GHAFOOR ZOHAIB v. DIRECTOR OF IMMIGRATION DEPARTMENT

HCAL 1409/2024

[2024] HKCFI 2265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1409 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 23 August 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision of the Director of Immigration dated 28 May 2024, described by the Applicant as “not granting for entry visa for residence as dependant in Hong Kong”.

2.  The Applicant requested an oral hearing (albeit in a form seeking an interpreter, rather than in the Form 86 as should have occurred), which hearing I originally fixed for 6 September 2024. Later, as a result of a typhoon, I re-fixed the hearing to yesterday. At the hearing, the Applicant appeared in person with the benefit of an Urdu interpreter.

3.  At the end of the hearing, I reserved my decision for one day. This is my Decision.

B.  Application and Materials

4.  The Applicant appended to his affirmation, also dated 23 August 2024, the Director’s letter dated 28 May 2024, which is said to contain the decision the subject matter of the Applicant’s intended judicial review challenge.

5.  However, the letter makes clear that what was being dealt with by that letter was a response to the Applicant’s request for reconsideration (“RR”) of the earlier refusal of his entry dependant stay application, which was refused on 22 May 2023 (“Refusal Decision”).

6.  The letter referred to the Applicant’s letters dated 12 March 2024 and 17 April 2024 and their attached documents, and pointed out that:

(1)  An RR is usually entertained only if (a) there are fresh circumstances which relate to the reasons underpinning the prior refusal decision, and (b) the RR is made within a reasonable period of time following the refusal decision.

(2)  Immigration Department (“ImmD”) records identify that the sponsor made an entry dependant application for the Applicant, which was refused on 22 May 2023 (i.e. the Refusal Decision).

(3)  The RR was submitted about 10 months after the Refusal Decision was made.

(4)  In the absence of any justifiable grounds for the belated RR, the requirements for usual entertainment of an RR were not complied with.

(5)  Having carefully considered the representation/information submitted, the RR did not serve to form any fresh ground pertinent to the Refusal Decision for reconsideration.

(6)  Hence, the RR request was refused and the Refusal Decision previously conveyed still stands.

7.  In other words, by the Form 86 the Applicant seeks leave to challenge by way of judicial review perhaps not the original Refusal Decision dated 23 May 2023, but the refusal of the RR (“Reconsideration Decision”).

8.  Further, from the letter, it is clear that the Reconsideration Decision was made because the Director considered both (1) that the RR was not made within a reasonable period of time following the Refusal Decision and (2) that the RR did not comprise any representation or information serving to form any fresh ground pertinent to the Refusal Decision for reconsideration.

9.  Insofar as the Applicant has suggested that the Reconsideration Decision was a refusal to consider reconsideration because of the failure to make the RR within a reasonable time, he is mistaken. As the Reconsideration Decision letter makes clear, it was based both on the reason of unjustified delay and that there was no new representation or information.

10.  The Form 86 does not itself identify any intended public law grounds of review. In his affirmation, the Applicant simply stated:

The decision taken by the Director of Immigration in relation to my application for not granting me an entry visa for residence as a dependant is not fair because the immigration department failed to consider the effects of this decision on my father, me and my future.

11.  The affirmation then referred to the Applicant’s father’s medical condition, diagnosis and treatment, and stated that (1) the Applicant needed to be present in Hong Kong to take care of his father due to his current sickness, (2) the father is running a transport business earning a monthly profit of around HK$20,000, and (3) the father has suitable accommodation and savings to provide a living well above the subsistence levels in Hong Kong.

12.  At the hearing, the Applicant helpfully handed up a written submission together with various annexures, which he said contained all he wanted to say in support of his application. In my summary of them, the Applicant made the following points:

(1)  His father applied for his entry visa as a dependant in or around March 2021, when the Applicant had not yet attained the age of 18. (Incidentally, I note from a copy of the Applicant’s current passport filed with the papers that his date of birth is 29 June 2003, so that the dependant visa application was made just three months or so before his 18^th birthday.)

(2)  ImmD wrote to the father on 20 April 2021, seeking further documents and information, which the father provided on 18 May 2021.

(3)  Thereafter, each time the father enquired about progress of the application he was told to wait whilst ImmD went through the documents.

(4)  ImmD wrote to the father on 7 December 2022 – around 20 months after the last submission – seeking further documents in support of the application.

(5)  At that time, the father was in Pakistan, and under treatment for ‘Acute B Lymphoblastic Leukaemia’.

(6)  The father wrote to ImmD on 3 February 2023, informing that he was in Pakistan would submit the documents soon.

(7)  No further correspondence was received from ImmD after that, and the father was unable to travel to Hong Kong because of illness.

(8)  The father arrived in Hong Kong to continue further treatment, requiring a stem cell transplant for which the Applicant and his elder brother were considered suitable donors.

(9)  On the father’s application, both brothers were given visitor visas and arrived in Hong Kong in February 2024.

(10)  The Applicant was the donor for the stem cell transplant performed on the father.

(11)  Upon inquiry, the Applicant was informed that the dependant visa application had been refused on 22 May 2023 (i.e. the Refusal Decision).

(12)  The father requested reconsideration on 26 March 2024, also informing the reason why there was no further submission from him and the reason for delay in filing the RR. Essentially, he said he had not received any correspondence from ImmD.

(13)  ImmD replied on 2 April 2024, seeking further documents as to the delay in making the RR, and the father replied on 17 April 2024 to say the delay was caused by his sickness and that he had not received any letter from the ImmD cancelling or refusing the application.

(14)  ImmD replied on 28 May 2024, refusing the RR (i.e. the Reconsideration Decision).

13.  The Applicant’s written submissions submit that this gives rise to the following grounds for leave to apply for judicial review:

(1)  ImmD took more than 20 months to reply after the father submitted documents, when the performance pledged states that they will finalise 90% of applications within six weeks of submission documents, yet when the father requested time to submit documents ImmD could not even wait for three months before rejecting the application.

(2)  The father did not receive the Refusal Decision, and he did provide evidence of his sickness and that he was away from Hong Kong, which ImmD refused to accept as valid explanations.

(3)  The father had submitted all documents and information then asked in his submission dated 20 April 2021. So even if he failed to submit documents requested in December 2022, ImmD should have assessed the application based on the original document rather than just reject the application because some documents were not submitted.

(4)  The father’s submission dated 20 April 2021 was very comprehensive and covered all aspects of the dependant visa application, so the application could have been finalised based on those documents already submitted.

14.  In other words, the Applicant’s assertions are that: (1) there was delay by the ImmD, then an unnecessary rush; (2) the Director should have accepted the donation for delay in making the RR; and (3) if the Director had assessed the application on the materials available to him, even without further materials, the Director should have granted the dependant visa. There is also the original ground advanced in the Form 86 that the decision was not fair, but it may be that the subsequent assertions are essentially subheadings of that one ground.

C.  Analysis

15.  With respect, this application for leave to apply for judicial review must fail for a number of reasons, individually or cumulatively.

16.  First, in the absence of good reason supporting an extension of time, an intended judicial review challenge must be brought as soon as possible and in any event within three months of the impugned decision. No challenge was made to the Refusal Decision within that long-stop period, or indeed at all. Indeed, even the RR was only made approximately 10 months after the Refusal Decision, for reasons which the Director clearly felt did not justify the delay. In that regard, the father may not have received the Refusal Decision because he was not in Hong Kong at the time, but there is no suggestion that relevant correspondence was not sent to each of the addresses identified by the father for correspondence, and it was for the father to make any necessary arrangements for that correspondence to be forwarded to him.

17.  Further, it is trite that the period within which to bring an intended judicial review challenge cannot be renewed or extended simply by requesting a reconsideration of the original decision. In the circumstances where the Director has stated that the RR failed to provide any new information as might justify reconsideration, which statement the Applicant has not sought to challenge in these proceedings, it seems clear that the Applicant is really complaining about the Refusal Decision, and he is significantly out of time for so doing. Nor has he sought to explain the delay.

18.  Secondly, the way in which the affirmation is phrased (see above) seems in reality indeed to comprise a complaint about the original Refusal Decision. The same can be seen from the suggested ground of review by the written submissions relating to the time taken by the ImmD. Again, the Applicant is far out of time for bringing that challenge, and has neither sought an extension of time nor identified any good reason why one might be granted.

19.  Thirdly, it is trite that an application for leave to apply for judicial review must identify public law grounds of review capable of being sustained on the application. A general suggestion that the impugned decision was “not fair” does not satisfy that mandatory requirement. It is not for the Court to seek to identify for any applicant potentially arguable public law grounds of review. Also, an argument that the Director should have decide the matter one way, and not the other, is essentially a merits challenge, which is not for judicial review.

20.  Fourthly, in so far as it might be said that the Applicant has specified at all why the decision was allegedly “not fair” – mainly in the suggested failure to consider the effects of the decision (presumably primarily the Refusal Decision) on his father, himself and his future – the Applicant has given no particulars of that complaint. But, it is one of the mandatory requirements of an application for leave to apply for judicial review that there must be an affidavit verifying the facts relied on.

21.  If unfairness is now being alleged on the basis that the Refusal Decision was made simply because the further requested documents were not provided, I do not think there is any proper basis for the allegation. There is no reason to think that the documents previously provided had not been taken into consideration (and, indeed, that they were taken into consideration is logically linked to the request for further documents). What the complaint essentially amounts to is a complaint that the Director was wrong not to grant the dependant visa on the materials provided. But the Court exercising its judicial review does not conduct a review of the merits of the underlying application for a visa.

22.  Fifthly, in any event, the Applicant seems only to be referring to what are normally called ‘compassionate’ or ‘humanitarian’ factors, where it is settled law that the Director need not have regard to such factors, and that where the Director does have regard to such factors, the weight to be given to them is a matter for the Director (not the Court), subject only to interference on the basis of Wednesbury unreasonableness or irrationality. The Applicant has failed to identify any basis for reasonable argument that that there has been any Wednesbury unreasonableness or irrationality.

23.  I have already noted from a copy of the Applicant’s Pakistani passport in the Court file that the Applicant was shortly to be 18 at the time of the original application for a dependant visa, and he is now 21-years old, namely of working age. In the papers filed for this application, he has not sought to explain the claimed nature of any alleged continuing dependency.

24.  In fact, in the correspondence sent by the father to the ImmD on 18 May 2021 – sent in response to ImmD questions, including why the application was made so late – the father himself explained that he had wanted the Applicant to finish his studies in Pakistan “before he migrated to Hong Kong”. He also stated that his son was “old enough to take care of himself”, though he had decided to bring him to Hong Kong to study further and receive appropriate education in Hong Kong, so that he could have a better career path.

25.  As I have already indicated, whether those matters (assessed against the totality of materials) justified the grant of a dependant visa was a matter for the Director. In the absence of a reasonably arguable public law failure leading to the Refusal Decision or the Reconsideration Decision, the Court will not interfere with the weight given to the various factors by the Director in making those decisions.

D.  Result

26.  In the circumstances, the Applicant has failed to identify any reasonably arguable grounds of review as might justify the grant of leave to apply for judicial review.

27.  Therefore, the application for leave to apply for judicial review is dismissed, with no order as to costs.