Durga Maya Gurung v. Director of Immigration

CACV001077/2001

CACV 1077/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1077 OF 2001

(ON APPEAL FROM HCAL NO. 1487 OF 2000)

____________________

____________________

Coram: Hon Mayo VP, Le Pichon JA and Yeung J in Court

Date of Hearing: 26 March 2002

Date of Handing Down of Judgment: 19 April 2002

____________________

J U D G M E N T

____________________

Hon Le Pichon JA (dissenting):

1.This is an appeal by the Director of Immigration ("the Director") from the order dated 27 April 2001 made by Hartmann J on the hearing of the application for judicial review by Durga Maya Gurung ("the applicant"), granting an order of certiorari to bring up and quash the decisions of the Director made in refusing the applicant's application to remain in Hong Kong as a dependant of her husband and remitting the matter to the Director for reconsideration.

Background

2.The applicant was born in Nepal in 1952 and in 1970 married Jit Bahadur Gurung ("the sponsor") who was then serving as a Gurkha in the British Army. There are five children of this union which has lasted some 30 years. The eldest Dipak was born in 1974 when the sponsor had a posting in Hong Kong. The other four children were born in Nepal in 1976, 1980, 1984 and 1988.

3.Dipak took up his right of permanent residence in 1995 when he was 21 years old. In December of the same year, the sponsor came to Hong Kong as a visitor and was granted permission to remain as his son's dependant in February 1996. He soon found employment: first as a security guard and later as a construction worker. The second child, a son named Min, came to Hong Kong in December 1996 and he, in turn, was granted permission in March 1997 to remain in Hong Kong as his father's dependant. Shortly thereafter, Min also found employment.

4.In mid-June, the applicant came as a visitor and on the following day, she made a dependency application. Some ten months later, on 16 May 1998, she withdrew her application without giving a reason and left Hong Kong a week later, on 23 May 1998.

5.A little over two months later, on 1 August 1998, the applicant and her third child, a daughter by name of Dhan, came to Hong Kong as visitors. A month later they both filed applications for change of status to take up residence here as dependants of the sponsor.

6.On 8 December 1999, the Director wrote to the applicant in these terms:

" Under the existing immigration policy, a person may be allowed to come to the HKSAR for residence to join her spouse already resident here as his dependant provided inter alia, that her spouse is able to support and provide accommodation for her.

After careful consideration of your application, I regret to inform you that your application is refused because we are not satisfied that you are a dependant of the sponsor and that you come to join the sponsor as his dependant."

The daughter who received a letter in similar terms accepted that determination and returned to Nepal. The applicant sought legal advice and on 14 December 1999 her solicitors wrote seeking a reconsideration of her application. They also made a request under the Personal Data (Privacy) Ordinance for copies of relevant file(s) and all other personal data held in connection with the application. The documents released as a result of this request included various internal minutes and memoranda concerning the application.

7.There are two internal minutes that are pertinent to the letter of refusal of 8 December 1999 ("the first determination"). The first is a minute made by the case officer on 1 December 1999 (M46). The case officer opined that the application should be refused. The principle reason was expressed in the following terms:

"a) No sooner is sponsor allowed to join his son as dependent on 7-2-96, he took up the job as security officer on 15-4-96 as revealed at his employment letter at (7). Besides, his son also secured a job as construction worker in June 97 as revealed at his employment letter at (34)4 which is shortly after his approval of dependent visa on 27-3-97. All these suggest that they both are economic immigrants rather than dependency of sponsor and that they abused the existing policy. Furthermore, ID 520 at (19)8 and reply from British Gurkhas Pokhara reveal that sponsor has another two children who are 11 and 15 years old residing in Nepal. Although it is claimed that they are now taken care by their grandmother in Nepal at (36), ID 520 at (19)8 shows that all grandparents are reported to be dead. Thus, their credibility are highly in doubt. I see no reason why sponsor's wife sacrafied (sic) to take care of her two youngest children at their younger ages whom no one are looking after them there and then she came to HK to join sponsor. ... All in all, applicants' intentions to join sponsor as dependent are highly in doubt and these strongly make me believe that both two applicants will follow the same path as sponsor and his resident son that they will seek employment instead of dependency on sponsor.

Another ground put forward commented on the relatively unstable employments of the sponsor and one of his sons. Doubts were expressed as to whether they might be employed after February 2000.

8.That assessment was referred to a Senior Immigration Officer who considered them on behalf of the Director. He agreed with the assessment made as is apparent from the minute dated 3 December 1999 (M47):

"I share with your view at Para. 7 of your M46 that the two Applicants' intention of coming to Hong Kong to join Sponsor as dependants are doubtful. It is unreasonable for the principal Applicant Ms Gurung Durga Maya to leave behind her two younger children of age 11 and 15 in Nepal (who seem not being taken care of by their close family relatives as their both grandparents are reported dead), and comes here to live as dependant of her husband while the minor children should still be dependant on her emotionally and financially. Given such family situation, the primary intention of Ms Gurung Durga Maya to settle in Hong Kong for family reunion is much in doubt. Moreover, given the employable age of 47 and being a farmer in Nepal, it is not believed that she will retire and has no intention to seek employment in Hong Kong. All these only showed that the Applicants are economic migrants rather than dependants."

He concluded that the applications of the applicant and her daughter should be refused on the ground that the Director was "not satisfied that [the] Applicants are genuine dependants of sponsor." As noted above, that resulted in the first determination.

9.In the case officer's assessment at M46 as well as the Senior Immigration Officer's determination at M47 agreeing with the case officer's assessment, the credibility of the applicant was the critical issue. Highly material to that issue was the apparent inconsistency between the claim by the applicant that the two younger children then aged 15 and 11 would be cared for by their maternal grandmother in Nepal and the statement in the applicant's background form which recorded all grandparents to be dead and the consequent 'unreasonableness' of the applicant in leaving her two younger children behind not being cared for by close relatives. In fact, there was an error in the applicant's background form since the applicant's mother is alive. The error appeared to have emanated from the person filling out the form. That was brought to the Director's attention by the applicant's solicitors in their letter of 8 March 2000 which sought to address the various concerns revealed by the internal minutes. In particular, to allay concerns as to the applicant's intention to seek employment in Hong Kong, the applicant's solicitors stated in their letter that

"if you are still concerned about this aspect of her case, she is willing to have imposed upon her a condition of stay that she does not take up any employment."

They requested a reconsideration of the first determination.

10.The Director found no good reason to reverse his earlier decision and on 27 March 2000 he informed the applicant's solicitors by letter that he found no justification for reversing his decision ("the second determination"). The letter went on to say that the Director was not satisfied and that the sponsor was financially capable of supporting the applicant to stay in Hong Kong.

The judgment below

11.As appears from the applicant's form 86A, the Director's two determinations were challenged on three grounds:

(1) Both reasons for refusal, namely, the reasons of economic migrancy and financial inability of the sponsor were Wednesbury unreasonable.

(2) It was procedurally unfair for the Director to have made the second determination on a ground that had not been raised the first determination without giving the applicant an opportunity to address his concerns.

(3) In dealing with the applicant's offer to have a term imposed on any visa issued to her prohibiting her from working, the Director failed to consider the circumstances of the individual case of the applicant and mechanistically rejected the offer for reasons of policy, thereby wrongfully fettering his discretion or failing fairly to exercise that discretion.

12.In considering whether the two determinations were Wednesbury unreasonable, the judge considered the Director's concerns which the applicant's solicitors had sought to address. One of these concerns was the fact that the applicant had left behind her two younger children then aged 11 and 15 behind in Nepal. In their letter of 8 March, the applicant's solicitors confirmed that they would be cared for by the applicant's mother. They made representations to the effect that the children were hardly "toddlers". The observations made related almost exclusively to the 15-year-old. The judge noted that there was nothing in those observations assured the Director that a greater good was not being sought in leaving the child behind. As to the concern that the applicant was of employable age and a farmer in Nepal, the applicant's solicitors made the following submissions:

"... The applicant has no intention of seeking employment in Hong Kong. She intends to be a housewife and reside with her husband and other family members. As you have pointed out her only previous work experience is as a farmer, she is hardly likely to find a job as a farmer here in Hong Kong even if she intended to. She is illiterate and speaks neither English or Chinese. Her employment prospects are not at all promising. ..."

The judge noted that this ignored the possibility of someone in the position of the applicant seeking manual jobs. He also rejected the suggestion that the Director had failed to consider the personal circumstances of the applicant and had reduced her to a 'profile'.

13.The judge then went on to consider the reasoning of the Director in reaching his second determination. The judge referred to the internal minute dated 18 March 2000 which read:

" The applicant is having 2 children of the age 11 and 16 in Nepal. Another daughter Dhan Kumari Gurung, aged 20, whose C/S application has been refused returned to Nepal on 21-12-1999. Though the 2 younger children are reported to be taken care by her mother, it is not convincing that this is a case seeking for family reunion. The sponsor husband Mr. Jit Bahadur Gurung came to join his HK-born son Mr. Dipak Gurung in December 1995. His dependant visa was approved in February 1996, attached VCAC 73836/95 refers. He started to work as a security officer in Jardine Securicor Gurkha Services with effect from 15 April 1996, (2)8 on VCAC 76186/96 refers. He began to sponsor his son Min Bahadur Gurung (subject of VCAC 76186/96) to HK as his dependant in December 1996. Mr. Min Bahadur Gurung was granted dependant visa on 27-3-1997. He began to take up employment. His earliest employment can be traced as early as April 1997, a lapse of less than one month after his dependant visa granted. It is not illogical to consider that sponsor chose the son Min Bahadur Gurung to come earlier than his wife, the present applicant, because Min Bahadur Gurung had better earning ability than his mother. For obvious reason, they are adopting a strategy to admit one member at a time. The member, once granted a dependant visa, started to work to strengthen the family's financial situation. That will justify financially further admission of dependants. From the family context and immigration histories of applicant and her family members, it is remained not satisfied that applicant is seeking for a family reunion and having a primary intention to join his sponsor husband as his dependant ..."

14.The judge observed that it was legitimate for the Director to view an applicant's circumstances within the family context, so long as it was the applicant's own particular circumstances that were viewed within that context and that the applicant should not merely be profiled as belonging to a category of persons and dealt with on that basis. He went on to say this (at page 19D-L of his judgment):

"... because other members of the same family (or clan or group) may have been shown, with the benefit of hindsight, to have been (or become) economic migrants, it does not follow that an applicant's personal circumstances may be avoided and that he or she should be tarred with the same brush. That would be analogous to guilt by association. In this matter, however, I believe that unwittingly the Director's officers have strayed into error in this regard. In the result they have denied the Applicant a fair consideration of her own case. On the evidence before me, the Applicant's own circumstances have been relegated to such a level of unimportance as effectively to be ignored and the matter - especially on reconsideration - has been dealt with and disposed of on the basis solely of the family's history."

For the judge, the question was whether there had been any real consideration of the applicant's own circumstances. He listed a number of factors (at pages 19T-20R) and queried whether any consideration had been given to them. They were:

"(i) That the Applicant has been married for some 30 years to her husband. Perhaps (now that it may be said that the children are effectively no longer by necessity her day-by-day concern) may she not wish to be with her husband and her elder sons within the niche of the 'Hong Kong family' unit?

(ii) That, even though her husband and her one son took up work after being admitted as dependants and, although that is, of course, a relevant factor, must it follow that the Applicant herself has come here to work rather than to be, just as she had claimed, a housewife and companion to her husband?

(iii) Is not the Applicant's age and the rigours of her farming background not also perhaps to be viewed, having regard to her own circumstances, as an indication that she has now served the family well enough and, with the men working, seeks only to be a housewife?

(iv) Even though the Director's policy of admitting dependants does not allow for conditions to be imposed, can it not be said that the Applicant's suggestion that she have a 'no work' restriction placed upon her reveals her good faith in the matter? There is after all no suggestion that this is a regular tactical ploy or that it was a tactical ploy on her part. Was she to know that her offer would be rejected on grounds of principle only?"

15.The judge found that, in substance, the Director's officers had looked almost solely to the family circumstances and had applied them to the applicant without giving any material consideration to the circumstances that relate solely to the applicant within those family circumstances. In the judge's view, the Director had failed to give a balanced consideration to the matters put before him by the applicant since a 'balanced' consideration must include a fair consideration of an applicant's own circumstances. He therefore concluded that the applicant had a legitimate complaint that the circumstances of her own case had not been given full and fair contemplation by the Director. Her application was decided by what her family had done and not by identifying and focusing upon the purpose of her own wish to remain in Hong Kong.

16.The judge noted that the second determination was made also on the basis that the sponsor was not sufficiently financially sound to act as a sponsor. The judge did not consider this to be an independant ground such as would, on its own, support the Director's decision. In his view, it could not be isolated from the other ground as such decisions are made 'in the round'. On that basis, he came to the conclusion that the entire decision had to be reconsidered and made an order accordingly.

This appeal

17.Mr Marshall SC who appeared for the Director submitted that the judge erred in focusing solely on the minute of 18 March 2000 whose author was not the decision maker and in failing to take into consideration the affidavit evidence of Mak Kin Ming a Chief Immigration Officer and Section Head of Entry Visa (Other Services) Section who was the decision maker. It is the decision maker's evidence that is material. See R v Independant Television Commission, ex parte TSW Broadcasting Limited [1996] JR 185, 198. He submitted that had the judge done so, it would have been apparent that the Director had taken into consideration the applicant's own particular circumstances and, in any event, the second ground relating to the sponsor's financial ability was a distinct and independant ground sufficient to support the Director's decision.

The first ground

18.So far as the first determination is concerned, since it was made on a premise that is shown to be false, there is no question but that it must be set aside. That leaves the issue of the validity of the second determination and thus the validity of the judge's reasons for quashing it. The judge was mindful of the limits of judicial review when (at pages 11 and 22 of his judgment) he referred to this passage from the judgment of Stock J (as he then was) in Aita Bahadur Limbu v Director of Immigration HCAL 133/1999 which in my view, is a concise and accurate summary of the law:

"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."

The court's jurisdiction is a supervisory, as opposed to an appellate, jurisdiction. As Lord Ackner explained in R v. Secretary of State for the Home Department, ex parte Brind [1991] 1 AC 696 at 757 H,

"[i]t would be a wrongful usurpation of power by the judiciary to substitute its, the judicial view, on the merits and on that basis to quash the decision"

19.Before turning to consider whether the judge's criticisms leading to his quashing of the determination legitimate in the light of those principles, there is one preliminary matter that should be mentioned. Mr Marshall SC referred to passages from the speeches of Lord Shaw and Lord Moulton in Local Government Board v Arlidge [1915] AC 120 at 137 and 151 respectively in the context of the internal minutes to which the judge had attached considerable importance. Suffice to say that Arlidge addresses a different issue, namely, whether there was a right to see the report made by the Board's inspector upon the public local inquiry. In the present case, the internal minutes had already been produced.

20.Mr Mak had filed three affidavits on behalf of the Director, on 5 October 2000, 29 March 2001 and 12 April 2001 respectively. In his first affidavit, after referring to the further representations from the applicant's solicitors dated 8 March 2000, (viz. that the applicant had no intention of seeking employment and was willing to have imposed upon her a condition of stay prohibiting any employment in Hong Kong, that the statement that all the grandparents were dead was an error, and that the children in Nepal were old enough to take care of themselves,) at paragraph 20, Mr Mak stated as follows:

"The Director reconsidered the application in the light of these submissions. He took into consideration that the Applicant had a mother in Nepal who had assisted in farming and bringing [sic] up the family while the Applicant had lived in Nepal. But the basic facts of the family, its recent division between Hong Kong and Nepal, and the fact of continuing migrations or attempted migration into Hong Kong remained basically the same. The fact that the Applicant is illiterate, does not speak Chinese or English does not prevent her taking a job which is not well paid and is not sought by local people. The Director has a sufficiency of examples of people with similar profile to the applicant working as dish washers or cleaners in markets or other public places for low wages. It is an economic fact or life that even very low wages in Hong Kong translate into high wages in a less developed economy and provide incentive to migrate to Hong Kong and to take up such posts. The Director again concluded that the intention of the Applicant was not to be a dependant and that her primary or a principal purpose was to come as an economic migrant for such employment as she could obtain."

For my part, I am unable to discern any material difference between that paragraph of Mr Mak's affidavit and the internal minute of 18 March 2000. In substance, they are the same. If the criticisms of the internal minute made by Hartmann J at page 19 of his judgment are valid (and in my judgment they are), they are no less valid when applied to paragraph 20 of Mr Mak's first affidavit.

21.There are two aspects that merit further consideration. First, in support of her application for leave to appeal, the applicant had filed an affirmation confirming the truth of the matters set out in her application for leave and the grounds therein contained. The applicant stated that:

"... to meet the Director's concern that I intend to work, notwithstanding that I have no such intention ... I have offered through my solicitors to have a term imposed on any visa that I cannot take up employment in the HKSAR."

The applicant further stated that she fully appreciated that to breach such a term would be a serious criminal offence. The judge observed that there was no suggestion that this was a regular tactical ploy or that it was a tactical ploy on the part of the applicant.

22.The manner in which the Director dealt with this part of the applicant's evidence demonstrated, in a most telling way, the absence of any fair consideration of the applicant's own circumstances. Paragraph 19 of Mr Mak's first affidavit stated that:

"The Director has noted and taken into consideration that the applicant has not admitted that she wishes to work." (emphasis added)

If anything, that statement was a distortion of the applicant's evidence. Beyond that, it betrayed an underlying factual premise - that she wished to work - the existence of which effectively prevented any fair consideration of the applicant's personal circumstances. Put differently, it revealed a 'closed' mind on the part of the decision maker.

23.The second relates to policy reasons for not imposing employment restrictions on the holders of dependant visas. The Director sought to explain, inter alia, that policy through two affirmations filed by Ho Kam Ping. In paragraph 5 of his second affirmation, Mr Ho referred to strong policy objections to creating a class of dependants who cannot lawfully take employment whilst residing in Hong Kong. The only elaboration of those policy objections is in paragraph 7 where it was stated:

"If the objective of an able bodied migrant of working age is to come to Hong Kong for settlement it is undesirable to admit them on the basis that they cannot contribute to the HKSAR by employment and maintain themselves by work or other contribution to the economy. Being maintained as residents by their relatives for seven years and then be free to work on attaining permanent residency would not be a sensible way of allocating the small number of grants of residency that the present policy allows for those with no claim on the HKSAR. ..."

In addition, there was a reference to enforcement difficulties. So far so good. But it is clear from Mr Mak's first affidavit (at paragraph 29) that 'dependants' who, after admission, take up employment are considered by the Director to have been shown to have been (or become) economic migrants, with the benefit of hindsight. In my judgment, this approach emasculates the policy reasons for not imposing the restriction to work in the first place. Take, for example, the applicant's second son, Min. He was granted a dependant's visa very shortly after his 21st birthday. One asks rhetorically, is it at all surprising that being an able-bodied young man, he should try and seek employment? In my view, it would have been surprising otherwise. What was he expected to do with his time? (By contrast, the applicant was a spouse of some 30 years and the mother. Was there not a natural niche for her to occupy in the setting of the family?) If Min cannot be criticised for taking up employment, is it legitimate, with hindsight, to consider him to have been shown to have been or become an economic migrant? With respect, the Director's approach creates an impossible 'catch - 22' situation for a person in the position of the applicant where she simply cannot win. In my view, the judge was quite right to have quashed the second determination.

24.For the sake of completeness, it would be appropriate to add a few observations regarding 'exceptions' to the policy of not imposing work restrictions on dependant visas. Mr Ho stated that the Director "does not unless exceptionally, issue dependant visa with 'no employment' condition." The present case was not considered to fall within the exception(s). Mr Ho gave no further elaboration of what might constitute "exceptional hardship" or "exceptional humanitarian reasons". In R v Warwickshire County Council, ex parte Collymore, 5 May 1994, Lexis transcript, page 7, Judge J observed:

"If the only permitted exceptions are those where the circumstances are, 'most extraordinary' the authority appears to be very close to instituting a blanket policy which while in theory admitting of exceptions, may not, in reality, result in the proper consideration of each individual case on its merits."

In that case, the discretion had in fact been applied in such a way that there had been no exceptions to it in 3 years despite approximately 300 appeals. On those facts, the court concluded that the operation of the policy had been shown to be inflexible. In the present case, there was no such material before the court regarding the operation of the exception(s).

25.The relevance of such material is evident: as Professor de Smith has put it:

"A course of conduct involving the consistent rejection of applications belonging to a particular class may justify an inference that the competent authority has adopted an unavowed rule to refuse all."

See de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th Edn. para. 11-008 expressly approved by Judge J in ex parte Collymore, Lexis transcript, page 8. The need for 'convincing evidence' of the exception appears from the following passage from the judgment of Leggatt LJ in R v London Borough of Bexley, ex parte Jones, 29 April 1994, Lexis transcript, page 12:

"It is, of course, legitimate for a statutory body such as the Respondents to adopt a policy designed to ensure a rational and consistent approach to the exercise of a statutory discretion in particular types of case. But it can only do so provided that the policy fairly admits of exceptions to it. In my judgment, the Respondents effectually disabled themselves from considering individual cases and there has been no convincing evidence that at any material time they had an exceptions procedure worth the name."

So, where the existence of an exception to a general policy is asserted, it should be made good by sufficient evidence. In my view, it was not done in the present case.

The second ground

26.In the second determination, the Director gave a second ground for refusing the applicant's application as dependant. The Director was not satisfied that the sponsor was financially capable of supporting the applicant. In assessing the financial ability of the sponsor, the Director's stance was to take into account only the earning ability of the person eligible as a sponsor under the Government's dependant policy. This allows a person who is a foreigner and who requires the care and financial support of his or her close family members in Hong Kong to remain with his or her relative. As appears from the first affirmation of Mr Ho (paragraph 6), only persons falling within the following categories would be considered:

(a) parent over 50 years of age;

(b) unmarried children under 21 years of age;

(c) spouse.

Persons falling outside the above relationship would usually not be considered as eligible sponsor.

27.The sponsor lives with his sons Dipak and Min who are single, with no families of their own. All three are employed. The husband is a skilled worker receiving wages of $450 a day. His earnings average $10,350 a month. The combined household income is $37,000 per month. The living expenses are shared, the monthly rental being $4,600. In assessing the sponsor's financial ability, the Director disregarded the income of the sons, as well as their contribution to the common living expenses. The Director took into account the monthly rental payable and the fact that the sponsor was likely to make remittances of $1,500 per month overseas to support his other children. On those figures, the sponsor was left with a monthly disposable income of $4,250 per month. The Director noted that this was well below the Combined Social Security Assistance Scheme figure of $8,355 for a family of three adults. The figure for three adults was considered appropriate apparently on the basis that Min remained a dependant of the sponsor.

28.I do not question the Director's entitlement to formulate a policy governing the categories of persons who are eligible to apply to join relatives as their dependants. That policy is set out in paragraph 6 of Mr Ho's first affirmation and described in [26] above. Only persons falling within those stated categories of relationship qualify as applicants. However, in paragraph 9 of that affirmation, Mr Ho stated that there was "also a requirement that a sponsor must be able, out of his or her own resources, to house and maintain the applicant." This 'further requirement' would appear to be independent of the Government's dependent policy since that policy simply regulates who is entitled to be an applicant and merely goes to the exercise of the discretion once an applicant has demonstrated that he or she is within the stated categories for becoming an applicant. Be that as it may, the policy of having regard solely to the earnings of the relevant sponsor appears to be inflexibly applied: that much is evident from the evidence filed on behalf of the Director.

29.It is axiomatic that a public body must not surrender its function, for example, by operating an inflexible policy. As Lord Browne-Wilkinson stated in his speech in R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407, 496G-497C:

" When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases: see Rex v. Port of London Authority, Ex parte Kynoch Ltd. [1919] 1 K.B. 176; British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610. But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful: see generally de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed. (1995), pp. 506 et seq., paras. 11-004 et seq."

The objection to the operation of an inflexible policy is that it automatically determines the outcome, thus representing a closed mind. Indeed, as Leggatt LJ stated in ex parte Jones, Lexis transcript, page 5, a body charged with the exercise of a discretion cannot adopt a policy which precludes the exercise of its discretion, nor can it slavishly follow a policy without regard to the merits of individual cases.

30.In my judgment, by applying a blanket policy, the Director has effectively failed to exercise the discretion vested in him. Moreover, the underlying reasoning is perverse: whilst an adult child is regarded as having an obligation to maintain a parent over 50, he is not regarded as having any such obligation where the parent has not yet attained 50. The logic simply escapes me. The present case concerns two unmarried adult children who live with the sponsor where the joint household income is $37,000 per month. It is not a case about "members of an extended family or friends" being co-sponsors. Further, if it be right that Min's income should be ignored because he is himself a dependant of the sponsor who has an existing and prior obligation to maintain him, then, by the same token, Dipak's income must fall to be taken into account since the sponsor himself remains Dipak's dependant.

31.Whether or not the second ground constitutes an independant ground as was Mr Marshall's submission (an issue which does not become necessary to decide), it was an unlawful exercise of the Director's discretion. It follows that the judge was right to have quashed the second determination.

Conclusion

32.For the reasons stated, I would dismiss this appeal.

Hon Yeung J:

33.The grounds for judicial review raised by the applicant is two fold, namely:

1) In so far as the Director bases his decision on the belief that the applicant's primary intention is to seek employment and that the income of the sponsor is inadequate to support the applicant, the decision is Wednesbury unreasonable;

2) In dealing with the applicant's offer to have a "no work" condition imposed on her visa, the Director blindly follows an inflexible policy and thus fails to exercise his discretion.

34.The central issue to this appeal is whether the judge is right in rejecting as he did, the conclusion of the Director that the applicant is not a genuine dependant of her sponsor but primary an economic migrant.

35.The decision of the judge rests on his findings that the Director had looked solely to the family circumstances of the applicant and had applied them to her without any real consideration of her own circumstances. In particular, by way of example, the judge referred to the following factors:

"(i) That the applicant has been married for some 30 years to her husband. Perhaps (now that it may be said that the children are effectively no longer by necessity her day-to-day concern) may she not wish to be with her husband and her elder sons within the niche of the 'Hong Kong family' unit?

(ii) That, even though her husband and her son took up work after being admitted as dependants and, although that is of course, a relevant factor, must it follow that the applicant herself has come come here to work rather than to be, just as she had claimed, a housewife and companion to her husband?

(iii) Is not the applicant's age and the rigours of her farming background not also perhaps to be viewed, having regard to her own circumstances, as an indication that she has now served the family well enough and, with the men working, seeks only to be a housewife?

(iv) Even though the Director's policy of admitting dependants does not allow for conditions to be imposed, can it not be said that she have a 'no work' restriction placed upon her reveals her good faith in the matter. There is after all no suggestion that this is a regular tactical ploy on her part. Was she to know that her offer would be rejected on grounds of principle only?"

36.It is to be noted that the judge sets out certain primary facts and then put a gloss on those primary facts in a way favourable of the applicant.

37.It is true that the initial decision to reject he applicant's application was made in M46 dated 1 December 1999 and M47 dated 3 December 1999 which decision was conveyed to her on 8 December 1999. It is also true that M46 and M47 referred to the demise of "all grandparents" when in fact the applicant's mother is alive.

38.But Messrs. Massie and Clement, solicitors made further representations on behalf of the applicant after obtaining copies of M46 and M47.

39.In may be helpful to set out their letter dated 8 March 2000 addressed to the Director in full.

"We refer to our previous correspondence in respect of the above matter and advance the following in support of her application for reconsideration of your refusal of her application for residence as a dependant of her husband.

(1) The applicant and the sponsor have been married since 1970 and they have had a number of children together. There can be no doubt as to the genuineness of the marriage and the fact that she fills natural niche in the sponsors family setting and is his dependant for all purposes and would be regarded as such by any reasonable person.

(2) We note from the file notes supplied under the Personal Data (Privacy) Ordinance that you have expressed the following concerns none of which were conveyed to the applicant or the sponsor who have therefore not had the opportunity to make representations in respect thereof.

i) that all grandparents had been reported dead

This relates to an error in the completion of the applicant's family background form. The applicant is illiterate and signed the form with her thumbprint. The form was filled in by someone else. You will note at item (e) on the information sheet dated the next day she has clearly stated that her mother would after her children.

It should have been apparent to any fair minded person assessing the case that there had probably been a mistake. This matter should properly have been brought to the applicant's attention for explanation instead of being held against her without opportunity of explanation. See Re H.K. (An Infant) [1967] 2 QB 617

ii) that she has 2 children in Nepal

The youngest child is 11 and the elder one 15. They are cared for by the applicant's mother. These children are hardly "toddlers". It is quite common in Nepal for children of 15 to work and look after themselves and no doubt you would have made such a point if the 15 year old had applied to come here. In the end it is up to the applicant to decide whether she lives with her husband or with her children. It is not logical for you to reach a conclusion that she does not join her husband as a dependant merely because she has children in Nepal.

iii) being of employable age and a farmer in Nepal. See M47

Many sponsored dependants are of employable age. This does not prevent approval of applications. If it did few foreign national would be able to sponsor their spouses. The applicant has no intention of seeking employment in Hong Kong. She intends to be a housewife and reside with her husband and other family members. As you have pointed out her only previous work experience is as a farmer, she is hardly likely to find a job as a farmer here in Hong Kong even if she intended to. She is illiterate and speaks neither English or Chinese. Her employment prospects are not at all promising. However, if you are still concerned about this aspect of her case she is willing to have imposed upon her a condition of stay that she does not take up any employment.

iv) that both the applicant and the sponsor are economic migrants

This appears to arise from the fact that the sponsor has taken up employment. This appears a very strange complaint bearing in mind that under the visa issued to him he is clearly entitled to work. In any event the applicant is entitled to have her own case decided on its own merits. She has no intention of working and again she repeats her suggestion that if you have any reservations as to her intentions, impose a condition of stay excluding her from taking up employment.

Whilst it did not form one of your reasons for rejection, we note that though you accepted that the sponsor's finances were currently sufficient though you had reservations as to the stability of the employment of the sponsor and his two sons. For your reference we enclose herewith the following updated job letters dated 6th March 2000 respectively: -

a) Tung Fong Geotechnical Company in respect of Gurung Jit Bahadur

b) Tung Fong Geotechnical Company in respect of Gurung Min Bahadur

c) Pacific Crown Engineering Ltd in respect of Gurung Dipak.

Your fears that they would all become employed after February 2000 have been proved unfounded.

We would also add that it is very common for manual workers to be paid a daily rate in Hong Kong. This does not imply job insecurity. We would also add that since Ms Dhan Kumari Gurung is no longer pursuing her application there will be less demand on the family resources.

In all of the circumstances we would urge the Director to reconsider his refusal of the application of this applicant and grant her a dependant visa subject to such conditions as he thinks appropriate."

40.It is clear that Messrs. Massie and Clement had drawn to the Director's attention all relevant matters pertaining to the applicant's case, including those "primary facts" referred to by the judge.

41.There can also be no doubt that the Director had taken into consideration those matters as demonstrated in the affidavits of Mr. Mak filed on behalf of the Director on 5 October 2000, 29 March 2001 and 12 April 2001. In reaching his decision, the Director is also assisted by the internal minute M65 dated 18 March 2000.

42.In an application of this nature, there are bound to be numerous factors relevant or perceived to be relevant to the application. Those factors are susceptible to different interpretations, some in favour of the application, some against it. Naturally, an applicant will interpret those factors in a way most favourable to his application as Messrs. Massie and Clement did on behalf of the applicant.

43.However, the Director is not obliged to set out all possible interpretations of those relevant factors, much less those in favour of the application. The Director is entitled to rely on his experience and draw his own conclusion on the relevant factors. The Director is also entitled to rely more heavily on some factors but less so on others.

44.Dipak took up permanent residence in 1995 as he was entitled to. Shortly thereafter, the sponsor came to Hong Kong as a visitor and almost immediately upon his arrival he applied for permission to remain in Hong Kong as Dipak's dependant.

45.Min also came to Hong Kong as a visitor in December 1996 and again immediately upon his arrival, he applied to remain as the sponsor's dependant. Despite their dependant status, both the sponsor and Min found employment shortly after their applications were granted.

46.The applicant came to Hong Kong as a visitor in June 1997 and the day after her arrival, she too applied for permission to remain in Hong Kong. She subsequently withdrew her application and left Hong Kong on 23 May 1998.

47.On 1 August 1998, the applicant again visited Hong Kong with a daughter. One month later, they both applied to change their status to dependants with a view to take up residence in Hong Kong.

48.These are significant matters and the Director is entitled to place reliance on them as the judge recognized. However the reference to or emphasis on the family's migration pattern are not indications that the applicant's own circumstances have been ignored.

49.Much has been said about the undertaking given by the applicant that she would not take up any employment should her application be granted. This of course is just one of the factors to be taken into consideration. The Director is not bound to accept the applicant's assertion.

50.The Director is perfectly entitled to look at the evidence of employment prospect known to him and his officers from their experience and their dealing with similar cases. After all who else is in a better position to make decision of such nature.

51.The Director is right in referring to the policy reasons for not imposing employment restrictions on the holders of dependant visas and the difficulties in the enforcement of such restrictions.

52.It is precisely because of such policy and difficulties that the Director must approach the issue with particular care.

53.In the discharge of his duties, the Director must take into consideration the public interest element and must be assured that any decision he makes will not adversely affect the employment prospect of Hong Kong residents and will not pose any strain on Hong Kong Government in terms of welfare benefits.

54.The complaint that the Director had failed to exercise the discretion and had not given any material consideration to the personal circumstances of the applicant is not justified.

55.As stated in the affirmation of Mr. Ho Kam Ping, Hong Kong is a small place with a huge population and a standard of living much higher than that of many of the neighbouring countries, not to mention the motherland with a population of over 1 billion; her attraction to potential immigrants cannot be overestimated.

56.The Director must be allowed to maintain and enforce a strict immigration policy to prevent any possible abuse. What policy to formulate and how to implement such policy is a matter entirely for the Director.

57.It is not for the court or anyone else to advise or dictate the Director on policy matters, as they may not be sufficiently informed of the ever-changing circumstances relevant to the formulation and the implementation of the policy.

58.The power of the court in a judicial review of the decision of the Director is limited as pointed out by Litton JA as he then was in R v Director of Immigration, ex parte Chan Heung Mui [1993] 3 HKPLR 533 at p.547:

"It must be always borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance."

59.A visitor has no legitimate expectation to be allowed to take up residence in Hong Kong. An application to review the decision of the Director who refuses to allow the change of status of a visitor to a dependant resident is unlikely to be successful unless it can be demonstrated that there had been misuse by the Director of his power or "that his decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." (see the judgment of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at p. 410.)

60.The threshold for the court's intervention on Wednesbury unreasonableness, as the courts have repeatedly said, is necessarily very high.

61.I agree with the submission of Mr. Marshall that the judge had placed too much emphasis on M46, M47 and M65 and had insufficient regard to the evidence of the decision-maker, Mr. Mak Kin-ming and to that extent, he was in error.

62.On its proper analysis, the decision of the Director that "the applicant's primary purpose was to come as an economic migrant for such employment as she could obtain" is not Wednesbury unreasonable.

63.For the aforesaid reasons and those set out in the draft judgment of Mayo VP, I too would allow the appeal. I would also make an order nisi that the applicant bears the costs of the hearing before the judge and of this appeal to be taxed if not agreed. The applicant's own costs should be taxed in accordance with the legal aid regulations.

Hon Mayo VP:

64.Although the Judge has correctly set out the relevant law and principles he appears to have deviated from this from page 19 onwards in his judgment.

65.The critical problem arises from the Judge in effect stepping into the shoes of the policymaker the Director of Immigration.

66.He says on page 19 of the judgment that the Director focused his attention on the circumstances of the family members as a whole rather than considering the individual circumstances of the applicant.

67.This simply is not the case.

68.Mr Mak Kin-ming who was acting as the Assistant Principal Immigration Officer in a supporting affidavit had this to say:

"The Director reconsidered the application in the light of these submissions. He took into consideration that the Applicant had a mother in Nepal who had assisted in farming and brining up the family while the Applicant had lived in Nepal. But the basic facts of the family, its recent division between Hong Kong and Nepal, and the fact of continuing migrations or attempted migration into Hong Kong remained basically the same. The fact that the Applicant is illiterate, does not speak Chinese or English does not prevent her taking a job which is not well paid and is not sought by local people. The Director has a sufficiency of examples of people with similar profile to the applicant working as dish washers or cleaners in markets or other public places for low wages. It is an economic fact or life that even very low wages in Hong Kong translate into high wages in a less developed economy and provide incentive to migrate to Hong Kong and to take up such posts. The Director again concluded that the intention of the Applicant was not to be a dependant and that her primary or a principal purpose was to come as an economic migrant for such employment as she could obtain."

69.It is manifest from this passage that Mr Mak did indeed carefully weigh and consider the personal circumstances of the applicant.

70.It may perhaps be the case that the Judge attached undue weight to material contained in internal minutes of the Department which the applicant managed to obtain by virtue of the Personal Data (Privacy) Ordinance Cap. 486.

71.Be that as it may the observations made by Henry J at p. 421 of Ex parte H. Bolat [1991] Imm AR 417 are germane and illustrate the way the Judge should have directed his attention to the actual decision of the policymaker.

"In relation to the allegations of failure to take into account the matters set out in paragraph three of the applicant's grounds of application, going to the question as to whether the applicant had been in Turkey all the time after his account of his detention or in France, his father on admission having originally given his son's current address as being in France, or possibly in Greece, there were before the Secretary of State accounts different to his put forward by his relatives. It is said by way of criticism that the Secretary of State failed to take into account that he had not seen his family for some time when he came here, that his family would have been fed by rumour, and that when one looks at the source documents, one sees his family's answers qualified by doubts that are not expressed in the summary version of those answers given in the letter itself. Further, it is said that the discrepancy does not matter.

In answer to those points, Mr Laws has made the point that there is simply no evidence that the Secretary of State did not take into account any of those matters. The material was there on the file before him. That the file was considered in some detail is clear both from the decision letter and from the affidavit. There is nothing in the reasons set forward that raises, in my mind, doubts as to whether the Secretary of State had taken these matters into account. They were there before him to be taken into account. The decision letter is quite consistent with them having been taken into account. It would have been surprising had they not been taken account and there are adequate reasons in the decision letter."

72.Having regard to the circumstances of the Applicant it cannot possibly be said that the Director's decision not to accede to the application was either perverse or Wednesbury unreasonable.

73.The consequence of this is that in my view the appeal should be allowed.

74.There is however a further matter.

75.The Director was also not satisfied that the applicant's sponsor, her husband, was financially able to support the applicant and this was an additional reason why he was not prepared to accede to the application.

76.The Judge did not face up to this problem. At p. 22 of his judgment he states that decisions of this nature are made "in the round" and consequently this was all a part of the decision which had been made.

77.This clearly was not so. Satisfying the Director that the sponsor does indeed have the financial capacity to support a dependant is a separate and distinct requirement.

78.With the greatest respect to Le Pichon JA I do not think that it is open to the Court to question the policy which is adopted by the Director in determining how financial support is forthcoming. It does not seem to me to be Wednesbury unreasonable to require that the financial support must be provided by the sponsor.

79.The consequence of this is that by a majority this appeal is allowed. An order nisi is made that the applicant bears the costs of the hearing before the Judge and of this appeal. The applicant's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Neil Thomson, instructed by Messrs Massie & Clement, for the Applicant/Respondent

Mr William Marshall SC and Mr Steven Parker SGC, instructed by the Secretary for Justice, for the Respondent/Appellant