GEOFFREY HUGH ALPHONSO AND ANOTHER v. THE DIRECTOR OF IMMIGRATION

HCAL126/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO.126 OF 1999

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J U D G M E N T

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1. On 20 September 1999 the Director of Immigration refused to grant the applicants the right to remain in Hong Kong as dependants of their step-father Mr Kwok Yui Hang. A request to reconsider the decision was made, more information was provided by the applicants and on 4 October 1999 the Director confirmed his first decision after a "thorough reconsideration of all relevant matters and a close review of all the issues raised". The reasons for the second decision included the reasons for the initial refusal. In effect, therefore, the application for judicial review concerns the final decision of 4 October 1999.

Background

2. The applicants are Sri Lankan twins, born in Sri Lanka on 14 November 1979. Their natural father left the family in the early 1980's and plays no part in this application.

3. The applicants' mother came to Hong Kong in 1992, leaving the applicants, aged 13 and their elder sister, aged 15, in the care of relatives. Their mother has lived in Hong Kong since 1992, apart from a 10-month gap in 1997. In 1998 she married Mr Kwok. In 1998 the mother, Mrs Kwok, successfully applied for dependant status for her elder daughter, then aged 20. That application was made by the mother after she had married Mr Kwok. It was made at a time when the sponsor could also be a person holding a dependant status. Mrs Kwok by her marriage had become a dependant of Mr Kwok. Since January 1999 that policy has changed. The present policy, about which no complaint is made, is that a dependant cannot be a sponsor, only a person with right of abode may apply as a sponsor. In this application, therefore, the applicants seek to satisfy the Director of Immigration that they are dependants of their step-father.

Decision

4. The decision of 4 October 1999 states :

" Please not that the applications of Ms ALPHONSO Sandra Mable and Mr ALPHONSO Geoffrey Hugh to join Mr KWOK Yui Hang as his dependants in the HKSAR are refused on 20 September 1999 because we are not satisfied that the applicants are dependants of Mr KWOK Yui Hang and that the applicants come to the HKSAR to join Mr KWOK Yui Han as his dependants. The applicants' mother was admitted in the HKSAR as a dependant and under the existing immigration policy is not allowed to sponsor her own dependants' application for residence unless and until she herself has acquired the right of abode in the HKSAR or she herself has been permitted to remain to take up employment, establish or join in a business on her own right."

5. The reason for the refusal was enlarged upon in the affirmation of Mr Lee King On, the Chief Immigration Officer, on 14 December 1999. In that affirmation he expressed his doubt that the applicants were genuine dependants of the sponsor. In support of that decision he made reference to three matters :

(i) that there was no proof to support the assertion that the applicants had been or were financially dependant on the sponsor;

(ii) that, as they had completed their education in Sri Lanka and had included on their application form a desire to learn a trade in Hong Kong, it was probable that the primary reason for coming to Hong Kong was not for family reunion but for employment;

(iii) that, in spite of disturbances in Sir Lanka, it was not an unsafe place to live in.

6. As a result of the reconsideration of the application, these reasons were confirmed and Mr Lee added the following factor :

"Thus it appeared that they had all along been living in their own country without their mother's or stepfather's presence. As the Applicants were able-bodied and almost 20 years old, we were not satisfied that they were genuine dependants of the Sponsor nor that the applications were not made for the primary purpose of seeking employment in Hong Kong. Hence there was no material change in favour of their application. On 4th October 1999, the Applicants were informed that the refusal decision was maintained."

The grounds

7. Mr Paul Harris who appeared for the applicants accepted that his application came down to a single primary contention, namely that the Director's determination that the applicants were not dependants of the step-father and that he was not satisfied that their purpose in coming to Hong Kong was for family reunion as opposed to employment was an irrational decision as defined by the "Wednesbury unreasonableness" principle. Mr Harris did not abandon his second ground but accepted that, in effect, it came within the same 'Wednesbury' point, namely that because the applicants' elder sister had been granted dependency status, they had a legitimate expectation that their application would also be granted.

The test

8. The Director of Immigration's decision is made by the exercise of a discretion conferred on him by s.11(5A)(b) of the Immigration Ordinance, Cap.115. The discretion is exercised in the light of immigration policy. The policies which influence the decision change from time to time. Administrative policies are bound to change and do change when circumstances change. The applicants acknowledge they are bound by the policy considerations which were being applied at the time (which was not the same policy which applied at the time of their elder sister's application). The onus is on the applicants to show that the determination made could not have been made by a rational decision-maker. The applicants have the difficult task of crossing a high threshold above which it is shown that the Director's decision was irrational. At its highest, it is as described by Lord Diplock in Council of Civil Service Unions v. Ministry of the Civil Service [1985] AC 410 where he said :

"... a decision so outrageous in its defiance of logic or accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it."

9. Even when the somewhat emotive words such as 'outrageous' are extracted, what is left is a requirement to satisfy the court that the decision is plainly illogical and cannot be allowed to stand.

10. There is no doubt, as was fairly stated by Mr David Fitzpatrick for the respondent, that the applicants and their family are worthy and decent people. However, for the reasons which follow, it cannot be said that they have discharged the burden on them to the required standard so as to enable this court to allow the judicial review application.

Reasons

(a) I do not find the Director's reason given, namely, that there was no proof to support the assertion that the applicants had been or were financially dependant on the sponsor, to be irrational. Contrary to the claim of a dependency of $3,000 a month, the documentary evidence showed five payments of varying amounts spread over the first year of the sponsor's marriage to the applicants' mother. From the date of the marriage in June 1998 up until March 1999 a total of $3,500 was sent to Sri Lanka. Then in a four-month period preceding the application, a total of $18,000 was sent. The sudden and dramatic increases in remittances prior to the application being made cannot go unnoticed. There is no documentary evidence of any other payments. It is furthermore not irrational to come to the conclusion that the prime mover behind the sending of these monies was the applicants' mother and not the sponsor.

(b) The applicants have failed to persuade the court that the Director's decision that the probable reason for the application was to seek employment rather than family reunion was a decision that could not have been reasonably made. On the contrary, it seems to the court to be a reasonable conclusion to come to, on the evidence available. The evidence being, firstly that the applicants' own written statement expressed a wish to come to Hong Kong to "learn a trade" and secondly, the applicants themselves would be ripe for the job market being able bodied, intelligent 20 years olds whose education had been completed in Sri Lanka where job opportunities would undoubtedly be fewer than in Hong Kong. To exclude the notion that the applicants were motivated by employment in Hong Kong would not have been a rational thing for the Director to have done.

11. In this context Mr Harris submits that if the basic criteria as laid down by the Department's policy are met, then the applications should be granted. Further, they should not be refused simply because an intention to "learn a trade" has been stated when they would be permitted to work once they got here. Indeed they would be criticized if they remained idle. Both these arguments were considered by Stock J in Gurung Bil Bahadur v. Director of Immigration HCAL 34/1999. This court entirely agrees with the following extract :

" The point is that if those criteria are met, an applicant may, and only then may, under this policy, be allowed to come to Hong Kong, but that hardly precludes the Director of Immigration from excluding somebody who fulfils those criteria but whose real reason for coming to Hong Kong is to seek employment. A person who wishes to come here to work must seek an employment visa and the fact that he has family here who might or will support him if he falls on hard times, or who might supplement his income, does not obviate the need for the proper application. If the applicant has no relevant skills, then no doubt an employment visa will be refused.

There is then a suggestion that the Director of Immigration has exercised such power as he has irrationally, on the footing that there is a suggested inconsistency between the fact that dependants are permitted to work in Hong Kong on the one hand, and on the other, the fact that in this case the applicant's statement that he intended to work apparently stands in the way of the grant of a dependant visa. There is in truth no inconsistency, not least because the applicant's analysis is not an accurate analysis of what the Director of Immigration is saying . It is also said that the Director of Immigration is contending that anyone who whilst being a dependant intends to work, is not to be granted a visa. Again, the Director of Immigration is not saying that. He was addressing a simple question, namely, whether the applicant intended genuinely to come here as a dependant or not. The Director of Immigration was perfectly entitled, on the basis of the information furnished by the applicant to conclude that the applicant intended to come to Hong Kong primarily to find employment and not primarily to occupy a natural niche in the setting of his family."

(c) The Director did, although he was not obliged to do so, consider humanitarian grounds. It is acknowledged that there is evidence of civil unrest and violence in parts of Sri Lanka. However, the relevance of such incidents, even where, as in this case, the violence has tragically caused the death of a member of the applicants' wider family, can only be, at best, marginal. The sole issue is proof of dependency. It is possible that real fear associated with living in one's country of origin may increase the notion of dependency to a parent residing abroad. However it does not increase the dependency in the conventional sense of the word and, at best, would only be material to tip the balance in an applicant's favour in an otherwise borderline case. I do not find this to be a borderline case.

(d) I find there to be no merit in the argument that the applicants had a legitimate expectation that their application would be approved in the light of the fact that their elder sister's application had been favourably received. The elder sister's application was made in October 1998. Her sponsor was her own mother. It was not surprising that the Director was satisfied that she had been dependant on her mother for the preceding years when the mother was in employment in Hong Kong and the elder daughter was an unemployed teenager or student in Sri Lanka. As already stated, under existing policy, she can no longer be the sponsor. It cannot be argued that the new sponsor, the step-father, simply acquires the merits of the mother's claim by virtue of their marriage. It is a new situation involving a different sponsor and different applicants and must be dealt with on its own merits. The concept of legitimate expectation has been confused with the concept of hope, albeit, understandably.

(e) Perhaps the strongest factor which militates against a judicial review of the Director's decision is the fact that the applicants, prior to their visit to Hong Kong in June 1999, had never lived with the sponsor. The court was not informed whether they had even met him beforehand. There are no references in the affirmations of any prior visits by the applicants to Hong Kong or of any visits by the sponsor to Sri Lanka. A family bond plainly existed between all three children and their mother, but it cannot be said that the sponsor somehow inherited that bond for the purpose of proving a dependency by reason of his marriage.

12. For all the above reasons, the application for judicial review of the Director of Immigration's decision made on 20 September 1999 and confirmed on 4 October 1999 is refused with costs to the respondent.