BISHNU GURUNG AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 159/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 159 OF 1999

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D E C I S I O N

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1. The Applicants ask for leave to apply for judicial review against (a) the decision of the Director of Immigration dated 19 March 1999 refusing them permission to reside in Hong Kong as dependents and (b) the decision of the Secretary for Security dated 23 December 1999 upholding the Director's said decision. The grounds for the present application as stated in the "Notice of Application" dated 28 December 1999 include:-

(a) the said decisions of the Direction and/or the Secretary for Security were unreasonable and/or irrational;

(b) their decisions were made in disregard of the spirit of the immigration policy of the Hong Kong Government relating to permitting unmarried children of Hong Kong residents to reside in Hong Kong as the dependents of those residents;

(c) their decisions were made in breach of the rules of natural justice in that the Applicants were denied an opportunity to make representations and/or to be heard.

2. The relevant underlying facts are not in dispute. The 2 Applicants are Nepalese citizens. The 1st Applicant was born on 11 April 1978 and the 2nd Applicant was born on 9 February 1980 and were respectively 20 and 18 years old when they entered Hong Kong on 15 September 1998 as visitors on their Nepalese passports. On 28 September 1998 they filed an application for a change of immigration status to join their father (a Hong Kong resident) for residence in Hong Kong as his dependents.

3. Their father was born in 1943 and is now 57 years old. He came to Hong Kong as a visitor on 11 December 1997 and was allowed to join his eldest daughter to stay in Hong Kong in June 1998 as her dependent. The eldest daughter was earlier given her dependent status to join her husband in Hong Kong in January 1997.

4. The sponsoring father has 6 children, the 2 Applicants being his third and fourth children respectively. The sponsoring father's wife and his 3 other children (aged 15 to 26) are now residing in Nepal.

5. In an affirmation filed on behalf of the Respondents, the Respondents set out the financial ability of the sponsor and the accommodation to be provided by him to the 2 Applicants. I do not consider it necessary to go into the details, suffice it to say that from the evidence filed by the Respondents, I find that the 1st Respondent has taken into account all the relevant matters before the decision to refuse the 2 Applicants' application was made. These matters included the following:-

(a) the Director considered the income of the sponsor was insufficient to support a 3-member family at an acceptable living standard;

(b) the 2 Applicants were able-bodied adults and their mother and their 3 siblings were living in Nepal. There was therefore no evidence to suggest that they would face hardship if they should return to Nepal.

6. On 28 April 1999, the 2 Applicants lodged a petition with the Chief Secretary for Administration against the Director's decision. Further information was given by them regarding the income of the sponsor and their eldest sister as well as their financial condition (such as bank savings, remittances and employment-related documents). After receiving the petition, the Director conducted a review of the 2 Applicants' application. Again, I consider it unnecessary to go into the details of the matter save to say that I find that all relevant matters have been taken into consideration in the review. They included:-

(a) the eldest sister and her husband are not eligible sponsors under the existing immigration policy. In any event, they have to support their own son and the father-in-law of the eldest sister;

(b) the 2 Applicants applied for a change of immigration status shortly after the sponsoring father was allowed to join his eldest daughter as a dependent. Further, the 2 Applicants have already reached "employable" age;

(c) the matters already considered by the Director earlier before 28 April 1999.

7. The Secretary for Security reviewed the Director's decision, and his further investigation into the matter after 28 April 1999, and she agreed with his decisions.

8. I find that neither the decision (or further decision) of the Director nor that of the Secretary for Security were unreasonable or irrational in the Wednesbury sense. The "Notice of Application" does not allege any procedural irregularity (except an alleged breach of the rules of natural justice) and I do not consider that there was any procedural irregularity in the decision-making process.

9. In relation to the alleged breach of natural justice, I agree with the decisions in Krishna Rai v. Director of Immigration AL No. 145/1999 and Baldev Singh v. Director of Immigration AL No. 149/1999 that an alien visitor, like an illegal immigrant or an overstayer, has no right to be heard. In any event, even if there was a breach of natural justice prior to 28 April 1999, by reason that the 2 Applicants were given opportunities to make representations which were reviewed by the Director and the Secretary for Security, any such breach would have been cured by the Applicants making representations and providing further information on (and after) 28 April 1999.

10. Finally, contrary to the Applicants' allegation, I do not find that the Director or the Secretary for Security have failed to consider the underlying purpose of the immigration policy relevant to their application. In fact, I consider they were fully aware of it and applied it reasonably and rationally.

11. For the above reasons, I am not satisfied that the Applicants have met the low burden of proof in establishing a case for leave to apply for judicial review to be given. This application is therefore refused.