Re Sas Bahadur Gurung

HCAL 113/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 113 OF 2000

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D E C I S I O N

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1. This is the application for leave to apply for judicial review against the decision of the Secretary for Security of 18 February 2000. That decision upheld the Director of Immigration's refusal respectively on 18 November 1998 and 3 September 1999 of the applicant's application for a change of status to be a dependant of his daughter, Ms Gurung Jayanti.

2. A "home made" "Notice of Application for Leave to Apply for Judicial Review" (Form 86A) was filed by the applicant on 6 March 2000. Prior to 15 March 2001, the applicant was assisted by legal representatives assigned by the Director of Legal Aid. According to the skeleton submission dated 29 June 2000 filed by the applicant's (then) counsel, this application was made on 2 broad grounds: (1) the decisions under challenge were Wednesbury unreasonable and (2) procedural unfairness in that (a) the Director of Immigration has failed to provide reasons for his decisions and (b) the applicant has been denied the right to comment on the Director's response made to the Secretary for Security in relation to his application. The skeleton submission states that only the procedural unfairness ground (at (2) above) will be pursued.

3. The factual background can be summarised as follows:

(1) the applicant is a retired Gurkha soldier serving with the British Army between 1961 and 1976. He was stationed in Hong Kong for 8 years during that period. He retired in 1998 and, after staying in Nepal for about 2 months, came to Hong Kong in July 1998;

(2) on 11 August 1998, he applied for a dependant visa on his daughter's sponsorship but that was refused by the Director of Immigration on 18 November 1998. He asked for a reconsideration on 7 December 1998 but that was rejected on 3 September 1999;

(3) the applicant lodged an appeal to the Chief Secretary for Administration in a letter dated 5 September 1999;

(4) on 29 September 1999, the Chief Secretary for Administration informed the applicant that as no reply to her letter of 8 September 1999 was received, she would treat the applicant's objection as a petition to her. It was then dealt with by the Secretary for Security;

(5) on 31 January 2000, the Secretary for Security received a response from the Director of Immigration to the applicant's said objection. The applicant was not invited to comment on the response. By a letter dated 18 February 2000, the Secretary for Security upheld the Director's earlier decisions.

4. In relation to the alleged breach of natural justice, in my earlier decision in Bishnu Gurung & Anor. v. the Director of Immigration, HCAL 159/1999, I agreed with the decisions in:

(a) Krishna Rai v. Director of Immigration, AL No. 145/1999;

(b) Baldev Singh v. Director of Immigration, AL No. 149/1999;

and concluded that an alien visitor, like an illegal immigrant or an overstayer, has no right to be heard. A claim to the respective rights to be provided with materials and/or to comment on them has to find its root ultimately in the right to be heard. Since there is no right that an alien visitor must be heard regarding immigration matters, the applicant does not enjoy any right to be provided with the Director's materials or to comment on them.

5. Insofar as there is any allegation that there was a failure to give reasons, the allegation is bad because both the Director and the Secretary for Security have in fact given reasons for their decisions.

6. It is unclear whether the applicant is still relying on the alleged "Wednesbury unreasonableness" ground but I will assume in his favour that he is. In relation to this complaint, I agree with the reasoning put forward by the putative respondents based on earlier decisions including the following:

(1) R. v. Inspector of Leman Street Police Station & Secretary of State for Home Affairs, ex p. Venicoff [1920] KB 72, 79-80;

(2) R. v. Governor of Brixton Prison, ex p. Soblen [1963] 2 QB 243;

(3) Schmit v. Secretary of State for Home Affairs [1969] 2 Ch 149, 170-172;

(4) Ng Yuen Shiu v. Attorney General [1981] HKLR 352, 360;

(5) Madam Lee Bun and another v. Director of Immigration [1990] 2 HKLR 466;

(6) Ho Ming Sai and others v. Director of Immigration [1994] 1 HKLR 21, 25, 30;

(7) R. v. Director of Immigration, ex p. Chan Heung Mui [1993] HKPLR 533;

(8) Thapa Indra Bahadur v. Secretary for Security, HCAL 18/1999;

(9) Gam Bahadur Gurung v. Director of Immigration, HCAL 48/1999.

7. I agree that the effect of these decisions is that the current state of the law regarding an allegation of Wednesbury unreasonableness in relation to decisions to refuse a change of immigration status would necessitate bad faith on the Director's part or some matter akin thereto of similar gravity. There is no evidence in the present application which provides a foundation for concluding that there is an arguable point over this matter.

8. Insofar as the applicant should rely on humanitarian considerations, it is trite law that the Director of Immigration is not obliged to take into account matters relevant to this and, even if the Director had taken them into account, he is not obliged to decide in the applicant's favour by reason of these considerations.

9. In view of the above, the applicant is unable to surmount the relatively low hurdle in this leave application and it is therefore refused.