PADAMA MAYA LIMBU v. THE DIRECTOR OF IMMIGRATION

HCAL134/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 134 OF 1999

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J U D G M E N T

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1. There are before me two applications for leave to apply for judicial review. They are directly connected in that the applicants are husband and wife. The wife sponsored an application by the husband to come to Hong Kong as her dependant. It has been suggested in the skeleton argument put forward on behalf of the putative respondent, who is represented at this application, that the wife has not sufficient interest in the matter to warrant the grant of leave to her. I am against the respondent on a question of sufficient interest, and I therefore order that the two applications for leave be heard together and I now deal with them as such.

2. The wife was born in Hong Kong in 1961. She is now aged 38, I do not know how old the husband is. In any event, she returned to Nepal, from where her family originated, in 1963, and she stayed there until 1997 when she returned to Hong Kong. In 1998, she was granted recognition in Hong Kong as a permanent resident of Hong Kong. In 1992, she married the male applicant, that is, the husband, and they have one child born in Nepal in 1994, and that child is still in that country. The wife obtained employment in Hong Kong in 1998.

3. In October 1998, that is one month after the wife was recognized as a permanent resident here, the husband came to Hong Kong. He then applied to be permitted to reside here as a dependant of the wife. It is the rejection of that application that is the subject of these applications for leave to apply for judicial review.

4. The original rejection came in March 1999 and there was an application in September 1999 for a reconsideration of that decision. That failed, and the putative respondent said that the refusal was because he remained not satisfied that the husband's purpose was to join the wife as her dependant; and that he was not satisfied that she was capable of supporting him financially in the Hong Kong SAR. I refused to grant leave on the papers and the matter comes before me today for oral representation, although on grounds which have, with my leave, been significantly amended.

5. The grounds advanced in the amended application and in the wife's application are in essence these :

1. that the policy of withholding visas in family reunion cases by reference to the income level of the Hong Kong permanent resident spouse is unlawful by reason of articles 25, 36, 37 and 39 of the Basic Law;

2. that there was no evidence entitling the Director of Immigration to refuse the visa on any ground relating to the wife's financial capability to support her husband, and that he erred in not having regard to the husband's earning potential; and

3. that he erred in refusing her visa in so far as the husband may in due course have sought to cease to be her dependant if he could find employment in Hong Kong.

6. According to the evidence which is has been filed before me, the wife's earnings at the material times have varied between $4,200 and $7,200 per month, though Mr Keane on behalf of the applicants this morning says that the current figure is in the region of $6,000 or so. Rent has been paid in the region of $2,500 a month, and it is said that on her current salary after expenses there is left about $1,635 per month.

7. Now the threshold for the grant of leave is a low one. Leave should be granted where the material before the court discloses matters which might on further consideration demonstrate an arguable case for the grant of the relief claimed.

8. Article 25, upon which Mr Keane relies in one of his grounds, provides that all Hong Kong residents shall be equal before the law. It is said that if the Director of Immigration declines to enable reunion of spouses on the grounds of inability to support a spouse financially, that he then discriminates between those of upper and middle income brackets on the one hand, and those less financially advantaged on the other. I am satisfied that the point is without any merit in law. I shall not go into the question whether equality before the law as contemplated by that article embraces situations such as the present, but assuming for present purposes that it does, there is a cardinal distinction between discrimination on the one hand and, on the other, distinctions which have objective justification. Immigration regimes worldwide, and for reasons too obvious to have to mention, are wary about letting in as residents those who might become a burden on state resources, or those who might unfairly take up jobs at the expense of the permanent residents of the host country. There is clear objective justification for such a policy and it does not, in my judgment, begin to constitute unequal treatment of the kind to which Article 25 refers.

9. Article 36 provides that Hong Kong residents shall have the right to social welfare in accordance with law. The argument is that in seeking to ascertain whether an applicant who wishes to come as a dependant, the Director ignores the fact that the sponsor might be able to support him on social welfare benefits. If an applicant is to be supported by the welfare benefits handed out to a resident spouse, then the application in effect becomes an application by the applicant to be a dependant not of the sponsor but of the state. In fact, the very permission for him to come and live in Hong Kong if there are inadequate funds in the hands of the spouse to support him is destined then to drive the spouse to seek welfare support. It is she who is entitled to such support, not a non-resident of this territory. To accept the approach which is urged upon me by Mr Keane would be, I think, an illogical exercise and one which would drive a coach and horses through a sensible immigration policy.

10. Article 37, which has more exercised my mind, provides that the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law. It seems to me that the effect of Mr Keane's submission, if correct, is that any spouse of a Hong Kong resident should be permitted to come to live in Hong Kong with that spouse without more. Article 37 does not, however, stand on its own. It cannot be looked at in a vacuum. The point is made in the case of Secretary for Justice v. The Oriental Press Group Ltd. & Others [1998] 2 HKLRD 123 at 164 in relation to Article 27 of the Basic Law :

"..... art.27 merely identifies a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of art.39 is to permit restrictions on the rights protected in Chap.III, provided that those restrictions are provided by law and are compatible with various international instruments, including the International Covenant on Civil and Political Rights."

11. Mr Keane tells me that it would be his proposal to persuade me that that is a decision which ought not to be followed by this court. Article 39 of the Basic Law provides, in part, that :

"The provisions of the International Covenant on Civil and Political Rights, ..... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region."

The words "as applied to Hong Kong" are crucial. There has been a reservation in respect of Hong Kong to the following effect :

"The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, the acceptance of Article 12.4 and of other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories."

The Government of the United Kingdom at that stage made a further reservation for Hong Kong which read :

"The Government of the United Kingdom reserve the right not to apply Article 13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority."

12. Article 39 of the Basic Law goes on with a provision which is important to these applications and it reads as follows :

"The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." (in other words of article 39)

There is such a restriction which has been prescribed by law in Hong Kong which is applicable to the present situation. That is to be found in section 11 of the Bill of Rights Ordinance which reads :

"As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

The applicant husband in this case is a person who has not the right to enter and remain in Hong Kong save by permission at the discretion of the Director of Immigration and section 11 of that Ordinance applies to his case. That, it seems to me, is a plain and obvious answer to the Article 37 point.

13. I turn now to attacks on the decisions as to fact. One of the grounds put forward is that there is no evidence entitling the Director to refuse the visa on any ground relating to the wife's financial position. I fail to see how that can be said. The evidence was constituted by the figures and facts which had been put before him. Questions of fact are for the decision-maker to whom the legislature has entrusted the fact finding function. In the case of Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999 which I decided in December 1999, I said in relation to that applicant (and it is as relevant to these two cases) as follows :

" The applicant has no right in law to remain in Hong Kong as a resident and the decision is one within the discretion of the Director. He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain. 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. To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits. Where the determination of facts are left to the Director and the facts sweep across a range 'from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely' : see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

14. Where a person seeks to obtain permission to reside in Hong Kong, the burden is on him to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the respondent. It is not for the respondent to have to show that an applicant or an application falls outwith such a policy. In this case the immigration officer has come to a conclusion which cannot, on the evidence presented to me by the applicant - and I stress that, because I do not take into account for this purpose the statement of facts which has been put before me - which cannot begin to be said, in my judgment, to be perverse.

15. In so far as there is complaint that the Director should have had regard to the husband's earning capacity, that is to take a snap shot of a given and individual situation out of context. Immigration policy properly has regard to a range of factors which included the preservation of the employment market for residents of Hong Kong, and to permit others to work only where there is a shortage of a particular skill within the resident pool, or where dependants have entered as dependants and are not then prevented from working. But before the work permission aspect comes into play, it is dependancy that must be established. That is the basis upon which the applicant seeks to enter Hong Kong. That, by definition, cannot be established by showing that a person will be maintained adequately not by the sponsor, but by the labour market if (and the "if" is an uncertain factor) the applicant obtains employment.

16. Mr Keane seeks to take comfort from the statement of facts which, on my invitation, has been filed by the Director of Immigration. In so far as that statement says that it was clear that the sponsor still could not satisfy or come close to satisfying the requirement of maintaining a reasonable standard of living for two persons well above subsistence level, it is suggested that a requirement that a standard of living well above subsistence level should be shown is irrational and an unreasonable fetter on the discretion of the Director of Immigration. I disagree. To say that an immigrant asking to be allowed in as a dependant must show a reasonable standard of living within the context of that dependency cannot, in my judgment, be said to be unreasonable.

17. This is an application which has in the event, in my judgment, no ultimate chance of success, and despite the arguments presented by Mr Keane, with his usual force and helpful clarity, the fact that the application has engaged the court's consideration of a number of disparate points does not of itself turn points which I consider to be bereft of merit into points which might on further consideration turn out to be arguable.

18. Accordingly, the application for leave in both cases is refused.