Gurung Pratimaya v. Director of Immigration

HCAL 1862/2018

[2020] HKCFI 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1862 OF 2018

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Before: Hon Chow J in Court

Date of Hearing: 3 January 2020

Date of Judgment: 9 January 2020

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JUDGMENT

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INTRODUCTION

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) made on 17 August 2018 refusing to grant a dependant visa to Mr Shrestha Arbin Kumar (“H”) to join the Applicant in Hong Kong.

BASIC FACTS

2.The Applicant was born in Hong Kong on 3 April 1971, and is a Hong Kong permanent resident.

3.H was born in Nepal on 24 February 1981.  He entered Hong Kong illegally by boat in May 2007, and was arrested by the Police on 12 August 2007 for illegally remaining in Hong Kong.  He lodged a torture claim on 25 August 2007, but withdrew the claim on 14 September 2010.  He was repatriated from Hong Kong to Nepal on 6 November 2010.

4.While H was in Hong Kong, he married the Applicant on 4 March 2010.  He made four applications for a dependant visa to join the Applicant in 2010, 2015, 2016 and 2017 respectively.  Those applications were either closed due to the Applicant’s failure to provide supporting documents as requested by the Immigration Department, or were refused by the Director.  Since the relevant decisions made in those dependant visa applications are not under challenge in the present application for leave to apply for judicial review, it is not necessary to dwell on them further in this judgment.

5.On 28 February 2018, the Immigration Department received a fresh dependant visa application by H (“the Subject Application”). Subsequently, the Applicant provided various documents in support of the Subject Application in May and June 2018 respectively upon the requests of the Immigration Department.

6.By a letter dated 17 August 2018, the Immigration Department informed the Applicant that the Subject Application was refused, for the reason that –

“it is not satisfied that [H] is your dependant and [H] is coming to the HKSAR to join you as your dependant. There exist no strong compassionate or humanitarian reasons or other special extenuating grounds warranting a departure from the prevailing policy. The above application for entry for residence as dependant is therefore refused.”

7.The Immigration Department’s detailed assessment of the Subject Application can be seen from its internal file minute “M2” dated 16 August 2018, the relevant parts of which state as follows (omitting references to documents):

“Assessment:

4. In support of the matrimonial relationship, marriage certificate was provided. Referring to the letter from SP, she declared that AP was introduced by her common friend. Thereafter, they became lovers and they solemnized their marriage with SP’s parents, children, relatives and friends in Hong Kong in 2010. Upon request, SP provided 9 wedding photos but the parents, children, relatives and friends of SP were not found in these photos for their celebration.

5. According to movement record since, SP only made one following air-trip:

5.1 from 31-01-2017 to 18-02-2017 (19 days)

AP was repatriated in 2010 and SP only has had one departure-and-arrival record since AP’s removal. Assuming SP visited AP during the mentioned oversea trip, SP had just spent 19 days for staying with AP since 2010 and SP could only submit 2 photos from the trip. It casts a doubt on the intimated relationship of SP and AP. Given that SP had spent a significant period of time in Hong Kong since from 2010, it is not satisfied that there is reasonable proof to support the physical dependency of AP on SP.

6. Upon request, SP could only [provide] communication proof between 05/18 to 06/18. Upon further request with letter dated 19-06-2018, SP failed to submit more communication records with AP due to lost of the mobile phone sets. It is not satisfied that there is continuous communication proof after marriage to support the emotionally dependency of AP on SP.

7. Upon request, 7 remittance receipts from 03, 07, 11/2016 & 03, 06, 10/2017 & 01/2018 were provided. No proof of financial support before 03/2016 was provided. Moreover, SP did not provide any remittance for AP in AP’s last ‘RF’ dependant application which was finalized on 27-10-2017 but SP could manage to provide the receipts dated 03, 07, 11/2016 & 03, 06/2017 in this application. It casts doubt on the source of the receipts. There is no reasonable proof to support AP’s financial dependency on SP since their marriage.

8. Financial-wise, SP is a worker with monthly salary HKD15,000. However, due to the assessment in para.4 – 7, we would not probe further into this issue as dependency of AP on SP, which is essential element to be considered under the context of dependant policy, has not been satisfied.

9. Other Considerations

9.1 AP is able-body who has been taking Nepal as his habitual residence in the absence of SP. Available information also suggests that he is not depending on SP either physically, emotionally or financially. Therefore, should the application be refused, it is considered that it would constitute no hardship on AP.

10. Conclusion and Recommendation(s)

10.1 Having considered all the available information and circumstances of the case, I recommend refusing the entry dependant application on the grounds of:

i.  it is not satisfied that AP is genuine dependant of SP, who is physically, emotionally and financially dependent on SP; and

ii.  there also exists no other extenuating or strong compassionate grounds meriting our special consideration.”

8.In short, the Immigration Department was not satisfied that H was physically, emotionally and financially dependent on the Applicant, and considered that there existed no other extenuating or strong compassionate grounds which would merit special consideration being given to the Subject Application.

9.On 6 September 2018, the Applicant applied for leave to apply for judicial review of the Director’s decision contained in the said letter dated 17 August 2018.

DISCUSSION

10.The Applicant’s case is set out in a document titled “Grounds for Judicial Review” attached to her Form 86.  As correctly pointed out by Mr Li (for the Director), the Applicant has effectively raised only one ground of judicial review, namely, that the Director’s decision is irrational, or Wednesbury unreasonable.

11.The Director’s Dependant Policy is well known and well publicized.  The following is stated in the “Guidebook for Entry for Residence as Dependants in Hong Kong” (ID(E) 998 (4/2015)) published by the Director:

“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 dependant children under the age of 18; and

(c) his/her parents aged 60 or above.

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.”

12.In relation to the Director’s exercise of discretion under the Dependant Policy, the following principles are well established:

(1) The purpose of the policy is to “allow recognised categories of close family members to remain when they require the care and financial support of their sponsors in Hong Kong”.  “It is a policy founded on humanitarian principles that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family to reside in Hong Kong with that member”, but it is “not a policy of family union” (see Dembele Salifou v Director of Immigration, HCAL 44/2014 (22 April 2016), at §§24 and 25 per Au J).

(2) “Dependency” is an essential element of the policy (see Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at §16 per A Cheung J).

(3) “[Dependency] describes a state of reliance upon somebody.  A dependant is somebody who must rely on another for maintenance, care and support, emotional and material, and is unable otherwise to manage” (see Christian Bulao Palmis v Director of Immigration, HCAL 2104/2001 (19 February 2003), at §25 per Hartmann J).

(4) However, “the mutual emotional dependency that is to be found in genuine family affection is not of itself, and viewed alone, a form of dependency which falls within the Director's policy.  If it did then all demonstrations of genuine family ties and the desire to be together would on its own fulfil the necessary criteria.  That, in plain terms, would constitute a policy of family reunion not a policy of dependency” (see Christian Bulao Palmis, supra, at §26).

13.An essential matter that H had to satisfy the Director for him to be granted a dependant visa was therefore a genuine “dependency” relationship between the him and the Applicant as explained above.

14.The Director is the primary decision-maker on the issue of dependency.  Having regard to the wide discretion given by the legislature to the Director in the field of immigration, a very high hurdle has to be overcome before the court may intervene in the Director’s decision to refuse to grant a dependant visa in any given case on the Wednesbury unreasonableness ground.  The court must pay due regard to the Director’s experience and expertise in assessing such applications, and recognise the fact that immigration decisions are often driven by political and socio-economic considerations which the court is not well-equipped to assess or balance (see BI v Director of Immigration [2016] 2 HKLRD 520, at §92(2) and (3); Qamar Zaman v Department of Immigration, HCAL 145/2002, at §§17 and 18 per Hartmann J).

15.In the present case, the Applicant could only produce evidence which showed that, during the period from 2010 to 2018:

(1) she spent at most 19 days in 2017 with H when she went on an overseas trip;

(2) she communicated with H between May and June 2018 (although it is fair to point out that according to the Applicant, some other records of communication between them were not available due to the loss of “mobile phone sets”); and

(3) she made remittances to H on 7 occasions from 2016 to 2018.  There was no proof of financial support provided by the Applicant to H prior to March 2016.

16.It was, in my view, open to the Director, on the materials before him, to come to the view that the Applicant and H had failed to show that H was physically, emotionally and financially dependent on the Applicant for the purpose of the Dependant Policy, and there existed no other extenuating or strong compassionate grounds which would merit special consideration being given to the Subject Application.

17.Two other matters can be briefly dealt with here. First, the Applicant says that both she and H have no criminal records in Hong Kong.  However, while a known record to the detriment of an applicant is a factor against granting a dependant visa to that applicant, the absence of an adverse record is not of itself a ground for granting such visa.  Second, the Applicant’s complaint about racial discrimination plainly has no foundation or merits.

18.In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

19.The application for leave to apply for judicial review is dismissed.

20.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Director should be paid his costs in this application, because (i) the application clearly lacks any substantive merits, (ii) the Director appeared at the hearing upon the court’s invitation and provided substantial and helpful assistance to the court, and (iii) the Applicant has effectively a hearing on the merits.  I therefore make an order that the Applicant shall pay the Director’s costs of resisting the present application, including the costs of the hearing on 3 January 2020, to be taxed if not agreed.

The Applicant, acting in person

Mr Sunny Li, Senior Government Counsel, of Department of Justice, for the Putative Respondent