Shawnavasudeen Musahuddeen v. Director of Immigration and Another

HCAL 1727/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.1727 OF 2000

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BETWEEN

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Before : Hon Hartmann J in Court

Date of Hearing : 13 October 2004

Date of Judgment : 13 October 2004

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J U D G M E N T

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1.This is an application for judicial review.  The applicant, who is a citizen of India, having been raised in that country, came to Hong Kong as a visitor in May 2000.  Shortly after his arrival, the applicant made an application to the 1^st respondent, the Director of Immigration, to remain in Hong Kong as a dependant of his father, his father being his sponsor.  His application was refused by the Director.  The applicant’s appeal to the Chief Executive in Council was also unsuccessful.

2.The applicant now seeks orders of certiorari to bring up these decisions and have them quashed on the basis that they were unreasonable in the public law sense; that is, decisions falling outside of the parameters of discretion given to the respondents.  Aside from the general contention of unreasonableness, it is contended that the decisions failed to take into account a material factor supporting the applicant’s application; namely, his outstanding academic record.

3.It is further contended that the applicant has been dealt with oppressively by the Director who apparently instituted a prosecution against the applicant for breach of his conditions of stay.  This oppressive conduct, it is said, vitiated the fairness of the procedures adopted by the respondents in considering the applicant’s application and his appeal.

4.The applicant’s father, his sponsor, came to Hong Kong in or about 1972.  He has right of abode in Hong Kong.  As the father’s roots were in India, he raised the children of his marriage - the applicant and a younger sister - in India.  The applicant was therefore schooled in India.

5.The applicant himself was born in 1980.  When he arrived in Hong Kong in May 2000, he was therefore 20 years of age.  On the evidence, it is apparent that he is an intellectually capable young man, fit and well.

6.While still in India, the applicant studied mechanical engineering at a polytechnic.  I am told it was a three-year course running from 1997 until 2000.  The applicant obtained a first class pass.  When the applicant came to Hong Kong, therefore, he was in possession not only of qualifications obtained at school but of post-schooling qualifications too.

7.By way of background, I am told that the applicant’s father first applied for his son to live in Hong Kong as his dependant backed in May 1997.  Papers were submitted.  However, the application did not proceed.  I am told that a business opportunity arose for the father in Japan.  He therefore advised his son to complete his schooling in India, including college or polytechnic, and thereafter to come to Hong Kong.  The applicant has said that it was his father’s advice that he should then come to Hong Kong to further his education.

8.As to the application made by the applicant to remain in Hong Kong, it is to be emphasised that the applicant sought to do so as a dependant of his father.  Put simply, he sought what is commonly called a dependency visa.  He did not seek a work visa nor did he seek a visa which allowed him to attend a course of study here.  The applicant based his application on an assertion, therefore, that his primary purpose for wishing to remain in Hong Kong on an indefinite basis was so that he could assume a natural niche in his father’s family as a dependant of his father.

9.In an earlier decision of mine - Bhupendra Pun v. The Director of Immigration HCAL 1541/2001 (unreported) - I described the Director’s dependency policy in the following way :

“… the policy of the Director has, for many years, been one of strict immigration control.  It is the Government’s often-stated view that without these strict controls the strain on our already crowded facilities may well become intolerable.  Our courts have, on many occasions, recognised this policy of strict control, a policy which is dictated by Hong Kong’s unique geographical, social, historical and economic circumstances.  Expressed in plain language, our courts have long recognised that Hong Kong’s administrative authorities have acted lawfully in determining that they are not in a position to be as generous in their immigration policies as other jurisdictions may be.

But having said that, the Director of Immigration has formulated a number of policies which allow a limited number of people to come to Hong Kong and take up residence here.  One of those policies may be described in the following terms : if, after due investigation, the Director concludes that an applicant wishes to reside in Hong Kong as a genuine dependant of a relative who has sponsored that applicant then a dependency visa will be granted; that dependency visa will be granted without restrictions as to employment.  The reasoning, as I understand it, is simple : if an applicant is coming here as a genuine dependant, then he or she does not come here essentially looking to take up employment.  There is, therefore, no need to place a restriction on that person’s residence.

Of course, the Director has to ensure that this particular policy does not undermine a separate policy administered by him; namely, the policy of granting people employment visas.  If persons state that they wish to come here as dependants but are found to be here, in reality, seeking jobs, then they must apply to come here in terms of the Director’s policy concerning employment.  They cannot, as it were, obtain an employment visa ‘via the backdoor’.  The Director expresses it essentially in the following manner.  If the primary purpose —or a principal purpose — of applying for a dependant visa is not only to be with family but to work in Hong Kong, then the person seeking to come here as a dependant does not fall under the policy.

The Director recognises that in almost all cases, when a person seeks to join a member of family in Hong Kong, one of the principal reasons is family reunion.  The Director sympathises with this; it is natural for families to wish to be together.  But the Director has not formulated a policy of family reunion.  He has formulated a policy in terms of which a family member may come to live here to occupy a natural niche in the setting of the family as a dependant.  Dependency is therefore the key issue.”

10.The applicant, in making his application for a dependency visa, had the burden placed on him to demonstrate that he was entitled to that visa.  In this respect, when the application was first processed, the applicant’s father placed a letter before the Director.  In that letter, dated 5 June 2000, the father asserted that he was financially capable of caring for his son, earning a salary of $15,000 per month plus an extra amount by way of employment with a security company.  He went on to say, by way of a postscript, that his son had come to Hong Kong in order to further his studies but that he would seek employment once he had obtained his Hong Kong ID Card.  The father said that his son hoped to study navigation at the Hong Kong Polytechnic by way of evening classes.

11.Several weeks later on 28 June 2000, the applicant himself placed a letter before the Director.  In my opinion, this letter left no room for doubt that one of the primary reasons why the applicant had come to Hong Kong — if not the primary reason — was to find work and to forge a career for himself.  In the letter he said :

“I the undersigned Musahuddeen Shawnavasudeen, who applied for dependant visa to stay in Hong Kong.  I just currently graduated in polytechnic.  I intend to join a mechanical engineering company or any other related job in Hong Kong for further experience and for a good prospect.  Since my father is residing in Hong Kong without any obligation I would prepare to live with him.”

12.On the basis of these two letters, I fail to see how it can be asserted that the Director acted irrationally in coming to a finding of fact that, far from wishing to reside in Hong Kong as a dependant of his father, the applicant sought to live here, albeit with his father, in order to build a career for himself.

13.The intention to further the applicant’s studies was stated but the letters cannot be read, in my view, to the effect that the son wished only to obtain academic qualifications here.  Any further studies were clearly taken by the Director to be incidental to the primary purpose of forging a career.

14.The applicant has complained that the letters do not really reflect what he and his father intended to say.  The applicant has told me this morning that at the time he was not experienced in expressing himself in the English language and that, in the course of the bureaucratic process of that application, he was effectively instructed what to write.

15.There is however an affirmation signed by the Immigration Officer who conducted the interview denying any form of oppressive conduct or dictation of what was to be said.  In addition, I have to take into account that the letters of the father and the son are several weeks apart.  It cannot be said therefore that they were both subject to the same pressures at the same interview.  The applicant has not suggested that he was in any way threatened or bribed to write the words he did.

16.As I have understood his submissions, the applicant has said that he was not certain of the true legal position, that he was not properly advised and that, upon the suggestion of the Immigration Officer, he wrote words which are now telling against him.  I do not wish to be unkind but I have understood the applicant to be saying that if he had known better at the time he would not have written what he did.  That may be so.  But I see no reason why the Director was not able to read the letter of the applicant (read with the father’s letter) as stating the true intention of the applicant at the time.  As such, it seems to me to be entirely rational for the Director to come to a conclusion that the primary purpose of the applicant coming to Hong Kong was not to reside here solely as a dependant of his father but was instead, if not immediately, certainly in the near term, to live here in order to build a career.

17.Indeed, in a set of frank submissions made by the applicant to me this morning, the applicant has said that, although he was raised and educated in India, it was always his father’s intention that he should come to Hong Kong in due course, obtain a suitable qualification and then work so that he could follow in his father’s footsteps and thereby ‘inherent’ the many opportunities that Hong Kong had to offer and that his father had enjoyed for so long.

18.As to his academic qualifications obtained in India, although he did not refer to the point during his course of submission, I took the applicant’s case to be that the Director should have taken into account that the applicant would be an asset in Hong Kong and not a liability.  But, while I applaud the applicant for his achievements, and while I accept that the Director has a broad residual discretion, I do not see how it can be said that the failure of the Director to take this issue into account — if it was, in fact, ignored — was so material as to vitiate the decision.  It must be remembered that the Director was considering an application for a dependency visa and not a work visa.  As such, the Director was not looking to the possible contribution that the applicant could make to Hong Kong.

19.As to the dependency policy itself, I am told by Ms Chan, counsel for the respondents, that the dependency policy did at one time allow for an unmarried child under the age of 21 to come to Hong Kong as a dependant.  But age was not the only factor.  It had to be shown that the child came to Hong Kong as a genuine dependant.

20.Ms Chan has informed me that in the present case the Director concluded on the evidence before him that the applicant’s primary intention in coming to Hong Kong was to further his career.  He had been raised in India, he had been educated in India, he was now 20 years of age, he was fit and well.  In addition, the applicant himself had said in writing that he wished to obtain work here.  On that basis, said Ms Chan, the Director was clearly entitled to reach the finding of fact that he did; namely, that the applicant had not satisfied him that he qualified for a dependency visa.

21.During the course of submissions this morning, the applicant protested that he came to Hong Kong essentially to further his education.  Any intention to work was something well into the future.  However, the applicant was not able to show me any evidence concerning courses that he had applied to join or the reaction of our academic institutions concerning applications made by him to take one or more of those courses.  The applicant has told me that he made inquiries but unfortunately the institutions involved were not prepared to put pen to paper to say whether they would be prepared to accept him or even if he held the necessary entrance qualifications.  I confess to be in puzzled by this.  At the very least, I would think, if the applicant had put his case firmly, he would have been able to receive some indication of whether his entrance qualifications would be acceptable.  But even if I am wrong in this regard, the burden at all times rested on the applicant to demonstrate his case to the Director and in this regard there is not evidence that he did so.

22.I have been at considerable pains to map out for the applicant the full nature and extent of the Director’s policy of dependency, explaining that policy against the background of Hong Kong being forced to exercise a restrictive policy of immigration.  In this regard, I have referred to more extended passages from my judgment in the case of Bhupendra Pun v. Director of Immigration.  I do not intend to repeat all of the matters to which I referred.  However, I incorporate my findings and observations concerning the policy contained in that judgment into this one.

23.I have considerable sympathy for this applicant.  It is apparent that he is a well-educated young man who is frankly confused as to why it is, if his father has right of abode in Hong Kong, that he cannot come and live with him so that in due course he can effectively assume his father’s place in this territory.  But, as I have explained to him, regrettably Hong Kong does not have a policy of family reunion.  If the applicant was seeking perhaps to join his father in the father’s business, then he would have to go by the route of a work visa, but he has not done so.

24.In his application, the applicant spoke of the process of his application being vitiated by oppressive conduct.  The applicant has not advocated this before me this morning.  But even on the papers, I find no substance in it.  The Director clearly had grounds for bringing a prosecution.  There is nothing to suggest that the Director allowed the fact of the prosecution itself to so influence his discretion that it resulted in a refusal when it may not otherwise have done so.

25.In all the circumstances, I am unable to come to a conclusion that either the Director or the Chief Executive in Council was wrong in law in holding that, on the material before them at the time, the applicant did not fulfil the necessary requirements to be admitted to Hong Kong as a dependant of his father.

26.I have explained to the applicant, again at some length, that it is not for me to look to the merits of this matter.  The merits were for the Director and the Chief Executive in Council.  I can only look to the lawfulness of the decisions.

27.Before concluding, I mention that the application for a dependency visa was also rejected because the Director had difficulties in respect of the father’s financial ability to support his son.  On the papers, it does seem as if there were a number of discrepancies in the evidence put forward by the father concerning his financial status.  In my judgment, however, this application for judicial review can be resolved without difficulty on the single basis that the applicant was not able to demonstrate that he intended to reside in Hong Kong in terms of the Director’s policy of dependency.

28.In the circumstances, while I sympathise with the predicament of the applicant, I am satisfied that his application for judicial review must be dismissed.

29.In respect of costs, I have heard submissions in respect of a summary assessment.  I have considered the figures, explained the matter to the applicant, given him the chance to make representations and have concluded that I should make a summary assessment of costs in the sum of $170,000.  I therefore make the order.

Applicant, in person, present

Ms Michelle Chan, GC, of Department of Justice for the 1^st and 2^nd Respondents