Geoffrey Hugh Alphonso and Another v. The Director of Immigration

HCAL000126/1999

HCAL 126/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO.126 OF 1999

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Coram : Hon Stock J in Court

Date of Hearing : 16 December 1999

Date of Judgment : 16 December 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of the decisions of the Director of Immigration whereby he rejected the application by these two applicants for dependant visas. I do not intend, for the purpose of this very short judgment, to state the background.

2. The application is opposed. There was little in the original grounds and I was not prepared to grant leave on the papers on those grounds. Application had been made to amend the application for leave, and leave to amend is given.

3. The test, at this stage, is whether material before me discloses matter which might on further consideration demonstrate an arguable case for the grant of relief.

4. The challenge in this case is to a determination of facts by the Director, and where determination of facts are left to governmental bodies, it is the duty of the court to leave those decisions to various bodies unless it is obvious that the public body is acting perversely. So unless there is material which suggests that that might be arguable, then leave should not be granted.

5. It may very well be in this case that it will be shown that it was not perverse for the Director not to be satisfied of the intended purposes of the applicants in coming to Hong Kong. But I am concerned at this stage with the test which I have stipulated.

6. In this case, I have studied since this morning's break the lengthy evidence filed by the Director. I note that it is said there was no proof that the applicants were really the dependants of the sponsor step-father because it is not shown that such funds as had previously been sent had been sent from his account or from a joint account. In the case of a husband and wife, it might be argued that that is a narrow and unreasonable view to take, though on its own, it is unlikely to get the applicants very far.

7. Secondly, it said in those affirmations that there was no evidence to show that the applicants wish to pursue computer studies because there was no document from any college. It might be argued that where there is a question which asks about future plans, it does not need to carry with it something as concrete as an offer from a college. If there were a live and actual offer, then no doubt the Director would then say that a particular permission of a different kind to come to Hong Kong was needed.

8. The Director is disturbed about reference to the youngsters learning a trade. But this is in answer to a specific question which they were required to answer, and it might be argued (and I put it no higher than that) that having already asserted that one wants to come to join family as dependants, to state then that one wants to learn a trade and do missionary work is not necessarily to say that that is the main reason for coming. It was said there is no explanation of the suggestion they want to learn a trade. One does not know, if this is what bothered the Director, whether they were ever asked.

9. It is then said in the affirmations that they were living in Sri Lanka without their mother for some years, and that apparently is suggested in order to cast doubt on the need now to depend upon her. Yet I note that the other sister, Michelle, had been in precisely the same position and it was accepted for some reason that she was a dependant.

10. It is said in the latest affirmations that there were a number of inconsistencies. But I note that some of the inconsistencies relied upon arise from evidence filed after the decision which is under challenge.

11. There appears to be some reliance placed on the fact that the young man Geoffrey has had a job in Sri Lanka. But be that as it may, each applicant must be treated separately, and there is no suggestion that the twin sister had a job.

12. I think there is enough there to pass the threshold. Accordingly, I should give the applicants leave to apply for judicial review of the decisions of the Director of 20 September and of 4 October 1999, for an order of certiorari to bring up and quash those decisions.

Representation:

Mr Paul Harris, instructed by Messrs Massie & Clement, for the Applicants

Miss Hudson of Department of Justice, for the Respondent