CHRISTIAN BULAO PALMIS v. DIRECTOR OF IMMIGRATION

HCAL 2104/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.2104 OF 2001

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. The applicant in this matter, a citizen of the Philippines, seeks by way of judicial review to quash certain decisions of the respondent, the Director of Immigration ('the Director') refusing him permission to remain in Hong Kong as a dependant of his wife.

2. Aside from the factual issues particular to the applicant, the essential issue for determination is the nature and extent of the Director's policy concerning the issue by him of what are commonly called dependency visas; more specifically, the meaning, within the strictures of the Director's policy, of the key word 'dependency'.

The factual background

3. The applicant was born on the 30 November 1978. He is now 24 years old. He was raised and educated in the Philippines. His parents still live there, apparently running a modest farming enterprise, and he has brothers and sisters in that country.

4. In November 2000, the applicant came to Hong Kong to be with a young lady by the name of Ms Rhea Delos Reyes. He had met Ms Reyes some time earlier. A romance had ensured and it was their intention to marry. Ms Reyes, who is also a citizen of the Philippines, has lived in Hong Kong since 1993 and in 2000 was granted permanent residence here.

5. On 8 January 2001, the couple were married in Hong Kong. A day or so after the wedding, the applicant sought permission from the Director to remain in Hong Kong with his wife. He did not state on what basis he wished to reside in Hong Kong but the papers completed by him effectively sought permission to remain in Hong Kong as a dependant of his wife, his formal sponsor.

6. In completing the necessary application forms, the applicant described his occupation as that of a businessman. His wife, his sponsor, used the same description of his occupation. At that time, however, the applicant was not engaged any form of full time business activity. He was completing a degree in electrical engineering at a university in the Philippines. I am told that he had only to submit his final assignments for grading and was not required to be at the university on a day-to-day basis. The evidence shows that he did, in fact, obtain his degree in March 2001. The applicant also had an interest in the family farming business in the Philippines to which I have made reference. He received a small dividend from this business but had no on-going obligation to work on the farm. Quite why, in the circumstances, he chose to describe himself as a businessman remains uncertain.

7. Among the papers completed by the applicant was a form bearing the heading 'Information Sheet'. In that document the applicant stated that his reason for coming to Hong Kong was to be with his wife. He said further that his future plan in Hong Kong was to work.

8. By letter dated 6 March 2001, the Director refused permission to the applicant to remain in Hong Kong as a dependant of his wife. This refusal is the first decision challenged by the applicant. The letter of 6 March 2001 reads as follows :

" Under existing immigration policy, a person may be allowed to come to the HKSAR to join his/her spouse already resident here as his/her dependant if it is satisfied, amongst other things, that his/her purpose of taking up residence here is to join his/her spouse as his/her dependant and that his/her spouse is able to support and provided accommodation for him/her."

After careful consideration of your application and all relevant matters, I regret to inform you that your application is refused because we are not satisfied that:

(i) You are genuinely dependant to the Sponsor;

(ii) You come to the HKSAR to join the Sponsor as her dependant; and

(iii) Sponsor is financially capable of supporting your living in the HKSAR." [my emphasis]

9. The applicant sought a reconsideration of his application. In respect of the Director's statement that he was not satisfied that the applicant was genuinely dependant on his wife or had come to Hong Kong to join his wife as her dependant, in his letter of 10 March 2001 the applicant wrote the following :

"In your letter you stated that you are not satisfied that:

(i) You are not genuinely dependant on the sponsor;

My relationship to my sponsor is purely husband and wife relationship. If you require more supporting document/evidences I would be happy to provide them for you.

(ii) You come to the HKSAR to join the sponsor as her dependent.

I cannot think of any reason why I should be here other than solely to be with my wife. It is unacceptable on our part that, there is a "cloud of doubt" about joining my wife here in HKSAR."

10. On the evidence, it appears that the applicant and his wife were that time concerned not with the critical dependency issue but instead that the Director had not recognised their marriage as a genuine one. Evidence was therefore supplied to prove the authenticity of the marriage. In addition, the applicant set out the reasons why, in his opinion, his wife would not be able to return to the Philippines to live with him. In this regard he said inter alia :

"1 My wife, grew up and educated in Hong Kong. Her whole family (except her younger sister who is still is college) is in Hong Kong here and she established and adapted the lifestyle in Hong Kong;

2 My wife help look after her siblings;

3 My wife and I have no plan to live together in Philippines;

4 My wife does not want to leave her family in Hong Kong, she has close family ties;

5 My wife gets a stable job and now having a successful career in an expanding company and she does not want to leave it behind."

11. The applicant also submitted an affidavit signed by his mother in the Philippines in which she set out her son's work history, for example, the fact that he had worked on the family farm and had earned money as the member of a pop band. In that affidavit, the mother said that her son, being the eldest, had been 'raised and trained to be responsible, self-reliant and independent' : clear evidence, albeit indirect, that the applicant was the sort of young man who would wish to be financially self-reliant by finding some manner of making a living.

12. The applicant's sponsor, his wife, also submitted a letter. In part, this document, dated 12 March 2001, reads :

" It is a general knowledge that everybody needs to work in Hong Kong. Working and be able to provide for his family is a must. Given that he is family man now he needs to work and earn money for our future and our children. We are just unfortunate that these facts falls in the conclusion that his intention is not genuinely to stay with me.

As I understand that you have to follow such rules, policies and guidance regarding the Family Unity and Immigration Practice I would ask you very kindly to reconsider this application and hoping for a favorable result. I have attached some more information with this letter regarding my financial capability. And as a matter of courtesy that I let you know that recently in Feb. 2001 my boss gave me a 20 percent pay rise. I am now earning HK13,000/per month plus tips.

And for your information, Mr. Palmis have been staying with me since June of 2000 and I am able to support him during his stay. Our lifestyle is basic and not grand and luxurious at the moment so I don't understand while HK$13,000.00 per month is not enough to accommodate two people. So if you think it is not enough to support two people why don't you give him a chance to help out. We are not denying that he wants to work in Hong Kong, but it is not true that this is the only reason why he wants to stay here. He's staying with me cause we married and we love each other and we want to be together." [my emphasis]

13. It will be seen that both the applicant and his wife accepted fully that the applicant intended to work in Hong Kong, that indeed, as a family man, he had an obligation to find work here. The desire to work and to be self-reliant was put forward as a positive factor. It would seem that at this early stage neither the applicant nor his wife understood the full ramifications of the need to demonstrate dependency.

14. Among the documents submitted by the applicant was a certificate issued by the Philippines authorities dated 29 May 2000 certifying that the applicant had no criminal record. It appears that the document was submitted to demonstrate that the applicant was a man of good character. However, the Director's officers, in looking to why such a document would have been issued approximately a year before the applicant and his wife met in person, came to the conclusion that it must have been issued for immigration purposes. That conclusion was based on the fact that in Hong Kong such certificates are only required for persons seeking permission to enter and live in another country. That this was the conclusion drawn is confirmed in a letter dated 8 May 2001 written by the Director to the Legal Aid Department in which the following is said :

" Mr. PALMIS [the applicant] further submitted a No Criminal Record (NCR) that was issued on 26 May 2000 by the Philippines authorities ... In view of the issue date of NCR, that was well before their first meeting, he is not satisfied to come to Hong Kong solely to join his wife."

The conclusion drawn by the Director was wrong. The Consul General of the Philippines in Hong Kong has confirmed that certificates of no criminal conviction are required for the issue of Philippines passports. The issue of a passport, of course, while it may indicate an intention to travel internationally, does not indicate an intention necessarily to immigrant to another country.

15. The request made by the applicant for reconsideration of his application was refused. This refusal constitutes the second decision which is challenged. The refusal was contained in a letter dated 19 April 2001 which reads :

" In your letter dated 10-03-2001 you requested that the Director reconsider your application for change of immigration status to take up residence in the Hong Kong Special Administrative Region (HKSAR) as a dependant of (the Sponsor). A thorough reconsideration of all relevant matters and close review of all the issues you raised has been conducted. However, we can find no justification for reversing our decision. The decision previously conveyed to you on 6 March 2001 still stands."

16. The applicant sought yet a further reconsideration of his application. However, this too resulted in a refusal. This is the third decision challenged. This final refusal was contained in a letter dated 25 May 2001 which reads :

" The reasons why we refused your application had been conveyed to you in our letter dated 6 March 2001.

We have carefully reviewed your application. Having taken into consideration the information available and all the circumstances of the case, we are unable to find justification to reverse our decision. The refusal previously conveyed to you still stands."

Grounds of challenge

17. Three amended grounds of challenge have been placed before the court for determination. The first ground is couched in the following terms :

"The decision of the Director of Immigration (as disclosed in the 1st affirmation of Mak Kin Ming dated 23rd January 2002) that the Applicant did not fulfil the requirements necessary for a dependency visa was not one that a reasonable decision-maker could take on the material available to him. In particular, a reasonable decision-maker could not conclude that: (1) the Applicant was not genuinely dependent on the Sponsor; (2) the Applicant came to Hong Kong to work, not to join the Sponsor as her dependent; or (3) the Sponsor was not financially capable of support the Applicant's living in Hong Kong."

The second ground of challenge reads :

"The decisions of the Director of Immigration were based on a mistake of fact in that the Director mistakenly concluded that the fact that the Applicant obtained a "Certificate of No Criminal Convictions" from the authorities in the Philippines on 26 May 2000, before the Applicant first met his wife, indicated that the Applicant was planning to emigrate from the Philippines at the date to work in Hong Kong. Further or alternatively this was an irrelevant matter wrongly taken into account and relied on by the Director in refusing the Applicant's application. In fact (as the Director does not now dispute) such certificates are a necessary pre-requisite for obtaining a Philippines passport."

The third ground of challenge reads :

"The decision of the Director of Immigration (as disclosed in the 1st affirmation of Mak Kin Ming dated 23rd January 2002) was based on a finding that the Applicant had not come to Hong Kong to occupy a natural niche in the setting of his family, which was not one that a reasonable decision-maker could make on the material available to him."

18. The first and third grounds of challenge go directly to the nature of the policy administered by the Director in terms of which applications to reside in Hong Kong as a dependant of a sponsor are considered. In order to determine whether the Director's decisions in respect of the applicant were or were not Wednesbury unreasonable, it is therefore necessary first to look to the true nature of the policy managed by the Director.

The dependency policy

19. At the outset it is to be emphasised that the Director manages a restrictive policy of immigration. That this is both legitimate and rational has been recognised by our courts on numerous occasions. It is a policy dictated by geographical, social and economic imperatives. On numerous occasions, in matters of this kind, this court has been reminded that Hong Kong is a small place with a high population density, one of the highest in the world. Yet, even in these uncertain economic times, it remains an attractive destination for immigrants, legal and illegal. In an affidavit dated 23 January 2002, Mr Mak Kin Ming, an assistant principal immigration officer, has emphasised the restrictive nature of the Director's immigration policy in the following terms :

" To prevent Hong Kong from being flooded with immigrants, it is of prime importance that the Director has to apply the immigration policy strictly in carrying out his statutory duty to regulate stay, entry and departure."

20. Although authorities of the courts of England and Wales are regularly cited in immigration matters of the kind now before the court, it is to be remembered that these decisions, while they may be of assistance, have often been decided in the context of different statutory and policy directives. As I commented in an earlier decision (Gurung Bhakta Bahadur v. Director of Immigration and Chief Executive in Council, unreported HCAL 1579/2000), our courts have recognised that, in light of differing legal and social dynamics, the Director has acted lawfully in determining that he is not in a position to be as generous in his immigration policies as perhaps others jurisdictions might be.

21. Although managing a restrictive policy of immigration, the Director has, within the confines of that broad policy, formulated a number of policies which allow a limited number of people in different categories to come to Hong Kong to take up residence here. One of those policies allows people who have demonstrated that they are genuine dependants of relatives lawfully residing in Hong Kong to come to Hong Kong to take up; that is, to occupy, what the Director has described on numerous occasions as a 'natural niche in the setting of his or her family'.

22. In his affidavit of 23 January 2002, Mr Mak described the nature of this dependency policy, introducing it in the following words :

"The Government's policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependants in appropriate cases. While it is true that policy will enable family reunion, its main purpose is to allow certain categories of close family members, namely, parent, child and spouse to remain when they require the care and financial support of their sponsors in Hong Kong. As such, dependency is an essential element of the policy." [my emphasis]

23. As Mr Mak has emphasised, while one of the happy consequences of the scheme is the bringing together of family members, it is not, however, a policy of family reunion. The key issue to be determined by the Director is one of dependency not simply whether there exists a tie of blood or marriage. That being the case, As Mr Mak has said in his affidavit-

" If the primary purpose or a principal purpose of the person applying for a dependant visa, as found by the Director after looking at all the circumstances of the applicant, his or 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 or her family, the application will not be granted."

24. It is this qualification concerning the taking up of employment or entering into business in Hong Kong that constitutes the central focus of the applicant's various challenges. The question is asked : why should not a person who wishes to reside in Hong Kong as a genuine dependant of a family member be able to work here? Why should dependency and the desire to work be exclusive of each other? But to a large degree the Director always reserves to himself the right to consider exceptional cases the scheme does make dependency and the desire to work mutually exclusively.

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.

27. Accordingly, the purpose for wishing to come to Hong Kong must be to occupy a natural place in the family as a dependant. That being the case, if, in addition, a principal purpose is also to seek work then, in terms of the policy, the critical dependency element will (other than in special circumstances) be materially compromised.

28. As I have said in earlier judgments, it is apparent that the Director's scheme, although it is not one of family reunion, is nevertheless founded on humanitarian principles. It is a policy that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family, to reside here with that member.

29. As I have also observed in earlier judgments, it is legitimate for the Director to ensure that his dependency policy is not undermined. In this regard, in Bhupendra Pun v. Director of Immigration, unreported HCAL 1541/2000, I said the following :

"Of course, the Director has to ensure that this particular policy does not undermine a separate policy administered by him; namely, the policy of granting people employment visas. If persons state that they wish to come here as dependants but are found to be here, in reality, seeking jobs, then they must apply to come here in terms of the Director's policy concerning employment. They cannot, as it were, obtain an employment visa 'via the backdoor'."

In his affidavit of 23 January 2002, Mr Mak confirmed this :

"When the Government formulates its immigration policy on allowing dependants to reside in Hong Kong, the Director has to ensure such policy will not undermine the protection of the local workforce and cause the flooding of the local labour market with foreign workers. The Government's immigration policy on entry for employment is very stringent. The policy allows only persons who possess special skills, knowledge or experience lacking in the local workforce or who are in a position to make substantial contributions to our economy, to work in Hong Kong. The Government's policy on allowing dependants to reside in Hong Kong must not be used as a means to get round the restrictions on employment entry." [my emphasis]

30. If, after due investigation, the Director is satisfied that an applicant has shown that he or she wishes to reside in Hong Kong as a genuine dependant of a family member who has sponsored that applicant, then what is called a dependency visa will be granted. That dependency visa, however, will be granted without restrictions as to employment. Leaving aside the real difficultly of policing any such visa restrictions, the reasoning of the Director is straightforward. An applicant who has demonstrated that he or she wishes to reside in Hong Kong as a genuine dependant has demonstrated that he or she is not coming here to take up employment. There is therefore no need to place a restriction on the terms of that person's residence.

31. To ensure that a person who is allowed to live in Hong Kong as a genuine dependant of his or her sponsor will be able, in fact, to receive all necessary maintenance, care and support, the Director, demands that all sponsors demonstrate their financial viability. In this regard, in his affidavit, Mr Mak has made the following observations :

"There is also a requirement that a sponsor must be able, out of his or her own resources, to house and maintain the applicant. It derives from the need to avoid imposing burdens on the residents and taxpayers of Hong Kong. If, in admitting persons with no claim upon Hong Kong for residence, there is a real risk in the short or medium term that their residence will result in general or particular resource to public and social services including medical services, their applications are unlikely to be approved. This criterion assumes tangible form in the rule that where there is an applicant and a sponsor, the sponsor must show that he or she is capable of supporting their own living and existing commitments in Hong Kong or overseas and that of the proposed dependant, to a required acceptable living standard. As is appropriate for a dependency, possible earnings of the dependant are not included in this calculation."

32. Whether a sponsor is financially able to support both himself or herself and a dependant to 'a required acceptable living standard' is a matter of fact to be determined by the Director according to all the information available to him at the time. There is no form of slide-rule calculation which determines the matter. As Mr Mak had said :

"It is the task of immigration officers in these cases to assess on the facts accepted by them, whether the sponsor has sufficient earned or unearned income, or capital in Hong Kong to meet the required acceptable living standard test. What is sufficient means to satisfy the test will vary in every case. The sponsor may have a relatively high income but may have heavy existing commitments to family in Hong Kong or overseas so that the only reasonable conclusion is that he or she could not support the proposed dependant to the required acceptable living standard. If the sponsor has a low income it is difficult to satisfy the test. The sponsor and the proposed dependant may say that they will live below bare subsistence levels so that in a sense they can claim that the sponsor is able to maintain their living. That will not satisfy the test. The test is ... set at 'the required acceptable living standard' so that only circumstances showing that the sponsor and dependant can live well above subsistence levels will be acceptable."

33. The demand that a sponsor demonstrates financial viability tells against persons with very limited financial resources. But the Director, of course, is looking to the protection not only of the person who is coming to Hong Kong as a dependant but to the broad interests of Hong Kong society. This court has accepted on a number of occasions that the requirement that a sponsor demonstrates financial viability to the required standard is a rational aspect of the Director's policy. In this regard, for example, Stock J (as he then was) in Santosh Thewe and Another v. Director of Immigration [2000] 1 HKLRD 717, said :

"It is suggested that a requirement that a standard of living well above subsistence level should be shown is irrational and an unreasonable fetter on the discretion of the Director of Immigration. I disagree. To say that an immigrant, asking to be allowed in as a dependant, must show a reasonable standard of living within the context of that dependency, cannot, in my judgment, be said to be unreasonable."

The level of court scrutiny of the Director's decisions

34. It is the Director, not the court, who is charged with the management of his immigration policies and, in the discharge of his responsibilities, making administrative decisions in respect of individual applications for dependency visas. In respect of persons such as the applicant who have no claim on Hong Kong and no legitimate expectation to be allowed to stay here, our courts have accepted that the decisions of the Director will only be quashed on normal judicial review grounds. In Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999, Stock J (as he then was) summarised the approached of our courts as to the level of scrutiny that will be employed in a judicial review of decisions of the Director. His dicta has been adopted as a definitive statement on the matter by other judges of the Court of First Instance and has been repeated on many occasions

"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 in 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, 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 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 is acting perversely."

35. The dicta of Stock J was drawn from the words of Lord Brightman in R v. Hillingdon London Borough Council, ex parte Puhlhofer [1986] 1 AC at 518. That Lord Brightman's dicta remains the test has been confirmed by the Court of Appeal in its judgment in the 1997 case of R v. Brent London Borough Council, ex parte Baruwa 29 HLR 915, at 920.

36. For the applicant, Mr Harris submitted that, in accordance with the movement of public law in the common law world, a test of more heightened scrutiny should now be applied. As he expressed it, the greater the prejudicial impact of an administrative decision upon an applicant, the greater should be the degree of the court's scrutiny. In the present case, he argued, the decision of the Director will have a 'devastating' effect on the applicant and his wife. That being the case, a heightened degree of scrutiny by this court is required.

37. I accept, as a matter of general principal, that the depth of judicial review and the deference due to administrative discretion will vary with the subject matter. I do not accept it will vary according to the impact on each individual. I must therefore reject Mr Harris's submission that in this case, because, so I am told, the Director's policy will have a profound affect on the applicant, I must for that reason alone abandon the test which I have described above and employ one which is dictated by far more anxious scrutiny and far less deference to the administrative discretion of the Director. There are no issues of fundamental human rights involved in this case. The applicant alleges no right in terms of any constitutional document, convention or statute to live in Hong Kong.

The applicant's challenge to the dependency policy

38. In his submissions, it appeared to me that Mr Harris challenged not only the manner in which the Director has determined the applicant's application under his dependency policy but also the rationality of the Director's interpretation of the policy itself. Mr Harris pressed the court to come to a finding that the Director's dependency policy was fundamentally different from the policy described by Mr Mak in his affidavit of 23 January 2002. In this regard, as to the meaning and extent of the Director's dependency policy, Mr Harris submitted that if there is a genuine marriage and an applicant is able to demonstrate that his or her primary purpose is to remain in Hong Kong in order to be with the other spouse, thereby occupying a natural niche in the setting of the family, that alone will fulfil the requirements of the policy and an applicant will then be entitled to receive a dependency visa. This must be the case, said Mr Harris, even if an applicant has an intention to obtain employment or take up business in Hong Kong. The critical issue, he said, must be the determination of an applicant's primary purpose for wishing to reside in Hong Kong. Is it to occupy a natural niche in the family or is it to work? If the former, an applicant is entitled to a dependency visa, if the latter, he or she is not.

39. In my judgment, despite the vigour with which Mr Harris advanced his submissions and the clear sense of indignity that he expressed on behalf of his client, his submissions amounted to what he wished the Director's dependency policy to be rather than what it is. I have already at some length set out what I am satisfied are the broad features of the Director's dependency policy and how those features harmonize with each other. It is plain from what I have said that, in my view, an applicant must demonstrate not only that he or she desires to reside in Hong Kong in order to occupy a natural niche in the setting of a family but, in addition, must demonstrate that he or she intends to do so as a dependant.

40. Mr Harris argued that a policy which excluded an applicant simply because he or she had the potential to work would be irrational. But, as I understand it, the Director has never made it part of his policy to exclude applicant's simply because they have the potential to work. The Director's policy looks to 'purpose' not 'potential'. Most applicant's no doubt have the potential to work if necessary, some to great financial advantage. But that is not the issue. The issue is an identification of the principal purposes for which an applicant wishes to reside in Hong Kong.

41. In any event, the applicant's application in this present case was not refused by the Director simply because, as a young man with a university degree, he had the potential to work, it was refused because he had the clearly stated intention to find work here and, together with his wife, to look to the financial well-being of their family. It was that stated purpose which, in the opinion of the Director, compromised the primary element of the dependency.

42. Mr Harris further argued that if the policy excludes a spouse whose primary purpose for coming to Hong Kong is to be with his or her partner but who also, as a principal purpose, seeks to come here to take up work then the policy is 'capricious' as it cannot be applied in a 'fair or rational manner'. I reject this argument. Each case will depend on its own facts, the applicant being required to demonstrate that he or she fulfils the requirements of the policy. Mr Harris argued that the policy encourages the lazy and the unambitious to come to Hong Kong at the expense of the industrious. But that misreads the policy. The policy, for humanitarian reasons, allows persons in a genuine position of dependency who intend to remain as such to come to Hong Kong. In any event, it seems to me that Mr Harris has not attacked the lawfulness of the Director's policy so much as it's wisdom. But the wisdom of a policy is not for this court unless, of course, the wisdom is no wisdom at all and can be classified as irrationality.

43. In attempting to grasp the nettle of dependency, Mr Harris said that at the time the application was made the applicant was dependant upon his sponsor and would remain so, the future being impossible to predict. But that, in my judgment, again misreads the policy. The Director looks to an applicant's principal purposes for coming to Hong Kong. In the present case, as I have said, it was plainly stated by the applicant (and his wife, his sponsor) that he intended to find work in Hong Kong. A temporary period of dependency while that work is sought cannot of itself fulfil the restrictive requirements of the policy.

44. In support of his submissions, Mr Harris relied on the Court of Appeal decision in Yu Pik Ying and Another v. Director of Immigration [2002] 1 HKC 18. That judgment, however, concerned an application for leave to apply for judicial review which had been refused at first instance, it did not concern a substantive application which had been dismissed. Keith JA, giving the principal judgment of the court, spoke of the appellant's various challenges to the decision of the Director as being 'arguable' in public law terms. He adopted this word as a form of shorthand for the test to be applied in applications for leave, a test confirmed in an earlier decision of the Court of Appeal in Wong Chung Ki and Another v. Chief Executive, unreported, CACV 1/2000. The test confirmed in that judgment (and still applied today) is whether the material before the court discloses matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought. That being the case, the Court of Appeal in Yu Pik Ying did no more than find that the material presented by the appellant disclosed material which, on further consideration, might demonstrate an arguable case. However, in his desire to advance the applicant's case, it seemed to me that on occasions Mr Harris employed Yu Pik Ying as authority in effect for substantive and final findings as to the nature and extent of the Director's dependency policy. But the Court of Appeal made no such findings.

45. As to the critical question of dependency itself, the following was said by Keith JA in Yu Pik Ying :

" ... in my opinion it is arguable that the critical question which the Director of Immigration had to decide was not whether Mr Orizu intended to work in Hong Kong once he had been given permission to remain in Hong Kong, but what the primary reason for his application for permission to remain in Hong Kong was. Was it because he hoped to be able to work in Hong Kong, or was it because he wanted to live in Hong Kong with his wife (to use the language of the Director of Immigrations' memorandum to the Secretary for Security, 'to occupy a natural niche in the setting of his family')? To the extent that the Director of Immigration decided that Mr Orizu's primary reason was the former, it is, in my view, arguable that that conclusion was unreasonable in the public law sense in the light of the evidence then before the Director of Immigration as to the genuineness of the applicants' marriage."

[my emphasis]

I do not know what material stating the policy of the Director was before the Court of Appeal. Keith JA, however, made mention only of determinating 'the primary reason' for the applicant's application. The policy outlined in the present case, however, is different. It is to the effect that an applicant for a dependency visa must demonstrate that he or she does not have, as a primary or a principal purpose, the intention to take up work in Hong Kong.

46. In the present case, therefore, in accordance with the statement of policy made by the Director (a statement made on the same terms in a number of cases brought before this court over the past 18 months or so), when the applicant sought his dependency visa, he was required to satisfy the Director that he did not have as his primary reason or a principal purpose the intention to take up work.

The applicant's first ground of challenge

47. In this first ground of challenge, the applicant has alleged that the Director, in finding that the applicant did not fulfil the requirements necessary for a dependency visa, made a decision that was Wednesbury unreasonable in that it was a decision that no reasonable decision-maker could have reached on the material available to him at the time. In particular, the applicant has alleged that it was not open to the Director to make a finding that the applicant was not genuinely dependant on his sponsor, his wife, and that he had come to Hong Kong to work, not to join her as her dependant. The Director's findings as to the sponsor's financial viability, a matter which I shall refer later, was also challenged.

48. In my judgment, however, the decision of the Director as to the failure of the applicant to demonstrate dependency was entirely predictable and fell well within the broad parameters of discretion allowed to him. Both the applicant and his wife made unequivocal statements to the effect that the applicant's purpose for wishing to live in Hong Kong was to be with his wife as an equal partner in a marriage not as a genuine dependant. At the outset, the applicant made it clear that he intended to find work in Hong Kong. His wife went further. Writing on his behalf, she said that, as a family man, her husband now had an obligation to work and to earn money for their joint future and that of their intended family.

49. The applicant has challenged the decisions of the Director on the basis that a stated intention on his part to obtain work in Hong Kong cannot place him outside of the limits of the Director's policy. But, in earlier stating the nature and extent of the Director's policy, I am satisfied that the Director was entitled to do so. I am satisfied that, on all the evidence available to him, the Director was entitled to find that the applicant did not have as a principal purpose a desire to remain a genuine dependant of his wife but rather to form an equal partnership in marriage with her.

50. The Director has an unenviable task. He must manage a restrictive policy of immigration. I confess, on the evidence before me, both the applicant and his wife struck me as an inheritably decent young couple seeking nothing more than the ability to live and work together for their happiness and mutual advancement. But, as I have stressed, the Director does not manage a policy of family reunion and it is not for this court to attempt to usurp the power given to him to formulate and administer policy in light of Hong Kong's particular immigration difficulties.

The applicant's third ground of challenge

51. This ground of challenge also relates to the issue of dependency. The applicant has alleged that the Director, in finding that the applicant had not come to Hong Kong to occupy a natural niche in the setting of his family, made a decision which was Wednesbury unreasonable. The challenge has been based on what has been said by Mr Mak Kin Ming in his affidavit dated 23 January 2002.

52. However, in reading the affidavit of Mr Mak, I can find nothing which constitutes an outright rejection of the applicant's assertion that he wished to live with his wife in Hong Kong. If an impression to that effect may have been given, Mr Mak clarified matters in his second affidavit of 26 September 2002, when he said :

" ... I accepted that one of the reasons of the Applicant coming to Hong Kong might be to join his wife. Given that the Applicant and the Sponsor are believed to be a genuine couple, their wish to stay together is understandable. However, family reunion is not the only consideration in a dependant application. The essential element under the dependant policy is 'dependency'."

Later in his affidavit Mr Mak said :

"In considering the Applicant's application, I had taken into account the emotional dependency between husband and wife. However ... taking all factors into account, while family reunion might be on the Applicant's agenda, I considered that a primary or principal purpose of his coming to Hong Kong was to work as and when he could, rather than to depend on his wife."

Mr Mak concluded :

" ... the Director is administering an inclusive policy, i.e., a person may be coming to join his wife but if a principal reason also is that he is coming to work then he does not qualify to remain as a dependant. The true meaning of the policy statement appearing in ... my First Affidavit should be clear in context."

[my emphasis]

53. It seems to me that Mr Mak has said (by manifest implication) that, while the desire on the applicant's part to occupy a natural niche in the context of his new family was accepted, that was only one half of what had to be demonstrated. What also had to be demonstrated was that the applicant wished to occupy that niche as a dependant.

The challenge concerning the sponsor's financial capability

54. In the first letter of refusal dated 6 March 2001, the Director gave as one of his reasons the fact that he was not satisfied that the applicant's wife, his sponsor, was capable of supporting herself and the applicant to the required standard. At that time the evidence showed that the applicant was earning an approximately $11,000 per month as a receptionist and a personal assistant in a hair saloon. The level of her savings was viewed with some scepticism, the documents revealing that they may have been temporarily boosted for the purposes of presentation. In light of this, Mr Mak said the following in his affidavit of 23 January 2002 :

"The Sponsor had a monthly income of $11,000 and had to pay a monthly rent of $5,000. As indicated in the bank statements ... she had only minimal savings which sometimes even appeared in negative balance. She was not considered financially sound."

Mr Harris criticised this finding as being "outrageously unfair". But, bearing in mind the margin of appreciation that must be given to the Director, on the evidence available to him at that time, I fail to see how the decision can be described as being so unreasonable as to be unlawful in the public law sense. As I have said earlier, in terms of the Director's policy, a sponsor must be able to demonstrate that he or she is able to maintain themselves and the intended dependant to a level well above subsistence level and be able to ensure that the dependant does become a burden on the public purse. After payment of rent, the wife had $6,000 per month available to her to fund the living of both herself and her husband. No doubt it could be done. It must be debatable, however, whether it could be done so that a lifestyle well above subsistence level could be maintained and provision made for fluctuations in fortune : illness and the like.

55. In seeking reconsideration of the Director's first refusal, the wife submitted evidence that her financial position had materially improved. She submitted two letters from her employer dated 12 March and 30 March 2001 stating that her salary had increased first to $13,000 and then, upon on promotion to assistant administration manager, to $18,000 per month.

56. The Director, however, was not satisfied that such a material advancement in position and income at such a 'convenient time' was genuine, not given the deteriorating 'economic and employment climate'. In refusing to reconsider the matter, therefore, the Director maintained his view that the wife had not been able to demonstrate her financial capability.

57. However, when the Director was asked to reconsider his decision for a second time, it appears that, in light of evidence substantiating the wife's increased income, he then accepted her ability financially to support both herself and her husband. The Director's final refusal, therefore, was founded solely on the failure of the applicant to demonstrate that he intended to reside in Hong Kong as a genuine dependant of his wife. In this regard, in his affidavit of 23 January 2002, Mr Mak said :

"Having considered the information available and the circumstances of the case, the Director maintained that this was a case where the lack of dependency element made the application fall outside the approval criteria. The Director also could not find sufficient compassionate grounds to grant exceptional approval in this case. By a letter dated 25 May 2001, the Applicant was informed that the previous refusal decision still stood."

58. That being the case, even if the Director's second refusal contained in his letter of 19 April 2001 was based upon a rejection of the wife's true financial status and was therefore based upon a material error of fact, the final decision was made in acceptance of the wife's true financial status and was not therefore blighted by any such material error.

59. In any event, the critical issue of dependency was the issue common to all three rejections and in that regard, as I have said, I am satisfied that the decisions of the Director were made in accordance with his policy, not in conflict with it, and were clearly decisions that lay well within the parameters of his discretion.

The applicant's second ground of challenge

60. This ground of challenge relates to the erroneous conclusion drawn by the Director from the presentation to him of a certificate of no criminal conviction dated 26 May 2000. A consideration of that certificate led the Director to wrongly conclude that the applicant had an intention to seek residence in Hong Kong before he had met his wife and thus constituted evidence that his primary reason was, and had for some time been, to come to Hong Kong to work rather than be with his wife.

61. It is settled law that if a decision-maker makes a material error of fact then that error may vitiate the decision if there is a real likelihood that, if the truth had been known, a different decision would or might have been reached : see, for example, R v. Director of Immigration and the Refugee Status Review Board, ex parte Do Giau and Others [1992] 1 HKLR 287, at 301.

62. Accordingly, in the present case, the central issue is whether, if the Director had not drawn his erroneous conclusion, there was a real likelihood that his decision would or might have been different. In my judgment, there is no such likelihood. First, the certificate of no criminal conviction was only considered by the Director after he had for the first time rejected the applicant's application. The Director's decision that the applicant had failed to demonstrate dependency had therefore already been made. Second, it is clear from the affidavit of Mr Mak that the erroneous conclusion did not replace the Director's original reasoning, it went only to strengthen it.

63. Mr Harris criticised the Director's reasoning as being ex post facto justification or rationalisation. While obviously that is a matter to be taken into consideration, I do not find any weight in the submission in the circumstances of this case. It cannot be disputed that the Director had already rejected the applicant's application before he became aware of the certificate of no criminal conviction. In addition, as I have said, the conclusions drawn by the Director in respect of that certificate, even though wrong, were never more than conclusions used to support principal conclusions already reached on what I am satisfied was a correct reading of the material then placed before the Director.

Conclusion

64. For the reasons given in the body of this judgment, while I have every sympathy with the obvious bemusement of the applicant and his wife at their predicament, this application for judicial review must be dismissed. As for costs, there will be an order nisi awarding costs to the respondent, that order to be made final 30 days after the date of handing down of this judgment unless the matter is set down for argument prior to that date.