MANJEET-KAUR v. DIRECTOR OF IMMIGRATION

HCAL 103/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 103 OF 2006

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J U D G M E N T

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1. On 17 November 2006, I granted leave to the applicant – a young woman born and raised in India and a member of the Sikh religion – to apply for judicial review of a decision of the Director of Immigration.  After a lapse of some 14 months, the matter has now come back before me for the substantive hearing.

2. The decision of the Director which is under challenge is a decision communicated to the applicant by a letter sent in August 2006 refusing her application for an extension of stay to reside in Hong Kong.  The applicant now seeks an order of certiorari to quash that decision and an order remitting the matter to the Director for reconsideration in accordance with the findings this court.

3. The applicant, as I have said, was born in India.  I am told that she was born in January 1983.  She came to Hong Kong as a visitor on 26 January 2002.  At that time, therefore, she would have been just 19 years of age.

4. On 21 February 2002, less than a month after her arrival, she registered a marriage with a Hong Kong permanent resident, Mr Singh Gurprit, and applied for a change of status so that she could remain in Hong Kong as her husband’s dependant.  It was necessary for Mr Singh to agree to sponsor the applicant and he did so.

5. The application for change of status was approved by the Director in April 2002 and she was permitted to continue residing in Hong Kong for specifically stated periods of time.  The last period (called an ‘extension’) expired in April 2006.  

6. It needs to be stated that the marriage of the applicant and Mr Singh, while it came about with some speed, is accepted to be genuine.  Mr Singh had visited India and met the applicant there.  A romance had ensued.  It seems that the applicant was pledged in marriage by her parents to another man.  But she did not wish to marry him.  She therefore came to Hong Kong – apparently in defiance of her parents’ wishes – to see Mr Singh.  He asked her to marry him and she did so.

7. However, in or about April 2005, after some three years of marriage, the applicant and her husband separated.

8. In August 2005, Mr Singh wrote to the Immigration Department to say that, as he was no longer living with the applicant, he was not prepared to remain her sponsor.  The records indicate that in September 2005, Mr Singh was called in for an interview when he said that he and the applicant had been living apart since April of that year.  Although no divorce proceedings have been instituted – a fact much relied upon by the applicant – it seems that Mr Singh made it clear during his interview that he wished to bring the marriage to an end.

9. The Director did not take precipitous steps.  Indeed, the matter appears to have been left until the following year when the applicant applied for a further extension of her visa; that is, the visa which permitted her to remain in Hong Kong as a dependent of her husband.  It was at that time that the Director made enquiries of the applicant as to the state of her marriage.

10. In a letter sent to the Director in August 2006, the applicant replied to the following effect :

“	At the beginning of my marriage, my husband was nice to me.  Two years into the marriage he always lives somewhere else outside home.  I heard that he has many girlfriends.  Despite having conjugal life, I could not bear any children of his because my husband insisted on using condoms to prevent me from getting pregnant.  With the reason that it was not the right time to have babies, my husband felt fully justified in preventing conception.  The reason why I am telling this is because I want to show you that we are genuine husband and wife.
	I hope that one day my husband would come back to me.  He is not sponsoring me now because for the time being he has ceased to be faithful to me due to immaturity.  He is susceptible to temptation and the affection of the opposite sex.
	If I being a married woman were sent back to India, all people will think that I have done something wrong, not only my relatives but also my parents will look down on me.  That is why I wish to continue to stay in Hong Kong even if it will be all by myself.”  [my emphasis]

11. In late August 2006, the Director wrote to the applicant to inform her that he had declined to grant her a further extension of her visa to remain in Hong Kong.  By that time, of course, the applicant and Mr Singh had been separated for some 16 months.  While the applicant had made it plain that she did not wish the marriage to end and hoped that eventually her husband would return to her, there was no evidence before the Director of any concrete steps being taken to try and bring about a reconciliation.

12. The decision communicated to the applicant in the letter of August 2006 is the principal decision that is challenged.  It is said that, in declining to grant a further extension, the Director failed to take into account matters of material relevance, which a reasonable decision-maker would have taken into account, and, in his strict adherence to his policy concerning dependency, the Director acted in such a way as to blindly fetter his discretion.  The letter was to the following effect :

“

You were last granted permission to stay in the HKSAR as a dependent of your husband Mr. SINGH Gurprit.  Owing to the loss of sponsorship from your husband, you are no longer eligible to remain in the HKSAR as his dependant.  Having considered all relevant circumstances of your case, we cannot find sufficient justifications warranting our exceptional approval.  Your application for an extension of stay is therefore refused.”  [my emphasis]

13. As it was, the applicant sought to remain in Hong Kong not as a dependant of her husband, occupying a natural niche in the setting of the marriage, although she hoped this would eventually be the case.  Instead, she sought to remain because she was working and could support herself and because a return to India would be too distressing for her.  In respect of the need for a sponsor, the applicant said that she had a cousin who would sponsor her.

14. In my judgment, the Director cannot be faulted for concluding that the applicant was not in substance seeking an extension of her dependency visa but was instead seeking to remain on a different basis, a basis that required the exercise of the Director’s discretion.  The Director, however, was not prepared to exercise his discretion unless exceptional circumstances presented themselves and, in his view, they did not.

15. I confess to having much sympathy for the position of the applicant.  She is a young woman attempting to make the best of very difficult circumstances.  I accept that she hopes that – at some time in the future – her husband will come back to her.  But, as I have said several times this morning, I have no jurisdiction to make decisions in place of the Director.  It is for the Director to consider the merits.  In Hong Kong, the law is now well settled.  The Director has a very broad administrative discretion, one that, because of Hong Kong’s unique circumstances, he is forced to exercise in a restrictive rather than generous manner.

16. This leads me to the dependency policy itself which is an administrative policy created by the Director.  As to the nature of this policy, I can do no better than refer to the judgment of Chu J in Lam Khiet Phung v. Director of Immigration (unreported) HCAL 9/2004, dated 24 January 2006 :

“	20.	In general, the Director, being charged with the statutory duty of immigration control, has a discretion to grant permission or refusal to remain in Hong Kong as dependants.  Under the Dependant Policy, closed family members, namely, dependant spouse and unmarried dependant child under 18 years old, who require both care and financial support may be permitted to remain in Hong Kong.  The categories of sponsor under the Policy are restricted to close family members.  Extended family members, such as siblings and aunt or uncles, will not be considered by the Director.  The sponsor must also be able to house and maintain the applicant out of his own resources.
	21.	Dependency is an essential element of the policy.  Hence, if the primary or principal purpose of an applicant for a dependant visa is to work in Hong Kong rather than occupying a natural niche in the setting of his/her family, the application will not be approved.  Further, if a person has been admitted on the basis of a dependant of his sponsor, it is expected that the dependency will continue while the person is subject to immigration control.
	22.	In the case of a person admitted as a dependant on account of his marriage with a Hong Kong resident or permanent resident, when the spouse does not act as a sponsor responsible for him, such as when the marriage fails, the Director’s policy is not to automatically renew his limit of stay and his residence in Hong Kong may terminate.  If the sponsorship can be replaced with a new arrangement, which is within the Director’s policy, then it may be possible for the limit of stay to be extended.”

17. Mr Pun, who appears for the applicant and who has, in my view, raised every point possible on her behalf, has said that the Director is not entitled to adhere so rigidly to his policy that, in the result, he ‘blindly’ fetters his discretion in respect of it.  I accept that must be the case.  If the Director is given a discretion under statute – and he clearly is – he may not act so as to deny it.

18. But, in my judgment, it is still open to the Director to create and manage a policy which in his opinion should be adhered to unless there are exceptional reasons not to do so.  That is not a denial of the discretion, that is merely an exercise of the discretion on a restrictive basis, that restrictive basis being demanded by the terms and conditions of the policy itself.  As I have indicated earlier, the Director is forced to manage a restrictive policy of immigration.  That has been recognised in a good number of judgments.  The management of a restrictive policy may rationally, and lawfully, bring with it a restrictive exercise of the Director’s discretion.

19. My findings in this judgment raise the question of why I granted leave in the first place.  But when I did so in November 2006, more than a year ago, I did so on an ex parte basis only and on the basis that the application appeared – at that time – to have a number of unusual features.  In my ruling, I spoke of these unusual features :

“	First she [the applicant] has been living in Hong Kong for some 4½ years.  She has at all times been a law abiding resident.
	Second, she remains married and hopes for a reconciliation.  If she is unable to remain in Hong Kong the hopes for a reconciliation will be ended.  To put it another way, an indirect consequence of the director’s decision would be to destroy any hopes that she has of saving her marriage.
	Third, although the dependency visa programme does not anticipate a dependent working, the fact is that this applicant has been in employment and is able to support herself.
	Fourth, there is no suggestion that the applicant’s own conduct within the marriage has led in any material way to the recent unhappiness between herself and her husband.
	Fifth, if the applicant has to go back to India, she will face a hostile reception.  She may find herself isolated from her community in India, rejected by her family and those members of the community with whom she grew up.  Here in Hong Kong, however, or so I am told, she has been accepted by the Sikh community.  She has friends who are prepared to support her.”

20. At the time, a central issue which appeared to me to be prima facie arguable was the contention that the applicant was attempting to save her marriage and that she should be given some reasonable opportunity to do so.  The dependency policy was never intended to destroy marriages, its purpose was the opposite : to allow families to remain together.  At the time, on the evidence before me, it appeared to be at least prima facie arguable that the Director had failed to consider whether some time should be given to the applicant to attempt to make a success of her marriage.

21. However, on the information that has now come before me, two things are apparent.  First, the Director, through his officers, did take steps to discover the state of the marriage and, second, no positive steps had been taken to repair the marriage by either party to it.

22. While I am required only to consider the circumstances as they were at the time the decision under challenge was made, I believe I can take into account the fact that, since I have granted leave, the applicant and her husband have only spoken to each other once, a conversation which did not advance matters.  A period just some three months short of three years has now passed since the applicant and her husband separated.  Reconciliation appears to be more a hope than a realistic expectation.

23. Judicial review is discretionary and a remedy can be denied if it will not advance matters.  When I raised this issue with Mr Pun, he sought a brief adjournment to take instructions from the applicant.  When he returned, he put before me a detailed plan in terms of which the applicant would take active steps to see if a reconciliation was possible.  The applicant was now prepared to speak to senior members of the Sikh community to see if they could assist, she was prepared to discuss matters with her mother-in-law, with whom she was on good terms, and to try and speak to her husband.

24. In light of this – solely on compassionate grounds – I put it to counsel for the Director that an adjournment of two months may be appropriate.  Counsel, however, was under instructions to bring this matter to a conclusion with no further delay.  The applicant has had an extended period of time to attempt to repair her marriage.  Sadly, she has done little, if anything, and I did not see that, concerning this application for judicial review, it would be a proper exercise of my power to adjourn matters for a further two months.

25. On behalf of the applicant, Mr Pun has argued that the Director did not take into account a material issue when he refused to extend the applicant’s right to remain in Hong Kong.  That material issue was the applicant’s assertion that the marriage, in her view, was not at an end and there was a chance to save it.  But the facts do not support Mr Pun.

26. First, direct enquiries were made of the state of the applicant’s marriage and were made about a year after the applicant and her husband had separated.

27. Second, the applicant spoke of wishing to remain in Hong Kong even if it was on her own.

28. Third, by the time the Director made his decision, the applicant had been separated from her husband for well over a year.

29. Fourth, the applicant did not ask the Director to stay his hand for a limited period of time so that a reconciliation could be effected.  In this regard, in Santosh Thewe v. Director of Immigration [2000] HKLRD 717 at 723, Stock J made the observation that —

“

Where a person seeks to obtain permission to reside in Hong Kong, the burden is on him to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the respondent.  It is not for the respondent to have to show that an applicant or an application falls outwith such a policy.”

30. If, as I understood the situation to be when I granted leave, no divorce proceedings had been instituted, the parties had been apart for only a short period and reconciliation was being actively pursued, then, if the Director had ignored these matters, it may be said his decision was unreasonable.  But, as I have made plain, this was not the situation.

31. Decisions made by the Director must, of course, if necessary, take into account cultural imperatives.  I accept that in conservative societies – and I am told that the Sikh society is conservative – women may have to take a passive position, even if that works to their long term prejudice.  I am ready to accept this young applicant, naïve to the ways of Hong Kong, raised in a village community in India, may have felt that her only viable option was to be patient, to be faithful to her husband and to await the time when he was finished with his womanizing and prepared to return to her.

32. But I do not accept that is the inevitable way of things in the Sikh community and I do not see that the Director should have thought any differently to me.  The applicant was this morning prepared to institute very active measures, she was prepared to involve senior members of community.  If she was her prepared to do it at this late stage, why was she not prepared to do it earlier?

33. Finally, I come to the issue of the applicant’s physical safety if she is returned to her family in India.  It is said that her family want to have nothing more to do with her.  But there is no evidence of that other than the applicant’s own assertion.  It is further said that the applicant may be at risk of becoming the victim of an ‘honour killing’.  But again, while such tragedies can take place, there is no evidence that, either earlier or now, the applicant herself was at any such risk.  There is no evidence, for example, of threats being made against her.

34. As to the threat of violence, this does not appear to have been raised before the Director.  It appears to have been raised for the first time in a letter dated 4 September 2006 addressed (by way of an appeal) to the Chief Secretary for Administration.  In that letter inter alia it was said :

“	It is a cultural taboo and a threat to life for as a woman living alone and apart from her husband.”

35. Even that statement, however, was somewhat ambiguous.  Did it refer to the possibility of ‘honour killings’ or simply the obvious risks that a woman, already shamed and forced to live alone, must face?

36. In all the circumstances, I am unable to conclude that the decisions challenged by the applicant were in any way unlawful.

37. The application for judicial review is dismissed.  Costs will follow the event.  The applicant’s own costs are to be taxed under the Legal Aid Regulations.