LAM KHIET PHUNG v. DIRECTOR OF IMMIGRATION

cacv 197/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 197 of 2006

(on appeal from HCAL NO. 9 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Chu J given on 24 January 2006.  The matter before the judge was an application for judicial review of the decision of the Director of Immigration (“the Director”), notified to the applicant by letter dated 23 May 2003, refusing the applicant’s application for extension of permission to reside in Hong Kong.  The judge had dismissed the application.  At the conclusion of the hearing of this appeal judgment was reserved which we now give.

Background

2.  The applicant is ethnically Chinese although she was born in Vietnam in 1974.  In June 1998 she met a Mr Leung who was a permanent resident of Hong Kong.  In September 1998 Mr Leung visited the applicant in Vietnam.  Then in October of that year the applicant came to Hong Kong as a visitor.  When she arrived on 15 October, the applicant was permitted to remain in Hong Kong until 29 October 1998.  However, on 19 October 1998 the applicant married Mr Leung.  On the same day she made an application to change her status to become a resident and dependant of Mr Leung.  That application was granted on 17 December 1998 and the applicant was permitted to stay in Hong Kong as Mr Leung’s dependant for one year until 4 January 2000.  The day before that permission expired the applicant applied for an extension of stay as a resident in Hong Kong.  That application was sponsored by Mr Leung, who accompanied the applicant to the Immigration Department.  The applicant was given an extension of stay of three years up to 4 January 2003.

3.  As the judge recorded in paragraph 7 of her judgment, the applicant’s marriage to Mr Leung apparently broke down in early February 2000 and she moved away from Mr Leung after having learnt that he had a mistress in the Mainland.  Mr Leung filed a divorce petition in March 2001 and a decree absolute was made in August 2001.

4.  It was not until May 2002 that the Immigration Department became aware that the applicant had been divorced.  A letter was sent to the applicant in June of that year requesting her to attend an interview.  Because there was no response to the letter, a Senior Immigration Officer directed that there should be a review of the applicant’s case when she next applied for an extension of stay.  That application was made in December 2002.  On that occasion the applicant applied to change her sponsor to her aunt who had become a permanent resident of Hong Kong in 2001.  There were two interviews, one in January and one in May 2003, following which the Director informed the applicant by letter dated 23 May 2003 that her application for extension of stay was refused.  In June 2003 solicitors wrote to the Director on behalf of the applicant giving notice of the applicant’s application for legal aid and enquiring whether the Director had considered that the divorce had been initiated by Mr Leung and that the applicant did not have a criminal record and would not be a burden on society and that she did not have a house or close ties in Vietnam.

5.  The application for judicial review was filed in January 2004 and the judge summarised the complaints as follows:

(1)        The Director failed to act fairly in that he failed to inform the applicant of the unconditional stay policy and also to give full reasons for his decision.

(2)        The Director failed to apply the dependant policy flexibly.

(3)        The Director committed error of fact with regard to the applicant’s links in Vietnam.

6.  The so termed unconditional stay policy was one whereby dependant spouses and unmarried children were permitted to stay in Hong Kong if they had continuously resided here for seven years.  This amounted to a policy guidance given to immigration officers.  Prior to 1 July 2003 the guidance was that spouses and children whose sponsors were permanent residents or persons with unconditional permission to stay in Hong Kong, who satisfied various further criteria, would be granted unconditional permission to stay if they had resided in Hong Kong for a continuous period of three years.  Amongst the other criteria was a requirement that the relationship between the applicant and the sponsor should not be in doubt.  The judge held that this policy was a guidance but not a fetter to the discretion of the Director to permit or refuse extensions of stay under the under the statute.  It did not give rise to any right, entitlement or expectation.  The judge went on to hold that in any event the policy had no relevance to the applicant either in 1998 or in 2000 since the applicant had not then resided in Hong Kong for three years.

7.  The judge also held that the policy had no relevance to the applicant since she must have been aware of the importance of the subsistence of her marriage to Mr Leung to her immigration status.  Indeed, when she came to renew her application in December 2002 it was no longer as a dependant of Mr Leung, she had thus changed the basis upon which she sought permission to stay.  The judge also rejected the argument that had the applicant been aware of the unconditional stay policy she would have tried harder to maintain her marriage.  The judge said that that ignored common sense that it takes the effort and goodwill of both parties to make a relationship and a marriage last.  The judge also alluded to the fact that the movement records both for the applicant and Mr Leung showed that in the period leading up to February 2000 they had spent substantial periods outside Hong Kong separately on their own.  As the judge observed, it could be taken as an indication that the applicant and Mr Leung did not have a very close marital relationship and that the marriage had not been a successful one.  No evidence as to this had been forthcoming from the applicant despite the fact that she had had an opportunity to give evidence in respect of it.

8.  The point in relation to the failure to give full reasons centred on the suggestion that the immigration officer investigating the applicant’s case had considered whether the applicant’s marriage was genuine and had probably formed the view that there were, at least, doubts as to whether or not it had been a marriage of convenience.  In this respect the judge approached the matter on the basis that following the termination of the marriage to Mr Leung the point was, in effect, academic.  Nevertheless, the judge went on to consider the material that had been put before the court as to the likelihood of the marriage not being genuine and the absence of any contrary evidence from the applicant.  On this aspect the judge said that on the materials before her she was of the view that, contrary to the applicant’s contentions, as opposed to evidence, which as already noted was notable for its absence, it was open to the Director to conclude that there were doubts over the genuineness of the marriage.

9.  In relation to the failure to apply the policy flexibly the judge held that there was nothing in the point.  The applicant did not come within any recognized policy for granting permission to stay in Hong Kong and any resort to reliance on humanitarian grounds was doomed to failure.  The judge went on to state that there were no grounds for upsetting the Director’s conclusions as to the facts of the case.

This appeal

10.  On this appeal, Miss Yiu, who appeared on behalf of the applicant both in this court and below, abandoned any reliance upon there being any exceptional humanitarian ground.  The primary attack was that the Director had not informed the applicant of the doubts which it was argued that he had over the genuineness of the marriage.  The second ground taken on the appeal was that the Director should have informed the applicant of the unconditional stay policy when the applicant applied for permission to stay in 1998 when that was first granted and also, in January 2000, when the applicant applied for further permission to remain.  It was said that, on the basis that there was a duty to inform the applicant of that policy, the failure to so inform the applicant caused her prejudice.  It was also argued that the immigration officer receiving the applicant’s application in 2002 should have assisted the applicant to categorise her application.

11.  In relation to the first point, Miss Yiu placed great emphasis on the internal documents of the Immigration Department.  In particular she pointed out that in a document dated 14 May 2003, which contained the recommendation made by the immigration officer handling the case to the senior officer, the first main paragraph had been blanked out and it was only the second to fourth main paragraphs that were still visible in the copies provided to the court.  Those paragraphs read:

“b) She was no longer eligible for dependant status as she had divorce with her sponsor husband in 08/01;

c) She still had strong link in Vietnam, her home country, and no close relative in HK.  There would have no hardship found for her returning to her home country;

d) She intended to change the sponsorship to her aunt, however, her aunt was receiving CSSA and could not sustain her financially because she was in financial insolvency.”

12.  It was argued strongly that the missing main paragraph a), which was blanked out, must have related to the immigration officer’s doubts as to the genuineness of the applicant’s marriage.  Whether that is so is purely a matter of conjecture.  What is important is that the material part of the letter of 23 May 2003 gave the reason why the Director considered that the applicant was no longer eligible to remain in Hong Kong.  That was that the previously approved permission to stay in Hong Kong was as a dependant of her husband and that there had been a substantial change in the circumstances because the marriage had been dissolved.

13.  I can see no ground whatever for impugning the decision or the manner in which it was taken.  The fact that the immigration officer may or may not have had doubts about the genuineness of the applicant’s marriage did not form part of the Director’s decision which was clearly based on the fact that the applicant could no longer rely on being married to her sponsor.  Indeed, it would appear that by attempting to rely on sponsorship by her aunt the applicant must have been well aware of her difficulties in this regard.

14.  The applicant’s case on this appeal in relation to notification of the existence of the policy guidelines relating to those who had continuously resided in Hong Kong for a period of three years was, in my view, as already noted by the judge below, bound to fail for a number of reasons.  In the first place, I do not consider that there was any obligation on the Director to publish his policy guidelines.  As was pointed out by Mr Peh Yun Lu, the Acting Assistant Director of the Visa and Policies Branch of the Immigration Department, the policy guidelines are simply that.  They are not intended to take away the discretion of the Director and those taking decisions in his place.  Each case has to be considered on its own merits and its own special circumstances.  No doubt policy guidelines will change from time to time.

15.  It was said that the applicant should have been informed of the policy guidelines when she made her first and second applications to remain in Hong Kong.  But at that time the so termed Unconditional Stay Policy would not have applied to her.  The suggestion that the applicant should have been informed of this policy guideline begs the question of what other policy guidelines should also have been communicated to the applicant.  It also raises the curious question as to whether if the policy guidelines changed the applicant would have had to have been contacted to be so informed.  These, of course, are not insurmountable problems but they do at highlight the impracticability of the suggestion that there might have been any obligation on the Director or the immigration officer handling the applicant’s application.

16.  On this aspect reliance was placed on the decision in the case of Salih & Another v Secretary of State for Home Department [2003] EWHC 2273.  However, that case is so far removed from the present that I consider it is of no assistance.  That case involved what was termed the hard cases support scheme for asylum seekers in the United Kingdom who had been unsuccessful in their application for asylum.  Those persons would be in the extraordinary position of, in many cases, not being able to return or be deported to their country of origin, not being able to have the right of abode in the United Kingdom and not having any visible means of support or being able to take up employment.  In those circumstances the persons involved would be destitute and literally with no accommodation and no food.  It was in those circumstances that the support scheme had to be devised.  It was a matter of basic human rights.  Burnton J held that the support was in practice an entitlement.  He went on to hold as a consequence that the Home Secretary’s decision to withhold information about the hard cases support scheme was unlawful and should be reconsidered.  I can find no legal principle in the case which is applicable in the present case.

17.  The judge rightly rejected any suggestion that had the applicant been informed of the policy she might have so regulated her life that she would not have been divorced.  That, at best, is speculative in the extreme.

18.  In those circumstances I would dismiss this appeal with an order nisi of costs in favour of the respondent.

Hon Le Pichon JA:

19.  I agree.

Hon Barma J:

20.  I agree.