Lam Fong Si v. Director of Immigration

HCAL 79/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2013

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J U D G M E N T

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INTRODUCTION

1.This judicial review turns on a very narrow question, namely, whether the Director of Immigration (“the Director”) had asked himself the wrong question in rejecting the applicant’s application for residence in Hong Kong by way of two decisions dated 18 October 2012 and 6 February 2013 (“the 1^st Decision” and the “2^nd Decision” respectively).  The gist of the applicant’s complaint is that she applied for residence on humanitarian grounds but the Director dealt with her application with reference to the policy on dependant visa.

2.The background circumstances may be summarizes as follow.

THE APPLICANT AND THE INTERESTED PARTY

3.The applicant was born in the Mainland in 1964. She entered into Macao illegally and her stay there was subsequently legalized under an amnesty.  She obtained her Macao permanent resident status in 1989 and was issued a Macao identity card in 1996.

4.The applicant married her first husband in Macao.  They were married in the Mainland in 1984 and were divorced in 1991.  They have two sons who have reached adulthood and are living in Macao.

5.The applicant married her second husband, a Hong Kong permanent resident, in 1997.  Their son, the interested party in these proceedings (“LKH”), was born in Macao in April 1998.  He is almost 16 now.  The couple was divorced in 2000.  The applicant was granted custody of LKH by a court in Macao in March 2001.

6.On 24 September 1999, LKH’s eligibility for Hong Kong permanent identity card was verified.  He was then issued a Hong Kong permanent card on 2 November 1999.

7.Despite his status as a Hong Kong permanent resident, LKH had been living in Macao since his birth.  However, he experienced difficulties in his studies at a secondary school there.  He then came to Hong Kong in April 2009.  He is now studying at a secondary school in Hong Kong.  He receives monthly Comprehensive Social Security Assistance (“CSSA”). He lives with a friend of the applicant’s, a Mr Ho.

8.The applicant comes to Hong Kong on a regular basis to take care of LKH.  When she stays in Hong Kong, she lives at Mr Ho’s place. As a Macao resident, the applicant can only come to and stay in Hong Kong as a visitor.  She can stay for up to 180 days on each entry.  But she is prohibited by her condition of stay from taking up any employment.

APPLICATIONS TO THE DIRECTOR

9.The applicant’s and LKH’s living in Hong Kong is supported by the monthly contribution from her second son of her first marriage and the CSSA received by LKH.  It is her desire to make a better life and look after LKH while he is studying in Hong Kong.  She wishes to stay and work in Hong Kong.

10.Motivated by such a wish, the applicant first requested the Director to exercise his discretion to grant her the right to stay or permission to work in Hong Kong by letter dated 16 February 2011.  In that letter, she briefly stated her history and highlighted her predicament. She hoped the Director could give her an identity card so that she could work and take care of LKH without relying on CSSA.  In the reply letter dated 23 February 2011, the Director advised her of the prevailing immigration policy and entry arrangement of Hong Kong.

11.The applicant then sought assistance from the Society for Community Organization (“SOCO”).

12.By a letter dated 2 March 2011, SOCO wrote to the Director, stating on behalf of the applicant :

“[The applicant] would like to request becoming a resident of Hong Kong, so that she can work and support her family. She hopes that you can give her a residence permit on humanitarian grounds, so that she can stay here to take care of her son. At the moment her son receives social security. However, she hopes that she can work in Hong Kong so that her family does not need to depend on social security.”

After referring to the Director’s said reply letter, SOCO went on to state that the applicant’s application did not fall under the general categories for application for residence and that the applicant hoped, through her letter attached, that the Director might by discretion give her residence. The applicant’s letter (wrongly dated as 2 February 2011) basically reiterated her hope that the Director could exercise his discretion to give her residence or allow her to work in Hong Kong to take care of LKH without relying on CSSA.

13.On 3 March 2011, the applicant’s application was referred to the Immigration Department’s Other Visas and Permit Section for processing.  On 11 March 2011, the handling officer, Mr Stephen Lau Wing Kei, contacted the applicant by telephone and explained the existing immigration policy to her.  The applicant indicated to Mr Lau that she was fully aware that her intended application for residence in Hong Kong was outside the existing immigration policy but she insisted on submitting an application for permission to stay in Hong Kong as a dependant of LKH and requesting discretionary consideration of her application.

14.In response, Mr Lau issued a letter dated 24 March 2011 for the Director to SOCO, explaining that the applicant did not qualify under the prevailing immigration policy for permission to stay in Hong Kong as LKH’s dependent.  However, if she wanted to pursue the application, the information and documents which she would need to submit to Department were set out.

15.By a letter dated 25 March 2011, SOCO informed Mr Lau that the applicant would not make an application for a dependant visa but she asked the Director to exercise his discretion to grant her residence or permission to work in Hong Kong on humanitarian grounds as she would like to stay in Hong Kong to take care of her son.

16.On 1 April 2011, the Director gave a holding reply to SOCO.

17.While the Director was considering her application, the applicant wrote repeatedly to the Director on 8 June 2011, 20 July 2011, 5 December 2011, 30 January 2012, 20 February 2012 and 15 July 2012, urging him to exercise his discretion to allow her to stay and work in Hong Kong on humanitarian grounds.

18.Separately, LKH also wrote to the Director on 5 December 2011, stating that the applicant had repeatedly asked him to return to Macao but he wished to stay in Hong Kong.

19.In processing the applicant’s application, the Immigration Department sought information from the Director of Social Welfare in respect of the relationship between the applicant and her friend, Mr Ho : see the internal memos between the two departments dated 23 and 28 September 2011.

20.On 11 October 2012, an internal memo in respect of the applicant’s application was submitted to Mr Lau for consideration.  After setting out the background, the memo identified the following relevant factors :

(1) The application was a request for exercise of the Director’s discretion to grant to the applicant residence in Hong Kong so that she would be able to work and take care of LKH in Hong Kong;

(2) The application was based on humanitarian grounds and the applicant did not make a dependant visa application;

(3) The consideration of the application was focused on the family background of the applicant and LKH;

(4) There was no immigration policy of granting residence by discretion;

(5) The applicant had resided in Macao for more than twenty years while LKH had stayed and studied in Macao for more than ten years since birth.  They had a deep root in Macao and were permanent residents there.  Both the applicant and LKH could travel freely back to Macao for reunion and a better living environment there;

(6) The applicant was well aware of her visitor status in Hong Kong and it was only her choice to stay in Hong Kong and allow LKH to study in Hong Kong.  The difficulties of the applicant’s family were created by the applicant herself;

(7) If the applicant would like to work in Hong Kong, she should apply for an employment visa, which would be processed under the relevant employment visa policy, instead of asking for approval of residence status by discretion;

(8) The applicant’s case fell outside the dependant visa policy as it was obvious that her case did not meet the relevant criteria;

(9) LKH’s Hong Kong permanent resident status would not be affected even if he returned to Hong Kong for settlement after the age of 18.

21.Importantly, the memo concluded that there were no strong extenuating grounds justifying treating the applicant’s case as an exception to the existing dependant policy or granting her residence in Hong Kong.

22.Mr Lau agreed with the memo in terms of reasoning and conclusion.  He explained in his affirmation filed on 22 July 2013 thus :

“28. I have carefully considered [the said memo] and all relevant matters including the prevailing employment and dependant policies, [applicant’s] family background, as well as the compassionate or humanitarian factors involved, which were independent of each other. I also reminded myself that the [applicant] had not filed the necessary documents to apply for and was not applying for a dependent visa and that there was no immigration policy or entry arrangement applicable to the Applicant for her request to reside in Hong Kong to be allowed to work and take care of LKH. In particular, I bore in mind that while the Director had a discretionary power to give permission to a person who had no right of abode and right to land in Hong Kong to land in Hong Kong and to exempt a person from compliance with all or any of the prescribed conditions of stay, the exercise of that discretion must be very exceptional and there must be very strong justifiable reasons before the Director would exercise that discretion.

29. Taking all the factors into consideration, I concluded that there were no strong compassionate grounds, humanitarian factors or compelling reasons for justifying the Director to exercise his discretion to approve the [applicant’s] application for residence and thus, to depart from the overall immigration policy and all guidelines or policies for application for any particular entry visa/permit.  I agreed with the analysis and therefore accepted the recommendations set out in [the said memo].”

23.Mr Lau then issued the 1^st Decision on behalf of the Director on 18 October 2012.

24.On 7 November 2012, SOCO wrote to the Director and asked for a review of the 1^st Decision, urging him to allow the applicant to reside in Hong Kong to take care of her son.  Further correspondence ensued.

25.As evidenced by an internal memo dated 4 February 2013, the Director did reconsider her application :

“Grounds for Reconsideration

9. AP wished to acquire resident status in HK and to take up employment legally so that she could support and take care SP. She added that in view of SP’s adolescent age (ie 14-year-old) studying Form 2 (Secondary School) in HK, SP was in need of parental care. All in all, AP/SOCO requested to grant AP a resident status on compassionate or humanitarian grounds [28‑29].

Consideration

10. In spite of AP claimed to apply dependant visa to join SP in HK in the initial application [7], based on the request for the reconsideration, AP is not eligible for any of the visa/entry permits in HK. AP, rather than having a visitor status in HK, solely intended to acquire a resident status allowing her to take up employment, in which, is outside the prevailing immigration policy.

11. Nevertheless, an exception to the policy’s requirements may only be made where there are exceptional humanitarian or compassionate grounds. That is to say, AP, may be allowed to stay in HK as a resident, only if there are strong compassionate or humanitarian reasons or other special extenuating circumstances to justify a departure from the established policy.

12. Given both SP and AP are permanent residents in Macau, they, in fact, can undoubtedly return to Macau for settlement, not to mention AP has 2 other sons living there. In other words, staying in HK receiving CSSA is absolutely not their only choice but their own free will, particularly to SP. The reasons they wish to reside in HK are, merely, SP’s preference of living and studying in HK [20, 22-23].

13 Having considered the grounds put forth by SP re para 9, it is, after all, a matter of AP’s choice on voluntary basis to stay in HK as a visitor.  Taken into consideration that SP and AP are permanent residents in Macau, they could have returned to Macau, and AP could take employment there.  On the other hand, should AP return to Macau, SP would not be alone in HK as he could have taken care by Mr HO who is a HKPR and a reliable person from AP’s point of view.  In an overview, there are no strong compassionate or humanitarian reasons or other special extenuating grounds on SOCO/SP’s posed grounds for the instant case.”

26.Based on that memo, the 2^nd Decision was issued to the applicant on 6 February 2013.

DISCUSSION

27.The only ground advanced in support of the present judicial review is that in rejecting the applicant’s application for residence, the Director had misdirected himself by asking the wrong question, namely, whether the applicant was qualified for dependent visa, when in fact her application was solely based on humanitarian grounds.  Thus both the 1^st and 2^nd Decisions are liable to be quashed : Regina v Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839.

28.In my view, this ground is entirely misconceived.

29.The contemporaneous evidence, as summarised above, overwhelmingly shows that the Director had not misdirected himself as contended.  It shows beyond doubt that (1) since SOCO’s letter of 25 March 2011, the applicant’s application was based on humanitarian grounds only; (2) the Director fully understood that it was the very basis of her application while at the same time recognizing that she was not qualified under the policy on dependant visa; and (3) the Director had all along been acting on the footing that her application was based on humanitarian grounds only in dealing with her first application and further application to review the 1^st Decision.

30.Mr Tang, counsel for the applicant, placed reliance on two letters emanated from the Director.  The first letter is dated 18 October 2012 in which the 1^st Decision was conveyed to the applicant.  There, Mr Lau wrote :

“As regards [the applicant’s] request to grant her residence by discretion, we have carefully considered all available information and circumstances of the case. Nevertheless, there exists no strong humanitarian, compassionate or other extenuating ground warranting a deviation from the prevailing policy.”

31.Mr Tang submitted that “the prevailing policy” referred to the policy on dependent visa.  It shows that the Director had asked the wrong question.

32.However, Mr Lau explained in §30 of his affirmation that “prevailing policy” meant the government’s overall immigration control policy and all sub-policies including the dependent visa policy.  Mr Lau’s explanation is not contradicted by any evidence.  More importantly, it is entirely consistent with all the contemporaneous evidence considered in the round objectively. I can see no reason not to accept his explanation.

33.Mr Tang next relied on the letter dated 9 April 2013 from the Director to the Director of Legal Aid in which the dependent visa policy was referred to when the Director explained why the 1^st and 2^nd Decisions were made.  Mr Tang argued that the reference to the dependent visa policy clearly showed that the Director had asked the wrong question.  With respect, I disagree.

34.That letter has to be understood in context with all the evidence now available.  In my view, when the letter is read subject to the evidence which I have summarized above, it does not support Mr Tang’s argument at all.

35.Mr Tang also relied on what various officers of the Immigration Department have said in their affirmations filed in these proceedings and argued that they showed that the Director was addressing the wrong question.  I shall not go into detail.  Suffice it to say that their affirmations, fairly read in context against the evidence, simply do not support Mr Tang’s argument at all.

36.Finally, Mr Tang relied on the recent decision of the Court of Appeal in Comilang Milgros Tescon and Another v Commission of Registration and Others, CACV 183/2013, unreported, 2 May 2013.  There, on the facts of the case, the Court of Appeal found that the Commissioner had misdirected himself by asking the wrong question in handling the applicant’s application for stay in Hong Kong.  I do not think Mr Tang can derive any assistance from the Court of Appeal’s decision.  The reason is simple.  Whether the government official, whose decision is being impugned, had asked himself a wrong question thereby rendering his decision illegal is a case-specific question.  It depends on the actual circumstances of the case.  In Comilang, the Commissioner had asked the wrong question.  But here, as I have demonstrated, the Director had not misdirected himself as contended.

CONCLUSION

37.For the above reasons, this judicial review must fail.  And I dismiss it accordingly.

38.Cost should follow the event.  The Director shall have his costs against the applicant and LKH, including any costs reserved, to be taxed if not agreed.  The applicant’s and LKH’s own costs are to be taxed in accordance with the legal aid regulations.

Mr Stephen Tang, instructed by Messrs Hastings & Co, assigned by the Director of Legal Aid, for the applicant and the interested party

Mr Anthony Chan, instructed by the Department of Justice, for the respondent