KARKI KAMAL v. DIRECTOR OF IMMIGRATION

HCAL 2585/2019

[2022] HKCFI 522

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2585 OF 2019

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J U D G M E N T

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A.  Introduction

1.  The applicant is a Nepalese national.  He first entered Hong Kong on the strength of a dependent visa in 2013 and the limit of stay granted to him was last extended to 7 November 2018.  On 6 November 2018, he submitted an application to further extend the limit of stay but, by then, he had already divorced his wife.

2.  The extension of stay application was rejected by the Director by letter dated 5 June 2019 (“1^st Decision”).  The applicant requested a reconsideration of the refusal by letter dated 10 July 2019.  By letter dated 16 August 2019, the Director maintained his original view (“2^nd Decision”).

3.  On 5 September 2019, the applicant filed a Form 86 to seek leave to apply for judicial review to challenge the 2^nd Decision.

4.  On 30 September 2021, I directed the Director to file and serve an ‘initial response’ within 35 days and granted leave to the applicant to file and serve a reply within 21 days thereafter.  The Director filed and serve an ‘initial response’ on 4 November 2021.  In short, the Director expresses the view that the intended challenge is unmeritorious, with no reasonably arguable prospect of success.  No reply has been filed by the applicant as of the date of this judgment.

5.  Having considered all the materials, I am of the view that this leave application can be properly determined on paper.

B.  Background

6.  The applicant married Ms Chhetri Muna (“Wife”), a Hong Kong permanent resident, on 26 January 2012 and, in the same year, applied for a dependant visa to enter and reside in Hong Kong as the Wife’s dependant.  The application was approved, and the applicant entered Hong Kong in November 2013.  His visa was last extended on 12 October 2015 until 7 November 2018.

7.  By letter dated 26 April 2016 (hence, after approval of the last extension), the Wife wrote to the Director informing him that she had divorced the applicant with effect from 12 November 2015 and requested to terminate her sponsorship of the applicant.

8.  In the applicant’s application for extension of stay dated 6 November 2018, while the applicant still filled in the name of the Wife on the form as his sponsor and ticked the box as seeking a visa “for residence as dependant”, he attached a letter signed by him in which he said that he was not able to procure his Wife’s consent to support his application due to “the family dispute” with the Wife.  He concluded the letter by saying that the “application is made on exceptional basis and compassionate grounds to remain in Hong Kong [on] my own merits”.

9.  The matters on which the applicant relied to support his application were explained in that letter and the subsequent correspondence with the Director.  In summary, the applicant stated: (1) he had been in gainful employment and paying salaries tax since his entry in 2013; (2) he mostly worked in construction or engineering related companies; (3) he meant to contribute his skills to Hong Kong society; (4) he did not have to live on public funds: (5) he had a clear criminal record; (6) he had no close ties in Nepal, and he had the unconditional support of his relatives and friends to stay in Hong Kong; and (7) he intended to take concrete steps to make Hong Kong as the only place of permanent residence.

10.  Later the Director also received a letter dated 29 January 2019 from the solicitors firm MCA Lai Solicitors LLP informing that the firm represented the applicant in an on-going personal injury case.  The firm hoped that the applicant’s stay could be extended until the personal injury case was resolved.

11.  In an internal minute dated 31 May 2019, the Director was not satisfied that the applicant was able to meet the eligibility criteria under the dependant policy because: (1) the absence of sponsorship by the named sponsor, and without any other sponsors, rendered the application outside the prevailing dependant visa policy; (2) the applicant is an adult of Nepalese origin, brought up in Nepal, with a Nepalese passport and the right to enter Nepal and stay there indefinitely; (3) the applicant could come to Hong Kong as a visitor to pursue the personal injury claim, subject to fulfilment of normal immigration requirements, and was able to give instructions to his legal representatives by various communication means; and (4) there are no extenuating grounds wanting an exceptional consideration for the departure from the existing dependant policy.

12.  The 1^st Decision was contained in a letter dated 5 June 2019, stating:

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 are previously approved to remain in the HKSAR as a dependant of Ms. CHHETRI, MUNA (“Ms CHHETRI”).  Since there is a substantial change in circumstances that you have lost the sponsorship from Ms. CHHETRI, 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.

13.  In his request for reconsideration of the 1^st Decision, he applicant was represented by another firm known as Lakshmi & Laxmi Litigation & Immigration Consultants (“L&L”).  By letter dated 10 July 2019, L&L submitted a letter from a Ms Thapa Magar Kabita, who appeared to be a Hong Kong permanent resident.  Ms Thapa claimed she and the applicant were “in the course of marriage registration in Hong Kong within one month’s time”.  She also provided information to prove that she was capable of supporting the applicant financially.

14.  On 24 July 2019, the Director received a letter from L&L informing the Director that the applicant’s personal injury claim had been settled and the applicant would receive HK$450,000 as compensation.  It was also said that the applicant intended to invest in the food and beverages industry by opening a restaurant and hiring local staff in order to contribute to Hong Kong.  On the same date, the Director also received a letter from the applicant confirming that he would like to proceed with the reconsideration of his application on his own merits, instead of as a dependant visa application.

15.  The 2^nd Decision was contained in letter dated 16 August 2019:

We regret to inform you that your request is refused as no new matters have been raised for the reconsideration.  The decision previously conveyed to you by our letter dated 5 June 2019 still stands.

16.  A further request for reconsideration was made on behalf of the applicant by letter from L&L dated 30 August 2019, but following the commencement of these proceedings on 6 September 2019, the applicant informed the Director on 9 September 2019 that he withdrew that request for further reconsideration.

17.  Though not directly relevant to the present proceedings, the applicant applied on 18 November 2020 for verification of eligibility for permanent identity card, when the applicant claimed that he was a permanent resident enjoying the right of abode in Hong Kong.  By letter of 15 December 2020, the Director informed the applicant that his claim to have HKPR status could not be established.  On 8 February 2021, the applicant submitted an application for registration of permanent identity card, which was refused on the same day.

18.  As it now stands, the applicant has been an over-stayer since the expiry of his visa on 7 November 2018.

C.  Proposed grounds of review

19.  In the Form 86, the applicant said the Decision “is totally unreasonable” and he would “request for a re-vise the said decision”.

20.  In the supporting affirmation, he further said that:

The Respondent is in breach of procedural fairness in the following parts:

(1)  The Respondent had unlawfully fettered his discretion by refusing the extension of stay application submitted by the Applicant without providing any reasonable or detailed reasoning.

(2)  The Respondent acted in a procedurally unfair manner in causing an unsubstantiated delay in reaching a decision dated 16^th August 2019 for their request for reconsideration;

(3)  The Respondent’s decisions to refuse Applicant’s application for extension of stay are in breach of the rights enjoyed by the Applicant under the Basic Law of Hong Kong.

D.  Is Threshold Crossed for Grant of Leave?

21.  As shown in the correspondence between the applicant and the Director, the applicant clearly understood that he could no longer extend his stay as the Wife’s dependant since he had lost her sponsorship.  The fact was that the applicant could no longer satisfy the relevant eligibility criterion.  His request for extension was instead pursued on his own merits, and he was asking for exceptional treatment based on compassionate consideration.

22.  Since he could not bring himself within any established immigration policy adopted by the Director, his request to stay in Hong Kong thus falls to be decided by the Director in exercise of his general discretion.

23.  The Court has long recognized that the Director enjoys a very wide discretion in immigration control in light of Hong Kong’s special social-economical and geographical features.  Persons with no right of abode in Hong Kong or right to land in Hong Kong cannot enter or stay in Hong Kong without the permission of the Director.  For considerations which the Director is not duty bound to take into account in the decision making process, it is up to the Director to decide what to take into account and the weight to ascribe to them.  Humanitarian or compassionate considerations are examples in this category: see BI v Director of Immigration [2016] HKLRD 520 at §47, endorsing §§61-66 of the judgment below.

24.  In the Form 86, the applicant did not explain why he thought the Decision was unreasonable.  But given the Director’s wide discretion in granting visas based on humanitarian and compassionate grounds, the applicant has to face a high threshold.  The Director was entitled not to take into account all the circumstances the applicant relied on in support of his application or to give them minimal weight.  It is not the Court’s function, in an application for judicial review, to re-examine the underlying application in light of any new evidence adduced, and the Court may only intervene if the decision being challenged can be faulted in the public law sense.

25.  The other grounds provided in the applicant’s affirmation could be summarized as follows: (1) the Director had failed to provide reason or detailed reasons; (2) there was an unreasonable delay in reaching the 2^nd Decision and that (3) the 2^nd Decision breached the applicant’s rights under the Basic Law.  The applicant put the first and second grounds under the procedural unfairness head.

26.  On the 1^st ground, the Director did provide reasons in the 1^st Decision and the 2^nd Decision, which are contained in the letters dated 5 June 2019 and 16 August 2019, see above.

27.  In the 5 June 2019 letter, the Director clearly explained that the applicant had a change of status since he has lost the Wife’s sponsorship and that all the other information provided by the applicant did not constitute strong extenuating factors to justify exceptional treatment.  In the circumstances, it is clear that there was no need to go through the matters canvassed by the applicant one by one to explain why they, in isolation or in combination, did not justify exceptional treatment.

28.  In the 16 August 2019 letter, the Director simply confirmed the 1^st Decision because the applicant had raised no new matters for reconsideration.  The additional information provided since the 1^st Decision was that the applicant had $450,000 more to spend, he intended to invest in a business and that he would marry a permanent resident soon.  The Director was entitled to consider that that information did not justify a reconsideration of his previous decision.  The circumstances also did not require the Director to go through those matters one by one to explain why that would not justify an exceptional treatment.

29.  The Director has provided sufficient reasons in the circumstances.  It is not reasonably arguable that the 1^st Decision or the 2^nd Decision was Wednesbury unreasonable.  The 1^st ground is not reasonably arguable.

30.  The 2^nd ground can be disposed of quickly.  The request for reconsideration was made on 10 July 2019, and the supporting documents were received by the Director on 24 July 2019. The 2^nd Decision was conveyed to the applicant three weeks or so later, by letter dated 16 August 2019.  It is not arguable that there was an inordinate delay in making the decision.

31.  The 3^rd ground can also be disposed of quickly.  The applicant has not identified any Basic Law rights which are said to be enjoyed by him and which have been breached, or which the Director allegedly failed to consider.  Further, as Mr Tong submitted, the applicant is an alien with no right of abode or right to land in Hong Kong, so could not have any legitimate expectation that his visa or stay would be renewed upon expiry.  Further, the immigration reservation provided in section 11 of the Hong Kong Bill of Rights Ordinance Cap 486 precludes the applicant from relying on Article 37 of the Basic Law and Articles 14 and 19 of the BOR: see Comilang v Director of Immigration (FACV 9/2018, 4 April 2019)  at §§38-41.

E.  Conclusion

32.  The applicant’s leave application is dismissed with no order as to costs.