GAM BAHADUR GURUNG v. THE DIRECTOR OF IMMIGRATION

HCAL 48/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 48 OF 1999

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J U D G M E N T

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1. This is an application by Mr. Gam Bahadur Gurung (the Applicant), to judicially review the decision of the Director of Immigration (the Director) who refused to allow the Applicant to take up residence in Hong Kong as a dependant of his wife, Mrs. Man Kumari Gurung (the Sponsor).

2. The Applicant is a Nepalese national born in Nepal in 1956. The Sponsor was born in Hong Kong in 1965 when her father was then serving the British Forces as a Gurkhas soldier. In 1984, the Applicant and the Sponsor married in Nepal and they have 5 children, aged from 5 to 13 and they are all living in Nepal.

3. In 1998, the Sponsor resumed her Hong Kong permanent resident status. The Applicant also arrived in Hong Kong as a visitor in October 1998.

4. On 2nd November 1998, the Applicant applied for the change of his immigration status to join the Sponsor as her dependant so that he could take up residence. The application was refused by the Director on 13th March 1999.

5. On 27th April 1999, the Applicant invited the Director to re-consider his application. The request was rejected on the same day and hence the present application which was made on 29th April 1999.

6. The Director refused the Applicant's application in March 1999 because he was not satisfied that the Sponsor was financially capable of supporting the Applicant in Hong Kong. In reaching his decision, the Director took into consideration the following matters: -

"(a) The Sponsor claimed that she worked as a cleaner with a monthly income of HK$6,000.00.

(b) The Sponsor claimed that she had to pay the rent of HK$1,500.00 per month for the Room.

(c) The couple have 5 young children in Nepal. The Sponsor claimed that she had to remit HK$2,000.00 to her family in Nepal every month.

(d) In light of the matters stated in sub-paragraphs (a) to (c) above, the Sponsor had a monthly disposable income of HK$2,500.00 only (after deducting the rent and the money she had to remit to her family in Nepal from her income). This was not reasonably sufficient to support the couple and to maintain an acceptable living standard.

(e) The bank statements of the Sponsor revealed that there was a balance of HK$20.00 as at 5th September 1998, HK$1,828.00 as at 5th October 1998 and HK$12,078.70 as at 30th November 1998.

(f) The then accommodation of the Sponsor and the Applicant i.e. the Room was of 36 square feet in area only, which was not a reasonably decent and acceptable accommodation for two adults."

7. When the Applicant invited the Director to re-consider his application, he raised certain matters in his letter of application. Those matters are as follows: -

"(1) My wife, Mrs. Man Kumari Gurung who is my sponsor in this application, is working in the Wellborn Services Limited since 19th August 1998. She is having a stable income of HK$6,000.00 every month.

(2) The money she earns is sufficient for our living and we do not need to depend on any other party or department to support our living.

(3) We have also contacted our family to sell some of my property in Nepal and send us money to support our application.

(4) We have also changed our accommodation which was much better than the old one. Our new address is at the 4th Floor, Flat 12A Kam Kwok Building, 32 Marsh Road, Wan Chai."

8. On the suggestion that the Applicant and the Sponsor had asked their family to sell their property in Nepal, the Director took the view that it was only a bare assertion without any details. There was no evidence to substantiate the existence of the alleged property or its value.

9. In any event, the Director was not bound to take into consideration future events when the proposed sale of the alleged property was just an expression of intention.

10. The Director did not consider the change of the accommodation to be of any significance. The Director pointed out that on the Sponsor's own assertion, out of an income of HK$6,000.00 per month, she had to remit HK$2,000.00 to support her children, leaving HK$4,000.00 per month which was not considered to be sufficient for a reasonably decent and acceptable living for two adults in Hong Kong.

11. The Applicant is an alien with no right of abode in Hong Kong. He came to Hong Kong as a visitor and was allowed to land with a limit of stay. He did not have any legitimate expectation to be granted residence right in Hong Kong.

12. In deciding whether to allow the Applicant a change of immigration status to join the Sponsor as a dependant for residence in Hong Kong, the Director was performing an administrative act in the exercise of his discretion under the Immigration Ordinance. In Schmidt & another v. Secretary of State for Home Affairs [1969] 2 Ch. 149, the English Court of Appeal held that an alien had no right even to make representations to the Home Secretary in relation to any extension of permission to stay in the United Kingdom.

13. In the often quoted passage at p. 170 and 171, Lord Denning M.R. said the following: -

"By contrast in the later case of Reg. v. Secretary of State for the Home Department, Ex parte Avtar Singh (Divisional Court, 25th July 1967, unreported) a Commonwealth citizen said he wanted to come in so as to marry a girl here. He had no right at all to be admitted. The statute gave the immigration officers a complete discretion to refuse. Lord Parker C.J. held that they were under no duty to tell him why he was refused admission and were not bound to give him an opportunity of making representations. If such be the law for a commonwealth immigrant, it is all the more so for a foreign alien. He 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 his permit is revoked before the time limit expires, he ought, I think, to be given an opportunity of making representations; for he would have a legitimate expectation of being allowed to stay for the permitted time. Except in such a case, 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. Once his time has expired, he has to go."

14. In any event, the Director had carefully considered all the matters raised by the Applicant in support of his application before rejecting it. The Director had also provided the Applicant with reasons for his decision.

15. There is no question of the Director's decision being illegal. There is no procedural impropriety. The Director was also entitled to conclude as he did that on the materials before him, the income of the Sponsor was not sufficient to maintain a reasonably decent and acceptable living for the Applicant and his Sponsor in Hong Kong. There is no irrationality in the Wednesbury sense, in the decision of the Director.

16. The Director is under a statutory duty to regulate the lawful entry of person into Hong Kong, either on a temporary or a permanent basis. Whilst it is not for the court to decide how the Director should exercise his discretion in accordance with the Immigration Ordinance, it is worth pointing out that the duty of the Director is an extremely onerous one.

17. Unless the Director adopts a stringent criteria in allowing an alien the right to reside in Hong Kong for whatever reason, Hong Kong is likely to be flooded and burdened by a large number of immigrants.

18. As the Director pointed out in the affirmation of Mr. Law Yiu Tung, he is under a duty to ensure that the holder of a dependant visa will not impose burdens on the residents and taxpayers of Hong Kong in terms of public and social services or the diminution of their employment opportunities.

19. The approach of the Director is a reasonable and correct one.

20. I have considered all the materials before me. I am not persuaded that there is any valid basis upon which I can interfere with the decision of the Director to grant any of the relief prayed for by the Applicant.

21. In the circumstances, the application must be dismissed.