Ghale Santa Bahadur v. Director of Immigration and Another

HCAL002700/2001

HCAL 2700/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATION LAW LIST
NO. 2700 OF 2001

____________

____________

Coram: Hon Yeung J in Court

Date of Hearing: 4 March 2002

Date of Judgment: 4 March 2002

_______________

J U D G M E N T

_______________

1.The applicant, Santa Bahadur Ghale came to Hong Kong on 12 September 1998 as a visitor. Three days after his arrival, the applicant applied to change his immigration status in order to join her daughter Ms K Ghale (the sponsor) as her dependant for residence in Hong Kong. The Director of Immigration (the Director) rejected the application. The Secretary for Security upheld his decision. The applicant now applies for leave for a judicial review of those decisions.

2.It has been repeatedly held by this court that an alien, who comes to Hong Kong as a visitor, cannot have any legitimate expectation to be granted residence. The Director has discretion under s. 11(5A) of the Immigration Ordinance, Cap. 115 to allow a visitor to remain but a visitor can have no right to insist that the discretion will be exercised in his favour. It is not for the court to direct or dictate how the Director should exercise such discretion and the court will not interfere except in the most extreme cases such as bad faith or the like. (See Ho Ming Sai and others v Director of Immigration [1994] 1 HKLR 21, Bhupendra Pun & Nandaram Pun v Director of Immigration, HCAL No. 1541 of 2001 per Hartmann J)

3.The Director had through his officer Mr Chiu Wai Kai David set out in details the relentless pressure facing Hong Kong by reason of the influx of potential immigrants. The Government of Hong Kong is entitled to adopt a strict approach on immigration matters.

4.The Director, in any event, has considered the applicant's case with due care. The request for re-consideration had led to a thorough review of the applicant's case. The reasons for the decisions were also made known to the applicant.

5.The Director is entitled to conclude as he did that the proposed sponsor's income was not adequate to support the applicant. The decision not to take into account the income of the sponsor's husband cannot be faulted. The Director is also entitled to conclude that the applicant did not genuinely come to join the sponsor as her dependant.

6.There is no suggestion let alone evidence of bad faith on the part of the Director. Indeed, the Director had clearly followed a well-reasoned and necessary policy in dealing with application of the applicant.

7.The applicant has not demonstrated any arguable case nor raised sufficient issue to justify even the granting of leave for judicial review.

8.The application is refused. The Director does not ask for costs of the application and I therefore make no order as to costs.

Representation:

The Applicant: Ghale Santa Bahadur, In person, Present

Mr Lee Tin-yan, Ag. SGC of Department of Justice, for the 1st and 2nd Respondents (Director of Immigration & Secretary for Security)