Krishna Rai and Another v. Director of Immigration

HCAL 145/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 145 OF 1999

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Coram: Hon Yeung J in Court

Date of Hearing: 15 February 2000

Date of Judgment: 15 February 2000

Date of Handing Down Reasons for Judgment: 25 February 2000

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REASONS FOR JUDGMENT

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1. On 15 February 2000, I dismissed the applicants' application to judicially review the decision of the Director of Immigration (the Director) who refused to allow the 1st applicant to take up residence in Hong Kong as a dependant of the 2nd applicant. I indicated that I would give my reasons in writing and this I now do.

2. The applicants, both Nepali nationals, are husband and wife with no children.

3. The 2nd applicant (the wife) was born in Hong Kong in 1980 to a Gurkha soldier who was then serving in Hong Kong with the British Army. She returned to Hong Kong in January 1997 and established her right to permanent residence 4 months later.

4. In September 1998, the wife took up residence in Hong Kong. One month later in October 1998, the 1st applicant (the husband) arrived in Hong Kong as a visitor. Two days after his arrival, the husband applied to change his status as a dependant of the wife.

5. The application was rejected by the Director in May 1999 as the Director was of the view that the wife could not support the husband in Hong Kong.

6. The husband renewed his application in November 1999. The application was again refused as the Director was not satisfied that the husband intended to join the wife as a dependant. Indeed the director was of the view that his primary aim was to get a job or participate in a business in Hong Kong.

7. Leave was originally sought to challenge both decisions of the Director reached in May and November 1999. Leave was granted by Stock J to challenge the November decision only. The applicants seek to renew the application in respect of the May decision on different grounds.

8. In support of the present application, Mr Harris for the applicants raised a number of matters.

9. Firstly it was suggested that the November decision was based on a different reason from that of the May decision and the applicants had not been given any opportunity to make representation about it. In the circumstances, what the Director did constitute a breach of natural justice.

10. Secondly, it was suggested that the reasons given by the Director for the May decision were inadequate.

11. Thirdly and as a further ground arising from the evidence filed on behalf of the Director, the applicant contended that the Director's decision was Wednesbury unreasonable when he concluded that the husband's primary purpose was to seek employment based on the husband's answer in the application when the husband stated that he intended to "earn some money and do something in Hong Kong for my family and live happy life.".

12. The suggestion was that when a person of working age expressed a wish to work, it did not mean working was his primary purpose and being united with a spouse was merely ancillary.

13. The applicants suggested that given the opportunity to make additional representations, they would have relied on the further matter set out in an affirmation dated 10 February 2000.

14. In the affirmation, it was deposed that the applicants' marriage was a traditional arranged marriage without the involvement of the husband. Hence if the wife wished to live in Hong Kong, the husband had no choice but to join her. The situation thus was completely different from one involving a man who knowingly entered into a marriage with a view to gain residence rights in another country, so Mr Harris argued.

15. Mr Harris also relied in Article 37 of the Basic Law which gives Hong Kong residents the right to marry and form a family.

16. The suggestion was that the refusal to allow the husband to join the wife would deprive the husband the right to a married life in the wife's "own country" and could have the effect of forcing the wife to either leave Hong Kong or to forgo a married life.

17. With respect, Mr Harris's arguments had been raised in a number of cases in the Courts of Hong Kong and they had all been firmly and squarely rejected.

18. I need not repeat in detail the often cited cases decided both locally and aboard such as Schmidt and another v Secretary of State for Home Affairs [1969] 2 Ch 149. R v Director of Immigration, ex parte Chan Heung Mui [1993] 3 HK PLR 533. Ho Ming Sai & others v Director of Immigration [1994] 1 HKLR 21 except that the approaches in those cases had been confirmed to be correct by the Court of Final Appeal in Lau Kong Yung & others v Director of Immigration [1999] 3 HKLRD 778.

19. It is well established that the discretion to allow a change of status to enable a visitor to stay in Hong Kong is purely an administrative decision. It is entirely a matter for the Director to decide how the discretion should be exercised and that the Courts will not assume any supervisory jurisdiction, not those in accordance with the Wednesbury principles and would only interfere if there had been bad faith or the equivalent thereof.

20. The threshold for invoking judicial interference in immigration matter is indeed a very high one because of the onerous duty on the part of the Director to enforce immigration control.

21. With particular reference to the points raised by Mr Harris. In R v Director of Immigration, ex parte Chan Heung Mui (supra), it was held that an illegal immigrant has no right to a hearing, conducted fairly and in accordance with the rules of natural justice, before a removal order was made against him. An alien visitor who wishes to change his status to be a dependant is in no different position.

22. It is good practice for the Director in the discharge of his public duty to allow representations to be made before he makes any decision. But the practice that the Director permits an applicant to make representations before a decision is made on his application does not give rise to any positive obligation on the part of the Director to be bound by any rules of natural justice/procedural fairness in immigration matters nor does it give rise to any legitimate expectation that the Director will be so bound.

23. In Ho Ming Sai & others v Director of Immigration (supra) Godfrey J stated at p30

If he were to abuse his power allegedly (e.g. by refusing to consider an exercise of his powers in favour of an illegal immigrant unless brided to do so) or irrationally (e.g. by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the Court would intervene. But, further than that, I do not believe the Court would or should go .... But, absent any legislative provisions in that connection here, there is simply no room, in my judgment, for a review of a decision of the Director of Immigration under s. 13 on the ground that he has failed to proceed in accordance with the rules of natural justice. In particular, there is no room for any suggestion that he is under some sort of duty, before making up his mind, to disclose to the illegal immigrant all, or any, of the materials on which he proposes to rely in coming to his conclusion."

24. Mr Harris relied hearing in the case of Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 A C 629 in which it was held that where a public authority charged with the duty of making a decision promised to follow a certain procedure before reaching that decision, good administration required that it should act by implementing the promise provided the implementation did not conflict with the authority's statutory duty.

25. The decision is Ng Yuen Shiu's was decided on the very special circumstances pertaining to the case when the Government of Hong Kong abandoned its "reached base" policy. When the illegal entrants living in Hong Kong who had entered from Macau petitioned to the Governor for fear that they would be repatriated to China, a senior immigration officer made a public announcement of the Government policy that each illegal entrant from Macau would be interviewed and his case "treated on its merits".

26. As Lord Fraser of Tullybelton stated at page 639.

"Their Lordships consider that this is a very narrow case on its facts, but they are not disposed to differ from the view expressed by both the Courts below, to the effect that the government's promise to the applicant has not been implemented."

27. Ng Yuen Shiu's case is no authority for the suggestion that the Director in an application by an alien to remain in Hong Kong has the general duty to grant a hearing to the applicant which hearing has to be conducted fairly and in accordance with the rules of natural justice before a decision is made against the applicant.

28. In Lau Kong Yung v Director of Immigration (supra) the Court of Final Appeal by a 4-1 majority held that the Director needs not even consider any representation by illegal immigrants or overstayers before making removal orders against them.

29. Chief Justice Li said at page 808

"Secondly, in any event, he is under no duty and hence not bound to take humanitarian considerations into account. Assuming the applicants would have put forward humanitarian grounds, any failure by the Director would not have availed them since the Director was not bound to consider them. Lord Diplock in the passage quoted above referred to the matters which upon the construction of the statute he ought to have considered and excluded matters irrelevant to what he had to consider. So, for impugning a decision one is concerned with what the decision maker is bound to consider ....."

30. Litton PJ made a similar point at page 814

"This point needs emphasis: in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision: see Mason J in Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 at p 39. What factors he is bound to take into account is determined by construing the statute conferring the power. If an administrator misconstrues a statute and asks himself the wrong question, or fails to ask himself the right question, the Court can properly intervenue and quash his decision on the ground of illegality. But that question must be clearly identified: a vague statement pointing to "all relevant matters" is not enough".

31. If there was no obligation on the part of the Director to consider any representation made by the applicant or to disclose any of the materials he relied on in coming to his conclusion, there could be no valid basis for complaining that the Director had failed to take into consideration relevant matters or that the Director had not given adequate reasons for his decision or that his decision was somehow illogical or unreasonable.

32. There is also no basis for suggesting that the applicants had not been given opportunity to make specific representations to the Director on any issue which representations the Director should have been made aware of.

33. Mr Harris's submission on Article 37 of the Basic Law had been considered by Stock J in Santosh Thewe v Director of Immigration HCAL No 134 of 1999.

34. Suffice for me to say that I agree with Stock J's decision and the reason thereof. I cannot agree with Mr Harris' submission that any lawfully married spouse of a Hong Kong permanent resident, other than those from the Mainland has an absolute right under Article 37 of the Basic Law to come to join the spouse in Hong Kong.

35. I would add that on immigration matters, the special circumstances of a particular country or region must be borne in mind.

36. In rejecting the submission that the Bill of Rights prevented the removal of a 61/2 years boy with parents and siblings in Hong Kong Godfrey JA stated in re Hai Ho-tak and others v Director of Immigration and anothers [1994] 2HKLR 202 at page 210

"But I would add that, even absent S 11, I would not have been prepared to hold that the Director of Immigration was precluded by the Ordinance from making and implementing an otherwise lawful decision merely on the ground that the result of the decision might be to separate members of a family. Like all other human rights, the rights of the family under the Ordinance are not absolute. We must be zealous in upholding individual rights under our Bill of Rights. But at the same time we must ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The Bill of Rights will be debased and devalued if it is repeatedly invoked in cases to which its abstract concepts have really no application. The Court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government's attempts to resolve the difficult and intransigent problems which Hong Kong faces."

37. The right under Article 37 of the Basic Law is not an absolute right. In the light of the reservations to the provisions of the International Covenant on Civil and Political Rights and the problems which Hong Kong faces, the Director is entitled not to grant an automatic right to a spouse of a Hong Kong permanent resident to stay in Hong Kong.

38. The Director is perfectly entitled to, as he should, take into account the special circumstances of Hong Kong in formulating the immigration policy. I need not repeat the various matters raised by the Director in the affirmations of his officers, but any relaxation in the immigration policy clearly will pose significant difficulty to Hong Kong. The Director will be failing his duty in not always bearing those matters in mind.

39. An alien visitor can have no right nor legitimate expectation to be granted residence right in Hong Kong as a dependant or otherwise.

40. As I had stated in Malik Azmat Sherazi v The Director of Immigration HCAL No 129 of 1999

"An alien visitor's only hope, as in the case of an over-stayer or an illegal immigrant, is a compassionate consideration of his case by the Director and should the Director decide not to exercise the discretion in his favour, he cannot have any legitimate complaint except in the most unusual and exceptional circumstances."

41. When the husband sought to change his status as a visitor to join his wife in Hong Kong, the burden was on him to present all such facts so as to persuade the Director that his circumstances were such as to fall within a policy adopted by the Director.

42. The applicants had been given the opportunity to present all the matters they wished to rely on. The husband was allowed to stay on to further present his case after the initial rejection in May 1999.

43. It was open to the Director to conclude as he did initially that the wife could not support the husband in Hong Kong. It was also open to the Director to take the view that the primary aim of the husband was to get a job or participate in a business in Hong Kong and that the husband did not intend to join the wife as her dependant.

44. There is no basis for any visitors to Hong Kong to think that marriage to a Hong Kong permanent resident would ensure a right to live in Hong Kong.

45. Indeed to even allow such thought to linger, amongst over-stayers, illegal immigrants or visitors would do grave injustice to Hong Kong and its citizens.

46. The Director must adopt a stringent criteria in allowing an alien the right to reside or else Hong Kong will face an unbearable burden bearing in mind its unique situation.

47. The Director was right to ensure that a dependant of a Hong Kong resident will not impose any burden on residents and tax-payers of Hong Kong in terms of public or social services or the diminution of their employment opportunities.

48. The policy is a reasonable and correct one and no alien could have any legitimate complaint.

49. I have considered the facts of the case and Counsel's submission carefully. There is no valid basis upon which I can properly interfere with the decision of the Director. The application must therefore be dismissed and I so order.

Representation:

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

Mr William R Marshall, SC and Mr Lee Tin Yan, GC, for the Respondent