KHAN KAMRAN v. DIRECTOR OF IMMIGRATION

HCAL 48/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 48 OF 2005

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J U D G M E N T

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Introduction

1. The applicant was born in Pakistan in June 1987.  He was raised and educated in that country.  In or about 2002, when he was 15 years old, he said he discovered that he was an adopted child and that his true parents were living in Hong Kong.

2. In June 2004, when he was about 17, the applicant came to Hong Kong as a visitor.  Shortly after his arrival, he applied to change his immigration status.  He now wished to remain in Hong Kong, he said, as the dependant of his true father and mother.

3. In early May 2005, the Director refused the application.  In part, the letter of refusal read :

“Under the existing immigration policy, an unmarried dependent child under the age of 18 may be allowed to come to the HKSAR for residence to join his/her parent already resident here as his/her dependant if it is satisfied, amongst other things, that such person is a dependent child of the parent, his/her purpose of taking up residence here is to join the parent as his/her dependant, and that the parent is able to support his/her dependent child’s living at a standard well above the subsistence level.  After careful consideration of your application, I regret to inform you that your application is refused because we are not satisfied that:
(a)	the sponsor is financially capable of supporting the applicant’s living in the HKSAR;
(b)	the applicant is a dependent child of the sponsor; and
(c)	the applicant’s intention to come to the HKSAR was to join the sponsor as his dependant.”

4. It is this decision of the Director which is challenged by the applicant as being unlawful.

The factual background

5. The applicant’s father – his sponsor – was himself born in Pakistan in 1941.  He settled in Hong Kong in 1969.

6. The applicant’s father and mother were married in Pakistan in 1973.  Including the applicant, five children were born of the marriage, four boys and a girl.  It appears that all the children were born and raised in Pakistan.

7. The eldest son came to settle in Hong Kong in 1992 when he was about 18.  The second son came to live here two years after that when he was about 17.  The third son came three years later, in 1997, when he was also about 17.  The applicant himself came here when he was about 17.  Give a year or two, all four sons therefore have come to Hong Kong at about the same age, as young men with their working lives ahead of them.

8. It is the applicant’s case, however, that his circumstances were very different from those of his elder brothers.  This is because, as I have said, the applicant, when still an infant, was adopted and raised as the child of another family.

9. I am told that the applicant was given up for adoption in accordance with local clan or tribal custom.  The family which adopted the applicant was related but at that time was childless. 

10. Although it was never before the Director, I have been given an advice by a lawyer in Pakistan that, under sharia law; that is, under Muslim religious law, even if a child is adopted, the biological parents retain all their obligations in respect of the child.  Those obligations are not transferred in any conclusive way to the adopting parents.

11. That may be so.  But was the adoption in accordance solely with custom or, in part or whole, with sharia law or was it governed by civil law?  As I understand it, the Director was only informed that the adoption was ‘informal’.  But what, in context, were the legal consequences of that in Pakistan?  In short, the Director was not given any detailed information on what was a fundamental point.

12. If the applicant is believed, the adoption was not so ‘informal’ as to be common knowledge in the clan or family circle.  The applicant said that he only discovered he was adopted when he was 15 years old.  He said it came as a great shock to him.  This was compounded, he said, by the fact that his adoptive father began to treat him badly – although how exactly was not really spelt out.

13. According to the applicant’s true mother, when she learnt that the applicant was in such distress, she decided that he should be brought to Hong Kong.  She telephoned a family relative, she said in her affirmation, to ask him to arrange the necessary travel papers.

14. The applicant’s father, in his affirmation, explained that he had always sent money to the man who adopted the applicant in order to assist him with expenses.  However, he said, he stopped sending money when his wife and his daughter were able to come to settle in Hong Kong in 2002.  In this regard, in my view rather strangely, the father said the following in his affirmation :

“After my wife came to Hong Kong in 2002, I did not remit [the monies] as I wanted to test how the adoptive father would behave to the applicant if no more money was remitted to him.”

15. Quite why, after so many years, the father would wish to set such a ‘test’ was never explained.  The result, however, so it appears to be said, is that the adoptive father’s affection for the applicant cooled.

16. In the result, it appears that the applicant did not continue his schooling and, so it is said, did not work either.  It is asserted that this state of limbo persisted for about two years.

17. On the evidence, it is clear that the applicant’s mother at least knew that the applicant intended to come to Hong Kong not as a visitor but to settle here permanently.  She said as much in her affirmation.  The father, however, appears to have been ignorant of this.

18. Once the application for a change of the applicant’s immigration status had been made, it appears that enquiries were made by the Immigration Department.  The decision was made, however, to refuse the application.  The officer who made the decision, Mr Lee Kwok Keung, has explained his essential reasoning by saying :

“The sponsor [the father] alleged that the applicant had been informally adopted by his cousin since the applicant’s early infancy.  He claimed that he gave money to his cousin for the maintenance of the applicant from time to time.  However, the sponsor could not produce any proof to support his allegation.  Even if his allegation was true, the applicant had been adopted by and resided with the sponsor’s cousin for a long time and the applicant’s dependency on the sponsor could not be established.

The sponsor stated that the applicant had not been working or studying since September 2002.  Having taken into account the sponsor’s financial means, the applicant’s age [approaching adulthood], and that he had finished schooling in 2002, I had doubts on the applicant’s intention to join the sponsor as his dependant.”

19. As the letter of refusal made plain, leaving aside the issue of financial means, the Director’s primary concern was related to the issue of dependency.  First, was the applicant in fact a dependant child and, second, if so, had the applicant come to Hong Kong with the intention of joining his true father as his dependant?

Looking only to the material before the decision maker

20. Before proceeding further, what must be emphasised is that I am asked to review the legality of a decision made in May 2005.  This is not an appeal going to the merits of that decision.  Even less is it a re-hearing in which, in light of evidence gathered since the decision, I am asked effectively to assume the powers of the decision maker and to make a new decision on the merits.

21. All too often it has been my experience, in determining judicial review challenges of this kind, that the material placed before me going to the factual merits is greater than the material put before the Director when the decision under challenge was made.  I appreciate how that can happen.  The original application is often made with minimal understanding of what must be demonstrated.  Only after the application has been rejected is professional help sought and more extensive material gathered.  But it seems to me that, if the new material is to be of any relevance, it should form the basis of an application to the Director to reconsider his decision.  It is of little, if any, value to this court in a judicial review challenging the legality of the Director’s original refusal.

22. In judicial review proceedings, an applicant can of course adduce evidence to show what material was before the decision maker.  An applicant may also adduce evidence to show that there was a failure to make proper enquiry and that the evidence should have been before the decision maker.  But an applicant is not permitted to adduce evidence which was not available to the decision maker at the time when the decision was made to try and show that the decision was unreasonable.

What was before the Director?

23. Two letters have been put before me.  One is a letter dated 11 October 2004 written by the applicant, the other is a letter dated 30 November 2004 which appears to have been written by the applicant’s father.

24. In the first letter, the applicant himself is recorded as saying the following :

“In reply to your requisition (F) of your letter of 24 August 2004, I give my explanation for my failure to apply for a dependant visa before my arrival in Hong Kong.  My natural parents did not know I came to Hong Kong to join them for residence as a child dependant.  Until recently, I came to know that during my infancy, my father offered me for an informal adoption by his cousin (not a legally recognised foster parent).  I made clear to my natural parents of my intention to join them as a child dependant only after my arrival in Hong Kong.  My natural parents then consented to sponsor my dependant application.”

25. That assertion by the applicant was, of course, not strictly true – as revealed by the later evidence – as the mother accepted that she had been planning the family reunion for some time.

26. The father, in his letter, wrote the following :

“	The following information and documents are provided to you for case assessment as per your request by letter of 16 November 2004:
	(i)	The applicant in early infancy was given away to my cousin for adoption, however, owing to the fact that we are close relatives, we thought it unnecessary to have the adoption legally recognised by way of complying with the applicable legal formalities;
	(ii)	There is no time limit for registering births in Pakistan.  It is quite common for people to register their children’s births years after their births, particularly when an official document showing their children’s births is required.  Official documents are usually made when needed.  The birth of the applicant had not been reported to the Pakistan authorities until 2002;
	(iii)	No school records, family photographs and other official documents since childhood have been kept;
	(iv)	The applicant was raised by my cousin as a child of his while he was in Pakistan;
	(v)	From time to time, I gave money to my cousin for the maintenance of the applicant;
	(vi)	As explained in preceding paragraph (i);
	(vii)	The applicant has not attended school since September 2002;
	(viii)	The applicant has no occupation before coming to Hong Kong because he was neither working nor studying.  He plans to have a family reunion with us, his natural parents.”

27. Two matters of substance arise from these letters.  First, the admission is made that the applicant had not been at school for two years.  Second, no assertion was made that, now that the applicant was in Hong Kong, he intended to continue his schooling.

28. Why had the applicant not been at school for the past two years?  No explanation appears to have been given.  Why had he not worked for the past two years?  No explanation appears to have been given. 

Dependency

29. The applicant sought to become a dependant of his father here in Hong Kong.  The burden was therefore on the applicant to show that, in terms of the relevant policy, that was his true intention.

30. The dependency policy has been explained by Mr Lam Kwok Luen, a senior officer in the Immigration Department.  Mr Lam said that – since 1 July 2003 – the policy may be described as follows :

“The Government’s policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependants in appropriate cases.  While it is true that the policy will enable family reunion, its purpose is however to allow certain categories of close family members, namely (under the police as revised since 1 July 2003) parent over 60 years of age, unmarried child under 18 years of age and dependent spouse to remain when they require the care and financial support of their sponsors in Hong Kong.  As such, dependency is an essential element of the policy.  An exception to the policy may only be made where there are strong humanitarian or compassionate grounds.”

31. Mr Lam explained the consequences of the policy :

“It is the existing policy that if an applicant is not a genuine dependant of the sponsor, or if the primary purpose or a principal purpose of the person applying for a dependant visa as found by the Director after looking at all the circumstances of the applicant, his or 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 or her family, the application will not be granted.”

32. In an earlier decision, that of Palmis v. The Director of Immigration, unrep. HCAL 2104/2001, I said that the word “dependency” has a plain English meaning.  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 otherwise unable to manage.

33. Invariably, therefore, certainly as between a parent and child or husband and wife, dependency contains an emotional element.  To make that observation does not enlarge the dependency policy, it merely recognises what has always been integral to the policy.  That being said, however, recognition of the emotional element of dependency has its limits.  As I said in Palmis :

“The mutual emotional dependency that is to be found in genuine family affection is not of itself and viewed alone, a form of dependency which falls within the Director’s policy.  If it did, then all demonstrations of genuine family ties and the desire to be together would, on its own, fulfil the necessary criteria.  That, in plain terms, would constitute a family reunion, not a policy of dependency.  The policy of family reunion, of course, as admirable as it may be, is not a policy followed by the Director.”

Can emotional dependency alone be sufficient to meet the requirements of the policy?

34. One behalf of the applicant, Mr Kwok submitted that there must be cases, albeit not common, in which the emotional bond between an applicant and his sponsor is so important that a failure to take it into account will vitiate the lawfulness of a decision.  The present case, said Mr Kwok, is just such a case.

35. I fully accept that, in terms of the dependency policy as it has been described, there may be occasions when the existence of emotional dependency is, in all the circumstances, of such importance that a failure to take it into account will render the decision unlawful.  Every case, of course, will depend on its own facts.  But I do not accept that, on a consideration of all the material that was before the Director, the present case is such a case.

36. In the present case, said Mr Kwok, when the applicant learnt he was adopted, it caused him great distress.  At about that time too the relationship between the applicant and his adoptive father soured.  Understandably, the applicant sought to be with his true family so that, after so many years of denial, he would be able to assume a natural niche in that family.  But he could not do so in Pakistan.  That was because all his family had migrated to Hong Kong.  He therefore had to come to Hong Kong.  Accordingly, in the present case, said Mr Kwok, something more profound than mere family reunion was sought.  What was sought was the ability of a young man, denied knowledge of his true parents, to at last be united with those parents so that, after so many years, he could be recognised as their son in all their day to day lives.  In short, there were compelling emotional imperatives in this case which could not be ignored but apparently were ignored.  In the result, the decision must be set aside and the matter put before the Director for fresh consideration in the light of fresh representation.

37. Mr Kwok submitted that, before the Director made his decision, all the ‘signposts’ were there to indicate the existence of a special emotional dimension.  That created an obligation on the part of the Director to investigate that emotional dimension.

38. But there were also, in my view, considering the matter objectively, a number of suspicious circumstances.  The applicant had arrived here at 17, about the same age as his elder brothers, at an age when his education in Pakistan was seemingly complete and when he was ready to take up work.  More than that, whatever the nature of the adoption, it appeared that the applicant had been raised as the child of another family.

39. Mr Kwok accepted that there were suspicious circumstances but he said that these had been dispelled in the letters I have cited from the applicant and his father.  That may or may not be the case but, with respect, that goes to the merits of the Director’s decision.  It was for the Director to give what weight he thought proper to those letters.

40. In my judgment, however, what was not before the Director was any evidence of substance that in this case the emotional imperatives were so profound that they had to be considered of material importance, indeed perhaps determinative.  As I have said, I accept that there may be occasions when emotional circumstances demand consideration.  But those circumstances must be made known.  Mr Kwok spoke of ‘signposts’.  That may be so but they did not directly indicate the strength and urgency of emotional imperatives.  That somehow was left to the Director to assess himself.

41. But I do not see how the Director can be asked to assess in abstract terms the level of love that a spouse has for the other spouse or that a parent has for a child.  That would place the Director in an invidious situation.  In short, the Director must be given material upon which he can make a rational decision in this regard.  When the Director considers an application for a change of immigration status, it is not his responsibility to extract from that application every possible ground that may perhaps, even if not stated or inferred, be suggested at some later stage to nevertheless be in some way ‘signposted’.  It must be remembered that it is for an applicant to satisfy the Director that the change of status is warranted. 

42. Emotional bonds can, and often do, exhibit themselves in a practical way.  For example, a child of over 18 may be handicapped – physically, mentally or emotionally – and, although strictly capable of an independent life, nevertheless requires the affection and care of his parents to render his or her life tolerable.  These kind of cases are no doubt encountered by the Director from time to time.

43. In the present case, however, all the Director had before him was evidence that the applicant had been the subject of some informal or traditional process of adoption, that he had discovered he was adopted and that he wished now to be with his true family.  The applicant was, however, seemingly fit and well, a young man who had given up school and was now ready to work.  There was no evidence of distress, no real evidence, in fact, that his adoptive family had rejected him or that, in the context of his adoptive family, he had been reduced to an isolated life in Pakistan.  In summary, nothing was put before the Director to show any pressing emotional dependency.  All that was asserted was a desire in this case for the applicant to now live here in Hong Kong with his true family; that is, his biological family.

44. In each case, of course, the facts of that case will be determinative.  Not all adopted children – by the fact of adoption alone – have a strong desire to give up their adoptive parents and live with their true parents.  Indeed, in many cases the opposite is the case.  In my judgment, therefore, the mere fact that this applicant was adopted could not be determinative. 

45. I do not wish to be understood as denigrating what has been advocated before me; namely the strong wish of this applicant to live with his true family in Hong Kong.  But it must be remembered, as I have emphasised earlier, that we are looking to what was before the Director when the decision under challenge was made. 

46. In considering the lawfulness of that decision, two fundamental matters must be taken into account.  First, the Director does not manage a policy of family reunion.  Second, the Director enforces a strict – not a generous – immigration policy.

47. In Durga Maya Gurung v. Director of Immigration, unrep. CACV 1077/2001, Yeung JA spoke of this strict policy in the following terms :

“Hong Kong is a small place with a huge population and a standard of living much higher than that of many of the neighbouring countries, not to mention the motherland with a population of over 1 billion; her attraction to potential immigrants cannot be overestimated.
The Director must be allowed to maintain and enforce a strict immigration policy to prevent any possible abuse.  What policy to formulate and how to implement such policy is a matter entirely for the Director.
It is not for the court or anyone else to advise or dictate the Director on policy matters as they may not be sufficiently informed of the ever-changing circumstances relevant to the formulation and the implementation of the policy.
The power of the court in a judicial review of the decision of the Director is limited as pointed out by Lytton JA, as he then was, in R v Director of Immigration ex Chan Heung-mui [1993] 3 HKPLR 533 at 547 :
	‘It must always be borne in mind that it is for the Director and not for the courts to administer the scheme of Immigration control under the Ordinance.
	A visitor has no legitimate expectation to be allowed to take up residence in Hong Kong.  An application to review the decision of the Director who refuses to allow the change of status of a visitor to a dependent resident is unlikely to be successful unless it can be demonstrated that there has been a misuse by the Director of his power or that “his decision is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’”

Yeung JA concluded by saying :

“The threshold for the court’s intervention on Wednesbury unreasonableness, as the courts have repeatedly said, is necessarily very high.”

48. In the circumstances, I am not in a position to hold that the Director, in reaching his decision, failed to take into account a material consideration which, on the material before him, he was obliged to do or that in any other way his decision on the question of dependency was unreasonable.

Financial capability

49. The applicant has also challenged the Director’s decision on the basis that the Director was wrong in law in coming to the conclusion that the applicant’s father, his sponsor, was not financially capable of supporting the applicant’s living to the required standard.

50. Mr Lam explained the sponsorship element of the dependency policy, saying —

“Under the dependant policy, there is also a requirement that a sponsor must be able out of his or her own resources to house and maintain the applicant.  It derives from the need to avoid imposing burdens on the residents and taxpayers of Hong Kong.  If, in admitting persons with no claim upon Hong Kong for residence, there is a real risk in the short or medium term that their residence will result in general or particular recourse to public and social services, including medical services, their applications are unlikely to be approved.  This criteria assumes tangible form in the rule that where there is an applicant and a sponsor, the sponsor must show that he or she is capable of supporting their own living and existing commitments in Hong Kong or overseas and that of the proposed dependant to a living standard well above subsistence level.  As is appropriate for a dependency, possible earnings of the dependant are not included in this calculation.”  [my emphasis]

51. On behalf of the applicant, Mr Kwok has accepted that the father, the sponsor, was himself of limited means.  But what, in the present case, had to be taken into account, he said, and what was not taken into account, was the fact that the father was the source not only of his own income but of all the family members who lived together : brothers and sisters, husbands and wives.  The earnings, by way of custom, came to the father and through him were used for the benefit of all the family.

52. The dependency policy, said Mr Kwok, had an in-built restrictive mechanism; namely, the restriction on who could be a dependant in the first place.  Nothing was advanced, therefore, by holding that a sponsor alone must be able to maintain a dependant.  Surely if other family members could give assistance that would better assure that a dependant did not at any time have to look to the state for support.

53. But it seems to me, with respect, that Mr Kwok was not arguing that the present policy was irrational, he was arguing only that there is surely a better policy.  That may be so.  But that is a matter for the Director not a matter for this court.

54. I state again that the Director’s policies are strict policies by which I mean that they are intended to be restrictive in nature.

55. In Durga Maya Gurung (supra) Mayo J made the observation that, in his opinion, there was no basis for saying that requiring a sponsor alone to have sufficient resources was irrational.  In my judgment, there are sound reasons for that.

56. First, for example, a sponsor is a single, identified figure whose character, earning power and material means can be assessed without placing too great a burden on the resources of the Immigration Department.

57. Second, the Director must be able legitimately to set a limit as to the number of people who can sponsor an applicant so that he can control his policy.  If siblings were allowed to be effective co-sponsors, why should other family members – aunts and uncles – not also be included?  Outside of the family, why not friends?  Why not also welfare organizations, clubs or syndicates?

58. The Director has determined that he will look only to a single sponsor.  That may be a restrictive approach but nothing has been put before me from which I can conclude that it is in any way unlawful.

Conclusion

59. I conclude by saying that these cases always cause me - and indeed, I know, my fellow judges – much anxiety.  I say that because invariably the persons who come before us seek nothing more than to be together with their loved ones.  But, as I hope I have made clear, Hong Kong – for good reason – manages a restrictive immigration policy and it is not for this court – on the basis of sympathy – to circumvent that policy. Every country, to a greater or lesser degree, has immigration controls and every country, to a greater or lesser degree, in the management of those immigration controls, will cause unhappiness to those who do not benefit under them.

60. For the reasons I have given, this application must be dismissed.  Mr Cooney, for the Director, has sought costs.  There will be such an order in favour of the Director.