Hamid Mahmood v. Director of Immigration

HCAL 2457/2020

[2022] HKCFI 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2457 OF 2020

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Before:  Hon Coleman J in Court

Date of Hearing:  17 January 2022

Date of Judgment:  26 January 2022

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J U D G M E N T

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A.  Introduction

1.This is an application for leave to apply for judicial review against the decision dated 22 June 2020 (“Decision”) made by the Director of Immigration (“Director”), which confirmed the Director’s own decision dated 14 June 2018, refusing to grant a dependant visa to Ms Farooq Qajia (“Daughter”), the daughter of the applicant (“Father”).

2.The parties were previously directed to file initial responses. Having considered the initial responses, I directed an inter partes leave hearing which was held on 17 January 2022. The Father was represented by Ms Tina Mok. The Director was represented by Ms Leona Cheung (with Mr Gilbert Mok).

3.This is my Judgment.

B.  Background Facts

4.The Father was born in Pakistan in 1975. In 1997, he came to Hong Kong and married Ms Begum Zatoon (“Mother”), who is a Hong Kong Permanent Resident (“HKPR”). The Father became a HKPR himself in 2004, and was naturalized as a Chinese national in 2009. The Father and the Mother have three children, all born in Pakistan in 2000, 2007 and 2017 respectively. The Daughter is the eldest.

5.The Daughter has made – or been the subject of – three dependant visa applications over the years. The first application was made in 2004 (“2004 Application”) when the she was 3 years old. The Mother was the sponsor in that application, and the Daughter was granted a one-year visa to live in Hong Kong as her Mother’s dependant. That visa was not further extended. It is not disputed that, since 2005, the Mother had been living in Pakistan, with the Daughter and (later) the two other younger children.

6.The Daughter turned 18 years old on 15 June 2018. The second and the third dependant visa applications were made shortly before the Daughter’s coming of age. The second application was made on 22 December 2017 (“2017 Application”) and was rejected on 23 April 2018. The Daughter applied for a reconsideration of the 2017 Application on 23 May 2018. The request for reconsideration was rejected on 13 December 2018.

7.Before the request for the reconsideration of the 2017 Application was concluded, the Daughter made the third application (“2018 Application”) on 14 June 2018, the day before her 18^th birthday.

8.The 2018 Application was rejected by letter dated 28 August 2019. In the letter, it was said that the Director was not satisfied that the Daughter was coming to Hong Kong as the Father’s dependant. The Daughter requested a reconsideration on 11 September 2019, which was rejected by letter dated 22 June 2020 (ie.the Decision). In the Decision, it was said that no fresh ground pertinent to the earlier refusal was provided. The Decision is the subject of the current leave application.

9.The letter dated 28 August 2019 and the Decision did not reveal much of the Director’s reasoning except that, as said above, he was not persuaded that the Daughter was coming to Hong Kong to live as the Father’s dependant. More detailed reasoning for rejecting the 2018 Application can be found in two internal minutes of the Immigration Department. The internal minute supporting the decision dated 28 August 2019 is dated 15 August 2019 (“1^st minute”) and the one supporting the reconsideration Decision dated 22 June 2020, is dated 19 June 2020 (“2^nd minute”). Before the Father requested a reconsideration of the first refusal, he had gained access to the 1^st minute by way of a data access request. The Father also later had access to the 2^nd minute.

10.It is of note that the sponsor of whom the Daughter was said to be a dependant was not the same in the three applications. As said, the Mother was the sponsor in the 2004 Application. In both the 2017 and the 2018 Applications, the sponsor had become the Father. Also, in 2017, the two younger children also applied for a dependant visa alongside the Daughter. But in 2018, only the Daughter submitted an application.

11.Before making the decisions, the Director made various enquiries with the Father/Daughter about the 2017 and the 2018 Applications. Among them, two questions asked by the Director have formed the basis upon which Ms Mok has formulated the intended grounds of review.

12.The Director asked the Father the following questions (sic) by letter dated 26 April 2019:

Why [the Daughter] did not apply for the entry dependant visa but in 2017 and 2018 who is nearly 18 years’ old?

Why [the Mother] was not in Hong Kong in most of the time?

13.I shall refer to the questions as the “Age Question” and the “Mother Question” respectively.

14.Answers to both questions were provided by the Father by letter dated 16 May 2019, as follows:

The [Daughter] could not apply for the entry dependant visa before 2017 as her mother was the care taker of her grandmother in Pakistan. As being the only care taker she could not come to Hong Kong to stay with the Daughter in case the visa was granted. It was, only when the [the Father’s] brother decided to get married in 2018, the Father decided to apply for the entry dependant visa for the [Daughter] since the [Father’s] sister in law could take care of the [Father’s] mother;

The [Mother] was taking care of the children and [Father’s mother] back in Pakistan. As such, she could not visit Hong Kong most of the time;

15.In support of the application, the Father also submitted to the Director information regarding his visits to Pakistan since 2010, his communication records with the Daughter and evidence of his financial support to her. These will be further explored later in this Judgment.

C.  The Director’s Dependant Visa Policy

16.The Director’s policy on the issuance of dependant visas was published in the “Guidebook for Entry for Residence as Dependants” (“Guidebook”).

17.Part II of the Guidebook is headed “Eligibility Criteria”. The relevant excerpt of Part II is as follows:

4. … the following dependants may apply to join him/her for residence in the HKSAR:

(a) …

(b) his/her unmarried dependent children under the age of 18; and

(c) …

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.

18.Obviously, the essential element of the policy is dependency. That element is not satisfied merely by the existence of a familial tie of blood or marriage. It is a policy that allows an applicant who is generally dependant on the sponsoring family member to apply for permission to reside in Hong Kong: see Bhupendra Pun & Nandadram Pun v Director of Immigration & Chief Executive Council, (unreported, HCAL 1541/2001, 22 January 2002, Hartmann J as he then was) at §§9-13 and 27; BI v Director of Immigration [2016] 2 HKLRD 520, at §§55-66 and 70-73.

19.Further, dependency describes a state of reliance. 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 (unreported, HCAL 2104/2001, 19 February 2003) at §§ 25-26.

20.It is also settled that: (1) the burden is on the visa applicant and sponsor to prove genuine dependency, and it is not for the Director to show that the applicant falls outside the policy; (2) the assessment of genuine dependency and the consideration of what weight is to be placed on each factor are matters for the Director, within the exercise of a very broad discretion; and (3) within an application for judicial review, it is usually not appropriate for the Court, ordinarily faced with arguments concentrating only on the personal and family situations of the applicants in the instant case, to usurp the role of the Director.

D.  Grounds of Review

21.There were three intended grounds of review set out in the Form 86. But in the Father’s skeleton submissions dated 11 January 2022, Ms Mok confirmed that the third ground has been abandoned, and only two grounds were advanced at the hearing.

22.The first broad ground (“Irrelevant Questions Ground”) arose from the Age Question and the Mother Question. Ms Mok said they were irrelevant to the Daughter’s dependency on her Father and should never have been asked. Asking such irrelevant questions rendered the Decision Wednesbury unreasonable, and it was also procedurally unfair for the Director to have asked those questions but fail to seek further clarification.

23.The second broad ground (“Weighing of Evidence Ground”) complains about the Directors’ assessment – or “weighing”, as put by Ms Mok – of evidence. The evidence the subject of the disputes relates to: (1) the number of trips taken by the Father to Pakistan from 2010 to 2018; (2) the photos submitted to evidence his trips to Pakistan; (3) the communication records between the Father and the Daughter; (4) the records of remittances transferred by the Father to Pakistan. Ms Mok submitted that the Director’s weighing of evidence was irrational in the public law sense.

E.  Test for Leave to Apply for Judicial Review

24.The threshold for the Court to grant leave for an intended judicial review has been long settled: the applicant has to show that the proposed grounds of review are reasonably arguable.

25.Ms Mok submitted that leave should be granted if the Court is satisfied that the there is a “slightest possibility” that a reasonable decision-maker would have granted the 2018 Application. Whilst I do not think that Ms Mok was trying to introduce a new test for leave applications, the language of “slightest possibility” is apt to confuse. I shall adhere to considering whether the grounds advanced are “reasonably arguable”.

26.Ms Cheung, for the Director, emphasised the very high threshold to challenges of decisions in immigration control matters under the head of Wednesbury unreasonableness. No doubt the threshold for proving irrationality in the public law sense is a high one. But as Ms Mok reminded this Court, this is only a leave hearing and all that the Father has to show is that the intended grounds, including those under the irrationality umbrella, are reasonably arguable.

F.  Ground 1: Irrelevant Questions

27.At the hearing, I asked Ms Mok to clarify whether her submission is (a) that the Age Question and the Mother Question could never be relevant to the circumstances of an application for a dependant’s visa, or (b) that her complaints concern more the way the Director dealt with the answers to those questions. Ms Mok said the two questions could never be relevant.

28.Ms Mok said the Director’s focus in the Age Question was the Daughter’s age – why she made her application when she 17 years old but not younger – rather than her purpose or intention for applying for a dependant visa. The main thrust of her argument is that the Daughter was the Father’s child who was not yet 18 years old at the time of application, thus falling within the specified categories of persons under §4 of the Guidebook. Since the Daughter was still within the age limit, the Director should not have asked the Age Question which was irrelevant to the question of dependency.

29.I do not accept Ms Mok’s argument. There is no dispute that the Daughter was capable of falling within the specified categories of persons under §4 of the Guidebook, because she was then under 18 years of age and unmarried. However, satisfying the age criterion is only part of the eligibility criteria. First, §4(b) obviously also requires the person to be a “dependant”. Secondly, it is well settled that a prospective dependant also has to meet the other eligibility criteria under §5: see the BI case §§74-78. One of the criteria under §5 is the existence of a genuine relationship of dependency. It is intuitive, and well-recognized by the Court, that the younger the prospective dependant, the more readily the Court will infer a genuine relationship of dependency, and vice versa: see, for example, the Bhupendra Pun case at §16.

30.During the whole period from March 2005 to December 2017, when the Daughter was about 4 to 17 years old, she did not apply to come to Hong Kong as a dependant of her Father. It is not unnatural for the Director to wonder why such dependency arose suddenly when the Daughter was coming of age. The Age Question is plainly relevant to the Daughter’s dependency on the Father.

31.Indeed, as the hearing progressed, it was revealed that Ms Mok was also concerned about how the Director dealt with the answer to the Age Question. Some emphasis has been placed on the officers’ assessment in the 1^st minute that “[the] sponsor did not address the question directly making the intention of the [Daughter] for coming to HK at her coming of age in doubt”. This assessment was recapped in the 2^nd minute.

32.Ms Mok said the answer – that the Mother had to stay in Pakistan to take care of her mother in law until 2017 and was not able to come to Hong Kong before that even if a visa was granted to the Daughter – was simple and direct. Ms Mok seemed to suggest that assessing the answer as being indirect was unreasonable. She further submitted that the even if the answer was indirect, the Father should have been afforded an opportunity to be heard as a matter of procedural fairness.

33.Ms Cheung said that the answer was indirect in that it was a roundabout way to say that the Daughter was actually dependant on the Mother, and the Daughter could not come to Hong Kong unless the Mother could come to take care of her too. Ms Cheung said this answer further shows that the Age Question is relevant to the existence of dependency. On the matter of procedural fairness, she submitted that an alien with no right to land in Hong Kong is not entitled to any procedural fairness, citing Chu Woan Chyi v Director of Immigration [2007] 3 HKC 168 at §§71.

34.The undersigning officer of the 1^st minute did not say why he found the answer indirect but he noted that for the 2018 Application, only the Daughter submitted an application for a visa whilst the Mother and the two younger children were residing in Pakistan. The officer’s view was seemingly that the answer cast doubt on the Daughter’s intention in applying for a dependant visa. He did not accept that the Daughter was coming to Hong Kong to be her Father’s dependant.

35.Indeed, a reader might think the officer was implying that the Daughter was coming to Hong Kong to work, while the Mother would continue to stay in Pakistan to take care of the younger children. This may be one of the reasons why Ms Mok sought to rely on the 2017 Application when visa applications were submitted for all three children. That might suggest that the original plan was not for the Daughter to come alone, and to leave behind the Mother and the younger siblings in Pakistan. Coming alone perhaps tends more towards an intention to work in Hong Kong. But one of the reasons why the 2017 Application failed was that the Father was not considered to have sufficient means to support all three children, so it may be that could partly explain why only the Daughter’s application was put forward in 2018.

36.Be that as it may, I still cannot follow how the Daughter’s coming to Hong Kong with her siblings and Mother could assist the Father on the dependency issue. The answer suggests that the Daughter could not live away from the Mother (rather than the Father who was the sponsor in the 2018 Application), and it is not unreasonable for the officer to question if the Daughter did harbour a genuine intention of coming to Hong Kong to be the Father’s dependant. In any event, asking about a proposed dependent’s age seems to me likely to be at least potentially relevant to every application for a dependent visa for a minor. It is not reasonably arguable that there was anything improper in the Director’s raising or handling of the Age Question.

37.Turning to the Mother Question, Ms Mok said the Mother was neither the dependant nor the sponsor in the 2018 Application so her absence from Hong Kong is irrelevant. She also submitted that it was irrelevant, as it was reasonable for the Daughter to get her visa first.

38.In response, Ms Cheung submitted that it was highly relevant to the dependency issue in the present case. The Mother was put forward as the sponsor in the 2004 Application. The Daughter had been living with the Mother in Pakistan since the end of the period of visa then granted. It is reasonable that the Director would want to know more about the Mother, in order to ascertain whether the Daughter was now a genuine dependant of the Father instead of the Mother. I asked Ms Cheung if it was possible to be dependent on two persons. It is probably not uncommon, in the context of a child, that she is dependent to some extent on both her father and mother. Ms Cheung agreed, but stressed that it was not how the application was put. Only the Father was put forward as the sponsor in the 2018 Application.

39.In the 2018 Application, the Father was put forward as the sponsor, which was change from the situation in 2004 and, perhaps, to the factual reality in the many years since then. Since there was an apparent change of dependency from the Mother to the Father, the Director was plainly entitled to find out more about the Mother. I see no reasonably arguable ground arising from the Mother Question.

G.  Ground 2: Weighing of Evidence

40.In the 1^st minute, the immigration officer relied on the following to say that there was insufficient evidence to show that there was a relationship of dependency, be it physical, emotional or financial:

(1)  The Father only took 6 trips in total to Pakistan from March 2010 to April 2018.

(2)  The Father submitted some photos to prove the trips to Pakistan. But he was not shown in some of the photos. The photos which were marked to have been taken in 2017 were instead marked to have been taken in 2015 when they were submitted in the previous application. The inconsistency of the dates on the photos “damaged the credibility of the photos submitted”.

(3)  The communication records (such as call records, chat records in social media and call card copies) submitted to show communication between the Father and Daughter only covered the period from 2017 to 2018. Some records lack crucial information to identify the people involved in the communication, the time and date of the call, duration of the calls, etc.

(4)  The remittance records showing the Father’s financial support to the Daughter only covered 2017 and 2018 with the earliest being made in May 2017.

41.After the Father had obtained the 1^st minute by way of a data access request, his solicitors made the following reply to the Director’s observation on the evidence above:

(1)  On the trips: with limited financial means, the Father could not make as many trips to Pakistan as he wished.

(2)  On the photos: the inconsistency on the dates of the photos was only a misunderstanding.

(3)  On the communication records: people from Pakistan usually use international calling cards for communication and the Director could have checked with the international calling card companies.

(4)  On the remittance records: it is common practice to remit money to Pakistan by cash through relatives and friends in Hong Kong. It is also common for people not to keep all the remittance records.

42.The Father also sought to rely on humanitarian and compassionate grounds on the basis of his medical conditions, but this was not further pursued in the leave hearing. Indeed, that was wise as the suggestion might arise that it was the Father who was dependant on the Daughter, rather than the other way round.

43.In the 2^nd minute, although the officer recapped the 1^st minute’s assessment on those four aspects of the evidence and referred to the further information or explanation provided by the Father, he did not engage in lengthy discussion of them. He said that:

the photos and remittance proofs could show [the Father’s] occasional visits to the [Daughter] and that the [Father] is the breadwinner of the family but are not crucial in concluding the dependency need of the [Daughter] on the [Father].

44.What was crucial was that the Daughter had been residing away from the Father for more than a decade and they

did not report any dependency need prior to her 2^nd application when she was aged 17. The [Father] also did not provide any ground as to how such need emerged after long stretch of time.

45.I agree with Ms Cheung that, as shown in the 2^nd minute, that was the main reason for the Decision. This would put the significance of the trips, the photos, the communication records and the remittance records into context. These aspects of evidence (and the disputes arising from them) were not so heavily relied on by the officer to reach his conclusion. That should be the complete answer to Ms Mok’s protest on the assessment that the inconsistency of the dates in the photos had damaged the credibility of the photos. But, in any event, there was indeed an inconsistency or discrepancy in the dates of the photos, and labelling it as a “misunderstanding” does not make the Director wrong in thinking that the inconsistency had made the photos less credible than they otherwise might be. Further, there were really very few photos showing the Father and the Daughter together.

46.Assessment and weighing of evidence are for the Director as the primary decision-maker. It is well established that the Court should not lightly interfere with that.

47.In any event, Ms Mok has not demonstrated any factual errors made by the Director. All the Father proffered in reply was how the lack of documentary evidence or the lack of visits could be explained. As Ms Cheung nicely put, there might be proper explanation for the absence of evidence, but the absence of evidence is not positive evidence. The Director also had no duty to make further enquiries to help the Father/Daughter to establish evidence/facts in support of their applications.

48.At the hearing, Ms Mok relied on some further facts which were not in the evidence. I shall not take those into account.

49.It is not reasonably arguable that the Director erred in his assessment or weighing of the evidence.

H.  Delay

50.In granting or refusing extension of time, the Court will consider (1) length of delay, (2) reasons of the delay, (3) merit of the leave application and (3)prejudice to the putative respondent.

51.Ms Mok accepted that there had been some delay, but submitted that it was not substantial. But, the delay was about 6 months, which is not insubstantial.

52.The Father said that he needed time to obtain documents from the Director, that he had medical surgery around the time of the Decision, and that the pandemic had caused extra time to be taken. Ms Mok also emphasized that the Father is a Chinese national (though I am not sure why that fact might be relevant to the assessment of delay).

53.Ms Cheung submitted the Father already had most of the documents he relied on in the Form 86 by the time of the original decision on 29 August 2018, the surgery could not explain why he did not file the Form 86 in time when he was assisted by lawyers and that the pandemic on its own does not explain the delay.

54.There is some force in the Father’s justifying reasons for the delay. Were it necessary, I would be willing to give some leeway to the fact that the Father was operated on shortly before the Decision. I also accept that no evidence was put forward to show that there would be disruption on overall administration, if time were to be extended in this case. However, since I have found that there are no merits in the leave application, I do not see the utility in granting an extension of time in the circumstances.

I.  Conclusion

55.The applicant’s application for leave to apply for judicial review is, therefore, dismissed, with costs to the Director to be taxed if not agreed.

56.However, I make the costs order on a nisi basis first. It will become absolute unless an application for variation is made within 14 days. Any such application will be dealt with on paper.

Ms Tina Mok, instructed by M.C.A. Lai Solicitors LLP, for the applicant

Ms Leona Cheung, Principal Government Counsel (Ag.), and Mr Gilbert Mok, Government Counsel, of the Department of Justice, for the putative respondent