Gurung Chanda v. Director of Immigration

HCAL 352/2020

[2023] HKCFI 1546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 352 OF 2020

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BETWEEN

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J U D G M E N T

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A.  Introduction

1.This case again raises the question as to the correct approach to ‘dependency’ in the context of the Director of Immigration’s policy governing the entry arrangement for persons who wish to enter Hong Kong for residence as dependants of a Hong Kong resident sponsor (“Dependant Policy”).

2.This question was also considered by me fairly recently in my decision in Marsini v Director of Immigration [2022] HKCFI 3026.  But the facts giving rise to this case predate both that decision, and the facts giving rise to that case.

3.In this case, the Applicant is a Nepalese female (albeit a national of India), who formerly worked as a foreign domestic helper (“FDH”)  in Hong Kong.  The sponsor of her dependant visa application (“Application”)  was her husband (“Mr Rai”), a Hong Kong permanent resident whom she married on 6 July 2017.

4.The Application was refused by the Director on 28 May 2019 (“Decision”).  The basis of refusal was that the Director was not satisfied that the matrimonial relationship between the Applicant and the Sponsor was genuine.

5.The Form 86 – seeking to challenge the Decision – was filed by the Applicant on 7 February 2020, supported by her affirmation.  On 18 August 2021, the Applicant wrote to the Registrar of the High Court asking to know the progress of the proceedings.

6.By that date, I had recently taken over as Judge in charge of the List, and the matter was eventually brought to my attention. On 4 October 2021, I gave directions for an initial response from the Director and a reply from the Applicant.  After having considered the papers, including the initial response and reply, on 21 February 2022 I granted leave to apply for judicial review.  Following the filing of further evidence, the substantive application was heard by me on 7 June 2023.

7.At the hearing, the Applicant was represented by Mr Azan Marwah of Counsel, and the Director by Ms Joycelyn Ho, Senior Government Counsel (Ag.).  At the conclusion of the hearing, I reserved my decision to be handed down later.

8.This is my Judgment.

B.  Background

9.The Applicant is a Nepalese woman, born in India in 1985.  She first entered Hong Kong on 2 April 2014 on a FDH visa, and was granted permission to remain until 2 April 2016.  After two further extensions, the FDH visa was valid until 2 April 2020.

10.On 9 April 2015, the Applicant married her first husband, a Hong Kong permanent resident.  However, that marriage broke down and they were divorced by Court Order dated 2 March 2017.

11.On 15 April 2017, the Applicant was introduced by a friend to Mr Rai.  The Applicant explains in her evidence that she was introduced by her friend to Mr Rai precisely because both of them were recently divorced and looking for a better match.

12.Mr Rai is also Nepalese but was born in Hong Kong in 1968, returning in 1997 to become a permanent resident.  Mr Rai was also previously married.  There are two daughters of that previous marriage, which lasted nearly 29 years, but which was dissolved in Nepal on 16 May 2017.

13.The relationship between the Applicant and Mr Rai developed quickly, and they dated on the Applicant’s days off from her work as a FDH.  However, Mr Rai has explained in his evidence that they did not “date” as Hong Kong people do.  Rather, they were trying to see if they were compatible so that they could marry.  In their culture, a relationship like this was usually explored for the purpose of marriage, and courtships are rarely long.

14.The Applicant and Mr Rai were married on 6 July 2017, at the Tsim Sha Tsui Wedding Registry.  Due to their respective work schedules and limited language abilities, wedding planners were used by them to help with the arrangements.

15.At the time of their marriage, the Applicant and Mr Rai could not live together, because of the conditions of stay under the Applicant’s FDH visa which required her to live with her then employer. Since the end of her employment as a FDH, the Applicant has lived with Mr Rai in their matrimonial home.

16.Two previous applications were made by the Applicant for change of status to take up residence in Hong Kong as the dependant of Mr Rai.  The first application was made on 6 July 2017, and refused by the Director on 15 March 2018.  The second application was made on 9 May 2018, and refused by the Director on 24 August 2018.

17.Therefore, the Application which led to the Decision the subject of complaint in these proceedings was the third such application for change of status.  As already stated, the Application was made on 29 November 2018.  The Immigration Officer assigned to handle the Application was a Ms Chan, who has filed evidence for the purposes of these proceedings.

18.By letter dated 28 December 2018, the Director sought further information and documents from the Applicant in support of the Application.  Amongst the information/documents sought – much of which went to the financial position of Mr Rai as sponsor – was the following:

•  Written account of course of acquaintance between sponsor and applicant (i.e. How and when did applicant and sponsor come to know each other?  When did they start a relationship?  Location of dating?)  (Signature is required from sponsor and applicant)

•  Marriage photos, family photos and daily photos taken by applicant and sponsor (Printout with information of date and locations of photos taken)

19.A response was sought by 11 January 2019. I note that the letter stated that a personal interview was “not necessary at this stage”.

20.The Applicant and Mr Rai responded within the deadline, by their letter dated 11 January 2019.  It enclosed the various documents and information sought, as listed in the letter (albeit that a copy credit report was erroneously not attached, and was provided later). They provided 16 photographs from various times during their relationship, both before and after the marriage, showing different places the wedding party and registration, some with friends, but most just the couple.  They also provided a brief explanation of their introduction and relationship until marriage.

21.Importantly for the purposes of the argument in this case, the letter of 11 January 2019 also enclosed a series of ‘Viber’ messages exchanged between the Applicant and Mr Rai, covering the period between April and December 2018.  The exchanges were in the Nepal language, but the document also identifies voice calls, and the sending of photos and images.  In her evidence filed for these proceedings, the applicant has provided a translation of the Nepali messages.  I also think it fair to say that, even from materials provided in relation to earlier applications, that the Director (or his officers)  were aware that some data communication between the Applicant and Mr Rai was conducted using Viber messages and calls.

22.A few further documents were also sought by Ms Chan and were later provided.

23.In her evidence, Ms Chan explained that after perusing the various supporting documents provided by the Applicant and Mr Rai, she doubted the genuineness of the matrimonial relationship between them.  Her doubt arose from the following reasons:

(1)  There were only 16 photographs submitted, and the vast majority of photos showed only the Applicant and Mr Rai.

(2)  The description of the acquaintance between the Applicant and Mr Rai was general.

(3)  Prior to the marriage, there was only a short period of relationship between the Applicant and Mr Rai.  They first met on 15 April 2017 and married on 6 July 2017.

(4)  The documents submitted were unable to show the degree of intimacy between the Applicant and Mr Rai.

(5)  The documents submitted did not satisfactorily show that there was common social network between the Applicant and Mr Rai.

(6)  The documents submitted show that both the Applicant and Mr Rai were divorced persons.  The duration of their divorce date of the respective prior marriage (respectively to March 2017 and 16 May 2017)  and their marriage date (6 July 2017)  was short.

24.Ms Chan decided that a separated interview should be conducted “to ascertain the genuineness of their relationship”.  The interview took place on 21 May 2019 (“Interview”).

25.The separate interviews sought to assess the matrimonial relationship between the Applicant and the Husband.  It was the perceived doubt as to a genuine matrimonial relationship that led to the Interview, and later Ms Chan’s being not satisfied that the matrimonial relationship between the Applicant and Mr Rai was genuine, which led to the recommendation of refusal of the visa.

26.In the evidence of the Chief Immigration Officer, a Mr Wong, who filed an affirmation for these proceedings, the following points were made about the use of separated interviews:

(1)  Separated interview is a tool sometimes used by the case officer (who is in the rank of at least immigration officer)  to establish the genuineness of the matrimonial relationship between the sponsor and the applicant for a dependant visa.

(2)  As provided in §5 of the Guidebook, an application for admission for a dependant may be favourably considered if, among others, there is a reasonable proof of genuine relationship between the applicant and the sponsor.

(3)  Therefore, in a dependant visa application based on a matrimonial relationship, a case officer has to determine whether the relationship was genuine.

(4)  That does not mean a separated interview is carried out in every application in which matrimonial relationship is relied on.

(5)  In deciding whether separated interview is required, a basket of factors, including but not limited to the marriage history, length of relationship, the degree of intimacy reflected in the submitted documents, and the proof of common social network between the applicant and the sponsor, would be considered.

(6)  Each of the couple will be interviewed separately, but asked the same set of questions to see if they could give consistent answers to the same questions.

(7)  The questions are designed by the case officer on a case-by-case basis, endorsed by his/her immediate supervisor.

(8)  It is not intended as a memory test.  Rather, the questions are those to which a couple in a genuine matrimonial relationship are expected to give consistent answers.

27.Prior to the Interview, Ms Chan had prepared a list of questions to be separately put to the Applicant and Mr Rai, surrounding the development of relationship, marriage arrangement, daily living routine, and employment and family background.  As Ms Chan has also explained in evidence, the questions were supposed to be able to be answered consistently for a couple in a genuine matrimonial relationship.  She also stated that it was not intended to be a memory test.

28.A Nepali interpreter was arranged and was present to assist the Applicant and Mr Rai during the Interview.  This was in recognition that neither of them spoke sufficiently good English or Cantonese.  Before it began, both the Applicant and Mr Rai signed an acknowledgement in the following terms:

I understand that in order to assess the matrimonial relationship between me and my husband/wife, we shall be interviewed separately.  I know that I have to answer every one of the following questions carefully as any discrepancy in my answers may affect my/my spouse’s application for residence in HK.

29.After conclusion of the interview, Ms Chan prepared a report (“Interview Report”)  to summarise the answers given at the Interview.  If any contemporaneous notes were made during the interview, they have not been disclosed.  The Interview Report identified whether Ms Chan thought the answers provided by the Applicant and Mr Rai were “Matched”, “Partly [matched]” or “Unmatched / Others (see remarks)”.  A column headed “Remarks” set out Ms Chan’s summary of responses and emphasised areas of apparent difference between the responses.

30.As explained in her evidence, Ms Chan considered that there were major discrepancies between the statements provided by the Applicant and Mr Rai regarding the development of relationship, their daily living after marriage such as gifts for each other when celebrating their recent birthday, knowledge on the last overseas trip of Mr Rai, knowledge on the frequency of Mr Rai meeting his daughters and whether Mr Rai had met with the Applicant’s employer or not.  Ms Chan also considered there to be a stark difference as regard the number of attendance of their marriage, their whereabouts after the wedding lunch party and the name of the witness.

31.It can conveniently be noted at this juncture that, in her and Mr Rai’s reply evidence, the Applicant and Mr Rai have sought to explain either why their answers in fact did match, or why any difference was minor and of little importance to the relevant consideration. In his submissions, Mr Marwah also sought to identify why some answers might have been misunderstood, or taken out of appropriate context, or why the perceived lack of matching was mistaken or of minimal importance.  As he put it, the alleged discrepancies are trivial and/or readily explicable.

32.It is unnecessary at this stage to consider those offered explanations, except to state that some of the stated discrepancies were probably both minor and readily explicable.  A clear example would be as regards the difference of the name in the marriage witness, where it seems that both parties identified a person with the same first name but one gave her maiden name and the other her married name (which might have been readily clarified without weakening the intended testing of “genuineness”).

33.In any event, after considering all of the materials as well as the matters elicited from the interview, Ms Chan prepared a memorandum or report to her supervisor, recommending that the Application should be refused.

34.The memorandum referred to the background of the two previous applications for change of status, the first of which was apparently refused due to the fact that the genuineness of the matrimonial relationship could not be satisfied, and the second because of dissatisfaction on the financial pre-requisite of Mr Rai as sponsor.

35.The part of the memorandum under the heading “Matrimonial Relationship” reads as follows:

3.  During current application, applicant applied for change of status to join Sp(H)  as dependant wife by virtue of their marriage solemnized in HK on 06-07-2017 at encl. (15).  A written account on acquaintance and some marriage/daily photos were submitted at (5)  and (18),

4.  A separate interview was conducted at ES Office on 21-05-2019.  The interview was conducted in Nepali in the presence of a certified interpreter with Applicant and Sp(H).  The statements of Applicant and Sp(H)  were summarised at encl. (24). To highlight, there were major discrepancies between the statements provided by the Applicant and Sp(H)  regarding development of relationship and their daily living, etc.

36.The memorandum then set out the financial standing of Mr Rai, which does not appear to have been regarded as problematic in the context of the Application.  Then, the “Consideration and Recommendation” offered by Ms Chan in the memorandum was as follows (emphasis in original):

8.  After considering all the available information and circumstances as stated above, on balance, it is not satisfied that the matrimonial relationship between Applicant and Sp(H)  is genuine.  I recommend refusing the current C/S (DH-DE)  application.  The draft refusal letter is attached at float for your perusal.

37.Ms Chan’s recommendation was accepted, and the Decision to refuse the dependant visa was communicated to the Applicant by letter of 28 May 2019.  The letter identified the eligibility criteria of the Dependant Policy (see below), and informed the Applicant that having carefully considered all the available information and circumstances of her case, the Director was not satisfied that eligibility criteria are met. However, unhelpfully, the letter did not inform the Applicant which criterion or criteria had not been met (though that is, of course, now clear).

38.The Applicant’s limit of stay as FDH expired on 2 April 2020.  On 12 February 2020, a removal order was made against her, and an appeal against that removal order was dismissed by the Immigration Tribunal on 14 April 2020.  The Applicant remains in Hong Kong on recognizance.

39.During the currency of these proceedings, the Applicant has on 20 August 2021 submitted a fresh application for entry for residence as the dependant of Mr Rai in Hong Kong.  This (fourth)  application remains under processing.

C.  Grounds of Review

40.It is fair to point out that in the original Form 86 identified at best rather brief intended grounds for an application for judicial review.  In her Form 86A, the Applicant (then still unrepresented)  sought an order to quash the Decision on the basis that the Decision was unfair and unreasonable, unfair in law, irrational, contrary to principles of natural justice, and tainted with procedural impropriety.  No formal amendment has been made (or sought to be made)  to the Form 86/Form 86A, but the affirmation filed by the Applicant and Mr Rai after the grant of Legal Aid sets out further arguments also supported by a document entitled ‘Additional Grounds on which Relief is Sought’, settled by Mr Marwah and which essentially identify the arguments pursued in his skeleton argument and in oral submissions at the hearing.

41.Whilst noting an earlier apparent failure to identify proper grounds of review, and whilst formally registering opposition to any application for amendment, Ms Ho did not take significant issue with the argument proceeding on the basis of the materials now available.  In the circumstances, I think it appropriate to do so.

42.Mr Marwah identified three grounds of review, which were addressed in turn by Ms Ho, being:

(1)  The Director misapplied, or misconstrued, the Dependant Policy in construing the requirement of showing a genuine relationship (“Policy Ground”).

(2)  The Decision was Wednesbury unreasonable (“Wednesbury Ground”).

(3)  The Decision is tainted by procedural impropriety and unfairness (“Unfairness Ground”).

43.At the oral hearing, Mr Marwah focused on the Wednesbury Ground, albeit that he did so – understandably against the context of what he asserted was the proper way to apply or construe the Dependant Policy.

44.It is, therefore, convenient to focus on the Wednesbury Ground.  But I likewise think it is right to view that Ground against the correct approach to the Dependant Policy, which I shall address in the context of the Policy Ground.  When considering the Wednesbury Ground, it is also appropriate not to stray too far into any criticisms amounting to procedural impropriety, which is a separate ground of review.

D.  The Policy Ground

45.By this Ground, it is argued that the Director has misconstrued or misapplied the requirement of showing a genuine relationship.  It is necessary, therefore, to consider what the Dependant Policy is and what it means.

46.The Dependant Policy is to be found in the “Guidebook for Entry for Residence as Dependants in Hong Kong” published by the Director.  Relevant for present purposes are the following paragraphs:

4.  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)  (i)  his/her spouse; or

(ii)  the other party to a same-sex civil partnership, same-sex civil union, “same-sex marriage”, opposite-six civil partnership or opposite-sex civil union entered into by him/her in accordance with the local law in force of the place of celebration and with such status being legally and officially recognised by the local authorities of the place of celebration; and

(b)  his/her unmarried dependent 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.

47.In relation to the Director’s exercise of discretion under the Dependant Policy, the following principles are well established: see, by way of example only, Rai Rajendra Kumar v Director of Immigration [2019] HKCFI 2579 at §21, to which I also referred in the Marsini case at §43; and BI v Director of Immigration [2016] 2 HKLRD 520 at §74.

48.In my summary of the principles – and with particular focus on marriage as being the relevant relationship giving rise to the dependency:

(1)  It is well settled that there is a highly restrictive and stringent immigration control policy applied overall in Hong Kong.

(2)  The purpose of the Dependent Policy is to allow recognised categories of close family members to come to or remain in Hong Kong when they require the care and financial support of their sponsors in Hong Kong.

(3)  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.

(4)  But it is not a policy of family union.

(5)  “Dependency” is an essential element of the policy.

(6)  “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.

(7)  This is sometimes shortened to the concept that the dependant person (applicant)  is “financially and emotionally dependent” on the other person (sponsor).

(8)  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.

(9)  Where the dependency relationship is based upon a marriage, marriage can be proved objectively and with ease, such as by producing a marriage certificate.

(10)  But there nevertheless remains as a condition of eligibility being “reasonable proof of a genuine relationship between the applicant and the sponsor”, not least where ‘bogus’ marriages may be a practical concern.

(11)  Therefore, for example, an applicant can lawfully be refused a dependent visa where the applicant’s primary purpose was not to join their spouse as a genuine dependent, but instead to come to (or perhaps remain in)  Hong Kong as an economic migrant.

(12)  Therefore, the requirement for reasonable proof of a genuine relationship is to ascertain whether the applicant for the dependent visa is genuinely dependent on the sponsor, and has not applied because of some ulterior primary purpose.

49.I have summarized the discretionary principles in the context of a dependant visa application where marriage is the relevant relationship giving rise to the dependency, not just because that is the situation giving rise to this case.  It is also because I think it can be recognised that that kind of genuine relationship of dependency might require a more nuanced assessment than, say, in the context of a parent-child relationship.

50.On the facts of this case, it is clear that the Director decided that Applicant has failed to meet the “genuine dependency relationship” criterion because the Director was not satisfied that there was a “genuine matrimonial relationship”.  However, crucial as it was to the decision making process, the Director has not made clear what the term “genuine matrimonial relationship” means, and I do not think the term is self-explanatory. 

51.As I pointed out in the Marsini case, on its face, the language of “genuine matrimonial relationship” is not a direct match for any of the eligibility criteria of the Dependant Policy.  Whilst §4 of the Guidebook refers to “spouse”, §5(a)  refers to “genuine relationship”. But I do not think either criterion simply translates to “genuine matrimonial relationship” in the sense as perhaps used by the Director.

52.Of course, it is not the Director’s case that Mr Rai was not the spouse of the Applicant within the meaning of §4.  In law, marriage is a legal status, capable of being obtained by a valid registration under the law, and there is no such thing as a non-genuine spousal relationship.  But, it was the eligibility criterion in §5(a)  – namely that there is reasonable proof of a genuine relationship between the Applicant as applicant and Mr Rai as sponsor – which the Applicant is said to have failed to have met.

53.It does not appear to me that the Director equates genuine matrimonial relationship with the lack of ulterior purpose for seeking the dependency visa.  This is because the Director has not alleged any ulterior purpose, and yet has rejected the genuineness of the matrimonial relationship.  Further, in her evidence, Ms Chan specifically noted that she had not alleged any conspiracy between the Applicant and Mr Rai to have a false marriage.  There is really no suggestion in this case that the marriage was somehow a “sham”.

54.Nor does the Director seem to equate genuine matrimonial relationship with financial dependency.  This is because the Director apparently has not taken issue with the fact that the Applicant, who was in but has ceased employment as a FDH, now has to depend on Mr Rai or that she has in fact been financially supported by Mr Rai. 

55.Hence, it then seems to me that by “genuine matrimonial relationship”, the Director was possibly referring to the other aspects of a genuine relationship of dependency.  The remaining significant aspect referred to in the jurisprudence is what may be called “emotional dependency”.

56.But, at this point in the analysis, it may be important to sound a warning bell.  It would obviously not be correct to treat different aspects of a relationship as being independent, and to tick them off one by one in an assessment of whether there is a genuine relationship of dependency.  Rather, I think that the assessment of the genuine relationship is a unitary exercise, though it requires consideration of various likely intertwined or interlocking aspects of the relationship and the appropriate weighing of what is seen as regards those aspects, on the facts and in proper context, when reaching the ultimate conclusion.

57.In the Marsini case at §47, I suggested it is necessary to look at the three separate criteria under the Dependant Policy logically: the first is to consider whether there is a true relationship of dependency; the second is to consider whether there is anything about the applicant’s character which should preclude the grant of a visa; and the third is to consider whether the sponsor in fact has the means adequately to support the person who is said to be dependent on him/her.

58.On that basis, it seemed to me that the first criterion is looking at whether there is genuine dependency which arises from the relationship asserted.  That is why the relevant question is whether there is a genuine relationship of dependency: the applicant asserts eligibility for a dependant visa because the applicant’s dependency arises in the context of the particular relationship said to exist between the applicant and the sponsor – where that relationship can be shown to fall within those set out in §4 of the Dependant Policy.

59.For example, as in the Marsini case, so in this particular case the Applicant might say that she is obviously now financially dependent on someone else, because she has ceased her own employment and is therefore otherwise unable to support herself.  Where she can no longer depend on her own income, she must depend on someone or something else.  The question which arises on the first eligibility criterion is whether the Applicant – previously independent – has made herself genuinely dependant on Mr Rai because they are in a matrimonial relationship.  That question may involve an assessment as to whether it is actually the matrimonial relationship which has given rise to or explains the claimed dependency.

60.The ultimate question the Director has to answer is whether there was reasonable proof that the Applicant truly intended to live as Mr Rai’s dependent in Hong Kong, relying on him for maintenance, care and support.  The lack of qualities that one would usually expect from a “genuine matrimonial relationship” might be an indicator pointing to the lack of a true intention to live as the spouse’s dependant.  But the strength of such an indicator depends on the circumstances of each case.

61.Sometimes it is the financial needs which explain the marriage.  The Director would be familiar with dependent visa applications from more traditional societies where the marriage might have been arranged and a woman is practically incapable of drawing financial support other than from her husband.  In such a case, one may not see, say, the lack of romantic bonds, as a strong indicator pointing to the lack of true dependency. But, sometimes, it is the marriage which explains the dependency.  A working woman in modern society may choose to cease her employment and become a full time housewife in order to establish a family with her husband.  In this case, the lack of romantic bonds would lead to the natural query as to why the wife would choose to make herself financially dependent on the husband in the first place.

62.So, whilst the genuineness of a spousal relationship in the layman’s sense may point towards the existence of a genuine relationship of dependency, they are different things.  Further, any assessment of qualities such as the “degree of intimacy” or “common social network” or “length of relationship” need very careful handling.  An assessment that those factors are present might support a finding of genuine relationship, but their absence does not negate a genuine relationship of dependency. 

63.But I reject the suggestion that looking at those qualities is necessarily contrary to, or a misunderstanding of, the Dependant Policy.  In the appropriate case, a consideration of those matters may go to the perceived genuineness of the matrimonial relationship itself, which is properly part of an assessment of the genuineness of the relationship of dependency.  To put it another way, there is no reason why the Director is not entitled to take into account those qualities, so long as they relate to the genuineness of the relationship of dependency in the context of and arising from the matrimonial relationship.

64.Further, each matrimonial relationship is potentially different from any other, and those factors may vary significantly depending on context.  For example, in this particular case where the Applicant was working as an FDH, which required her to work six days a week and reside with her employer, it is unlikely that the time available to be spent with Mr Rai would enable much development of a “common social network”.  Nor, perhaps, would it sensibly permit or promote any great “degree of intimacy”. It may also be important to recognise that a couple’s decision to marry is a conscious decision to enter a new type of relationship, and the degree of intimacy between a couple just before or in the early stages of the marriage may vary significantly from the degree of intimacy between them at some later stage (recognising also that intimacy may increase or decrease, or both, over time).

65.I think it can also be recognised that the degree of emotional bonding between parties – itself a nebulous concept – may be extremely difficult to assess.  Further, it is established in the authorities that genuine family affection is not of itself a form of dependency within the Dependant Policy, or else the policy will become a policy of family reunion.  But, then the question arises as to the ‘flip side’: namely, whether the lack of genuine emotional affection (where, for example, as here, financial dependency exists and ulterior purpose is not alleged)  is capable of taking out the relationship outside the genuine dependency relationship requirement.  In other words, the question is whether genuine romantic or emotional bonding is a necessary component in a finding of genuine relationship of dependency.  I think the correct answer may be negative; it is possible for a person to become dependent on another person even in the absence of great emotional affection.   That is so in different kinds of relationship, including a matrimonial relationship – and may be impacted by applicable cultural norms.

66.Therefore, from an administrative or policy perspective, it is perhaps far more sensible to leave genuineness as a requirement of the relationship of dependency, rather than (say)  to the spousal relationship.  There may be cases – though this case is not one of them – where it can be asserted with confidence that the marriage was a sham or entered into for a sham purpose, essentially simply so as to seek a dependent visa.  But, in reality, the risk of abuse is guarded against by the focus on the requirement for genuineness of the relationship of dependency.

67.Though I have canvassed the proper meaning and approach to the Dependant Policy at some length above, Mr Marwah did not argue the Policy Ground with any great vigour at the hearing – and, in consequence, it was not interested any great length by Ms Ho.  Because the focus of the challenge really became that of the Wednesbury Ground, the challenge mounted by the Policy Ground may not be determinative of this application.  But, if necessary, I would dismiss it.

E.  The Wednesbury Ground

68.As stated, this was really the focus of submissions.

69.A starting point of the relevant consideration might be that it has not been directly suggested by those handling the Application, nor by the Director in these proceedings, that the Applicant has some ulterior purpose for seeking the dependent visa.  It is obviously accepted by the Director that the Applicant is genuinely married (validly and legally married)  to Mr Rai.  It also seems to be accepted that the Applicant is economically dependent upon Mr Rai – and I note that the particular economic or financial support said to be provided by Mr Rai to the Applicant is one area where the answers given in the separated interview clearly matched.

70.It also seems from the materials disclosed in these proceedings that the Applicant provided all of the documents and information requested by the Director has being in support of her application.  When invited to give what must amount to a general description of becoming acquainted with Mr Rai, the Applicant answered the specific queries posed of her (which Mr Rai counter-signed).

71.The focus of enquiry would therefore seem logically to shift to whether or not there was emotional or other dependence of the Applicant on Mr Rai.  By using the word “shift”, I do not mean to suggest that there is some tick-box exercise being performed, looking for and ticking off separate types or elements of dependency.  Rather, I mean that, within the unitary assessment of a genuine relationship of dependency, focus can be placed on the individual elements as intertwined to identify whether the dependency genuinely exists or not within the meaning of the Dependant Policy. Financial and emotional elements of dependency are not independent, but rather inter-related elements of the overall relationship of dependency – and they might have different weights in different factual and cultural contexts.

72.With the caveat already given above, the enquiries might include an assessment of things such as the degree of intimacy between them, and/or the extent of any common social network.  Also, to an extent, the separated interview process is simply looking to establish how well the couple seem to know each other and about each other.

73.I do not think it is correct to suggest, as the Applicant has done, that her Application was rejected simply by reliance on the Interview Record.  It seems to me that Ms Chan and the Director took into account and weighed all of the various materials provided to them, including in answers at the Interview, as were subsequently reduced into the Interview Record.  I have already set out the conclusion and recommendation paragraph on the memorandum produced by Ms Chan, in which she stated that her recommendation was made after considering all the available information and circumstances as stated in the memorandum.

74.I also accept that the weight to be given to individual matters or factors is ordinarily to be decided by the decision-maker, and it is not for the Court to interfere, absent the establishing of some irrationality or Wednesbury unreasonableness.  The Director has a very broad discretion in considering what weight is to be placed on each factor in the assessment of an applicant’s dependent visa application, and establishing Wednesbury unreasonableness in such circumstances is a high hurdle to surmount.

75.But, Mr Marwah placed significant weight in his submissions on the content of the Viber messages.  It is, therefore, helpful to set out some description of the content of various messages:

(1)  A number of them are ordinary requests and chat as might be expected between dating or married couples, such as regular enquiries as to whether the other has eaten, how work is, and asking what they are doing and how they are feeling.

(2)  If the other is not feeling well, there are expressions of concern and suggestions as to how to get better.

(3)  The suggestion is that the Applicant has taken up a perhaps traditional role of spouse in cooking and cleaning for Mr Rai, when she can.

(4)  There is use of terms of endearment such as “darling” and the sending of romantic emojis.

(5)  There are arrangements as to meeting up, and frequent requests to “come home”.

(6)  There are even examples of complaints as to lack of contact such as when one asked “You forgot to speak to me?” and the other replied “No, that is not the case.  I am busy so.”

(7)  Indeed, there are other occasions of excuses as to why one could not call the other back or why “no call no SMS”.

76.I accept Mr Marwah’s submission that the instant messages between the couple appear to be organic, sustained and authentic.  Some of the messages seem to me to be almost the hallmark of a genuine relationship between the parties, including occasional expressions of disappointment and irritation.

77.However, the content of those messages were clearly not taken into account by Ms Chan in her assessment of the genuineness of the relationship between the Applicant and Mr Rai.  That is because no translation as is now available was available to Ms Chan at the time of her assessment.

78.I acknowledge that the Dependent Policy identifies that where a document is provided otherwise than in English or Chinese, a certified translation of it should be provided for the use of the Director in considering the Application.  In this case, no translation of the Viber messages was provided by the Applicant.  Nevertheless, Ms Ho informed me that the messages were taken into account as part of the overall consideration of the Application, as it was possible to see the photos sent between the Applicant and Mr Rai, and their use of emojis.  It was also possible to identify the period of the messages provided.

79.In that regard, Ms Ho seemed to place some emphasis on the timing of that period, namely the several months from (but only from)  April to December 2018.  Ms Ho noted that that period was a period of months mostly just before, albeit partly after, the making of the Application.  But Ms Ho rightly did not go any further, for example so as to suggest that the messages were themselves created falsely in support of the Application.  Nor is there any suggestion from Ms Chan in her evidence that she thought that the messages were somehow falsely created, or that some proper weight could not be placed upon them.

80.But, if Ms Chan was looking for the degree of intimacy as might exist between the Applicant and Mr Rai, surely the Viber messages’ content might be a place to look.  For the purposes of the Interview, a Nepali interpreter was made available – and that person’s skill might have been used to provide at least some translation of the messaging. This is not least when one topic of assessing the genuineness of the relationship had been to enquire about how the couple communicated with each other. Further, it seems to me potentially dangerous to have taken into account some aspects of the Viber messages – such as the dates and times, or the visible emojis – but to have ignored other aspects of the material (in fact, the majority of the material)  simply because of an inability, readily cured, to comprehend it.

81.Being mindful of the high hurdle that needs to be surmounted for the establishment of the Wednesbury Ground, nevertheless it seems to me that ground has been established.  Once the content of the instant messages is properly understood and assessed, that seems to me to provide a significantly different picture than the one seen by Ms Chan.  To put it another way, the content of the messages is significantly weightier in identifying a genuine relationship between the Applicant and Mr Rai than many of the discrepancies in the Interview report are in identifying doubts as to a genuine relationship between them.  That is particularly so in this case, where it appears to be accepted that the Applicant is financially dependent on Mr Rai, and where no ulterior motive for entering into the marriage has been asserted.

82.On the content of the materials as a whole which were available for the proper assessment of the Application, it does seem to me to have been irrational to have refused the Application on the basis that there was a failure to satisfy the Director as to the genuineness of the relationship between the Applicant and Mr Rai (in the context of the Dependent Policy, properly understood).

83.I find the Wednesbury Ground established.  That is sufficient to determine the present application for judicial review. Nevertheless, I will also briefly address the Unfairness Ground.

F.  Unfairness Ground

84.In the light of my decision in the Marsini case, Mr Marwah apparently accepted that his intended criticisms under this heading would unlikely be seen as fertile ground for review.  He was correct.  Other than as regards the failure to have sought some translation of the Viber messages, which I have dealt with under the Wednesbury Ground above, I do not think there was any procedural unfairness in the processing of the Application.

85.Though I have acknowledged the unhelpfulness in failing in the letter imparting the Decision to identify which of the eligibility criteria was said not to have been met – and where I would repeat that such letters should at least ordinarily identify the relevant criterion not met – I do not think there was any unfairness in relation to the lack of reasons as would justify the Court interfering by way of judicial review.

86.Nor do I think there was any procedural impropriety in the way in which the Interview was conducted, or (in broad terms)  how the material generated from the Interview was later weighed and balanced.

87.I agree with Ms Ho that the Director is not under a duty to assist the Applicant in advancing the Application, by tendering the contemporaneous records or any notes taken by the case officer during the Interview, or the Interview Report prepared thereafter.  There is something in the point that, if the Interview Report is tendered, it might at least weaken the purpose of the Interview in assessing the genuineness of the relevant relationship.  Indeed, the Applicant has in this case sought in her reply evidence to comment on the apparent discrepancies identified by Ms Chan, to seek to explain that they are not really discrepancies, or are only minor discrepancies, or have been the result of a misunderstanding in appropriate context.  Her Counsel has done the same in his skeleton submissions and at the hearing.  As Ms Ho states, this is the type of situation which the Director seeks to avoid – in my view, in general terms, properly – so as to prevent an applicant and a sponsor from being allowed to have a second bite of the cherry.

88.Certainly, in the light of their signed acknowledgements provided in advance of the Interview, there can have been no failure on the part of the Applicant and Mr Rai to understand the importance of the Interview and the use to which answers given by them might be put.  I also note that the Applicant and Mr Rai had previously been interviewed in connection with one of the earlier applications, and so would have been alive to the relevant points.  Lastly, Ms Ho is correct to remind that the burden of demonstrating why the Applicant should be allowed to reside in Hong Kong rests on the Applicant, and ought not to be shifted to the Director.

89.I would dismiss the Unfairness Ground.

G.  Conclusion and Result

90.In the circumstances, I quash the Decision.

91.As to costs, I see no reason why costs should not follow the event.  Therefore, the Applicant’s costs of these proceedings will be paid by the Director, to be taxed if not agreed.

92.I also direct that there should be a Legal Aid taxation of the Applicant’s own costs.

H.  Postscript

93.Though I have granted an order to quash the Decision, I do not think it appropriate after this period of time from the date of the Decision simply to send the matter back to the Director for reconsideration.  The passage of time is too great.  That seems particularly inappropriate now that there is a fourth application in process.

94.Rather, it seems to me that the appropriate course is for the Director to deal with the fourth application, but with the benefit of the views I have expressed above as to what I have found to be an irrational or Wednesbury unreasonable refusal of the Application leading to the Decision giving rise to the challenge in these proceedings.  Perhaps amongst the materials available to the Director in considering the fourth application will be the materials generated by these proceedings, as well as other matters relating to events and circumstances since the commencement of these proceedings.  To put it shortly, time has moved on, and the Director will no doubt focus on the apparent current situation in light of all the available materials.

Mr Azan Marwah, instructed by the Edwin So & Co., for the applicant

Ms Joycelyn Ho, Senior Government Counsel (Ag.), of the Department of Justice, for the respondent