Gurung Deu Kumari and Another v. Director of Immigration
Read the full judgment text of HCAL 76/2009 on BabelCite. This High Court CFI judgment was delivered on 14 September 2010.
1. This application for judicial review raises the question of the extent to which family rights constitutionally guaranteed in Hong Kong may be resorted to in immigration matters.
Cited by 20 cases · Cites 8 cases
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HCAL 76/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 76 OF 2009 ____________
Before: Hon Andrew Cheung J in Court Date of Hearing: 31 August 2010 Date of Judgment: 14 September 2010 _______________ J U D G M E N T _______________ Introduction 1.This application for judicial review raises the question of the extent to which family rights constitutionally guaranteed in Hong Kong may be resorted to in immigration matters. 2.The 1st applicant was born in 1952 in Nepal. She is almost 58 now. 3.In 1971, the 1st applicant married in Nepal. Her husband was then a serving Gurkha stationed in Hong Kong. The couple’s first daughter was born in Nepal in 1973. From 1974 until 1977, the 1st applicant resided with her husband in Hong Kong, and in Hong Kong she gave birth to a son, who is the 2nd applicant in these proceedings, and a second daughter, in 1975 and 1976 respectively. In 1977, the applicant returned to live in Nepal. 4.In 1983, the couple had their third daughter born in Nepal. 5.In 1985, the husband retired from the Army and returned to live in Nepal. In 1988, the couple separated and the husband took a second wife. The 1st applicant and her four children were, according to the information supplied by the applicants, deserted by the husband. The 1st applicant had the sole custody and care of the four children and was responsible for raising them up. 6.In 1996, the 2nd applicant, who was then aged 21, came to reside in Hong Kong on a permanent basis. He has since taken up different jobs in Hong Kong, and is now working as a security guard earning over $10,000 per month. As will be explained, the 1st applicant stayed behind in Nepal until 2008, and the 2nd applicant used to remit a monthly sum of $1,000 to Nepal to maintain her. 7.In 1997, the second daughter got married in Nepal. Being a Hong Kong permanent resident by birth, the second daughter came to reside in Hong Kong after marriage. She gave birth to a daughter but the marriage ended in failure. In 2003, the second daughter left Hong Kong for England to study after having a divorce. She has since returned to reside in Hong Kong for good. She has re-married and is working as a senior waitress, earning $8,500 per month. 8.Both the eldest and the youngest daughters have also got married in Nepal and they have been residing there with their families. 9.As for the 1st applicant, she has, over the years, visited her son (and daughter) in Hong Kong from time to time as a visitor. On 1 October 2008, she came to visit the 2nd applicant again as a visitor. She was permitted to remain in Hong Kong for 90 days. During her stay, the son noticed that the 1st applicant’s health conditions had deteriorated as she was suffering from hypertension and dyslipidemia. She was on medication regularly. Indeed according to a private medical practitioner in Hong Kong, the 1st applicant has been suffering from mood disorder and “she needs to have someone to accompany her both psychologically and physically”. 10.The 2nd applicant is more than prepared to take care of and maintain his mother in Hong Kong. It is also their case that the 1st applicant has no one to turn to in Nepal. In gist, they contend that according to Nepalese tradition and custom, married daughters are not allowed to be attached to their maiden family. In any event, the 1st applicant’s parents have passed away long ago, and his brothers are farmers with limited means. They have their own families to maintain and are not in a position to take care of their married sister. Likewise, the eldest and youngest daughters are both married in Nepal and they have their own families to attend to. On the other hand, it is the right and duty of the son (the 2nd applicant) to take care of his aging parent. 11.In those circumstances, the 1st applicant applied to the Director of Immigration to change her immigration status to that of a dependant of her son. In her application, it was emphasised that the 1st applicant would be left all alone in Nepal; her husband had married a second wife and had deserted her; she was suffering from hypertension and ill health and required treatment in Hong Kong; the 2nd applicant was her only son who had the responsibility and was willing and able to take care of her; and she was of no security threat to Hong Kong. 12.However, the Director found that the 1st applicant’s case fell outside his established policy in granting dependant visas, in that she had not yet reached the age of 60. The Director also took the view that there was no reason or justification that would warrant treating the 1st applicant’s application as an exception to the existing immigration policy. Application for judicial review 13.In those circumstances, the 1st applicant’s application for change of immigration status failed. Dissatisfied with the Director’s decision, the two applicants seek to challenge it by way of judicial review. 14.Altogether, the applicants through counsel rely on five grounds of challenge. First, the Director has fettered his discretion by shutting his mind to the possibility of departing from his established policy. Secondly, the Director has failed to take into account relevant considerations, such as the facts that there was no security objection to the 1st applicant’s application and that the 2nd applicant was able to support the 1st applicant’s living at a standard well above subsistence level and to provide her with suitable accommodation in Hong Kong. Thirdly, the Director has failed to consider all the evidence, such as the evidence provided by the 2nd applicant regarding his financial means. Fourthly, the Director has failed to take into account the family rights of the applicants and their family members guaranteed under article 37 of the Basic Law and article 14 of the Hong Kong Bill of Rights (ie article 17 of the International Covenant on Civil and Political Rights (ICCPR)). Fifthly, if, contrary to the preceding contention, the Director had taken into account those family rights, his decision was nonetheless unlawful because it interfered disproportionately with the family rights of the applicants and their family members. Dependent policy 15.It is noteworthy that there is no challenge against the constitutionality or lawfulness of the Director’s dependent policy, under which foreigners may be allowed to join relatives in Hong Kong as their dependants in appropriate cases. Under the existing dependent policy, for a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay, the following dependants may apply to join the sponsor for residence in Hong Kong:
16.The policy is well established and published. According to the evidence, as dependency is an essential element of the policy, and since it is considered that the categories described are necessary to enable an administratively workable policy consistent with Hong Kong’s general immigration policy, an exception to the policy’s requirements may only be made where there are exceptional humanitarian or compassionate grounds. Thus exceptionally, an under-aged parent may be allowed to stay in Hong Kong as a dependant of his or her sponsoring child, or an over-aged child may be allowed to stay in Hong Kong as a dependant of his or her sponsoring parent, if there are strong compassionate or humanitarian reasons or other special extenuating circumstances to justify a departure from the established policy. 17.The policy works in the following way in practice. Where the applicant falls within one of the categories described, the application for entry to take up residence as a dependant may be favourably considered if there is reasonable proof of a genuine relationship between the applicant and the sponsor; there is no known record to the detriment of the applicant; and the sponsor is able to support the dependant’s living at a standard well above the subsistence level and to provide him/her with suitable accommodation in Hong Kong. 18.However, for an applicant who does not fall within one of the described categories, the Director’s foremost consideration would be on whether any compassionate, humanitarian or extenuating elements exist, and whether such elements form a sufficient justification for a departure from the policy. It is only where these elements indicate that the applicant’s case is an exceptional one that the other eligibility requirements (such as the intended sponsor’s financial standing, the maintenance and accommodation to be provided to the applicant) would be considered. Otherwise, fulfilment of these other eligibility requirements would not override the applicant’s failure to fall within the described categories in the first place, and under the policy, the application would be rejected. Approach of the courts 19.In the light of Hong Kong’s small geographical size, huge population, substantial daily intake of immigrants from the Mainland, relatively high per capita income and living standards, and local living and job market conditions, it is not at all surprising that the Director has consistently devised and implemented a restrictive immigration policy in general and a restrictive dependent policy in particular. As mentioned, those policies are not the subject matter of challenge in these proceedings. 20.As has been pointed out in many cases concerning challenges against immigration decisions of the Director of Immigration (and his officers), the legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration. It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are wide. As is expected from any good decision-maker who is vested with wide discretions, the Director has formulated many policies and guidelines regarding the exercise of his discretions. The courts have therefore said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion. It represents not only a specific application of the general principle of public law that a court in its public law jurisdiction only exercises a supervisory jurisdiction, and does not sit as an appellate court from the decision of the decision-maker. But it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls. See, for instance, Aita Bahadur Limbu v Director of Immigration HCAL 133/1999, 10 December 1999, Stock J; Bhupendra Pun v Director of Immigration HCAL 1541/2001, 22 January 2002, Hartmann J; Durga Maya Gurung v Director of Immigration CACV 1077/2001, 19 April 2002; Re Singh Sukhmander HCAL 89/2008, 18 September 2008, Andrew Cheung J. 21.More generally speaking, the courts’ consistent approach also demonstrates their recognition that under the Basic Law, it is the executive which has been given the right and responsibility to administer the affairs in Hong Kong generally. Indeed, article 154(2) of the Basic Law specifically authorises the Government to apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions. The role to be played by the courts is essentially supervisory in nature. 22.That being the case, the courts do not lightly interfere with the Director’s policy in granting dependant visas or with his exercise of discretion in granting those visas in individual cases. First three grounds of challenge 23.This thus sets the scene for examining the applicant’s first three grounds of challenge. In my view, they can be taken together and disposed of rather quickly. 24.First, in my view, there is no unlawful fettering of the Director’s discretion by his adherence to the established dependent policy. The 1st applicant’s case clearly falls outside the established categories. The need to draw a line (in this case the age of 60) cannot be challenged. Some line has to be drawn, and any anomalous results are justified by the need for certainty and a workable rule: R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, para 41; Fok Chun Wa v Hospital Authority CACV 30/2009, 10 May 2010, para 96. 25.According to the policy, which is not challenged, if an applicant does not fall within any of the categories described, the Director would move on to consider whether there are compassionate, humanitarian or extenuating circumstances to justify treating the case as an exceptional one. Again, that approach, forming part of the policy, is not challenged. 26.It is plain from the materials that the Director has examined the 1st applicant’s case and has come to the conclusion that no such exceptional circumstances exist in the present case. 27.Judging from the facts and viewing the matter from the perspective of public law, the Director’s conclusion is not one that can be challenged by way of judicial review. 28.This is particularly so when in fact, as a matter of law, the Director is not even obliged to take into account humanitarian considerations: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 332F/G-H. 29.Secondly, as regards the second and third grounds, it is quite plain from the evidence filed that the Director has taken into account the materials put forward by the applicants at the time of application. Given the nature of the challenge, the Court is generally not concerned with materials or contentions that were not before the Director at the material times. Thus, for instance, assertions regarding “Nepalese tradition and custom” and the difficult social position the 1st applicant is likely to be placed in should she have to resettle in Nepal were never before the Director at the time of the application. 30.Thirdly, it has to be firmly borne in mind that the dependent policy as such is not challenged. I have already described how the policy works in practice. In other words, it is only where an applicant falls within one of the categories described that the Director would move on to consider whether there is reasonable proof of a genuine relationship between the applicant and the sponsor; whether there is no known record to the detriment of the applicant; and whether the sponsor is able to support the applicant’s living and to provide the applicant with suitable accommodation in Hong Kong. These matters do not, however, come into the picture if the applicant does not fall within any of the established categories. In that latter event, the Director would only be concerned with whether the applicant’s case is an exceptional one in terms of compassionate, humanitarian or extenuating circumstances, which would justify a departure from the established policy. It is only if the Director should come to an affirmative conclusion that he would proceed to consider the other eligibility requirements (such as the sponsor’s financial standing, questions of maintenance and accommodation). 31.For these reasons, the argument run on behalf of the applicants that the Director has failed to consider the 2nd applicant’s financial standing and ability to maintain his mother’s living and to provide her with suitable accommodation in Hong Kong is wholly misplaced. Likewise, the complaint that the Director has failed to bear in mind that the 1st applicant has no known record to her detriment in Hong Kong is quite beside the point. 32.The short answer is that none of these considerations ever come into the picture given that the 1st applicant does not fall within any of the established categories in the first place and that her application is not considered to be an exceptional one. Nor is there anything to suggest that the Director should depart from his established modus operandi in the present case. 33.Bearing in mind that one is essentially concerned with grounds based on Wednesbury unreasonableness, which is by no means a stringent standard of review, it is plain that the applicants have failed to make out a case. 34.For these reasons, I reject the first three grounds of challenge. 4th and 5th grounds of challenge: family rights 35.That leaves the fourth and fifth grounds of challenge which are based on the supposed family rights of the two applicants and other family members. 36.It is helpful to set out the relevant provisions first. The Basic Law provides:
37.Article 14 of the Hong Kong Bill of Rights which is based on article 17 of the ICCPR reads:
38.Although not specifically referred to, article 19 of the Hong Kong Bill of Rights (which is based on article 23 of the ICCPR) is also relevant:
39.Section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383), which enacts the Hong Kong Bill of Rights (section 8), provides:
Non-application of the Hong Kong Bill of Rights 40.I would start with the Hong Kong Bill of Rights. For the purposes of this judgment, I am prepared to accept that there are comments made by the United Nation Human Rights Committee and jurisprudence relating to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (right to respect for private and family life) which suggest that “family”, in the present context, could go beyond one’s immediate family (spouse and children) and cover one’s “extended family”, such as a parent and an adult child, or a grandparent and a grandchild: Human Rights Committee, General Comment No 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art 17) UN Doc A/43/40 (1988); Human Rights Committee, General Comment No 19: Protection of the family, the right to marriage and equality of the spouses (Art 23) UN Doc A/45/40 (Vol 1) (Supp) (1990); Berrehab v The Netherlands (1989) 11 EHRR 322; Pawandeep Singh v Entry Clearance Officer, New Delhi [2005] QB 608; Huang v Secretary of State for the Home Department [2007] 2 AC 167; Beoku-Betts v Secretary of State for the Home Department [2009] 1 AC 115. 41.However, the 1st and 2nd applicants’ reliance on article 14 or 19 of the Hong Kong Bill of Rights is problematic for a simple reason. According to the Court of Appeal in In re Hai Ho-tak and Cheng Chun-heung [1994] 2 HKLR 202, the Hong Kong Bill of Rights enacted by the Hong Kong Bill of Rights Ordinance cannot be invoked in relation to immigration matters covered by immigration legislation. It cannot be invoked by a person not having the right to enter and remain in Hong Kong; nor may it be invoked by the family members of such a person who are residing in Hong Kong. The position has been clearly explained by Godfrey JA (as he then was) in the following terms (at pp 209-210):
42.The judgment is binding on this Court. 43.This must therefore be the end of the applicants’ argument insofar as it relies on the Hong Kong Bill of Rights. Scope of the Basic Law right 44.That leaves article 37 of the Basic Law. Again, the question of whether article 37 is engaged at all is at the forefront of the argument. 45.By that, I do not mean the 1st applicant, as a foreigner, may not resort to article 37, at least indirectly. I am prepared to proceed on the basis that as an overstayer who was previously permitted to enter and remain in Hong Kong for a period of time lawfully, is somebody who is covered by article 41 of the Basic Law, and may therefore, “in accordance with law”, indirectly invoke the right guaranteed under article 37. In this regard, I am prepared to accept that the 1st applicant is different from someone who has just physically arrived at the airport and has not been successful in seeking immigration clearance, in terms of whether the individual is “in” the Hong Kong Special Administrative Region so as to attract the protection of article 41: see Chu Woan Chyi v Director of Immigration (2007) 12 HKPLR 213. 46.What I have in mind, however, is the scope of the relevant right guaranteed under article 37. 47.In Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717, a Hong Kong permanent resident sponsored an application by her husband for permission to reside in Hong Kong as her dependant. They challenged the refusal of the Director of Immigration of the application on a number of grounds including grounds based on articles 25, 36, 37 and 39 of the Basic Law. Stock J (as he then was), when considering the argument based on article 37, took the view that the article does not stand on its own, and cannot be looked at in a vacuum. The Judge went on to read article 37 together with article 39 of the Basic Law which gives constitutional entrenchment to the ICCPR as applied to Hong Kong. The Judge noted that the ICCPR, as applied to Hong Kong at the material times, was always subject to reservations made by the Government of the United Kingdom regarding immigration matters, and that found expression in section 11 of the Hong Kong Bill of Rights Ordinance when it was enacted in 1991 to give the ICCPR (as it applied to Hong Kong) domestic effect. The Judge therefore concluded that reading articles 37 and 39 of the Basic Law together, what cannot be done by means of the ICCPR (as applied to Hong Kong) and the Hong Kong Bill of Rights Ordinance, cannot be done with the help of article 37 of the Basic Law either. See pp 721D to 722H. 48.In other words, his Lordship effectively construed article 37 of the Basic Law as being subject to the same exclusion as the Hong Kong Bill of Rights/ICCPR (as applied to Hong Kong) relating to immigration matters. 49.If this represents the correct view on the scope of application of article 37, that must be the end of the applicants’ case insofar as it relies on article 37. 50.Strictly speaking, the judgment of Stock J is not binding on this Court. However, it is not necessary for this Court to express any view on the decision, save to say that the decision has apparently proceeded on the footing that if article 37 had been read alone (in a vacuum), it could have applied to a case such as the one faced by the Court in Santosh Thewe (a husband and wife case), or, by the same reasoning, a case like the present one (a mother and adult son case). 51.I do not accept that this is the case. It is noteworthy that in Santosh Thewe, there was no discussion on the Chinese version of article 37. Article 37, in Chinese, reads:
52.The crucial term used is “自願生育的權利” in Chinese, or the “right to raise a family freely” in English. The same terms were used in the Joint Declaration, Annex I, JD ref 150 to 151. 53.As a matter of Chinese usage, the term “自願生育的權利” clearly refers to the right to procreate and to foster children voluntarily. It has nothing to do with taking care of or maintaining one’s parents (or, for that matter, one’s spouse). According to the dictionary 辭源(1987 ed) cited by Mr Hectar Pun appearing on behalf of the applicants, “生育” means “生長，養育” (p 1136). In my view, none of them apply to the maintenance by an adult child of his or her parent as a matter of Chinese usage. 54.More importantly, it has been pointed out that “自願生育的權利” in article 37 is specifically guaranteed under the Basic Law in order to exempt residents of Hong Kong from the one child policy practised on the Mainland. In this regard, one should note that article 49 of the Constitution of the People’s Republic of China reads in Chinese (and in English translation) as follows:
55.Article 49(2) stipulates that a couple have “the duty to practise family planning” or “有實行計劃生育的義務” in the Chinese original. The term “計劃生育” in article 49(2) of the Constitution of the People’s Republic of China provides the clearest contrast to the term “自願生育” used in article 37 of the Basic Law. See Introduction to the Basic Law of the Hong Kong Special Administrative Region (2nd ed), 310 to 311[1]. See also 王振民[2]，中央與特別行政區關係：一種法治結構的解釋(2002 ed), 91 to 92. 56.Furthermore, when it comes to adult children taking care of their parents, article 49(3) of the Constitution, in accordance with ordinary Chinese usage, uses the term “贍養扶助” (“to support and assist”). 57.Incidentally, it is interesting to note that article 38 in Chapter III (Fundamental Rights and Duties of the Residents) of the Basic Law of the Macau Special Administrative Region provides:
A clear distinction is drawn between “成立家庭” and “自願生育”, which again is in full accord with ordinary Chinese usage. 58.In my view, the English version of article 37 of the Basic Law is consistent with the Chinese meaning. The “right to raise a family freely” sits comfortably well with the interpretation, based on the Chinese version, that it is a right to procreate and to foster children, and has nothing to do with the maintenance or taking care of a parent by an adult child, or the formation or maintenance of a family comprising such a parent and adult child. In particular, “to raise” means, in the context, to “[r]ear, bring up, (a person or animal)”, according to the Shorter Oxford English Dictionary (6th ed), 2454. 59.That said, two observations must be made. First, the above interpretation does not mean that there is no constitutional guarantee in Hong Kong regarding family rights. Those rights are found in the ICCPR as applied to Hong Kong by means of the Hong Kong Bill of Rights. 60.Secondly, the above interpretation of the English version does not mean that if read on its own, the English wording could not have been given a more generous or wider interpretation, along the lines of the European jurisprudence on the European Convention. However, to the extent possible, both the English and Chinese versions must be read in harmony with each other in order to arrive at a uniform interpretation. And that can be achieved by giving the English wording its ordinary and natural meaning. Nonetheless, the bottom line is that if there should be any discrepancy between the two texts, the Chinese text shall prevail: Decision of the Standing Committee of the National People’s Congress on the English text of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (adopted on 28 June 1990); see also HKSAR v Ma Wai Kwan, David [1997] HKLRD 761, 773A-C; Yash Ghai, Hong Kong’s New Constitutional Order: The Resumption of Chinese Sovereignty and the Basic Law (2nd ed) 229-230. 61.For these reasons, I take the view that article 37 of the Basic Law is simply not engaged in situations of the present type. In other words, the last two grounds of challenge relied on by the applicants in these proceedings fall at this preliminary hurdle. For the sake of completeness, I would simply indicate that if I had been of a different view, I would have nonetheless concluded that the interference with the alleged family rights of the applicants was proportional and could be justified by the overall immigration picture in Hong Kong. Outcome 62.In the circumstances, the application for judicial review is dismissed. I also make an order nisi that the applicants pay to the respondent the costs of these proceedings, including all costs previously reserved, to be taxed if not agreed. I further order that there be legal aid taxation of the applicants’ own costs. 63.Before parting with this case, I note that the 1st applicant is almost 58 now. It would not be long before she would reach the age of 60 and thus be within the dependent policy of the Director, in which event she could re-apply to come to Hong Kong to join her son. In the meantime, I have been given to understand by Mr Abraham Chan, acting for the Director, that she may apply to visit her son and daughter (and granddaughter) in Hong Kong as a visitor and that her application would not be unduly affected by the fact that she has overstayed on the present occasion. 64.I thank counsel for their assistance.
Mr Hectar Pun, instructed by Joseph C T Lee & Co, for the applicants Mr Abraham Chan, instructed by the Department of Justice, for the respondent [1] This is a book published under the sponsorship by the Task Group on Promotional Messages of the Basic Law under the Basic Law Promotion Steering Committee, a government committee established since 1998 to provide the necessary steer on the overall programme and strategy for promoting the Basic Law. [2] Professor Wang Zhen-min, Dean of School of Law, Tsinghua University. | ||||||||||||||||||||
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