under the same Ordinance.”

7.On 2 March 2021, the Applicant, through her legal representatives, requested for reconsideration of the Jan Decision on the grounds, inter alia, that (i) if the Applicant were to return to India, she would be at risk of being a victim of “Honour Killing” in view of her “inter-religious marriage” with B, (ii) the Applicant had been threatened by her family members and relatives during her last visit to India in January 2018 for marrying against their wishes and out of religion, and she had severed all her ties with her family in India, (iii) the Applicant, as a woman, would be at personal risk were she to live in India on her own due to the general situation in India, and (iv) the Applicant had a prospective employer who was willing to employ her if she had a valid visa to remain in Hong Kong, and was able to support herself.

8.By a letter dated 5 March 2021 which embodied the Mar Decision, the Director informed the Applicant that her application for reconsideration of the Jan Decision was refused.  The following was stated in that letter:

“ We regret to inform that your client’s request is refused as no new matters have been raised for the reconsideration. The decision previously conveyed to you by letter of 29 January 2021 still stands.

As your client’s limit of stay on dependant status has already expired since 30 September 2020, your client is required to leave the HKSAR on or before 10 March 2021…”

9.On 11 March 2021, the Applicant made the present application for leave to apply for judicial review of the Jan and Mar Decisions. In the Form 86, 3 grounds of judicial review are advanced:

(1)   The Director failed to consider her applications on humanitarian and compassionate grounds.

(2)   The Director failed to consider an extenuating ground justifying exceptional consideration of her applications, namely, that she would be at risk of “Honour Killing” should she return to India.

(3)   The Director’s requirement on the Applicant to leave Hong Kong on or before 12 February 2021 under the Jan Decision failed to give her sufficient time to apply for reconsideration of the Jan Decision and/or judicial review of that decision.

DISCUSSION

10.In respect of Ground (1), it is well-established that the Director is under no legal obligation to take into account humanitarian or compassionate grounds when making immigration decisions, and if the Director decides to take such matters into account, the weight to be given to them is a matter for the Director to decide (see Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 523; BI v Director of Immigration [2016] 2 HKLRD 520).  In this case, as can be seen from the Immigration Department’s internal file minutes dated 29 January 2021 for the Jan Decision, the Director correctly took that view that he had no legal obligation to consider humanitarian grounds when considering the Applicant’s application for extension of stay.  In any event, the Applicant’s family and background circumstances as well as her “inter-religious marriage” with B leading to her conflicts with her family were set out and considered, but Director took the view that there were no extenuating grounds warranting exceptional consideration of the application.  In so far as the Mar Decision is concerned, the Immigration Department’s relevant internal file minutes dated 4 March 2021 showed that the Director made the decision on the ground that no new matters had been raised which were relevant to the previous refusal decision. In my view, Ground (1) is plainly not reasonably arguable.

11.In respect of Ground (2), as this court explained to the Applicant at the hearing on 27 May 2021, she is, in principle, entitled to raise a non-refoulement claim with the Director if she has grounds to believe that her life will be at risk should she return to India.  Subject to the possibility of a non-refoulement claim, it was a matter for the Director to consider what (if any) weight should be given to the Applicant’s claim that she would be at risk of “Honour Killing”, which was based on the Applicant’s own assertions (see Manjeet-Kaur v Director of Immigration, HCAL 103/2006 (unreported, 29 January 2008), at §33).  There is no, or no sufficient, ground for the court to interfere with the Director’s view that there were no extenuating grounds warranting exceptional consideration of the Applicant’s application for extension of stay.

12.Lastly, in respect of Ground (3), the Director is under no duty to give the Applicant time, or sufficient time, to apply for reconsideration of the Jan Decision, or judicial review of the Jan Decision. The Director’s well established policy is that once legal proceedings to challenge a decision refusing to grant to an immigrant an extension of stay have been commenced, the Director would normally not take action to remove an immigrant until the legal proceedings have been disposed of.  The Director’s original decision to require the Applicant to leave Hong Kong by 12 February 2021, which date was subsequently extended to 10 March 2021, is not unlawful or irrational or made in a procedurally unfair manner.

13.In all, none of the 3 intended grounds of judicial review is reasonably arguable, or has a realistic prospect of success.

DISPOSITION

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

15.In passing, I should mention that the Applicant made an application for legal aid in relation to the present application for judicial review on or about 10 March 2021, and her legal aid application was refused by the Director of Legal Aid on 24 May 2021.  As mentioned at the hearing and for the avoidance of doubt, the court ordered that any stay of proceedings consequent upon the Applicant’s legal aid application was lifted for the purpose of the hearing of the present application for leave to apply for judicial review on 27 May 2021.

The Applicant acting in person

Ms Karen Ngai, Government Counsel of Department of Justice, for the Putative Respondent