DI AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 135/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 135 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  In this judicial review, the applicants challenge the decision (“the Decision”) of the Director of Immigration (“the Director”) dated 23 October 2014.  In the Decision, the Director refused the 1^st applicant’s application (“the DV Application”) to take up residence as a dependent of the 2^nd applicant.

2.  The applicants seek the relief of quashing the Decision.

B.   BACKGROUND

3.  The relevant background leading to this judicial review is generally not in dispute and can be summarized as follows.

B1.   Background of the applicants

B1.1. The 1^st applicant’s arrival in Hong Kong, criminal conviction and imprisonment

4.  The 1^st applicant is a Gambia national born on 15 August 1980 in Gambia.  He had a history of travelling to Hong Kong in 2007 and 2008.  He last arrived Hong Kong on 21 December 2009 on the strength of his Gambian passport.  He was permitted to remain as a visitor until 28 December 2009.

5.  The 1^st applicant was involved in a criminal offence committed in March 2008 and a warrant of arrest was issued against him on 22 June 2009.  He was thereafter arrested on 22 December 2009 for attempted fraud (after his arrival in Hong Kong on 21 December 2009).  On 11 February 2010, he was convicted of the offence of attempted fraud (“the Conviction”) and was sentenced to six months’ imprisonment.

6.  Apart from the Conviction, the 1^st applicant was arrested on 20 April 2014 for obstructing a public officer and assaulting a Police officer.  On 8 October 2014, he was bounded over in the sum of HK$1,000 for 12 months without conviction (“the Bound Over”).

B1.2. The 1^st applicant’s non-refoulement claim and Removal Order

7.  The offence of attempted fraud is an offence punishable for imprisonment of not less than two years and is serious in nature, and the 1^st applicant is liable to deportation on the basis of the Conviction under section 20(1)(a) of the Immigration Ordinance (Cap 115). Since the Conviction had led to the Director to conclude that his continued presence in Hong Kong would pose a threat to law and order, the Director had considered applying for a deportation order to be made against him based on the Conviction.[1]

8.  While he was serving his imprisonment sentence as a result of the Conviction, the 1^st applicant lodged a torture claim by letter dated 22 March 2010.  In view of such application, the Director withheld the application for a deportation order against him pending the outcome of his torture claim.

9.  On 21 April 2010, the 1^st applicant was discharged from prison and transferred to the Immigration Department (“ImmD”) for detention and consideration of removal.  On 11 May 2010, a removal order was made against the 1^st applicant and he did not lodge an appeal against the removal order.  He was subsequently released on recognizance on 26 May 2010 given his pending torture claim.

B1.3. The 2^nd to 4^th applicants and other relatives of the 1^st applicant

10.  The 2^nd applicant is a Hong Kong permanent resident born on 18 February 1991.

11.  The 1^st and 2^nd applicants were married in Hong Kong on 16 April 2011.  She gave birth to the 3^rd applicant and the 4^th applicant on 26 May 2012 and 1 May 2014 respectively.

12.  The 1^st applicant also has an illegitimate son born on 26 February 2006 in a cohabitation relationship.  According to the information submitted by the 1^st applicant, his parents and illegitimate son are currently residing in Ghana.

B2.   The Director’s application of the policy in considering dependant visa applications

13.  An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.[2]  In relation to such an application, the ImmD has published the “Guidebook for Entry for Residence as Dependents in Hong Kong” (“the Guidebook”) which has set out, among others, the relevant “Eligibility Criteria” at paragraphs 3 and 5 as follows:

“‘II. Eligibility Criteria’

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

a. his/her spouse;

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

c. his/her parent aged 60 or above.

4 …

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

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

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

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

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

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

(2)   There is no record of detriment of the applicant (“the NRD Requirement”);

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

B3.    The 1^st applicant’s applications for Taking up Residence as a Dependant of the 2^nd applicant in Hong Kong[3]

15.  The Director had considered the 1^st applicant’s dependant visa applications on three occasions:

(1)    The 1^st applicant’s first application was submitted on 9 May 2011, (which was shortly after his marriage to the 2^nd applicant on 16 April 2011) (“the 1^st Application”).  This was refused by the Director on 30 March 2012.

(2)   On 15 May 2012, the 2^nd applicant requested for a reconsideration of the application (“the Request for Reconsideration”).  Upon reconsideration, the Director maintained his refusal decision on 3 September 2012.

(3)   On 9 October 2013, the 1^st applicant submitted a fresh application (ie, the DV Application), which was eventually refused by the Director on 23 October 2014 (ie, the Decision).

B3.1. The refusal of the 1^st Application

16.  After an assessment based on all the information provided by the 1^st and 2^nd applicants, the 1^st Application was refused by the Director on the basis that the 1^st applicant could not meet the NRD Requirement and there were no exceptional circumstances to justify a departure from prevailing policy.

17.  The reasons for the refusal recorded in the ImmD’s internal minute M7 dated 26 March 2012 can be summarized as follows:

(1)   The immigration officer considered all the available information and formed the view that the matrimonial relationship between 1^st and 2^nd applicants “could be established” (paragraph 8.2) (ie, the Genuine Relationship Requirement was satisfied).  She also noted that the 2^nd applicant was pregnant and her expected delivery date was 1 June 2012 (paragraph 8.2).

(2)   In terms of the 2^nd applicant’s financial capability, the immigration officer was satisfied that the 2^nd applicant was able to support the 1^st applicant’s living in Hong Kong to a reasonable standard (see paragraphs 9 and 11.1) (ie, the Financial Capability Requirement was satisfied).

(3)   In respect of the Conviction, it was noted that the offence of attempted fraud involved an element of dishonesty and immediate custodial sentence was imposed by the court.  Further, she also noted that the deportation proceedings against the 1^st applicant were withheld at that time only because he had an outstanding torture claim.  As such, the officer considered that the 1^st applicant failed to meet the NRD Requirement (see paragraphs 10, 11.1 and 11.2).

(4)   Further, having considered all the circumstances of the case, including the 1^st applicant’s representations and the 2^nd applicant’s pregnancy, it was considered that there was no overwhelming factor meriting exceptional consideration from departure from the dependant policy (see paragraphs 11.2 and 11.3).

(5)   As such, the immigration officer recommended to refuse the dependant visa application.

B3.2  The Refusal of the request for Reconsideration

18.  In the Request for Reconsideration, the 2^nd applicant stated, among others, that as she was pregnant at that time, she was concerned that she would have to stop working for about two months after giving birth, her income would be reduced and she would not be able to maintain living necessities; she therefore required the 1^st applicant to be issued with a Hong Kong identity card for him to work and support the living costs.

19.  On 16 May 2012, the ImmD acknowledged receipt of the Request for Reconsideration and on 27 July 2012 requested the 1^st applicant to provide additional information, which was provided.

20.  After assessment based on all the information provided by the 1^st and 2^nd applicants, the Request for Reconsideration was refused by the Director again on the basis that the 1^st applicant could not meet the NRD Requirement and there were no exceptional circumstances to justify a departure from prevailing policy.

21.  The reasons for the refusal recorded in the ImmD’s internal minute M4 dated 30 August 2012 can be summarized as follows:

(1)    The officer’s consideration was focused on the issue as to whether the Conviction should be regarded as a known record to the 1^st applicant’s detriment under the dependant policy.

(2)    She noted the birth of the 3^rd applicant on 26 May 2012 (ie, after the refusal of the 1^st Application on 30 March 2010).

(3)    The officer also noted that the 2^nd applicant had resumed working as a customer service officer in the same company with a basic salary of HK$7,560 (see paragraph 10).

(4)   She considered that the Conviction should be regarded as a known record to the detriment of the 1^st applicant in view of (see paragraph 11):

(a)   the serious nature of the Conviction which involved dishonest and illegal acts;

(b)   the sentence imposed;

(c)   the decision to commence deportation proceedings against the 1^st applicant which was only withheld by reason of the outstanding torture claim;

(d)   the issue of the removal order against the 1^st applicant; and

(e)   the Conviction was not a spent record within the meaning in the Rehabilitation of the Offenders Ordinance (Cap 297).

(5)    After having considered all the circumstances of the case and the information provided by the applicants, the officer came to the view that the Conviction was serious in nature and there were no overwhelming factors or other justifiable reasons warranting exceptional consideration for departure from the dependant policy and recommended to maintain the refusal decision (see paragraph 12).

B3.3  The DV Application

22.  On 9 October 2013, the 1^st applicant submitted a fresh dependant visa application (ie, the DV Application).

23.  On 16 October 2013, the ImmD acknowledged receipt of the DV Application and on 27 November 2013 requested the 2^nd applicant to provide additional information and documents.  On 29 January 2014, the 1^st applicant submitted the requested information and documents, which included, among others, a breakdown of the 2^nd applicant’s monthly income and expenses (“Monthly Breakdown”).

24.  According to the Monthly Breakdown (which was prepared after the birth of the 3^rd applicant but before the birth of the 4^th applicant):

(1)   The 2^nd applicant spent HK$1,500 ‑ 2,000 each month on baby food.  Her monthly savings amounted to about HK$420 ‑ 1,400.

(2)   There was no indication that the 2^nd applicant had any other source of income or financial assistance, aside from her salary.

25.  On 14 February 2014, the ImmD received a letter dated 13 February 2014 from Messrs Daly & Associates (“D&A”), the legal representatives of the 1^st and 2^nd applicants, requesting “reconsideration” of the Director’s decisions dated 30 March 2012 and 3 September 2012, enclosing (i) a medical report confirming the pregnancy of the 2^nd applicant; and (ii) a reference letter in respect of the 1^st applicant’s character.

26.  On 17 February 2014, the ImmD clarified with D&A that the 1^st and 2^nd applicants had already submitted a fresh application on 9 October 2013.

27.  On 12 March 2014, the ImmD requested the 2^nd applicant to provide additional information and documents in respect of the financial position of the 1^st and 2^nd applicants.  In response, D&A submitted the requested documents and information by letter dated 10 April 2014.

28.  Between 17 April 2014 and 16 October 2014, there were further exchanges of correspondence between the ImmD and D&A regarding the progress of the DV Application.  In the meantime, the 4^th applicant was born on 1 May 2014 and the ImmD was notified of that by D&A.

29.  As mentioned above, the DV Application was eventually refused by the Director on the basis it could not meet both the NRD Requirement and the Financial Capability Requirement, and there were no exceptional humanitarian or compassionate circumstances to justify a departure from the prevailing policy.  The reasons for the refusal are recorded in the ImmD’s internal minute M7 dated 15 October 2014.  They are in gist as follows:

(1)   In assessing the application, the immigration officer took into consideration the identity of the 1^st applicant, the matrimonial relationship between the 1^st and 2^nd applicants, the financial capability, the Conviction and all the representations made by them and D&A on their behalf.

(2)   She was satisfied that the Genuine Relationship Requirement was satisfied (see paragraphs 10 and 11).

(3)   In respect of the 2^nd applicant’s financial capability (see paragraphs 12 and 14.1):

(a)   The officer took into account all information submitted by the 2^nd applicant including her income (her average monthly earning was HK$9,580 during the period from March 2013 to February 2014), expenses (as per the Monthly Breakdown), credit report and savings.  The 1st applicant’s monthly savings before the birth of the 4^th applicant amounted to about HK$420 ‑ 1,400.

(b)   She was satisfied that the 2^nd applicant had a regular income, that she was debt free and maintained a low three to four digits balance in her bank account most of the time.

(c)   It was also noted that the 2^nd applicant only had a disposable income of around HK$6,680 (after deduction of rent from her average salary) for the family of four.

(d)   Taking into account all the available evidence, the officer was not satisfied that the 2^nd applicant would be able to support the living of her family of four (including the 1^st applicant) at a standard well above the subsistence level.

(4)   As regards the Conviction, the officer considered that the Conviction was a record to the detriment of the 1^st applicant in view of the following (see paragraphs 13 and 14.2):

(a)   The Conviction for the offence of attempted fraud was a serious offence which involved dishonest acts and resulted in an imprisonment sentence.

(b)   It would not be in the public interest to allow the 1^st applicant to remain in Hong Kong.

(c)   The deportation proceedings against the 1^st applicant were withheld for the time being only by reason of his outstanding torture claim.

(5)   She did not consider the Bound Over record to be a known record to the detriment of the 1^st applicant (see paragraph 13.2).

(6)   She took into consideration the representations of the 2^nd applicant’s legal representatives (ie, D&A) regarding the interests of her children and her family.

(7)   Based on all the available information, the officer recommended to refuse the application on the grounds that (see paragraph 14.3):

(a)   there was a known record to the detriment of the 1^st applicant (ie, the Conviction);

(b)   the 2^nd applicant’s inability to meet the Financial Capability Requirement; and

(c)   there was no overwhelming compassionate ground justifying exceptional consideration.

30.  By letter of 23 October 2014, the 1^st applicant was informed of the Decision.

31.  On 21 July 2015 (ie, about nine months after the Decision), the applicants applied for leave to judicially review the Decision. Leave was granted by this court on papers on 7 September 2015.

C.   THIS JUDICIAL REVIEW

32.  By way of two summonses respectively dated 6 May and 28 July 2016, the applicants seek leave to respectively amend and further amend the Form 86 to add additional grounds of judicial review.  These grounds are to incorporate arguments relating to respectively the Legislative Council Brief dated 30 June 2003 entitled “Immigration Policy on Entry of Dependants” (“the LegCo Brief”) and a set of internal guidelines of the ImmD entitled “Guidelines on Assessment of Visa Control (VC) Cases Concerning Applicants with Criminal Conviction Records” (“the Internal Guidelines”).  The amendments are in the form of a revised draft Amended Form 86 (“Draft AF86”) attached to the latest summons.  The applicants have by summons also dated 6 May 2016 asking for leave to adduce the LegCo Brief as exhibit to the 2^nd Affirmation of Tong Thi Xuan.

33.  The Director opposes the amendments on the basis that the new grounds are not reasonably arguable.

34.  For the purposes of this judgment, I am prepared to consider this judicial review on all the grounds (including the proposed new grounds) as set out in the Draft AF86 and the LegCo Brief on de bene esse basis.  At the end of such consideration, I would deal with whether leave to amend should be given.

35.  At the same time, by way of summons dated 12 November 2015, the Director applied to set aside the ex parte leave granted to the applicants on the ground of delay.  In response, the applicants applied by summons (“the Strike Out Summons”) on 15 January 2016 to strike out the Director’s summons.  The Director later filed an amended summons (“the Setting Aside Summons”) seeking to set aside the ex parte leave on the additional basis of material non-disclosure.

36.  I will deal with the Setting Aside Summons and the Strike Out Summons at the end of this judgment.

37.  First, I will now look the grounds of judicial review in turn, in the order as succinctly and helpfully set out by Mr Dykes SC in his skeleton for the applicants.

C1.   Grounds of judicial review[4]

C1.1. Ground 1: The Discrimination Ground

38.  Under this ground, Mr Dykes contends that the NRD Requirement and the Financial Capability Requirement are unlawful as they do not similarly apply to spouses coming from the Mainland on a One-Way Permit (“OWP”) and as such discriminate against Hong Kong residents marrying a foreign national.[5]

39.  I have rejected similar contentions challenging the Financial Capability Requirement in Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016) at paragraphs 58 - 67.  As I have explained at paragraphs 60 - 63, the Dependant Policy and the OWP schemes are two different schemes with different nature and objective, and are to serve different and distinct purposes.  There are no meaningful and relevant comparisons that can be made to support any contentions of discrimination by reason of differential treatment.[6]  Further, I have also held at paragraphs 64 - 66 that, in any event, even if there is relevantly differential treatment requiring justification, the requirement has been clearly met in an immigration policy context.

40.  These reasons apply with equal force, if not more so, to reject the discrimination contentions raised against the NRD Requirement.

41.  By way of supplemental written submissions, Mr Dykes further contends that the NRD Requirement and the Financial Capability Requirement under the Dependant Policy are discriminatory, since the Director has now indicated during oral submissions that he has no power to refuse OWP holders entry into Hong Kong because Article 22(4) of the Basic Law takes the matter of control over entry out of Hong Kong Government’s hands altogether.

42.  With respect, I am also unable to agree with this submission.

43.  As submitted by Ms Tong, in this regard, the unchallengeable position on this issue is:

(1)    Mainland residents who wish to enter Hong Kong for whatever reason, must first apply to the Mainland authorities for approval as provided for under Article 22(4) of the Basic Law.[7] Such applications for approval are governed by Mainland national laws and administrative regulations.[8]

(2)    The OWP Scheme is implemented by the Mainland authorities to enable Mainland residents to come to Hong Kong in an orderly manner for settlement and for family reunion.  Mainland residents who wish to settle in Hong Kong for family reunion must apply for OWPs from the relevant Mainland authorities.[9]

(3)    The application, approval and issue of OWPs fall exclusively within the remit of the Mainland authorities.[10] In other words, the Hong Kong Government has no power to decide whether any individual Mainland resident should be granted a OWP.  The Hong Kong Government facilitates only at case level, including verifying supporting documents submitted by applicants and their claimed relationship with relatives in Hong Kong.[11]

(4)    However, a Mainland resident travelling to Hong Kong and seeking entry into Hong Kong on the strength of a OWP will nonetheless be subject to the same immigration control powers of the Director as any other visitor (of other nationalities) seeking entry.  In this respect, the power of the Hong Kong Government to exercise immigration controls as stipulated under Article 154(2) of the Basic Law applies equally to OWP holders.[12]

44.  In light of the aforesaid, and given that it cannot be disputed that the Hong Kong Government may exercise immigration control over OWP holders seeking entry into Hong Kong (and may refuse their entry on a case to case basis), it is not necessary for me to deal with the detailed analysis in the applicants’ supplemental skeleton argument concerning the interplay between Articles 22(4) and 154(2) of the Basic Law.

45.  Further, the mere fact that the NRD Requirement (as formulated under the Dependant Policy) is not imposed on them as an eligibility requirement under the OWP Scheme cannot mean that the Dependant Policy is “discriminatory” in effect as contended by the applicants:

(1)   Different guidelines and policies (implemented by the Director in the context of stringent immigration control) with different eligibility criteria apply to persons seeking entry into Hong Kong for different immigration purposes.[13] Dependant visa applications are assessed by reference to the eligibility requirements under the Dependant Policy.

(2)   There can be no meaningful comparison between the eligibility requirements under different immigration policies given that they achieve different objectives and purposes and apply to different situations.

(3)   The purported comparison between requirements under the Dependant Policy and the OWP Scheme is wholly inapt, given that the two schemes are distinctly different in their operation, purposes and objectives.[14] This is particularly so given that the eligibility requirements and assessment criteria of the OWP Scheme are formulated and implemented exclusively by the Mainland authorities.  The Hong Kong Government has no powers as regards the formulation of eligibility requirements or the assessment of applications under the OWP Scheme.

See again: Dembele, paragraphs 63 - 64; and H v Director of Immigration, supra, at paragraph 44, per Chow J.

46.  For all these reasons, the applicants fail under the Discrimination Ground.

C1.2. Ground 2: The Relevant Family Concern Ground

47.  Relevant to this ground, for the purpose of this judicial review at first instance level, the applicants accept that they cannot challenge the following propositions as now can be extracted from the Court of Appeal’s judgment BI v Director of Immigration [2016] 2 HKLRD 520 (CA) and this court’s judgment in Pagtama v Director of Immigration (HCAL 13, 45 & 56/2014, 12 January 2016, Au J):

(1)   The Guidebook is not a general family reunion policy.  See: BI, at paragraphs 55 - 66 and Wong Hing Wa’s Affidavit at paragraph 30.  The current policy as formulated is not primarily based on any specific consideration of family and children rights: Wong Hing Wa’s Affidavit, paragraphs 29 - 30.

(2)   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 a right to remain in Hong Kong: BI at paragraphs 92(5) - (6); Pagtama at paragraphs 58 - 106.

(3)   A family member of the applicant who is a Hong Kong permanent resident cannot rely on his or her rights in the Bill of Rights or the Basic Law to require the Director to approve the DV application: BI at paragraph 92(7).

(4)   The right to family in Article 10 of the ICESCR and in common law, and the best interests of children in the Convention on the Rights of the Child and in common law are not engaged in these circumstances: BI at paragraphs 94 - 97; Pagtama at paragraphs 107 - 188.

48.  However, the applicants still make effectively three principal contentions under this ground.

49.  First, Mr Dykes argues that family interest must be taken into account as a relevant consideration generally in the decision making process of a dependant visa application but not only when considering whether there are exceptional circumstances.  This is so since under the Genuine Relationship Requirement of Dependant Policy, only immediate family members of a sponsor are entitled to apply.  In the premises, says Mr Dykes, it must be implied in the policy that family unity and children’s interest are a relevant consideration, if not the primary or major consideration.  Mr Dykes asks, if it were otherwise, why have a Dependant Policy at all?  If these interests are not relevant at all save in exceptional circumstances, the drafters of the policy would not have chosen the requirement of being a direct family member to be the first requirement.

50.  In particular, Mr Dykes says paragraph 4 of the LegCo Brief reads “… on the whole, the assessment criteria … continue to strike the right balance between facilitating family unity and upholding immigration control”.  That is a statement of high policy formulated by the Chief Executive.  “Exceptional” cases are identified at paragraph 3 of the LegCo Brief being persons who are not within the eligibility criteria at paragraph 2.

51.  Second, even if family unity and children’s interests are to be treated as merely humanitarian and compassionate grounds, they ought to be considered in every case, not merely when exceptional circumstances arise.  This is so because:

(1)   Paragraph 3 of the LegCo Brief makes it clear that the Dependant Policy takes these grounds into account and does not limit consideration to exceptional cases; and

(2)   Paragraph 5 of the Internal Guidelines also specifically directs the Director to “assess and determine each application on its individual merits with due regard to compassionate factors”.

52.  In the premises, in doing so, the Director must at least have regard to the following factors in the present case, as matters affecting the 1^st applicant’s family and implicitly engaged:

(1)   whether the removal of the 1^st applicant will sever the relationship between him and the 2^nd to 4^th applicants;

(2)   whether the 2^nd to 4^th applicants can be reasonably expected to relocate to Gambia with the 1^st applicant; and

(3)   whether the 1^st applicant’s removal will have a serious impact on the children’s welfare and upbringing.

53.  Third, even if the applicants are wrong in the above contentions, and the Director has absolutely no duty to consider humanitarian and compassionate grounds, the Director in this case, however, did consider them, and did so in an unreasonable manner which makes it liable to the court’s scrutiny: BI at paragraphs 104 and 108.

54.  Mr Dykes then submits that the Director’s consideration of the applicant’s family circumstances is plainly unreasonable in the public law sense and should be quashed.  The M7 apparently recorded the reasons and decision-making process.  The following observations are material:

(1)   The Director was given the birth certificates of the 3^rd and 4^th applicants as enclosures 7 and 45 and was satisfied that they were born of the 1^st and 2^nd applicants in wedlock (at paragraphs 11.2 - 11.3).  No further mention is made about the children.

(2)   The Director acknowledged the 2^nd applicant’s solicitors’ representations in a letter dated 22 May 2014 on the children’s interests (at paragraph 14.2) but did not explain how the representation was considered.

(3)   The Director refused giving any fresh or further consideration of present circumstances by relying merely on the 2^nd applicant’s pregnancy three years ago in May 2011 (at paragraph14.2).

(4)   The Director did not explain why the applicants’ family circumstances do not constitute the “overwhelming compassionate ground warranting exceptional consideration” (at paragrah14.3).

55.  I am not persuaded by Mr Dykes’ arguments.

56.  There are no merits in the first contention:

(1)   There are three eligibility requirements under the Dependant Policy.  An applicant must satisfy all three requirements before he or she is eligible to be considered to be granted a dependant visa.  The first requirement is that the applicant must fall within certain identified immediate family relationship, where the 1^st applicant has satisfied.  However, in the present case, the Director concluded that the 1^st and 2^nd applicants could not satisfy the other two eligibility requirements of the NRD Requirement and the Financial Capability Requirement, and hence the 1^st applicant is not even eligible for being considered for a dependant visa.  These two requirements have nothing to do with the purported family concerns.

(2)   Insofar as if Mr Dykes is saying that the Director should have taken into account these family concerns as relevant matters in formulating and considering the NRD and Financial Capability Requirements, I have rejected the same arguments in Dembele at paragraphs 23 - 56and LK v Director of Immigration (HCAL 77, 98 & 100/2014, 9 August 2016, Au J)at paragraphs 49 - 52.  In rejecting those arguments in those two cases, I have already taken into account the LegCo Brief but also rejected the submissions that the LegCo Brief showed that the Dependant Policy was in nature a family reunion policy.  Mr Dykes’ first contention therefore is neither here nor there and must be rejected.

57.  There is equally no substance in the second contention that the Director must in every dependant visa application case consider humanitarian and compassion ground:

(1)   The Court of Final Appeal in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332, 339 and 347 has held that the Director is not bound to consider such exceptional humanitarian and compassionate circumstances, and the court cannot interfere if the Director does not so consider.  Thus, it is entirely a matter of discretion for the Director to decide whether to take into account humanitarian and compassionate considerations once an applicant is found not to have come within the Dependant Policy.  Again, the applicants cannot challenge this proposition.  In the premises, Mr Dykes’ second contention is also without merit, as in substance, leading counsel is contending that the Director must consider every dependant visa application on humanitarian and compassionate ground, and in doing so must take into account the family concerns.

(2)   In any event, in the present case, the Director indeed considered whether there were exceptional humanitarian and compassionate circumstances to justify departure from the policy and grant the 1^st applicant the dependant visa.  The Director concluded there were no such exceptional circumstances.  Mr Dykes’ second contention is thus neither here nor there insofar as the present case is concerned.

58.  Finally, what is left is that Mr Dyke’s third contention that it is Wednesbury unreasonable for the Director to so conclude and thus the court should interfere the Decision under judicial review.  There are again no merits in this contention.

59.  As mentioned at paragraph 92(8) of BI, 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.

60.  If the Director 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 BI, paragraphs 102 - 111.

61.  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.”

62.  In the present case, D&A on behalf of the applicants have in their letter dated 13 February 2014 submitted to the Director in detail and at length various matters and grounds which they had asked the Director to take into consideration to approve the DV Application.  In particular, and relevantly, in the letter, D&A had drawn the Director’s attention to and emphasized:

(1)   The circumstances and matters of the Conviction which the magistrate had taken into account in granting him a lighter sentence.  The fact that the 1^st applicant had not reoffended since the Conviction, and was not a threat to Hong Kong society, and that the original offence was not of a violent nature.  They had also provided the Director a letter of character reference from a Pastor.

(2)   The fact that the 1^st and 2^nd applicants had the first child (the 3^rd applicant) and were expecting the birth of their second child (ie, the 4^th applicant) in about two months’ time.  The importance to the family, in particular the best interests of the children, to permit the 1^st applicant to remain in Hong Kong to enable the family to be together as a whole.  They stressed that “there is no greater impact on the life of a child than her family and family environment”.

(3)   They had underlined the submission that it was no answer to say that the 2^nd to 4^th applicants could relocate their lives to live with the 1^st applicant, as this would not only deprive their rights to reside in Hong Kong but was also not reasonable or proportionate to uproot the entire family and expect them to emigrate to another country in order to keep her marriage and family intact.

63.  Further, by their follow up letter dated 22 May 2014, D&A had informed the Director of the birth of the 4^th applicant. They again emphasized to the Director the importance of taking into account the best interests of these minor children of the 1^st and 2^nd applicants by allowing them to keep the family intact in Hong Kong.

64.  As summarized at paragraph 29 above, and as recorded in M7, the Director was clearly aware of these submissions and matters as stated in D&A’s letters (see paragraph 14.3 of M7).

65.  In the premises, the evidence shows that the Director did take into account the family circumstances and concerns of the applicants in his decision making process.  It was only after taking into full account all the circumstances and the representations made by D&A that the Director decided there were no sufficient exceptional grounds to warrant a departure from the existing policy.

66.  Bearing in mind the principles I have identified at paragraphs 60 and 61 above, and giving regard to the wide discretion of the Director and the context of whether there should be exceptional treatment against a stringent immigration control, it certainly cannot be said the Director’s decision not to exercise his discretion despite all the family concerns of the applicants is one that no reasonable person in the position of the Director would have come to.  As observed by the Court of Appeal in BI, one cannot simply infer that, because of an adverse decision, the Director did not take into account the relevant considerations, including any potential hardship on the family.  In a Wednesbury unreasonable challenge in this respect, the law does not require the Director to explain at length why the family circumstances could not prevail over other general considerations in making out a case for exceptional treatment.

67.  I therefore also reject this ground of challenge.

C1.3. Ground 3: The NRD Requirement Ground

68.  Under this ground, Mr Dykes argues that the Director has misinterpreted the NRD Requirement by giving it a meaning inconsistent with the Dependant Policy as recorded in the LegCo Brief and the Director’s related policies on admitting immigrants.  Leading counsel submits that “no known record of detriment,” properly interpreted, refers only to records of serious crime.  This is so as paragraph 2(c) of the LegCo Brief provides that dependency applications will be considered provided that they meet the criteria that, among others, “there is no security objection to the application, including that the applicant has no know record of serious crime”.  Further, Mr Dykes says, in determining whether a criminal conviction amounts to one of a serious crime, the Director is obliged to refer to his own Internal Guidelines.

69.  I have considered similar arguments based on the LegCo Brief in LK and rejected the same at paragraphs 64 - 71 as follows:

“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.”

70.  Mr Dykes submits that LK’s reasoning is not valid as I was wrong in saying at paragraph 64 that the LegCo Brief was not an authoritative statement of the Dependant Policy.

71.  With respect, this submission is misplaced.  As I have made clear at paragraph 65 in LK, I went on to consider the arguments assuming that the LegCo Brief did intend to set out the Dependant Policy, and I eventually rejected those arguments for the reasons set out thereafter.  Those reasons are equally applicable to reject Mr Dykes’ above contentions based on the LegCo Brief.

72.  Leading counsel further says his suggested interpretation of the NRD Requirement is further supported by the Director’s own understanding of his policies in other areas:

(1)   The Director’s policies of Quality Migrant Admission Scheme[15] and Capital Investment Entrant Scheme[16] distinguish between criminal records and adverse immigration records.

(2)   In particular, note 2 to paragraph 2.1(d) of the ImmD’s “Rules for the Capital Investment Entrant Scheme” promulgated in January 2012 makes it clear that dependants of the applicants of the Capital Investment Entrant Scheme can apply to join the applicants under the DV Policy and that the dependants should raise “no security objection” and have “no known record of serious crime”.

73.  This comparison in my view is also misplaced.  As submitted by Ms Tong for the Director, the immigration schemes concern wholly different contexts and serve different purposes and objectives.  It is a matter of policy decision for the Administration to decide what criteria should be imposed in different immigration schemes for the specific purposes and objectives of the specific scheme.  One cannot without more simply make a direct comparison between them to consider whether a particular criterion under one scheme should be understood as the same as another criterion in another scheme.  Again see similar conclusion held by Chow J in H at paragraph 44.

74.  Mr Dykes’ reliance on the Internal Guidelines also does not help him.

75.  The Internal Guidelines set out 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.’” (emphasis added)

76.  The Internal Guidelines do not in any way limit the meaning of “no known record of detriment” to only serious criminal records.  Properly looked at (in particular the italicized parts of paragraphs 2 and 6 thereof as quoted above), record of serious criminal is but only one of the examples of a record of no detriment.  See also similar conclusion reached by Chow J in H at paragraph 43.

77.  Mr Dykes however says in any event the Director did not act in accordance with the Internal Guidelines in the present case in:

(1)   failing to “carefully consider the particular circumstances of the conviction record” including the circumstances underlying or giving rise to the offence and the fact that the 1^st applicant did not commit any offence since the Conviction in February 2010 (paragraph 3 of the Internal Guidelines); and

(2)   failing to assess and determine each application on its individual merits with due regard to compassionate factors as required by paragraph 5 of Internal Guidelines.

78.  There is also no merit in this complaint.  As demonstrated by M7 and summarized above, the Director in making the Decision had taken into account and considered D&A’s detailed submissions relating to the circumstances of the offence as committed by the 1^st applicant and considered by the magistrate, the reference that the offence did not involve violence, and that the 1^st applicant had not reoffended since the Conviction.  Further, as set out at paragraph 3 of the Internal Guidelines, it is open to the Director to consider whether the record “involves … forgery, dishonesty”, of which the 1^st applicant’s conviction of fraud belongs to.  The Director’s approach in assessing whether the 1^st applicant had a known record of detriment is therefore consistent with the Internal Guidelines.

79.  I therefore reject this ground of challenge.

C1.4. Ground 4: The Financial Capability Requirement Ground

80.  Under this ground, the applicants contend that the Financial Capability Requirement properly understood does not require the 2^nd applicant to show her ability to support the 3^rd and 4^th applicants on top of supporting the 1^st applicant.  This is so as, says Mr Dykes, the requirement as stated at paragraph 5(c) of the Guidebook only requires the sponsor to show that she could financially support the 1^st applicant a living standard well above subsistence level.

81.  Thus, the applicants say, the Director was wrong in law in concluding in the Decision that the 1^st and 2^nd applicants could not satisfy the Financial Capability Requirement because she now had to show that she could also financially support an additional child (the 4^th applicant).

82.  There is nothing in this contention.

83.  The requirement must be that the 2^nd applicant is able to show she has the financial means to support the 1^st applicant in substance and in reality.  To assess that, the Director must be entitled to look at all other regular and reasonable expenses that the 2^nd applicant is required to pay in order to see whether she could indeed financially support the 1^st applicant a living standard well above the subsistence level.[17]  The expenses spent or need to be spent on the 3^rd and 4^th applicants are part of these expenses that the Director is entitled to look at.

84.  This ground therefore also fails.

C1.5. Ground 5: The procedural unfairness ground

85.  Under this ground, it is said that the Director acted procedurally unfairly as he had failed to inform the 1^st and 2^nd applicants his concerns about the 2^nd applicant’s ability to meet the Financial Capability Requirement.  This is so in these particular circumstances because:

(1)   The Director had no issue with the 2^nd applicant’s complying with the Financial Capability Requirement in the two earlier applications.

(2)   The 2^nd applicant was aware of the Director’s favourable consideration in these applications.  Given her recent increase in salary and the absence of any material change in other aspects of her financial status (regular income, debt-free), she would not have expected the Director to think differently when considering the DV Application.

(3)   The applicants’ solicitors had corresponded with the Director several times chasing up the outcome of the DV Application but the Director’s replies were completely silent on this new concern.

(4)   At the same time, without specifying what constituted “well above subsistence level” for a family of two or a family of four, the Director was of the view that the burden was on the 2^nd applicant to prove that the Financial Capability Requirement can be met, thus avoiding any responsibility to alert the 1^st and 2^nd applicants of his concern.

(5)   The upshot is that the 2^nd applicant was unaware of the target she had to hit.  If the Director had indicated that the shortfall was, say, HK$400 on her monthly salary she might have been able to recalibrate her income and outgoings to “hit” the target on a renewed application.  If the Director had indicated that subsistence level was calculated, for instance, by reference to the Comprehensive Social Security Assistance allowances the 2^nd applicant would likewise have been able to see what the problem was and make representations directed to that issue.

86.  As a result, leading counsel emphasizes, the applicants were deprived of the opportunity to address the concern.  This is procedurally unfair as the applicants had effectively not been given a fair hearing in the particular circumstances of this case.

87.  I am not convinced by these submissions.

88.  As this court has repeatedly held,[18] the burden is on the 1^st and 2^nd applicants in making the DV Application to provide the Director with all information that the applicants should objectively and reasonably contemplate that may be taken into account by the Director.

89.  In my view, the 1^st and 2^nd applicants must have reasonably contemplated that the Director would take into account the additional expenses that they would have to spend on the additional child (ie, the 4^th applicant) in assessing whether they could meet the Financial Capability Requirement.  This is underlined by the fact that the applicants had in fact consistently included in their own mathematical calculations to support their financial position the amount of money that the 2^nd applicant had to give to her parents on a monthly basis as expenses.[19]  It would be absurd to suggest that they would not have reasonably contemplated (as it is common sense) that the additional expenses to be incurred for raising an additional child would have an impact on the 2^nd applicant’s overall financial position, and thus be relevant to the Director’s consideration.  Hence, if they had any information to say why the 2^nd applicant would still be able to support the 1^st applicant’s living at a standard well above subsistence level notwithstanding the additional expenses incurred by reason of the raising of the additional child, it is for them to provide the Director with such information.

90.  Insofar as Mr Dykes is arguing that the Director in any event has a duty to inform the 1^st and 2^nd applicants what amounts to “a living standard well above subsistence level”, I have rejected the same arguments in Dembele at paragraph 101, which I adopt herein.

91.  I therefore do not accept that there was procedural unfairness as contended.  This ground fails.

C1.6. Ground 6: Unreasonableness Ground

92.  Under this ground, Mr Dykes submits that it is Wednesbury unreasonable for the Director to reject the DV Application on the grounds of the failure to meet the NRD Requirement and the Financial Capability Requirement.  Leading counsel says no reasonable decision maker would have come to that conclusion having regard to the relevant family and children interests, the meaning and scope of the NRD Requirement and the Financial Capability Requirement.

93.  In substance, this ground is premised on the applicants’ above contentions (a) that the Director should always take into account the family concerns in assessing whether a dependant visa application (but not on a discretionary exceptional humanitarian and compassionate consideration); and (b) challenging the Director’s interpretation of the meaning of the two requirements.

94.  In the premises, for the same reasons I have rejected in the above those challenges, this ground must similarly be rejected.

C1.7. Conclusion on the merits of the judicial review

95.  I have rejected all the grounds of challenge.  This judicial review should therefore be dismissed on merits.

96.  Given that I do not think the additional grounds to be included by way of the proposed amendments under the Draft AF86 have merits, I would also refuse to give leave to amend.

C2.   The Setting Aside Summons, the Strike Out Summonses and Delay

97.  The applicants’ leave application for applying for judicial review was taken out some nine months from the Decision.  Thus, there is at least a six-month delay beyond the three-month period provided under Order 53, rule 4(1) of the Rules of the High Court.  The applicants had asked for an extension of time in the Form 86.  They attributed the delay to the time required to obtain legal aid, which were complicated by the particular circumstances whereby the applicants were asked by the Director of Legal Aid to cancel his previous legal aid application (which was then under appeal) and made a fresh application light of the another judgment[20] handed down on 14 April 2015.[21]  It is also the applicants’ case that they had all along acted promptly in seeking to obtain legal aid and to apply for leave.

98.  As I have granted leave on an ex parte basis to the applicants to apply for judicial review, extension of time was thus granted also on an ex parte basis.

99.  By way of the Setting Aside Summons first made on 12 November 2015, the Director asks to set aside the ex parte leave on the basis that (a) the is delay in the leave application and there are no good reasons in the present case to grant extension of time; and (b) the applicants are guilty of material non-disclosure in failing to disclose to the court in the ex parte leave application the material fact that they had since December 2012 been legally represented by D&A.  The Director says this fact is material as it was relevant to the court’s consideration of the applicants’ reliance on the time to obtain legal aid and assign the lawyers (ie, D&A) to prepare the Form 86 as reasonable explanations for the delay.

100.  After the taking out of the Director’s above set aside application, on 6 May 2016, the applicants took out the Strike Out Summons seeking to strike out the Setting Aside Summons on the basis that it is an abuse of process.  In support, Mr Dykes submits that it is an abuse as it was not onlytaken out late but also as it has asked the court to determine the question of delay at the substantive hearing.  It is argued that it thereby takes “case management” out of the hands of the court and pre-empts all arguments about timing.  The Director should have sought a hearing well beforehand and “case management” issues could then have worked out well before the substantive hearing.  The setting aside application as in the way it was made is therefore “pointless” because neither time nor costs are saved.

101.  The Court of Appeal in dealing with a similar contention has now confirmed BI at paragraphs 134 - 139 that the court does have jurisdiction to deal with such a setting side leave application at the substantive hearing of a judicial review, and it is a matter of case management for the court to decide whether to do so in the circumstances of each case.  The Court of Appeal does however emphasize that generally speaking it is preferable to have such an application dealt with promptly.

102.  In the present case, leave was granted on 7 September 2015.  At that time, there were other judicial reviews[22] involving similar issues that were either due to be heard or were pending judgment from this court, and BI was also due to be heard in the Court of Appeal in January 2016.  In light of the overlapping issues with the present case, the court made directions (upon the Director’s proposal) on 15 October 2015 that time for filing evidence shall not start to run until 27 January 2016, and the substantive hearing shall be fixed on a date not earlier than 1 May 2016.  The substantive hearing was then fixed for 4 May 2016.

103.  Against this background, the Setting Aside Summons was issued on 12 November 2015 but the Director asked for it to be heard at the same time of the substantive hearing.  The Director eventually also filed the substantive evidence to oppose the judicial review in March 2016.

104.  In light of the above particular procedural circumstances of this case, I agree with Mr Dykes that the court should not exercise its management discretion to hear the setting aside application at this hearing.  At the time when the Director took out the Setting Aside Summons in November 2015, it was still some more than six months away from the original substantive hearing date, and the Director had not filed the substantive evidence.  It would thus be best and most time and costs saving for the Director to ask the setting aside application to be heard as soon as possible before the substantive hearing of the judicial review.  As observed by the Court of Appeal in BI, generally speaking, this type of application should preferably be dealt with promptly.

105.  Ms Tong has submitted that, since in hearing the setting aside application (and thus considering whether time extension should be given), the court may have to deal with in greater depth the merits of the substantive issues raised in the judicial review, it would be both time and costs saving instead to wait for the substantive opposition evidence to be given, as the court has observed in Dembele at paragraph 115.

106.  However, as I have stated in Dembele at paragraph 115, the reason I considered it to be more convenient and appropriate to hear the setting aside application at the substantive hearing in that case was because the substantive opposition evidence was already filed relatively soon after leave was granted.  In those circumstances, as the court would also have to look at in greater depth (though not conclusively) the merits of the judicial review in setting aside application, it would therefore save time and costs in any event to hear both the setting aside application and the judicial review at the same time as a matter of case management.

107.  The present circumstances are quite different.  As pointed out above, at the time of the Setting Aside Summons, the substantive opposition evidence had yet to be filed in a few months’ time at the earliest.  In the premises, applying the principles as laid down in BI, the Director could and should have asked for the Setting Aside Summons to be disposed of promptly.  In doing so, and if he found it necessary, the Director could have filed some evidence short of the extent of the substantive opposition evidence to deal with the merits of the judicial review on an interlocutory basis.

108.  In these circumstances, although I do not find it to be amounting to an abuse of process (as submitted by Mr Dykes) by the Director in asking the Setting Aside Summons to be heard at the same time of the hearing of judicial review, I do not think it is appropriate and would save time and costs to hear these two applications at the same time.

109.  As a result, as a matter of case management discretion, I refuse to hear the Setting Aside Summons now, and would therefore dismiss the same.  It is therefore not necessary for me to reconsider the questions of whether time should be extended and whether there is material non-disclosure for the purpose of setting aside the ex parte leave and the submissions concerning those questions.

110.  It remains for me to mention this.  Ms Tong has also argued that, even if the court finds the applicants to be successful in any of the grounds of challenge, the court should not exercise its discretion to grant the relief sought because of the delay.  Given that I have rejected all the grounds of judicial review, it is not necessary for me to determine on this.  Suffice to say that, had I found the applicants successful in any of the grounds of challenge, I would probably grant the relief sought notwithstanding the delay, in light of the relatively short period of delay and the particular circumstances in this case as briefly mentioned above which resulted in the delay as explained by the applicants.

D.   CONCLUSION

111.  The applicants fail in all their grounds of judicial review.  I would therefore dismiss the judicial review application.

112.  As to costs, I will make the following costs order nisi:

(1)   Costs of the judicial review be to the Director to be taxed if not agreed.

(2)   Costs of the Setting Aside Summons and the Striking Out Summons[23] be to the applicants to be taxed if not agreed.

(3)   The applicants’ own costs be taxed in accordance with legal aid regulations.