RESHMA SHRESTHA v. THE DIRECTOR OF IMMIGRATION

1997 A.L. No 95

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. The decision challenged is the Director of Immigration's refusal to grant the Applicant a change of immigration status from visitor to resident. The reason for the refusal was that the Director was not satisfied that the Applicant had "a genuine intention to maintain a matrimonial relationship" with her husband.

2. In order to determine whether leave to apply for judicial review of that decision should be granted, I needed to know the material on which that conclusion was based. I requested the Director to file evidence on the topic. A comprehensive affirmation from the senior immigration officer who handled the Applicant's case has now been filed. In view of its contents, and because the Applicant is not represented, I decided that there should be a hearing of the application for leave to apply for judicial review. I did not think it was necessary for the Director to be heard on the application, and I therefore directed that the hearing be ex parte.

3. The affirmation filed by the Director reveals that the Applicant is Nepalese, and had arrived in Hong Kong on 6th March. She was permitted to remain as a visitor until 15th March. On 11th March, she applied for permission to remain in Hong Kong as a dependent of her Nepalese husband. He is a Hong Kong permanent resident, having been born in Hong Kong in 1978. While that application was being considered, the Applicant's permission to stay in Hong Kong as a visitor has been extended.

4. In support of her application, the Applicant produced English translations of two marriage certificates which purported to certify that she and her husband had married in Nepal on 12th February. However, on 5th May, her father-in-law wrote to the Chief Immigration Officer. He claimed that the Applicant had never married his son, and that the marriage certificates produced by her were false. As a result, an immigration officer interviewed the Applicant and her husband separately.

5. The notes of those interviews revealed a number of discrepancies between the Applicant's version of events and that of her husband. In addition, the marriage certificates were issued by different districts in Nepal. In the light of the letter from the Applicant's father-in-law and these discrepancies, the senior immigration officer was not satisfied that the Applicant and her husband "had maintained a genuine husband and wife relationship". I am uncertain whether he meant that he was not satisfied that they had ever married, and that he thought that the documents produced by the Applicant were false, or whether he meant that he was not satisfied that, although they had married, it was not a marriage of convenience simply to enable the Applicant to acquire residency in Hong Kong. But even if they had gone through a ceremony of marriage, there was, in my view, sufficient material (albeit only just) for the senior immigration officer reasonably to conclude that the Applicant and her husband were not genuinely living together as husband and wife. In those circumstances, on the material before the senior immigration officer, there is no basis on which his decision can be challenged, and this application for leave to apply for judicial review must be dismissed.

6. However, last Thursday, the Applicant filed in court a number of documents. They included a bundle of photographs showing the Applicant and her husband on affectionate terms. One of the documents explains why the two marriage certificates were issued by different districts. Another is a recent letter from the Applicant's father-in-law to the Chief Immigration Officer which asserts that his original claim was untrue, and that he had been acting on erroneous information supplied to him. The thrust of his letter was that, having researched the matter himself, he was now satisfied that the marriage between his son and the Applicant was indeed a genuine one. Since this letter was only sent after these proceedings had been commenced, the senior immigration officer obviously did not take it into account.

7. However, its contents may well cause the Immigration Department to take a different view of the matter. Although, therefore, this application for leave to apply for judicial review must be dismissed for the reasons I have given, I should like the Immigration Department to reconsider the question whether this really was a marriage of convenience in the light of the new material which is before the court. After all, the conclusion that this may have been a marriage of convenience was almost certainly influenced by the claim made by the Applicant's father-in-law, a claim which has now been withdrawn. I therefore request the Director of Immigration not to remove the Applicant from Hong Kong until such time as a proper reassessment of the Applicant's case has been concluded in the light of the new material which has been filed.

(Brian Keith)

Judge of the Court of First Instance