HKSAR v. ALICIA ASPURIA

1997, No. AL 34

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. The Applicant Alicia Aspuria was born in the Philippines. On 20^th May 1988, she came to Hong Kong to work as a domestic helper. Six months later, before her contract expired, she returned to the Philippines. On 10^th May 1989, she came to Hong Kong again as a domestic helper. Three years later, her employer released her from her contract and on 10th August 1992, she married Mr Cheung Vick-man. Mr Cheung was born in Hong Kong and is a Hong Kong permanent resident. Their marriage is a legally valid one, being one celebrated and registered in Hong Kong in accordance with the Marriage Ordinance.

2. After she was married, Mr Cheung on the ground of their marriage and his ability to support her, applied on behalf of the Applicant to the Director of Immigration on 12^th August 1992 for permission for her to remain in Hong Kong. Permission was granted on 9^th December 1992 for her to stay as a dependent of Mr Cheung until 1^st February 1993. This initial period was for more than a year. When this period expired, the Applicant applied on 9^th February 1993 for an extension and this time, she was granted an extension of three years until 1^st February 1996.

3. On 8^th January 1996, the Applicant applied for a further extension of stay in Hong Kong. The Director of Immigration commenced an investigation. The Applicant and Mr Cheung were separately interviewed on 6^th February 1996. After the interview, the Applicant was informed on 4^th June 1996 by the Director that her application was refused on policy ground. The Applicant instructed her solicitors to write to the Director indicating that the Applicant intended to appeal against the Director's decision. On 7^th August 1996, visits were made at the premises at Hang Fa Chuen which was reported by the Applicant as their matrimonial home and at the premises at Fa Yuen Street, the address given in Mr Cheung's tax return. Further interview of the Applicant was conducted on 14^th August 1996.

4. The Director, on 21^st August 1996, wrote to the Applicant's solicitors that the matter had been reconsidered but the decision remained that her application should be rejected. In this letter, the Director informed the Applicant in the following terms:

" Under the existing policy on entry and permission to remain for residence, an application by a wife to join her husband for residence in Hong Kong will normally be approved provided that there is reasonable proof of a genuine husband and wife relationship.

As we are not satisfied that your client's marriage to her alleged husband, Mr Cheung Vick Man, is genuine and that there being no other factors which would justify a departure from the existing policy in your client's favour, her application to continue her residence in Hong Kong is refused."

5. From what is said in this letter, it appears that the Director treated the Applicant's case as her first application to come to Hong Kong to join Mr Cheung whereas she had already been allowed to join her husband for four years and since then she had been resident in Hong Kong. The Director's rejection of her application is for no other reason than that the Director was not satisfied that her marriage was genuine.

6. The Applicant subsequently petitioned the Secretary for Security. The Secretary after considering a memo submitted by the Director of Immigration in support of her decision, refused the application and the result was notified to the Applicant on 24^th February 1997. Renewed application for an extension was again refused on 1^st March 1997 and the Applicant was told to leave Hong Kong not later than 24^th May 1997.

7. In her memo to the Secretary for Security, the Director states that at their interviews on 6^th February 1997 the Applicant and her husband gave inconsistent information as to the members of the family who occupied the premises at Hang Fa Chuen, the name of the family cat, the use of furniture in the bedroom, the state of the premises at Fa Yuen Street and the activities of the couple on the Sunday before the interviews and what happened on the Applicant's birthday. The Director also relied on home visits made by immigration officers on 7^th August 1996 to the premises at Hang Fa Chuen and Fa Yuen Street where they found very little lady's clothings and Applicant's untrue statement about her sister-in-law being abroad. The Director's conclusion was that on such evidence, she was not satisfied that "they had maintained a genuine husband and wife relationship".

8. The Applicant applied for judicial review of the Director's decision to refuse to extend her stay in Hong Kong.

9. The Director, through Acting Principal Immigration Officer Yolanda Fung Yuen, in charge of the Visa Control Division of the Immigration Department, deposed in response to the application. In her affidavit, Ms Fung states that under the existing policy, if upon investigation it is considered that the marriage is a sham or one of convenience, permission to remain in Hong Kong will be refused. She adds that in the present case, subsequent to the initial approval in 1992 and extension until 1^st February 1996, information was received by the Director relating to the genuineness of the Applicant's marriage. She states the reason for refusal is that the Director had reasonable doubts concerning the genuineness of the Applicant's relationship with Mr Cheung and the basis for it is the inconsistencies between the response of the Applicant and that of Mr Cheung during their interviews and the conclusions the Director drew from the evidence of the house visits.

10. The established grounds upon which administrative action is subject to the control by Judicial Review are those set out in Council of Civil Service Unions v Minister of Civil Service [1985] AC 374 namely, illegality, irrationality and procedural impropriety. Their meaning as extracted from the judgment is this:

"'Illegality' as a ground for judicial review, means 'that the decision maker must understand correctly the law that regulates his decision making power and must give effect to it..."

"'Irrationality' means 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) and 'applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it..."

"'Procedural impropriety' covers failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision and 'also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.'"

11. The Applicant's grounds attack the Director's decision under all these three heads. They are:

1. The Director's decision is "Wednesbury unreasonable";

2. The Director applied the wrong test in that the matter was not approached on the basis of proof on a balance of probabilities; and

3. The Applicant was not given the opportunity to respond to the Director's reasons for doubting the genuineness of her marriage before the decision to refuse the application for extension was reached.

12. It is submitted for the Applicant that the Director's decision is unreasonable. It is based on the interviews of the Applicant and her husband and the visits to the two premises. Even if the Applicant and her husband had been inconsistent in their interviews and little of the Applicant's clothes were found in both places during the home visits and the Applicant told untruth about her sister-in-law, such evidence does not justify the Director's conclusion that there were reasonable doubts that the Applicant's marriage was not genuine. No reasonable jury would have come to that conclusion.

13. Mr Westbrook for the Applicant accepts that an alien who seeks entry to Hong Kong has to satisfy the Director on balance of probabilities of the requirements for gaining entry and the burden of proof is on the Applicant on entry to satisfy the Director that the marriage is genuine on balance of probabilities. To this extent, R v Director of Immigration, ex parte Du Gui-fang [1992] HKPLR 562 applies. However, it is submitted the case Du Gui-fang does not apply where the Director had allowed the Applicant to change her resident status on account of her marriage to Mr Cheung and thereby accepted that the Applicant's marriage was genuine. He submits that once the Director had so accepted, it ought to be for the Director to satisfy herself that the marriage was not genuine. The Director's reason for refusal is she had reasonable doubts concerning the genuineness of the Applicant's marriage. This is tantamount to requiring proof beyond reasonable doubt that the marriage is genuine and this is the wrong approach.

14. Thirdly, it is submitted that where the Director refused the application because the marriage was no longer genuine, fairness required that the Applicant be given an opportunity to respond to the adverse conclusions the Director had drawn from the interviews and visits by the investigating officers.

15. Mr Logan for the Director argues that the Director is entrusted by statute with the responsibility to control immigration and permission to stay and its limit with or without condition is a matter entirely at the discretion of the Director. It is submitted that the statute provides for appeal against a removal order but for decisions on aliens and permission to stay, there is no statutory appeal. The decision is an administrative decision and the Director is under no obligation to disclose any prejudicial material and to give reasons to the Applicant and to give her an opportunity to respond to it, before making her decision. For this proposition, reliance is placed on a number of authorities: Schmidt and Anr. v Secretary of State for Home Affairs [1969] 2 Ch 149, Ho Ming Sai & Ors v The Director of Immigration [1994] 1 HKLR 21, R v Home Secretary ex parte Mughal [1974] 1 QB 312. It is submitted that in any case the Applicant had been given the opportunity to be heard. The Applicant was aware of the policy that if the Director is not satisfied that the marriage is genuine, the Director may refuse her application and the decision was reached in accordance with this policy. The Applicant had made representations to the Director and the Secretary for Security who had considered but rejected them. The Director had acted fairly in such circumstances.

16. It is further argued that the burden lies with the Applicant to satisfy, on balance of probabilities, the Director that the marriage is genuine when gaining entry and subsequently for further stay. The burden does not shift to the Director. Reliance is placed on R v Immigration Appeal Tribunal ex parte Bhatia [1985] AR 50.

17. In Bhatia, the Applicant applied for entry clearance to the UK for marriage to a woman settled in the UK. This involves consideration and interpretation of rule 41 of the U.K. Statement of Changes in Immigration Rules which set out expressly the requirements which an applicant has to satisfy the clearance officer before entry clearance is granted. O'Conner LJ decided in this case that the rule presumed that the intended marriage was to obtain admission of the Applicant in the UK and therefore it was for the Applicant who sought to enter on the basis of marriage to show it was not so. The case does not decide whether this applies to a person who has been granted entry clearance and seeks further stay.

18. No such rules and presumption exist under our Immigration Ordinance. In any case, the facts in Bhatia are different from the case now under consideration. The case is no authority for the proposition that whenever there is an application for extension, the Applicant must satisfy the Director that the marriage is a genuine one even though prior to that application, the Director has already been so satisfied.

In R v Home Secretary, ex parte Khawaja [1984] 1 AC 74 at p.112, Lord Scarman had this to say on burden of proof in relation to executive decisions:

"Secondly, there is the problem of proof. The initial burden is upon the applicant. At what stage, if at all, is it transferred to the respondent? And, if it is transferred, what is the standard of proof he has to meet? It is clear from the passages cited from Lord Atkin's opinions : in Liversidge v. Anderson [1942] A.C.206 and in Eshugbayi Eleko v. Government of Nigeria [1931] A.C.662 that in cases where the exercise of executive discretion interferes with liberty or property rights he saw the burden of justifying the legality of the decision as being upon the executive. Once the applicant has shown a prima facie case, this is the law ..."

19. Later at p.114, he continued:

"Accordingly, it is enough to say that, where the burden lies on the executive to justify the exercise of a power of detention, the facts relied on as justification must be proved to the satisfaction of the court. A preponderance of probability suffices : but the degree of probability must be such that the court is satisfied."

20. I see no distinction between the exercise of a discretion which directly interferes with a person's liberty and property rights and one which results in the Applicant being required to leave Hong Kong and be forced to separate from her husband, that necessarily involves her personal liberty. The case of Du Guai-fang is decided on different facts and should have no application in the present case.

21. The Director refused the application because she had reasonable doubts that the marriage was a genuine one. The Director in effect required that there must be no reasonable doubt before she could be satisfied. She required proof of the marriage being genuine beyond reasonable doubt. Even if the burden is on the Applicant, the Director had adopted the wrong standard in coming to her conclusion.

22. The Director indicates that the one year stay and later a three-year stay were granted in order to monitor if the Applicant's marriage is genuine and if at the end of a further three-year period, there is nothing to show that the marriage is not genuine, as a matter of policy, the Applicant normally will be granted permanent stay.

23. There is no evidence that the primary purpose of the Applicant's marriage with Mr Cheung was to enable her to stay in Hong Kong and they had no intention to maintain, after their marriage ceremony, a permanent relationship as husband and wife. No evidence exists to show that during the four years between her marriage and change of resident status and the time the Director commenced investigation that they had not been living as husband and wife and between them there was no mutual love and support. The Director had monitored the Applicant's marriage over this period of four years and saw nothing of significance concerning the marriage. The Director indicated that an anonymous letter and some phone calls were received in 1993/94. These gave information that the Applicant's marriage was a sham. The Director took no action until the Applicant applied for further extension in 1996. The information in the calls and letter certainly had not given the Director any reason to doubt the genuineness of the Applicant's marriage because if it had, surely the Director would have commenced investigation immediately after the information was received. The conclusion must be that over that period of time, the Director was sure that the Applicant's relationship with Mr Cheung was nothing less than genuine husband and wife relationship.

24. It would be reasonable for the Applicant in the circumstances to expect that as wife and dependent of Mr Cheung, no administration would break up her union with Mr Cheung except for very good reasons. The Director had by conduct induced the Applicant to believe that she had satisfied the Director that her marriage was genuine for all residence purposes. She had a legitimate expectation that her marriage would be accepted as genuine in her application for further stay at the end of which she would become a permanent resident.

25. The alleged inconsistencies in the interviews are more apparent than real when their answers are taken in their proper context. They relate to matters of no real significance. They indicate no more than the couple's answers are not 100% the same. The answers relating to the family cat is an example. Mr Cheung said he called the cat "Dou Dou". The Applicant in answer to the question "Does the cat in the picture have a name?" replied: "No. Just call Miao Miao meaning cat". "Miao" is not a name but is "cat" in Cantonese. The Applicant was not calling it by a different name from a name given by Mr Cheung. In any case calling it by different names means no more than different personal preference. I fail to see how the Director could have relied on this to show inconsistency and conclude that the relationship was not one of husband and wife. The evidence that it was revealed in August 1996 the Applicant and Mr Cheung sometimes stayed at different addresses does not mean that their marriage was no longer genuine. By then they had married for four years and they worked at different places and hours. In Hong Kong, it is not surprising that a couple may be forced by their work to stay apart at different places. In any case, there is no evidence of how often and for how long they did not stay together. The investigation may have given rise to some suspicion but it does not reveal that the marriage was no longer subsisting at the time of investigation let alone that it was a sham or one of convenience, with no intention to create and maintain a permanent husband and wife relationship. The Applicant can do no more in the circumstances but to show on all the evidence, not limited to her evidence, that her marriage was genuine and she has done so. The Director must have very cogent reasons before concluding that it was otherwise because to say a legally valid marriage is a sham in the circumstances of the Applicant is a grave matter. My conclusion is that the evidence does not justify the Director's conclusion. Having regard to all the circumstances of the case, it is one which no sensible person applying his mind to the matter would have come to. It is irrational.

26. On the issue of opportunity to make representation, an immigration officer is not obliged to obey rules of procedure in administering the control of immigrants into the territory. However, he is of course bound to act honestly and fairly but so long as he does so, the court cannot and should not interfere (R v Home Secretary ex parte Mughal [1974] 1 QB 313). Schmidt v Secretary of State [1969] 2 CH 149 is the authority that an alien has no right even to make representation to the Home Secretary in relation to any extension of permission to stay in the UK. In the opinion of Lord Denning, an alien has no right to enter this country and has no right or no legitimate expectation of being allowed to stay and further stay can be refused without reasons given and without a hearing. Once his time has expired, he has to go.

27. The Director is therefore generally not obliged to give the Applicant an opportunity to respond to the adverse conclusion drawn by the Director from the investigation. But where the Applicant had been induced by the Director to expect that she would be granted further stay on account of her genuine marriage unless the contrary is shown, the Applicant should be given an opportunity to respond to any allegations that her marriage is a sham. Be that as it may, the Applicant had her application reconsidered by the Director and had her representations considered by both the Director and the Secretary for Security after the investigation. The Applicant cannot complain in this respect.

28. It remains for me to deal with the application to admit fresh affidavits of the Applicant at the hearing under Order 53. The purpose was for the Applicant to respond to the evidence on which the Director relied to show the marriage was not genuine. Since my conclusion is that the evidence relied on by the Director does not justify the Director's conclusion, this application has now become academic and I do not intend to say anything further on it.

29. In the circumstances, the Director's decision, being unreasonable in the Wednesbury sense and having been reached by adopting the wrong standard of proof, is one which the court should interfere. The application is allowed and the Applicant is granted an order of certiorari to quash the Director's decision and mandamus to direct the Director to reconsider the Applicant's application to stay and there be a stay of proceedings arising from the Director's decision to refuse to grant an extension of stay. Costs to the Applicant.