MOHAMMAD MAQSOOD v. THE DIRECTOR OF IMMIGRATION

HCAL91/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO.91 OF 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of certain decisions of the Director of Immigration. The applicant has applied for permission to remain in Hong Kong as a dependant. His application was refused by the Director of Immigration on 21st June 1999. The applicant then lodged an appeal under section 53 of the Immigration Ordinance and asked for an extension of his stay until that appeal was determined.

2. In the normal course of events, if the application were directed at the original decision to refuse him permission to stay as a resident, I would not entertain the application until the section 53 appeal had been heard, but the application for leave as presented on paper is directed at the decisions of the Director not to grant the applicant extensions to remain in Hong Kong pending determination of the section 53 objection.

3. The applicant is a national of Pakistan. He came to Hong Kong on 15th July 1998 and was given permission to stay here as a visitor until 15th October 1998. He is aged 26. On 9th September 1998 he married a 47 year old lady. He then asked to be allowed to stay here as a dependant of that lady. The Director of Immigration conducted an interview with the two of them and came to the conclusion that this was a sham marriage. The application to stay as a dependant was therefore refused.

4. In so far as there is a challenge to the legality of the Director's refusal to allow the applicant to stay in Hong Kong pending determination of the section 53 appeal, there is no ground upon which this challenge could succeed on the facts of this case. There is nothing, in other words, which discloses that which might, upon further consideration, turn out to be an arguable case. Section 53(7) of the Ordinance states that the lodging of an objection does not give to the objector a right to stay in the meantime. In submissions to me today the applicant urges upon me family difficulties which he would face if he went back to Pakistan now, having married this lady in Hong Kong.

5. I see no basis for saying that the decision of the Director is so unreasonable as to warrant any interference by this court. The Director has taken the view that the applicant is merely trying whatever he can to prolong his stay in this jurisdiction when he clearly has no right to do so, and I cannot say that that conclusion is obviously wrong, or that there is any other ground for impeaching it in the context of a judicial review application.

6. The application as drafted does not challenge the decision to refuse the application for residence as a dependant. That may be an oversight and I am prepared for present purposes to treat that decision as covered by this application.

7. The applicant argues that the Director's conclusions about the veracity of the marriage is irrational and has not been reached after sufficient investigation. I have read the papers which had been filed, including an affirmation on behalf of the Director of Immigration. The section 53 appeal has yet to be decided by the Chief Executive in Council, so I would not wish to say any more at this stage than is absolutely necessary on this aspect of the case. It is however necessary to say that there is no basis upon which this court, in the context of an application for judicial review, could on the facts interfere with the decision which has already been made.

8. There is on the file a memorandum of a legal aid application in this case. It is dated 5th August 1999. The applicant tells me that it is not yet determined. Mr Lee, on behalf of the respondent has shown me a notice which suggests otherwise. Nonetheless in case the legal aid application is yet to be determined, I have in mind the provisions of section 15(4) of the Legal Aid Ordinance and I order that this application shall not be stayed by reason of that provision.

9. The application for leave to apply for judicial review is refused with no order as to costs.