Murali Duraisamy v. Director of Immigration

HCAL 152/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 152 OF 2004

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BETWEEN

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Before: Hon A Cheung J in Court

Date of hearing: 24 October 2005

Date of judgment: 2 November 2005

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J U D G M E N T

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1.The Applicant is now 19 years old.  He was born on 3 June 1986.  His father is a permanent resident of Hong Kong, working as a cook.  The Applicant, having been born and brought up in Vellore, India, has applied to come to Hong Kong in 2003 together with his mother and younger brother for a stay of one year.  That application was unsuccessful.  There was no challenge against the refusal of the application.

2.On 15 July 2004, he came to Hong Kong as a visitor.  Five days later, he filed an application to take up residence in Hong Kong as a dependant of his father.  He said he wanted to pursue further studies in Hong Kong, he having ceased education in India since 2002.  At the time of his application, he was 18 years and 1 month old.

3.On 16 September 2004, the Director of Immigration refused his application for two reasons: first, he was overage; second, the Director was not satisfied that he was genuinely dependent on his sponsor (i.e. his father) or that he came to Hong Kong to join his father as his dependant.

4.Dissatisfied with the decision of the Director, on 23 September 2004, the Applicant’s father applied to the Director for reconsideration of his son’s case.

5.Five days later, in another letter, the father claimed that his son was a “sick person” who needed “long term medication”.  He maintained that his son’s sole reason for coming to Hong Kong was to join him as his dependant.  He would study in Hong Kong for a few years and then he would be sent overseas for further studies.  He said there were therefore compassionate grounds for allowing his son’s application.  The father’s letter was supported by, amongst other things, a letter written by Dr Ali, a medical practitioner, on the Applicant’s medical condition (rheumatic fever/pain).

6.On 7 October 2004, the Director by letter again rejected the application after a “thorough reconsideration of all relevant matters and a close review of all the issues raised”.  The letter said no reason or justification for reversing the previous decision was found.

7.By the present proceedings, the Applicant seeks to challenge the decisions of the Director made on 16 September 2004 and 7 October 2004 respectively.

8.The Director’s immigration policy, including in particular the dependency policy, is well known to the court:  see for instance, Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999, Stock J (10 December 1999); Bhupendra Pun v. The Director of Immigration, HCAL 1541/2001, Hartmann J (22 January 2002) and Ghulam Fizah v. Director of Immigration, HCAL 63/2003, Hartmann J (16 July 2004).  It is a restrictive policy made in the light of Hong Kong’s particular circumstances, given its size and high population density.  The dependency policy is not challenged in the present case.  It is accepted that an applicant has to show a genuine dependency.  Moreover, the sponsor must be able, out of his or her own resources, to help and maintain the applicant.  But what is most important for the present case is that the dependency policy is limited to unmarried applicants under the age of 18.  Exceptionally, an overage applicant may be allowed to stay as dependant of his or her sponsor if there are “strong compassionate or humanitarian reasons or other special extenuating circumstances” – Bundle of documents, p. 58 (para. 10).  Moreover, according to the materials before me, in administering the policy (including the exception), “how much the applicant is over 18 is in fact irrelevant to whether compassionate grounds exist in the application” (Bundle of documents, p. 102, “M18”, para. 4(ii)) – that has been accepted by counsel and not challenged in these proceedings.

9.In those circumstances, the focus in the present case must be on the presence or absence of “strong humanitarian or compassionate reasons or other special extenuating circumstances”.  The Director has concluded that there were no such reasons or circumstances.

10.The Director did not accept the Applicant’s illness or condition as a sufficient reason or circumstance.  This has been discussed in an internal memorandum (“M18”) that has been placed before the Court.  It reads:

“(iii) For point (b) [i.e. that the Applicant needs to receive medical treatment in Hong Kong], as the applicant never mentioned about his illness in his previous applications for dependant status in H.K., I cannot refrain myself but consider that the applicant’s motive for suddenly raising such issue to ask for our consideration of his case is quite doubtful and weird.  With reference to the letter from applicant’s doctor at encl (40), the applicant was under the doctor’s care since 17-07-04.  In view of that this C/S (Dep) application was submitted on 20-07-04, if the sponsor and the applicant really think that it is necessary for the applicant to receive medical treatment in H.K., it is really surprising why they did not request our consideration of the applicant’s health at an earlier time.  The applicant’s current simultaneous move to raise his health condition for our attention and request our reconsideration of the previous refusal decision on his C/S (Dep) application only further casts doubt on the applicant’s intention in this application.  Focusing on the applicant’s health condition, as stated in his doctor’s letter at encl (40) that the applicant suffered from rheumatic fever with carditis and multiple joint pain and he had shown some improvements after undergoing a series of treatments in H.K., based on the available information, I consider that the applicant’s present health condition cannot form a sturdy base for us to reverse our refusal decision on grounds as follows:

(I) There is no indication that the applicant will encounter any difficulty if he returns to IND [i.e. India] and take up the medical treatments for his illness in IND.

(II) The medical treatments the applicant received in H.K. making his health condition improved should not be regarded as a valid reason or necessity for the applicant to stay in H.K.  The case can be construed that a genuine need to reside in H.K. should not be only out of an applicant’s condition of illness having been improved by medical treatments in H.K.

(III)  I am of the same view with the case officer at M10 (vide para. 11) that there is no dependency factor established in this application.  Although the applicant now raises his health condition for our consideration, there is no change of the applicant’s family background in this application that his mother and siblings all still resides in IND.  I consider that still no dependency factor can be seen upon this reconsideration request.  Although it is not in our position to assess the condition of the applicant’s illness, it is envisaged that his family members in IND can provide support to him to face his illness.  Hence, I fail to see any hurdle the applicant, being IND born and bred, is required to overcome if he returns to IND to continue his living.”

11.The onus was certainly on the part of the Applicant and/or his sponsor to make out a case, based on the Applicant’s medical condition, falling within the exception of “strong compassionate or humanitarian reasons or other special extenuating circumstances”, so as to justify the exercise of discretion in the Applicant’s favour.

12.I do not find the doubts, analysis and reasons of the Director to be Wednesbury unreasonable, on the materials that had been placed before him.  The Director was quite entitled to have his doubts about the seriousness of the Applicant’s condition.  Certainly the burden was on the Applicant to satisfy him that he genuinely required treatment of his condition in Hong Kong, as opposed to seeking and obtaining such treatment in India.  The Applicant had not alleged that such treatment was not available in India, and even in these proceedings, no such allegation is made.

13.During argument, counsel for the Applicant relied on a sentence in Dr Ali’s supporting letter dated 27 September 2004 that the Applicant had sought medical treatment in India “but with no improvement” to say that he therefore required treatment in Hong Kong.  I am afraid that was totally insufficient.  There were no details whatsoever about the medical treatment sought and obtained in India, the reason why there was no improvement despite the treatment received in India, and the general availability of treatment in his home city and other parts of India.

14.The determination of the material facts and the application of the relevant policy to the facts as determined are primarily the function of the Director.

15.This Court does not sit on appeal from the Director’s determination or decision.  It only plays a supervisory role.  As I have observed in Mumtaz Hussain v. The Chief Executive in Council, HCAL 163/2002 (18 November 2003), paragraph 8:

“8. Turning to the Director’s several decisions, there can be no dispute that the Director has been vested with a wide discretion regarding applications for a change of status.  Policies of immigration control are involved here, and the courts have without exception paid high regard to the immigration policies formulated by the Director and the implementation of these policies in the Director’s day-to-day decision-making process.  The court’s role, sitting in a judicial review application, is merely supervisory in nature.  It does not perform the role of a first instance fact-finding tribunal, nor does it exercise any appellate jurisdiction from the decision of the Director.  It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct:  Kemper Reinsurance Co. v. Minister of Finance [2002] 1 AC 1, 14H (per Lord Hoffmann).”

16.As to the lack of an interview by the Director and an opportunity to explain his case in greater detail, I note that even up to now, the Applicant has failed to place before the Court any further supporting materials from India or his treating doctor(s) in Hong Kong regarding his condition, treatment and prognosis – past, present or future, despite that he has been staying in Hong Kong since July last year.

17.In all the circumstances, I see no ground or reason for interfering with the Director’s view on this aspect of the case.

18.Apart from the Applicant’s medical condition, there is really nothing in this case that may bring it remotely within the category of “strong humanitarian or compassionate reasons or other special extenuating circumstances”.

19.The Applicant says that he has suffered “cultural shock” after coming to Hong Kong because of the cultural and language barriers.  That I am afraid is totally irrelevant.  The “cultural shock” would cease to exist the moment he returns to India, where he was born and has lived his entire life less the past year.

20.Wanting to study in Hong Kong cannot be a humanitarian or compassionate reason, or a special extenuating circumstance.  Nor does the intention to join the sponsor as his dependant in Hong Kong qualify as such.  As has been said many times, the dependency policy is not itself a policy of family reunion.  In any event, if the Applicant genuinely wants to study in Hong Kong, he can apply for a student visa to study here.  That would be another application.

21.This being the case, I think it is really quite unnecessary to dwell on the secondary reasons given by the Director to refuse the two applications, i.e. that the Applicant was not a genuine dependant and he did not come to Hong Kong to join the sponsor as his dependant.  In my view, all these merely constitute a sort of “fallback position” for the Director, which were mentioned “by the way”.  Counsel for the Applicant accepted in argument that even if the Applicant was accepted as a genuine dependant and the Director was satisfied that he came to Hong Kong to join his father as his dependant, that by itself would not be sufficient to qualify his case within the category of exceptional cases involving strong humanitarian or compassionate reasons or other special extenuating circumstances.  Otherwise, there would be no need for setting any age limit under the dependency policy.  That is why in this judgment I have been focusing on this category of exceptional cases, an approach which counsel has also agreed with the Court during the hearing.

22.But I should not be taken as suggesting that the Director’s determination that the Applicant was not a genuine dependant and he did not come to Hong Kong to join his father as his dependant is open to challenge.  The Director has in the materials placed before the Court in these proceedings revealed his officers’ thinking process and analysis of the evidence and issues.  In paragraphs 9 to 11 of “M10” (pp. 96-97), the Applicant’s case was considered as follows:

“9. At (26), the applicant finished his higher secondary level in the India in March 2002.  After graduation, he failed to gain the admission to the technical college.  Therefore, he all along did nothing and stayed at home.  He produced school certificates at (24) as proof.  However it is found that sponsor stated at the Information sheet submitted in previous application in 2003 that applicant would come to Hong Kong to visit him and stayed here for one year.  Then applicant would return to India for study.  This time sponsor stated that applicant want to study in Hong Kong and also give assistance to him (26).  It is considered that should applicant really interest in pursuit of higher education, he ought to continue his studies right after his graduation in the India in 2002.  It is doubted that why the applicant wants to continue his studies in Hong Kong after quitting studies for more than two year.  Furthermore, it is unconvincing that the applicant had the intention to further his study in Hong Kong instead of his home country.

10. When applicant came to HK on 15-07-2-004, he was interviewed by our counterparts at the Airport.  During the interview, applicant claimed that he came here to visit his father and he was holding return ticket ….  Hence, there is no indication that applicant has the intention to further his study here.

11. Applicant previously submitted Entry dependant application with his mother and younger brother ….  All the applications were refused on intention and finance grounds.  This time, sponsor applied dependant visa for applicant only.  It is considered that applicant is an able-bodied adult of 18 years old.  It is believed that applicant has sufficient capacity to live independently.  He is objectively, not a dependant child of the sponsor.  Besides, sponsor stated that applicant stayed here so as to give assistance to him, it prove that applicant can absolutely manage everything by himself.”

23.In paragraph (iv) of “M18” (pp. 102-103), further thoughts were given to the matter as follows:

“(iv) In addition, the applicant submitted some documents at encl (43) – (45) to show us his plan to study a diploma course in Business in H.K.  However, I am of the view that such a study plan should not be considered as a basis of eradicating our doubt towards the applicant’s intention in this application as stated at para. 9 & 10 of M10.  Instead, such study plan is reasonably suspected as a move tailor-made for this application as the applicant only raised his study plan after our refusal decision and noticing one of the reasons of refusal “we are not satisfied that he come to the HKSAR to join the sponsor as his dependant” in the refusal letter (encl 34).  Since we [assess] applicants’ intention to apply for dependant statuses based on the applicants’ background and circumstances of the applications, in this application, the applicant had quitted his studies for more than two years and never mentioned about his study plan when intercepted at Airport by our officers upon his arrival (para. 9 & 10 of M10), it is reasonable to infer that the applicant’s primary intention to acquire resident status in H.K. is in doubt in this application.”

24.Given the secondary importance of this issue to the present judicial review application, it suffices for me to say that the Director was entitled to his doubts on the facts and evidence before him.  As pointed out above, this Court does not sit on appeal from the Director’s determination.  I am unable to say that his determination was irrational or Wednesbury unreasonable.  In fact, as already pointed out above, even if the Applicant were a genuine dependant and he genuinely came to Hong Kong to join his father as his dependant, that by itself would not be sufficient to bring him home, in the absence of “strong compassionate or humanitarian reasons or other special extenuating circumstances”.  It is the absence of such reasons or circumstances that is determinative of the present judicial review application.

25.For these reasons, the present application for judicial review must be dismissed.  I so order.

26.As for costs, having considered the breakdown of costs submitted by counsel for the Respondent during the hearing, I make a costs order nisi that the Applicant pay to the Respondent the costs of these proceedings in the gross sum of $100,000.  Unless either party should apply to vary the order nisi within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.  Enforcement of the costs order is, of course, in the discretion of the Director.

Ms Nisha Mohamed, instructed by Messrs Quan & Co, for the Applicant

Mr Nicholas Conney, instructed by the Secretary for Justice, for the Respondent