Gurung Pankha Bahadur v. The Director of Immigration

HCAL 41/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 41 OF 2012

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Before : Hon Au J in Court

Date of Hearing : 17 October 2012

Date of Judgment : 17 October 2012

Date of Reasons for Judgment : 18 October 2012

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REASONS FOR  JUDGMENT

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A.  Introduction

1.This is an application for leave to apply for judicial review.  The applicant seeks to review the decision of the Director of Immigration dated 22 March 2012 in refusing the applications of Gurang Kiran and Gurung Karisma to enter Hong Kong to take up residence as dependents of the applicant.  In these dependent applications, it is claimed that Kiran (now 19 years old) and Karisma (now 18 years old) are the children of the applicant.

2.As directed by the court, the director appears today through Ms Parwani as the putative respondent.  The director opposes the leave application and has filed an affirmation for that purpose.

3.After hearing the applicant, I refused the leave application with reasons to follow.  These are my reasons.

B.  Background

4.I would first set out briefly the relevant background.

5.The applicant is a Nepalese national and first entered into Hong Kong in 1998 as a visitor.  In 1998, he applied and was given dependent visa to stay in Hong Kong with his son Babu, a Hong Kong resident.  I will refer this as “the 1998 application”.

6.In 2005, the applicant further applied for verification of eligibility for permanent identity card.  I would refer this as “the 2005 application”.

7.In 2008, the applicant’s wife in Nepal was given approval to join him in Hong Kong as a dependant.  I would call this “the 2008 application”.

8.In all the 1998, 2005 and 2008 applications, the applicant has set out the details of his family background and members.  He has listed 5 children therein, and the applicant’s wife as the dependents.

9.Kiran or Karisma however were not listed in those applications by the applicant as his children, nor was the mother of Kiran and Karisma listed as the applicant’s dependent or wife.

10.In September 2010, the Immigration Department received the dependant applications from Kiran and Karisma.

11.For the purpose of these dependent applications, the Department had sought various documents from the applicant and had arranged to have interviews with him for proving and showing parental relationship and dependency between the applicant and Kiran and Karisma. 

12.The applicant also explained in the dependant applications that Kiran and Karisma are in fact his illegitimate children, and that was why (on the advice of his then immigration consultants) he had not referred them and their mother in the 1998, 2005 and 2008 applications.  The applicant also said since the death of Kiran and Karisma’s mother in 2003, they have been under the care of the applicant’s brother in Nepal (who was also not listed in the 1998, 2005 and 2008 applications), and for that purpose, he had been remitting about HK$500 cash monthly to support Kiran and Karisma via his said brother[1].

13.After considering the proof provided by the applicant and the explanations, at the end, the director refused the dependent applications in gist for two reasons.  First, with the evidence before him, the director had doubts as to the parental relationship between Kiran and Karisma and the applicant.  Second, and perhaps more importantly, he was not satisfied from the evidence provided to him by the applicant that, even if Kiran and Karisma were the applicant’s children, they had been physically, emotionally or financially dependent on the applicant.  As such, the dependent applications did not fall within the immigration policy adopted by the director.  

14.The director explained why he came to these reasons at paragraph 12 of the Affirmation of Chow Man Yin as follows:

“12. On 16 March 2012, the recommendation was made to refuse the Dependant Applications for, inter alia, the following reasons:

(i) all supporting documents were issued close in time to the Dependant Applications;

(ii) the Applicant had not disclosed information about A1 or A2 [ie, Kiran and Karisma] during the 1998 application, the 2005 application or the 2008 application;

(iii) the Applicant can only produce one family photo in support of his claimed parentage of A1 and A2. This same family photo was submitted during the 1998 application, when the Applicant made annotations to show one of the persons was purportedly Babu. However, the Applicant now claims the same person is A1;

(iv) further, the photo is believed to be taken in 1998 or before when A1 was supposed to be around five years old, contrary to the depiction in the photo in which the alleged A1 had the appearance of an adult;

(v) the Applicant had declared in the 1998 application, the 2005 application and the 2008 application that he had no brother or sister;

(vi) in the 2008 application, the Applicant declared that he had no other dependant apart from his wife.

(vii) from April 2002 to March 2012, the Applicant had only spent about 120 days outside Hong Kong. He was unable to provide proof of remittance for the upkeep of A1 and A2 to show financial dependency, nor was the Applicant able to provide proof of emotional dependency.

(viii) the Applicant came to Hong Kong in 1998 when A1 and A2 were at a tender age, first being looked after by the Applicant’s cohabite until her death in 2003 and thereafter by the claimed younger brother. Both A1 and A2 were approaching adulthood at the time of application. Thus it is believed A1 and A2 were not physically dependent on the Applicant.

On 22 March 2012, the Dependant Applications were refused on the grounds that it was not satisfied that the claimed parental relationship between the Applicant and A1 and A2 was genuine and that A1 and A2 were genuine dependants of the Applicant and there existed no compassionate, humanitarian or extenuating grounds which merited special consideration. …”

C.  Discussion

15.In order to succeed in this leave application, the applicant has to show that his intended judicial review is reasonably arguable, having a realistic prospect of success:  Po Fun Chan v Winnie Cheung (2007) 10HKCFAR 676 at paras 14-17 per Li CJ.

16.However, looking at the evidence before the director as summarized above, it was reasonably open to the director to form the conclusions as he did in refusing the applications.  I am therefore of the clear view that the director’s decision cannot be said to have been made unlawfully, irrationally or unreasonably in the Wednesbury sense (in that no reasonable person in the position of the director would have come to the same conclusion as his).

17.I therefore do not think the applicant has any grounds (as recognised in public law)[2] in support of the intended judicial review which are reasonably arguable.

18.The applicant has also said in this leave application that, if the director doubted the parental relationship, the director should grant Kiran and Karisma permission to come to Hong Kong to undergo DNA test to verify the said parental relationship.

19.I do not think this constitutes any arguable ground of judicial review.  First, the parental relationship has nothing to do with the second ground (ie, the lack of genuine dependency) as to why the director refused the dependant applications.  Second, it is for the applicant or Kiran and Karisma to prove the relationship, and even if they want to rely on DNA test, I do not see any reason why it has to be done in Hong Kong.  There is thus no unreasonableness (if that is what the applicant is now alleging) in the director not granting them permission to come to Hong Kong to carry out the test.

20.Further, I also accept Ms Parwani’s submissions that leave should in any event be also refused on the basis that the applicant has not exhausted a valid alternative remedy by way of petition to the Chief Executive on behalf of Kiran and Karisma.  As a matter of fact, the applicant did lodge such a petition on 27 March 2012 to the Chief Executive against the decision.  The petition has yet to be determined.  In these circumstances, I do not see any basis for the court to exercise its discretion to grant any substantive relief under the intended judicial review when there is yet this pending petition[3].

D.  Conclusion

21.In the premises, for all the above reasons, I refused the leave application.

22.I also made no order as to costs in this application.

The applicant, in person, present

Ms Audrey Parwani, Government Counsel of the Department of Justice,   for the putative respondent