Sangeeta Damai v. Director of Immigration and Another

HCAL000114/2000

HCAL 114/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 114 OF 2000

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Coram: Hon Chung J in Court

Date of Hearing: 27 July 2000

Date of Decision: 27 July 2000

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D E C I S I O N

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1. This is the Applicant's application for leave to apply for judicial review. The Applicant is a Nepalese national who wishes to join her husband in Hong Kong as his dependent. The Director of Immigration refused her applications for a change of immigration status on 22 March 1999 and 29 February 2000. The Secretary for Security upheld the Director's first refusal on 3 February 2000. The Applicant considers that these decisions are vulnerable to judicial review on the following grounds:

(a) they were unreasonable in the Wednesbury sense;

(b) the Respondents breached the rule of natural justice when making those decisions.

2. The facts relied upon by the Applicant in this application can be summarised as follows. The Applicant is now aged 25. She was married to a Mr Damai Debendra (a Hong Kong resident) in Nepal in July 1998. She applied to the Director of Immigration for a dependent visa in September 1998. On 22 March 1999, the Director of Immigration rejected her application on the ground that he was not satisfied that the sponsoring husband was financially capable of supporting the Applicant.

3. On 25 March 1999, the Applicant lodged an objection with the Chief Secretary for Administration against that decision on the basis that the decision was unreasonable. Further, the Applicant asked the Director of Immigration to supply particulars of reasons for his said decision but the request was denied. She also complains to the court that the Secretary for Security upheld the decision of the Director of Immigration on 3 February 2000 having also ignored her request for a chance to comment on the Director's reasons for refusal.

4. The Applicant renewed her application for a dependent visa on 14 February 2000 based on material changes to her family circumstances:

(a) the financial situation had improved;

(b) she had given birth in Hong Kong to a son on 20 January 2000.

In these circumstances, the Applicant argues that the Respondents ought to have approved her application based on the changes in circumstances and/or compassionate grounds. However, her renewed application was again rejected on 29 February 2000.

Were the Decisions Unreasonable?

5. The Respondents have filed an affirmation of Yim Kwan Hoi in opposition to this application. Mr Yim explained the approach adopted by the Respondents in arriving at the conclusions that:

(a) the sponsor was financially incapable of supporting the Applicant;

(b) the Applicant's application for a change of immigration status ought to be refused.

Without going into the details, I consider that there is nothing unreasonable or unfair in the approach adopted. Further, all relevant matters have been taken into account by the Respondents and the conclusions they arrived at were ones which a reasonable immigration authority properly directed on the relevant law could reasonably have reached. These observations also apply to the matters regarding material changes in circumstances and compassionate grounds in the Applicant's renewed application.

6. For the above reasons, I do not find that the Respondents' decisions to be unreasonable in the Wednesbury sense.

Did the Respondents Breach the Rule of Natural Justice?

7. This complaint is based on the deprivation of relevant information to the Applicant or an opportunity for her to comment on the Director's reasons for refusal.

8. First, this complaint is based on an assumption that the Applicant has a right to be heard. 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 (which the Applicant is), like an illegal immigrant or an overstayer has no such right. Secondly, the reason given by the Director of Immigration for rejecting the Applicant's application has expressly been stated in the letter of refusal sent to her by him. I do not consider that there is a need, in the context of this case, for the Director of Immigration to elaborate further.

Conclusion

9. For the above reasons, the application is refused.

Representation:

Ms Sangeeta Damai in person and present

Ms M Chan, GC of the Department for Justice, for the 1st and 2nd Respondents