TATIANA CHINKO v. DIRECTOR OF IMMIGRATION

HCAL 45/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 45 OF 2005

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J U D G M E N T

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I.       Introduction

1.  On 24 December 2003 the Director refused Ms. Chinko’s application to extend her stay in Hong Kong as a dependent of her husband Mr. Ho.  Ms. Chinko now seeks to review the Director’s decision.

2.  Ms. Chinko took out her Notice of Application for Leave to Apply for Judicial Review on 11 May 2005.  I gave leave to apply for judicial review on 17 May 2005.

3.  At the substantive hearing of her application on 22 December 2005, Ms. Chinko by her counsel (Mr. Phillip Ross) abandoned all the grounds for review in her Notice.  Instead, Ms. Chinko belatedly sought leave to amend her Notice to add what was essentially a single new ground of review.

4.  That new ground was to this effect:-

(1)	At no time between 18 January 2003 (when Ms. Chinko applied for an extension of stay) and 24 December 2003, did the Director inform Ms. Chinko that she was eligible under the Director’s operative policy to be granted “unconditional stay” in Hong Kong.
(2)	Ms. Chinko claims to have been eligible for unconditional stay through having lived in Hong Kong for some 3½ years as at 18 January 2003.
(3)	Ms. Chinko suggests that on the evidence the Director never considered that she might be eligible for “unconditional stay”.
(4)	Such failure to consider was contrary to Ms. Chinko’s legitimate expectation.
(5)	The Director’s decision of 24 December 2003 was thus flawed for omitting to consider what ought to have been considered.

5.  The issue before me is whether, despite being long out of time and although lacking an affidavit to explain why there has been so much delay, I should still grant leave to amend Ms. Chinko’s Notice.

II.      Background

6.  Ms. Chinko first came to Hong Kong from Russia as a visitor.  A week after entry, she married Mr. Ho.  In August 1999 she was permitted to remain in Hong Kong for 12 months as Mr. Ho’s dependent.  The permission was later extended to 19 January 2003.

7.  On 18 January 2003 Ms. Chinko applied for a further extension of her stay.  At the time, Mr. Ho had commenced divorce proceedings against her.  By letter dated 22 April 2003 to the Director, Mr. Ho stated that he was not prepared to continue sponsoring Ms. Chinko.

8.  On 29 April 2003 Ms. Chinko left Hong Kong through Lo Wu for Russia.  Ms. Chinko says that she did this because of fears over her health due to SARS and in order to take care of her ailing mother in Russia.  She told the Immigration Office at Lo Wu that she was not giving up her 18 January 2003 application for extension.  But the immigration officer on duty warned her that, in the event of her return, she would require a fresh entry visa.

9.  On 23 June 2003 the Director refused Ms. Chinko’s application of 18 January 2003 for an extension.  Because (as far as the Director could see) Ms. Chinko had left no Russian contact address and since Mr. Ho was no longer her sponsor, there was no obvious means by which the decision could be communicated to Ms. Chinko.  Nothing further was done about the matter.

10.  In fact, among the documents which Ms. Chinko filed in support of her application for an extension was a marriage certificate.  Ms. Chinko’s Russian address was stated on the certificate.  But the Director seems to have overlooked this at the time.  It was not until the hearing before me that the presence of Ms. Chinko’s address on the certificate was pointed out by Mr. Ross.

11.  In July 2003 the Court made a decree absolute in respect of the divorce between Mr. Ho and Ms. Chinko.

12.  On 1 November 2003 Ms. Chinko re-entered Hong Kong on a visitor’s visa.  She was granted 14 days’ stay.  That was later extended to 16 December 2003.

13.  On 7 November 2003 Ms. Chinko re-applied for a dependent’s visa.  Three days later Ms. Chinko and Mr. Ho re-married.  Mr. Ho informed the Director that he again wished to sponsor Ms. Chinko.

14.  By then Mr. Ho was unemployed and reliant on CSSA support of $1,605 per month.  He was in no position to support Ms. Chinko.  Accordingly, on 24 December 2003 the Director refused Ms. Chinko’s application for permission to stay as a dependent.

15.  The Director has since reconsidered his December 2003 decision twice.  On each occasion he has reached the same conclusion.

16.  The first reconsideration was in July 2004.  At the time, Mr. Ho informed the Director that he had secured new employment at a monthly salary of $4,800.  However, Mr. Ho’s monthly outgoings being nearly double his income, the Director concluded that Mr. Ho could not provide financially for Ms. Chinko.

17.  The second reconsideration was in September 2004 at Ms. Chinko’s request.  But the Director found no good basis for changing his mind.  He informed Ms. Chinko of this on 13 October 2004. 

18.  About a week later Mr. Ho wrote to the Director to withdraw his sponsorship of Ms. Chinko.  Mr. Ho stated that he intended to commence fresh divorce proceedings against Ms. Chinko.  Nonetheless, as of today, the couple still live as husband and wife.  Mr. Ho has not withdrawn his refusal to continue supporting Ms. Chinko.

19.  On 24 November 2004 Ms. Chinko applied to remain in Hong Kong without a sponsor.  That application was rejected, the Director seeing no grounds which justified an extension without a sponsor.

20.  In December 2004 Ms. Chinko applied for an employment visa.  She produced evidence of a proposed employment with a company.  But, on 22 December 2004, the company informed the Director that its offer to employ Ms. Chinko had been withdrawn.

21.  The Director consequently refused an employment permit by a letter dated 25 January 2005.

22.  Prompted by the LegCo Secretariat, the Director reconsidered his decision to refuse Ms. Chinko residence without sponsor.  The Director found no exceptional circumstances.  He confirmed his refusal on 19 January 2005. 

III.     Discussion

A.      The law

23.  In assessing whether a person should be allowed initial entry as a dependent or later extensions of stay as a dependent, the Director does not normally consider an applicant’s ability to work.  The Director instead focuses on a sponsor’s relationship with the applicant and the sponsor’s ability financially to support an applicant. 

24.  This is because, otherwise, dependent visas can easily be abused to circumvent the Government’s strict requirements in relation to employment visas.

25.  The Government’s policy on the entry of foreigners into Hong Kong for employment purposes is stringent.  Only persons who possess special skills, knowledge or experience lacking in the domestic workforce or persons who are in a position to contribute substantially to the local economy, are allowed entry to work in Hong Kong.

26.  An applicant cannot get around the tough requirements for an employment visa by applying for entry as someone’s dependent. To be allowed in as a depenendent, an applicant must show that he has a bond of dependency (usually a family connection, such as husband and wife) with a Hong Kong resident and the latter is financially able and willing to support him.

27.  Between 1983 and July 2003 the Director operated a policy (the old policy) whereby a dependent spouse of a Hong Kong permanent resident would be eligible for a grant of “unconditional stay” after 3 years’ residence in Hong Kong.

28.  But it is important to bear in mind precisely what a grant of “unconditional stay” entailed under the old policy. 

29.  This was clarified in Sampaga Lacdang Raquel v. Director ofImmigration HCAL No.4 of 2000, 23 May 2000.  There Chung J held (at p.6) that, even where the Director had granted a dependent terms of “unconditional stay”, the person remained subject to the Immigration Ordinance (Cap.115), especially ss.7(1) and 11.  In particular, the person remained a “dependent”. 

30.  Thus, under the old policy, a dependent of a Hong Kong permanent resident who had resided in Hong Kong for not less than 3 years could indeed apply for a grant of unconditional stay.  But at the time of application such person would still have to show that there was a financially capable sponsor who was prepared to support him.  If (say) the dependent’s sponsor was no longer willing or able to support him, the Director could refuse to extend the person’s permission to stay in Hong Kong as a dependent.

31.  In other words, on an application for extension of stay by a relevant dependent under the old policy, the Director had at least 2 things to consider.  The Director first had to satisfy himself that there was no change to the applicant’s status as a dependent.  Only if so satisfied, would the Director consider how long to extend the applicant’s leave and whether to impose any particular condition (apart from a limited time of stay) on the applicant.

32.  If a person had been resident in Hong Kong for not less than 3 years as a dependent of a permanent resident, he might reasonably have expected on the old policy to be granted unlimited stay if (but only if) he could establish that he retained his sponsor’s support.  Eligibility for a grant of “unconditional stay” did not obviate the need to show continuing sponsorship of the applicant as dependent.

B.      Application of the law to the present case

33.  Mr. Ross’ case under the proposed amendment is that the Director’s refusal of an extension on 24 December 2003 was invalid due to a failure to consider Ms. Chinko’s eligibility for unconditional stay.

34.  But it is difficult to see how Ms. Chinko has any substantive ground for complaint.  In December 2003 Ms. Chinko could never have met the pre-requisite for the grant of an unconditional stay under the old policy.

35.  It is true that as at 18 January 2003 Ms. Chinko had been resident in Hong Kong for over 3 years.  However, the residence of 3 years is only relevant to the Director’s consideration of whether to impose a time limit or some other condition on an extension of Ms. Chinko’s permission to remain in Hong Kong as a dependent.  Before one reaches that stage, Ms. Chinko would still have to establish the existence of a viable sponsor.

36.  Ignore, for the moment, Ms. Chinko’s departure from Hong Kong in April 2003 and her subsequent absence from here for some 6 months.  Assume in Ms. Chinko’s favour that her departure and absence had no effect on her accumulated years of residence in Hong Kong.  Nevertheless, in December 2003, Ms. Chinko would not have been able to satisfy the initial hurdle of showing a viable sponsor.

37.  In December 2003 Mr. Ho might have been willing to sponsor Ms. Chinko.  But, having lost his job, he was in no position to support her financially.  He himself was dependent on a CSSA allowance and, even when he found a job much later, earned less monthly than he had to spend.  On the facts, Ms. Chinko could never have satisfied the first stage of the Director’s deliberation.

38.  Mr. Ross submits that there is no evidence that the Director actually rejected Ms. Chinko’s 18 January 2003 application.  He submits that, in the premises, the 24 December 2003 rejection must be treated as a refusal of the 18 January 2003 application. 

39.  As I have just pointed out, even if Ms. Ross’ submission is assumed in Ms. Chinko’s favour, lacking a viable sponsor, she would still not have qualified for the grant of extension of stay as a dependent in December 2003.

40.  In actuality, the evidence seems to me all one way that the Director rejected Ms. Chinko’s 18 January 2003 application on 23 June 2003.  The fact that Ms. Chinko’s address on her marriage certificate was inadvertently overlooked with the result that the June 2003 decision was not communicated to her, does not alter the reality of the June 2003 decision.

41.  On 23 June 2003 the case for rejecting the 18 January 2003 application was strong.  In April 2003 Mr. Ho had expressly informed the Director that he was not prepared to continue supporting Ms. Chinko.  Whether or not Ms. Chinko had amassed more than 3 years of residence under the old policy and whatever her legitimate expectation, the unfortunate truth was that she had no sponsor on 23 June 2003.  She could not at the time meet the pre-requisite for being granted unconditional stay as a dependent.

42.  If the 23 June 2003 decision constituted (as I believe it did) a valid rejection of Ms. Chinko’s 18 January 2003 application, then the 24 December 2003 decision was simply (as it purports to be) the refusal of Ms. Chinko’s 7 November 2003 application.

43.  The Director was then faced with an application for a dependent’s visa from someone who had been away from Hong Kong for 6 months, whose previous application for stay had been rejected in June 2003, and whose sponsor was not in a position to support her.  In light of those indisputable premises, the Director cannot be said to have acted irrationally in deciding to reject Ms. Chinko’s application.

44.  Therefore, however one looks at the facts, the question whether or not Ms. Chinko’s eligibility for unconditional stay was ever considered is purely hypothetical or academic.  The Director never had occasion to consider the question of conditions of stay.  Ms. Chinko cannot show that, at the time of any relevant decision, she would have been able to establish a viable sponsor. Ms. Chinko would never have cleared the first hurdle of the Director’s consideration process.

45.  Mr. Ross suggested that Sampaga was distinguishable from Ms. Chinko’s position. 

46.  Mr. Ross argues that, although Mr. Lacdang in Sampaga could stay in Hong Kong for an indefinite period, he could not work (at any rate initially).  Thus, Mr. Ross submits, Mr. Lacdang had not truly been given “unconditional stay” within the terms of Government’s policy applicable to dependents of permanent residents before July 2003.

47.  I disagree.  It is plain from the judgment in Sampaga that Chung J was considering the grant of unconditional stay to dependents under the old policy.  Chung J states as much at p.6 of his Judgment.  Mr. Ross’ reading of Sampaga confuses the distinct concepts of immigrant status on the one hand and conditions of stay on the other.  It is for an applicant to show that he has dependent status.  It is for the Director to impose conditions of stay (if any) on an applicant who has established dependent status.  Chung J’s simple point is that the grant of unconditional stay did not alter Mr. Lacdang’s status as a “dependent”.

48.  By reason of the foregoing, the proposed amendment is untenable.  It is bound to fail.  I am bound to refuse the late application to amend. 

49.  The result is that there are no outstanding grounds for review and Ms. Chinko’s application fails.

IV.     Conclusion

50.  The application to amend out of time and the substantive motion for judicial review are both dismissed.

51.  There will be an order nisi that Ms. Chinko is to pay the Director’s costs, such costs to be taxed if not agreed.