Gurung Aruna v. Director of Immigration

HCAL000007/2004

HCAL 7/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.7 OF 2004

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Coram: Hon Hartmann J in Court

Date of Hearing: 18 June 2004

Date of Judgment: 18 June 2004

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J U D G M E N T

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Introduction

1.The applicant, a citizen of Nepal, seeks to quash two decisions made by the Director of Immigration ('the Director') in terms of which the Director has refused her request to remain in Hong Kong on an indefinite basis. The applicant appears before me unrepresented.

Background

2.The applicant, now 29 years of age, was born in 1975 in Nepal. Her mother and father are still alive and living in a town in Nepal. She has a number of younger brothers and sisters in that country.

3.In January 1997, the applicant came to Hong Kong to work as a domestic helper. At the end of that year her employment was wrongfully terminated. The applicant sought compensation by way of legal action and was granted permission to remain in Hong Kong until her claim in the Labour Tribunal was concluded. In January 1998, her claim having been concluded, the applicant left Hong Kong and returned to Nepal.

4.However, while in Hong Kong, the applicant had developed a relationship with a man here. When she was back in Nepal, the applicant was asked to return to Hong Kong in order to marry this man. The applicant returned to Hong Kong in March 1998 and, early the next month, was married. She sought to change her status from that of a visitor to that of a dependant and was successful in that regard, her dependency visa being issued for a specific period of time.

5.Sadly, the marriage of the applicant was not long-lived. In or about May 1999, she and her husband became estranged. In April of the following year, with her dependant status expiring, the applicant sought the leave of the Director to remain in Hong Kong in order to obtain a divorce. She was granted permission to remain for that purpose. In the event, the divorce proceedings were finalised at the end of 2002.

6.Although the applicant was at that time somewhat uncertain as to her desires for the future, it is apparent she understood that she was remaining in Hong Kong for the single purpose of finalising her divorce proceedings and that, thereafter, she must return to Nepal. For example, in or about December 2000, she wrote to the Director in the following terms

"After consideration, I would like to proceed with my divorce in Hong Kong as I married my husband here. I understand that my status will be changed to visitor. I have enough savings to support my living in Hong Kong. I will go back to Nepal after my divorce case is finished."

7.A year after that letter was written, in December 2001, the applicant wrote a further letter to the Director seeking a further extension of stay. In that letter she said :

"My divorce case is still proceeding. My status is changed and I am a visitor. So I need to extend my visa during my divorce case proceedings. Also, I know about Hong Kong law so I cannot work here until my case is finished. My friend, Gurung Kumari, is supporting my every living and [I supply] financial proof. We are living together in one flat. So I request that please I be given an extension visa until I have finished my divorce case. Also I mention that after finishing my divorce case I need to go back to Nepal."

8.However, more than a year later, on 30 April 2003, the applicant wrote to the Director expressing a different desire. This was a typed letter and bore the heading 'New Sponsorship' :

"My marriage with Bijay Kumar Gurung was dissolved on 5 December 2002. As the result of my divorce proceedings, my immigration status was changed from dependant to visitor on 15 January 2001. Notwithstanding the change of immigration status, I have been residing in Hong Kong for more than six years since January 1997. I wish to continue to live in Hong Kong. My paternal cousin, Miss Gurung Kumari, a permanent resident, will sponsor my current application for an extension of stay. I am now living with her. I have not worked at any time when I do not hold an appropriate visa. I plan to work after an appropriate visa has been issued to me."

9.It is a little difficult to categorise this application. On the one hand, the applicant appears to have suggested that she would (or could) be the dependant of her cousin and to that extent was sponsored by her. On the other hand, she made it plain, that once she was given permission to remain in Hong Kong, she would seek work. In respect of a dependency visa application, dependency and a desire to attain self-sufficiency by working are contradictory. Nor can the application be classified as one for a work visa. As I read it, the application was one which looked to the general exercise of the Director's discretion. The applicant had now been in Hong Kong for a protracted period of time - more than six years - and wanted to live and work in Hong Kong on an indefinite basis.

10.The application was considered by the Director but was rejected by him. The rejection was contained in a letter dated 31 December 2003. It is this decision which is the first decision challenged by the applicant. The letter was to the following effect :

"You were last granted permission to stay in the HKSAR as a visitor to allow you to pursue divorce proceedings in Hong Kong. We have learned that your divorce proceedings were completed in December 2002. Based on the information made available to us, we cannot find sufficient justification warranting approval for further extension of stay as a visitor or for residence in Hong Kong. Your application is therefore refused." [my emphasis]

11.In terms of the same letter, the applicant was advised that she had to leave Hong Kong on or before 14 January 2004. The applicant asked if she could remain in Hong Kong to challenge the Director's decision. However, by letter dated 14 January 2004, the request to remain longer was refused. This constitutes the second decision challenged by the applicant.

12.I should say that in a letter dated 19 January 2004, on the basis that the applicant was seeking relief from this Court, the Director condoned the applicant's continued stay in Hong Kong. In light of this, there is, in effect, only one decision challenged. That is the decision contained in the letter of 31 December 2003.

The applicant's appeal

13.The applicant, being aggrieved by that decision, appealed to the Chief Secretary for Administration. In her appeal, the applicant asserted that the Director did have a discretion to allow her to remain in Hong Kong on an indefinite basis and that he should have exercised that discretion in her favour. This favourable exercise of discretion was the only reasonable course, she said, because the applicant had been in Hong Kong since about January 1997, she had a 'settled' life here and she was capable of supporting herself. She would suffer undue hardship if she was forced to return to Nepal after such a long period of absence. In addition, the humanitarian imperatives revealed that, as a divorced woman, she would be 'detested' in Nepal and this would bear heavily upon her.

14.The applicant's appeal, I am told, has not yet been resolved.

An overview of the challenges

15.The first challenge made by the applicant in the proceedings now before me is based on the contention that the Director's decision was Wednesbury unreasonable, the reasons asserted by her being essentially the same as those forming the grounds of her appeal to the Chief Secretary for Administration.

16.In addition, the applicant has challenged the Director's decision on the basis that she had a legitimate expectation, frustrated by the Director, that she would receive a resident's visa because she had been here for nearly seven years and had established her life in Hong Kong.

A consideration of the Director's policy

17.Before looking to these challenges, I should say something briefly of the immigration policy that is managed by the Director. In a judgment given by myself in February 2003 (Christian Bulao Palmis v. The Director of Immigration, unreported, HCAL 2104/2001), I said the following :

"At the outset it is to be emphasised that the Director manages a restrictive policy of Immigration. That this is both legitimate and rational has been recognised by our courts on numerous occasions. It is a policy dictated by geographical, social and economic imperatives. On numerous occasions, in matters of this kind, this court has been reminded that Hong Kong is a small place with a high population density, one of the highest in the world. Yet even in these uncertain economic times, it remains an attractive destination for immigrants, legal and illegal."

I continued by saying :

"Although authorities of the courts of England and Wales are regularly cited in immigration matters of the kind now before the court, it is to be remembered that these decisions, while they may be of assistance, have often been decided in the context of different statutory and policy directives. As I commented in an earlier decision (Gurung Bhaktar Bahadur v. Director of Immigration and the Chief Executive in Council, unreported, HCAL 1579/2000), our courts have recognised that in light of differing legal and social dynamics, the Director has acted lawfully in determining that he is not in a position to be as generous in his immigration policies as perhaps other jurisdictions might be."

18.In the present case I am assisted in this matter by the affirmation of Mr Lee Pui Yin, an Acting Assistant Principal Immigration Officer. In his affirmation, Mr Lee said the following :

"The policy of immigration control recognises that there are many who wish to enter Hong Kong and to reside and work here. Its relatively high per capita income and living standards make it an attractive destination. Employment opportunities in Hong Kong continue to attract large numbers of illegal immigrants and visitors who breach their conditions of stay by taking up unapproved employment. By way of illustration, there were 16,548 illegal workers arrested in 2003, and 4,052 illegal immigrants were repatriated in the same year.

Under the legal framework, an alien who has no claim upon Hong Kong may be allowed entry to Hong Kong on arrival or, if having been admitted for a limited period, be allowed extension of stay as a resident in his or her own right, or as a dependant under existing policies for admission of aliens ..."

Later in the affirmation, Mr Lee said :

"In cases like the present one, where the applicant is no longer eligible under the policy to remain as a dependant (because the relationship between the applicant and her former sponsor has terminated), the Director will consider whether there are special circumstances or strong compassionate factors which justify treating the case as an exception."

Mr Lee qualified that general statement by saying the following :

"While it is open to the Director, on an extra-statutory basis, to consider exceptional hardship and to sanction an exception to the above policies, the mere fact that the applicant would suffer an economic disadvantage in her home country is not considered exceptional hardship justifying making an exception to the policies."

19.Mr Cooney, for the Director, has said that the policy of only granting an application of the kind made by the applicant when exceptional circumstances present themselves is, having regard to the restrictive nature of Hong Kong's immigration policies, manifestly a rational policy. That seems to me to be correct.

20.As to the broad ambit of discretion vested in the Director in operating his policies, in the judgment of Aita Bahadur Limbu v. Director of Immigration, unreported, HCAL 133/1999, Stock J, as he then was, defined the nature of the Director's discretion in the following manner :

"The applicant has no right in law to remain in Hong Kong as a resident, and the decision is one within the discretion of the Director. He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain. The legislature has entrusted to the Director a discretionary power to grant permission to reside in individuals who, in the first instance, have no right to reside here, and that discretion is a very wide one; it must not be exercised in bad faith, or arbitrarily, perversely, and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case. To that extent the courts will review the exercise of the discretion but the courts are concerned with legality and not with the merits. Were the determination of facts left to the Director, and the facts sweep across a wide range from the 'obvious to the debatable to the just conceivable' it is the duty of the court to leave the decision of that fact to the public body, save in a case where it is obvious that the public body is acting perversely."

The 'Wednesbury' challenge

21.Bearing in mind that the Director operates a restrictive policy of immigration and that, in respect of applications of the kind made by the applicant, he will only exercise his discretion favourably when exceptional circumstances present themselves, I fail to see how it can be said that the Director has stepped outside of the wide parameters of his discretion in refusing the applicant permission to take up indefinite residence here and to work.

22.The applicant is not yet 30 years of age. She is apparently fit and well. On her own admission, she is able to work. Indeed, she seeks to work here. Of course, the applicant deserves sympathy for her present predicament. She has been here for several years and she protests that her economic opportunities will be reduced in Nepal. But a diminution of economic prospects, absent any other compelling factor, can rarely constitute an exceptional circumstances and nothing at all has been suggested to say it constitutes one in this case.

23.Many people who have to leave Hong Kong have to take a cut in salary or a cut in wages; that is a fact of life. Nobody suggests that living in Nepal does not have its own physical hardships but, on the other hand, it is the home country of this applicant. It is where she was raised and where she has her family. It is a place where she speaks the language and in respect of which she has all her cultural ties.

24.The applicant accepts that she has family back in Nepal, that she can return to her family, that her family will take her in and give her support.

25.In respect of her divorced status, a matter which, she asserted, the Director failed to give proper weight, if any at all, the applicant said the following in her application for judicial review :

"It is more likely than not that I would suffer undue hardship if I am forced to return to Nepal to settle there after the seven year long migration from there. Divorce is still taboo in Nepal in that a divorced woman is usually seen as a shame and often despised by people in Nepal. The loathing will naturally lower my status in the society and substantially reduce my job opportunities, hence it will weaken my earning power."

26.While there may be social condemnation of divorce in places such as Nepal, the applicant has not gone so far as to say that it would prevent her from working or that her family would cast her out because of her status. Indeed, in this regard I note that when the applicant was obtaining her divorce in Hong Kong, she was at the same time advising the Director that, after her divorce, she would return to Nepal to live there. The issue, it seems, did not weigh so heavily on her at that time.

27.As to the assertion that the Director took into account irrelevant matters, these were not spelt out in the applicant's Notice of Application for Judicial Review and nothing has been advocated before me today. Nor has anything arisen indirectly in the course of submissions. On the evidence, there is nothing to suggest that the Director failed to take into account all relevant matters.

Legitimate expectation

28.The applicant asserted that she had a legitimate expectation to remain here based on the fact that she has been here for nearly seven years, her 'settled' life commencing in January 1997. That legitimate expectation, she said, has been undermined by the Director's decision. What has to be borne in mind, however, is that the applicant came here on a temporary basis only in January 1997; that is, to work as a domestic helper, and that she returned to Nepal in January 1998. She only came back to Hong Kong in March 1998 because of her romantic association with a Hong Kong resident. It would be difficult in these circumstances to say that she has enjoyed a 'settled' life in Hong Kong since early 1997, especially when, on her own evidence, she left Hong Kong to return permanently to Nepal in early 1998.

29.In addition, in my view, the applicant's assertion that she has led a 'settled' life in Hong Kong loses its force when one takes into account that her time in Hong Kong has been governed by requests to remain for limited periods of time only so that she could obtain a divorce here, after which - on her own undertaking - she has (until reasonably late in the day) intended to leave Hong Kong to return to Nepal. In my view, this is clear evidence of an intention only to remain in Hong Kong temporarily and I do not accept that such an intention can now be translated into an intention to live here indefinitely, adopting a settled life here.

30.In any event, a legitimate expectation must be based upon some promise or undertaking and I can find nothing to suggest that the Director, by any statement or action, has, in respect of this applicant, or in respect of applicants generally, given any form of undertaking to the effect that somebody who is here nearly seven years will thereby be entitled to remain in Hong Kong so that he or she can fulfil the required seven-year minimum term.

31. In all the circumstances, I am drawn to the conclusion that Mr Cooney was correct when in his written submissions he said :

"The applicant has no right to remain in Hong Kong. She may only remain in the discretion of the Director. The Director looked to see if there were exceptional circumstances such that she ought to be permitted to remain. He took into account all relevant circumstances and decided there were no exceptional circumstances. This is a decision on the merits which is for the Director alone. Moreover, nothing gave rise to any legitimate expectation that she would be permitted to remain."

The application for judicial review must therefore be dismissed. Costs will follow the event.

Representation:

Applicant, in person, present

Mr Nicholas Cooney, instructed by Department of Justice, for the Respondent