LE THI TO UYEN v. THE DIRECTOR OF IMMIGRATION

HCAL141/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.141 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. The decision challenged is that of the Director of Immigration made on 29 October 1999 by which he refused the applicant an extension of stay to enable the applicant to await the decision of the Chief Executive in Council in respect of an objection lodged by her under section 53(7) of the Immigration Ordinance. The objection was against another decision of the Director of Immigration by which the Director refused the applicant a change in immigration status.

2. The applicant is aged 35 years and is a national of Vietnam. She came to Hong Kong on 15 January 1999, and asked to stay as a visitor and she was allowed to do so for 14 days. The very next day, she gave notice of marriage to a Hong Kong permanent resident and, upon application, was granted permission to stay in Hong Kong as a visitor until 26 February 1999. On 22 February, she married a Mr Wong who then acted as a sponsor for her application to be permitted to reside in Hong Kong as his dependent. That application by her was made on 23 February 1999. On 20 October, the Director rejected the application saying that he was not satisfied that the marriage was genuine, nor satisfied that Mr Wong was financially capable of supporting her. She was given an extension of stay to 29 October 1999. On 22 October, she lodged an objection with the Chief Secretary to the decision, under section 53 of the Immigration Ordinance. She applied for an extension of stay until the decision on that objection was reached. The Director refused that application for an extension. It is that refusal that is the subject to this application for leave.

3. The grounds of the application are drawn by solicitors who act for the applicant. They say that the decision is unreasonable because her presence will not cause hardship or a burden on Hong Kong; because the decision puts the marriage at risk; because the applicant will not be allowed to leave Vietnam once she returns as a result of some suggested quota on overseas travel; and because it will be difficult for the applicant to give urgent instructions to her solicitors. It is said that the balance of convenience test should have resulted in the application for an extension being granted.

4. The solicitors put to the Director of Immigration a number of factors in support of the application for an extension of stay including most of the factors now pleaded in aid of this application for leave - the factors, in other words, that I have just recited. They included the suggestion that there was a quota for overseas travel by reason of which the applicant had no right, once returned, to leave Vietnam. The Director replied saying that all the factors had been taken into consideration, and nonetheless the application for an extension of stay was rejected.

5. This application is in my view quite hopeless. It is destined to fail and, as drawn, demonstrates a failure to appreciate what judicial review is all about. Section 53(7) of the Immigration Ordinance provides as follows :

"For the removal of doubt it is hereby declared that the lodging of an objection does not give a person by whom or on whose behalf it is lodged the right of abode in Hong Kong or right to land or remain in Hong Kong pending the decision on the objection of the Chief Executive or the Chief Executive in Council."

The Director was perfectly entitled to take the decision he did. It takes the applicant nowhere, in the context of judicial review, merely to say that the decision is unreasonable. It is not asserted that the Director was not empowered by law to take the decision, nor is it asserted that he was acting irrationally when he took the decision, nor is it asserted that there has been any procedural impropriety or any legitimate expectation raised. To say that the decision places the marriage at risk does not say much for the relationship, and merely gives credence to the suspicion of the Director that it is not a genuine marriage. There was no evidence filed, save the say so of the applicant, about the visa restriction and the suggested quota on overseas travel. One might have expected some support for that from the Vietnamese Consulate. There was none from the applicant. On the contrary, the Director filed evidence from the Vietnamese Consulate in Hong Kong to the effect that there is no such restriction. The applicant was taken by surprise by the late filing of that evidence when this matter came before me a few weeks ago, so I gave the applicant, upon her counsel's application, an adjournment to consider it and to file evidence if so desired. Evidence has been filed. It turns out that there is now no suggestion by the applicant that the quota allegation was correct. Indeed she says it was an allegation made in error. What she meant was that her household registration in Vietnam had been cancelled because she had not returned there before the expiry of her exit visa, and she says that that fact now puts her at risk of not being allowed out again if she returns to Vietnam. But that is not a matter that was put before the Director. So his decision cannot be said to have been irrational in relation to a suggestion that was not put to him.

6. Mr Alan, nonetheless, for the applicant, continues to urge this new factor upon me today. But I am not the Director of Immigration, and I am only here to review the legality of the Director's decision in October last year. If the applicant maintains that the new information is correct, it is open to her to put it to the Director for his consideration, but it cannot be permitted to impugn the decision which he made in October 1999.

7. There is no basis upon which this application could possibly succeed, and leave to apply for judicial review is refused.