Durga Maya Gurung v. Director of Immigration

HCAL001487/2000

HCAL 1487/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1487 OF 2000

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Coram: Hon Hartmann J in Court

Dates of Hearing: 11 and 18 April 2001

Date of Handing Down Judgment: 27 April 2001

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J U D G M E N T

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Introduction

1. The Applicant in these proceedings for judicial review is a married woman who was born in Nepal in 1952 and was raised in that country. In 1970, when she was eighteen years of age, the Applicant married Jit Bahadur Gurung who was then serving as a Gurkha soldier in the British Army. They remain married to each other. Indeed, their union of some thirty years lies at the heart of these proceedings.

2. During the course of the marriage, when circumstances permitted, the Applicant accompanied her husband on his various postings. One of those postings was in Hong Kong. Thus it was that in late 1974 a son was born to the Applicant and her husband here in Hong Kong. He was the first born of the family and was given the name of Dipak. Four further children was born of the marriage but they were all born in Nepal.

3. In 1995, Dipak assumed his right of permanent residence in Hong Kong and has lived and worked here since that time. In December of that same year Dipak was visited by his father, the Applicant's husband, who then sought permission to remain in Hong Kong as his son's dependant. That permission was granted in February 1996. Shortly thereafter the Applicant's husband found employment and has been in employment since that time; first, as a security guard and thereafter as a metal worker. In December 1996, a further child of the marriage, a son named Min, came to Hong Kong on a visit. He too sought permission to remain in Hong Kong as a dependant and that permission was granted in March 1997. Min also took up employment.

4. In the result, by mid 1997 three members of the family were living in Hong Kong. Two - the Applicant's husband and one of her sons - had been granted right of residence as dependants but all three were gainfully employed.

5. In June of that year; that is, in 1997, the Applicant herself arrived in Hong Kong as a visitor. The day after her arrival she too filed an application seeking permission to remain in Hong Kong as a dependant. In the Applicant's case it was as a dependant of her husband. However, before this application was finalised, in terms of a letter dated 16 May 1998, the Applicant withdrew her application. She gave no reason for so doing. A week or so later she left Hong Kong.

6. On 1 August 1998, having been absent for some two and a half months, the Applicant returned to Hong Kong as a visitor. On this occasion she was accompanied by one of the daughters of the family, aged eighteen at the time and name Dhan. Exactly one month after their arrival, on 1 September 1998, the Applicant and her daughter filed applications seeking permission to reside in Hong Kong as dependants of the Applicant's husband.

On 8 December 1999, the Director of Immigration ('the Director') advised the Applicant and her daughter that their applications had been refused. Both letters said only that the Director was not satisfied that they were dependants and had come to join the Applicant's husband as his dependants.

7. The Applicant's daughter, Dhan, did not contest this decision. She left Hong Kong that month and returned to Nepal. However, the Applicant, now acting through solicitors, sought a reconsideration of her application. The letter seeking reconsideration was dated 14 December 1999 and contained a request under the Personal Data (Privacy) Ordinance for copies of the materials held by the Director related to the Applicant's dependancy application. As a result of that request, the Applicant's solicitors received copies of various internal memoranda and minutes which, expressed broadly, illustrated the thinking of the Director's officers in dealing with the Applicant's matter.

8. In particular, an internal minute dated 3 December 1999 (identified as M47) was made available. This minute, which referred to the applications of both mother and daughter, commented:

"It is unreasonable for the principal Applicant Ms Gurung Durga Maya to leave behind her two younger children of age 11 and 15 in Nepal (who seem not to be taken care of by their close family relatives as both their grandparents are reported dead), and comes here to live as dependant of her husband while the minor children should still be dependant on her emotionally and financially. Given such family situation, the primary intention of Ms Gurung Durga Maya to settle in Hong Kong for family reunion is much in doubt. Moreover, given the employable age of 47 and being a farmer in Nepal, it is not believed that she will retire and has no intention to seek employment in Hong Kong. All these only showed that the Applicants are economic migrants rather than dependants."

9. From this it is apparent that the applications had been refused because the Director was not satisfied that the Applicant and her daughter had come to Hong Kong for the primary and essential reason of becoming the dependants of the Applicant's husband. Instead the Director was left with a real doubt that the primary motive of the Applicant and her daughter was, in fact, to obtain work in Hong Kong and thereby to enhance their individual (and perhaps family) economic well being.

10. The internal minute quoted above records that the grandparents who are reported to be caring for the Applicant's children in Nepal are dead. This conclusion arose from a document completed under the Applicant's instructions, she being illiterate, which stated that to be the position. It appears, however, to have been an error on the part of the person filling out the form. This was made clear by the Applicant's solicitors when reconsideration was requested and, as I read it, that reconsideration was founded on the assumption that the grandparents were alive.

11. Armed with the information obtained under the Personal Data (Privacy) Ordinance, the Applicant's solicitors sent a detailed letter to the Director in support of the application for reconsideration. In that letter, dated 8 March 2000, the solicitors referred to the Director's concern that the Applicant was essentially an 'economic migrant' and wrote the following:

"The applicant has no intention of seeking employment in Hong Kong. She intends to be a housewife and reside with her husband and other family members. As you have pointed out, her only previous work experience is as a farmer, she is hardly likely to find a job as a farmer here in Hong Kong even if she intended to. She is illiterate and speaks neither English or Chinese. Her employment prospects are not at all promising. However, if you are still concerned about this aspect of her case she is willing to have imposed upon her a condition of stay that she does not take up any employment." [my emphasis]

12. This agreement to have a condition of stay imposed upon the Applicant was repeated a little later in the letter in answer to the Director's possible concern that, as the Applicant's husband had taken up employment after being allowed to reside here as a dependant, she may do the same. The relevant passage - appearing under the heading 'that both the Applicant and the sponsor are economic migrants' - reads as follows:

"This appears to arise from the fact that the sponsor has taken up employment. This appears a very strange complaint bearing in mind that under the visa you issued to him he is clearly entitled to work. In any event the applicant is entitled to have her case decided on its own merits. She has no intention of working and again she repeats her suggestion that if you have any reservations as to her intentions, impose a condition of stay excluding her from taking up employment. " [my emphasis]

13. The matter was reconsidered but the Director found no good reason to reverse his earlier decision. Accordingly, by letter dated 27 March 2000, he advised the Applicant's solicitors that the original refusal still stood. However, in addition to the original ground of refusal; namely, that the Director was not satisfied that the Applicant was a dependant of her husband and had come to Hong Kong to be his dependant, a further ground of refusal, was now given. It was to the effect that the Director was not satisfied that the Applicant's husband was, in his capacity as sponsor, financially capable of supporting her stay in Hong Kong.

The nature of the Applicant's challenges

14. It is the Director's two refusals - the first conveyed by letter dated 8 December 1999, the second conveyed by letter dated 27 March 2000 - which the Applicant seeks to have removed to this Court by way of certiorari and quashed. In her amended grounds, the Applicant founds her challenge to the Director's decisions on three grounds.

15. The first ground contends that both reasons for refusal (first, the reasons of economic migrancy and, second, the financial inability of the Applicant's husband as sponsor) were Wednesbury unreasonable in that they were decisions which no reasonable decision maker could have reached; in short, they were, in the circumstances, perverse or irrational.

16. The second ground contends that, having founded his first refusal on one ground only (economic migrancy) it was a breach of procedural fairness for the Director, upon reconsideration, to add a second reason without first giving to the Applicant an opportunity to address him on that second reason (the financial inability of the husband as sponsor).

17. The third ground contends that, in considering the Applicant's offer to have a condition of stay imposed prohibiting her from working, the Director failed to have regard to the individual circumstances of the Applicant's case. Instead, the Director 'mechanistically rejected the offer for reasons of policy' and in so doing either wrongfully fettered his discretion or failed fairly to exercise that discretion.

The Director's policy concerning 'dependancy' applications

18. In his decision in Gurung Ram Kaji v. Director of Immigration HCAL 110/1999, Burrell J spoke of the Director's policy on the issue of dependancy visas in the following terms:

"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 decision."

19. The purpose and construct of the Director's policy has been explained in an affirmation made by Mr Ho Kam Ping, an Acting Principal Immigration Officer. Mr Ho commenced by describing the considerable difficulties facing Hong Kong in respect of immigration matters; difficulties which are well recognised by our courts. He went on to set out the purpose of the policy which is to allow a person 'who requires the care and financial support' of close family members in Hong Kong to remain here with and under the care of those close family members.

20. In implementing this policy, said Mr Ho, the Director had to ensure that the primary or principal purpose was to remain in Hong Kong as a dependant; that is, under the care and financial support of a sponsor, rather than a back door way of gaining residence here in order to work. In this regard, Mr Ho said:

"... the Director has to ensure that the immigration policy on employment is not being undermined and side-stepped by job-seekers disguised as dependants of their relatives in Hong Kong. If the primary purpose or a principal purpose of the person applying for a dependant visa - as found by the Director after looking at all the circumstances of the applicant, his or her sponsor, and close family members whether in Hong Kong or overseas - is to work in Hong Kong rather than occupying a natural niche in the setting of his or her family, the application will not be granted."

21. In addition, said Mr Ho, in implementing the policy the Director had to ensure that those persons who would offer care and financial support to dependant persons would be capable, in fact, of rendering that care and support. If this were not the case it would mean that the burden of providing support would fall on 'the residents and taxpayers of the HKSAR'. As a result, the policy dictated that -

"... where there is an applicant and a sponsor, the sponsor must show that he or she is capable of supporting their own living and existing commitments in Hong Kong or overseas and that of the proposed dependant to a required acceptable living standard". [my emphasis]

22. In respect of this capability, Mr Ho said that it will be assessed according to the circumstances of each case and in respect only of those eligible under the policy to offer themselves as sponsors. Mr Ho acknowledged that sponsors in receipt of what (in Hong Kong) would be considered a particularly low income do face difficulties in satisfying the capability test. In this regard, he commented:

"It may be said by the sponsor and the proposed dependant that they will choose to live below bare subsistence levels so that in a sense they can claim that the sponsor is able to maintain their living. That will not satisfy the test. The test is appropriately set at "the required acceptable living standard" so that only circumstances showing that the sponsor and the dependant can live well above subsistence levels will be acceptable."

23. Mr Ho went on to explain that in terms of the policy, once an applicant had been granted permission to remain in Hong Kong as a dependant, no restriction was placed on his or her taking up employment here. There were two reasons for this. First, it would be very difficult to police any such employment restriction. Second, if only genuine dependants are given permission to remain in Hong Kong, it should (in the great majority of cases) be unnecessary to impose any such restriction.

24. In respect of policing difficulties, Mr Ho referred to the fact that all legitimate Hong Kong residents must hold an identity card; this includes persons residing here as dependants. But employers, naturally enough, work on the basis that if a person holds an identity card then that person is entitled to work. In the circumstances it would place an unacceptable burden on the system to expect potential employers to nevertheless check with the authorities for employment restrictions and to expect enforcement agencies (already combating the problem of illegal employment) to have to do the same. Mr Ho concluded by saying:

"The Director's view is that the present categories of admission to Hong Kong should not be enlarged or varied. If a new category of residents who are not allowed to work were created, but who are in possession of Identity Cards, our assessment is that enforcement problems would increase."

This Court's supervisory role

25. The Applicant in this matter has no right of permanent residence in Hong Kong. She remains here only by permission of the Director. When that permission expires she must leave Hong Kong. Her rights are limited by that reality. As Widgery L J expressed it by analogy in Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149 (at 173):

"... The position is exactly the same as that of a man who takes a lease ... for three months and wishes to renew it for a further period: the landlord can reject his application out of hand. No question of natural justice or anything of the kind arises, because there is no right ... which can be infringed ..."

26. Stock J (as he then was), in Thapa Indra Bahadur v. The Secretary for Security HCAL 18/99, explained that this absence of any enforceable right or interest places persons in the position of the Applicant at 'the very periphery of the supervisory spectrum'. But that is not to say, of course, that the Director may exercise the powers conferred upon him by the legislature capriciously, irrationally or illegally and do so with impunity. In this regard, Godfrey J (as he then was) said in Ho Ming Sai v. Director of Immigration [1994] HKLR 21 (at 30):

"... Of course, those on whom administrative powers are conferred are not altogether immune from judicial review. On the contrary. It behoves every civil servants 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."

27. Those words were said with particular respect to the exercise of the Director's discretion under Section 13 of the Immigration Ordinance, Chapter 115, but they are indicative of the broad, unfettered nature of the Director's discretion. In what has now become a seminal statement in Hong Kong to describe the unfettered nature of that discretion in respect of persons who may be described as aliens, Stock J said the following in the case of Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999:

"The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one. It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director had adopted is one which must not be exercised without considering the circumstances of each individual case. To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits. Where the determination of facts are left to the Director and the facts sweep across a range 'from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely': see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

28. In Gurung Ram Kaji v. Director of Immigration (supra), Burrell J summed up the consequences of these various dicta for a person in the position of the Applicant when he said:

"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."

29. Before turning to consider the individual challenges made by the Applicant, I believe that two further matters deserve to be emphasised. Both relate to the manner in which the Director considers applications of the kind made by the Applicant.

30. First, in applications of the kind under review it is for an applicant to persuade the Director of the merits of his or her case, no burden rests on the Director to disprove assertions made by an applicant. This was confirmed by Stock J in Santosh Thewe and another v. Director of Immigration [2000] 1 HKLRD 717 (at 723) where he said:

"Where a person seeks to obtain permission to reside in Hong Kong, the burden is on him to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the respondent. It is not for the respondent to have to show that an applicant or an application falls outwith such a policy."

31. Second, while the Director must patently consider the circumstances of each individual case, it does not mean that he must exercise that consideration in some sort of vacuum divorced from his professional experience and the wealth of information and knowledge built up over the years by his constant consideration of such applications and by his liaison with international authorities working in areas of common concern. To suggest that somehow in these matters the Director should first don the blinkers of naivety would be to undermine his public responsibility.

32. Yeung J expressed the principle succinctly in the case of Malik Azmat Sherazi v. Director of Immigration HCAL 129/1999 when he said (at page 6):

"The Director would of course apply his knowledge and experience in assessing the applicant's application. In that regard, it is perhaps relevant to bear in mind that the Director and his officers must have, throughout the years, gathered information and intelligence from all available sources."

33. In Tran Thang Lam and others v. Director of Immigration [1998] 2 HKLRD 789, Stock J expressed the principle more fully (at 846) when he said:

"Any machine established to ensure effective immigration control will develop, in conjunction with other government departments and agencies, a wealth of information by which can be tested the veracity of claims made by would be immigrants and visitors. Each immigration official will have, to some extent or another, such information available to him, to which he will add such experience as he himself gains during the years of his service. The assessment of the credibility of statements made by those who apply for visas, entry permits, residence status, refugee status, identity cards, change of conditions of stay, lies at the very core of the immigration officer's job. And in exercising that core function he brings to bear upon that assessment facts which he can assume to be safe; facts well established by years of official information gathering; by requests for information from officials of other countries, from the United Nations, and from reports of immigration and other government officials of the recipient country who have themselves had occasion to acquire some expertise on the subject."

The Applicant's first challenge: that the Director's decisions were 'Wednesbury' unreasonable

34. In her amended notice, the Applicant set out the basis upon which she contended that the Directors two decisions were Wednesbury unreasonable. In respect of the first decision (economic migrancy) the notice reads as follows:

"The Applicant has been married to the Sponsor since 1970. She speaks no English or Cantonese. She has been a housewife and subsistence farmer in Nepal and has offered to have a term imposed on any visa issued to her prohibiting her from working in the HKSAR. She has given no indication to the Director that she wishes to work. In light of this Director's decision based on his belief that her primary intention is to seek employment is one that no reasonable decision maker properly directing himself could have come to."

35. From reading the Immigration Department's various internal memoranda and minutes, it is apparent that the Applicant's dependancy application was considered within the context of the family's immigration history.

36. When the first application which is the subject of these proceedings was made in 1999, one of the Director's officers wrote the following in an assessment minute:

"No sooner is sponsor [the Applicant's husband] allowed to join his son Mr. Gurung Dipak as dependent on 7-2-96, he took up the job as security officer on 15-4-96 as revealed in his employment letter. Besides, his son Mr. Gurung Min Bahadur also secured a job as construction worker in June 97 as revealed in his employment letter which is shortly after his approval of dependent visa on 27-3-97. All these suggest that they both are economic immigrants...."

37. The officer then went on to state that, in his opinion, he could see no reason why the Applicant should leave her children in Nepal and come to Hong Kong unless - so he implied - she was coming to Hong Kong for the reason also of adding to the family's earning power. The officer concluded (in respect of the Applicant and her daughter who had at that time both submitted applications):

"All in all, applicants' intentions to join sponsor as dependant are highly in doubt and these strongly make me believe that both two applicants will follow the same path as sponsor and his resident son that they will seek employment instead of dependancy on sponsor."

38. The assessment was referred to a senior officer who within the context of the family background, focused on the circumstances of the Applicant herself. That officer's minute has already been quoted but, to better understand the chronology, bears repeating:

"It is unreasonable for the principal Applicant Ms Gurung Durga Maya to leave behind her two younger children of age 11 and 15 in Nepal (who seem not to be taken care of by their close family relatives as both their grandparents are reported dead), and comes here to live as dependant of her husband while the minor children should still be dependant on her emotionally and financially. Given such family situation, the primary intention of Ms Gurung Durga Maya to settle in Hong Kong for family reunion is much in doubt. Moreover, given the employable age of 47 and being a farmer in Nepal, it is not believed that she will retire and has no intention to seek employment in Hong Kong. All these only showed that the Applicants are economic migrants rather than dependants."

39. When the matter came back before the Director for reconsideration, the Applicant now had the benefit of legal assistance. In respect of the Director's concern that the Applicant had left her two youngest children in Nepal, the solicitors representing the Applicant, having confirmed that the grandparents were alive and that the children were in their care, went on to say:

"The youngest child is 11 and the elder one 15 ... these children are hardly "toddlers". It is quite common in Nepal for children of 15 to work and look after themselves and no doubt you would have made such a point if the 15 year old had applied to come here. In the end it is up to the applicant to decide whether she lives with her husband or with her children. It is not logical for you to reach a conclusion that she does not join her husband as a dependant merely because she has children in Nepal."

40. Those comments, however, say little concerning the eleven-year-old child and do not even begin to place that child's circumstances into a context which would go towards assuring the Director that a greater good was not being sought in leaving the child; namely, the enhanced power to increase the family's wealth.

41. As to the 'employable' age of the Applicant and her farming background, the letter read:

"Many sponsored dependants are of an employable age. This does not prevent approval of their applications."

42. In his submissions on behalf of the Applicant, Mr Thomson said that if it was held against the Applicant that she was of employable age, the logical conclusion would be that all persons of employable age would have to be excluded. The issue, he said, was not age but assessment of purpose. I agree with that latter submission. Clearly, the Director must seek to ascertain the true purpose of an applicant. But, of course, age and personal circumstances may often provide the best guide to an assessment of that purpose.

43. In respect of the Applicant's farming background, her solicitors said the following:

"The applicant has no intention of seeking employment in Hong Kong. She intends to be a housewife and reside with her husband and other family members. As you have pointed out her only previous work experience is as a farmer, she is hardly likely to find a job as a farmer here in Hong Kong even if she intended to. She is illiterate and speaks neither English or Chinese. Her employment prospects are not at all promising."

44. This statement, of course, ignores the possibility that a person in the position of the Applicant may seek menial work, the kind of work avoided by most Hong Kong people because of its circumstances and poor pay, but work which may perhaps be viewed differently by a woman who has until recently been making her living by farming in Nepal. This was certainly a consideration to which the Director's officers were alive. In a minute dated 18 March 2001, the following is written:

"The legal representative is arguing at that applicant is a farmer who can speak neither English nor Chinese. Her employment prospects are not at all promising. However, one is not astonished to find dependants of similar cases to the applicant working as cleaning or dish-washing workers, for instance. Her presence in HK means a diminution of job opportunities to locals."

45. Mr Thomson noted the fact that elsewhere the Director's officers had spoken of these menial jobs being of the kind that Hong Kong people would not want. If that was the case, he asked, how can it be said that the Applicant's presence in Hong Kong would mean a diminution of job opportunities for locals? That itself is irrational. In substance, however, I see no inconsistency. It is true, I believe, that these menial jobs are not wanted by the great majority of Hong Kong people. But there are nevertheless many who, because of the stringency of their circumstances, are obliged to take work of this nature: those are the ones who may have their job opportunities diminished.

46. In the course of his submissions Mr Thomson further argued that the Director had failed to consider the Applicant's personal circumstances in respect of her prospects for employment but had simply reduced her to a 'profile'; in short, the Director had resorted to generalization. This appears to arise from the affirmation of Mak Kin Ming, an Acting Assistant Principal Immigration Officer, who, in describing the decision making process in this matter said:

"The fact that Applicant is illiterate, does not speak Chinese or English does not prevent her taking a job which is not well paid and not sought by local people. The Director has a sufficiency of examples of people with similar profile to the applicant working as dish washers or cleaners in markets or other public places for low wages."

47. But the use of the word 'profile' does not, in my view, assist the Applicant. The suggestion was made by the Applicant's solicitors that the Applicant had few job opportunities. The Director did no more than reply to the effect that for people like the Applicant - and therefore for the Applicant herself - there were job opportunities in Hong Kong.

48. As to the reasoning of the Director in refusing - on a reconsideration - to grant the Applicant permission to remain in Hong Kong as a dependant of her husband, this is revealed in the minute of 18 March 2000 to which I have already made reference. That minute again, viewed the Applicant's circumstances within the family context. In this regard, it said:

"The applicant is having 2 children of the age 11 and 16 in Nepal. Another daughter Dhan Kumari Gurung, aged 20, whose application has been refused, returned to Nepal. Though the 2 younger children are reported to be taken care by her mother, it is not convincing that this is a case seeking for family reunion. The sponsor husband, Mr. Jit Bahadur Gurung, came to join his HK-born son Mr. Dipak Gurung in December 1995. His dependant visa was approved in February 1996. He started to work as a security officer in Jardine Securicor Gurkha Services with effect from 15 April 1996. He began to sponsor his son Min Bahadur Gurung to HK as his dependant in December 1996. Mr. Min Bahadur Gurung was granted dependant visa on 27-3-1997. He began to take up employment. His earliest employment can be traced as early as April 1997, a lapse of less than one month after his dependant visa granted. It is not illogical to consider that sponsor chose the son, Min Bahadur Gurung, to come earlier than his wife, the present applicant, because Min Bahadur Gurung had better earning ability than his mother. For obvious reason, they are adopting a strategy to admit one member at a time. The member, once granted a dependant visa, started to work to strengthen the family's financial situation. That will justify financially further admission of dependants."

The circumstances of the Applicant's individual case

49. In my judgment, it is quite legitimate for the Director to view an applicant's circumstances within the family context, subject of course to the condition that it is always the applicant's own particular circumstances which are viewed within that context and that the applicant is not, to use Mr Thomson's word, merely 'profiled' as belonging to a category of persons and dealt with on that basis.

50. Equally, in my view, because other members of the same family (or clan or group) may have been shown, with the benefit of hindsight, to have been (or become) economic migrants, it does not follow that an applicant's personal circumstances may be avoided and that he or she should be tarred with the same brush. That would be analogous to guilt by association. In this matter, however, I believe that unwittingly the Director's officers have strayed into error in this regard. In the result they have denied the Applicant a fair consideration of her own case. On the evidence before me, the Applicant's own circumstances have been relegated to such a level of unimportance as effectively to be ignored and the matter - especially on reconsideration - has been dealt with and disposed of on the basis solely of the family's history. The minute of 18 March 2000, to which I have made reference, effectively reconsiders the Applicant's request on the basis only of the family history. As the officer wrote, having considered the family's migration pattern:

"For obvious reason, they are adopting a strategy to admit one member at a time. The member, once granted a dependant visa, started to work to strengthen the family's financial situation. That will justify financially further admission of dependants."

51. In principle, I cannot criticise that reasoning. But where within it or consequent upon it is there any real consideration of the Applicant's own circumstances? Where, for example, is any consideration given to the following factors?

(i) That the Applicant has been married for some 30 years to her husband. Perhaps (now that it may be said that the children are effectively no longer by necessity her day-by-day concern) may she not wish to be with her husband and her elder sons within the niche of the 'Hong Kong family' unit?

(ii) That, even though her husband and her one son took up work after being admitted as dependants and, although that is, of course, a relevant factor, must it follow that the Applicant herself has come here to work rather than to be, just as she had claimed, a housewife and companion to her husband?

(iii) Is not the Applicant's age and the rigours of her farming background not also perhaps to be viewed, having regard to her own circumstances, as an indication that she has now served the family well enough and, with the men working, seeks only to be a housewife?

(iv) Even though the Director's policy of admitting dependants does not allow for conditions to be imposed, can it not be said that the Applicant's suggestion that she have a 'no work' restriction placed upon her reveals her good faith in the matter? There is after all no suggestion that this is a regular tactical ploy or that it was a tactical ploy on her part. Was she to know that her offer would be rejected on grounds of principle only?

52. I have set out a number of questions which I believe called out for consideration by the Director. I have not trespassed into the field of answering those questions for that is the Director's jurisdiction. But the point I make is that, on the facts of this particular case, in my judgment, the Director's officers have looked in substance almost solely to the family circumstances and have applied them to the Applicant without giving any material consideration to the circumstances that relate solely to the Applicant within those family circumstances.

53. As I have said, it is for the Applicant to satisfy the Director of the merits of her application. But that does not excuse the Director from giving a balanced consideration to the matters put before him by the Applicant and a 'balanced' consideration must include a fair consideration of an applicant's own circumstances. It is simply not enough to say: "Well, the other family members came here in order to work - we know that now - so this applicant must be here for the same purpose".

54. It is true, of course, that, when the first application was made, a senior officer (in a minute identified as M47) did look to the personal circumstances of the Applicant. In this regard, for example, he spoke of his concerns about the Applicant leaving two young children in Nepal. At that time, however, it appeared to be the case that the grandparents of the children were dead. On reconsideration, it was plain that any such impression in the original application forms was a mistake and that the grandparents were still alive. In my view, if accepted by the Director, that would have substantially changed the matter. As a result, should not the question have been asked if in Nepal it is accepted practice to leave children with grandparents? Certainly, traditions of that kind do exist in some Asian countries. But, as I have said, when the matter came for reconsideration such matters, if asked by the officers at all, appear to have been relegated to a position of such unimportance as to play no part in a balanced consideration of the application, one that took into account all materially relevant matters.

Conclusion

55. By way of summary, I refer again to the dicta of Stock J in Aita Bahadur Limbu (supra):

"The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one. It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director had adopted is one which must not be exercised without considering the circumstances of each individual case." [my emphasis]

56. However, as I have indicated, on the evidence before me, I am satisfied that the Applicant has a legitimate complaint that the circumstances of her own case have not been considered; that is, given full and fair contemplation by the Director. Effectively, I believe she can complain that the matter of her application was decided by what her family had done and not by identifying and focusing upon the purpose of her own wish to remain in Hong Kong. For that reason the decision to refuse her application must be quashed and the matter remitted to the Director for fresh consideration.

57. I appreciate that, upon reconsideration, the Director also refused the application on the basis that the husband was not sufficiently financially sound to act as a sponsor. But that, of itself, in this particular case, cannot mean that the Director's decision must stand. These decisions are made 'in the round'; that is, by having regard to all the circumstances. The one ground does not stand isolated from the other. In my judgment fairness dictates that the entire decision must be reconsidered and that is the order that I will make.

58. There will accordingly be the following orders:

(i) That there be an order of certiorari to bring up and quash the decisions of the Respondent made in refusing the Applicant's application to remain in Hong Kong as a dependant of her husband, her sponsor;

(ii) that the matter be remitted to the Director for reconsideration;

(iii) that there be an order nisi for costs in favour of the Applicant, the order to be made final within 30 days of the date of handing down this judgment unless application is earlier made to seek a different order;

(iv) that there be taxation of the Applicant's costs in accordance with Legal Aid Regulations.

Representation:

Mr Neil Thomson, instructed by Messrs Massie & Clement, for the Applicant

Mr William Marshall S C and Mr Steven Parker SGC, instructed by the Secretary for Justice, for the Respondent

Remarks:
Appeal by the Respondent to the Court of Appeal. Appeal allowed. Please refer to the Appeal Judgment CACV001077/2001.