CHITRAMAYA LIMBU AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 51/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 51 OF 2000

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J U D G M E N T

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1. The two Applicants, Chitramaya and Dartakumari, are two of the daughters of Limbu Ganga Bahadur, a former Ghurka soldier serving with British Forces in Hong Kong. They are respectively now 21 and 20 years of age and his fifth and sixth children. They have been living in Hong Kong with their father, sister and brother-in-law (who have one child) since 8 August 1998. I shall, where I need, refer to them hereafter as "Chitra" and "Darta" (without disrespect) since these are the shortened forms of their names which they use.

2. It is of some importance as the background to the situation in which they find themselves, to consider what is known about their father. He is now 53 or 54 years of age. His third child, a daughter, Geeta, was born in Hong Kong in 1976 and is a permanent Hong Kong resident and had returned to Hong Kong in 1995 to resume residence. He arrived in Hong Kong from Sarawak as a visitor on 7 February 1998 and, having retired, was permitted to join her as a dependant on 24 April 1998. By that time her husband had already joined her as a dependant in early 1996 and their child is now 3 years old. The father eventually obtained employment as a security guard in May 1998. He had worked in Malaysia as a security guard from about 1991 to December 1997. His family had remained in Nepal. I shall consider these circumstances in the context of Chitra and Darta's application for leave to remain as his dependants, shortly.

The application to remain as dependants.

3. This was made on the 13 August 1998. Both applicants described themselves as students. They were then respectively 19 and 17 years of age. They described their future plan as "to look after [their] father". At this stage it is to be noted, if only as matters of fact, that their father was only 51 years of age and had obtained full-time gainful employment only a few months earlier. Moreover he himself had arrived in Hong Kong only eight months earlier as the dependant of his married daughter Geeta.

4. The information sheet supplied by the father as sponsor for these two daughters contains the following relevant information: the six family members (including the two applicants) live in a flat with an area of 200 square feet which comprises two bedrooms, a kitchen and a toilet/bathroom. He and his two applicant daughters share a bedroom measuring 8 feet by 10 feet. His income, according to certificates from his employers in October and November 1998 varied between $10,000 and $11,450 monthly. He paid monthly rent of $5,200 but later stated he paid only half of this to his son-in-law. There were bank savings stated to be $39,000. Household bills were declared to be shared between the father and his daughter Geeta and her husband. The premises in which all six members of the extended family were living was leased to Geeta's husband. The father stated that he sent no money to Nepal to support his family there. In respect of the bank savings referred to as $39,000 he supplied a copy of the passbook. Although it is not necessary to consider it in detail it reaches this balance only in early September by unexplained deposits of round sums ranging between $3,000 and $15,000 reducing to a negligible balance in the middle of the month. The picture is repeated almost identically the next month (October 1998) and again in early December 1998 the deposits pattern is shown, though what happens later in the month is not shown. However, by 27 December it had reduced to $9,330.

5. By letter of the 18 January 1999 the Immigration Department refused the applications of Chitra and Darta because it was not satisfied that the father was financially capable of supporting their living and providing suitable accommodation for them in Hong Kong.

The policy of the Immigration Department.

6. Applications for unmarried dependent children under the age of 21 to join one or both parents for residence in Hong Kong may be approved provided that:

1) there is reasonable proof of genuine parent/child relationship;

2) there is no security objection and no known record of serious crime against the applicant;

3) there is no likelihood of their becoming a burden to Hong Kong;

4) the parent is a bona fide resident of Hong Kong; and

5) the parent is able to support them and provide accommodation.

It is clear that points 3 and 5 are linked - point 5 really embraces point 3. The applications were refused on the basis of point 5. It involved a consideration of the parent's income, assets and accommodation.

The Reconsideration.

7. The Applicants requested a reconsideration on the 3 February 1999. They now relied upon:

1) The willingness of their sister Geeta and her husband to be two additional sponsors, the combined income of all three proposed sponsors now being over $33,000 monthly.

2) The disposable income was now just under $27,000 monthly.

3) They had a room (This is not a change from the previous situation - it is shared with their father.)

4) The family in Nepal were not dependant on the father's income earned in Hong Kong.

5) The father undertook not to put himself forward as a sponsor for any other dependant.

8. I doubt this last point could be a material relevant factor for consideration.

9. Documentary evidence supported the income available. However the request was refused on 3rd February 1999 as no new matters were raised to justify reconsideration.

10. This rejection was followed by a non-statutory petition to the Chief Secretary. Correspondence and other documentation subsequent to that showed that the sponsoring father had changed his job and had a higher income. There was also a change of accommodation. A detailed consideration by the authorities gave rise to serious doubts as to the genuineness of the Applicants' intentions quite apart from the matter of the sponsor's ability to support them well above subsistence level. Accordingly it was decided that the Director's decision should stand. By letter of 31 January 2000 the Applicants were informed of this decision.

11. At one stage it appeared that a main plank of the argument to be advanced on behalf of the Applicants was that the Director had not given clear reasons for her decisions.

12. This can be disposed of shortly. The Director's letter of 18 January 1999 was clear and calls for no repetition. That of 3 February 1999 was succinct. There was no need for repetition. The letter of 19 February 1998 was almost a blue-print of that of 18 January 1999. The policy was clearly set out in material given to the sponsor on 13 October 1998. The applicants knew in clear terms why their applications had been refused. The contrary is not, in my view, arguable.

13. Mr Harris' argument proceeds from a basis that the Director was shifting ground in raising the consideration that the Applicant might consider employment in Hong Kong. It seems to me, that the question of the applicants seeking employment in Hong Kong cannot be divorced from the policy to be followed. If they cannot be supported properly and accommodation is deemed to be inadequate then the resort to employment is a logical risk. The consideration of it is not more than a logical extension of the prime consideration given to the situation.

14. Two points were taken by Mr Harris as supporting the contention that there had been a fundamental mistake of fact in the assessment of financial adequacy. One was the mistaken approach to the savings, which, he argued, had in any event increased to such a level that they must be considered as weighing heavily in favour of a conclusion that the sponsor was more than able to provide adequate maintenance and accommodation.

15. Very little significance should be attributed to savings unless there is a clear pattern consistent with regular and frequent deposits showing an excess of income over expenditure and producing itself significant income. One sees for example the unexplained deposits of sums - $5,000, $2,000 and $2,500 - on the 7 December 1998, $3,500 on the 8 December 1998 and $5,500 on 9 December. The last two payments, totalling $9,000, coincidentally correspond to the withdrawal of the same sum by the daughter Geeta from her passbook on 7 December 1998.

16. Although the father's savings had reached over $37,000 by the 9 December 1998 accounted for by these deposits, his salary and some other unexplained deposits in November 1998 (the previous month), the balance had slipped back to $9,330 by the 27 December 1998 with no apparent explanation. The relevant page from the passbook is absent. This pattern of unexplained deposits commenced on the 1 September 1998 shortly after the Applicants made their application. By the end of each month that unexplained balance had slipped to a negligible figure.

17. At the end of January 1999 there is a flurry of deposits into the father's account - eight of them totalling $38,500 - and in May and June a few more appear. All this illustrates how impossible it is to derive anything reliable or helpful from this erratic picture. According to the sponsor his only income in Hong Kong is his salary as a security guard but in his affirmation he refers to deposits of money from Nepal via Hundis, money changers, and gifts to him by his daughter Geeta and his son-in-law. This affirmation was the first to contain any suggestion of other income coming to the sponsor in Hong Kong. It is a vague explanation but none is given for the outflow of funds. Nonetheless, interesting though this incomplete picture maybe, it is no way affects the valid basis for the decision made by the Director in accordance with the policy.

18. Mr Harris relied upon the dicta of Lord Scarman (p. 1030) and Lord Wilberforce (p. 1047) in Secretary of State for Education and Science v. Tameside B.C. 1977 AC. The content is not controversial in this case and is a guiding statement, in general terms perforce, by both of their Lordships :

"- I do not accept that the scope of judicial review is limited quite to the extent suggested by Mr Bingham. I would add a further situation to those specified by him; misunderstanding or ignorance of an established and relevant fact..... The fact may be either physical, something which existed or occurred or did not, or it may be mental, an opinion" - per Scarman, LJ

19. It was perhaps a delicious irony that the two Counsel appearing for the Secretary of State is that case were the present Lord Chief Justice of England and Wales, and his immediate predecessor, both former Masters of the Rolls. Lord Woolf also became a co-author of de Smith's 'Judicial Review of Administrative Action', from the 3rd edition of which Scarman LJ went on to cite (p. 320) -

"- A court may hold that it can interfere if the competent authority has misdirected itself by applying a wrong legal test to the question before it, or by misunderstanding the nature of the matter in respect of which it has to be satisfied. Such criteria are sufficiently elastic to justify either a broad or a narrow test of validity ....a court may state its readiness to interfere if there are no grounds on which a reasonable authority could have been satisfied as to the existence of the conditions precedent."

In the House of Lords, Lord Wilberforce (at p. 1047) opined :

"If a judgment requires, before it can be made, the existence of some facts, then although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether these facts exist, and have been taken into account, whether the judgment has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however 'bona fide' it may be becomes capable of challenge."

and a little later -

"In many statutes a minister or other authority is given a discretionary power and in these cases the court's power to review any exercise of the discretion though still real is limited. In these cases it is said that the courts cannot substitute their opinion for that of the minister. They can interfere on such grounds as that the minister has acted right outside his powers or outside the propose of the Act, or unfairly, or upon an incorrect basis of fact."

20. If one were to apply the force of these statements to the Director's assessment of one of the material points in his policy - and the only material one in its decision - it can readily be seen that a rational exercise of the discretion has taken place. The decision is entirely consistent with the declared policy and it is impossible to say that the decision reflects a misunderstanding or ignorance of a material fact.

21. Mr Harris moves his argument on to irrationality in the exclusion from the decision (at the level of reconsideration or petition) of the earnings and savings of other members of the family viz. those of Geeta and her husband. I have difficulty in seeing the basis for this. To take into account this material as relevant to the considerations under the policy, either initially or upon a subsequent review or petition, would itself be irrational. None of the criteria allows it. The fifth is precise enough to exclude it. To extend that fifth criteria, or the policy itself , without a specific statement to the effect that such extended resources could be taken into account, or that other members of the family could be considered as sponsors, would drive a 'coach and horses' through the policy.

22. It may well be that a family could so organise its resources as to contribute, notionally, to a father's income and assets for the purpose of putting him forward as a sponsor, well able to maintain and provide accommodation for his two adult daughters; but that does not establish the necessary criterion, and is a wholly artificial and less than straightforward exercise. It does not constitute an exception which requires the discretion to be exercised outside the ambit of the policy.

23. Reliance is placed upon the opening paragraphs (in effect page 505) of Chapter 11 of Smith, Woolf and Jowell's standard text. Those paragraphs have to be read against the specific need for an Immigration policy peculiar to Hong Kong's needs, and with regard to the question of immigration itself. Immigration confers no right to remain beyond the period fixed. Although the word "alien" seems to have acquired an unfortunate pejorative connotation, perhaps largely as a result of the political sensitivity of those who have to be regarded as such, it needs restating that an alien has no rights of residence in a foreign country. Such a country may establish a policy by which it can have regard to cases which merit a particular consideration. But there needs to be consistency.

24. The very existence of the fifth criterion, in my view, indicates that the discretion has not been fettered. To argue that to expand that criterion to incorporate other sources of income and sponsors is necessary to a proper exercise of the discretion, is equally irrational for the reasons I have set out earlier.

25. The absence of evidence to show that the family, or, more pertinently, the father, has fallen into debt, or that either of the applicants has had to have recourse to public funds, is irrelevant. The fact that the applicants may, and I stress the word may because the facts cannot and need not be shown, have lived solely on what the father provides for them, does not affect the approach of the Director to the fifth criterion. He or she has to make a value judgment on the hard evidence provided. Equally, the CSSA Scheme figures are not relevant; though as Mr William Marshall SC on behalf of the Director contends, they can be taken as a point of reference. What the Director had to consider was the ability of the parent (alone) to support and provide accommodation. I should add in passing that the Director could have come to one conclusion only, on the point of accommodation, though it is not necessary to deal with that point in isolation, and he did not do so. The fact that for periods of time, and even indefinitely it that were to be the case, the father now works on a night shift, so that the small single bedroom is occupied by the two applicants at night without their father, makes no material difference. I cannot see much practical difference in the arrangement either. It still strikes me as wholly unsatisfactory whatever may be the exigencies of certain Asian cultural environments.

26. As I referred to earlier, the approach to Immigration decisions in relation to judicial review is somewhat different from other areas of ministerial or executive function. Hong Kong has a particular problem. Public interest and the economic interest of that public in its private concerns and in the area of welfare services are to the fore.

27. The English Court of Appeal's decision in Schmidt v. Secretary of State for Home Affairs 1969 2 Ch. (p. 149) is seminal in this area of judicial review. 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. At page 171 Lord Denning M.R. said :

"[a foreign alien] 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 the permit is revoked before its expiry, he went on to say :

.... "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 ....."

Widgery LJ went on to put his understanding of the position in more uncompromising terms but essentially in agreement with Lord Denning.

28. The approach in Schmidt's case was applied by the Hong Kong Court of Appeal in Ho Ming-Sai v. Director of Immigration 1994 1 HKLR p. 21 Litton, JA was direct in his consideration :

"The Director has a very wide discretion under s. 13 of the Immigration Ordinance and it is not for the courts to say how that discretion should be exercised."

29. The Director's decision is an administrative one and as such no different from that of the Secretary of State in Schmidt's case. And the position of these applicants is no different from that of foreign aliens considered there.

30. It featured also in the Appeals of Chan Hung-mui and Hui Kat-fan in which Litton, JA again gave the leading judgment and although not expressly referring to Schmidt's case, followed Attorney-General v. Ng Yuen-shiu (1981 HKLR 352 (LA) in which Schmidt's case featured significantly and was followed.

31. Stock, J, as he then was, referred to the regular application of the principle in Schmidt in Hong Kong in cases of unlawful entrants, or overstayers when considering the position in Thapa India Bahadur v. Secretary for Security HCAL 18/99 - 21 October 1999 - (unreported).

32. The Court of Final Appeal in Lau Kong Yung & Others v. Director of Immigration in the different judgments, underlined the different position as regards the administrative powers of the Director of Immigration, in particular that there is no enforceable duty on the Director to take account of discretionary considerations. Disregarding them therefore cannot constitute an error of law. These applicants have no legal claim to stay in Hong Kong. If a discretion exists to enable them to stay there is clear authority that even though it may exist, the Director is not bound to exercise it. It is clear in my judgment from the form of expression of the policy that it constitutes the ambit of a discretion - "applications may be approved provided that etc." In other words the discretion may be exercised if the applicant meets certain criteria.

33. Stock, J returned to the Immigration context in Hong Kong in his judgment in Santosh Thewe v. Director of Immigration HCAL 134/199 - 18 January 2000 (Unreported). A succinct statement of the scene can be found at page 8 S-T and page 9 A-G.

34. In that case he also rejected the argument that a requirement that a standard of living well above subsistence level should be shown was irrational and an unreasonable fetter upon the Director's discretion. This is the same argument before me in the case of these two Applicants. Similarly I reject it both in respect of the decision on the material as originally put before the Director and that on the material subsequently put forward, excluding of course the alternative sponsors and their respective incomes which are outwith the policy.

35. I conclude by citing part of another of Stock, J's judgments. It is from Aita Bahadur Limbu v. Director of Immigration HCAL 133/1999 - 10 December 1999.

"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 tot he 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': see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

36. In my respectful view that comprehensively encapsulates the court's judgment in such cases. Accordingly these Applications are refused with costs to the Respondents.