LAM KHIET PHUNG v. DIRECTOR OF IMMIGRATION

HCAL9/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 9 OF 2004

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J U D G M E N T

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1.  This is the applicant’s application for judicial review of the decision of the Director of Immigration (“the Director”) communicated by letter dated 23 May 2003, refusing her application for extension of stay to reside in Hong Kong.  The applicant seeks an order of certiorari to quash the decision and an order remitting the matter to the Director for reconsideration in accordance with the findings of this Court.

The facts

2.  The applicant was born in Vietnam in 1974.  She is ethnically Chinese.  She can read and write Chinese.

3.  According to the applicant, her father had died and her mother had re-married.  She and her brother were brought up by their maternal grandparents.  The grandfather died in 1998 and the grandmother has been living with the applicant’s brother.  The applicant has an aunt, Ms Ung, who was born in Vietnam but became a Hong Kong permanent resident in 2001.

4.  In June 1998, the applicant was introduced to a Mr Leung, a permanent resident of Hong Kong.  On 12 September 1998, Mr Leung visited the applicant in Vietnam.  On 15 October 1998, the applicant came to Hong Kong as a visitor and was permitted to remain in Hong Kong until 29 October 1998. 

5.  A few days later on 19 October 1998, the applicant married Mr Leung.  On the same day, the applicant made an application for change of status to become a resident as the dependant of Mr Leung.  On 17 December 1998, the Director granted the application. The applicant was permitted to stay in Hong Kong as Mr Leung’s dependent for one year until 4 January 2000.  In January 1999, the applicant was issued a Hong Kong Identity Card.

6.  On 3 January 2000, the applicant applied for an extension of her stay as a resident in Hong Kong.  The application was sponsored by Mr Leung, who accompanied the applicant to the Immigration Department and also attended an interview with the immigration officer.  On 27 January 2000, the applicant was given an extension of stay for three years up to 4 January 2003.

7.  According to the applicant, her relationship with Mr Leung turned sour in early 2000.  She moved away from Mr Leung in early February 2000, after he told her he had a mistress in the Mainland.  She moved to a rented premises in Kwun Tong and started employment to support herself.  The Immigration Department movement record shows the applicant flew out of Hong Kong on 2 February 2000 and only returned on 22 February 2000.  Hence on the applicant’s case, her separation with Mr Leung would have to be before 2 February 2000.  

8.  On 6 March 2001, Mr Leung filed a divorce petition.  On 16 August 2001, the Family Court granted a decree absolute dissolving the marriage.

9.  The applicant did not report her separation and divorce to the Immigration Department. On 9 May 2002, the Department was made aware of the applicant’s divorce upon receipt of a copy of the decree absolute.  By letter dated 10 June 2002, the applicant was requested to attend an interview with the Department.  The letter was sent to an address given by the applicant on 27 March 2002, when she applied for an endorsement on her travelling document.  The applicant did not respond to the letter nor attend the Department as requested.  On 9 July 2002, a Senior Immigration Officer directed a review of the applicant’s case when she next applied for extension of stay.

10.  On 20 December 2002, the applicant applied for extension of stay in Hong Kong.  She applied at the same time to change her sponsor to her aunt.  On 20 January and 14 May 2003, the applicant attended the Immigration Department for interviews.  She also submitted various documents for the Director’s consideration.

11.  By letter dated 23 May 2003, the Director informed the applicant her application for extension of stay was refused.  

12.  On 5 June 2003, the applicant’s solicitors wrote to the Director giving notice of the applicant’s application for legal aid.  The letter also enquired whether the Director had considered that the divorce was initiated by Mr Leung, that the applicant did not have a criminal record and would not be a burden on society, and that she did not have a place or close ties in Vietnam. 

13.  On 29 October 2003, the applicant was granted legal aid and counsel was assigned a month later.  On 21 January 2004, the applicant filed the present proceedings for judicial review.  Leave to apply for judicial review was granted by Hartmann J on 26 January 2004.  On 6 February 2004, the applicant filed the Notice of Motion.

Grounds for judicial review

14.  The grounds for the application had been amended and re-amended.  The Form 86A was first amended in December 2004.  At the substantive hearing, leave was granted, after hearing arguments, to further amend the grounds for judicial review.  In the end, the grounds relied upon by the applicant boil down to the followings:

(1)	The Director failed to act fairly in that he failed to inform the applicant of the unconditional stay policy and also to give full reasons for his decision.
(2)	The Director failed to apply the dependant policy flexibly.
(3)	The Director committed error of fact with regard to the applicant’s links in Vietnam.

The decision of the Director

15.  In the letter dated 23 May 2003 communicating the refusal of extension, the Director pointed out that the applicant was initially approved permission to stay in Hong Kong as a dependant of Mr Leung.  The letter further stated since there had been substantial change in circumstances in that her marriage with Mr Leung was dissolved, she was no longer eligible to remain as his dependant.

16.  In the affidavit of Ip Shiu Ming filed on behalf of the Director, it was explained that several matters had been considered when deciding to refuse the extension.  They are:

(1)	The Director had serious doubts about the genuineness of the applicant’s marital relationship with Mr Leung.
(2)	The marriage between the applicant and Mr Leung was dissolved.
(3)	There was no hardship for the applicant to return to Vietnam for she had a strong link there.
(4)	The applicant’s aunt, was not eligible as a sponsor under the Dependency Policy as she was not a close family member and was not financially capable of supporting the applicant.

17.  In Mr Ip’s affidavit and the 3^rd affidavit of Peh Yun Lu, there were elaborations on the basis for the Director’s doubts over the genuineness of the marriage.  It was noted that the applicant and Mr Leung married after being acquainted for three months and the applicant had little knowledge about Mr Leung and his parents when being interviewed.  The Director also did not find the applicant’s claim that she lived with Mr Leung and the parents-in-law in a public housing unit in San Fat Estate, Tuen Mun after the marriage until the separation in early 2000 to be credible.  The subsequent enquiries made by the Immigration Department reveal that the parents-in-law were divorced in 1989 and that the registered tenants of the Tuen Mun flat were Mr Leung, his mother and two siblings.  In the divorce petition, Mr Leung, however, gave another address in Po Tong Ha Village, Tuen Mun as their matrimonial home.  When interviewed by immigration officers in May 2003, the applicant was unable to give the names of Mr Leung’s parents.

18.  The movement record checks further show that the applicant left for Macau on her own on the date of her marriage and returned on the following day.  Up to February 2000, the applicant had departed from Hong Kong on some 14 occasions and spent some 50 days outside Hong Kong while Mr Leung had left Hong Kong for some 60 times.  However, they never travelled together. 

The Dependant Policy

19.  Before dealing with the grounds for this application, it is necessary to set out the immigration policies that are engaged in this case.

20.  In general, the Director, being charged with the statutory duty of immigration control, has a discretion to grant permission or refusal to remain in Hong Kong as dependants.  Under the Dependant Policy, closed family members, namely, dependant spouse and unmarried dependant child under 18 years old, who require both care and financial support may be permitted to remain in Hong Kong.  The categories of sponsor under the Policy are restricted to close family members.  Extended family members, such as siblings and aunt or uncles, will not be considered by the Director.  The sponsor must also be able to house and maintain the applicant out of his own resources.

21.  Dependency is an essential element of the policy.  Hence, if the primary or principal purpose of an applicant for a dependant visa is to work in Hong Kong rather than occupying a natural niche in the setting of his/her family, the application will not be approved.  Further, if a person has been admitted on the basis of a dependant of his sponsor, it is expected that the dependency will continue while the person is subject to immigration control.

22.  In the case of a person admitted as a dependant on account of his marriage with a Hong Kong resident or permanent resident, when the spouse does not act as a sponsor responsible for him, such as when the marriage fails, the Director’s policy is not to automatically renew his limit of stay and his residence in Hong Kong may terminate.  If the sponsorship can be replaced with a new arrangement, which is within the Director’s policy, then it may be possible for the limit of stay to be extended.

Unconditional Stay Policy

23.  For spouses and unmarried children admitted for residence as dependants, the Director also administers a discretionary policy under which these residents may be granted more generous limit of stay progressively.  The policy had been considered by Chung J in Sampaga Lacdang Raquel v. Director of Immigration (unreported) HCAL 4/2000, and was described as an interim policy to assist dependants as they approached the position of eligibility for the status of permanent residents.

24.  Under this policy, after one year upon the expiry of the limit of stay granted on initial entry for residence, the dependant spouse or child’s limit of stay may be extended to three years rather than a further one year.  This had been applied in the case of the applicant.  When her stay was extended in January 2000, she was given a three years extension up to January 2003.  Further, prior to 1 July 2003, at the end of this three years period, the Director may extend the limit of stay so that it is unconditional.  It is this second aspect of the Policy that is at the forefront of the applicant’s application. 

25.  Applications for unconditional stay are dealt with as a matter of individual and discretionary decisions.  For spouses and children, whose sponsors are permanent residents or persons with unconditional stay in Hong Kong, after three years of continuous ordinary residence  in Hong Kong, they may be granted unconditional stay in Hong Kong if they satisfy the following requirements:

(1)	there is no security or criminal objection to the applicant,
(2)	the relationship between the applicant and the sponsor is not in doubt,
(3)	there is no indication that the applicant may suffer from financial embarrassment,
(4)	the applicant’s business or moral conduct is not in doubt, nor is he known to associate with bad characters, and
(5)	the applicant was not, during the preceding three years, in breach of a condition of stay.

26.  Since 1 July 2003, the policy and practice applicable to spouses and unmarried dependant children has changed.  In a press release dated 30 June 2003, it was announced that: “Separately, the existing policy whereby spouses and unmarried dependant children of Hong Kong permanent resident will be able to apply for unconditional stay after they have resided in Hong Kong for 3 years will also be changed.  Effective from July 1, 2003, spouses and children of Hong Kong permanent residents will only become eligible for unconditional stay on completion of seven years of residence in Hong Kong.”

The court’s approach

27.  It is trite that the role of the court in judicial review proceedings is supervisory.  In Lau Kong Yung v. Director of Immigration (1999) 2HKCFAR 300, 339H, Litton PJ pointed out it was important for the court to bear in mind its limited role when dealing with judicial review cases. 

28.  The court’s approach to applications involving challenges to the Dependency Policy had been set out by Stock J (as he then was) in Aita Bahadur Limbu v. Director of Immigration (unreported) HCAL133/1999: 

“The applicant has no right in law to remain in Hong Kong as a resident and the decision is one within the discretion of the Director.  He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain.  The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one.  It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case.  To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits.  Where the determination of facts are left to the Director and the facts sweep across a range ‘from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely’ : see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518.”

29.  In Santosh Thewe v. Director of Immigration [2000] HKLRD 717 at 723, Stock J further points out that:

“Where a person seeks to obtain permission to reside in Hong Kong, the burden is on him to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the respondent.  It is not for the respondent to have to show that an applicant or an application falls outwith such a policy.”

Ground 1: Failure to act fairly

30.  The applicant’s first and major ground of complaint is that the Director failed to act fairly.  There are two limbs to this complaint. The first is that the Director failed to inform or advise the applicant of the Unconditional Stay Policy.  The second, which was added at the substantive hearing, is that the Director failed to give the full reasons for his decision to refuse extension of stay.

(1) Failure to inform the Unconditional Stay Policy

(1A) The arguments

31.  In respect of the Unconditional Stay Policy, the applicant’s complaint is that when she applied to change her immigration status in October 1998 and when she first applied for extension of stay in January 2000, she was not informed of the Unconditional Stay Policy as set out above.  The applicant’s case is that had she been advised of the Policy, she would know of her potential legal rights and obligations, and she could plan her life accordingly.

32.  Specifically, it is argued that had the applicant known in February 2000, the consequences of leaving and/or divorcing Mr Leung, namely, her chance to remain in Hong Kong would be jeopardized, she would have done more to salvage her marriage.

33.  The Director accepts that the applicant had not been informed of the Policy.  The Director, however, does not accept there is a duty to inform.  The Director argues that in considering immigration applications, the practice is to enquire into and establish the facts of the case and then to consider whether any appropriate head of policy applies so that the application may be granted.  In respect of application for extension of stay, the officer will only consider whether the stay is unconditional, after he has decided to grant the extension.

34.  The Director further says that the requirements for granting unconditional stay as set above do not confer any rights or expectations or obligations on applicants.  They are guidance to immigration officers as to the circumstances in which, if they were to grant an extension of stay, they might make it unconditional.  The officers’ discretion remains unfettered and they are free to make reasonable decisions following or not following the guidance.  The Director considers it would be misleading and cause confusions to advise the applicant of the Policy, which might or might not be applicable or relevant, and of the requirements or guidance, which are discretionary.  It is also said that, given the large volume of applications, the duty to inform is not feasible in terms of resources. 

35.  On the facts of the case, the Director points out that the applicant had separated with Mr Leung and ceased to be his dependant since January 2000.  Had this been made known to the Department, the three years extension would not have been granted in 2000.  Further, her dependency ceased and her marriage was dissolved before the three years stay expired. The Director therefore argues that any duty to inform of the Unconditional Stay Policy is irrelevant as the applicant never has any accrued eligibility or right under the Policy.         

(1B) The facts of the applicant’s case

36.  In my view, in considering the applicant’s challenges, it is important not to lose sight of the underlying and undisputed facts.  What is critical is that the applicant’s marriage with Mr Leung had dissolved in August 2001.  Not only that, admittedly they had lived apart latest by January 2000 and the applicant ceased to be dependent on Mr Leung since.  This being the case, the very basis for the applicant’s permission to remain in Hong Kong as Mr Leung’s dependant had gone by January 2000.  At that point in time, the applicant had not resided in Hong Kong for a continuous period of three years.  Further, the discretionary policy of granting unconditional stay did not begin to be applicable.

(1C) Relevance of the Unconditional Stay Policy

37.  Two consequences flow from this.  Firstly, the applicant never has any accrued eligibility or right under the Unconditional Stay Policy. When the applicant made her application in December 2002, she could only qualify for the discretionary consideration of unconditional stay if the Director decided to grant a further extension of stay.  This in turn involves the Director deciding whether to permit the change of sponsor to the applicant’s aunt.  Undisputedly, the applicant’s aunt falls outside the categories of accepted sponsor under the Dependency Policy.  She is not a close family member. She is also not financially able to support the applicant, being a recipient of comprehensive social security assistance allowances.  On the facts of the case, the applicant simply did not have a basis for obtaining an extension of stay.  That being the case, there was no room for considering, let alone granting unconditional stay. 

(1D)  Prejudice occasioned by failure to inform?

38.  The second consequence is that even if there is a duty to inform of the Policy, the failure has not occasioned any prejudice to the applicant. The applicant is compelled to argue that had she learnt of the Policy, she would have tried harder to salvage her relationship and marriage with Mr Leung.  This argument, however, faces two fundamental difficulties.

39.  Firstly, it is difficult to accept that the applicant did not appreciate the importance of the subsistence of the marriage to her immigration status and her permission to remain in Hong Kong.  Among other things, this is very much common sense, given that she applied for change of immigration status on the day of the registration of the marriage.  Clearly, she must have realized that Mr Leung’s sponsorship is the primary basis of her dependency status.  To say the least, she went with Mr Leung when she applied to remain as a dependant in 1998 and to extend her stay in January 2000.  On those occasions, Mr Leung was also interviewed.

40.  It is also evident from a number of events that the applicant was aware of the consequences of her separation and divorce from Mr Leung.  Significantly, the applicant did not respond to the letter dated 10 June 2002 calling for an interview with the Department.  It is not her evidence that she had not received or was not aware of it.  Indeed, the letter was sent to an address she provided to the Department only two months ago.  There is a singular silence in her affidavits on this point. 

41.  It is equally significant that the applicant never approached the Immigration Department to report the change in her marital status.  It was until the three years stay was about to expire that she approached the Department for an extension of stay coupled with a request to change the sponsor to her aunt.  Evidently, she knew the dissolution of the marriage and the cessation of her dependency on Mr Leung would impact on her permission to stay in Hong Kong.  Indeed, in an undated letter to the Department in connection with her 2002 extension application, the applicant said that she had asked the Family Court Registry about the need to inform the Immigration Department of the divorce, but was told the Registry would send a copy of the decree to the Department.   This again demonstrates she was conscious of the importance of the marital relationship and the consequence of the divorce to her immigration status.

42.  Secondly, the assertion that the applicant would have tried harder to salvage her marriage or that she could plan her life accordingly had she known of the Unconditional Stay Policy ignores a common sense point that it takes the effort and the will of both partners to make a relationship and a marriage last. On the applicant’s own case, she had conflicts with Mr Leung shortly after the marriage.  There were problems in their relationship about one year into the marriage, which was some time before she moved away in early 2000.  It is also the applicant’s case that this was not a marriage for convenience.  If this is the case, it must follow that there can no certainty that the marriage could be maintained or would not fail, even if the applicant were to try hard or to plan her life accordingly.

43.  Additionally, the movement records of the Immigration Department reveal that in the period leading to February 2000, the applicant and Mr Leung had spent not insubstantial periods outside Hong Kong separately and on their own.  This, apart from the applicant’s own evidence, is an indication that the applicant and Mr Leung did not have a very close marital relationship and the marriage had not been a successful one.  It is noted that the applicant had not responded or offered explanation to this aspect of the evidence.  There can be no assurance that, even if they were not divorced, Mr Leung would agree to continue to act as the applicant’s sponsor.     

44.  In the circumstances, even if the applicant had been informed of the Unconditional Stay Policy, it is speculative to suggest that it would make a difference to the applicant’s relationship or marriage with Mr Leung.  Therefore, even if there is a duty to inform, the materials before the court does not demonstrate that the failure has occasioned any real prejudice to the applicant.

(1E) Duty to inform of the Unconditional Stay Policy

45.  Thus, on the facts of the case, the issue of whether there is a duty to inform is immaterial.  In any event, I am not persuaded that the Director comes under a duty to inform the applicant of the Unconditional Stay Policy whether in 1998 or in 2000. 

46.  In the first place, I agree with the Director’s contentions that the practice of and the requirements for granting unconditional stay to dependant spouses and unmarried children after they had continuously resided in Hong Kong for three years by themselves do not give rise to any right, entitlement or expectation.  Whether they are called policy or guidance, they do not fetter the wide discretion of the Director to permit or refuse extension of stay under the statute.    

47.     Secondly, on the occasions in 1998 or 2000, the practice of granting unconditional stay after three years of residence had no relevance since the applicant had not yet resided in Hong Kong for three years continuously.  Miss Yiu does not dispute this, but she argues it is important for the applicant to know of her potential rights and obligations.  Quite apart from the fact that I do not accept the Policy confer any rights or obligations, I consider fairness does not require the Director to inform the applicant of immigration policy that may or may not arise for consideration in possible future applications, dependent on the future facts.  It is also too cumbersome a burden on the Director. It begs the question of where to draw the line in terms of the extent of the duty to inform, given that there are a multitude of immigration policies.

48.  Thirdly and at the forefront of Miss Yiu’s arguments is the English decision of Burnton J in Salih & Another v. Secretary of State for Home Department [2003] EWHC 2273 (Admin).  This decision concerns what is called “hard cases support” scheme or policy for unsuccessful asylum seekers.  The claimants sought to judicial review the decision of the Home Secretary not to inform asylum seekers who may be eligible for hard cases support of the availability of such support.  Burnton J held that the Secretary’s decision to withhold information about the hard cases support scheme was unlawful and should be reconsidered. 

49.  Miss Yiu submits that on this authority, the Director has a duty to promulgate extra-statutory policy relating to the exercise of statutory discretion, such as the Unconditional Stay Policy, because of its importance to the rights of the applicant and also in the interest of promoting certainty.

50.  The decision of Burnton J was predicated upon three considerations (at paras.50-51).  The first was that the hard cases support scheme was highly important to the individuals concerned.  It was observed that fundamental human rights might be concerned.  Secondly, it was considered that on the evidence available, eligibility was in practice treated as an entitlement.  Thirdly, the evidence before the court showed that restriction on information in practice excluded persons ignorant of it from the benefits of the policy.  As such, the decision or policy to withhold information was regarded as inconsistent with the policy to provide support in hard cases.  In my view, the case of Salih does not lay down a rule that there is a general duty to promulgate extra-statutory policy or immigration policy that may potentially affect an individual’s rights and obligations.

51.  The considerations in the present case are very different from those in Salih.  This case is not concerned with the lawfulness of a policy to refrain from informing a relevant policy.  The applicant’s complaint is that it was unfair that she was not made aware of the Unconditional Stay Policy.  Further, no fundamental human rights are engaged in this case.  The materials also do not show that non-promulgation of the Policy will have the effect of excluding people eligible to but ignorant of it from benefiting from the Policy.                  

(2) Failure to give full reasons

52.  In relation to the applicant’s complaint that the Director fails to give full reasons for his decision, the applicant’s case is that the Director ought to have made known to her his doubts over the genuineness of her marriage.  It is said that the non-disclosure had deprived her of the opportunity to make comments on and to explain the adverse case against her.  This, she says, had caused substantial prejudice to her because the evidence does not support a definite conclusion that the marriage was not genuine.

53.  Mr Marshall SC argues there were a number of reasons open to the Director in coming to his decision, but the triggering reason was the fact of divorce, which is incontrovertible.  It is also pointed out that the doubts over the marriage had become academic with the termination of the marriage and would have made no difference to the outcome of the extension application.  It is therefore not necessary, and is in fact pointless, to put the doubts to the applicant to extract her comments or explanations. 

54.  I agree.  In my view, there is no unfairness in not including the doubts over the genuineness of the marriage when informing the applicant of the decision to refuse extension.  Further, the materials before the court do not show what further materials the applicant would or could have put forward had she realized that the Director had doubts over the marital relationship.

55.  In respect of the submission that the failure had caused substantial prejudice to the applicant, a number of matters have been said by Miss Yiu.  It is firstly said that because of the short duration of the marriage, it is not surprising that the applicant did not know much about Mr Leung’s parents.  However, this is not a mere case of the applicant lacking knowledge about her parents-in-law.  She is as a matter of fact wrong about the marital status of her in-laws.  The fact that Mr Leung’s parents had divorced for some ten years is simply incompatible with her assertion that she had resided with both of them after the marriage.

56.  It is also said that the fact that the applicant did not know the Po Tong Ha Village address, which was given by Mr Leung in the divorce petition, is no reason for doubting the marriage.  However, this ignores the fact that Mr Leung gave this as the address of the matrimonial home.  It would be rather unusual for the applicant not to recognise her matrimonial home address, and to give another address for their cohabitation.

57.  Miss You also suggests that because the applicant had moved away from the matrimonial home, there is nothing unusual for her not to have photographs of her and Mr Leung.  But this is not the explanation offered by the applicant in her evidence.  Her case is that the marriage was a short one, hence there was not many photographs.

58.  It is further submitted that the movement records of the applicant and Mr Leung are neither here nor there.  I cannot agree.  It would appear from the many trips made by them in the short duration of the marriage that the applicant and Mr Leung seemed to lead separate lives.  This is particularly so when considering that the applicant left Hong Kong by herself on the very day of the marriage, after making the application to change her immigration status.  She also left Hong Kong for some 20 days on the same day she obtained her first extension in January 1999.  It is also important to note that the applicant had nothing to say about this in her affirmations filed in these proceedings.               

59.  As to the letters from Mr Leung and his mother and the District Board councillor, they were plainly of no weight and cannot support the genuineness of the marriage.  Mr Leung and his mother wrote the letters in 1998 in support of the application to remain as Mr Leung’s dependant.  The District Councillor could not have relevant personal knowledge of the marital relationship.  Indeed, some of the facts stated therein, including the date of separation, had proved to be incorrect.

60.  On the materials before the court, I am of the view that, contrary to the applicant’s contention, it is open to the Director to conclude there are doubts over the genuineness of the marital relationship.  Not only that, they also show the argument that had full reasons been given, the applicant would look for further evidence or offer explanations to be untenable.  It would appear that the applicant had already said all she could and wished to say in the evidence filed in these proceedings.  Yet, the doubts of the Director have not been shown to be unjustified.

61.  In short, I do not accept that the applicant has made out her compliant that the Director had failed in his duty to act fairly.  As to the argument that the standard of fairness applicable to a non-permanent resident is higher than an alien, relying on Lau Fong v. Director of Immigration FACV No.10 /2003, 26 March 2004, it is irrelevant since the applicant was no longer a non-permanent resident after her stay expired on 4 January 2003. 

Ground 2: Failure to apply the policy flexibly

62.  The applicant’s second challenge is that the Director should have informed the applicant that the Dependency Policy was inapplicable and that she could only apply on ground of exceptional humanitarian circumstances.

63.  This ground can be disposed of shortly.  Admittedly, the applicant did not come within the Dependency Policy.  Miss Yiu also accepts that the applicant did not come within any recognized policy for granting permission to stay in Hong Kong.  There are also no exceptional humanitarian considerations in the applicant’s case.  Even if, as counsel argues, she should have been advised to apply for considerations under humanitarian grounds, the failure to advise has caused her no prejudice.  I am of the view that this ground has no merits.

Ground 3: Wrong finding of fact

64.  The applicant’s third ground is that the Director erred in concluding that she had strong links in Vietnam.  It is said that since her mother had died, she kept no contact with anyone in Vietnam and has been living in Hong Kong since 1998, the conclusion is perverse and Wednesbury unreasonable.

65.  No doubt, one of the factors that the Director considered to be relevant is that there would be no hardship to refuse the extension.  The Director noted in this context that the applicant had strong links in Vietnam.  While the applicant in these proceedings claimed that her mother had died, she had stated in her application for change of immigration status that her mother had left home after her father’s death.  More importantly, it is not disputed that the applicant’s brother and grandmother are in Vietnam.  On the other hand, her only relative in Hong Kong is her aunt.  On the evidence, it cannot be said that the Director has no basis for coming to the view that there would be no hardship if the applicant’s stay in Hong Kong were not to be extended, or that his view is perverse.  In this regard, it is apt to bear in mind the limited supervisory role of the court.  This is not a case where the court can say that the decision maker’s view is wholly unsupported by evidence as in the cases cited by Miss Yiu: see for instance, R v. Leeds Magistrate’s Court [2004] 1 All ER 1333, 1335.

66.  Ground 3 is in substance no different from appealing to the Director’s considerations on humanitarian grounds.  The authorities are clear that the Director is not bound to consider humanitarian grounds and this is a matter entirely within his discretion: see Lau Kong Yung v Director of Immigration, supra, per Li CJ at 332.  This ground therefore fails.

Conclusion

67.  For the reasons above, the application for judicial review is dismissed.  Applying the normal rule of costs follow event, I make an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.  The applicant’s own costs be taxed under the Legal Aid Regulations.