Read the full judgment text of HCAL 000007/2000 on BabelCite. This High Court CFI judgment was delivered on 18 January 2000 before Stock J.
Immigration law – judicial review – leave to apply – family reunion – dependant visa – Hong Kong permanent resident sponsoring non-resident spouse – policy requiring sponsor's financial capability – challenge under Articles 25, 36, 37 and 39 of the Basic Law – wife born in Hong Kong 1961, returned to Nepal 1963, regained permanent resident status 1998, sponsored Nepalese husband as dependant – husband has no right to enter or remain in Hong Kong – wife's earnings between HK$4,200 and HK$7,200 per month with approximately HK$1,635 remaining after rent and expenses – whether immigration policy discriminating between income brackets violates Article 25 equality – held: no merit – clear objective justification in preventing dependants from becoming burden on state resources or unfairly taking jobs from permanent residents – whether Article 36 social welfare right entitles sponsor to rely on welfare benefits to support dependant – held: illogical – admission on that footing would make applicant a dependant of the state not the sponsor – whether Article 37 freedom of marriage and right to raise family requires admission of spouse as of right – held: no – Article 37 does not stand alone and cannot prevent statutory restrictions on the rights it protects (per Oriental Press Group on Article 27) – section 11 of the Bill of Rights Ordinance expressly preserves immigration legislation governing entry of persons without right to enter or remain – whether Director's factual finding on wife's financial capability was unsupported by evidence or perverse – held: not perverse – applicant bears burden of bringing himself within the policy – factual determinations within the Director's very wide discretion and to be left to him unless obviously perverse (per Puhlhofer) – whether failure to consider husband's earning potential was an error – held: dependancy must be established first and cannot be shown by reference to potential uncertain employment – whether requirement of standard of living well above subsistence level is an unreasonable fetter on discretion – held: not unreasonable – application has no ultimate chance of success – leave to apply for judicial review refused in both HCAL 134/1999 and HCAL 7/2000.
Legal issues: Validity of dependant-visa income policy under Basic Law Articles 25, 36, 37 and 39 · Whether Director's financial-capability finding was perverse or unsupported by evidence · Reasonableness of requiring standard of living well above subsistence
Outcome: Leave to apply for judicial review refused in both HCAL 134/1999 and HCAL 7/2000.
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