LIMBU SANTI v. DIRECTOR OF IMMIGRATION

HCAL 41 of 2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 41 OF 2014

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J U D G M E N T

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A. INTRODUCTION

1.  This is the applicant’s application for leave to apply for judicial review.

2.  The decision (“Decision”) under challenge is the determination of the Director of Immigration (“Director”) made on 9 October 2012 refusing the application of Mr Shrestha Shanti Ram (“Mr Shrestha”), the applicant’s husband, to take up residence in Hong Kong as her dependant.

B. BRIEF BACKGROUND

3.  The applicant, Ms Limbu, is a Nepalese and a Hong Kong permanent resident.  She was married to Mr Shrestha in Nepal on 7 February 2011.

4.  On 17 March 2011, Mr Shrestha applied for an entry dependant visa to join the applicant in Hong Kong (the “Dependant Application”).  Ms Limbu was the Hong Kong sponsor of that application.

5.  By a letter dated 21 April 2011, the Director invited Ms Limbu to attend an interview with the Immigration Department and requested the applicant to provide further supporting information/documents for the Dependant Application.

6.  Ms Limbu explained by a letter dated 9 May 2011 that she was unable to attend the scheduled interview.  By another letter dated the same day, she submitted further documents pursuant to the Director’s request.

7.  In the “Information Sheet to be Completed by Sponsor” dated 10 May 2011 completed by Ms Limbu, she said no remittance was made by her to Mr Shrestha as he had his own earnings to support his self expenses.

8.  Ms Limbu later submitted further documents in support of the Dependant Application on three occasions, respectively in May, August and December 2011.

9.  The Immigration Department later discovered that while Ms Limbu said that Mr Shrestha was her primary schoolmate and met online again in the latter’s application for visit visa in 2010, in the current Dependant Application she said something different in her letter to the Department dated 15 August 2011 that she first met Mr Shrestha at a travel agency in Nepal.

10.  In reply to the Director’s request for an explanation for such inconsistency in the account of how they got acquainted, Ms Limbu explained by a letter dated 2 March 2012 that she had forgotten the events as it happened some years ago, and re-confirmed that Mr Shrestha was not her primary schoolmate but they met at a travel agency in Nepal for the first time.

11.  On 9 October 2012, the Dependant Application was refused on the ground that the Director was not satisfied with the genuineness of Mr Shrestha’s claimed dependency and that there existed no compassionate, humanitarian or extenuating grounds which merited special consideration.

12.  Ms Limbu was informed of the Decision by a letter dated 9 October 2012 from the Director addressed to Mr Shrestha c/o Ms Limbu.  In the letter, it was stated as follows:

“After careful consideration of all the available information and circumstances of the case, I regret to inform you that your application is refused because we are not satisfied that you are the dependant of Ms LIMBU Santi and that you are coming to the HKSAR to join her as dependant.” (emphasis added)

13.  Almost one and a half years after the Decision, on 17 April 2014, Ms Limbu took out the present application for leave for judicial review.

14.  Ms Limbu acts in person and the application is supported by a self-made Form 86 together with some documents exhibited to her supporting affirmation.  I later directed that there should be a hearing of her leave application, and invited the Director as the putative respondent to attend the hearing.  For this purpose, the Director has filed evidence to oppose leave and is represented by Ms Yiu at the hearing.

C. THE DECISION

15.  As reflected in the evidence filed by the Director, including the internal memos relating to how the Director came to the Decision, the reasons for the Decision can be summarized as follows:

(1) The dependant visa regime is not a regime for family reunion, but one based on establishing “dependency” between the sponsor in Hong Kong and the applicant for the visa.

(2) For that, the Director needs to be satisfied that there are “financial, emotional and physical” dependency between the sponsor and the applicant before she would consider granting a dependant visa application.

(3) In the present case, the Director was not satisfied that Mr Shrestha was financially, emotionally and/or physically dependent on Ms Limbu:

(i) For the lack of financial dependency, the documents and information filed in the Dependant Application showed that Mr Shrestha had been gainfully employed in Nepal and had not been financially dependent on Ms Limbu.  There was also no evidence or information to show that Ms Limbu had been financially supporting Mr Shrestha.  In fact, (a) in the additional information sheet completed by Ms Limbu, she stated, among others, that she had not remitted any sum of money each month to Mr Shrestha because “he [had] his own earning for self expenses, up to now”, and (b) in the information sheet completed by Mr Shrestha, he stated expressly that his future plan in Hong Kong was to “work and support [his wife]”;

(ii) For the lack of emotional and physical dependency, the Director was doubtful as to how they met and got acquainted in light of the inconsistent scenarios given by Ms Limbu and the unreasonable explanation given for the inconsistency.  Further, the documents do not support a close and dependent relationship because (a) other than a marriage certificate and several photos taken at the ceremony, there were no other family photos to support Ms Limbu’s claim of acquaintance and intimacy with Mr Shrestha, (b) there were also no records of emails or letters to substantiate their relationship.  The telephone card copies provided could not confirm the receiver and caller, and (c) Ms Limbu only had one air-side travel for the marriage in 2011, and there was no further visit for both Ms Limbu and Mr Shrestha thereafter.

(4) The Director was also of the view that no insurmountable hardship on Mr Shrestha would occur if the Dependent Applicant was refused, and there also existed no compassionate, humanitarian or extenuating ground that merited special consideration.

D. THIS LEAVE APPLICATION

Grounds of the intended judicial review

16.  Looking at the Form 86 and the written submissions filed by Ms Limbu, she has advanced the following grounds in support of the intended judicial review:

(1) She is financially able to support Mr Shrestha.

(2) She is seeking family reunion and based on the humanitarian reason, she and Mr Shrestha should not be separated other than for a temporary measure.

(3) Mr Shrestha will unlikely become a burden on Hong Kong society.

(4) She is a good and law-abiding citizen.

(5) The relationship between husband and wife is very special and the Director did not consider this further before reaching the Decision.

(6) The Director did not seek assistance from the local Consulate General of Nepal to clarify any doubts regarding her relationship with her husband and the authenticity of the submitted documents.

Relevant principles

17.  It is trite now that leave would only be granted if the applicant could show that the intended judicial review has reasonably arguable grounds which have a realistic prospect of success.  See: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR676 at paragraphs 14-17 per Li CJ.

18.  Moreover, it has also been firmly accepted that the dependency policy is not itself a policy of family reunion: Murali Duraisamy v Director of Immigration (unreported, HCAL 152/2004, 2 November 2005) at paragraph 20 per A Cheung J (as the learned CJHC then was).

19.  Finally, the proper role of this court sitting in judicial review is not to sit on appeal from the Director’s determination or decision but only to play a supervisory role.  This means that this court is not concerned with the merits of the decision, but rather the legality of the decision as well as the fairness of the decision-making process: Mumtaz Hussain v The Chief Executive in Council (unreported, HCAL 163/2002, 18 November 2003) at paragraph 8 per A Cheung J (as he then was).

20.  Bearing in mind the above principles, I am not satisfied that the proposed grounds of judicial review are reasonably arguable for the following reasons.

Grounds 1 and 5

21.  In the instant case, Grounds 1 and 5 are effectively focused on challenging the merits of the Decision which was reached on the basis of the assessment of the materials and information put before the Director.  It is in my view reasonably open to the Director to come to the view that:

(1) Mr Shrestha was not financially dependent on Ms Limbu given the evidence as summarized above.  It is noteworthy that (a) it was Ms Limbu’s own position as stated in the additional information sheet that (i) Mr Shrestha was financially independent with a gainful employment in Nepal, (ii) she had not been remitting any funds to support him, and (b) it is Mr Shrestha’s own statement that he wanted to come to Hong Kong to work and to support the family[1]; and

(2) They were also not emotionally and physically dependent. In light of the radically different accounts of how they got acquainted in the first place, and that the Director is entitled to find it questionable Ms Limbu’s explanation that she had simply remembered the incident wrongly, it is not Wednesbury unreasonable for the Director to have doubt that there was a genuine love and emotional element in the relationship.  This doubt in my view is reasonably reinforced by the lack of evidence and materials (as summarized above) to show that, after Ms Limbu has returned to Hong Kong after briefly spending a week or so for the marriage in Nepal, the two of them had any consistent, regular and established communications, let alone close communications.  It would have been natural and reasonable to expect a recently married couple, who have since been kept apart, to have at least some form of consistent and regular communications to express their care, passion and love for each other.

22.  Further, the Director had also taken into account the husband and wife relationship.  She accepted that they are formally married husband and wife.  However, she, as I said above, also formed the view that, despite the formal relationship, they lacked the necessary dependency elements to support the grant of a dependent visa.  This is a conclusion that is open to her to reach as I explained above (see also the observations of Hartmann J quoted in paragraph 32 below).

23.  In the premises, it is not reasonably arguable to say that these findings of the Director in support of the Decision are Wednesbury unreasonable or without any evidential basis.  Nor can it be argued that the Director had failed to take into account the husband and wife relationship in the Decision.  There is therefore no unlawfulness of the Decision based on these conclusions.  The court in judicial review would not intervene the Decision on these grounds.

Grounds 2-4

24.  These grounds could be grouped as a challenge to the Director’s conclusion that there were no special humanitarian and compassionate considerations to support granting the Dependant Application on discretion.

25.  It must firstly be noted that there is no general duty on the Director to take into account of humanitarian and compassionate grounds (see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332F-G per Li CJ).

26.  But as a matter of discretion, when and if the Director does consider an application on this ground in a particular case (as in the present), how she exercises her discretion after taking into account of all the circumstances is ultimately a question for her entirely (Lam Khiet Phung v Director of Immigration (unreported, HCAL 9/2004, 24 January 2006, Chu J, at paragraph 66.).  The discretion, when exercised, is of course still subject to the supervision of the court in a judicial review on the traditional public law grounds.

27.  In the present case, the Director had taken into account the husband and wife relation of Ms Limbu and Mr Shrestha, the fact that there would be no financial hardship on him if he was to remain in Nepal, and the Director’s conclusion that there was no financial, emotional and physical dependency between them.  It also cannot be argued that the Director had failed to take into account any relevant factors that the law would require her to take into account.  On this basis, it is not reasonably arguable that the Director’s conclusion that there were no special humanitarian or compassionate grounds to require her to exercise the discretion to grant the dependant visa application is unlawful or Wednesbury unreasonable.  In my view, if Ms Limbu’s contentions on these grounds were correct, then almost every husband and wife relationship per se would support a grant of dependant visa on humanitarian or compassionate ground, which cannot be right.  In this respect, it must be reminded that (as stated above) the dependency policy is not a family reunion policy.

28.  I therefore also find these grounds unarguable.

Ground 6

29.  Ground 6 is entirely without merit.  The Director has not doubted the formal husband and wife relation in reaching the Decision.  Thus, it is simply not necessary or relevant for the Director to clarify the authenticity of the marriage documents with the consulate as suggested by Ms Limbu.

Other considerations

30.  Notwithstanding the above, I have noted that while the dependant policy (as explained in the affirmations filed on behalf of the Director) requires Ms Limbu for the Dependant Application to demonstrate physical, emotional and also financial dependency, the requirements to show dependency on all these three elements have neither been expressly stated in the Director’s letters to the applicant nor in the guidelines issued by the Immigration Department (ie, the “Immigration Guidelines for Entry to the Hong Kong Special Administrative Region of the People’s Republic of China” and the “Guidebook for Entry for Residence as Dependants in Hong Kong”).

31.  At the hearing, this court therefore invited submissions as to whether the lack of an express reference to the three elements of dependency would constitute procedural unfairness, in the sense that Ms Limbu and Mr Shrestha were deprived of the chance to know specifically that they should prove all the three elements of dependency so that she could focus on what sorts of information and materials she may have to provide to support the Dependant Application.

32.  In this regard, Ms Yiu for the Director submits that these separate requirements are and could be objectively and reasonably inferred from the meaning of the word “dependant” itself.  Moreover, a demonstration of genuine family affection by itself but nothing more is not sufficient to show “dependency” as required under the policy.  These observations are supported and affirmed by Hartmann J (as the learned NPJ then was) in Christian Bulao Palmis v Director of Immigration, supra when commenting the dependant policy at paragraphs 25 and 26:

“25. If dependency is the primary consideration, the starting point, in my view, must be the meaning of that word. It has a plain enough 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 unable otherwise to manage. A person who can adequately support himself or herself by taking up employment or going into business, and who does not require the care of a family member, is therefore not dependent on another for that maintenance, care and support, not at least in material terms. It follows, in my view, that, in accordance with the dependency scheme, if the primary purpose - or a principal purpose - of a person applying to reside in Hong Kong as a dependant of a family member is to work then, in the absence of special circumstances, that person is not a dependant.

26. The facts will, of course, always determine the issue. If, for example, a wife seeks to accompany her husband to Hong Kong after he has obtained permission to work here and, while in Hong Kong, has no intention to work herself but wishes only to occupy her natural place within the family setting then, even though she has private financial means, she may, it seems to me, while she is residing in Hong Kong, be her husband’s dependant, looking to and needing his day-to-day care and support. I say that, however, subject to the caveat that 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 policy of family reunion not a policy of dependency.” (emphasis added)

33.  I am eventually convinced by these observations and thus accept that there is no procedural unfairness in the present case.

E. DELAY

34.  Other than dismissing the leave application for the above reasons, I should also mention something about the delay in this case.

35.  An application for leave to apply for judicial review shall be made promptly, and in any event not later than 3 months from the date of the challenged decision (O 53 r 4(1) of the Rules of the High Court (Cap 4A)).  A failure to act promptly, and in any event within three months as required under the rule, constitutes itself undue delay. The court may on this basis refuse to grant leave unless there is good reason for extending the period within which the application shall be made.

36.  As I have mentioned earlier, the Decision was made on 9 October 2012.  There had been a long delay of 15 months when Ms Limbu took out the leave application on 17 April 2014.

37.  Ms Limbu explains that the delay is because she is not well educated and was not advised by anyone and hence she did not know the availability of the avenue of judicial review to challenge the Decision.

38.  However, as I have said in another occasion, ignorance of the existence of the remedy of judicial review by itself does not generally constitute a good explanation for the delay: Fung Elvira Binag v The Secretary for Home Affairs (unreported, HCAL 139/2013, 10 March 2014) at paragraph 25.  The fact that the applicant did not receive legal advice also could not itself constitute a good reason for extending time: Tsui Kin Kwok Johnnie v Commissioner of Police (unreported, HCAL 50/2009, 26 February 2010) at paragraph 46 per A Cheung J (as he then was).

39.  In the premises, I do not accept that the applicant’s above explanations without more constitute any good reasons for an extension of time.

40.  I would have therefore refused to grant an extension of time to the applicant to apply for judicial review.

F. CONCLUSION

41.  For reasons given above, the applicant’s application for leave to apply for judicial review is dismissed.

G. COSTS

42.  It is now settled that the normal costs order in a contested unsuccessful leave application is no order as to costs.  The court should order costs against an unsuccessful applicant only if justified by exceptional circumstances or good reasons: Sky Wide Development and Others v Building Authority [2011] 5 HKLRD 202 (CA) at paragraphs 28 and 31 per Tang VP (as he then was).

43.  The court’s discretion in relation to costs on such applications is a broad one: Sky Wide Development, supra, at paragraph 25 per Tang VP (as he then was); Re Ho Chun Yan Albert (HCAL 84/2012, 28 September 2012) at paragraph 26 per Lam J (as he then was).

44.  Some non-exhaustive factors that are usually considered by the court are summarised by me in Television Broadcasts Limited v Communications Authority (unreported, HCAL 3/2013, 22 July 2013) at paragraphs 5 and 6 and I would not repeat them here.

45.  In Re Ho Mei Ling (No 2) [2012] 1 HKC 400, Lam J (as he then was) quoted with agreement at paragraph 27 Auld LJ’s dicta in R (Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346 that:

“What amounts to exceptional circumstances for not following the general rule may vary considerably according to the circumstances of the case, including the strength or weakness of the application and the respective conduct and circumstances of the parties.”

46.  In this case, Ms Yiu for the Director has asked for costs of this application on the basis that:

(1) There are obvious demerits in the present application.

(2) The applicant sought to pursue the judicial review only to advance her own interest.

(3) The applicant’s delay in taking out this application is undue.

(4) The Director’s presence has rendered helpful assistance to the court.

47.  Ms Limbu obviously says that there should be no order as to costs.

48.  Ms Yiu’s above submissions on costs merit serious consideration by this court.  However, at the end of the day I do not think this is a case where (when considered as a whole) there are sufficient good reasons to justify a departure from the usual position on costs.  This is so as the court’s initial concern on the above procedural fairness point in the circumstances of this case is the main reason why the court has directed the Director to appear in this leave application.  This point is then clarified by the Director at the hearing.  In these circumstances, it cannot be said that it was entirely unjustified for Ms Limbu to take out the leave application and it would also not be fair to order Ms Limbu to pay costs.

49.  I therefore would not depart from the usual rule, and would order that there be no order as to costs in this leave application.

50.  I would also like to take this opportunity to thank the assistance of Ms Yiu in this matter.

[1] In this respect, Hartmann J (as the learned NPJ then was) in Christian Bulao Palmis v Director of Immigration (unreported, HCAL 2104/2001, 19 February 2003) said at paragraph 25 that “… if the primary purpose - or a principal purpose - of a person applying to reside in Hong Kong as a dependent of a family member is to work then, in the absence of special circumstances, that person is not a dependant under the dependency scheme”.  (emphasis added)