DEMBELE, SALIFOU AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 44/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 44 OF 2014

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J U D G M E N T

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A. THE FACTS

1. The 1^st applicant was born in Ghana and is a national of Mali.  The 2^nd applicant migrated to Hong Kong in 2003 from the Mainland and has since 2010 been a Hong Kong permanent resident.

2. The 1^st applicant had been visiting Hong Kong as a visitor.  In July 2010, the 1^st applicant met the 2^nd applicant in Hong Kong.  They started a relationship and were eventually married in April 2011.  They are the parents of the 5^th applicant (who was born in July 2012), while the 2^ndapplicant is also the mother of the 3^rd and 4^th applicants from her previous marriage.  The 2^nd to 5^th applicants are permanent residents of Hong Kong, and have been receiving Comprehensive Social Security Assistance (“CSSA”) in Hong Kong.  All the applicants have been living together in the 2^nd applicant’s public housing flat, and the children have been studying in Hong Kong.

3. In 2011, the 1^st applicant made an application to the Director of Immigration (“the Director”) for a dependant visa to take up residence in Hong Kong as the dependent of the 2^nd applicant.

4. An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.[1]  In relation to such an application, the Immigration Department has published the “Guidebook for Entry for Residence as Dependents in Hong Kong” (“the Guidebook”) which has set out, among others, the relevant “Eligibility Criteria” at paragraphs 3 and 5 as follows:

“‘II. Eligibility Criteria’

3 For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

a. his/her spouse;

b.his/her unmarried dependent child under the age of 18; and

c. his/her parent aged 60 or above.

4 …

5 An application for admission of a dependant may be favourably considered if:

a. there is reasonable proof of a genuine relationship between the applicant and the sponsor;

b. there is no known record to the detriment of the applicant; and

c. the sponsor is able to support the dependant's living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.”

5. Thus, under paragraph 5 of the Guidebook, it is provided that an application for dependant visa “may be favourably considered” if the applicant can show that:

(1) There is a genuine relationship between the applicant and the sponsor (“the Genuine Relationship Requirement”).

(2) There is no record of detriment of the applicant (“the No Record Requirement”).

(3) The sponsor is able to support the dependent’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong (“the Financial Sufficiency Requirement”).

6. The 1^st applicant’s dependant visa application was refused by the Director on 12 July 2011, stating that he was not satisfied that the 2^nd applicant (the sponsor) was able to support the living of the 1^st applicant at a standard well above the subsistence level in Hong Kong.  In other words, the Director was not satisfied that the applicant had met the Financial Sufficiency Requirement.  I would refer this as “the 1^st Decision”.

7. After the birth of the 5^th applicant in 2012, in January 2013, the 1^st applicant (then legally represented) submitted a fresh dependant visa application to the Director.  The Director again refused this application.  In the letter dated 9 April 2013 containing this decision (“the 2^nd Decision”), the Director explained the reasons for the decision as follows:

“Under the existing immigration policy, a person may be allowed to come to the HKSAR to join his/her local spouse (the sponsor) as a dependant if it is satisfied, amongst other things, that the sponsor is able to support the dependant’s living in the HKSAR at a standard well above the subsistence level and provide him/her with suitable accommodation.

Having considered all information made available and all circumstances in this case, it is not satisfied that the sponsor is able to meet the aforesaid criterion.  It is also not satisfied that there are sufficient justifications for our departure from the prevailing policy.  Therefore, the application is refused.”

8. Thus, the Director made the 2^nd Decision on the basis that (a) firstly, the 1^st applicant was not eligible to come within the Dependant Policy as the Financial Sufficiency Requirement was not met, and (b)secondly, there were also no exceptional circumstances to justify the Director to exercise his residual direction to depart from that established policy and grant the 1^st applicant permission to stay in Hong Kong.

9. In April 2014, the applicants applied for leave to apply for judicial review against both the 1^st and 2^nd Decisions.  Ex parte leave was granted in June 2014 based on the Amended Form 86.  The grant of the leave was expressly stated to be without prejudice to the Director’s right to oppose the grant of an extension of time.  On the first day of the substantive hearing, the court allowed the applicants to re-amend the Amended Form 86 on certain limited basis.

B. THIS JUDICIAL REVIEW

B1. Grounds of judicial review

10. The applicants raise a number of grounds to support the judicial review.  They can be summarised as follows:

(1) The Financial Sufficiency Requirement itself and/or the Decisions are unlawful or Wednesbury unreasonable as in the formulation of that requirement under the Dependant Policy or the Director in making the Decisions had failed to take into account the permanent residence rights of the sponsor and the applicant’s children, as well as the applicants’ rights to family and marriage as enshrined in Articles 37 and 39 of the Basic Law, Articles 17, 19 and 20(1) of Bill of Rights (domesticating Articles 17, 23(1) and 24(1) of the International Convention of Civil and Political Rights), Article 10 of the International Covenant on Economic, Social and Cultural Rights and/or the best interests of the child under Articles 1 to 7, 9 and 18 of the Convention on the Rights of the Child and/or common law.  For convenience, I would refer to all these rights collectively as “the Asserted Rights” (“the Asserted Rights Ground”).[2]

(2) The Financial Sufficiency Requirement and the Decisions themselves (in applying that requirement) are unlawful because they result in discriminatory effects against Hong Kong residents marrying a foreign national as the requirement does not similarly apply to spouses coming from Mainland China on a One‑Way Permit (“OWP”) (“the Discrimination Ground”).[3]

(3) The Financial Sufficiency Requirement and the Decisions themselves (in applying the requirement) are unlawful or Wednesbury unreasonable because they failed to take into account the family unit as a whole, consisting of the applicant and sponsor, and the liberty of the family unit to make arrangements for its financial self-sufficiency (“the Making of Own Family Financial Arrangement Ground”).[4]

(4) The Decisions are unlawful as the Director misapplied the Dependant Policy in treating the Financial Sufficiency Requirement as an eligibility criterion when it is not (“the Misapplication of Policy Ground”).[5]

(5) The Decisions are unlawful as the Director took into account irrelevant consideration but failed to take into account relevant considerations (“the Relevant and Irrelevant Considerations Ground”).[6]

(6) The Decisions failed to give effect to the applicants’ legitimate expectation that their Asserted Rights would be taken into account in assessing the dependant visa applications (“the Legitimate Expectation Ground”).[7]

(7) The decision process was procedurally unfair as:

(a) the Director had not informed the 1^st applicant what would amount to supporting a standard of “well above the subsistence level” in the circumstances of their case, so that they could address the matter appropriately;[8] and

(b) the Decisions are inadequately reasoned[9] (collectively “the Procedural Irregularities Ground”).

11. Under these grounds of judicial review, the applicants seek to challenge the Director’s exercise of discretion in refusing the 1^st applicant’s permission to stay applications.  Before looking at the specific grounds of challenge, it is useful to first set out the proper context and principles relevant to the consideration of such challenges.

B2.  Relevant principles and approach

12. First, the Director is entrusted with the power and wide discretion under Article 154(2) of the Basic Law and the Immigration Ordinance (Cap 115) (“IO”)[10] to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions.

13. Second, it is well established that the Director in the exercise of that power and discretion adopts an overall restrictive immigration control policy.[11]  The legitimacy and rationality of such an overall restrictive policy control applicable to the entire immigration regime is well recognised and accepted by the courts.  It has most recently received the unreserved endorsement by the Court of Appeal in the BI v Director of Immigration and BH v Director of Immigration (CACV 9, 103 and 134/2015, unreported, 8 March 2016, Cheung CJHC, Lam VP and Poon JA) (“the BI/BH CA Judgment”) at paragraph 70.  In particular, the Court of Appeal has re-stated the general propositions concerning the immigration regime in Hong Kong at paragraph 92 as follows:

“92.   In the BH Judgment, Chow J examined the immigration regime in Hong Kong and our case law on the same. That examination was made in the context of the submission of Mr Dykes that the Director is under a general public law duty to take account of family circumstances of a DV Applicant and his or her family members residing here. In that connection, Mr Dykes made reference to the BI Judgment. As already noted, Chow J came to a different view from that of Zervos J in that respect. There are other authorities on this topic, most of them were reviewed by Chow J and in the recent judgment in Pagtama v Director of Immigration by Au J. As many of these authorities are first instance judgments, it would be helpful if this court were to re-state some general propositions concerning the immigration regime in Hong Kong.

(1) Due to the special circumstances of Hong Kong by virtue of its small geographical size, huge population, its economic and social uniqueness amongst its neighbours in the region, it is necessary for the maintenance of its sustainability to adopt a restrictive immigration policies and practices.

(2) As a matter of law by reason of Article 154(2) of the Basic Law and the Immigration Ordinance, the administration of such policies and practices is in the hands of the Director of Immigration who has been given very wide discretion to discharge a very heavy responsibility. Such a wide discretion is necessary because very often the Director has to make some hard decisions based on such policies and practices, some of which might be regarded by members of the public as tough and unpopular. However, in the discharge of his onerous duty, the Director has to make such decisions in light of the macro circumstances and needs of Hong Kong based on matters and information which could not be fully explained to or understood by the general public.

(3) It is not appropriate for the court to usurp the role of the Director as the court does not and cannot have a macro picture of the overall immigration pressure and the expertise to assess the potential political and socio-economical impact of a shift (no matter how minor it is) in the immigration policy. The court is not equipped with the necessary information nor tasked by the law to carry out the responsibility of the Director.

(4) This does not mean that the Director is above the law in the exercise the power of immigration control. The rule of law manifests itself by the court retaining a supervisory jurisdiction in such exercise of power. The supervisory power is exercised by the court in accordance with well established public law principles by way of judicial review. The court will ensure the Director’s exercise of power does not contravene the legal rights of the persons involved. Such rights can be rights protected by the Basic Law, the Hong Kong Bill of Rights or common law. The court can also examine whether the Director exercises the power in accordance with the relevant legislation. The court, as in the present appeals, can examine whether the Director acts in accordance with his own policy instead of misconstruing the same. These are instances of the intervention by the court on the principle of legality. Related to this principle, if the Director fails to take relevant consideration that he is legally required to consider into account, the decision would not be valid. Likewise, if the Director takes into account irrelevant consideration, namely consideration which he legally should not take into account, the decision would again be vitiated. At a later part of this judgment, we shall elaborate on what we mean by legally required to take into account or legally required not to take into account in terms of humanitarian considerations. Further, the court can also intervene if the Director does not act fairly in the decision making process. This is the principle of fairness. The requirement of fairness can call for intervention by the courts when the Director did not exercise independent judgment in the administration of a policy adopted voluntarily by him: C v Director of Immigration. Yet further, in an extreme case where the Director makes a decision which in public law terms can be described as Wednesbury unreasonable, the court can also interfere on the principle of rationality.

(5) A very important consideration in the application of the principle of legality in the Hong Kong immigration context is the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance (‘HKBORO’). The immigration reservation provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong or the application of such legislation. This reservation is constitutionally entrenched by Article 39 of the Basic Law: Ubamaka v Secretary for Security; GA v Director of Immigration; Rbani v Secretary for Justice. Absolute non-derogable fundamental rights aside (namely those protected by art 3 of the Bill of Rights), the Director’s exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.

(6) As discussed in a long line of cases, the Bill of Rights and the Basic Law do not give an applicant who has no right to stay in Hong Kong any right to pre-empt a decision by the Director in not granting him or her a right to remain in Hong Kong.

(7) The cases also established that a family member (who has the right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person: Hai Ho Tak v Attorney General; Santosh Thewe v Director of Immigration.

(8) When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so. If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration. In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.”

14. Ms Li SC for the applicants has fairly and rightly accepted that she could not challenge the Director’s adoption of such a restrictive overall immigration policy in the exercise of his discretion.

15. Third, under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within the confines of that broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong.  Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes.  These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors.[12] The Dependant Policy is one such specifically formulated policy.

16. As mentioned at paragraph 92(8) of the BI/BH CA Judgment, if the applicants do not fall within any of the recognised categories, it is up to the Director to decide whether to further consider exercising his discretion to grant the application on any humanitarian or compassionate grounds on an individual basis.  Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion under this if there are exceptional circumstances to justify it.  In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and if he decides not to so consider, that decision is generally not subject to judicial review.[13]  However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere his decision under these grounds on Wednesbury unreasonableness basis as the court must have regard to his wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy.  See the BI/BH CA Judgment, paragraphs 102 - 111.

17. Fourth, it is well established that when it is alleged that a decision-maker failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:

(1) matters which are clearly identified in the relevant legislation (expressly or implied) as considerations to which regard must be had (ie, mandatory considerations);

(2) matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

(3) matters to which the decision maker may have regard if, in his judgment and discretion, he thinks it right to do so (ie, discretionary considerations).

See: Wing on Co Ltd v Building Authority (1996) 6 HKPLR 432 at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037; recently referred to in BH v Director of Immigration (HCAL 105/2014, unreported, 15 April 2015,Chow J) at paragraph 64 (as approved by the Court of Appeal in the BI/BH CA Judgment, at paragraph 124).

18. Bearing these in mind, I would now proceed to examine each of the grounds of challenge.[14]

B3.  The Asserted Rights Ground

19. Under this ground, Ms Li has advanced her challenge on two fronts. First, it is said that the Director is required to take the Asserted Rights into account in considering the dependant visa application since these rights are engaged by the applicants as a matter of law.  Second, it is contended that the Dependant Policy is a policy to facilitate family reunion, and as such, the Asserted Rights are clearly relevant to the question of family reunion and the Director must take them into account as a matter of relevance.

20. In relation to the first contentions, the same arguments made in support thereof in this application have been considered and rejected by this court in its recent judgment in Pagtama v The Director of Immigration (HCAL 13, 45 and 56/2014, unreported, 12 January 2016) at paragraphs 58 - 188.  I concluded that the Asserted Rights are not engaged by the applicants as a matter of law.  The Director therefore is not obliged to take them into account. As stated in that judgment at paragraph 44, in rejecting those arguments, I had already taken into account supporting arguments raised in this judicial review.

21. In the premises, for the same reasons, I reject all the grounds raised in this judicial review on the basis that the Financial Sufficiency Requirement and Decisions are unlawful as the Director is legally obliged to take into account the Asserted Rights.

22. In relation to the applicants’ alternative arguments made in support of this ground, it is premised principally on Ms Li’s contentions that the Dependant Policy is to facilitate family reunion.  This is what I would turn to look at next.

23. Ms Li’s arguments under this ground in gist run as these: the Dependant Policy (despite its name) bears an objective and purpose to facilitate family reunion.  As such, it must be obviously relevant for the Director to take the Asserted Rights into account in considering whether he should approve the dependant visa application.  It is thus Wednesbury unreasonable for the Director not to consider these rights in making the Decisions.  The Financial Sufficiency Requirement is itself also Wednesbury unreasonable insofar as if it does not allow the Director to take into account the Assert Rights as relevant consideration.

24. On the other hand, it is the Director’s submissions and evidence that the Dependant Policy is not a family reunion policy.  It is a policy based on dependency with its purpose to allow recognised categories of close family members to remain when they require the care and financial support of their sponsors in Hong Kong.  It is a policy founded on humanitarian principles that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family to reside in Hong Kong with that member.[15]

25. The Dependant Policy is not a policy of family reunion has indeed been repeatedly recognised by the courts in Hong Kong in various decisions: Palmis v Director of Immigration (HCAL 2104/2001, unreported, 19 February 2003,Hartmann J); Murali Duraisamy v Director of Immigration (HCAL 152/2004, unreported, 2 November 2005, A Cheung J) at paragraph 20; Khan Kamran v Director of Immigration (HCAL 48/2005, unreported, 31 July 2006, Hartmann J) at paragraphs 45 - 46; Gurung Ganga Devi v Director of Immigration (HCAL 131/2008, unreported, 23 September 2009, Saunders J) at paragraph 31; BH v Director of Immigration, supra, at paragraph 67.

26. As observed by Hartmann J (as the learned NPJ then was) in Palmis, supra, at paragraph 23, “while one of the happy consequences of the scheme is the bringing together of family members, it is not, however, a policy of family reunion. The key issue to be determined by the Director is one of dependency not simply whether there exists a tie of blood or marriage”.  See also paragraphs 19, 21 - 28 of the judgment.

27. Although all the above judgments are first instance decisions, the Court of Appeal most recently in the BI/BH CA Judgment has authoritatively concluded that, on a proper construction in the context of restrictive immigration policy and by reference to evidence, the Dependant Policy is not a general family reunion policy but one based on dependency.  It is not a policy of family unity.  See paragraphs 55 - 66 and 68 - 73.

28. The Court of Appeal has explained in detail at paragraphs 55 ‑ 63 of the judgment as to why the Dependant Policy is not a family reunion policy (footnotes omitted):

“55. As a central, common theme running through his entire submissions, Mr Dykes repeatedly characterized the Dependant Policy as effectively a general open-ended family reunion policy. For example, in the context of its proper construction, he submitted that the Dependant Policy is driven by family reunion considerations. Thus the No Record Requirement is not a necessary condition. And in the context of the Director’s consideration of a DV Applicant’s family circumstances, since the Dependant Policy is a general open-ended family reunion policy, Mr Dykes reasoned, the Director is duty bound to do so.

56. With the greatest respect, this characterization of the Dependant Policy as a general open-ended family reunion policy is simply incorrect. It is flatly contradicted by the undisputed evidence contained in the affirmation of Mr Wilson Wong Mo Cheong, Principal Immigration Officer of the Immigration Department filed on 24 November 2014 in HCAL 105/2014 (‘Mr Wong’s Affirmation’). Mr Wong stated categorically the Director’s position thus :

‘20. At all material times, there has been no established guideline or policy that caters for a spouse, parent or relative of a Hong Kong resident or Hong Kong permanent resident, whether they are Chinese or foreign nationals, to enter or stay in Hong Kong for the purpose of family reunion. Accordingly, the situation falls to be determined by direct reference to Hong Kong’s overall strict immigration policy.

21. For reasons stated above, understandably, applications to remain in Hong Kong for family reunion, like other applications for permission to enter or stay in Hong Kong for immigration purposes other than those under the established guidelines and policies abovementioned, are generally refused by the Director in line with the overall restrictive and stringent immigration control policy.’

57. The following points in support of the Director’s position emerge from Mr Wong’s Affirmation.

58. First, while Hong Kong is a magnet for migration, and many people find it attractive to come to reside and work here, its capacity to accommodate new migrants is exceedingly limited. Dictated by physical and social-economic constraints such as Hong Kong’s small geographical size, huge population, relatively high per capita income and living standards, living and job market conditions, the Director has always adopted very restrictive and stringent immigration policies and practices.

59. Second, as an overall stringent immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. Within the confines of that board policy, the Director has formulated different immigration policies which allow a limited number of persons in different categories to come to Hong Kong for immigration purposes, such as working, studying, establishing or joining in any business, taking up residence as dependants or staying as a visitor (save for the applicable visa-free period for visitors). Within the overall scheme of the general stringent immigration policy, it is also the policy of the Director to ensure that Hong Kong will attract quality immigrants, that is, people with the right talent and skills to come to Hong Kong. This is reflected in the Director’s policy pertaining to :

(1) Employment as Professionals or Entry for Investment under the General Employment Policy;

(2) Immigration Arrangements for Non-local Graduates;

(3) Employment under the Admission Scheme for Mainland Talents and Professionals;

(4) Capital Investment Entrant Scheme; and

(5) Quality Migrant Admission Scheme.

60. Third, the Dependant Policy is one of the specific immigration policies formulated by the Director under the umbrella of the strict immigration control policy overall. It is the only established policy under which an applicant may apply for permission to reside in Hong Kong with one’s family.

61. Fourth, although one of the consequences of allowing a DV Application is to facilitate the DV Applicant to reside in Hong Kong with his family, the Dependant Policy is not a general family reunion policy as such. As presently formulated, the Dependant Policy is not primarily based on any specific consideration of ‘interests of the family as a whole’ and/or ‘interest of each of its members’ as general free-standing concepts. The key issue to be determined is dependency and not simply whether there exists a familial tie of blood or marriage. It is a policy that allows an applicant, who is genuinely dependent on the sponsoring family member’s maintenance, support and other requirements (emotional and material) to apply for permission to reside in Hong Kong.

62. The above considerations underpinning the Dependant Policy strongly militate against any notion that it is a general open-ended family reunion policy as advocated by Mr Dykes.

63. In our view, the fact that the Dependant Policy is not a general family reunion policy is clearly borne out by the relevant paragraphs in the Guidebook:

(1) Under Paragraph 2 of the Guidebook, the Dependant Policy does not apply to (a) Chinese residents of the Mainland (except they fall within the exceptions as stipulated); (b) former Mainland Chinese residents residing in Macao who have acquired residence in Macao through channels other than the One-way Permit Scheme; and (c) nationals of Afghanistan and Korea (Democratic People’s Republic of). If the Dependant Policy were a general family reunion policy, it would not have excluded all Mainland Chinese residents or former Mainland Chinese residents residing in Macao unless they fall within the exceptions in Paragraph 2(a) or (b), as the case may be, who are arguably the largest and indeed most natural group of potential applicants for family reunion in the Hong Kong context.

(2) The exclusion in Paragraph 2(c) plainly arises out of security concern.

(3) Under Paragraph 3, while a Hong Kong permanent resident or a resident who is not subject to a limit of stay may sponsor a DV Applicant, not every family member of his/hers is eligible to make the DV Application. Only those who fall within one of Paragraph (a), (b) or (c) are. This is wholly inconsistent with the Dependant Policy as a general family reunion policy.

(4) For a sponsor under Paragraph 4 of the Guidebook, who may be described loosely as ‘quality migrants’, only his/her spouse and his/her unmarried dependent child under the age of 18 may make a DV Application. Again, it runs contrary to the argument that the Dependant Policy is a general family reunion policy.

(5) Paragraph 15 stresses the need of an applicant, in meeting normal immigration requirements, to show that he has no likelihood of becoming a burden on the HKSAR. It ties in with the requirement in Paragraph 5(c) that the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong. The combined effect of these provisions ensures that a DV Applicant is genuinely dependent on the sponsor who is able to financially support him/her without becoming a burden on Hong Kong. The emphasis is clearly on dependency and not just family ties.” (emphasis added)

29. However, Ms Li for the applicants contends that, despite the BI/BH CA Judgment,it is still open to this court to come to a different conclusion on the construction of the nature and objective of the Dependant Policy.  Leading Counsel submits that the Court of Appeal’s said conclusion is decided and premised on the evidence filed in those cases.  However, there is evidence filed and revealed in the present case which shows objectively and clearly that the principal objective of the Dependant Policy is to facilitate family reunion.  This extra evidence was not before the Court of Appeal in BH and BI and the courts in all the above mentioned first instance authorities.

30. The extra evidence relied by Ms Li in the present case and its contended effect can be summarised as follows.

31. First, in the Legislative Council Brief (“the 2003 LegCo Brief”) dated 30 June 2003,[16] in setting out the Chief Executive in Council (“CEIC”)’s order in relation to the Dependant Policy, it stated, among others, the following:

“At the meeting of the Executive Council held on 24 June 2003, the Council ADVISED and the Chief Executive ORDERED that

(a) The existing assessment criteria under our immigration policy on the entry of dependants to take up residence in Hong Kong and the special treatment of certain categories of applicants on humanitarian or compassionate grounds should, with minor modifications, continue to apply (paragraphs 2 to 5 below);

…

4. Our review finds that, on the whole, the assessment criteria and special treatment of certain categories of applicants on humanitarian and compassionate grounds continue to strike the right balance between facilitating family unity and upholding immigration control….” (emphasis added)

32. Thus, Ms Li says paragraph 4 of this brief shows clearly that the CEIC in ordering the continuation of the Dependant Policy had in mind that the policy was to “facilitate family unity”.  The 2003 LegCo Brief therefore shows clearly that facilitation of family union must be a, if not the, primary objective of the Dependant Policy.

33. Second, the Dependant Policy is to facilitate family reunion had also been consistently stated expressly as the purpose of the policy in the annual reports (“the Relevant Annual Reports”) published by the Immigration Department over a number of years:

(1) In the 1998 - 1999 report, it is stated under the heading of “Entry of Dependants” that:

“Under the immigration policy, foreigners may be admitted into Hong Kong for the purpose of family reunion, that is, joining residents in Hong Kong as dependants. Moreover, foreigners who are granted visas for investment or employment in Hong Kong may bring in their foreign spouses and dependent children (unmarried and under the age of 21). Persons may be allowed to remain in Hong Kong as dependants on the condition that they are supported and provided with accommodation by their sponsors and that they will not be a charge on public funds. Dependants are free to take up employment or education in Hong Kong. In 1998-00, 19 000 dependant visas were issued.” (emphasis added).

(2) In the 1999 - 2000, 2000 - 2001 and 2001 - 2002 reports, similar statements were made under the “Entry of Dependants” heading.

34. Third, in these same annual reports and in the LegCo paper (“the 2014 LegCo Paper”) prepared by the Security Bureau in February 2014 for information for the Panel on Security of the Legislative Council,[17] it had also been stated that the OWP scheme allows and is to facilitate Mainland residents to come to Hong Kong “for family reunion” in an orderly manner.  Ms Li says this further supports that the proper context and objective of the parallel Dependant Policy (which concerns with the joining of foreigners other than Mainland residents with their Hong Kong resident spouses or parents) is similarly to facilitate family reunion.

35. Given all this extra evidence, Ms Li submits that this court is entitled to and should look at it afresh to construe the Dependant Policy despite the BI/BH CA Judgment.  Moreover, she says the following additional matters also show that it is open to this court to construe the Dependant Policy differently based on the evidence filed in this case:

(1) The Court of Appeal in BI/BH has expressly refused to look at the 2003 LegCo Brief as evidence for the purpose of construing the purpose of the Dependant Policy on the basis that it was not adduced at first instance (see paragraphs 64 - 65 of the judgment).  In the premises, Ms Li says the Court of Appeal’s conclusion on the construction of the Dependant Policy is made subject to further arguments to be raised in another case where the said evidence is introduced.

(2) It can be seen in this case that the proper authority laying down the policy is the CEIC (as demonstrated by the 2003 LegCo Brief) but not the Director.  On the other hand, in BIand BH, the Court of Appeal proceeded to construe the policy based on what was stated in the Guidebook, which is a document prepared by the Director.  It is a document reflecting only what the Director regards that policy is.  If the 2003 LegCo Brief does show, as the applicants contend, that the Dependant Policy as decided by the CEIC should be properly regarded as one with an objective of facilitating family reunion, this court cannot be bound by the BI/BH CA Judgment on its construction of the policy which was based only on the Guidebook.

36. Notwithstanding Ms Li’s above submissions, I do not accept that this court is not bound by the BI/BH CA Judgment in relation to its conclusion on the nature, purpose and objective of the Dependant Policy.  The proper construction of a policy is a matter of law (see the BI/BH CA Judgment, paragraph 68).  Further, as submitted by Mr Yu SC for the Director, the court must arrive at a “single meaning” when construing language which affects legal rights and duties (see: Shui Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 at paragraph 28).  In the premises, the Court of Appeal’s above construction as to the nature, purpose and objective of the Dependant Policy is binding on this court.  Ms Li’s submissions amount to asking this court to effectively conclude that the Court of Appeal’s judgment in this respect (which is a question of law) is wrong albeit based on additional evidence.  This, with respect, is not permissible.  Given that the extra evidence (ie, the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper) has been adduced in the present case, it is open to the applicants to persuade the Court of Appeal (if this case goes on appeal) that it should come to a conclusion different from the BI/BH CA Judgment in construing the Dependant Policy.

37. In the premises, as the Court of Appeal in BI/BH CA Judgment has rejected the contentions that the Dependant Policy is a family reunion policy with an objective and purpose of facilitating family reunion, it is not a relevant consideration for the Director to take into account the Asserted Rights in considering the present applications for a dependant visa.  In other words, it is not Wednesbury unreasonable for the Director not to take those considerations into account.  I would therefore reject this ground.

38. However, if I am wrong on the effect of the BI/BH CA Judgment andit is indeed open to me to consider the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper as relied on by the applicants, I would still conclude that, on a proper construction, the Dependant Policy is not a policy to facilitate family reunion.  My reasons are as follows.

39. What is the meaning of a policy is a matter for the court to construe it objectively in accordance with the language used and in its proper context, and should not be construed as if they were statutory or contractual provisions: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 18 ‑ 19; Wong Wei Man v The Amusement Games Centers Appeal Board (HCAL 775/2000, unreported, 2 November 2000) at p 11, per Stock J (as the learned NPJ then was).

40. As mentioned above, the Dependant Policy is a policy adopted under the overall restrictive immigration control.  Thus, all these documents must be considered against the context of the overall restrictive immigration control. Bearing this context in mind, I would first look at the 2003 LegCo Brief.

41. In the 2003 LegCo Brief, it records the CEIC’s order to continue the then “existing assessment criteria” under the existing Dependant Policy with some minor modifications.  These existing assessment criteria (and the related minor modifications) and their justifications are set out at paragraphs 1 - 5 of the brief as follows:

“INTRODUCTION

At the meeting of the Executive Council held on 24 June 2003, the Council ADVISED and the Chief Executive ORDERED that

(a) the existing assessment criteria under our immigration policy on the entry of dependants to take up residence in Hong Kong and the special treatment of certain categories of applicants on humanitarian or compassionate grounds should, with minor modifications, continue to apply (paragraph 2 to 5 below);

(b) the age limit for unmarried dependent children be lowered from under the age of 21 to under the age of 18 (paragraph 6 below).

(c) the age requirement for dependent parents be raised from aged 50 or above to aged 60 or above (paragraph 7 below);

(d) the current arrangement that, where a Hong Kong resident has more than one spouse residing outside Hong Kong, only one of them should be eligible to take up residence in Hong Kong as the sponsor’s dependant be continued (paragraph 8 below);

(e) for persons admitted into Hong Kong to take up employment or study in full-time undergraduate or post-graduate programmes in local degree-awarding institutions, or as capital investment entrants, their spouses and unmarried dependent children, but not their parents, be eligible to apply for entry to take up residence in Hong Kong as their dependants (paragraph 9 to 11 below);

(f) whilst the policy excluding Mainland residents from entering Hong Kong as dependants should be continued, such an exclusion should not apply where the sponsors have been admitted into Hong Kong to take up employment or full-time tertiary study under schemes or arrangements catering for Mainland residents. Furthermore, the present prohibition precluding such sponsors to bring in their overseas dependants, where any, should be discontinued (paragraphs 12 to 13 below);

(g) the policy excluding the dependants of foreign domestic helpers and workers admitted under any Importation of Labour Scheme from residing in Hong Kong as dependants be continued (paragraph 14 below);

(h) there continues to be a need to exclude nationals or residents of specific countries and regions on security or immigration control grounds, with the need to be assessed by our security and immigration experts from time to time (paragraph 15 to 16 below);

(i) dependants of persons granted entry into Hong Kong to take up employment or study or as capital investment entrants should be required to apply for permission from the Director of Immigration to take up employment in Hong Kong. Such applications should be considered on the basis of criteria similar to those under the General Employment Policy (paragraphs 17 to 20 below); and

(j) the changes proposed above should be implemented in July 2003 and that, as transitional arrangements, such changes should only apply to applicants whose applications reach the Director of Immigration on or after the implementation date. (paragraph 21 below)

JUSTIFICATIONS

(A) Assessment Criteria and Special Treatment on Humanitarian or Compassionate Grounds

2. Under our current dependant policy, Hong Kong residents, unless specific exclusions apply, may sponsor applications made by their spouses, unmarried dependent children and parents, for permission to reside in Hong Kong as their dependants. Such applications will be considered provided that the following criteria are met –

(a) the bona fides of the applicant and the sponsor, and the genuineness of their relationship, are not in doubt;

(b) the sponsor is not subject to any limit of stay (i.e. Hong Kong permanent residents, residents with right to land and residents with unconditional stay) or has been permitted to remain to take up employments in his or her own right;

(c) there is no security objection to the application, including that the applicant has no known record serious crime; and

(d) the applicant will not become a burden on Hong Kong, and that the sponsor is able to support the applicant’s living at a standard well above subsistence level and provide the applicant with suitable accommodation in Hong Kong.

3. Our dependant policy also takes into account humanitarian and compassionate considerations and accords special treatment to certain categories of people so that they may also apply for entry as dependants. They include –

(a) widows of any age or widowers over the age of 50 wishing to join their nearest or only surviving relatives who are resident in Hong Kong; and

(b) where there are strong humanitarian or compassionate grounds, to be considered on a case by case basis –

(i) unmarried adult children; and

(ii) other relatives.

4. Our review finds that, on the whole, the assessment criteria and special treatment of certain categories of applicants on humanitarian and compassionate grounds continue to strike the right balance between facilitating family unity and upholding immigration control. Minor modifications are, however, necessary to enable persons admitted to study in full-time undergraduate or post-graduate programmes offered by local degree-awarding institutions or as capital investment entrants to act as sponsors for their dependants. The former will help to promote Hong Kong as a regional centre of tertiary education, whilst the latter is a straightforward adjustment to tie in with the new Capital Investment Entrant Scheme to be introduced shortly.

5. Insofar as the special treatment on humanitarian and compassionate grounds is concerned, the review finds the imposition of an age requirement on widowers but not on widows a differential treatment that is difficult to justify.  We consider that both widows and widowers should be subjected to the same requirement of age 60 or above before they are eligible for special treatment as dependants.”

42. Properly construed in the context of the overall restrictive immigration control, it is clear to me that the Dependant Policy as described in the 2003 LegCo Brief is premised on dependency but not facilitation of family reunion.  I will explain why.

43. First, the use of the words “dependant policy” by the CEIC to describe the policy points towards the objective intention that the policy is one based on dependency but not family reunion.

44. Second, it must be noted that the 2003 LegCo Brief is in relation to an order made by the CEIC in 2003 to continue the then “existing assessment criteria” under the then existing Dependant Policy with some minor modifications.  It can be seen immediately that in describing these criteria and the modifications thereof, the LegCo Brief invariable qualifies or describes the applicants with the word “dependent”. For examples, at paragraph 1(b), it describes the unmarried children as “dependent children”, at paragraph1(c), it describes the parents as “the dependent parents”, and at paragraph 1(d), it describes the spouse as the “sponsor’s dependent”.  These again show clearly and objectively that the policy fundamentally concerns with the dependency between the applicant and the sponsor but not the family relationship.

45. Further, paragraphs 2 to 5 of the 2003 LegCo Brief set out the “Assessment Criteria and Special Treatment on Humanitarian and Compassionate Grounds” under the Dependant Policy and their justifications.  The criteria set out at paragraph 2(a), (c) and (d) are in substance the same criteria set out at paragraph 5 of the Guidebook (see the above quote), where paragraph 2(b) is effectively the same as the introductory and qualification provided in the opening sentence of paragraph 3 of the Guidebook (also see the above quote).  These criteria have been considered by the Court of Appeal in the BI/BH CA Judgment.  The Court of Appeal explains at paragraph 63 why these criteria clearly show that the Dependant Policy is not a family reunion policy but one premised and focused on dependency:

“63. In our view, the fact that the Dependant Policy is not a general family reunion policy is clearly borne out by the relevant paragraphs in the Guidebook:

(1) Under Paragraph 2 of the Guidebook, the Dependant Policy does not apply to (a) Chinese residents of the Mainland (except they fall within the exceptions as stipulated); (b) former Mainland Chinese residents residing in Macao who have acquired residence in Macao through channels other than the One-way Permit Scheme; and (c) nationals of Afghanistan and Korea (Democratic People’s Republic of). If the Dependant Policy were a general family reunion policy, it would not have excluded all Mainland Chinese residents or former Mainland Chinese residents residing in Macao unless they fall within the exceptions in Paragraph 2(a) or (b), as the case may be, who are arguably the largest and indeed most natural group of potential applicants for family reunion in the Hong Kong context.

(2) The exclusion in Paragraph 2(c) plainly arises out of security concern.

(3) Under Paragraph 3, while a Hong Kong permanent resident or a resident who is not subject to a limit of stay may sponsor a DV Applicant, not every family member of his/hers is eligible to make the DV Application. Only those who fall within one of Paragraph (a), (b) or (c) are. This is wholly inconsistent with the Dependant Policy as a general family reunion policy.

(4) For a sponsor under Paragraph 4 of the Guidebook, who may be described loosely as ‘quality migrants’, only his/her spouse and his/her unmarried dependent child under the age of 18 may make a DV Application. Again, it runs contrary to the argument that the Dependant Policy is a general family reunion policy.

(5) Paragraph 15 stresses the need of an applicant, in meeting normal immigration requirements, to show that he has no likelihood of becoming a burden on the HKSAR. It ties in with the requirement in Paragraph 5(c) that the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong. The combined effect of these provisions ensures that a DV Applicant is genuinely dependent on the sponsor who is able to financially support him/her without becoming a burden on Hong Kong. The emphasis is clearly on dependency and not just family ties.”

46. In my view, the same observations and reasoning apply mutatis mutandis to the construction of the policy even based on the 2003 LegCo Brief.

47. Third, under the policy as described and explained in the 2003 LegCo Brief, it also similarly limits its scope only to those applicants who are the spouse, unmarried children under 18 years old and parents of above 60 years old of the Hong Kong sponsors.  Again, as said by the Court of Appeal at paragraph 63(3) of the BI/BH CA Judgment, these limitations point against construing the policy to be a family union policy.

48. Fourth, as the CEIC in the 2003 LegCo Brief was only to order the continuation of the then current Dependant Policy (with some modifications), one should objectively assume that when the CEIC referred to the then “current dependency policy”, it was aware of the then position taken by the Director (as recognised and accepted by the court in Palmis) that the Dependant Policy was one which was based on dependency but not to facilitate family reunion.  If the CEIC had intended (as the applicants now seek to argue) the policy to be a family reunion policy, one would have expected the CEIC to clarify that position in this LegCo Brief in seeking to continue that policy.  There is nothing to that effect in the 2003 LegCo Brief.  As such, it must be regarded that the CEIC agreed with the Director’s understanding as to the nature and character of the Dependant Policy.

49. The 2003 LegCo Brief in stating that “the assessment criteria and special treatment of certain categories of applicants on humanitarian and compassionate grounds continue to strike the right balance between facilitating family unity and upholding immigration control” must be understood against all the above.  When so properly understood, that statement is consistent to mean as what Hartmann J had said in Palmis that the policy had the “happy consequence” of bringing (and thus facilitating) family reunion, but that was not the purpose of the policy.

50. In the premises, properly construed in context, the 2003 LegCo Brief shows consistently that the purpose of policy is to allow a foreign applicant who can show the necessary dependency on the Hong Kong sponsor to come to Hong Kong to join the sponsor as dependant.  It is not the purpose or the objective of the policy to “facilitate” family reunion.[18]

51. For these same reasons, the statements made by the Immigration Department in the Relevant Annual Reports are equally consistent with the above construction.  In other words, when it is stated that under the policy, “foreigners may be admitted into Hong Kong for the purpose of family union” to join as dependants the Hong Kong sponsors, it was referring only to the foreigners’ purpose in making the application and the consequence of a successful application, but not the policy’s own purpose or aim.  This is also borne out by the Chinese version which says “外國人可基於與親屬團聚的目的，以受供養人士的身份獲准來港依親” (emphasis added).

52. Insofar as the applicant’s arguments based on the OWP scheme are concerned, the OWP scheme is clearly an entirely independent regime separate and different from this policy.  It is in fact a scheme operated by the Mainland Authority but not the Director.[19]

53. Thus, one cannot simply say that the two schemes must have the same or similar objective and purpose.

54. Quite to the contrary, as observed by the Court of Appeal at paragraph 63(1) of the BI/BH CA Judgment, the existence of a separate and independent OWP scheme to deal with Chinese residents of the Mainland as applicants to enter to join their family members in Hong Kong in fact supports the construction that the Dependant Policy is not a family reunion policy.

55. Similarly, the 2014 LegCo Paper in stating that the OWP scheme allows and is to facilitate Mainland residents to come to Hong Kong “for family reunion” in an orderly manner does not support the applicants’ contention that the Dependant Policy, which is an entirely different scheme, is also for family reunion.

56. In the premises, even if I have to consider the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper, I am not persuaded that on a proper and objective construction, it is the purpose of the Dependant Policy to facilitate family reunion.  I would therefore still reject the applicant’s contentions that the Director should take into account the Asserted Rights as relevant considerations as the Dependant Policy is to facilitate family reunion.

57. For all the above reasons, I reject the Asserted Rights Ground.

B4.  The Discrimination Ground

58. Under this ground, the applicants contend that the Financial Sufficiency Requirement is unlawful as it results in discriminatory effect amongst Hong Kong permanent residents in marital status with a foreign national.  The alleged discriminatory effects[20] (as summarised in the applicants’ skeleton) are as follows:

(1) A Hong Kong permanent resident on CSSA would very likely be treated by the Director as being unable to secure permission for his or her foreign spouse to take up residence in Hong Kong as dependant, with the practical consequence or effect of compelling the Hong Kong permanent resident to leave Hong Kong in order to be with his or her spouse or to remain in Hong Kong without the spouse.  This is so even if the foreign spouse could be financially self-sufficient if admitted adding no further burden to public resources (and may even be in a position to support the Hong Kong permanent resident spouse out of dependency on social welfare).

(2) However, a Hong Kong permanent resident who marries a Mainland Chinese resident who has secured a OWP to come to Hong Kong to settle is not required to show financial dependency.  The Hong Kong permanent resident may be on CSSA and living in public or private housing on rent allowance.

(3) A Hong Kong permanent resident woman who marries a foreign national is greatly disadvantaged as a sponsor of her husband due to her child caring responsibility as a mother.  The net effect is that such a sponsor is more likely to be unable to meet the Financial Sufficiency Requirement.

59. With respect, there is nothing in this ground.

60. First, the applicants asserting discrimination should first show that the persons in relevantly comparable situations face differential treatment.  Once that is shown, then it is for the authority to justify the differential treatment.  See: Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at paragraphs 19 - 22, per Li CJ, as further explained in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 58 - 59, per Ma CJ.

61. The applicants in the present case first seek to show prima facie comparable situations by principally contending that this specific policy is “the vehicle for giving effect to the rights of Hong Kong permanent residents guaranteed by Article 37 of the Basic Law” to marry and raise their family freely.  Built in this contention is the applicants’ argument that Article 37 of the Basic Law provides a right to family and thus reunion of the family members in Hong Kong.  However, this principal argument on the nature and effect of Article 37 has been rejected repeatedly by the courts and most recently again by this court in Pagtama at paragraphs 74 - 98. Further, as I have concluded above, the policy is also in any event not to facilitate family reunion, the submissions that the policy is a vehicle to realise the contended rights under Article 37 are therefore in any event not correct.

62. In relation to the applicants’ specific reference to the comparison based on the OWP scheme to support the claim of discrimination, as I have also said above, the Dependant Policy which is premised on the showing and proving of dependency is an entirely separate and different scheme from the OWP scheme. 

63. The Dependant Policy and the OWP schemes are thus simply two different schemes with different nature and objective, and are to serve different and distinct purposes.  There are no meaningful and relevant comparisons that can be made to support any contentions of discrimination by reason of differential treatment.

64. Further, and in any event, even if (which I do not accept) there is relevantly differential treatment requiring justification, I agree with the Director’s following submissions that the requirement has been clearly met:

(1) It is entirely open to the Government in setting and maintaining the Dependant Policy to insist upon true financial dependency on the part of the applicant and sufficient financial capability on the part of the sponsor.  This is proper and rational given Hong Kong’s special geographical, economic and social circumstances, which have long been accepted by the Hong Kong courts as compelling close immigration control.  Hong Kong’s capacity to accept new immigrants is an extremely limited resource.  It is for the Government to determine how and when that limited capacity should be utilised in the interest of the community.  This is precisely why the courts have repeatedly recognised that “a restrictive policy of immigration” is “both legitimate and rational”: the BI/BH CA Judgment, at paragraphs 70 and 92; Palmis, supra,at paragraph 19; Hai Ho Tak v Attorney General [1994] 2 HKLR 202 at 208, per Mortimer JA and 209, per Nazareth JA.

(2) Any policy of restriction of immigration into Hong Kong means, inevitably, the drawing of lines of access by the setting of requirements of eligibility.  It is well-established that the executive or legislature may adopt a general rule (provided that it is justifiable) even though this will or may have a detrimental effect on individuals in hard cases, or may potentially give rise to anomalies in specific cases.  Otherwise legal certainty would need always to give way to discretion.  See eg, Lord Bingham for the House of Lords in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312, paragraph33:

“A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial”.

And similarly: Gurung Deu Kumari, supra, at paragraph 24 and Fok Chun Wa, supra, at paragraph 71.

(3) Here, the Government has drawn a line by reference, among others, to the financial dependency of putative applicants and the financial sufficiency of putative sponsors, bearing in mind Hong Kong’s finite social and economic resources.  It is trite that the Government is to be accorded a very wide discretionary area of judgment in setting immigration policy.  Insofar as the policy lines are set, as they have been in the present context, by reference to socio-economic factors, the legal threshold for judicial interference is the one endorsed by the Court of Final Appeal in Fok Chun Wa, supra, at paragraph 75, that is, the line drawn must be “manifestly without reasonable foundation”.

(4) As Ma CJ made clear in Fok (itself a case involving alleged infringement of Article 25 of the Basic Law), the mere fact that some less stringent measure or rule could conceivably be adopted is irrelevant.  Ma CJ endorsed (at paragraph 75(4)) the statement of McLachlin J (as the learned CJ then was) in RJR–McDonald Inc v Attorney General of Canada [1995] 3 SCR 199 that “If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement.” (emphasis added).  Indeed, as noted at Fok at paragraph 75(6), “a judge would be unimaginative indeed if he could not come up with something a little less ‘drastic’ or a little less ‘restrictive’ in almost any situation”.

65. In this respect, it is also pertinent to note that in Santosh Thewes v Director of Immigration [2000] 1 HKLRD 717, it included a challenge to the Dependant Policy based on Article 25 of the Basic Law (equality of the law protection) and alleged discrimination arising from withholding of visas by reference to the income level of the Hong Kong permanent resident spouse.  In refusing leave to apply under this ground, Stock J (as the learned NPJ then was) held at 720G - J as follows:

“Article 25 … provides that all Hong Kong residents shall be equal before the law. It is said that if the Director of Immigration declines to enable reunion of spouses on the grounds of inability to support a spouse financially, that he then discriminates between those of upper and middle income brackets on the one hand, and those less financially advantaged on the other. I am satisfied that the point is without any merit in law. I shall not go into the question whether equality before the law as contemplated by that article embraces situations such as the present, but assuming for present purposes that it does, there is a cardinal distinction between discrimination on the one hand and, on the other, distinctions which have objective justification. Immigration regimes worldwide, and for reasons too obvious to have to mention, are wary about letting in as residents those who might become a burden on state resources, or those who might unfairly take up jobs at the expense of the permanent residents of the host country. There is clear objective justification for such a policy and it does not, in my judgment, begin to constitute unequal treatment of the kind to which Article 25 refers.”

66. I respectfully agree with Stock J’s said observation and reasons.

67. I therefore also reject the Discrimination Ground.

B5.  The Making of Own Family Financial Arrangement Ground

68. Ms Li’s summarises her submissions in support of this ground at paragraph 17 of her skeleton as follows:

(1) Foreign spouses who are not in a position of financial dependency and are able to live and able to support themselves and who would not place any additional burden on public resources if they come to live in Hong Kong.

(2) Foreign spouses who are self-sufficient themselves and would bring self-sufficiency to the family, if they come to live in Hong Kong.

(3) Hong Kong permanent resident family members who are actually wholly dependent on the public revenue and who have no prospect of being financially independent are precluded from sponsoring a close relative who could if resident in Hong Kong work and support the family.  These restrictive provisions are also inconsistent with the purpose of preventing applicants for admission becoming a charge on public funds.

69. I also reject these contentions.

70. It must be remembered that the Dependant Policy is, as concluded above, a policy based on the showing of dependency of the foreign applicant on the Hong Kong sponsor.  It is not a family reunion policy.  Thus, properly analysed, this ground is in effect similarly premised on the same arguments that the Director as a matter of law (whether by reason of legal obligation, relevance or reasonableness) should take into account the family rights of the applicants and the sponsors (in this respect, these rights include the right to make their own financial arrangements as a family) when making a decision under the Dependant Policy.

71. I have already rejected in the above any general reliance on the family rights.  The fundamental underlying premise of this ground therefore goes (see also paragraph 73 of the BI/BH CA Judgment).

72. Further, given the context of strict immigration control, it must be legitimate for the CEIC or the Director to impose the Financial Sufficiency Requirement in the Dependant Policy (which is premised on showing dependency) to require that an applicant does not have the likelihood of becoming a burden on Hong Kong.  Cf: BI/BH CA Judgment, paragraph 63(5).  In the premises, there is no question of this requirement being Wednesbury unreasonable and thus unlawful because it does not permit the consideration of the purported family unit’s right or ability to make its own financial sufficiency arrangements.

73. This ground also therefore fails.

B6.  The Misapplication of Policy Ground

74. As mentioned above, the Financial Sufficiency Requirement is set out under paragraph 5(c) of the Guidebook.

75. It is common ground that the Director concluded that the 1^st applicant was ineligible for the Dependant Policy once he came to the view that the Financial Sufficiency Requirement was not met.  The applicants now contend that the Director in treating this requirement as an ineligibility criterion under the Dependant Policy had misconstrued and thus misapplied it.  They submit that this requirement on a proper construction is not an ineligibility criterion.  The same submission in relation to the effect of the No Record Requirement under paragraph 5(b) of the Guidebook was accepted at first instance by Zervos J and Chow J respectively in BI[21]and BH.[22]

76. However, the Court of Appeal has in the BI/BH CA Judgment reversed Zervos J and Chow J’s said ruling and concluded (at paragraphs 74 - 90) that, on a proper construction under the general context of strict immigration control and specifically the purpose of the Dependant Policy, all the three requirements provided under paragraph 5 of the Guidebook are eligibility requirements.

77. In the premises, pursuant to the Court of Appeal’s judgment, the Financial Sufficiency Requirement is an eligibility requirement.  This construction is binding on this court.  The applicants’ reliance on the extra evidence in this case would not affect the Court of Appeal’s reasoning in arriving at that construction (see paragraphs 36 to 56 above).

78. There is therefore no misapplication of the policy by the Director in treating this requirement as an eligibility one.  I therefore reject this ground of challenge.

B7.  The Legitimate Expectation Ground

79. The underlying bases of this ground are that the Dependant Policy is to facilitate family reunion and the Director as a matter of law should take into account the Asserted Rights in considering an application made under the Dependant Policy.  Hence, it is legitimate for the applicants to expect the Director to do so.

80. Since I have in the above already rejected those contentions that underline the arguments of legitimate expectation, this ground must similarly fail.

B8. The Relevant and Irrelevant Considerations Ground

81. Ms Li in substance argues that the Director when considering the compassionate and humanitarian grounds failed to relevantly take into account (a) the family circumstances of the applicants, and (b) the hardship on the children and the 2^nd applicant if the 1^st applicant is not allowed to stay in Hong Kong with them as a family.  In relation to the latter factor, Ms Li relies on the authority of Singh v Secretary for Security (1996) 6 HKPLR 440 to support the proposition that it is relevant for the Director in exercising his discretion under this ground to consider and balance the hardship to be suffered by the family in deciding whether to approve the 1^st applicant’s application for right of residence in Hong Kong.

82. Insofar as the first complaint is concerned, in the present case, the evidence of the relevant internal minutes of M8 (for the 1^st Decision) and M3 (for the 2^nd Decision) show clearly that the Director did take into account the family circumstances of the applicants, including the 1^st applicant’s own proposition that he was able to support himself, the position of the children, the facts that the applicants are all able bodied and that the 1^st applicant is a Mali national who was entitled to visit Hong Kong for 14 days without a visa.  It was only after taking full account of all the circumstances and the representations made by the 1^st applicant’s lawyers that the Director decided there were no sufficient exceptional grounds to warrant a departure from the existing policy.

83. Bearing in mind the principles and approach set out in paragraphs 16 - 17 above, I am satisfied by the evidence that the Director did take into account the factors relating to the family circumstances of the applicants before making the Decisions.  Further, in giving regard to the wide discretion of the Director and the context of whether there should be exceptional treatment against a stringent immigration control, it certainly cannot be said that the Director’s decision not to exercise the discretion despite all the circumstances of the applicants is one that no reasonably person in the position of the Director would have come to.

84. In relation to the second complaint regarding hardship, the Court of Appeal in the BI/BH CA Judgment has observed at paragraphs 110 - 112 that Singh v Secretary for Security (which concerns a challenge of a deportation order) can be distinguished from a case (as in the present) concerning the Director’s consideration of humanitarian grounds under an application for residence in Hong Kong.  I respectfully adopt the same observations here and do not find the case of Singh v Secretary for Security of any assistance in this case.

85. In any event, the context of such consideration is whether there are exceptional humanitarian or compassionate circumstances to justify a departure from the policy.  In this regard, it is helpful to remind ourselves what the Court of Appeal has said at paragraph 109 of the BI/BH CA Judgment as follows:

“109. In cases where the Director did give regard to humanitarian consideration, it would be unlikely that the Director did not take the relevant consideration into account. Once it is appreciated that as a matter of Hong Kong law there is no legal basis to say that the family tie or connection should be given higher priority over other considerations in the exercise of immigration control, a court could not infer that the Director did not take family tie or connection into account simply because a decision was adverse to such consideration. The documentations in the file would usually reflect that the Director has given consideration to the family tie or connection of an applicant and his family members: see the Court of Appeal’s judgement in Safder Tehseen; and the decision of the Appeal Committee in the same case. As we shall explain below, the real issue in the present appeals (as in most cases) is whether the applicants could challenge the decisions of the Director in terms of procedural fairness or alternatively Wednesbury unreasonableness.”

86. As I said above, the evidence shows that the Director had considered the family circumstances of the applicants in the present case.  One cannot simply infer that, because of an adverse decision, the Director did not take into account the relevant considerations, including any potential hardship on the family.[23]  In particular, as observed by the Court of Appeal in the BI/BH CA Judgment at paragraph 119, in the context of a Wednesbury unreasonableness challenge in this respect, the law does not require the Director to explain at length why the family circumstances could not prevail over other general considerations in making out a case for exceptional treatment.

87. The applicants also further say that removing the 1^st applicant from Hong Kong would amount to cruel, inhuman or degrading treatment because of the various likely financial, emotional and adaptation difficulties the applicants would face if they had to say live in Ghana or Mali.[24] They say this must be relevant to the consideration of whether there exist exceptional humanitarian circumstances but the Director also failed to take this into account.

88. However, these allegations are only first raised in this judicial review and were never mentioned to the Director during the visa applications.[25]  The burden is on the applicants to raise all the relevant matters they seek to rely on to persuade the Director to exercise his discretion to permit the 1^st applicant to stay in Hong Kong.  It must be reasonable for the applicants to anticipate that, if the visa application failed, there would be a good chance that the 1^st applicant would have to return to Ghana or Mali and the possibility that the other applicants may join him if they wish to be together.  In the premises, if they believed that returning to Ghana would result in them facing all those purported difficulties, it must be for them to mention these concerns to the Director.  If they did not do so, it is not open to them to rely on these matters only now in this judicial review to challenge the Decisions.  See: Gurung De Kumari, supra, at paragraph 29; Sukhmander Singh v Permanent Secretary for Security (CACV 370/2005, unreported, 20 July 2006, Ma CJHC, Stock JA and Sakhrani J) at paragraph 18 per Stock JA (as he then was); Smart Gain v Town Planning Board (HCAL 12/2006, unreported, 6 November 2007,A Cheung J) at paragraphs 86 - 89; Marilyn G Aringo v Director of Immigration (HCAL 96/2004, unreported, 5 September 2005,Hartmann J) at paragraph 38.

89. For these reasons, I do not agree that the Director failed to take into account relevant considerations in arriving at the Decisions.

90. The applicants’ complaint of the Director taking into account irrelevant consideration runs as follows.

91. The evidence[26] shows that in considering whether there were exceptional circumstances to justify a departure from the policy, the Director took into account the fact that the 1^st applicant was born in Ghana, and had been all along living in Ghana.  Thus, the Director did not anticipate that the 1^st applicant would not encounter any difficulties for returning to his home country.  Further, the Director noted that the 1^st applicant (as a Malian passport holder) is entitled to visit Hong Kong without a visa for 14 days which could facilitate him to visit his wife and family.

92. The applicants now say the consideration that the 1^st applicant had been able to and thus could live elsewhere is an irrelevant factor for the exercise of discretion under the exceptional humanitarian ground.

93. I am unable to agree.

94. This factor falls within the category of discretionary consideration as mentioned in paragraph 17 above.  Thus, the applicants can only succeed in this challenge if it can be shown that it is Wednesbury unreasonable for the Director to take this factor into consideration.

95. In my view, this factor must be within the range of reasonable considerations that the Director could take into account to see if there are any exceptional humanitarian grounds to justify a departure from the policy. In fact, given the fact that the 1^st applicant has been in Hong Kong for a significant time, in the context of considering whether there are exceptional humanitarian grounds, it cannot be said to be Wednesbury unreasonable for the Director to consider whether the 1^st applicant could return and adapt to his home country if not allowed to stay in Hong Kong and whether then he could still come to visit his family members on a regular basis.

96. I therefore also reject this complaint.

97. This ground of challenge must also fail.

B9.  Procedural Irregularities Ground

98. The applicants’ complaints of procedural unfairness are that:

(1) The Director had not informed the 1^st applicant what would amount to supporting a standard of “well above the subsistence level” in the circumstances of their case, so that they could address the matter appropriately.

(2) The Decisions are inadequately reasoned.

99. I do not accept these complaints.

100. The question of whether there is procedural unfairness must always be determined in context.

101. In relation to the first complaint, the ordinary meaning of “subsistence level” is a standard of living providing only the bare necessities of life sustaining.[27]  The term “a standard well above the subsistence level” could clearly be understood in this context to mean a level significantly or appreciably above the “subsistence level”.  Given these ordinary meanings, I cannot see how it can be said that the 1^st and 2^nd applicants would be unable to understand that, under this requirement, they had to demonstrate to the Director that the 2^nd applicant as the sponsor would be able to support the 1^st applicant to a living standard that is appreciably or significantly above the standard of having basic necessities only.

102. Insofar as if Ms Li’s submission is to the effect that the applicants should be in fact told by the Director what would be the evidence and materials that they needed to provide to satisfy this requirement, this cannot be right.  The burden is on the applicants to provide sufficient evidence to satisfy the requirement, but not for the Director to teach them how to do so.  See: Marilyn G Aringo, supra, at paragraph 38; Pagtama, supra, at paragraph 214.

103. I therefore reject this complaint.

104. Insofar as the complaint for lack of reasons in the Decisions is concerned, I am equally not convinced that there is substance in it.  My reasons are as follows.

105. In the letter dated 9 April 2013 of the Director in informing the 1^st applicant the 2^nd Decision (which is effectively a reconsideration afresh of the dependant visa application which was rejected first under the 1^st Decision), the 1^st applicant was informed that his application was unsuccessful because (a) he did not come within the Dependant Policy as he could meet the Financial Sufficiency Requirement; and (b) there were also no exceptional circumstances to justify the Director’s exercise of discretion to depart from this policy (see the quote of the letter at paragraph 7 above).

106. In my view, the letter contains adequate reasons for the present purpose.  As rightly submitted by Mr Yu:

(1) As A Cheung J observed in the town planning context in Smart Gain, supra, at paragraph 30 (quoting Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953), reasons “can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision”.

(2) Even in the context of a decision of the Immigration Tribunal, the applicable duty is only to give “outline reasons” sufficient to show what issues the Tribunal was directing its mind to and the evidence for its conclusions: see Li Fu Shan v Director of Immigration [2002] 4 HKC 284 at paragraph 49, per Hartmann J.

(3) Moreover, as further noted at paragraph 30 of Smart Gain “a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” (emphasis added)

(4) In the present case, there is no basis to contend that the Director’s reasons were excessively brief so as to genuinely and substantially prejudice the applicants.  Indeed, in raising their various other grounds of complaint, the applicants have had little difficulty in identifying the Director’s reasons for the purposes of their criticism.

107. In any event, having regard to the disclosure now of the internal minutes M8 and M3 and the affirmation evidence of Mr Wong Chau Ping filed by the Director in this judicial review, the basis of the Director’s decision is clear.  Even if I were of the view that the original letters containing respectively the 1^st and 2^nd Decisions did not contain sufficient reasons, I would not have exercised my discretion to grant any relief in this judicial review on this basis alone as it would be entirely academic.  See: HKTVN v CEIC [2015] 2 HKLRD 1035 at paragraphs 101 - 102.

108. In the premises, the applicants also fail in the challenges based on procedural impropriety.

B10.  Conclusion on the grounds of challenge

109. For all the above reasons, I do not accept any of the grounds of judicial review in this application.

C. DELAY

110. Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made promptly after the relevant decision is made, and in any event not later than three months thereafter.  The court retains a power to extend time, but that power is only to be exercised if “good reason” is shown.

111. The 1^st and 2^nd Decisions are respectively made in July 2011 and April 2013.  The applicants only applied for leave to apply for judicial review in April 2014.  There is thus respectively a substantial delay of almost three years and one year in challenging respectively these decisions.

112. The Director now opposes the grant of leave on the basis of delay, and submits that no extension of time shall be granted to the applicants as there are no good reasons to do so.

113. Ms Li however first submits that as a matter of legal principle, it is not open to the court to entertain at the substantive hearing of a judicial review any application to set aside leave on the basis of delay.  Leading counsel relies principally on the authority of R v Criminal Injuries Compensation Board, ex p A [19990] 2 AC 330 at p 341.

114. I do not accept Ms Li’s submissions.  The Court of Appeal in dealing with a similar contention has now confirmed BI/BH CA Judgment at paragraphs 134 - 139 that the court does have jurisdiction to deal with such an application at the substantive hearing of a judicial review, and it is a matter of case management for the court to decide whether to do so in the circumstances of each case.  The Court of Appeal does however emphasise that generally speaking it is preferable to have such an application dealt with promptly.

115. In relation to the present case, leave was granted on 30 June 2014 and the Director filed his full evidence in opposition about three months later on 23 September 2014.  Given that full evidence has already been filed fairly soon after leave, and the court in determining whether to extend time for a delayed application may have to examine the merits of the applicant’s substantive challenge deeper than the standard applicable to granting leave,[28] I am satisfied that as a matter of case management, it is convenient and appropriate in the present case to hear the setting aside leave application at the same time of the substantive hearing.  This is particularly so as, given the various grounds of challenges raised in this judicial review, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Director’s full evidence.  Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing).

116. I would now proceed to look at the setting aside application.

117. The principles governing the extension of time in this respect have been usefully set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45. These are not in dispute and have been helpfully summarised by Mr Yu in his skeleton as follows:

(1) Although Order 53, rule 4(1) of the Rules of the High Court sets down a three month limit, the primary requirement is promptness.  The applicant cannot wait until the three month period is drawing to a close before springing into action.

(2) Unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made.

(3) While the court has power under Order 53, rule 4(1) of the Rules of the High Court to extend time, the power is only to be exercised if “good reason” is shown.

(4) The following factors are likely to be significant in assessing whether there is good reason for time extension:

(a) The length of delay.  The longer the delay, the more cogent the reason required for extending time.

(b) Whether there is a credible and valid explanation for the delay.

(c) The merits of the substantive application.  In this regard it is important to recall Litton NPJ’s statement in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B - C that where an applicant is many months late, leave may be refused “however strong the complaint might otherwise be”.  See also Hartmann J (as he then was) in Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006 at paragraph 13.

(d) Prejudice (to the applicant if extension refused; to the authority if extension allowed).

(e) Whether the application raises question of general public importance and whether those issues are likely to have to be resolved by the courts in any event.

See: the recent endorsement of this approach on the question of delay by the Court of Appeal in AW v Director of Immigration, supra, at paragraph 1, per Lam VP, and paragraphs 23 - 36, per Kwan JA.

118. The applicants’ explanations of the delay and justification for extension of time have been summarised by Ms Li in her skeleton as follows:

(1) The applicants applied for legal aid promptly after knowing the Director’s Decisions and seeking legal advice; they did not “sleep on their rights”.

(2) The 1^st applicant was a purchasing manager of a Ghanaian company and has been jobless since 2011.  The 2^nd applicant received education only up to primary 1 in Mainland China.  In the light of the complexity of the issues for adjudication in this application for judicial review, it is unrealistic to expect them to conduct the litigation themselves without legal assistance.

(3) The legal aid application: Difficulties in obtaining legal aid funding are often regarded as a good reason to extend time, unless there is real prejudice to the other side.[29]  It is also a legitimate reason to say that delay is entirely due to the fact that it took time for a certificate to be obtained from legal aid, through no fault of the applicants.[30]  Reasonable efforts were taken to seek to secure the success of the application, bearing in mind that the Legal Aid Department initially refused the application presumably on the merits.  See Chronology of Legal Aid Application and Case Preparation (as verified by Legal Aid Department), and 5^th Affidavit of Wong Pik Lun.

(4) Since the grant of legal aid in November 2014, reasonable time and care has been taken for assignment of junior and leading counsel, and to prepare the application for filing; see, again, Chronology of Legal Aid Application and Case Preparation.  All in all, solicitors and counsel have proceeded with due expedition and diligence.

(5) “Undue delay” in the context of section 21(6) of the High Court Ordinance (Cap 4) is not to be considered in a vacuum.  Refusal of leave under section 21(6) is tied to the consequences of the undue delay, ie substantial hardship or substantial prejudice to third parties or detriment to good administration.  In the applicants’ case, neither the Immigration Department nor public administration is prejudiced in the meantime.  The 1^st applicant has all along been liable to removal from Hong Kong and is on recognisance.

(6) The prejudice to the applicants if extension of time is not given is disastrous. The 1^st applicant and other members of the family may become separated.

(7) The legal issues raised in the grounds of judicial review are more than reasonably arguable and are substantial.  They impinge on the continued validity of existing case law on important aspects of constitutional law, administrative law, immigration law and human rights law in Hong Kong.  They are questions of great general public importance.

119. With respect, I am not persuaded that there are good reasons to justify an extension time:

(1) The periods of delay have been substantial, particularly when considered against the outer three-month limit.

(2) Reference has been made to difficulties in securing legal aid.  But there is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time: Re Thomas Lai, supra, at paragraph 48(1), citing Wong Chi Keung v Commissioner of Police (HCAL 1/2010, 11 May 2010), paragraphs 57 - 72; BH, supra, at paragraph 100 and the cases cited therein.  In this respect, it must also be noted that the 1^st and 2^nd applicants had in fact been represented by lawyers (the same firm which subsequently represent them in this judicial review on legal aid) in seeking the reconsideration of the dependant visa application in 2012.  In other words, they had all along been legally advised.

(3) The suggestion that the 1^st applicant is not highly educated is neither here nor there.  Ignorance of the law by itself cannot be a good reason to justify delay.  In any event, as I mentioned above, the 1^st applicant was in fact legally advised and represented before the grant of legal aid to pursue judicial review.  There is therefore a fortiori no substance in this submission.

(4) Delay in bringing this judicial review plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of 1^st applicant was tolerated pending the determination of this judicial review.  He has remained in Hong Kong as an overstayer since September 2011.[31]

(5) Moreover, for the reasons I have set out above, the judicial review is without strong merit.  When this factor is looked at together with the magnitude of the delay and the absence of adequate explanation for them, it is proper to refuse to extend time.  The submission that there would be disastrous hardship on the applicants if extension of time is not granted as the 1^st applicant would be separated from the other applicants must similarly be viewed against the merits of the challenges.

120. I therefore would also refuse to grant extension of time, and set aside leave on an inter partes basis.

D. CONCLUSION

121. For all the above reasons, the applicants have failed in all the grounds in support of the judicial review.  I would therefore dismiss this application on merits.

122. In any event, I would also refuse to grant extension of time and set aside the ex parte leave on the basis of delay.

123. I further make an order nisi that costs of the judicial review and the application to set aside leave be to the Director to be taxed if not agreed, with certificate for two counsel.  The applicants’ own costs be taxed in accordance with legal aid regulations.