Bi v. Director of Immigration

HCAL 174/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 174 OF 2013

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D E C I S I O N

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1.On 5 December 2013, the applicant filed a notice of application for leave to apply for judicial review out of time of the decision of the Director of Immigration dated 14 February 2013 refusing the applicant’s application for a dependant visa.

2.The application was filed well outside the 3 month period as prescribed by law.  It is submitted, however, that the delay is mainly due to the intermittent supply of relevant documents from various sources and the time required analysing the documents and preparing the necessary court papers.  I accept the explanation that has been given based on the information that has been supplied which includes an account of the exchanges that have taken place with various sources seeking relevant documents.  With this in mind, and taking into account the nature of the decision and the relevant issues and grounds in relation to it, I grant an extension of time to make the application.

3.The applicant was born in Pakistan in 1970.  His wife was born in Hong Kong in 1982.  When she was very young she returned to Pakistan.  She married the applicant in 2000 in Pakistan.  They have four children, three of whom were born in Pakistan and the fourth was born in Hong Kong in 2009.  They both had previously married.  The applicant came to Hong Kong in 2002.  He claimed that he left Pakistan because of an incident with clansmen, which resulted in death threats against him.  The wife came back to Hong Kong in 2008 to be with the applicant.[1] The three children born in Pakistan have remained there and are being cared for by their grandparents.  In 2005, the applicant was convicted of using an identity card relating to another and breach of conditions of stay.  He served a term of imprisonment and was subject to a deportation order.  He then made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as he feared returning to Pakistan as a result of the incident with clansmen.  His claim was refused as was his petition against the refusal decision.  In June 2012, he requested the Director of Immigration not to issue the deportation order against him.  He had previously made application to remain in Hong Kong as a dependant of his wife who was a resident of Hong Kong.  He also supported his application on the basis that he and his wife had a child who was born in Hong Kong and living with them.  The Director refused the applicant’s dependant visa application on the ground that he did not meet the approval criterion “there is no known record to the detriment of the applicant”, notwithstanding that he found the applicant’s marriage was genuine and that the wife was financially capable of supporting her husband.  After a series of requests for reconsideration of the applicant’s dependant visa application, the Director, on 14 February 2013, refused to reconsider his application on the basis that he could not find sufficient grounds justifying a reversal of the previous refusal decision.

4.The Director has a wide discretion in deciding whether or not to grant a dependant visa.  This discretion is required to be exercised lawfully and fairly. 

5.It is argued by the applicant that his application was refused on the sole grounds of his previous criminal record, and the alleged seriousness of the offences involved but had otherwise satisfied the other relevant considerations.  He complained that the “known record to the detriment of the applicant” consideration appeared to be treated as a specific eligibility criterion (or as an ineligibility criterion) under the policy for a dependant visa and little if any real consideration was given to family rights and the family circumstances of the applicant.

6.The Director has issued a “Guidebook for Entry for Residence as Dependants in Hong Kong” when considering applications of this type.  It is argued that he has failed to follow the policy as stated in the Guidebook when deciding on the applicant’s application.  It is also argued that the Director did not give due regard, if at all, to the applicant’s right to family.[2]

7.The grounds of review are as follows:

(i) the Director misapplied the policy;

(ii) the Director failed to take into account relevant considerations;

(iii) the Director unlawfully fettered his discretion in the application of the policy; and

(iv) the Director’s decision was unreasonable.

8.In light of the foregoing, I am satisfied there is a reasonably arguable claim which enjoys a realistic prospect of success and I grant leave to apply for judicial review of the Director’s decision of 14 February 2013.

[1] The wife was refused permanent resident status in Hong Kong but enjoys the right to land under s 2AAA of the Immigration Ordinance, Cap 115.

[2] See Art 37 of the Basic Law, Art 19(1) of the Hong Kong Bill of Rights, Art 23(1) of the International Covenant on Civil and Political Rights; Art 10(1) of the International Covenant on Economic, Social and Cultural Rights; and Arts 3, 9 and 10 of the Convention on the Rights of the Child.