Munatsi Kingsley v. Director of Immigration

CACV 405/2020

[2021] HKCA 1981

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 405 OF 2020

(ON APPEAL FROM HCAL 3334 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A.  INTRODUCTION

1.This is the applicant’s appeal against the judgment of Chow J (as Chow JA then was)  (“the Judge”)  dated 10 August 2020 (“the Judgment”)  ([2020] HKCFI 1897), dismissing his application for leave to apply for judicial review against the decision of the Director of Immigration (“the Director”)  made on 8 August 2019 refusing his application for dependant visa (“the Decision”).

B.  BACKGROUND

2.The unchallenged background facts leading to this appeal were set out in detail by the Judge at [2] - [11] of the Judgment.  It is unnecessary for us to repeat them here, save for the following.

3.The applicant is a national of Botswana and Nigeria. He entered Hong Kong on 23 June 2008 on the strength of a Botswanan passport and was permitted to remain as a visitor until 21 September 2008.  He did not depart and overstayed since 22 September 2008.  He was arrested by the police on 12 April 2014 for the offence of breach of condition of stay (by overstaying)  contrary to section 41 of the Immigration Ordinance, Cap 155 (“the Offence”).  The applicant was convicted of the Offence and sentenced to six months’ imprisonment on 26 April 2014.  He was discharged from prison on 11 August 2014.

4.The applicant then raised a non-refoulement claim on 12 August 2014, which was rejected by the Director by way of a Notice of Decision dated 26 April 2016 and a Notice of Further Decision dated 27 April 2017.  His appeal was dismissed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  on 7 July 2017 (“the Board’s Decision”).  On 21 November 2017, the applicant made an application for leave to apply for judicial review against the Board’s Decision under HCAL 925/2017 which was dismissed as being out of time by Campbell-Moffat J on 29 November 2018 ([2018] HKCFI 2149).  His application for leave to appeal out of time against Campbell-Moffat J’s decision was dismissed by the same judge on 2 April 2019 ([2019] HKCFI 884)  and by the Court of Appeal on 11 July 2019 under CAMP 63/2019 ([2019] 3 HKLRD 809).  His application for leave to appeal against the decision of the Court of Appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 8 August 2019.

5.Meanwhile, the applicant and Ms L, who is a Hong Kong permanent resident born in Hong Kong on 3 October 1975, were married in Hong Kong on 24 February 2018.  On 4 July 2018, the Immigration Department (“the Department”)  received the applicant’s application for a dependant visa to join Ms L in Hong Kong as her dependant (“the Application”).

6.On 8 August 2019, the Director refused the Application.  The Director’s deliberation was detailed in the Department’s internal file minute (M2)  (“the Minutes”), the relevant parts of which have been set out at [9] of the Judgment and will not be repeated here.  In gist, the Director considered that:

(1)  the marital relationship between the applicant and Ms L was believed to be genuine and that the applicant was a genuine dependant of Ms L;[1]

(2)  it was believed that Ms L was financially capable of supporting the applicant’s maintenance in Hong Kong and she could provide accommodation for the applicant;[2]

(3)  as the applicant overstayed in Hong Kong for over five years and was convicted of the Offence and sentenced to six months’ imprisonment on 26 April 2014, in view of the period of overstaying and the immediate custodial sentence imposed on him, it was considered that this record was to the detriment of the applicant and raised security or criminal concerns to the HKSAR;[3]

(4)  having carefully considered all the available information and relevant circumstances of the case, the Director refused the dependant application as he was not satisfied that:[4]

(a)  there was no known record to the detriment of the applicant;

(b)  the applicant met the normal immigration requirement which included, among others, the applicant be of clear criminal record and raised no security or criminal concerns to the HKSAR; and

(c)  there existed strong compassionate, or humanitarian reasons or other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.

7.On 5 November 2019, the applicant made a request for reconsideration of the Application based on humanitarian and compassionate grounds in relation to Ms L’s ill health.  On 15 November 2019, the Director replied to the applicant and maintained the Decision (“the Further Decision”).[5]

C.  THE JUDGMENT

8.On 7 November 2019, the applicant filed a Form 86 together with a supporting affidavit for leave to apply for judicial review against the Decision.  In his supporting affidavit, the applicant contended that the Director had not considered humanitarian and compassionate grounds and that Ms L was suffering from recurrent depressive disorder.

9.After considering the matter on paper, by the Judgment, the Judge dismissed the applicant’s application for leave to apply for judicial review for the following reasons:

“12.   In his Form 86, the Applicant did not state the relief sought, or any ground on which relief was sought.  In his affirmation filed in support of the application dated 7 November 2019, the Applicant stated the following:

‘1 Petition against the refusal of dependant visa application.

2    Director of Immigration has not [considered] humanitarian and   compassionate grounds.

3   My wife is ill - suffering from recurrent depressive disorder.’

The Applicant elaborated on those matters in a document marked ‘A’ attached to his affirmation.

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

14.    Generally, an immigration decision of the Director can only be challenged by way of judicial review on the grounds of illegality, irrationality, or procedural unfairness.  None of the matters raised by the Applicant gives rise to any such ground.

15.    In particular, in so far as humanitarian and compassionate grounds (including the health conditions of the Applicant’s wife)  are concerned, it is well-established that the Director is under no duty to consider them 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).  As a matter of fact, the Applicant’s personal and family circumstances were considered by the Director as set out in M2 (save that there was no consideration of the health conditions of the Applicant’s wife because the Applicant did not provide the relevant information until he filed his affirmation on 7 November 2019), but the Director was not satisfied that there existed strong compassionate, or humanitarian reasons or other special extenuating grounds which would justify a departure from his Dependant Visa Policy in the present case.  The Director’s view is one which it was open to him to take, and cannot be regarded as being Wednesbury unreasonable, having regard to the well-established stringent immigration policy in Hong Kong adopted by the Director.  In relation to the health conditions of the Applicant’s wife, it is well established that an applicant cannot, in an application for judicial review of a decision, rely on facts or matters not put before the decision-maker for his consideration at the time of the decision (Khan Karman v Director of Immigration, HCAL 48/2005, 31 July 2006, at §§20-22 per Hartmann J).  On the facts of this case, I do not see any legally valid basis for the Applicant to challenge the Director’s exercise of discretion to refuse the Application.

DISPOSITION

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

D.  THIS APPEAL

10.On 21 August 2020, the applicant filed a Notice of Appeal (together with an attached letter to the Court dated 10 August 2020 and supporting documents)  against the Judgment.  The complaints in his Notice of Appeal as elaborated in the attached letter could be summarised into two points:

(1)  There was unfairness, illegality and irrationality in the Director’s decision-making process of his dependant visa application and the Director’s application of the eligibility criterion of “no known record to the detriment of the applicant” (“the No Known Record Requirement”)  in the Decision.  The applicant alleged that the Director’s treatment of the Application was different to that of his friends who had committed the same offence and served the same or longer sentences (“Ground 1”); and

(2)  As his wife suffers from recurrent depression disorder and requires care from the applicant, the Director failed to take into account, or give appropriate weight to, compassionate and humanitarian grounds (“Ground 2”).

11.Pursuant to the directions of the Registrar of Civil Appeals given on 24 March 2021, the applicant lodged his skeleton arguments on 11 November 2021 and the Director lodged his skeleton arguments on 24 November 2021.

12.During the hearing of this appeal on 9 December 2021, the applicant appeared in person and contended that there was unfairness, unreasonableness and procedural irregularity given the difference in treatment of the Application and his friends’ applications for dependant visa.  The applicant again complained that the Director failed to take into account or give appropriate weight to Ms L’s health condition and that he was her sole family member who could take care of her.  He contended that the health condition of Ms L had been put forward in his request to the Director for reconsideration of the Application based on humanitarian and compassionate grounds but the Director maintained the Decision.  The applicant further complained that there was irregularity in the decision-making process given the Director’s delay in processing the Application.

13.We will now consider each ground of appeal in turn.

E.  DISCUSSION

E1.   Ground 1

14.The applicant’s complaints under this ground rest on a vague and bare allegation that the Application was treated differently by the Director as compared to that of his friends, who the applicant claimed had also committed the same offence and served the same or longer sentences.  In his skeleton arguments, he further claimed that three of his friends lodged their dependant visa applications at the same time as he did and his friends’ applications were granted.  On this basis, the applicant contended that there was illegality, irrationality and procedural unfairness in the Director’s decision-making process and the Director’s application of the No Known Record Requirement.

15.In our view, the applicant’s contentions are devoid of merit and cannot stand.

16.As a start, the applicant’s assertions in relation to his friends’ applications are vague and general without any specific particulars or evidence in support.  These fact-sensitive allegations about his friend’s applications were not even specifically raised and advanced in the affidavit in support of his leave application or before the Judge.  In an appeal, it is well established that this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(4)] and Re Daljit Singh [2018] HKCA 328 at [10]. In the circumstances, there is simply no sufficient basis that can even start to support the applicant’s complaint.  Moreover, as stated in the Minutes, the Director determined each application on its individual merits.  Even taking the applicant’s case at its highest, his friends’ applications and their results are irrelevant to the Application and do not assist his case.

17.More importantly, it is well established that the No Known Record Requirement is an eligibility criterion and not merely a relevant factor: see H v Director of Immigration (No 2) (2020)  23 HKCFAR 437 at [6] and BI v Director of Immigration [2016] 2 HKLRD 520 at [90].  There is also no suggestion that the Government’s Dependant Visa Policy as described in the Guidebook for Entry for Residence as Dependants in Hong Kong (“the Dependant Visa Policy”)  issued by the Director limits the types of adverse records that the Director may take into account in reaching his decision as to whether to exercise his discretion under the Dependant Visa Policy: see H v Director of Immigration (No 2), supra, at [9].

18.Applying those principles to the present case, it must be reasonably open for the Director, in making the Decision, to take into account the fact that the applicant overstayed in Hong Kong for over five years and was convicted of the Offence and sentenced to six months’ imprisonment on 26 April 2014.  It is equally reasonably open for the Director to come to the view, after considering all available information and relevant circumstances of the applicant’s case, that he failed to meet the No Known Record Requirement and the normal immigration requirement which included, among others, that the applicant be of clear criminal record and raise no security or criminal concerns to the HKSAR.  In this respect, the Director’s Decision is far from being irrational, illegal or procedurally unfair and cannot be faulted.

19.Accordingly, Ground 1 fails.

E2.   Ground 2

20.Under this ground, the applicant contended that the Director failed to take into account or give sufficient weight to the fact that Ms L suffers from recurrent depressive disorder and requires care from him as she does not have any parents or siblings and he is the only nuclear family member who can take care of her.

21.In this respect, the applicant further submitted copies of certificates of attendance of Ms L issued by the Hospital Authority and a Psychiatry Specialist dating from August 2019 to August 2020, as well as Ms L’s parents’ death certificates and Ms L’s birth certificate.  Most of these documents were not before the Judge.[6]  On the face of the documents, Ms L’s certificates of attendance were all created subsequent to the Decision and accordingly were not before the Director at the time of the Decision.

22.In his skeleton arguments, the applicant (together with Ms L)  also requested for further reconsideration of his application for dependant visa.

23.As a start, the applicant’s arguments under this ground are largely a re-run of his arguments advanced and rejected by the Judge.  It is well established that an appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the Judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see Nupur Mst v Director of Immigration, supra, at [14(2)] applying United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22 at [38] and [39].

24.In any event, the applicant’s arguments are without any merit.  It is well established in this jurisdiction that in the immigration context, the decision maker has no duty to have regard to humanitarian and compassionate considerations in making immigration decisions, even where family ties might be affected: see PVQ & Others v Permanent Secretary for Security [2021] HKCA 444 at [39(2)] applying Lau Kong Yung & Others v Director of Immigration (1999)  2 HKCFAR 300 at p.332D - H and BI v Director of Immigration, supra, at [92(8)] and [102].  To the extent that the Director decides to take into account such factors, the weight to be placed on them is a matter for the Director and not for the Court: see PVQ & Others v Permanent Secretary for Security, supra, at [59] applying BI v Director of Immigration, supra, at [105].  It is also well established that the Government’s Dependant Visa Policy is not a general family reunion policy: see BI v Director of Immigration, supra, at [63].

25.As the Judge rightly observed, the Director had considered the applicant’s personal and family circumstances when making his decision as set out in the Minutes.  We agree with the Judge that it is reasonably open for the Director to come to the view after considering the relevant circumstances and the available information at the time of the Decision that he was not satisfied that there existed strong compassionate, or humanitarian reasons or other special extenuating grounds warranting a departure from the Dependant Visa Policy in the present case.

26.Insofar as his wife’s health condition is concerned, it is not disputed that those relevant documents were not provided by the applicant to the Director at the time of the Decision.  It is trite that due to the difference in the role of the Court in a judicial review and the role of the primary decision maker, an applicant cannot rely on materials which have not been produced before the Director to contend that the Director erred in not taking those into account unless the decision maker has a positive duty to elicit such materials on his own volition: see Nupur Mst v Director of Immigration, supra, at [14(5)].

27.On the facts of the present case, we agree with the Judge that the applicant cannot rely on facts or matters not put before the Director for his consideration at the time of the Decision.  There is no legally valid basis for the applicant to challenge the Director’s refusal of the Application.

28.Equally, it must be noted that the applicant’s intended judicial review is only seeking to challenge the Decision.  Any matters or documents (including the documents newly submitted by the applicant to this Court)  which were not before the Director at the time of the Decision, fall outside the ambit of the applicant’s intended judicial review and are irrelevant to the present appeal.

29.The applicant’s present attempt in effect seeks to challenge the Further Decision, which is a fresh, separate and different decision made by the Director based on new additional information and / or materials regarding Ms L’s ill health which were not before the Director at the time of the Decision.  In the premises, it is simply not open to him to do so in the present application for leave to judicial review and this appeal.

30.As to the applicant’s complaint of procedural irregularity regarding the Director’s delay in processing the Application, this point was never advanced before the Judge or in the Form 86.  As stated above, it is not permissible to raise at an appeal a new ground or argument that is fact sensitive: see Re Malik Ghulam Rasool [2021] HKCA 170 at [28].  In any event, his complaint is a bare and general one without any specific particulars or evidence in support.  More importantly, the applicant failed to demonstrate any prejudice he has suffered as a result of the alleged delay.

31.In the premises, Ground 2 must also fail.

F.    CONCLUSION

32.For all the above reasons, we see no basis to disturb the Judgment.  Accordingly, we dismiss the applicant’s appeal.

33.As to costs, we see no reason why costs should not follow the event.  In particular, the applicant’s appeal is entirely hopeless and he pursued his intended judicial review and the present appeal principally to advance his and Ms L’s personal private interests.  The applicant’s general and bare contention during the hearing that he lacked financial resources is not an exceptional reason to depart from the normal costs rule in the present case: see also Chan Noi Heung v Chief Executive in Council [2009] 3 HKLRD 362 at [21].  After considering the circumstances of this appeal, in particular, there being no merit or public interest involved, we see no basis to warrant a departure from the normal costs rule.

34.Accordingly, we order the applicant to pay the costs of the present appeal to the Director, to be assessed summarily.  We direct that the Director shall file and serve a statement of costs for summary assessment within 14 days of this judgment.  We further direct that the applicant shall file with the Court and serve on the Department of Justice, his written comments (of not more than two pages)  on the Director’s statement of costs, if any, within 14 days thereafter.  If the applicant’s written comments exceed two pages, this Court will disregard those comments for the assessment.  We will thereafter assess the costs summarily on paper.

Mr Gilbert Mok, SGC(Ag)  of Department of Justice, for the putative respondent

The applicant, acting in person