DIGENDRA BAHADUR SINJALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 62/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 62 OF 2004

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J U D G M E N T

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1.  This is an application for judicial review.  On 19 September 2003, the Director of Immigration (the 1^st Respondent) refused the Applicant’s application for an extension of stay in Hong Kong.  Pursuant to section 53 of the Immigration Ordinance (Cap. 115), the Applicant lodged an objection to the Chief Secretary for Administration on 3 October 2003.  In accordance with the provisions in section 53, the Chief Executive in Council (the 2^nd Respondent) considered but refused the Applicant’s objection on 27 April 2004, and the decision was communicated to the Applicant by letter on 6 May 2004.

2.  The Applicant seeks to challenge the above decisions by way of judicial review. 

3.  The Applicant is a Nepalese national born in Nepal in 1977.  On 19 June 1997, he married a Ms Pun in Nepal.  Ms Pun, also a Nepalese by race, was born in Hong Kong in 1975.  She returned to live in Nepal in 1979.  Four days after their marriage, Ms Pun returned to Hong Kong on 23 June 1997.  On 12 February 1998, Ms Pun’s Hong Kong permanent resident status was established.  Within two weeks, the Applicant entered Hong Kong and was granted permission to stay as a visitor.  On 26 February 1998, the Applicant submitted an application for residence in Hong Kong as Ms Pun’s dependant.  The application was granted on 8 July 1998.  A period of stay up to 8 July 1999 was granted.

4.  According to the evidence, the Applicant and Ms Pun started living separately in the first half of 1999.  On 8 June 1999, the Applicant applied for an extension of stay.  He did not report to the Immigration Department that he and his wife had been living separately since the first part of that year.  His application for an extension of stay was granted and he was permitted to stay in Hong Kong for another 3 years up to 8 July 2002.

5.  The Applicant and Ms Pun were divorced in Nepal in February 2000.  By letter dated 17 April 2000, Ms Pun informed the Director that because of a deterioration in her relationship with the Applicant, she did not wish to further sponsor the Applicant’s stay in Hong Kong as her dependant anymore.  There was no mention of the divorce.

6.  According to the evidence, as an extension of stay up to 8 July 2002 had already been granted to the Applicant, the Director considered that it would be more appropriate to review the Applicant’s dependency status on his next application for an extension of stay and to consider refusing that application should the situation by then remain the same.  At that time, the Director was totally unaware of the divorce between the two.

7.  On 3 July 2002, the Applicant applied for another extension of stay for “as long as possible”.  The Director duly informed the Applicant that his case had to be reviewed.  On 29 October 2002, the Applicant informed the Immigration Department for the first time that he had already divorced Ms Pun.  On 11 March 2003, the Applicant told the Immigration Department for the first time that he had lived separately from Ms Pun since March 1999.

8.  As mentioned above, the Director refused the application for an extension of stay on 19 September 2003, and the Chief Executive in Council rejected the Applicant’s objection to the Director’s decision on 27 April 2004, which was communicated to the Applicant by letter dated 6 May 2004.

9.  In this application for judicial review of the relevant decisions, the Applicant relies on a number of grounds, as set out in the Form 86A.  I will deal with them in turn.  Those grounds are:

“Challenge against the Director’s decision on my application and on the review
(7)	The Director’s decisions was Wednesbury unreasonable: -
	(a)	The Director has discretion to grant me a continuous stay despite the lack of a sponsor.
	(b)	The discretion to grant me a continuous stay in the absence of a sponsor should have been exercised in the circumstances of my case: -
		(i)	I have been residing in HK since July 1998.  I have a settled life in HK.
		(ii)	I am able to be self-supporting.
		(iii)	My application has been processed for 14 ½ months (03/07/02 to 19/09/03) before the decision.  It is too unreasonable for the Director to reject my application after such a substantial period of time.  My position has changed substantially due to the Director’s delay in making his decision.
		(iv)	I will have undue hardship if I am forced to return to Nepal to settle there after the 5-year-long migration from there (now 6-year-long).
	(c)	On the humanitarian or compassionate ground, I should be allowed to remain in HK without the need of a sponsor because of my long-settled life in HK, and because it is unlikely that my continuous presence in HK would pose harm or threat to the HK community.
(8)	On the review, the Director unjustly raised a new ground under para. 8(b) of the Director’s comments in support of his decision.  My application is not one for an employment visa but a renewal of residence visa or an extension of stay without a sponsor.  In considering my application as one for an employment visa, the Director had erred in applying a wrong set of criteria to my application.
(9)	On the review, I put forward further objections by letter of 19/01/04 particularized as follows: -
	(a)	The Director should not take such a long processing time to complete my application.  The Director should be held responsible for the delay in processing my application, and as a result of such conduct, the Director should be estopped from denying me a renewal of my residence visa (para. 6 of the Director’s comments).
	(b)	I have been employing full-time as a construction worker by another employer since November 2003, working 26 days with a daily wage of HK$350.  In the circumstances, I am capable of self-supporting (para. 7 of the Director’s comments).
	(c)	Given the merits of my case, my application should not have been treated as one under normal circumstances (para. 8(a) of the Director’s comments).
	(d)	I have already migrated here for 5½ years (now almost 6 years).  It is too unconcerned and cold-blooded for the Director to say that there would be no hardship for me resuming residence in my home country.  I have spent and passed the prime of my life (born in 1977) here in HK.  If I am forced to return to Nepal, I will have to start my life afresh and the opportunities available here in HK do not in reality exist in Nepal.  The hardship is beyond the comprehension of the persons writing and endorsing the Director’s response (para. 8(c) the Director’s comments).
	(e)	Barring the merits of my case, there are justifiable humanitarian or compassionate grounds to warrant the Director permitting me to remain in HK for residence.  The Director’s decision is certainly wrong (para. 9 of the Director’s comments).
	[see my letter of 19/01/04 and its exhibit (employment letter)]
(10)	On a proper consideration of all relevant factors [preceding paragraphs (7) to (9)], the Director should have approved of my application and abandoned his decision on the review.
(11)	The Director’s decision was primarily based on an immigration policy (para. 4 of the Director’s comments). The Director may exercise his discretion and is always free to depart from the stated immigration policy on justifiable grounds.  There exists at lease one ground warranting exceptional approval of my application, namely the considerably long period of residence in HK at the time of the review (since 08/07/98).  Moreover, having rightly considered all the relevant matters and information available, the Director should have been able to find justifiable humanitarian or compassionate grounds to warrant permitting me to remain in HK “continuously” for residence.
Challenge against the Chief Executive in Council’s decision to uphold the Director’s decision
(12)	I feel aggrieved by the confirmed decision as the Chief Executive in Council has confirmed an unreasonable and irrational decision.”

10.  The Director’s policy of immigration control in general and the dependency policy in particular are well-known to the court: see for instance, Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999, Stock J (10 December 1999); Bhupendra Pun v. The Director of Immigration, HCAL 1541/2001, Hartmann J (22 January 2002) and Ghulam Fizah v. Director of Immigration, HCAL 63/2003, Hartmann J (16 July 2004).  I will not rehearse the dependency policy here.  As counsel for the Director said in the last-mentioned case, while the dependency policy has the advantage of bringing about family reunion, it is not itself a policy of family reunion.  The policy allows a person who is a genuine dependant of their sponsor and who has the purpose of coming to Hong Kong to be a genuine dependant to remain here as that sponsor’s dependant (paragraph 17). 

11.  Further, as I have observed in Mumtaz Hussain v. The Chief Executive in Council, HCAL 163/2002 (18 November 2003), paragraph 8:

"

8.

Turning to the Director’s several decisions, there can be no dispute that the Director has been vested with a wide discretion regarding applications for a change of status.  Policies of immigration control are involved here, and the courts have without exception paid high regard to the immigration policies formulated by the Director and the implementation of these policies in the Director’s day-to-day decision-making process.  The court’s role, sitting in a judicial review application, is merely supervisory in nature.  It does not perform the role of a first instance fact-finding tribunal, nor does it exercise any appellate jurisdiction from the decisions of the Director.  It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct: Kemper Reinsurance Co. v. Minister of Finance [2002] 1 AC 1, 14H (per Lord Hoffmann)."

12.  Turning to the specific grounds relied on by the Applicant as reproduced above, I fail to see how the Director’s decision to refuse any further extension of stay after his becoming aware that the Applicant and his former sponsor (Ms Pun) had been divorced and in any event, after receiving the sponsor’s letter that she no longer wished to sponsor the Applicant’s stay in Hong Kong could be said to have been Wednesbury unreasonable, irrational or perverse.

13.  The fact that the Applicant has been residing in Hong Kong since July 1998, and was in Hong Kong for more than 5 years when the Director made his decision in September 2003 is, in my judgment, neither here nor there for the purpose of the present challenge.  That he has a settled life in Hong Kong again does not carry his case any further.  The fact that the Applicant is or was able to be self-supporting is again quite irrelevant here.  It must be remembered that the Applicant’s stay in Hong Kong was pursuant to the dependency policy, the essence of which is that an applicant would stay in Hong Kong as dependant of a sponsor.  The Applicant’s employment in Hong Kong only serves to highlight the fact that (at least by now) he is more an economic migrant seeking employment in Hong Kong than a dependant.

14.  Furthermore, it must not be forgotten that of his 5 years stay in Hong Kong (up to September 2003), more than 3½ years were spent after he had been divorced from his sponsor.  The Director was correct, in my view, in considering that the Applicant’s application for an extension of stay made on 8 June 1999 was done with suppression of relevant facts, i.e. that he had been living separately from his sponsor since the first half of the year.  But in any event, as I said, I do not see how his stay in Hong Kong for 5 years prior to the decision of the Director could by and of itself take his case anywhere after his de jure as well as de facto relationship with Ms Pun had ceased.

15.  As regards the time taken for processing the Applicant’s last application for an extension of stay, that has been explained by evidence filed on behalf of the Director in these proceedings.  I agree with the Director that the time required was largely due to delays on the part of the Applicant in answering enquiries and supplying information and documents, and the time taken in carrying out investigations (given the Applicant’s failure to disclose all material facts to the Director) and in verifying the divorce between the Applicant and his sponsor.  There were forged documents involved, and investigations comprising the making of inquiries with the Nepalese authorities relating to the divorce between the Applicant and Ms Pun and her subsequent re-marriage – Ms Pun sponsored her new husband’s stay in Hong Kong as her dependant by application dated 11 January 2001 – were carried out.

16.  The Applicant’s bare allegation that his position has changed substantially due to the Director’s delay in making his decision is wholly unsubstantiated.  Apart from remaining and working in Hong Kong during the period of time in question, I cannot find any change in position as such on the part of the Applicant.  As for his continued stay or employment in Hong Kong during the material period of time, I do not agree that they constituted any material or substantially material prejudice to the Applicant.

17.  I now turn to the Applicant’s argument that he will experience undue hardship if he is forced to return to Nepal to settle there after his long stay in Hong Kong.

18.  There is no merit in the argument.  According to the evidence and my own observation in Court, the Applicant does not speak the punti dialect and in fact can speak very little English only.  He was brought up in Nepal since birth up to 1998.  He speaks the Nepalese language and his parents are living there.  He has no close family members in Hong Kong.  He is only 27 and the suggestion that he has “passed the prime of [his] life” is simply absurd. 

19.  It is therefore hard to perceive how it would cause “undue hardship” to the Applicant if he should be required to return to his home country after a period of several years’ absence and to resettle in a place where he has spent most of his life thus far.  In any event, the Applicant’s own failure to notify the Director of his divorce from the sponsor was itself a contributing factor to his prolonged stay in Hong Kong.  For that he could not blame the Director.

20.  As regards the Applicant’s reliance on humanitarian or compassionate ground as set out in his Form 86A extracted above, it suffices to say that the Director has, according to the evidence, borne the same in mind, but has failed to identify any such ground in the present case.  The Director is and was aware that in every case when a new migrant has to give up his residence in Hong Kong and return to his native place, there are bound to be elements of disappointment, disruption and hardship in reintegrating into his former place of residence.  He has borne that in mind in the present case and he has considered whether there were exceptional humanitarian circumstances in the present case.  He found none.  I can see no ground for challenging his conclusion in this application for judicial review.

21.  The Applicant also argues in his Form 86A (paragraph (8)) that the Director unjustly raised a new ground in his written comments on the section 53 objection sent to the Chief Executive in Council, namely the fact that the Applicant was a casual worker and does not have special skills or knowledge that is not available in Hong Kong (paragraph 8(b)).  The Applicant argues that the Director has confused his application as one for an employment visa and has thus applied the wrong set of criteria to his application.

22.  As has been explained by the evidence filed, this is a total misunderstanding on the part of the Applicant.  The reason why the Director mentioned employment in his comments was that the Applicant did not satisfy the requirements under the policy on extension of stay in dependency cases, and he therefore turned to see if the Applicant would fall within some other policy, including the employment visa policy, which would enable him to remain in Hong Kong.  In his comments, the Director was merely informing the Chief Executive that the Applicant would not qualify under the employment visa policy either.

23.  Finally, as regards the Director’s discretion to depart from his own policy, all I need say here is that it is for the Director, not the court, to consider under what circumstances he should consider departing from his own policy.  The Director has a wide discretion to exercise, and he has a strict immigration policy to enforce.  There is no merit in the Applicant’s argument.

24.  In the circumstances, the challenge against the Director’s decision must be rejected.  By the same token, the challenge against the Chief Executive in Council’s decision refusing the section 53 objection must likewise be rejected, without prejudice to the 2^nd Respondent’s reservation of his position that such a decision is in any event not amenable to judicial review by reason of section 64(3) of the Interpretation and General Clauses Ordinance (Cap. 1): see Gurung Bhakta Bahadur v. Director of Immigration [2001] 3 HKLRD 225; Mumtaz Hussain, supra, at paragraph 34.

25.  In conclusion, I dismiss the application for judicial review. 

26.  As regards costs, both sides are agreed that costs should follow the event.  The Applicant must therefore pay the costs of the Respondents in these proceedings.  Having heard the parties on the quantum, I make a summary assessment of the Respondents’ costs in the global sum of $200,000.  I therefore order that the costs of these proceedings in the gross sum of $200,000 be paid by the Applicant to the Respondents.  Whether the Respondents will take steps to enforce payment is, of course, a matter entirely for them to decide.