Ss v. Director of Immigration

HCAL 97/2016

[2018] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 97 OF 2016

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Before: Hon Au J in Court

Date of Hearing: 2 November 2016

Date of Judgment: 19 October 2018

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J U D G M E N T

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A. INTRODUCTION

1.The applicant is an Indian and a permanent resident in Hong Kong.  Her father (“the Father”) and her younger sister (“the Sister”) respectively applied to the Director of Immigration (“the Director”) for a dependant visa to join the applicant in Hong Kong.  The applicant was the sponsor for both applications.

2.At the time of those applications, the Father was aged about 70 and the Sister about 40.  They were then the only immediate members of the applicant’s family in India, after the mother (“the Mother”) passed away in 2012.  The Sister has been diagnosed to be suffering from the psychiatric illness Border Line Intellectual Function or Schizophrenia and is unable to live independently.  She has all along been living together with and taken care of by the Mother and the Father in India.

3.On 26 February 2016, the Director approved the Father’s application for dependant visa, but refused the Sister’s.  The Director refused the Sister’s dependant visa application on the basis that (a) she did not fall within the recognised categories of dependants under the dependant policy (“the Dependant Policy”) adopted by the Director, and (b) in any event, there were no exceptional humanitarian or compassionate grounds in her case to justify a departure from the policy.

4.The applicant applied for leave to apply for judicial review to challenge the Director’s said decision made on 26 February 2016 (“the Director’s Decision”) to refuse the Sister’s dependant visa application.

5.Given that the parties have effectively filed all the relevant evidence, at the hearing, the court directed that it be treated as a rolled-up hearing of the leave application and the substantive hearing of the judicial review.

6.The applicant is represented by Mr Philip Dykes SC, and the Director by Ms Sara Tong.

B.   BACKGROUND

7.The background is largely not disputed.  The relevant facts are as follows.

B1.   The dependant policy as adopted by the Director

8.Under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within the confines of that broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong.  Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes.  These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors.[1] The Dependant Policy is one such specifically formulated policy.

9.An application for a dependant visa is made under the Dependant Policy as applied by the Director.  One of the main purposes of the Dependant Policy is to ensure that Hong Kong will continue to attract people with the right talent and skills to come to Hong Kong by giving them the choice of bringing in their dependants within specified categories to live with them in Hong Kong, whilst minimizing the associated immigration and security risks.  The scheme also aims to allow those who are already residing in Hong Kong and are able to provide care and financial support to their dependants to sponsor his or her dependants to come to settle in Hong Kong.[2]

10.In relation to an application for dependant visa, the Director’s position is that the Defendant Policy has been set out and is contained in the “Guidebook for Entry for Residence as Dependents in Hong Kong” (“the Guidebook”) published by the Immigration Department.  The Guidebook has set out, among others, the relevant “Eligibility Criteria” at paragraphs 3 and 5 as follows:

“‘II. Eligibility Criteria’

3 For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

a. his/her spouse;

b. his/her unmarried dependent child under the age of 18; and

c. his/her parent aged 60 or above.

4 …

5 An application for admission of a dependant may be favourably considered if:

a. there is reasonable proof of a genuine relationship between the applicant and the sponsor;

b. there is no known record to the detriment of the applicant; and

c. the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.”

11.Hence, under the Dependant Policy (as set out in paragraph 3 of the Guidebook), only a person who is the spouse, the unmarried child under the age of 18 or the parent above the age of the Hong Kong sponsor is eligible to apply for a defendant visa to come to Hong Kong.  Further, even if the applicant falls within these eligible categories, he or she must also satisfy the three eligibility requirements set out in paragraph 5 of the Guidebook before his application would be favourably considered.

12.However, even if the application does not meet these eligibility criteria, the Director may in the exercise of his residual discretion under the overall immigration policy to consider if there are exceptional humanitarian or compassionate circumstances to justify a departure from the Dependant Policy to grant a dependant visa to an applicant.  Since the exercise of discretion in favour of a person who has no right of abode or right to land in Hong Kong will result in departure from overall immigration control policy and the different guidelines or policies, there must be very strong justifications before the Director would do so[3].

B2.   The applicant, the Sister and the dependant visa applications

B2.1  The applicant

13.The applicant was born in 1972 in Mumbai.  The Sister is her only sibling.  The applicant married her husband on 1 February 1998.

14.The applicant and her husband moved to Hong Kong in December 1998 and have lived here since.  Since July 2006, the applicant and her husband have acquired permanent resident status and enjoyed right of abode in Hong Kong.

15.The applicant’s husband works as a hedge fund manager.  His average monthly income for the period from 1 April 2014 to 31 March 2015, including bonuses, was about HK$4 million.  The applicant is a homemaker.

16.The applicant and her husband live in a rented house on the Peak.  They have a son born in 2004.  He attends school in Hong Kong.

B2.2  The Sister

17.The Sister was born in 1974 in Mumbai.  She graduated from university in 1994 with a Bachelor’s degree in Commerce.

18.In 1995, she started exhibiting symptoms of psychiatric illness, experiencing depressive moods, speaking incoherently, talking to herself and seeing things that were not there.  She could not perform simple tasks and she began to neglect her personal hygiene.

19.Dr Barve, a psychiatrist in Mumbai who has been seeing the Sister since 1995, has diagnosed the Sister to have Border Line Intellectual Functioning, a cognitive impairment closely related to mental retardation.  Dr Barve’s medical report dated 9 October 2014 (“Dr Barve’s Report”) contains the following observations:

(1) She has limited capacity to handle complex social situations and cannot cope with demanding tasks.

(2) She is dependant on her family for her entire emotional and physical wellbeing.

20.The Sister was prescribed medication, and with some improvement in her condition, was able to qualify as an Early Child Care Teacher and took up a job.

21.In 2001, the Sister suffered a relapse and was prescribed medication again.  Her condition has been stable since then with the help of drugs but she still requires constant care and supervision to ensure she does not stop taking her medication and continues to maintain her personal hygiene.

22.Further, Dr William Fan, a Hong Kong psychiatrist, also prepared a medical report on 9 November 2015 (“Dr Fan’s Report”) on the Sister.  He said that she suffered from schizophrenia and was not capable of independent living.  Furthermore, there was a risk of relapse and her exhibiting other negative symptoms if she was not provided with regular supervision in her day to day living.  He believed that she would benefit medically if she could live in Hong Kong where the applicant’s family could provide daily care and support to her.

B2.3  The applicant’s family in Mumbai

23.The applicant’s family consists only of the Father, the Mother and the Sister.  The Father was born in 1944 in Mumbai and the Mother in 1952.

24.In January 2009, the Mother was diagnosed with bowel cancer.  Between January and December 2009, she received medical treatment in Hong Kong.  She died in Mumbai on 15 July 2012.  As a result, the Father was left to care for the Sister on his own in Mumbai.

25.Since the Mother’s death, the applicant has frequently travelled between Hong Kong and Mumbai to care for the Father and Sister.  They have also come to Hong Kong on numerous occasions to stay with the applicant and seek medical treatment for the Sister.

26.At the time of the dependant visa application, the Father was about 70 years old and starting to find it difficult to care for both himself and the Sister without help from others.

27.Both the Father and the Sister are entirely financially dependant on the applicant.

B2.4  The dependent visa applications and the Director’s Decision

28.On 5 December 2014, the Hong Kong Visa Centre, on behalf of the Sister and the Father, submitted applications for them to take residence in Hong Kong as the applicant’s dependants (respectively “the Sister’s Dependant Visa Application” and “the Father’s Dependant Visa Application”).

29.By a letter dated 9 December 2014, the Director indicated to the Sister that she did not fall within the categories of dependants recognised under the Dependant Policy.  The Director however asked the Sister to provide further information if she so wished “in support of this outside-policy application for our exceptional consideration” by the end of December 2014.

30.Thereafter, further correspondences ensued between the Director and the Hong Kong Visa Centre from January to September 2015, whereby further information relating to the Father’s and the Sister’s Dependant Visa Applications was submitted to the Director.

31.By a letter dated 23 October 2015, the Director again stated that the Sister fell outside the Dependant Policy as she did not come within its recognised categories of dependants.  The Director indicated that the Sister’s Dependant Visa Application would be treated as “cancelled” without further notice if she did not provide further information in support of exceptional consideration by 11 November 2015.

32.In a letter dated 11 November 2015, the applicant’s solicitors, Daly & Associates (“D&A”), wrote to the Director on her behalf requesting a reconsideration of the Sister’s Dependant Visa Application and a consideration of the Father’s Dependant Visa Application.  The letter explained that the Father was growing old and could not carry on looking after his daughter (i.e., the Sister).  While the father had three brothers in Mumbai, they were all elderly and could not take care of him and the Sister.  This meant that eventually the Sister would have to be institutionalised and standards of care would then drop dramatically, involving a real risk of abuse and sexual molestation of the Sister.  In support of this, D&A quoted certain observations from a report published by the Human Rights Watch.

33.Also in support of the Sister’s Dependant Visa Application, she had provided the Dr Barve’s Report and Dr Fan’s Report concerning her conditions and inability to live independently.

34.By a letter dated 26 February 2016, the Director approved the Father’s Dependant Visa Application.

35.However, by another letter of the same date, the Director refused the Sister’s Dependant Visa Application (i.e., the Director’s Decision”).  The relevant part of the Director’s letter regarding the Sister’s Dependant Visa Application states:

“After careful consideration of all the available information and circumstances of the case, I regret to inform you that the application is refused because the application is outside the prevailing policy and it is not satisfied that there are sufficient justifications for our departure from the prevailing policy.”

36.As mentioned above, in summary, the Director refused the Sister’s Dependant Visa Application as (a) she did not come within the Dependant Policy since she did not fall within the recognised categories of dependants to apply for a dependant visa, and (b) in any event, there were no exceptional humanitarian or compassionate circumstances in her case to justify the Director to depart from the policy and grant her a dependant visa.

C.   THIS JUDICIAL REVIEW

37.Mr Dykes for the applicant has raised three grounds of judicial review.  I will consider them in turn.

C1.   Ground 1 – the Director misapplied the Dependant Policy[4]

38.Under this ground, Mr Dykes submits that the Director in regarding the Sister as not a person eligible to apply for dependant visa had misapplied the Dependant Policy.  This is so, says Mr Dykes, as the said policy should be the one as contained in the LegCo Brief dated 30 June 2003[5] (“the LegCo Brief”) but not as prescribed by the Guidebook.  In this respect, in the LegCo Brief, it has been provided relevantly as follows:

“INTRODUCTION

At the meeting of the Executive Council held on 24 June 2003, the Council ADVISED and the Chief Executive ORDERED that

(a) the existing assessment criteria under our immigration policy on the entry of dependants to take up residence in Hong Kong and the special treatment of certain categories of applicants on humanitarian or compassionate grounds should, with minor modifications, continue to apply (paragraph 2 to 5 below);

(b) the age limit for unmarried dependent children be lowered from under the age of 21 to under the age of 18 (paragraph 6 below).

(c) the age requirement for dependent parents be raised from aged 50 or above to aged 60 or above (paragraph 7 below);

(d) the current arrangement that, where a Hong Kong resident has more than one spouse residing outside Hong Kong, only one of them should be eligible to take up residence in Hong Kong as the sponsor’s dependant be continued (paragraph 8 below);

(e) for persons admitted into Hong Kong to take up employment or study in full-time undergraduate or post-graduate programmes in local degree-awarding institutions, or as capital investment entrants, their spouses and unmarried dependent children, but not their parents, be eligible to apply for entry to take up residence in Hong Kong as their dependants (paragraph 9 to 11 below);

(f) whilst the policy excluding Mainland residents from entering Hong Kong as dependants should be continued, such an exclusion should not apply where the sponsors have been admitted into Hong Kong to take up employment or full-time tertiary study under schemes or arrangements catering for Mainland residents. Furthermore, the present prohibition precluding such sponsors to bring in their overseas dependants, where any, should be discontinued (paragraphs 12 to 13 below);

(g) the policy excluding the dependants of foreign domestic helpers and workers admitted under any Importation of Labour Scheme from residing in Hong Kong as dependants be continued (paragraph 14 below);

(h) there continues to be a need to exclude nationals or residents of specific countries and regions on security or immigration control grounds, with the need to be assessed by our security and immigration experts from time to time (paragraph 15 to 16 below);

(i) dependants of persons granted entry into Hong Kong to take up employment or study or as capital investment entrants should be required to apply for permission from the Director of Immigration to take up employment in Hong Kong. Such applications should be considered on the basis of criteria similar to those under the General Employment Policy (paragraphs 17 to 20 below); and

(j) the changes proposed above should be implemented in July 2003 and that, as transitional arrangements, such changes should only apply to applicants whose applications reach the Director of Immigration on or after the implementation date. (paragraph 21 below)

JUSTIFICATIONS

(A) Assessment Criteria and Special Treatment on Humanitarian or Compassionate Grounds

2. Under our current dependant policy, Hong Kong residents, unless specific exclusions apply, may sponsor applications made by their spouses, unmarried dependent children and parents, for permission to reside in Hong Kong as their dependants. Such applications will be considered provided that the following criteria are met –

(a) the bona fides of the applicant and the sponsor, and the genuineness of their relationship, are not in doubt;

(b) the sponsor is not subject to any limit of stay (i.e. Hong Kong permanent residents, residents with right to land and residents with unconditional stay) or has been permitted to remain to take up employments in his or her own right;

(c) there is no security objection to the application, including that the applicant has no known record serious crime; and

(d) the applicant will not become a burden on Hong Kong, and that the sponsor is able to support the applicant’s living at a standard well above subsistence level and provide the applicant with suitable accommodation in Hong Kong.

3. Our dependant policy also takes into account humanitarian and compassionate considerations and accords special treatment to certain categories of people so that they may also apply for entry as dependants. They include –

(a) widows of any age or widowers over the age of 50 wishing to join their nearest or only surviving relatives who are resident in Hong Kong; and

(b) where there are strong humanitarian or compassionate grounds, to be considered on a case by case basis –

(i) unmarried adult children; and

(ii) other relatives.

4. Our review finds that, on the whole, the assessment criteria and special treatment of certain categories of applicants on humanitarian and compassionate grounds continue to strike the right balance between facilitating family unity and upholding immigration control. Minor modifications are, however, necessary to enable persons admitted to study in full-time undergraduate or post-graduate programmes offered by local degree-awarding institutions or as capital investment entrants to act as sponsors for their dependants. The former will help to promote Hong Kong as a regional centre of tertiary education, whilst the latter is a straightforward adjustment to tie in with the new Capital Investment Entrant Scheme to be introduced shortly.

5. Insofar as the special treatment on humanitarian and compassionate grounds is concerned, the review finds the imposition of an age requirement on widowers but not on widows a differential treatment that is difficult to justify. We consider that both widows and widowers should be subjected to the same requirement of age 60 or above before they are eligible for special treatment as dependants.” (emphasis added)

39.Mr Dykes submits that as the LegCo Brief is the document that contains or reflects the Dependant Policy, its paragraph 3(b) shows that “other relatives” are also persons recognised to be eligible to apply for a dependant visa under the policy.  The Director in saying that she did not fall within the recognised categories of dependants under the policy therefore had misapplied the Dependant Policy.

40.With respect, for two reasons, I do not think this ground is arguable.

41.First, it has now been confirmed by the Court of Appeal in Comilang v Director of Immigration [2018] 2 HKLRD 534 (CA) at paragraphs 146 - 151 per Poon JA that the LegCo Brief is not the source of the Dependant Policy, and that the full terms of the Dependant Policy are to be found in the Guidebook but not in the LegCo Brief.

42.On this basis alone, this ground is not reasonably arguable and I would not grant leave to apply for judicial review on this basis.

43.Second, and in any event, even looking at paragraph 3(b) of the LegCo Brief itself, it is clear that what it says is, under the Dependant Policy, if there are “strong humanitarian or compassionate grounds”, special treatment may be given to categories of people (such as other relatives) other than the recognised categories of spouse, children and parents (see paragraph 2 of the LegCo Brief) for considering granting a dependant visa.  This is precisely what the Director had done in the present case.  The Director did not reject the Sister’s Dependant Visa Application solely on the basis that she was not an eligible person under the Dependant Policy to apply.  The Director further considered and rejected the application on the basis that there were no exceptional humanitarian or compassionate grounds to justify granting her a dependant visa.  There is therefore no question of misapplying the policy even if one were to have reference to the LegCo Brief.

44.On this basis, this ground is in my view also not reasonably arguable.  I will refuse leave to apply for judicial review based on this.

C2.   Grounds 2 and 3[6]

45.These two grounds are, as submitted by Mr Dykes, related and can be conveniently considered together.  They are targeted at the Director’s reasons in concluding that there were no exceptional humanitarian or compassionate grounds to justify granting the Sister a dependant visa.

46.The Director’s reasons are set out in paragraph 5.3 of the file minute M1 dated 19 February 2016.  They are as follows:

“5.3 Having considered all available information and circumstances, refusal of the dependant visa application of AP2 [i.e., the Sister] is recommended as it is considered that there existed no strong compassionate or humanitarian reasons or other special extenuating grounds warranting an exceptional consideration for departure from the existing dependant policy with the following reasons:-

(a) AP2 graduated as Bachelor of Commerce from the University of Miimbai in India. After AP2’s illness onset in her early adulthood, she had been treated by Dr. Rajendra Barve in India for the past 19 years. It is no doubt that she has taken India as her habitual residence since birth. According to the psychological report of AP2 from Dr. Rajendra Barve in India, she has been diagnosed with Borderline Intellectual Functioning and has limited capacity to handle complex social situations. Comparing to India, Hong Kong is a more complex social environment with completely different culture and customs. It may cause difficulty for AP2 to stay here rather than a place where she has habitually resided in for over 40 years;

(b) Dr. Rajendra Barve has been treating AP2 since 1995, which is a comparatively much longer period than her treatment period in Hong Kong. AP2 has been receiving proper and regular medical care in India for over 19 years, whereas she only first consulted psychiatrist in Hong Kong on 06-01-2015, i.e. the date right after her application submission on 05-12-2014, since her first visit to Hong Kong in 2007. Furthermore, Dr. William Fan in Hong Kong prescribed the same set of medicine as Dr. Rajendra Barve in India. It is no doubt that AP2 will continue to receive constant and proper medical treatment by Dr. Rajendra Barve in India;

(c) SP has settled in Hong Kong with her husband since 1998 and acquired ROA in 2006, while AP2 and SP’s mother deceased in 2012, but AP2 just applied for dependant visa in 2014 for family reunion in Hong Kong as specified in letter from representative dated 13-02-2015, in which AP2 has been well maintained on the medication according to the letter from Dr. William Fan dated 06-01-2015;

(d) According to the letters from the doctors in India and Hong Kong, AP2 would benefit medically if she can stay with her family members. It should be mentioned that the fact that SP [i.e., the applicant] is in Hong Kong, together with her husband and son, does not mean that they are all ‘trapped’ here. Families of this kind are free to choose whether to continue living in Hong Kong or return to India. This is a family decision for SP;

(e) Regarding that AP2 should not be placed into institutional care and the poor condition in mental institutions in India quoted by SP’s legal representative in letter dated 11-11-2015, it comes to our light that firstly, it was AP2 who self admitted that she was unable to enter into rehabilitation program and unfamiliar places on her own; secondly, as stated above, Hong Kong is a place different from the home country of AP2, which is an unfamiliar place to her; thirdly, as SP’s family is wealthy, it is believed that SP could be able to afford, a good care center for AP2 or hire a carer to look after AP2 in India; and

(f) AP2 may also visit Hong Kong as a visitor and proper visitor extension if she wishes.” (emphasis added)

47.In gist, under these two grounds, leading counsel submits that these reasons are tainted with Wednesbury unreasonableness and also procedural unfairness.

48.First, Mr Dykes submits that the reasons set out at paragraph 5.3 of the M1 were Wednesbury unreasonable or irrational since the Director simply failed to take into account the pertinent fact that the Father would not be able to take care of the Sister anymore in India, especially when the Father was going to come to Hong Kong and stay with the applicant given that the Director was to approve his dependant visa application.  Effectively, the Sister would be left alone in India.  The failure to take into account this highly relevant factor must render the Director’s reasons irrational in finding against exceptional humanitarian or compassionate circumstances.

49.Second, Mr Dykes says for the same reasons, before coming to those conclusions, it was procedurally unfair for the Director not to have first asked the Sister for her responses on what would be the impact on these matters considered by the Director when the Father was to come to stay in Hong Kong.  This is particularly so when the Director sought to use Dr Barve’s and Dr Fan’s medical opinions stated in their reports against the Sister’s application.

50.On the other hand, opposing these grounds, Ms Tong for the Director has rightly reminded this court that it should and would not lightly interfere the Director’s exercise of discretion on exceptional humanitarian or compassionate considerations in a Wednesbury challenge.

51.As observed by the Court of Appeal at paragraph 92(8) in BI, if an applicant seeking to enter and stay in Hong Kong do not fall within any of the relevant immigration policy, it is up to the Director to decide whether to further consider exercising his discretion to grant the application on humanitarian or compassionate grounds on an individual basis. Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion if there are exceptional circumstances to justify it.  In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and if he decides not to so consider, that decision is generally not subject to judicial review.[7]  However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere his decision under these grounds on Wednesbury unreasonableness basis as the court must have regard to his wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy.  See BI, paragraphs 102 ‑ 111.

52.Further, when it is alleged that a decision-maker failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:

(1) matters which are clearly identified in the relevant legislation (expressly or implied) as considerations to which regard must be had (ie, mandatory considerations);

(2) matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

(3) matters to which the decision maker may have regard if, in his judgment and discretion, he thinks it is right to do so (ie, discretionary considerations).

In relation to discretion considerations, it is generally a matter for the decision-maker to decide relevance, and the court would not lightly interfere subject to a Wednesbury unreasonableness challenge[8].

53.Ms Tong then says the M1 shows clearly that the Director had considered comprehensively and carefully all the matters in the application before deciding that there were no exceptional humanitarian or compassionate circumstances in the present case to justify a departure from the policy and granting the Sister a dependant visa.

54.Further, Ms Tong emphasizes that the Director had no duty to ask the Sister to provide more information concerning those reasons, as the burden is on the Sister to provide all the information and materials which she sought to rely on which might be relevant to her application.  This include matters and information which objectively she could reasonably contemplate that might be taken into account by the Director.[9] It is not for the Director to “teach” the Sister what evidence and material she would have to provide to convince the Director to exercise the discretion in her favour.[10]

55.In the premises, Ms Tong submits there are therefore no merits in the contentions that the Director’s Decision is irrational or that the decision is tainted with procedural unfairness.

56.Bearing firmly in mind the above careful and restrictive approach of the court to a Wednesbury challenge of the Director’s exercise of discretion in relation to humanitarian or compassionate considerations, I am however satisfied that in the present case, the Director’s Decision in this regard can be said to be Wednesbury unreasonable in failing to take into account relevant considerations.  I will explain why.

57.From the reasons set out at paragraph 5.3 of M1, it shows that the Director was of the view that there were no exceptional humanitarian or compassionate circumstances concerning the Sister because as a whole (a) the Sister was likely to find it more difficult to settle in Hong Kong than in India, (b) the Sister was going to receive the same if not better medical care in India, and (c) in any event, it was open and up to the applicant and her family to decide whether to return to India to look after the Sister if they believed the Sister was unable to take care of herself there.

58.The Director came to these views because:

(1) It was Dr Barve’s view that the Sister, given her psychiatric conditions, had limited capacity to handle complex social situations.  As Hong Kong was a more complex social environment than India with completely different culture and customs, it would indeed be more difficult for the Sister to come and stay in Hong Kong than for her to remain in India (a place where she was more familiar with and accustomed to).[11]  Hence, there were no strong compassionate or humanitarian grounds to have the Sister coming to stay in Hong Kong with the applicant.

(2) Given that Dr Barve had been looking after the Sister for some 19 years, while Dr Fan in Hong Kong had only recently seen her, it was clear that the Sister would indeed receive the same if not better medical care in India than in Hong Kong.[12] Again, this cannot be regarded as a strong compassionate or humanitarian reason to permit the Sister to come to stay in Hong Kong.

(3) The fact that the Sister could settle well in India was buttressed by the fact that she and the applicant did not regard it as necessary to make a dependant visa application for her to join the applicant in Hong Kong for family reunion for two years after the Mother passed away in 2012.[13]

(4) The assertions that the Sister could not be left in India because of the risk of ill treatment and harassment if she was to be placed into institutional care was not supported since:

(a) the Sister herself had admitted to Dr Fan (as stated in Dr Fan’s Report) that she was unable to enter into rehabilitation programme and unfamiliar places on her own;

(b) Hong Kong would be an even more difficult and complex place for her to settle in; and

(c) in any event, the applicant could afford to put the Sister into a good private care centre (as opposed to government institutions) or employ a private carer to look after her in India.[14]

(5) Finally, the applicant and her family could return to India if she found it necessary to look after the Sister, or alternatively, the Sister could come to Hong Kong as a visitor and might ask for extension of the visitor visa if she so wished.[15]

59.As far as I can see, there are three essential fundamental premises underlying these reasons:

(1) Dr Barve’s medical opinion shows that, given her psychiatric conditions, the Sister would have difficulty to handle and cope with complex and unfamiliar places (“the 1^st Underlying Premise”).

(2) The medical treatments in India and Hong Kong of the Sister’s conditions are likely to be the same (“the 2^nd Underlying Premise”).

(3) It is entirely a family choice as to whether the applicant and her family would like to return to India to look after the Sister, or for the Sister to come visiting Hong Kong regularly or even on extended basis (“the 3^rd Underlying Premise”).

60.In relation to all these fundamental bases, in formulating those reasons, it is clear from the M1 that the Director did not take into account the fact that the Father was going to be physically unable to continue to take care of the Sister, and would in any event come to stay in Hong Kong with the applicant on a dependant visa as granted.

61.In my view, this is obviously a relevant matter that the Director should take into account when considering the 1^st Underlying Premise.

62.In this respect, it is pertinent to first look at Dr Barve’s report dated 9 October 2014, which states as follows:

“[The Sister] is undergoing treatment with me since 1995. My medical diagnosis is for the condition is

BORDER LINE INTELLECTUAL FU[N]CTIONING

She has limited capacity to handle complex social situations and cannot cope with demanding tasks.

She is dependent on her family for her entire emotional and physical wellbeing due to the state of her mental health.

She has no history of sudden behavioral change or aggressive behavior. She is and has always been very calm and pleasant person. She just needs to be with her family for her physical and mental support and well being.

I have been treating her for the past 19 years. She has been taking the following medication to sustain routine tasks and alertness for carrying out daily chores on a regular basis, she is currently on Fluoxetine 10mg and Aripiprazole 10mg.

Also at regular intervals, she has been taking mental tests to check on her progress with regards to the medication.” (emphasis added)

63.It is therefore also part of Dr Barve’s view that the Sister’s mental conditions rendered it necessary for her to be dependent on the care by her family.  It is in any event a fact that the Sister has been under the care of the family in India over the years.

64.Given these contexts, for the Director to conclude (based on Dr Barve’s Report) that the Sister was likely to face with more adjusting difficulties in Hong Kong (because Hong Kong has a more complex social conditions), as a matter of logic and by reference to Dr Barve’s Report as a whole, it must be relevant for him to take into account the fact that she was to remain in India alone without family care to see whether this conclusion was sound.  It is also obviously unreasonable for the Director to take into account one part of Dr Barve’s opinion (ie, that the Sister had limited capacity to handle complex social situations and cannot cope with demanding tasks), without considering also the other related part of the opinion (ie, she was dependent upon family care).

65.To put in another way, by any account, under this question, it must be a relevant consideration in the particular circumstances of the Sister for the Director to consider whether she would have more difficulty to handle the social conditions when she was left alone without family care in India than if she was to come to Hong Kong and stay with all the family members.

66.The same must similarly apply to the 2^nd Underlying Premise, which is also based on the medical opinions expressed in Dr Barve’s and Dr Fan’s Reports.

67.In relation to this, it is also helpful to look at Dr Fan’s Report in full, which states as follows:

“1. [The Sister] attended this clinic for the first time on January 6, 2015 with her elder sister for a medical assessment. She attended again at this clinic on November 5, 2015 with her elder sister and brother-in-law for a further review of her psychiatric problems. I was also provided with a psychological report dated September 24, 2014 signed by a clinical psychologist Ms Johann Thomas (a copy attached).

2. History provided by her relatives revealed that [the Sister] was born a normal child with unremarkable developmental history. She graduated as Bachelor of Commerce from the University of Mumbai at around age 20 with fair result. Then she suffered from first onset of her psychiatric illness with prominent depressive mood, abnormal behaviours such as tearing up passport, irrelevant speech, self-muttering and talking to air, seeing imaginary figures such as famous movie stars around her. She also appeared retarded in response, self-absorbed and unable to perform simple tasks. She also neglected her personal hygiene and other body needs. However she was never violent and without any history of self harm.

3. She was prescribed medication by a psychiatrist and she later improved and gradually recovered. She was able to complete one year of full time training and obtained her qualification to become an Early Child Care Teacher (ECCEd) after her recovery.

4. However she relapsed again shortly after taking up the job as a teacher with similar symptoms. Her medication was adjusted with gradual improvement. However her family observed later that she exhibited obvious deterioration in her personality and general functioning, including social withdrawal, less of motivation and energy for work and leisure, neglect of personal hygiene and appearance, reluctance to wash and bath, laziness and overeating. She put on much weight and refused to go out to meet friends. She also refused attendance at any rehabilitation programs. She was found unable to live independently since then but required the daily supervision and care from her parents. Frequent prompting was necessary for her to eat and drink properly as well as to maintain her basic self care.

5. She suffered from a relapse about 2001 after she stopped all the medications owing to her lack of insight to her mental illness. Again she became listless and very disturbed in mood and behavior. She did not eat for a few days and was not communicable with others. She was put back on drug and later became stabilized on Fluoxetine 10mg daily and Aripiprazole 10mg daily and has been well maintained on these medication without any further relapse in the last 15 years.

6. [The Sister] refused to attend any rehabilitative program all along and her father found it more and more difficult to provide sufficient care to her (such as supervising her personal hygiene, drug compliance and maintaining her self care and daily routine) during the last few years as he was now in his 70s and her mother passed away a few years back.

7. Mental state examination today revealed that she was calm and settled and free from any psychotic symptoms. Her attention and concentration were normal and she could communicate clearly in English. She had good insight to her illness and was compliant with the medication. However she admitted that she was defident in taking care of herself and was unable to enter into rehabilitation program and unfamiliar places on her own.

8. I am of the opinion that [the Sister] suffers from schizophrenia since her early adulthood. Although she is in full remission of the active psychotic symptoms currently, she is found to be exhibiting prominent residual negative symptoms such as impaired cognitive and executive functioning, poor concentration, poor reality testing, impairment in conceptualizing and engaging in abstract kinds of mental activities (refers to second page of the attached psychological report). Further evidence of her impaired cognitive functioning is revealed by her borderline WAIS score of 81 (as shown on page 1 of the attached psychological report) and her weaken verbal and numerical reasoning when compared to her premorbid academic achievements.

9. Her family has also reported a long standing history of poor motivation for work and leisure, inadequate self care and personal hygiene, and a history of poor drug compliance in the past leading to relapse to her psychiatric illness. All these indicate that [the Sister] is currently in a dysfunctional state and she is mentally incapable of independent living.” (emphasis added)

68.It is clear from both Dr Barve’s Report and Dr Fan’s Report that, given her psychiatric conditions, the Sister’s well-being is dependent on having family care.  Thus, when the Director considered where the Sister would receive a better or worse care for her psychiatric conditions, it must also be relevant by any account to see whether and where she would receive family care.  Hence, the fact that the Sister would be left in India without any family members to take care of her when the Father went to stay in Hong Kong with the applicant must be a relevant factor that the Director should take into account.

69.Ms Tong on the other hand submits that the Director in exercising his discretion is not concerned with or to act in the best interests of the Sister.  Hence this fact is not relevant for the Director’s consideration.

70.In relation to this, Mr Dykes fairly confirms that he is not saying that the Director has to act in the Sister’s best interests.  Indeed, Mr Dykes emphasizes he disavows that proposition.   However, leading counsel submits that the Sister’s interests must be a relevant factor to the consideration whether the Sister has shown strong humanitarian or compassionate grounds in support of her dependant visa application. 

71.I agree with Mr Dykes.  By definition, humanitarian or compassionate considerations in relation the Sister’s position must include the consideration as to whether her interests concerning her care (being a person suffering from psychiatric illness, requiring the regular family care) would be so adversely affected by not granting her a dependant visa to come to live with her family in Hong Kong.

72.In the premises, in coming to the above two underlying premises to reject the Sister’s Dependant Visa Application, I regard it as Wednesbury unreasonable for the Director not to take into account the fact that the Father would leave India and the Sister would be effectively left in India without any family care if her dependant visa application was not granted[16].

73.As to the 3^rd Underlying Premise, given the above conclusion, I also find it Wednesbury unreasonable for the Director to regard this as a basis to reject the humanitarian or compassionate ground in the present case. This is so because:

(1) In relation to the consideration that the Sister could come to visit Hong Kong from time to time or on an extended basis, it is implicit under this basis that she would have to return to India from time to time, even with extensions of her visitor visa.  In these circumstances, it must also be a relevant factor to consider whether this was realistic given that she would be effectively left alone in India without family care when she was not travelling to Hong Kong.

(2) In relation to the consideration that it was a family choice for the applicant and her family to return to India, this must be considered as a whole whether there existed other strong humanitarian or compassionate reasons for the Sister to come and stay in Hong Kong with the applicant.

(3) As submitted by Mr Dykes, the main purpose of the Dependant Policy (with the residual discretion based on humanitarian or compassionate grounds) is to attract and keep the sponsor in Hong Kong[17].  When considered in this context, in order to have a genuine consideration of the exercise of discretion under humanitarian or compassionate grounds, the option for the sponsor to leave Hong Kong should be considered as a whole together with all the other factors and matters in each case to see whether it is humanitarian or compassionate to require the sponsor and the dependant visa applicant to do so.  This I think is particularly so if and when the sponsor is already a Hong Kong permanent resident, where she has established a right to be in Hong Kong.  Otherwise, as pointed out by Mr Dykes, this reason would theoretically always be an answer to exceptional humanitarian or compassionate considerations. There are thus effectively no humanitarian or compassionate consideration exceptions.

(4) In the premises, if the Director’s conclusions on whether there existed other exceptional humanitarian or compassionate reasons in the present case are tainted with Wednesbury unreasonableness as I have concluded above, this part of the reasons must also be similarly tainted.

74.For all the above reasons, I agree that the Director’s reasons in finding against the existence of exceptional humanitarian or compassionate grounds are tainted with Wednesbury unreasonableness in failing to take into account a relevant consideration.  The Director’s Decision should therefore be quashed.

75.Further, for the same reasons I have set out at paragraphs 59-69 above, I also accept that the Director’s Decision is tainted with procedural unfairness.  It could not have been reasonably contemplated by the Sister that, when relying on those parts of Dr Barve’s and Dr Fan’s Reports, the Director would not take into account the pertinent and relevant fact that the Father would no longer stay with the Sister and she would be left without family care in India.  Therefore, the Sister would not have reasonably contemplated that she should put in information or materials (for example, further medical reports) to show that, if she was to be left alone in India when the Father joined the applicant in Hong Kong, she would have greater difficulty to live in India than in Hong Kong and that her psychiatric conditions would be worse in India than in Hong Kong notwithstanding the medical treatments.

76.The procedural unfairness is also related to the Director’s view (see paragraph 5.3(e) of M1) that the Sister’s family should be able to put her in private care centre or to hire a carer to look after her.  It must be remembered that the Sister is suffering from psychiatric illness and whose “entire emotional and physical well-being” is said by her attending psychiatrist to be dependent on her family.  In the premises, the correctness and pertinence of this consideration as to whether it is inhuman or uncompassionate (even on an exceptional basis) to ask her to be left in a private institutional care or by private carer must reasonably be considered in and dependent upon the context of the absence of regular care by family members.  This again is the very factor that the Director however had not taken into account.

77.It is in these special circumstances of the present case that, in my view, it was necessary as a matter of procedural fairness for the Director to ask the Sister follow up questions before he could arrive at the above conclusions as set out in paragraphs 5.3(a), (b), (d) and (e) of the M1.

78.In the premises, I would also quash the Director’s Decision on the procedural unfairness ground.

D.   CONCLUSION

79.For all the above reasons:

(1) I would formally grant leave to the applicant to amend the Form 86 as in the draft provided to the court, and further grant leave to apply for judicial review under grounds 2 and 3.  I would however refuse to grant leave under ground 1.

(2) The applicant succeeds in this judicial review on grounds 2 and 3, in that the Director’s Decision is Wednesbury unreasonable in failing to take into account a relevant consideration, and tainted with procedural unfairness in the way as I have explained above.

80.I would quash the Director’s Decision and remit it back to the Director for reconsideration, taking into account the matters I have set out above.

81.There are no reasons why costs should not follow the event.  I will make an order nisi that costs of this application be to the applicant, to be taxed if not agreed.

82.I thank counsel for their assistance in this matter.

Mr Philip Dykes, SC, instructed by Daly, Ho & Associates, for the applicant

Ms Sara Tong, instructed by Department of Justice, for the respondent