Baldev Singh and Others v. Director of Immigration and Another

HCAL 149/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 149 OF 1999

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Coram: Hon Yeung J in Court

Date of Hearing: 7 March 2000

Date of Judgment: 7 March 2000

Date of Handing Down Reasons for Judgment: 13 March 2000

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REASONS FOR JUDGMENT

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1. On 7 March 2000 I dismissed the application by the applicants for leave for a judicial review of the decision of the Director of Immigration (the Director) who refused to grant them a change of immigration status to take up residence in Hong Kong. I indicated that I would give my reasons in writing and this I now do.

2. The three applicants Mr Singh Baldev (Baldev), Miss Jasbir Kaur (Jasbir) and Mr Singh Balbir (Balbir) are brothers and sister and they were born in India on 25.11.1977, 8.8.1979 and 17.6.1981 respectively.

3. Miss Jasbir did not pursue her application and was absent on the day of the hearing and the court was only concerned with the application by the brothers.

4. In March 1998, the applicants' father, Mr Singh Malkit (the father) came to Hong Kong as a visitor and was allowed to join his eldest daughter, Ms Baljeet Kaur as her dependant for residence in Hong Kong.

5. In fact Ms Baljeet Kaur only came to Hong Kong in July 1997 and married an Indian national Mr Singh Narbhai in August 1997. She was given dependant status to join her husband in February 1998.

6. The applicants came to Hong Kong on 4 October 1998 purportedly to visit their father and were allowed to remain for three months.

7. Clearly it was not the intention of the applicants to come to Hong Kong as visitors because less three weeks after their arrival, they applied to the Director for changes of their immigration status to take up residence as dependants of their father.

8. The applications were rejected as the Director was not satisfied that the father was financially capable to supporting the applicants' living in Hong Kong.

9. The applicants lodged a letter of objection to the Chief Executive against the Director's decision. The applicants were subsequently asked to confirm if their letter of objection was intended to be a notice under s. 53 of the Immigration Ordinance. There was no response from the applicants and the matter was then referred to the Secretary for Security for her consideration. The applicants' objection was overruled. Hence the present application.

10. It is the applicants' case that they can be adequately provided for financially because their father has a regular employment earning $6,500.00 per month. In addition their sister and her husband are also gainfully employed earning respectively $5,000.00 and about $10,000.00 per month. The applicants further contend that their cases are special in that their mother is dead and they, being unmarried, are financially and emotionally relying on their father.

11. The applicants suggest that their cases come within the criteria of the immigration policy which allows unmarried children to join their parent and the decision of the Director was unreasonable.

12. The applicants had also requested for the "full particulars of the reason" for the decision of the Director. The request was not acceded to and the applicants contend that the rules of natural justice and procedural fairness had not been complied with.

13. As I have said in other cases of similar nature, an alien visitor has no right to stay in Hong Kong permanently. He comes to Hong Kong as a visitor and is allowed to land with a limit stay. He has no legitimate expectation to be granted the right to reside in Hong Kong.

14. Provisions in the Basic Law and the Bills of Right and other International Covenants do not guarantee any family members of a Hong Kong permanent resident, be they spouses or children, the automatic right to reside in Hong Kong.

15. In Ngo Thi Minh Huong v. The Director of Immigration HCAL 137 of 1999, I have made the following observation:

"Hong Kong, being what it is: a modern cosmopolitan city with a large population in a small area and a standard of living much higher than many of its neigbouring countries, not to mention its motherland with over 1 billion people, its attraction to illegal immigrants cannot be underestimated. Unless it is allowed to maintain and enforce a strict immigration policy, the continued stability and prosperity and even the very survival of Hong Kong may well be at stake."

16. The aforesaid observation applies equally to situations whereby visitors want to stay in Hong Kong permanently.

17. It must be always remembered that it is for the Director and not for the courts to administer the scheme of immigration control under the Immigration Ordinance. In the exercise of his discretion, the Director has an absolute discretion on the matter. (Ho Ming Sai & Ors. v. Director of Immigration [1994] 1 HKLR 21 per Litton JA and Godfrey J at page 29.)

18. Unless there was bad faith or the like or unless the circumstances were most unusual and wholly exceptional, an alien visitor could have no legitimate complaint when the Director refused to exercise his discretion in his favour.

19. An alien visitor, just like an illegal immigrant or an overstayer has no right to a hearing, conducted fairly and in accordance with the rules of natural justice, before he is refused the right to reside in Hong Kong. (R. v Director of Immigration, ex parte Chan Heung Mui [1993] 3 HKPLR 533.)

20. An alien visitor's only hope is a compassionate consideration of his case by the Director.

21. In any event, the Director had allowed the applicants to present their applications and had considered their applications. The Director would of course apply his knowledge and experience in assessing the applications. It must always be borne in mind that the Director and his officers must have, throughout the years, gathered information and intelligence from all available sources.

22. The Director, in objecting the applications, states in the affirmation of Leung Shu Kan, a Chief Immigration Officer the following:-

"... I would say that given the special circumstances of Hong Kong which has one of the highest population densities in the world, the Government adopts a strict policy of immigration control and formulates different policies with respect to different categories of people. One of those policies is to allow foreigners to join relatives in Hong Kong as dependants in appropriate cases. While it is true that that policy will enable family reunion, its main purpose is to allow certain categories of close family members i.e. parent, child, spouse to remain when they require the care and financial support of their sponsors in Hong Kong. As such, dependency is an essential element of the policy. The policy also requiries that the sponsor can support the proposed dependant to the required acceptable living standard. Therefore if the sponsor and the proposed dependant choose to live below bare subsistence levels so that in a sense they can claim that the sponsor is able to maintain their living, they will not satisfy the test.

Under the existing policy on dependant, only genuine dependants are allowed to join their families in Hong Kong. It is therefore considered not necessary to impose employment restriction on dependant visa holders. To ensure that the immigration policy on employment, which allows only persons with special skill or experience lacking in the local workforce to work in Hong Kong, is not being undermined and side-stepped by job-seekers disguised as dependants of their relatives in Hong Kong, an application for a dependant visa will not be allowed if the applicant's primary purpose, as found by the Director after looking at all the circumstances, is to work in Hong Kong rather than occupying a national niche in the setting of his family."

23. The approach of the Director is a reasonable one and should be supported.

24. Despite the assertion that the father and the sister and her

husband were able to earn a total of about $16,500.00 per month, it was open for the Director to conclude that Ms Baljeet Kaur and her husband are not eligible to sponsor the applicants' stay in Hong Kong and that the applicants would not be adequately provided for financially by the father who himself resides in Hong Kong as a dependant.

25. There is no basis for the suggestion that the decision of the Director was either unreasonable or illogical.

26. The Director was entitled to reject the applicants' application for a change of their status and there is no valid basis which allows the court to interfere with his decision.

27. The applicants have not demonstrated an arguable case and there is nothing fit for further investigation which might demonstrate an arguable case for the grant of the relief sought by the applicants.

28. In the circumstances, the applications for leave for judicial review must be dismissed and I so order.

Representation:

1st Applicant in person

2nd Applicant absent

3rd Applicant in person

Miss Michelle Chan, GC for the Respondent