Marilyn G Aringo and Another v. Director of Immigration

HCAL 96/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 96 OF 2004

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BETWEEN

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Before : Hon Hartmann J in Court

Date of Hearing : 5 September 2005

Date of Judgment : 5 September 2005

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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 applicants, who are husband and wife, seek to set aside a decision of the Director refusing to grant the husband what is commonly called a dependency visa.  The visa, if granted, would allow the husband to live in Hong Kong as his wife’s dependent.

2.The husband and wife were married on 29 June 2003 in Hong Kong.  At the time of the marriage, the wife, a Filipino national, had right of abode in Hong Kong.  The husband did not enjoy that right.  He is a Bangladeshi national, having been born and raised in that country, and was at the time of the marriage a visitor only to Hong Kong.

3.A few days after the marriage, on 3 July 2003, the husband made an application to be allowed to remain in Hong Kong as a dependent of his wife.  By letter dated 17 November 2003, the application was refused.  The letter from the Director says :

“I refer to your application for change of immigration status to take up residence in the Hong Kong Special Administrative Region as dependant of Ms Marilyn G. Aringo (the sponsor). 

Under existing immigration policy, a person may be allowed to come to the HKSAR to join his/her spouse or any resident here as his/her dependant if it is satisfied, amongst other things, that his/her intention is to come to HKSAR to join his/her spouse as his/her dependant, he/she is genuinely dependant on his/her spouse and his/her spouse is able to support his/her living in the HKSAR. 

After careful consideration of your application, I regret to inform you that your application is refused because we are not satisfied that:

(a)   your intention to come to the HKSAR to join the sponsor as her dependant;

(b)   the sponsor is financially capable to support your living in Hong Kong; and

(c)   you are genuinely dependant on the sponsor.”

4.Requests were made to the Director to reconsider his decision.  The Director refused to do so, those refusals being contained in letters of 22 March and 21 July 2004.

5.The applicants together now seek orders of certiorari to bring these decisions into this court and to quash them.  It is the applicants’ case that the decisions, read together and individually, were unreasonable in that they were decisions which could not have been made by any reasonable decision-maker. 

6.The first ground of challenge, as I understand it, is that the husband is in fact a dependent of his wife and that it was unreasonable of the Director to conclude otherwise.

7.To determine this issue requires a brief consideration of the dependency policy itself.  In Christian Bulao Palmis v. Director of Immigration, unreported, HCAL 2104/2001, I gave consideration to the meaning and extent of the policy.  In paragraph 25, I said the following :

“If dependency is the primary consideration, the starting point, in my view, must be the meaning of that word.  It has a plain enough English meaning.  It describes a state of reliance upon somebody.  A dependant is somebody who must rely on another for maintenance, care and support, emotional and material, and is unable otherwise to manage.  A person who can adequately support himself or herself by taking up employment or going into business and who does not require the care of a family member is therefore not dependent on another for that maintenance, care and support, not at least in material terms.  It follows, in my view, that in accordance with the dependency scheme, if the primary purpose - or a principal purpose - of a person applying to reside in Hong Kong as a dependant of a family member is to work, then in the absence of special circumstances, that person is not a dependant.”

I continued in the following paragraph by saying that mutual emotional dependency is not considered to be dependency for the purposes of the policy :

“The facts will of course always determine the issue.  If, for example, a wife seeks to accompany her husband to Hong Kong after he has obtained permission to work here, and while in Hong Kong has no intention to work herself but wishes only to occupy her natural place within the family setting, then even though she has private financial means, she may, it seems to me, whilst she is residing in Hong Kong, be her husband’s dependant, looking to and needing his day-to-day care and support.

I say that, however, subject to the caveat that the mutual emotional dependency that is to be found in genuine family affection is not, of itself and viewed alone, a form of dependency which falls within the Director’s policy.  If it did, then all demonstrations of genuine family ties and the desire to be together would, on its own, fulfil the necessary criteria.  That, in plain terms, would constitute a policy of family reunion, not a policy of dependency.”  [my emphasis]

8.In the letter of 17 November 2003, it was said that the Director was not satisfied that the husband wished to remain in Hong Kong as a dependant of his wife; essentially, he was not satisfied that a position of genuine dependency existed.  That, in my view, cannot be criticised as being an irrational determination.  The husband, a Bangladeshi, had first come to Hong Kong in early 2001 to conduct business here.  Prior to his marriage, his essential connection to Hong Kong was as a visiting businessman.

9.Of more central relevance, when filling out his application form for a dependency visa, the husband filled out an information sheet.  In that paper were two questions.  The first question was : “My reasons for coming to the Hong Kong Special Administrative Region”.  In answer to that question, the husband wrote “To find business”.  The second question was : “My future plan in the Hong Kong Special Administrative Region”.  In answer, the husband wrote : “To make more business here in Hong Kong”.  With his own pen, therefore, the husband made it plain that he wished to settle with his wife in Hong Kong not only so that they could be together but so that he could carry on in business.

10.It has been suggested to me by Mr Beel, counsel for the husband and wife, that, as the first language of the husband is not English, the Director should not have taken these answers at face value.  But the answers given by the husband are simple enough and their meaning is plain enough.  In my view, if the meaning of answers is obvious, the Director is entitled to give them their plain and ordinary meaning.

11.It has been submitted by Mr Beel that the husband has not in fact worked in Hong Kong and has no intention of doing so.  But if the husband is able to settle here and continues his business activities – as he has said he wishes to do – it would be rational, in my view, for the Director to hold that he would not be living here simply as a dependant of his wife but would be in the way of business here, even if that business, for example, concerned the despatch of goods to the Asian subcontinent, to India or Bangladesh.

12.It has been said that the husband intends to live in Hong Kong as a dependent in the sense that he wishes simply to be with his wife, as her dependent, as any married couple are dependent on each other.  But as I have said when explaining the policy, mutual dependency by way of emotional ties in a marriage is not dependency for the purposes of the policy.

13.Accordingly, on the evidence, when the Director made the decisions under review I think it was well within his ambit of discretion to conclude that the husband was not intending to live in Hong Kong as his wife’s dependent and was in truth seeking family union – an entirely laudible aim but not one that falls into the dependency policy.

14.On this issue alone, it seems to me, the application for judicial review must fail.  The husband applied to remain in Hong Kong as a dependent; he did not apply on any other ground.  The Director was not satisfied that he was a dependent.  That determination, as I have said, was well within the discretion of the Director and it was the Director’s decision to make.

15.In the event, however, that I am wrong in this regard, I move on to consider the further grounds of challenge advocated on behalf of the husband and wife.

16.The second ground of challenge is focused on the Director’s finding that he was not satisfied that the wife had the financial capability to support the husband.

17.Mr Beel has submitted that there was no rational basis for the Director to conclude that the wife was not financially well enough off to act as her husband’s sponsor.  This was made evident, said Mr Beel, by the fact that, when the husband and wife sought legal aid to challenge the Director’s decision, they were informed that the wife had too much money to qualify.  In summary, the Director of Immigration said the wife did not have enough money while the Director of Legal Aid said she had too much.  This conflict, said Mr Beel, is evidence that the Director must have reached a perverse decision.

18.I regret I do not see the logic in this.  It is comparing apples with oranges.  The Director of Immigration was looking to proof by the wife of sufficient financial substance to act as a sponsor for her husband, to be able to support him to a reasonable standard of living.  It was his obligation to investigate the wife’s finances and be assured of their substance.  The Director of Legal Aid, however, had no need to investigate the wife’s finances in the same manner.  If she gave a financial statement which exceeded the margins allowed then that ended the matter : she was not entitled to legal aid.  The two departments therefore were managing different policies at different times for different purposes.

19.In any event, on the evidence, it appears that the Director did have rational reason for concern as to the wife’s true financial position.  Inter alia, the Director’s officers conducted an investigation into the financial affairs of the wife, including a visit to a shop which was meant to be managed by her, and including a visit to a place where she was meant to be working part-time.  The shop was found to be shut.  At the place where she was working part-time, it was discovered that she had not been working there for a while. 

20.The third ground of challenge to the lawfulness of the Director’s decisions is one which brings into focus the rights of the wife, as a permanent resident of Hong Kong, under art.19(1) of the Bill of Rights and art.37 of the Basic Law.  The first article states that the family is the natural unit of society and is entitled to protection by the state.  The second article guarantees freedom of marriage of Hong Kong residents and their right to raise a family.  Mr Beel has said that the Director failed to take this into account in considering the application and, on this basis alone, the matter should be remitted for reconsideration. 

21.This ground of challenge – an unusual one – is based on the fact that the husband is a Muslim while the wife is Roman Catholic.  In Hong Kong, it is said, the fact that the couple have a ‘mixed’ marriage does not in any way impinge on their ability to live happily.  However, if they are forced to live in Bangladesh or the Philippines their religious differences will attract such a high level of legal and social disapproval that it will jeopardise their marriage.  In addition, certainly in the Philippines, their marriage will not even be recognised; this is because the wife is a divorcee.

22.This ground of challenge – which was not originally ‘pleaded’ and came before me almost informally – does not appear to be directly related to the Director’s refusal to issue a dependency visa.  It appears to be broader, going to the Director’s discretion to permit a person to live in Hong Kong even though he or she may not qualify under any particular policy.  In plain terms, the submission appears to be this.  The husband and wife have only three places where they can live together : Bangladesh, the Philippines and Hong Kong.  The first two places, however, offer real barriers.  Only Hong Kong will allow them to live together in fulfilment of their marriage.  The Director should therefore have considered the use of his discretion but either did not do so or did so arbitrarily.

23.In March 2004, the solicitors for the husband and wife wrote to the Philippines Consulate-General.  The letter reads :

“We act for the captioned Philippine national, a HKSAR permanent resident.  She has married and divorced two Filipino nationals in the HKSAR and has now married a Bangladeshi.  She has applied to the HKSAR Director of Immigration for a dependant visa for her husband.  Can you please confirm that, as a matter of Filipino domestic law, her divorces will not be recognised and, as such, her present marriage will not be recognised and her alien husband will therefore have no residency rights in the Philippines.”

The Philippines Consulate replied in a letter of the same date, referring the solicitors to Article 26 of the Family Code of the Philippines :

“The only type of divorce recognised under Filipino law is one obtained between a Filipino and an alien spouse and not a divorce between two Filipino nationals.  Thus, in a case where a Filipino spouse obtained a divorce from her Filipino husband in the United State of America, the Philippines Supreme Court declared the divorce as not recognisable under Philippines law, although it may be recognised in the United States.”

24.Nothing is said in the letter concerning the husband’s ability to stay in the Philippines with the wife if the couple wish to live in that country.  There is therefore no evidence of the degree to which, if at all, the non-recognition of their marriage will affect rights of residence.

25.Nor is there evidence of the degree to which, if at all, on a day-to-day basis the husband and wife will be met by hostility in the Philippines.  I am aware that, while the Philippines may be dominantly Christian, there is a large Muslim population.

26.A number of questions remain unanswered, a result perhaps of this challenge being created at the eleventh hour.  Where, for example, if the husband and wife had to go to the Philippines, would they most likely have to live?  In metropolitan Manila or out in the countryside?  With respect, I do not see that the husband and wife can simply toss into the air a couple of balls marked ‘possible difficulties’ and then expect the Director to juggle with them.

27.The solicitors representing the husband and wife wrote to the Consulate-General of Bangladesh.  They did not receive a reply.  The solicitors then made inquiries in Bangladesh and received an opinion from an advocate in Bangladesh, Mr I Nurul Hoque.  The opinion is to the following effect :

“Our country is Islamic State.  Society and its culture pose Islam.  Society and culture are to be observed as constitution of the State U/S 45(Ka) and 46(Kha).  In respect of marriage between a son and a daughter, they are under compulsion to observe Islamic ideologies.  One Muslim boy or girl may not be married to either Christian or Hindu, i.e. non-Muslim.  If any girl/boy gets into marriage with any adverse religion, he/she might not be allowed in the society as per provision including in the State Constitution.  He/she will not be allowed to live in a society as per law of Constitution or of community customs.  He/she may not be allowed to live peacefully, violating provision of Constitution and sectarial custom.  He/she becomes undeserving in his community, getting no mutual social prestige.  So that if my Muslim boy/girl gets married with Christian, he/she loses sectarial dignity in leading peaceful life.  For that reason, that very person is isolated from the State and community.”

28.I confess to having some difficulty understanding the full import of this opinion.

29.As to the existence of formal legal barriers, however, Mr Cooney, for the Director, has referred me to portions of the Constitution of Bangladesh.  Fundamental rights are protected under Part 3 of the Constitution, art.28 saying the following :

“Discrimination on grounds of religion, etc.
(1)	The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or place of birth.
(2)	Women shall have equal rights with men in all spheres of the State and of public life.
(3)	No citizen shall, on grounds only of religion, race, caste, sex or place of birth be subjected to any disability, liability, restriction or condition with regard to access to any place of public entertainment or resort, or admission to any educational institution.”

In Part 3, art.41 reads :

“Freedom of Religion
(1)	Subject to law, public order and morality -
	(a)	every citizen has the right to profess, practice or propagate any religion;
	(b)	every religious community or denomination has the right to establish, maintain and manage its religious institutions.
(2)	No person attending any educational institution shall be required to receive religious instruction or to take part in or to attend any religious ceremony or worship, if that instruction, ceremony or worship relates to a religion other than his own.”

30.The Constitution of Bangladesh, therefore, protects the fundamental right of persons who are resident in that country not to be discriminated against on the grounds of religion, race, caste, sex or place of birth.

31.In light of this and doing the best I can with the opinion from the Bangladeshi advocate, it seems to me that what is being said is the following.  First, that Bangladesh is an Islamic State and that Islamic ideals, to a degree, will underline the meaning and intent of the Constitution.  Second, that, in Islam, a marriage between an Islamic boy or girl and one who is not Islamic is forbidden.  If there is to be a marriage, the spouse of the other religion must convert.  Third, that if there is a marriage between a Muslim and a non-Muslim, that can lead to a loss of place in the community; that is, to being ostracised by the community.

32.However, nothing in the opinion that I have from the Bangladeshi advocate can be read as saying that a couple who have married elsewhere lawfully and who come to Bangladesh will not be recognised as a married couple simply because one of them is Muslim and one of them is not.

33.Social difficulties, of course, are a different matter.  I recognise that in many societies, including Hong Kong, cross-cultural, cross-racial and cross-religious marriages may be faced with difficulties, the more so in traditional societies.

34.Mr Beel has submitted that the Director simply never considered the difficulties presented by the ‘mixed’ marriage of the husband and wife.  But that is not correct.  There is an affirmation from a senior officer in the Immigration Department, Ms Chan Suet-mui, who has said the following : 

“I did not think that the alleged ground relating to question on divorce in the Philippines and the religions in Bangladesh constituted a sufficient humanitarian ground for treating the 2^nd Applicant’s [husband’s] application as an exception to the dependency policy.”

35.Mr Beel’s stronger point is this.  He has submitted that the Director, being aware that the wife’s fundamental rights as a married woman were in issue, and not having sufficient information before him to reach an informed decision, was obliged to carry out his own investigation.  However, he failed to do so.

36.In this regard, Mr Beel has referred me to the decision of the Court of Final Appeal in Secretary for Security v. Sakthevel Prabakar [2004] 7 HKCFAR 187, in particular to headnote (5) which reads :

“The following observations might be of assistance to the Secretary when considering individual cases.  First, the difficulties of proof faced by persons in this situation should be appreciated.  Second, it would not be appropriate for the Secretary to adopt an attitude of sitting back and putting the person concerned to strict proof of his claim; and it might be appropriate to draw attention to matters that obviously required clarification so that the person concerned could address them.  Third, an understanding of country conditions at the time of the alleged torture in the past as well as the present time was usually relevant to the assessment of the claim.”

37.In this case, however, the applicant, who had fled Sri Lanka, had claimed to be a victim of torture in that country and on that basis had resisted his return.  The Hong Kong Government had given an undertaking to the United Nations to investigate all torture claims.  As it was, however, it had delegated all responsibility to the United Nations High Commission for Refugees which had, without giving reasons, rejected the applicant’s claim to be a victim of torture.  The facts therefore were very different from the present case and the guidelines offered must be viewed in that context.

38.That being said, I accept, as a general principle, that there may be cases in which the Director will be under an obligation to institute investigations.  But such cases will be rare.  A person seeking to live in Hong Kong has the burden of demonstrating why he or she should be allowed to do so.  The burden cannot simply be shifted to the Director.

39.Mr Cooney, for the Director, has pointed to the fact that there is nothing, on the evidence placed before the Director, to suggest that, if the husband and wife had to live in the Philippines, the husband would not be given right of residence there.  He has also said there is nothing to suggest that, if the husband and wife were to live in Bangladesh, the wife would not be given residence there.  Mr Cooney has said what I have said; namely, that the burden is always on a person seeking a visa to satisfy the Director that reasons exist for him to exercise his discretion favourably.  The more so, he says, when the Director is being asked to exercise exceptional discretion.  However, in the present case, other than the one letter from the Philippine Consulate-General and the somewhat opaque opinion from the advocate in Bangladesh, there was no material at all going either to legal handicaps or, just as important, to pressing social handicaps.

40.Mr Beel has replied by saying that at the very least the Director should have interviewed both the husband and the wife.  Yes, that may have been desirable.  But was a failure to do so, in all the circumstances, a failure that vitiated the Director’s decisions?  I do not believe so.

41.The applicants had plenty of opportunity – they were being legally represented, after all – to put forward fuller statements as to what the problems were.  It was open to them to investigate matters with the respective immigration agencies, schools, local government and the like, but they did not do so.  What is suggested instead is that the Director should, in cases of this kind – and therefore in all cases that throw up personal difficulties – institute his own extensive investigations.  I do not see that the Director is under any such obligation.  In the present case, for example, it would have been necessary not only to interview the applicants, but thereafter to check out the substance of their allegations.  That itself, in respect of Bangladesh, could involve fairly extensive investigations on the part of the Director, and, in respect of the Philippines, to almost equally extensive investigations by him. 

42.In any event, there is authority to the effect that the fact that the wife in the present case has protections under the Bill of Rights does not mean that both the applicants are covered by the Bill of Rights.  In this regard I have been referred by Mr Cooney to the case of Hai Ho Tak v. The Attorney-General [1994] 2 HKLR 202.  In this case, a 7-year-old boy sought leave to apply for judicial review to quash the decision of the Director to remove him from Hong Kong to the Mainland.  His father and mother had the right of abode in Hong Kong and the boy would have had the right of abode too if he had been born here.  The mother claimed that he had been born in Hong Kong.  The Director said he had not.  Central to the judgment was s.11 of the Bill of Rights which reads :

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any Immigration legislation governing entry into, stay in and departure from Hong Kong or the application of any such legislation.”

In the judgment, Godfrey JA (as he then was) said the following (at 210) :

“In my opinion, the effect of section 11, on its true construction, is this.
(1)	The (Bill of Rights) Ordinance may not be invoked so as to effect, as regards any person not having the right to enter and remain in Hong Kong, any immigration legislation governing his entry into, stay in or departure from Hong Kong, or the application of any such legislation.
(2)	This is so no matter who it is that invokes the Ordinance or on what ground he invokes it.
(3)	In particular (of course) the Ordinance may not be invoked by the person not having the right to enter and remain in Hong Kong.  That being so, it would be the height of absurdity if it could be invoked by someone else, e.g. another member of his family. If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of the family, and it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family.  And section 11 should not be construed so as to attribute a non-sensical intention to the legislature.”  [my emphasis]

Applied in the present case – and I am bound by this judgment – what is being said, in plain terms, is that if the husband has no right to look to the Bill of Rights, then the matter cannot be approached via the back door, so to speak, by the wife doing so.

43.In the present case, the husband is a person who does not have the right to enter and remain in Hong Kong, save by permission of the Director of Immigration.  In the circumstances, if the husband has no call upon the Bill of Rights or the provision concerning marriage in the Basic Law – and the matter essentially goes to him; it is, after all, his application for a dependency visa – then these provisions cannot be made applicable to him via the back door by looking to the wife’s rights. 

44.In the circumstances, for the reasons given, I am satisfied that this application for judicial review must be dismissed.

As to costs

45.Mr Cooney, for the Director, seeks costs.  Mr Beel opposes the application.  He does so on the basis that an important issue concerning the rights of the wife under the Bill of Rights has been raised. 

46.The Bill of Rights issue, however, was not raised in the application for leave.  Nor was it raised by way of an application to amend after leave had been granted.  As I understand it, the issue only arose a few days ago.  It first appeared in Mr Beel’s skeleton argument and Mr Cooney did his best – over a weekend – to bring together some authorities to answer the challenge. 

47.There should have been a formal application to amend.  I only allowed the matter to be argued to ensure that the husband and wife should not be prejudiced.

48.Mr Beel has said that, in a broad sense, the constitutional issue was raised in the last paragraph of the application for judicial review which reads :

“The Applicants say that both limbs of the decision are Wednesbury unreasonable and that the decision must be looked at in the round and rely on the comments of the Court of Appeal in the Orizu decision (copy enclosed) as to the treatment of the wife’s income at the leave stage.”

49.Mr Beel said that if the Director is obliged to act reasonably, he is obliged to consider the rights of relevant person under the Bill of Rights and/or the Basic Law.  That may be correct but it does not thereby mean that when a legal challenge is made, the grounds of that challenge need not properly be identified.  They must be adequately identified and that has not happened in the present case.

50.In applications of this kind, costs normally follow the event and, in my judgment, there is no reason why it should not do so in the present case.  I therefore make an order in favour of the Director.

Mr Trevor Beel, instructed by Messrs Massie & Clement, for the Applicants

Mr Nicholas Cooney, instructed by the Department of Justice, for the Respondent