MUHAMMAD MUSHTAQ v. DIRECTOR OF IMMIGRATION

HCAL 1355/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1355 OF 2000

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D E C I S I O N

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1. This is an application for leave to bring judicial review proceedings. Having read the papers, I directed that the application should be made orally in court and should be inter partes.

2. The Applicant, Mr Muhammad Mushtaq, has appeared without the benefit of the legal representation. He tells me that he is essentially illiterate and his knowledge of English is limited. He has been assisted by a Punjabi interpreter. Mr Lee, Government counsel, has appeared on behalf of the Director of Immigration. I am indebted to him for the very full skeleton argument together with the authorities which he has submitted.

3. I took some time to explain to Mr Mushtaq the essential purpose of this hearing so that he would understand the restrictive nature of judicial review proceedings.

4. Mr Mushtaq came to Hong Kong from Pakistan where he had been working for many years. It appears that his wife - who spent many years in Pakistan too - had right of resident in Hong Kong and that she took up that right a few years ago, returning to live here. As a result, the family was split. Two sons live here but there are younger children in Pakistan.

5. Mr Mushtaq made his application to the Immigration Department to reside here on the basis that he wished to do so as a dependent of his wife and that he had come here for that purpose. The Immigration Authorities, by letter dated 20 June of this year, rejected his application. In part, the letter reads:

"After careful consideration of your application and all relevant matters, I regret to inform that your application is refused because we are not satisfied that you are a dependent of the sponsor and that you came to the HKSAR to join her as her dependent. Moreover, we are not satisfied that the sponsor is financially capable to support your living in the HKSAR."

6. From the affirmation's filed by the Immigration Department, it appears that in their records there are papers apparently in the handwriting of the Applicant in which he says that he wishes to come and live in Hong Kong in order to be a driver and work in his wife's business. The wife now has a transport business of some kind.

7. However, Mr Mushtaq protests that he is, as I have already said, essentially illiterate. He says he does not write English and that the suggestion in the one affirmation that he himself had written down these admissions is false. In this regard, he was referring specifically to the affirmation of Mr Chau Kin Keung and to paragraph 10 of that affirmation in which the Immigration Officer said:

"The Applicant was interviewed by staff of the Department on 13 June 2000, answers to questions posed by the staff of the Department were recorded in the Applicant's own handwriting."

8. Mr Mushtaq protests that he never told the Immigration Authorities that he wished to be a driver in Hong Kong and that if he had understood what he was signing, he would have ensured that any misunderstanding was clarified.

9. On that basis alone, I am satisfied that Mr Mushtaq had shown at least an arguable case and should be given leave to proceed with the said application. I say so because it is arguable that the Immigration Department reached its decision on a mistaken basis of fact.

10. But the matter goes further. Mr Mushtaq says that it was not his intention to come to Hong Kong to work, certainly not on a full-time basis. He says that he came to Hong Kong to join his family here and to reside with them as a dependent of his wife. He said that, as evidence of the fact that he did not wish to work, he had medical evidence that he is suffering from diabetes melitis; in short, that he is a diabetic and as such is unable, now that he is into his 50's, to work a full-day. I have seen a handwritten certificate dated 17 September of this year written by Dr Peter H Y Tam of Prosperus Building, Yuen Long, which reads:

"I am writing to certify that the above named person is my patient and he is attending my clinic regularly. He is suffering from diabetes melitis. He needs somebody to do his daily chores."

11. Mr Mushtaq has said that he attempted to provide evidence to the Immigration Officers that he was a diabetic. He did so, he said, to support his application to live in Hong Kong as a dependent of his wife. However, it was his contention that the Immigration Department said it did not need his evidence. If in fact, he did attempt to advise the Immigration Authorities of his disability and if, in fact, Immigration officers declined to accept the relevant documentation then it may be argued that the officers acted in a fashion that is 'Wednesbury unreasonable'. This, in my view, provides another ground for the challenge.

12. In addition, Mr Mushtaq says that the Immigration Authorities did not give sufficient consideration to the fact that his wife was in fact capable of supporting him. He has referred to the fact that he has 2 sons here who work. Of course, the sponsor; that is, the wife, must be able to show that she herself is capable of maintaining her dependent. The reasons are clear enough. The sons may marry, the sons may travel, the sons may become unemployed. However, the fact that, perhaps in the tradition of their culture, they help their mother may be a matter of relevance. At least that is arguable.

13. No doubt a number of these allegations have come as a surprise to Mr Lee who appears for the Respondent. I have therefore placed Mr Mushtaq on terms. He must within 21 days of today file an affidavit with the Court. This affidavit must set out in detail the factual basis for his challenge to the decision of the Immigration Authority. The affidavit must be filed with the Department of Justice. The Immigration Department will then have 28 days within which to file a response.

14. Mr Mushtaq has the obligation to pursue his cause and to make an application to set it down for final hearing. He must do so in accordance with the rules. I have explained to him that the registry staff may be able to assist him in this regard.

15. In respect of costs, I am satisfied the costs should be in the cause.