MUHAMMAD FAROOQ v. DIRECTOR OF IMMIGRATION

HCA208/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

PROCEEDINGS NO.208 OF 2002

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JUDGMENT

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1. This is the applicant's application for judicial review against three decisions of the Director of Immigration ("the Director"), refusing him permission to remain in Hong Kong as a dependant of his wife.

Factual background

2. The applicant is a Pakistani national born in Pakistan on 10 February 1972. He graduated from the University of Punjab in 1995 with a degree of Bachelor of Arts. He had worked as a sales representative in Pakistan until April 2001.

3. On 14 March 2001, the applicant married Ms Shahidah Parveen ("the Sponsor"). The Sponsor was born in Hong Kong on 25 March 1974 and is a Hong Kong permanent resident by birth. In the mid-1970s, she moved to live in Pakistan. She returned to live in Hong Kong in August 1998. On 9 May 2000, she returned to Pakistan because her mother was ill and also because her mother decided that it was time for her to marry by arrangement according to the Muslim faith. The marriage between the applicant and the Sponsor was arranged by their parents. They have no children.

4. After the marriage on 16 July 2001, the Sponsor returned to Hong Kong alone and became employed since 6 August 2001 as a secretary in a trading company. Her monthly salary is $9,000 and she is provided with free accommodation by her employer.

5. The applicant first entered Hong Kong on 1 January 2002 as a visitor. On 14 January 2002, he applied for a change of immigration status to take up residence as a dependant of the Sponsor. The application was refused by the Director in a letter dated 11 May 2002 ("the 1st Decision").

6. Through an immigration consultant, the applicant requested on 21 May 2002 for a reconsideration of the application. On 5 September 2002, the Director refused the request ("the 2nd Decision").

7. By a letter dated 10 September 2002, Messrs Massie & Clement on behalf of the applicant wrote to the Director requesting for reconsideration of the application. By a letter dated 13 December 2002, the Director refused the request ("the 3rd Decision").

8. On 20 December 2002, the applicant commenced proceedings for judicial review. Leave was granted by Deputy High Court Judge Cheung on 7 January 2003. An order by consent extending the time for filing the Notice of Originating Motion was made on 21 March 2003. On 27 March 2003 the Notice of Originating Motion was filed.

The decisions challenged

9. The applicant challenges all three of the Director's decisions and seeks an order of certiorari to quash the decisions.

10. The 1st Decision was communicated to the applicant in the Director's letter dated 11 May 2002, the relevant part of which is in these terms :

" 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 spouse is a bona fide resident and that his/her spouse is able to support and provided accommodation for him/her.

I regret to inform you that your application is refused because I am not satisfied that:

(a) You come to the HKSAR to join sponsor as her dependant; and

(b) Ms SHAHIDAH is financially capable of supporting your living and providing suitable accommodation for you in the HKSAR."

11. The 2nd Decision is contained in the Director's letter dated 5 September 2002, the material part of which states :

" We have reviewed your application carefully. Having considered all information available and the circumstances of the case, we are not satisfied that you are genuinely coming to the HKSAR to join Ms Shahidah Parveen as her dependant. We find no reasons or justifications for reversing our refusal decision."

12. The 3rd Decision is set out in the Director's letter of 13 December 2002 to Messrs Massie & Clement. The relevant part of it says :

" A thorough consideration of all relevant matters and close review of all the issues raised have been conducted. However, we find no reasons or justifications for reversing our refusal decision."

Grounds for application

13. The grounds put forward in the Form 86A for this judicial review application are that :

(1) A reasonable decision-maker could not conclude that the applicant was not genuinely dependent on the Sponsor; and

(2) A reasonable decision-maker could not conclude that the applicant was not financially capable of supporting the applicant's living and providing suitable accommodation.

14. The second ground is no longer relevant in that the Director, on reconsideration, accepts that the Sponsor is financially capable of supporting the applicant. The financial ability of the Sponsor was not put forward as a ground for refusal in the letter communicating the 2nd Decision.

Dependency policy

15. The Director has the statutory duty of immigration control. For that purpose, he has a wide discretion to admit or to refuse entry under the Immigration Ordinance, Cap. 115. It is within his discretion to allow or refuse aliens to enter or reside in Hong Kong as dependants.

16. The Government's dependency policy as applied by the Director in this case has been set out in the affirmation of Leung Kwok Hung filed on behalf of the Director. Mr Leung is the officer responsible for the 3rd Decision. The policy has also received judicial attention in a number of cases of this Court : see Pun & Anor v. Director of Immigration & Anor (unreported), HCAL1541/2001, paras.9-17, Gurung Bhakta Bahadur v. Director of Immigration & Anor (unreported), HCAL1579/2000, paras.30-40, and Palmis v. Director of Immigration (unreported), HCAL2104/2001, paras.19-33.

17. In summary, the policy can be described as thus :

(1) It is a strict policy of immigration within which there is no policy of family reunion.

(2) The Government's policy on entry of aliens may allow foreigners to join relatives in Hong Kong as dependants in appropriate cases. While the policy enables family reunion, its main purpose is to allow certain categories of close family members to remain when they require the care and financial support of the sponsor. Dependency is an essential element of the policy.

(3) If the primary purpose or a principal purpose of the applicant is to work in Hong Kong rather than occupying a natural niche in the setting of his family, the application will not be granted. If a person wishes to remain in Hong Kong as a dependant of his/her spouse, he/she has to occupy a natural place in the family as a dependant, looking to and needing his/her day-to-day care and support from the spouse both emotionally and materially.

(4) A sponsor must be able to house and maintain the applicant out of his or her own resources.

(5) There is no employment restriction imposed on dependant visa holders because it is unnecessary to do so, given the holder is a dependant and also because it is difficult to police it. Accordingly, the policy on allowing dependants to reside in Hong Kong must not used as a means to get round the restrictions on employment visa.

Approach of the court

18. The approach to be adopted by the court in an application for judicial review of this nature has been set out by Stock J in Aita Bahadur Limbu v. Director of Immigration (unreported), HCAL133/1999 as follows :

" 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 it is obvious that the public body are acting perversely' : see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

19. The applicant accepts that this is the correct approach to be adopted. Indeed, this judicial statement has been described as a definitive statement on the matter : Pun v. Director of Immigration, para.22.

Considerations of the Director

20. The main issue for consideration by the Director is whether the applicant was genuinely coming to Hong Kong to join the Sponsor as her dependant. The Director has concluded that he was not and that he was not genuinely dependent on the Sponsor. In arriving at this conclusion, the Director has taken into account a number of considerations. In his affirmation, Mr Leung explains the basis for the three decisions.

21. In respect of the 1st Decision, it is said that there were doubts about the job of the Sponsor and the provision of free accommodation by the Sponsor's employer and also the applicant's true intention in coming to Hong Kong. The Director has taken into account the Information Sheet completed by the applicant, the Sponsor's statement and bank records and her letter dated 19 April 2002. A field visit to the Sponsor's place of work, which is also her residence, was also carried out.

22. As to the 2nd Decision, although it is accepted that the Sponsor has the financial ability to support the living of the applicant, the Director was not satisfied that he was genuinely coming to Hong Kong to join the Sponsor as a dependant, having regard to his personal circumstances, including his age and previous employment and the information he provided for the application.

23. On the 3rd Decision, the Director was additionally supplied with information of the applicant's marriage with the Sponsor and financial position as set out in the solicitor's letter dated 10 September 2002. In concluding that the applicant was not genuinely coming to Hong Kong for the primary purpose of joining the Sponsor as her dependant, Mr Leung had reviewed the observations made by officers previously processing the application and was in agreement with them. He set out the observations in para.35 of his affirmation as follows :

"(i) The Sponsor came to Hong Kong to resume residence in August 1998 after she left Hong Kong in mid-1970s. After staying in Hong Kong for 14 months, she returned to Pakistan in May 2000. The Sponsor stayed there for taking care of her mother and finding a husband to set up her own family. It is believed that she was prepared to settle in Pakistan and had no plan to come back to Hong Kong at the time of marriage. According to the Sponsor's letter of 19 April 2002, it was after their marriage that the Applicant and the Sponsor decided to come to Hong Kong to look for a better future.

(ii) Despite the solicitors' denial that the Applicant's intention to come to Hong Kong was motivated by economic consideration and he came merely because he was required to obey his parents' wish that he lives together with his wife, there has been no corroborative proof to substantiate this claimed position. By contrast, both the Applicant and the Sponsor had submitted in writing to the effect that they decided to come to Hong Kong to seek better future because the Applicant's insufficient income in Pakistan. There is thus reason to believe that the Applicant wished to come to Hong Kong because of the economic drive. The reason for applying to come to Hong Kong and the Applicant's plan for future as stated in the Information sheet clearly showed that the Applicant had his plan ahead to find a job or start a business and he did not intend to remain merely as a dependant of his wife. This supported the finding that there was a lack of 'dependency element' in the Applicant's application.

(iii) Having regard to the letter from the Sponsor dated 19 April 2002 (exhibited as 'MF-11' among other documents), the applicant had knowledge that in order to meet the application requirement, she had to come to Hong Kong first and to get a job here before the Applicant could come. Her intention of getting a job here in Hong Kong was not primarily for supporting the living of the Applicant but for satisfaction of the entry requirement. It is believed that the Sponsor has no intention to support the Applicant in the long run and the Applicant was not genuinely coming to stay in Hong Kong as her dependant.

(iv) If the Applicant's primary intention of coming to Hong Kong is for seeking a better job, he should apply for an employment visa instead of a dependant visa. However, on the basis of the information submitted, the Applicant was not considered to possess special skills not available in Hong Kong, which would be an essential element to be considered in an application for employment visa.

(v) While all applications have to be assessed in accordance with the existing immigration policy, consideration will also be given if there exists any exceptionally compassionate grounds or extenuating factors which might justify a departure form the policy. There is however no extenuating factor in the Applicant's case which merit a departure from the existing policy."

Wednesbury unreasonableness?

24. Among the information and matters considered by the Director are the reasons stated by the applicant for coming to Hong Kong. In the Information Sheet dated 11 February 2002, the applicant gave the reason as "My wife [sic] working in Hong Kong. I want to live with her and try to find a good future." As regards his future plan, he stated : "First of all, I prefer [sic] the job. Otherwise I start business related [sic] the garments accessories [sic] from China and Pakistan". In the subsequent application for extension of stay submitted on 11 July 2002, the applicant however gave his reason for making the application to be "dependant joining wife".

25. Also taken into account by the Director are two letters written by the Sponsor. In the first letter dated 19 April 2002, the Sponsor wrote :

"...

My husband had been doing a job Sales Representative with salery Seven Thousand Rupees from 1-10-2000 to 25-04-2001. One and half month after the marriage my husband Resign the job, because the salery of my husband was not enough to satisfy our needs.

So we plan to find a good future in Hong Kong, because I born in Hong Kong and permanent residence. So I move to Hong Kong. The Hong Kong Rules and Regulation sponsor must have the job before she can sponsor her husband in Hong Kong.

So I was alone to fly back in Hong Kong."

26. In her second letter of 30 May 2002, the Sponsor stated that the sole intention of the applicant in coming to Hong Kong was to join her as her dependant. She explained that the applicant considered the jobs and working environment in Hong Kong are comfortable, flexible, secured and suitable for women, and was happy for her to work here. She also stated that she intended to start her own business or company after saving up enough money, and that the applicant was willing to support her emotionally. The Sponsor further stated that the applicant was responsible for looking after the home and social affairs while she was responsible for the financial matters.

27. Further matters taken into account by the Director in assessing the intention of the applicant in coming to Hong Kong include the fact that he is a able-bodied young man of employable age, that he had worked in Pakistan but resigned after marriage for the reason that the salary was insufficient to meet the couple's needs. It was considered that the applicant's application is driven by economic considerations and his purpose of coming here is to seek employment.

28. For the applicant, it is argued that the Director's conclusion on the applicant's purpose of coming to Hong Kong is perverse. Specifically, the applicant makes three challenges. Firstly, it is contended that the Director should only be concerned with the applicant's primary purpose for seeking to enter and remain in Hong Kong such that any future plan he has is irrelevant. Secondly, it is argued that the Director's finding of a lack of "dependency" element is not justified. Thirdly, it is said that there is no basis for the observation that the Sponsor's intention to live and work in Hong Kong is not primarily for supporting the applicant but merely to meet the requirement for applying a dependant visa.

29. On the first point, it may well be that the applicant has a primary intention of coming to Hong Kong to join his wife. But because the Director is managing a dependency policy and not a policy of family reunion, the applicant must additionally satisfy the Director that he is joining his wife as a dependant. In this regard, the Director must be entitled to consider the prospect or likelihood of the applicant remaining in Hong Kong as the Sponsor's dependant. As Hartmann J pointed out in Gurung Bhakta Bahadur v. Director of Immigration & Anor (unreported, 13 May 2002), HCAL1579/2000, at para.54, experience suggests that many people when emigrating will be dependant upon their family members in the first instance but solely to enable them to have a firm base upon which they can then strike out on their own. People who come to Hong Kong with such intention are not genuinely coming as dependants of their sponsors and will fall outside the stricter policy of dependency. Accordingly, the Director is entitled to have regard not only to the presently stated intention, but also the future plan the applicant has in coming to Hong Kong. The Director is further entitled to draw inferences from the future plan and to conclude that the applicant does not satisfy him that he does not have, as a primary purpose, an intention to work in Hong Kong.

30. As to the second point, the fact that the applicant is of young age, able-bodied, had graduated from university and had previously been in employment are matters that the Director can legitimately take into consideration. Similarly, the Director is also entitled to have regard to the applicant's stated intention of seeking a job or starting a business. On these factors, the Director reaches the view that the applicant does not intend to remain in Hong Kong as a mere dependant of the Sponsor. The dependency element is therefore said to be lacking. This view cannot be said to be unreasonable in the public law sense.

31. Turning to the third point, I agree that the conclusion that the Sponsor had no intention to support the applicant in the long run is not one that can be properly drawn from the Sponsor's letter dated 19 April 2002. It is true that the Sponsor had said that their plan was to find a good future in Hong Kong because the applicant's income was insufficient, and that she was aware of the sponsor requirement so that she returned to Hong Kong by herself to find a job. But it would be a great quantum leap to conclude from these statements of knowledge and intention that the Sponsor had no intention to support the applicant in the long run because her intention of getting a job was not to support the applicant, but to meet the sponsor requirement. This is particularly so when the Director does not challenge the genuineness of the Sponsor's employment and is satisfied as to her financial ability.

32. To the extent that the Sponsor's statement of future plan is thought to be relevant, the Sponsor had also stated in her letter of 30 May 2002 that she had intended to set up business and to be responsible for the finance of the family. Therefore, even taking the matters in a round, as submitted by Mr Cooney for the respondent, I am not convinced that this observation that the Sponsor's lacks an intention to support the applicant in the long run is properly based and justifiably made.

33. Notwithstanding this flaw, I am unable to say that the ultimate decisions of the Director is Wednesbury unreasonable. The applicant had at the outset of his application stated in the Information Sheet that he planned to find a job or to start a business in Hong Kong. He never retracted from that statement, despite subsequent submissions of letters and information by him and on his behalf. This together with the applicant's educational background and personal circumstances and also the applicant and the Sponsor's stated objective of finding a good future in Hong Kong are matters that the Director can properly take into account. The merits of the decisions is not for the court. On these materials, it is open to the Director to take the view that the applicant did not genuinely come to Hong Kong to be a dependant of the Sponsor. The Director is entitled to form the opinion that what the applicant had stated in the Information Sheet compromised the primary element of dependency. The Director's conclusion that the applicant is not a genuine dependant of the Sponsor is one that is open to him to draw on the materials he has.

Conclusion

34. For all the reasons set out above, the applicant's challenge fails. The application for judicial review is dismissed. I make an order nisi that the costs of these proceedings to the respondent, to be taxed if not agreed.