Muhammad Munir Akhtar v. Director of Immigration

HCAL001306/2000

HCAL 1306/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1306 OF 2000

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Coram: Hon Hartmann J in Court

Date of Hearing: 29 September 2000

Date of Ruling: 29 September 2000

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R U L I N G

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1. This is an application for leave to apply for judicial review. On the directions of Stock J, the application was ordered to be heard orally with the representative of the Director of Immigration being invited to attend.

2. The Applicant, Mr Akhtar, appears without the benefit of legal representation. In his application, he appears to be challenging a rejection by the Director of Immigration of his application to remain longer in Hong Kong as a visitor. However, he also appears - if only by implication - to be challenging an earlier refusal of the Director to grant him the right to remain in Hong Kong as a dependent of his wife.

3. To better understand the issues, some background should be given. The Applicant is a national of Pakistan, having been born in that country in 1974. He first came to Hong Kong in August 1999 as a visitor. He was permitted to remain for several weeks. During his time here, he met his wife, Ms Bibi Salma, and they were married on 25 August 1999 in Hong Kong. Ms Bibi Salma was born here and has the right of permanent residence in Hong Kong.

4. Immediately after the marriage, Ms Bibi Salma applied as a sponsor to allow her husband, the Applicant, to remain in Hong Kong as her dependent. This application was refused on the basis that Ms Bibi Salma was not financially capable of supporting her husband's living in Hong Kong without assistance and that in any event there was a real suspicion that the Applicant intended to come to Hong Kong and live here in order to earn a living. The application having been refused, Mr Akhtar left Hong Kong in November 1999.

5. A few days after that, a similar application was lodged with the Director of Immigration seeking to unite husband and wife in Hong Kong. On this occasion Ms Bibi Salma submitted evidence to show that she had a job as a messanger, that she had money in the bank and that she had premises where the couple could live. This application was also refused, notice of refusal being given in February of this year.

6. It appears that Ms Bibi Salma fell pregnant at about the time these applications were being made. The Director of Immigration was not informed of this fact. Mr Akhtar complains that he advised his solicitors that his new wife had now fallen pregnant and says it is not his fault that the Director of Immigration remained ignorant of this fact. However, in judicial review proceedings, when a decision is challenged, it can only be challenged on the basis of what was known to the decision maker at the time.

7. The pregnancy resulted in a further application to the Director of Immigration. In a letter dated 8 May of this year, Ms Bibi Salma requested the Director of Immigration to allow her husband to visit her. She gave an undertaking that he would only stay for a period of 6 weeks and would then leave Hong Kong. As a result, as I understand it, the Applicant was given permission to come to Hong Kong as a visitor and he arrived here on 15 May of this year. He said to Immigration officers upon his arrival that he came to take care of his pregnant wife and confirmed that he would only be staying for a period of about 6 weeks.

8. To support his good faith in this regard, he showed the officers that he had a confirmed return booking to Pakistan. The Applicant was given a limited permission to stay but, having provided evidence that his wife was about to give birth, that permission was extended until 27 June of this year.

9. The child of the marriage was born on 1 June of this year. There is no evidence that there was any major difficulty in the birth. The child apparently suffered from jaundice but this is not uncommon. In all other respects, it appears that the birth was a normal one and the mother and child essentially are healthy. I am told that the child is having certain injections but these appear to be standard inoculations.

10. In May or June - shortly before he was due to leave Hong Kong - Mr Akhtar again applied for a further extension of his visitor's permit. He sought permission to remain for another 3 months. He based his application on the allegation that his wife was not in good health. He was asked to produce proof of this. It appears that he did not produce any such proof. Before me this morning, he has made no suggestion that his wife is in any form of medical distress.

11. The Director of Immigration refused the application to remain for a further 3 months. It was the Director's decision that the Applicant was visitor and must be treated as a visitor and that there was no further reason for him to remain.

12. Mr Akhtar complains that the Director's decision not to extend the visitor's visa was wrong and irrational. He argues that he has a genuine reason to stay in Hong Kong and that, on humanitarian grounds, he should be allowed to stay to look after his wife and his newborn child. In his written grounds, Mr Akhtar appears to have included the original refusals to allow him to live here as a dependent of his wife on the basis that his wife is capable of supporting all his financial needs and providing accommodation.

13. This morning before me, Mr Akhtar said that he wished to remain here on an indefinite basis to look after his wife and child. It is apparent that Mr Akhtar is not content with the fact that in practical terms, he has achieved his 3 months extension by making his application.

14. I regret that in my judgment, Mr Akhtar has not been able to show an arguable case in law which would allow me to grant him leave to apply for judicial review. First, he appears in his documents to be contesting only the refusal to get a 3 months extension. But, in practical terms, as I have said, that 3 months extension has now been granted. Second, he has been unable to put forward any grounds to show that the decision of the Director was unreasonable or in any way wrong in law.

15. As for the compassionate grounds pleaded by him in his papers, they appear to be based on the fundamental principle that a husband and the wife should be allowed to live together, the more so when they have a young child to look after. I had explained to Mr Akhtar that I have the deepest sympathy for him but judgments of this court are not to be based solely on sympathy. No doubt the great majority of applications that come before the Director of Immigration have an element to compassion in them.

16. I can find no grounds in the matters put before me to suggest that there is an arguable case that the Director, in any way, acted irrationally or perversely or in a biased fashion or was wrong in exercising his discretion in accordance with policies that are well-known and have been adopted by the Director for the purposes of the orderly government of Hong Kong.

17. Despite the sympathy I have for Mr Akhtar, his application for leave must be refused.

Representation:

Muhammad Munir Akhtar, Applicant in person

Mr Lee Tin Yan, GC of Secretary for Justice, for the Respondent