XCHRX HO YUK SHEUNG v. DIRECTOR OF IMMIGRATION

HCAL 158/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE

LAW LIST NO. 158 OF 1999

____________

_______________

J U D G M E N T

_______________

1. The Applicant is a Hong Kong resident who suffers from the physical disabilities of not being able to hear or speak. In September 1999, she was married to a Pakistani national, Mr Chaudry, who came to Hong Kong earlier in July 1999 for business purposes.

2. On the same day as date of the marriage, Mr Chaudry applied for a dependent visa. This was refused by the Respondent, the Director of Immigration, on the grounds that:-

(a) The Respondent was not satisfied that the primary purpose of Mr Chaudry's application was to join the Applicant as her dependent;

(b) The Respondent was not satisfied that the Applicant was financially capable of supporting Mr Chaudry's stay in Hong Kong.

3. In relation to point (a) above, in an affirmation of Lai Kam Hung, the Respondent stated that Mr Chaudry first arrived in Hong Kong on 24 June 1999 as a visitor and left on 8 July 1999. He returned to Hong Kong again on 12 July 1999 and was refused permission to enter as a visitor. On 13 July 1999, he sought entry again claiming to come here for business and produced confirmed booking to leave Hong Kong on 16 July 1999. Permission was given for him to stay until 16 July 1999. He then made a number of applications for extension to stay until 29 September 1999 when he married the Applicant.

4. In relation to point (b) above, in the same affirmation of Mr Lai, the Respondent stated that the Applicant worked full time for McDonald's and earned on average $3,391 per month. She also worked part-time for another company at $140 per day. Her bank passbook showed a minimal deposit as at October 1999. The expenditure on rent ranged between $1,500 and $2,000.

5. The legal principles relevant to this application can be summarised as follows. An alien does not enjoy a right of abode or a right to land in Hong Kong. Under the Immigration Ordinance, the Respondent has a wide discretion in an alien's application for a dependent visa and his decision cannot be impugned except in cases of bad faith.

6. No such allegation of bad faith has been made by the Applicant. The decision being challenged is a matter falling entirely within the Respondent's power. The approach adopted by the Respondent was a proper one. The matters taken into account by him in making the decision were also proper ones to be taken into account. In these circumstances, I do not find that this is a case in which there are matters which, on further consideration, might demonstrate an arguable case for the granting of the relief claimed.

7. Having so decided, it is unnecessary to decide whether the Applicant has the locus standi to make this application, or whether she needs to exhaust other remedies first, for example, by petitioning to the Chief Secretary. If I had to consider these matters, they would also have resolved the matter in the Respondent's favour.

8. For the above reasons, the application for leave is refused.