Yu Pik Ying and Another v. Director of Immigration Department

HCAL001804/2000

HCAL 1804/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1804 OF 2000

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Coram: Hon Chung J in Court

Date of Hearing: 15 September 2000

Date of Handing Down Reasons for Ruling: 21 September 2000

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REASONS FOR RULING

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Introduction

1. This is an application for leave to apply for judicial review. It arises out of an earlier application by the 2nd Applicant, a Nigerian national, to the Immigration Department to change his immigration status. The decisions under challenge in this application are:

(a) the decision of the Director of Immigration ("the Director") stated in his letter dated 28 January 1999 refusing the 2nd Applicant's application for a dependant visa;

(b) the Director's decision made on or about 23 March 2000 to issue a removal order against the 2nd Applicant; and

(c) the Director's decision stated in his letter dated 13 April 2000 refusing the 2nd Applicant's application for a dependant visa.

2. The 1st Applicant is a Hong Kong permanent resident born in 1969. She now works as a cashier and a part-time private tutor. The 2nd Applicant was born in Nigeria in 1969 and came to Hong Kong as a visitor in April 1998. The 1st and 2nd Applicants met in Hong Kong and they were married here on 12 October 1998. On 3 November 1998, the 2nd Applicant applied to the Director for a change of immigration status to join the 1st Applicant as her dependant. In a letter dated 28 January 1999, the Director refused this application on the ground that:

"Having taken into account the information made available and the circumstances of your case, I am not satisfied that the marriage is genuine one in that I do not believe that you intend to live together permanently with [the 1st Applicant] as husband and wife ..... "

(the 1st Decision).

3. Although relief is sought in respect of the 1st Decision (see p.2 Form 86A), no reason is put forward in Form 86A (especially the part headed "Legal Submissions") to challenge it. In fact, I do not consider that the 1st Decision can be validly challenged because:

(a) the 1st Decision was not unreasonable in view of the discrepant answers given respectively by the 1st Applicant and the 2nd Applicant when they were separately interviewed by the officers of the Immigration Department on 11 January 1999; and

(b) the further materials furnished by the Applicants in support of their case that the marriage was genuine were only provided in April 2000.

In any event, the 1st Decision was overtaken by subsequent events, namely, the Director later refused the 2nd Applicant's application on the separate ground that the 1st Applicant was not financially capable of supporting the 2nd Applicant: see the Director's letter dated 13 April 2000 ("the 3rd Decision").

4. At the end of the hearing on 15 September 2000, I refused this application. The reasons are as follows.

(a) Legitimate Expectation

5. The part of Form 86A headed "Legal Submissions" complains, among other things, that the Director had induced a legitimate expectation on the Applicants' part that no other ground will be relied upon by the Director to refuse the 2nd Applicant's application. Reliance is placed upon The Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 and R v. Secretary of State for the Home Affairs, ex parte Asif Mahmood Khan [1984] 1 WLR 1337.

6. In order to found a complaint based on the doctrine of legitimate expectation, there must have been a "promise", statement or undertaking. In the above 2 cases, there was a pronouncement from the government either that a certain procedure would be followed, or that certain criteria for assessment would be adopted, by the authorities. Ms Lau, for the Applicants, argued that because of the way in which:

(1) the letter of 28 January 1999 was worded; and/or

(2) the Director and the Applicants corresponded from 28 January 1999 to 13 April 2000,

the Director has induced such a legitimate expectation on the Applicants' part. I do not agree. The letter dated 28 January 1999 was nothing more than a letter of refusal. Merely because the letter stated only one ground for refusal does not mean that the Director could not later rely on other grounds. Furthermore, the mere fact that the Applicants responded further to the reason given in the said letter would not create the legitimate expectation that Ms Lau is now contending for.

7. Ms Lau submitted that the facts of this case were unique in that the parties further corresponded as stated in sub-para. (2) above. With respect, I disagree because where a reason has been given in a letter of refusal from a public authority, it would be natural for the recipient (if he is dissatisfied with the reason given and decides to respond further) to correspond further with regard to that reason.

8. If a legitimate expectation can thereby be induced in the present case, there is no valid reason why a similar expectation will not be induced in all cases with similar correspondence. This will result in a duty being imposed on the public authorities to investigate all possible reasons in support of the refusal and to set them out in full in a letter of refusal. Ms Lau argued that this would promote good administration. Again I disagree. Once the Director has considered that there is a valid ground for him to determine an application made before him, I do not consider that the law should somehow impose on him a duty, first of all, to go on to consider other possible grounds and then to inform the Applicant of these other matters. I do not see any good reason (whether on legal or public policy grounds) to impose such a duty on the Director. Indeed, to do so would result in time and expenses of public officials being wasted in matters which are or may turn out to be unnecessary or immaterial.

(b) Wednesbury Unreasonableness

9. The second complaint is that the 3rd Decision was unreasonable in the Wednesbury sense. I do not agree because:

(1) the facts placed before the Director regarding the 1st Applicant's means were not such as would render his decision one which a decision-making body could not reasonably make; and

(2) as such, the 3rd Decision was one for the Director as an administrative decision-maker to make and not one for the Court to intervene.

(c) The Basic Law and International Treaties

10. The third complaint is that the 3rd Decision was Wednesbury unreasonable because the Director failed to take into account Article 37 of the Basic Law or International Treaties including the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Right of the Child (CRC) and the International Covenant on Economic Social and Cultural Rights (ICESCR).

11. It must be noted that the Applicants accept that by virtue of Article 39 of the Basic Law, the rights and freedom provided for in Article 37 thereof may be restricted by law. They also accept that in the immigration context the Director has wide discretionary powers in his role as the administrator of the scheme of immigration control embodied in the Immigration Ordinance.

12. I observed firstly that there is no direct evidence that the Director has not taken these matters into account. Ms Lau relies on the lack of an express reference in the Director's letters to the Basic Law or the International Treaties as evidence that the Director has not taken them into account. I do not agree. It has been decided that the Director is not obliged in law to set out all the matters pertaining to the decision he made.

13. Furthermore, it appears to be the Applicants' argument that if the Director had taken these matters into account, he would have been bound to decide the 2nd Applicant's application in his favour. Insofar as the Applicants should rely on this argument, I agree with the Respondent's submissions as follows:

(a) as accepted by the Applicants, even if the Director had borne Article 37 of the Basic Law in mind, the matter would still have been one for his discretion because no visitor is entitled as of right to stay in Hong Kong when he or she is married to a Hong Kong permanent resident;

(b) as was decided in previous cases, there can be no legitimate expectation that the Director must take into account the International Treaties; and

(c) these International Treaties do not create any actionable individual rights against a state in respect of immigration control.

Conclusion

14. For the above reasons, I do not find this to be a case where the materials disclose matters which, on further consideration, might demonstrate an arguable case for the grant of the relief claimed.

15. The application is refused and it is therefore unnecessary to deal with the application for extension of time.

Representation:

Ms Selina Lau, instructed by Messrs Barnes & Daly, assigned by DLA, for the 1st and 2nd Applicants

Mr Wesley W C Wong, instructed by the Department of Justice, for the Respondent

Remarks:
Appeal by the 1st and 2nd Applicants to the Court of Appeal. Appeal allowed. Please refer to the Appeal Judgment CACV000603/2000.