RE SINGH SUKHMANDER

HCAL 89/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 89 OF 2008

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J U D G M E N T

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1.  The applicant, an Indian national, came to Hong Kong as a visitor on 17 February 2001.  He was approved to change his immigration status to take up employment in Hong Kong on 2 April 2001.  The limit of stay of the applicant and his 3 dependents, namely, his wife and 2 Hong Kong born children was last extended until 7 January 2005.  The applicant worked as an Assistant Head Priest of the Sikh Temple from April 2001 to March 2003, then as manager of Happy Trading Company, a company engaged in the trading of shirting materials, from April 2003 to May 2004.  He applied for an extension of stay in respect of himself and his 3 dependents on 6 January 2005, but the relevant applications were treated as cancelled on 18 March 2005 after the Immigration Department failed to contact the applicant despite repeated attempts.  Removal orders against the applicant and his 3 dependents were issued on 1 February 2006.  Their subsequent appeals against the orders were dismissed on 20 March 2006.  They were (and still are) released on recognizance pending execution of the removal orders.

2.  The applicant submitted an application for an entry employment (investment) visa on 24 May 2006.  In his application, he stated that he was the owner of “Gurukirpa Enterprises” which was “individual” in business nature.  Subsequently, the Director of Immigration was told that Gurukirpa Enterprises had changed from “individual” to “partnership” with the injection of additional capital and resources from a local resident.

3.  The Director, having considered the information supplied by the applicant, was not satisfied that the applicant, as a partner of the company, possessed relevant academic qualification or working experience that could not readily be taken by the local workforce, or the applicant’s investment could bring substantial contribution to the economy of Hong Kong.  The application was refused and the applicant was informed of the decision by a letter dated 22 June 2006. 

4.  There were subsequent attempts by the applicant to persuade the Director to change his decision but they were all to no avail.  In his latest letter of refusal dated 7 August 2008, the Director informed the applicant that he could not find any reason or justification for reversing his original decision after careful consideration of the relevant information and circumstances of the application.

5.  The present application for leave to apply for judicial review was taken out on 20 August 2008.  The applicant seeks to challenge the Director’s repeated refusals of his application and claims relief accordingly.

6.  The test for granting leave is whether the applicant has presented the court with a reasonably arguable case that is supported by evidence.  Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.

7.  It is trite that given Hong Kong’s unique situation in terms of history, geographical size and population, immigration matters are under the strict control of the Director of Immigration.  For very understandable reasons, the courts have always been reluctant to interfere with the discretionary decisions of the Director.  In Bhupendra Pun v The Director of Immigration HCAL 1541/2001 (22/1/2002) para 9, Hartmann J (as he then was) explained the position as follows:

“The Director has been authorisd by our lawmakers to formulate policies governing immigration matters.  It has been said on numerous occasions that Hong Kong is a very small place with a high population density.  Indeed, the population density is one of the highest in the world.  As a result, the policy of the Director has, for many years, been one of strict immigration control.  It is the Government’s often-stated view that without these strict controls the strain on our already crowded facilities may well become intolerable.  Our courts have, on many occasions, recognised this policy of strict control, a policy which is dictated by Hong Kong’s unique geographical, social, historical and economic circumstances.  Expressed in plain language, our courts have long recognised that Hong Kong’s administrative authorities have acted lawfully in determining that they are not in a position to be as generous in their immigration policies as other jurisdictions may be.”

8.  The Director has made and published clear immigration policies covering, amongst other things, applications for an entry visa for employment or investment.  There is no challenge against the relevant published policy.

9.  The application of the policy is, essentially, a matter for the Director, not the court.  The scope for interference is very limited.  As Stock J (as he then was) has explained in Aita Bahadur Linbu v Director of Immigration HCAL 133/1999 (10/12/1999) para 3:

“The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one.  It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case.  To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits.  Where the determination of facts are left to the Director and the facts sweep across a range “from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely”:  see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518.”

10.  In the present case, it is said that the Director’s decisions are irrational or Wednesbury unreasonable.

12.  Having considered the entire materials that have been placed before the Court, I do not agree that the previous approval forms any sort of precedent, binding on the Director.  Each application must depend on its own facts and be considered in accordance with the prevailing social, economical and labour market conditions.  It is clear from the materials presented before the Court that the Director has given careful consideration to the present application and the relevant circumstances of the case.  He has come to his view, which must be respected by the Court.

13.  In my view, the applicant has proceeded on the wrong premise or assumption that the previous grant of visa has created some sort of precedent binding on the Director in relation to his present application.  I do not accept that premise.

14.  The applicant says that the Director has made a wrong judgment on the criterion of “special skill, knowledge or experience that are of value to and not readily available in Hong Kong” in relation to his case, and has given no or insufficient weight to his “in-kind” contribution.

15.  In my view, that is a matter of judgment.  The Director has clearly given careful consideration to the case and he has come to a certain conclusion.  It is a conclusion that the Director is entitled to reach on the materials before him.  There is simply no scope for this Court, sitting in its judicial review jurisdiction, to interfere with that conclusion.

16.  It is then said that the Director has not acted in good faith because there have been a number of unpleasant experiences between the Director and the applicant.

17.  This is a very strong allegation, which is, unfortunately, not substantiated by cogent evidence.  I see nothing in it.

18.  Finally, the applicant says that there are compassionate or humanitarian grounds to allow him and his dependents to stay.  He points out in particular that his children are (almost) 5 and 6 years old.  They were born in Hong Kong and have never lived in India.

19.  The Director has considered whether there are exceptional circumstances justifying the grant of the application in the present case, but has come to the conclusion that no such circumstances exist.

20.  The Court fails to see any sufficient circumstances here.  The children are no doubt very young, but for precisely that reason, I believe they can, without too much difficulty, adapt to life in India.  Indeed the limit of stay of the applicant and his family has long expired and it would seem that the sooner he and his family return to India, the easier it would be for the whole family to adapt to life there.

21.  Resettling back to India would inevitably lead to some inconvenience and difficulties.  But to a great extent, that must be true with every removal case.  No doubt the Director must have taken all this into account.  He has come to the conclusion that no compassionate or humanitarian grounds exist in the present case.

22.  There is simply no scope for this Court to interfere with that conclusion.

23.  The application for leave is therefore refused with no order as to costs.