Kang Davinder Kaur v. Director of Immigration

HCAL 1401/2018

[2022] HKCFI 1186

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1401 OF 2018

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

Date of Submissions:  22 March and 11 April 2022

Date of Decision:  26 April 2022

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D E C I S I O N

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A. Introduction

1.By Form 86 dated 16 July 2018, the Applicant seeks leave to review the Director’s decision dated 11 July 2018 (“2^nd Decision”) refusing to extend the Applicant’s dependant visa. The 2^nd Decision was a confirmation of the Director’s earlier decision dated 22 January 2018 (“1^st Decision”).

2.The Applicant originally requested an oral hearing if leave were not to be granted on paper. In July 2018, Chow J (as Chow JA then was) gave directions for an oral hearing with two hours reserved. The case then lay dormant because no action was taken by the Applicant to fix the hearing date. The case was only brought again to the Court’s attention when the Applicant wrote, to enquire about the “updates” of her application, on 30 September 2021 (by which time I had taken over the List).

3.Further case management directions were then given. Following those directions, the Director has filed and served an ‘initial response’ on 22 March 2022.

4.The Applicant initially indicated she would want to instruct Counsel to represent her in the oral hearing to be fixed. But by letter dated 7 April 2022 issued by her solicitor, she said she would waive her right to have an oral hearing and would like to have her application determined on paper. It was also said that she would no longer be represented by that law firm and that she would file her reply to the Director’s initial response in person.

5.On 8 April 2022, I directed the application to be dealt with on paper and granted leave for her to file and serve her reply to the Director’s initial response on or before 11 April 2022. The Court received a set of written submissions with a copy of the authorities and materials relied upon by the Applicant within the deadline.

6.I have considered all the materials available to the Court. This is my Decision.

B.  Background

7.The Applicant was born in India in 1983. She married her late husband, who was a permanent Hong Kong resident, in 2012. In 2013, she was granted a dependant visa with a limit of stay last extended to 6 October 2017. Sadly, the husband passed away in India on 12 June 2017, before the expiry of the last limit of stay.

8.On 27 September 2017, the Applicant applied to extend her visa. In her application, she mentioned that her husband had passed away, but pleaded for the Director to let her stay. She said she had no family and no one in India. All she had was the family from her husband’s side in Hong Kong. Her husband’s family had been taking care of her and she taking care of them. Her husband’s family wanted her to stay in Hong Kong.

9.By letter dated 14 October 2017, noting that she had fallen outside the prevailing policies for an entry visa, the Director requested the Applicant to provide all supporting documents and information to support an exceptional consideration of her application.

10.The Applicant provided two similarly drafted letters from her sister-in-law and brother-in-law, both dated 10 January 2018. They said the husband’s side of the family were the only ties the Applicant had, and she had no one in India. They also said that the Applicant would work a full-time job. They supported her application. Also provided was a statement of her family background in the Director’s standard form and completed by her. It was stated that her parents and two siblings were in India.

11.By letter dated 22 January 2018 (i.e. the 1^st Decision), the Director rejected the application. It was pointed out that since she had lost the sponsorship from her late husband, the Applicant was no longer eligible to remain in Hong Kong on a dependant status. It was also stated that there were no overwhelming/extenuating grounds justifying exceptional consideration.

12.The 1^st Decision was backed up by the Director’s internal minute dated 19 January 2018. There, it appeared that the Director had access to more materials than those mentioned above. The Director summarized the Applicant’s bases for her stay application as follows: (1) she had no family members in India; (2) she wished to stay with and take care of her in-law family in Hong Kong who supported her staying in Hong Kong; (3) the death of her husband was beyond her control; (4) she has nowhere to go in India; (5) she can hardly get a job in India; and (6) she can continue with her job in Hong Kong to support herself if she is allowed to stay here. The author of the minute recommended rejecting the application on the grounds that the Applicant was an able-bodied adult who had resided in India far longer than in Hong Kong by the time of the application and her in-laws were free to reunite with her in India. The recommendation was approved by the Director.

13.It seems the Applicant sought Legal Aid to challenge the 1^st Decision, but ultimately no challenge was made.

14.Instead, by letter dated 11 July 2018, the Applicant requested a reconsideration of her position. She reiterated that she had no social support in India, she could work to support herself in Hong Kong and that she had to handle her late husband’s MPF account. She also mentioned that her life would be in danger if she were to return to India.

15.As shown in the internal minute also dated 11 July 2018, it was considered that no new information had been provided to support the reconsideration. It was said that whilst the Applicant claimed to be in danger if she were to return to India, no evidence was provided to substantiate the assertion. Nor did she explain why she had to stay in Hong Kong to handle her husband’s MPF account. By letter dated 11 July 2018, the Director rejected the reconsideration request on the basis that no new matters had been raised (this is the 2^nd Decision). She was requested to leave Hong Kong no later than 18 July 2018.

16.The Applicant has been overstaying in Hong Kong since 7 October 2017.

C.  Proposed Grounds

17.Whilst the Applicant is now acting in person, her Form 86 was settled by Mr Devin CI Sio of Counsel. The written submissions she recently filed were not signed by anyone, but were prepared in the format and style commonly found in such documents, and included reference to the copy authorities provided.

18.The Applicant put forward two main grounds: (1) fettering of discretion by an overly rigid application of policy; and (2) procedural impropriety by failing to take into account relevant considerations. I can consider each in turn.

D.  Ground 1: Overly Rigid Application of Policy

19.The first ground is that the Director has fettered his discretion by applying the prevailing dependant visa policy blindly and in an overly rigid manner. Whilst there seems to be some suggestion in passing that the policy itself is too rigid and does not permit exception, the main thrust seems to be that the Director rejected the application solely on the basis of the dependant visa policy without properly considering the merits of the application.

20.This first ground must fail as being unarguable. The Director clearly did not allow his overall discretion to be fettered by the dependant policy. This is evident from the fact that the application was still considered despite its falling outside the dependant visa policy. The Director expressly invited the provision of such documents and information which the Applicant might wish to provide to seek to show that exceptional treatment was warranted.

21.It might also be pointed out that this Ground 1 is inconsistent with the complaint underpinning the alternative Ground 2.

E.  Ground 2: Procedural Impropriety

22.In the Form 86, the second ground – which is framed as “procedural impropriety” – is that the Director has failed to take into account relevant considerations. The considerations said to be relevant are that:

(1)  The Applicant’s family-in-law are all Hong Kong permanent residents who are living in Hong Kong and who can be the Applicant’s sponsor after the husband passed away.

(2)  If the Applicant returns to India, she will have no job, no family or relative to rely on.

(3)  The Applicant has sufficient funds to support her living.

23.As is stated in the Form 86, it appeared that the complaint only concerned the Director’s failing to take these matters into account and it was not apparent how that could be viewed as procedural impropriety. But in the Applicant’s written submissions, and relying on BI v Director of Immigration [2016] 2 HKLRD 520, the Applicant attempts to make good the submissions on why the failure to take those factors into account would amount to procedural impropriety.

24.The Applicant fairly accepts that the Director enjoys a wide discretion in immigration control matters. For matters which the Director is not legally bound to take into account, it is up to the Director to decide if any matter should be taken into account as relevant and, if so, the weight to be accorded to them: see the BI case at §47, endorsing §64 of the judgment below. Humanitarian considerations are matters within this category.

25.The Applicant also fairly accepts that that the factors she considers relevant are humanitarian considerations, which the Director was under no duty to take into account. However, the Applicant submits that once the Director did give regard to humanitarian considerations, the Court could then intervene if there were unfairness in the process. That submission is made relying on §104 of the BI case,which provides:

In our judgment, in cases where the Director did give regard to humanitarian considerations, the courts could intervene if there were unfairness in the process. In C v Director of Immigration, Sir Anthony Mason NPJ discussed the role of judicial review and pinpointed the rule of law as its foundation. His Lordship explained the limits of judicial review by reference to separation of power considerations and the requirement of justiciability. He also highlighted that some decisions may be reviewable for procedural fairness but not otherwise.

26.The Applicant submits that the Director did consider the humanitarian matters put forward by her, pointing to the Director’s internal memo dated 19 January 2018, at §§8(ii) and (iv). These paragraphs read:

ii)  being [an] able-bodied adult of Indian origin who was brought up in India for many years before coming to HK, subject should have no undue hardship to re-establish herself in India;

iv)  subject’s Indian family members-in-law are free to reunite with her in India should they wish to do so;

27.One of the factors set out in the Form 86 as relevant is that she would have no job and no family to rely on if she were to return to India. It is not unfair to say the Director, as reflected in §8 of the minute, did consider her ability to support herself in India. I agree that it is open to the Court to intervene if there was procedural unfairness in arriving at the observations at §8.

28.In the written submissions, the Applicant says the crux of her case is a cultural one. She says that, in Indian culture, a woman once married will become the responsibility of her family-in-law. The existing family members of the Applicant would not see it as their duty to assist the Applicant if she were to return to India. Widows in India are known to face severe socio-economic problems with little prospect of re-marrying. The Applicant says these cultural matters do not require any specialist degree of knowledge to understand. But she also seeks to rely on an article titled ‘Widow Remarriage in India’ (apparently written by a Doctor Kapur) which is annexed to the written submissions. She also seeks to rely on the humble and traditional personal background of herself and that her original family are from “poor farming stock”.

29.The thrust of her complaint in procedural impropriety is that the Director, in concluding that there would be no undue hardship for the her to re-establish herself in India, has failed to make any cursory attempt to understand the culture and personal background of the Applicant, including by inviting her to explain further on such matters.

30.I do not accept this argument. From the material available to me, the (or any) cultural predicaments facing widows in India were not put forward for the Director’s consideration. In the letter dated 14 October 2017, the Director asked the applicant to provide “all” supporting documents and information for her case to be considered on an exceptional basis. It fell to the Applicant to present to the Director everything she considered relevant to support her case. I do not agree that the Director should be taken to have any knowledge regarding what is said to be the widow culture in India generally. Nor does he have any duty to enquire into such “background” when these matters have not even been drawn to his attention. The Director cannot be criticized for failing to enquire further into factual matters of which he had never been told.

31.Similarly, the personal background of the Applicant – that she was from a humble and traditional background and that her family was from poor farming stock – also had not been submitted for the Director’s consideration, and so could not give rise to any arguable public law complaint.

F.  Other matters

32.For the sake of completeness, I should also mention the following matters.

33.In the Applicant’s written submissions, it is also said that the Director’s comment in the internal memo that the “[the Applicant]’s Indian family members-in-law are free to reunite with her in India” is highly unreasonable. It is said that the obvious and more reasonable solution is to allow the in-laws to continue to support the Applicant in Hong Kong as sponsors of her visa.

34.However, the applicable dependant visa policy (as contained in the ‘Guidebook for Entry for Residence as Dependants in Hong Kong’, published in April 2015) does not allow members of a person’s family-in-law to be the sponsor. Nor was there such an application made to the Director for his consideration.

35.This is no more than a plea for the Director to grant the application despite the fact that it has fallen outside the prevailing policies. As such, the alleged unreasonableness in the Director’s refusal has to overcome the high threshold of irrationality to warrant the Court’s intervention in the Director’s exercise of discretion. It is settled that the weight the Director may place on any particular circumstances of an applicant’s case are matters for the Director to decide. Whilst one may easily sympathize with the Applicant, it is not for the Court to substitute its own decision for that of the Director. The Director’s decision is not unreasonable or irrational in the public law sense.

G.  Conclusion

36.As noted above, the difficulties said in her written submissions to be faced by the Applicant, including the suggested predicament of widows in India, and the general approach to a married woman’s in-laws, have not been previously drawn to the Director’s attention. There has also been the passage of considerable time (approaching 4 years) since the 2^nd Decision, and I do not know what other potentially factual matters or changes might have occurred in that time.

37.However, there are no viable public law grounds arising on this challenge to the 2^nd Decision, on the facts. I therefore dismiss the Applicant’s application for leave to apply for judicial review. In the exercise of my discretion, I make no order as to costs.

The applicant, acting in person

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