TH AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 114/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 114 OF 2014

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J U D G M E N T

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INTRODUCTION

1.  I have before me an application for judicial review of a decision (“the Decision”) made by the Director of Immigration (“the Director”) contained in a letter dated 15 April 2013 to the 1^st applicant (through his solicitors, Messrs Daly & Associates) refusing his application (“the Dependant Visa Application”) made on 10 August 2009 for entry for residence in Hong Kong as a dependent of his wife (“the 2^nd applicant”).

2.  The application for leave to apply for judicial review was made on 19 September 2014, which was some 17 months after the date of the Decision and well outside the upper limit of 3-months for making the application under Order 53, rule 4(1) of the Rules of the High Court.  On 25 November 2014, I granted leave to the applicants to apply for judicial review on consideration of papers only, without prejudice to the Director to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay.

3.  On 9 February 2015, the Director issued an inter partes summons (“the Setting Aside Summons”) seeking to set aside the leave granted to the applicants to apply for judicial review on the ground of delay.

4.  On 3 June 2015, the Director issued a further inter partes summons seeking to amend the Setting Aside Summons to rely on the additional ground of material non-disclosure on the part of the applicants when seeking leave, on an ex parte basis, to apply for judicial review.

5.  On 8 June 2015, I granted leave to the Director to amend the Setting Aside Summons in the absence of any objection by the applicants.

6.  As can be seen from the Form No 86, four grounds were relied upon by the applicants in support of the present application for judicial review, namely:-

(1) the Director misapplied his Dependant Visa Policy (“the Policy”) in construing the requirement of “no known record to the detriment of the applicant” (“the No Record Requirement”) as a ground for refusal rather than as a matter which was relevant to a decision whether to grant, or refuse, an application for a dependant visa;

(2) the Director failed to take into account relevant considerations, namely, the interests of the applicants’ family unit as a whole, and the interests of the 2^nd applicant (being a permanent resident of Hong Kong) in particular;

(3) the Director unlawfully fettered his discretion and/or applied an overly rigid policy in refusing the Dependant Visa Application on the ground that he did not satisfy the No Record Requirement; and

(4) the Decision was unreasonable in the public law sense.

7.  At the hearing on 8 June 2015, Mr Dykes SC (for the applicants) informed the court that he was content to rest his case on the first ground alone, ie misapplication of the Dependant Visa Policy, in view of the earlier decisions of the Court of First Instance in BI v Director of Immigration, HCAL 174/2013 (10 December 2014), and BH v Director of Immigration, HCAL 105/2014 (14 April 2015).

8.  Accordingly, the main issues to be dealt with in this judgment are:-

(1) whether the leave granted to the applicants to apply for judicial review should be set aside on the ground of material non-disclosure;

(2) whether the leave granted to the applicants to apply for judicial review should be set aside on the ground of delay; and

(3) whether the Director misapplied, or misconstrued, the Policy.

The late affirmations

9.  Before I turn to consider the various issues mentioned above, I shall first dispose of an objection raised on behalf of the Director regarding the admission of three affirmations filed on behalf of the applicants.

10.  On 18 May 2015, the 1^st and 2^nd applicants each made an affirmation (“the 3^rd affirmation of the 1^st applicant” and “the 3^rd affirmation of the 2^nd applicant” respectively) to reply to some of the matters raised in the evidence filed on behalf of the Director in this application for judicial review.

11.  On 5 June 2015, Tong Thi Xuan, a senior paralegal, made an affirmation (“the affirmation of Tong”) on behalf of the applicants to deal with the issues of material non disclosure and/or delay raised by the Director’s aforesaid summonses.

12.  Mr Jonathan Chang (for the Director) objected to the admission of these affirmations on the grounds that (a) there was substantial delay in the filing of the two affirmations of the applicants and no (good) reason for the delay had been put forward, and (b) the contents of the three affirmations were irrelevant.

13.  After hearing arguments from Mr Dykes and Mr Chang, I informed the parties that I would deal with the Director’s objection to the admission of the three affirmations in the main judgment to be delivered.

14.  The three affirmations are relatively short and straight forward.  They provide some background information relating to the substantive issues to be determined in this judgment.  Their contents cannot, in my view, be said to be entirely irrelevant.  It was not suggested on behalf of the Director that he would suffer any prejudice or would be embarrassed by the admission of the three affirmations.  I would therefore exercise my discretion to admit the three affirmations notwithstanding the fact that they were filed late.

Background facts

(i) Personal background

15.  The 1^st applicant was born in Pakistan in 1975.  He married his first wife on 20 October 1999, and they had a daughter born on 11 November 2003.  According to the 1^st applicant, his first wife passed away in 2007, and daughter is currently under the care of his younger brother in Pakistan.

16.  The 2^nd applicant was born in Indonesia in 1972.  She came to Hong Kong when she was approximately 20 years old, and was granted residence in Hong Kong as a dependant of her first husband on 13 January 1995.  She became a permanent resident of Hong Kong on 28 October 2006.  The 2^nd applicant and her first husband had two daughters.  Their marriage was dissolved on 3 February 2009, and custody of the two daughters was granted to the 2^nd applicant’s first husband.

17.  The 1^st and 2^nd applicants first met each other in Hong Kong in January 2006, and started to cohabit in or about June 2006.  They married on 3 August 2009, and do not have any child out of this marriage.

(ii) The 1^st applicant’s three claimed identities

18.  In view of the anonymity order made by Au J on 17 July 2014, the 1^st applicant’s three claimed identities will be referred to as “ID1”, “ID2” and “ID3” in this judgment.

19.  On 17 January 2004, the 1^st applicant entered Hong Kong on the strength of a Pakistani Passport (“TD1”) in the name of ID1 with a date of birth of 6 June 1975.  He was permitted to remain as a visitor in Hong Kong for 10 days up to 27 January 2004.  He did not depart from Hong Kong and has been overstaying since 28 January 2004.

20.  On 16 March 2005, the 1^st applicant was intercepted by the Police for an inspection of his Hong Kong identity card which he claimed was kept at home.  The Police escorted the 1^st applicant to his residence to retrieve his Hong Kong identity card.  On arrival at his home, the 1^st applicant admitted that he had no Hong Kong identity card and produced a different Pakistani Passport (“TD2”) in the name of ID2 with a date of birth of 6 October 1970 as proof of his identity.  He was arrested by the Police for further investigation.

21.  In the course of the Police investigation, it transpired that on 7 April 2004, the 1^st applicant produced a Hong Kong identity card in the name of ID3 with a date of birth of 20 January 1973 for the purpose of seeking employment with a transportation company in Hong Kong.  The 1^st applicant admitted under caution that the said Hong Kong identity card in fact belonged to his friend.

22.  The 1^st applicant was subsequently arrested by the Police for (inter alia) the offence of “using an identity card relating to another person”.  On 20 May 2005, the 1^st applicant was convicted by a magistrate of the said offence and sentenced to 9 months’ imprisonment.

23.  On 5 August 2005, in an interview conducted by an officer of the Immigration Department while the 1^st applicant was in prison, the 1^st applicant submitted a written representation claiming that ID1 was his true identity.

24.  On 14 September 2005, the 1^st applicant was discharged from prison and transferred to Castle Peak Bay Immigration Centre (“CIC”) with a view to his removal from Hong Kong.

(iii) The 1^st applicant’s non-refoulement claims

25.  Also on 14 September 2005, the 1^st applicant made a torture claim, the details of which are not relevant for the present purposes.

26.  On 28 October 2005, the 1^st applicant was released from CIC on recognizance under section 36 of the Immigration Ordinance, Cap 115.

27.  The 1^st applicant’s torture claim was rejected by the Director on 8 May 2012, and his petition against the rejection of his torture claim was dismissed by an Adjudicator (Torture Petitions) on 25 July 2012.

28.  On 6 August 2012, a removal order was issued against the 1^st applicant on the ground of his contravention of his condition of stay, namely, overstaying since 28 January 2004.

29.  On 22 August 2012, the 1^st applicant was detained by officers of the Immigration Department pending his removal from Hong Kong.

30.  Also on 22 August 2012, the 1^st applicant lodged an appeal against the removal order.  His appeal was dismissed on 7 September 2012.

31.  On 29 January 2013, the 1^st applicant lodged a further claim for non-refoulement on the ground of “cruel, inhuman or degrading treatment or punishment”.

32.  On 29 March 2013, the 1^st applicant was released from CIC on recognizance.

33.  The 1^st applicant’s latest non-refoulement claim is, I understand, currently pending assessment by the Director under the Unified Screening Mechanism.

(iv) The Dependant Visa Application and the Decision

34.  As earlier mentioned, the 1^st applicant married the 2^nd applicant on 3 August 2009, at a time when he was allowed to remain in Hong Kong on recognizance pending the assessment of his aforesaid torture claim.

35.  On 10 August 2009, the 1^st applicant made the Dependant Visa Application, with the 2^nd applicant acting as his sponsor.  The detailed course of the assessment process of the application is set out in the affidavit of Lung Ka Kit (“Mr Lung”) sworn on 9 February 2015, which is it not necessary to repeat in this judgment.

36.  The assessment of the 1^st applicant’s Dependant Visa Application was carried out by Mr Lung, whose recommendation was endorsed by his supervising officer, Wong Chau Ping (“Mr Wong”).

37.  In the internal file minute (“M20”) which set out Mr Lung’s analysis and recommendation, the following conclusions, amongst others, were stated:-

(1) the 1^st and 2^nd applicants’ matrimonial relationship was genuine;

(2) the 2^nd applicant was financially capable of supporting the 1^st applicant to live in Hong Kong at a standard well above the subsistence level and providing him with suitable accommodation;

(3) the 1^st applicant’s criminal record was detrimental to his application.

38.  The following passages in M20 are of relevance to the present application:-

“ 13. Record of AP in Hong Kong

13.1 According to record, AP [the 1^st applicant] was an overstayer in Hong Kong. In 2004, he had used a HKIC relating to another person for job seeking. Upon arrest by the Police in 2005, he produced another person’s PAK passport as identity proof and did not disclose his true identity.

13.2 Subsequently, AP was convicted of the offence of ‘using an I/C relating to another person’ and was sentenced to 9 months’ imprisonment on 20-7-2005. The conviction involved immediate custodial sentence imposed by the court. Undoubtedly, the offence involved was serious in nature and the maximum penalty for the offence is on conviction on indictment, a fine at level 6 and to imprisonment for 10 years under S.7A(1A)(a), Registration Of Persons Ordinance, Cap 177. In all, it is considered that the criminal record is detrimental to the application.

14. Consideration and Recommendation

14. Having considered all circumstances of the case, including the representation by AP, there is no overwhelming ground justifying exceptional consideration.  It is recommended refusing this application as there is known adverse record to the detriment of the application.”

39.  Mr Wong’s written comment, which appears on the first page of M20, states as follows:-

“ …AP was convicted of the offence of using an I/C relating to another person. He was sentenced to 9 months’ imprisonment. The offence committed involved dishonest in nature and it is considered as serious. Having considered all circumstances of the case, the dependant visa application is refused as there are records to the detriment of the application.”

40.  The Director’s decision was conveyed to the 1^st applicant by letter dated 15 April 2013.  The letter states, so far as relevant, as follows:-

“ According to the eligibility criteria, a person who wishes to come to the HKSAR for residence to join his/her local spouse as his/her dependant has to meet the requirements which include, amongst other, that there is no known record to his/her detriment.

After careful consideration of all information and circumstances pertaining to your application, I regret to inform you that your application for residence as a dependant is refused as the aforesaid eligibility requirement is not met.”

Whether the Director misapplied, or misconstrued, the Policy

41.  Although one possible reading of M20 is that the No Record Requirement was treated as merely a relevant, albeit important, factor in the Director’s consideration of the Dependant Visa Application, the decision letter dated 15 April 2013 made it clear that the No Record Requirement was treated as an eligibility or essential criterion for the application.

42.  This view of the matter represents, I believe, the consistent practice adopted by the Director and his officers, as stated in paragraph 18(1) of the written skeleton argument of Mr Chang.  The same position is mentioned in a letter from the Immigration Department to the Director of Legal Aid dated 21 June 2013.  In that letter, under the sub-heading “The Policy”, the following is stated:-

“ Under the existing immigration policy and subject to normal immigration requirements being met, the spouse of a Hong Kong permanent resident or a resident who is not subject to a limit of stay may be allowed to enter Hong Kong to reside as his/her dependant if the Director is satisfied that …(ii) there is no known record to the detriment of the applicant…”

43.  For the purpose of the present case, I shall therefore proceed on the basis that the Director regarded the failure of the 1^st applicant to satisfy the No Record Requirement as being fatal to his Dependant Visa Application, unless he could demonstrate “strong compelling factors or exceptional humanitarian or compassionate circumstances” justifying the exercise of his residual discretion to permit the 1^st applicant to remain in Hong Kong (see paragraph 22 of the affirmation of Wong Mo Cheong Wilson filed on behalf of the Director).

44.  The issue of whether the No Record Requirement should properly be treated as an eligibility or essential criterion under the Policy has recently been considered by Zervos J in BI (10 December 2014) and by me in BH (14 April 2015).  Essentially, I came to the conclusion that, upon the true construction of the Policy, the No Record Requirement should be regarded as an important, but not conclusive, consideration in the Director’s exercise of his discretion whether to grant a dependant visa, and I agreed with the view expressed by Zervos J in BI on this issue subject to a minor qualification mentioned in paragraph 46 of my decision in BH.  I do not propose to repeat my analysis in my earlier decision in BH.

45.  Mr Chang has invited me not to follow the decisions in BI and BH.  I have considered his submissions with care but I am not convinced that those decisions were wrong.  The only new point raised by Chang that I wish to mention in this judgment relates to the Chinese version of the Policy.  Paragraph 5 of that version states as follows:-

“ 以受養人身份來港居留的申請，如符合下列條件，可獲考慮批准 ：

(a) 申請人與保證人能提供合理的關係證明 ；

(b) 申請人沒有任何 知的不良記錄 ；以及

(c) 保證人能夠把受養人在港的生活條件維持在基水平以上 ，並為他／她提供適當的居所 。”

46.  Mr Chang argues that the Chinese version of the Policy suggests that all three criteria set out under paragraph 5 thereof must be satisfied before an application for a dependant visa will be considered or approved.

47.  I can see the force of Mr Chang’s argument, and believe that there is a discrepancy between the Chinese and English versions of paragraph 5 of the Policy.  The latter states as follows:-

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

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

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

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

48.  In reply, Mr Dykes submitted that the 1^st applicant is an English speaker and the Chinese version of the Policy would not be relevant to him.  Although the 2^nd and 3^rd affirmations of the 1^st applicant were written in the English language, they had apparently been interpreted to him in the Urdu language before he affirmed them.  I do not consider it fair to apply the Chinese version of the Policy to the 1^st applicant in these circumstances.  In any event, I do not believe that an important issue regarding the proper interpretation of the Policy should turn on a discrepancy between the Chinese and English versions of the Policy.  I understand that the Director has lodged appeals against the two decisions in BI and BH, and an authoritative interpretation of paragraph 5 of the Policy will be given by the Court of Appeal in due course.  Pending the decisions of the Court of Appeal in those appeals, I consider that the right course to take would be to continue to apply the Court of First Instance decisions in BI and BH.

49.  It follows that I consider the Director to have misapplied, or misconstrued, the Policy when he treated the failure of the 1^st applicant to satisfy the No Record Requirement as being fatal to his Dependant Visa Application.

50.  For the sake of completeness, I may add that the Director also considered that the 1^st applicant had failed to demonstrate any strong compelling factors or exceptional humanitarian or compassionate circumstances which would justify the exercise of his residual discretion to permit the 1^st applicant to remain in Hong Kong.  This conclusion seems to me to be plainly correct.

51.  I shall deal with a further issue raised by Mr Chang, namely, “inevitability of outcome”, later in this judgment when I consider whether the leave granted to the applicants to apply for judicial view ought to be set aside on the grounds of (i) material non-disclosure and/or (ii) delay.

Material non-disclosure

52.  The Decision in this case was conveyed to the 1^st Applicant by letter dated 15 April 2013, and the application for leave to apply for judicial review was not made until 19 September 2014. It is apparent that the application was made well outside the upper limit of 3-months provided for under Order 53, rule 4(1) of the Rules of the High Court.

53.  When I granted leave to the applicants to apply for judicial review on consideration of papers only, I indicated that the leave granted was without prejudice to the Director being able to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay.

54.  However, as submitted by senior counsel for the applicant in BH and as explained at paragraphs 90 to 95 of my judgment in that case, the effect of the judgment of Lord Slynn of Hadley in R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 at 341 is that once a judge grants leave to apply for judicial review, even if he makes it clear at the same time that the respondent should have an opportunity to raise the question of delay, the issue of whether there is good reason for an extension of time is concluded and the judge hearing the substantive judicial review application has no jurisdiction to reconsider the question of extension of time, or whether good grounds have been shown under Order 53, rule 4(1) for an extension of time.  The only issue, so far as delay is concerned, is whether relief should be refused on the ground of hardship, prejudice or detriment to good administration under section 21K(6) of the High Court Ordinance, unless a separate application is made by the respondent to set aside the leave granted on an ex parte basis.

55.  The fact that the granting of leave to apply for judicial review would carry such significance consequence has an obvious implication on the duty of full and frank disclosure on the part of an applicant when seeking, ex parte, for leave to apply for judicial review.  The position was explained by Jackson J in R v Bromley LBC, ex p Barker [2000] Env LR 1 at paragraphs 45 to 51 as follows:-

“ 45 Most applications for permission are dealt with on an ex parte basis. Accordingly, the applicant is under a duty to place the material facts before the court and to identify clearly the issues which arise.

…

49 In Fitzgerald v. Williams [1996] Q.B. 657 the Master of the Rolls, with whom Waite L.J. and Otton L.J. agreed, said this at pages 667 to 668:

‘ In seeking ex parte relief an applicant must disclose to the judge any fact known to him which might affect the judge's decision whether to grant relief or what relief to grant. It is no answer for an applicant who falls down on his duty to show that his breach of duty was committed in good faith and inadvertently, or to show that the relief would have been granted even had he complied with his duty. The courts have traditionally insisted on strict compliance with this rule, as affording essential protection to an absent defendant, and as applications for ex parte relief have multiplied so the importance of complying with this duty has grown.’

…

51 In my judgment, the decision in ex p. A has two important consequences which are relevant to the present case:

(1) If the application is made outside the time permitted by Ord. 53 rule 4, it is essential that all matters relevant to the question of extending time are set out clearly and fairly in the notice of application for permission. This is because the court is being asked to decide on an ex parte basis an important question which cannot be reconsidered at the substantive hearing.

(2) If the judge, on an ex parte basis, extends time under Ord. 53 rule 4 either expressly or by implication, and if he erred in doing so, that is a good ground for setting aside the permission. It is quite wrong that the respondent should be deprived of a defence based upon Ord. 53 rule 4 without having an opportunity to be heard.”

56.  In Hong Kong, the duty of full and frank disclosure on the part of an applicant seeking leave to apply for judicial review is well established.  As observed by Lam J (as he then was) in Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012), at paragraph 35:-

“ … an applicant bears a duty of full and frank disclosure in the ex parte application for leave and any breach of such duty may result in leave being set aside. I should add that the duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to disclosure of potential legal answers to the claims of an ex parte applicant. Unfortunately, this duty is not always observed. In my experience as the judge in charge of the Constitutional and Administrative Law List, very often the court is not provided with all relevant information and adequate assistance in the papers filed on behalf of an applicant for the proper performance of its role in the filtering process. Sometimes this may due to the fact that the applicant acts in person. Sometimes it may due to the inadequate instructions given by an applicant to the lawyers. Sometimes it may due to the inadequate investigation of the matter by the lawyers before launching the application. Sometimes it may due to the omissions on the part the lawyers in considering some relevant issues. Sometimes it may due to the insufficient communication between the applicant and the relevant authority resulting in the applicant (and those advising him) not having a full grasp of the reasons for the decision or the decision-making process.”

57.  In my view, having regard to the considerations mentioned in paragraph 54 above, any failure on the part of an applicant to comply with the duty of full and frank disclosure when seeking, on an ex parte basis, an extension of time to apply for leave to apply for judicial review should generally be regarded as a serious matter, whatever may be the reason or reasons for such failure, and the court must be astute to prevent an applicant from gaining any procedural or substantive advantage obtained from his failure to comply with such basic duty.

58.  In the present case, the delay in the making of the leave application was explained in the Form 86 in the following passages under the sub-heading “Relevant Chronology”:-

“ 62. The 1^st Applicant and the 2^nd Applicant did not obtain legal aid for the purpose of seeking leave to judicially review the Decision until 27 January 2014.

63. The Applicants’ present solicitors firm, Daly & Associates, were assigned by Legal Aid on 27 January 2014. Senior Counsel was assigned on 25 April 2014.

64. The delay was in part caused by the need to obtain extensive PD(P)O documents for the 1^st Applicant and the 2^nd Applicant from the Immigration Department and the Security Bureau. These documents were voluminous and were provided at different times. The Applicant’s solicitors therefore had to make continuous requests for the PD(P)O documents, and peruse them as they were provided. The organization and viewing of these documents took up a significant amount of time.

65. Further, in line with developments regarding the USM and CIDPT, the documents had to be analysed and instructions taken from the 1^st Applicant because Daly & Associates had not represented the 1^st Applicant in his torture claim.

66. When examining the documents the Applicants’ solicitors was also mindful of the fact that it was their responsibility to lodge an application under O.53 r.3 that was in every respect accurate as far as relevant issues were concerned and that no documents coming from the Director of Immigration falsified [or] materially qualified facts asserted by the Applicant.

67. It is submitted that the Applicant’s legal representatives acted promptly at all times, and that there are good reasons to extend time.”

59.  In the 2^nd affirmation of the 1^st applicant filed in support of the application for leave to apply for judicial review, nothing further was said in relation to the issue of delay.

60.  The above passages in the Form 86 suggest that the delay for making the leave application was caused by two main factors:-

(1) the applicants did not obtain legal aid until 27 January 2014 (and senior counsel was only assigned on 25 April 2014); and

(2) the time taken to obtain “extensive PD(P)O documents” for the applicants, which were said to be “voluminous” and to have been “provided at different times” requiring the applicants’ solicitors (ie Messrs Daly & Associates) to “make continuous requests for the PD(P)O documents, and peruse them as they were provided”, as well as the “significant amount of time” spent to organize and view those documents.

61.  At the hearing on 8 June 2015, Mr Dykes also submitted that the delay fell into two parts: (i) delay by the Director of Legal Aid, and (ii) delay in formulating the application.  In relation to the latter aspect, Mr Dykes stated that the explanation was given in the Form 86, and he referred in particular to the need to obtain “PD(P)O documents”.

62.  The evidence now before me shows that Messrs Daly & Associates made two PD(P)O Data Access Requests on behalf of the applicants to the Director on 6 May 2013 (the covering letter was, mistakenly, dated 6 May 2012) and 12 February 2014 respectively.

(1) In relation to the first PD(P)O data access request, the Immigration Department gave a substantive reply to Messrs Daly & Associates by letter dated 7 June 2013 disclosing a total of 73 pages of documents.  The documents made available by the Immigration Department were collected by a representative of Messrs Daly & Associates on 27 June 2013.  Amongst the documents collected by Messrs Daly & Associates on that occasion was a copy of M20 which seems to me to be the most significant document which the applicants did not previously have and which they would reasonably require for the purpose of mounting an application for judicial review of the Decision.  Most of the remaining documents (apart from a few internal memoranda) were, it would appear, produced by the applicants or their solicitors in the first place or had been sent to the applicants or their solicitors previously (eg correspondence between Messrs Daly & Associates and the Immigration Department, the 1^st applicant’s family registration certificate, tenancy agreement, rental receipts, etc).

(2) In relation to the second PD(P)O data access request, the Immigration Department gave a substantive reply to Messrs Daly & Associates by letter dated 10 March 2014.  The documents made available by the Immigration Department (totalling 102 pages[1]) were collected by a representative of Messrs Daly & Associates on 21 March 2014.  As submitted by Mr Chang, the documents collected by Messrs Daly & Associates on that occasion were dated after May 2013 and had no apparent bearing on the present application for judicial review.  Indeed, by 21 March 2014, legal aid had already been granted to the applicants. This would tend to support the view that the documents collected by Messrs Daly & Associates pursuant to the second PD(P)O data access request were not essential for the purpose of mounting an application for judicial review against the Decision.

63.  As regards documents obtained from the Security Bureau, they mainly concern the petition against the Director’s refusal of the 1^st applicant’s torture claim and are not relevant to the present application for judicial review of the Decision.

64.  The explanation given in the Form 86 for the delay in making the application for leave to apply for judicial review is, I regret to say, neither accurate nor fair.  Even if one were to accept that the delay up to 27 January 2014 (being the date on which legal aid was granted to the applicants) was to be attributed to the legal aid process:-

(1) it seems to me to be an exaggeration to suggest that the PD(P)O documents were “voluminous”, and it is extremely doubtful that the “organization and viewing” of those documents could take up a “significant amount of time” as alleged;

(2) I also consider the applicants ought to have disclosed the fact that by the time that legal aid was granted to them in January 2014, their assigned solicitors, who previously acted for them in relation to the Dependant Visa Application, had already received all the key documents required for mounting a challenge against the Decision by way of judicial review back in June in 2013.

65.  In my view, the suggestion made in the Form 86 that that the delay in making the leave application “was in part caused” by the need to obtain extensive PD(P)O documents for the applicants is inaccurate, if not also misleading, and the applicants have failed to comply with the duty of full and frank disclosure when making the ex parte application for leave to apply for judicial review.

66.  Even where there has been a failure to comply with such duty, the court still has a discretion not to discharge the leave granted to an applicant to apply for judicial review or may, in appropriate circumstances, exercise its discretion to “re-grant” the leave to apply for judicial review.  Although Mr Dykes did not advance any argument on these matters (concentrating instead on the argument that there was no material non disclosure), I have nevertheless considered whether this is a proper case to exercise my discretion not to discharge the leave granted, or to re-grant the leave, to apply for judicial review.

67.  I am prepared to proceed on the assumption that the applicants were not themselves responsible for the failure to comply with the duty of full and frank disclosure, and that such failure was not deliberate or intentional.  I bear in mind the importance or significance of the Decision to the applicants, and also my view that the Director misapplied, or misconstrued, the Policy in relation to the 1^st applicant’s Dependant Visa Application.

68.  All these having been said, Mr Chang has on behalf of the Director strongly urged upon me that the outcome of the 1^st applicant’s Dependant Visa Application is inevitable.  If the “inevitability of outcome” argument is a stand-alone point, I would hesitate long and hard before reaching a conclusion that the Director would inevitably have reached the same conclusion had he properly treated the No Record Requirement as an important, but not conclusive, factor against granting a dependant visa to the 1^st applicant.  However, the context of the present discussion is different.  I am considering whether I ought to excuse, or overlook, the applicants’ failure to comply with the important duty of full and frank disclosure when applying for leave to apply for judicial review on an ex parte basis.  Even if the Dependant Visa Application is to be remitted to the Director for fresh consideration, the realistic position, I believe, is that it is highly likely that the Director would reject the application, having regard to the following matters:-

(1) the well established, stringent, immigration policy being applied by the Director;

(2) the Director has taken the view that the 1^st applicant’s adverse record involved dishonesty and was serious in nature (see paragraph 42 of Mr Lung’s affidavit), a view which, I consider, the Director is entitled to take;

(3) the weight that may be attached to the 1^st applicant’s adverse record is primarily a matter for the Director and not for the court; and

(4) there are no other relevant factors in favour of the 1^st applicant which the Director is under any public law duty to consider.

69.  I consider that I am entitled, and ought, to take into account the realistic likely outcome of the 1^st applicant’s Dependant Visa Application if it is to be remitted to the Director for fresh consideration when deciding whether to exercise my discretion not to discharge the leave granted, or to re-grant the leave, to apply for judicial review notwithstanding the applicants’ failure to comply with the duty of full and frank disclosure.  In so doing, it is not necessary for me to reach the further conclusion that the outcome is “inevitable” as submitted by Mr Chang.

70.  Having regard to the importance of upholding the duty of full and frank disclosure and the high likelihood that the 1^st applicant’s Dependant Visa Application would be rejected even if it is to be remitted to the Director for fresh consideration, I consider that the right course to take would be to set aside the leave granted to the applicants to apply for judicial review.

Delay

71.  The above conclusion makes it unnecessary for me to consider the further question of whether the leave granted to the applicants to apply for judicial review ought to be set aside on the ground of delay.  I shall nevertheless indicate my views briefly in the event that there should be an appeal against this judgment to the Court of Appeal.

72.  As mentioned in paragraph 98 of my earlier judgment in BH, I consider the following factors to be most relevant:-

(1) the length of the delay;

(2) the reason(s) for the delay;

(3) the merits of the application; and

(4) the public interest in having the point(s) of law arising in the application resolved by the court.

73.  The delay here of over 17 months is obviously a very substantial one.

74.  In relation to the reason(s) for the delay, part of the delay (up to 27 January 2014), according to the applicants, is explained by the time taken to apply for and obtain legal aid.  It is, however, well established that the mere fact that legal aid or pro bono assistance is not available is generally not to be regarded as a sufficient basis for an extension of time; it is only one of the factors in the court’s consideration of whether there are good reasons to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014), at paragraph 27 and 28 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014), at paragraph 29 per Au J; Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1) per G Lam J.

75.  In any event, even if the delay up to 27 January 2014 should be disregarded, no good explanation has been given for the further delay up to 19 September 2014 (ie the date of the application for leave to apply for judicial review).  I do not consider the fact that senior counsel was only assigned on 25 April 2014 to be a good explanation for the delay.  The legal and factual issues raised in the present case are, in my view, relatively straight forward and do not require the Form 86 to be drafted by senior counsel.

76.  As for the merits of the application, for the reasons stated above, I consider that the Director misapplied, or misconstrued, the Policy, but I have also come to the conclusion that there is a high likelihood that the 1^st applicant’s Dependant Visa Application would likely be rejected even if it is to be remitted to the Director for fresh consideration.

77.  Lastly, as for the public interests involved in having the point of law arising in the application resolved by the court, as mentioned in paragraph 106 of my earlier judgment in BH, I understand that the Policy is being applied by the Director on a daily basis, and the proper interpretation of the Policy has potential application to a large number of applicants for a dependant visa.  The fact that by the time of the hearing of the present application, the issue of law involved had already been determined twice by the Court of First Instance in BI and BH should not be taken against the applicants.  The position would be different if the present application was made after the delivery of the Court of First Instance’s decision in BI on 10 December 2014.

78.  Overall, I consider that the substantial delay, the absence of any good or reasonable explanation for the delay after the granting of legal aid, and the likely rejection of the 1^st applicant’s Dependant Visa Application even if it is to be remitted to the Director for fresh consideration outweigh the other factors in favour of granting an extension of time.  I would therefore set aside the leave granted to the applicants to apply for judicial review.

Disposition

79.  For the reasons given above, I set aside the leave granted on to the applicants to apply for judicial review, and dismiss the present application for judicial review.

80.  I make an order nisi that the applicants shall pay the respondent’s costs of this application, to be taxed if not agreed.  The applicants’ own costs are to be taxed in accordance with legal aid regulations.

81.  Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.