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Chitramaya Limbu And Another v Director Of Immigration And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 January 2001
Year2001
Judgement NumberHCAL51/2000
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000051/2000 CHITRAMAYA LIMBU AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL000051/2000

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

____________

BETWEEN
CHITRAMAYA LIMBU 1st Applicant
DARTAKUMARI LIMBU 2nd Applicant
AND
DIRECTOR OF IMMIGRATION 1st Respondent
SECRETARY FOR SECURITY 2nd Respondent

____________

Coram: Hon Seagroatt J in Court

Dates of Hearing: 9 & 12 January 2001

Date of Judgment: 12 January 2001

Date of Written Judgment: 21 February 2001

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J U D G M E N T

_______________

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...

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