Bhagarup Limbu v. Director of Immigration and Another

HCAL000160/1999

HCAL 160/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 160 OF 1999

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Coram: Hon Chung J in Court

Date of Hearing: 27 March 2000

Date of Judgment: 27 March 2000

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J U D G M E N T

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1. This is the Applicant's application for leave to apply for judicial review against the Director of Immigration's decision dated 12 February 1999 refusing his earlier application for permission to stay in Hong Kong as a dependent of the Applicant's daughter who is herself a Hong Kong resident. The Applicant later asked the Chief Secretary for Administration to review the decision of the Director of Immigration and the Chief Secretary for Administration on 21 December 1999 upheld the Director of Immigration's decision. The Applicant also asks for leave to apply for judicial review against that decision.

2. The Applicant is a Nepalese national born in Nepal and now aged 54. In his "Notice of Application for Leave to Apply for Judicial Review", the Applicant sets out a number of matters under 2 headings:

(a) "Unreasonableness and/or irrationality of the Director of Immigration's decision and the Chief Secretary for Administration's decision".

(b) "Breach of Natural Justice of the Director of Immigration and/or the Chief Secretary for Administration".

3. The basis on which the Applicant applied to be his daughter's dependent is that he falls within the terms of the policy regarding such kind of application; namely:-

(1) he had established his sponsor is financially able to support him;

(2) he is a widower and his daughter owes a filial duty to support him.

The Applicant also complains that both the Director of Immigration and the Chief Secretary for Administration failed to consider that the underlying purpose of the said policy is to unite families.

4. In relation to the ground of the present application relating to "Breach of Natural Justice", the Applicant complains that he was denied:-

(1) access to the particulars from the Director of Immigration as to why he refused the Applicant's application;

(2) an opportunity to make representation and/or to be heard before the matter was decided by the Director of Immigration and the Chief Secretary for Administration;

(3) an opportunity to comment on the Director of Immigration's response before the matter was decided by the Chief Secretary for Administration.

5. The Applicant and the Respondents have filed evidence respectively in support of, and in opposition to, the present application.

6. Having heard the parties and perused the materials, I consider that:-

(a) there was no procedural irregularity in the making of the 2 decisions. In relation to the Applicant's complaint regarding an alleged breach of the rule of natural justice, I agree with the decisions in Krishna Rai v. Director of Immigration, AL No. 145/1999 and Baldev Singh v. Director of Immigration AL No. 149/1999 that an alien visitor, like an illegal immigrant or an overstayer, has no right to a hearing;

(b) the decisions of the Director of Immigration and Chief Secretary for Administration were not unreasonable or irrational in the Wednesbury sense; these were set out in the affirmation of Cheung Kin Wah Edmund, in particular at paras. 5 to 8, 13 to 16 and 17 thereof;

(c) neither the Director of Immigration nor the Chief Secretary for Administration have failed to consider the underlying purpose of the immigration policy relevant to this application. On the contrary, I find that they were fully aware of it and were not unreasonable or irrational in applying the policy to the Applicant's case: see para. 20 of Cheung's affirmation;

(d) there was no bad faith or perversity in the decisions of the Director of Immigration or Chief Secretary for Administration.

7. For the above reasons, although there is only a low burden for the Applicant in an application for leave, I am not satisfied that he has met that burden. The application for leave is therefore refused.

Representation:

Applicant: Bhagarup Limbu in person, present

Mr Lee Tin Yau, Government Counsel of the Department of Justice, for the Respondents