Gurung Ram Kaji v. Director of Immigration

HCAL000110/1999

HCAL110/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO. 110 OF 1999

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Coram: Hon Burrell J in Court

Date of Hearing: 27 March 2000

Date of Judgment: 3 April 2000

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J U D G M E N T

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1. By this application, the applicant Gurung Ram Kaji seeks a review of a decision made by the Director of Immigration on 24 August 1999 affirming his decision on 11 August 1999 in which he refused to grant the applicant a dependant visa as a dependant of his wife. The application had first been considered prior to 4 January 1999 when the application had been refused on the ground that the Director was not satisfied that the applicant's sponsor, his wife, was financially able to support the applicant in Hong Kong. However, his visitors visa was extended for six months to enable the Director to give further considerations to the sponsor's financial ability. The final refusal, in August 1999 (made following a second application on 29 June 1999) was on the ground that the Director was not satisfied that the applicant's primary purpose was to join his wife as her dependant.

BACKGROUND

2. The applicant's sponsor is his wife, they were married in 1984 in Nepal. They are both Nepalese and have three children aged 14, 13 and 5. The sponsor was born in Hong Kong, her father was a Gurka soldier. The family, up to 1996, lived on their family farm in Nepal. In 1996 the sponsor returned to Hong Kong and in 1997 was granted, as was her right, permanent resident status. The three children, who presumably came to Hong Kong at some time after their mother acquired permanent resident status by descent in 1998. Having acquired this status they all returned to Nepal, also in 1998, where they remain.

3. On 13 August 1998 the applicant arrived in Hong Kong as a visitor. The next day, 14 August, he applied to change his immigration status to that of a dependant of his wife. As outlined above, it was refused.

THE COMPLAINT

4. In a nutshell, Mr Paul Harris for the applicant, submits as follows. This is a genuine and long standing marriage between the applicant and the sponsor. Both the sponsor and their three children have permanent resident status in Hong Kong. In the circumstances, it is "completely irrational" to make a decision that the purpose of the applicant's application for a dependency visa was anything other than to be re-united with and live with his wife as her dependant.

5. In addition, Mr Harris submits, that on the available information, it appears that the Director gave consideration to, inter alia, two matters which were mistakes of fact. Firstly, it is contended that the Director proceeded on the assumption that the applicant was supporting his children in Nepal prior to coming to Hong Kong in 1998 whereas, the sponsor's information sheet (as clarified by affidavit) states that the children are looked after by the paternal grandparents on the family farm in Nepal. Mr Harris relies on this assumption of maintenance by the father as a mistake of fact. Secondly, he complains that the Director made another mistake when stating in a respondent's affidavit (when considering the sponsor's means) that "there is no safety net should she fall sick or be unemployed" whereas the sponsor in fact had approximately $30,000 in savings at the time.

6. The two issues are therefore :

1. Was it Wednesbury unreasonable to decide that the applicant's purpose in seeking a dependency visa was not to become a dependant of his wife.

2. If there were mistakes of fact made by the decision-maker in making his decision, are the mistakes of fact reviewable.

7. Mr William Marshall SC for the respondent resists the application on both general and particular grounds. He makes three points :

i) The courts in Hong Kong continue to follow the case of Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch. 149. The courts will only intervene to exercise its supervisory jurisdiction on matters concerning immigration decisions of entry or extensions of visa if it is shown that there has been bad faith or some other equally serious matter in the decision making.

ii) In relation to dependency visas, the Director of Immigration applies a policy in the public interest. In this case, it is not the policy that is challenged but its application to the facts. Immigration control in Hong Kong is necessarily strict. However, the courts may examine any decision of the Director, in its supervisory role, if it wishes to do so.

iii) The application of the Wednesbury unreasonable test to the facts of this case result in the applicant falling well short of the high threshold.

8. Taking each point in turn :

i) Legal background :

9. Mr Marshall referred the court to a line of authorities before and after Schmidt supporting the principle that a person who is subject to immigration control "has no right or interest capable of being infringed in such a way as to enable him to come to this court for assistance". A careful analysis of the same authorities has recently been made by Stock J in Thapa Indra Bahadus v. Secretary for Security HCAL 18/99. He quoted Godfrey JA in Hong Ming Sai v. Director of Immigration [1994] 1 HKLR 21. I do the same :

" But that is not to say that once it was established that an applicant had no right of entry or no right to remain after entry had been granted, that the exercise of a statutory power in relation to that person was entirely immune from supervision :

'.... Of course, those on whom administrative powers are conferred are not altogether immune from judicial review. On the contrary. It behoves every civil servant entrusted with administrative powers always to remember the judge at his elbow. .... Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s.13. If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed 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.' (per Godfrey J in Ho Ming Sai, page 30)"

10. In Hong Kong's Court of Final Appeal this approach has been approved and followed. What all the authorities come down to is that, because of the special considerations relating to the sensitive and important issue of immigration in Hong Kong, absent bad faith and because of the high threshold set by Wednesbury, applicants in judicial review cases such as this one, face a difficult uphill task.

ii) The Director's policy on dependency visas

11. All other things being equal, it is better for a family to be together than apart. A purely personal reaction to a request for a dependency visa from one family member on behalf of another will be a sympathetic one. However the Director of Immigration would be failing in his duty if he paid scant regard to the wider considerations of public interest. It is natural and understandable for each individual family only to see the merits through their own eyes and in the context of their own circumstances. The Director has an onerous and difficult task partly because of the many disappointments and disruptions which follow his proper decisions.

12. Mr Law Yiu Tung, a Principal Immigration Officer, sets out all aspects of the public interest in his affidavit of 3 December 1999. The affidavit provides facts and figures in support of the principles underlying immigration control. In particular, the stress on society if immigration were not controlled, the undesirability of admitting unskilled labour which would both alienate the existing labour force and do little to stimulate the economy and the increased financial burden on the existing residents of Hong Kong. Such overriding considerations have been reviewed on many occasions in Hong Kong immigration cases. Their importance and relevance has never seriously been doubted or challenged.

iii) The application of the Wednesbury test to the particular complaints in this case

a) Was it irrational, on the material available, to conclude that the applicant's wish to become his wife's dependant was not the primary purpose of the application?

13. The decision maker, Mr Lai Kam Hung, explains the rationale of his decision in his 10 page affirmation. There can be no doubt that a proper investigation and a considered assessment was done. In my judgment, there is no basis for the complaint that the decision was irrational. The decision-maker was faced firstly with the fact that the applicant stated "when I get I.D. I will find the job and can do business". No criticism is made of a man who states that, if granted a dependency visa, he does not wish to be a burden on the state and will seek employment as would be his right. The fact remains however that prior to the application being granted, the Director must consider and assess, using his knowledge and experience, the reality of the situation in the context of the wider policy considerations and in the light of the fact of the applicant's expressed stated intention. The known facts were that the applicant was a Nepalese farmer, his children had lived almost all their lives in Nepal, the children were going to remain in Nepal at least in the short term and his wife was employed in Hong Kong earning about $7,000 a month gross. It is difficult to see on what basis it is contended that no rational decision-maker could have decided that the applicant's purpose in trying to come to Hong Kong was to work here.

(b) Was the sponsor's financial ability to support the applicant relevant and were reviewable mistakes of fact made?

14. On 4 January 1999 the applicant was granted a six-month extension to enable the Department to "further assess the financial ability of your sponsor to see if she is able to support you ...." The refusal letter of 11 August 1999 appeared in the following form :

" Having regard to the available information and circumstances, I regret to inform you that the application is refused. We are not satisfied that :

1. _______________ is financially capable to support your living and provide suitable accommodation for you in the HKSAR; and

2. You come to the HKSAR to join your wife as his/her dependant."

15. Mr Harris submits that the fact that paragraph 1 was crossed out must mean that the Director had decided that the sponsor's finances were sufficient and that the only reason for refusal was paragraph 2. He submits therefore that the financial ability issue is not relevant to this judicial review. Further he complains that it is apparent from Mr Lai's affirmation that the financial ability of the sponsor was considered in the decision-making process and that it was considered on the basis of wrong facts.

16. It is not necessary for me to decide whether, as a matter of law, mistakes of fact are capable of review, because I find Mr Harris' submission to be flawed before that point is reached, for three reasons.

17. Firstly, the fact that paragraph 1 in the letter is crossed out means no more than it is not the reason given for the refusal. It does not mean that the investigation commenced in January 1999 into the sponsor's financial ability has been positively resolved in her favour. The letter is merely silent on the matter. In view of the decision in paragraph 2, there is no need to specifically refer to it. Consequently it was always a relevant matter for the Director to consider when looking at the overall picture and deciding the "primary purpose" issue.

18. Secondly, it is untenable to submit that on the whole of the known facts, the Director proceeded on a mistake of fact when it was suggested that the financial burden on the sponsor would increase if her husband came here because she would then have to remit money from her earnings back to the children in Nepal thus reducing her available finances to support the applicant. In this regard the applicant relies on the sponsor's second information sheet dated 27 July 1999 in which it is stated that the farm in Nepal where the three children live is a family farm, run by the applicant's parents and there is no need to remit any of her Hong Kong income to them because they are looked after by their grandparents. The Director was not convinced by this. It would have been surprising if he had been. It was reasonable, in the light of experience, to regard the departure from the family farm in Nepal of a healthy mature 40 year old father as akin to the loss of a source of income. It is not realistic to say that the departure of the father would have no effect on the finances of the farm. The financial effect would inevitably be negative and the obligation to replenish the diminished finances would, in normal circumstances, fall on the working mother in Hong Kong. It is difficult to understand how such a thought process could be regarded as mistaken.

19. Thirdly, complaint is made that the Director mistakenly took no account of the sponsor's savings when he stated that there was no safety net should she become unemployed or ill. In July 1999 she had over $30,000 in a Hong Kong Bank account. It is correct that no reference to such savings was made in the affidavit evidence. However, if it was not, in fact, considered, it turns out to be a relatively minor consideration when one examines the savings account in a little more detail. It is of course to the sponsor's credit that she is able to save money at all. It is a pointer to the fact that, as is often the case in applications such as these, the court is dealing with decent and responsible people. However, the movement of the account shows that between June 1997 and September 1999 (the period exhibited) it fell below $10,000 on five separate occasions and was below $10,000 for a total of about 16 months. In short, I find the submission made about the sponsor's savings advances the applicant's case barely if at all.

20. In all the circumstances, this application for judicial review must be refused. I make an order nisi that there be no order as to costs.

Representation:

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

Mr W.R. Marshall, SC leading Mr Caspar Chu, GC of Department of Justice, for the Respondent