THAPA TUL BAHADUR AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL124/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.124 OF 2003

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J U D G M E N T

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1. The applicants are father and son. They are both Nepalese nationals. The second applicant, the son, was born in November 1999 and is therefore only four years of age.

2. On 11 September 2003, the applicants arrived in Hong Kong as visitors. They came to be with the first applicant's wife; that is, the second applicant's mother. I will call this lady the sponsor.

3. Shortly after their arrival, the two applicants made an application to the Director of Immigration to remain in Hong Kong as dependants of the sponsor. Their application was refused. It was refused on the basis that the Director was not satisfied that the first applicant had the intention to remain in Hong Kong as a dependant of his wife. In addition, and in any event, the Director was not satisfied that the sponsor was financially able to support the applicants to the required standard; that is, to a standard well above subsistence level.

4. The applicants' seek to quash that decision. As to dependency, the first applicant complains that the Director's decision refusing to accept him as a dependant is irrational; that is, a decision not open to a reasonable decision-maker. As to the financial capacity of the sponsor, both applicants complain that the decision was based on material errors of fact and/or was made without taking into account material factors that should have been taken into account.

Background

5. The sponsor was born in Hong Kong in 1973. Her father was a Ghurkha soldier stationed here. The sponsor left Hong Kong as a child and was raised in Nepal. The sponsor met the first applicant in Nepal and they were married there in July 1989. Their first child, a girl, continues to live in Nepal.

6. Some 10 years after the marriage, the sponsor came to Hong Kong to claim right of residency here. She was successful. When she arrived she was pregnant with the second child of the marriage, a son, the second applicant. She returned to Nepal to give birth to her son.

7. Thereafter the first applicant applied to come to Hong Kong on more than one occasion and to stay here as a dependant of his wife. His applications were refused. It appears that the Director did not accept that the applicant - described as "a young able-bodied man with a daughter in Nepal" - genuinely intended to come to live in Hong Kong as a dependant of his wife, the belief being that he wished to come here for purposes of family reunion and to take up work. In this regard, in respect of an application made by the first applicant in early 2002, Mr Lo Hing Shun, a Senior Immigration Officer, has said the following in an affirmation filed for the purposes of this proceedings :

"In the second application in January 2002, the sponsor and the first applicant admitted that they had two children in Nepal and the sponsor had to remit $1,000 per month to Nepal for the children.

Again the Director had doubt on the sponsor's financial capability and the purpose of the applicant's proposed stay in Hong Kong. It was considered that with her income of only about $7,505 as revealed in her bank book and her minimum expenditure per month of $2,000 for rental and $1,000 for remittance to Nepal, the sponsor was unable to support the first applicant in the long term at a living standard well above subsistence level in Hong Kong, despite her savings of about $45,312.

It was also considered unreasonable that an able-bodied young man would choose to join his wife in Hong Kong to be her dependant and to leave behind his two children, at tender age, in Nepal to be taken care of by their grandparents."

8. As I have said, the first applicant and his son arrived in Hong Kong as visitors on 11 September 2003. It appears that the son fell ill. An application was made to the Director for an extension of stay until the child recovered. Shortly thereafter, on 6 October 2003, father and son applied to remain in Hong Kong as dependants.

The content of the applications

9. The application of the first applicant does not contain material additional to the material which he had put into his earlier applications sent from Nepal. In his application, all he said in effect was that he wished to stay with his wife.

10. I am told by Ms Gwilt that, while the son was sick in Hong Kong, mother and child formed a deep bond and it was considered to be in the family's best interests if the child could remain in Hong Kong as a dependant of his mother. Indeed, although the daughter would remain in Nepal, it was considered best for the family to remain in Hong Kong. However, as I pointed out, no contention of this kind was made to the Director. As I have said, nothing new was placed before the Director. It is a principle of public law that the lawfulness of a decision must be judged in the light of facts known or available to the decision-maker at the time he makes the decision.

Joint or separate applications?

11. Looking at the relevant documents, I am satisfied that the application that was lodged (only one was lodged) must be read as being a joint application.

12. While I accept that persons making applications of this kind are not necessarily sophisticated in matters related to the Hong Kong bureaucracy, as Mr Cooney, for the Director, pointed out, the applicants on this occasion were represented by a firm of consultants, Shafin International Company Limited. Indeed, an authorisation letter accompanied the application. If there had been an intention to place two separate applications before the Director, I believe it can be assumed that two separate applications - and not a single application - would have been lodged.

13. It is important to determine whether the application was a joint one or intended to constitute two separate applications because Ms Gwilt has argued that it was always intended that the applications of father and son were to be considered separately. This, she said, was not done. However, in an affirmation dated 11 May 2004, Mr Lo Hing Shun said the following :

"It is not the Director's practice that, in handling a joint application for dependant status, the Immigration Officer will proceed to make inquiries on whether the applicants intend to have the joint application be treated as separate applications in case the joint application is not successful. The Director is of the view that whether the application is made jointly or separately is a matter for the applicants themselves to decide, and that it is inappropriate for the Director to consider a joint application on the assumption that either of the applicants would give up the application if the joint application is not successful."

14. Mr Cooney, with whom I agree, emphasised the rationality of this approach on the basis that if a joint application is refused, then, as in the present case, if the son wishes to pursue his own application to remain here in Hong Kong with the mother, even though the father must return to Nepal, then the Director would be prepared to entertain such an application.

Dependency

15. Both applications sought what are commonly called dependency visas. Clearly, the son, if he remained on his own, would be a dependant of his mother. That has never been in issue. The issue of dependency has concerned the first applicant.

16. The Director's dependency policy has been described in numerous judgments in this court. I do not intend to recite in full the accumulated jurisprudence on this issue. But a couple of things must be said. I take them from a judgment given by myself on 19 February 2003 in the matter of Christian Bulao Palmis v. The Director of Immigration, unreported, HCAL 2104/2001.

17. In that judgment I observed that the Director manages a restrictive policy of immigration. That this is legitimate has been recognised by our courts. However, the Director has formulated a number of exceptions which, within limited circumstances, allow people to take up residence in Hong Kong. Applicants who are able to demonstrate that they wish to come to Hong Kong to take up a natural niche in the setting of their family as a dependant are entitled to do so under the Director's dependency policy.

18. Dependency, of course, is the primary consideration. As I said in Palmis, dependency has a plain enough meaning in English. It describes a state of reliance upon somebody :

"A dependant is somebody who must rely on another for maintenance, care and support, emotional and material, and is unable otherwise to manage. A person who can adequately support himself or herself by taking up employment or going into business and who does not require the care of a family member is therefore not dependent on another for that maintenance, care and support, not at least in material times (terms?). It follows, in my view, that in accordance with the dependency scheme, if the primary purpose, or a principal purpose, of a person applying to reside in Hong Kong as a dependant of a family member is to work, then in the absence of special circumstances, that person does not come here as a dependant."

19. In the present case, the Director concluded that the first applicant did not intend to reside in Hong Kong as a dependant of his wife. It is important in this regard, I think, to emphasise the difference, as I did in the earlier judgment, between "potential" and "purpose" and, in this regard, I quote from paragraph 40 of my earlier judgment :

"Mr Harris argued that a policy which excluded an applicant simply because he or she had the potential to work would be irrational. But as I understand it, the Director has never made it part of his policy to exclude applicants simply because they have the potential to work. The Director's policy looks to purpose not potential. Most applicants, no doubt, have the potential to work if necessary, some to great financial advantage, but that is not the issue. The issue is an identification of the principal purposes for which an applicant wishes to reside in Hong Kong."

20. As to why the Director came to his decision, Mr Lo said the following in his first affirmation :

"The first applicant was an able-bodied young man. It was suspicious why he intended to remain in Hong Kong with his son so as to rely financially entirely on his wife leaving behind his daughter in Nepal."

He continued by saying :

"Having considered all the circumstances, the Director was not satisfied that the sponsor was financially capable of supporting the two applicants at a living standard well above subsistence level and that the first applicant genuinely intended to stay in Hong Kong as the sponsor's dependant. The Director suspected that the first applicant came to Hong Kong for employment. The Director also considered that there were no compassionate grounds which warrant a departure from the dependency policy."

21. Ms Gwilt has contended with her normal conviction that, in respect of dependency, the Director seems to have seized upon one phrase and elevated that phrase from being a single factor to be taken into account into the essence of the test itself. The phrase, used on a number of occasions, describes the first applicant as an able-bodied young man. Ms Gwilt said that it was simply not sufficient to dismiss an application on the basis that an applicant was male, young and fit. The test, she said, was one of purpose. What was the purpose of the applicant in coming to Hong Kong? In this limited respect, of course, Ms Gwilt is right. But I have not read the affirmations of Mr Lo as in any way perverting the test in the manner she has alleged.

22. In my judgment, the explanation given by Mr Lo on behalf of the Director is plain. Inferences have been drawn from primary findings of fact. I see nothing wrong in this. The Director and his officers are entitled to rely on their experience. In the present case, the Director, through Mr Lo, said that, in looking to all the circumstances, he took into account the fact that the applicant was a young man, a man not yet 30 years of age, who was able-bodied, who had been living in Nepal with his young children and who was in all respects capable of earning a living. Yet he wished, on the face of it, to come to Hong Kong (with his son only) to rely financially on his wife for an indefinite period of time, leaving behind one member of the family in Nepal. As I understood it, that is really a way of saying that the inference to be drawn from the circumstances is that the applicant, while he wished to take up a natural niche in the family, wished to do so in Hong Kong not as a dependant but as an entirely productive member of the family, exploiting the opportunities that Hong Kong offers to increase his material well being and that of his family.

23. I fail to see how such an inference drawn from the primary facts can be said to be irrational. What must be remembered is that questions of fact are for the Director alone and his discretion in this regard sweeps across a range from the obvious to the debatable.

24. It is important to stress in cases of this kind that an applicant who wishes to remain in Hong Kong as a dependant has the burden placed on his shoulders of demonstrating that he does have the genuine intention to remain in Hong Kong as a dependant. The burden does not lie on the Director to disprove assertions made in an application. In the present case, no attempt was made to explain why it was that this young man, otherwise fit and well, who had made several previous unsuccessfully applications, was entitled on this occasion to remain in Hong Kong as a dependant.

25. The suggestion that the applicant, being uneducated, would not be able to obtain employment here was shown to be incorrect by Mr Lo who, in his affirmation, made it plain that people without skills are able to take jobs of a very menial nature, obtaining what for them is often good money and at the same time denying those jobs to Hong Kong residents who themselves lack skills.

26. In all the circumstances, I must reject Ms Gwilt's contention that the Director's determination in respect of dependency was irrational.

Financially capability

27. In light of my findings on the dependency issue, there is no need for me to consider the question of financial capability. However, I am constrained to observe that, in my opinion, the officers of the Director, in examining the finances of the sponsor, may have been guilty of a number of omissions. For example, absent any form of direct investigation, I do not see how the Director's officers can be entitled to reject a statement made on more than one occasion by the sponsor's employer that it paid to the sponsor a particular salary and a particular amount by way of tips each month. While there may be a market average for a particular type of work, it does not follow that all employees in that market are paid the same. Some employers will be more generous, some employees will prove themselves more capable. In a free market, compensation will vary.

28. These observations however will be cold comfort to the first applicant who, as I have said, must fail in his application on the dependency issue.

Can the second applicant file a separate application?

29. As I have said, I am satisfied on the papers that the application made was a joint application and was not intended to be two separate applications contained in the same document. That being the case, with the father failing, the son fails with him.

30. However, as Mr Cooney has said, there is nothing to prevent the second applicant; that is, the young son, from filing a fresh application to remain in Hong Kong alone with his mother.

Conclusion

31. For the reasons given in the body of this judgment, the application made by the first and second applicants must be dismissed. Costs will follow the event and are awarded to the respondent, the Director.