LEKHANATH GURUNG v. DIRECTOR OF IMMIGRATION

HCAL 11/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 11 OF 2005

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J U D G M E N T

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1. The applicant is a young man from Nepal.  He was born on 21 November 1985.  He will be 20 in a couple of months.  The applicant’s father, who lives in Nepal, is a retired Ghurkha.  The applicant is the only child of the family.

2. In April 2004, when the applicant was 18 years of age, his cousin, a Hong Kong permanent resident, applied for him to come to Hong Kong as a visitor.  The application was granted and, on 27 July 2004, the applicant came to Hong Kong.  He was permitted to remain for 15 days as a visitor. 

3. After his arrival, the applicant sought to remain in Hong Kong, not as a visitor, but as a student.  He applied for what is called a student visa.  His application was rejected.  He asked the Director to reconsider but the Director refused.  In the result, an application for leave to apply for judicial review was filed in January of this year.

4. It is the basis of the application that, in refusing the application for a student visa, the Director took into account irrelevant matters, or failed to take into account relevant matters and that, in all the circumstances, came to an unreasonable decision; one that is wrong in law.

5. The applicant seeks to quash the decisions of the Director which were made on 31 August 2004, on 9 September 2004, and on 11 October 2004.

6. Some background needs to be given to place this matter in context.  The applicant has a reasonable scholastic record.  In June 2003, he received a school leaving certificate showing he had obtained a second class pass, indeed, a reasonably strong one, just short of a first class pass.  The school leaving certificate was issued by the Government of Nepal.  Thereafter, the applicant continued his studies at an institution called King’s College in Kathmandu.  At the end of the 2004 academic year, this college wrote a letter commending the applicant :

“This is to kindly recommend that Mr Lekh Nath Gurung is a student of ‘A Level Management’ in this college since July 2003.  He has passed the school leaving certificate at the Angel Heart School in 2003.  He was one of the bona fide students who was well liked by all the college staff and other students.  He was not only serious towards his studies but also active in organising extra-curricular activities in the college.

He has been considered a student having good discipline by the college members.  He also used to take part in games and has won various awards.

I came to know that he is willing to leave the college to join the abroad college [which I take to mean to join a college overseas] to continue his further studies.  I am sure that he will be the pride of any institutions abroad which he joins.”  [my emphasis]

7. The application for the applicant to come to Hong Kong as a visitor was made in April 2004 when, so it would appear, the applicant was completing his year at King’s College in Nepal.  The applicant, as I have said, came to Hong Kong on 27 July 2004, shortly after he completed his studies at King’s College.

8. After his arrival in Hong Kong, on 5 August 2004, the applicant enrolled himself in a one-year diploma course in management studies in an institution called Abraham College in Yuen Long.  He paid the necessary deposit.

9. The following day, on 6 August 2004, the applicant sought an extension of his visitor’s visa.  However, he did not say that he was seeking this extension because he had enrolled for a course of study in Hong Kong.  Instead he said the following : “My brother is sick and he could not visit to me fully around Hong Kong”.  This statement has caused him difficulties.

10. In the result, the applicant was granted an extension of stay until 18 August.  However, on 9 August – just three days later – he submitted a further application for an extension of stay.  In that second application he said : “I am going to join the college in Hong Kong on the support of my brother”.  This second application was an application for the student visa and, on the papers before me, it is evident that it was supported by a good deal of documentation.

11. My attention has been drawn to a letter from the principal of Abraham College, clearly intended for the Immigration authorities :

“This is to certify that Mr Lekh Nath Gurung has enrolled in our Diploma in Management Course with monthly school receipt, September school receipt, hoping to stay here to study our course starting in September 2004 before the visa expired day.  We understand that he has a strong intention to stay here for study and we hope the Immigration Department can be processed his application.  Our course needs one year to be finished starting from September 2004 to June 2005.  Thus we hope he can get one year visa for him with school recommendation.

Please provide him the information needed for applying for a student visa.”

12. That letter bears the chop mark, 9 August 2004 – the date on which the application for a student visa was made.  It may well show, in my view, that the applicant was preparing his application for a student visa prior to the application being lodged on 9 August, certainly, a day or two before.

13. The matter was considered by the Director’s officers and on 31 August 2004 a decision was made.  In so far as it is relevant, the letter reads :

“A foreign national may be permitted to stay in Hong Kong to take up a course of study in a recognised educational institution.  In assessing an application to take up studies in Hong Kong, we will take into consideration, among other things, whether he/she has a genuine need to pursue the proposed course here.

Having taken into consideration the available information and circumstances, I regret to inform you that your application is refused because we are not satisfied that you genuinely need to pursue the proposed course of study in the HKSAR.”

14. On 3 September 2004, Abraham College wrote another letter to the Director in support of the applicant’s request :

“This is to explain why the student, Mr Gurung, needs to study this course in Hong Kong in Abraham College.  First, his brother [his cousin] can provide financial support for his future study in Hong Kong and other countries.  Second, this course can help him to get further study in the US or European countries since we can get credit transfer and recognition by the University of Northern Virginia.  After studying the Diploma of Management course he can pursue his future plans for studying overseas.

Therefore, as the school day will commence very soon starting on 10 September 2004 we want the Applicant to have a chance for reconsideration of his application for a student visa.”

15. On 9 September 2004, the second decision under challenge was made by the Director.  It was as follows :

“In your letter of 4 September 2004, you requested the Director to reconsider your application for change of immigration status to take up study in the Hong Kong Special Administrative Region.  A thorough reconsideration of all relevant matters and a close review of all issues raised have been conducted.  However, we find no reason or justification for reversing our decision.  The decision previously conveyed to you on 31 August 2004 still stands.”

16. The applicant then approached a new college, one called Eton College (Mongkok) and was admitted to a course of study there.  In this regard, there is a letter dated 25 September 2004 addressed to the applicant which reads :

“We are pleased to inform you that your application for studying in Diploma in Business Studies (day full time section) has been approved.  As you may be aware that the course is going to commence on 4 October 2004.  A schedule will be provided to you once you will be able to sit in the classroom.”

The evidence shows that a deposit of $5,500 was paid to the college together with payment for a school uniform.

17. The applicant wrote to the Director on or about 27 September saying that he had enrolled in another school, had paid the fees and that the course would commence on 10 October 2004.  He then wrote :

“This course is very important for me as after studying this course, I will be able to study the courses in other countries.  This kind of direct path courses are not available in Nepal and therefore I do not have other choice but to study in Hong Kong as a foundation course and then depart for studies overseas.”

18. A day later, the applicant wrote to the Director to explain why he had moved from one college to another :

“I would like to inform you that the previous college where I got admission has already commenced classes and my visa was refused therefore I could not join the classes.  The new school will commence its classes from 2 October 2004.”

19. The Director considered the matter again and in a letter dated 11 October 2004 – this being the third decision challenged – the following was said :

“In your letter of 16 September 2004 you requested the Director to reconsider your application for change of immigration status to take up study in the Hong Kong Special Administrative Region.  A thorough reconsideration of all relevant matters and a close review of all issues raised has been conducted.  However, we find no reason or justification for reversing our decision.”

20. As to the reasoning of the Director, this can, I think, best be found in the affirmation of Mr Ho Siu-hung, that affirmation being made on 26 May 2005.  In paragraph 9, the following is said :

“If the Applicant had an intention to leave Nepal and to come to Hong Kong to study, he should have applied for a student visa before seeking entry to Hong Kong.  However, instead of applying for a student visa, he applied for a visit visa to Hong Kong on 22 April 2004 and declared in the application that he was only coming to Hong Kong for a social visit and that he did not intend to apply for an extension of stay or change of his status during his stay here.  Besides, the sponsor also stated in his letter that the Applicant would return to Nepal after visiting Hong Kong for three months.”

21. In that regard, a letter of 10 June 2004, apparently written by the cousin, is to the following effect :

“I would like to sponsor Mr Lekh Nath Gurung for visit to Hong Kong for the period of three months and shall take full responsibility of him during his stay in Hong Kong.  At present he is studying in college in Nepal.  His parents are both in Nepal and he is the only child and has no brothers or sisters.  In relation he is my cousin brother, his travel plans are to visit places around Hong Kong.”

22. Returning to the affirmation, another reason given for refusing the application is stated in the following terms :

“The Diploma in Management course is only a general management course and the Applicant has studied a course of similar nature, namely ‘A Level Management’ in Nepal before coming to Hong Kong.  The Applicant was unable to provide convincing reasons why it was necessary for him to pursue a similar course in Hong Kong.”

23. In paragraph 12 of the affirmation, the following is said :

“By two letters of 4 September 2004 to the Director, the Applicant requested consideration of his student application.  The Applicant stated that the sponsor was the only person who could provide financial support to him, therefore it was only possible for him to study in Hong Kong rather than in other countries, that the Diploma in Management course would enable him to further his studies in other countries such as the USA or Europe, that it was necessary to study the Diploma of Management course in Hong Kong to enhance his future career, and that he had already completed half of a Diploma in Management course in Nepal.”

24. In paragraph 13, the affirmation says the following :

“Having considered the information and documents provided by the Applicant in support of his request for reconsideration, the handling officer was still not satisfied that the Applicant had a genuine need to pursue the Diploma in Management course in Hong Kong and therefore maintains his decision to refuse the Applicant’s application.  In arriving at such conclusion, apart from the matters set out earlier, the Director took into account the following:

(a)    If it was true that the Applicant had completed half of the ‘A Level Management’ course in Nepal and abandoned that course in order to pursue further studies in Hong Kong and use it as a springboard for studies overseas, it would be strange that in his application on 22 April 2004 for a visitor’s visa the Applicant only applied for entry to Hong Kong as a visitor and declared that it was only a social visit and he would not apply for change of status.  If what the Applicant alleged was true, he should have the intention to study in Hong Kong by the time he applied for a visitor’s visa and would have applied for a student visa instead.

(b)   A course similar to the Diploma in Management course that the Applicant enrolled in Hong Kong was available in Nepal but the Applicant withdrew from such course and chose to come to Hong Kong.

(c)    The Applicant’s alleged intention and need to study in Hong Kong to pave way for further studies in the USA or other European countries was considered not logical as he could further study in the USA or other countries immediately after completing his study in Nepal without coming to Hong Kong first.  It was noted that the certificate purporting to be issued by King’s College stated that the college was affiliated to the University of Cambridge of the United Kingdom.  The Applicant’s explanation that he needed to study in Hong Kong in order to pave way for studies abroad and his motive of coming to Hong Kong was therefore put in doubt.”

25. At the outset, I do need to make a passing observation as to the endorsement on the letter of 18 June 2004 from King’s College, the letter which I cited earlier in this judgment.  At the bottom of the letter, built into the letter as part of the general printed paper, it says the following : “King’s College is affiliated to the University of Cambridge UK”.  This appears to have been taken by the Director as guaranteeing students of the college some special relationship with University of Cambridge.  But, with respect, I do not think that any reasonable reading of that endorsement can lead to any conclusion that the affiliation is of the kind that would necessarily lead to graduates of King’s College having some sort of entry, obviously not into the University of Cambridge itself, but even into any of the many other institutions of study in and around the city of Cambridge.  Many internationally recognised institutions assist schools and colleges in parts of the world less developed.  But it goes no further than that.

26. Counsel for the Director, Mr Man, has said that between 2002 and 2004, some 13,200 applications for student visas were made in Hong Kong.  He has been unable to break that down in any way and so it is difficult to know what to make of the figure.  But I think Mr Man does make a good point when he says that the Director cannot police each and every application that is granted to ensure that a genuine course of study is pursued full time and that no work, not even part-time work, is taken at the same time.  Mr Man has said that while students all over the world no doubt take part-time work to augment the cost of their studies, the Director manages a policy in terms of which students are not entitled to work.  Therefore, it is not a simple question of making a telephone call to a college to ask whether a student is attending full time.  It may well be that the student is attending full time but also working outside of normal study hours and thereby in breach of conditions of stay.

27. The letters of the Director containing his refusals are worded in a odd way.  Mr Man has accepted that they could have been more happily worded.  The first letter, to cite it again, says that the Director is not satisfied that the applicant genuinely needs to pursue the proposed course of study.  At first blush, that would make it look as if the Director has exercised his discretion to weigh up the applicant’s academic background and to decide for him whether a proposed course of study is necessary or not.  That, of course, would not be a legitimate exercise of discretion by the Director.  But, in my judgment, the phrasing employed by the Director must, on an ordinary reading, be taken to mean that the Director is not satisfied that the applicant has any genuine intention to take up a course of study in Hong Kong.  The Director is in blunt terms saying : “I am of the view that you wish to circumvent immigration restrictions in Hong Kong by ostensibly being a student when, in fact, you will take up work, either full time or part time”.

28. There is one other matter which needs to be put in context.  That is the sponsorship of the applicant by the cousin, sometimes referred to as a ‘brother’.  The cousin, as I have said, is a permanent resident of Hong Kong and appears to be a qualified mechanic.  He was earning a reasonable sum of money but suffered an injury to his lower back and has been on sick leave for a year or more.  In terms of the relevant compensation legislation, however, he receives a very high percentage of his salary.

29. The Director did not refuse the application on the basis that the sponsor would not be financially able to meet the costs of the applicant’s education in Hong Kong.  That issue, therefore, is not before me.  Mr Man, however, has referred to the matter on the basis that it was apparent that the sponsor was not affluent, that he had very little money left in the bank at the end of each month and that was one of the factors to be taken into account in considering whether the applicant himself intended genuinely to be a student or whether he was here to earn money, both for himself and his family – and possibly even for his cousin.

30. Before turning to the merits of the application, I must emphasise that this court is not a Court of Appeal.  It does not determine the merits of a decision only but only its lawfulness.

31. It must also be observed that this court has recognised on numerous occasions that the Director has a difficult job.  He must exercise a restrictive policy of immigration for good reasons.  It is his responsibility, and the responsibility of his officers, to decide upon the merits of matters.  The fact that this court may be sympathetic towards the predicament of an individual applicant is not the issue.  The issue is whether, in coming to a difficult decision, the Director has or has not acted lawfully.

32. It has been said by Mr Man that for the applicant’s challenge to be successful, it must be shown that the Director has acted irrationally, effectively, “to have taken leave of his senses”.  In my judgment, however, common law courts are moving away – sensibly – from the word ‘irrational’ and are preferring to use the word ‘unreasonable’.  Unreasonable, that is, in the sense that no reasonable decision-maker could have come to the decision challenged.  In that regard, if a decision is based on irrelevant material or fails to take into account relevant material, it becomes a unreasonable decision.  It does not mean that the decision-maker has taken leave of his senses.  It just means that, in law, that decision is vitiated as not being open to an informed decision-maker.  Equally, if a decision is plainly wrong, it is unreasonable.  If a decision is plainly wrong, it is a decision which could not be made by a reasonable decision-maker. 

33. In the present case, the question is : ‘Did the Director, acting through his officers, take into account irrelevant matters or fail to take into account relevant matters so that, at the end of the day, the decision is one not open to a reasonable decision-maker?’

34. A failure to take into account relevant matters may include a failure to see both sides of a story.  It may include a failure to open one’s eyes to the matters that are advocated on behalf of an applicant.  In my judgment, in the present case, the decisions made by the Director are vitiated in law by this failure.

35. Let me explain how I come to this conclusion.

36. The letter from King’s College to which I have referred did not say that the applicant was coming to Hong Kong to further his education, merely that he wished to go abroad to further his education.  Yes, it is true that the Director has a policy in terms of which, if an applicant wishes to obtain a student visa, he should do so from overseas.  But there is no evidence that this applicant knew of that.

37. In addition, there is no evidence that this applicant, when the application was made for him to come to Hong Kong, knew then that he would be taking up studies in Hong Kong.  It would be entirely sensible for the applicant to come to Hong Kong as a visitor in order to look around, in order, as he said in one of his letters, to read advertisements, consider prices and also the nature of courses in Hong Kong.  Only then would he be able to make his decision.  In this regard, I refer to the applicant’s letter of 18 August 2004 :

“I was called as a visitor to visit in Hong Kong.  I was studying in college in A Level.  As per the concern of visit I have gone through the many advertisements about colleges.  And we understand the study of college in Hong Kong is better than Nepal.  Because of science and technology, the way of studying method are different than Nepal.  So to further my career in future to study in Hong Kong is better than Nepal.”

38. In my judgment, the applicant was not under an obligation when he was coming on reconnaissance – and it is as equal as it is not that that was his essential purpose – for him to say something to the effect : “By the way, I will be looking at colleges and it’s possible I may wish to study here”.

39. I therefore am of the view that the very clear finding by the Director that this stated purpose of a visit to Hong Kong was somehow a falsehood is a very one-sided and ‘blinkered’ approach .

40. Of course, the Director’s view was not based on that only.  The Director legitimately asks : “Why apply for an extension of a few days on the basis that your cousin is not well when the day before you have already enrolled into a course of study in Hong Kong?”

41. But that issue must be seen in context.  First, it is not disputed that the applicant believed his stay as a visitor was expiring on 6 August, the very day on which he made an application for an extension.  Second, only three days later, the applicant put in a full application for a student visa.  Third, it is apparent, or at least it is as equal as it is not, that before 9 August when he put in his application for student visa, at least a day or so before then, he was preparing his documents for his student visa application.  The letter from Abraham College chop-marked by the Director 9 August 2004 bears testimony to this.

42. In my view, one of the obvious approaches to consideration of this matter was that the application made on 6 August was made in the belief that, if it was not made, the applicant would then be in breach of his conditions of stay.  It was therefore essentially a short ‘holding exercise’ so that the applicant would not find himself breaching his conditions of stay and would have an extra day or two within which to put in his full application.

43. It was, of course, open to the Director to come to the conclusion that the application for an extension was a deliberate falsehood.  But, before coming to that conclusion, the Director must put matters in context.  Why, if it was a deliberate falsehood, would the applicant then make an application for a student visa just a couple of days later?

44. As to the concern expressed that the applicant had no reason to study in Hong Kong, in my judgment, Mr Kwok was correct when he said that the applicant, coming from Nepal and having family here, had a natural connection with Hong Kong, one shared by many Nepalese.

45. It is not for me to go into factual issues but I can certainly understand a young man from Nepal believing that he could better himself in Hong Kong by obtaining a further qualification here, even if it is similar to one already obtained in Nepal.  In addition, of course, it cannot be ignored that the ability to stay with a family member here, the knowledge that Hong Kong has a Nepalese community, all would go to making it more viable for the applicant.

46. I am not suggesting that the Director was necessarily wrong in the decision he made.  I emphasise again that it is not my job to look to the merits.  My job is to look to the legality of process and, viewed as a whole, in my judgment, the Director looked simply to the one side of the picture, shutting his eyes to the other side.  For a proper decision to be made, both sides of the picture must be considered and weighed.  I do not believe this was done in the present case.  I think Mr Kwok makes a good point.  Relevant material, he says, has been ignored, and that, I think, must be correct.  A decision-maker may, for valid reason, exercise scepticism but he is not permitted to allow scepticism to blind him to the need to conduct an objective weighing exercise of all relevant matters.

47. In the circumstances, the application for judicial review is granted.  The decisions of the Director are quashed.  The matter will have to be reconsidered by the Director.

48. Mr Kwok has said that the applicant has already attempted to get into a course of study for the beginning of this academic year and now only has a few days left.  Mr Kwok asks me to order an early decision by the Director.

49. Mr Man, on behalf of the Director, says that the Director cannot be constrained to a matter of a few days.

50. I do not intend to constrain the Director to a matter of a few days.  But I think it speaks for itself that the decision can be made reasonably rapidly, especially if the applicant is able to put material before the Director within the next few days.

51. Costs are awarded to the applicant.