Shafiq Mohammad v. Director of Immigration

HCAL10/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 10 OF 2006

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BETWEEN

Before:  Hon. Lam J in Court

Dates of Hearing:  16 February 2006 and 7 March 2006

Date of Decision:  7 March 2006

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D E C I S I O N

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1.The applicant in this case applied for leave for Judicial Review to challenge the decision of the Director of Immigration refusing his application for change of status. 

2.He has been in Hong Kong on the basis of a visitor’s visa and he wants to change it to an investment visa.  The Director refused his application.

3.The relevant policy of the Director provides for visa being granted to enter into Hong Kong for employment or investment purposes if the applicant can satisfy certain criteria.  One of the criteria is that if an applicant is in a position to make substantial contribution to the economy of Hong Kong, the Director will give favourable consideration to such an application.  The applicant said he fits into that category but the Director thinks otherwise.  That is the nub of the dispute between the parties.

4.There is no dispute by the applicant that the principles set out in Schmidt v Secretary of State [1969] 2 Ch 149, is still applicable in Hong Kong.  In that decision, Lord Denning, MR, said the following with regard to the position of a foreign alien, at page 171, letter A to C:

“He has no right to enter this country, except by leave and if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time.  If his permit is revoked before the time limit expires he ought, I think, to be given an opportunity of making representations for he would have a legitimate expectation of being allowed to stay for the permitted time.  Except in such a case a foreign alien has no right, and I would add, no legitimate expectation, of being allowed to stay.  He can be refused without reasons given and without a hearing.  Once his time has expired, he has to go.”

5.The emphasis is that as far as an alien is concerned he has no right to be here except by the licence of the government, or rather in the present context, the Director.  This proposition has been applied repeatedly in Hong Kong and I do not think I need to refer to the cases which has been cited by Mr Chu, appearing for the Director, in his list of authorities.

6.In particular Yeung J (as he then was), sitting in the Court of Appeal in the judgment in Gurung v Director of Immigration CACV 1077 of 2001, had set out the relevant propositions in paragraphs 56 to 60 of the judgment.

7.And it is important for the court to bear in mind, as stated by Litton JA (as he then was) in the case of Chan Heung Mui [1993] 3 HKPLR 533 at page 547, “It is for the Director and not the court to administer the scheme of immigration control.”

8.Further, as said by Stock J (as he then was) in the case of Limbu v Director of Immigration, HCAL 133 of 1999:

“Where determination of facts are left to the Director and the facts sweep across a range, from the obvious to the debatable to the just conceivable, it is the duty of the court to leave decision of that fact to the pubic body save in a case where it is obvious that the public body is acting perversely.”

9.The Director has filed an affirmation to oppose the application.  The Director has set out in that affirmation detailed reasons why the Director did not consider the Applicant’s case fell into the category of substantial contribution to the economy of Hong Kong.

10.The Applicant produced a projected financial statement to support his application.  I have read the projected financial statement and I have also read the reasons provided by the Director for rejecting that.  In a nutshell, what the Director said is that bearing in mind the previous track record of this business and the state of competition and also the presence of other business of similar nature in Hong Kong, the Director did not regard that projection as realistic.  Furthermore, the Director did not regard the kind of business that the Applicant is doing as falling within the category. 

11.I have no doubt that the Applicant has made some contribution to the economy of Hong Kong but whether it is substantial enough to fall within the stated policy of the Director is another matter.  On the materials before me I cannot say it might be arguable, on further investigation, that the Director’s position was perverse.  Neither am I satisfied that he could possibly be criticised as being Wednesbury unreasonable.  This is particularly so in the light of the fact that there is some doubt about the legality of the Applicant’s use of certain land.

12.On the whole I am not satisfied that this is a case where applying the criteria laid down by Ho Ming Sai that leave to Judicial Review should be granted.  I am not satisfied that on further investigation the Applicant will be able to mount a case which is arguable.  To allow the case to go on will only waste further costs and time and it is of no benefit to everybody concerned. 

13.In the circumstances, I will refuse leave.

(Discussion on costs)

14.Given the stances of the parties I will just make no order as to costs.

Miss Fiona Yu, instructed by Messrs Quan & Co., for the Applicant

Mr Caspar Chu, Senior Government Counsel of The Department of Justice, for the Respondent