AITA BAHADUR LIMBU v. DIRECTOR OF IMMIGRATION

HCAL133/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.133 OF 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. The applicant is a national of Nepal. He arrived in Hong Kong in September 1998 as a visitor but soon made an application to be permitted to reside here as a dependant of one of his sons. He has in fact two sons living here. The Director of Immigration ("Director") has refused him that application and it is against that refusal that this application is made.

2. The Director first refused him on the basis that he was not satisfied that the sponsor, his son, was in a position to support him and when asked to review that, the Director added as a ground that he was not satisfied that the applicant intended to come here as a dependant. His judgment is that the applicant intends to come here to work.

3. 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.

4. In this case, the Director has decided that the sponsor is unable to support the applicant to the extent that is desirable and, moreover, that he does not believe that the applicant, at the age of 52 and with family still in Nepal, is really coming here as a dependant.

5. I was minded, I confess, to think before this hearing that there was no basis upon which it might be argued that the decision was perverse, but a number of matters have emerged in the course of the hearing which suggest to me that there may be an argument here. The applicant has addressed me at length. He has but two sons here; they are his only sons, and I think there is a grandchild too. He says that he wants to be with them in a place in which he, the applicant, has in fact lived for many years. There is $15,000 net available for this family to live per month; that much is conceded by the Director. The applicant points out that he has no intention of working here. I therefore asked the Director, through Mrs Hudson, whether the Director was prepared to reconsider the matter with a view to adding a condition on his permission to remain that he takes no employment. Instructions were taken, but the suggestion received a response at lightning speed that the applicant's case had already been reconsidered and that, therefore, there would be no further reconsideration. I found that a strange attitude to adopt in relation to a new suggestion and a suggestion which was material. Strange not the least when at the heart of the Director's suggested fears is the contention that this man really wants to be here to take employment. The stance is supported by the Director on the footing that the applicant said, in his application for a change of status, that he wanted to join his son and "to make an ID". Mrs Hudson said the phrase is equivocal. If it is equivocal, it ought not to have been held against this applicant and the point that is sought to be drawn from the phrase is that it suggests that he wants to take employment here. I do not see why it is assumed that the use of that phrase suggests that the applicant wants to take employment. In any event, I do not think that a person to whom English is not a first language can be expected to express himself with the precision which seems to be required.

6. Then there is an application for proof of identification from Nepal which makes reference to the applicant seeking the proof for the purpose of employment. That has been latched onto by the Director and used against the applicant. But it is not a document issued by the applicant, nor a form filled out by himself. He simply says that he asked for a document verifying his relationship with his sons. No one has seen the application form he himself filled in for that purpose, if one was filled in, nor has anybody bothered to ask him about that entry. Moreover, it might be said to have been somewhat foolish for an applicant who intended to deceive the authorities in Hong Kong then to go and apply for a verification document, stating that he wanted to do the very thing which he knew would kill the application.

7. Given the attitude I have witnessed in court today, and the reliance on the documents to which I have referred, I think there is something which, on further consideration, might turn out to disclose an arguable case that the Director has acted perversely. That is not to say that I will so find - it may very well be that the Director has acted perfectly properly - but merely that the very low threshold for which leave is granted has been crossed.

8. I shall give the applicant leave to apply for judicial review of the decision of the Director not to permit him to reside in Hong Kong as a dependant, and for an order of certiorari to quash that decision. The costs of this application are reserved.