QAMAR ZAMAN v. DEPARTMENT OF IMMIGRATION

HCAL 145/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.145 OF 2002

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J U D G M E N T

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1. This is an application for judicial review. The applicant, who appears without the benefit of legal representation, is a Pakistani National. On 10 April 2000, the applicant married his wife in Pakistan. His wife, Ms Khan Sofia Nassim, was born in Hong Kong and enjoys right of residence.

2. Shortly after the marriage, in early June 2000, the wife returned to Hong Kong. It appears that the wife, at all material times, had her father and two brothers living in Hong Kong. However, her mother and three younger brothers and sisters reside in Pakistan.

3. As a result of the marriage between the applicant and his wife, two children have been born both daughters. The eldest child was born on 23 February 2001.

4. On 9 October 2001, when his eldest daughter was a few months old, the applicant was permitted to come to Hong Kong as a visitor to see his wife and his child. Permission was given for him to remain until 16 October 2001. However, on the last day of his permitted stay in Hong Kong, he made application through a firm of solicitors for a change of his status from that of a visitor to that of a dependant of his wife. His wife has acted at all times as the applicant's sponsor.

5. During the course of this hearing, the applicant has complained that in his view he has been dealt with unjustly. He has raised the question of family reunion. The question has been asked, by reference really to a universal law, what law is there that prevents a husband and wife living together?

6. Our courts have considered the Director's policy in regard to the issue of what are commonly called 'dependency visas' on many occasions. Little is served in describing that policy in detail again. It is sufficient to say, I believe, that the policy is essentially one in which dependency is the critical factor as opposed to family reunion.

7. In explaining the dependency policy, albeit in outline only, I believe that question posed by the applicant as to family union is answered. Our courts have long accepted that the Director has to manage an unenviable policy. It has been recognised that Hong Kong is a small, crowded territory and that there is, as a result, constant pressure on the infrastructure of the Territory, both physical and social. When I talk of the physical infrastructure, I talk of housing, roads, transport and the like; when I talk of the social infrastructure, I talk of schools, hospitals, the provision of unemployment benefits and the like. As a result of these pressures, the Director has a strict policy of immigration. Our courts have accepted that this strict policy is lawful in the public law sense.

8. However, the Director recognises that a strict policy must, for humanitarian reasons, allow for individual cases. It is for this reason that the Director manages the dependency policy. If a person is a genuine dependant then the Director will allow that dependant to take up residence in Hong Kong so that he or she may, in the natural niche of the family, be cared for financially, physically and emotionally.

9. For the benefit of this applicant who, as I say, has appeared without counsel, two examples one at each end of the spectrum should be given. Clearly, a very young child, an infant, is dependant on its parents. It relies on its parents, not just for guidance and care, but for all forms of support. The Director will allow that child to come here to be with its parents because it is genuinely dependent. Similarly, but at the other end of the spectrum, an old person who is unwell may be allowed to come to Hong Kong as a dependant because, without relying on the younger members of the family children and the like that person is unable to manage. Between those two extremes are many cases which are more difficult to classify. However, it is the responsibility of the Director and his officers to carry out that exercise of classification.

10. It is recognised that it is for the applicant in each case to demonstrate that he or she is a genuine dependant. It is not for the Director to disprove that he or she is a dependant. Put simply, the burden rests on the applicant in this case to demonstrate to the satisfaction of the Director that he is a genuine dependant.

11. The policy of dependency has a number of conditions. One fundamental condition is that the sponsor, the person on whom the dependant will rely, has sufficient financial means to provide for the dependant by way of accommodation and other necessities of life. The Director's policy says that this ability to provide for the dependant is to be judged not at a level which the sponsor and the applicant are prepared to tolerate but at a level which ensures a reasonable standard of living assessed objectively and having regard to the circumstances of Hong Kong. Our courts have accepted that this part of the policy is itself lawful. It has a rational aim. People who are forced to live close to subsistence may well become a burden on society if anything goes amiss in their lives.

12. In the present case, the applicant sought to remain in Hong Kong as a dependant. As a result, it was necessary for his sponsor to demonstrate, first, that a genuine relationship of dependency existed and, second, that the sponsor was able to fulfil her financial obligations as sponsor.

13. On 3 April 2002, the Director of Immigration wrote to the applicant's solicitors refusing his application for the issue of a dependency visa. The relevant portion of the letter reads :

"After careful and thorough consideration of your client's application, I regret to inform you that your client, Mr Qamar Zaman's application is refused because we are not satisfied that Ms Sofia Nassim Khan is financially capable of supporting your living and providing suitable accommodation for you in the HKSAR."

14. In terms of that letter, the applicant was permitted to remain in Hong Kong as a visitor until 8 April 2002. It is the decision contained in the letter of 3 April 2002 which is the first challenge made by the applicant in this application for judicial review. The applicant sought an extension of time within which to remain in Hong Kong while he petitioned to have the decision of the Director overturned. In response, the Director said that the applicant could only remain in Hong Kong until 23 July 2002. It is this decision, refusing permission to remain for any longer, that is the subject of the second challenge.

15. The challenge to this second decision, in my view, no longer falls for determination. I say that because the applicant has in fact been able to remain in Hong Kong. He has therefore been able to remain here pending a resolution of his objection of the Director's first decision, that matter having been resolved to his detriment in or about February of this year, and has been able to remain so that this substantive application for judicial review can be argued.

16. This leaves only the issue of whether, as the applicant contends, the decision of the Director to refuse his application on the basis of his sponsor's financial inadequacy was an unlawful decision.

17. The applicant says that the decision was a decision which no reasonable person in the Director's position could have made. In making such a challenge, the applicant faces a very difficult task. Stock J (as he then was) in a judgment given on 10 December 1999, made the seminal statement, that is, the most authoritative statement, as to the breadth of the Director's discretion in matters of this kind. I quote from that decision.

"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 dependent on 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 is acting perversely."

18. From this it is evident that the Director has a very broad discretion in his decision-making. The Director is entitled to rely on his experience and the experience of his officers. He is also entitled to draw his own conclusions as to relevant facts. He is entitled to rely more heavily on some factors and less so on others. In short, the facts are for him.

19. I turn now to the facts concerning the wife's finances. The wife indicated to the Director that she earned about $15,000 per month. She earned this money, she said, by hiring out a light-goods vehicle which she owned at a sum of $15,000 per month. She hired this vehicle to a company called Kashmir Transport Company. Her agreement with Kashmir Transport Company had commenced, apparently, in early February 2002.

20. The Director's officers wished to investigate the matter and, in so doing, they put a number of questions to the applicant's solicitors. The Director's officers wanted to find out if the sponsor drove the vehicle herself or whether she employed staff. They wanted to find out who was responsible for the maintenance of the vehicle, payment for fuel and oil and the like. They received a response from the solicitors saying that the sponsor did not herself have a driving licence and that she simply hired out the vehicle as it stood to Kashmir Transport Company. Kashmir Transport Company provided the driver and any necessary delivery staff. Kashmir Transport Company paid for the fuel, oil and general maintenance.

21. Before me this morning, the applicant has said that, as to any repairs, the agreement was that, if the repairs were major, then his wife would meet the cost but if they were minor they would fall under the heading of 'maintenance' and be met by Kashmir Transport.

22. It is not disputed that there is a vehicle owned by the wife. A van is registered in her name; it is insured. It is also evident, on the face of things, that some cheques have been made out by Kashmir Transport Company in favour of the wife.

23. But the Director of Immigration chose to approach Kashmir Transport Company direct on the basis that all was not as it appeared to be. The vehicle, you see, had been purchased for $25,000 and the Director was concerned as to two matters. First, why would Kashmir Transport pay $15,000 per month to hire a vehicle which cost less than two months' rent, and second, what exactly had Kashmir Company agreed to meet by way of staffing and maintenance?

24. On 8 March 2002, a visit was made to Kashmir Transport. The owner was not there but was put onto the telephone and spoke to one of the Immigration officers over the telephone. He said that he paid $15,000 a month to the applicant's wife for the transportation service provided by her to his company. The evidence was, according to the affirmation of Mr Leung Ching To, a Senior Immigration Officer, that the owner said that, whenever he received an order for delivery of goods, he would contact the applicant's wife who would be responsible for the delivery of the goods to the required destination. The owner said that his only concern was whether the delivery order was completed and he did not know whether the applicant's wife was the driver or simply a delivery worker.

25. The Director was therefore faced with a fundamental factual conflict. Kashmir Transport said that it did not provide a driver or pay for fuel. The wife, however, said that she was not concerned with providing a driver or staff or with maintenance and that this was all the responsibility of Kashmir Transport. Either the wife or the owner of Kashmir Transport was failing to state the true position.

26. The matter was of importance because if the wife was to meet the costs herself, it would reduce her income of $15,000 substantially. Indeed, it would reduce it to a level which would barely enable the wife to maintain herself, let alone the applicant.

27. Being unable to resolve the matter, the Director - correctly, in my view - said that it had not been demonstrated to him that the sponsor, that is, the applicant's wife, was in receipt of a regular income in the figure, or in the approximate figure, put forward by her.

28. The Director was also concerned as to the savings which had been exhibited by the wife. He was concerned that these were not solely the wife's and that there appears to have been an artificial increase in the amount of those savings at or about the time when the savings book was put forward as an exhibit for consideration. I confess that the findings in respect of the savings book are not that obvious. But that is not to the point. I say so because, on the more fundamental issue, namely the ability of the wife to earn a monthly living and to provide for herself and her husband, there was a fundamental conflict which effectively destroyed the credibility of the application itself. As I have, it was for the applicant's wife to state matters in such a way that she could demonstrate to the Director that she was in receipt of the monthly income which she professed to receive.

29. That being the case, I cannot see that the Director can be accused of acting in an irrational or perverse manner in refusing the application on the grounds contained in his letter of 3 April 2002. For that reason alone, without the need to examine the 'savings-book' issue in detail, the application for judicial review must be refused.

30. There remains one issue by way of postscript. The applicant has complained that he has been dealt with unjustly in this matter, saying that he has been here for 18 months or more in an effective state of limbo. But, of course, it was his desire to remain here. Indeed, when the Director said that he should leave Hong Kong, he lodged an application with this court to say that that was an unlawful decision. I appreciate the profound emotional consequences that a decision of this kind has upon the applicant. It is natural that he wishes to be with his wife and his two children. But regrettably, the universal of law of which he speaks does not exist. Hong Kong's position, as Mr Li, counsel for the Director, has said, is unique. Hong Kong faces real pressures the kind that I have spoken of earlier in this judgment which make it impossible to manage a liberal regime of immigration. As I have said to the applicant, in order to try and explain the difficult in simple terms, there are many hundreds of Mainland Chinese people waiting not just months but years to come to Hong Kong to join their husbands or wives. They, of course, can raise the issue that Hong Kong and the Mainland are now one country; that they are all of the same race and culture and language. Yet those people must, because of Hong Kong's acute problems, wait in a queue. I say this to show the applicant that he has not been picked out for discriminatory treatment, that sadly there are thousands of people in the same predicament.

31. As to costs, I have been asked to make a lump sum assessment. Counsel has supplied me with all relevant details. The costs appear reasonable. I will make a lump sum assessment. $125,000 is the lump sum order that I make. Whether the applicant is able to pay that sum it is another matter. That is not for this court. But it is, in my view, proper in the circumstances of this case for me to make that order as to costs.