“AH” v. DIRECTOR OF IMMIGRATION

HCMP 196/2016

[2019] HKCA 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2016

(ON AN INTENDED APPEAL FROM HCAL 32/2015)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The application for extension of time to seek leave to appeal against the order of Chow J of 18 November 2015 was brought by a summons of 26 January 2016. This matter has been outstanding for quite some time by virtue of other cases raising similar issues being processed.

2.  On 24 February 2016, in light of the pending determination of CACV 103, 134 and 224/2015, it was ordered by consent that the present application be stayed pending the determination of those appeals by the Court of Appeal and the further application for leave to appeal to the Court of Final Appeal.

3.  The appeals in CACV 103 and 134/2015 were determined by the Court of Appeal on 8 March 2016: BI v Director of Immigration [2016] 2 HKLRD 520.  There was no further appeal to the Court of Final Appeal.

4.  CACV 224/2015 was not heard together with these two appeals.  Upon a request for dismissal of the appeal being lodged on behalf of the appellants, the appeal was dismissed on 10 May 2016. 

5.  In the meantime, similar issues arose in the context of another series of appeals in CACV 59, 60 and 149/2016.  Those appeals were heard together and the Court of Appeal determined the same on 26 March 2018: Comilang Milagros Tescon v Director of Immigration [2018] 2 HKLRD 534.

6.  There were further appeals from CACV 59 and 60/2016 to the Court of Final Appeal.  The Court of Final Appeal determined those appeals on 4 April 2019 in Comilang Milagros Tescon v Director of Immigration [2019] HKCFA 10.

7.  Solicitors for the applicant wrote on 21 May 2019 to inform the Court that legal aid was discharged.

8.  On 3 June 2019, the Court gave directions for submissions to be lodged for the disposal of the matter in light of the above-mentioned judgments of the Court of Appeal and the Court of Final Appeal.  

9.  In the submissions of counsel for the applicant of 17 June 2019, it was accepted that the ground of review in relation to the wife’s interests could not be maintained in light of these authorities.

10.  Counsel however sought to argue that the applicant should be allowed to proceed with the grounds of review based on the construction of the Dependant Visa Policy (“the Policy”).  In particular, it was submitted that the Legislative Council Brief of 30 June 2003 (“the Brief”) provided a basis for revisiting the construction of the No Record Criterion (“NRC”) under Policy.  He submitted that the word “detriment” is ambiguous and [2] of the Brief indicated that the record in question must be one that raises a security objection.  He also cited H v Director of Immigration [2018] HKCA 750 to support this construction.

11.  On the facts of the present case, counsel submitted that it is reasonably arguable that the Director misapplied the NRC and/or was unreasonable in failing to consider whether the applicant’s record rose to the level of security objection.  He said that circumstances may compel a refugee or asylum seeker to have recourse to false documentation in leaving his country, citing article 31(1) of the Refugee Convention and R v Asfaw [2008] 1 AC 1061 at [57] and [131].  He said Hong Kong has adopted a prosecution policy similar to article 31(1), citing Iqbal Shahid v Secretary for Justice [2010] 4 HKLRD 12 at [17] to [20].

12.  Counsel also invited this Court to reconsider the holding in BI that NRC is an eligibility criterion under the Policy. The argument counsel ran in this regard had been fully considered and rejected in BI and we cannot discern any reasonable basis for departing from it.

13.  Coming back to the argument on the construction of the NRC, it was not an argument run before Chow J.  Thus, the Brief was not adduced as evidence in the court below.

14.  Notwithstanding so, we are happy to proceed on the basis that the relevant record under the NRC has to be something which gave rise to a security concern.  However, as held by Chow J in H v Director of Immigration HCAL 172/2015, 3 November 2016 at [39] to [45], record of detriment is not confined to record of serious crime or criminal conviction. This was upheld on appeal: see H v Director of Immigration [2018] HKCA 750.

15.  Further, at [48] and [49], Chow J held:

“ 48.   In the affidavit of Wong Hing Wa, principal immigration officer, filed on behalf of the Director in this application, he explains the approach adopted by the Director in relation to the assessment of the No Record Requirement as follows:-

(1)  ‘ For the avoidance of doubt, in assessing a dependant visa application, while the Director will take into consideration whether the applicant has a clear criminal record in meeting normal immigration requirements, the ‘no known record criterion’ has a wider meaning and covers records which may not be criminal records’ (paragraph 17).

(2)  ‘ In determining whether a known record of criminal or security concern (but without criminal conviction record) constitutes a detriment to an applicant in a dependant visa application, ImmD officers will consider all the relevant circumstances of the record concerned such as its nature and gravity, the criminal or security concern involved, findings of any investigation (if available and applicable), the passage of time since creation of the record, etc.  ImmD officers will assess each case on its individual merits, having regard to all relevant information available and the circumstances of the case.  Insofar as an applicant with criminal conviction record is concerned, [the Guidelines] would be referred to for assessment of the relevant visa application …’ (paragraph 18).

(3)  ‘ I wish to add that the Director, in considering a case involving the ‘no known record criterion’, has to cater for a myriad of circumstances of potential significance to that particular case.  Hence, it would not be sensible for the Director to lay down a definitive list of factors to be considered.  Whether a particular factor will be considered as positive or detrimental will depend on the individual facts of the case’ (paragraph 19).

49.   In my view, the Director’s approach as described above is lawful and rational.  The question of whether any particular “record” is to the detriment of the applicant in any given case is a matter primarily for the Director to decide, subject to the supervisory jurisdiction of the court in judicial review…”

16.  We respectfully agree.

17.  On the facts of that case, the record of detriment was the use of a false passport when the applicant entered Hong Kong: see [16(4)] and [18], but there was no criminal prosecution of the same.

18.  In the present case, the applicant had used a false identity to travel to Hong Kong on more than one occasion since 2002. His immigration history was set out at paragraph 12.1 of M 6 in the internal records of the Director of Immigration:

“ 12.1 AP had knowingly used a BGD passport in false identity (ID2) for travelling to Hong Kong. Between 2004 and 2006, he had used BGD passports in ID1 (true) and ID2 (false) for entry into Hong Kong on many occasions in order to circumvent the Immigration control. He was convicted of the deportable offences of ‘using a false travel document’ and ‘making F/R’ and was sentenced to a total of 12 months’ imprisonment. The circumstances giving rise to the offences involve dishonest act and the offences were considered to be serious in nature. It was decided to go for deportation against AP who had been informed that his continued presence in Hong Kong was undesirable. The deportation proceeding was only temporarily withheld due to his outstanding torture claim. It is considered that the conviction records are to the detriment of the application.”

19.  He was convicted for the offences of using a false travel document and making a false representation to an Immigration Assistance.  He was sentenced to 12 months’ imprisonment.

20.  His torture claim (which was only lodged in July 2007) was rejected by the Director and the appeal board. 

21.  Given that he had come to Hong Kong since 2002 on the strength of the false passport without lodging any torture claim and left and returned on many occasions with the use of a passport bearing his true identity, there is no factual foundation for counsel’s argument that the use of a false passport was to assist his escape from a place where his safety was endangered.  The finding of the Immigration Officer was that his use of false passport was to circumvent immigration control and to cover up his lengthy stay in Hong Kong.  This finding was not challenged in the application for judicial review. 

22.  Against such background, we cannot see any public law error on the part of the Director in concluding that the applicant’s use of false passport and making false representation constituted a record of detriment.  Security concerns embrace, amongst other things, the effective maintenance of security control through immigration checkpoints.  Even though a torture claimant might have reasons to resort to false travel document to make good his escape, there is no reason why he should maintain his false identity once he arrived in Hong Kong where he could have made a torture claim right away.

23.  Thus, the applicant cannot derive any assistance from the policy discussed in Iqbal Shahid v Secretary for Justice, supra.       

24.  In respect of the argument concerning the ambiguity of the word “detriment”, we respectfully agree with the observations made in LK v Director of Immigration HCAL 77/2014, 9 August 2016 at [84] and [85].

25.  For these reasons, we do not see any reasonable prospect of success in the applicant’s arguments based on construction of the NRC.  Even taking account of these new arguments, we cannot see any ground for disturbing Chow J’s refusal to grant extension of time for an application for judicial review to be brought.

26.  We dismiss the summons of 26 January 2016 and order the applicant to pay the costs of the Director.  Unless the quantum of costs is agreed, the Director shall lodge and serve a statement of costs within 14 days from the handing down of this judgment.  The applicant shall lodge and serve his comment on the statement within 14 days thereafter.  

27.  We further order that, pursuant to Order 59 rule 2A(8) of the Rules of the High Court (Cap 4A), that no party may request this determination be reconsidered at an oral hearing inter partes.