Manik Md Zahidur Rahman v. Director of Immigration

HCAL 1384/2019

[2022] HKCFI 520

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1384 OF 2019

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

Date of Judgment: 18 February 2022

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J U D G M E N T

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A.    Introduction

1.By a Form 86 dated 22 May 2019, the applicant sought leave to bring a judicial review challenge to the Director’s decision (“Decision”), conveyed to the applicant by letter dated 22 February 2019, rejecting the applicant’s application for a dependant visa.

2.On 5 November 2021, I directed the Director to file an ‘initial response’ within 35 days and granted leave to the applicant to file and serve a reply within 21 days thereafter.  The Director filed and served an ‘initial response’ on 10 December 2021, in which the Director opposes the grant of leave on the basis that the grounds advanced by the applicant do not have a reasonably arguable prospect of success. The deadline for the applicant to file his reply, if any, fell on 31 December 2021, but no reply has been filed as of the date of this judgment.

3.Having considered all the materials before the Court, I am of the view that this leave application can be properly determined on paper.

B.    Background Facts

4.The applicant is a Bangladeshi national, born on 10 November 1984 in Bangladesh.  The applicant has claimed to have entered Hong Kong unlawfully from Shenzhen by boat on 11 January 2007.  On 30 December 2007, the applicant was arrested by police for the suspected offence of illegally remaining in Hong Kong.  He indicated that he had registered with the then applicable mechanism for filing a non-refoulement claim.  At that time, the Director decided not to prosecute him for the offence of illegally remaining, pending the resolution of his non-refoulement claim.  The applicant was released on recognizance on 19 January 2008.

5.However, in April 2008, the applicant was arrested when he was washing a vehicle in a car washing company.  The Director then prosecuted him for illegally remaining in Hong Kong after having landed unlawfully.  He was convicted after trial in June 2008 and was sentenced to imprisonment of 14 months and one week.  The sentence was confirmed by the magistrate on 11 July 2008, after the applicant sought a review.  He served his sentence and was released on 29 January 2009.

6.A removal order was issued against the applicant on 19 February 2009.  But the Director has decided not to execute the order pending the determination of his non-refoulement claim.  The applicant has remained in Hong Kong ever since.

7.In 2015, he married Madam Pang Siu Fung, who is a permanent resident of Hong Kong.  In April 2018, through his then legal representative, the applicant applied for a dependant visa.  The Director invited Madam Pang to provide further supporting documents and information in respect of the application, and supporting documents were submitted in July, October and December 2018.

8.As shown in the Director’s internal memo dated 18 February 2019, having considered all relevant circumstances of the case including the supporting materials submitted by the applicant and Madam Pang, the Director concluded that the application should be rejected because the applicant failed to meet (a) the eligibility criteria that there is “no record of detriment” and (b) the normal immigration requirement including that the applicant must be of “clear criminal record” and raises no security or criminal concerns.  The applicant’s 2008 conviction was considered to be both a record of detriment and a criminal record.  The Director also considered that there were no strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional treatment or departure from the prevailing policy.

9.By letter dated 22 February 2019, the applicant was notified of the Decision.

10.The 2018 application was the applicant’s second application for a dependant visa.  He had applied for a dependant visa once before in 2017, and that application had also been rejected on the same grounds.

11.The applicant’s current status is that he is an illegal immigrant currently released on recognizance.  His various non-refoulement claims were rejected, including by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) on 3 September 2021. On 2 December 2021, the applicant applied for leave to apply for judicial review against the Board’s decision.

C.     The Director’s Policy on Dependant Visa

12.The Director’s policy for issuing a dependant visa is published in the “Guidebook for Entry for Residence as Dependants in Hong Kong” (“Guidebook”).  The relevant version for present consideration is the 2015 version.

13.Section II of the Guidebook is headed “Eligibility Criteria”.  This section lists out various eligibility criteria for the issuance of a dependent visa, one of which is that “there is no known record to the detriment of the applicant”: see §5(b).

14.The Guidebook at §15 further provides that a dependent visa applicant, on top of meeting the eligibility criteria specific for dependent visa applications, should also meet the normal immigration requirements.  It is stated that:

While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligbility criteria detailed above before he/she may be considered for the grant of a visa/entry permit.

15.In the immigration context, it is well settled that:

(1)  Where the Director has adopted policies or practices regarding the exercise of his discretion, the public law would require the Director to act properly in accordance with such policies or practices, see BI v Director of Immigration [2016] HKLRD 520 at §47, endorsing§62(2) of the judgment below.

(2)  The policy contained in the Guidebook has been held to “rational and easy to follow” overall: see BI at §89, where §3 and §15 of the version considered are identical to §5 and §15 of the current version of the Guidebook.

(3)  The “no record of detriment” requirement is not merely a relevant factor that the Director has to consider but a criterion which must be satisfied before an applicant can be issued a dependent visa: see BI at §§77-82.

(4)  “Record of detriment” is not confined to criminal conviction, and still less, conviction of a serious crime.  Whether any particular record is to the detriment of the applicant in any given case is a matter primarily for the Director to decide, subject to the supervisory jurisdiction of the court: see H v Director of Immigration, (unreported, HCAL 172/2015, 3 November 2016) at §§43-49.

(5)  The “clear criminal record” requirement, being part of the normal immigration requirements set out in §15 of the Guidebook, is also an eligibility criterion for visa dependent applicants rather than simply a relevant factor: see H at §54.

(6)  If an applicant could not meet all the eligibility criteria, the Director is still entitled to consider whether the overall circumstances of the case warrant exceptional treatment.  For factors which the Director are not duty bound to take into account, it is for the Director to decide what factors he should have regard to in the exercise of his discretion and the proper weight (if any) to be given to them: see BI at §47, endorsing §§64-65 of the judgment below.

D.     Grounds of application

16.The applicant advanced eight grounds in his Form 86, which I think can be summarised as the following:

(1)   He was wrongfully arrested and convicted in 2008.  He was only meeting up with a friend instead of working at the point of arrest.  Also, his conviction was 11 years ago (by the time of his Form 86), and he has not committed any criminal offence in that time.

(2)   The Director has accepted several dependant visa applications even if the applicants have several serious criminal records in Hong Kong.

(3)   The Director did not properly consider or give proper weight to the fact that he had a real and true matrimonial relationship with Madam Pang.  It is unjust, inhumane and cruel to separate the applicant from his wife by an immigration decision.

(4)   He is unable to afford legal representation due to lack of financial means.

E.     Any Merit in Grounds Advanced?

17.The applicant’s 2008 conviction for illegally remaining (and working) in Hong Kong is clearly a criminal record.  Thus, he has failed to meet the clear criminal record requirement.  On that basis alone, the Director was entitled to reject his application under the prevailing policy.

18.Further, the Director also cannot be flawed for considering a criminal conviction carrying a 14 months’ sentence as a record a detriment.  This is an additional ground which could justify the Decision.

19.The applicant seems to suggest that he was wrongly convicted and in any event too much weight had been placed on that conviction since it was more than a decade old.  However, first, the applicant’s 2008 conviction is a historical fact.  Any argument to the contrary is untenable.  The applicant might have his own view on the merits of that conviction, but the Director was entitled to view that historical fact as it is, and that could by no means render the Decision unlawful or irrational in the public law sense.  The applicant was convicted after trial and that conviction has not been disturbed.  To say that the applicant was wrongfully convicted would be a collateral attack on the verdict of the criminal court.  There are no exceptional circumstances wanting the engagement of the supervisory jurisdiction by way of judicial review, as opposed to challenging the conviction by way of an appeal.  The Director could not possibly be criticized for not coming to his view.

20.Given that the 2008 conviction could properly be seen as a record of detriment and a criminal record, the applicant’s submission that the conviction was more than 10 years ago is at best a plea for exceptional treatment despite his failure to meet the eligibility criteria.  It is a matter for the Director to decide how much weight to put on such factors.

21.Nor is there any merit in the assertion that the Decision is a departure from other similar cases.  Nothing in the present case suggests that the Director’s decision was irrational, or that the Director had taken irrelevant factors or failed to take relevant factors into consideration.  Indeed, ample opportunity was given to the applicant to provide information and supporting documents, so that there can be no suggestion of procedural unfairness in the decision-making process.

22.Similarly, the applicant’s submission that he had a true and real marriage with Madam Pang, and that it would be cruel and inhumane to separate them, is also no more than a plea for exceptional treatment.

23.It is not unreasonable in the public law sense for the Director to conclude that there were no extenuating grounds warranting exceptional treatment.  The existence of genuine relationship is a necessary criterion but obviously insufficient on its own to compel the granting of a dependent visa.  Some might think that the 2008 conviction should be ignored, given that the applicant had been law-abiding for more than a decade by the time of his visa dependant application.  But it is not for the Court to substitute its own view with that of the Director unless the Director’s view was Wednesbury unreasonable, and it was not so.

24.For the sake of completeness, the lack of legal presentation is obviously not a viable ground.

25.None of the grounds advanced by the applicant have a reasonably arguable prospect of success.  Therefore, the application for leave does not cross the threshold requirement for the grant of leave.

F.    Conclusion

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

The applicant, acting in person

Ms Karen Ngai, Senior Government Counsel (Ag.), of the Department of Justice, for the putative respondent