Gurung Bil Bahadur v. Director of Immigration
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HCAL000034A/1999 HCAL34/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.34 OF 1999 --------------------
----------------- Coram: Stock J in Court Date of hearing : 15 June 1999 Date of judgment : 15 June 1999 ------------------- J U D G M E N T ------------------- 1. This is an application for judicial review of a decision by the Director of Immigration on 9th November 1998 by which he rejected an application for a dependant's visa. 2. The applicant was born in Nepal in 1944. He has nine children, six of whom reside in Nepal. He has a daughter who lives in Hong Kong. She is a Hong Kong permanent resident, aged 27, and is married with children. The applicant came to Hong Kong on 5th September 1998 as a visitor, and it was on that basis that he was permitted entry, but after three days he applied for a dependant visa so that, he said, he could join his daughter here as her dependant. 3. The rationale of the policy by which such visas are granted has been explained in an affirmation on behalf of the Director of Immigration. In the case of persons aged over 50 years, it is to enable sponsor children to look after parents who may lack care in their place of domicile. What is envisaged is that the son or daughter will be able to support and provide accommodation for the parent. Such visas are to be distinguished from employment visas granted in practice only to those who possess special skills or experience not readily available in Hong Kong. 4. In the information sheet provided by the applicant in support of his application for a dependant visa, he said that his occupation immediately before coming to Hong Kong was that of a driver, and that he had not required any financial support. His reasons for coming to Hong Kong were : "To stay with my daughter and to find a job". Under the heading "My future plan in the Hong Kong Special Administrative Region", he wrote : "To work". He disclosed also in that form that his children in Nepal, numbering six, were at school and that they, the six of them, "depend on my pension and have farming land". 5. The Director of Immigration took the view that he was not satisfied that the application was genuinely made for the purpose of joining his daughter as a dependant. The purpose seems to him to be to find a job in Hong Kong. So he refused the application, and the applicant instituted these proceedings. 6. The grounds of the application state that the Director of Immigration failed to implement policy guidelines in refusing the application, alternatively, that he took into account irrelevant considerations in refusing the application. 7. To support the ground as to policy guidelines, the applicant sought discovery of documents disclosing such policy guidelines as exist. I entertained the application for discovery at the outset of today's hearing, but for reasons which I then supplied, I concluded that discovery was not necessary for the fair disposal of the application, and I rejected the application for discovery. 8. I do not intend to enter upon a discourse of the extent of procedural or other rights amenable to judicial review which are, or are not, enjoyed by those in the position of this applicant who have no right to land or remain in Hong Kong. It is sufficient, for the purposes of this case, to address the applicant's substantive complaints. 9. Mr Egan, in his submissions this morning, has drawn to my attention the following passage which appears in the affirmation sworn in these proceedings on behalf of the applicant :
10. Mr Egan on behalf of the applicant says that these four criteria are self-evidently and indisputably, in this case, met and that it is illogical and irrational, therefore, to deny this applicant his dependant visa. But the conditions which are set out by the Director of Immigration in this affirmation and to which I have just referred are not to the long and the short of the matter. The point is that if those criteria are met, an applicant may, and only then may, under this policy, be allowed to come to Hong Kong, but that hardly precludes the Director of Immigration from excluding somebody who fulfils those criteria but whose real reason for coming to Hong Kong is to seek employment. A person who wishes to come here to work must seek an employment visa and the fact that he has family here who might or will support him if he falls on hard times, or who might supplement his income, does not obviate the need for the proper application. If the applicant has no relevant skills, then no doubt an employment visa will be refused. 11. There is then a suggestion that the Director of Immigration has exercised such power as he has irrationally, on the footing that there is a suggested inconsistency between the fact that dependants are permitted to work in Hong Kong on the one hand, and on the other, the fact that in this case the applicant's statement that he intended to work apparently stands in the way of the grant of a dependant visa. There is in truth no inconsistency, not least because the applicant's analysis is not an accurate analysis of what the Director of Immigration is saying . It is also said that the Director of Immigration is contending that anyone who whilst being a dependant intends to work, is not to be granted a visa. Again, the Director of Immigration is not saying that. He was addressing a simple question, namely, whether the applicant intended genuinely to come here as a dependant or not. The Director of Immigration was perfectly entitled, on the basis of the information furnished by the applicant to conclude that the applicant intended to come to Hong Kong primarily to find employment and not primarily to occupy a natural niche in the setting of his family. The bulk of his family is in Nepal and are of school age. The applicant is himself not an old man. He now has a wife in Nepal, although it is not clear whether that was a fact taken into account by the Director of Immigration. He stated that he was coming here to stay with his daughter and to work and when asked what he would do here, he said he would work. The Director of Immigration's conclusion was a conclusion to which he was entitled to come and cannot be said to be irrational. 12. Mr Egan then turns to the recommendation which was made by an immigration officer to the decision-maker, or to somebody in the line below the decision-maker, and it reads as follows :
Mr Egan at the same time refers to a letter which was written to the applicant on 9th November 1999 saying that "During the interview in connection with your application, you intended to come to Hong Kong to take up employment". Mr Egan contends that these passages demonstrate that the recommending officer, and the decision-maker, have ignored the fact that the applicant also said in his information sheet that he was coming here to stay with his daughter. But this point is again to isolate material from the complete picture. The recommendation passage to which I have referred is but one page of a report, the other pages of which we do not have; but, be that as it may, it was perfectly evident from that recommendation sheet and also the minute to the decision-maker that this was an application to join a daughter. The minute itself said so, and the decision-maker affirms that he took into account the information statement, and refers expressly to the passage in the information statement in which the applicant has said that he wanted to come to Hong Kong to stay with his daughter and to find a job. There is accordingly nothing in that particular point. 13. It is also said that the Director of Immigration has seized on the four words in the information sheet, namely, the words "and to find a job". That in my judgment is again to take a telescopic view of the full extent of the evidence which was in the information sheet and before the decision-maker. 14. There is no valid basis, in my judgment, on which to find that the Director of Immigration has made a decision which is unlawful or irrational or which suffers from some prior procedural unfairness. Accordingly, the motion is dismissed. [Submission from counsel on costs] 15. Counsel have addressed me on the issue of costs. The applicant is legally aided. But be that as it may, this is an application which in my judgment is bereft of merit and I think it right to order that the costs of the application be paid by the applicant to the respondent. There will be an order for Legal Aid taxation.
Representation: Mr Kevin Egan, inst'd by M/s Massie & Clement, assigned by Director of Legal Aid, for the Applicant Mr William Marshall, SC and Ms Fanny Wong, inst'd by Department of Justice, for the Respondent |