Ghale Babu v. Director of Immigration

HCAL 2315/2019

[2022] HKCFI 521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2315 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.The applicant is a Nepalese national.  This is his leave application by way of Form 86 filed on 13 August 2019 to challenge the Director’s decision dated 31 May 2019 (“Decision”), by which the Director confirmed his earlier decision dated 25 January 2019, refusing to grant an employment visa to the applicant.

2.On 4 October 2021, I directed the Director to file and serve an ‘initial response’ within 35 days and granted leave to the applicant to file and serve a reply, if any, within 21 days thereafter.  The Director filed and serve an ‘initial response’ on 8 November 2021. The deadline for the applicant to file his reply, if any, fell on 29 November 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.   The General Employment Policy

4.The Director administers various schemes or policies for granting entry or stay in Hong Kong for employment purposes.  The one under which the applicant applied is called the “General Employment Policy” (“GEP”).  The GEP is contained in the “Guidebook for Entry for Employment as Professionals in Hong Kong” (“Guidebook”).  The relevant version is the 2017 one.

5.In the Introductory Section, at §5, it is said that “The GEP…do not apply to nationals of Afghanistan, Cuba, Laos, Korea (Democratic People’s Republic of), Nepal and Vietnam” (my emphasis).

6.The eligibility criteria are contained in §§6-7 of the Guidebook:

6.   Applicants who possess special skills, knowledge or experience of value to and not readily available in the HKSAR may apply to come to work under the GEP.

7.   An application for a visa/entry permit to take up employment under the GEP may be favourably considered if:

(a)  there is no security objection and no known record of serious crime in respect of the applicant:

(b)  the applicant has a good education background, normally a first degree in the relevant field, but in special circumstances, good technical qualifications, proven professional abilities and/or relevant experience and achievements supported by documentary evidence may also be accepted;

(c)  there is genuine job vacancy;

(d)  the applicant has a confirmed offer of employment and is employed in a job relevant to his academic qualifications or work experience that cannot be readily taken up by the local work force; and

(d)  the remuneration package including income, accommodation, medical and other fringe benefits is broadly commensurate with the prevailing market level for professionals in the HKSAR.

C.   The Applicant’s application for extension of stay

7.When the applicant first entered Hong Kong in 2013, he entered on the strength of a dependant visa instead of an employment visa.  His wife (or former wife) is a permanent resident of Hong Kong.  His dependant visa was last extended to 22 August 2017.  (Since that date, the applicant has been overstaying in Hong Kong.)

8.In June 2017, the applicant’s wife wrote to inform the Director that she was no longer willing to sponsor the applicant’s dependant visa due to their deteriorating relationship.  In July 2017, the applicant applied to further extend his stay on his own merits.  The applicant was represented in his application by a law firm, CM Chow & Co (“CMC”). The application was rejected by the Director by letter dated 23 February 2018.

9.Subsequently, by letter dated 12 April 2018 and 3 October 2018, the applicant submitted a set of application forms for employment visa under the GEP.  It is not entirely clear why the applicant changed tack.  In both letters, the applicant said the documents and information were provided “in compliance [with]” and “in reply to” the Director’s earlier letters, but those letters have not been provided to the Court.

10.But the applicant was plainly seeking permission from the Director to change his immigration status to enable him to take up employment as the Manager of a guesthouse known as “Kathmandu Guest House” in Chungking Mansions in Tsim Sha Tsui.  The remuneration package included a monthly salary of HK$24,000 and fully furnished accommodation or additional rental allowance of HK$6,000 per month.  His duty was “to manage all affairs of the Guest House and to market and develop business especially in Nepalese community and other foreign and ethnic communities”.  It was said that the applicant was suitable for the post because of his ability to speak both Cantonese and different local dialects in Nepal and his connection with Nepalese communities.  He was also praised for his skills in crisis management, dispute resolution, and negotiation and his charming personality.  The employer considered the applicant very desirable for running and promoting the guesthouse.

11.The Director plus invitation to CMC to provide additional information/documents was responded to by letter of 23 July 2018, enclosing further documents in support of the application.

12.The Director rejected the employment visa application by letter dated 25 January 2019.  It is stated that:

The General Employment Policy does not apply to nationals of Nepal.  Having considered all the available information and circumstances of your case, there is no indication of any overwhelming/extenuating grounds which warrant an exceptional consideration.  Therefore, I regret to inform you that your application is refused.

13.In the internal minute also dated 25 January 2019 in support of the decision (“1^st minute”), it is also stated from the very first paragraph that that the GEP does not apply to nationals of Nepal and that the applicant’s application fell outside the policy.  The minute then went on to cover the immigration history of the applicant, the sponsoring employer, the post offered to the applicant and the applicant’s educational background and work experience.  It was also noted that the sponsoring employer was asked for proof of local recruitment and there was no response on this matter.  It was eventually recommended that the application should be refused because there was “a lack of indication of overwhelming/extenuating grounds which warrant an exceptional consideration”.

14.By letter dated 26 April 2019, the applicant sought a reconsideration of the 25 January 2019 decision. CMC set out detailed grounds for reconsideration, including that the GEP was ill-suited to deal with the applicant because he was already in Hong Kong and was not seeking an entry permission.  It was said that the eligibility criteria of the GEP only make sense for those seeking an entry into Hong Kong.

15.In the same letter, CMC also drew the Director’s attention to the case of Epoch Group v the Director of Immigration, HCAL 43/2010, and submitted that whilst the Director could establish guidelines to guide the exercise of his discretion, he should not fetter his discretion by blindly following the guidelines and failing to take into consideration all relevant matters.  The applicant should not fall outside of the Director’s “prevailing policy of immigration” simply due to his nationality.  It is also stated that the reasons provided in the 25 January 2019 letter and the 1^st minute were only a re-statement of the policy but did not really explain why the applicant was rejected.

16.By letter dated 31 May 2019 (the Decision the subject of the intended challenge), the Director maintained the original decision.  It is only stated that he found no reason or justification to reverse the previous decision after having considered all the available information.

17.In the internal minute dated 30 May 2019 (“2^nd minute”) supporting the Decision, references were made to CMC’s letter requesting re-consideration.  The Director explained that it was wrong to argue that the GEP was not applicable on the basis that the applicant was already in Hong Kong.  The GEP was for both applications to enter and applications to stay in Hong Kong.

18.The Director considered that the GEP was the applicable policy to assess the application.  It is stated that (at §6)

…It is noted that Applicant was previously approved to remain in Hong Kong on dependant status.  As Applicant is applying to change the condition to employment status under GEP, his eligibility criteria to work have to be assessed with regards to GEP.

19.He then went on to say that two eligibility criteria under the GEP were not fulfilled.  First, the employer did not indicate that it had conducted local recruitment for the post to prove that there was a genuine job vacancy which could not be readily taken up by the local force.  Second, the applicant failed the educational and professional qualification requirements.  He only graduated from high school and submitted no certificates or qualifications to show that he had good technical qualifications.

20.The 2^nd minute ended as follows:

To conclude, the refusal decisions of this case were not made mechanically due to Applicant’s nationality as a Nepalese.  Instead, a careful consideration had been conducted and it was found that the GEP eligibility criteria in terms of a genuine job vacancy that cannot be readily taken up by the local workforce and the educational and professional qualifications as professional are not met.  Besides, there was no extenuating ground warranting our exceptional consideration of his extension of stay application under GEP.

D.   Discussion

21.The applicant acts in person in these proceedings.  Neither the intended grounds of review nor the relief sought were provided in the Form 86.  In the supporting affirmation, it was only stated that the Decision was “unfair and erroneous”.

22.Order 53, rule 3(2)(a)(iii) requires the applicant to state the relief sought and the grounds of review in the Form 86. Citing Ho Ka Man (aka 清乾) v The Privacy Commissioner for Personal Data [2018] HKCFI 84, §11 in support, the Director submits that the applicant had failed to do both and it is sufficient to dismiss his application on this basis alone.

23.The Form 86 provided by the applicant provides nothing more than identifying the decision he sought to challenge.  Even if one reads the affirmation, the phrase that the Decision was “unfair and erroneous” without any elaboration could hardly shed light on the applicant’s intended grounds of review.  The Court (and the Director which was directed to submit an initial response in the instant case) should not be made to come up with possible judicial review grounds for the applicant when this duty falls squarely on him.  Nor should judicial review applicants (including litigants in person) be encouraged to think that what they have to do to kick start the judicial machinery in scrutinizing administrative actions is no more than filing a defective Form 86.

24.I agree that on this basis alone, the application should be dismissed.

25.In any event, I do not find any reasonably arguable grounds of review from the materials before the Court.  Though preceding the Decision, and as set out above, CMC had criticised the previous decision by arguing (1) the GEP is “ill-suited” and in apposite to the applicant’s application for change of status, (2) the decision of the Director to refuse the application was irrational, and (3) the Director failed to have regard to all relevant considerations.  These points can be considered for present purposes.

26.At the time of the application under the GEP, the applicant was no longer a lawful resident in Hong Kong.  In any event, the GEP is applicable to persons wishing to enter or to stay in Hong Kong for employment as professionals.  There was no factoring of the decision-making process.  Nor was there any procedural unfairness, when the applicant and his legal representative were given ample opportunity to provide information on supporting documents in support of the application.  The Director having plainly considered and weighed all of the relevant matters, there is nothing in any suggestion that the decision is so unreasonable that no reasonable authority could ever come to it.  The application of policies relevant to applications such as those for an employment visa are essentially a matter for the Director, not the Courts.

27.One may think that there is some tension between the Director’s 1^st minute dated 25 January 2019 and the 2^nd minute dated 30 May 2019.

28.In the 1^st minute, the Director was of the view that the applicant failed at the very threshold of the GEP since Nepalese are expressly excluded from that policy.  That alone could disqualify him from being granted a visa under the GEP.  The Director did not think it necessary to proceed further and check if the eligibility criteria were satisfied.  Thus, visas would only be granted if the applicant could justify exceptional treatment and the Director thought otherwise.

29.In the 2^nd minute, the Director apparently thought it apt to assess the application within the GEP framework and rejected the applicant for failing to meet two of the eligibility criteria.  This seems to suggest that the applicant could have been granted a GEP visa if he had met all the eligibility criteria despite his nationality.

30.The question arises whether the Director had to assess the application under the GEP.  On the clear wordings of the Guidebook, the applicant must fall outside of the GEP.  But that does not mean that the Director could no longer consider factors similar to the eligibility criteria of the GEP.  Not falling within a particular immigration policy relieves the Director of his duty to assess an application within the particular policy framework.  But that certainly does not bar the Director from taking into account considerations in that policy framework if he thinks fit even though strictly speaking that policy is not intended to cover the case before him.  It is well recognized that, for matters which the Director was not duty bound to consider, he can decide what to take into account as relevant and the weight to be given to them: see BI v Director of Immigration [2016] HKLRD 520 at §47, endorsing §§61-66 of the judgment below.

31.Given that the applicant wanted to stay in Hong Kong for employment purpose, it is not irrational in the public law sense for the Director to consider the applicant’s education background and technical qualifications.  Nor was it irrational to consider whether the post offered to him was a genuine one.  Therefore, the Director could not be criticized for considering the applicant’s education/technical qualifications or the genuineness of the post in the 2^nd minute.  It is perhaps slightly puzzling why he would consider those matters within the GEP framework rather than generally (i.e. when examining whether there were extenuating grounds despite the applicant falling outside of the GEP).  But on the present facts, there could be no unfairness to the applicant arising from the fact that his application was assessed under the GEP in the 2^nd minute despite the fact that he was not covered by it.

32.One may query why Nepalese nationals are not covered in the GEP.  There is no material before the Court to shed light on this.  In any event, the applicant does not challenge the scope of policy and the applicant would still have failed to meet the eligibility criteria even if he was not excluded from it.

33.It is not reasonably arguable that the Decision is flawed in the public law sense.

E.    Conclusion

34.The applicant’s application for leave to apply for judicial review is dismissed, with no order as to costs.

The applicant, acting in person

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