Gurung Ganga Devi v. Director of Immigration

HCAL 131/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 131 OF 2008

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BETWEEN

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Before: Hon Saunders J in Court

Date of Hearing:  31 August 2009

Date of Judgment:  23 September 2009

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J U D G M E N T

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The application:

1.Mdm Gurung has applied to the Director to change her immigration status to permit her to take up residence in Hong Kong as a dependent of her younger daughter, Mrs Gurung Sunita, a Hong Kong permanent resident.

2.On 9 October 2008, the Director refused that application by a letter expressed in the following terms:

“Under the existing immigration policy, for a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), his/her parent aged 60 or above may apply to join him/her for residence in Hong Kong.

After careful consideration of your application, I regret to inform you that your application is refused because you do not meet the aforementioned criteria.  There is no reason or justification that warrants treating you as an exception to our existing immigration policy.”

3.On 3 November 2008, Mdm Gurung was granted leave to apply for Judicial Review against that decision.

The factual situation:

4.Mdm Gurung was born in Nepal on 1 December 1951. She was accordingly aged 57 at the time of the application. She will attain the age of 60 on 1 December 2011. She married in 1968, to Gurung Jum Bahadur, who was then serving with the Gurkha regiment of the British army in Hong Kong. The first child was born in Hong Kong in January 1977, and her second child, the younger daughter, was born in Hong Kong in April 1978. Both daughters are permanent residents of Hong Kong.

5.In about 1979, Mdm Gurung went to Nepal with her two daughters, but her husband remained with the army in Hong Kong. In about 1983, he took a second wife in Nepal and has since then lived separate from Mdm Gurung. Until her daughters returned to Hong Kong in 1995, in Nepal, Mdm Gurung had sole custody and care of both daughters. Mr Gurung and his second wife have subsequently migrated to the United Kingdom.

6.The younger daughter, who sponsors Mdm Gurung’s application, has lived in Hong Kong since 1995. She married in Hong Kong and gave birth to a daughter, (Mdm Gurung’s granddaughter), in Hong Kong in October 1996. Unfortunately that marriage ended in divorce, but in September 2007, the younger daughter remarried to a Nepalese permanent Hong Kong resident. They have a daughter, (again Mdm Gurung’s granddaughter), who was born in Hong Kong.

7.The elder daughter also married and although she and her husband moved initially to United Kingdom, where a daughter was born, subsequent to the issue of these proceedings, they have returned to Hong Kong.

8.Mdm Gurung first came to Hong Kong as a visitor to see her daughters in about 1996. She came again in about 1998 and 2004. In February 2008, while in Nepal, Mdm Gurung made a formal application to enter Hong Kong under the sponsorship of the younger daughter. The second granddaughter was born in March 2008, and in April 2008, after the younger daughter wrote to the Director explaining that the purpose of Mdm Gurung’s visit to Hong Kong was to take care of that child, Mdm Gurung was again permitted to enter Hong Kong. During that time the application for change of status to take up residence as a dependent of the younger daughter was made.

9.Mdm Gurung appears to have no surviving family members in Nepal, and although it did not form part of the submissions made to the Director, and there is little in the way of evidence to support the assertion, it is said that as and, effectively, abandoned wife, Mdm Gurung’s social status in Nepal will not be high.

10.There appears to be no dispute on the part of the Director that the younger daughter and her husband are properly able to financially support Mdm Gurung.

11.In his skeleton, Mr Chan summarised the detailed evidence of William Fung, an Acting Principle Immigration Officer of the Immigration Department, as to the policy in the following terms:

“5.  The dependent residence policy is one facet of Hong Kong’s immigration policy, an overarching characteristic of which is the exercise of caution in controlling immigration flow.

6.  The need for restrict immigration control is acute in the case of Hong Kong, which has some of the highest population densities on earth and has historically been a magnet for legal and illegal immigration.

7.  This imperative informs the current policy requirements for dependent residence.

8.  Under the dependent residence policy as revised and effective since 1 July 2003, only those falling within specified categories of close family members of Hong Kong residents (permanent or otherwise not subject to limits of stay) may be eligible to stay as dependents.  The relevant categories are:

(1)  spouse;

(2)  unmarried child under 18 years old; and

(3)  parent aged 60 or above.

9.  As can be seen, the second and third of the above requirements contain age requirements which further restrict eligibility to apply for entry as a dependent.

10.  If an applicant falls within one of the above identified categories, the application may then be favourably considered if in the Director’s view:

(1)  there was reasonable proof of a genuine relationship between the applicant and the sponsor;

(2)  there are no known records to the detriment of the applicant; and

(3)  the sponsor is able to support the dependent’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.”

Mr Pun accepted that that statement accurately reflected the policy.

The case for the Applicant:

12.A number of arguments were mounted in the application as originally filed. These were, that the Director wrongly decided that the application was outside the existing immigration policy, that the Director failed to consider the sponsor daughter’s financial condition and the availability of stable accommodation for Mdm Gurung, and that the Director had acted unreasonably. These arguments were not pressed with any force in the course of the hearing, and may be dealt with briefly.

13.First, it is plain that the decision was precisely within the existing immigration policy. Mdm Gurung is not yet 60. It is on that ground that she does not meet the policy. The point is unarguable.

14.Second, there is no evidence indicating that the Director failed to consider the sponsor daughter’s financial situation. He would have done so in any event when dealing with the temporary permit allowing Mdm Gurung to come to Hong Kong to look after the granddaughter. But even if he had not considered that aspect, it is clear that the failure of Mdm Gurung to meet the age limit was sufficient to dispose of the application for a dependency visa, and the youngest daughter's financial situation and accommodation arrangements would not change that position.

15.It may be said that the decision, in the light of all of the factual circumstances, is not a generous decision, for having regard to the family circumstances, Mdm Gurung’s personal position, and the short duration of time before she attains required age, one can certainly see a basis upon which a discretion might be exercised. But that is not to say that the decision is unreasonable. I accept Mr Chan’s submission that it is not open to the court’s to substitute their view of the way in which a discretion might be exercised, for that of the Director. It is the Director’s decision, and in the absence of the decision being Wednesbury unreasonable, it must stand.

Amendment of the application:

16.By leave given, without objection from the Director, the application was amended on 12 August 2009, whereby Mdm Gurung sought now to pursue an argument based upon Articles 37 and 41 of the Basic Law and the provisions of the Hong Kong Bill of Rights.

17.Mr Pun centred his argument upon a contention that the decision failed to properly take into account, and in fact infringed, the family rights of Mdm Gurung and her family. These rights were, he said, enshrined in the Basic Law and the Hong Kong Bill of Rights Ordinance. The relevant provisions on which he relied were:

(a)  Article 37 of the Basic law:

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

(b)  Article 41 of the Basic Law:

“Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter.”

(c)  Article 14 of the Hong Kong Bill of Rights:

“Protection of privacy, family, home, correspondence, honour and reputation

(1)  No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2)  Everyone has the right to the protection of the law against such interference or attacks.”

(d)  Article 19 of the Hong Kong Bill of Rights:

“Rights in respect of marriage and family

(1)  The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2)  The right of men and women of marriageable age to marry and to found a family shall be recognized.

(3)  No marriage shall be entered into without the free and full consent of the intending spouses.

(4)  Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution.  In the case of dissolution, provision shall be made for the necessary protection of any children.”

(e)  Article 10(1) of the International Covenant on Economic, Social and Cultural Rights:

“The States Parties to the present Covenant recognize that the widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children.  Marriage must be entered into with the free consent of the intending spouses.”

18.Taking all of these matters into account, and having regard to the various commentaries to the international covenants, Mr Pun argued that the rights of a family must be viewed in a holistic way, and that not only did Mdm Gurung have a right family reunification, her daughter did also. That right, in the daughter, Mr Pun said, could be relied upon as a basis upon which Mdm Gurung should be entitled to a dependency visa.

19.Mr Pun was obliged to acknowledge that significant decisions the courts stood in the way of his contention.

20.First, he faced the decision of Stock J (as he then was) in Santosh Thewe v Director of Immigration [2000] HKLRD 717, when it was found that the reliance by a non-resident husband upon the rights granted under Article 37 of the Basic Law were misplaced by reason of Hong Kong immigration law, and s 11 of the Hong Kong Bill of Rights Ordinance see p721D-722H.

21.Further, in Marilyn G Aringo v Director of Immigration, HCAL 96/2005, Unreported, 5 September 2005, Hartmann J. said at § 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 is 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 his wife’s rights.”

22.In Gurung Kesh Bahadur v Director of Immigration (2002) 5 HJCFAR 480, at §41-42, the Court of Final Appeal held that, in the immigration context, there was a general differences position between a resident and a non-resident as regards fundamental rights and freedoms under the Basic Law. Mdm Gurung’s limit of stay has expired, and she has been required to leave Hong Kong on or before 28 October 2008. She remains in Hong Kong solely because these proceedings are under way.

23.The effect of these decisions is that it is not open to Mdm Gurung to rely upon the rights sought to be relied upon by Mr Pun.

24.Mr Pun sought to meet these barriers in two ways. First, he relied upon the decision of the Hostels Lords in Huang v Secretary for the Home Department [2007] 2 AC 167, in which the House of Lords demonstrated that the concept of a “family” was not a restricted concept is embraced the whole of the relationship between parents and child. Lord Bingham (with whom Lord Hoffmann, Baroness Hale, Lord Carswell and Lord Brown agreed, said at p 186G:

“But the main importance of the case law is in illuminating the core value which article 8 exists to protect.  This is not, perhaps, hard to recognise.  Human beings are social animals.  They depend on others.  Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially.  There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

25.Next, recognizing that existing Hong Kong law made it difficult for Mdm Gurung herself to challenge a decision of the Director based upon rights contained in the Hong Kong Bill of Rights Ordinance, Mr Pun applied pursuant to O 53 r 9 RHC, as amended following Civil Justice Reform. The effect of the amendment is to enable not only someone who desires to be heard in opposition to an application for judicial review to be heard on the application, but also a person who desires to be heard in support of the application. The right of someone to be heard in opposition has existed for a long time. The right to be heard in support is new.

26.At the hearing, after his solicitors obtained instructions to represent her, and to instruct him, Mr Pun sought leave for the youngest daughter to be heard in support of the application pursuant to O 53 r 9. Sensibly, Mr Chan did not oppose the application. Mr Pun then argued that the right of the daughter to family reunion under the constitutional provisions relied upon was before the court. Consequently, he said, the barriers raised in the decisions referred to above no longer stood in his way.

Discussion:

27.As far as Huang is concerned, the House of Lords was not subject to the restriction in Article 41 of the Basic Law whereby the expression “in accordance with law” means that the availability to non-residents of the protection of the rights contained in the Hong Kong Bill of Rights Ordinance is subject to any contrary legal provisions in force in Hong Kong. Mr Pun was not able to point to any legislative change since the decision by Stock J. in Santosh Thewe.

28.It is right that Huang demonstrates that a more expansive definition of the expression “the family” is open. But that such a more expansive is open does not detract in any way from the validity of the reasoning of Stock J. In the absence of legislative change extending the applicable rights, I do not find them to be open to found an argument on the part of Mdm Gurung.

29.While it is right that Mr Pun has succeeded in joining the younger daughter into the proceedings, she has been joined only to enable her to support the application. To use the language of Hartmann J., the application for the dependency visa remains the application of Mdm Gurung. Of course it always had the support of her daughter, that goes without saying.

30.I am not satisfied that the mere fact that the younger daughter now formally supports Mdm Gurung’s application by appearing before the court by solicitors and counsel changes the fundamental position. The application remains that of Mdm Gurung, she is the applicant for the dependency visa. I accept Mr Chan’s submission that a procedural change in the law relating to the judicial review, allowing someone to support someone else's application, could never have been intended to have the effect of extending rights under the Hong Kong Bill of Rights Ordinance to non-residents or to persons not entitled to stay in Hong Kong.

31.The unique situation of Hong Kong in relation to immigration matters is well known and provides more than ample justification for the restrictive immigration policies that exist. It is my clear view that it is not for the courts to extend those policies by interpretation of language, long accepted to have a specific meaning. If the right of family reunification is to be extended beyond the bounds of the policies established by the Director, that is a matter which must be undertaken by those responsible for policy and not the courts.

32.The application for judicial review must fail. It will be incumbent upon Mdm Gurung to leave Hong Kong promptly now, which she may do at least in the knowledge that when she attains the age of 60, on the face of all of the information before me, she appears to fall squarely within that the policy which would entitle her to a dependency visa.

Costs:

33.Mdm Gurung is on legal aid. There will be an order nisi of Mdm Gurung must pay the Director’s costs of the application. Her own costs will be taxed on Legal Aid Regulations.

Mr Hectar H Pun, instructed by Messrs Joseph C T Lee & Co, for the Applicant

Mr Abraham Chan, instructed by the Department of Justice, for the Respondent