ENOGIERU, STANLEY v. IMMIGRATION DEPARTMENT (OVPS)

HCAL 2164/2019

[2019] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2164 OF 2019

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D E C I S I O N

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1.  The Applicant is a non-refoulement claimant, having arrived in Hong Kong in or about 2009. His non-refoulement claims on all applicable grounds were rejected by the Director of Immigration (“the Director”) on 24 June 2015 and 4 November 2016. His appeal or petition against the Director’s refusal of his non-refoulement claims to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office was rejected on 20 July 2018. On 3 September 2018, the Applicant made an application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (HCAL 1815/2018). That application has not yet been heard or determined.

2.  On 7 June 2014, the Applicant married a Hong Kong permanent resident.  They have two children, born in Hong Kong on 6 January 2016 and 2 February 2017 respectively.  The Applicant applied for a dependant visa.  The application was rejected by the Director on 11 December 2017 on the ground that he was unable to meet the eligibility criterion of “no known record to the detriment of the applicant”, and there were no strong compassionate or humanitarian reasons or other special extenuating grounds to depart from the Director’s existing dependant policy.  He subsequently applied to the Director for re-consideration of the decision to reject his dependant visa application by letters dated 19 December 2017 and 9 and 13 November 2018.  The Director, having re-considered his decision, informed the Applicant by letters dated 2 November 2018 and 23 July 2019 that the decision was maintained.

3.  The Applicant now applies for leave to apply for judicial review of the Director’s decisions of 11 December 2017, 2 November 2018 and 23 July 2019.  No ground in support of the application is stated in the Form 86 dated 29 July 2019.  In his first affidavit filed in support of the application, the Applicant stated that his wife and two children were Hong Kong citizens.  He stated that the Director rejected his application for a dependant visa due to “ineligibility criteria”. He further stated that the refusal meant that he could be facing deportation and possible separation from his wife and children at any moment, and that as there were no other grounds or means by which he could join his wife to raise his children in Hong Kong, he hoped that his dependant visa application would be approved.

4.  It is no part of the court’s functions, in an application for judicial review, to re-examine the Director’s decisions afresh.  The court can only intervene where the Director’s decisions are unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.  The question of whether a dependant visa should be granted to the Applicant is a matter falling within the broad discretionary powers of the Director in his exercise of immigration control, and not a matter for the court.  The Applicant has not disputed that he does not satisfy the Director’s eligibility criteria for dependant visa.  Accordingly, the Directors is entitled, in the exercise of his discretion, to refuse to grant a dependant visa to the Applicant.

5.  In his further affidavit dated 5 August 2019, the Applicant relied on a written statement made by his wife, in which marriage, family and/or children’s rights under BL 37, 39 and 41, HKBOR 19/ICCPR 23, ICESCR 10 and CRC 3, 9 and 10 were referred to and relied upon. It is now clear from the judgment of the Court of Final Appeal in Comilang v Director of Immigration [2019] HKCFA 10 that all such rights are subject to the Immigration Reservation to the ICCPR applicable in Hong Kong and Section 11 of the Hong Kong Bill of Rights Ordinance.

6.  The materials before the court do not show any reasonable ground for contending that the Director’s decisions are unlawful, Wednesbury unreasonable, or made in a procedurally unfair manner.

7.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.