GHULAM FIZAH v. DIRECTOR OF IMMIGRATION

HCAL 63/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.63 OF 2003

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J U D G M E N T

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1. The applicant in this matter, who is a married woman and a citizen of Pakistan, seeks by way of judicial review to quash decisions made by the respondent, the Director of Immigration, refusing her permission to remain in Hong Kong as a dependant of her husband.  The application is grounded on the contention that the decision was unreasonable, as that term is understood in public law; namely, that the decision was one which no reasonable decision-maker could have reached.

2. A central contention of the applicant is that the Director adhered blindly to the policy of dependency, a policy created by him and administered by him, failing to evaluate the various matters which were placed before him.  In discharging an administrative responsibility, a decision-maker must of course have regard to the particular circumstances of each case.  It is unlawful for a decision-maker to adhere blindly to a policy.

3. I turn briefly to the history of this matter.

4. The applicant was born in January 1979 in Pakistan.  She was raised in that country and educated there.  She has more than one university degree and has impressed me as a person of independent spirit and sophisticated character.

5. The applicant met and married her husband in Pakistan in February 2003.  They both come from the same area of the country.  They both speak the Punjabi language and are linked by religion.

6. At the time of the marriage, the applicant’s husband was ordinarily resident in Hong Kong.  However, he was here as a dependant of his own father, having been allowed to remain here on that basis by the Director of Immigration in terms of an approval given in August 1997.

7. Shortly after the marriage, the applicant came to Hong Kong as a visitor.  Shortly thereafter, she applied to the Immigration Department for a change of status enabling her to remain in Hong Kong as a dependant of her husband.

8. In a letter dated 28 April 2003, the applicant accepted that in terms of the Director’s policy of dependency her husband himself being a dependant, was not eligible to sponsor her.  She emphasised, however, that there was no law — that is, no statutory provision - preventing her husband from acting as her sponsor.  In that same letter, she emphasised that, as a well-educated person, she was able to support herself if necessary.  In the same letter, she nominated her brother-in-law, who is a permanent resident, to be a co-sponsor.

9. The applicant’s application was rejected.  In a letter dated 23 May 2003, the Director said the following :

“Under existing immigration policy, a person admitted into the HKSAR as the dependant of another person is not allowed to sponsor his/her own dependant’s application for residence unless and until he/she himself/herself has acquired the right of abode in Hong Kong or has been permitted to remain to take up employment, establish or join in a business in his/her own right.”

The letter concluded :

“After careful consideration of your application and, in particular, whether there were any grounds for treating you as an exception to policy, I regret to inform you that your application is refused as it does not meet the abovementioned criteria.”

10. In that letter, the Director of Immigration stated specifically that consideration had been given to treating the applicant in this case as an exception to the policy.  In short, it is plain from a reading of this letter of 23 May 2003 that the Director had not looked simply to the terms of the policy of dependency but had, in addition, looked to whether this applicant should be treated as a special case.

11. After the rejection of her application, the applicant submitted a letter of appeal to the Chief Secretary for Administration setting out why it was she was of the view that her application to the Director had unreasonably been rejected.  Her letter to the Chief Secretary for Administration effectively mirrors her application before this court.  In that letter, and thereby in this application, the applicant said that the Director has a discretion to decide whether the policy of dependency is to be applied and is free to depart from it.  She said that the failure of the Director to depart from the policy was irrational for a number of reasons:  first, because her husband had ordinarily been resident in Hong Kong for almost six years and was therefore just a year or so away from obtaining right or residence himself; second, that she and her husband were newlyweds; third, that her husband had a stable job in Hong Kong and, fourth, that she was a highly-educated person whose presence in Hong Kong would pose no financial burden on the community.

12. The application by way of appeal to the Chief Secretary for Administration was, I am told, out of time but was nevertheless dealt with on an administrative basis.  On 18 June of this year, the Secretary for Security, who was charged with considering the appeal, informed the applicant that, having reviewed the case and considered all the circumstances, he had decided to uphold the Director of Immigration’s decision to refuse the application.

13. Before concluding this recitation of the background, I should say that this application came before me originally on 20 January of this year.  During the early part of the hearing, however, I was informed that the applicant had given birth to a girl earlier that same month.  I was not prepared at that time to make any order that might result in the removal of this applicant from Hong Kong when she was suckling an infant child.  The Director, who was unaware of the birth of the child, accepted fully that the matter would have to be looked at again and time granted before any question of the mother and the child’s removal from Hong Kong was to be determined.  The child is now six months of age.  It is accepted that she is fit travel.

14. Finally, I should mention that the applicant also challenged a decision by the Director refusing her permission to remain in Hong Kong pending the decision of the Chief Secretary.  As it transpires, of course, the applicant remains in Hong Kong at this time and so that issue falls away.

15. The single issue to be decided therefore is whether the Director’s refusal to allow the applicant to remain in Hong Kong as a dependant of her husband was an unreasonable one.

16. Sadly, cases of this kind come before the courts on a regular basis.  It is necessary to explain that Hong Kong manages a restrictive policy of immigration.  It has long been recognised by the Executive — that recognition being accepted by the courts as rational — that Hong Kong, as a small and crowded place, must exercise a restrictive policy in respect of the number of people who can come here each year to take up permanent residence here.  The Director, however, while exercising a restrictive policy, does permit certain people to come and stay here if those persons fall into certain limited categories.  One of those categories encompasses persons who wish to remain in Hong Kong within the natural confines of their family as dependants.

17. Mr Cooney, counsel for the Director, expressed it well, I think, when he said that, while the dependency policy has the advantage of bringing about family reunion, it is not itself a policy of family reunion.  The policy allows a person who is a genuine dependant of their sponsor and who has the purpose of coming to Hong Kong to be a genuine dependant to remain here as that dependant.

18. However, to ensure that that person does not become a burden on the State, that person must be sponsored and the Director must be satisfied that the sponsor is capable of maintaining that person to a reasonable standard, certainly a standard well above subsistence level.  It follows logically, I think, that if a sponsor is himself a dependant and has been accepted as a dependant by the Director; that is, as a person who is reliant on somebody else for their living, that sponsor cannot himself sponsor yet another party.

19. The applicant in this case has accepted that that is a part of the policy and has accepted that, at face value at least, that must exclude her from the policy.  But, as I have said, her contention is that the Director has not considered whether she constitutes an exception to the policy.

20. Further refined, the issued therefore is this : can it be demonstrated that the Director failed to look to whether the applicant constituted an exception?

21. In my judgment, it is plain that the Director did consider whether the applicant constituted an exception.  The letter of rejection says as much and that letter, absent evidence indicating something to the contrary that must be implied, must be understood according to its plain language.  But did the Director, in considering whether this applicant constituted an exception to the policy, fail to take into account material matters or fail more generally to evaluate all the relevant circumstances of the application?  There is simply no evidence that there was any such failure.

22. This court has observed in the past that the Director has an invidious task.  Every application, no doubt, has its own moral and compassionate circumstances.  Whether the Director finds any particular case to constitute an exception is a matter for the exercise of his discretion and our courts have recognise that his discretion in this regard is a broad one.

23. As I have just said, I regret that on the papers and on the evidence that I have before me, I can find nothing to suggest that the Director did not consider all material matters, including the age of the applicant, the short length of her marriage, her educational achievements and the like.

24. Whether I would have come to a different decision is not the point.  I admit to having a deal of sympathy for the applicant.  But this is not a court of sympathy and unless the compassionate circumstances are so overwhelming that the Director would have been irrational to ignore them, I am not in a position to upset the exercise of the Director’s discretion.

25. By way of a postscript, I mention one matter.  Clearly the birth of the child in Hong Kong created a new set of imperatives.  I asked Mr Cooney whether this had been taken into account by the Director and I am informed that the Director, in making his recommendations to the Secretary for Security, did raise the issue of the birth of the child.

26. As to the compassionate circumstances which flow from the birth of the child, I have been able to ascertain this morning that the applicant has family in Pakistan; that indeed the husband has family there; and the husband’s own father — his sponsor — has been residing in Pakistan since late last year.  The applicant is being returned to the country of her birth and upbringing; she is returning to her maiden family; she is returning to a culture that she understands.  If the husband cared to join her, he too would be returning to his country of birth.

27. For the reasons give, this application for judicial review must be dismissed.

28. As for costs, I have explained the ramifications to the applicant.  Costs, in my view, must follow the event.