Gurung Bil Bahadur v. Director of Immigration

HCAL000034/1999

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

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Coram : Stock J in Court

Date of hearing : 15 June 1999

Date of ruling : 15 June 1999

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R U L I N G

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1. This is an application for discovery of the dependant visa policy of the Director of Immigration and the application for discovery is made in the course of the hearing of the substantive application. The application for discovery ought to have been made upon an interlocutory footing, but be that as it may, I have been content, in the particular circumstances of this case, to entertain the application.

2. The matter is put in this way by Mr Egan on behalf of the applicant, that the applicant needs sight of the policy for a number of reasons, in particular, first, whether the Director of Immigration needs to be satisfied that the sponsor is merely potentially able to support a supposed dependant, or whether on the other hand, the sponsor will actually support the supposed dependant. The answer to that is that that is not the issue in this case. The issue was whether the real reason, the prime reason for the applicant coming to Hong Kong was on the one hand to work, or, on the other, primarily to occupy the natural niche with his family as a man who wanted to be in retirement or semi-retirement with remaining members of his family, who would be there to care for him in his advancing years, with work as a mere incidental adjunct.

3. The Director of Immigration decided in this case that he was not satisfied that the latter was the prime objective, and that the applicant was probably coming to Hong Kong in order to circumvent employment regulations. The question is whether that decision is impeachable by a court in its supervisory jurisdiction.

4. It is then said that it is nowhere made clear what is meant by "dependancy". The short answer to that contention is that it seems to me to be self-evident what that means and, in any event, the criteria are made clear by the affirmation filed on behalf of the Director of Immigration in the form of Mr Lai Kam Hung, an affirmation made on 2nd June 1999 and in particular is set out in terms at paragraph 7 of that affirmation.

5. It seems to me that the respondent has fulfilled his function in providing such reasons for his decision as will enable this court to determine the issues which it has to determine; for example, whether the decision taken could be said to be one which failed to take into account relevant considerations, or took into account irrelevant considerations, or was otherwise irrational.

6. In so far as the applicant asserts that he has met the dependant policy in this case, the policy considerations relevant to this case have been explained, and the facts which were addressed in this case have been provided. In other words, the information which I have enables this court adequately to address the issue whether there has been some demonstrable flaw in the factual analysis, or some erroneous application of the policy.

7. All that remains is that discovery would therefore be for the purpose of testing whether the Director of Immigration has revealed the truth it is not suggested that he has not; and finally, for the purpose of a fishing exhibition, a desire that is expressly disavowed.

8. In the circumstances, I am satisfied that discovery of further documents in this case is simply not necessary for the fair disposal of the application, and accordingly the application for an order for discovery is rejected.

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