Malik Azmat Sherazi v. The Director of Immigration

HCAL000129/1999

HCAL 129/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 129 OF 1999

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Coram: Hon Yeung J in Court

Date of Hearing: 25 January 2000

Date of Judgment: 25 January 2000

Date of Handing Down of Reasons for Judgment: 28 January 2000

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REASONS FOR JUDGMENT

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1. On 25 January 2000, I dismissed the application by the applicant for leave for judicial review of the decision of Director of Immigration (the Director) who refused to allow the applicant to change his status from one of visitor to that of a dependant.

2. I indicated that I would give my reasons. This I now do.

3. The applicant, Mr Malik Azmat Sherazi was born in Pakistan in 1972. He married Tahira Bibi (the sponsor) in 1997 in Pakistan. The sponsor was born in Hong Kong in 1978 when her father was serving as an officer in the Hong Kong Police.

4. In early 1998, the sponsor returned to Hong Kong to resume her status as a permanent resident. The applicant arrived in Hong Kong as a visitor on 2 October 1998 and shortly thereafter applied to change his status as a dependant to enable him to take up residence in Hong Kong.

5. The application was refused by the Director and hence the present application.

6. This court has repeatedly said in the past that an alien visitor has not right to stay in Hong Kong permanently. He came to Hong Kong as a visitor and was allowed to land with a limit of stay. He has no legitimate expectation to be granted residence right in Hong Kong.

7. Understandably, the Director, in certain circumstances can exercise a discretion to allow a change of status so as to enable a visitor to stay in Hong Kong. The Director may have to apply certain policy. But the exercise of the discretion is purely an administrative decision. It is not for the court or anyone else to dictate how the Director should exercise his discretion nor how the policy should be implemented.

8. The aforesaid approach was the clear intention of the legislation and had been followed in a long lines of judicial decisions.

9. At the second reading of the relevant Immigration Bill, the Acting Attorney General said the following:-

"In considering the law on immigration it is I suggest, Sir, important to keep in mind two matters. First, it has always been accepted that every country has an absolute right to refuse admission and to expel any alien; and do so completely arbitrarily. As recently as 1969 the present Master of the Rolls in England, Lord Denning, in delivering judgment in a case drew attention to the fact that neither an alien nor a Commonwealth citizen has any right to enter England except by leave and that statement, Sir, brings me to the other matter which we should perhaps remember, namely, that over the past decade we have seen a consistent lightening up of the rules concerning entry and stay of Commonwealth citizens into the United Kingdom. I feel sure that honourable Members would agree that we should be failing in our duty to ourselves if we did not see to it that our law enabled Hong Kong to have a similar measure of protection."

10. The case referred to by the then Acting Attorney General is of course Schmidt and another v. Secretary of State For Home Affairs [1969] 2 Ch. 149.

11. In addition to the often quoted passage from the Judgment of Lord Denning at pages 170 and 171, Widgery LJ said at page 172

"Accordingly, when an alien approaching this country is refused leave to land, he has no right capable of being infringed in such a way as to enable him to come to this court for the purpose of assistance, and, since he has no kind of right or interest capable of being infringed or affected, the considerations urged by Mr Hogg could not affect such a case at all. In such a situation the alien's desire to land can be rejected for good reason or bad, for sensible reason or fanciful or for no reason at all. In my judgment if a reason is given, that reason is wholly irrelevant to the right for the complainant, for the reason that I have given, that he has no such right for which he can claim protection."

12. As I have said in Ngo Thi Minh Huong v. The Director of Immigration HCAL 137 of 1999;

"Hong Kong, being what it is: a modern cosmopolitan city with a large in a small area and a standard of living much higher than many of its neighbouring countries, not to mention its motherland with over 1 billion people, its attraction to illegal immigrants cannot be underestimated. Unless it is allowed to maintain and enforce a strict immigration policy, the continued stability and prosperity and even the very survival of Hong Kong may well be at stake."

13. My observation applies equally to situations whereby visitors want to stay in Hong Kong permanently. Indeed when it comes to the exercise of the discretion of the Director to allow a person who has no right to remain in Hong Kong, there is no difference between an illegal immigrant, an over-stayer or a visitor.

14. An alien visitor's only hope, as in the case of an over-stayer or an illegal immigrant, is a compassionate consideration of his case by the Director and should the Director decide not to exercise the discretion in his favour, he cannot have any legitimate complaint except in the most unusual and exceptional circumstances. This principle has been well established.

15. In R. v. Director of Immigration, ex parte Chan Heung-mui [1993] 3 HKPLR 533, Litton JA as he then was stated at p. 547

"It must be always borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance."

16. And Godfrey JA also stated

"I would think it impossible, in the light of the two authorities to which I have referred earlier in this judgment, to contend that s.13 imposes a duty the Director of Immigration to give any consideration at all, sympathetic or otherwise, to an appeal.........by an illegal immigrant to be allowed to remain here."

17. Similar points were made in Ho Sai Ming & Ors v. Director of Immigration [1994] 1 HKLR 21 when Litton JA stated at page 29

"...There is no question here of anyone needing to make out a case against the applicants, before the Director could lawfully decide to order their removal to China.........."

18. And Godfrey JA states at the same page

"........and this court has no power to decide whether illegal immigrants, however strong the merits of their case, ought to be allowed to remain here or not. Such a power....confers it exclusively, on the Director...."

19. The aforesaid approach was approved by the Court of Final Appeal in Lau Kong Yung & Others v. Director of Immigration [1999] 3 HKLRD 779. Chief Justice Li said at p. 808

" Secondly, in any event, he is under no duty and hence not bound to take humanitarian considerations into account. Assuming the applicants would have put forward humanitarian grounds, any failure by the Director would not have availed them since the Director was not bound to consider them. Lord Diplock in the passage quoted above referred to the matters which upon the construction of the statute he ought to have considered and excluded matters irrelevant to what he had to consider. So, for impugning a decision one is concerned with what the decision maker is bound to consider............"

20. Litton PJ made a similar point at page 814

"This point needs emphasis: in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision: see Mason J in Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at p. 39. What factors he is bound to take into account is determined by construing the statute conferring the power. If an administrator misconstrues a statute and asks himself the wrong question, or fails to ask himself the right question, the Court can properly intervene and quash his decision on the ground of illegality. But that question must be clearly identified: a vague statement pointing to "all relevant matters" is not enough."

21. The Director, as a matter of law is not obliged to take into consideration any particular matters in deciding if he allows the change of immigration status of an alien visitor. He has an absolute discretion on the matter.

22. But as part of the immigration policy, it is perfectly legitimate and reasonable for the Director to insist that any applicant for change of status from a visitor to an dependant has to satisfy him that his primary purpose is to come to Hong Kong to join his sponsor and that he will have a living standard well above subsistence level and will not be a burden to the society. The Director was also right not to take into consideration the prospective earning capacity of the applicant.

23. The Director had considered the applicant's situation and had taken into account all relevant materials. The Director would of course apply his knowledge and experience in assessing the applicant's application. In that regard, it is perhaps relevant to bear in mind that the Director and his officers must have, throughout the years, gathered information and intelligence from all available sources.

24. The Director was entitled to conclude as he did that the applicant would take up employment in Hong Kong once dependant status was granted to him and that he was not a genuine dependant on the sponsor.

25. The Director was perfectly entitled to reject the applicant's application for a change of status. There was no procedural irregularity and the decision was not Wednesbury unreasonable.

26. The applicant has not demonstrated an arguable case and there is nothing fit for further investigation which might demonstrate an arguable case for the grant of the relief sought by the applicant.

27. In the circumstances, the application for leave for judicial review must be refused and I so order.

Representation:

Mr Martyn Richmond, instructed by Messrs Massie & Clement, for the Applicant

Mr Caspar Chu GC, for the Respondent