Pham Thi Nga v. The Director of Immigration

HCAL000169/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS.67, 169 & 220 OF 2000

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HCAL67/2000

AND

HCAL169/2000

AND

HCAL220/2000

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(HEARD TOGETHER)

Coram : Hon Stock J in Court

Date of hearing: 5 May 2000

Date of judgment: 5 May 2000

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J U D G M E N T

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1. There are before me three applications for leave to apply for judicial review. I was not prepared to grant leave on the papers. I directed that the oral applications be heard on the same day because the cases are remarkably similar both as to the facts and as to the issues of law which are raised. In fact, these issues of law are exactly the same in each case and each applicant is represented by the same firm. Each applicant is a female national of Vietnam; each came to Hong Kong in 1999; each presenting themselves to the immigration officers as visitors to the territory and each being allowed to stay for a limited period as a visitor. Within a matter of days of their arrival, each had acquired a fiancé, resident in Hong Kong, who issued a notice of marriage (although in the case of Ms Bui, notice of marriage had been given before her arrival in Hong Kong). In the case of Ms Luu, notice of marriage was given a day after her arrival and in the case of Ms Pham, one day after her arrival. Each was married shortly thereafter, in the case of Ms Bui, one week after arrival; in the case of Ms Luu, 10 days after arrival and in the case of Ms Pham, almost a month.

2. Each made an application within a day or so of marriage to the Director for a change of status, namely, to be permitted to stay in Hong Kong as a dependant of their respective grooms. After some months, the Director rejected each application. In each case, he took the view that the marriage was not genuine, and in each case he was not satisfied that the sponsor husband was able to provide sufficient support for the applicant. In each case, there was then a swift objection to the Chief Secretary under section 53 of the Immigration Ordinance, by which the Chief Secretary was asked to review the decision not to grant the new status. Then, in each case, the Director was asked by each applicant to extend her stay in Hong Kong until the determination of that objection. The Director decided against that request and it is, in each case, that decision not to grant an extension pending the Chief Secretary's determination of the section 53 objection, that is challenged. That is the subject of the applications for leave to apply for judicial review.

3. The grounds in each case are identical, namely :

1. that the decision of the Director is unreasonable because the presence of the applicant will not cause hardship, or a burden on public resources;

2. that the marriage has yet to stand the test of time and that physical separation "will tend very seriously to shake the mutual trust, love and understanding which are developing";

3. that communication between the applicant and her solicitors will be less efficient if the client is in Vietnam;

4. that the applicant and her husband have to be in Hong Kong to be medically examined to confirm that the two have had sexual intercourse after marriage;

5. that the chances of success for the appeal to the Chief Secretary are high; and

6. that household registration in Vietnam has either in some cases or has, very probably in the case of Ms Bui, been cancelled so that the right to leave the country may be in jeopardy.

It is said that the Director has failed to have due regard to these various factors.

4. In February this year, I gave judgment in a case entitled Le Thi To Uyen, HCAL141/1999. That was another case of exactly the present kind - the applicant arrived in Hong Kong as a visitor on 15 January 1999, gave notice of marriage the next day, was granted permission to stay until 26 February but married on 22 February, and on 23 February applied for a change of immigration status. The Director refused that application, and there was an objection to the Chief Secretary, and then an application for leave to apply for judicial review against the decision not to allow the applicant to remain in Hong Kong until determination of the objection. The applicant was represented by the same solicitors and counsel as in these three cases. The grounds of the application were the same as in the present three cases, although one or two grounds have now been added. In Le Thi To Uyen, it was said that there was a quota on travel out of Vietnam, but when evidence was produced by the Vietnamese authorities that there was no such quota, the allegation was withdrawn as an error. The applicant said that what she meant was that her household registration had been cancelled and that she was at risk of not being able to return to Hong Kong if she went back to Vietnam. I said that that application was quite hopeless, pointing to the provisions of section 53(7) of the Immigration Ordinance which provides as follows :

"For the removal of doubt it is hereby declared that the lodging of an objection does not give a person by whom or on whose behalf it is lodged the right of abode in Hong Kong or right to land or remain in Hong Kong pending the decision on the objection of the Chief Executive or the Chief Executive in Council."

5. Given this background, I decided that these applications should be heard together, and I think it convenient to deliver one judgment on the question of leave dealing with them all. Although I have been fully conscious of the need to examine each case on its own facts and merits, I have to say that before reading the affirmations of the respondent in this matter, I took a dim view of the merits of these applications.

6. As matters have turned out, and as a result of certain passages in the affirmations provided on the respondent's behalf, the only ground of the many grounds that have been advanced on behalf of the applicants, that has given me cause to pause is the suggestion that if these applicants are returned to Vietnam, they will find it difficult to leave. There is nothing in the other grounds which has the remotest chances of success in a judicial review context. In relation to none of those other grounds, is it shown that the Director has acted without lawful justification, or irrationally, or has taken into consideration factors he ought not or failed to take into consideration factors he ought to have considered. That said, however, the Director has taken upon himself to address the question of cancellation of household registration in Vietnam and its consequances. The question is, at this stage which is only the application for leave stage, whether then appears to be an arguable case that the Director may have misdirected himself in the exercise which he has in fact embraced.

7. In the case of Bui Thi Van Anh, the decision challenged is that of the Director dated 9 February 1999 refusing the extension of her visa pending an objection lodged on 3 February. The applicant says she may have already lost her rights as a resident by reason of her marriage and her long absence from Vietnam. In an affirmation placed before me on behalf of the respondent, and in the skeleton argument of counsel for the respondent, who appears on my invitation on this application for leave, it is said that the applicant did not raise this issue for consideration on the application for an extension of stay. But that is not so. The letter dated 9 February to the Director enclosed the objection to the Chief Secretary, and in that letter referred to the suggested loss of residence. It is said by Miss Chan on behalf of the respondent today that that was not put forward in the letter to the Director as a ground in support of the application for an extension of stay. That seems to me to be too narrow a view of the combined correspondence.

8. In the case of Pham Thi Nga, she previously entered Hong Kong unlawfully and was repatriated in 1993. When she entered as a visitor on 18 July, she was permitted to remain until 14 August. She married on 13 August having on 19 July, the day after arrival in Hong Kong, registered notice of intention to marry. Ms Pham says that she met her husband the day of her arrival and says it was a case of love at first sight and a proposal was made that day and accepted that day. On 13 March, the day the objection under section 53 was lodged, she asked for an extension of stay but that was refused by the Director. On 20 March, she wrote, renewing her application, saying that her household registration was cancelled and that she enjoyed no right under Vietnamese law. She appended a certificate allegedly issued by an official to the same effect. The application was refused on 22 March and it is that decision which is the subject to this application.

9. In an affirmation filed to the purpose of these proceedings, an immigration officer states that "the Director carefully considered the matters stated in the certificate in the light of the information obtained from the consulate general" and that he considered that factor amongst others. Now the information obtained from the consulate general to which reference is made is the information referred to in another affirmation, that of a Mrs Yeung Fan Yuen of 2 May 2000. Mrs Yeung is a senior immigration officer, and she says that she wrote to the Vietnamese consulate in Hong Kong on 18 March in relation to the case of this applicant. There was no reply so she had to write again on 8 April. It asked whether if an applicant returned with no household registration, she would be allowed to leave Vietnam again, and did she have to wait until she had registered before she could leave. Now it seems to me that the Director must have undertaken these enquiries because they were thought to be relevant, and perhaps not sufficiently previously answered; no doubt also for the benefit of this court, I suspect, in these proceedings. There has been no reply, save to say that the enquiries have been forwarded to Vietnam. I should say that there have been replies to some questions but not to this, a central question. One can only express surprise at this sort of delay in relation to what appears to be a very straightforward set of questions. Still, the Director had some prior information from oral conversations with the Consulate General in Hong Kong.

10. The Director made his decision on 22 March. He cannot have taken into account information received after that date, and as to the information received before that date, he purports to have taken into account but it is not evident from that information that he has asked the question whether someone with registration, still cancelled and not reinstated, could leave Vietnam. It may well be that the burden is on an applicant to show that she would not be able to leave Vietnam but the Director said that he took these matters into account. Yet quite what he took into account and what his conclusions were are not clear to me.

11. In the case of Luu Thi Bich Lien, she arrived on 30 March 1999 and was allowed to stay as a visitor until 13 April. She married on 9 April, and on the same day, she applied to be allowed to stay in Hong Kong as a dependant of her new spouse. That was rejected. In March this year, an objection was lodged with the Chief Secretary and the Director was asked to extend her stay until the determination of the objection. It is said in the affirmation from the respondent that although the applicant told the Chief Secretary that she might not be able to return to Hong Kong if she were now required to go back to Vietnam, the deponent states that that was not a fact mentioned in the application for extension. But, more particularly, the Director said that in refusing the application for an extension, he took into account a number of matters including the fact that "there was no evidence to support the applicant's belief that her name had been deleted from the household registration". Now that is odd, since in her affirmation of 2 May 2000, Mrs Yeung of the Immigration Department had said that when she was handling the Le Thi To Uyen's case, which I determined in February this year, she was told by the consulate that persons who had been absent from Vietnam for more than six months without having registered their temporary absence and without possible reasons shall have their names crossed out from registration, and must apply for registration when they return. That was evidence, surely, in some support of what the applicant was saying.

12. So all in all, there are two examples of statements in affidavits filed in these proceedings by the respondent which do not appear to me to be entirely satisfactory. The suggestion in the Bui case that the question of loss of registration was not raised at the time of the decision, when it clearly was; and the suggestion that there was no evidence in support of the allegation in the case of Luu, when it seems to me that, broadly speaking, there was.

13. I am aware of the fact that those visiting this territory have little in the way of armory by which to challenge decisions to remove them because they are here only so long as they are permitted to be here. But we are dealing here with a discretion of the Director in relation to application by newly married couples who say they are genuinely married, and allege that the Director has in refusing to exercise his discretion to let them stay was their objections pending to the Chief Secretary failed to take into account material considerations. Now in answering this complaint, the Director says not that he was not bound to take into account these matters but that he has in fact addressed them, and yet there are aspects of his evidence in that regard which at the moment and on their face are less than satisfactory. It is in those circumstances and for those reasons that I think the applicants should have leave to apply for judicial review of these challenged decisions, and I grant leave.

Representation:

Mr William Allan, instructed by Messrs Paul Kwong & Co., for the Applicants

Miss Michelle Chan, GC of the Department of Justice, for the Respondent