BRAR IQBAL SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL101/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 101 OF 2000

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REASONS FOR DECISION

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1. I had refused the application by the applicant for leave to issue judicial review against the respondents. I will now give my reasons.

The facts

2. The applicant is an Indian national, now aged 27. On 17 October 1998, he came to Hong Kong as a visitor. Shortly thereafter on 24 November 1998, he married his wife ("the wife") in Hong Kong and on the same day, he applied for change of his immigration status to join his wife as her dependent for residence in Hong Kong. The wife is the applicant's sponsor. The wife is an Indian national, now aged 20. She came to Hong Kong as a visitor on 14 March 1998 and was approved by the Director of Immigration ("the Director") as her mother's dependent on 30 June 1998. The Director refused the applicant's application.

The Government's policy

3. As disclosed in the affirmation of Mr Yim Kwan Hoi, Acting Principal Immigration Officer of the Immigration Department. The Government's policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependents in appropriate cases. For the past 15 years, about 200,000 foreign dependents had been approved to come to Hong Kong for residence. The yearly rate had increased by almost threefold from 7,211 in 1983 to 19,444 in 1998. From 1993 to 1998, there had been a constant increase of dependent applications, from a monthly average of 1,631 in 1993 to 2,218 in 1998, an increase by 36% in total.

4. On 18 January 1999, a new policy was implemented in which persons admitted as dependents are not allowed to sponsor their own dependent's application for residence unless and until they themselves had acquired the right of abode in Hong Kong, or they have been permitted to remain in Hong Kong to take up employment. Nonetheless, the monthly average of dependent applications still stood at 1,663 in 1999.

5. The result is that foreign dependents, especially from countries like Nepal, India, Pakistan and Thailand, means that more and more foreigners are entering into the local job market particularly at the unskilled or semi-skilled level.

6. The Director has to ensure that the immigration policy on employment is not being undermined and side-stepped by job seekers disguised as dependents of their relatives in Hong Kong. The Government's immigration policy on entry for employment is very stringent, which allows only persons who possess special skills, knowledge or experience which is lacking in the local workforce in that particular field to work in Hong Kong.

Relevant considerations in dependent application

7. In considering a dependent's application, the Director adopted two requirements : first, the sponsor must be able, out of his/her own resources to house and maintain the applicant; second, if the primary purpose or the principal purpose of the person applying for a dependent visa, as found by the Director after looking at all the circumstances of the applicant, his/her sponsor, and close family members whether in Hong Kong or overseas, is to work in Hong Kong rather than occupying a natural niche in the setting of his family, the application will not be granted.

The starting point

8. The starting point is that the applicant is someone who has no right and no legitimate expectation of being allowed to stay in Hong Kong. From a long line of cases starting with Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 22, it had been consistently held that the grounds on which the exercise of the Director's power to allow someone to stay in Hong Kong when he has no right to do so can be challenged only in cases where he had abused his power illegally or irrationally. See further R. v. Director of Immigration, Ex parte Chan Heung Mui [1993] HKPLR 533 and Lau Kong Yung v. Director of Immigration [1999] 3 HKLR 778.

The ground of refusal

9. The Director refused the application as he was not satisfied that the wife was financially capable of supporting the applicant's living in Hong Kong. This is a decision that can hardly be challenged. The wife is now earning $4,200 as a worker in a laundry. The rent of the place in which the applicant, the wife and their child are living is paid for by the wife's brother. The whole family has to rely on the generosity of the wife's family in Hong Kong for support. The applicant was a farmer in India and has no special skills.

10. In the affidavit filed on behalf of the Director, it is stated that :

".... looking at the situation, it is clear that the only way in which the applicant's residence in Hong Kong makes any sense is if he can work and support his living and that of his family .... I have no doubt that the principal purpose of residence in Hong Kong is to work."

Application refused

11. In my view, considering the circumstances of the case, the Director was clearly right in his decision. He had not exercised his discretion illegally or irrationally. Likewise the decision of the Secretary for Security in confirming the decision of the Director cannot be faulted. The application was accordingly refused. There will be no order as to costs.