BATH PARBHJOT SINGH v. DIRECTOR OF IMMIGRATION

HCAL 1130/2020

[2022] HKCFI 535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1130 OF 2020

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J U D G M E N T

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A.   Introduction

1.  The applicant is an Indian national.  This is his application, made by Form 86 dated 9 June 2020, for leave to challenge the decision of the Director of Immigration dated 5 June 2020 (“Decision”), refusing to grant an extension of stay to the applicant.

2.  I have previously directed the Director to file and serve an ‘initial response’ and the Director has done so.  I have also granted leave to the applicant to file and serve a reply, but no such reply has been provided by the deadline set or at any time up to the date of this Judgment.

3.  Having considered the materials, I am of the view that this leave application can be properly determined on paper.

4.  This Judgment is being handed down at the same time as my Judgment [2022] HKCFI 524, given in HCAL 2772/2019 (“2019 JR”), concerning another application for leave to apply for judicial review also made by the same applicant.

5.  On the chronology, the Judgment in this case can perhaps be regarded as a ‘sequel’ to the other Judgment [2022] HKCFI 524.

B.   Background

6.  The applicant entered Hong Kong in March 2015 as the dependant of his then wife (now ex-wife), Ms Mandeep Kaur, who is a permanent resident of Hong Kong.  (Despite the fact that the applicant and the ex-wife have since divorced, I shall for convenience continue to refer to her as the “Wife”.).  The applicant’s dependant visa was last extended to 26 March 2019.

7.  On 25 March 2019, the applicant applied further to extend his visa, but was refused by the Director on 24 May 2019 on the basis that the applicant had already lost the Wife’s sponsorship.  That refusal decision was later confirmed by the Director on 19 September 2019 which became the subject of the 2019 JR.

8.  After filing the Form 86 in the 2019 JR on 20 September 2019, the applicant continued to write to the Director seeking extension of stay on different grounds.

9.  By letter dated 8 May 2020, the applicant informed the Director that there was a hearing regarding the custody of his son fixed for 4 August 2020 and asked for the extension of his stay up to that date.  That was rejected by the Director’s letter dated 11 May 2020.  By letter dated 25 May 2020, the applicant asked for extension of stay because there were no flights to India due to India’s nationwide lockdown.

10.  The next letter dated 4 June 2020 was issued by a solicitors’ firm, Chaudhry’s Solicitors, on the applicant’s behalf.  In the letter, it was said that despite the fact that the applicant was granted joint custody of his son, the Wife had been refusing to let the applicant see him.  The Wife had filed a summons dated 17 January 2020 regarding the custody of the son, and the hearing was then fixed for 4 August 2020. It was said that, considering the conduct of the Wife, the applicant was sure that he would not be able to see his son again if he left Hong Kong.  He asked the Director to allow him to stay in Hong Kong and to extend his stay until the conclusion of the custody battle.

11.  That request was rejected by the Director by letter dated 5 June 2020 (the Decision subject to the current intended challenge).  It was said that there were no strong grounds justifying the applicant’s continuous presence in Hong Kong.

C.   The status of the custody dispute

12.  I have called for the Court file of the matrimonial proceedings in FCMC 12494/2017 between the applicant and the Wife, so as to ascertain the status of the custody dispute. The following matters can be found in the Court file.

13.  The Wife petitioned for divorce on 25 September 2017, and the marriage was formally dissolved by decree absolute dated 13 September 2021.

14.  As for the son’s custody, by order dated 6 August 2019 (as amended), the Family Court granted joint custody of the son to the applicant and the Wife, with care and control to the Wife.  The applicant was granted defined access.  (A copy of that order was exhibited to the applicant’s affirmation in these proceedings.)

15.  By summons dated 17 January 2020, the Wife applied for sole custody, care and control of the son, as well as reduced defined access for the applicant.  The application was supported by her affirmation, which set out the reasons for her request for sole custody and variation of access.  Without delving into too much detail of matters dealt with in closed door family proceedings, I can point out that the Wife was uncomplimentary about the applicant’s behaviour and the level of his care for the son.  The evidence left the impression that the applicant only wanted joint custody of the son to support his application for visa extension in Hong Kong.  Though a social welfare report records the applicant’s side of things, he does not seem to have filed any evidence directly responding to the Wife’s evidence.

16.  The Wife’s summons was resolved by order dated 4 March 2021, following a hearing at which the Wife was represented by solicitors, but the applicant was absent (despite a previous order that both parties do personally attend the hearing). The Family Court granted sole custody, care and control of the son to the Wife, with leave for the applicant to apply for access.  The Family Court file does not contain any application for access to the son made by the applicant since that date (almost one year ago).

D.   Is there any merit in the application?

17.  No grounds were proposed in the Form 86 but the applicant asked for the Decision to be quashed and for the Director to be ordered to extend his stay until the matter of the son’s custody had been resolved.

18.  In the supporting affirmation, the applicant reiterated that his ex-wife had refused him access to his son despite the family court’s order dated 6 August 2020 (which was exhibited).  He was afraid that he would not be able to see his son again if he was forced to leave Hong Kong.  He asked to be allowed in Hong Kong until the custody issue was decided by the court.

19.  As a matter of fact, the applicant had been in Hong Kong throughout the custody litigation.  But, even though he was seeking an extension of stay for him until the custody issue was resolved (implying that he would take an active part in that dispute), he failed to attend the hearing on 4 March 2021.

20.  Anyway, as it now stands, there is no on-going custody proceeding.  The Wife’s application regarding the son’s custody, control and care was resolved on 4 March 2021.  Therefore, I agree with the Director that the intended challenge to the Decision has been rendered academic and there is no utility in granting the relief sought by the applicant.

21.  In any event, I am of the firm view that it is not reasonably arguable that the Decision is wrong in any public law sense.

E.   Conclusion

22.  The applicant’s application for leave to apply for judicial review is dismissed, with no order as to costs.