Mohammad Shabir v. Director of Immigration

HCAL 1219/2022

[2023] HKCFI 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1219 OF 2022

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D E C I S I O N

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A.  Introduction

1.By a Form 86 dated 7 November 2022, the Applicant (“Father”) seeks leave to apply for judicial review against the two decisions of the Director dated 25 January 2022 (“1^st Decision”) and 8 August 2022 (“2^nd Decision”). In the 1^st Decision, the Director refused an application for a dependant visa for the Father’s son, Ma Shmed Ijaz (“Son”). In the 2^nd Decision, and in response to the Father’s request for a reconsideration, the Director confirmed the 1^st Decision.

2.The Father is legally represented and the Form 86 was signed by Ms Jenny Lok of Counsel. I gave directions for the Director, represented by the Department of Justice, to file an Initial Response. The Initial Response filed on behalf of the Director was signed by Ms Heidi Lee, Senior Government Counsel, and Ms Celina Lam, Government Counsel. Ms Lok then filed a short Reply to the Initial Response.

3.Having considered all the available materials, I consider it appropriate to deal with this application on paper. This is my Decision.

B.  Background Facts

4.The Father is a national of Pakistan. He has been residing and working in Hong Kong since 1998. He became a permanent resident of Hong Kong in 2005, and was naturalized as a Chinese citizen in 2006.

5.The Father married his wife (“Mother”) in 2001. The Mother had come to join the Father in Hong Kong since 2005. Apparently, 10 children (although some evidence suggests 8) were born from this marriage. Some of the children were born in Hong Kong and some in Pakistan. The Son is the eldest sibling. Currently, only the Son and one or two of his siblings are residing in Pakistan, and all the other children are living in Hong Kong.

6.The Son was born in Pakistan on 16 November 2001. He had never travelled to Hong Kong since his birth. It appears that he has been residing with his relatives at least since after the Mother had come to join the Father in Hong Kong in 2005. On 16 October 2019, when the Son was one month short of his 18^th birthday, he applied for a visa to live in Hong Kong as the Father’s dependant.

C.  1^st Decision

7.The dependant visa application was rejected by letter dated 25 January 2022, i.e. the 1^st Decision. The reasons given in the letter were brief:

Having carefully considered all relevant circumstances and available information, we are not satisfied that applicant is a genuine dependant of you, who is physically and emotionally depends on you.

8.But the detailed assessment could be found in the Director’s internal minute which was provided to the Applicant pursuant to his data access request.

9.The internal minute (“1^st Minute”) in respect of the 1^st Decision is also dated 25 January 2022. The core assessment and reasoning can be summarized as follows:

(1)  The dependant visa policy is not a policy of family reunion. The key consideration is the existence of dependency between the applicant and the sponsor.

(2)  There is insufficient evidence to establish genuine physical dependency of the Son on the Father. According to immigration records, the Father had only spent about 5 months in Pakistan in total in the past 10 years, and the Son had never come to Hong Kong. Only a few photos were taken of the Son and the Father together between 2017 to 2019. Other photos are undated but likely to be taken in recent years. No photos when the Son was of tender age were submitted.

(3)  There is insufficient evidence to establish emotional dependency. They had only submitted communication records on social media from May 2019 to December 2021 and the conversations were short, simple and plain. Since the period of records submitted is close to 16 October 2019 when they applied for the visa, it is not unreasonable to suspect the communication records were intentionally made for the purpose of the application.

D.  The Request for Reconsideration and 2^nd Decision

10.Having received the 1^st Decision, the legal representative of the Father and Son wrote to the Director by letter dated 6 June 2022, requesting a reconsideration. The bulk of that letter is in the form of submission, but there is also some further information or evidence, provided in light of what was said in the 1^st Minute.

11.In respect of the point that only remittance records in 2019, 2020 and 2021 were provided, it was said that:

(1)  The Father’s community has a long standing practice to employ informal means of transfer outside the banking system. The Son had been residing with relatives in a remote area of Pakistan and there was no money exchange or forex facility nearby. The Father used to give cash to friends in Hong Kong and then those friends’ family in Pakistan would send money to the Son.

(2)  The Son was a full time student in Pakistan and could not have survived without the financial support from the Father. Three documents were attached. The first two appeared to be his secondary school results in the years of 2017 and 2019. The third one is his bachelor degree certificate issued by the “University of Punjab” for completing the degree of the Bachelor of Commerce from 2019 to 2021.

12.As to why the Son did not apply to join the Father earlier, it was said that:

(1)  The Father did not want to disturb his study in Pakistan.

(2)  The Father was not financially established enough to have the Son raised in Hong Kong previously and thus preferred to raise him in Pakistan. But now the Father had eventually reached the position where he had the means to raise the Son in Hong Kong.

(3)  There is no suggestion that the Son wanted to come to Hong Kong to work.

13.On the paucity of communication records and photos, it was said:

(1)  There was reference tending to suggest that the Father and Son communicated via mobile phone using disposable phone cards which left no proper records, and the communication was hindered by literacy and the unavailability of Urdu scripts.

(2)  Because of cultural reasons and the fact that few owned cameras where the Father and Son came from, they seldom took photos.

14.By letter dated 8 August 2022, i.e. the 2^nd Decision, the Director maintained his original decision, stating:

We regret to inform you that your captioned request is refused as your information provided and representation made do not serve to form any fresh ground pertinent to the captioned refusal for our reconsideration.

15.The more detailed reasoning is set out in the internal minute dated 22 July 2022 (“2^nd Minute”). The Director noted that documents had been submitted to show that the Son had completed secondary education and had been pursuing university study since 2019. The core assessment and reasoning is found in §§5-14:

(1)  The Applicant did not apply to come to Hong Kong until he was one month short of 18 years old.

(2)  The Applicant was born in Pakistan and had all along maintained his ordinary residence in Pakistan, and continued to study there. On the other hand, the Father, the Mother and most of the other children had maintained their ordinary residence in Hong Kong.

(3)  Over such a long span of time, there was no report of any dependency need prior to the application in 2019. Nor did the Father explain how such a dependency need had emerged over time.

(4)  In Bhupendra Pun v Director of Immigration, HCAL 1541/2001, it was considered not irrational that the older the children have become, the less dependent they become on the parents, or more independent of themselves.

(5)  In the absence of “any instigation or compelling imperative” to indicate a departure from the previous position, the alleged emergence of a dependency need when the Son was one month short of 18 does not sound logical. The Son had maintained his ordinary residence in Pakistan in the many years before that without indicating any problem arising from such a dependency need.

(6)  It is noted that when the circumstances show any compelling emotive imperative or that the applicant would be unable to manage, maintain or care for himself, these would be a significant guide or factors for consideration, citing Khan Karmran v Director of Immigration, HCAL 48/2005. But there is a lack of evidence of such factors in the circumstances of this case.

(7)  The photos, communication records and remittance proofs submitted may support a familial relationship in which the Father and Son have maintained contact, communication and that the Son had been receiving financial support from the Father. Yet, those items are not crucial or determinative in showing that there was a genuine dependency need.

16.In passing, it can be noted that the 2^nd Minute further recorded (at §8) the fact that an application had also been made (but which was still under processing) for a dependent visa for the Applicant’s second child, also less than one month before his 18^th birthday.

E.  The Director’s Dependant Visa Policy

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

18.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:

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

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.

19.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 genuinely 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) at §§9-13 and 27; BI v Director of Immigration [2016] 2 HKLRD 520, at §§55-66 and 70-73.

20.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.

21.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.

F.  Preliminary Issue on Delay

22.Before delving into the proposed grounds of review, it is convenient to deal first with the preliminary issue on delay.

23.The 1^st Decision was made on 25 January 2022, and the 2^nd Decision on 8 August 2022. The Form 86 was filed on 7 November 2022. On its face, the challenge to the 2^nd Decision is not out of time, but the challenge to the 1^st Decision is out of time

24.Ms Lee, on behalf of the Director, submitted that the application was made more than 6 months out of time from the 1^st Decision and no good reasons were provided to justify the delay. The Applicant should not be allowed to get around the statutory time limit by asking for the reconsideration of the original decision. She submitted that, as shown in the 2^nd Decision, the requested reconsideration did not serve to form any fresh ground.

25.It is settled that the Court will not permit an application to resurrect an old decision simply by asking the decision maker to reconsider the application and thereby bring himself artificially within time: see, for example, Nisa Azizan v Director of Immigration (unreported, HCAL 203/2015, 15 April 2016), at §§33-34.

26.But, in the instant case, I am satisfied that the request for reconsideration was not merely an artificial device to extend the time limit, and that the 2^nd Decision was not merely a confirmation of the 1^st Decision:

(1)  As set out above, the letter requesting reconsideration dated 6 June 2022 did provide some new information and evidence in light of what was said in the 1^st Decision and the 1^st Minute.

(2)  The 2^nd Decision is a substantive decision in its own right rather than a mere confirmation of the 1^st Decision. This is evident from the difference in reasoning between the two minutes.

(3)  The tenor of the 1^st Minute is that the little time the Father and Son spent physically together in the past 10 years (i.e. 5 months), the infrequent communication records and the paucity of photos taken failed to show that there was a genuine relationship of physical and emotional dependency between the Father and the Son.

(4)  The tenor of the 2^nd Minute is that the Son had all along been living in Pakistan, away from the Father, in the 18 years before he applied for a dependant visa, without indicating any problem arising from his dependency need on the Father. In the absence of compelling explanation, the Director was not satisfied that such a need would suddenly arise when the Son would soon come of age. The remittance records, photos and communication records are insufficient to show such a dependency need in the context.

27.So I do not see the 2^nd Decision as extending time to challenge the 1^st Decision. In any event, if an argument could only succeed against the 1^st Decision but not the 2^nd Decision, it does not assist the Applicant. That would suggest that any public law error committed in the 1^st Decision had already been remedied in the 2^nd Decision. In my view, the 1^st Decision forms the background to the 2^nd Decision, and has been subsumed into and superseded by the 2^nd Decision.

28.Therefore, the 2^nd Decision is a separate challengeable decision (not merely confirmatory of the 1^st Decision) and the challenge is brought in time. But the challenge to the 1^st Decision is out of time, and it might be said that the Applicant pursued an alternative remedy by seeking reconsideration rather than mounting a judicial review challenge.

29.I will now turn to the three proposed grounds of review advanced by Ms Lok.

G.  Ground 1: misdirection/misapplication of policy

30.This ground is directed at the 1^st Decision. As said, the challenge is out of time. But, in any event, I do not think Ground 1 is reasonably arguable.

31.Ms Lok said the Director had misdirected himself about the dependant visa policy and had misapplied it. Ms Lok referred to what is said in the 1^st Decision letter that:

we are not satisfied that applicant is a genuine dependant of you, who is physically and emotionally depends on you.

32.Ms Lok submitted that in considering whether a genuine relationship of dependency exists, the Director should take into account and balance all the circumstances and available evidence. Yet, she said, the Director had emphasized “physical and emotional dependency” and had lost sight of balancing all the available evidence.

33.In short, whilst framed as a misdirection or misapplication of the policy, Ms Lok’s argument is that the Director has put too much weight on physical and emotional dependency – though the Form 86 accepts that the Director’s wide discretion permits taking into account physical and emotional dependency when assessing the circumstances of the case.

34.Ms Lok referred to Leung Kam Yung Ivy v Commissioner for Television and Entertainment Licensing [20001] 2 HKC 555, where Seagroatt J referred to the extreme importance of not importing words, emphasis or other than natural meaning to terms used in policy statements and guidance.

35.Ground 1 is misconceived. The reference to “physical and emotional dependency” is but an attempt to illustrate aspects of the natural and ordinary meaning of “dependency”, which is permitted. There could no doubt be aspects in a dependency relationship other than “physical” and “emotional”, such as financial dependency, on which I understood Ms Lok as placing some emphasis. But I am not persuaded that the Applicant has managed to overcome the high hurdle as might permit this Court to interfere in how the Director gave weight to different considerations. Indeed, where dependency describes a state of reliance, it is difficult to see why the facts in this case did not permit the Director to form the view that there was in fact no material dependency.

H.  Ground 2: Errors of law

36.Ms Lok submitted that the Director made two errors of law in the 2^nd Decision.

37.The first suggested error lies in the Director’s reliance on the Bhupendra Pun case. As I understand it, Ms Lok said it would be wrong to think of Bhupendra Pun as laying down a general principle that as a child grows older, it could be expected that he or she would become less dependent on the parents or more independent himself or herself. Ms Lok submitted that what was said in Bhupendra Pun was that if the primary purpose of the defendant was to take up work, then he or she would not be found to be a dependant.

38.Ms Lok said that the Director failed to take into consideration that the Son was a full time student at the material time and did not intend to take up work in Hong Kong. The added emphasis on the Son’s age was, she said, clearly an error in law and/or misapplication of law.

39.I disagree. As I recently stated in Hamid Mahmood v Director of Immigration [2022] HKCFI 202 at §29, the principle identified in the Bhupendra Pun case is intuitive and well-recognised. It is indeed self-evident that the younger an applicant the more likely that applicant will be found to be a genuine dependant, whereas the older the applicant the more unlikely he or she will be found to be so. That is only to identify matters of generality, though it will always be necessary to conduct weighing exercise in the context of any particular case.

40.Therefore, it appears to me, though framed as an error of law, Ms Lok’s real argument is that the Director has given too much weight to the Son’s age and too little weight to his being a full time student and that he had no intention to work in Hong Kong.

41.Age is clearly a relevant consideration and the Director did not misunderstand or misapply Bhupendra Pun in taking the Son’s age into consideration. Nor did the Director refuse to engage further into the assessment simply because the Son was one month short of 18.

42.If Ms Lok’s real complaint is that too much emphasis or weight was given to age, I am not satisfied that the Director’s assessment in respect of the Son’s age was so irrational as to warrant this Court’s possible intervention by way of judicial review.

43.The second error of law is said to be found in the Director’s application of the Khan Karmran case. Ms Lok referred to §12 of the 2^nd Minute, which says:

As per court judgment [HCAL 48/2005 Kahn Kamran vs DOI], whether the case circumstances show any compelling emotive imperative or the applicant will be unable to manage to maintain or care himself is of significant guide and factor to the material consideration of the dependency contexts.

44.As I understand it, Ms Lok said it is wrong for the Director to elevate emotional dependency to the status of “significant guide and factor to material consideration”. She referred to Gurung Pratimaya [2020] HKCFI 102, in which the Court said that 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. I think the point Ms Lok tried to make is that emotional dependency is in and of itself not very important or at least not essential to the finding of dependency.

45.But I do not agree that the Director has misapplied Khan Karmran when the 2^nd Minute is properly construed. The Director did not only refer to “emotive imperative” – which I read as simply a reference to real emotional need – but also to any evidence that “the applicant will be unable to manage to maintain or care himself”. It is not wrong to say that these are important factors to be considered.

46.In the next paragraph, §13, the Director also said “there lacks evidence, thus factuality to suggest how the applicant’s circumstances in Pakistan had any of the said elements for material consideration of their averred dependency need on the sponsor”. Plainly, the Director considered that there was insufficient evidence showing there was any great emotional dependency or that the Son would otherwise be unable to manage, maintain or care for himself.

47.The Director did not elevate emotional dependency to a level which is irrational in the public law sense. Nor did the Director simply reject the application on the lack of emotional dependency.

48.Ground 2 is not reasonably arguable.

I.  Ground 3: irrationality or failing to take into account relevant consideration

49.Ms Lok submitted that the Director’s decision is irrational or had failed to take into account the following:

(1)  The Son is the child of the Father and falls squarely within the eligibility criteria.

(2)  The Son is a student and cannot support himself without the Father’s remittance. There is no suggestion that the Son wishes to come to Hong Kong to work. The Son’s university certificate is further evidence that he had no intention to work.

(3)  It is unreasonable to use the insufficiency of chat records to find that there is no genuine dependency. The Father previously communicated with the Son using disposable calling cards which left no documented records.

(4)  It is illogical and circular to use the Father’s lack of continuous presence around the Son to suggest that there is no genuine dependency. This fails to take into account or give due regard to the fact that the Father was unable to travel frequently to Pakistan given his income.

50.This is clearly a challenge to the merits of the Director’s decision. What Ms Lok has tried to do is to offer her own assessment of the evidence before the Director.

51.Ms Lok said the Son was financially dependent on the Father since he was a student, and he intended to continue to be financially dependent on the Father upon his coming to Hong Kong. She said the paucity of communication records and the little time the Father and Son spent together should not be seen as evidence for the lack of emotional dependency or dependency generally, because these could be explained on other bases.

52.The Director assessed the evidence differently from the way suggested by Ms Lok. The Director, based on the evidence before him, was not satisfied that there was dependency of the Son on the Father in the 17 years and 11 months before the application was made, and was further of the view that there was no compelling evidence to suggest that dependency would arise all of a sudden one month before the Son’s coming of age.

53.Ground 3 is not reasonably arguable.

J.  Conclusion

54.None of the intended grounds are reasonably arguable with any realistic prospect of success. The Applicant’s application for leave to apply for judicial review is, therefore, dismissed, with no order as to costs.

Ms Jenny Lok, instructed by C.M. Chow & Co., for the applicant

Ms Heidi Lee, Senior Government Counsel, and Ms Celina Lam, Government Counsel, of the Department of Justice, for the putative respondent