Mushtaq Khan v. Director of Immigration

HCAL001849/2000

HCAL 1849/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 1849 OF 2000

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Coram: Hon Chung J in Court

Date of Hearing: 19 October 2000

Date of Decision: 19 October 2000

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D E C I S I O N

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1. This is an application for leave to apply for judicial review. It arises out of an earlier application by the Applicant, a Pakistani national, to the Respondent to change his immigration status to become a dependent of a lady who he claims to be his lawfully wedded wife, a Hong Kong permanent resident.

2. By a letter dated 10 August 2000, the Respondent informed the Applicant that his application for change of immigration status was refused. The grounds for the refusal were:

(a) the Respondent was not satisfied that the sponsor was financially capable of supporting the Applicant's living in Hong Kong;

(b) the Respondent was not satisfied that the marriage of the Applicant and the sponsor was a genuine one but was merely a "marriage of convenience".

3. The Applicant complains in this application that the Respondent's said decision is illegal, based on bias and is against the rules of natural justice. I shall deal with each ground in turn below.

4. In relation to the question of the sponsor's financial capability to support the Applicant, investigation was carried out by the Respondent. A site visit was conducted on 26 July 2000 (mis-stated in the Respondent's affirmation to be 26 June 2000). As a result, the Respondent discovered that the person reported to be the sponsor's employer was a co-tenant of the flat in which the sponsor resides. The Respondent also concluded that the sponsor's claim that she was employed by this person is doubtful because:

(1) the alleged employer gave a different answer as to the sponsor's salary than what he certified earlier;

(2) the other staff employed by the alleged employer told the Respondent that she was the only staff working there and she did not know the sponsor;

(3) the sponsor's salary of $10,500.00 was exceptionally high both when compared to similar posts in Hong Kong and to the salary of $5,000.00 of the other staff employed by the same employer;

(4) the sponsor's bank passbook shows that she has been receiving public assistance from October 1999 to March 2000 (immediately prior to the alleged employment).

5. In relation to the question of the marriage, the Applicant and the sponsor were separately interviewed and gave inconsistent answers over some of the matters raised by the interviewers.

6. The Applicant has given some explanation regarding the above matters at today's hearing but I do not find them to be satisfactory explanation.

7. In these circumstances, the grounds given by the Respondent for refusing the Applicant's application cannot be said to be grounds which a tribunal properly directed could not reasonably rely on for refusing the application. Further, it was well within the Respondent's power under the relevant legislation to refuse the Applicant's application. There is therefore no illegality in the Respondent's decision.

8. The Applicant has not been able to establish any bias on the Respondent's part whether in his affirmation or at today's hearing. The totality of the evidence rather indicates that the Respondent approached the matter fairly and arrived at his conclusion after a careful consideration of the evidence before him. This ground is without substance.

9. There is also no substance in the final ground that the Respondent has breached the rules of natural justice. The Applicant and the sponsor were invited to (and did) furnish documentary materials to support his application and they were interviewed. The Respondent was entitled to decide the matter either for or against the Applicant in accordance with the powers given to him by statute and the materials placed before him. Further, the Applicant, being an alien, is not in law entitled to be heard on the Respondent's decision on immigration matters.

10. Although a low burden is required in an application for leave, I do not find that there is any proper reason for leave to be given. This application is therefore refused.

Representation:

Mr Mushtaq Khan in person and present

Ms Michelle Chan, of the Department for Justice, for the Respondent