MOHAMMED ABDULLEH v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 1850/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1850 OF 2001

(ON APPEAL FROM HCAL NO. 851 OF 2001)

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J U D G M E N T

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Hon. Rogers VP:

1. This is an appeal from a judgment of Hartmann J, given on 16 July 2001. The Judge was dealing with an application for leave to bring judicial review proceedings.

2. The applicant was born in Pakistan in 1961. His wife, Miss Asima, was born in Pakistan on 10 February 1977. In May 1998, Miss Asima came to Hong Kong as a temporary resident, with her sister. They were both dependent upon their father and they were granted temporary resident status as dependants of their father.

3. On 1 July 1998, Miss Asima took a job. The letter of employment that we have been shown shows her to be a secretary-cum-assistant. The employment letter is in English. In October of the same year, it was established by officers of the Immigration Department that she could neither speak nor write English. There is thus some question mark as to what type of secretarial duties she can be performing. There is also a question raised as to the precise company with which she was working and whether it was at the address it was supposed to have been. That aside, this case proceeds on the basis that she is still employed.

4. On 31 July 1998, the applicant himself came to Hong Kong and, on 20 August, he married Miss Asima. The address which was given in his marriage certificate, both for himself and his wife, was Flat Q, on the Ground Floor of Universal Mansion, in Hillwood Road, Tsim Sha Tsui. Again, according to officers who went to the premises in, I think, February 2000, that flat has been a workshop for years. Quite how long, one does not know, but there is some doubt cast upon the question as to whether that was their residential address at the time.

5. On 16 September 1998, the applicant applied to the Immigration Department for a dependant visa as a dependant of his wife. There is a letter which we have been shown from the father-in-law, dated 15 October of the same year, saying that the couple were living at Flat R, on the Ground Floor of Universal Mansion. This particular flat was subsequently shown, again by the same investigators of the Immigration Department, to be, at least by February 2000, a carpark.

6. On 27 November 1998, the Director of Immigration sent a letter refusing the applicant's application because he was not satisfied that his wife was financially capable of supporting the applicant. In the next month, on 2 December, the applicant applied and requested reconsideration of his application. Again, the letter from the applicant gives his address as Flat Q, Universal Mansion.

7. Subsequently, in January of the next year, a lease of flat J was taken out by a firm calling itself Hussain Carpark, from the landlord of that premises. There is, I think, no dispute that Hussain Carpark is a business which is operated by the brothers and perhaps father of Miss Asima.

8. On 4 June 1999, the Director informed the applicant of the decision to maintain the refusal of his application. On 21 June 1999, the applicant apparently attended an interview at the Immigration Department and his stay was extended until 28 June. On that day, the applicant lodged an application with the Chief Secretary for Administration against the refusal by the Director. That application was made from Flat J and it is stated that the applicant had moved from Flat Q to Flat J.

9. In July 1999, the applicant submitted further documents in support of his application. In a letter of 9 February 2000, the applicant claimed to be occupying, with himself and his wife alone, the Bedroom No. 1 at Flat J; a diagram is given of the flat which shows that the flat is itself some 406 square feet and the Bedroom No. 1 occupies some 7.16 square metres.

10. Chronologically, the next thing which occurred was that, on 29 February of 2000, the party of Immigration officers visited the premises at Universal Mansion and made the discoveries in respect of Flat Q and Flat R to which I have already referred. The Immigration officers discovered that, rather than having the sole occupation of one room, the applicant and his wife shared the lower bunk bed in one of the three rooms in the flat. It was stated that Miss Asima had to rely on her father and elder brother to provide free accommodation for herself and her husband. The report from the Immigration Department concludes that the primary purpose of the applicant was to seek employment.

11. On 23 October, the Director of Immigration sent his comments to the applicant. On 17 May 2001, the Government Secretariat informed the applicant that the Chief Executive in Council had considered the application in April and had advised the Chief Executive who had ordered that the decision of the Director of Immigration should be confirmed.

12. There then followed, on 29 May, an ex parte application by the applicant for judicial review. It is to be noted that, as part of the factual background on which the application for relief is based, it is stated that the applicant and his wife are living in the same household as the wife's family, a three-bedroom flat, and that one of the three rooms is for their exclusive use and rent-free. It is also stated that the family consists of seven members who had a total household income of $46,000 a month. Whilst the applicant disputed that he came to Hong Kong to find employment, he does say that he has more than sufficient funds to run a business and if he wished to do so, he could be a job creator rather than someone who simply takes jobs.

13. On 16 July of last year, Hartmann J heard the application and refused the application for judicial review. In doing so, he said, first of all, at page 4 of his judgment:

"The applicant has not sought a visa to carry on business here, he has sought a visa to come here and to remain as a dependant of his wife. I regret I can find nothing irrational, perverse or wrong in the Director's failure to be satisfied as to the true intentions of Mr Abdulleh, nor can I find anything to suggest that the director has based the decision to refuse the application materially on incorrect information or anything of that kind."

The Judge then went on to say:

"By way of postscript, it should be said that the director was not satisfied that the wife, who has no deep roots in Hong Kong herself, would be able to maintain Mr Abdulleh to the required standard. A visit was made to the premises where the couple lives and in the light of that visit and other information, the comment was made in the internal documentation that,

'The sponsor's income would not be able to support Mr Abdulleh's living in Hong Kong to an acceptable standard above subsistence level.'

The sponsor must be able to do that on her own and I can see nothing inherently irrational in that finding by the director either. In the circumstances, I am not satisfied that an arguable case can be put forward, that is a case which, upon further consideration, would be arguable before or at the substantive hearing. That being the case, despite the personal sympathies I have for Mr Abdulleh, the application must be refused."

14. Before this Court, Miss Fung has argued, correctly, that the threshold for the grant of leave to commence judicial review proceedings is low, but it must be borne in mind that what is sought is an order for certiorari and mandamus. The ground upon which those orders are sought was that the decision of the Director was Wednesbury unreasonable.

15. The criticism has been made that the Director had cast doubts on the wife's real connection with Hong Kong. It is said that, following the death of her mother and the presence of her father and brothers in Hong Kong, the wife's only real connection with her relatives is in Hong Kong. That is correct, but she was herself only a very recent arrival in Hong Kong prior to the applicant's own application. Her presence in Hong Kong was as a dependant and that is the basis upon which her visa was granted. In those circumstances, although she does have, through her father and brothers, a connection with Hong Kong, it still remains that she herself is a new arrival and not somebody who was born here or who had, at the date of the application, lived here for many years.

16. The kernel of the decision was as to the husband himself and as to whether he was to be considered to be a dependant. Although, as has been said, there are many people in Hong Kong who may be able to survive on an income which is substantially less than the wife's income, in my view, the Director's decision that the husband should not be regarded as a dependant cannot be challenged on the basis that it is Wednesbury unreasonable. Whilst I myself would have sympathies with the applicant and can see his difficulties, having married a wife and wishing to stay in Hong Kong, a judicial review application is not an appeal and it has to be shown that the decision of the Director is Wednesbury unreasonable before judicial review can be granted. In my view, any such application would be doomed to failure.

17. Whether or not the husband could apply for a visa in Hong Kong on grounds other than dependency, of course, I am unable to say, but I would not disturb the judgment below. In those circumstances, I would dismiss this appeal.

Hon. Le Pichon JA:

18. I agree and have nothing to add.