Lozano Joanne Guillermo v. Director of Immigration

HCAL105/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.105 OF 2005

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BETWEEN

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Before : Hon Chu J in Court

Date of Hearing : 5 June 2006

Date of Judgment : 20 June 2006

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J U D G M E N T

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1.The applicant applies to judicially review two decisions of the Director of Immigration (“the Director”) refusing to extend her stay in Hong Kong.

The facts

2.The applicant is a Filipina.  She was born in the Philippines on 21 August 1970.  She came to Hong Kong on 27 September 1999 on an employment visa to work as a foreign domestic helper.  At the time she had two sons residing in the Philippines.

3.On 22 December 2000, the applicant married a Mr Au, who is a Hong Kong permanent resident.  Consequent upon the marriage, she applied for and on 26 February 2001 was allowed to change her immigration status to take up residence in Hong Kong as a dependant of Mr Au.  The permission to remain as a dependant was initially for a period of one year.  On 26 February 2002, it was extended for three years to expire on 26 February 2005.

4.In the meantime on 10 August 2001, the applicant gave birth to a boy, Jerrold, whom she had conceived with her former boyfriend before marrying Mr Au.

5.At the time of Jerrold’s birth, Mr Au was recorded as his father on the birth certificate.  However on 11 June 2002, Mr Au informed the Immigration Department that he had discovered he was not the natural father and requested to amend the birth record and certificate of Jerrold.

6.Subsequently, the applicant was prosecuted of making a false representation in connection with Jerrold’s birth registration.  She was convicted of the offence on 9 October 2002.  Upon review, she was sentenced to a fine of $800.

7.The marriage between the applicant and Mr Au was dissolved on 4 February 2003.  This was only made known to the Immigration Department in February 2005 when the applicant applied to further extend her stay in Hong Kong.

8.Shortly after his birth, Jerrold was diagnosed of bilateral retinoblastoma with tumours in both eyes.  After cycles of treatment in the Hong Kong Eye Hospital, he suffered a total retinal detachment in the left eye.  The condition in the right eye was considered stable when he was last examined by Hong Kong Eye Hospital.  Jerrold has since left Hong Kong and is residing in the Philippines, being cared for by the applicant’s sister.  The medical certificate and report of Philippine General Hospital reveal he had undergone chemotheraphy and that a second EUA is scheduled for late June 2006.

9.Since divorced from Mr Au, the applicant had in November 2004 started a grocery business called Tojo’s employing a part-time sales lady at $2,500 per month.  The business reported a profit of $148,882 for the year ending 31 March 2005.  The applicant is currently co-habiting with a Hong Kong permanent resident who is a married person.

Application for extension of stay

10.By two letters to the Director dated 15 February and 11 March 2005, the applicant requested for extension of stay on humanitarian and compassionate grounds.

11.The matters relied upon by the applicant were :

(1)     She had lived in Hong Kong for five years.

(2)     She had a grocery business in Hong Kong employing a part-time employee and she hoped to expand her business.  She had savings of some $50,000.

(3)     She was co-habiting with a Hong Kong permanent resident who would marry her as soon as his existing marriage was dissolved.

(4)     She had three children.  The youngest child, Jerrold, is a cancer patient requiring expensive medication to sustain his life.

(5)     If she were to return to the Philippines, she would become unemployed and could not afford to support her children and to meet Jerrold’s medical expenses.  This would cause her undue hardship.

12.By letter dated 17 May 2005, the Director refused the application for extension of stay.  The letter stated there were insufficient justifications warranting exceptional approval of the applicant’s application.  The applicant was requested to depart from Hong Kong by 31 May 2005.  This forms the first of the two decisions challenged in these proceedings.

13.On 31 May 2005, the applicant went to the Immigration Department and made an application for reconsideration of her case.

14.By letter of the same date, the Director requested the applicant to provide all information and documents in support of her application by 7 June 2005.

15.The applicant wrote on 6 June 2005 setting out her grounds for reconsideration.  They are :

(1)     She had lived in Hong Kong for five years.

(2)     Her case required special consideration because her Hong Kong born child was a cancer patient receiving medication in the Philippines with her financial support.  If she had to leave Hong Kong, the child would not be able to receive the necessary medical treatment.

(3)     She had never relied on public housing or social welfare assistance while staying in Hong Kong.

(4)     He grocery business was profitable.  Her part-time employee would lose her job if she had to leave Hong Kong.

(5)     She had no place to live and would be unemployed on her return to the Philippines.

16.In support of her case, the applicant submitted :

(i)      The medical report and certificate of Jerrold from the Hong Kong Eye Hospital and Philippine General Hospital;

(ii)      Letters from Housing Authority and Social Welfare Department confirming she had not applied for public housing or assistance; and

(iii)     Financial statement and tax demand note of Tojo’s.

17.Further, the applicant’s solicitors herein wrote on 7 June 2005 to the Director making representations on the applicant’s behalf.  Apart from repeating the matters raised by the applicant in her previous letters to the Director, the solicitors requested the Director to grant the extension on account of the applicant’s contribution to Hong Kong and on humanitarian ground, or alternatively, to grant her an employment visa.

18.By letter dated 10 June 2005, the Director refused the applicant’s request for reconsideration and maintained the earlier decision.  The letter pointed out that as the applicant had divorced from Mr Au, she was no longer eligible to remain on dependant status.  The Director further stated that the applicant did not meet the approval criteria for employment or investment purposes.  In addition, the Director stated there were insufficient justifications warranting a reversal of the previous refusal.  This forms the second decision challenged in these proceedings.

Applications for judicial review

19.On 10 August 2005 the applicant commenced these proceedings.  Leave to apply for judicial review was granted on 15 August 2005.

20.The Form 86A raised three grounds.  They are :

(1)     The Director erred in failing to consider the humanitarian ground that the applicant would be unemployed or alternatively earn less if she were to return to the Philippines, as a result of which she would not be able to support the expensive medical expenses of Jerrold, thereby putting his life in danger.

(2)     The Director erred in not attaching weight to the fact that the applicant was not a burden but was contributing to the society.

(3)     The Director failed to consider the applicant’s case in an impartial manner and his decision is biased and against the rule of natural justice and the principle of equality.

21.Mr Sadhwani, who did not draft the Form 86A, indicated at the hearing that only two grounds are pursued.  They are :

(1)     Wednesbury unreasonable

He submitted that the Director had not really considered the applicant’s case with regard to Jerrold’s medical condition and needs.  Accordingly, the Director did not give a balanced and fair consideration of the applicant’s humanitarian circumstances.

(2)     Breach of natural justice

Mr Sadhwani indicated that the thrust of the applicant’s case is her humanitarian ground and he would not advance any specific argument on the second ground of breach of natural justice.

22.Accordingly the core issue of this application is whether the Director acted unreasonably in the public law sense having regard to the applicant’s request or claim for humanitarian considerations.

The evidence on the humanitarian ground

23.As formulated by Mr Sadhwani, the factors upon which the applicant based her humanitarian ground are : (i) Jerrold is a cancer patient; (ii) the applicant needs to work or continue her business in Hong Kong so as to support Jerrold’s expensive medical treatment in the Philippines; and (iii) if the applicant has to return to the Philippines, Jerrold is at risk of not receiving proper or necessary medical treatment.

24.Before looking at the Director’s decisions with regard to the claim for humanitarian considerations, it is necessary to ascertain the evidential basis upon which the humanitarian ground is founded.

25.As acknowledged by Mr Sadhwani, there is a lack of evidential materials to substantiate the claim.  Apart from Jerrold’s medical report and certificate, all that was before the Director were the statements in the applicant’s and her solicitors’ letters that if the applicant were to return to the Philippines, she would have no employment and no means to earn a living for her children and could not afford the same medical services for Jerrold.

26.In these proceedings, paragraph 4 of the applicant’s affidavit sets out all the evidence on the matter.  It reads :

“My said son Jerrold who was born in Hong Kong unfortunately contracted cancer and he is receiving treatment back in the Philippine and his medication is very expensive.  I have been doing odd jobs after my divorce to support my family back in my home country and in November of 2004 I started my own business namely Tojo selling miscellaneous items and it is doing good business and can maintain my own living and my children at home especially Jerrold.”

27.In terms of the medical expenses of Jerrold, there is no evidence to show what were the amounts already incurred and expected to be incurred.  There is no evidence to indicate what further or future treatments will be necessary.  Indeed the recent medical report gives no prognosis of Jerrold’s condition.  In terms of the applicant’s support of her children, there is no evidence to show how much she was remitting home for the maintenance of the children, including meeting the medical costs of Jerrold.  In terms of the applicant’s claim that she would be unable to make a living in the Philippines, there is no evidence to show her education and other personal background, including her employment history before she came here in 1999 at the age of 29.  As Mr Lee observed, logically speaking, it is possible for her to operate a small grocery business at home, similar to what she has been doing here.

28.In the absence of these fundamental information and evidence, the claim for humanitarian ground cannot get off the ground.

The Director’s decisions

29.Nevertheless, the Director was prepared in his deliberations of the two decisions to consider the applicant’s assertion that she would not be able to make a living to support the medical costs for Jerrold’s illness.

30.With regard to the first decision communicated by letter dated 17 May 2005, the Director had considered the hardship that the applicant might face on returning home, including the fact that she has three children, of which one is a cancer patient, and that she might not be able to support them if she could not remain in Hong Kong.  However, the Director concluded that that was insufficient to constitute exceptional ground for extending her stay.  In coming to the decision to refuse the extension, the Director had additionally considered that the applicant was no longer eligible to remain as a dependant of Mr Au and that she was not eligible for an employment visa.  The Director further was of the view that she has strong family ties in the Philippines and there would be no undue hardship for her to return to the Philippines.

31.As for the second decision communicated on 10 June 2005, the Director noted that Jerrold suffers from cancer and is receiving medication in the Philippines, and he is financially supported by the applicant.  The Director further had regard to the applicant’s claim that she would become unemployed if she were to go home, such that Jerrold would not get medical treatment if she had to leave Hong Kong.  Notwithstanding all these, the Director was of the view that they did not justify exceptional approval for further extension of stay.  In particular, it was considered that the matters urged by the applicant for exceptional approval are economical and financial factors, and economic difficulty is not an extenuating ground for exceptional consideration.

Are the decisions Wednesbury unreasonable?

32.On behalf of the applicant, it is submitted that the Director had not actually or seriously considered the medical condition of Jerrold and the hardship faced by him and the applicant.  It is said that in the internal minutes of the Department recording the decision, there was no specific reference to Jerrold’s medical condition and needs nor of his medical report and certificate.  The Director is criticized for failing to give a balanced and fair consideration to the matters put before him, replying on the cases of Durga Maya Gurung v. Director of Immigration (unreported) CACV1077/2001 at para. 15 and Lekhanath Gurung v. Director of Immigration (unreported) HCAL11/2005 at para. 46.

33.In my view, it cannot be justifiably said that the Director had not taken into account Jerrold’s illness and the applicant’s case that she is responsible for his medical expenses and that her support could not be sustained if her stay in Hong Kong were not extended.  As to the weight to be attached to these factors, this is a matter for the Director.

34.The fact that the Director had not elaborated on these points or had not referred specifically to the medical report or certificate in the internal departmental minutes or in the letters of refusal does not by itself lead to the conclusion that the Director did not give material and sufficient consideration to the child’s medical problem and needs.  This is not a case where the mother seeks to remain here to take care of a dependent child who is seriously ill.  In such a case, the actual medical condition and the related medical documents are highly relevant and ought to be looked at closely.  In the present case, the gravity of the applicant’s case is that she needs to remain in Hong Kong to earn more income to support her sick child at home.  The Director does not dispute that Jerrold has the medical problem indicated by the applicant.  In the absence of evidence to show the treatment needed in future and the costs involved, there is little point in going into the medical report and certificate.  It should also be noted that the medical documents available to the Director give no indication of Jerrold’s future medical needs.

35.As noted above, the applicant had not provided any material to substantiate her case of undue hardship.  That being the case, the Director cannot be expected to embark upon any detailed analysis or elaboration of the humanitarian claim.

36.It is suggested that the Director should have asked the applicant for more information if he was minded to give a proper consideration to this ground.  I do not agree.  Firstly, as a matter of law, the burden is on an applicant seeking permission to stay to show that her circumstances are such as to fall within the policy adopted by the Director : Santosh Thewe v. Director of Immigration [2000] 1 HKLRD 717 at 722I-723D.  Accordingly, it is for the applicant to put before the Director all the relevant information and documents in support of her humanitarian ground.  Secondly, as a matter of fact, the Director had by letter dated 31 May 2005 specifically requested the applicant to submit all the information and documents in support of her application.  Shortly after this letter, the applicant had retained solicitors to write to the Director, in addition to her own letters.  Thirdly, it is of significance that while she had submitted documents to substantiate other aspects of her case, she had provided no material in support of the humanitarian aspect.  For instance, she had gone as far as writing to the Hong Kong Housing Authority and the Social Welfare Department, even before the Director’s letter of 31 May 2005, to seek confirmation that she had not applied for public housing and assistance.  Among other matters, this demonstrates that the applicant was keenly aware of the need to provide evidential support to her application.  Fourthly, even in the present judicial review, the applicant has not introduced any material to support her case for humanitarian considerations.

37.Turning finally to the reasonableness of the Director’s conclusion that the applicant’s case does not justify exceptional approval, the starting point is to bear in mind that the court’s role in judicial review is supervisory.  In the context of immigration cases, the court has always recognized that the Director has the statutory duty of immigration control and has wide discretion to admit or refuse entry of aliens under the Immigration Ordinance, Cap.115.  As observed by Stock J (as he then was) in Aita Bahadur Limbu v. Director of Immigration (unreported) HCAL133/1999, 10 December 1999 :

“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 to 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, or 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 merits.  Where the 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 the decision of that fact to the public body save in a case where it is obvious that the public body is acting perversely’ : see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518.”

38.It is common ground that the Director is not obliged to take into account humanitarian considerations or other discretionary considerations : Lau Kong Tung v. Director of Immigration (1999) 2 HKCFAR 300, 332F-G and 343A-F.  In the present case, the Director is prepared to and had taken the applicant’s case for humanitarian considerations into account when deliberating upon the applicant’s application for extension of stay.

39.Apart from the lack of supporting evidence, the Director also took the view that the applicant’s case is more on economic ground than on humanitarian ground.  He considered that to allow an extension of stay because the applicant has a more favourable financial position in Hong Kong than at his/her native country is to permit the person to get round the restrictions on entry for employment/investment visa.

40.These are matters which the Director in the proper exercise of his discretion are entitled to take into account.  In all the circumstances of this case, the Director’s conclusion that there is no hardship of exceptional severity and the child’s medical condition is not an extenuating ground justifying an exception to the policies is a view that he is entitled to.  His decisions cannot be said to be unreasonable in the public law sense. 

Breach of natural justice

41.Although Mr Sadhwani does not formally abandon this ground of challenge, he has advanced no separate argument on it.

Conclusion

42.For the above reasons, the applicant’s application for judicial review fails.  Accordingly, the application is dismissed.

43.I also make an order nisi that the applicant pays the costs of the Director to be taxed if not agreed.  The applicant’s own costs be taxed under the Legal Aid Regulations.

Mr Kamlesh Sadhwani, instructed by Messrs Quan & Co.,  for the Applicant

Mr Lee Tin Yan, SGC, of Department of Justice, for the Respondent