Rana Magar Binod Kumar v. Director of Immigration

HCAL 147/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 147 OF 2004

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BETWEEN

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Before : Hon Hartmann J in Court

Date of Hearing : 1 September 2005

Date of Judgment : 1 September 2005

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J U D G M E N T

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1.The applicant in this matter, a Nepalese national, seeks by way of judicial review to set aside a decision of the Director of Immigration refusing him a visa in terms of which he could reside in Hong Kong as a dependent of his wife, a Hong Kong permanent resident.

2.The relevant background is as follows.

3.The applicant was born in Nepal in 1954.  He came to Hong Kong in 1996 in order to take up employment here as a domestic helper.  He remained here in this field of employment until March 2004.  It appears that at about that time he became unemployed.

4.On 2 April 2004, a few days before his visa was to expire, the applicant went to the Immigration Department to seek an extension of stay.  He did not specify the reason for his application, only that he wished to stay longer.  He was granted a stay of 14 days as a visitor, that extension to expire on 16 April 2004. 

5.On 13 April 2004, three days before the expiration of his extension, the applicant was married at the Tsim Sha Tsui Marriage Registry.  He married a Hong Kong permanent resident, Ms Pun Yuk-ching.  At the date of marriage, the applicant was 50 years old.  His wife 39 years old.  Both were divorced.  The matrimonial home was stated to be in Canton Road, Yau Ma Tei. 

6.On 15 April 2004, two days after the wedding, the applicant submitted an application for change of immigration status so that he could live here as a dependant of his wife who had agreed to act as the sponsor.

7.The Director wished to be assured that the marriage was not simply a device to allow the applicant to circumvent immigration restrictions; in short, that it reflected a genuine intimacy and a desire to live together as man and wife on the part of the applicant and his wife.  Information was sought and, in addition, the couple were interviewed on two occasions.

8.It is universally recognised by those who have any connection with immigration matters that arranged marriages are employed as a means of avoiding immigration restrictions.

9.When the first interview took place, the applicant and his wife asserted that they had been living together since their marriage – in the matrimonial home – a period of over two months.

10.The Director authorised his officers to question the applicant and his wife separately from each other in order to ascertain what in fact they knew of each other.  Various questions were put to each of them as to the day-to-day circumstances of their married life and what they knew of each other’s background.  The answers were recorded.

11.When the second interview took place on 24 August 2004, the inconsistencies which the Director’s officers had identified were explained to the couple and, interviewed separately again, they were given an opportunity to explain how those inconsistencies may have arisen.

12.In addition, as I understand it, the Director’s officers conducted collateral investigations.  For example, the sponsor was asked to give details of her financial situation, the principal purpose being to ascertain whether she was financially capable of sponsoring the applicant.

13.Dependency visas are issued on the basis that there is a genuine relationship of dependency, not simply a relationship of intimacy.  It is understood that if there is a genuine relationship of dependency, the dependant will not, himself or herself, wish to seek independence by way of obtaining employment in Hong Kong. 

14.Having conducted these investigations and analysed the results of the interviews, the Director refused the application for a dependency visa.  In a letter of 5 November 2004, the Director said the following :

“Having considered all the information and circumstances of your application, we are not satisfied that your matrimonial relationship with Ms Pun Yuk-ching is a genuine one and that your marriage is not a marriage of convenience, enabling you to gain residence in the HKSAR.  We do not believe that you intend to live together permanently with Ms Pun Yuk-ching as wife and husband.  Your application is therefore refused.”

15.It is this decision that is challenged by the applicant.  On 23 November 2004, the applicant filed notice of application for leave to apply for judicial review, seeking an order of certiorari to quash this decision together with a declaration that the decision is unlawful.  He also sought an order of mandamus in terms of which this court should order the Director to permit the applicant to remain in Hong Kong as a dependant of his wife.

16.I would add that the Director had refused the applicant an extension of stay in order to bring this litigation and this was challenged too.  But the essential issue has always been – and remains – whether the decision refusing the application for a dependency visa was a lawful decision.

17.The matter came before me on 11 January.  On that occasion I heard submissions from the applicant and granted leave.  I said the following :

“In the circumstances, as a challenge to the legality of a marriage is a grave issue, I think it would be wrong in principle, having regard to the test that presently applies for granting leave, to reject this application for leave.”

18.Earlier in that ruling, however, I had acknowledged that there had been inconsistencies in the interviews conducted by the Director’s officers, those inconsistencies often being material :

“I accept that inconsistencies have been shown between the Applicant and his sponsor, his wife.  Indeed, this morning when I asked the Applicant a number of questions, his answers, it may be said, were subject to criticism in the sense that they did not obviously reveal a relationship of intimacy built up over an extended period of months between himself and his wife.”

19.I then went on to say :

“But all marriages are different.  The Applicant himself has said that the inconsistencies can be explained.  He asks - by way of analogy - how can he be expected to remember what he wore the day before yesterday?  A woman may remember the colour of a man’s tie a week later.  A man may not know the colour of a woman’s dress even though he’s only just left her five minutes ago.  In addition, people have their own habits and their own arrangements, some normal, some not.”

20.The applicant’s challenge is founded on the contention that the decision of the Director was perverse, arbitrary, ill-founded and was a decision which no reasonable decision-maker could make.  To use the public law term, it was an irrational decision. 

21.The relevant law has, I think, become settled.  In this regard, I can do no better than refer to a judgment of mine given on 22 January 2002 in the case of Bhupendra Pun and Nandaram Pun v. Director of Immigration (unreported) HCAL1541/2001 :

“In Aita Bahadur Limbu v. Director of Immigration, HCAL133/1999, Stock J, as he then was, comprehensively summarised the approach of our courts when challenges of the kind mounted by these Applicants are to be determined.  His dicta has been adopted as the definitive statement on the matter by other judges of the Court of First Instance and I can do no better than cite it in full : 

‘The Applicant has no right in law to remain in Hong Kong as a resident and the decision is one within the discretion of the Director.  He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain.  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 has 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 the merits.  Where the determination of facts are left to the Director, and the facts sweep across a range from the obvious to the debateable 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 is acting perversely. 

Put plainly, it is not enough for the two Applicants, who have no legitimate expectation of being entitled to reside in Hong Kong, to advance matters which support their case and to say, at the end of it : ‘This has always been a reasonable application and we cannot understand why it has been refused.  Therefore the refusal is perverse.’  The Applicants must go further.  They must show that the Director has gone beyond a decision that is debateable, or even just conceivable, and has gone into that far realm of perversity which is an affront to the common sense of reasonable decision-makers.  For an Applicant to show that, I confess, must be a daunting task.”

22.If I can put it in plain language, it is not for this court to sit as a court of appeal to judge the merits of the decision reached by the Director.  When an applicant appears in person, the temptation exists to take on the role of a court of appeal, if only to try and better understand the applicant’s case and, as in the present instance, to better understand the basis upon which the applicant contends that the decision of the Director is a perverse one.

23.In the present case, both at the leave stage and now at the substantive hearing, I have asked the applicant a number of questions to better understand his case.  I have not done so, however, on the basis that I sit as a court of appeal.  I have done so simply to try and better understand the applicant’s case and, in that process, to test the substance of his challenges. 

24.With advances in public law, it may perhaps be said that a decision of the Director which is only ‘just conceivable’ may not today be a decision which is nevertheless reasonable.  But even with that caveat, the applicant must understand, not only that I am not here to judge this matter on the merits, but of equal importance, that the Director himself, in looking to the merits, is given a very wide area of discretion by this court.  The Legislature and the Executive have given to the Director the authority to make decisions of this kind and it is not for this court to usurp that authority.  The court may only act in accordance with law and may only interfere with a decision made by the Director if it is satisfied that that decision is an unlawful one.  As Stock J said in the citation that I have given, this court is concerned with matters of legality and not with factual merits.

25.The issue therefore is a simple one.  Has the applicant, on a balance of probabilities, been able to demonstrate that the decision of the Director in the present case was so unreasonable that it falls outside of the broad discretion given to him in matters of this kind?  In my judgment, the applicant has not discharged that burden.

26.The fact of the matter is that the interviews conducted with the applicant and his wife did reveal extensive inconsistencies.  Those inconsistencies, on an ordinary reading, when an opportunity was given to have them explained, were not, in each and every instance, convincingly explained.

27.It is not for me to go through each and every inconsistency but it is, I think, necessary to go to just a couple to illustrate the difficulties the applicant has faced.

28.At the first interview, the applicant was asked what his wife had worn the previous night.  He said that his wife had worn a brown t-shirt and pink short pants.  The wife, when asked the same question, said that she had worn a one-piece pink sleeping gown.  The applicant said his wife had slept on the left-hand side of the bed.  She said she had slept on the right-hand side of the bed.  He had said the air-conditioner had been on.  She said the air-conditioner had been off.  These questions were asked in respect of a state of affairs less than 24 hours old. 

29.Each and every marriage is, of course, different.  Neither the applicant, nor the wife, were, at the time of their marriage, in the first blush of youth.  Even in the first couple of months of marriage, therefore, one may not necessarily expect constant intimacy, but the answers given were given on the basis that the couple had gone to bed together the night before and indicate a chasm between their memories.

30.There were other matters. For example, neither had any idea of the other’s date of birth.  The matrimonial home had, by the date of the first interview, been the home of the couple for over two months.  The applicant said that the matrimonial home – a small apartment – had a blue-coloured wall and no fan in it.  His wife said that it had a cream-coloured wall and had a table fan in it.  At the second interview, when asked to explain this difference, the wife said that she had misunderstood the question and thought she was being asked about the colour of the window instead of the wall.  She went on to explain that the fan belonged to others and that, in fact, they did not own a fan.

31.There were other inconsistencies of a greater or lesser kind.  For example, although the applicant knew the home telephone number, his wife had no idea of it.  At the second interview, when asked to explain how she did not know the number of her own home, she said she had no right to use that telephone and had therefore not bothered to learn the number.  No explanation was given as to why she had no right to use the telephone in her own home.

32.Collaterally, at the leave hearing, when I asked the applicant a few questions, the issue arose of his relationship with his parents-in-law.  In paragraph 12 of my ruling at that time, I said the following :

“This morning when speaking to the Applicant, I asked him about his relationship, if any, with his in-laws.  He explained that although his wife still had a good relationship with her parents, he had never met them as it was simply not ‘appropriate’.”

33.This morning I asked the applicant again about his in-laws, reminding him of the fact that the issue had arisen before.  This morning he said that, as his wife had left her family and did not have an ongoing relationship with them, naturally enough, he did not have a relationship with them either.  When I put it to him that this was very different from what he had said on the last occasion, he answered that he thought I was talking about his first wife from whom he had been divorced for some time.  Even he had to smile when I questioned the validity of that answer. 

34.It should also be said that the finances of the wife were examined and, although not a great deal arises from this, the information shows, for example, that she received a payment of $10,000 on or about 8 April 2004, just a few days before the marriage.  This she described simply as a ‘personal loan’, no further details being given.

35.These matters must be considered within the full context.  Put plainly, we therefore have the following : The applicant, after a good many years in Hong Kong, working as a domestic helper, is faced with a situation where he must now leave Hong Kong.  Indeed, he is only given a two-week extension.  Three days before the expiration of that extension, he marries.  He marries not another Nepalese but a Hong Kong permanent resident.  Two months later, when the couple are interviewed separately, it is, on any ordinary reading, apparent that they have very little knowledge of each other and, even in respect of simple matters such as activities over the past few days, give different versions. 

36.The applicant has, in respect of a number of matters, attempted to explain how the discrepancies could have arisen.  But it is not for me to determine the merits of the explanations.  The officers of the Immigration Department, in the interview of 24 August 2004, gave both the applicant and his wife the opportunity to make those explanations.  This morning, for example, as to which side of the bed the couple slept in, the applicant said that he conceived matters in terms of points of the compass rather than left and right.  But the record of interview in August 2004 does not suggest anything of that kind. 

37.In all the circumstances, I am unable to see how it can be said that the decision of the Director in this particular case can be condemned as being perverse, arbitrary or ill-founded.  Indeed, many reasonable onlookers, I think, would say that, on balance, the decision may be considered to be the correct decision. 

38.In his challenge, the applicant has said that the refusal of the Director has amounted to an allegation of a bogus marriage and that such an allegation is a grave one.  It is therefore not for the Director to make a decision concerning an alleged bogus marriage unless there are positively substantive grounds for doing so.  I do not quarrel with the essence of that assertion.  But, in my judgment, I do not see that the Director has, in this case, treated the matter superficially.  There is evidence of two extensive interviews.  There is evidence of an analysis of financial records and the like. 

39.In all the circumstances, even if I may have come to a different decision on the merits, one perhaps more sympathetic to this applicant, that is not to the point.  What is to the point is that the decision made by the Director is, in my judgment, a lawful decision. 

40.I can understand the desire of this applicant to remain in Hong Kong.  These are always difficult and painful matters but I am unable to condemn the Director, in law, for having exercised his discretion in the manner he did.

41.The application for judicial review must therefore be refused. 

42.I am asked to make a summary assessment of costs in this matter.  I have the power to do so.  The amount claimed is $91,957.  I think that is excessive.  But I think that the applicant is done no disservice if I assess them at $50,000.  Indeed, I think if it goes to taxation, knowing the background of this matter, it will be considerably more than that.  Ms Chan, for the Director, has fairly conceded that she would be prepared to accept that amount.  I make an order for costs in the sum of $50,000 in favour of the respondent.

Applicant, in person

Ms Michelle Chan, GC of the Department of Justice, for the Respondent