SOBIA v. DIRECTOR OF IMMIGRATION

HCAL 1849/2020

[2020] HKCFI 2821

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1849 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decisions of the Director of Immigration dated 21 January 2020 and 2 September 2020 refusing to grant an extension of stay to the Applicant.

BASIC FACTS

2.  The Applicant is a Pakistani national born on 9 March 1994.

3.  On 23 June 2017, the Applicant married Mr Khan Ismail (“Mr Khan”), a Hong Kong permanent resident, in Pakistan. On 20 July 2018, the Applicant was granted a dependant visa to join Mr Khan as his dependant in Hong Kong.  On 30 August 2018, the Applicant arrived in Hong Kong on the strength of her Pakistani passport and dependant visa, and was granted permission to remain in Hong Kong until 30 August 2019.

4.  On 1 August 2019, the Immigration Department received a letter dated 27 July 2019 from Mr Khan stating that he was no longer willing to sponsor the Applicant’s stay in Hong Kong.

5.  On 28 August 2019, the Applicant submitted an application for extension of stay in Hong Kong on her own merits without any sponsor.  By a letter dated 18 September 2019, the Immigration Department informed the Applicant that her application fell outside the prevailing immigration policies for extension of stay in Hong Kong, and requested her to provide additional information to warrant exceptional consideration of her application.  The Applicant provided some further documents on 2 October 2019 and 13 January 2020, and said that she had an outstanding legal aid application in relation to her matrimonial proceedings with Mr Khan and would need to stay in Hong Kong to handle those proceedings.

6.  By a letter dated 21 January 2020, the Director informed the Applicant that her application for extension of stay was refused (“the 1^st Decision”).  In that letter, the following was stated:

“Under the existing immigration policy, a person may be allowed to remain in the HKSAR as a dependant provided that, amongst other things, he/she has an eligible sponsor in the HKSAR. An application for extension of stay is not granted automatically but only when the Director of Immigration is satisfied that circumstances have not changed since the original approval for residence was granted.

You were previously approved to remain in the HKSAR as a dependant of Mr. KHAN, ISMAIL (‘Mr. KHAN’).  Since there is a substantial change in circumstances that you have lost the sponsorship from Mr. KHAN, you are no longer eligible to remain in the HKSAR on dependant status.  Based on the available information, we do not find strong extenuating grounds justifying our exceptional consideration on your case.  Your application for extension of stay is therefore refused.”

7.  On 3 February 2020, the Immigration Department received a letter from the Applicant dated 29 January 2020 requesting for reconsideration of the 1^st Decision.  A letter was also received from one Mr Mohammad Amjad stating that he was currently living with the Applicant as his fiancée and was responsible for her well-being and expenses. On 18 May 2020, the Immigration Department received some further supporting documents pertaining to the outstanding matrimonial proceedings between the Applicant and Mr Khan.

8.  After consideration, the Director found no reason or justification for reversing the 1^st Decision.  By a letter dated 2 September 2020, the Director informed the Applicant that the 1^st Decision was confirmed (“the 2^nd Decision”).  The Immigration Department’s detailed consideration of the Applicant’s application for reconsideration of the 1^st Decision can be found in its internal file minute (M.1), the relevant parts of which state as follows (excluding document references):

“Current Request for Reconsideration

2. In gist, Applicant and her purported fiancé Mr. MOHAMMAD AMJAD (‘Mr. MOHAMMAD’) stated the following in support of their request for reconsideration: -

(i) Mr. MOHAMMAD is currently living with the Applicant as his fiancée and is totally responsible for her well-being and all expenses;

(ii) Our refusal decision made on 21-01-2020 is Wednesbury unreasonable and to some extent offensive to the face of law under Articles 25 and 35 of the Basic Law and Article 3 of the Bill of Rights Ordinance (Cap.383);

(iii) The Applicant was suffered from family dispute with her previous sponsor Mr. KHAN whose Police case KCCC1813/2019 has been concluded. It was also submitted that her life would be grossly endangered upon her return to Pakistan;

(iv) There is an outstanding divorce proceeding between the Applicant and Mr. KHAN, where refusing to allow the Applicant to stay in Hong Kong would render her unable to obtain a decree absolute such that she would never be able to enter into another matrimonial relationship. This would amount to an injustice and block her right to access to justice;

(v) The Applicant has not used any government funds to support her livings, litigation, or other necessities of life, and have not burdened any governmental funds;

(vi) The Applicant would legally enter into a matrimonial relationship with Mr. MOHAMMAD after obtaining decree absolute; and

(vii) The Applicant would opt for judicial review against our decision made on 21-01-2020 if the current reconsideration is refused.

Consideration

3. As to para. (2)(i) and (2)(vi), although Mr. MOHAMMAD is willing to be responsible for the Applicant’s well-being and all expenses, under the purported fiancé status and based on the available information that they have not been legally married, Mr. MOHAMMAD is not an eligible sponsor under the prevailing dependant policy. It is a matter of Applicant’s choice to adapt / adjust the living pattern and to re-integrate / re-assimilate to the community in Pakistan.

4. As to para. (2)(ii) – (iv), to reiterate, our refusal decision on 21-01-2020 was made after considering all the available information and surrounding circumstances of the case. Further considerations as to para. (2)(ii) – (iv) are set out in para. (4.1) – (4.3).

4.1 The Applicant quoted Article 25 of the Basic Law, where it stipulates that ‘All Hong Kong residents shall be equal before the law’. However, it was not demonstrated how our decision made on 21-01-2020 violates the said Article 25. In this regards, substantial changes in circumstances in respect of the Applicant were revealed in our assessment under ref. ACCS-8189-19, and there were no extenuating grounds which warranted an exceptional consideration, such that the application under ref. ACCS-8189-19 was refused. In any event, it should be noted that the said application fell outside the prevailing immigration policies.

4.2 The Applicant also quote Article 35 of the Basic Law, where it stipulates that ‘Hong Kong residents shall have the right to confidential legal advice, access to the courts, choice of lawyers for timely protection of their lawful rights and interests or for representation in the courts, and to judicial remedies. Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel’. I do not see how our refusal decision in ACCS-8189-19 deprived her of the relevant rights. It should be noted that, subject to fulfillment of all normal immigration requirements, the Applicant may come to Hong Kong on strength of her Pakistani passport with a valid visit visa in advance for pursuing the matters. Even if the Applicant is not in Hong Kong, she can appoint a legal representative and thus instruct so by various means such as letters, emails, faxes or phone calls and so forth to handle the matters, for example, her divorce proceedings or judicial review against our refusal decision (if any).

5. As to para. (2)(v), whether or not the Applicant has used any government funds or burdened any governmental funds does not justify her necessary presence in Hong Kong.

6. As to para. (2)(vii), applying for judicial review against a refusal decision made by the Director as an appeal channel is open to any applicant [also re: para.(4.2)].

Conclusion

7. Applicant’s grounds for staying in Hong Kong are all humanitarian and compassionate grounds. Applicant’s willingness in remaining and subsequent arrangements entirely rest on Applicant but not the Director. The Director has no legal duty to take humanitarian grounds into consideration and does not enjoy unfettered discretion in making immigration decisions.

8. Nevertheless, with the submitted fresh information, a careful consideration (including humanitarian or compassionate circumstances even the Director has no such legal obligations) had been conducted and it was found that there was no extenuating ground warranting our exceptional consideration of the Applicant’s current reconsideration request.  After revisiting the case with the aforesaid considerations, there appears no change in circumstances and no strong grounds warranting our exceptional consideration or a reversal of our previous refusal decision.  It is recommended to maintain the refusal decision.”

9.  On 9 September 2020, the Immigration Department received a second request by letter from the Applicant seeking reconsideration of her application for extension of stay.  The Director was of the view that no new matter had been raised by the Applicant.  By a letter of the same date, the Director informed the Applicant that the 1^st Decision was maintained, and she was required to depart from Hong Kong on or before 16 September 2020.

10.  On 16 September 2020, the Applicant made the present application for leave to apply for judicial review of the 1^st and 2^nd Decisions.

DISCUSSION

11.  In her Form 86, the Applicant has not set out the relief sought, or any ground on which relief is sought.  In her affirmation dated 16 September 2020, the Applicant merely states the following:

“The decisions made by the Defendants is flagrantly ‘unreasonable’ and ‘offensive’ to my constitutional rights duly provided for and protected under Arts. 25 and 35 of the Basic Law, i.e. constitutional right to access to justice”.

12.  In view of the fact that the Applicant no longer has an eligible sponsor, it is clear that her application for extension of stay falls outside the Director’s prevailing Dependant Policy.  Her application based on her own merits is subject to the Director’s overall restrictive immigration policy, which is well recognised and has been upheld by the courts in many previous cases.  It is a matter for the Director’s exercise of discretion whether to permit a person in the Application’s position to stay and remain in Hong Kong.  Save in the most exceptional of circumstances, the court would generally not interfere with the Director’s exercise of discretion in immigration matters.  The Director was entitled to take the view that there was no extenuating ground which would warrant exceptional consideration of the Applicant’s application for extension of stay.   There is nothing in the materials before the court which could support any public law grounds to challenge the 1^st or 2^nd Decisions.

13.  BL 25 (equality before the law) and BL 35 (right of access to the courts) plainly cannot assist the Applicant in her application for extension of stay, or her present application.

14.  In all, the intended application for leave to apply for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

15.  The application for leave to apply for judicial review is dismissed, with no order as to costs.