SACDALAN CONRAD CHRIS ALVAREZ v. DIRECTOR OF IMMIGRATION

HCAL91/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.91 OF 2003

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J U D G M E N T

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The application to judicial review

1. This is the applicant's application for judicial review against two decisions of the Director of Immigration ("the Director"), refusing him permission to remain in Hong Kong as a dependant of his father, and his application for visa extension pending the outcome of his petition to the Chief Secretary for Administration.

Factual background

2. The applicant is a Filipino national born in the Philippines on 16 October 1983. The applicant has a son who was born on 8 March 1999 in the Philippines. According to the applicant, he did not go through any form of marriage with the child's mother. The child is residing with his mother in the Philippines.

3. The applicant's father ("the Sponsor") was born in the Philippines on 30 April 1955. He was married to the applicant's mother in 1979. They have four sons, who were all born in the Philippines. The applicant is their second son.

4. The Sponsor came to Hong Kong to work in 1994 and has since been working as a greens man. He acquired his right of abode in May 2002.

5. The applicant and his mother first made application to join the Sponsor as his dependants on 22 November 2001. It was refused on 22 February 2002. They requested a reconsideration of their applications on 6 March 2002, but the refusals were maintained on 19 April 2002. The applicant and his mother left Hong Kong on 30 April 2002.

6. On 17 October 2002, the applicant's mother was granted permission to remain in Hong Kong as a dependant of the Sponsor. On 30 September 2003, the permission was further extended to 17 October 2006.

7. On 4 April 2003, the applicant came to Hong Kong for a second time. On 16 April 2003, he made an application for change of his immigration status to join the Sponsor as his dependant in Hong Kong. The application was refused by the Director by letter dated 21 August 2003 ("the 1st Decision").

8. On 2 September 2003, the applicant wrote to the Chief Secretary for Administration raising objection to the 1st Decision ("the Petition"). On 3 September 2003, a Mr Habib, on behalf of the applicant, made an application for extension of stay of the applicant pending the outcome of the Petition. The application was refused on the same day ("the 2nd Decision"). The applicant was granted a one-week extension.

The application

9. On 8 September 2003, the applicant commenced judicial review proceedings. Leave was granted by Cheung J on 11 September 2003. On 25 September 2003, the Notice of Motion was filed.

10. The applicant seeks an order of certiorari to quash the 1st and 2nd Decisions, a declaration that the two decisions were unlawful, and an order of mandamus to compel the Director to permit the applicant to remain in Hong Kong as a dependant or pending the outcome of the Petition.

The decisions challenged

11. The 1st Decision was communicated to the applicant in a letter dated 21 August 2003, the relevant part of which reads :

" Having taken into consideration the information made available and the circumstances of the case, I regret to inform you that your application is refused because we are not satisfied that:

(i) you come to the HKSAR to join the Sponsor as his dependant; and

(ii) you are genuinely dependent on the Sponsor."

12. The 2nd Decision was contained in the Director's letter of 3 September 2003 to the applicant. The material part of the letter states as follows :

" The lodging of a petition does not give you the right to remain in Hong Kong pending the decision on your petition. We have considered the circumstances of your case. We regret to inform you that your application for extension of stay is refused.

The decision to be made on your petition will not be adversely affected by your absence from Hong Kong. Your petition will be processed in the normal manner. The decision on your petition will be conveyed to you through your last known contact address. If the decision of the Director of Immigration is reversed, you will be issued with the appropriate visa to facilitate your return to Hong Kong."

The grounds for application

13. The principal ground taken by the applicant for the challenge against the two decisions is that the decisions are Wednesbury unreasonable.

14. In respect of the 1st Decision, it is said that the applicant was physically, financially and emotionally dependent on his parents, and his purposes for coming to Hong Kong are for family reunification, studies and a more structured and respectable life. It is also said that on humanitarian ground, parents and child should not be separated except for just or irresistible reason.

15. As for the 2nd Decision, it is said that the Director erred in referring to the applicant's lack of right to remain in Hong Kong, had skipped the evaluation process and had failed to exercise his discretion in arriving at his decision. It is further said that the Director had failed to take into relevant considerations, including that he has a genuine need to remain in Hong Kong pending the outcome of the Petition, the expulsion of the applicant from Hong Kong will cause harm to him, and family reunion is of paramount importance.

Dependency policy

16. As the Director rightly observes, this application turns essentially on the merits of the applicant's dependant application. For this reason, it is important to look at the relevant immigration policy that has been set out in the affirmation of Chan Shu Shan Johnnie. The policy has also been received judicial attention in a number of cases : see, for example, Pun & Anor v. Director of Immigration & Anor (unreported) HCAL1541/2001 at paras.9-17, Palmis v. Director of Immigration (unreported) HCAL2104/2001 at paras.19-33.

17. The Director has the statutory duty of immigration control. He has a wide discretion to admit or refuse entry under the Immigration Ordinance, Cap.115. The permission or refusal of aliens to remain in Hong Kong as dependants falls within the Director's discretion. It is for the Director to determine whether an applicant is a genuine dependant.

18. In summary, the dependency policy can be described as follows :

(1) It is a strict immigration policy within which there is no policy of family reunion.

(2) Foreigners may be allowed to join their relatives in Hong Kong as dependants in appropriate cases. While the policy enables family reunion, its main purpose is to allow certain categories of close family members to remain when they need the care and financial support of the sponsor. Dependency is an essential element of the policy.

(3) If the primary purpose or a principal purpose of the applicant is to work in Hong Kong rather than occupying a natural niche in the setting of his family as dependant, the application will not be granted.

(4) A sponsor must be able to house and maintain the applicant out of his own resources.

(5) There is no employment restriction imposed on dependant visa holders because it is unnecessary to do so, given the holder is a dependant and also because it is difficult to police it. Accordingly the policy on allowing dependants to reside in Hong Kong must not be used as means to get round the restrictions on employment visa.

Approach of the court

19. The role of the court in judicial review proceedings is supervisory. The approach to be adopted for application of this nature has been set out by Stock J in Aita Bahadur Limbu v. Director of Immigration (unreported) HCAL133/1999 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."

The 1st Decision

20. In the present case, there is no issue as to the Sponsor's financial capability to support the applicant. The Director, acting through the Senior Immigration Officer ("SIO"), was, however, not satisfied that the applicant's primary intention for the application was to join the Sponsor as his dependant in Hong Kong. A number of matters had been considered.

21. Firstly, the applicant indicated in the Sponsorship form his purpose of the application was to "study and work". In his parents' letter to the Immigration Department, they also stated that they would want the applicant to study in Hong Kong and "if God permit (sic), work". The SIO took the view that the applicant's primary intention of staying in Hong Kong is not to join the Sponsor as his dependant, but to study and work.

22. Secondly, the applicant had stated that he intended to study computer course in Hong Kong. The SIO had doubts about this claim in view of the applicant's unsatisfactory academic results in the Philippines.

23. Thirdly, the applicant had produced three certificates issued by the Office of the Civil Registrar General of the Philippines National Statistics Office, confirming that there is no marriage record of the applicant up to 2000, 2001 and 2003 respectively. The first two certificates issued in April and June 2003 both contained these words : "Issued upon the request of CHARITO A. SACDALAN for EMPLOYMENT (ABROAD)." As for the third certificate, it was stated : "Issued upon the request of CHARITO A. SACDALAN for LEGAL (PURPOSES)." Charito A Sacdalan is the applicant's mother. The SIO considered that the stated purpose for the issue of these certificates threw light on the applicant's real intention for staying in Hong Kong.

24. Fourthly, the SIO had considered the documents previously submitted by the Sponsor in support of the dependency application of the applicant's mother. In one of the letters from the Sponsor, he referred to the fact that they had a grocery business, a passenger jeepney and a passenger tricycle in the Philippines, and the income generated from them could meet the financial needs of the family. He further stated : "My two older kids are living independently they are already working student (sic). They can support their studies for they are working part-time during free hours." The SIO was of the view that the letter suggested that the applicant and his eldest brother had been living independently in the Philippines.

25. The SIO concluded from the above matters that the applicant had not shown he required the care and financial support of the Sponsor, and it was doubtful whether the applicant was genuinely coming to Hong Kong for the primary purpose of joining the Sponsor as his dependant.

26. The applicant had also claimed that he was discriminated in school in the Philippines for having a child and this had affected his studies and caused him to change schools. The SIO had given considerations to whether there were strong compassionate grounds or extenuating factors that justify a departure from the policy, but came to the view that there were no such grounds or factors. In particular, the SIO did not regard discrimination in school to a young man of 19 years old constitutes sufficient humanitarian grounds to warrant a departure from the policy.

27. As noted above, the court in a judicial review application does not substitute its own view of the merits of an applicant's case for that of the decision-maker. In the present case, the SIO had explained his deliberations and the matters that he had considered in arriving at the conclusion. In my view, all of these are relevant matters that the SIO is entitled to have regard to when assessing the merits of a dependency application. The SIO is also entitled to form a view on the applicant's application by reference to the documentations and materials he had submitted in support of his application. In particular, when considering the applicant's primary intention and purpose for staying in Hong Kong, it is open to him to draw reasonable inference from what the applicant and the Sponsor and his wife had stated in the correspondence and communications with the Director. In ascertaining the primary intention of the applicant in making the application, indications of the applicant's future plan and intention are also relevant considerations for the SIO.

28. The applicant explains that the statement in the first two certificates issued by the Office of the Civil Registrar General of the Philippines National Statistics Office that the certificates were issued for purpose of employment (abroad) were standard endorsement and were included without making enquiry with him or his mother. This explanation is unconvincing having regard to the nature of the certification, and more importantly, the fact that a different purpose was mentioned in the third certificate issued by the same Office.

29. The applicant also states that he has always been a problematic child and had not been doing well in his studies. It is therefore both his and his parents' wish that he could join his parents, so that with their help he can settle down and lead a new life in Hong Kong. He also stresses that he had been discriminated against while at school in the Philippines.

30. These points had been raised in the letters written by the applicant and his parents to the Director and had been considered by the SIO. The SIO had doubts about the claim of discrimination. He noticed that the applicant had remained with the same school for six years before coming to Hong Kong, during which his son was born, and that the applicant had failed in his studies both before and after his son's birth. He also noted that the claim of discrimination was not raised in the applicant's previous dependency application. These are matters that the SIO is entitled to look at in assessing the applicant's assertions.

31. In any event, given that the applicant was almost 20 years old at the time of his application and his son was then four years old, the SIO was of the view that the discrimination faced by the applicant could not be taken as a strong humanitarian ground. In my view, the SIO's conclusion on the issue, including the claim of discrimination, is one that is open to him to draw.

32. In short, having regard to the deliberations and the reasons of the SIO and the materials before him, it cannot be said that his doubts about whether the applicant's primary purpose of coming to Hong Kong was to join the Sponsor as a dependant and whether he was genuinely dependant on the Sponsor are unjustifiably held. It follows that his conclusion that the required element of dependency is lacking in unreasonable in the public law sense.

The 2nd Decision

33. As to the 2nd Decision, section 53(7) of the Immigration Ordinance clearly stipulates that an objection lodged under section 53(1) does not confer upon the objector the right to remain in Hong Kong. Accordingly, whether to allow the visa extension application is a matter within the discretion of the Director.

34. The applicant complains that the Acting Chief Immigration Officer ("ACIO") acting on behalf of the Director erred in relying on his lack of a right to remain in Hong Kong as the only basis for refusing to extend the visa, and also that the Officer had not undergone an evaluation of the applicant's case. However, it is apparent from the Director's letter dated 3 September 2003 refusing the visa extension that section 53(7) of the Immigration Ordinance was not the only basis for the 2nd Decision. On the contrary, the ACIO had considered a few relevant matters before making the decision. One consideration is that the decision to be made on the applicant's objection or petition will not be adversely affected by the applicant's absence from Hong Kong and the decision on the petition will be conveyed to him. Further, if the decision of the Director is reversed, the applicant would be issued with the appropriate visa to facilitate his return to Hong Kong.

35. It is therefore plain from the contents of the letter that the ACIO had exercised the discretion by reference to relevant materials. There is no factual basis for contending that the Director "had skipped the evaluation process" in exercising his discretion.

36. It also follows from the contents of the letter that it cannot be said that the ACIO did not consider that the applicant had a genuine need to remain in Hong Kong. The ACIO had taken into account the fact that the outcome of the Petition was pending and the possible consequences of the applicant's absence from Hong Kong on the Petition. He did not consider that the applicant's absence from Hong Kong would have any adverse impact on the Petition. The materials before the court do not show the ACIO's view to be wrong. The complaint that the ACIO had omitted relevant consideration has no substance. The 2nd Decision cannot be said to be Wednesbury unreasonable.

Conclusion

37. For the reasons set out above, the applicant's challenge to the 1st and 2nd Decisions fails. The application for judicial review is dismissed. I also make an order nisi that there be no order as to the costs of this application.