COMILANG, MILAGROS TECSON AND ANOTHER v. DIRECTOR OF IMMIGRATION

CACV 59/2016, CACV 60/2016 &

CACV 149/2016 (Heard Together)

[2018] HKCA 175

CACV 59/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2016

(ON APPEAL FROM HCAL NO 45 OF 2014)

_______________

_______________

AND

CACV 60/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2016

(ON APPEAL FROM HCAL NO 56 OF 2014)

_______________

_______________

AND

CACV 149/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 149 OF 2016

(ON APPEAL FROM HCAL NO 44 OF 2014)

_______________

_______________

(Heard together)

________________________

J U D G M E N T

________________________

Hon Cheung CJHC :

1.  The facts and arguments in these appeals are fully covered by Poon JA in his judgment.  I will gratefully adopt them in this concurring judgment.

Family rights at the constitutional level

2.  At the heart of these appeals, as argued before us, are the family rights of the foreign applicants (two of them are applying to stay in Hong Kong as mothers and the other one as spouse), and the corresponding family rights of their family members who are residents of Hong Kong.  At the constitutional level, these rights are argued on the basis of the Basic Law (article 37), the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) – both of which are constitutionally entrenched under article 39(1) of the Basic Law. Naturally, one deals with these respective sources of rights and the arguments for or against the engagement of these family rights, first in terms of the foreign applicants, and then in terms of the local family members, separately. There can be no objection to this analytical and systematic approach to the issues raised, an approach which I will also adopt in the latter part of this judgment.  However, in doing so, one must not lose sight of the larger picture.  Regardless of the source of the family rights relied on, the subject matter is the same, that is, family rights.  And the two international instruments’ constitutional status is based on nothing other than the Basic Law, article 39(1).

True intent under the Basic Law

3.  This being the case, ultimately, one must look at the true intent of the drafters of the Basic Law towards family rights as a whole in deciding whether the applicants’ arguments are correct or not.  In other words, whether one is talking about family rights under article 37, or family rights under the ICCPR as entrenched under article 39(1), or family rights under the ICESCR as entrenched also under article 39(1), one is looking at the true intent of the drafters of the Basic Law.

4.  In this regard, it is not unreasonable to proceed on the basis that the drafters of the Basic Law must have had a common, consistent intent regarding family rights, particularly family rights in the context of immigration, when drafting the Basic Law. Absent clear indications to the contrary, one would not expect the drafters to have intended to grant family rights with one hand and to take them away with the other, or vice versa.  Put another way, one should not adopt a split‑personality approach when trying to discover the true intent of the drafters.  Over‑compartmentalisation when examining the various arguments put forward for or against the alleged family rights based on the Basic Law and the two international instruments should be avoided.

5.  In my view, the true intent of the drafters of the Basic Law regarding family rights in the context of immigration is plain to see.  That intent is clearly manifested in the continued application of the immigration reservation, reflected in section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383), under article 39(1) when constitutionally entrenching the ICCPR (via the Ordinance).  That is to say, the family rights conferred under the Hong Kong Bill of Rights – they being rights that are not non‑derogable and absolute (see below) – do not affect immigration legislation governing “entry into, stay in and departure from Hong Kong”, or the application of such legislation.  This echoes fully with article 154(2) of the Basic Law, which specifically provides that the Government of the Hong Kong Special Administrative Region may apply immigration controls on “entry into, stay in and departure from [Hong Kong]” by persons from foreign states and regions.  In other words, immigration is essentially a matter in the hands of the Government by means of immigration legislation.  This is hardly surprising given the overall immigration picture in the 1980s and early 1990s when the Basic Law was drafted.  In fact, ever since the last World War, the immigration pressure felt by Hong Kong has always been tremendous.  There is simply nothing to indicate to this court that when drafting the Basic Law under the overarching theme of “one country, two systems”, the drafters intended to relax the Government’s tight immigration controls in favour of family rights.

6.  This being the case, and proceeding on the basis that the drafters of the Basic Law had a consistent intent and approach towards family rights in the context of immigration when drafting the Basic Law, it would be natural to conclude that the true intent behind articles 37 and 41 of the Basic Law, when conferring family rights (whatever their content may be) on Hong Kong residents and other persons in Hong Kong who are not Hong Kong residents respectively, must also be similarly circumscribed, when the context involved is immigration.

7.  Likewise, when article 39(1) states that the ICESCR as applied to Hong Kong shall remain in force and shall be implemented by local law, the drafters of the Basic Law must have intended that whatever family rights, including article 10(1) of the Covenant relating to children’s rights, that this constitutional entrenchment of the instrument may confer on Hong Kong residents and those in Hong Kong who are not Hong Kong residents (via article 41), will not have any adverse effect on the Government’s immigration controls, just as in the case of the ICCPR and article 37 – unless, of course, the Government wants to relax such controls when domesticating the Covenant via local legislation.

Conclusion from a “macro” perspective

8.  Approaching the matter from this more “macro” perspective, it is clear that regardless of how the applicants frame their case, that is, whether as family rights that they themselves have, or whether as family rights that their local family members have, and regardless of the source of those rights, that is, whether under the ICCPR, article 37 of the Basic Law or article 10(1) of the ICESCR, the answer must be the same.  In other words, as a matter of true interpretation of the Basic Law, these rights simply have no application and are not engaged in the present immigration context.

Family rights under the ICCPR

9.  I now turn to the more specific arguments put forward on behalf of the applicants.

10.  The applicants’ argument based on the ICCPR as implemented through the Hong Kong Bill of Rights is doomed to failure.  As decided by the Court of Appeal in Hai Ho Tak v Attorney General [1994] 2 HKLR 202, section 11 of the Hong Kong Bill of Rights Ordinance, giving effect to the United Kingdom’s immigration reservation, effectively prevents persons who do not have the right to enter and remain in Hong Kong from relying on the rights, including family rights, given under the Hong Kong Bill of Rights, insofar as they relate to immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of such legislation.  This is so, it should be added, unless the right in question is a non‑derogable and absolute right: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.  But, in the present case, it is not suggested that any of the family rights relied on are non‑derogable and absolute.

11.  Hai Ho Tak also determined, importantly, that this being the position, the local family members of the foreign person who has no right to enter or remain in Hong Kong, likewise, cannot rely on their family rights under the Hong Kong Bill of Rights, to support the application of the latter to enter into or remain in Hong Kong.  To do so would be “the height of absurdity”, and to “attribute a non-sensical intention to the legislature” (p 210).

12.  The argument of Ms Gladys Li SC (Mr PY Lo with her), for the applicants, that under the new constitutional order post‑1997, Hai Ho Tak is no longer good law, must be rejected.  Quite to the contrary, article 39(1) of the Basic Law, when constitutionally entrenching the ICCPR, simply continues the pre‑1997 position insofar as the immigration reservation and section 11 are concerned.  This is plain from the phrase “as applied to Hong Kong shall remain in force” in article 39(1).

Family rights of the foreign applicants under article 37 via article 41

13.  Ms Li then relied on article 37 of the Basic Law, which guarantees that the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.  This obviously covers all family members of the foreign applicants, who are residents of Hong Kong.  As for the foreign applicants themselves, that is, persons in Hong Kong who are not Hong Kong residents, article 41 says that they shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in Chapter III of the Basic Law, where article 37 is found.  In accordance with the Court of Final Appeal’s decisions in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 and Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, generally speaking, subject to the proportionality test, persons in Hong Kong other than Hong Kong residents therefore also enjoy the same rights and freedoms of Hong Kong residents prescribed under Chapter III of the Basic Law.  That said, however, whether an individual right guaranteed under Chapter III is applicable must still depend on a true construction of the Basic Law.

14.  As demonstrated by Rbani, where a particular right guaranteed under Chapter III of the Basic Law is essentially the same as one guaranteed under the Hong Kong Bill of Rights/ICCPR (in Rbani, the right involved was the right not to be subjected to arbitrary or unlawful arrest, detention or imprisonment guaranteed under article 28(2) of the Basic Law, which is covered more comprehensively under the Hong Kong Bill of Rights/ICCPR), as a matter of proper construction of the relevant article in the Basic Law granting the right, and articles 39(1) and 41 of the Basic Law, as well as section 11 of the Hong Kong Bill of Rights Ordinance, the right guaranteed under the Basic Law does not extend to a person in Hong Kong who is not a Hong Kong resident, insofar as it relates to immigration legislation governing his entry into, stay in or departure from Hong Kong – unless the right in question is a non‑derogable and absolute right.

15.  In the present case, the foreign applicants invoke article 37 to support their immigration applications to stay in Hong Kong.  Assuming, without deciding, that article 37 is sufficiently wide in scope – when given a generous interpretation – to cover the factual situations in question, what I have just said means that these foreign applicants simply cannot themselves rely on article 41 to say that the family rights under article 37 apply to them, as those rights are likewise covered more comprehensively in the Hong Kong Bill of Rights/ICCPR.

16.  Ms Li asked us to say that Rbani,in this regard, was wrongly decided.  In short, her argument was that if the logic of the Court of Final Appeal in this part of its judgment were correct such that under article 41, a foreign applicant could not rely on a substantially similar right guaranteed under the Basic Law, which is also covered by the Hong Kong Bill of Rights/ICCPR, the same logic should not stop at the Basic Law level, but should also cover the foreign applicant’s reliance on any similar protection under common law.  If this aspect of Rbani were correct, Ms Li asked rhetorically, where would the logic stop?  In particular, Ms Li pointed out, article 38 guarantees that Hong Kong residents shall enjoy the other rights and freedoms safeguarded by the laws of the Hong Kong Special Administrative Region.  That must, according to counsel, include all the common law rights and protection which form part of the laws of Hong Kong.  By the same logic, counsel argued, article 41 would not extend article 38 to a person who is not a resident of Hong Kong.  The most absurd result would be reached, according to Ms Li’s argument, when one were to extend the logic and conclude that the foreign applicant simply had no right whatsoever in Hong Kong.  Yet, Ms Li pointed out, this was contradicted by what the Court of Final Appeal itself decided in Rbani when it upheld the claim of the overstayer in that case for false imprisonment based on common law.

17.  With respect to counsel, there is a confusion between what is constitutionally protected in the Basic Law and what is protected simply under the common law.  I agree that the same logic applied in Rbani would prima facie mean that the guarantee of rights by article 38 of the Basic Law would not apply to a person in Hong Kong who is not a resident here via article 41, insofar as those rights relate to immigration legislation governing his entry into, stay in or departure from Hong Kong or the application of such legislation, unless what is at stake is a non‑derogable and absolute right.  But it does not follow that such a person has no protection under the common law in Hong Kong.  All it means is that such common law protection, since it is not constitutionally entrenched, may at any time be changed or removed by legislation: see article 8 of the Basic Law.  In Rbani, the common law protection against false imprisonment protects everybody in Hong Kong, whether he is a resident or not.  There is no legislation – section 11 of the Hong Kong Bill of Rights Ordinance included – restricting the application of that common law protection to Hong Kong residents only.

Family rights of the local family members under article 37

18.  Can the same rights guaranteed under article 37 of the Basic Law be relied on by the family members of the foreign applicants, these members being themselves Hong Kong residents?  In their case, they simply rely on article 37, and article 41 is irrelevant.  Rbani has no application here because in Rbani no corresponding rights of family members were involved.  Rather, we are in a similar situation to that in Hai Ho Tak, except that the context here is not the Hong Kong Bill of Rights, but rather the Basic Law.  In other words, does the Hai Ho Tak logic apply so that not only is the foreign applicant unable to rely on article 37 via article 41 (Rbani), his family members who are residents of Hong Kong are also unable to do so? Ms Li argued, in short, that rights guaranteed under Chapter III of the Basic Law should be construed generously, whereas restrictions should be interpreted restrictively.  Therefore, it would take a very strong case for one to come to the conclusion that Hong Kong residents, such as the local family members of the foreign applicants, cannot themselves rely on the family rights guaranteed under article 37 of the Basic Law.  She pointed out that if it were otherwise, then in the case of an infant family member who is seeking to support his parent’s stay in Hong Kong to look after him, he would, in practice, have no choice, but be taken out of Hong Kong to be taken care of by the parent, thereby depriving him of the enjoyment of the right of abode guaranteed under article 24(3) of the Basic Law and other rights guaranteed under Chapter III of the Basic Law.  But not only that – in the case of a non‑Chinese Hong Kong infant resident, removal from Hong Kong to be taken care of by his parent overseas, it was argued, would expose the former to the risk of losing his permanent residency in Hong Kong according to the Immigration Ordinance: Sch 1, para 7(a).  Regardless of where the true legal position lies concerning the possible loss of permanent residency, it must be accepted that these are potentially dire consequences for the individuals concerned.  However, everything still boils down to the true intent of the drafters of the Basic Law.

19.  As explained at the beginning, it is difficult to see any reason why the drafters would have wanted to relax Hong Kong’s tight immigration controls when making provisions to guarantee the family rights of Hong Kong residents.  It is a matter of fact that the immigration picture throughout the 1980s and early 1990s, when the Basic Law was drafted, remained unchanged.  Putting that aside, the logic which drove the Court of Final Appeal to decide in Rbani that where there is a right guaranteed under the Basic Law which is substantially the same in content as a right covered by the Hong Kong Bill of Rights, section 11 effectively covers both rights (unless this is a Ubamaka type of situation), must also mean that the local family members of the foreign applicant cannot themselves invoke the same family rights in the Basic Law to support the foreign applicant’s entry into or stay in Hong Kong.  What is not permitted through the front door cannot be bypassed via the backdoor.  In other words, the rationale behind Hai Ho Tak must equally apply to a consideration of the rights created under the Basic Law not only as regards the foreign applicant, but also his local family members.

Family rights under the ICESCR

20.  What about the rights guaranteed under the ICESCR?  In particular, Ms Li relied on article 10(1) of the ICESCR concerning protection of children.  She accepted that article 39(1) of the Basic Law requires the ICESCR to be locally implemented in order to have domestic force.  But she relied on what the Secretary for Home Affairs had told the Legislative Council that the Covenant had been implemented in Hong Kong via article 37 of the Basic Law (as well as other pieces of legislation).  Ms Li argued that, therefore, so far as protection of children’s rights guaranteed under article 10(1) of the ICESCR is concerned, it has been implemented and given domestic effect via article 37 of the Basic Law itself and, since there is no immigration reservation or section 11 in the case of the ICESCR, what has been discussed and argued against her in relation to the ICCPR and Hong Kong Bill of Rights simply does not apply.  Hai Ho Tak is, therefore, irrelevant.  So is Rbani.  In other words, local children who are Hong Kong residents can themselves rely on article 37 to support the immigration applications of their foreign parents.  There is no question of their seeking to let their parents enter into or stay in Hong Kong via the backdoor.

21.  I do not accept the argument.  Again, everything turns on the true construction of the Basic Law. With respect, the problem with counsel’s argument is that she looks at the relevant rights involved in the Basic Law and the two Covenants in a compartmentalised way, even though, broadly speaking, they all concern the same subject matter. As explained, what we are here concerned with is family rights, which are covered by article 37, and more extensively, by the ICCPR/Hong Kong Bill of Rights.  They are also covered in article 10(1) of the ICESCR as regards children.  The question therefore to ask is whether the true intent of the Basic Law drafters, given the immigration picture back in 1980s and early 1990s, was to guarantee Hong Kong residents, post 1997, family rights to such an extent that they could by virtue of those rights support the immigration applications of their foreign family members to enter into and remain in Hong Kong, thereby trumping, in effect, the relevant immigration legislation.  As explained, I can see no such intention.  The continued application of section 11 and the immigration reservation in relation to the Hong Kong Bill of Rights and the ICCPR, as provided in article 39(1) of the Basic Law, is the best indication of the general intent of the drafters of the Basic Law regarding family rights.  It is a true indication of their intent not only in relation to the family rights under the ICCPR, but also all other family rights at the constitutional level, whether under the Basic Law or under the ICESCR.

22.  In my view, article 37 is simply not engaged so far as these local family members are concerned.  It is always subject to an inherent restriction in scope when it comes to immigration matters, on a true interpretation of article 37 and the Basic Law as a whole.  This is a complete answer to Ms Li’s reliance on article 37, whether on its own, or as an implementing provision of article 10(1) of the ICESCR.

True scope of article 37 – a right to be raised?

23.  Finally, as for the true scope of article 37, all I wish to say is this.  The authorities have established, in my view, that, relevantly, it guarantees the right to have and to foster children.  Whether the right to raise children includes, when given a generous interpretation, the right to be raised need not be decided in this case.  To some extent, it depends on how one is to regard the right guaranteed under article 37.  One view is that it is simply a specific provision to assure and guarantee to the people in Hong Kong that the one‑child policy practised on the Mainland will not be applied in Hong Kong after 1997.  It is not a provision designed to deal with family rights generally.  Rather, provisions dealing extensively with family rights can be found in the ICCPR/Hong Kong Bill of Rights which is taken care of by article 39(1) of the Basic Law.  On this view, there is no reason to give article 37 an expansive meaning.

24.  As I say, there is no need to come to a definite conclusion on this point in this case.  In cases concerning only Hong Kong residents (with no immigration element), this debate is probably of academic interest only.

Disposition

25.  For these reasons and for those given by Poon JA in his judgment which I have not otherwise covered, I agree that these appeals should be dismissed with costs.

Hon Lam VP :

26.  I have read the judgments of the Chief Judge and Poon JA in draft and I respectfully agree with them. The core issue in these appeals is the impact of the right to family life on the exercise of the power of the Director of Immigration in respect of immigration control. As discussed by the Chief Judge in his judgment, it is primarily a question of construction of the Basic Law in light of article 39(1) read together with the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance [“HKBORO”] as expounded by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 and Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138.

27.  Irrespective of how the case was put on behalf of these applicants (and Ms Li had tried her best in taking us through every possible avenue to persuade us that the decisions of the Director were wrong), including the derivative claims by those children resident applicants born to the foreign applicants (the latter have no right to remain in Hong Kong), the applicants’ cases must fail once it is concluded (as my Lords explained in greater length that we must so conclude) that, non-derogable and absolute rights aside, the Basic Law specifically reserves wide power and discretion to the Director to exercise immigration control untrammelled by some rights under the Bill of Rights or other provisions in the Basic Law.

28.  As highlighted in this Court’s judgment in BI v Director of Immigration [2016] 2 HKLRD 520[1], by reason of the special circumstances of Hong Kong and the imperative need to maintain restrictive immigration policies and practices, there is a very onerous duty and responsibility placed upon the Director whose policies the courts are generally institutionally ill-equipped to gainsay.

29.  The Director has to maintain a delicate and difficult balance between keeping Hong Kong as an open society where foreigners can readily be granted permission to enter and remain for limited duration(s) for legitimate purposes and upholding the public interest in having a tight immigration regime to prevent scarce public resources (including public housing, medical and education facilities) being subject to undue pressures by uncontrolled waves of economic immigrants from neigbouring regions who are attracted by the unique situation in Hong Kong.

30.  In the first judgment in the Comilang case in HCAL 28/2011, 15 June 2012, at [119] to [120], I highlighted the immense potential ramifications for Hong Kong if the concept of derivative right of residence is upheld. After hearing Ms Li again in these appeals, I am unpersuaded that counsel can provide a valid answer to the problems posed in those paragraphs.

31.  Further, Ms Li had not been able to clearly explain in practical terms the implications for recognizing the family rights she contended for immigration purposes. On the one hand, counsel acknowledged that such rights could not dictate the Director to grant permission to the foreign applicants to remain in Hong Kong. On the other hand, she invited the court to examine whether the decisions of the Director were unlawful for failing to address his mind to these constitutionally protected rights and the resultant decisions unjustifiably restricted or encroached on such rights.

32.  If the challenge was pitched against the weight the Director attached to the family ties of the applicants, it was in substance no different from a challenge to the exercise of discretion by the Director on humanitarian grounds. Though Ms Li alluded to the Wednesbury reasonableness in her skeleton submissions, the only argument under that head was that the judge failed to apply the standard of anxious scrutiny. I am of the view that such argument is misplaced since we are not concerned with non-derogable and absolute rights. I agree with Poon JA that Au J did not err in this respect.

33.  If the challenge was put on the basis that such rights must overwhelm other considerations of the Director, in effect the court was invited to ignore the clear meanings and purposes of section 11 entrenched by art 39 of the Basic Law.

34.  Given that the Basic Law has set the limits by reference to section 11 of the HKBORO, this Court is duty bound to observe those limits in the determination of these appeals.

35.  I agree that these appeals should be dismissed with costs.

Hon Poon JA :

A.  The core issue

36.  There are three appeals before the Court, namely, CACV 59/2016 (“the Comilang Appeal”), CACV 60/2016 (“the Luis Appeal”), and CACV 149/2016 (“the Dembele Appeal”).  They arise from the two judgments of Au J (“the Judge”) dated 12 January 2016 and 22 April 2016,[2] dismissing the appellants’ applications for judicial review against the decisions of the Director of Immigration (“the Director”) in refusing the 1^st applicants’ applications for permission to stay in Hong Kong[3] or for a dependant visa,[4] as the case may be; and setting aside the ex parte leave on the ground of delay.

37.  The three appeals concern one common core issue.  Simply put, when a parent applicant, who is a foreign national with no right of abode in Hong Kong, made applications for extensions of stay in Hong Kong or for a dependant visa for the purpose of taking care of his/her minor children applicant, who is a Hong Kong permanent resident having the right of abode in Hong Kong, whether the Director in considering the applications is obliged, as a matter of law, to take into account a host of rights (“the Asserted Rights”) which the appellants contend they enjoy, namely :

(1) the applicants’ right to family under :

(a) articles 37 and 39 of the Basic Law (“BL”);

(b) articles 14, 19(1) and 20(1) of the Hong Kong Bill of Rights (“BOR”), which respectively domesticated articles 17, 23 and 24 of the International Covenant on Civil and Political Rights (“ICCPR”); and

(c) article 10 of the International Covenant on Economic, Social and Cultural Rights (“ICESCR”);

(2) the children applicants’ right of abode and permanent resident status under article 24 of the BL;

(3) the best interests of the children applicants under :

(a) the Convention on the Rights of the Child (“CRC”); and

(b) customary international law as part of the common law.

B.  Proceedings Below

B1.  The factual background

B1.1  In the Comilang Appeal

38.  The 1^st appellant is Ms Milagros Tecson Comilang.  She is a Filipino.  She first came to Hong Kong in 1997 as a foreign domestic helper.  Her contract of employment came to an end in July 2005.

39.  On 7 October 2005, Ms Comilang married a Mr Ahmed, a Pakistani national who became a Hong Kong permanent resident in 2004, in Hong Kong.  She gave birth to Zahrah, the 2^nd appellant, on 2 February 2006.  Zahrah’s status as a Hong Kong permanent resident was established on birth.

40.  On 10 October 2005, Ms Comilang’s permission to stay in Hong Kong expired.  She then applied to the Director for change of status to remain in Hong Kong as a dependant of Mr Ahmed. Upon clarification sought by the Immigration Department with the Pakistani Consulate, it transpired that Mr Ahmed had previously married another woman in Hong Kong in August 1996.  That marriage was dissolved in March 2004.  Before that, Mr Ahmed married another woman in Pakistan in February 2003.  The second marriage was still subsisting when Mr Ahmed purported to marry Ms Comilang in October 2005.  On 8 May 2007, Mr Ahmed withdrew his support of her application for change of status.  Ms Comilang left Mr Ahmed with Zahrah for good on 4 June 2007.

41.  Since September 2007, Ms Comilang had made numerous applications for extensions of stay in Hong Kong to take care of Zahrah.  They were all rejected by the Director.  She then commenced judicial review proceedings in HCAL 28/2011 in April 2011.  By a judgment dated 15 June 2012 (“Comilang No 1”), Lam J (as he then was) dismissed her application for judicial review after rejecting all her grounds of challenge.  The Court of Appeal allowed her appeal by a judgment dated 2 May 2013 on the only ground that the Director had considered and approached her extension applications on a wrong basis.  The Court of Appeal did not otherwise express any view on Lam J’s judgment on the grounds of challenge.  The matter was then remitted to the Director for fresh consideration, which he did.

42.  On 2 September 2013, the Director again refused Ms Comilang’s application for extension of stay as it did not fall within any of the recognized categories under the immigration policy to grant her a visa to remain in Hong Kong and there were no exceptional circumstances to justify an extension on humanitarian or compassionate ground. Ms Comilang applied for judicial review in April 2014, some 7 months after the Director’s refusal.[5] In June 2014, the Judge granted her ex parte leave to apply for judicial review.

B1.2  In the Luis Appeal

43.  The 1^st appellant is Mrs Desiree Rante Luis.  She is also a Filipino, first came to Hong Kong as a foreign domestic helper in 1991.  She married Mr Luis, a fellow Filipino and foreign domestic helper, in Hong Kong in 1997.  Mrs Luis gave birth to their eldest son in the Philippines in 1997, who had been permitted to stay in Hong Kong as a visitor on 5 separate occasions.  He last left Hong Kong in January 2014.

44.  Mrs Luis gave birth to 2 more sons while working in Hong Kong, David (the 2^nd appellant) in June 2002 and Carl (the 3^rd appellant) in August 2004.   In April 2006, Mrs Luis’ employment contract expired. She was granted extension to stay until 3 June 2006.  Between her departure on 3 June 2006 and January 2012, Mrs Luis visited Hong Kong as a visitor on numerous occasions and had been granted extension to stay in Hong Kong.  In December 2009, while visiting Hong Kong, she gave birth to her youngest son, Mark (the 4^th appellant).

45.  After verification by the Director, David was confirmed to have acquired Hong Kong permanent residence since 2010.  His two younger brothers remain in Hong Kong as dependants of their father.  All the three of them are studying in Hong Kong and have been taken care of by Mrs Luis since birth.  Carl was diagnosed with a heart disease and underwent an operation in 2008.  He requires continuous medical care and follow-ups.  Mark underwent surgery for left un-descended testis in 2012 and also needs annual medical follow-up.

46.  On 26 January 2012, the Director refused Mrs Luis’s application for extension of stay to take care of her three sons in Hong Kong.  She then overstayed with her presence in Hong Kong tolerated by the Director by way of standard toleration letters issued from time to time.

47.  Mrs Luis, through her solicitors, made an application for permission to remain in Hong Kong on 6 May 2013 to take care of her sons.  It was refused by the Director on 26 July 2013 on grounds similar to those applied to Ms Comilang.  Some 10 months later in May 2014, Mrs Luis applied for leave for judicial review.[6]  The Judge granted her ex parte leave in July 2014.

B1.3  In the Dembele Appeal

48.  The 1^st appellant is Mr Salifou Dembele.  He is a national of Mali.  He had been visiting Hong Kong as a visitor.  In July 2010, he met Ms Huang LuYun, the 2^nd appellant, a migrant from the Mainland who had since 2010 become a Hong Kong permanent resident.  They married in 2011.  Ms Huang gave birth to Nadia, the 5^th appellant, in July 2012.  She is also the mother of 2 minor children from her previous marriage, who are the 3^rd and 4^th appellants.  All the children are permanent residents of Hong Kong.  The whole family is now living in a flat of Ms Huang’s in a public housing estate.  They have been receiving Comprehensive Social Security Assistance.  The children are now studying in Hong Kong.

49.  In 2011, Mr Dembele made an application to the Director for a dependant visa to take up residence in Hong Kong as the dependant of Ms Huang under the Dependant Policy.  The Dependant Policy stipulated :

“ II Eligibility Criteria

3 For a sponsor who is a Hong Kong permanent resident … the following dependants may apply to join him/her for residence in the HKSAR :

a. his/her spouse;

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

c. his/her parent aged 60 or above.

   …

   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 (“Para 5C”).”

50.  It was refused by the Director in July 2011 since he was not satisfied that Ms Huang was able to support the living of Mr Dembele at a standard well above the subsistence level in Hong Kong and provide him with suitable accommodation under the Dependant Policy.  In other words, the Director was not satisfied that Para 5C was met.

51.  After Nadia’s birth, Mr Dembele made a fresh application for dependant visa in January 2013.  That was again refused by the Director in April 2013 on the same ground that Para 5C was not met and on the additional ground that there existed no exceptional circumstances to justify a departure from the established policy to grant him permission to stay in Hong Kong.

52.  A year later in April 2014, Mr Dembele applied for leave for judicial review against both refusals.[7]  The Judge granted him ex parte leave in June 2014, without prejudice to the Director’s right to oppose the grant of an extension of time.

B2.  Grounds of Challenge

B2.1  By the Comilang appellants and the Luis appellants

53.  The Comilang appellants and the Luis appellants argued that in considering the applications for permission to stay in Hong Kong, the Director had failed to take into account the Asserted Rights.  They also relied on the legitimate expectation that the Director would take into account the Asserted Rights in considering the applications.

54.  They also relied on a number of conventional grounds of challenge :

(1) The impugned decisions were tainted with procedural unfairness because the Director had taken into account irrelevant matters and failed to take into account relevant matters;

(2) The Director had failed to make the necessary inquiries;

(3) The Director had fettered his own discretion;

(4) The impugned decisions were not adequately reasoned;

(5) The impugned decisions were in any event Wednesbury unreasonable.

B2.2  By the Dembele appellants

55.  The Dembele appellants also argued that the Director had failed to take into account the Asserted Rights in considering the applications for a dependant visa.

56.  They raised further grounds of challenge :

(1) Para 5C and the impugned decisions were unlawful because they constituted discrimination against Hong Kong residents marrying a foreign national as Para 5C did not similarly apply to spouses coming from the Mainland on a One-Way Permit;

(2) Para 5C and the impugned decisions were unlawful or Wednesbury unreasonable because they failed to take into account the family unit as a whole and the liberty of the family to make arrangements for its financial self-sufficiency;

(3) The impugned decisions were unlawful as the Director misapplied the Dependant Policy in treating Para 5C as an eligibility criterion when it was not;

(4) The impugned decisions were unlawful as the Director took into account irrelevant consideration but failed to take into account relevant considerations;

(5) The impugned 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;

(6) The decision process was procedurally unfair as the Director had not informed the 1^st applicant what would amount to supporting a standard “well above the subsistence level” in the circumstances of their case, so that they could address the matter appropriately; and the impugned decisions were inadequately reasoned.

B3.  The Judge’s decisions

57.  For the reasons that he articulated carefully in his Judgments, the Judge rejected all the grounds of challenge by all the appellants.  In so doing, he followed and applied a long line of authorities arrayed against the appellants’ contentions.  He further set aside the ex parte leave granted to all of them on the ground of delay.

C.  Grounds of appeal on the Asserted Rights

58.  Before us, Ms Gladys Li, SC (with Mr PY Lo),[8] for all the applicants, raised numerous grounds of appeal,[9] which effectively rehearsed most if not all the grounds of challenge and arguments they took but failed before the Judge.[10]   In this Part, I will discuss the grounds of appeal which are common to all the three appeals.[11]  They all concern the Asserted Rights.  In Parts D and E, I will respectively consider the grounds of appeal which are specific to the Comilang Appeal and the Luis Appeal on the one hand and the Dembele Appeal on the other.  Finally, I will in Part F examine the question of delay in the context of setting aside the ex parte leave.

59.  To recap, the core issue is whether as a matter of law, the Director in assessing the 1^st applicants’ applications for permission to stay in Hong Kong or for a dependant visa is obliged to take into account the Asserted Rights.  Ms Li submitted that the Director had failed to take into account two constitutionally protected rights under the BL in making the impugned decisions in the three appeals.  The first is the appellant’s family rights under BL art.37.  The second is the rights derived from the status of the children appellants as Hong Kong permanent residents under BL art.24.

60.  I will first consider the BL art.37 point.

C1.  BL art.37

61.  In this respect, the primary submission advanced by Ms Li is that, upon a generous interpretation, BL art.37 requires consideration of all members of the appellants’ families in respect of the protection of the freedom of raising of the family, and rights of children to parental care in the family context.  Put simply, Ms Li’s primary submission is that BL art.37 confers a general right to family which all the applicants, parents and children all included, enjoy.  Hence the Director must as a matter of law consider their rights under BL art.37 in dealing with their applications for extension of stay in Hong Kong or a dependant visa.

62.  However, as will be seen below, this very proposition that BL art.37 confers a general right to family is flatly contradicted by well-established authorities.  So is the proposition that the right under BL art.37, whatever the content may be, is available to non-Hong Kong resident applicants in all the three appeals in the present immigration context.  Nor could the Hong Kong resident applicants assert their rights under BL art.37 for the benefit of the non-Hong Kong resident applicants.  In short, in none of the three appeals is BL art.37 engaged.  No legitimate expectation that the Director would consider the applicants’ rights under BL art.37, if applicable, could possibly arise.

C1.1  Content of the rights

63.  BL art.37 provides :

“ The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

Its Chinese text reads :

“ 香港居民的婚姻自由和自願生育的權利受法律保護。”

64.  The content of the rights to family in BL art.37 had been discussed in several judicial reviews in immigration context at the level of the Court of First Instance.

(1) In Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, M, a Nepalese woman came to Hong Kong to visit her son, S, who was born in Hong Kong and had been staying in Hong Kong permanently since 1996.  By way of judicial review, M and S challenged the Director’s refusal to allow M to change her status from a visitor to a dependant of S.  One of the grounds that S and M relied on was their purported rights to family under article 37.  In dismissing their application for judicial review, A Cheung J (as the Chief Judge then was) held that article 37, properly understood, was not engaged.  He at [53] referred to the natural meaning of the Chinese words “自願生育”, which clearly means the right to procreate and to foster children voluntarily; and at [54] – [55] pointed out that “自願生育的權利” in BL art.37 exempted residents of Hong Kong from the then one children policy practiced in the Mainland as the citizens’ “duty to practice family planning” under article 49 of the Constitution of the People’s Republic of China.  Then he at [58] concluded :

“ The ‘right to raise a family freely’ sits comfortably well with the interpretation, based on the Chinese version, that it is a right to procreate and to foster children, and has nothing to do with the maintenance or taking care of a parent by an adult child, or the formation or maintenance of a family comprising such a parent and adult child.”

His Lordship therefore concluded that BL art.37 was not engaged.

(2) In Li Nim Han & Another v Director of Immigration [2012] 2 HKC 299, the 2^nd applicant came to Hong Kong in 1999 on a One-way Permit, which was later found to be obtained unlawfully.  When she was in Hong Kong, she married the 1^st applicant in January 2006.  A removal order was issued against the 2^nd applicant in June 2006.  She gave birth to a son in April 2008.  Upon representation by her solicitors, the Director in March 2010 upheld the removal order but suspended the removal action.  The applicants then applied for judicial review to challenge that decision by invoking BL art.37.  Mr Dykes, SC for the applicants contended that the right to family under BL art.37 was in substance the same as the right to respect for family life under article 8 of the European Convention on Human Rights; and that the Director had to have regard and respect for the 2^nd applicant’s family life and removal would only be enforced if it was proportionate.  That argument was roundly rejected by Lam J (as Lam VP then was).  He at [32] made the same observation as A Cheung J did in Kumari that the right to raise a family freely in BL art.37 is to provide for a different regime from that practised in the Mainland as to family planning.  Adopting the same construction as A Cheung J did at [58] of Kumari, he at [34] said :

“ So construed, it is impossible for the 1st applicant to contend that her right under art 37 would be infringed by the execution of the removal order. She is at liberty to raise her child in Hong Kong freely. It is clear from the Chinese text that this limb of art 37 has nothing to do with spousal relationship. Nor is it about the right of a child to parental support. Therefore, art 37 is not about a general right to family life to anchor her contention that the Director must give proportionate consideration to grant permission … to her to remain in Hong Kong.”

(3) In Comilang No 1, Lam J at [97] observed that the right under BL art.37 does not include the right to foster children in a particular manner or at a particular place.[12]

65.  Ms Li effectively submitted that Kumari, Li Nim Han and Comilang No 1 were all wrongly decided.  She took a number of points.[13]

(1) The courts adopt a generous interpretation of constitutionally protected rights : Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, per Li CJ at pp 28I-29C.  The generous interpretation adopts as part of the context the principles in ICCPR, ICESCR and other applicable human rights instrument : Ng Ka Ling, supra, per Li CJ at pp 29C and 41.

(2) Articles of the BL stating or confirming rights and freedoms of residents are to be read in the context of the HKSAR’s positive obligation to safeguard such rights and freedoms of residents and other persons in Hong Kong in accordance with article 4 of the BL.  In this regard, the relevant principles include :

(a) “[the] family is the natural and fundamental group unit of society and is entitled to protection by society and the state” : article 16 of the Universal Declaration of Human Rights; and

(b) The best interest of the children principle in CRC art.3.

(3) The BL extends beyond preserving old rights and includes conferring new ones : Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1, per Bokhary PJ at p 8D-E.

(4) In W v Registrar of Marriages (2013) 16 HKCFAR 112, Ma CJ and Ribeiro PJ held at [64] that BL art.37 guarantees the right to raise or found a family.

(5) Underlying the discussion in Kumari, Li Nim Han and in Comilang No 1 of the drafting of BL art.37 is the premise that the rights concerned have been enjoyed by Hong Kong residents in Hong Kong and it was therefore proposed that they are to be enjoyed by Hong Kong residents in Hong Kong.  See Joint Declaration, §3(4), Annex 1, §150 and Explanatory Notes.  This is consistent with traditional common law understanding of marriage as living together and of the liberty of raising children, the central point about family life being the whole is greater than the sum of its individual parts.[14]

With respect, I am unable to accept Ms Li’s arguments.

66.  It is now firmly established that in construing the BL, the court adopts, under the common law, a purposive approach.  In particular, for the provisions in Chapter III concerning fundamental rights and freedoms, the court gives them a generous interpretation.  However, it does not mean that the court will construe the BL provisions in vacuum : Santosh Thewe & Another v Director of Immigration [2000] 1 HKLRD 717, per Stock J (as Stock NPJ then was) at p 721D-G, quoting Secretary for Justice v Oriental Press Group Ltd & Others [1998] 2 HKLRD 123, per Chan CJHC and Keith J (as their Lordships were) at p 164J-165B.  In adopting the purposive approach, the court must have regard to the language of the text in the light of the relevant context and purpose with, where necessary, the assistance of internal and external aids to interpretation.  As Li CJ explained in his seminal judgment on the common law approach to interpretation of the BL in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at pp 223-225 :

(1) Subject to any binding interpretation by the National People’s Congress Standing Committee, in interpreting a particular provision of the BL, the court construes the language of the text to ascertain the legislative intent as expressed in the language objectively.

(2) The court does not construe the language in isolation.  It considers the language used in the text in the light of its context and purpose.  Put another way, the court ascertains the meaning borne by the language when considered in light of its context and purpose.

(3) Whilst in interpreting the provisions in question, the court must avoid a literal, technical, narrow or rigid approach, it cannot give the language a meaning which the language cannot bear.

(4) There are two kinds of aids to interpretation : internal and external aids.  As its name suggest, the internal aids are derived from what it is found within the BL, including provisions in the BL other than the one in question and the Preamble.  External aids are external materials which throw light on the context or purpose of the BL or its particular provisions.  Such external materials, generally speaking, include the Joint Declaration, the Explanations on the BL (draft) given at the National People’s Congress on 28 March 1990 shortly before its adoption on 4 April 1990, the state of domestic legislation at that time and the time of the Joint Declaration, materials brought into existence prior to or contemporaneous with the enactment of the BL, although it only came into effect on 1 July 1997. (The list of external materials is of course not exhaustive.)

67.  It is further well settled that the context and purpose are to be identified and considered in the first instance and are not merely at some later stage when ambiguity may be thought to arise after a “natural and ordinary meaning” of the text has been identified : Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45, per Ma CJ at [77], quoting Sir Anthony Mason NPJ in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, [63].

68.  Applying the common law approach of construction, as both A Cheung and Lam JJ did, it is beyond doubt that the legislative intent of BL art.37, as expressed by the actual language used in the Chinese text and English text read together in harmony, considered in light of its purpose and context, namely, to relieve Hong Kong residents of the duty to practise family planning in the Mainland mandated by article 49 of the Chinese Constitution, is to correspondingly guarantee that Hong Kong residents do enjoy the freedom and right to procreate and to foster children freely and voluntarily and no more.  Their Lordships’ construction of BL art.37 is plainly correct and I respectfully agree with them.  I firmly reject Ms Li’s argument that Kumari, Li Nim Han and in Comilang No 1 are wrongly decided and should be overruled.  This is sufficient to dispose of Ms Li’s submissions without addressing each and every component of her argument.

69.  For completeness, I would point out that Ms Li’s argument also suffers from the following deficiencies.

(1) Her attempt to stretch the clear words “自願生育” used in the Chinese text in BL art.37 to include the general right to family as she contended is an impermissible distortion of the actual language used.

(2) Her reliance on other provisions in various human rights instruments ignore the differences between them and BL art.37 in terms of context and actual language used and protection afforded to family. As Lam J observed in Comilang No 1 at [95], it is not right to start with an assumption that simply because broadly speaking all those instruments refer to protection of family, the specific contents of the protection under all of them are just the same.  Reference to those provisions and the cases decided thereunder and in some instances, putting together judicial remarks cherry-picked from cases involving different instruments or contexts to support generalized concepts such as a general right to family, does not really inform the proper construction of BL art.37.

(3) Her argument that the BL seeks to preserve the rights previously enjoyed by Hong Kong residents is, as a general and board statement, correct.  But it begs two questions : (a) what are the rights to be protected and (b) how are the rights protected by the BL.  To answer them, one has to identify the relevant provision of the BL and construe it according to the purposive approach.  Insofar as BL art.37 is concerned, the right to be protected, on a purposive construction, is the right to procreate and to foster children freely and voluntarily, in contradistinction to the constitutional duty to practise family planning under article 49(2) of the Chinese Constitution.  The general statement deployed by Ms Li does not really detract from such a construction of BL art.37.

(4) Ms Li’s reliance on W v Registrar is misconceived.  Ma CJ and Ribeiro PJ’s remark that BL art.37 guarantees the right to raise or found a family is a very broad statement.  Their Lordships had not embarked on any construction of BL art.37 as such.  For my part, I do not think their Lordships’ general remark adds anything meaningful to the proper analysis and construction of BL art.37.

70.  To conclude, BL art.37 confers on Hong Kong residents the right to procreate and to foster children freely and voluntarily.  It does not confer a general right to family as such. Any submissions by Ms Li to the contrary are wrong and, as rightly held by the Judge, must be rejected.[15]

C1.2  The rights under BL art.37 is not available to non-residents any way

71.  The next major proposition established by the authorities, which stands immovably in the way of Ms Li’s submissions, is this.  By virtue of Section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“the Section 11”), the rights under BL art.37 are not available to non-Hong Kong residents, such as 1^st applicants in the three appeals, in the present immigration context.

72.  For non-Hong Kong residents, BL art.41 extends to them the guarantees enshrined in Chapter III of the BL in these terms :

“ Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in [Chapter III].”

The rights and freedoms in Chapter III are thus extended constitutionally to non-Hong Kong residents.  However, the scope and effect of BL art.41 is qualified by Section 11, which has the constitutional backing of BL art.39.  This requires a little elaboration.

73.  Section 11 provides :

“ As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

74.  BL art.39 provides :

“ The provisions of the [ICCPR], the [ICESCR] … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

 The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.”

75.  In Ubamaka v Secretary for Security (2012) 15 HKCFAR 743, the Court of Final Appeal addressed the constitutional validity, scope and effect of the Section 11.  In his leading judgment (with which other judges agreed), Ribeiro PJ held that Section 11 was consistent with BL art.39 and constitutionally valid.  He reasoned, among other things, that :

(1) The italicized words found in the sentence “The provisions of the [ICCPR] … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the [HKSAR]” in BL art.39 refer to the original application of the ICCPR to Hong Kong by the United Kingdom when it was ratified in 1976 and declared that its acceptance be extended to Hong Kong.[16] Such application was obviously subject to the stipulated reservations made by the Government of the United Kingdom at the time, including the immigration reservation.[17]

(2) The immigration reservation in Section 11 was to be construed within the local context.  Between 1970s and 1990s, major efforts had to be made by the Hong Kong Government to fend off waves of illegal immigrants from the Mainland.  And the Hong Kong Government applied robust measures to deal effectively with such illegal immigrants and human traffickers.  The immigration reservation in Section 11, operating in that context, was aimed at preventing illegal immigrants from seeking to resist such measures by relying on a range of potentially applicable ICCPR rights.[18]

(3) The immigration reservation in Section 11 continued to apply to the HKSAR after 1 July 1997 after the Standing Committee of the National People’s Congress decided it was adopted as consistent with the BL after the vetting process under BL art.160.[19]

76.  Ribeiro PJ also surveyed a number of cases decided before and after 1 July 1997, including Hai Ho Tak v Attorney General [1994] 2 HKLR 202, which consistently regarded the immigration reservation in Section 11 as valid as a matter of Hong Kong law.  I will look at Hai Ho Tak more closely in a moment when I discuss its “spill-over” effect in Part C1.3 below.

77.  Turning to its scope, Ribeiro PJ after applying a purposive construction concluded that Section 11 must be read as qualified by section 5 of the HKBORO.  The net result is that Section 11 must be understood to exclude the application of the HKBORO and the BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong except insofar as the non-derogable and absolute rights protected by BL art.3 were engaged.[20]

78.  More recently in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, Ribeiro PJ reaffirmed the constitutionality, scope and effect of section 11 in these terms :[21]

“ 94. The reason why s.11 results in excluding the appellant’s reliance on BL art.41 is that, by virtue of BL art.39, s.11 operates at the constitutional level and qualifies the scope and effect of BL art.41. …

95. It is well established that the ICCPR is implemented through the Hong Kong Bill of Rights Ordinance and that such implementation includes the immigration exception contained in s.11. …

96. …[22]

97. In other words, in giving constitutional status to the Hong Kong Bill of Rights Ordinance including s.11, BL art.39 gives constitutional status to a specific exception to relevant provisions of the Hong Kong Bill of Rights in relation to persons not having the right to enter and remain in Hong Kong and in respect of immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of such legislation. For the reasons discussed above, that exception precludes resort to the right to liberty and security of person under BOR art.5(1) by the aforesaid class of persons in relation to the application of the specified categories of immigration legislation.

98. As we have seen, s.11 does not preclude persons who come within its terms from relying on the common law right to personal freedom and to protection against arbitrary arrest or detention.  Nor does s.11 preclude such persons from relying on Chapter III and Bill of Rights guarantees in respect of legislation other than ‘immigration legislation governing entry into, stay in and departure from Hong Kong.’…”

79.  Ms Li did not seek to challenge the constitutionality of Section 11.  Her submissions focused on its scope and effect.  She took a number of points, which can all be disposed of shortly.

80.  First, she argued that in neither Ubamaka nor Rbani was consideration being given to section 2(5) of the HKBORO.  Section 2(5) provides :

“ There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognizes them to a lesser extent.”

With respect, Ms Li’s argument misses the point.  The point is that even assuming that the BOR somehow recognizes a general right to family as contended, such a right does not extend to a non-Hong Kong resident applicant in the present immigration context.

81.  Second, Ms Li argued that Rbani is wrongly decided.  I need not dwell on her arguments.[23]  For it is plainly a matter for the Court of Final Appeal and not this Court.

82.  Third, Ms Li argued that Ribeiro PJ’s observations in Rbani at [93] – [99] are obiter.  However, it is plain that the passages in [93] – [99] are a restatement of the principles enunciated in his Lordship’s earlier judgment in Ubamaka, which Ms Li accepts is binding on this Court.  So even assuming that those passages in Rbani are obiter, I can see no basis whatsoever for this Court not to accept them in full.

83.  As the authorities now stand, the Judge was entirely correct when he held that the 1^st applicants in the instant appeals who are non-Hong Kong residents could not invoke BL art.37 in any event because of the immigration reservation in Section 11.[24]

C1.3  Hai Ho Tak and its “spill-over” effect

84.  As noted, all the children applicants as well as the 2^nd applicant in the Dembele Appeal, are Hong Kong permanent residents.  They accordingly enjoy the rights under BL art.37.  Ms Li effectively argued that the 1^st applicants, who are not permanent residents and therefore could not invoke BL art.37 in their own right, could nevertheless still look to the rights of such other family members who are permanent residents.  It was rejected by the Judge.[25]  With respect, he must be right because such an argument is flatly contradicted by authorities.

85.  In Hai Ho Tak, the principal issue before the Court of Appeal was whether Section 11 prevented a foreign applicant or close family member of the applicant, who was a Hong Kong permanent resident, from challenging a decision to remove the applicant from Hong Kong by relying on BOR art. 1 (non-discrimination), art. 14(1) (unlawful interference with family), art. 15(4) (liberty of parents regarding children’s education), art.20(1) (rights of children); and art.22 (equal protection of the law).  The Court of Appeal (Nazareth, Mortimer and Godfrey JJA) answered the issue in the affirmative.  The Court held that Section 11 prevented the person being removed from relying upon the BOR.  Significantly for present purpose, the Court also held that on a proper construction Section 11 also prevented the family member of the person being removed from relying on the BOR.  Godfrey JA said at p 210, lines 13-20 :[26]

“ The [HKBORO] may not be invoked by the person not having the right to enter and remain in Hong Kong. That being so, it would be the height of absurdity if it could be invoked by someone else, e.g., another member of his family. If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of his family, it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family. And s.11 should not be construed so as to attribute a non-sensical intention to the legislature.” (Emphasis supplied by his Lordship)

86.  Hai Ho Tak concerned BOR.  The instant appeals concern BL art.37.  So the question is : could all the children applicants and the 2^nd applicant in the Dembele Appeal assert their rights under BL art.37 to benefit the 1^st applicants who are non-Hong Kong residents and therefore could not invoke BL art.37 in their own right?  Shortly put, does the Hai Ho Tak principle which targeted the BOR, also extend to BL art.37?[27] As this Court noted in BI at [92(7)], there are first instance decisions that answer the question in the affirmative.

87.  The first decision is Santosh Thewe.  There, the wife, a Hong Kong permanent resident, sponsored an application by her husband for permission to reside in Hong Kong as her dependant. When the application was rejected, they sought leave to apply for judicial review on the grounds that, inter alia, the policy of withholding visas in family reunion cases by reference to the income level of the Hong Kong permanent resident spouse was unlawful by reasons of several provisions in the BL, including BL art.37.  Stock J (as he then was) rejected the applicants’ argument that they could rely on BL art.37.  He said at p 721D – E :

“ It seems to me that the effect of Mr Keane’s submission, if correct, is that any spouse of a Hong Kong resident should be permitted to come to live in Hong Kong with that spouse without more. Article 37 does not, however, stand on its own…”

After referring to BL art. 39 and Section 11, Stock J continued at p 722G –H :

“ The applicant husband in this case is a person who has not the right to enter and remain in Hong Kong save by permission at the discretion of the Director of Immigration and [Section 11] applies to his case. That, it seems to me, is a plain and obvious answer to the art.37 point.”

Although Stock J did not refer to Hai Ho Tak, his judgment was entirely consistent with the extension of the Hai Ho Tak principle to BL art.37.

88.  In the other two cases, the Hai Ho Tak principle was expressly adopted to disentitle a Hong Kong resident from asserting his rights under BL art.37 to the benefit of his family member, a non-Hong Kong resident, who could not lawfully assert the same rights under BL art.37.

(1) In Marilyn G Aringo v Director of Immigration, HCAL 96/2004, unreported, 5 September 2005, the husband, a foreigner, applied to the Director for a dependant visa to join his wife, who had the right to abode in Hong Kong.  The Director refused the application.  On judicial review, the couple sought to invoke the wife’s rights under BL art.37, arguing that the Director had failed to take that into account when considering the application.  Hartmann J (as he then was) referred to Hai Ho Tak and held at [43] :

“ In the present case, the husband is a person who does not have the right to enter and remain in Hong Kong, save by permission of [the Director]. In the circumstances, if the husband has no call upon the Bill of Rights or the provision concerning marriage in the Basic Law – and the matter essentially goes to him; it is, after all, his application for a dependency visa – then these provisions cannot be made applicable to him via the backdoor by looking to the wife’s rights.”

(2) In Li Nim Han, Lam J also adopted the logic of the Hai Ho Tak principle when he at [54] – [56] held that the 1^st applicant in that case could not assert her right under BL art.37 to achieve what, in respect of the removal of the 2^nd applicant, her husband, who came to Hong Kong on the strength on a fraudulent One-Way Permit and was subject to removal, he could not lawfully assert by himself.

89.  I respectfully agree with their Lordships.  As noted, in Hai Ho Tak, the applicants sought to rely on BOR art.14 which protects a person from unlawful interference with his family; and BOR art.19 which protects the family as the natural and fundamental group unit of society.  The family rights sought to be protected by those articles are couched in very general terms.  Whereas under BL art.37, the protection is aimed at a particular facet of family rights, namely, guaranteeing the freedom and right to procreate and to foster children freely and voluntarily.  The absurd argument that Godfrey JA enunciated in Hai Ho Tak at p 210 in respect of BOR art.14 and BOR art.19, which covers family rights in general, must equally apply to BL art.37, which covers a specific facet of family right.  That is to say, if it is absurd to allow a Hong Kong resident to assert his general right to protection of family under BOR art.14 and BOR art.19 to benefit his non-Hong Kong resident family member who could not lawfully assert the same right, it must be equally absurd to allow him to assert a specific facet of family right under BL art.37 for his non-Hong Kong resident family member who could not do so.

90.  Ms Li argued that we should not follow or adopt Hai Ho Tak in the instant appeals.  She took two main points.

91.  First, while is it not her submission that Hai Ho Tak was wrongly decided, we are free to depart from it because of the change of legal landscape since 1997 because of BL art.4, she reasoned.  With respect, I disagree.

92.  BL art.4 puts the Government of Hong Kong under a general duty to :

“ safeguard the rights and freedoms of the residents of the [HKSAR] and of other persons in the Region in accordance with law.”

However, BL art.4 is not a free-standing provision.  Contained in Chapter I on General Principles, it is a general provision and must be read together with BL art.39 and BL art.41 in Chapter III, which prescribes the Government’s duty to safeguard rights and freedoms of Hong Kong residents and non-Hong Kong residents in a more specific manner.  For the reasons articulated by Ribeiro PJ in Ubamaka, by virtue of BL art.39, Section 11 operates at the constitutional level to qualify the scope and effect of BL art.41.  Applying the same logic in those reasons, Section 11 must have the same qualifying effect on BL art.4, too.  The Hai Ho Tak principle is premised on Section 11.  So the general duty in BL art. 4, qualified by Section 11, does not detract from the soundness and applicability of the Hai Ho Tak principle in the post-1997 era.

93.  Ms Li next argued that the Hai Ho Tak principle cannot be extended to cover provisions in the BL.  Insofar as BL art.37 is concerned, I have already explained why it does.

C1.4  Conclusions on BL art.37

94.  To summarize, my conclusions on the BL art.37 point are as follows :

(1) BL art.37 does not confer a general right to family as contended.  On its proper construction, it only protects the right to procreate and to foster children freely and voluntarily and no more.

(2) In any event, the right guaranteed under BL art.37 are not available to the 1^st applicants who are not Hong Kong residents because of the immigration reservation in Section 11, which has been given constitutional backing by BL art.39.

(3) Nor could the Hong Kong resident applicants assert their rights under BL art.37 to benefit the non-Hong Kong resident applicants because of the extended application of the Hai Ho Tak principle.

95.  For these reasons, BL art.37 is simply not engaged.  The Director is not legally obliged to consider the applicants’ purported right to family under BL art.37 in processing their applications.  No legitimate expectation that the Director would do so could possibly arise.  There is no merit in the BL art.37 point.

96.  To complete, I would like to echo the submission of Mr Yu, SC, for the Director.  At best, the purported family right asserted by the applicants can only fall within humanitarian or compassionate grounds which the Director may but is not required to consider.  If Ms Li’s submissions on BL art.37 were correct, a much wider concept of right to family life would have to be incorporated into every immigration decision when it may impact on an applicant’s family.  This in effect elevates what the case law regarded as discretionary consideration to a mandatory requirement.  This impermissibly turns BL art.37 into a launch pad for judicial review based on humanitarian or compassionate grounds as enjoined by the Court of Final Appeal in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, per Li CJ at pp 338B-E; per Litton PJ at p 339D-E and per Mason NPJ at p 347B-D.

97.  I next turn to the BL art.24 point.

C2.  BL art.24

98.  In a nutshell, Ms Li argued that removal of the 1^st applicants from Hong Kong would deprive the children applicants of their rights stemming from their status as Hong Kong permanent residents under BL art.24, including enjoyment of public benefits in Hong Kong, as there is a real possibility that they would have to leave Hong Kong or being without the care of a parent who is a member of the family unit.  The Director is therefore obliged to investigate closely, take account of carefully and weigh in decision-making where the decision relates to a custodian parent/guardian and the decision may have impact on the family unit as a whole and/or on a resident children and in particular on a child who is entitled to enjoyment of public benefits by virtue of his or her permanent resident status.

99.  Contrary to Ms Li’s submissions, and as rightly approached by the Judge below, her argument in effect amounts to a derivative right of residence on the part of the 1^st applicants as primary carers of the children applicants so that, according to Ms Li, the latter could continue to enjoy all the benefits and rights stemming from their status as permanent residents in Hong Kong.  Such an argument was firmly rejected by Lam J in Comilang No 1.  After tracing the legislative history and analyzing the relevant case law, he at [115] – [118] held that the right of abode under BL art.24 consisted of (a) the right to land in Hong Kong; (b) the right not to have imposed upon him any condition of stay; and (c) the right not to be deported or removed; and that there was nothing in the legislative process which suggested a right of abode of a children would carry with it the derivative right of residence on the part of his or her primary carer.  For the same reasons articulated by Lam J, I also reject Ms Li’s argument.  In the context of the instant appeals, the children applicants’ reliance on BL art.24 is wholly misplaced.  BL art.24 is not engaged.  No legitimate expectation as contended could arise.  The Judge is correct in rejecting the BL art.24 point.[28]

100.  I next come to the BOR/ICCPR point.

C3.  BOR/ICCPR

101.  The major contention by Ms Li is that the Director was obliged to take into account the rights they have under BOR art.14, 19(1) and 20(1) which respectively domesticated ICCPR art.17, art. 23 and art.24.  Those articles respectively provide :

“ Article 14

(1) No one shall be subjected to arbitrary or unlawful interference with his … family…

(2) Everyone has the right to the protection of the law against such interference…

…

   Article 19

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

…

   Article 20

(1) Every child shall have, without any discrimination … the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

102.  It is not necessary to discuss Ms Li’s submissions or the overseas cases she cited in detail.  For her contention must fail as the local authorities on the immigration reservation in Section 11 now stand.

(1) Insofar as the non-resident appellants are concerned, the protection afforded by the BOR/ICCPR provisions are not available to them : Ubamaka.

(2) Insofar as the children appellants are concerned, they could not assert the same BOR/ICCPR provisions to achieve what the non-resident parents could not assert for themselves : Hai Ho Tak.

103.  Just for completeness, I need to dispel one fallacy in Ms Li’s submissions, which is this.  She argued that the immigration reservation in Section 11 does not preclude reliance on common law and that under common law, a decision maker is obliged to take account of applicable human rights treaties which have yet to be incorporated as part of Hong Kong law.  She cited numerous overseas English authorities and some academic writings in support. For present purposes, it is not necessary to discuss any of them.  The simple answer to Ms Li’s argument is to be found in Ribeiro PJ’s speech in Ubamaka at [42] and [43] :[29]

“ 42. …While certain provisions of the ICCPR will have to be examined as part of the context, the questions with which we are concerned are to be resolved under the domestic law of Hong Kong and not by any purported direct application of the provisions of that treaty or by any purported adjudication of an issue on the plane of international law.

   43. It has long been established under Hong Kong law (which follows English law in this respect), that international treaties are not self-executing and that, unless and until made part of our domestic law by legislation, they do not confer or impose any rights or obligation on individual citizens.  It is a principle of construction that where a domestic statute is ambiguous and is capable of bearing different meanings which may in turn conform or conflict with the treaty, the court will presume that the legislature intended to legislate in accordance with applicable international treaty obligations.  But where the statute is clear, the court’s duty is to give effect to it whether or not that would involve breach of a treaty obligation.  It is furthermore clear that the courts do not have jurisdiction to adjudicate upon rights and obligations arising out of transactions between sovereign states.”

104.  Unincorporated human rights treaties do not form part of Hong Kong law.  And they do not inform the construction of Section 11 when its language, meaning and effect is crystal clear and well settled.

105.  The various articles in the BOR/ICCPR that the applicants sought to rely on are not engaged.  No legitimate expectation that the Director would consider them arose.  The BOR/ICCPR point is wholly unmeritorious.  The Judge is correct in rejecting it.[30]

106.  I now address the ICESCR point.

C4.  ICESCR

107.  The appellants relied on ICESCR art.10, which provides :

“ The States Parties to the present Covenant recognize that:

   1. The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society… while it is responsible for the care and education of dependent children…”

108.  The Judge rejected ICESCR art.10 as a factor relevant to the Director’s decision making process. He referred to Chan Mei Yee v Director of Immigration, unreported, HCAL 77/1999, 13 July 2000, per Cheung J (as Cheung JA then was) at [42] – [46]; Chan To Foon v Director of Immigration [2001] 3 HKLRD 109, per Hartmann J at pp 131D – 134H; and Comilang No 1, per Lam J at [51] – [54]; [87] – [90] for the following propositions :[31]

(1) The ICESCR, which has not been domesticated locally, does not confer any direct rights on individual citizens or obligations upon which public authorities under domestic law.

(2) ICESCR art.10(1) is a resource-sensitive obligation which cannot be read as a charter for the removal of all immigration controls for parents giving birth to children in a foreign territory.

(3) In light of Hong Kong’s special situation and the immigration reservation in Section 11 on ICCPR and CRC, ICESCR art.10(1) cannot give rise to any relevant legitimate expectation as to how the Director would exercise his discretion.

109.  Ms Li complained that the Judge erred by taking three points.

110.  First, Ms Li submitted that the cases referred to by the Judge were premised upon an outdated view of the ICESCR which is not accepted by the United Nation Committee on Economic, Social & Cultural Rights and prevailing juristic opinions.  And the Canadian courts have long had regard to the ICESCR and in 2016, the Privy Council had positive regard to ICESCR and general comments on art.9 in one particular case.[32]

111.  In my view, Ms Li’s submission ignored the well-established proposition in this jurisdiction that under the dualist principle since ICESCR art.10 has not been domesticated, it simply has no force of law in Hong Kong : see Ubamaka, per Ribeiro PJ at [43]; GA, per Ma CJ at [58] and [63]; and Leung Sze Ho Gilbert v The Bar Council of the Hong Kong Bar Association [2016] 5 HKLRD 542, per Cheung CJHC at [7].  To recap, under the dualist principle, international treaties are not self-executing and unless and until made part of the local law, they do not confer or impose any rights or obligations on individual citizens.  BL art.39(1) is declaratory of this principle.  It follows that where an international obligation has not been made part of the domestic law, whatever the international position may be, an individual cannot rely on the content of that international obligation.  Irrespective of what happens on the international scene, the dualist principle applies to deny the appellants their purported right under ICESCR art.10(1) in Hong Kong.

112.  Further, I do not accept that the cases referred to by the Judge were premised on a so-called outdated view on ICESCR.  The simple fact remains that ICESCR has not been domesticated and therefore has no force of law in Hong Kong.  The propositions derived by the Judge from those cases are still good law.

113.  Second, Ms Li relied on the Government Statement in the Second Periodic Report, at [10.12] :

“ When formulating and implementing policies and measures that have a bearing on the right of abode, we give the most careful attention to all human rights dimensions, including articles 2(2), 3 and 10 of the [ICESCR]. When imposing restrictions on entry into and stay in Hong Kong, and as regards entitlement to the right of abode, we take great care to ensure that all restrictions that may bear on the implementation of Article 10 are fully justified in relation to each element of Article 4. No restriction is imposed unless it is firmly based on our laws, is compatible with the nature of the rights in question, and is solely for the purpose of promoting the general welfare of the Hong Kong community as that Article requires.” (emphasis added)

114.  Ms Li submitted that there cannot be more clear a specific commitment of the Government’s obligations, which the court shall give effect either as a factor of relevance in decision-making or as a legitimate expectation.  The Judge rejected Ms Li’s submission by harking back to the propositions set out above.  He also took the view that given the aspirational and promotional (but not legally enforceable) nature of ICESCR, the Government’s statement only highlighted the Government’s aspiration and effort to seek to have regard to ICESCR art.10 even in immigration context insofar as that would be consistent and compatible with the laws as applied in Hong Kong and our special local circumstances.  It could not in any way give rise to a legal obligation on the Director to take ICESCR art.10 into account.[33]

115.  The Judge is entirely correct and his reasoning is well supported by authorities.  As observed by Hartmann J in Chan To Foon at p 133 E :

“ …in light of Hong Kong’s continuing immigration problems, if public administrators consider the terms of the ICESCR, they do so in an aspirational sense; namely, as to what it is hoped can be achieved in the future. As such, I do not see that such consideration can give rise to a legitimate expectation rooted in the present.”

Neither can I in the instant appeals.  I reject Ms Li’s argument to the contrary.

116.  Third, Ms Li relied on the answer given by the Secretary for Home Affairs to the Legislative Council on the implementation of the ICESCR in Hong Kong on 6 April 2005 to the effect that ICESCR art.10 had been given constitutional guarantee by way of BL art.37.  She submitted that the Government must take account of BL art.37 and ICESCR art.10 in policy making and administrative decision-making and take care not to avoid them and the court must interpret BL art.37 as giving effect to ICESCR art.10.  The Judge rejected her argument.  He took the view that the right covered by BL art.37 is a matter of construction.  And on a proper construction, BL art.37 does not provide the “family right” as mentioned in the ICESCR.[34] Ms Li complained that the Judge erred in doing so.

117.  In my view, the scope of protection afforded by BL art.37 is eminently a matter of construction.  As discussed above, it is now well-established that BL art.37 only covers a specific facet of family right, namely, the right and freedom to procreate and to foster children freely and voluntarily.  Whatever the Secretary’s own understanding of the scope of BL art.37 might be, it cannot possibly, as a matter of law, alter the true legal position.  The Judge is correct in rejecting Ms Li’s argument.

118.  The ICESCR point must fail.

119.  Next comes the best interests of children point.

C5.  The best interests of children

120.  In this regard, Ms Li first relied on CRC, and in particular CRC art.3.

C5.1  CRC

121.  CRC art.3 provides :

“ (1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

(2) States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

(3) ...”

122.  The CRC was rectified for Hong Kong subject to an immigration reservation in these terms :

“ The Government of the [PRC] reserves, for the [HKSAR], the right to apply such legislation, in so far as it relates to entry into, stay in and departure from the [HKSAR], and to the acquisition and possession of residentship as it may deem necessary from time to time.”

123.  Further, it is common ground that the CRC has not been domesticated in Hong Kong.  In the premises, the Judge followed Ubamaka and held that the CRC would not confer or impose any rights or obligations on individual citizens in Hong Kong.[35]  He also for completeness dealt with the effect of the immigration reservation if the CRC were enforceable in Hong Kong.[36] In the end, he concluded that CRC art.3 was not engaged and was not relevant to the Director’s decision making.[37]

124.  Ms Li submitted that CRC art.3(1) itself has three dimensions : (a) a substantive right; (b) a fundamental interpretative legal principle; and (c) a rule of procedure.[38]  She complained that the Judge had not considered these dimensions in his judgment.  In my view, these dimensions do not detract from the well-established legal position that the CRC remains undomesticated and has no force of law in Hong Kong.  The complaint that the Judge had not considered them does not take Mr Li’s case any further.

125.  Further, because of the immigration reservation, as held by Hartmann J in Chan To Foon, at pp 120J – 121B :

“ …our immigration laws may continue to be applied even if they conflict with or are in any way incompatible with those conventions. … [The] voice of those responsible for entering into the international instruments could not be clearer. The manifest instruction to the Director is that, in applying Hong Kong’s immigration laws, he is not bound by the provisions of the ICCPR or the CRC. In light of this, I confess I fail to see how it can be argued that the applicants have a legitimate expectation that the Director will (and must) take those same international instruments into account.”

126.  I respectfully agree with Hartmann J.  The applicants in the instant appeals could not avail themselves of CRC art.3 as a relevant consideration that the Director must have had regard to.  Nor could they raise any legitimate expectation that the Director would or must do so.

127.  Ms Li relied on several overseas cases to support her argument that CRC art.3 is a relevant consideration even in the absence of domestication.  Her reliance on those cases is wholly misplaced.  Some of them concern a different context.[39]   Some such as the English authorities including ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 AC 116 are clearly distinguishable because CRC art.3 had been domesticated into the relevant national law in England, thereby rendering their statutory regime different from that in Hong Kong.  And for the European cases, the national statutory regimes in different countries, such as Netherlands, are clearly different from ours.

C5.2  Government’s “committed practice”

128.  Ms Li relied on various statements made by the Government in which the Government had, according to her, expressed to the international community and to the public that in practice the best interests of the child “are necessary considerations in all relevant decision-making, including legislative proposal and policies, and are taken into account as a matter of course”.  The Judge summarized those statements as follows :[40]

“ [142] …

(1) The Director had acknowledged in the evidence filed in Chan To Foon, supra, at p 118D-F that the “best interest of the child will always be a primary consideration and will always be taken into account”, albeit that “they must be set against the public interest needs of our immigration policy”.

(2) The Committee on the Rights of the Child (“the Committee”) has explained in its General Comments No 5 and General Comments No 14 that the best interests of the child principle in Article 3 of the CRC. The Committee has further explained in General Comment No 7 the central role of the family and the primary responsibility of parents and legal guardians for promoting children’s development and wellbeing, and the corresponding obligation of the State not to separate children from them.

(3) The Hong Kong Government has stated in its reports to the Committee that best interests of the child “are necessary considerations in all relevant decision-making, including legislative proposals and policies, and are taken into account as a matter of course”.

(4) Mr Lau Kong-wah, the then Under-Secretary for Constitutional and Mainland Affairs stated on behalf of the Hong Kong Government before the 1833^rd meeting of the Committee (on 26 September 2013) that “[from] April 2013 onwards, every policy had to be considered from the point of view of its impact on families”; that “the best interests of the child were taken into account in current child protection policies, which sought primarily to promote family cohesion and the well-being of the child”.

129.  Ms Li argued that the Government’s “committed practice” as contained in the statements gave rise to a legitimate expectation that the Director would take into account a child’s best interest in immigration matters.  That was rejected by the Judge.  He found that the statements did not suggest that the Government had in fact adopted such a practice.  He found that the reliance on Chan To Foon was misplaced as Hartmann J observed that what arose from the statement given in the course of evidence was that the best interests of affected children would be considered in determining in the context of “compelling and exceptional humanitarian circumstances” to allow the Director to make an exception to his policy of removing all illegal immigrants.  Further, citing Lau Kong Yung & Others v Director of Immigration (1999) 2 HKCFAR 300, the Judge held that the Director is not obliged to consider humanitarian and compassionate grounds and even when and if the Director does so, such exercise of discretion is generally not subject to the court’s scrutiny in judicial review.[41]

130.  Before us, Ms Li argued that the Government’s statements are specific and pertain to immigration decision-making.  The Judge erred in characterizing them as irrelevant. She submitted that best interests of children affected are always taken into account as primary consideration in immigration decision-making, citing SS (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 998. With respect, I disagree.

(1) The statements referred to in the Judge’s summary at [142(3)/(4)] above were not made in relation to immigration.  They are taken out of context.

(2) In any event, the effect of all the statements made by the Government must be understood in the context of the applicable legal framework for strict immigration control, in particular, the immigration reservation relating to Hong Kong under the CRC.  Thus understood, they at best show that the best interests of the affected children would be considered if they constitute compelling and exceptional humanitarian circumstances.  They certainly do not give rise to a “committed practice” as alleged which could possibly give rise to any legitimate expectation as contended for.

(3) The reliance on SS (Nigeria) is misplaced for the simple reason that CRC art.3 had been domesticated in England which must have an impact on how the English Court of Appeal approached the best interests of the child affected before it.  Here, insofar as the best interests of the child are concerned, they would only come within the “compelling and exceptional humanitarian circumstances” to allow the Director to exercise his discretion to grant an exception.  In this regard, Lau Kong Yung applies.

C5.3  Customary international law

131.  Ms Li argued that it is now part of the customary international law that in applying any law affecting children, their best interests are of primary consideration by reason of the almost universal ratification, accession or acceptance of the CRC (except USA) and the principle and broad international consensus.  She next argued that such customary international law has formed part of our common law.  The Director must therefore, in acting in accordance with the law, take into account the best interests of the children applicants.  The Judge rejected Ms Li’s submissions.[42]

132.  In my view, the customary international law can be disposed of shortly without going into Ms Li’s submissions or the cases that she relied on in detail.

(1) I entirely agree with Au J’s analysis as to why the applicants have failed to establish the alleged customary international law.

(2) In any event, the purported customary international law must be consistent with our common law.  As was held by the Privy Council in Chung Chi Cheung v The King [1939] AC 160 (PC), per Lord Atkin at pp 167-168, international customary law has no validity save in so far as its principles are accepted and adopted by our own domestic law; and that on any judicial issue the court would treat a rule of customary international law, once ascertained, as incorporated into the domestic law so far it is not inconsistent with local statute or law finally declared by the court.  The assertion of a customary international law that the Director must give paramount consideration to the interests of a child would plainly be inconsistent with the immigration reservation in Section 11 and in the CRC; and the Hai Ho Tak principle.

C5.4  Parens patriae

133.  The final point taken by Ms Li concerns the doctrine of parens patriae.  She submitted that under this doctrine, the common law has developed to the extent that the court would have regard of the best interests of the child as a primary consideration whenever a child’s welfare and well being is involved.  The Director must therefore take into account the best interests of the children applicants as a relevant consideration.  Again, the Judge rejected Ms Li’s submissions.[43]

134.  As rightly submitted by Mr Yu, SC, the common law principle of parens patriae has traditionally been limited to the context of family law and therefore questions relating to the interest of the child in that context.  Ms Li has not been able to persuade me that the common law has developed to cover cases in immigration context.  Her complaint that it would be wrong to take a compartmentalized or restricted view on the courts’ jurisdiction in this area of the law does not even begin to extend the principle to immigration context.

C6.  Conclusion

135.  For the above reasons, none of the Asserted Rights is engaged.  No legitimate expectation as contended could ever arise.  I would answer the core issue identified in Part A with a resounding “No”.  This disposes of all the grounds of appeal common to the three appeals.

D. SPECIFIC GROUNDS OF APPEAL FOR COMILANG APPEAL AND LUIS APPEAL

136.  I now turn to the grounds of appeal specific to the Comilang Appeal and the Luis Appeal.[44]  They relate to their conventional grounds of judicial review.

D1.  Fettering of discretion

137.  Ms Li argued that the Director had unlawfully fettered his discretion by approaching the impugned decisions in the way as he did.  The Judge rejected Ms Li’s argument thus :[45]

“ [223] …

(1) It is entirely trite that a public authority may set general policy governing its approach so long as its practice admits of exceptions and it does not [shut] its ears to claims that grounds for an exception exist in a particular case. See Sagnata Ltd v Norwich Corporation [1971] 2 QB 614, at 626F-627A and Lau Tak Shing v Director of Home Affairs, CACV 201/2005, 9 October 2006 at paragraph 24, per Cheung JA.

(2) Indeed, where the decision-maker has established policies governing a matter, the law requires that he should not depart from those policies absent good reasons for doing so. See eg, R (Kambadzi) v Secretary of State for the Home Department (Bail for Immigration Detainees intervening) [2011] 1 WLR 1299 at paragraph 36 and 41, per Load Hope; R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245, per Lord Dyson.

(3) It was thus well within the proper exercise of the Director’s discretion to have regard to the point at paragraph 18 of the M9 that “[a]ny departure from the established policy requirement shall require justifications with strong compelling factor or exceptional humanitarian circumstances”. As A Cheung J held in Gurung Deu Kumari, supra, at paragraph 24 in rejecting a similar complaint :

“  [T]here is no unlawful fettering of the Director’s discretion by his adherence to the established dependent policy.  The 1^st applicant’s case clearly falls outside the established categories.  The need to draw a line (in this case the age of 60) cannot be challenged.  Some line has to be drawn, and any anomalous results are justified by the need for certainty and a workable rule : R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, para 41; Fok Chun Wa v Hospital Authority CACV 30/2009, 10 May 2010, para 96.”

(4) A consideration of exceptionality is still a consideration of merits.  It involves a consideration of whether the merits of the application (having regard to the compassionate or humanitarian considerations put forward) are sufficiently strong to warrant exceptional treatment in view of the general importance of maintaining stringent immigration controls.”

138.  With respect, the Judge is entirely correct.  Any argument by Ms Li to the contrary must fail.

D2.    Failure to take into account relevant factors

139.  Ms Li then complained that the Director had failed to take into account factors relevant to the Comilang’s application and Luis’s application.  The Judge erred in ruling otherwise.  In my view, this complaint must be rejected.

(1) The matters that the Director had taken into account were summarized by the Judge at [219] – [220] for the Comilang family and at [240] – [241] for the Luis family in the Joint Judgment.  The file minutes kept by the Director clearly showed that he had taken into account the family circumstances and the impact on applicant’s parent and their children. Their family circumstances or any relevant considerations had not been overlooked.  Ms Li’s contrary submission is factually incorrect.

(2) It could not be inferred that the Director did not take family tie, connection or circumstances into account simply because the ultimate decision was adverse to such consideration : BI, at [109].

D3.  Standard of review

140.  The Judge refused to accept Ms Li’s submission to adopt an anxious scrutiny as the standard of review because no fundamental rights were engaged.  However, he was prepared to accept that the Director’s decisions did have some significant adverse impact on the families.  He therefore subjected the conventional grounds of judicial review to a more vigilant review than he would ordinarily have in a conventional case.[46]

141.  Ms Li complained that the Judge erred in not adopting an anxious scrutiny.  I disagree.  In my view, the standard adopted by the Judge corresponded well with the degree or gravity of the impact of the decisions made by the Director on the applicants, although no fundamental rights were engaged.

D4.  Usurping the family court judgment in the Comilang application

142.  In the course of considering the Comilang application, the responsible immigration officers considered the suitability of Zahrah’s father as custodian.  The Judge endorsed the officers’ view that he was suitable.  Ms Li complained that the Judge erred in usurping and second-guessing the family court’s judgment granting custody, care and control to the 1^st applicant mother after investigation, a decision that took the welfare/best interests of Zahrah as primary and paramount consideration in line with the Guardianship of Minors Ordinance, Cap 13.  The Director’s attempt to re-valuate the materials and the Judge’s approval of such re-evaluation were both without good reasons, Ms Li contended.[47]

143.  With respect, Ms Li’s submission took the officers’ evaluation out of context.  The officers’ view on the father’s suitability as Zahrah’s custodian was made when the Director considered alternative arrangements for her in the event that Ms Comilang was required to leave Hong Kong, in the overall context of considering whether there existed exceptionally strong humanitarian grounds to warrant the grant of permission on an exceptional basis.  The complaint that the Director and also the Judge had usurped the family court’s judgment is entirely misconceived.

D5.  Conclusion

144.  There is no substance in any of the specific grounds of appeal discussed in this Part.

E. SPECIFIC GROUNDS OF APPEAL FOR DEMBELE APPEAL

145.  I now come to the grounds of appeal specific to the Dembele Appeal.  They respectively deal with : (a) the construction of the Dependant Policy;[48] (b) whether the Dependant Policy restricts fundamental rights;[49] (c) discrimination;[50] (d) Para 5C;[51] (d), if the Director had misapplied the Policy;[52] and (c) relevancy and unlawful fettering.[53]

E1.  Construction of the Dependant Policy

146.  Ms Li argued that the Dependant Policy is a general family reunion policy.  As such, the Policy obliged the Director to take into account the Asserted Rights when considering the Dembele applications.  In BI, this Court held that on a proper construction the Dependant Policy is not a general family reunion policy.[54]  Ms Li urged the Judge not to follow BI because, according to her submission, the Dependant Policy was manifested and contained in the Legislative Council Brief prepared by the Security Bureau on 30 June 2003 (“the Brief”) which showed that it is a policy of family reunion simpliciter.

147.  Considering himself being bound by BI, the Judge rejected Ms Li’s arguments.  With full reasons, he further found that, contrary to Ms Li’s submission, the Dependant Policy as described in the Brief was on a proper reading premised on dependency but not facilitation of family reunion.[55]

148.  Before us, Ms Li submitted that the Judge erred in his reading of the Brief and had failed to properly make a finding on what the Dependant Policy was.  In light of what the Dependant Policy truly is as set out in the Brief, she invited us to revisit and rescind our judgment in BI, and effectively declare BI and all the previous first instance cases that decided the Dependant Policy is not a policy of general family reunion were made per incuriam.

149.  In BI, we did not consider the Brief when we construed the Dependant Policy because it had not been properly adduced as evidence in the court below.  Having considered it now, I do not think it could possibly detract from the construction of the Policy that this Court and other first instance judges gave.

150.  The relevant parts of the Brief read :

“ 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 person 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.”

151.  As we noted in BI,[56] the Dependant Policy is contained in the Guidebook for Entry for Residence as Dependants in Hong Kong issued by the Director (“the Guidebook”).  Ms Li’s argument that the Dependant Policy is in fact made by the Chief Executive in Council as described in the Brief did not sit well with the actual language used in the introductory part.  As stated, the Brief was only to reflect the CEIC’s order to continue the current Dependant Policy with some minor modifications supported by justifications and reasons.  Plainly, the Dependant Policy was already in existence when the Brief came into being.  In other words, the Brief is not the source of the Dependant Policy.  The Guidebook is.  And the Brief is not intended to contain all the terms of the Policy.  Instead it focused on modifications sought to be introduced.  The full terms of the Dependant Policy are to be found in the Guidebook.  In other words, it is primarily the Guidebook and the terms contained therein that fall to be construed in order to arrive at the true meaning of the Dependant Policy. 

152.  Leaving the above fundamental point aside, the actual wording used in the Brief clearly and objectively denotes a dependency policy rather than a family reunion policy.

(1) The Brief repeatedly and invariably describes the various classes of applicants as “dependants”, presupposing a dependency relationship between the applicants and the sponsors, rather than just some form of familial ties.  In other words, it only designates dependants of the sponsor, and not just any member of the family, as potential applicants.

(2) As rightly pointed out by the Judge,[57] the criteria set out at para 2(a), (c) and (d) of the Brief are in substance the same as those set out in para 5 of the Guidebook;[58] whereas para 2(b) is effectively the same as the opening sentence of para 3 of the Guidebook.  In BI, we have explained why those criteria clearly demonstrate that the Dependant Policy is not a family reunion policy but one premised and focused on dependency.[59]

(3) If it was a family reunion policy, it would not have at para (f) excluded all Mainland residents as dependants, who are arguably the largest and the most natural group of potential applicants for family reunion in Hong Kong.

(4) Ms Li’s emphasis on the phrase “continue to strike the right balance between facilitating family unity and upholding immigration control” at para 4 is out of context.  The phrase must be understood in the entire context of the Brief, including the need to uphold immigration control, the assessment criteria and the continuation of special treatment of applicants on humanitarian and compassionate grounds. Thus understood, it means that while the Dependant Policy has the happy consequences of bringing family reunion, it is not of itself a policy of family reunion : see Palmis v Director of Immigration, HCAL 2104/2001, unreported, 19 February 2003, per Hartmann J at [23]. 

153.  Finally, I would like to reiterate what this Court said in BI,[60] helpfully summarised by Mr Yu, that the Dependant Policy is set within the overall context of highly restrictive immigration control in Hong Kong; that understood in such a context, its objective and purpose is plainly to permit genuine dependants of Hong Kong permanent residents or residents to apply for residence in Hong Kong upon the latter’s sponsorship, subject to satisfying the eligibility criteria set out in the Guidebook.  A family reunion policy as advocated by Ms Li simply has no place in our highly restrictive immigration regime.

154.  Ms Li also relied on the statements by the Immigration Department in its annual reports that “foreigners may be admitted into Hong Kong for the purpose of family reunion, that is, joining residents in Hong Kong as dependants”.  For the same reasons that he gave for rejecting the submission that the Dependant Policy is a family reunion policy and additional reasons, the Judge rejected Ms Li’s submission in this regard.[61] I agree with the Judge entirely.

155.  For the above reasons, I reject Ms Li’s argument that the Dependant Policy is a family reunion policy. BI remains binding on this Court and there is no basis for us to revisit the construction of the Dependant Policy or to declare BI and the first instance cases were given per incuriam.

E2.  Restricting fundamental rights

156.  Ms Li submitted that the Judge failed to construe the Dependant Policy in the context of the protection by the BL of the fundamental rights of the Hong Kong permanent residents under BL art.37 and BL art.24.  But this submission is based on the assumption that BL at.37 and BL art.24 are engaged.  As I have already held, they are not.  Ms Li’s argument, based on a wholly erroneous premise, is plainly wrong.

E3.  Discrimination

157.  Ms Li argued that the administration of the Immigration Ordinance, Cap 115, by the Director gave rise to two differential treatments requiring justification under BL art.25 in the context of the Dembele Appeal :

“ (1) There is the relevant differential treatment between a HKSAR permanent resident who marries a foreign national and a HKSAR permanent resident who marries a Mainland resident. This differential treatment is based on nationality or place of origin of the spouse seeking entry for family unity. The Director’s administration of the Ordinance, including that of the Dependant Policy in the way described in the Respondent’s evidence, imposes the Financial Sufficiency Requirement that the HKSAR permanent resident must satisfy as sponsor, applying primarily to those who marry a foreign national.

(2) There is the relevant differential treatment between a HKSAR permanent resident male who marries a foreign national and a HKSAR permanent resident female who marries a foreign national, due to the Director’s Financial Sufficiency Requirement as a threshold criterion of the HKSAR permanent resident.  Female sponsors are much less likely to be in a position to meet this requirement because of domestic and child rearing responsibilities in the family.  Hence this differential treatment is based on sex and family status.”

158.  Ms Li complained that the Judge erred in holding that there were no relevant differential treatments requiring justification.[62]

159.  The Judge reasoned :

“ 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 paragraph 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.

…

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 utilized in the interest of the community. This is precisely why the courts have repeatedly recognized 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, paragraph 33 :

“ 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 the 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 expenses 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.”

160.  I entirely agree with the Judge’s analysis and conclusion.

161.  Turning to the specific comparison with reference to the position of Hong Kong male and female permanent residents married to a foreign national, the assumption underlying Ms Li’s submission is that female sponsors are less likely to be financially capable of supporting her male applicant.  This projects a stereotype on females not supported by any evidence or logical basis.   

E4.  Para 5C

162.  Ms Li argued that the financial sufficiency requirement imposed on the sponsor alone under Para 5C makes no room for (a) the sponsor and the applicant, as a family unit, to satisfy this requirement and (b) possible arrangements for funding include the applicant working after entry in Hong Kong or third party funding from friends and relatives.

163.  In BI, this Court held that all the three requirements in Para 5C, including the financial sufficiency requirement, are eligibility criteria which must be met, before an application for dependant visa can succeed.[63] In light of our holding, Ms Li’s argument must fail.

164.  The objective of the financial sufficiency requirement in Para 5C is two folded : (1) to ensure that the dependant would not become a burden to Hong Kong; (2) to ensure that the applicant is truly dependant upon the sponsor.  As rightly submitted by Mr Yu, the alternative funding arrangements advocated by Ms Li would introduce far too much uncertainty into a restrictive immigration regime predicated upon close and effective control and wholly undermine the objective and purpose of the financial sufficiency requirement.  The Director is entitled to prefer an arrangement, as per the financial sufficiency requirement, which provides for greater certainty for all concerned parties.  Further, Ms Li’s alternative funding arrangements would subvert the primary requirement of dependancy which (on we held above) provides the rationale for the policy.  In effect, Ms Li attempted to rewrite the policy into a family reunion policy.

E5.  Misapplication of the Dependant Policy

165.  Ms Li submitted that the Judge erred in refusing to hold that the Director had misapplied the Dependant Policy in treating the financial sufficiency requirement in Para 5C as an eligibility criterion that must be met before a dependant visa application is ever considered.  In light of the true construction of the Dependant Policy and the status of Para 5C, the Director had not misapplied the Policy.  Again it is another disguised attempt by Ms Li to rewrite the policy.  The Judge was correct.

E6.  Relevancy and unlawful fettering

166.  In this connection, Ms Li adopted her submissions as set out in Part D1 above.  I reject Ms Li’s submission for the same reasons given there.

E7.  Conclusion

167.  There is no substance in any of the specific grounds of appeal in the Dembele Appeal.

F. DELAY AND SETTING ASIDE EX PARTE LEAVE

168.  I finally come to delay and consider if the Judge was correct in setting aside the ex parte leave in all the three applications for judicial review.[64]

169.  The applicable general principles are not in dispute.  The Judge summarised them thus :[65]

“ (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 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 uncertainly 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 23-26, per Kwan JA.”

170.  In the Comilang application and the Luis application, there were about four and half months and seven months’ delay in the two cases to apply leave for application for judicial review with similar reasons on difficulty and time taken in obtaining legal aid and pending for the handing down of several CFA judgments.  The Judge took the view that these were no good reasons for the delay.  As the judicial reviews were without strong merit, the court refused to grant extensions of time and set aside leave on an inter partes basis.[66]

171.  In the Dembele application, there was a delay of almost three years and one year in challenging the two decisions of the Director respectively.  The Judge held that the difficulty or time taken in obtaining legal aid nor ignorance of the law as alleged by the Dembele applicants could not be a good reason to justify the delay.  As the judicial review was without strong merit, it was proper to refuse to extend time and to set aside leave on an inter partes basis.[67]

172.  In my view, the Judge had correctly applied the principles to the facts before him in all the three appeals.  Ms Li’s argument before us in substance is a mere repetition of her submission before the Judge below.  It has not even begun to show any reason why the Court of Appeal should interfere with the Judge’s exercise of his discretion in setting aside the ex parte leave. 

G. DISPOSITIONS

173.  For the above reasons, I would dismiss all the three appeals.

174.  Costs should follow the event.  I further make an order nisi that the appellants in each of the three appeals are to pay the Director costs of the appeal, to be taxed if not agreed.  The appellants’ own costs are to be taxed in accordance with the Legal Aid Regulations.  I would also give a certificate for two counsel.

Cheung CJHC :

175.  Accordingly, we dismiss these appeals and make the costs orders nisi indicated in the preceding paragraph.