TONY S. RUPISAN v. DIRECTOR OF IMMIGRATION

HCAL115/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 115 OF 2000

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REASONS FOR DECISION

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1. I had refused the application by the applicant for leave to issue judicial review against the respondent. I will now give my reasons.

The facts

2. The applicant is a Philippine national born on 4 June 1960 in the Philippines. He is now aged 39. He first came to Hong Kong as a visitor in July 1999. On 8 October 1999, he married his wife ("the wife") in Hong Kong. The Director of Immigration ("the Director") refused the applicant's application to be a dependent of the wife.

3. The wife is the applicant's sponsor. She is a Hong Kong resident. She was born in the Philippines on 30 May 1962. She is now 37 years of age. She came to Hong Kong as a domestic helper in 1980 and on 30 December 1981, married a Hong Kong resident. She has two children, one now aged 17 and the other aged 10. She was divorced from her former husband on 20 February 1998. She and the two children lived with her in the former matrimonial home, a Housing Authority flat of 500 sq. feet. The monthly rent is HK$1,152. The wife's mother also lives with the family at that address having been sponsored by the wife as a dependent in June 1990. The utility and telephone bills come to approximately $1,230 per month.

4. The applicant stated that he and the wife had been romantically involved since their teens in the Philippines. They then became separated but kept in touch by letters. After the wife and her former husband were separated, they planned to reunite. At that time, the applicant was also married. After he finalized his divorce with his own spouse in 1998, he decided to marry the wife. There is some dispute on the nature of the marriage between the applicant and his former spouse. He produced a certificate from the office of the City Civil Registrar of Laoag City, Philippines, which stated that there was no record of marriage of the applicant in the Records of Marriage. This issue does not affect the outcome of the decision because the Director does not challenge the validity of the present marriage of the applicant and the wife.

The Government's policy

5. As disclosed in the affirmation of Mr Yim Kwan Hoi, Acting Principal Immigration Officer of the Immigration Department. The Government's policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependents in appropriate cases. For the past 15 years, about 200,000 foreign dependents had been approved to come to Hong Kong for residence. The yearly rate had increased by almost threefold from 7,211 in 1983 to 19,444 in 1998. From 1993 to 1998, there had been a constant increase of dependent applications, from a monthly average of 1,631 in 1993 to 2,218 in 1998, an increase by 36% in total.

6. On 18 January 1999, a new policy was implemented in which persons admitted as dependents are not allowed to sponsor their own dependent's application for residence unless and until they themselves had acquired the right of abode in Hong Kong, or they have been permitted to remain in Hong Kong to take up employment. Nonetheless, the monthly average of dependent applications still stood at 1,663 in 1999.

7. The result is that foreign dependents, especially from countries like Nepal, India, Pakistan and Thailand, means that more and more foreigners are entering into the local job market particularly at the unskilled or semi-skilled level.

8. The Director has to ensure that the immigration policy on employment is not being undermined and side-stepped by job seekers disguised as dependents of their relatives in Hong Kong. The Government's immigration policy on entry for employment is very stringent, which allows only persons who possess special skills, knowledge or experience which is lacking in the local workforce in that particular field to work in Hong Kong.

Relevant considerations in dependent application

9. In considering a dependent's application, the Director adopted two requirements : first, the sponsor must be able, out of his/her own resources to house and maintain the applicant; second, if the primary purpose or the principal purpose of the person applying for a dependent visa, as found by the Director after looking at all the circumstances of the applicant, his/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 family, the application will not be granted.

The starting point

10. The starting point is that the applicant is someone who has no right and no legitimate expectation of being allowed to stay in Hong Kong. From a long line of cases starting with Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 22, it had been consistently held that the grounds on which the exercise of the Director's power to allow someone to stay in Hong Kong when he has no right to do so can be challenged only in cases where he had abused his power illegally or irrationally. See further R. v. Director of Immigration, Ex parte Chan Heung Mui [1993] HKPLR 533 and Lau Kong Yung v. Director of Immigration [1999] 3 HKLR 778.

The financial situation

11. According to the affirmation filed on behalf of the Director, until two days before the interview of the wife by the Director on 3 November 1999, she had been unemployed since July 1998 and had been receiving $5,000 to $5,596 per month from the Comprehensive Social Security Assistance Scheme ("CSSA"). She claimed employment at Wai Call Knitting Factory in Tsuen Wan as a clerk earning $6,500 per month starting 1 November 1999.

The Director's decision

12. The Director decided on 3 December 1999 to refuse the application. The Director stated that he could only assess the earning capacity of the wife on the basis of her wages and not of the CSSA received by her. There were already four persons in the household. Her continuing earning capacity was uncertain due to her employment history. His assessment was that the wife was very far from being able to be a sponsor of the applicant to a standard of living out of her earnings that was well above subsistence level. The policy is that it is the sponsor rather than the Hong Kong community that must be able to support the applicant for a resident's visa so that any real risk of reliance by the applicant directly or indirectly upon public funds and public services will be eliminated. The Director was further of the view that the primary purpose or principal purpose of the applicant to come to Hong Kong was for employment.

Further information

13. After informing the applicant of the decision, further information on the earnings of the wife and the applicant was furnished. A company in Hong Kong had written that it was interested in employing the applicant as soon as he acquired his dependent visa. It had agreed that the applicant's starting salary will be $8,000 per month.

14. The wife also stated that she had overtime earnings and commissions from IDD card sales. She also provided a letter from a company in the Philippines stating that :

"This letter is to confirm that Mr Francilina Chiu [the wife] is one of the stockholders of this company earning P16,000 to P27,000 a month."

15. The wife stated that HK$3,100 (minimum converted from 16,000 pesoes) is the interest or return from an investment of 50,000 pesoes made on her behalf in the Philippines in November 1999. She further stated that she was advised by the Legal Aid Department that it was expecting to recover $5,000 per month from her former husband regarding the maintenance of the children.

The Director's assessment

16. The Director stated that the new information regarding the employment of the applicant confirmed that his primary purpose or principal purpose in his application is to take up employment in Hong Kong.

17. As for the investment return of the wife, he was of the view that this could not be given weight. It seemed to be intended to provide a promise of huge further income based on a very small investment. As of 21 December 1999, no money in cash had been sent to the wife from this investment. The earnings from overtime and commissions were unlikely to be maintained in the medium term. As for the recovery of maintenance payment from the former spouse for the children, this was assessed to be something that might happen in the future but was remote at the time the decision was made. In any event, if the maintenance was received, the wife could not also receive the CSSA in respect of the children. The Director maintained his view and rejected the application.

Application refused

18. In my view the Director had fully considered the financial capacity of the wife. There was nothing illegal or irrational in the decision. The overall view is that the wife is earning about $6,500 per month from her present job. She has to depend on CSSA of about $5,500 per month as well. Until she could recover the maintenance from her former husband, she has to rely on CSSA. In any event, the CSSA has to be stopped if maintenance is eventually recovered. The wife has to be responsible financially for five people including the applicant in her household. Her financial resources are clearly insufficient to do so. The Director's decision on the matter cannot be faulted.

19. Accordingly, the application for leave was refused.