Policarpio, Merlita Laurado v. Director of Immigration

HCAL42/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 42 OF 2011

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Before: Hon. Lam J in Court

Date of Hearing: 28 July 2011

Date of Judgment: 28 July 2011

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J U D G M E N T

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1.This is an application by the Applicant, Ms Policarpio to challenge the decision of the Director of Immigration refusing to extend her stay in Hong Kong. 

2.Though the Applicant said she had been in Hong Kong for 16 years, actually that is not the full picture because, while she had been working in Hong Kong as a domestic helper between 1993 and 2006, she departed on 9 June 2006.  She only came back to Hong Kong on 26 May 2007  as a visitor.  Therefore, there was a break in those 16 years:  between June 2006 and 26 May 2007 she was not in Hong Kong.  The status of the Applicant has to be considered as from the time when she came back in May 2007 as a visitor.   At that time, she came to Hong Kong for the purpose of getting married with her current husband, Mr Khan, who is a man of Bangladeshi origin.  She was allowed to remain in Hong Kong as a dependant of Mr Khan who was granted permanent resident status some time ago.

3.However, subsequently, it was discovered by the Director - or rather, the Director received confirmation from the Consulate General of Bangladesh that the husband’s true identity was not what he claimed it to be and, therefore, the Director considered that the husband was no longer an eligible sponsor to support the Applicant’s extension for stay in Hong Kong. The Director also initiated procedures to invalidate the husband’s right to remain in Hong Kong as well.

4.I should also mention that, apart from getting married, the Applicant and her husband actually gave birth to two children in Hong Kong.  Again, the status of their children depended upon the status of the husband as a permanent resident.

5.The upshot of the matter, as I understand, as it is, is this:  because of the Director’s view that the husband’s permanent resident status is to be invalidated because of misrepresentation by the husband when he applied for permanent resident status, he could not support the extension of stay of the Applicant and, therefore, it was refused.  The refusal was notified on 16 December 2010.

6.The Applicant had tried to obtain legal aid to challenge that decision but legal aid was refused.  She had appealed against that refusal in terms of legal aid, but the appeal against the refusal was dismissed.  Therefore, the Director indicated that he would not further tolerate her stay in Hong Kong and has refused her request to defer her departure.  The refusal to defer her departure was set out in a letter of 31 May 2011. 

7.The Applicant then issued an application for leave to apply for judicial review on 24 June 2011.  She acted in person and challenged the refusal of the Director to defer her departure on the ground that her husband is in the process of getting evidence from the Home Ministry of Bangladesh to confirm or verify his identity.  Their case is that the representation by him to the Immigration Department when he applied for permanent resident status was accurate and he was being framed up by somebody in the Consulate General of Bangladesh when the latter confirmed to the Immigration Department that his identity was false.

8.The Applicant has, in fact, asked for time to enable her to get lawyers to represent her in the application for leave for judicial review.  I have adjourned the matter on two previous occasions in order to enable her to procure whatever legal representation she could get. The matter first came before me on 8 July.  I adjourned it to 21 July and, on 21 July, I further adjourned it to today.  Unfortunately, the Applicant still has not been able to have legal representation. 

9.At today’s hearing, I have submissions from the Applicant as well as her husband as regards what they have been doing in terms of trying to procure evidence to support their case.  The Applicant has shown to me copies of letters, one from his solicitors indicating that they might be able to help on condition that the Applicant can get the necessary evidence to confirm and verify the true identity of the husband.  But at the present moment, such evidence is still lacking. 

10.Another letter that the Applicant has shown to me is a letter written on 31 March 2011.  I cannot read that letter because it was written not in English but, I suppose, in the Bangladesh language.  But I was told that that was a letter written to the Home Ministry of Bangladesh, seeking assistance in terms of verification of the husband’s identity.

11.The third letter that I was shown this morning is a letter from the Applicant herself, asking that her husband and her children can be joined in to support her case. 

12.The Department of Justice, acting for the Director, opposes any further adjournment of the matter.  Miss Chow submitted that I should decide whether there is ground for granting leave for judicial review on the basis of the material that is before the Court.  Counsel also submitted that the assertion, and a bare assertion it is, that the husband was framed up by employees from the Consulate General is unbelievable. 

13.My attention was drawn to the fact that the question about the husband’s identity had been raised as long ago as 26 April 2010, which is the date when the Director sent a letter to the husband indicating that his identity was in question and the Director was considering the vitiation of his permission to stay in Hong Kong.  Since then, the husband has been represented by a firm of solicitors and there is no reason to believe that he had not been properly advised as to the importance of procuring evidence as to his identity from his home country.

14.In a nutshell, the whole basis of the Applicant’s current application for leave for judicial review is based on her case that the husband’s identity as reported to the Immigration Department at the time when he applied for permanent residence was true and accurate. 

15.Unfortunately, even up to now, she has not been able to produce evidence supporting her claim.  All that she can manage to show to this Court today is that, even taking her husband’s word that he has written to the Home Ministry of Bangladesh on 21 March 2011 and up to now, they still have not got any reply.  In the circumstances, I do not think there is sufficient material to justify this Court to grant leave for judicial review because, on the materials available, there is simply nothing to show that it is reasonably arguable that the Director was wrong to act on the information from the Consulate General of Bangladesh.

16.At one stage, I have considered the implications to the whole family because I am aware that, in other proceedings, right of family life has been relied upon in similar context.  However, on true analysis, in relation to this particular family, even the husband’s own right to remain in Hong Kong and also the children;s status as well, are in doubt - or rather, it is, as far as I am aware, based on information given to the court on behalf of the Director, invalidation proceedings have been on foot to revoke or invalidate the permission given to the husband to entry and also his permanent resident status as well as those of his children, again, on the basis of the fact that he was not the person he claimed to be when he applied for permanent residence. 

17.I am told that after some time being given to the husband, the latest development is that a letter was sent to him on 14 June 2011, inviting any further representation from him within one month on the intended revocation of his, as well as his daughter’s, permanent resident status.  Similarly, proceedings are on foot in relation to the permanent resident status of the son.

18.I also note that as far as the Applicant herself is concerned, although extension of stay has been refused and the Director has also refused to grant further indulgence in terms of deferring any departure for her (previously given to her when she applied for legal aid), the Director has yet to make an actual removal order against her. 

19.I was told by Miss Chow this morning that the intention of the Immigration Department is that in respect of the actual removal procedures, which will require a removal order to be made before the Applicant would actually be physically removed, it is intended that this should be dealt with together with the removal of the husband and the two children and there will be a chance for them to make further representations before the actual making of the removal orders. 

20.In those circumstances, I think that the Court should not grant leave for judicial review to the Applicant on the basis of the materials currently shown to the Court. 

21.On the other hand, if the husband were able to obtain some evidence from his home country at a later stage, no doubt he will deploy that in terms of resisting the invalidation of his and also his children’s permanent resident status and the Director would be informed about it.  Ifthe Director were given the benefit of such materials,  I have every confidence that the Director will take those into account in deciding whether any removal order would be made against the Applicant.

22.As for the present application, I do not think I should let the matter drag on.  Therefore, the application for leave is refused.

Applicant, in person (present)

Ms Grace Chow, instructed by the Department of Justice, for the Respondent