Sihmiati Aris Setyowati v. Director of Immigration

HCAL 953/2021

[2021] HKCFI 3001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 953 OF 2021

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BETWEEN

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Decision:  15 October 2021

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D E C I S I O N

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A.  Introduction

1.By Notice of application for leave to apply for judicial review dated 7 July 2021 (“Form 86”), the applicant seeks to challenge the decision dated 24 May 2021 (“Decision”)  made by the Director of Immigration (“Director”)  refusing to extend the limit of stay of the applicant’s dependent visa.

2.The applicant acts in person in this leave application, albeit she was legally represented in her application to the Director for extension of stay.  On 15 July 2021, the Court directed that the Director shall have leave to file and serve his initial response (with copies of any relevant documents)  within 42 days and that the applicant shall have leave to file and serve her reply within 28 days thereafter. The Court also directed that it shall decide whether the leave application shall be dealt with on paper depending on the content of the Director’s initial response and the applicant’s reply (if any).

3.The Director filed his initial response (with supporting documents)  on 26 August 2021, and has also filed an affirmation evidencing service of the initial response on the applicant on the same day.  The applicant did not file any reply by the filing deadline of 23 September 2021. Having carefully considered the materials, I have decided that the leave application should be determined on paper.

B.  Background Facts

4.The applicant is an Indonesian national.  She first entered Hong Kong in 2005 (when aged 29)  to become a foreign domestic helper (“FDH”), and she continued work as a FDH until April 2014.

5.On 18 January 2014, she married a Hong Kong permanent resident.  The applicant then applied for a dependent visa to reside in Hong Kong as the dependent of her husband.  Her dependent visa was approved on 16 April 2014 and she was permitted to remain in Hong Kong as her husband’s dependent with a limit of stay, which was twice extended. The last extension was until 19 January 2021.

6.On 18 September 2020, the applicant’s husband petitioned for divorce on the basis of two years’ separation commencing 20 March 2018 (which ground does not require the applicant’s consent).  The petition shows different residential addresses for the husband and the applicant.  I note that the petition also refers to a previous petition having been issued in 2017 but withdrawn.

7.On 11 January 2021, the applicant applied for a further extension of her stay by submitting the Form 1D91 (“Form”).  It is clear from the Form that she did not apply to remain in Hong Kong on the strength of her status as her husband’s dependent, and with his sponsorship.  Instead, she applied on her own merits.  In the Form, she initially checked the box “For residence as dependant” as the reason for her application and filled in the information of her husband as her sponsor. However, she later unchecked “For residence as dependant” and crossed out the information of her husband.  She eventually checked “Other” as the reason of her application.  The Form was apparently prepared with the assistance of her lawyers, Chaudhry Solicitors, whose address was provided in the form as the applicant’s correspondence address.

8.In the Form, the applicant revealed that her husband had filed a Petition commencing divorce proceedings against her (which she said she intended to contest).  She also emphasized that she was working as a recruiting officer and was able to support her own living and to contest the divorce proceedings on her own.  She asked the Director to extend her stay so that she could contest the divorce proceedings.

9.By letter dated 4 February 2021 issued to the applicant, the Director stated that:

“…Also, under the existing immigration policy, an application for extension of stay for non-permanent residents will be considered only when the circumstances upon which the applicant has acquired his/her residential status remain unchanged.

According to the available information, there are substantial changes in your circumstances upon which you acquired your residential status and your current application for extension of stay as a non-permanent resident in the HKSAR falls outside any of the prevailing immigration policies.” (my emphasis)

10.The Director asked the applicant to provide by 28 February 2021 all supporting document(s)/information in support of “exceptional consideration” of her application.  By letter dated 17 February 2021, from the applicant’s solicitors to the Director, the applicant repeated that the reason why she wanted to remain in Hong Kong was to contest the divorce proceedings, and that her presence in Hong Kong was required for those proceedings.

11.By letter dated 12 March 2021, the applicant’s solicitors also provided to the Director: a copy of an affirmation filed by the applicant in the divorce proceedings; copies of the applicant’s bank statement, salary slips; and the tenancy agreement of her residential address.  It was also revealed that she had two children (one aged 21 and the other aged 17)  who were living in Indonesia with the applicant’s parents.  She supported the education of the younger one by monthly remittance ranging from HK$1,500 to HK$2,000.

12.As an aside, though a copy of the affirmation filed by the applicant in the divorce proceedings was not provided either by the applicant or with the Director’s initial response in these proceedings, I have called for the relevant Family Court file.  From that file I can see, amongst other things, that: (1) in her affirmation the applicant asserts that the husband’s allegation that they had been separated for more than two years is untrue; (2) despite being given extra time to file an Answer to the Petition, no formal Answer was filed; (3) the applicant’s request for further time was dismissed; (4) on 22 July 2021, HHJ Melloy pronounced a decree nisi of divorce, on the basis that she held as a fact that the parties had been separated for a continuous period of at least two years immediately prior to the date of the Petition; (5) the decree has been made absolute on 17 September 2021; and (6) though the matters of ancillary relief were formally adjourned to a future hearing, there does not seem to be a live financial claim, nor are there any children of the marriage.

C.  The Decision

13.By letter dated 24 May 2021 issued to the applicant’s solicitors, the Director issued the Decision, and refused the extension of stay.  The reasons stated in the letter include:

“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 dependent of [the husband].  Since there is a substantial change in circumstances that you have lost the sponsorship from [the husband], you are no longer eligible to remain in the HKSAR on dependent status.  Based on the available information, we do not find strong extenuating grounds justifying our exceptional consideration on your case.”

14.In the immigration officer’s internal memorandum, it was stated that the absence of the husband’s sponsorship had rendered the application outside the prevailing dependant visa policy.  Nevertheless, an application will not automatically come to an end even if the applicant fails to meet the eligibility criteria.  Further, the Director has no legal duty to take humanitarian grounds into consideration.  That said, the officer had assessed the case and considered all information provided.  Having considered all available information and surrounding circumstances, the officer pointed to the substantial change of circumstances revealing that there were no extenuating grounds which warranted an exceptional consideration.

15.By letter dated 28 May 2021, the applicant’s solicitors requested the Director to reconsider the Decision on the basis that: (a) the petition wrongly stated a two-year separation, the divorce proceedings had not been concluded, and the parties might reconcile after mediation; and (b) the applicant only required a few months’ extension to qualify for right of abode.  It was also pointed out that the applicant had taken Hong Kong as her only place of abode by spending most of her adult life building a life here.

16.This request was rejected by the Director by letter dated 4 June 2021.  In the relevant internal memo, it is shown that the reason for rejection was because no new information was provided.  The decision returning down the request for reconsideration is not the subject of the leave application as identified in the Form 86 (which refers only to the Decision of 24 May 2021).

17.The applicant has been overstaying in Hong Kong since 20 January 2021.

D.  Grounds of application

18.No grounds of intended review are provided in the Form 86 itself.  But, in the applicant’s supporting affirmation, at §§3-4, it was stated that:

“3. I applied to the Director of Immigration for an extension of my Dependent Visa on my own based on the fact that although I am going through the divorce proceedings with my sponsor, I have spent the last 15 years in Hong Kong, building my life. I came to Hong Kong in 2005 and I don’t have anything to go back to. I have built my social structure and support system in Hong Kong. I am in good financial condition to bear my expenses. The Director does allow these applications and considers that humanitarian ground but rejecting it is an unreasonable decision.

4.  They have further ordered me to leave Hong Kong right away, which is wrong.”

E.  Is there merit for the grant of leave?

19.From the letter 4 February 2021 and Decision dated 24 May 2021, it can be seen that that Director was of the view that the applicant had lost her sponsorship and was no longer eligible to stay in Hong Kong as her husband’s dependent.  She was not covered by any prevailing immigration policies (including the prevailing policies for dependent visa).

20.The Director’s position was, indeed, consistent with that of the applicant herself as shown in the Form, and in the supporting affirmation for her Form 86.  She did not claim to have a sponsor.  She did not claim to be her husband’s dependent or provide that as a basis for her to continue to remain in Hong Kong.  She relied instead on her own personal circumstances to ask the Director to extend her stay, instead of attempting to bring herself with any prevailing immigration policies adopted by the Director.

21.The applicant’s intended grounds of review (as stated in her affirmation)  essentially boil down to that the Decision refusing her extension of stay in Hong Kong was unreasonable in view of her personal circumstances.

22.It is well settled law that to challenge the Director’s Decision on the ground of Wednesbury unreasonableness, the hurdle for the applicant to overcome is a high one.  This Court has long recognized that the Director administers an overall highly restrictive immigration policy across the entire immigration regime, which is dictated by the high population density, as well as the geographical, social and economic imperatives faced by Hong Kong.  When the applicant applying to stay in Hong Kong cannot bring herself within any of the prevailing immigration policies, her application is a matter for the Director’s exercise of discretion and the Court would generally not interfere with the Director’s exercise of discretion on the ground of unreasonableness save in the most exceptional circumstances.  The weight that the Director may place on any particular circumstances of the applicant’s case is a matter for the Director to decide, not for the Court: see, for example, Sobia v Director of Immigration [2020] HKCFI 2821, at §12 and Bokhim, Machindra Bikram v Director of Immigration [2021] HKCFI 600, at §12.

23.The applicant fell outside any of the Director’s prevailing immigration policies.  Based on the information available to the Director, the Director is entitled to take the view that there are no strong extenuating factors which warrant exceptional consideration of the applicant’s case.  It is not reasonably arguable that the Decision is unreasonable in the public law sense.

24.For the sake of completeness, I would observe that the Director did not order the applicant to leave Hong Kong “right away”, as asserted in §4 of the applicant’s supporting affirmation.  In the Decision dated 24 May 2021, the applicant was asked to attend the office of the Immigration Department for departure arrangement on or before 31 May 2021. In the letter dated 4 June 2021, the applicant was asked to attend the same office for the said purpose on or before 11 June 2021.  In any event, ordering the applicant to leave Hong Kong is but a natural consequence after the applicant was refused extension of her stay.  There is nothing “wrong” in the public law sense.

F.  Conclusion

25.The applicant’s leave application is therefore dismissed, with no order as to costs.

The applicant, acting in person

Ms Carman Li, Senior Government Counsel (Ag), for the putative respondent