Bath Parbhjot Singh v. Director of Immigration

HCAL 2772/2019

[2022] HKCFI 524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2772 OF 2019

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

Date of Judgment: 22 February 2022

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J U D G M E N T

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A.   Introduction

1.The applicant is an Indian national.  This is his application for leave to challenge the decision of the Director of Immigration dated 19 September 2019 (“Decision”), which confirmed the Director’s previous decision dated 24 May 2019, refusing to grant an extension of stay in Hong Kong.

2.On 30 September 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 within 21 days thereafter.  The Director had filed and served an ‘initial response’ on 4 November 2021.  The deadline for the applicant to file his reply fell on 25 November 2021 and no reply has been filed as of the date of this judgment.

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

4.This Judgment is being handed down at the same time as my Judgment in HCAL 1130/2020 [2022] HKCFI 535, concerning another application for leave to apply for judicial review also made by the same applicant.

B.   Background

5.In 2014, the applicant married Ms Mandeep Kaur (“Wife”) who is a permanent resident of Hong Kong.  In the same year, the applicant applied for a dependant visa to stay in Hong Kong as his Wife’s dependant.  His application was granted in January 2015 and he came to Hong Kong in March 2015. His visa was extended once, and the limit of stay was extended to 26 March 2019.

6.On 25 March 2019, the applicant applied further to extend his visa.  But, by then, he and his Wife were in the middle of divorce proceedings.  Indeed, as early as 15 March 2016 (about 10 days after the last extension was approved), the Director received a letter from the Wife stating that she was no longer willing to sponsor the applicant’s stay in Hong Kong.

7.In the application for extension of stay, the applicant clearly indicated that he sought the extension not as the Wife’s dependant but on his own merits.  He asked the Director to consider granting the extension “despite the fact that [his] original dependent factor does not exist because of the divorce proceeding”.  He put forward three grounds in support:

(1)  In addition to seeking permission to file a reply to the divorce petition out of time, he was applying for custody of his son in the divorce proceedings.  He should be allowed to stay in Hong Kong to fight the custody, and to seize time with his son.  Not extending his stay in Hong Kong would deny him of the opportunity to play a role in the upbringing of his son.

(2)  He had an injury at work in August 2017 and was commencing an employees’ compensation claim in the District Court.  He had to stay in Hong Kong to give regular instructions to his lawyers.

(3)  He earned around HK$26,000 per month and did not have to, nor did he intend to, live on public funds.

8.In an Immigration Department internal memo dated 22 May 2019, it was noted that the withdrawal of the sponsoring Wife’s sponsorship rendered the application outside the prevailing dependant visa policy, without any other eligible sponsors provided.  The reasons for the request to stay in Hong Kong were noted and considered.  But, having considered all available information and surrounding circumstances of the case, substantial changes in circumstances had been revealed, and there were no extenuating grounds which warranted an exceptional consideration.

9.By letter dated 24 May 2019, the Director rejected the extension of stay application.  It was explained that since the applicant had lost the sponsorship of the Wife, he was no longer eligible to remain in Hong Kong on a dependant status.  Further, based on the available information, the Director did not find any strong extenuating grounds which would justify exceptional treatment to the applicant.

10.The applicant then instructed a law firm, Wai & Co Solicitors, which by letter dated 31 May 2019 on behalf of the applicant requested a reconsideration.  No new information was provided in that letter.  The Director refused to reverse the original decision by letter dated 9 September 2019.

11.By letter dated 16 September 2019, Wai & Co requested a second reconsideration.  This time, the Director was informed that the Family Court had granted joint custody of the son to both the applicant and the Wife on the parties’ consent.  Since the son was staying in Hong Kong, the Director was asked to grant extension of stay so as to allow the applicant to spend as much time as he could with his son, and it was said denying the extension would jeopardize the applicant’s right to play a role in the upbringing of his son.

12.It was also reported in the 16 September 2019 letter that the applicant had settled his employees’ compensation claim and was expecting compensation payment.  He had commenced a personal injury claim and would have to give regular instructions to his lawyers.  Disallowing extension of stay to him might affect his legal entitlement.

13.By letter dated 20 September 2019 (the Decision the subject of the intended judicial review), the Director maintained the original decision.  It was said that the available information revealed no strong grounds to justify the applicant’s continuous presence in Hong Kong.

14.The Decision was supported by the Director’s internal minute dated 19 September 2019.  In the minute, it was said that both the custody issue and the legal representation issue was considered in a previous minute dated 6 September 2019, and neither of them were thought to constitute strong factors to reverse the original decision.  In the internal minute dated 6 September 2019, the Director considered that it was up to the applicant and his Wife to decide where the son should live, and if they arranged for the son to live in Hong Kong, the applicant could come to visit the son on a visitor basis, assuming that he could comply with normal immigration requirements.  As for the legal representation point, the Director considered that instructions could be given by letters, emails, faxes or phone calls.

15.As to the applicant’s current status, he has been overstaying in Hong Kong since the expiry of his limit of stay on 27 March 2019 (albeit that he has continued to be physically present in Hong Kong on sufferance since then).  During an interview with the Immigration Department on 26 October 2021, the applicant was asked about progress of the divorce proceedings, and in particular as regards the custody rights issue relating to his son.  The applicant answered that he had attended the hearing on 4 August 2020, but had no contact with his solicitors since then.  No further information was provided thereafter.

16.Reference can be made to the connected Judgment [2022] HKCFI 535, handed down at the same time as this Judgment, for a review of the updated position of the Family Court proceedings as shown in the relevant Family Court file.  In passing, it might be noted that – as can be seen from that Judgment – by the date of the applicant’s interview with the Immigration Department on 26 October 2021, the custody dispute had in fact been resolved at a hearing on 4 March 2021, at which the applicant was absent despite a previous order that he should personally attend.  Also, though the applicant was given leave to apply for access with the son, it seems that no such application was made and no access had occurred.

C.   Proposed grounds of review

17.No grounds were advanced in the Form 86.  In the applicant’s supporting affirmation, it is stated that (sic):

The decision taken by the Director of Immigration to refuse my application for Extension of Stay is not fair to me because according to the orders of the Family Court, I have defined access to meet my son.  If I am sent back to India, I would lose my right to see my son regularly and this would affect me and my son.  It is clear that my case fall into the category of Humanitarian grounds and the Director of Immigration should have used his discretion to grant me an extension of stay so I could play a much needed role in my son’s upbringing.

D.   Suggested Delay in Application

18.The Director submits that the applicant delayed for almost one month in filing the Form 86 on 20 September 2019.  He submitted that the substantive decision under challenge was the original refusal dated 24 May 2019.  Citing LK & Others v Director of Immigration, unreported, HCAL 77, 98, 100/2014, §178(1) in support, the Director argued that the applicant could not circumvent the usual three months’ limit by requesting a reconsideration of the original decision.

19.But I do not agree that there was delay in this case.  The applicant did submit additional information by letter dated 16 September 2019 in support of his request for a reconsideration.  He updated the Director about the custody order granted by the Family Court and the progress of his employees’ compensation claim and personal injury claim.

20.Although, as shown in the Director’s internal minute dated 19 September 2019, the Director did not seem to consider that any new matters of substance had been raised, the applicant was justified in believing that the progress of his custody battle and work injury litigations may weigh in the Director’s decision-making process.  The request for reconsideration was not simply a request to extend time within which to challenge the original decision.

21.In any event, even if it is thought that the intended challenge is to the original decision dated 24 May 2019, I would in the particular circumstances of this case have granted the necessary extension of time.

E.   Merits

22.The applicant clearly understood that he could no longer extend his stay as the Wife’s dependant, since he had lost her sponsorship.  His request for extension was pursued on his own merits and he was asking for exceptional treatment based on humanitarian and compassionate grounds.

23.Since he could not bring himself within any of the established immigration policy adopted by the Director, his request to stay in Hong Kong thus falls to be decided by the exercise of the Director’s broad general discretion.

24.The Court has long recognized that the Director enjoys a very wide discretion in immigration control matters in light of Hong Kong’s special socio-economic and geographical features.  Persons with no right of abode in Hong Kong or right to land in Hong Kong cannot enter or stay in Hong Kong without the permission of the Director.  For considerations which the Director is not duty bound to take into account, it is up to the Director to decide whether such factors should be taken into account as relevant and, if so, the appropriate weight to be ascribed to them.  Humanitarian or compassionate considerations are examples in this category: see BI v Director of Immigration [2016] HKLRD 520 at §47, endorsing §§61-66 of the judgment below.

25.In the circumstances, the only conventional head for judicial review which may assist the applicant is irrationality.  But the applicant faces a high threshold in arguing that the Director had been irrational in refusing to grant him an extension of stay despite the fact that he had lost his sponsorship.

26.The applicant’s desire to be involved in the upbringing of his son (who was staying in Hong Kong) is broadly speaking a family matter which, as the applicant has accepted, falls within the category of humanitarian or compassionate grounds and the Director may but is not required to consider them: see Comilang Milagros Tecson v director of Immigration [2018] 2 HKLRD 534, at §96.  Nor can the applicant rely on the family right or interest of his son (presumably a permanent resident of Hong Kong): see Comilang at §88-89.

27.Some might consider that the Director’s suggestion – that the applicant could come to Hong Kong on visitor’s visa to meet with his son – is less than ideal from a father’s perspective and/or from the son’s perspective.  But (even ignoring the rather different factual picture painted by the documents in the Family Court file), the Director could not be criticised as being irrational in giving no or minimal weight to this consideration.

28.In his supporting affirmation, the applicant did not rely on the legal representation issue or the fact that he does not need public funds.  But in any event, it is clear that the Director could not be criticized for not considering these factors as sufficient to justify exceptional treatment.

29.There are no reasonably arguable grounds of review.

F.   Conclusion

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

The applicant, acting in person

Mr Frenki Fung, Government Counsel, of the Department of Justice, for the putative respondent