BHUPENDRA PUN AND ANOTHER v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1541/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 1541 OF 2001

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J U D G M E N T

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1. The two applicants in this application for leave to apply for judicial review are brothers. They were both born in Nepal but of different mothers. The one was born in Nepal in April 1981, the other in June 1981. It appears that, in accordance with custom in Nepal, their father had taken two wives. Their father, Janga Bahadur Pun, was, at one time, a member of the British Gurkha garrison in Hong Kong. During his time here, two children were born to himself and his one wife. They were both daughters. I am told that those two children took up residence in Hong Kong and sponsored their father to come here.

2. Their father, upon arrival, applied for a visa to reside here permanently and was granted that visa. In April 1998, the applicants came to Hong Kong to join their father. They were, at that time, accompanied by the mother of the 1st applicant. The mother of the 2nd applicant had passed away in Nepal several years earlier. A month or so after their arrival the applicants and the one applicant's mother applied to change their immigration status to join Mr Janga Bahadur Pun as his three dependants.

3. I am told that Mr Janga Bahadur Pun's wife has been successful in her application. In short, she has been accepted as a true dependant of her husband and has been allowed to reside here permanently. The two applicants, however, have had their application to live in Hong Kong, as dependants of their father, refused by the Director of Immigration. Being aggrieved by the Director's decision, they have taken the matter to the Chief Executive in Council but, again, have been unsuccessful.

4. They now, together, seek to review the decisions of the Director of Immigration and of the Chief Executive in Council on the basis that the decisions are unreasonable in the sense that they are decisions which have either ignored relevant material or misunderstood it, or are decisions which are so unreasonable that no reasonable decision-maker could have made them.

5. The applicants have not been legally represented and I have, therefore, been at some pains to explain to them the true nature of these proceedings. When the applicants applied to change their immigration status to remain with their father in Hong Kong as his dependants, they were about 18 years of age. They are now approaching their 21st birthdays.

6. When they first applied to change their immigration status they both stated that they had come to Hong Kong to stay with their parents and both of them said that, in respect of their future plans in Hong Kong, they intended to look for jobs here. I have been told this morning by both applicants that it is traditional in Nepal for families to stay together and for sons to remain within the bosom of the family until they themselves marry and strike out on their own. Their essential aim when they came to Hong Kong, they say, was to follow this tradition, a tradition which dictates their personal circumstances. They were hoping to further their education here and then to take up work.

7. Speaking briefly of the one applicant's mother who has been granted what is commonly called a dependency visa to remain in Hong Kong, I am told by counsel for the respondents that she was granted permission to stay here on the basis that she was, first, a true dependant of her husband who sponsored her, and secondly, that having regard to the sponsor's earning ability, it was considered that he earned sufficient to maintain both himself and his wife to the required standard.

8. In respect of the applicants today, however, the Director is of the view that they have not come to Hong Kong to be true dependants of their father and that, in any event, their father - their sponsor - does not have sufficient means to support them as well as his wife to the required level of affluence. The brothers say that this finding as to their father's means is perverse.

9. It is necessary, in my judgment, to set out the legal context in which the Director of Immigration acts in matters of this kind. The Director has been authorised by our lawmakers to formulate policies governing immigration matters. It has been said on numerous occasions that Hong Kong is a very small place with a high population density. Indeed, the population density is one of the highest in the world. As a result, the policy of the Director has, for many years, been one of strict immigration control. It is the Government's often-stated view that without these strict controls the strain on our already crowded facilities may well become intolerable. Our courts have, on many occasions, recognised this policy of strict control, a policy which is dictated by Hong Kong's unique geographical, social, historical and economic circumstances. Expressed in plain language, our courts have long recognised that Hong Kong's administrative authorities have acted lawfully in determining that they are not in a position to be as generous in their immigration policies as other jurisdictions may be.

10. But having said that, the Director of Immigration has formulated a number of policies which allow a limited number of people to come to Hong Kong and take up residence here. One of those policies may be described in the following terms: if, after due investigation, the Director concludes that an applicant wishes to reside in Hong Kong as a genuine dependant of a relative who has sponsored that applicant then a dependency visa will be granted; that dependency visa will be granted without restrictions as to employment. The reasoning, as I understand it, is simple: if an applicant is coming here as a genuine dependant, then he or she does not come here essentially looking to take up employment. There is, therefore, no need to place a restriction on that person's residence.

11. 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'. The Director expresses it essentially in the following manner. If the primary purpose - or a principal purpose - of applying for a dependant visa is not only to be with family but to work in Hong Kong, then the person seeking to come here as a dependant does not fall under the policy.

12. The Director recognises that in almost all cases, when a person seeks to join a member of family in Hong Kong, one of the principal reasons is family reunion. The Director sympathises with this; it is natural for families to wish to be together. But the Director has not formulated a policy of family reunion. He has formulated a policy in terms of which a family member may come to live here to occupy a natural niche in the setting of the family as a dependant. Dependency is therefore the key issue. That is the founding basis of the application.

13. The policy is founded on humanitarian principles. It is a policy that allows a family member, who is genuinely dependent for his or her day to day needs on another member of that family, to reside here with that member. That required relationship of dependency explains why the policy demands that the family member who acts as a sponsor must be able, out of his or her own resources, to care for and support the person seeking to come here as a dependant. By that, as I understand it, the Director means to house an applicant, maintain that applicant, and ensure that in the event of illness or disability, all of the applicant's financial needs can be and will be met by that sponsor. This is based on the need to avoid imposing burdens on the taxpayers of Hong Kong. The requirement that the sponsor should be able to maintain an applicant to a required standard, means to a standard that is acceptable to the Director. What is or is not an acceptable living standard is not to be decided by the applicant or by that applicant's sponsor. It is a matter for objective assessment by the Director employing the experience and knowledge of living in Hong Kong possessed by himself and his authorised officers.

14. Many applicants come from countries where the standard of living, regrettably, is low. A menial lifestyle, devoid of luxuries - what I would call a subsistence lifestyle - is therefore acceptable, at least until the persons seeking to come to Hong Kong can improve their economic lot here. But what is acceptable to applicants - or indeed sponsors - does not have to be acceptable to the Director. The Director has made it clear that a sponsor must demonstrate that he or she can maintain a dependant well above subsistence levels of living. As I have said, it is a matter of objective assessment, taking all factors into account; an objective assessment based upon experience and knowledge of living in Hong Kong. A knowledge, for example, of the pressures placed upon families when a sponsor is unemployed, or how much, in truth and reality, it costs to educate people here.

15. Our courts have accepted that this is a rational aspect of the policy. For example, Stock J (as he then was) said in Santosh Thewe and Another v Director of Immigration [2000] 1 HKLRD 717:

"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."

I concur with these observations.

16. In respect of children, as I understand it, the Director's policy is to the following effect. Children under the age of 21 are eligible under the policy but are not automatically accepted under that policy. Whatever the age, the Director will still look to all relevant circumstances. Accordingly, a child who is aged 18 but has finished school, is able-bodied and clearly intends to take up work here, will, no doubt, be found by the Director not to be here solely as a dependant but to have, as one of his primary purposes for being here, the desire, in the near term, to take up work. Again, it is a matter that lies within the discretion of the Director and his authorised officers. It is self-evident that the younger an applicant the more likely that applicant will be found to be a genuine dependant. The older the applicant, the more unlikely he or she will be found to be so.

17. This then in outline is the policy of the Director as it applies to these two brothers. What must be remembered is that when an applicant seeks permission to reside in Hong Kong as a dependant, the burden is on him or her to demonstrate such facts as might persuade the Director that his or her circumstances are such as fall within the Director's policy.

18. Simply to state a matter may not be sufficient. The applicants, of course, assert that they have demonstrated that their circumstances fall within the Director's policy, and they submit that the Director has irrationally and perversely rejected their applications.

19. How then should I approach the matter? First, I believe, it is today beyond argument that in Hong Kong our courts continue to adopt the principles set out in Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149. In this regard, for example, Seagroatt J, in Chitramaya Limbu & Another v Director of Immigration & Another HCAL51/2000, referred to Schmidt as being seminal in this area of public law. He said the following:

"A distinction was drawn between the position of public officers exercising a power whereby citizens could be deprived of liberty or property, and in general, of an administrative body which affects or may affect a person's right or interest or legitimate expectation, and that of aliens who have no right to be in a foreign territory other than by licence."

20. Seagroatt J then cited the dicta of Lord Denning MR at page 171 of Schmidt, in which, in speaking of a foreign alien, the Master of the Rolls said that he or she has -

"No right to enter this country except by leave; and, if he is given leave to come for a limited period, he has no right to stay for a day longer than the permitted time."

If that permit is revoked, Lord Denning went on to say that:

"A foreign alien has no right - and, I would add, no legitimate expectation - of being allowed to stay. He can be refused without reasons given and without a hearing. In point of practice, however, I am glad to say that the Home Secretary does not act arbitrarily. He is always ready to consider any representations that are put before him."

21. Whatever the present state of law in the United Kingdom, Seagroatt J, on a consideration of Hong Kong authorities, came to the conclusion, a conclusion with which I agree, that in Hong Kong, the principles set down in Schmidt remain good law. The reason, I believe, is clear. It is, as I have earlier said, founded on Hong Kong's unique circumstances in respect of immigration matters; circumstances which are as relevant today as they were when the Director's policies were first formulated. What may emerge in the area of public law concerning immigration in other jurisdictions must, of course, be given due consideration by our courts. But it must always be borne in mind that those principles will have emanated from the circumstances - social, political and legal - relevant to those other jurisdictions; circumstances which may not be relevant in Hong Kong.

22. In Aita Bahadur Limbu v Director of Immigration HCAL133/1999, Stock J (as he then was) comprehensively summarised the approach of our courts when challenges of the kind mounted by these applicants are to be determined. His dicta has been adopted as the definitive statement on the matter by other judges of the Court of First Instance and I can do no better than cite it in full.

"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 there it is obvious that the public body is acting perversely."

23. Put plainly, it is not enough for the two applicants, who have no legitimate expectation of being entitled to reside in Hong Kong, to advance matters which support their case and to say at the end of it: 'This has always been a reasonable application and we cannot understand why it has been refused." Therefore the refusal is perverse. The applicants must go further. They must show that the Director has gone beyond a decision that is debatable, or even just conceivable, and has gone into that far realm of perversity which is an affront to the common sense of reasonable decision-makers. For an applicant to be able to show that, I confess, must be a daunting task.

24. Having set out, in broad terms, the Director's policy and how applications for leave against decisions made under that policy are to be considered by our courts, I turn now to the individual applications of these two applicants.

25. Having read the detailed assessment by the Director's authorised officers, I am unable to find anything in that assessment which is perverse or irrational, nor, with respect, have the applicants been able to show me that the Director or his authorised officers have neglected to take into account any matter that is of material relevance, or that the Director or his authorised officers have taken into account matters which clearly are irrelevant. Indeed, I would go so far as to say that on a consideration of the Director's review, all matters have been considered with care.

26. I am unable, therefore, to even begin to find that material has been placed before me which discloses matters which, on further consideration, might demonstrate an arguable case for the grant of relief which these two brothers claim.

27. It is, of course, regrettable that they cannot remain here with their father, and, for the one brother, at least, with his natural mother. I am told that other members of the family are here, namely, the two elder sisters who were born here. But, as I have emphasised earlier, the policy of the Director is not one of family reunion; it is a policy which is quite distinct from one of family reunion, even though family reunion is clearly one of the factors that is taken into account in the sense that a person is allowed to live here if he or she is genuinely dependent upon a member of the family.

28. The applicants say that they have nobody left in Nepal and they must go back there alone. There is one elder sister but she, apparently, lives in India. But the boys are close to 21 years of age. It should also be mentioned that the fact that the applicants' father is here, together with other family members, does not mean that they are all 'trapped' here. Families of this kind are free to choose whether to continue living in Hong Kong or to return to Nepal. I appreciate it is often a difficult situation and economic circumstances may well dictate the answer. But I think it is necessary to state that fact because all too often the implication is made that somehow the Director, by his decision, is tearing apart the traditional fabric of the family. Indeed, in the present case, the one brother has said that in Nepal it is accepted that families will remain together and he suggested that in Hong Kong we should change our policies to recognise this fact. But, with respect, this is not Nepal, this is Hong Kong. And, as I have said earlier, regrettably, Hong Kong has a great many social, cultural and geographical dynamics which directly dictate its restrictive policy of immigration.

29. Both applications for leave to apply for judicial review are dismissed. There will be no order for costs.