MUNATSI KINGSLEY v. DIRECTOR OF IMMIGRATION

HCAL 3334/2019

[2020] HKCFI 1897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3334 OF 2019

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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 decision of the Director of Immigration made on 8 August 2019 refusing to grant a dependant visa to the Applicant.

BASIC FACTS

(i) Background

2.  The Applicant is a national of Bostwana and Nigeria born in Gaborone on 11 April 1983.

3.  On 23 June 2008, the Applicant arrived in Hong Kong on the strength of a Bostwanan passport and was permitted to remain as a visitor in Hong Kong until 21 September 2008.  He did not depart upon the expiry of his limit of stay, and has been overstaying since 22 September 2008.  The Applicant was arrested by the Police on 12 April 2014 for the offence of breach of condition of stay (by overstaying) contrary to s 41 of the Immigration Ordinance, Cap 115.  He was subsequently convicted of that offence, and sentenced to 6 months’ imprisonment on 26 April 2014.  The Applicant was discharged from prison on 11 August 2014.

4.  A removal order was issued against the Applicant on 20 August 2014.

(ii)     The Applicant’s non-refoulement claim

5.  In the meantime, the Applicant raised a non-refoulement claim on 12 August 2014.

6.  The Director rejected the Applicant’s non-refoulement claim by a Notice of Decision dated 26 April 2016 and a Notice of Further Decision (dealing with a claimed risk under HKBOR 2) dated 27 April 2017.  The Applicant’s appeal/petition against the Director’s refusal of his non-refoulement claim was dismissed by the TCAB/NCPO on 7 July 2017.  The Applicant then lodged an application for leave to apply for judicial review of the TCAB/NCPO’s decision on 21 November 2017 under HCAL 925/2017.  The application for leave to apply for judicial review was dismissed by Campbell-Moffat J on 29 November 2018.  His application for leave to appeal out of time the decision of the learned judge was dismissed by the same judge on 2 April 2019, and by the Court of Appeal on 11 July 2019 (in CAMP 63/2019).  His application for leave to appeal the decision of the Court of Appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 8 August 2019.

(iii)    The Applicant’s application for dependant visa

7.  Ms L is a Hong Kong permanent resident born in Hong Kong on 3 October 1975.  The Applicant and Ms L married in Hong Kong on 24 February 2018.

8.  On 4 July 2018, the Immigration Department received an application from the Applicant for a dependant visa to join Ms L in Hong Kong as her dependant (“the Application”).

9.  The Director refused the Application on 8 August 2019 (“the Decision”).  The Immigration Department’s deliberation on the Application can be found in the department’s internal file minute (M2), the relevant parts of which state as follows:

“6. Assessment

AP’s identity

6.1 AP arrived in Hong Kong on strength of his Botswana passport. However, AP submitted a Nigeria passport with same personal particulars to support current dependant visa application. As explained on the letter dated 04-07-2018 submitted by legal representative, AP lost his Botswana passport and was unable to approach the Botswana consulate to obtain a renewed passport because he feared going back to Botswana. AP has thus obtained a passport from the Nigerian Government based on his ties with his late father who was a Nigerian. Letter from Consulate General of Nigeria in Hong Kong dated 24-07-2019 confirmed that AP is a Nigerian citizen, and that the Nigerian passport issued to him is genuine.

Marital Relationship

6.2 As declared by AP and SP at the information sheet, this is the 1^st marriage of AP and the 2^nd marriage of SP solemnized in Hong Kong on 24-02-2018. No child was born in this wedlock. According to SP and AP’s letter dated 10-06-2018, they first met on 10-04-2013 via a social network Okcupid in Hong Kong. They exchanged contacts and became close friends. On 13-10-2013, they first met in person. Within 5 months of dating, SP introduced AP to her friends and her family members. AP was welcomed by SP’s mom (SPM). At that time, SPM was sick and AP took her to the hospital and visited her there. SP and AP later started to live together. After 2 years of courtship, AP proposed to SP and they finally got married on 24-02-2018. To substantiate their marital relationship, SP and AP submitted their marriage certificate, proof of communication, wedding and leisure photos as listed in the above table. SP stated in her letter dated 11-10-2018 that she is supporting AP with monthly allowance of HK$2,000. In addition, record check revealed that SP made a number of visits to AP when he was in Castle Peak Bay Immigration Centre [INEC-0001464-14]. The marital relationship between AP and SP is believed to be genuine. It is satisfied that AP is genuine dependant of SP.

Financial Capability of SP

6.3 Finance wise, SP works as a Registered Nurse at the Hospital Authority with basic monthly salary of HK$ 47,240. SP maintained an account balance of HK$ 4,481.69 as at 07-10-2018. SP has her own property and she is living there with AP. SP’s credit report revealed that she had outstanding credit amounts of HK$ 822,216 in total as at 28-09-2018. Submitted bank statements revealed that she has to pay HK$ 13,831 per month for her housing mortgage. SP stated in her letter dated 11-10-2018 that she is paying off them on monthly basis. It is believed that SP is financially capable of supporting AP’s maintenance in Hong Kong and she could provide an accommodation for AP.

Home visits

6.4 Home visits was conducted on 04-03-2019 and 21-03-2019 respectively. Both SP and AP were not at home during the first home visit on 04-03-2019. On 21-03-2019, AP was available and interview was conducted. Phone interviews were conducted with SP in the 2 home visits.

AP’s records

6.5 According to the records, AP overstayed for over 5 years. He was convicted of the BOC(O/S) offence and was sentenced to 6 months’ imprisonment on 26-04-2014. In view that the period of overstaying and the immediate custodial sentence imposed on AP, it is considered that this record is to the detriment of AP and raise security or criminal concerns to the HKSAR.

7. Recommendation

7.1 In general, an application for admission of a dependant may be favourably considered if:

(i) there is reasonable proof of a genuine relationship between the applicant and the sponsor;

(ii) there is no known record to the detriment of the applicant; and

(iii) the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.

7.2 While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR, have no likelihood of becoming a burden on the HKSAR; etc.) as well as the eligibility criteria before he/she may be considered for the grant of a dependant visa.

7.3 Apart from the above consideration, other relevant factors and circumstances of an individual case would be examined and considered to see if there existed strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration.

7.4 Having carefully considered all the available information and relevant circumstances of the case, I recommend refusing the entry dependant application as it is not satisfied that:

(i) there is no known record to the detriment of AP;

(ii) AP meets the normal immigration requirement which included, among others, the applicant be of clear criminal record and raise no security or criminal concerns to the HKSAR; and

(iii) there exists strong compassionate, or humanitarian reasons or other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy.”

10.  In a letter dated 8 August 2019 to the Applicant’s solicitors, the Director stated as follows:

“ Under the prevailing immigration policy, a person who wishes to come to the HKSAR for residence to join his/her local spouse as his/her dependant has to meet certain criteria which include, among others, that there is no known record to the detriment of the applicant before he/she may be considered for the grant of a dependant visa.

 Having carefully considered all relevant circumstances and available information, we are not satisfied that the applicant is able to meet the aforesaid eligibility criteria and there are no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the existing policy.  The above application for entry for residence as dependant is therefore refused.”

11.  On 7 November 2019, the Applicant made the present application for leave to apply for judicial review of the Decision.

DISCUSSION

12.  In his Form 86, the Applicant did not state the relief sought, or any ground on which relief was sought.  In his affirmation filed in support of the application dated 7 November 2019, the Applicant stated the following:

“1 Petition against the refusal of dependant visa application.

2 Director of Immigration has not [considered] humanitarian and compassionate grounds.

3 My wife is ill - suffering from recurrent depressive disorder.”

The Applicant elaborated on those matters in a document marked “A” attached to his affirmation.

13.  In my view, the intended application for judicial review is not reasonably arguable and has no realistic prospect of success.

14.  Generally, an immigration decision of the Director can only be challenged by way of judicial review on the grounds of illegality, irrationality, or procedural unfairness.  None of the matters raised by the Applicant gives rise to any such ground.

15.  In particular, in so far as humanitarian and compassionate grounds (including the health conditions of the Applicant’s wife) are concerned, it is well-established that the Director is under no duty to consider them when making immigration decisions.  To the extent that the Director decides to take into account such factors, the weight to be put on them is also a matter for the Director (Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534 (CA), at §96; BI v Director of Immigration [2016] 2 HKLRD 520 (CA), at §105).  As a matter of fact, the Applicant’s personal and family circumstances were considered by the Director as set out in M2 (save that there was no consideration of the health conditions of the Applicant’s wife because the Applicant did not provide the relevant information until he filed his affirmation on 7 November 2019), but the Director was not satisfied that there existed strong compassionate, or humanitarian reasons or other special extenuating grounds which would justify a departure from his Dependant Visa Policy in the present case.  The Director’s view is one which it was open to him to take, and cannot be regarded as being Wednesbury unreasonable, having regard to the well-established stringent immigration policy in Hong Kong adopted by the Director.  In relation to the health conditions of the Applicant’s wife, it is well established that an applicant cannot, in an application for judicial review of a decision, rely on facts or matters not put before the decision-maker for his consideration at the time of the decision (Khan Karman v Director of Immigration, HCAL 48/2005, 31 July 2006, at §§20-22 per Hartmann J).  On the facts of this case, I do not see any legally valid basis for the Applicant to challenge the Director’s exercise of discretion to refuse the Application.

DISPOSITION

16.  The application for leave to apply for judicial review of the Decision is dismissed, with no order as to costs.