BELANDRES, LILIBETH BETALAC AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 101/2014

[2018] HKCFI 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 101 OF 2014

________________

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J U D G M E N T

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A.   INTRODUCTION

1.  The 1^st applicant is a national of the Philippines.  She came to Hong Kong in 1993 to work as a domestic helper.  She subsequently had a relationship with a man who is a Hong Kong permanent resident. She gave birth to the 2^nd applicant in September 2009 out of the relationship.  The 2^nd applicant is a permanent resident of Hong Kong.

2.  She was arrested in April 2009 for overstaying after her then employment contract was terminated in February 2009.

3.  On 14 March 2013, the Director of Immigration (“the Director”) issued a removal order (“the RO”) against the 1^st applicant under section 19(1)(b) of the Immigration Ordinance (Cap 115) (“the IO”).  The 1^st applicant’s appeal against the RO was dismissed by the Immigration Tribunal on 15 April 2013.

4.  This is the 1^st and 2^nd applicants’ application for judicial review challenging the Director’s decision (“the Decision”) to issue the RO.  In gist, the applicants say the Decision is unlawful as it fails to take into account their various rights protected under the Basic Law (“the BL”) and the Bill of Rights (“the BOR”), the Director fettered his own discretion when making the Decision, the Director failed to take into account relevant matters in making the Decision, the Decision is irrational in all the circumstances and is tainted by procedural unfairness.

5.  Before I deal with the substantive grounds of the judicial review, I will set out the relevant background first, which is largely undisputed.

B.   BACKGROUND FACTS

6.  The 1^st applicant first entered Hong Kong in 1993 and was granted permission to remain to work as a foreign domestic helper.  The 1^st applicant worked as foreign domestic helper under successive contracts until 18 February 2009 when her employment contract was prematurely terminated by the employer.

7.  In 2004, the 1^st applicant met a Mr Yip, a permanent resident of Hong Kong.  They entered into a relationship.  The 1^st applicant became pregnant in early 2009.

8.  The 1^st applicant gave birth to the 2^nd applicant in Hong Kong in September 2009.  The 2^nd applicant is a permanent resident in Hong Kong.  Around the time of the leave application, the 2^nd applicant was a six years old boy studying in Hong Kong.

9.  On 20 April 2009, the 1^st applicant was arrested by the police for overstaying.  She was transferred to the Castle Peak Bay Immigration Centre.  During an interview with an immigration officer, the 1^st applicant stated that she was allowed a vacation by her employer and she did not know that her employment contract had been terminated by her employer.  She later stated to an immigration officer that she did not want to go back to the Philippines because she was pregnant and wished to have the baby born in Hong Kong.  She also stated to an immigration officer that she would like to claim all her benefits from her employer.  On 5 May 2009, the 1^st applicant was released on recognizance.

10.  The 1^st applicant was financially supported by Mr Yip during her pregnancy.  Mr Yip also made arrangements for her accommodation in Hong Kong.  The 1^st applicant has been the primary carer of the 2^nd applicant since birth.

11.  The 1^st applicant’s relationship with Mr Yip deteriorated since she gave birth to the 2^nd applicant.  On 18 December 2009, they had a big quarrel and Mr Yip assaulted the 1^st applicant. The incident was reported to the police and Mr Yip was arrested.  Since then, Mr Yip stopped paying maintenance to the applicants.  The 1^st applicant then approached the Social Welfare Department, which processed the application of the 2^nd applicant for Comprehensive Social Security Assistance (“CSSA”) and later granted CSSA to the 2^nd applicant.

12.  The 1^st applicant then obtained legal aid to commence proceedings in the Family Court against Mr Yip for custody of the 2^nd applicant with reasonable access to Mr Yip (under FCMP 129/2010). By consent the Family Court ordered on 1 September 2010 that the custody of the 2^nd applicant be to the 1^st applicant with reasonable access to Mr Yip and that Mr Yip do pay a monthly maintenance of HK$4,000 to the 1^st applicant for the 2^nd applicant’s expenses until the 2^nd applicant reaches the age of 18 or finishes full time education, whichever is the later (“the Custody Order”).

13.  In June 2011, Mr Yip applied to vary the access to the 2^nd applicant provided in the Custody Order on the basis that he was worried that if the 1^st applicant had to be removed to the Philippines, his right and arrangement of access to the 2^nd applicant would be adversely affected.  Therefore, he asked for variation of access to reasonable access of not less than once every week and payment of monthly maintenance on the basis of the prerequisite that the 2^nd applicant would reside and be educated in Hong Kong until he reaches the age of 18 or finishes full time education, whichever is the later.

14.  On 27 September 2011, upon hearing the parties and upon the parties acknowledging and agreeing that in the event that the 1^st applicant be deported to the Philippines, Mr Yip will take care of the 2^nd applicant on a temporary basis, the Family Court ordered that Mr Yip shall have defined access to the 2^nd applicant at least once a week and other access by agreement between the parties.  It is also directed that the 2^nd applicant be not removed from Hong Kong without leave until he attains the age of 18 respectively but provided that if either parent do give a general undertaking to the Court to return the 2^nd applicant to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the 2^nd applicant from Hong Kong for any period specified in such written consent; that there be liberty to apply on an urgent basis.  I will refer this order as the “Revised Access Order”.

15.  In the meantime, the 1^st applicant had written to the Director repeatedly stating that she was not willing to go back to the Philippines because she would like to take care of her son, the 2^nd applicant, in Hong Kong until he reaches the age of 18.

16.  On 14 March 2013 the Director made a removal order (ie, the RO) against the 1^st applicant on the basis that she had contravened her condition of stay by overstaying in Hong Kong and that after investigation, it was satisfied that she had no legal claims in Hong Kong.  The RO was served on the 1^st applicant on 8 April 2013.

17.  The 1^st applicant lodged an appeal against the RO on 9 April 2013, stating that the 2^nd applicant needed her attention and care; that she could not bring him to the Philippines without his father’s permission pursuant to the court order not to remove him from Hong Kong; that she could not trust anyone (even his father) to take care of the 2^nd applicant since he was the only family for her and she did not want to lose him; and that she could not compromise his life and future and wished that she might stay in Hong Kong with him until he reached the right age or he was capable of taking care by himself.  The Immigration Tribunal dismissed the 1^st applicant’s appeal without a hearing on 15 April 2013.

18.  The applicants made an application with the Legal Aid Department for legal aid to challenge the RO.  Solicitors for the 1^st applicant wrote to the Immigration Department on 25 July 2013 asking that the Immigration Department should consider withholding deportation or removal of the 1^st applicant pending the determination of her legal aid application.

19.  The Legal Aid Department granted legal aid certificates to the 1^st applicant and the 2^nd applicant for the purpose of applying for leave to apply for judicial review against the RO on 17 February 2014 and 18 March 2014 respectively and assigned solicitors to them on those dates.  The Legal Aid Department further assigned counsel on 24 June 2014.

20.  The assigned solicitors delivered the papers of the case to the assigned counsel on 15 July 2014.

21.  Counsel provided the assigned solicitors with the first draft of the Notice of Application for Leave to Apply for Judicial Review and the verifying affidavit of the 1^st applicant on 30 July 2014. Further instructions had to be taken from the 1^st applicant to clarify matters before the drafts could be finalized. 

22.  The applicants applied for leave for judicial review on 21 August 2014.  Leave was granted on paper on 16 September 2014.   The applicant amended the Form 86 on 7 December 2015.

C.   THE DIRECTOR’S POLICY AND THE DECISION

23.  Under section 19(1)(b) of the IO, the Director may issue a removal order against a person who “has landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him”.

24.  It is the Director’s case and evidence he adopts the following Policy (“the Policy”) in considering the exercise of his discretion as to whether to issue a removal order:

(1)   Given Hong Kong’s unique circumstances (in particular its small geographical size, huge population, relative high per capita income and living standard, and its local living and job market conditions) he maintains a strict overall immigration policy that a person who does not have the right of abode or the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission for the purpose of working, studying, establishing or joining in any business, taking up residence or staying as a visitor (save for the applicable visa-free period for visitors). Moreover, for the purpose of maintaining effective immigration control, illegal immigrants, overstayers and other immigration offenders will be repatriated, subject to any legal impediment.

(2)   In making day to day decisions relating to the repatriation of illegal immigrants, overstayers and other immigration offenders from Hong Kong, the Director will consider the merits of each case in line with the immigration policy, subject to a residual discretion.

(3)   The Director’s normal practice has been not to exercise the discretion in favour of an illegal immigrant, overstayer and other immigration offenders but for exceptional cases where strong humanitarian or compassionate grounds are shown.

25.  For the present case, in the application for the issue of a removal order against the 1^st applicant dated 11 February 2013, it was stated in the file minute M50 as follows:

“Application for Removal Order (R.O.)

[1^st applicant name]

This case concerns an PHL/F overstayer.

Case Backgound

2. As for the case background, please refer to M.4. In gist, subject was a former FDH who last arrived in the HKSAR on 14.2.2009 via LWS oso her PHL passport and was allowed to stay in the HKSAR as FDH with L/S till 22.10.2010. However, she was prematurely terminated on 18.2.2009 and could only stay until 4.3.2009 under the 2-week rule. She did not depart and overstayed since 5.3.2009. She was arrested by the police for BOC(0/S) on 20.4.2009 and transferred to CIC on 21.4.200 – On 25.4.2009, PS decided to take no prosecution against the subject’s BOC (O/S) offence due to insufficient evidence – M5.

Court Order regarding HKR son custodial right

3. By court order of 16.9.2010, the custody of the HKR son, YIP SAU FUNG ELLI, was granted to subject with reasonable access for the HKR father, [Mr Yip]. The father is required to pay a monthly maintenance of HK$4,000 to subject for child’s expenses until the child reaches the age of 18 – encl. (48)4-5.

4. By court order of 11.10.2011 [ie, the Revised Access Order], subject and the father acknowledged and agreed that in the event subject being deported to PHI., the father will take care of the child on a temporary basis. Moreover, the father shall have defined access to the child at least once a week and other access by agreement between the parents, that the child shall not be removed from the HKSAR without leave until he attains the age of 18 but provided that if either parent do give a general undertaking to the Court to return the child to HK when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the child from HK for any period specified in such written consent – encl. (50).

Unwillingness to Leave

5. Upon the last interview on 16.1.2013, subject expressed her unwillingness to return to the Philippines because she wanted to stay in HK to take care of her HKR son whose custodial right was granted to her by court order. Subject submitted a letter to express her unwillingness to return to the PHL and her wish to stay in HK until her HKR son reaches the age of 18 when he is capable to take care of himself. She mentioned that she understood the rationale of the court order that her HKR son could be looked after by the father on a temporary basis in the event of her removal from the HKSAR. However, she chose not to leave HK together with her son before but the father restricted the departure of her son (refer to M37-M42). After seeking legal advice, she decided to stay in HK to take care of her son until be attains the age of 18 – M5D.

No claims in HK

6. There is no indication that subject had lodged a torture claim or refugee claim.

Recommendation

7. As the case stands, it is recommended passing the file to:-

…

RES for their consideration of R.O. application.

8. Submitted for your consideration, please.

[name of Immigration Officer]

11.2.2013”

26.  In addition to taking into account the matters stated in M50, the Director’s consideration of the 1^st applicant’s case in deciding whether to issue a removal order has further been recorded in the file minutes M54 (dated 6 March 2013), M1 (dated 12 March 2013) and M2 (dated 14 March 2013).  Relevantly, it was respectively stated in them as follows:

(1)   In M54:

“2. Case Summary

(a) On 14 February 2009, [the 1^st applicant] arrived in the HKSAR on the strength of her Philippine passport. She was permitted to remain for employment as a domestic helper until 22 October 2010 or two weeks after termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 18 February 2009. However, she did not depart within two weeks after the termination of contract and had overstayed in the HKSAR.

(b) On 20 April 2009, [the 1^st applicant] was arrested by the Police for overstaying. She was referred to the Immigration Department for investigation on 21 April 2009. On 5 May 2009, she was released on recognizance.

(c) [The 1^st applicant] is currently released on recognizance.

3. Other Information

(a) Torture/Refuge Claims

[No torture claim]

[No asylum claim]

(b) Prosecution & Conviction / DAC Decision

[No prosecution]

[No previous criminal/conviction]

(c) Willingness to Leave / Family Background

[Unwilling to leave]

[With family member(s) in home country; with family member(s) in the HKSAR: HKR son (Note)]

Note: On 16 September 2009, subject gave birth to [the 2^nd applicant] in the HKSAR with HKPR status established – (31). By court order of 1 September 2010, the custody right of [the 2^nd applicant] was granted to subject with reasonable access for he HKR father, [Mr Yip] – (48). By [the Revised Access Order], it was acknowledged and agreed amongst subject and Mr YIP that in the event subject be deported to Philippines, Mr YIP would take care of [the 2^nd applicant] on a temporary basis – (50). Reference have been made to [redacted] a similar case concerning an overstayer who was granted with joint custodial right to her HKR son. [Redacted] the custodial right matters would not change case subject’s overstaying status or confer any right to remain in HK. Case subject’s right to raise her son in HK is an issue of whether there is any humanitarian ground that warrants an exceptional treatment.

…

4. Consideration & Recommendation

Subject has contravened the condition of stay in respect of her and is unwilling to leave the HKSAR. After investigation, it is satisfied that she has no legal claims on the HKSAR. There are also no powerful or strong humanitarian grounds or exceptional circumstances which could justify the person’s remaining in the HKSAR. R.O. is recommended and the draft is prepared at float for your consideration, please.” (emphasis added)

(2) In M1:

“This is a case for consideration of issue of removal order. The case file is attached for your perusal. I am satisfied that this person:

(i) does not enjoy the right of abode in the Hong Kong Special Administrative Region under section 2A of the Immigration Ordinance;

(ii) does not have the right to land in the Hong Kong Special Administrative Region under section 2AAA of the Immigration Ordinance; or

(iii) does not have the permission of the Director of Immigration to remain in the Hong Kong Special Administrative Region.

2. The person concerned is:

Name	File Ref.
[The 1st applicant]	RBCL-1757-09

This person is a former domestic helper who has contravened her condition of stay by overstaying in the Hong Kong Special Administrative Region.

3.    I am of the view that there are no known powerful or strong humanitarian grounds or other exceptional circumstances which could justify recommendation for remaining in the Hong Kong Special Administrative Region.

4.   I recommend this person’s removal to the Philippines under section 19(1)(b) and detention pending removal under section 32(3A) of the Immigration Ordinance.

5.    I also seek your authority to give directions under section 25(2) of the same Ordinance to the carrier’s captain, owners or agents upon execution of the removal order

[name of Chief Immigration Officer].”

(3)   In M2:

“I have carefully considered the circumstances in respect of the one person named above. There are also no powerful or strong humanitarian grounds or exceptional circumstances which could justify the person’s remaining in the Hong Kong Special Administrative Region. Therefore, I hereby order the removal of the person to the Philippines under section 19(1)(b) of the Immigration Ordinance. I have signed the removal order in respect of this person and I also authorise her detention under section 32(3A) pending removal. Authority to direct under section 25(2) is also given.

    P H Fung [Assistant Director]

   (Enforcement and Torture Claim Assessment)”

27.  Mr Fung, the Assistant Director of Immigration who made the Decision, has also filed an affirmation to confirm the matters stated in the above minute files and set out the decision making process.

28.  In particular, Mr Fung deposes at paragraph 49 of his affirmation that:

“49. For reasons stated in paragraph 44 above, the 1^st Applicant, as a foreign national subject to immigration control, does not have a ‘right’ or ‘legitimate expectation’ to remain in Hong Kong on her own accord or otherwise derived from the right of abode and/or other rights of the 2^nd Applicant, in respect of whom she has been granted custody and allegedly has been his primary carer since birth. Although the Director is not obliged to do so, considerations had indeed been given to whether strong compelling factors or exceptional humanitarian circumstances exist in the present case that may justify the Director to exercise his unfettered discretion to refrain from making further arrangements for her repatriation from Hong Kong including the issue of a removal order against the 1^st Applicant. However, the Director was not satisfied that the circumstances of the case, including, inter alia, the 1^st Applicant’s wish to stay in Hong Kong to take care of the 2^nd Applicant, gave rise to any strong humanitarian, compassionate or other extenuating grounds justifying the 1^st Applicant to be allowed to remain in Hong Kong on an exceptional basis. It was considered that the 1^st Applicant’s custodial right of the 2^nd Applicant would not change her immigration status as an overstayer or confer on her any right to remain in Hong Kong. In particular, consideration was given to the terms of the court order of 27 September 2011 which recorded the agreement between the 1^st Applicant and Mr Yip that in the event that the 1^st Applicant is to be removed to the Philippines, Mr Yip would take care of the 2^nd Applicant on a temporary basis and also that the parties have liberty to apply on an urgent basis to vary the said order. In any event, the 1^st Applicant after departure can return to Hong Kong again subject to meeting normal immigration requirement and, as a Philippines national, the 1^st Applicant is entitled to a visa free period of 14 days on visitor status on each visit.”

29.  Thus, in gist, the Director was satisfied that the RO should be issued under section 19(1)(b) as:

(1)   The 1^st applicant did not have any right of abode in Hong Kong and had no valid permission to remain in Hong Kong.

(2)   There is no legal impediment to her removal as she had no outstanding legal claims such as non-refoulement claims and criminal prosecutions.

(3)   After careful consideration of the 1^st applicant’s circumstances, including the Custody Order, the Revised Access Order and the fact that, if the 1^st applicant was returned to the Philippines, Mr Yip would take care of the 2^nd applicant on a temporary basis and that the 1^st applicant could visit Hong Kong from time to time as she was entitled to a visa free period of 14 days as visitor on each visit, there were no powerful or strong humanitarian grounds or exceptional circumstances which could justify a departure from the Policy to permit the 1^st applicant to remain in Hong Kong.

D.   THIS JUDICIAL REVIEW

D1.   The grounds of judicial review

30.  The applicants’ grounds for judicial review as set out in the Amended Form 86 and advanced by Ms Li SC are in summary these:

(1)   Both the Policy and Decision are unlawful since the Director in respectively formulating the Policy and making the Decision had failed to take into account (as obliged as a matter of law) the 1^st and/or the 2^nd applicant’s various asserted fundamental rights to family and the best interest of child, and the 2^nd applicant’s rights as a permanent resident of Hong Kong (collectively “the Purported Rights”) as protected or provided under (a) Articles 37 and 39 of the BL; (b) Articles 14, 19(1) and 20(1) of the BOR; (c) Articles 17, 23(1) and 24(1) of the ICCPR;[1] (d) Article 10 of the ICESCR;[2] (e) Articles 1 to 7, 9 and 19 of the CRC;[3] and (f) the common law liberty.  Alternatively, the Director failed to take the Purported Rights into account as a matter of obvious relevance (“the Purported Rights Ground”).

(2)   The Decision itself is in any event unlawful since in strictly applying the Policy in making the Decision, the Director had fettered his discretion by only looking at the legal impediments of whether there existed non-refoulement claims and other legal proceedings by the 1^st applicant and by applying only the exceptionality approach without any true merits consideration (“the Fettering of Discretion Ground”).

(3)   The Decision is unlawful as the Director failed to take into account various relevant considerations and in any event is Wednesbury unreasonable in the circumstances of the applicants (“the Relevant Considerations and Irrationality Ground”).

(4)   The Decision is tainted by procedural irregularity (“the Procedural Irregularity Ground”).

31.  The Director opposes the judicial review on the basis that (a) the leave to apply for judicial review should be set aside as there is serious delay on the applicants in making the application; and (b) the grounds of judicial review are in any event without merits.  The Director also relies on the serious delay to say that the court should not exercise its discretion to grant any relief to the applicants even if it is not prepared to set aside leave and finds the judicial review grounds of any merits.

32.  Although Mr Yu SC (together with Mr Abraham Chan) has emphasized in their submissions that the Director’s primary ground in opposing this application is delay, I find it appropriate in all the circumstances to deal with the merits of the grounds of judicial review first.

33.  In this respect, it should be noted that the same teams of counsel respectively for the applicants and the Director have run similar arguments in a number of other immigration related judicial reviews heard before me.  They have at this hearing also relied heavily on the relevant submissions made in those cases.  The judgments in those cases have since been handed down, they are the judgments in Pagtama v Director of Immigration (HCAL 13, 45 & 56/2014, 12 January 2016, Au J) (“the Pagtama Judgment”); Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016, Au J) (“the Dembele Judgment”); and LK v Director of Immigration (HCAL 77, 98 & 100/2014, 9 August 2016, Au J) (“the LK Judgment”).  I would no doubt refer to these judgments below when relevant and necessary.

34.  I will now look at the grounds of judicial review in turn.

D2.   The Purported Rights Ground

35.  As I mentioned above, Ms Li SC and Mr P Y Lo for the applicants argue that as a matter of legal obligations or relevance in public law, the Director in formulating the Policy and in making the Decision in deciding whether to remove the 1^st applicant must take into account the Purported Rights of the applicants.

36.  The arguments raised by Ms Li in support of this ground are closely similar to the ones leading counsel had raised comprehensively in the Pagtama Judgment, the Dembele Judgment,and the LK Judgment, albeit in the context of the Director’s refusal to grant dependant visa or permission to stay to the various foreign overstayer applicants to stay in Hong Kong who have their permanent resident minor children or grandchild in Hong Kong.

37.  The court has rejected all these arguments in the above judgments.  See the Pagtama Judgment, paragraphs 55 - 188; the Dembele Judgment, paragraphs 20 - 57 and the LK Judgment, paragraphs 46 - 52.

38.  Given that the arguments raised by Ms Li in the present case under this ground are in substantive the same as in those three cases,[4] I will adopt the same reasons I have set out in those judgments to reject the present arguments.  In fact, I would say those reasons apply with even greater force in the present case in the context of removal order, since under section 19(1)(b), the applicant should prima facie be removed given that she is an overstayer and has been staying in Hong Kong illegally.

39.  In the present case, Ms Li has further relied on the authority of Singh v Secretary for Security (1996) 6 HKPLR 440 in support of her present submissions.  In Singh, the relevant challenge was that the Secretary in deciding to issue a deportation order against the applicant under section 20(1)(a) of the IO failed to attach sufficient or proper weight to the hardship said to be suffered by the applicant and his family if he was to be deported.  In this respect, Keith J held that (a) hardship was indeed a relevant consideration for the Secretary in the exercise of his discretion (at 449B-450C); but (b) the Secretary did take that into account and nothing had been shown that he had failed to give proper or sufficient weight to this factor (at 450D-451I).

40.  Seizing on the above observations, Ms Li submits that, similarly in deciding whether to make a removal order (the effect of which is similar to a deportation order), the Director has to strike a balance between the needs of immigration control on the one hand and the hardship suffered or to be suffered by the immigrant applicant, her family and other innocent third parties on the other hand.  In that exercise, the Director has to take into account the Purported Rights as those rights clearly concern with the hardship that applicant and her family would suffer (as those rights relate to the right to family, the best interest of a child and the child’s entitlement to various social welfare and public education and services in Hong Kong as its permanent resident).

41.  With respect, this authority does not take Ms Li’s arguments under this ground any further.

42.  I have rejected similar arguments made in Sabir Mohammed v Permanent Secretary for Security (HCAL 114/2015, 27 January 2017) at paragraphs 50 - 74.  In Sabir, the applicant challenged the Permanent Secretary for Security’s decision not to rescind or suspend a deportation order made against him.  One of the arguments raised by leading counsel in that case, relying also on Singh, was that when exercising his discretion whether to rescind or suspend the deportation order under sections 54 and 55 of the IO, it was unlawful for the Permanent Secretary to have reference to and adopt the Director’s strict immigration policy and only subject to a residual consideration of the hardship to be suffered by the applicant and his family by looking at whether there were exceptional humanitarian or compassionate grounds to justify a departure from the policy in favour of the applicant.

43.  I rejected the argument and decided that it was legitimate and lawful for the Director to do so.  Relevantly, my reasons are in gist as follows:

(1)   The Permanent Secretary, being required to exercise a discretion under sections 20(1)(a), 54 or 55 of the IO, is involved in a balancing exercise in deciding whether to exercise the power so vested (paragraph 40).

(2)   The principles governing the relevance of a consideration that a decision-maker vested with a discretion should and could take into account are these:

(a)   The decision-maker must take into account matters clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had.

(b)   The decision-maker must not take into account matters clearly identified by the relevant legislation as considerations to which regard must not be had.

(c)   The decision maker may have regard to other matters if, in its judgment and discretion, he thinks it is right to do so.

(d)   Under the above third category, subject to Wednesbury unreasonableness, what is and what is not a relevant consideration for a decision-maker to have in mind is, absent any statutory code of compulsory considerations, for the decision-maker, not the court, to decide.  Similarly, the weight that should be given to a factor which the decision-maker has regarded as relevant is a matter for him, not the court (paragraph 41).

(3)   As a matter of principle, the exercise of discretion under sections 54 and 55 of the IO in relation to a deportation order is guided by consideration of public interests and policy.  In the absence of any statutory prescription, it is a matter for the decision maker to decide, in the context of immigration order, as to who he would be satisfied that a deportation order should be rescinded or suspended.  The discretion includes a discretion for the decision maker to decide what weight he would attach to the relevant considerations.  In the same breath, this must also include the discretion to decide as a matter of policy as to to what extent he would only be satisfied that a deportation order should be rescinded or suspended (paragraph 59).

(4)   Hence, as a matter of principle, as a matter of policy in the context of immigration control, the Permanent Secretary must be free and entitled to adopt the exceptionality approach in his balancing exercise to guide his exercise of the discretion under sections 54 and 55 of the IO (paragraph 60).

(5)   For the same above reasons, neither could this approach be regarded as Wednesbury unreasonable in immigration control context.  In this respect, it should be reminded that the courts have repeatedly said that, in the context of immigration control (including deportation order cases), the immigration authorities and the Secretary for Security are daily faced with difficult immigration decisions which involve the removal of those who have family members or relatives in Hong Kong.  In making these difficult decisions, the decision makers are guided by considerations of what are in the best interests of Hong Kong (in light of her small size, geographical and economic considerations) as a matter of public policy.  The courts would not lightly interfere with these decisions in a Wednesbury unreasonableness challenge (paragraph 61).

(6)   In Singh, no issue had been raised on the facts of that case as to whether the Secretary had adopted an “exceptionality” approach in the balancing exercise, and thus nothing is decided as to whether this is permissible.  This case therefore does not support the applicant’s submissions[5] (paragraph 67(1)).

See also: MI v Permanent Secretary for Security (HCAL 44/2016, 9 May 2017, Chow J) at paragraphs 42 - 47, effectively agreeing with the above reasons; BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at paragraphs 104 - 111.

44.  These reasons apply with equal force in the removal order context.  Hence, Singh does not assist Ms Li’s submissions.

45.  I therefore reject this ground.

D3.   The Fettering of Discretion Ground

46.  Under this ground, Ms Li says the Director in applying the Policy made the Decision in the following manner:

(1)   The Director first looked at whether the 1^st applicant fell within the categories listed under section 19(b) of the IO (and she did).

(2)   The Director then looked at whether the 1^st applicant had any legal claims in Hong Kong (which she did not).

(3)   The Director then considered whether there were any grounds to justify departure from the “overall immigration control policy” based on an exceptional basis by reference to the Director’s “residual discretion”.

47.  Ms Li contends the Director in adopting the above approach under the Policy is fettering the discretion vested in him under section 19(1)(b) (as it provides that the Director “may” make a removal order). This is so because:

(1)   The first two steps were purely mechanical exercise without involving assessing the individual merits of the 1^st applicant’s case.

(2)   The residual discretion exceptionality consideration is not a true “merit” consideration since, as demonstrated from the Director’s evidence, the so-called consideration of the applicants’ circumstances to see if they amounted to an exceptional case was no more than a “cursory reference” to the applicants’ situation.  This is in stark contrast to the 1^st applicant’s repeated submissions that she was the only suitable and primary carer for the 2^nd applicant and was entrusted with the right of custody under the Custody Order and that it would be for the best interest of the 2^nd applicant for him to remain in Hong Kong to receive education.  There was also no explanation, let alone rational explanation, why the applicants’ circumstances did not amount to exceptional or strong humanitarian or compassionate grounds to allow the 1^st applicant to remain in Hong Kong.

(3)   The Director therefore did not in substance make any true discretionary consideration and therefore had fettered his own discretion.

48.  There is no substance in this complaint.

49.  As rightly accepted by Ms Li, it is legitimate and indeed appropriate for the Director to adopt a policy to guide his exercise of discretion under immigration context.  Under this fundamental premise, as I have held in Sabir Mohammed at paragraphs 48 - 68, it is equally and perfectly legitimate for the Director to have regard to the overall strict immigration policy in considering an application for the issue of a removal order and to subject the exercise of discretion to an exceptionality approach to consider if there are any strong humanitarian and compassionate grounds to justify a departure from the policy.  In other words, there is no fettering of discretion simply because under the Policy, the Director would only consider not making a removal order unless there exist exceptional circumstances.

50.  There is also no substance in Ms Li’s argument that the “exceptional approach” in the exercise of the residual discretion is not a true “merit” consideration and thus true exercise of discretion.

51.  This contention must be examined and understood in the now firmly established position of the law that the Director has no duty and is not obliged to consider humanitarian grounds.[6]

52.  Further, even if he does make a humanitarian and compassionate consideration based on an exceptionality approach, it is strictly a matter for the Director to decide in each case the weight to be attached to a particular humanitarian consideration in a particular case at a particular point of time, and whether there exist such exceptional circumstances.  The courts are not equipped to exercise immigration control in place of the Director and would give a wide margin of discretion to the Director in this respect.  It would only interfere when there is clear procedural unfairness or when the decision concerned is plainly irrational even given the wide margin of discretion (which must be rare).[7]

53.  Exceptional circumstances by definition mean that it is only in very special and unusual circumstances that the Director would regard it as justified to exercise the discretion in not issuing a removal order against a person who falls within the section 19 categories.  When this is further understood in the position of the law in this respect as stated above, the mere fact that in the present case, the Director did not make detailed and extensive references to the 1^st applicant’s submissions and circumstances of the applicants does not mean that the Director did not in fact take into account those materials seriously and substantively in his consideration.  It is equally consistent with the position that those materials, as explained by the Director in the minutes and the affirmation evidence, do not represent particularly unusual and special humanitarian and compassionate circumstances which justify the departure from the policy.  This is particularly so as most of these immigration related cases where a foreign applicant or overstayer is seeking permission to stay in Hong Kong involve circumstances where the foreigner has family members (including young children) in Hong Kong.

54.  In this respect, it is pertinent to remind ourselves of what Court of Appeal has said in BI at paragraphs 106 - 109 and 116 - 119 concerning a Wednesbury challenge of the Director’s failure to take into account matters such as family ties in considering whether there are exceptional humanitarian or compassionate grounds to permit a foreign applicant to remain in Hong Kong:

“106.   Arguments in courts in cases of this nature usually concentrated on the personal and family situations of the applicants.  However, in terms of immigration control, there are many socio-economic as well as security factors which the courts cannot even begin to grapple.  It would also involve consideration of the long term population strategy for Hong Kong.  On the facts of a particular case, it can be tempting for a judge to find the personal or family situation of an applicant deserving of sympathy and conclude that the application should be accorded with exceptional treatment. A judge succumbing to such temptation would, in effect, usurp the role of the Director in the administration of immigration control and inevitably make a decision at the risk of placing priority on the personal and family situation of an applicant over other highly relevant factors with which the court is not familiar and not in a position to assess properly.  As such, it is against proposition (2) set out in [92] above.

107.   In our judgment, the court should acknowledge that immigration control involves decisions of high political as well as socio-economic contents which should be accorded with a broad margin of discretion in accordance with well established principles of judicial review.  In R v Immigration Appeal Tribunal ex parte Singh, Lord Bridge also accepted this proposition.

108.   In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration, we would not rule out completely the possibility of mounting a judicial review based on irrationality (or Wednesbury unreasonableness). However the courts must have regard to the wide discretion of the Director in assessing the merits of such a challenge and humanitarian consideration is only relevant in the context of whether an applicant merits exceptional treatment against a policy of stringent immigration control.

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.

…

116.   Thus, it is clear that the Director did give consideration to the personal and family circumstances of BI before he made his decision.  For the reasons we have canvassed, BI and his wife and daughter cannot rely on their respective interests in family life to override the general discretion of the Director.

117.   In the BI Judgment, Zervos J found that the Director only gave superficial regard to such interests and they were not treated reasonably in the overall circumstances of the case, as such they had not been appropriately and properly considered.  Further, though the judge was of the view that there was no procedural unfairness, he also found that the officer who made the decision had taken account of questionable assumptions or propositions in his evaluation which inappropriately impacted on the decision.

118.   With respect, in so holding, the learned Judge placed too much prominence on personal and family circumstances and failed to have regard to the circumspection which the court must exercise in a judicial review of the Director’s decision in immigration control as explained above.  The Judge also failed to place the relevance of family connection in its proper context, namely, it is only relevant in considering whether a case of exceptional treatment had been made out and the weight attributable to such factor in any particular case must be a matter for the Director in light of the overall stringent policy of immigration control.  In effect, the Judge had put himself into the shoes of the Director and formed the view that the weight given by the officer to family circumstances was inadequate.  He took it upon himself to conduct a balancing exercise on what he perceived to be the relevant factors: the circumstances in which the offences were committed and the impact on family life.  For the reasons canvassed earlier, these are not the only considerations and it is not the correct approach for the court to undertake the balancing exercise.

119.   In our judgment, bearing in mind the limited relevance of family circumstances in the context of an exceptional consideration against the overall background of stringent immigration control, the way in which the immigration officer assessed the personal and family circumstances of BI cannot be regarded as superficial, inappropriate or improper.  From the perspective of the applicant, it could be described as dismissive.  But it cannot be said to be Wednesbury unreasonable when the matter is assessed in its proper context. In such limited context, 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.” (footnotes omitted)

55.  These observations apply with equal force to Ms Li’s above arguments.

56.  I therefore do not accept Ms Li’s “no true merit consideration” submissions.

57.  It is worth mentioning at this stage another aspect of a complaint made by Ms Li in her skeleton and at the hearing, which may be conveniently considered under this ground.  Ms Li says the Policy now explained by the Director in the affirmation of Mr Fung has never been published.  It is thus unlawful or objectionable that the Director now relies on it to support and explain the Decision.  In support, Ms Li relies on the authority of R(Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admins) at paragraphs 52 - 53, per Stanley Burton J.

58.  As rightly submitted by Mr Yu, this complaint is never made in the Amended Form 86 (which was amended after the filing of Mr Fung’s affirmation).  In the premises, it is not even open to Ms Li to make the complaint and challenge the Decision on this basis.

59.  In any event, there are no merits in the complaint.

60.  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 IO, and the Policy is itself a policy setting out criteria for the exercise of the Director’s statutory powers in certain contexts.

61.  The authority of R(Salih) is also 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 how to apply a policy, including internal administrative materials, must be made public for the policy to be lawful.

62.  In the present case, there is no question of any such inconsistency with any publicly known policy insofar as the Policy is concerned.  In the premises, the non-publication of the Policy does not amount to any breach of duty recognised in public law.

63.  For all the above reasons, I reject the Fettering of Discretion Ground.

D4.   The Relevant Considerations and Irrationality Ground

64.  Under this ground, the principal complaint is that the Director, in considering whether there were exceptional humanitarian and compassionate grounds, failed or failed to give sufficient weight to various important matters: the Custody Order (which gave the custody right to the 1^st applicant) and the impact of the 1^st applicant’s removal upon the 2^nd applicant’s rights as a Hong Kong permanent resident minor,[8] in particular in light of the fact that the 2^nd applicant not having any connections with the Philippines.

65.  Further, given these serious and highly relevant matters, the Decision is in any event irrational in public law sense given that the Director had no basis to form a view that it was practicable for the 2^nd applicant to join the 1^st applicant either in the Philippines or elsewhere outside Hong Kong, and whether it was practicable for the 1^st applicant to come to Hong Kong to visit the 2^nd applicant from time to time.

66.  With respect, there is no substance in this complaint.

67.  As emphasized by the court time and again, unless prescribed by the law (which is not the case here), what factors are relevant or irrelevant to the Director’s consideration in exercise of his discretion, and the weight to be attached to the factors that he takes into account, is a matter for the Director.  The court should give a wide margin of appreciation to the Director and will not lightly interfere on a Wednesbury challenge. See: BI, paragraphs 104 - 109.

68.  In the present case, as pointed out by Mr Yu, the Director was clearly aware of the matters identified by Ms Li above and took them into account in considering whether there were exceptional humanitarian and compassionate circumstances.

69.  The fact that the Family Court had granted custody of the 2^nd applicant to the 1^st applicant with reasonable access to Mr Yip, and later in granting the Revised Access Order recognised Mr Yip’s agreement to take care of the 2^nd applicant on a temporary basis in the event of the 1^st applicant being deported to the Philippines was set out for the Director’s consideration.  See paragraphs 3 - 5 of M50 (quoted at paragraph 25 above) and paragraph 3(c) of M54 (quoted at paragraph 26(1) above).

70.  Further, the file minutes M54, M1 and M2 show that the Director in making the Decision took into specific account, among others, of the following matters:

(1)   The fact that the 1^st applicant had been arrested for being, and remained, an overstayer and was currently released on recognizance.

(2)   The fact that the 1^st applicant was the mother (and apparently the primary care giver) to the 2^nd applicant, a Hong Kong born minor with Permanent Resident status.

(3)   The 1^st applicant had been given the custody of the 2^nd applicant by the court as previously noted in M50.

71.  As confirmed at paragraph 35 of Mr Fung’s affirmation, it was considered that, notwithstanding the matters recorded in M54 and taken specifically into account in the decisional process, there was no sufficiently “powerful or strong humanitarian ground for exceptional circumstances which could justify [the 1^st applicant] remaining in Hong Kong” and a recommendation was therefore made for the issue of a removal order.

72.  Given that how the Director assessed and weighed the matter was a matter for his own discretion, and given the wide margin of appreciation to be given to him, there is no proper basis for this court to interfere with the Director’s assessment:

(1)   On principle, the Director’s discretion to act on critical immigration matters such as the making of removal orders cannot be fettered by earlier orders of the Family Court.  The Family Court has neither the means nor the responsibility to determine matters of immigration control. Such matters are for the Director, who has been conferred with wide statutory powers and duties in this regard.  Thus, in the context of an application for an order that a minor be made a ward of the court, the High Court in its family jurisdiction has held that such proceedings are:

“wholly inconsistent with the statutory powers conferred upon the Director of Immigration for under wardship, the minor cannot be removed from the jurisdiction without the leave of the court”: In the matter of C (a minor) [1989] 2 HKLR 652 at 656B-C, per Jones J).[9]

(2)   There is in any case no essential conflict between the custody order and the RO.  In reality, as earlier noted, the Revised Access Order contemplated the very possibility of the 1^st applicant’s removal from Hong Kong – hence the order was expressly made upon the recognition of the agreement between the 1^st applicant and Mr Yip for Mr Yip’s temporary care of the 2^nd applicant in such a scenario.

73.  In respect of the above, Ms Li at the hearing has further advanced the argument that it is also Wednesbury unreasonable for the Director in making the Decision to be of the view that Mr Yip could take care of the 2^nd applicant “on a temporary basis” until he reached 18 years old.  This is so since either there was no factual basis for the Director to form that view, or that from the materials filed by the Director so far, it was unclear as to on what basis he could have reached that view.

74.  Ms Li has elaborated her argument as follows:

(1)   The Revised Access Order was made on 27 September 2011, where it was recorded in the preamble of the order that the order was made upon “the parties acknowledging and agreeing that in the event the [1^st applicant] be deported to Philippines, [Mr Yip] will take care of the child, namely [the 2^nd applicant], a boy, born on 16 September 2009 … on a temporary basis”.

(2)   However, in between May 2012 and November 2012, which was about a year after the Revised Access Order, when told by the immigration officers that the Director was considering applying for a removal order to remove her, the 1^st applicant had repeatedly informed the immigration officer over phone interviews that the 2^nd applicant’s father “was unable to take care of the son as he was busy at work”.[10]

(3)   Given the 1^st applicant’s above statements over the phone interviews that Mr Yip could not take care of the 2^nd applicant as he was too busy as work, and the material time gap between the Revised Access Order and those phone interviews, it was incumbent upon the Director to at least make inquiries with Mr Yip as to what was the meaning of “on a temporary basis” when that was agreed by him and recorded at the Revised Access Order, and whether it was in fact still feasible for him to take care of the 2^nd applicant until he reached the age of 18 if the 1^st applicant was removed to the Philippines.

(4)   Without that inquiry being done, there was absolutely no factual basis for the Director to form the view that Mr Yip would take care of the 2^nd applicant until 18 years old by reason of the “temporary basis” agreement Mr Yip had made, or at the least, it was unclear as to on what basis the Director could form that view.

75.  I am unable to agree with Ms Li.  As rightly pointed out by Mr Yu, it cannot be said that it was Wednesbury unreasonable at the time of the Decision for the Director to take into account the “temporary basis” agreement to form the view that there were no strong or compelling humanitarian and compassionate grounds to justify not removing the 1^st applicant in light of the following:

(1)   It was clear that the “temporary basis” agreement was reached by the 1^st applicant and Mr Yip already contemplating at that time the very possibility that the 1^st applicant would be removed to the Philippines.  This was expressly set out in the preamble of the order and at paragraph 4 of Mr Yip’s affirmation[11] filed in support of the Revised Access Order.  The “temporary basis” hence must objectively and reasonably have a reference to the situation when the 1^st applicant was removed to the Philippines.

(2)   No material changes as to Mr Yip’s work or circumstances since the time of the Revised Access Order had been shown (with evidence) to the Director.

(3)   In the premises, it is not only reasonable (and certainly not unreasonable) but legitimate for the Director to form the view that Mr Yip would with his own arrangements look after the 2^nd applicant when the 1^st applicant was returned to the Philippines given his agreement recorded in a court order that he would take care of the son on a temporary basis.

(4)   What the 1^st applicant had asserted over the phone interviews about Mr Yip’s inability to take care of the 2^nd applicant were only her one-sided assertions.  In light of the above, the burden was on the 1^st applicant[12] to provide sufficient evidence (if there was any) to the Director at the time of the Decision to show why it was no longer possible for Mr Yip to look after the 2^nd applicant as agreed or what he meant to be on a “temporary basis”.  She had not provided any such evidence.  In this respect, it must be common sense that for Mr Yip to look after the 2^nd applicant does not mean that he had to personally take care of the 2^nd applicant all the time.  It would well be possible for Mr Yip to make various arrangements or enlist help from other family members, relatives or friends to do so.

(5)   In the premises, it certainly cannot be said that it was Wednesbury unreasonable for the Director to take into account the “temporary basis” agreement between the 1^st applicant and Mr Yip to consider whether there were exceptional circumstances to justify a departure from the policy to remove the 1^st applicant.

76.  Finally, as to the matters about the purported difficulties the 1^st and 2^nd applicants would face if they both return to the Philippines (which are set out at paragraphs 18 - 22 and 25 of the 1^st applicant’s affidavit), these matters were not relied on by the 1^st applicant in making representations to the Director asking him not to issue the RO.[13] In the premises, it is not open for the applicants now to rely on these to say the Director had failed to take them into account in the first place.[14]  This court has also said repeatedly that it is for an applicant to bring up to the Director matters which the applicant says should reasonably and objectively be relevant to the decision making and the burden is not on the Director to raise the questions with them.[15]

77.  Similarly, the 1^st applicant has in her supporting affidavit at paragraphs 17 and 22 ‑ 24 also raised for the first time matters showing that it would not be suitable in the best interest of the 2^nd applicant for Mr Yip to take care of him, even on a temporary basis.  These are apparently relied on by the 1^st applicant to show that it was irrational for the Director to make the Decision on the basis, among others, that the 2^nd applicant could be taken care of in Hong Kong by his father.  Again, these matters were not raised before the Director by the 1^st applicant before the making of the Decision. It is not open for the applicants in this judicial review to rely on them to challenge the Decision.

78.  Ms Li also says given the significant impact on the welfare of the 1^st and 2^nd applicants, the Director must adopt an anxious scrutiny in his assessments of the applicants’ particular circumstances in deciding whether to remove the 1^st applicant or not.  The Director however, says Ms Li, had failed to apply the requisite standard to do so.  This is in effect the flip side of leading counsel’s arguments of that the Director had only made a cursory reference to the personal circumstances of the applicants or alternatively that the Decision must be irrational if one is to apply an anxious scrutiny in the assessment.

79.  I am not persuaded by these submissions:

(1)   Even if (without the need to decide it now) the Director has a duty to apply anxious scrutiny, for the same reasons and the position of the law in this respect as set out at paragraphs 53 ‑ 55 and 67 above, it cannot be said that, on the evidence placed before the court, the Director had failed to do so or that the decision is Wednesbury unreasonable.

(2)   Similarly, there is no basis for the court to interfere on Wednesbury ground even the court is to apply an anxious scrutiny in examining the Director’s exercise of discretion in this judicial review.

80.  Ms Li has also contended in the skeleton that the Director’s assessment should be disturbed because there were further steps that were “manifestly open to him”.[16] This is, as submitted by Mr Yu, likewise baseless both legally (there being no general ground for intervention merely because some further step was “open” to the decision-maker, “manifestly” or otherwise) and factually (there being no coherent case from the applicants as to what exact steps the Director could but failed to take).

81.  For these reasons, this ground is also without merit and should be rejected.

D5.   The Legitimate Expectation Ground

82.  Insofar as this ground is to say that there is a legitimate expectation that the Director would consider the Purported Rights in deciding whether to make the RO, it is indeed the flip side of the arguments raised under the Purported Rights Ground.  This must therefore be similarly rejected for the for the reasons I have rejected the Purported Rights Ground.

83.  The applicants also introduce a new dimension of their case on legitimate expectation, which relies essentially on the Custody Order and the 1^st applicant’s alleged status as a primary care-giver to the 2^nd applicant to assert that they each have a legitimate expectation that:

“in making decision on whether [the 1^st applicant] may be permitted to remain in Hong Kong so long as she continues to have custody of and be the primary carer of [the 2^nd applicant] or ought to be required to leave Hong Kong, [the Director] will take into account the status of [the 2^nd applicant] as a minor ... and the fact that the Family Court of Hong Kong has, after considering the best interests of [the 2^nd applicant] as the primary consideration pursuant to the Guardianship of Minors Ordinance, decided to grant custody of [the 2^nd applicant] in Hong Kong to [the 1^st applicant]”. See Amended Form 86 at paragraph 29.

84.  As to this new dimension of the applicants’ case, as submitted by Mr Yu (which I accept):

(1)   Contrary to the well-established requirement that there be a clear and unambiguous representation giving rise to a reasonable expectation as to the future, the applicants’ case is unclear as to the exact source and basis, factually and evidentially, of the legitimate expectation set out above.

(2)   In any event, this additional dimension of the applicants’ case on legitimate expectation is academic: as a matter of fact, the Director did take account of the Custody Order and the 1^st applicant’s care of the 2^nd applicant in making the RO as mentioned above.  The fact that, having taken such matters into account, the Director reached a conclusion against the applicants is not a legal basis for complaint.

85.  I therefore also dismiss this ground.

D6.   The Procedural Irregularity Ground

86.  In this ground, the applicants contend that the Director’s decision to make the RO was “unreasoned”.

87.  There is no merit in this ground.  Having regard to the disclosure now of the various minutes and the affirmation evidence filed by the Director in this judicial review, the basis of the Director’s decision is clear.  Even if I were of the view that the original decision did not contain sufficient reasons, I would not have exercised my discretion to grant any relief in this judicial review on this basis alone as it would be entirely academic.  See: Hong Kong Television Network v Chief Executive in Council [2015] 2 HKLRD 1035 at paragraphs 101 - 102.

88.  It should be further emphasized that what the Director has done is to perform an ultimate balancing exercise, choosing to accord particular (but not peremptory) weight to matters such as the 1^st applicant’s unlawful act in breaching her conditions of stay by overstaying.  By its very nature, this kind of exercise in general is unlikely to be susceptible to more extensive or detailed description than what is found in the internal minutes and affirmation evidence filed with the court.

89.  This ground must be rejected.

D7.   Conclusion on the grounds of judicial review

90.  For all the above reasons, all the grounds challenging the Decision fail.  This judicial review should be dismissed.

91.  Given that I have rejected all the grounds of judicial review on merits, as fairly accepted by Ms Li, it would no longer be relevant for the applicant to seek leave to file late the 2^nd affidavit of the 1^st applicant and the affirmation of Mr Yip (both dated 10 December 2015).  I would therefore also formally dismiss the applicants’ summons dated 18 December 2015 and refuse leave for the applicants to file them.

E.   DELAY

92.  As I mentioned above, the Director has applied by summons dated 18 November 2015 to set aside the ex parte leave granted on the basis of delay.

93.  The RO was served on the 1^st applicant on 8 April 2013.  The Form 86 was filed on 21 August 2014.  Ms Li fairly accepts that there is at least a delay of 13 months in taking out the leave application, even taking into account the three-month period provided under Order 53, rule 4(1) of the Rules of the High Court.

94.  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 can be summarized 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 (CACV 63/2015, 3 November 2015, Lam VP, Kwan and Poon JJA) at paragraph 1, per Lam VP, and paragraphs 23 - 36, perKwan JA.

95.  Ms Li submits that there are justifications for an extension of time despite the significant delay.  Essentially:

(1)   The delay can be explained on the basis that a substantial part of the time was taken up by the legal aid application process.

(2)   The case involves complicated and complex issues of law, and hence, it was reasonable for the legal representatives to take more time in formulating the grounds of judicial review.  Further, for the same token, it is unrealistic to expect the applicants to conduct the litigation themselves without legal assistance.

(3)   The judicial review application is of merit.

(4)   The prejudice on the applicants would be substantial and significant if leave is refused on the basis of delay, while there is minimal prejudice on the Director if time is extended.

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

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

(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, Fok J), paragraphs 57 - 72; BH v Director of Immigration (HCAL 105/2014, 14 April 2015, Chow J) at paragraph 100 and the cases cited therein.

(3)   The court cannot overlook the reality that the present challenge was formulated and handled by the same team of lawyers who were involved in the earlier challenges in the series of judicial reviews, drawing from the same or closely similar legal contentions.  Thus, there is simply no adequate explanation or excuse for the additional time taken to file the challenge to the RO after the legal aid certificates which were issued to the 1^st and 2^nd applicants on 17 February 2014 and 20 March 2014 respectively.

(4)   Delay in bringing this judicial review plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of the 1^st applicant was tolerated pending the determination of this judicial review.  She has remained in Hong Kong as an overstayer since April 2009.

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

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

F.   DISPOSITION

98.  The applicants fail in all their grounds of judicial review.  I will dismiss this application.  Further, I would set aside the ex parte leave granted to the applicants on the basis of delay.

99.  There are no reasons why costs should not follow the event.  I will make an order nisi that costs of this application (including the costs of the applicants’ summons for leave to file evidence and the Director’s summons to set aside leave) be to the Director to be taxed if not agreed, with certificate for two counsel.  The applicants’ own costs be taxed in accordance with legal aid regulations.