LK AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 77/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 77 OF 2014

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AND

HCAL 98/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 98 OF 2014

________________

________________

AND

HCAL 100/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 100 OF 2014

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________________

(heard together)

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J U D G M E N T

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A.   INTRODUCTION

1.  In each of these judicial reviews, the 1^st applicant is the husband of the 2^nd applicant.  In HCAL 77/2014, the 1^st applicant is also the father of the 3^rd applicant.

2.  The 1^st applicants are all non-Chinese nationals who have no right of abode in or right to enter Hong Kong, and are over-stayers in Hong Kong.  On the other hand, the 2^nd applicants are all Hong Kong permanent residents.

3.  In summary:

(1)   The 1^st applicant (LK) under HCAL 77/2014 (“the LK Judicial Review”) is a national of Ghana.  He entered Hong Kong as visitor in December 2004 and has since overstayed.  In December 2007, he was convicted of two counts of trafficking in dangerous drugs (cannabis) leading to a sentence of 32 months.  He married the 2^nd applicant in January 2011.  The 3^rd applicant was born in May 2011.

(2)   The 1^st applicant (MN) under HCAL 98/2014 (“the MN Judicial Review”) is a national of Pakistan.  He entered Hong Kong as visitor in July 2003 and has since overstayed.  In September 2006, he was convicted and sentenced to 15 months’ imprisonment for offences of breach of condition of stay by taking up unauthorized employment, making false presentation to an immigration assistant and using an identity card relating to another.  He married the 2^nd applicant in June 2010.

(3)   The 1^st applicant (CCO) under HCAL 100/2014 (“the CCO Judicial Review”) is a national of Nigeria.  He entered Hong Kong in April 2008 as visitor but has since overstayed. In March 2010 he was arrested by police and was questioned in respect of suspected offences of breach of condition of stay by overstaying and making false representation to an immigration officer.  However, he has not been prosecuted for any of the suspected offences.  In fact, in December 2012, the Immigration Department made a decision not to prosecute him for breach of condition of stay by overstaying.  He married the 2^nd applicant in November 2010.  Their daughter was born in August 2012.

4.  Subsequent to their respective marriages, each of the 1^st applicants had applied to the Director of Immigration (“the Director”) for taking up residence in Hong Kong as a dependant of his sponsor spouse, ie, the 2^nd applicant.

5.  An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.[1]  It is the Director’s position that under the Dependant Policy, an applicant must satisfy the eligibility requirement (“the NRD Requirement”) that, among others, there is no record of detriment of the applicant before his dependant visa application could be considered.

6.  By various decisions (collectively “the Decisions”) made in July 2011 to October 2013, the Director refused the 1^st applicants’ respective dependant visa applications.  The Director was of the view that their applications did not fall within the Dependant Policy as each of them failed to satisfy the NRD Requirement.  Further, the Director was also not satisfied that there were any exceptional circumstances to justify an exercise of discretion to permit them to stay in Hong Kong under humanitarian or compassionate considerations.

7.  In these judicial reviews, the applicants challenge the Decisions as being unlawful and/or irrational.  Each of the applicants asks the relevant decision to be quashed and remitted back to the Director for reconsideration.

8.  Before I elaborate on these grounds of challenge and consider them, it would be helpful to set out briefly the relevant background under each of these applications first.

B.   BACKGROUND

B1.   The LK Judicial Review

9.  LK is a national of Ghana.  He came to Hong Kong as a visitor in December 2004 and has since overstayed.

10.  In December 2007, he was charged and convicted of two counts of trafficking in dangerous drugs.  He was sentenced to 32 months’ imprisonment.  In September 2008, he formally made a torture claim and in June 2009, a formal removal order was issued against him.

11.  LK first met the 2^nd applicant in March 2006 and in January 2011, he married her.  Their daughter (the 3^rd applicant) was born in May 2011.  The 2^nd and 3^rd applicants are all Hong Kong permanent residents.

12.  In September 2011, LK applied for a dependant visa under the 2^nd applicant’s sponsorship.

13.  By a letter dated 25 July 2013, the Director refused the dependant visa application (“the LK Decision”).  As mentioned in the letter, the Director refused LK’s application on the basis that he did not meet the NRD Requirement and that there were no sufficient justifications to grant him an exception to stay in Hong Kong.

14.  On 7 July 2014, the applicant (with legal aid) applied for leave to judicially review the LK Decision.  This court granted leave on papers on 25 July 2014.

B2.   The MN Judicial Review

15.  MN is a Pakistan national.  He entered Hong Kong in July 2003 as a visitor, but has since overstayed.

16.  MN made a refugee claim with the UNHCR in May 2006.

17.  In September 2006, he was charged and convicted of the offences of breach of condition of stay by taking up unauthorised employment, making false representation to an immigration assistant and using an identity card relating to another.  He was sentenced to 15 months’ imprisonment.

18.  MN formally made a torture claim with the Director in July 2007.

19.  MN first met the 2^nd applicant in November 2009 and they were married in June 2010.

20.  MN first made an application for a dependant visa under the 2^nd applicant’s sponsorship in July 2010.  The Director refused it by a letter dated 21 July 2011 on the basis that he did not meet the NRD Requirement and that there were no sufficient justifications to grant him an exception (“MN 1^st Decision”).  The 1^st applicant asked the Director to reconsider his application respectively in July 2011 and July 2012.  The Director by way of his letters respectively dated 29 December 2011 (“MN 2^nd Decision”) and 8 November 2012 (“MN 3^rd Decision”) maintained his previous decision to refuse the dependant visa application.  The applicants were legally represented in all these applications.

21.  MN’s torture claim was refused by the Director and later the Torture Claims Appeal Board respectively in March and May 2013.  A removal order was issued against MN in August 2013.  His appeal against the removal order was dismissed by the Immigration Tribunal in September 2013.

22.  At the same time, on 18 March 2013, MN through his legal representatives submitted a claim of risk of being subjected to Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) upon his removal to Pakistan under Article 3 of the Hong Kong Bill of Rights.  The CIDTP claim is yet to be assessed by the Immigration Department under the Unified Screening Mechanism.

23.  On 18 August 2014, the applicants applied for leave to judicially review the MN 3^rd Decision.  Leave was granted by this court on papers on 17 September 2014, which was stated to be “without prejudice to the Respondent’s right to (if she so intends) oppose the application also on the basis that there should be no time extension granted to the Applicants”.

B3.   The CCO Judicial Review

24.  CCO is a Nigeria national.  In April 2008, he entered Hong Kong as a visitor but has since overstayed.

25.  In March 2010, CCO was arrested and questioned by police for suspected offences of breach of condition of stay by overstaying and making false representation to an immigration officer.  He has also lodged a non-refoulement claim with the Director.

26.  He first met the 2^nd applicant in September 2008 and they were married in November 2010.  Their daughter was born in August 2012.

27.  Right after the marriage, CCO made an application in November 2010 for dependant visa under the 2^nd applicant’s sponsorship.

28.  In considering the application, in light of the documents and information then available, and CCO’s refusal to give his consent to verify his identification documents with the Nigeria Consulate General, the Director considered that CCO’s true identity had yet to be ascertained.  Further, although the Immigration Department made a decision in December 2012 not to prosecute CCO for breach of condition of stay by overstaying, it is their position that the prosecution of CCO’s suspected offence of making a false representation to an immigration officer upon his visit visa application in 2008 would be deferred until the finalization of his torture claim.[2]

29.  By a letter dated 9 October 2013, the Director refused CCO’s application.  In the letter, the Director explained that the application was refused because (a) it was not satisfied that CCO was able to meet the NRD Requirement; (b) CCO’s claimed identity had yet to be ascertained; and (c) there were no sufficient justifications to grant him an exception.  I would call this the “CCO Decision”.

30.  The applicants applied for leave to judicially review the CCO Decision on 20 August 2014.  This court granted leave on papers on 17 September 2014, which was stated to be “without prejudice to the Respondent’s right to (if she so intends) oppose the application also on the basis that there should be no time extension granted to the Applicants”.

C.   THESE JUDICIAL REVIEWS

C1.   Grounds of judicial review

31.  In November 2014, this court ordered all these three judicial reviews to be heard together as they raise similar grounds of judicial review.

32.  These grounds can be summarised as follows:

(1)   The Decisions are unlawful and Wednesbury unreasonable because:

(a)   The NRD Requirement (insofar as it is an eligibility requirement) is unlawful as it fails to take into account the permanent residence rights of the sponsor and (insofar is applicable) the applicants’ children, the applicants’ right to family and marriage as enshrined in Articles 37 and 39 of the Basic Law, Articles 17, 19 and 20(1) of the Bill of Rights (domesticating Articles 17, 23(1) and 24(1) of the International Convention of Civil and Political Rights), Article 10 of the International Covenant on Economic, Social and Cultural Rights and/or the best interest of the child as provided under Articles 1 to 7, 9 and 18 of the Convention on the Rights of Child and/or common law.  For convenience I will refer all these rights collectively as the “Asserted Rights” and this ground as “the Asserted Rights Ground”.

(b)   The NRD Requirement as an eligibility requirement is also unlawful and Wednesbury unreasonable as it fails to take into account the Asserted Rights or the family unit as a whole.  This is wholly inconsistent with the objective of the Dependant Policy which is (as contended by the applicants) to facilitate family reunion or family unity (“the Family Reunion Objective Ground”).

(c)   The NRD Requirement is unlawful as it is inflexible: under this requirement as applied, the Director is to only take account of the applicant’s past wrongdoing and is not permitted to consider the personal circumstances of the applicant, such as the efforts and contributions made by the applicant’s close relatives and associates in support, the applicant’s rehabilitation, and the applicant’s established married and family life that entrenches the law-abiding, orderly, ordinary and stable life of the applicant.  The NRD Requirement therefore unlawfully fetters the Director’s discretion (“the Fettering of Discretion Ground”).

(d)   The NRD Requirement is unlawful as it is arbitrary in nature given its lack of any clear, defined and certain meaning (“the Arbitrariness Ground”).

(2)   The Decisions are unlawful as the Director has misapplied the Dependant Policy in treating NRD Requirement as an eligibility criterion when on proper construction it is not (“the Misapplication of Policy Ground”).

(3)   The Decisions are unlawful as the Director took into account irrelevant consideration and failed to take into account relevant considerations, or in any event, the Decisions are irrational in light of all the personal circumstances of each of the applicants (“the Relevant and Irrelevant Considerations and Irrationality Ground”).

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

(5)   The decision process was procedural unfair as:

(a)   The Director failed to inform the applicants what amount to the “record” he considered to be potentially “detriment” of the 1^st applicants so that they could address the matter appropriately.

(b)   The Decisions are inadequately reasoned.

(collectively, “the Procedural Irregularities Ground”).

33.  In each of the judicial reviews, the applicants seek the relief of remitting the relevant decisions back to the Director for reconsideration in light of the court’s holding, and a declaration to the effect that the NRD Requirement is not an eligibility criterion under the Dependant Policy.

34.  The Director opposes the judicial reviews and submits that all the grounds of challenges are without merit.  The Director also says in any event no reliefs should be granted in these judicial reviews because of delay.  Further, the Director has taken out summonses respectively in the MN and CCO Judicial Reviews seeking to set aside the ex parte leave on the basis of delay.

C2.   Preliminary observations, relevant principles and approach

35.  Before I proceed to consider the grounds of challenge, it would be helpful to set out some relevant preliminary observations and applicable principles.

36.  It should first be noted that these three judicial reviews are the last of three sets of judicial reviews heard by this court, which raise similar or related grounds of judicial review.  The first set of judicial reviews consists of HCAL 13, 45 and 56/2014 (collectively, “the Pagtama Judicial Reviews”), and the second set HCAL 44/2014 (“the Dembele Judicial Review”).  The applicants and the Director in all these three sets of judicial reviews are represented respectively by the same legal teams.

37.  As I mentioned at paragraph 44 of the judgment (“the Pagtama Judgment”)[3] in the Pagtama Judicial Reviews, in determining similar or related grounds of challenge and issues raised in these sets of judicial review, I have already taken into account all the related and relevant arguments advanced in all of them, including the present judicial reviews.

38.  Thus, in determining in the present judicial reviews those similar and related issues and grounds that have also been raised in the Pagtama Judicial Reviews and the Dembele Judicial Review, I will no doubt refer to the reasons and conclusions reached in the Pagtama Judgment and the Judgment (“the Dembele Judgment”)[4] in the Dembele Judicial Review.

39.  Moreover, as I have repeatedly mentioned in the Pagtama Judgment and the Dembele Judgment, in dealing with judicial review challenges of the Director’s exercise of discretion in refusing an application for permission to stay in Hong Kong, the court should firmly bear in mind certain relevant principles and approach.  I have recently set out those principles and approach at paragraphs 12 - 17 of the Dembele Judgment, after taking into account the Court of Appeal’s recent judgment in BI v Director of Immigration and BH v Director of Immigration (CACV 9, 103 and 134/2015, unreported, 8 March 2016, Cheung CJHC, Lam VP and Poon JA) (“the BI/BH CA Judgment”).  Given the importance of these principles and approach, and for convenience, I will repeat them again below.

40.  First, the Director is entrusted with the power and wide discretion under Article 154(2) of the Basic Law and the Immigration Ordinance (Cap 115) (“IO”)[5] to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions.

41.  Second, it is well established that the Director in the exercise of that power and discretion adopts an overall restrictive immigration control policy.[6]  The legitimacy and rationality of such an overall restrictive policy control applicable to the entire immigration regime is well recognised and accepted by the courts.  It has most recently received the unreserved endorsement by the Court of Appeal in the BI/BH CA Judgment at paragraph 70.  In particular, the Court of Appeal has re-stated the general propositions concerning the immigration regime in Hong Kong at paragraph 92 as follows:

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

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

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

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

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

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

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

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

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

42.  Third, under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within the confines of that broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong.  Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes.  These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors.[7] The Dependant Policy is one such specifically formulated policy.

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

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

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

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

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

See: Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432 at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037; recently referred to in BH v Director of Immigration (HCAL 105/2014, unreported, 14 April 2015,Chow J) at paragraph 64 (as approved by the Court of Appeal in the BI/BH CA Judgment, at paragraph 124).

45.  With these principles and approach in mind, I now turn to look at the grounds of challenge.

C3.   The Asserted Rights Ground and the Family Reunion Objective Ground

46.  Under these grounds, Ms Li SC argues that the NRD Requirement is unlawful or Wednesbury reasonable as its formulation and its application (insofar as it is an eligibility criterion) has failed to take into account the Asserted Rights.  In support of her arguments that the Asserted Rights are engaged and thus have to be taken into account, leading counsel relies fundamentally on the following two contentions:

(1)   First, the Asserted Rights are engaged by the applicants in this immigration context as a matter of law.

(2)   Second, the Asserted Rights are engaged as a matter of relevance since the Dependant Policy is a policy which has the primary objective of facilitating family reunion or unity.

47.  The first contention was similarly advanced in the Pagtama Judicial Reviews while both the first and second contentions were raised in the Dembele Judicial Review.

48.  I have previously rejected these contentions for the reasons given at paragraphs 58 - 188 of the Pagtama Judgment and at paragraphs 20 - 57 of the Dembele Judgment.  I have concluded that the Asserted Rights are not engaged as a matter of law.  I have also concluded that the purpose of the Dependant Policy is not to facilitate family reunion but is a policy based on the showing of the necessary dependency a policy.

49.  As in the Dembele Judicial Review, Ms Li in the present cases has also sought to rely on:

(1)   The Legislative Council Brief (“the 2003 LegCo Brief”) dated 30 June 2003, which set out the Chief Executive in Council (“CEIC”)’s order in relation to the Dependant Policy, to support the contentions that (a) the Dependant Policy is in fact made by the CEIC and not the Director (who is only to apply it); and (b) the objective of Dependant Policy as made by the CEIC is to facilitate family reunion.

(2)   The various annual reports (“the Relevant Annual Reports”)[9] published by the Immigration Department over a number of years to show that even the Immigration Department recognised that the objective of the Dependant Policy was to facilitate family reunion.

50.  For the reasons I have set out at paragraphs 39 - 56 of the Dembele Judgment, I have rejected the contentions that these documents support that the Dependant Policy’s objective is to facilitate family reunion.  I have concluded that instead, they are consistent with the construction that the Dependant Policy is premised fundamentally on showing the necessary dependency.

51.  In coming to the above conclusions in the Pagtama and Dembele Judgments, I have already taken into account the related arguments raised in the present judicial reviews.

52.  In the premises, for the same reasons, I would similarly reject in these judicial reviews the Asserted Rights Ground and the Family Reunion Objective Ground.

C4.   The Misapplication of Policy Ground

53.  The NRD Requirement is set out at paragraph 5(b) of the “Guidebook for Entry for Residence as Dependants in Hong Kong” (“the Guidebook”) published by the Immigration Department.  Paragraphs 3 and 5 of the Guidebook provide relevantly as follows:

“II. Eligibility Criteria

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

(a) his/her spouse;

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

(c) his/her parent aged 60 or above.

4 ...

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

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

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

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

54.  It is common ground in the present cases that the Director concluded that the 1^st applicants were ineligible for the Dependant Policy once he came to the view that the NRD Requirement was not met.

55.  Ms Li contends that the Director in treating this requirement as an ineligibility criterion under the Dependant Policy has misconstrued and misapplied it. Leading counsel relies heavily on the first instance judgments respectively in BI[10]and BH, supra,to support her arguments that this requirement on a proper construction is not an eligibility criterion.  In BI and BH, Zervos J and Chow J respectively heldthat the NRD Requirement was not an ineligibility criterion under the Dependant Policy and the Director had misconstrued it in treating it as such.

56.  However, these first instance judgments in BI and BH have been reversed bythe Court of Appeal in the BI/BH CA Judgment.  In doing so, the Court of Appeal heldat paragraphs 68 - 90 that, on a proper construction of the Dependant Policy and the Guidebook, the NRD Requirement is an eligibility requirement.

57.  The Court of Appeal’s judgment that, as a matter of construction, the NRD Requirement is an eligibility criterion under the Dependant Policy is binding on this court.

58.  Ms Li however also submits I am not bound to follow the Court of Appeal’s above judgment as there is the additional evidence of the 2003 LegCo Brief before this court which was not before the Court of Appeal.  It is her submission that the brief shows that, on a proper construction, the NRD Requirement is not intended to be an eligibility requirement under the Dependant Policy.

59.  For the same reasons I have explained at paragraph 36 of the Dembele Judgment, I regard myself as still bound by the BI/BH CA Judgment on the question of construction of the policy and its terms even though the 2003 LegCo Brief was not before the Court of Appeal.  However, in case I am wrong on this, I would proceed to deal with below Ms Li’s contentions relying on the 2003 LegCo Brief.

60.  Paragraphs 1 to 5 of the 2003 LegCo Brief state as follows:

“INTRODUCTION

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

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

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

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

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

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

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

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

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

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

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

JUSTIFICATIONS

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

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

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

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

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

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

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

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

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

(i) unmarried adult children; and

(ii) other relatives.

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

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

61.  Ms Li submits that all that have been set out in the 2003 LegCo Brief are that there should be a criterion under the Dependant Policy that the relevant dependant visa application should raise no security objection (see paragraph 2(c)).  In the premises, says Ms Li, the requirement of there being no known record of detriment (which in any event has been stated as “no known record of serious crime” in the 2003 LegCo Brief) must be understood in the context of raising no security objection.  In this respect, whether there is or is not such security concern must be a question that involves a balancing exercise looking at all the relevant circumstances of the applicant who has such a record of say serious crime.  For example, Ms Li continues, whether an applicant who has been convicted of a serious crime raises a security concern to Hong Kong would also depend on questions such as how long ago that conviction is, and whether that person has since the conviction rehabilitated and shown to have been living a law-abiding life for a long time.  Thus, when viewed against the proper context of security concern, the NRD Requirement cannot be intended to be a strict eligibility requirement, in the sense that once there is such a record, the applicant is regarded as ineligible for the Dependant Policy.

62.  With respect to Ms Li, I am not persuaded by her submissions.

63.  First of all, underlying Ms Li’s contention is the principal proposition that the 2003 LegCo Brief is the document that sets out and contains the Dependant Policy.

64.  However, I am doubtful that the 2003 LegCo Brief can be treated as the very document which is intended to contain and set out the Dependant Policy entirely with its precise and intended terms.  As expressly stated it, the document is only to reflect the CEIC’s order to continue the current Dependant Policy with some modifications and to explain the reasons behind those modifications. It is therefore obvious that the Dependant Policy has already been made and set well before this document.  The brief is also only to focus on explaining those minor modifications.  In the premises, it is unnecessary for the brief to set out in precise terms the entire Dependant Policy itself.  More importantly, it would be unnecessary for the brief to set out the precise intended terms and criteria adopted under the policy which the CEIC did not intend to modify.  The NRD Requirement is not one of the criteria that is subject to minor modification.  As such, it would not be correct to seek to construe the 2003 LegCo Brief to look for the intended meaning of the NRD Requirement as adopted in the Dependant Policy.

65.  In any event, even assuming (without deciding) that the 2003 LegCo Brief did intend to set out the Dependant Policy, I do not think Ms Li’s contended construction in relation to the NRD requirement is correct.  I will explain why.

66.  First, paragraph 2 of the 2003 LegCo Brief stated clearly that a dependant visa application will be considered “provided that the following criteria are met”. Purely as a matter of objective construction of this provision, it is clear that the criteria set out under paragraph 2 (which included the NRD Requirement) is intended to be ones that the applicant must satisfy before his dependant application will even be considered.  They are therefore intended to be eligibility criteria.

67.  Second, when the 2003 LegCo Brief with the paragraphs quoted above is considered as a whole, it is also clear to me that the Dependant Policy is intended to provide a structured approach whereby:

(1)   The Director has to be first satisfied that criteria set out at paragraph 2 of the 2003 LegCo Brief must be met before an application for dependant visa “will be considered”.

(2)   If the applicant cannot meet those criteria, it is then open to the Director to consider whether there are humanitarian and compassionate reasons to give “special treatment” to allow the applicant to enter as dependant (see paragraphs 3 and 4).

68.  As emphasised by the Court of Appeal in BI/BH CA Judgment at paragraphs 70 and 71, the Dependant Policy must be construed against the context of the overall highly restrictive immigration control policy and the proper construction must be consistent with such restrictive policy.

69.  When viewed against this general restrictive immigration control policy, it must both be legitimate and reasonable for the CEIC (or the Director) to adopt the Dependant Policy where there are fundamental and strict eligibility factors that an applicant must meet before he is eligible for consideration under the policy, failing which his application for permission to stay in Hong Kong would only be considered on the discretionary compassionate and humanitarian grounds.

70.  Third, as the CEIC in the 2003 LegCo Brief was only to order the continuation of the then current Dependant Policy (as stated at paragraph 2), one should objectively assume that when the CEIC referred to the then “current dependency policy”, it was aware of the then position taken by the Director to, among others, treat the NRD Requirement (as consistently been set out in the Guidebook) as an eligibility criterion.  If the CEIC had intended (as the applicants now seek to argue) that requirement not to be an eligibility criterion, one would have expected the CEIC to clarify that position in the 2003 LegCo Brief in seeking to continue that policy.  There is nothing to that effect in the 2003 LegCo Brief.  As such, it must be regarded that the CEIC agreed with the Director’s understanding and treatment of the NRD Requirement as an eligibility criterion.

71.  For the same reasons, the reference to “including no known record of serious crime” at paragraph 3 of the 2003 LegCo Brief should also be understood as an example of the “no known record of detriment” under the NRD Requirement instead of it being intended to be the criterion itself.

72.  In the premises, even if it were open to me to look at the 2003 LegCo Brief notwithstanding the BI/BH CA Judgment, I would still reject the applicants’ contention that the NRD Requirement is not an eligibility criterion.

73.  The Director therefore has not misapplied the policy in making the Decisions.  The applicants fail under this ground.

C5.   The Fettering of Discretion Ground

74.  It is the applicants’ contentions under this ground that the Director in applying the NRD Requirement has unlawfully fettered the exercise of his statutory discretion. This is so since, in applying this requirement, the Director would rigidly and automatically regard an applicant as not meeting it purely and only on the basis that the applicant has such a record of detriment.  The Director would not take into account the other personal circumstances of the applicants, such as the efforts and contributions made by the applicant’s close relatives and associates in support and the applicant’s rehabilitation since their last conviction in living a law-abiding, orderly, ordinary and stable life entrenched and established under the married family life.

75.  I am unable to accept these submissions.

76.  As I have explained above under the Misapplication of Policy Ground, it is legitimate for the Director to adopt the Dependant Policy whereby he is first to consider whether an applicant’s situation falls within that policy by reference to the eligibility criteria, and if not, to proceed to consider whether there are grounds for granting permission to stay on exceptional humanitarian and compassionate basis.  The personal circumstances of an applicant in relation to his or her records of detriment would fall to be taken into account under the Director’s residual discretionary considerations under the exceptional compassionate and humanitarian basis.

77.  Moreover, as A Cheung J (as the learned CJHC then was) held in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219 at paragraph 24, there is no fettering of the Director’s discretion by drawing a certain and workable line for defining the categories of applicants who could fall within the Dependant policy (for the present purposes someone has to have no record of detriments) and then adhere to it.

78.  I therefore also reject this ground of challenge.

C6.   The Arbitrariness Ground

79.  The applicants contend under this ground that the meaning of “no record of detriment” under the NRD Requirement is not defined and is “broad, uncertain and vague in its terms”.  An applicant is therefore simply unable to make an informed response to this requirement.  The NRD Requirement is thus unlawful for being arbitrary and lack of reasonable certainty.

80.  I agree with Mr Yu SC that this ground is without merit.

81.  As submitted by Mr Yu, what constitutes “uncertainty” or “vagueness” in law is itself an open-ended matter that must be determined by reference to the concrete facts and specific context.

82.  Thus, even in the case of regulations or norms which have legal force in themselves, the threshold for establishing that an expressed requirement or standard is unlawful for want of precision or certainty is very high.  Hence, for example, a planning restriction with statutory force or a provision under sub-legislation is not invalid for uncertainty unless it has no ascertainable meaning.  As the Court of Appeal noted in Hysan Development Company Ltd v Town Planning Board CACV 232/2012, unreported, 13 November 2014, at paragraph 125, a case involving planning restrictions alleged to have major detrimental impacts on development, a provision of this kind “will be treated as valid unless it was so uncertain in its language as to have no ascertainable meaning or was so unclear in its effect as to be incapable of certain application.  Mere ‘ambiguity’ would not suffice”.  See also Percy v Hall [1997] QB 924, 941C, where Simon Brown LJ referred to the need for the disputed provision under a statutory instrument to have “no ascertainable meaning” or “so unclear in its effect as to be incapable of certain application in any case”) before the court would declare it invalid.

83.  In contrast with the above example, where allegations of uncertainty and the like are made in respect of a general policy (rather than a statutory or similar provision), any contended requirement for exact certainty cannot work.  This is because policies are by nature very different from legal instruments.  Policies must generally admit a degree of flexibility.  Excessive codification runs counter to this, and may well render a policy or its implementation open to allegations of unlawful fettering or excessive rigidity.

84.  Further, specifically in the immigration policy context, as a matter of common sense, the court recognises and accepts that there are legitimate categories of concern as to criminal or security risks and these categories plainly cannot be exhaustively defined.  It is therefore in the public interest and proper for the NRD Requirement to be broadly formulated and applied in each case by reference to its particular facts with the benefit of the wide experience and perspective of the Director.  In this respect, it is pertinent to refer to the Court of Appeal’s observations in the BI/BH CA Judgment at paragraph 92(2) that in discharge of his duty under immigration control, the Director has to make decisions under the Dependant Policy in light of the macro circumstances and needs of Hong Kong based on matters and information “which could not be fully explained to or understood by the general public”.  This must apply with equal if not greater force in the context of security concern.

85.  When understood in the context of a dependant visa application, the requirement of “no record of detriment of the applicant” conveys a sufficiently clear objective meaning to an applicant that he should not have any records which would make the Director consider it to be adverse to Hong Kong if he is allowed to enter and stay in Hong Kong.  This would obviously include a record which would raise any security concerns, including any concerns on law and enforcement, in Hong Kong.  This in my view is sufficiently clear and certain to enable an applicant to know whether and how he could meet the requirement.  I therefore reject the contention that the NRD Requirement lacks an ascertainable meaning in its terms to make the requirement unlawful.

86.  The applicants also suggest in their skeleton at paragraphs 15, 16 and 20 that there has been a “failure to provide concrete explanation or information of the [NRD Requirement] and how immigration officers would be satisfied” of it and that “it is inconsistent with a policy not to make available information about it”.

87.  In this respect, the Director has in these proceedings disclosed the internal general guidelines (“the Guidelines”) which have been relied upon by the immigration officers to assist them in determining, among others, whether an applicant has a record of detriment under the NRD Requirement.  The Guidelines provide relevantly as follows:

“Here below are general guidelines for internal reference:

‘2. As a general rule, in assessing VC cases, e.g. applications for visas/entry permits, extension of stay etc., case officers are required to ascertain whether the applicants are able to meet normal immigration requirements, including if the applicant be of clear criminal record and that he raises no security or criminal concerns to the HKSAR. Specifically, in processing applications for entry under certain policy heads, such as employment, residence as dependant etc., one of the factors to be taken into account is that there is no known record to serious crime in respect of the applicant before consideration may be given to approving the application (subject to meeting other criteria under the relevant policy).

3. If an applicant is found to have criminal conviction record(s), case officers shall carefully consider the particular circumstances of the conviction record with emphasis on: the nature of the offence, the seriousness and gravity of the offence (including the circumstances underlying or giving rise to the offence, if available), the sentence imposed by the court/tribunal, and the frequency or number of the conviction records of the applicant within a period of time. As far as the consideration of VC cases is concerned, the following are some relevant factors (not an exhaustive list) which may indicate that the criminal conviction record(s) of an applicant may be considered as crime record(s) of serious in nature or that the applicant may be taken as a person with a known record of serious crime:

(a) It involves immediate custodial sentence imposed by the court and the length of sentence.

(b) The nature of the relevant offence involves violence committed against another person or his property whether or not causing death or injury, and other serious offences such as drugs, threat of menace, robbery, theft, forgery, dishonesty etc.

(c) The applicant is a repeated or habitual offender having regard to all his conviction records.

(d) The passage of time when the applicant had last committed the relevant offence.

4. In case that the relevant offence has been regarded as “spent” in accordance with the Rehabilitation of Offenders Ordinance, Cap 297, case officers should also examine the relevant circumstances and nature of the offence with regard to the factors mentioned in paragraph 3 above to determine whether or not the offence is serious in nature.

5. Case officers are reminded that in handling these cases, apart from making reference to the relevant approval criteria and the above-mentioned guidelines, they have to assess and determine each application on its individual merits with due regard to compassionate factors, if any.

6.    Where there is known record of criminal concerns to the detriment of the applicant (but that no criminal conviction has been entered against him), case officers should seek advice from their supervisory officers on the assessment of these cases.’”

88.  Ms Li however says this would not assist the Director.  This is so as unpublished guidelines would not enable an applicant to make any informed responses in seeking to meet the NRD Requirement.  This therefore would not cure the uncertain nature of the requirement.  Ms Li further relies on R(Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admins) at paragraphs 52 - 53, per Stanley Burton J to say that in any event, there is a duty on the Director to publish the Guidelines in relation to the meaning of the NRD Requirement and the failure to do so renders it unlawful for the Director to apply them.

89.  I again accept Mr Yu’s submissions that these complaints are without merits for the following reasons.

90.  As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”.  The Director’s wide discretionary powers over immigration control is derived from the Immigration Ordinance and the Dependant Policy is itself a policy setting out criteria for the exercise of the Director’s statutory powers in certain contexts.  The Dependant Policy is published in the Guidebook.

91.  Materials such as the Guidelines as to the application of policy differ from materials which indicate the policy itself.  Such internal materials are there to assist the practical administration of a policy in respect of particular cases.  Their publication would risk the public confusing such internal guidance provisions as to assessment and administration as themselves representing formal policy.  This is clearly undesirable from both a public administration and public interest standpoint.

92.  The authority of R(Salih) is distinguishable.  It was expressly concerned with “hard cases” involving failed asylum seekers.  The essential complaint in that case was that the Home Secretary’s policy on the provision of support for “hard cases” was simply not made known to those who might seek to benefit from it, see: paragraphs 35 - 36.  In other words, the case was one where there was the existence of an entire unpublished scheme and policy (which was different from an already published scheme and policy) being deliberately withheld from those who stood to benefit from it in a particularly stark context.  Salih therefore provides no support for any general principle that all Government materials which are to assist officers in how to apply a policy, including internal administrative materials, must be made public for the policy to be lawful.

93.  In the premises, if the Guidelines do not result in applying the policy in a way which is inconsistent with the objective meaning of the policy as generally understood by the public, the non-publication of the Guidelines does not amount to any breach of duty recognised in public law.

94.  In my view, there is no inconsistency between the criteria set out in Guidelines and the objectively ascertainable meaning of the NRD Requirement under the Dependant Policy as I have concluded above.  Further, even without knowledge of the Guidelines, given the objective and ascertainable meaning of the NRD Requirement, the applicants are clearly in a position to know whether they may have such an adverse record, such as a criminal conviction, which would raise security concern in Hong Kong and thus to make appropriate responses under this requirement.  This is underlined by the fact the applicants in these cases did make substantive representations in their applications for dependant visa regarding their “records” even without the benefit of the Guidelines.

95.  There are therefore also no merits in these complaints.

96.  In the premises, the applicants’ case falls well short of the high threshold for judicial intervention on the basis of vagueness and uncertainty.  I would also refuse this ground.

97.  Finally, for completeness, I should also note the Director’s submissions (which I accept) that there is no basis for the applicants’ contention made at paragraph 20 of their skeleton that the alleged breadth, uncertainty and vagueness of the NRD Requirement were “designed to exclude applications in an arbitrary manner”, as if bad faith were involved.

C7.   The Legitimate Expectation Ground

98.  This ground stands and falls with the Asserted Rights Ground.  As I have rejected the Asserted Rights Ground, this ground must also fail.

C8.   The Procedural Irregularities Ground

99.  The first complaint of procedural impropriety in each case is that, given the “enormous impact” of the Director’s decisions, he ought to have informed the applicants of what amounted to a “known record to the detriment” in each particular case.

100.  I reject this complaint:

(1)   It is precisely in the light of the self-evident importance of the applications from the applicants’ own perspective that the Director would reasonably and fairly expect that they would, without specific prompting, provide all materials and information thought relevant to their particular situation.  I repeat my observations at paragraph 214 - 215 of the Pagtama Judgment.

(2)   In any event, there is nothing at all to suggest that the applicants were unaware that 1^st applicants’ past conduct would be held against him and would have to be explained or contextualized if the applications were to have any hope of success.  To the contrary, the applicants were clearly aware that the past conduct would be a critical problem.  That is why in each case the applicants did make representations regarding the 1^st applicants’ past conduct and sought to balance things out by extensive appeals based on their family circumstances.  As noted above, MN’s case is particularly stark in that there were multiple rounds of submissions and reconsiderations of the application.

101.  The second procedural complaint in each case was that the Director’s decision was “unreasoned”.  This is similar to the allegation of procedural impropriety raised in the Dembele Judicial Review.  For the same reasons I have set out at paragraphs 105 - 108 of the Dembele Judgment, I am also satisfied that the Director’s respective letters containing the LK Decision, the MN 1^st, 2^nd and 3^rd Decisions and the CCO Decision contain adequate reasons for the present purposes.

102.  In the premises, the applicants also fail under this ground.

C9.   The Relevant and Irrelevant Consideration and Irrationality Ground

103.  Under this ground, the applicants under each of these judicial reviews seek to challenge the relevant decision on the conventional judicial review basis that the Director took into account irrelevant considerations and failed to take into account relevant considerations.  It is also contended that in any event the relevant decision is irrational in the public law sense when viewed against the individual circumstances of their case.

104.  In looking at the complaints made under this ground, I have to bear in mind the principles applicable to the determination of relevance in judicial review set out at paragraph 44 above.

105.  Further, in relation to a challenge against the Director’s exercise of discretion to refuse an application for permission to stay in Hong Kong on lack of exceptional humanitarian and compassionate grounds, it is also important to have regard to the proper approach as laid in the BI/BH CA Judgment at paragraphs 102 - 111 as referred to at paragraph 43 above.  In this regard, it is helpful to remind ourselves what the Court of Appeal has said in particular at paragraph 109 as follows:

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

106.  Finally, as I have accepted at paragraph 202 of the Pagtama Judgment, given the significant impact of the Decisions on the applicants, I will accord a more vigilant review in examining these conventional grounds of judicial review.

C9.1  The LK Judicial Review

107.  In relation to the making of the LK Decision, the Director has filed the Affirmation of Wong Chau Ping and exhibited the file minute M7 to set out the detailed assessment of the case officer and his recommendation to the Director.

108.  This unchallengeable evidence shows that (as summarised by Mr Yu in his skeleton):

(1)   The Director was appraised and has taken close account of LK’s detailed immigration and family background, including the evidence of a genuine matrimonial relationship with the 2^nd applicant, their parenting of the 3^rd applicant, and the 2^nd applicant’s ability to support the family financially. See paragraphs 8 - 11 of M7.

(2)   However, the Director also noted the undisputed fact that LK had been convicted of no less than two counts of trafficking in dangerous drugs leading to a sentence of 32 months’ imprisonment.  See headnote and paragraph 12 of M7.

(3)   On the basis of LK’s manifestly serious criminal history, it was considered that he did not meet the NRD Requirement: paragraph 13.1 of M7.

(4)   However, the assessment of the application did not end there.  In substance and reality, the Director went on to consider the application in the light of all its circumstances, including those highlighted in the 2^nd applicant’s own representations.  Having done so, he reached the conclusion that there were no factors sufficient to merit exceptional treatment for LK in view of his criminal record.  Paragraphs 13.1 - 13.3 of M7.

109.  The applicants now say the Director failed to take into account two relevant considerations in making the LK Decision.

110.  First, they say the Director should have but failed to make the relevant assessment as to whether removing LK from Hong Kong back to his home country would amount to cruel, inhuman or degrading treatment to all the applicants, which is prohibited under Article 3 of the Hong Kong Bill of Rights, bearing in mind that the 2^nd and 3^rd applicants are Hong Kong permanent residents enjoying the right of abode in Hong Kong and other public entitlements in Hong Kong.

111.  I am unable to accept this.

112.  This ground is in effect the flip side of arguing that the Director should take into account the applicants’ family rights and permanent resident rights,[11] which is part and parcel of the Asserted Rights.  I have already concluded above that the Director is not obliged to take into account these rights whether as a matter of law, or as a matter of relevance.

113.  Further, it must be noted that, in support of the dependant visa application, the applicants themselves did not raise with the Director the position and concern that removing LK back to his home country would amount to cruel and inhuman treatment to all the applicants and the reasons why it would be so.[12]  In the premises, it would not be open to the applicants to challenge in the present judicial review that the Director failed to take this (a matter which is also fact sensitive) into consideration when that was not even relied on by the applicants themselves in the dependant visa application.  This is particularly so when these matters are relevant to questions that applicant should reasonably have expected the Director to have in mind in assessing LK’s application for permission to stay.  See the Pagtama Judgment, paragraphs 211 and 214 - 217 and the authorities cited therein.

114.  In any event, in considering whether there are exceptional humanitarian and compassionate grounds to justify exercising his discretion to grant LK the permission to stay in Hong Kong, the Director did take into account the family circumstances of the applicants and the fact that the 2^nd and 3^rd applicants are both Hong Kong permanent residents (see: paragraphs 10.1 and 13.3 of M7).

115.  In the premises, there are clearly no merits in this complaint.

116.  Second, the applicants also complain that the Director failed to take into account the relevant facts that since LK had been released from prison, he had not re-offended, got married to the 2^nd applicant, enjoyed family life, had 3^rd applicant baby daughter, and has been caring for both the 2^nd applicant and the 3^rd applicant as husband and father.

117.  There are similarly no merits in this complaint.  It is clear from the evidence[13] that the Director did take these matters into account when considering whether there existed exceptional humanitarian and compassionate grounds to grant LK permission to stay in Hong Kong.  LK and the 2^nd applicant have set out all these matters in their written representations to the Director in support of the dependant visa application (see written representations respectively dated 15 May 2012 and 16 July 2013),[14] and the Director was fully aware of those in considering the application.

118.  Finally, it is noted that LK in his supporting affirmation has also mentioned:

(1)   at paragraphs 20 and 24 various matters that:

(a)   he could not go back to his father’s home place for he has refused the priest position;

(b)   he had lost contact with his mother in Ghana, so no one could help him to settle in his mother’s home town either;

(c)   the business he once worked in Ghana is now closed and it would be difficult for him to find a new job for he has left the country for 10 years;

(d)   he has no connection in Ghana now and without connections it would be very difficult for him to obtain employment there; and

(2)   at paragraph 21 matters relating to and in support of his torture claim.

119.  If the applicants are seeking to rely on these matters to complain that the Director had failed to take them into account, there is again no merit in the contention. For those matters set out at paragraph 118(1) above, they had not been mentioned to the Director by LK in support of the dependant visa application, and thus it is not open to the applicants now to contend that the Director had wrongly failed to take them into account in making the LK Decision.[15] Insofar as the matters set out at paragraph 118(2) above are concerned, they are matters that should be properly considered in LK’s torture claim, which is exclusively within the purview of the Removal Assessment Section of the Immigration Department.  The torture claim assessment is entirely separate and different from a dependant visa application.[16]  These matters are therefore clearly not relevant to the Director’s consideration of the dependant application.

120.  Finally, it is also contended that the Director took into account an irrelevant consideration when he also considered the fact that there was a deportation order made against LK which was only withheld for the time being pending the determination of his torture claim.[17]

121.  The reference to the deportation order was made at paragraph 13.2 of the M7 under the title “Consideration and Recommendation”.  This reference should be looked at in the following context:

“13. Consideration and Recommendation

13.1 According to the information/documents available, the spousal relationship between AP and SP is satisfied to be genuine. SP’s financial capability to support AP’s living to a reasonable standard is acceptable. Nevertheless, the criminal conviction record in respect of AP is considered as serious in nature and to the detriment of the applicant. As such, it is considered that the application cannot meet the eligibility criteria of having no known record to the detriment of the applicant.

13.2 AP committed the criminal offence of trafficking in a dangerous drug which was serious in nature. He is considered to be an undesirable to the Hong Kong society. The consideration of making of a deportation order for life against him was only withheld for the time being pending the determination of his torture claim.

13.3   In assessing the application, SP’s representation regarding AP’s the criminal offence concerned vide (54) as well as the interests of their tender age daughter have been taken into consideration. Having considered all the circumstances of the case, it is of the view that there is no overwhelming factor meriting our exceptional consideration for departure from the existing dependant policy.  It is recommended refusing the application on grounds of there being known record to the detriment of AP.  The draft refusal letter is prepared at float for your perusal, please.”

122.  In deciding whether there were exceptional circumstances to justify granting LK permission under the humanitarian and compassionate ground, the Director was engaged in a balancing exercise.  In that balancing exercise, the Director is entitled to look at all the circumstances, which must include the seriousness of the offence LK was convicted of and whether there were any other reasons why he should not be permitted to stay in Hong Kong.  In the premises, I cannot see how it can be said that it is Wednesbury unreasonable for the Director to take into account the fact of the deportation order as that would reflect on (a) the seriousness of the offence LK was convicted of; and (b) the fact that LK had already been considered to be undesirable to the Hong Kong Society by reason of that he had committed that serious offence.

123.  For all the above reasons, I reject this ground of judicial review.

C9.2  The MN Judicial Review

124.  As mentioned above, MN is subject to a total of three rounds of decisions by the Director.  MN 1^st Decision made in July 2011 is the Director’s refusal of his dependant visa application made in July 2010.  After that, MN had through his lawyers requested the Director to twice “reconsider” his application respectively in July 2011 and around July 2012, resulting in MN 2^nd and 3^rd Decisions (made in December 2011 and November 2012) whereby the Director confirmed that the previous refusal decision (ie, MN 1^st Decision) should still stand.  The applicants in the present judicial review seek only to challenge the MN 3^rd Decision.

125.  The Director has filed the Affidavit of Lam Wai Men Shirley and exhibited the file minutes M2 to set out the detailed assessment of the case officer and her recommendation to the Director in making the MN 3^rd Decision.

126.  Again, this unchallengeable evidence shows, as summarised by Mr Yu in his skeleton, that:

(1)   The Director’s decision took into account the matters engaged in the earlier decisions as regards MN’s application (as recorded in M10 and M3): see paragraphs 3 - 5.

(2)   The Director noted that MN had been convicted and sentenced to 15 months’ imprisonment for offences involving dishonesty, with his application for sentence review dismissed by the Court.  The offences were considered so serious as to prompt deportation proceedings against MN.  See headnote and paragraphs 15 - 18 of M10; paragraphs 7.1(i) - (ii) of M3.

(3)   The Director assessed that MN’s criminal record should be regarded as a record of known detriment not simply because of the fact of a criminal conviction per se.  Rather, the Director paid close attention to the facts of the case and the nature of the offence: see eg, paragraph 16 of M10; paragraph 7(i) - (ii) of M3; paragraph 11 of M2.

(4)   Notwithstanding the seriousness of the MN’s criminal past, the Director did consider the other circumstances of the case, including those highlighted in the extensive submissions on MN’s behalf through the three rounds of assessment: see eg, paragraphs 8 - 14 of M10 (noting the genuine marital relationship and the 2^nd applicant’s financial capability as a sponsor); paragraph 7 of M3 (noting the 2^nd applicant’s miscarriage).  But on balance the Director concluded that these were insufficient to warrant exceptional treatment given MN’s past conduct.

(5)   Significantly, the express terms of the Director’s assessment make plain that MN’s criminal convictions did not bring an automatic end to his application.  In addition to assessing all eligibility criteria, the Director, had regard to the entire circumstances of the case.  However, he concluded that there were no strong compelling factors or exceptional humanitarian or compassionate circumstances sufficient to justify the exercise of his residual discretion to allow MN to enter or stay as a dependant in view of his past conduct. See for example:

(a)   Paragraph 15 of M10: “for admission of a dependant, one of the factors to be taken into account is that there is no known record to the detriment of the applicant” (emphasis added).

(b)   Paragraph 11 of M2: “These criminal conviction records should be taken into account of in our assessment” (emphasis added).  See also paragraph 12, summarising the refusal recommendation in “all the circumstances of the case”.  This was no mere lip service: the extensive documentation in this case shows that all the known circumstances were actually considered.

127.  Ms Li now argues that the Director in making the MN 3^rd Decision failed to take into account the following relevant considerations:

(1)   The circumstances of the commission of the offences, in that the financial subsistence of a destitute person having fled to Hong Kong for personal safety, the four offences involved two transactions, namely overstaying and taking up unauthorised employment using an identity card relating to another person.[18]

(2)   Since released from prison, MN had not re-offended, got married with the 2^nd applicant, enjoyed family life and has been caring for the 2^nd applicant in the matrimonial home as husband.[19]

128.  I do not accept this contention.

129.  Insofar as the alleged circumstances of the offences are concerned, these are matters which must have already been reflected in the sentence and it cannot be said that it would be Wednesbury unreasonable for the Director not to take that into account.  Moreover, MN himself had not specifically relied on these as matters supporting his application.  It is therefore not open to him to complain that the Director had failed to take that into account.  There is nothing in this complaint.

130.  Insofar as the second matters are concerned, I will repeat my reasons at paragraph 116 above to reject also this complaint.

131.  The applicants also complain that the Director took into account the maximum penalty for each of the offences on conviction for making the decision.  They say this is an irrelevant factor.

132.  This complaint is also without merit.

133.  The reference to the maximum penalty was made in the context of the making of MN 1^st Decision.  It is stated relevantly at paragraphs 15 - 19 of M10 dated 20 July 2011 as follows:

“Adverse Records

15. The crux of this application now rests on the assessment of AP’s previous conviction re para.9. In assessing visa applications, it is required to ascertain whether applicants are able to meet normal immigration requirements, including the applicant be of clear criminal record and that he raises no security or criminal concerns to the HKSAR. Specifically, for admission of a dependant, one of the factors to be taken into account is that there is no know record to the detriment of the applicant before consideration approval of application.

16. To better assess the gravity of AP’s previous conviction, brief facts of the case revealed [#M1]:

16.1

On 08-09-2006

(a) AP was intercepted by ImmD officers inside a laundry workshop in Tuen Mun;

(b) AP claimed that he was MUHAMMAD Ameen born on 14-11-1978 and was the holder of the HKI/C under the mentioned identity;

(c) Under caution, he admitted that he was properly known as MUHAMMAD Naeem born on 18-03-1977 [current identity] and entered HK as a visitor in 08-07-2003 with L/S till 22-07-2003;

(d) He also admitted that he knowingly O/S and TUUE;

(e) He further admitted that he obtained the mentioned HKI/C, which all personal particulars did not relate to him, from a middleman for the purpose of job seeking in 2004; and

(f) With a view to concealing his O/S offence, he falsely represented himself as the holder of the mentioned HKI/C to ImmD officers in first instance.

17. On 12-09-2006, AP was convicted of (a) BOC(O/S); (b) BOC(TUUE); (c) making F/R to an IA; and (d) using an I/C relating to another person. He was sentenced to 2 months’ imprisonment for (a); 9 months’ imprisonment for (b); 2 months’ imprisonment for (c); and 15 months’ imprisonment for (d), all run concurrently making a total of 15 months’ imprisonment.

18. The nature of the offences undoubtedly involved dishonesty in nature and the maximum penalty for the offences on conviction to imprisonment are varied from 2 to 14 years (BOC – 2 years; Making F/R to an IA – 14 years; Using an I/C relating to another person – 10 years). All offences involved immediate custodial sentence imposed by the court. His application of sentence review was dismissed by court. DAC decided to go for deportation against AP on the basis that he had been found guilty in HK of offences punishable with imprisonment for not less than 2 years and that his presence in HK poses a threat to law and order. Yet, solely in the lack of a determination of AP’s CAT claim, it was considered to be premature to proceed with the application for a Deportation Order [#M17].

Recommendation

19. Having considered all circumstances of the case, I recommend refusing this application on grounds of:

(a) AP’s criminal records are weighty to the detriment of AP in terms of the nature, gravity, sentence imposed and the number of the convictions records; and

(b)   There is no overwhelming ground justifying exceptional consideration of the case.”

134.  After referring to the potential maximum penalty of the offences that MN was convicted of, the Director also took into account the actual length of sentence MN was given, the fact that the offences involved dishonesty, and the brief facts relating to the offences, before he came to the conclusion that the actual offences committed by MN were indeed serious.  It is obvious that the potential maximum penalty of the offence reflects the offence’s potential serious nature and thus is a relevant factor that the Director could take into account to assess, together with other relevant factors, the severity of the offences committed by MN.  In such a context, at the least it cannot be said that it is Wednesbury unreasonable for the Director to refer to the potential maximum penalty of the offences as a relevant consideration.

135.  Finally, MN also says the Director in reaching the MN 3^rd Decision referred to MN 2^nd Decision as set out in M3.[20]  Under that the Director suggested that MN and the 2^nd applicant could have “other avenues” such as “relocating to [MN’s] home country” and concluded that there was no undue hardship on them if his application for dependant visa was refused.  Ms Li submits that in so doing, the Director failed to properly discharge his Tameside duty by asking the right question and acquainting himself with all the relevant information, when the applicants were not even informed of that “other avenue” in the context of undue hardship for comments and responses.  The decision is thus irrational and unreasonable and should be quashed.[21]

136.  I do not agree.

137.  It was MN’s case that he should be allowed to stay in Hong Kong with the 2^nd applicant instead of his home country.  It must be within the applicants’ reasonable contemplation that questions would be raised in the Director’s mind as to why it would be unduly harsh for them to be in MN’s hometown instead of Hong Kong.  It would be up to MN to raise with the Director his matters of concern, if any, in these respects.  He did not do so and he cannot now complain that the Director should have asked him question on this issue of hardship so that he could respond to them. See also the reasons given at paragraphs 214 - 215 of the Pagtama Judgment.

138.  Finally, MN also raises the same complaint made by LK that removing MN from Hong Kong back to his home country would amount to cruel, inhuman or degrading treatment to the applicants.  For the same reasons I have rejected LK’s ground, I also reject this contention.[22]

139.  For all the above reasons, the applicants also fail under this ground.

C9.3  The CCO Judicial Review

140.  The Director has filed the Affirmation of Wong Chau Ping and internal minutes M6 and M7 to show that, in making the CCO Decision:

(1)   The Director had no doubts as to the genuineness of the marital relationship between CCO and 2^nd applicant or as to the latter’s ability to give financial support within the dependant relationship.  See: paragraphs 11 - 12 of M6.

(2)   The Director did however note serious discrepancies as regards the CCO’s purported identity (see eg, paragraph 10 of M6; paragraph 2 of M7) and further assessed that CCO had a record to his detriment, namely documented facts which indicated a likelihood of future conviction for making false representations in his previous immigration documents (paragraph 13 of M6; paragraph 3 of M7).

(3)   However, the Director did not treat CCO’s application as at an end simply because of his failure to comply with the NRD Requirement:

(a)   Rather, considering the full circumstances of the case, the Director concluded that there were no other grounds sufficiently strong to overcome CCO’s known detrimental record.

(b)   This was a matter of considering whether the matters said to be in CCO’s favour were sufficient to outweigh his past conduct.  That past conduct did not of itself constitute a peremptory or conclusive reason for the dismissal of the application.

141.  As stated in the Director’s refusal letter dated 9 October 2013, CCO’s application was refused on the basis that:

(1)   He could not meet the NRD Requirement;

(2)   He could not meet the normal immigration requirements; and

(3)   There were no exceptional humanitarian and compassionate grounds to justify granting him permission to stay.

142.  Moreover, it is also specifically stated in the letter that CCO’s claimed identify had yet to be ascertained. 

143.  Bearing the above in mind, I now turn to look at CCO’s specific complaints in this ground.

144.  First, Ms Li says the Director cannot take into account “the suspected offences of making a false representation into account” to conclude that there was a record of detriment of CCO.  Leading counsel emphasises that there is yet any conviction and thus there cannot be any “record” of such.  Further, Ms Li argues that it is in any event also irrational for the Director to do so now, as what would be the case if CCO is eventually either not prosecuted of the offences or, even if prosecuted, he is acquitted. It would then be absurd that CCO is refused permission to stay in Hong Kong because there is a “record” of his detriment.

145.  I am not persuaded by Ms Li’s arguments.

146.  As a start, the ordinary meaning of the word “record” includes any written documentation.  This is particularly so when this criterion is imposed in the context of Hong Kong’s security concern under the overall strict immigration control.  In that context, it must be intended under this criterion that the Director could look at any records beyond criminal convictions which may show a security concern.  For example, if the Director has information in his records to show that an applicant seeking permission to come to Hong Kong may be involved in terrorist activities.  It cannot be seriously suggested that, as a matter of proper construction, it is not intended under this criterion that the Director cannot regard that as a record of detriment even though that applicant does not have a criminal conviction or has not been successfully prosecuted of those activities.

147.  In the premises, I cannot accept the argument that it is not open to, and thus irrelevant for, the Director to take into consideration of CCO’s suspected offences when there was yet any prosecution and conviction.

148.  The applicants’ more pertinent contention is probably that, given the absence of yet a conviction, there was insufficient basis for the Director to form the view that these particular suspected offences could be regarded as so serious to be a record of detriment of CCO to render him not meeting the NRD Requirement.

149.  In this respect, it should be noted that the Director’s unchallenged evidence is that:

(1)   When CCO applied to the Immigration Department for visit visa in January 2006, he claimed in the application that he was a sales representative employed by a company called “Legacy Concepts Limited” since 2004.  The application was sponsored by a Hong Kong resident known as Ms Fung Shui Ling, who claimed to be the manager of a local company called “V6 Kam Fa Fashion Wholesale” (“V6”).  It was also claimed that CCO was allegedly a customer of V6.  The application was supported a number of documents verifying the above.

(2)   A visit visa was issued to CCO in February 2008 for a single journey to Hong Kong for a period of 14 days.

(3)   On 2 April 2008, CCO entered into Hong Kong on the strength of his Nigerian Passport with the said pre-approved visit visa. He was permitted to remain in Hong Kong until 16 April 2008.

(4)   However, he has since overstayed.

(5)   Moreover, as mentioned above, he cannot now satisfy the Director that his true identity is in fact that of the above Nigerian Passport.

(6)   Further, after being arrested and when interviewed by the immigration assistant, he also stated that:

(a)   He had knowingly overstayed in Hong Kong since 17 April 2008.

(b)   His parents were killed in Nigeria.  Although he did not know the reason why they were killed, he was afraid that he would also be killed if he remained in Nigeria.  So, he came to Hong Kong “to save [his] life” and overstayed in Hong Kong.

(c)   He applied for an entry visa to Hong Kong via his friend in Nigeria.  He was given some “forms and papers” by his friend and was asked to sign all the forms and return to him without filling out the contents therein (which he did).

(d)   He denied having been employed as a sales representative by “Legacy Concepts Limited” and denied having seen the said letter invitation from V6 and/or knowing Ms Fung and anything concerning the invoices submitted, claiming that he did not know what his friend had done to help him obtain the visit visa from the Immigration Department.

150.  In light of this evidence, I am satisfied it must be reasonably open to the Director to form the view that CCO had intentionally made a false representation to the Immigration Department in relation to his visit visa application.  CCO clearly did not state in his visit visa application his alleged true reason for coming to Hong Kong.  He must therefore also be aware of the fact that he had put in an untrue reason in the application.  This involves dishonesty on the part of CCO in seeking to obtain permission to come to Hong Kong.  It must therefore be reasonably open to the Director (bearing in mind the overall restrictive immigration policy and Hong Kong’s security concern) to regard the above records of showing CCO’s intentional false representation as a serious record of his detriment which raises security concern, and hence non-compliance with NRD Requirement.[23] In any event, in whichever way one looks at it, it cannot be said that the Director’s said conclusion is irrational in the public law sense.

151.  Ms Li further contends that the Director fettered his discretion in relying on “normal immigration requirements” as a basis of refusing CCO’s application to take up residence in Hong Kong.  This is so as, Ms Li says, “normal immigration requirements” are not specific eligibility considerations.[24]

152.  There is nothing in this contention.  As a matter of common sense and logic, for a valid normal visa application, there must be some basic and essential immigration requirements that the applicant should show and satisfy, such as proof of his true identity and holding a valid passport, before he could be properly considered under the relevant category of immigration policy.  Such “normal immigration requirements” are in addition to and have nothing to do with the specific eligibility criteria relevant under the Dependant Policy.  Paragraph 15 of the Guidebook has also made it clear as follows:

“15. In general, unless a person has the right of abode or right to land in the HKSAR, he/she requires a visa/entry permit to take up residence as dependant in the HKSAR. While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit. It should be noted that the eligibility criteria may be subject to change from time to time.”

153.  There is therefore nothing irrational for the Director in the exercise of his discretion under immigration control to rely on “normal immigration requirements” to refuse CCO’s application.  As I mentioned above, the Director also formed the view that CCO had failed to prove his true identity.  Further, CCO had also refused (for whatever reasons he put forward) to renew his passport and thus he was at the material times not holding a valid passport.  In the premises, it must be similarly reasonably open to the Director to conclude that CCO cannot satisfy the normal immigration requirements and thus refuse the application also on this basis.

154.  The applicants then complained that, in concluding that CCO had failed to prove his identity, the Director had failed to take into account CCO’s explanations regarding the discrepancies concerning his identity.[25]

155.  There are no merits in this complaint.  The Director’s reasons for arriving at the above conclusion can be seen at the relevant parts of M6, which stated as follows:[26]

“9. AP’s background

9.1 AP last arrived in Hong Kong on the strength of a Nigerian passport on 2-4-2008 and was permitted to remain as visitor until 16-4-2008. However, he did not depart and had overstayed in Hong Kong. On 3-3-2010, he was arrested by the Police for having overstayed in Hong Kong and was referred to our Department for further enquiry on 5-3-2010. Under caution, he admitted to have overstayed in Hong Kong. In addition, he also admitted that he went to Hong Kong in order to save his life as his parents were killed. He requested his friend to apply entry visa for Hong Kong for him and he claimed that he only signed on the application form and paid the visa fee. He claimed to have no knowledge on the content and the supporting documents for the visit visa application. During enquiry, he lodged a torture claim to our Department.

9.2 After investigation, AP was suspected to have committed the offences of (i) breach of condition of stay by overstaying & (ii) making a false representation to an immigration officer upon his visit visa application in 2008. On 17-3-2010, it was decided to defer the prosecution on the suspected offences until finalization of his claim. On 31-3-2010, AP was released on recognizance pending for the removal arrangement.

9.3 On 27-12-2012, it was decided not to instigate prosecution against AP on his suspected offence of breach of condition of stay by overstaying. According to the records, AP’s torture claim is still under processing.

10. Identity of AP

10.1 Upon the arrest in 2010, AP was in possession of a Nigerian passport (valid till 13-11-2012) under ID1 [2]. In this application, AP produced his birth certificate [17], bachelorhood certificate [17], affidavit from AP’s father for AP’s bachelorhood [84] and driving licence [15] to substantiate his identity.

10.2 Upon inspection, AP’s driving licence bore his photo but recorded a different identity as ID2. AP stated that the driving licence was applied through his brother and he claimed that it was the error of the Nigerian authority [42]. Even it was an error of the Nigerian authority and he could get the driving licence through his brother, he was required to attend in person for the amendment [54].

10.3 On top of the above discrepancies, AP’s birth certificate [16] and AP’s bachelorhood certificate [17] also contained discrepancies. Regarding the birth certificate issued by the Onitsha South Local Government Council, it was issued on 15-11-2010 and the data fields for place of birth and hospital register number were left blank. AP stated that his parents asked their neighbor who travelled to Hong Kong to bring his birth certificate to him in 2010 [54]. Regarding the bachelorhood certificate issued by the Onitsha South Local Government Council on 15-11-2010 [17], it was based on the sworn affidavit of AP’s father on 15-11-2010 [84].

10.4 According to our records, AP had reported his father was dead in 3 occasions. The details are summarized below:

Date	Occasions	Details
6-3-2010	Interview at Castle Peak Bay Immigration Center	AP reported his father and mother were dead in the ‘Personal and Family particulars form (ID457) and Interview report regarding his grounds for non-removal (SF/IM/645).
15-3-2010	Record of interview at Castle Peak Bay Immigration Centre	AP stated that his parents were killed by somebody.
11-3-2011	Submission of supporting documents	AP’s reported his father and mother were dead.

10.5   It is unconvincing that AP could obtain the bachelorhood certificate in 11/2010 from his father who was reported as deceased as early as 3/2010.  In AP’s clarification in 11/2012, he claimed that his father was deceased in 12/2011 [86].

10.6   In view of the numerous discrepancies found in AP’s identification documents, he was asked to provide his consent to verify his personal documents with the Nigerian consulate [48].  However, he refused to provide his consent as he stated that it will be put him and his family members at risk if he authorized us to conduct record checks with the Nigerian authority [54].  AP also refused to renew his passport and requested us to conclude the application [105].

10.7   Based on the above findings, the true identity of AP is yet to be ascertained.

...

13. Consideration and Recommendation

13.1   AP admitted under caution that he applied for a visit visa for Hong Kong in order to save his life instead of for business purpose as claimed in the application.  He alleged that he only signed on the application form and claimed to have no knowledge on the supporting documents submitted.  The prosecution of his suspected making false representation was deferred pending the determination of his torture claim.

13.2   The available information indicates a likelihood of conviction of the offences which is detrimental to AP’s application.  The above offence was considered to be serious in nature.  It is considered that the record is to the detriment of the AP.

13.3   Having considered all circumstances of the case, there is no overwhelming ground justifying exceptional consideration of the case.  It is recommended refusing this application as there is known record to the detriment of AP and the identity of AP is in doubt as there is no conclusive evidence to confirm his true identity.  The concerned refusal letter is drafted at float.

...”

156.  It is clear that the Director in forming the view that CCO had not been able to prove his true identity had already considered CCO’s explanations for the discrepancies although the Director was not satisfied with them[27].

157.  Ms Li then further submits that even if the Director could rely on normal immigration requirements as a basis to refuse the application, he had failed to take into account the relevant facts that (a) CCO could “readily renew his Nigerian passport”; (b) CCO had “an understandable concern in relation to approaching the Nigerian authorities” (which has manifested into his pending torture claim); (c) CCO has a clear criminal record in Hong Kong; (d) CCO raises no security or criminal concerns to Hong Kong in that even if (which is not admitted) it were true that he gave the representation that he was coming to Hong Kong on business when his intention was to come to Hong Kong to save his life, such conduct with such intention should nonetheless be considered reasonably excusable; and (e) there is no likelihood of him becoming a burden to Hong Kong in light of the 2^nd applicant’s financial support.

158.  I do not accept these submissions.  First, all these alleged relevant matters are premised on the basis that the underlying allegations in support of CCO’s torture claim are established.  However, they have not been so established.  As such, they cannot be regarded as relevant matters that the Director must take into account.  Alternatively, it cannot be said that it is Wednesbury unreasonable for the Director not to take them into account as relevant. Second and in any event, as said by the Director,[28] given that CCO’s true identity is in doubt, it is reasonable for the Director not to accept and assume that CCO could “readily” had his passport renewed, and hence, it is not unreasonable for the Director not to regard this as a relevant matter.

159.  Finally, the applicants raise the arguments that the Director failed to take into consideration that refusing to grant permission to CCO to stay in Hong Kong would amount to cruel, inhuman and degrading treatment to all the applicants. For the same reasons I have explained in LK, I reject this complaint also.[29]

160.  The applicants must also fail under this ground.

C10.  Conclusion on the grounds of challenge

161.  For all the above reasons, I reject all the grounds raised in support of these judicial reviews.

D.   DELAY

162.  Delay in applying for judicial review is relevant in two aspects.

163.  First, under section 21K(6)(a) of the High Court Ordinance (Cap 4) and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made promptly after the relevant decision is made, and in any event not later than three months thereafter.  The court retains a power to extend time, but that power is only to be exercised if “good reason” is shown.  In this respect, if the court has granted leave on an ex parte basis, the respondent may seek to set aside on an inter partes basis that leave for delay.  However, if the respondent seeks to do so, although the court does have the jurisdiction to deal with it even at the substantive hearing, generally speaking it is preferable to have such an application dealt with promptly: BI/BH CA Judgment, paragraphs 134 - 139.

164.  Second, delay is also relevant at the stage of relief. It is trite that even if an applicant can establish his grounds of judicial review, the court may still refuse to exercise its discretion to grant relief for reasons of hardship, prejudice or detriment to good administration caused by the delay.  See: section 21K(6)(b) of the High Court Ordinance; BI/BH CA Judgment, paragraph 135.

165.  In the present judicial reviews, Ms Li accepts that there has been delay on the part of the applicants in applying for leave for judicial review in each of the three cases.

166.  In light of these delays, the Director (a) asks the court not to exercise its discretion to grant reliefs even if the applicants can establish any grounds of challenge in the LK Judicial Review; and (b) asks the court by way of summons dated 24 August 2015 to set aside the ex parte leave granted respectively in the MN and CCO Judicial Reviews.

167.  I would deal with the Director’s applications in each of these cases in turn.

D1.   The LK Judicial Review

168.  In this judicial review, there is a significant delay of nearly 11 months for LK to apply for leave (the LK Decision was made on 25 July 2013, while the leave application was made on 7 July 2014).

169.  Mr Yu for the Director submits that even if the grounds of judicial review are established, the court should not grant any relief in light of the substantial delay as there is clear prejudice and detriment cause to good administration:

(1)   The first point is that the extant challenge constitutes ongoing prejudice to the effective public administration of immigration control over the applicants.  The reality in this case is that LK is an overstayer whose presence in Hong Kong has been unlawful for a very substantial period since 11 December 2004, and remains so: see Wong Chau Ping’s Affirmation at paragraph 39. The late judicial review challenge should not be allowed to stand as impediments to the Director’s intention and ability to remove LK on the basis that he is an immigration offender.  There may or may not be other impediments to removal (eg, a pending CAT claim), but those must be judged on its own separate terms and before the appropriate tribunal.

(2)   From a broader but no less vital perspective, in the context of public administration, which is by nature a systemic enterprise, lenience towards delay prejudices and erodes the integrity and efficacy of the system as a whole.  Thus, delay is inherently prejudicial to public administration.  The court should thus be slow to brush aside this particular form of prejudice simply on the basis that it is, by nature, systemic rather than case specific.

170.  Mr Yu has also submitted that in considering whether relief should be granted as a matter of discretion, this court could and should take into account the factor that there is a high likelihood that LK’s dependant visa application would meet the same outcome if remitted back to the Director for fresh consideration.  In support, Mr Yu relies on the judgment of Chow J in TH v Director of Immigration (HCAL 114/2014, 20 July 2015) at paragraphs 68 and 76 - 78.

171.  I accept Mr Yu’s above submissions.  As I have previously said in the Pagtama Judgment at paragraph 238(3) and the Dembele Judgment at paragraph 119(4), the substantial delay in making the application for judicial review in immigration cases would result in prejudice and detriment to good administration, which has a serious effect and impact generally on immigration control.[30]

172.  Further, I also agree that even if the Director is to reconsider LK’s dependant visa, realistically speaking there is a high likelihood that the Director would reject the application having regard to the following matters:

(1)   Given the BI/BH CA Judgment, the NRD Requirement is an eligibility requirement, and LK is clearly unable to meet it and thus his application would not fall within the Dependant Policy.

(2)   What would be left in LK’s application is for the Director to consider whether there are exceptional humanitarian and compassionate grounds to grant him permission to stay.  In this respect, it is also highly likely that the Director would not exercise that discretion even on reconsideration given:

(a)   The well established, stringent, immigration policy as applied by the Director.

(b)   The fact that the Director had taken the view that LK’s adverse record involved dishonesty and was serious in nature, which view the Director was clearly entitled to take.

(c)   The weight that might be attached to LK’s adverse record was primarily a matter for the Director and not for the court.

173.  Having taken all the above into consideration, I would therefore not exercise my discretion to grant relief in this judicial review.

D2.   The MN and CCO Judicial Reviews

174.  In these two judicial reviews:

(1)   There is a delay of more than 21 months for the applicants to apply for leave in the MN Judicial Review (the MN 3^rd Decision was made on 8 November 2012, while the leave application was made on 18 August 2014).

(2)   There is a delay of about 10 months for the applicants to apply for leave in the CCO Judicial Review (the CCO Decision was made on 9 October 2013, while the leave application was made on 20 August 2014).

175.  As I said above, the Director asks for the ex parte leave to be set aside for delay.

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

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

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

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

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

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

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

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

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

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

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

177.  The explanations for the delay and justification for extension of time in both judicial reviews as advanced by Ms Li are similar and are in gist as follows:[31]

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

(2)   The main part of the delay is caused by the legal aid applications.  Reasonable efforts were taken to seek to secure the success of the application, bearing in mind that the Legal Aid Department initially refused the application presumably on the merits.[32]  Difficulties in obtaining legal aid funding are often regarded as a good reason to extend time, unless there is real prejudice to the other side.  This is particularly so as it is unrealistic to expect the applicants to pursue the judicial reviews themselves given the complexity of the issues involved.

(3)   Since the grant of legal aid, reasonable time and care has been taken for assignment of junior and leading counsel, and to prepare the application for filing.  All in all, solicitors and counsel have proceeded with due expedition and diligence.[33]

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

(5)   The prejudice to the applicants if extension of time is not given is disastrous and they may become separated as members of the family.

(6)   The issues raised in the judicial reviews are substantial and more than reasonably arguable.  They are of great general public importance.

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

(1)   The periods of delay have been substantial, particularly when considered against the outer three-month limit.  This is particularly so for the MN Judicial review.  In considering delay in that case, the court is entitled to and should take into account the fact that MN 1^st dependant visa application was already refused in July 2011, and the MN 3^rd Decision is effectively the applicants’ regeneration of the first refusal decision made by the Director.  It is trite that an applicant cannot circumvent delay in taking out a judicial review by re-generation of the relevant decision in asking the decision maker to re-consider it.[34]

(2)   There is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time: Re Thomas Lai, supra, at paragraph 48(1), citing Wong Chi Keung v Commissioner of Police (HCAL 1/2010, 11 May 2010), paragraphs 57 - 72; BH, supra, at paragraph 100 and the cases cited therein.  In this respect, it must also be noted that the applicants in both judicial reviews had all along been represented by lawyers in seeking the consideration (and reconsideration in the case of MN) of the dependant visa applications.  In other words, they had all along been legally advised.

(3)   As I have already said above, delay in bringing these judicial reviews plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of 1^st applicants was tolerated pending the determination of this judicial review.  MN has remained in Hong Kong as an overstayer since July 2003,[35] while CCO has been so since 17 April 2008.[36]

(4)   Moreover, for the reasons I have set out above, the judicial reviews are without strong merit.[37]  When this factor is looked at together with the magnitude of the delay and the absence of adequate explanation for them, it is proper to refuse to extend time.  The submission that there would be disastrous hardship on the applicants if extension of time is not granted as the 1^st applicants would be separated from the other applicants must similarly be viewed against the merits of the challenges.

179.  I therefore would also refuse to grant extension of time, and set aside the ex parte leave granted in both the MN and CCO Judicial Reviews.  In light of this, it is unnecessary for me to consider whether reliefs should be refused for reasons of delay.

E.   CONCLUSION

180.  For all the above reasons, the applicants have failed in all the grounds advanced in support of these applications.  I would therefore dismiss these judicial reviews.

181.  Further, in relation to the MN and CCO Judicial Reviews, I would also refuse to grant extension of time and set aside the ex parte leave on the basis of delay.

182.  I further make an order nisi that costs of each of the judicial reviews and the applications to set aside leave (in MN and CCO Judicial Reviews) be to the Director to be taxed if not agreed, with certificate for two counsel.  The applicants’ own costs be taxed in accordance with legal aid regulations.