RE RANA MUKTA

CACV 245/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2014

(ON APPEAL FROM HCAL NO 117 of 2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  By our judgment of 20 June 2016, we dismissed the appeal by the Applicant.

2.  On 16 July 2016, the Applicant issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal.

3.  In the notice, the Applicant set out the following as questions of great, general or public importance for submission to the Court of Final Appeal:

“ Questions relating to a proper policy to protect victims of domestic violence

(1) In the absence of a policy in respect of victims of domestic violence, what is the correct test for determining whether the Director has correctly applied suitable grounds for accepting or rejecting an immigrant spouse who lost the sponsor’s endorsement for a dependent visa because the immigrant spouse ran away from abuse?

(2) Whether it is Wednesbury Unreasonable for the Director of Immigration not to prepare a proper policy for immigrant spouses who suffer abuse from the sponsor spouse?

Questions relating to the Applicant’s application for dependent visa

(3) Whether it is Wednesbury Unreasonable for the Director of Immigration not to grant a dependent visa to the Applicant having considered the following facts:

(a) I came to HK lawfully with a dependent visa from 30^th May 2009 to 30^th May 2013;

(b) I am not divorced;

(c) I am not able to obtain my husband’s sponsor because I ran away from his abuse;

(d) Without support from my husband, I am able to start a small restaurant business with some partners and becomes financially self-reliant; and

(e) I did nothing wrong in my marriage.”

4.  Directions were given on 20 July 2016 for the processing of the application on paper.  The Applicant requested repeatedly for time to prepare submissions.  Time was extended twice, the last deadline was 15 September 2016.

5.  On 13 September 2016, the Applicant wrote to inform the court that she had no written submissions and she did not need any oral hearing.

6.  Therefore we have to consider the application based on the Notice of Motion without further inputs from the Applicant.

7.  Question 1 had been answered by us in our judgment with reference to the existing dependant visa policy.  We do not see any reasonable argument to suggest any different approach.

8.  Question 2 was not canvassed before us, at least not canvassed as a separate ground from the proper application of the existing policy.  Further, we do not think it is reasonably arguable for the court to formulate immigration policy in place of the Director in light of the established jurisprudence based on the immigration reservation and the considerations set out in BI v Director of Immigration [2016] 2 HKLRD 520.

9.  Question 3 is not a question of general importance.  It is a question on the application of the policy by the Director on the facts of the present case.

10.  For these reasons, we do not consider it appropriate to grant leave to the Applicant and we dismiss the Notice of Motion accordingly.