PAGTAMA, VICTORINA ALEGRE AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 13/2014

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 13 OF 2014

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HCAL 45/2014

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 45 OF 2014

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HCAL 56/2014

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 56 OF 2014

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(heard together)

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J U D G M E N T
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A. INTRODUCTION

1.  In each of these three judicial reviews, the 1^st applicant is either the mother or grandmother of the other applicants.  All the other applicants in each of these judicial reviews are children not yet of adulthood, and most of them were born in Hong Kong and are Hong Kong permanent residents.

2.  On the other hand, the 1^st applicants (ie, the mother or grandmother) all have no right of abode in or right to enter into Hong Kong.  They had all applied to the Director of Immigration (“the Director”) for granting them permission to remain in Hong Kong to effectively take care of the children.  By various decisions made in 2012 and 2013, the Director in the exercise of his discretion refused their applications.  The Director was of the view that their applications did not fall within any of the recognised categories under the immigration policy for granting them a visa to stay in Hong Kong, nor were there any exceptional circumstances to justify an exercise of discretion under humanitarian or compassionate considerations.

3.  In these judicial reviews, the applicants challenge these decisions and seek to have them quashed and be remitted to the Director for reconsideration.  The principal grounds of challenge are that they are unlawful, as the Director had failed to take into account relevant considerations in making the decisions, the Director had fettered his own discretion, the decisions are tainted with procedural unfairness, are in breach of the applicants’ legitimate expectation, and in any event, are Wednesbury unreasonable.

4.  As will be seen later, the forefront of the challenge is that the Director had failed to take into account (a) what have been described as the applicants’ right to family referable to Articles 17, 23(1) and 24(1) of the International Convention on Civil and Political Rights (“ICCPR”), as incorporated under Articles 14, 19(1) and 20(1) of the Bill of Rights Ordinance (Cap 383) (“BOR”), Article 37 of the Basic Law (“BL”), and the International Covenant on Economics, Social and Cultural Rights (“ICESCR”); (b) the best interests of the children under the Convention of the Rights of Children (“CRC”); (c) all these rights as recognised under common law; and (d) the children’s right of abode and permanent resident status under BL 24.

5.  The Director opposes the applications.  The Director says none of the purported family right and best interests of the child contended for is engaged by the applicants as a matter of law, and thus there are no questions of failure to take them into account. Further, all the other grounds of challenge are equally without merits on the facts of each of the cases.  In any event, the Director also contends that, as the applicants are way out of the usual three-month time limit in taking out these judicial reviews, and with no good reasons to justify the delay, the court should not grant extension of time to allow the applicants to bring these judicial reviews.

6.  Before I consider the grounds of judicial review, it would be helpful to set out the brief relevant background under each of these applications to put the arguments in context.

B. BACKGROUND

B1. HCAL 13/2014

7.  The 1^st applicant, Ms Pagtama, is the 2^nd applicant, Jessrill’s grandmother.

8.  Ms Pagtama first came to Hong Kong in 1982 to work as a foreign domestic helper and had worked as such between 1982 and 2007.

9.  Jessrill was born in Hong Kong in April 1999 (thus he is now about 16 years old) out of wedlock to Ms Pagtama’s daughter, Jovita, and one Mr Kong (a Hong Kong permanent resident).  The parents later got married in May 1999.

10.  It is the applicants’ case that Jessrill has since birth been taken care of by Ms Pagtama in Hong Kong, save for a period between 2000 and 2005, when he was taken by his mother to the Philippines.  However, the mother took him back to Hong Kong in July 2005, and Ms Patgama resumed taking care of him.

11.  Jessrill has been studying in Hong Kong and receiving Comprehensive Social Security Assistance (“CSSA”) since 2005 as he is entitled to as a Hong Kong permanent resident.

12.  Since July 2007, Ms Pagtama had applied to the Family Court for guardianship of Jessrill.  The application was supported by Jessrill’s mother.  In April 2009, the Family Court granted an order appointing Ms Pagtama as the legal guardian of Jessrill.  It is the applicants’ case that they have since lost contacts with Jessrill’s natural parents and Ms Pagtama is the only blood relative or next of kin of Jessrill.

13.  Just before the expiry of Ms Pagtama’s limit of stay, in December 2008, she applied to the Director for extension of stay in Hong Kong to take care of Jessrill. She mentioned in her application that she was poor, with no job, no house in the Philippines.  She also has no husband.

14.  The Director refused the application for extension of stay on 11 February 2010 (“the 1^st Pagtama’s Refusal Decision”).  Ms Pagtama’s solicitors lodged an objection with the Chief Secretary, which was unsuccessful.

15.  Ms Pagtama applied for an extension of stay again on 23 May 2012 on the same grounds to take care of Jessrill in Hong Kong. The application was refused by the Director on the same day (“the 2^nd Pagtama’s Refusal Decision”).

16.  She applied for leave to judicially review these decisions in February 2014.  Ex parte leave was granted in April 2014.

17.  Subsequent to the granting of leave and the service of the Director’s evidence, the Director made a fresh decision (“the Pagtama’s Fresh Decision”) on 14 November 2014 to grant Ms Pagtama permission to remain as a visitor for the initial period of 90 days together with multiple re-entry visa.  It was stated that subsequent extensions of stay for periods at most 90 days with multiple journey re-entry visas valid within the approved limit of stay may be granted to her until the 18^th birthday of Jessrill (ie, until 3 February 2017), subject to there being no material change in circumstances.

B2. HCAL 45/2014

18.  The 1^st applicant, Ms Comilang, is the 2^nd applicant, Ms Ahmed (or Zahrah)’s mother.  Zahrah was born in Hong Kong in 2006 (and is thus now about 9 years old) and is a Hong Kong permanent resident.

19.  Ms Comilang first came to Hong Kong in 1997 to work as foreign domestic helper.  Her contract however was not renewed and came to an end in July 2005.

20.  She later married in Hong Kong to one Mr Ahmed (a Pakistani national and a Hong Kong permanent resident) in October 2005.  At about the same time, her permission to remain in Hong Kong expired.

21.  She then applied to the Director for change of status to remain in Hong Kong as the dependent of Mr Ahmed.  This was eventually unsuccessful, as it turned out that Mr Ahmed was still married to another woman when he purported to marry Ms Comilang in 2005.  When this was discovered, he withdrew his support of Ms Comilang’s application for change of status.

22.  Subsequent to that, Ms Comilang had made numerous repeated applications for extension of stay in Hong Kong to take care of Zahrah.  These applications had been repeatedly refused by the Director.

23.  All these eventually led to an application for judicial review under HCAL 28/2011 in April 2011 against the Director’s decisions since September 2007 to refuse her extension of stay applications in Hong Kong.  I will refer this judicial review conveniently as the “Comilang 1 JR”.

24.  After a substantive hearing, in a judgment (“Comilang 1 Judgment”) dated 15 June 2012, Lam J (as the learned VP then was) dismissed the Comilang 1 JR.[1]  It is worth noting now that most of the grounds raised in the present judicial review had also been advanced before Lam J, which were all rejected.

25.  Ms Comilang appealed the Comilang 1 Judgment to the Court of Appeal.  By a judgment dated 2 May 2013 (“Comilang 1 CA Judgment”),[2] the Court of Appeal allowed the appeal on the narrow ground that the Director had considered and approached Ms Comilang’s extension applications on a wrong basis.  It therefore quashed the decisions and remitted them back to the Director for fresh considerations.  The Court of Appeal has not in that judgment considered the other grounds of judicial review that were rejected by Lam J at first instance.

26.  Upon reconsideration, the Director on 2 September 2013 again refused Ms Comilang’s application for extension of stay (“the Comilang’s Refusal Decision”).  The Director did not find Ms Comilang’s application falling within any of the recognised categories under the immigration policy to grant her a visa to remain in Hong Kong.  He also did not find any exceptional circumstances to justify an exercise of discretion under the humanitarian or compassionate ground.

27.  In April 2014, Ms Comilang applied for leave to judicially review the Comilang’s Refusal Decision.  Ex parte leave was granted by this court in June 2014.

B3. HCAL 56/2014

28.  The 1^st applicant, Mrs Luis came to Hong Kong as a foreign domestic helper.  She married to Mr Luis in Hong Kong in 1997.  She is the mother of the 2^nd to 4^th applicants.

29.  The 2^nd applicant was born in Hong Kong in 2002 and has been a Hong Kong permanent resident since 2010.  The 3^rd applicant was born in Hong Kong in 2004 and has remained in Hong Kong as the dependent of Mr Luis.  The 4^th applicant was born in Hong Kong in 2011, and has remained in Hong Kong as the dependant of Mr Luis.

30.  It is the applicants’ case that the 2^nd to 4^th applicants have been studying in Hong Kong and have since birth always been taken care of by Mrs Luis here.  Moreover, the 3^rd applicant was diagnosed with a heart disease and underwent operation in 2008.  He requires continuous medical care and follow-ups.  The 4^th applicant underwent surgery in respect of left un-descended testis in 2012 and also requires annual medical follow-up.

31.  Between 2006 and 2011, Mrs Luis visited Hong Kong 24 times from the Philippines and on occasions, she was granted extensions of stay in Hong Kong.  Between June 2011 and January 2012, she made successful applications for extension of stay in Hong Kong.

32.  On 26 January 2012, the Director refused her application for extension of stay to look after the 2^nd to 4^th applicants.  She then overstayed with her presence in Hong Kong tolerated by the Director through standard toleration letters issued periodically.

33.  Mrs Luis’ solicitors made the application for permission to remain in Hong Kong on 6 May 2013 again to take care of the children.  The Director refused the application on 26 July 2013 (“the Luis’ Refusal Decision”).  The Director did not find the application falling within any of the recognised categories under the immigration policy.  He also did not find any exceptional circumstances to justify the exercise of discretion under humanitarian or compassionate grounds.

34.  In May 2014, Mrs Luis applied for leave to judicially review the Luis’ Refusal Decision.  Ex parte leave was granted in July 2014.

C. THESE JUDICIAL REVIEWS

35.  In these judicial reviews, the applicants seek to challenge the Director’s exercise of discretion in refusing their permission to stay applications. Before looking at the specific grounds of challenge, it is important for this court to reiterate the court’s repeated recognition of the strict immigration policies as adopted by the Director, who has been  entrusted with the high responsibility for and wide discretion on immigration matters under BL 154(2) and the Immigration Ordinance (Cap 115) (“the IO”).[3]

36.  With this responsibility, the Director has maintained restrictive immigration policies for Hong Kong, having regard to the special circumstances of Hong Kong as a small place of limited social resources, but has traditionally been attractive to many aspiring immigrants given her economic and political stability and viability.

37.  Under the strict immigration policies, and relevant for the present purposes, for applicants who have no right to enter Hong Kong but wishe to so enter and stay in Hong Kong, the Director would first consider whether their applications fall within any recognised categories under the relevant policy (for example, under the dependency policy as dependents, or work permits).

38.  If the applicants do not fall within any of the recognised categories, it is then up to the Director to decide whether to further consider exercising his discretion to grant the application on any humanitarian or compassionate grounds on an individual basis.  Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion under this if there are exceptional circumstances to justify it.  In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and even if he is to so consider, that consideration is generally not subject to judicial review.[4]

39.  The Director’s strict immigration policies and his said approach to the exercise of discretion have been repeatedly recognised and respected by the courts in numerous judicial review challenges in refusing to lightly interfere with the Director’s policies or exercise of discretion.[5]

40.  Similarly bearing the court’s above consistent approach in mind, I will now turn to consider the grounds of challenge raised in the present judicial reviews.

C1. Failure to take into account the purported family right and best interests of the child

41.  The first and foremost challenge is mounted on the contentions that the Director had failed to take into account the 1^st applicants’ and/or the children’s purported “right to family” under the relevant articles of the ICCPR (as domesticated under the BOR), the BL, and the ICESR.  Further, it is contended that the Director had also failed to take into account the children’s best interests as a primary or at least relevant consideration in deciding whether to allow the 1^st applicants’ various applications to stay in Hong Kong to take care of the children.

42.  Under these contentions, Ms Li SC (leading Mr PY Lo) for the applicants has advanced arguments based on two perspectives: from the right said to be enjoyed by the 1^st applicants (being the mother or the grandmother having custody and care of the relevant children) who are not permanent residents of Hong Kong, and the right said to be enjoyed by the children applicants who are permanent residents of Hong Kong.

43.  As mentioned above, Mr Yu SC (leading Mr Abraham Chan) for the Director opposes the ground on the principal contention that none of these rights said to be enjoyed by the applicants are engaged at all.  As such, there is simply no question that the Director is obliged to take them into account.  In further support, Mr Yu also submits that all these arguments have been canvassed in Comilang 1 Judgment and rejected by Lam J (as the learned VP then was) with full and unassailable reasons.  Mr Yu further says Lam J’s said reasons have in any event been affirmed by the Court of Appeal in Safder Tehseen v Permanent Secretary for Security and the Director of Immigration (unreported, CACV 167/2012, 6 June 2013, Kwan, Lam JJA and McWalters J) at paragraphs 54 - 57 and are therefore binding on this court.

44.  In these respects, I should mention that in another four sets of judicial reviews, respectively HCAL 44/2014 heard by this court in May 2015 and HCAL 77, 98 and 100/2014 heard together in September 2015, the applicants (also represented by Ms Li SC with Mr Lo and the same set of solicitors as in the present judicial reviews) also seek to challenge the Director’s decisions not to grant them dependant visas on, among others, the ground that he had failed to take into account the applicants’ right to family and the best interests of the child.  In those cases, the Director is similarly represented by Mr Yu and Mr Chan.  The arguments run in those four sets of judicial review under this ground are the same as those run in the present applications, albeit further developed and refined.

45.  As agreed by the parties, in considering in the present judicial reviews the arguments made collectively under the ground of the failure to take into account the family right and the best interests of the child, I should also take into account those submissions made in the other four sets of judicial review.  This is what I would do.

46.  Bearing these in mind, I now turn to the various arguments run under this ground.

C1.1 The effect of Safder Tehseen

47.  Mr Yu submits that Lam J’s reasons and analyses given in the Comilang 1 Judgment in rejecting similar arguments raised by the applicants in these judicial reviews concerning family right and the best interests of the child have been affirmed by the Court of Appeal in Safder Tehseen and are therefore binding on this court.  Mr Yu explains why that is so as follows.

48.  One of the grounds of challenge in Safder Tehseen against the decision to confirm a deportation order made against the applicant was that the Permanent Secretary for Security:

“failed to consider the situation of the applicant’s wife in the round as opposed to a close focus on the desirability or undesirability of the applicant’s continued presence in Hong Kong. The Secretary failed to take into account or accord sufficient weight to a relevant consideration, namely, that the applicant’s wife and her children cannot be expected to live in or travel often to Pakistan”

49.  In firmly rejecting the applicant’s claim (as not even reasonably arguable for the purposes of permission to apply for judicial review):

(1) The Court of Appeal first referred (at paragraph 53) to part of the internal minutes in respect of the applicant’s personal circumstances, where it was noted that:

“Insofar as the claimed right to family reunion is concerned, there is a long line of court decisions holding that being a person who has no right to remain in Hong Kong in the first place, neither [the applicant] nor her [sic] family could invoke the claimed rights to resist deportation”.

(2) The Court then held (at paragraph 54) as follows:

“The long line of court decisions referred to by the Director were the cases discussed by Lam J (as he then was) in Comilang… at paras 26 to 99. This part of his judgment was not disturbed in the Court of Appeal in CACV 183/2012, 2 May 2013. It is well established that in considering deportation, the Secretary has no general duty to take compassionate or humanitarian factors into account, even where family ties might be affected”.

50.  The Appeal Committee of the Court of Final Appeal (Ma CJ, Tang and Fok PJJ) refused leave to appeal against the Court of Appeal’s determination: FAMV 31/2014, 10 October 2014.  Fok PJ for the Court noted that “the proposition that the Secretary has no general duty to take compassionate or humanitarian factors into account even where family ties might be affected appears to have been conceded… [and] was squarely relied upon by the Court of Appeal”. (paragraph 9)

51.  After taking the applicant’s representatives to task for seeking to challenge the above proposition when the challenge did not feature in the Notice of Motion to the Court of Final Appeal (paragraphs 8 - 10), Fok PJ held (at paragraph 11) that the newly proposed challenge in any event “did not advance the applicant’s case at all”.  This was because:

“The main thrust of the applicant’s case is that the Secretary for Security did consider humanitarian considerations but did not properly assess them. That being so, the contention inherent in [the applicant’s proposed challenge], that the Secretary for Security has an obligation to consider humanitarian considerations cannot and does not assist the applicant’s case.”

52.  Mr Yu therefore says effectively the Court of Appeal in Safder Tehseen has affirmed Comilang 1 Judgment’s reasons for rejecting the arguments raised in support of any reliance on family right in relation to a foreign applicant’s application for permission to stay in Hong Kong.  Those become binding on this court.

53.  Ms Li however submits Safder Tehseen should not be regarded as binding on this court to the extent of preventing her from arguing (as she would seek to argue) why the analyses and reasons in the Comilang 1 Judgment (and the various decisions discussed therein) are incorrect.  She points out that:

(1) At paragraph 52 of the Court of Appeal’s judgment, it is expressly stated that in running that argument, “the applicant is not relying on any family right to remain in Hong Kong as dependent, but relying on the fact of his marriage to Ms Hung [the applicant’s wife] in that the Secretary must consider his wife situation in the round as opposed to a close focus on the desirability or undesirability of his continued presence in Hong Kong”.

(2) The court then at paragraph 53 refers to the internal minutes to highlight the fact that, in considering the humanitarian and compassionate ground, the Director referred to long line of court decisions holding that being a person who has no right to remain in Hong Kong in the first place, neither the applicant nor her family could invoke the claimed rights to resist deportation.

(3) It is this reference to the long line of court decisions that the court then said what it said at paragraph 54 as quoted above.

54.  Ms Li says what were therefore run by the applicants as arguments in Safder Tehseen (as summarised in paragraph 52 of the judgment) regarding family right are different from what she is now trying to argue in these judicial reviews. Moreover, although it was correct for the Court of Appeal in Safder Tehseen to say that the discussion of the long line of cases by Lam J in the Comilang 1 Judgment was “not disturbed in the Court of Appeal” in the Comilang 1 CA Judgment, it must however be noted that that was only so because the Court of Appeal in that appeal did not find it necessary to do so as it had allowed the appeal on another narrower ground.  In relation to the other arguments raised in the Comilang 1 JR, the Court of Appeal has left them effectively open, as Fok JA expressly said these at paragraph 40:

“40. The disposition of the appeal on this basis means that the other legal arguments addressed to us in the court of the appeal do not fall to be considered. Many of those arguments addressed to us raised question of some importance. Some are covered by authorities directly, whilst some are not. Some of the authorities are binding on this Court, whilst other are not. Since any views this Court would express on them would be obiter, I do not think it would be appropriate to address those arguments in this judgment.”

55.  In the premises, when Safder Tehseen is read in the above context, Ms Li submits that it must still be open to her to seek to demonstrate by different arguments to show (a) why the Director should take into account the family right and the best interests of the child as a relevant consideration under the general policy but not just when considering the humanitarian ground; and (b) insofar as necessary why the reasoning in Comilang 1 Judgment and other relevant first instance decisions as discussed therein are incorrect.

56.  For the present purpose, I am prepared to accept Ms Li’s submissions.

57.  I would therefore now proceed to look at the arguments raised under this ground collectively based on what the applicants describe as family right and the best interests of the child.

C1.2 Family right under ICCPR/BOR

58.  It is now firmly established that, as a matter of law, even if Hong Kong is party to an international convention or treaty, such as the ICCPR, it would not confer or impose any rights or obligations on individual citizens in Hong Kong unless it has been domesticated into Hong Kong law.  Further, when such an international treaty has become part of our domestic law, it is a matter of proper construction of what is the meaning of (and thus rights and obligations conferred under) that domestic legislation, although in case of ambiguity, the court would presume that the legislature intended to legislate in accordance with the applicable international obligations: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraph 43, per Ribeiro PJ.

59.  Articles 14, 19(1) and 20(1) of the BOR provide as follows:

“Article 14

Protection of privacy, family, home,

correspondence, honour and reputation

(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks.

…

Article 19

Rights in respect of marriage and family

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

 

Article 20

Rights of children

(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

60.  These articles respectively domesticated Articles 17, 23 and 24 of the ICCPR.

61.  However, section 11 of the BOR provides for the immigration reservation (“the Immigration Reservation”) to disapply any of the BOR in immigration context[6] as follows:

“11. Immigration legislation

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

62.  In other words, the Immigration Reservation expressly excludes persons (such as the 1^st applicants) not having a right to enter and remain in Hong Kong to rely on the rights under the BOR.

63.  The constitutionality of the Immigration Reservation by virtue of BL 39 has been confirmed and upheld by the Court of the Final Appeal in Ubamaka, at paragraph 96.

64.  Although at the same time, the Court of Final Appeal has at paragraph 115 construed the Immigration Reservation not to exclude any non-derogable and absolute rights protected by Article 3 of the BOR, Articles 14, 19(1) and 20(1) of the BOR now sought to be relied on by the 1^st applicants are not such non-derogable and absolute rights.

65.  It is therefore clear to me that the 1^st applicants simply cannot rely on any of these rights under the BOR.  The rights are therefore not engaged. Their contention that the Director had failed to take the said right into account must also fail, as the Director is not obliged to do so.

66.  Ms Li then says the children who are permanent residents of Hong Kong however must be able to rely on these rights under the BOR.  However, in Hai Ho Tak, supra, the Court of Appeal rejected a similar argument that, notwithstanding the Immigration Reservation which prevented the person being removed to rely on the family right under these articles, the family relative in Hong Kong who enjoyed the right of abode could rely on the rights indirectly.  As observed by Godfrey JA at p210:1-20 as follows:

 “However, as regards persons not having the right to enter and remain in Hong Kong, the Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation: see Section 11 (contained in Part III of the Ordinance, which is expressed to set out exceptions and savings).

  In my opinion, the effect of s. 11, on its true construction, is this.

1. The Ordinance may not be invoked so as to affect, as regards any person not having the right to enter and remain in Hong Kong, any immigration legislation governing his entry into, stay in or departure from Hong Kong, or the application of any such legislation.

2. This is so no matter who it is that invokes the Ordinance or on what ground he invokes it.

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

See also: Nazareth JA, at pp208:25 - 209:30.

67.  Hai Ho Tak is binding on this court.

68.  Ms Li however submits that this court is not so bound as (a) Hai Ho Tak was decided before the enactment of the BL in Hong Kong, which has by BL 39 constitutionalized the ICCPR rights (as incorporated under the BOR); and (b) it was made under the then submissions that the family rights under the BOR “trumped” any other considerations by the Director, which is not her submissions herein.  All she is submitting now is that the Director must take into account this right as one of the relevant considerations.

69.  I am unable to agree.

70.  BL 39 provides, among others, that the ICCPR shall remainin force and shall be implemented through the laws of Hong Kong.  This has been done through the BOR, which is subject to the Immigration Reservation.  The above quoted analysis in Hai Ho Tak which is premised on the effect of Immigration Reservation upon proper construction cannot be affected by the fact that the ICCPR through the BOR has now received constitutional backing.  As held by the Court of Final Appeal in Ubamaka at paragraph 95 and Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraphs 93 - 99 (see below), the Immigration Reservation has through BL 39 similarly received constitutional backing.

71.  I also cannot see how this reasoning would have been materially affected by the submissions the purported family right is not a trumping right but a relevant consideration.  The analysis is that the Hong Kong permanent resident as the relative simply cannot rely on that right.

72.  In this respect, I also fully adopt Lam J’s reasons at paragraphs 38 - 43 in Comilang 1 Judgment in agreeing with Hai Ho Tak as follows:

“38. Amongst the cases cited by His Lordship at para 97 is the Court of Appeal’s decision in Hai Ho-tak v Attorney General [1994] 2 HKLR 202. The issue before the court was whether Section 11 of the BORO prevents close family members from relying upon their rights in the BoR to challenge a decision of the Director to remove a relative who has no right to remain in Hong Kong. The right relied upon by the applicant was the right not to be subject to arbitrary or unlawful interference with family under Article 14 and the protection of family under Article 19 of the BoR. The Court of Appeal answered in the affirmative. The ratio can be found at p 209 lines 5 to 14 in the judgment of Nazareth JA and p 210 lines 5 to 20 in the judgment of Godfrey JA. Mortimer JA also observed at p 208 that Section 11 is ‘an essential limitation on the general provisions of the international covenant brought about by the reality of Hong Kong’s geographical position and economic success’.

39. Nazareth JA said at p 209, after referring the effect of Section 11,

‘That means not that members of the family of such a person … do not have “family” rights under the Bill, but that their family rights do not affect [the IO] or its application in relation to that person; likewise that even if such family members have locus standi in proceedings such as this, their family rights would not avail in respect of the operation of such immigration legislation as regards that person.’

40. Godfrey JA said p 210,

‘Like all other human rights, the rights of the family under the Ordinance are not absolute.’

41. Ms Li submitted that the case was only concerned with the construction of Section 11 and what Their Lordships said beyond the construction question were obiter. I have three comments on this submission. First, as explained above, Section 11 gives effect to the immigration reservation for the ICCPR. That reservation was a significant qualification to the application of the ICCPR in Hong Kong prior to 1 July 1997. Since then, it has been constitutionally entrenched under Article 39 of the Basic Law. This provides a relevant context that one must take into account in the construction of the other provisions of the Basic Law, including Articles 24 and 37 relied upon by the Applicants.

42. Second, irrespective of the status of Their Lordships’ remarks as obiter, I am in agreement with the observations that in the context of immigration cases, family rights are not absolute. In my view, this proposition is self-evident. If family rights were allowed to prevail over other considerations, immigration control in Hong Kong would be severely undermined and there has to be very clear and cogent grounds to support such a construction of the Basic Law.

43. Third, the ratio in this case is that the immigration reservation prevented a person from asserting a right to protection of family to challenge the exercise of immigration control by the Director, whether such challenge comes from the person being removed or from his family members who are Hong Kong permanent residents. Though this principle was applied in the context of Section 11 on the arguments advanced in that case, the same principle of law is applicable in respect of other manifestation of the immigration reservations, including Article 39 of the Basic Law.”

73.  As a result, the BOR’s right to family are similarly not engaged for the children applicants.  There is therefore again no question that the Director had wrongly failed to take those rights into account in making the relevant decisions.  The applicants’ arguments must fail.

C1.3 Family right under BL 37 and 39

74.  BL 37 provides as follows:

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

75.  The Chinese version of BL 37 is:

“香港居民的婚姻自由和自願生育的權利受法律保護。”

76.  Ms Li first contends that, on a proper, purposive and generous construction (as should be so accorded to construe the BL’s fundamental rights), the words “right to raise a family” in BL 37 provide for the right to the parents to take care of the children as a family, and to the children to be taken care of by the parents as a family.  Counsel refers generally this as a right to family.

77.  As such, the Director must, when in acting in accordance with the law, take into account the 1^st applicants’ said right, as well as the children’s said right, in making the relevant decisions.

78.  However, Ms Li’s contentions face a number of difficulties.

79.  First, it has been held by A Cheung J (as the learned CJHC then was) in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219 and by Lam J (as the learned VP then was) in Li Lim Han v Director of Immigration [2012] 2 HKC 299(agreeing with Kumari)that, as a matter of proper construction, the right under BL 37 is the right to procreate and to foster children.  It is a right conferred upon the parents, but it is not a right to foster children in a particular manner or place, nor is it a right to family.  In coming to this construction, the courts have looked at Article 49 of the Constitution of the People’s Republic of China, and compared the Chinese version and English version of BL 37.

80.  Lam J adopted this construction again in the Comilang 1 Judgment and explained at paragraphs 65 - 68 as follows:

“65. Similar challenge came before the court again in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219. A Cheung J applied Hai Ho-tak in rejecting a challenge based on the BoR. As regards the challenge based on Article 37, instead of applying of Santosh Thewe, His Lordship rejected it by reference to the Chinese version of the Article and having regard to Article 49 of the Constitution of the People’s Republic of China. At para 58, the following was said,

‘In my view, the English version of art.37 of the Basic Law is consistent with the Chinese meaning. The “right to raise a family freely” sits comfortably well with the interpretation, based on the Chinese version, that it is a right to procreate and to foster children, and has nothing to do with the maintenance or taking care of a parent by an adult child, or the formation or maintenance of a family comprising such a parent and adult child. In particular, “to raise” means, in the context, to “rear, bring up, (a person or animal)”, according to the Shorter Oxford English Dictionary on Historical Principles 6^th Edn 2007 p.2454.’

66. At paras 19 to 22, Cheung J reiterated the approach that our courts have consistently adopted in handling immigration cases, paying due regard to the unique circumstances of Hong Kong mandating stringent immigration policies to be followed and the respective roles of the Director and the courts in such matters.

67. More recently, in Li Nim Han v Director of Immigration HCAL 36 of 2011, 14 November 2011, this Court dismissed a judicial review challenging the Director’s removal order by the wife of the subject of removal in reliance on Article 37 of the Basic Law. Counsel in that case relied on English and European jurisprudence and invited the court to follow those cases in the construction of Article 37. This Court rejected that submission. As regards the right of the subject of removal under Article 37, this Court said at para 14,

‘Further, no matter how one interprets the right under Article 37 of the Basic Law, it cannot be an absolute right to have one’s family members to enter and remain in Hong Kong without regard to immigration control. … Given the non-resident status of the 2^nd Applicant, counsel had to accept that he could only enjoy the right conferred under Chapter III of the Basic Law “in accordance with law” under Article 41. Since the law does not give him any right of abode in Hong Kong (as he is not a permanent resident as prescribed by Article 24) and he has no right to enter or remain in Hong Kong, he cannot rely on Article 37 to resist a removal order.’

68. Bearing in mind that the Chinese version of the Basic Law should have precedence in case of discrepancy, and having regard to the Chinese wordings of Article 37, this Court rejected the contention that Article 37 could provide a platform for importing the English and European jurisprudence on right to family life, see paras 24 to 49 of the judgment. Protection of family is afforded by the ICCPR as applied to Hong Kong through the BoR and Article 39 of the Basic Law, as such subject to the immigration reservations.”

81.  In my view, the reasons given in Kumari, Li Lim Han and the Comilang 1Judgmentcannot be faulted.  In particular, as far as I can see, the plain meaning of the Chinese words “生育” is clearly referring only to breeding and procreation, and it would be stretching it to say that they also refer to sustaining or having a right to family life as contended by the applicants.[7]  As submitted by Mr Yu, in interpreting BL 37, although the court should avoid adopting a narrow, literal and technical construction, the court must not give the words a meaning which the language cannot bear: Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at 224A-B, per Li CJ.

82.  Notwithstanding the powerfulness of the reasons in these judgments, Ms Li contends that this court should not follow them as they are incorrect for a number of reasons.

83.  Ms Li first says Lam J had misunderstood her submissions in the Comilang 1 JR (where Ms Li also appeared for Ms Comilang), as the learned judge had regarded her submissions as saying that the applicants had such a family right under BL 37 that would “trump” any of the Director’s discretion.  Ms Li makes it clear in the present applications that she is not advocating the case that the 1^stapplicants are entitled as a matter of right to come and stay in Hong Kong.  All she is saying is that “the right to family” protected by BL 37 is enjoyed by the 1^st applicants or the children applicants, and that the Director should take it into account as a relevant consideration in deciding whether to exercise the discretion to permit the 1^st applicants to come to stay in Hong Kong to take care of the children.  The Director still enjoys, Ms Li emphasises and accepts, the wide discretion in control of immigration, and it is up to the Director to decide whether to grant the permission after taking into account this right.

84.  I am unable to accept this as a valid reason to question the correctness of the court’s analysis in the Comilang 1Judgment (together in adopting Kumari and Li Nim Han).

85.  As quoted above, Lam J was determining the question, as a matter of construction, of whether the family right contended for by Ms Li was covered by BL 37 and thus engaged.  In doing so, the learned judge looked at what he regarded as the relevant local context leading to the BL and in particular BL 37.  The correctness of this analysis clearly has nothing to do with whether Ms Li was advancing a case based on relevant consideration or whether she was asserting an entitlement as matter of right to come to Hong Kong.  The question was still whether there is such a right under BL 37 as a matter of construction in the first place.  It is only when such a right is established and engaged that it is then relevant to consider how such a right should affect, if any, the Director’s decision.

86.  There is therefore nothing in this argument.

87.  Ms Li then says it is also wrong for A Cheung J in Kumari (and as adopted by Lam J in Li Lim Han and the Comilang 1 Judgment) to refer to Article 49 of the Chinese Constitution (regarding the practice of the one child policy family in the Mainland) as a relevant context for the purpose of construing BL 37.  Ms Li contends that the relevant context should instead be the Joint Declaration, where it has expressly set out, among others, the implementation of the policy “One Country, Two System” and the continuation of the practice of common law in the Hong Kong Special Administrative Region.  Further, at paragraph 3(4) of the Joint Declaration, it provides that these stated basic policies of the People’s Republic of China regarding Hong Kong (and as elaborated in Annex I) will be stipulated in the BL.  One therefore should (says Ms Li) construe the BL with reference to these policies stated in the Joint Declaration.

88.  In this regard, two of the elaborations in Annex I regarding basic rights and freedoms are at paragraphs 150 and 156, which state respectively that:

“150. The Hong Kong Special Administrative Region Government shall protect the rights and freedoms of inhabitants and other persons in the Hong Kong Special Administrative Region according to law. The Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.

…

156. The provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong shall remain in force.” (emphasis added)

89.  It is thus clear (Ms Li argues) that BL 37 and 39 are to provide in Hong Kong the constitutional guarantee of the rights set out in last part of paragraph 150 and in paragraph 156.

90.  As such, given the clear purposes of having “two systems” and the continuation of the practice of “common law” in Hong Kong through the constitutional protection of the BL, Ms Li submits that it is incorrect and without basis to refer to Article 49 of Chinese Constitution, which concerns with the family planning policy practised in the Mainland’s social and legal systems.  This is so because, by reason of the above stated policies in the Joint Declaration, this family planning policy is already distinct from and not applicable to Hong Kong.  This Chinese Constitution provision is therefore irrelevant to the construction of the BL.

91.  With respect, I am unable to agree.

92.  As a matter of principle, it is entirely appropriate to refer to the relevant provisions in the Chinese Constitution for the purpose interpreting correspondingly relevant provisions in the BL.  In Lau Kong Yung, supra, at 322D - 323C, the Court of Final Appeal referred to and looked at Article 67(4) of the Chinese Constitution (which is the origin of the power provided in BL 158(2)) to aide its construction of the scope of the power of the Standing Committee of the National People’s Congress under BL 158(2) to interpret the BL.

93.  Moreover, Ms Li’s above submissions premised on the practice of “One Country, Two Systems” and the common law in Hong Kong in my view support instead of exclude the looking at the relevant provision in the Chinese Constitution as the relevant context to construe a relevant article in the BL.  This is so as it must be relevant to look at what the system in the Mainland is to see what the underlying distinctions and differences that the drafters sought to implement and protect in Hong Kong through a particular relevant provision in the BL.

94.  Finally, Ms Li further contends that one should look at the common law (but not the Chinese Constitution) to construe the words “the right to raise a family freely” (and in Chinese “自願生育的權利”) as embodied at paragraph 150 of Annex I of the Joint Declaration and then in BL 37.  This is so since, says Ms Li, the Joint Declaration and the BL seek to preserve in Hong Kong the practice of common law and all the rights inherent therein.

95.  In particular, leading counsel says the court in interpreting BL 37 should also bear in mind the protection of family right as enshrined in ICCPR, which has been constitutionalized under BL 39.  The court should therefore construe BL 37 consistently with those rights under ICCPR (as domesticated under the BOR).

96.  I am similarly not persuaded by these submissions.

97.  It must be noted that the words used in BL 37 (ie, “the right to raise a family freely” and in Chinese “自願生育的權利”) are very specific ones, and counsel is unable to show by authorities or otherwise any common law in Hong Kong practised before 1997 that these words relate to what she says as “right to family” as enshrined in ICCPR.  These words are in any event, as observed by Lam J in Li Lim Han and Comilang 1 Judgment,very different from the words used in these international conventions.  As further said by Lam J at paragraphs 92 - 97, the court should not directly import the meaning of “family rights” embodied in international covenants or jurisprudence to construe the meaning of BL 37, which has a very different local context and background.

98.  I therefore reject Ms Li’s submissions to fault the analysis in Kumari, Li Nim Han and the Comilang 1 Judgment.

99.  Second, the applicants’ arguments that they could rely on the right under BL 37 also face the difficulty that, the 1^st applicants, being not a resident of Hong Kong, simply cannot resort to BL 37, except through the route of BL 41, which provides as follows:

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

100.  It has been now firmly held by Ribeiro PJ in Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraphs 93 - 99 that reading BL 39 and 41 together, the Immigration Reservation which has attained constitutionality is part of the “law” envisaged under BL 41, and thus excludes non-residents’ reliance on any of the Chapter III rights (other than those absolute and non-derogable rights under the BOR) in relation to immigration contexts.

101.  As such, there is no question that the 1^st applicants could rely on BL 37, even if it provides the “family right” contended for by Ms Li.

102.  Ms Li urges this court to be slow to adopt this part of the learned Permanent Judge’s reasoning.  She submits that this part of the judgment is in substance obiter as it is not necessary for the result of that appeal.  Moreover, leading counsel says this reasoning is in any event inconsistent with the principal ruling of the judgment that the applicant, although a non-resident, could rely on the common law principle laid down in Hardial Singh concerning unlawful detention.  Ms Li asks rhetorically that, if some of the rights provided under Chapter III of the BL are equivalent to certain common law rights, how could it be logical and rational to suggest that a non-resident cannot then rely those right enshrined in the constitution because of the reservation, but at the same time can rely on the same right under common law.  This is particularly so, as “in accordance with the law” provided in BL 41 must include the common law previously practised in Hong Kong before 1997.

103.  In my view, the Court of Final Appeal’s reasoning and conclusion that a non-resident cannot rely on any of the Chapter III rights in immigration context given also the constitutional status of the Immigration Reservation are clear. Whether that conclusion can also exclude a non-resident applicant who can show that there is a similar common law right to alternatively rely on that right is neither here nor there as to Ribeiro PJ’s reasons for reaching that conclusion. The Hardial Singh principle is not a common law right which can be said to be the same as any of the rights under Chapter III.

104.  In the present cases, insofar as the 1^st applicants are seeking to rely on a purported right under BL 37, as far as this court is concerned they cannot do so by reason of BL 41 and the Immigration Reservation for the reasons set out by Ribeiro PJ in Rbani.

105.  Insofar as the children applicants are concerned, even if the right “to raise a family” is a “family right” as contended by Ms Li (which for the above reason I have rejected), in their own case, this is the same kind of family right under the ICCPR and BOR.  In the premises, the Court of Appeal’s analysis in Hai Ho Tak as to why the permanent resident children or relative could not rely on that right when the principal non-resident applicant cannot by reason of the Immigration Reservation must equally apply here.  It would similarly be a “non-sensical” construction and conclusion if they cannot rely on this right under ICCPR and BOR (which has been constitutionalised under BL 39 after 1997) given the Immigration Reservation (which has also been constituiontalised after 1997), but can somehow do so if the same right is contained under a different article of the constitution (BL 37).

106.  For all the above reasons and the reasons in Kumari, Li Nim Han and the Comilang 1 Judgment, I conclude that there is no “family right” as contended for under BL 37 or alternatively, no such right is engaged by the 1^st or children applicants.  The Director has no obligation to take it into account as a relevant consideration in making the relevant decisions.

C1.4 Family right underICESCR

107.  Article 10 of the ICESR provides for the recognition of State Parties for the “widest possible protection and assistance [to] be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children”, as well as for “[special] measures of protection and assistance… be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions”.

108.  BL 39 provides that ICESCR “as applied to Hong Kong shall remain in force and shall be implemented through the laws” of Hong Kong.

109.  The ICESCR is not subject to any immigration reservation.  However, and Ms Li accepts that, as the ICESCR has not been incorporated into Hong Kong’s domestic law, it does not for that purpose has the force of law in Hong Kong.  See also: GA v Director of Immigration (2014) 17 HKCFAR 60 at paragraph 58.

110.  Notwithstanding this, leading counsel submits that ICESCR still “has effect” in Hong Kong’s municipal law by reason of the Hong Kong Government’s practice of the Hong Kong Government, which in turn gives rise to the jurisdiction of Hong Kong’s court to supervise the practice under the principle of relevancy and the protection afforded of a legitimate expectation.  In this respect, the applicants rely on the Hong Kong Government’s practice as stated in the Second Report of the Hong Kong Special Administrative Region to the United Nations Committee on Economic, Social and Cultural Rights at paragraph 10.12, which says:

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

111.  In further support of such practice, Ms Li also refers this court to the answers given by the Secretary for Home Affairs at the LegCo on 6 April 2005 to the question raised concerning the implementation of the ICESCR.  The answers were, among others, to the effect that Article 10 of the ICESCR had been given constitutional guarantee by way of BL 37 and the legislative measures to protect family thereunder had been introduced through various local legislations, including the Adoption Ordinance (Cap 290), Domestic Violence Ordinance (Cap 189), Family Status Ordinance (Cap 527), Article 19 of the BOR, and the Employment Ordinance (Cap 57).

112.  Similar arguments have been advanced before and rejected by the courts repeatedly.  In gist, the courts have repeatedly held that:

(1) The ICESCR is an international treaty and covenant of aspiration, which has not been domesticated in Hong Kong by legislation.  It therefore does not confer any direct rights on individual citizens or obligations upon public authorities under domestic law.

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

(3) In light of Hong Kong’s special situation and the Immigration Reservation in respect of ICCPR and CRC, Article 10(1) cannot give rise to any relevant legitimate expectation as to how the Director will exercise his discretion.

See: Chan Mei Yee v Director of Immigration, (unreported, HCAL 77/1999, 13 July 2000) at paragraphs 42 – 46, per P Cheung J (as the learned JA then was); Chan To Foon v Director of Immigration [2001] 3 HKLRD 109 at pp 131D - 134H, per Hartmann J (as the learned NPJ then was) and Comilang 1 Judgment at paragraphs 51 - 54, and 87 - 90.

113.  These reasons cannot be faulted.

114.  The references and reliance on what the Government have stated in terms of practice in the documents as quoted above do not in my view assist the applicants to say that the Director is obliged as a matter of law to take this ICESCR right into account.  This is so as firstly, the right is not engaged as a matter of law as there is no domestication into local law, and secondly if the applicant also cannot establish a legally recognisable or enforceable legitimate expectation in public law that the Director should take this into account in the exercise of his discretion (as held in the above authorities), I do not see any further legal foundations other than a mere assertion to say that he must be obliged to do so.

115.  Given the aspirational and promotional (but not legally enforceable) nature of ICESCR, these statements only highlight the Government’s aspiration and effort to seek to have regard to Article 10 of ICESCR even in immigration context insofar as that would be consistent and compatible with the laws as applied in Hong Kong and her special local circumstances (see in particular the highlighted parts of the above-quoted statement).  That cannot in any way give rise to a legal obligation on the Director to take Article 10 of the ICESCR into account.

116.  The reference to BL 37 as part of the constitutional guarantee of Article 10 of ICESCR in the Secretary for Security’s answers in the LegCo adds nothing to the argument.  One must still look at what right is covered under BL 37 as a matter of construction.  For the reasons I have canvassed above, BL 37 does not provide the “family right” as mentioned in the ICESCR and as contended for by the applicants.

117.  I therefore reject the applicants’ contention that the right under Article 10 of the ICESCR is engaged for the purpose of the 1^st applicants’ applications for permission to stay, or that the Director is obliged to take it into account in making the decisions.

C1.5 Best interests of the child under the CRC and common law

118.  Article 3 of the CRC provides:

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

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

(3) …”

119.  Article 8(1) also recognises the right of the child “to preserve his or her identity, including nationality, name and family relations as recognised by law without unlawful interference.”

120.  The CRC has been rectified for Hong Kong subject to an immigration reservation, which is of the following terms:

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

121.  It is common ground that CRC has not been domesticated into local law in Hong Kong.  In the premises, as held in Ubamaka, it is clear that it would not confer or impose any rights or obligations on individual citizens in Hong Kong.

122.  Ms Li seeks to rely on R (SG) v Secretary of State for Work and Pension [2015] 1 WLR 1449 (UKSC) at paragraph 257, per Lord Kerr and submits that Article 3(1) of the CRC is directly enforceable in Hong Kong’s domestic law.

123.  The facts and arguments in R (SG) are rather complicated.  Suffice for the present purpose are that the claimants were seeking to judicially review the introduction to the Housing Benefit Regulations 2006 under the Welfare Reform Act 2012 a cap to reduce a person’s housing benefit if their total entitlement to welfare benefits exceeded a stated amount equivalent to the net median earning of working households.  The claimants (comprising the mother and the youngest child of three lone parent families) said that this cap which had discriminated unjustifiably against women was unlawful under Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and that the Secretary of State for Work and Pension had failed to treat the best interests of the children as a primary consideration when making the Regulations, as required by Article 3.1 of the CRC.  Both the Divisional Court and the Court of Appeal dismissed the claim on the ground that the cap was justified, and, in relation to Article 3.1 of the CRC, the Secretary of State had shown regard to the interests of children as a primary consideration when making the Regulations.  On the claimants’ appeal to the Supreme Court, and in post-hearing submissions, an additional argument was advanced by the claimants that compliance with Article 3.1 of the CRC was determinative as to the question of justification.

124.  By majority (Lord Reed, Lord Carnwarth and Lord Hughes JJSC), the Supreme Court dismissed the appeal.  In particular, Lord Reed JSC reaffirmed the well established position that international treaty was not enforceable in the UK unless it had been domesticated as part of her law.  His Lordship said this at paragraph 82:

“82. As an unincorporated international treaty, the [CRC] is not part of the law of the United Kingdom (nor, it is scarcely necessary to add, are the comments on it of the United Nations Committee on the Rights of the Child). ‘The spirit, if not the precise language’ of article 3.1 has been translated into our law in particular contexts through section 11(2) of the Children Act 2004 and section 55 of the Boarders, Citizenship and Immigration Act 2009: ZH(Tanzania) v Secretary of State for the Home Department [2011] 2 AC 166, para 23. The present case is not however concerned with such a context.”

125.  Lord Carnwarth JSC expressed the same view at paragraphs 114 and 115.

126.  However, in a dissenting judgment, Lord Kerr observes these at paragraphs 256 and 257:

“256. Standards expressed in international treaties or conventions dealing with human rights to which the United Kingdom has subscribed must be presumed to be the product of extensive and enlightened consideration. There is no logical reason to deny to United Kingdom citizens domestic law’s vindication of the rights that those convention proclaim. If the Government commits itself to a standard of human rights protection, it seems to be entirely logical that it should be held to account in the courts as to its actual compliance with that standard. This is particularly so in the case of the UNCRC [i.e., the CRC]. On its website UNICEF has stated: ‘The CRC is the basis of all of UNICEF’s work. It is the most complete statement of children’s rights ever produced and it is the most widely-ratified international human rights Treaty in history’.

257. I therefore consider that article 3.1 of the [CRC] is directly enforceable in the United Kingdom domestic law.  A primacy of importance ought to have been given to the rights of children in devising Regulations which bring the benefits cap into force.  For the reasons given by Baroness Hale DPSC, I have concluded that this has not taken place.”

127.  As I mentioned above, Ms Li seizes on these observations by Lord Kerr and submits that Article 3(1) of CRC is enforceable in Hong Kong notwithstanding the fact that the treaty has not been domesticated into Hong Kong law.

128.  With the greatest respect, I am unable to accept the submissions.

129.  The well established position of the law as to the lack of any legal and enforceable effect of an undomesticated international treaty (as affirmed by the majority in R (SG)) has been clearly reaffirmed in Hong Kong by the Court of Final Appeal in Ubamaka, at paragraph 43 as I emphasised above. This is binding on this court in Hong Kong.

130.  Further, Ms Li argues that the CRC’s reservation is couched in different terms from the Immigration Reservation which the ICCPR and the BOR are subject to.  She argues that those terms are narrower than that of the Immigration Reservation.  This court should construe this reservation more narrowly, which would not entitle the Director to ignore the child’s best interests in immigration context.

131.  This submission is of course premised on if the CRC is generally enforceable in Hong Kong subject to the reservation.  For the above reason, I have rejected the enforceability of the CRC in Hong Kong.  The question of the scope of the reservation thus does not arise.  However, I would in any event have no hesitation to conclude, if the question does arise, that if one looks at the terms of the reservation substantively and practically, it is clear that it seeks to exclude the application of the CRC in matters in immigration context (including entry into, stay in and departure from Hong Kong and to the acquisition and possession of residentship).  I cannot see how on a proper construction, it could be said that it disentitles the Director to apply the reservation when considering applications (as in the present cases) which clearly relate to matters for “entry into, and stay in Hong Kong”, falling squarely within the terms of this reservation.

132.  In the premises, I do not accept the applicants’ submissions that any right regarding the best interests of the child under Article 3(1) of the CRC is engaged by the applicants. 

133.  Ms Li further refers this court to the UK Supreme Court’s judgment in ZH (Tanzania) v Secretary of State for the Home Department at paragraphs 20, 30 - 32, 35, per Baroness Hale, 40 - 41, 44, per Lord Hope and 47, per Lord Kerrto support her submissions that CRC should oblige the Director to consider the best interests of the child even in immigration context.

134.  In that case, the claimant mother (who was a Tanzanian) sought to challenge the removal order to remove her from England.  She gave birth to a child in England while pending her various eventually unsuccessful asylum claims.  The child had UK citizenship as her father was a British.  The child had been receiving education in England and had been living with the mother after separating from the father.  The claimant mother made a fresh claim under the Human Rights Act 1998 saying that the removal of her from the UK amounted to disproportionate interference with her right to respect for her private and family life guaranteed by Article 8 of the Convention.  Her claim was rejected by the Secretary of State and later by the Asylum and Immigration Tribunal.  The Court of Appeal further dismissed her appeal.  She appealed to the Supreme Court.

135.  As summarised by Baroness Hale at paragraph 1, the issue there was: “The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both if their parents from this country.  Within this, however, is a much more specific question: in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave”.

136.  The Supreme Court allowed the appeal.  In doing so, Baroness Hale concluded that,[8] among others, (a) in considering whether there was disproportionate interference of the claimant’s right to family under Article 8 of the Convention, the context of the family must include consideration vis-à-vis members of the family (ie, the child) other than only the claimant herself; and (b) in that respect, given the international obligation under Article 3(1) of the CRC, the decision maker must give regard to the best interests of the child (being a member of the family) as a primary consideration (though not the primary consideration) when deciding whether to remove the mother. 

137.  Ms Li says the same considerations must similarly apply in Hong Kong.

138.  Ms Li’s reliance on ZH (Tanzania) is with respect misplaced.  As clearly stated in the judgment of Baroness Hale, the reasons why the United Kingdom Government had to have regard to Article 3 of the CRC are that (a) that had been domesticated into the relevant national statutes in United Kingdom under section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009; and (b) the removal in the United Kingdom in 2008 of the immigration reservation to the CRC when she first acceded to it.  See: paragraphs 12 and 23.  These clearly distinguish ZH (Tanzania) from the position in Hong Kong.  As repeatedly mentioned above, Hong Kong has not incorporated the CRC into any domestic law, and in any event the relevant immigration reservation is still valid.

139.  On this basis alone, I would not accept that ZH (Tanzania) has any bearing to support that in Hong Kong, the Director has an obligation to take into account the best interests of the child as required under the CRC in considering these entry permission applications.

140.  Moreover, I would also agree with Lam J’s observations at paragraphs 100 - 113 of the Comilang 1 Judgment in rejecting to adopt the approach of ZH (Tanzania) in Hong Kong.  The proportionality interference of right to the family as derived from the European jurisprudence is premised on Article 8 of the Convention (in particular the right to family and private life), which is couched in very different terms from our relevant Hong Kong statutes and context.

141.  Despite all the above, Ms Li further alternatively argues that the Director is still obliged to take into account the best interest of the child as a primary or at the least a relevant consideration (as mandated by the CRC) in making the various decisions, as the child’s interest is clearly affected.  Leading counsel advances a number of alternative bases to support the contention.

142.  First, Ms Li says the children applicants have a legitimate expectation that this would be so, as the Government has in various occasions been expressing to the international community and the public that in practice the best interests of the child “are necessary considerations in all relevant decision-making, including legislative proposal and policies, and are taken into account as a matter of course”. These are underlined by the following:

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

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

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

(4) Mr Lau Kong-wah, the then Under-Secretary for Constitutional and Mainland Affairs stated on behalf of the Hong Kong Government before the 1833^rd meeting of the Committee (on 26 September 2013) that “[from] April 2013 onwards, every policy had to be considered from the point of view of its impact on families”; that “the best interests of the child were taken into account in current child protection policies, which sought primarily to promote family cohesion and the well-being of the child”.[9]

143.  With respect, none of these materials relied on by Ms Li support the suggestion that the Government has adopted in practice to have regard to the best interests of the child in relation to immigration matters.

144.  The purported reliance on the evidence referred to in Chan To Foon is misplaced.  The evidence was referred to in that case in the context of the Director’s consideration under the humanitarian and compassionate ground.  As observed by Hartmann J in relation to this part of the evidence at p 118A - H as follows:

“… Mr Mak stated that, while the Director was not obliged in law to take such personal circumstances as family unity into account nevertheless (in accordance with the general discretion vested in him):

… as a matter of practice, where circumstances permit, the Director considers humanitarian representations. But the Director only makes a decision which is contrary to policy where there are compelling and exceptional humanitarian circumstances. There will be few such cases. Any other approach would compromise the effectiveness of necessary policy. (Emphasis added.)

Finally, by way of summary, Mr Mak said:

The right of the Hong Kong permanent resident to freely bring a spouse from outside (whether from the Mainland or overseas) for residence and consequently freely to raise a united family in Hong Kong has not been possible for a very long time in view of Hong Kong's immigration problems. It follows that while the best interests of the children will always be a primary consideration and will always be taken into account, they must be set against the public interest needs of our immigration policy. If it were otherwise, there would be no protection from illegal immigration and overstaying. The need for consistency in decision-making is both imperative and obvious. In the cases of Mainland split families, the one-way permit system provides for family unity in the medium to long term. (Emphasis added.)

As I perceive it, what arises from this statement by Mr Mak is that the best interests of affected children (and no doubt their place in the family) will be considered in determining whether ‘compelling and exceptional humanitarian circumstances’ exist to allow the Director to make an exception to his policy of removing all illegal immigrants. However, the interests of affected children will be weighed against the broader public interest and their interests will not be considered in the context of the particular protections afforded to children (or their families) under the international conventions applied to Hong Kong.” (emphasis added)

145.  This has nothing to do, as the applicants seek to submit in these judicial reviews, the Director by way of established practice has been taking into account the child’s best interests in considering whether a permission to stay application falls within a relevant immigration category.  Further, as discussed above, it is now firmly established by the Court of Final Appeal in Lau Kong Yung that the Director is not obliged to consider humanitarian and compassionate ground and, even when and if the Director considers the humanitarian and compassionate, the said exercise of discretion is generally not subject to court’s scrutiny in judicial review.

146.  Thus, there is no question that what was said by way of evidence in Chan To Foon supports the contentions that the Director has by practice taken into account the child’s best interests in immigration context generally, and thus he is obliged to do so whenever he considers a permission to stay application whereby the applicant seeks to join a permanent resident child in Hong Kong.  To that extent, as I will discuss further later, in the present cases, the Director had in fact taken into account the children’s interest when considering there were exceptional humanitarian and compassionate circumstances to approve the applications to stay.

147.  Insofar as the Government’s statements in the relevant reports to the Committee and the then Under-Secretary for Constitutional and Mainland Affairs statement made before the 1833^rd meeting of the Committee are concerned, it must be noted that the CRC was adopted for Hong Kong expressly subject to the immigration reservation.  Thus, the clear default position must be that the Government would not adopt these considerations insofar as immigration matters are concerned. To rebut or reverse this default position, it would in my view require very cogent and clear statements from the Government to expressly state that, even in immigration considerations and context, she would also in practice adopt the Article 3(1) consideration under the CRC.  As quoted above, these statements do not show in any clear manner that, in relation to immigration matters and contexts, the Government is also adopting a practice that it would always take into account the best interests of the children. 

148.  Further, I repeat Lord Reed’s observation at paragraph 82 of R (SG), supra (as quoted above) that neither the CRC nor the comments made by the Committee would create any legal obligations domestically in Hong Kong.

149.  I therefore reject Ms Li’s first submissions.

150.  Second, Ms Li says it is part of customary international law (“CIL”) that in applying any law affecting children, their best interests are to be of “primary consideration”.  This is part of the CIL by reason of the almost universal ramification, accession or acceptance of the CRC and the principle and broad international consensus.  In support of these submissions on CIL, Ms Li relies on Rhona Smith, Text and Materials on International Human Rights (Routledge, 2013) pp 14 - 15; Malcolm Langford (edn), Social Rights Jurisprudence (above) Chapter 27; and Geraldine Van Bueren, The Separation of Powers and the International Legal Status of the Best Interest of the Child in Assisting Domestic Courts Protect Children’s Economic and Social Rights, Proceedings of the International Conference on the Rights of the Child (Montreal, Canada: Wilson Lafleur, 2007) pp 237 - 273.

151.  Ms Li then says as the common law regards CIL both as a source and as informing the interpretation of statutes on the application of the principle of legality,[10] in the absence of a contrary statute, CIL has been part of Hong Kong’s common law and the development of common law does not come to an end upon the passing of the BOR or the coming into operation of the BL.

152.  The Director must therefore act in accordance with the law, including the common law, in exercising his statutory discretion.  As a result, in considering the 1^st applicants’ permission to stay applications, the Director must take into account the best interests of the children in accordance with the law, since these decisions would affect the children’s wellbeing generally.

153.  I do not accept these submissions.

154.  As observed by the Court of Appeal in C v Director of Immigration (unreported, CACV 132-137/2008, Cheung CJHC, Yuen JA and Lam J, 21 July 2011) at paragraphs 45 and 46,[11] CIL results from a general and consistent practice of States followed by them from a sense of legal obligation (opinio juris).  In proving such general and consistent practice by cogent evidence, the following three elements must be shown:

(1) The concept must of such character and its formulation of sufficient precision as to be capable of creating a general rule.

(2) It has been consistently practised by the States generally, although not necessarily by all States.

(3) The practice has been followed because of a legal obligation to do so.

155.  With respect, the above academic writings relied on by Ms Li cannot amount to sufficient proof in court of any or all of the above elements to show that the best interests of the child concept under the CRC has become part of the CIL.

156.  In gist, these writings are theses or opinions of the respective respected legal scholars expressing the views that it is arguable (or even strongly arguable) that the best interests of the child principle under the CRC has become part of the CIL given that it has been ratified by many although not all member States of the United Nation.  As fairly observed by Rhona Smith in Texts and Materials on International Human Rights, supra, at p 15: “… Arguably, the ‘best interest of the child’ principle now transcends the treaty and is rightly considered part of customary international law.  This is the view of some prominent international commentators, including Geraldine Van Beuren” (my emphasis).[12]  Similarly, the author of Chapter 27 of Social Rights Jurisprudence was similarly only arguing that the status of best interests enshrined in Article 3(1) of the CRC had attained CIL status (see p 577), but he at the same time had at least impliedly recognised the fact that some States had adopted the CRC subject to reservations (say immigration reservation) pointed against the formulation of the relevant CIL (see p 576).  Moreover, the author also fairly pointed out that “there still remain vestiges of belief that the standard of best interests applies only to what were traditionally described as private law and not public law”.

157.  In my view, these respected legal scholars’ theses of course can provide platforms, even powerful platforms, for the debate.  But clearly they alone (and in particular when yet to be tested in court) cannot be regarded as clear and proven evidentiary materials[13] to establish all the above three elements to show that “the best of interests of the child” principle under the CRC has formed part of the CIL.

158.  I therefore also reject Ms Li’s contentions based on CIL.

159.  Finally, Ms Li submits in any event that under the principle of parens patriae, the common law itself has developed the principle of law that the court would have regard of the best interests of the child as a primary consideration whenever a child’s welfare and wellbeing is involved.  As such, whether or not there is a similar principle under CIL, Hong Kong in practising common law has already incorporated in her jurisprudence to have regard of the best interests of the child as a primary or relevant consideration whenever a child’s wellbeing is involved.  Given that the Director’s decisions in whether to permit the child’s mother to come to stay in Hong Kong would affect the child’s wellbeing, and given that the Director must act in accordance with the law, including this principle, he is therefore obliged to take into account the child’s best interests as at least a relevant consideration.

160.  Ms Li relies on these authorities and legal texts to support her submissions: QMY v GSS (unreported, CACV 68/2014, 19 August 2015, Lam VP, Cheung and Yuen JJA) at paragraph 8.3 - 8.6, per Cheung JA; A v A (Habitual Residence) (2013) 3 WLR 71 (UKSC), at paragraphs 60 – 63, per Baroness Hale; Drew, Sandhya and Nastic, Dragan, The Immigration Reservation to the Convention on the Rights of the Child, an Insuperable Difficulty no More (2009) 23(2) Immigration, Asylum and Nationality Law 119 at 127.

161.  Mr Yu SC for the Directors submits that the common law principle of parens patriae has traditionally only been limited to family  law context and therefore questions relating to the interest of the child in that context.  He submits that there are no authorities to support the contention that there is a common law principle looking at the best interests of the child which applies generally and in particular in immigration context whenever the child’s wellbeing is affected.

162.  These contentions therefore require the court to look at more closely the authorities relied on by Ms Li.

163.  In GMY v GSS, the Mainland mother (who is not a Hong Kong permanent resident and lived in the Mainland) applied under the Guardianship of Minors Ordinance(Cap 13) (“GMO”) to claim maintenance for the child against the father.  The father and the child (who was then eight years old) were all permanent residents of Hong Kong, but both of them had also habitually stayed in the Mainland not in Hong Kong.  The father applied to dismiss these proceedings on the basis that the Hong Kong court had no jurisdiction to deal with this application when, among others, the child was not physically present in Hong Kong.  His dismissal application was rejected at first instance by the Family Court.  He appealed to the Court of Appeal.  The Court of Appeal allowed the appeal.

164.  The Court of Appeal discussed the question of whether the child must be an ordinary resident here in Hong Kong or present here before court’s jurisdiction under the GMO could be invoked.  It found the question not an easy one in light of the well established principle of general territorial limit of statutes, but came to the conclusion that it was not necessary for it to reach a determinative answer, as “the Hong Kong Courts also have inherent jurisdiction over children which may be exercised beyond its territorial limits”.  See paragraphs 7.3 - 7.11 of the judgment per Cheung JA.  It was in this context of discussing the inherent jurisdiction that Cheung JA went on to say the following at paragraphs 8.2 - 8.8 concerning the principle of parens patriae:

“2) The English authorities

8.2 It can hardly be challenged that the Hong Kong Courts have inherent jurisdiction over children both before and after the resumption of exercise of sovereignty by China on 1 July 1997. The debate here is whether the original basis of the inherent jurisdiction can be retained in the new order.

8.3 The English authorities show that under the inherent jurisdiction of the High Court, jurisdiction over a child may be exercised if the child is a British national. This is based on the concept of allegiance by the British subjects to the crown, namely, the child owes allegiance to the Crown and in return the Crown has a protective or parens patriae jurisdiction over the child wherever he is. Lord Cranworth LC stated in Hope v Hope (1854) 4 De GM & G 328 at 344-345, (1854) 43 ER 534 at 540-541:

‘The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.’

8.4 A modern affirmation of this jurisdiction was made by Lord Denning MR in Re P (G E) (an infant) [1965] Ch 568 at 582 :

‘The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see [Hope v Hope (1854) 4 De GM & G 328, Re Willoughby (an infant) (1885) 30 Ch D 324 and R v Sandbach Justices, ex p Smith [1950] 2 All ER 781, [1951] 1 KB 62].’

See also Harben v Harben [1957] 1 WLR 261 per Sachs J at 264.

8.5 Thorpe LJ in Al Habtoor v. Fotheringham [2001] 1 FCR 385, however, cautioned that the Court should be ‘extremely circumspect’ and ‘must refrain from exhorbitant jurisdictional claims founded on nationality’ over a child who was neither habitually resident nor present here, because such claims were outdated, eccentricand liable to put at risk the development of understanding and co-operation between nations. [paragraph 42]

8.6 These cases were reviewed by the United Kingdom Supreme Court in Re A (Children) (jurisdiction : return of child) [2014] 1 All ER 827. Lady Hale DP at [63] recognized the existence of the inherent jurisdiction. The Court there addressed the issue whether the English High Court had jurisdiction to order the ‘return’ from Pakistan to England of a small child H who had never lived in or even been to England. The parents had previously come from Pakistan to live in England. They later lived in Pakistan although the mother had always intended to return to England. Eventually she did and applied to make her four children (three were born in England and H was born in Pakistan) wards of Court and applied for their return. The Court had first to consider whether the husband was habitually present in England which was an express condition to invoke the Court’s jurisdiction to make an order under the Family Law Act 1986. The Supreme Court held that habitual residence is a question of fact and not a legal concept such as domicile and habitual residence. It corresponds to the place which reflects some degree of integration by the child in a social and family environment. Four of the Judges held that presence was a necessary precursor to residence and that a child could not be integrated into the social environment of a place to which his primary carer had never taken him. Lord Hughes, by contrast, would have held that in these circumstances the child acquired the habitual residence of his mother.

8.7 However, as the trial judge had not considered the inherent jurisdiction point, the Supreme Court remitted the case to the trial judge for her to consider whether to exercise the Court’s inherent jurisdiction of the Court.

8.8 The concept of ‘British subjects pledging allegiance to the British Crown’ which is the original basis of the inherent jurisdiction clearly has no place in Hong Kong after 1997 and this is accepted by Mr Robert Pang SC and Mr Eugene Yim for the mother.”

165.  It is clear from the above that the relevant discussions of the court’s jurisdiction under the principle parens patriae were made in the special context of considering guardianship and maintenance for a child.  It is in such context, where the focus is the child’s maintenance and welfare, that the child’s interest must as a matter of logic and common sense be a relevant or even primary consideration.  They however cannot be taken as statements supporting the proposition that there has always been a general principle under the common law to take a child’s best interests as a primary consideration in any matters or contexts as long as a child’s wellbeing maybe affected.

166.  In A v A, the pertinent question was whether there was jurisdiction for the court to make (on the application by the mother) a ward of court and order the return of a young child of UK nationality to England who was born in Pakistan and had never been in the UK.  The English Court of Appeal by majority said there was no jurisdiction to do so under the Family Law Act 1986 as the test of habitual residence required the child had to have at some time been physically present in England.  On appeal to the Supreme Court, it allowed the appeal on the alternative ground that, since the Act did not apply (as the child was not habitually resident in any member state of the European Union), the jurisdiction question would fall to be determined by the laws of England, and common law rules of inherent jurisdiction would apply, including the inherent jurisdiction exercised by the courts on behalf of the Crown to protect its subjects who had pledged allegiance to the Crown.

167.  It was in this special and limited context of wardship that Baroness Hale explained this common law inherent jurisdiction at paragraphs 60 - 63 as follows:

“60 We have already established that the prohibition in section 2 of the 1986 Act does not apply to the orders made in this case. The common law rules as to the inherent jurisdiction of the High Court continue to apply. There is no doubt that this jurisdiction can be exercised if the child is a British national. The original basis of the jurisdiction was that the child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. As Lord Cranworth LC explained in Hope v Hope (1854) 4 De GM & G 328, 344–345:

‘The jurisdiction of this court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the state and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects. The first question then is, whether this principle applies to children born out of the allegiance of the Crown; and I confess that I do not entertain any doubt upon the point, because the moment that it is established by statute that the children of a natural born father born out of the Queen's allegiance are to all intents and purposes to be treated as British born subjects, of course it is clear that one of the incidents of a British born subject is, that he or she is entitled to the protection of the Crown, as parens patriae.’

61 The continued existence of this basis of jurisdiction was recognised by the Court of Appeal in In re P (GE) (An Infant) [1965] Ch 568, 582 where Lord Denning MR said this:

‘The court here always retains a jurisdiction over a British subject wherever he may be, though it will only exercise it abroad where the circumstances clearly warrant it: see Hope v Hope (1854) 4 De GM & G 328; In re Willoughby (1885) 30 Ch D 324; R v Sandbach Justices, Ex p Smith [1951] 1 KB 62.’

The Law Commissions in their report also recognised its continued existence, while pointing out that ‘there appears to be no reported decision in which jurisdiction to make a wardship order has been based on the allegiance of a child who was neither resident nor present in England and Wales’ (see Law Com No 138, paras 2.9 and 4.41). In fact, Hope v Hope was just such a case, as the boys in question had been born in France to British parents, had never lived here (although they had been brought here for a few days by their father), and were in France when the proceedings were begun.

62 However, in Al Habtoor v Fotheringham [2001] 1 FLR 951, para 42 Thorpe LJ advised that the court should be ‘extremely circumspect’ and ‘must refrain from exhorbitant jurisdictional claims founded on nationality’ over a child who was neither habitually resident nor present here, because such claims were outdated, eccentric and liable to put at risk the development of understanding and co-operation between nations. But in In re B (Forced Marriage: Wardship: Jurisdiction) [2008] 2 FLR 1624, Hogg J did exercise the jurisdiction in respect of a 15-year-old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High commission in Islamabad asking to be rescued from a forced marriage and helped to come to Scotland to live with her half-brother. The High Commission wanted to help her but felt unable to do so without the backing of a court order. Hogg J made the girl a ward of court and ordered that she be brought to this country. The half-brother was assessed as offering a suitable home and in fact she went to him. Hogg J explained that she thought the circumstances ‘sufficiently dire and exceptional’: para 10. In In re N (Abduction: Appeal) [2013] 1 FLR 457, para 29 McFarlane LJ commented that ‘if the jurisdiction exists in the manner described by Hogg J then it exists in cases which are at the very extreme end of the spectrum’. The facts of that case were certainly not such as to require the High Court to assume jurisdiction over the child in question.

63 In my view, there is no doubt that the jurisdiction exists, in so far as it has not been taken away by the provisions of the 1986 Act. The question is whether it is appropriate to exercise it in the particular circumstances of the case. Mr Turner accepts that Parker J did not address herself to this basis of jurisdiction and to whether, if Haroon were not habitually resident here, it would be appropriate to exercise it. He accepts that the case will have to return to her in order for her to do so.”

168.  Similarly, I am not convinced that A v A supports Ms Li’s sweeping submissions that there is a common law principle of parens patriae that is of general application rather than rooted in the context of custody and wardship[14].  In fact, the learned authors in Clayton QC, Tomlinson QC, The Law of Human Rights (2^nd edn) (a text relied on by Ms Li herself) support the position that the jurisdiction of parens patriae is exercised through and in the context of wardship proceedings.  They stated at paragraph 13.21 this:

“The High Court has, traditionally had a jurisdiction [parens patriae] to protect children from injury. This was exercised through ‘wardship’ proceedings. Thepractical significance of this jurisdiction in respect of children has been significantly reduced by the Children Act 1989. Its principal effect has been in public law cases because the Children Act makes wardship and local authority care incompatible. It is now clear that wardship proceedings do not create any advantages which are not available in ordinary family proceedings.” (footnotes omitted)

169.  Finally, the article of Drew, Sandhya and Nastic, Dragan, The Immigration Reservation to the Convention on the Rights of the Child, an Insuperable Difficulty no More (2009) 23(2) Immigration, Asylum and Nationality Law 119 at 127 again offers no support that there is a common law parens patriae principle to have regard to the best interests of the child that is applicable generally, including in immigration context, whenever a child’s interest is directly or indirectly affected.

170.  As stated in its opening, the article seeks to examine the legal effect of the CRC in light of the then recent withdrawal by the UK Government of the immigration reservation to the CRC.  In this context, the authors commented the following on the effect of the reservation (before its withdrawal) on deportation cases at p 120 as follows:

“Legal effect of withdrawal

The legal effect of a valid reservation entered by a state qualifies that state’s acceptance of an international treaty. Leaving aside the now academic argument of whether the immigration reservation was ever valid, withdrawal now means that in relevant cases, the decision of the Court of Appeal in R v Secretary of State for the Home Department ex p (1) Philomena Lobo Gangadeen (2) Daniel Robbie Jurawan and R v Secretary of State for the Home Department ex p Khalid Massod Khan (QBCOF 97/0328/D) has been overtaken. Gangadeen concerned judicial review of an appeal against deportation. The isse was whether and how the best interests of the child of a prospective deportee should be considered. The Appellants relied on Home Office policy DP/2/93, art 8 of the European Convention on Human Rights and on the CRC. As to the last, Hirst LJ said:

‘As already noted the appellants also relied on the UN Convention on the Rights of the Child 1989, from which I have already quoted the relevant passage.

However, in seeking to bring this provision directly into play in the present case they were confronted with the insuperable difficulty that when in 1991 the UK ratified this convention, such ratification was subject to the following reservation:

“The UK reserves the right to apply such legislation, insofar as it relates to the entry into, stay in or departure from the UK of those who do not have the right under the law of the UK to enter and remain in the UK, and to the acquisition and possession of citizenship, as it may deem necessary from time to time.”’

Gangadeen was a family reunification case.  As a result, there was little reliance on the CRC thereafter by appellants in family reunification cases.”

171.  As rightly pointed out by Mr Yu for the Director, these comments rather confirm that, before the withdrawal of the immigration reservation, it was clear that the CRC had no application in immigration cases, and that if there had been any common law principle of best interests of the child under the parens patriae principle (as contended by Ms Li) that was also applicable to immigration contexts, it would not have been necessary for these claimants to try but unsuccessfully to rely on the CRC in family reunification cases.  This article therefore rather supports the position that there is no such common law principle of parens patriae which applies generally.

172.  Moreover, the lack of any arguments raised in any of these immigration and unification cases for such a generally applicable common law principle shows that there is no such generally applicable principle.  As rhetorically asked by Mr Yu, if there had been such a generally applicable common law principle of parens patriae, would it have been likely that all the experienced counsel had somehow failed to appreciate that and they all had to argue in these cases for the reliance on the CRC, albeit unsuccessfully in light of the immigration reservation.[15]

173.  I therefore also reject the submissions that there is a generally applicable common law principle of parens patriae that obliges the Director to have regard to the best interests of the child as a primary or relevant consideration when considering the permission to stay applications.

174.  For all these reasons, I reject the applicants’ submissions that the Director had erred in law in failing to take into account the best interests of the children in these cases as a relevant factor in making the decisions.

C1.6 Common law right to individual to marry, establish home and raise children

175.  Lastly, and alternatively, Ms Li contends that there is in any event a common law right to individual to marry, establish home, and raise children.  Given this right, the Director as administrative decision-maker is obliged to take into account this right in formulating policy and making decision in exercise of statutory discretion in the circumstance of an individual case.  Ms Li relies principally on R (Aquilar Quila) v Secretary of State for the Home Department [2011] 3 All ER 81 (CA), [2012] 1 AC 621 (UKSC) to support her contentions.

176.  The relevant facts of R (Aquilar Quila) are these.  The two separate foreign claimants (both under the age of 21) married respectively to two UK citizens and residents who were both below 21 years old.  The claimants applied for permission to remain in the UK as the spouses of the UK citizens.  Their applications were refused as rule 277 of the Immigration Rules (as amended with effect from November 2008) required both the sponsor and the incoming spouse to be over the age of 21.  The amendment was designed to reduce the incidence of forced marriages.  The claimants by way of judicial reviews challenged rule 277 on, among others, the basis that it amounted to disproportionate inhibition on family and private life under common law and interfered with the right to respect for private and family life and the right to marry guaranteed by Articles 8 and 12 of the Convention (as domesticated into UK laws under the Human Rights Act 1998).  The Court of Appeal allowed the challenges.  The court was of the view that the restriction under rule 277 did amount to interference of those rights and that it was disproportionate as there was no rational connection between the announced objective (to reduce forced marriages) and the amendment in section 277.

177.  In coming to these conclusions, Sedley LJ said these at paragraphs 37 - 38 and 48 as to the nature of the rights involved:

“RIGHTS AT COMMON LAW AND UNDER THE CONVENTION

[37] The critical initial question is therefore what right, if any, either appellant can rely on in order to found a case on proportionality. The common law has not operated historically by declaring affirmative rights: it has preferred to guarantee freedoms, freedom from arbitrary detention, for example, or from trial without due process of law. But almost every such freedom can be, and commonly is, restated in the language of correlative rights. Some of these, such as the right not to be arbitrarily detained, are part of the fabric of the common law itself. Others, such as the right to jury trial, are or have become artefacts of legislation, but they are no less fundamental for this. Two such rights are founded upon here: the right of a citizen of the United Kingdom to live here, and the right of an adult to marry. The first is an indefeasible and unconditional right, for the British state has no power of exile. The second is a right which is governed and qualified by statute, but it is in the eyes of the common law a fundamental right with which the state may interfere only within measured limits, for example, in relation to age, consent, formality and so forth.

[38] Partly but not wholly in parallel with the common law, the appellants found on arts 8, 12 and 14 of the Convention, with each of which the Home Secretary, as a public authority, is required by s 6 of the 1998 Act to comply.

…

[48] In my judgment r 277 represents a direct interference with what the common law and convention both value as a fundamental right. In the eyes of the common law it is not simply the right to marry and not simply the right to respect for family life but their combined effect which constitutes the material right: that is to say a right not merely to go through a ceremony of marriage but to make a reality of it by living together. For the state to make exile for one of the spouses the price of exercising the right to marry and embark on family life requires powerful justification, considerably more powerful, in my judgment, than existed in Abdulaziz’s case. In convention terms the two rights are discrete, but their practical relation to each other is in my view very much the same.” (emphasis added)

178.  Pitchford LJ agreed with his Sedley LJ’s analysis (see paragraph 68) although His Lordship also provided his own views on the subject of interference with a fundamental right under Article 8 of the Convention at paragraphs 68 - 72.

179.  In this respect, it is noteworthy that Gross LJ, although agreeing with the result of the appeals, did not feel comfortable to proceed on the basis of what Sedley LJ had said premised on the common law affirmative rights as well as the Convention rights.  Gross LJ was contended to allow the appeals on the traditional irrationality or Wednesbury unreasonable ground in light of the blanket policy imposed under rule 277 without any exception for couples like the present ones.  In particular, the learned Lord Justice observed at paragraph 74(iii) as follows:

“[74] For my part:

…

iii)    I am also wary, for the traditional reasons, with respect, acknowledged by Sedley L.J., of approaching common law issues, even potentially fundamental issues, in terms of affirmative rights rather than freedoms. Though it may not matter, I would also be minded to talk of rights and correlative duties rather than treating freedoms and rights as correlatives.”

180.  The Secretary of State appealed the Court of Appeal’s decisions to the Supreme Court.   The Supreme Court dismissed the appeals.  However, it did so solely on the ground in relation to the Convention right to family life under Article 8, without having to address or rely on Sedley LJ’s analysis on the common law rights.  In fact, Lord Brown, in his dissenting judgment, clearly distinguished the right to respect for family life guaranteed by Article 12 of the Convention and the right to marry and to found a family guaranteed by Article 12 (the latter of which is more similar to the language of our BL 37).

181.  Ms Li submits that Sedley LJ’s above observations support that there is a common law right to individual to marry, establish home and raise children.

182.  I am unable to agree.  I will explain why:

(1) On a proper reading of Sedley LJ’s analysis under the above quoted paragraphs, it is clear that at the highest, what the learned Lord Justice had identified at paragraph 37, insofar as common law rights are concerned, are a right of a UK citizen to live in the UK and a right of an adult to marry.  The latter right is similar, as submitted by Mr Yu, to the right under our BL 37.  This has nothing to do with a right, as now contended by Ms Li, to family life (which includes says Ms Li the right to raise children as a family in Hong Kong).

(2) It is only when the learned Lord Justice at paragraph 38 compared and read that common law right to marriage together with the rights found on Articles 8, 12 and 14 of the Convention (which have for all the reasons given by Lam J in the Comilang 1 Judgment have no relevance in Hong Kong) that he came to the conclusion at paragraph 48 on the combined right to marry and to make a reality of it by living together.

(3) In my view, Sedley LJ’s above analysis cannot be taken to show there is a sole common law right not only to marry but also to live together as a family.

183.  In this respect, in addition to my above reasons, I also accept Mr Yu’s submissions that:

(1) Sedley LJ did not provide any authorities in support of his ruling on the existence of such a broad and sweeping common law right which he said was congruent and coextensive with the rights guaranteed by Articles 8 and 12 of the Convention.

(2) Even taking on their face value, assuming they apply in the Hong Kong context, the asserted common law rights simply do not extend to a right to family life in a particular place regardless of the immigration status of the respective family members.

(3) The applicants also ignore the reality that, on the facts of each of the present cases, the Director did consider under the humanitarian and compassionate grounds the possible impact of his decision on their family life in terms of marriage, living together and children.  Whether he actually had the formal concept of a “common law right” explicit in his mind is neither here nor there.

184.  I therefore reject Ms Li’s submissions based on the common law right to family life and raise children.  The Director is not obliged to consider this factor.

C1.7 The relevant children’s right of abode guaranteed under BL 24

185.  Finally, Ms Li also submits that the Director must take into account as a relevant consideration in the decision making process the impact on the relevant child’s Hong Kong permanent residency as guaranteed by BL 24 (together with his entitlements to all the benefits in Hong Kong as a permanent resident).  In substance, Ms Li’s arguments are premised on the contentions that if the 1^st applicant’s permission to stay application is to be rejected, it would effectively mean that the relevant child would have to move out of Hong Kong to live with the 1^st applicant as a primary carer and thus unable to enjoy this rights as a Hong Kong permanent resident.

186.  These arguments based on the child’s derivative permanent residency rights have been fully advanced in the Comilang 1 JR.  With very comprehensive and detailed reasons, Lam J has rejected these arguments at paragraphs 100 - 122 in the Comilang 1 Judgment.  Suffice for me to say that I fully agree and adopt those reasons to similarly reject them in these present applications and would not repeat all of them in this already long judgment, except to recite paragraphs 117 - 122 as concluding remarks:

“117. Apart from the right of abode, the 2^nd Applicant as permanent resident of Hong Kong also enjoys other rights safeguarded by the Basic Law. However, as far as her right to non-interference with her family is concerned, this is provided by the BoR and restricted by Section 11 of the BORO. Article 37 is of no avail to her because even in the English version it refers to the ‘right to raise a family’, as such a right belonging to the parents, instead of a ‘right to be raised’.

118. Against such context, I do not see any room for contending any form of derivative right of residence as a matter of proper construction of Article 24.

119. This conclusion can be tested by examining the ramifications of admitting any form of derivative right of residence (as opposed to a discretionary humanitarian consideration). Mr Chow postulates the following at para 37 of his skeleton submission,

‘If the contention that A2, in order to enjoy her right of abode, is entitled as a matter of law to be accompanied by her primary carer (A1) in Hong Kong is correct, this would mean that Al must be permitted to reside in Hong Kong for up to 18 years during the minority of A2, in the course of which Al may also be able to acquire the right of abode in Hong Kong under BL24(2)(4). The logic of this contention, if it is sound, would also apply to all children born in Hong Kong whose parents are both Chinese citizens but (a) neither has the right of abode in Hong Kong or (b) only one of them has the right of abode in Hong Kong but that parent with the right of abode is not the primary carer, and potentially to other situations where the persons having the right of abode are in need of care (eg people suffering from disabilities, old people, etc) by other persons who have no right of abode. This contention needs only to be stated to be rejected.’

120. I cannot find any answer to Mr Chow’s argument with regard to the other types of permanent residences who need others to take care of them from the European and the HRC jurisprudence. As a matter of logic, and also in light of the right to equality under Article 25 of the Basic Law, as presently advised, I have to agree with Mr Chow.

121. To distinguish the present case from those Chinese nationals born in Hong Kong with neither parents being Hong Kong permanent residents, Ms Li placed emphasis on the history of the 2^nd Applicant’s upbringing and her social connection with her father (who is a permanent resident) and half-siblings in Hong Kong. But one still needs a viable jurisprudential basis for contending that such nexus with Hong Kong is sufficient to elevate her right of abode to a derivative right of residence for the 1^st Applicant. For the reasons already given, I cannot find such basis in terms of Hong Kong law. Actually, the more one ponder on these issues, the more readily one can see that it is after all a matter of humanitarian consideration in substance. As to that, the Court of Final Appeal in Lau Kong Yung had ruled out any possibility for judicial review.

122. The Applicants cannot succeed by reference to the rights of the 2^nd Applicant. Having come to this conclusion, it is not necessary for this court to come to any conclusion on the impact of the refusal of the 1^st Applicant’s extension of stay on the future of the 2^nd Applicant. I must however record that I do not accept the submission that the 2^nd Applicant must leave Hong Kong together with the 1^st Applicant simply because custody has been granted to the 1^st Applicant. The Family Court has jurisdiction to reconsider the question of custody when the 1^st Applicant has to leave Hong Kong. One option is to grant custody to the father. Another option is to grant leave to relocation. It is entirely a matter for the Family Court to decide in view of the prevailing circumstances and the best interest of the child.”

C1.8 Conclusion on the fundamental rights ground

187.  For all the above reasons, the applicants have failed to show that the purported rights are established and engaged by them.  Given that where questions of fundamental rights are raised, the focus is not on the decision-making process, but on whether the applicants’ rights have been violated,[16] I therefore do not accept that the Director is obliged to take into account any of these fundamental rights in making the relevant decisions when it has not been established that these alleged rights have even been engaged.

188.  I therefore reject this ground of judicial review that the Director had erred in law in failing to take into account these purported fundamental rights as relevant considerations.

C2. Legitimate expectation ground

189.  In essence, the legitimate expectation ground relied on by all the applicants are effectively that the Director would take into account the above-mentioned rights in considering the permission to stay applications.

190.  Given my above conclusion that those rights are simply not engaged for the applicants, there is nothing in this legitimate expectation ground.  I would similarly dismiss it.

C3. The conventional judicial review grounds of challenge: the Director’s decisions are tainted with procedural unfairness in failing to take into account relevant considerations, and in taking into account irrelevant consideration, the Director had failed to make the necessary inquiries, the Director had fettered his own discretion, the Decisions are not adequately reasoned, and that the Decisions are in any event Wednesbury unreasonable

C3.1 Relevant principles

191.  As I have decided that there are no fundamental rights engaged in these cases, the Director’s exercise of discretion falls to be assessed on conventional administrative law grounds as alternatively now advanced by the applicants. Essentially, under these grounds, the applicants challenge that the Director’s exercise of discretion in making the relevant decisions is again unlawful in failing to take into account of various matters, in particular the particular personal circumstances of each of these applicants, is Wednesbury unreasonable in light of these circumstances, is tainted with procedural unfairness in failing to inform the applicants what were the matters that Director was concerned with when assessing the applications, and in failing to provide adequate reasons in the decisions.

192.  In this respect, before I look into each of these grounds, it is helpful to highlight some of the relevant principles concerning the court’s approach in these conventional grounds of challenge, in particular in immigration context.

193.  First, where the Director has adopted policies or practices regarding the exercise of his discretion, public law would require the Director to act properly in accordance with such policies or practices: C v Director of Immigration, supra, at paragraphs 42 and 56, per Tang PJ; Secretary for Security v Prabakar (2004) 7 HKCFAR 187 (see Sir Anthony Mason NPJ’s explanation of his judgment in Prabakar given at paragraph 84 of his judgment in C v Director); BH v Director of Immigration [2015] 4 HKC 107 at paragraph 62(2), per Chow J.

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

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

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

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

See: Wing on Co Ltd v Building Authority (1996) 6 HKPLR 432 at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037; recently referred to in BH, supra, at paragraph 64, per Chow J.

195.  In relation to the discretionary considerations to the extent that the Director has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for the Director, not for the court, subject to Wednesbury irrationality: Fok Chun Wa (2012) 15 HKCFAR 409 at paragraph 97, per Ma CJ, citing with approval Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780F - G; R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB at paragraph 131, per Laws LJ; BH, supra, at paragraph 65.

196.  Third, in Hong Kong, the legislature has conferred upon the Director a wide and general discretion to devise immigration policies appropriate to the unique circumstances of Hong Kong and exercise immigration controls without prescribing any particular factor or category of consideration which he is bound to take into account: MA v Director of Immigration (unreported, HCAL 10/2010, 6 January 2011, A Cheung J) at paragraph 97.

197.  Li CJ has also reiterated in Lau Kong Yung, supra, at 332F - G that (even in respect of decisions as to removal), the Director is under no duty and thus not bound to take humanitarian considerations into account.  Any failure by the Director to consider these grounds, even if put forward by the applicants, would not have availed the applicants as the Director was not bound to consider them.  In so holding, Li CJ emphasized the principle that for impugning a decision one is concerned with what the decision maker is bound to consider under the relevant discretion-conferring statute.  See also: Litton PJ at 338B - J and Mason NPJ at 347B - D echoing the same analyses.

198.  Finally, relevant for the present purposes, it is pertinent to note also that:

(1) Under the IO, there is no categorical imperative for the Director to take into account family, compassionate or humanitarian considerations in the exercise of his discretion in every case.

(2) The court retains a supervisory role in respect of the Director’s decisions.  This role is limited to assessing whether the Director exercised his discretion which was Wednesbury unreasonable in the circumstances of each case.  In so assessing, the court will accord a wide area of discretionary judgment to the Director.  As observed by Li CJ in Lau Kong Yung, supra, at 334G - H:

“The threshold for the court’s intervention under this ground as the courts have repeatedly said, is necessarily high. Where a departmental head of government is entrusted by the Legislature with administrative responsibilities, it is not for the courts to say how those responsibilities should be discharged. It is only where the administrator has acted beyond the range of responses reasonably open to him under the statutory scheme that the court’s power of intervention… can properly be invoked.”

C3.2 Standard of review

199.  Before I look at these conventional grounds of challenge, I must also deal with Ms Li’s submissions relating to the standard of review that should be adopted by this court.  Ms Li urges the court to subject the relevant Director’s decisions to what she describes as anxious scrutiny as the standard of review in these challenges.  She submits that this is a higher standard of review than what the court would usually adopt as Wednesbury test in conventional judicial review.  She says this is justified as firstly fundamental rights are involved in these challenges, and secondly the decisions gravely affect the applicants’ interests generally.  In support of her submissions, leading counsel prays in aid of Laws LJ’s observations in R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840 at paragraphs 16 - 19, which state as follows:

“16 Upon the question, ‘What is the correct standard of review in a case such as this?’, there are at least in theory three possible approaches. The first is the conventional Wednesbury position which Miss Webber says the judge wrongly adopted. On this model the court makes no judgment of its own as to the relative weight to be attached to this or that factor taken into account in the decision-making process; it is concerned only to see that everything relevant and nothing irrelevant has been considered, and that a rational mind has been brought to bear by the Secretary of State in reaching the decision. The second approach recognises that a fundamental right, here family life, is engaged in the case; and in consequence the court will insist that that fact be respected by the decision-maker, who is accordingly required to demonstrate either that his proposed action does not in truth interfere with the right, or, if it does, that there exist considerations which may reasonably be accepted as amounting to a substantial objective justification for the interference. The third approach directly engages the rights guaranteed by the Convention; it would require the court to decide whether the removal of the applicant would constitute a breach of article 8. This third position engages the first of the two issues which I identified at the outset. It is convenient to set out the terms of article 8 of the Convention at this stage:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

‘2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.’

17 If the first approach is the right one, the challenge to the Secretary of State’s decision is in my judgment wholly without merit. Miss Webber submitted that there were certain important matters not referred to in the letter of 29 September 1999. I shall have to refer to those in due course, but it is enough for present purposes to state that, if the test of review is the conventional Wednesbury principle, it is impossible to conclude that the decision was an irrational one or that the Secretary of State had failed to consider any facts put to him, or misapprehended the law.

18 However the application of so exiguous a standard of review would in my judgment involve a failure to recognise what has become a settled principle of the common law, one which is entirely independent of our incorporation of the Convention by the Human Rights Act 1998. It is that the intensity of review in a public law case will depend on the subject matter in hand; and so in particular any interference by the action of a public body with a fundamental right will require a substantial objective justification. In this context the following passage from the judgment of Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 has often been repeated:

‘The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied … that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’

I should also cite the following passage from the judgment of Lord Woolf MR in R v Lord Saville of Newdigate, Ex p A [2000] 1 WLR 1855, 1867, para 37:

‘What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right involved and then apply the test accepted by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517 which is not in issue.’

Finally I should refer to what was said by Lord Hope of Craighead in R v Secretary of State for the Home Department, Ex p Launder [1997] 1 WLR 839, 867:

‘It is often said that, while the Convention may influence the common law, it does not bind the executive. This view was reflected in the observation by Sir Thomas Bingham MR in R v Ministry of Defence, Ex p Smith [1996] QB 517, 558E that exercising an administrative discretion is not of itself a ground for impugning that exercise. That is so; but the whole context of the dialogue between the Secretary of State and the applicant in this case was the risk of an interference with the applicant’s human rights. That in itself is a ground for subjecting the decisions to the most anxious scrutiny, in accordance with the principles laid down by this House in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 as Sir Thomas Bingham MR also recognised in Ex p Smith, at p 554H.’

19 With respect this learning shows that in a case involving human rights the second approach which I outlined at paragraph 16 as to the intensity of review is generally to be followed, leaving aside incorporation of the Convention; but that approach and the basic Wednesbury rule are by no means hermetically sealed one from the other. There is, rather, what may be called a sliding scale of review; the graver the impact of the decision in question upon the individual affected by it, the more substantial the justification that will be required. It is in the nature of the human condition that cases where, objectively, the individual is most gravely affected will be those where what we have come to call his fundamental rights are or are said to be put in jeopardy. In the present case, whether or not the Convention is under consideration, any reasonable person will at once recognise the right to family life, exemplified in the right of the parties to a genuine marriage to cohabit without any undue interference, as being in the nature of a fundamental right (I prefer the expression fundamental freedom).”

200.  What I understand from these observations are these.  In common law, the court in reviewing in public law a public authority’s decision would adopt a standard of review which would correspond with the degree or gravity of the impact of that decision on the affected applicant.  At the one end is the standard of conventional Wednesbury test (as explained at paragraph 16 of the judgment) where no human rights are engaged.  At the other end (where human and fundamental rights are engaged and said to be violated), the court would adopt what we now generally describe as the proportionality (or justification) test.[17]  In between, the court would review with increasing vigilance a subject decision which has increasingly grave and adverse impact on the affected person’s interests (but short of referable human rights) to see if that decision should be quashed, but still and only in my view in the Wednesbury sense.  What it means however is that, the graver the decision has an impact on the affected person, the more vigilant and closely the court would look at the reasons of and all matters taken into account by the decision maker to see if there is Wednesbury unreasonableness in that decision, including for example, whether certain matters or factors should or should not be taken into account as a matter of relevance, and whether there is procedural impropriety.

201.  Insofar as the standard of review where human and fundamental rights are engaged, in Hong Kong, Law LJ’s approach should now be understood in light of what has been explained recently by our Court of Appeal in Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs (unreported, CACV 57/2014, 22 October 2015, per Cheung CJHC, Lam VP and Poon JA) at paragraph 5, per Cheung CJHC and paragraphs 19 - 31, per Lam VP. However, as I have concluded above, there are no fundamental rights involved in the Director’s decisions in these judicial reviews.  There is no question that the court would review the decisions with a standard of or close to proportionality test.  I need not say anything further for the present purposes.

202.  Insofar as the sliding scale of standard of review in the conventional Wednesbury sense as I understand it at paragraph 200 above is concerned, I am prepared to accept that the Director’s decisions do have some significant adverse impact on the 1^st applicants’ interests in living as a family with the children (but without engaging any family right).  Accordingly, when I look at the conventional grounds of judicial reviews below, I would correspondingly accord a more vigilant review to see whether those grounds are established.

203.  Bearing these principles in mind, I now turn to look at the challenges based on these grounds raised in each of the three present cases.

C3.3 HCAL 45/2014 – Ms Comilang

204.  The Director has produced in evidence the file minutes (M9), which recorded the matters taken into account by the Director in his exercise of discretion and the reasons in summary for making the Comilang Refusal Decision.

205.  The M9 shows that the Director took into account the following matters:[18]

(1) The detailed case background of Ms Comilang and her family, including her daughter, Zahrah, the 2^nd applicant.

(2) The fact that Zahrah enjoys the right of abode in Hong Kong and is in receipt of CSSA benefits.

(3) Ms Comilang’s submissions that:

(a) Zahrah had never left Hong Kong, spoke limited Tagalog and attended a local government school, such that she would encounter difficulty in settling into a suitable school in the Philippines.

(b) Zahrah had strong ties to her biological father, Mr Ahmed, and her half brother in Hong Kong and that it would be difficult to maintain these ties if Zahrah had to leave Hong Kong.

(c) It was in the best interests of Zahrah for Ms Comilang to be granted permission to stay in Hong Kong as long as Ms Comilang continued to be the custodial and primary caretaker of Zahrah.

(d) As a Hong Kong permanent resident, Zahrah had the benefit of free education and medical treatment in Hong Kong.

206.  The Director after concluding that Ms Comliang’s application did not fall within any of the recognised categories under the immigration policy for granting permission to remain in Hong Kong, he went further to consider whether there were sufficiently strong humanitarian grounds to warrant the grant of permission on an exceptional basis.  In doing so, he further took into account specifically the following particular circumstances of the case of Ms Comilang:[19]

(1) Ms Comilang and Zahrah are nationals of the Philippines and free to return to the Philippines and take up residence there at any time, subject to their own choice and familial arrangements.

(2) Ms Comilang’s parents and siblings are all residing in the Philippines where she was born and raised.  While adjustment to living patterns may be anticipated with a move back to the Philippines, there is no indication that it would cause undue hardship to her for returning to her place of origin.

(3) As to Zahrah’s adaptation and integration into the Philippines and her family ties with Mr Ahmed and other relations in Hong Kong, there are other potential alternative options open, including making the appropriate application to the Family Court for Zahrah to remain in Hong Kong to enjoy her right of abode and entitlements to welfare benefits under the custody of Mr Ahmed.  There was no suggestion from any materials available to the Director at the time of the decision in question that Mr Ahmed was not a potentially suitable custodian of Zahrah. If Zahrah was to separate from Ms Comilang and continue to reside in Hong Kong, Ms Comilang can come to Hong Kong as a visitor to visit her.  On the other hand, if both are to reside in the Philippines, Zahrah was entitled to return to Hong Kong to visit Mr Ahmed at any time.

207.  The Director decided that there were no such exceptional circumstances and thus refused Ms Comilang’s application.

208.  There are no reasons (nor have the applicants provided any such reasons) for this court not to accept these matters stated in the internal minutes such as M9 as contemporaneous evidence on the decision making process, with the affirmation evidence confirming and elaborating upon the Director’s reasoning.[20]

209.  Even applying a more intense scrutiny, I am satisfied with the evidence that the Director had taken into account the applicant’s family circumstances or potential hardship in making the Comilang Refusal Decision.  There is no substance in the complaint that the Director had in the decision making process failed to look into the individual circumstances of Ms Comilang, including the applicants’ submissions about the adverse disruption of Zahrah’s enjoyment and entitlement of various benefits in Hong Kong if she had to go to the Philippines to be taken care of by Ms Comilang. There is therefore no question that the Director either failed to take into account any relevant matters or fettered his discretion.

210.  In this respect, the applicants further contend that the Director did not take into account the following relevant matters in the decision:

(1) The concerns of Ms Comilang that “if [Zahrah] were left in the custody, care and control of Mr Ahmed, the 2^nd applicant would be substantially at risk from permanent removal to Pakistan, a risk state for young girls with respect to ill-treatment (or cruel, inhuman or degrading treatment)…”.  See: paragraph 41 of the Amended Form 86.

(2) “Even if my [Ms Comilang’s] ex-husband would stay in Hong Kong, I [Ms Comilang] still could not entrust my daughter into his care.  Firstly, my ex-husband currently cohabits with an African woman and his son (whose mother is currently in Pakistan).  I do not wish my daughter to face such an immoral upbringing.  Secondly, my ex-husband is very busy and has to work in the restaurant everyday, he would not have time to look after my daughter. Thirdly, I am concerned that my ex-husband would have a bad influence on my daughter for he is a violent person and has had several extra-marital affairs. My daughter has told me in a frightened manner that she saw her father slap and yell at his girlfriend and her half brother and she worried that her father would do the same to her.  Further, it often worries me that my ex-husband is not taking good care or supervising my daughter for she always comes home with some minor injuries (like scratching and bruises) after she has met her father.”  See: paragraph 28 of the 1^st affirmation of Ms Comilang.

(3) The written views of Zahrah herself.

(4) There might be discrimination in the Philippines as Zahrah is a born Muslim, and Ms Comilang had to convert to Islam before her marriage with Mr Ahmed.  See: paragraph 32 of Ms Comilang’s 1^st affirmation.

211.  There is again no merit in these complaints insofar as the present judicial review is concerned, as these matters were never raised and relied on by Ms Comilang in support of her application for permission to stay.  It is trite that generally a decision maker cannot be faulted in judicial review for not having had regard to matters (in particular fact sensitive ones) which were not known to him at the time of the challenged decision: Sergie Berthier v Noise Control Appeal Board (unreported, HCAL 117/2010, per Au J, 31 October 2011) at paragraph 104, following Re Ng Kin Wo Johnny (unreported, HCAL 114 & 115/2010, per Lam J, 18 November 2010) at paragraphs 20 - 23; Asher v Secretary of State for the Environment [1974] Ch 201 (CA), perLord Denning at 222D - F, per Orr LJ at 224H - 225B, per Lawton LJ at 228B, D - E.

212.  Ms Li however says Ms Comilang should not be blamed for not raising these matters in the first place, as the Director had the obligation or duty to make these necessary inquiries with the applicants when he sought to satisfy himself whether there were sufficient grounds to refuse the application.  In particular, Ms Li further argues, it was the Director himself who ventured into considering whether there was any undue hardship for Zahrah to be re-settled in the Philippines with the mother (who had been granted the custodial right) or stay in Hong Kong with the father and her half-sibling.  It was never Ms Comilang’s own case to suggest resettlement or having Zahrah to be taken care of by the father in Hong Kong.  It was therefore for the Director to ask for further information from the applicants as to whether these considerations were valid and proper ones.

213.  I do not agree.

214.  As this is Ms Comilang’s application for permission to remain, it must be as a matter of common sense and logic for her to put forward all the matters she wished to rely on to support her application, to convince the Director to exercise his discretion in her favour.  These matters should include all those which objectively she reasonably could contemplate that may be taken into account by the Director.  As observed by Hartmann J in Marilyn G Aringo (unreported, HCAL 96/2004, 5 September 2005) at paragraph 38: “A person seeking to live in Hong Kong has the burden of demonstrating why he or she should be allowed to do so.  The burden cannot simply be shifted to the Director”.  See also Kumari, supra, at paragraph 29; and Sukhmander Singh v Permanent Secretary for Security (unreported, CACV 370/2005, 20 July 2006) at paragraph 18, per Stock JA.

215.  In her application for permission to stay, it was fundamentally Ms Comilang’s case that she should be allowed to stay in Hong Kong so that she could take care of Zahrah in Hong Kong instead of in the Philippines.  That was one of the reasons why she emphasized in her application the benefits Zahrah would continue to have if she stayed in Hong Kong.  It must be within Ms Comilang’s reasonable contemplation that questions would be raised in the Director’s mind as to why it would be unduly harsh for Zahrah to be taken care of by the mother in the Philippines, or for Mr Ahmed to take care of her in Hong Kong.[21]  It would be up to Ms Comilang to raise with the Director her matters of concern, if any, in these respects.

216.  If she had not raised any such concerns at that time (as she now seeks to raise in this judicial review), the Director cannot be faulted on the basis that he had failed to take those matters into consideration or that he had failed to make further necessary inquiries.

217.  In relation to the latter, it should be noted that a decision not to make further inquiries will only be struck down if no reasonable decision maker possessed of the material could suppose that the already available information was sufficient: Smart Gain Investment Ltd v Town Planning Board (unreported, HCAL 12/2006, 6 November 2007, per A Cheung J) at paragraphs 86 - 89.  In my view, for the reasons I mentioned at paragraphs 214 and 215 above, it certainly cannot be said that no reasonable decision maker in the position of the Director could suppose that the already available information was sufficient.  This is even so bearing a more intense review in this application, but with reference to the special circumstances of strict immigration policy in Hong Kong.

218.  I therefore reject the further ground of complaint that the Director had failed to make sufficient inquiries with Ms Comilang.

219.  The applicants further submit that the Director had taken the following irrelevant factors into consideration:[22]

(1) He considered theoretical possibilities of alternative arrangements for Zahrah to continue to be in Hong Kong without taking into account the practicality and consequences of the option on the part of the applicants.

(2) He considered the fact that Zahrah is a Pakistani national.

(3) He considered the hypothetical scenario as to what could happen if Zahrah were forced to leave Hong Kong and not what practically the effect on Zahrah be if Ms Comilang is refused permission to remain or extension of stay.

220.  For the same reasons I stated at paragraphs 214 and 215 above, these matters are clearly reasonably relevant to the Director’s consideration as to whether Ms Comilang had shown a case of exceptional circumstances to justify the exercise of discretion to grant the permission application.  The objective relevance of these factors as to whether Zahrah could be considered to be taken care of by Mr Ahmed is further underlined by these:

(1) The M9 specifically referred to the Social Investigation Report which commented upon the father as a suitable custodian.

(2) The judgment of the family court on custody and maintenance dated 2 June 2009 was also before the Director.  In that judgment, the court also considered the possibility of the child living with the father and his wife (see paragraphs 38 - 39 of that judgment), where the judge said she did not doubt that the father loves the child and that she was impressed by the father’s wife to be a genuine supporting wife and mother and believed that she would use her best endeavours to look after the child and to bring her up if the father was granted custody.

221.  There are therefore no merits in the complaint that these are irrelevant factors. See also paragraphs 194 and 195 above.

222.  The applicants also say the Director erred in law in the decision making process by first considering whether Ms Comilang’s situation fell with any existing immigration policies and then (if the answer was “no”) considering whether there were grounds for granting permission to stay on an exceptional basis.  Ms Li emphasises that this would be placing an unduly high burden on Ms Comilang to show exceptional circumstances to support her permission application.

223.  I agree with Mr Yu that this ground is misconceived:

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

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

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

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

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

224.  Moreover, given the strict immigration policy which the Director is fully entitled to have regard to (including the concern of floodgate applications) in considering Ms Comilang’s application, it certainly cannot be said that, having regard to all the circumstances of the present case, it is Wednesbury unreasonable even under a more intense review for him not to grant the permission to stay application.

225.  Finally, it is also contended by the applicants that the decision is tainted by procedural impropriety as it was “sparsely reasoned”.

226.  The Immigration Department’s letter dated 2 September 2013 conveying the decision to Ms Comilang’s solicitors stated relevantly as follows:

“With regard to Ms COMILANG’s application for permission to stay in the Hong Kong Special Administrative Region (HKSAR) to take care of her daughter, we have considered all available information, including but not limited to further representations made by Ms COMILANG and circumstances of the case afresh upon remission from the Court of Appeal subsequent to the judgment of CACV 183/2012.

Unless a person has the right of abode or right to land in the HKSAR, he/she requires an entry visa/permit to work, study, establish or join in any business, take up residence or stay in the HKSAR as a visitor longer than the allowed visa free period.  Upon discreet assessment, we are not satisfied that Ms COMILANG’s application for permission to stay to take care of her daughter falls within any of the prevailing immigration policies, nor does ther exist any strong humanitarian, compassionate or other extenuating grounds in her case which warrant a deviation from the existing policies for allowing her to stay in the HKSAR on an exceptional basis.  Therefore, I regret to inform you that Ms COMILANG’s application for permission to stay as requested is now refused.”

227.  Again, I agree with Mr Yu’s submissions that the letter contains adequate reasons for the present purpose:

(1) As A Cheung J observed in the town planning context in Smart Gain, supra, at paragraph 30 (quoting Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953), reasons “can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision”.

(2) Even in the context of a decision of the Immigration Tribunal, the applicable duty is only to give “outline reasons” sufficient to show what issues the Tribunal was directing its mind to and the evidence for its conclusions: see Li Fu Shan v Director of Immigration [2002] 4 HKC 284 at paragraph 49, per Hartmann J.

(3) Moreover, as further noted at paragraph 30 of Smart Gain “a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.” (emphasis added)

(4) In Ms Comilang’s case, there is no basis to contend that the Director’s reasons were excessively brief so as to genuinely and substantially prejudice the applicants.  Indeed, in raising their various other grounds of complaint, the applicants have had little difficulty in identifying the Director’s reasons for the purposes of their criticism.

228.  In any event, having regard to the disclosure now of the internal minutes M9 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 letter 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: HKTVN v CEIC [2015] 2 HKLRD 1035 at paragraphs 101 - 102.

229.  For all the above reasons, I dismiss all the applicants’ challenges made under these conventional grounds of judicial review.

C3.3.1 Delay

230.  Under Order 53, rule 4(1), an application for leave to apply for judicial review must be made promptly after the relevant decision is made, and in any event not later than three months thereafter.  The court retains a power to extend time, but that power is only to be exercised if “good reason” is shown.

231.  There is no dispute that the application for leave to apply for this judicial review was made some seven and half months after the Comilang Refusal Decision was made in September 2013.  The applicants thus require extension of time to bring the challenge.

232.  The Director now also opposes the grant of leave to apply judicial review on the ground of delay, and submits that no extension of time shall be granted to the applicants as there is no good reason to do so.

233.  Ms Li first submits that it is now too late for the Director to oppose leave on the ground of delay, as the court has already granted leave.  All he could do now is at most to oppose the grant of remedy (if the applicants are successful on any of the grounds of challenge) as a matter of discretion because of delay.

234.  I am unable to accept this submission.  When this court granted the ex parte leave, it was made expressly without prejudice to the Director to oppose the application on the ground that no extension of time should be given.  The intention was clearly that the Director was entitled to still challenge on an inter parte basis the grant of leave on the ground that no extension of time shall be given.  For that purpose, the Director has also taken out summons dated 8 December 2014 to give notice to the applicants that he challenges leave on delay.  This would be sufficient as a matter of procedure.  See: BH v Director of Immigration (HCAL 105/2014, 14 April 2015, per Chow J) at paragraph 95.

235.  I am therefore satisfied that it is still open to the Director to seek to set aside leave on the ground of delay.

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

(1) Although Order 53, rule 4(1) 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) 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 23 – 36, per Kwan JA.

237.  In explaining the delay, Ms Comilang gives the following reasons at paragraph 31 of the Form 86 to justify an extension of time:

“31. There has been delay in making this Application for Leave to Apply for Judicial Review. The delay in making this application is due primarily to the time taken for the granting of the legal aid certificate. The Applicants and their legal representatives have been prosecuting this Application with due expedition thereafter. In addition, several judgments of the Court of Final Appeal relevant to the issues proposed to be raised in the grounds for review were decided in 2013, including the case of Kong Yunming v Director of Social Welfare (FACV 2/2013, 17 December 2013), and GA & Ors v Director of Immigration (FACV 7, 8, 9, 10/2013, 18 February 2014). The Director of Immigration, the public interest or good administration has not been prejudiced in any way since as explained above in paragraph 28, the 1^st Applicant has all along remained liable to removal from Hong Kong and her continued presence in Hong Kong has been due to the Director not insisting on her immediate departure. This Application also raises questions of great and general public importance in the administration of Hong Kong’s immigration control, particularly in respect of the granting of permission to remain to the primary carer of a minor who enjoys the right of abode in Hong Kong. They are to be discussed in detail below. Many of these questions were raised before the Court of Appeal in CACV 183/2012 and the Court of Appeal did recognize in paragraph 40 of its Judgment the importance of these questions. By reason of the aforesaid, it is submitted that there are good reasons for extension of time under the Rules of the High Court (Cap. 4 sub leg) O. 53 4.4.”

238.  I agree with Mr Yu that these are not 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) No adequate explanation has been given as to why there were delays of such magnitude:

(a) Reference has been made to difficulties in securing legal aid.  But there is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time: Re Thomas Lai, supra, at paragraph 48(1), citing Wong Chi Keung v Commissioner of Police HCAL 1/2010, 11 May 2010, paragraphs 57 - 72; BH, supra, at paragraph 100 and the cases cited therein.  Where delay is sought to be justified on the ground that an applicant had to apply for legal aid, it behoves the applicant to set out all the facts to demonstrate that he had exercised due diligence in the making and processing of that application.  In any event, there was also significant further delay from the point at which legal aid was granted.

(b) The applicants have also sought to justify their delay be reference to the handing down of several Court of Final Appeal judgments in 2013.  The two judgments which have been specifically identified in this connection are the judgment in Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950 and the judgment in GA v Director of Immigration (2014) 17 HKCFAR 60.  I am however not satisfied that the applicants were justified in delaying their challenges by reason of either of these decisions.  It cannot be said that either case makes a critical difference to the issues raised in the judicial review.

(c) In any event, it is well established that where an extension of time is sought in judicial review based on some purported change in the law (even a fundamental change), the court will refuse an extension absent “exceptional circumstances” justifying departure from the principle of finality: see Fok J (as he then was) in Wong Tak Yiu v Commissioner of Police (HCAL 42/2010, 5 October 2010) at paragraphs 19 - 23, applying Lam Chi Wai v Commissioner of Police HCMP 311/2010, 24 June 2010 (Kwan JA) and Clarence Chan v Commissioner of Police FAMV 15/2010, 14 September 2010 at paragraphs 6 - 7.  There is nothing approaching “exceptional circumstances” in the present cases.

(3) Delay in bringing this judicial review plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of Ms Comilang was tolerated pending the determination of this judicial review.  She has remained in Hong Kong as an overstayer since 11 October 2005.

(4) 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 any adequate explanation for them, it is proper to refuse to extend time.

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

C3.4 HCAL 56/2014 – Ms Luis

240.  The relevant file minutes (M5) recorded the matters taken into account by the Director in the exercise of his discretion and his reasons in making the Luis’ Refusal Decision.  It shows that the Director took into account the following, among others, matters:[23]

(1) The detailed case background of the Ms Luis and her family, including her three Hong Kong born sons (together “the HK sons”) (Ms Luis also had an elder son born in the Philippines).

(2) The fact that the 2^nd son enjoyed the right of abode in Hong Kong and enjoyed benefits pertaining to that status.

(3) Ms Luis’ submissions that:

(a) She was the primary carer of the HK sons, who were minors, and that the best interests and individual welfare of the minor children must be taken into account as a primary consideration.

(b) The 3^rd son had a congenital heart condition and required regular check-ups at Queen Mary Hospital.

(c) The 4^th son had received an operation in respect of his penis and also had to undergo follow-up medical checks.

(d) Her husband, Mr Luis, was working as a foreign domestic helper in Hong Kong.

241.  Again, after concluding that the application did not fall within any of the recognised categories under the prevailing entry requirements under the immigration policies, the Director further considered whether there were sufficiently strong humanitarian grounds to warrant the grant of permission on an exceptional basis.  In so considering, he took into account the following further matters:[24]

(1) Ms Luis’ eldest son was born in the Philippines and had been all along residing there.

(2) Being an able-bodied adult with substantial working experience as a foreign domestic helper, it was unlikely that Ms Luis would face undue hardship in resuming residence in the Philippines.

(3) The HK sons were all holders of Philippines passports and the 3^rd and 4^th sons could obtain medical treatment in the Philippines as necessary.

(4) On the other hand, if it was decided that the HK sons would stay with Mr Luis in Hong Kong, Ms Luis could still visit Hong Kong under the prevailing entry requirements for Philippine nationals.

242.  Ms Luis’ contentions made under these conventional judicial review grounds against the Luis’ Refusal Decision are similar to those made under Ms Comilang’s challenges as considered above.  Given this above evidence, for the same reasons I have rejected Ms Comilang’s similar challenges, even with a more vigilant scrutiny, there are no bases for Ms Luis to say that the Director in reaching the Luis’ Refusal Decision had failed to take into account relevant consideration, had failed to make the necessary inquiries, had taken into account irrelevant consideration, had fettered his discretion, the decision is tainted by lack of adequate reasons,[25] or the decision is Wednesbury unreasonable.

243.  I also reject all these conventional grounds of challenges raised in this judicial review.

C3.4.1 Delay

244.  The applicants’ application for leave to apply for judicial review was made in May 2014, some 10 months after the Luis’ Refusal Decision was made in July 2013.  The applicants are thus out of time in making the application unless the court grants an extension of time for them to do so.

245.  As in the case of Ms Comilang’s judicial review, the Director is also seeking to set aside the ex parte leave granted to the applicants in this application on the basis that no extension of time shall be granted.

246.  The applicants’ explanations as to why time extension shall be granted to them are similar to that put forward by Ms Luis.  They are set out at paragraph 24 of the Form 86 as follow:

“24. There has been delay in making this Application for Leave to Apply for Judicial Review. The delay in making this application is due primarily to the time taken for the granting of the legal aid certificate and assignment of counsel. The Applicants and their legal representatives have been prosecuting this Application with due expedition thereafter. In addition, several judgments of the Court of Final Appeal relevant to the issues proposed to be raised in the grounds for review were decided in 2013 and 2014, including the case of Kong Yunming v Director of Social Welfare (FACV 2/2013, 17 December 2013), and GA & Ors v Director of Immigration (FACV 7, 8, 9, 10/2013, 18 February 2014). The Director of Immigration, the public interest or good administration has not been prejudiced in any way since as explained above in paragraph 18, the 1^st Applicant has all along remained liable to removal from Hong Kong and her continued presence in Hong Kong has been due to the Director not insisting on her immediate departure. This Application also raises questions of great and general public importance in the administration of Hong Kong’s immigration control, particularly in respect of the granting of permission to remain to the primary carer of a minor who enjoys the right of abode in Hong Kong. They are to be discussed in detail below. Many of these questions were raised before the Court of Appeal in Comilang & Anor v Director of Immigration (CACV 183/2012) and the Court of Appeal did recognize in paragraph 40 of its Judgment the importance of these questions. By reason of the aforesaid, it is submitted that there are good reasons for extension of time under the Rules of the High Court (Cap. 4 sub leg) O. 53 r.4.”

247.  For the similar reasons I have given at paragraph 238, I am not satisfied that the applicants have shown good reasons for an extension of time.  In relation to prejudice to good administration, it is pertinent to note that Ms Luis has remained in Hong Kong as an overstayer since about 26 January 2012.  I therefore would also refuse to grant an extension of time for leave to apply for judicial review and set aside the ex parte leave.

C3.5  HCAL 13/2014 – Ms Pagtama

248.  In this judicial review, the Director takes a preliminary objection on the basis that the application has become academic.  This is so since (as mentioned above) on 14 November 2014, the Director has made the Pagtama’s Fresh Decision after reviewing all the available information and circumstances of this case.

249.  By the Pagtama’s Fresh Decision, Ms Pagtama has been granted permission to stay, which effectively (if there are no material change of circumstances) would allow her to enter and stay in Hong Kong to take care of Jessrill until 3 February 2017.  Mr Yu for the Director submits that this is in fact more and better than what she would have achieved even if she is successful in this judicial review, as she is asking at the highest a reconsideration of her permission to stay application.  Hence, the present judicial review is academic and will serve no useful purpose.

250.  Ms Li says however the Pagtama’s Fresh Decision would not have rectified or legitimized Ms Pagtama’s previous tolerated stay in Hong Kong before the fresh decision.  The Pagtama’s 1^st and 2^nd Refusal Decisions, if not quashed, would remain in her file and her previous stay would be regarded as illegal albeit tolerated.  This would be regarded in the immigration file as a record of detriment which would affect her future applications.  The judicial review therefore is not academic.

251.  I am not persuaded by Ms Li’s submissions.

252.  As rightly submitted by Mr Yu, even if the Pagtama’s 1^st and 2^nd Refusal Decisions were quashed, there is no relief sought (and nor do I think one could be so sought) in this judicial review for a declaration that the previous stay is legitimate or for an order of mandamus to compel the Director to grant Ms Pagtama permissions to stay retrospectively.  The concerns raised by Ms Li simply could not be addressed by this judicial review.

253.  I am therefore satisfied that the present judicial review would serve no useful purpose in light of the Pagtama’s Fresh Decision, and the issues raised in it are academic.  I would therefore dismiss it on this basis.

254.  Further and alternatively, I would have also dismissed this application by setting aside the leave granted on the basis of delay.

255.  The Pagtama’s 1^st and 2^nd Refusal Decisions under challenged were made respectively in February 2010 and May 2012.  The leave application was only taken out in February 2014.  There has been very substantial and serious delay (respectively for two years and one year and nine months) in applying for judicial review.

256.  The applicants explain the delay at paragraph 34 of the Form 86 as follows:

“34. There has been delay in making this Application for Leave to Apply for Judicial Review. The delay in making this application is attributable to: firstly, the time taken for the ranting of the legal aid certificate; secondly, the time taken to consider the option of seeking reconsideration by the Director of Immigration on the grounds for review proposed to be raised in this Application and to prepare for this Application; and thirdly, the time taken for judgments of the Court of Final Appeal relevant to the issues proposed to be raised in the grounds for review to be handed down. A substantial period of time was taken to persuade the Legal Aid Department to grant the Applicants legal aid certificates. The Applicants and their legal representatives have been prosecuting this Application with both due expedition and due consideration to the possibility of saving substantial legal costs by engaging on an alternative way of resolving Applicants’ case. Several judgments of the Court of Final Appeal relevant to the issues proposed to be raised in the grounds for review were decided in 2013, including the case of Kong Yunming v Director of Social Welfare (FACV 2/2013), which was handed down on 17 December 2013. By reason of the aforesaid, it is submitted that there are good reasons for extension of time under the Rules of the High Court (Cap. 4 sub leg) O. 53 r. 4.”

257.  In the present case, it is also pertinent to note that legal aid certificate was granted in August 2013, and counsel were assigned on 7 October 2013.  There is however no real explanation as to why the Form 86 was filed only four months later.

258.  For the same reasons I have stated above in refusing to grant extension of time in Ms Comilang and Ms Luis’ judicial reviews, I do not find there are good reasons to justify a grant of extension of time in this case.  In fact, this is in my view an even clearer case where no extension of time shall be granted, given the more substantial and significant delay.

259.  I would therefore also set aside the leave granted to Ms Pagtama to apply for judicial review for delay.[26]

D. CONCLUSION

260.  For all the above reasons, I reject all the grounds of judicial review raised in HCAL 45/2014 and HCAL 56/2014 and dismiss them.

261.  I will also dismiss HCAL 13/2014 on the basis that the application is academic given the Pagtama’s Fresh Decision.

262.  Finally, I would also refuse to grant extension of time to all the applicants and set aside the ex parte leave granted under all three applications on the basis of delay.

263.  I will make an order nisi that costs of all three applications be to the Director to be taxed if not agreed, with certificate for two counsel.  Unless any of the parties applies to vary it by summons, the order shall become absolute 28 days from today.  The applicants’ own costs be taxed in accordance with legal aid regulations.

264.  Lastly, I wish thank counsel on both sides for their helpful assistance in these applications.