RMA AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 131/2014

[2018] HKCFI 666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 131 OF 2014

________________

and

HCAL 1/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1 OF 2015

________________

________________

(heard together)

________________________

J U D G M E N T

________________________

A.   INTRODUCTION

1.  In each these two judicial reviews, the 1^st applicant (respectively RMA and GDC) is the mother of the 2^nd applicant (respectively SC and JDS).  The 2^nd applicants are born in Hong Kong and are Hong Kong permanent residents.

2.  The respective 1^st applicants are Philippine national and entered Hong Kong initially with permission to work as a foreign domestic helper.  They have been overstaying in Hong Kong after the premature termination of their respective employment contracts.  They were later respectively arrested and convicted of the offence of breach of condition of stay.  The Director of Immigration (“the Director”) made a removal order against each of them pursuant to section 19(1)(b) of the Immigration Ordinance (Cap 115) (“the IO”).

3.  In each of these judicial reviews, the applicants challenge the Director’s decision to make the removal order against the 1^st applicants.  For convenience, I will refer to the decision and removal order made against RMA as “the RMA Decision” and “the RMA RO”, and the ones against GDC as “the GDC Decision” and “the GDC RO”.  In the judicial review concerning RMA, the applicants further challenge the Director’s decision (“the RMA Refusal for Stay Decision”) to refuse RMA’s subsequent request for permission to stay in Hong Kong.  I will also refer the RMA Decision, the RMA Refusal for Stay Decision and the GDC Decision collectively as “the Decisions”, and the RMA RO and the GDC RO collectively as “the ROs”.

4.  The grounds of challenge raised by the applicants are the same.  They are essentially that the Decisions are unlawful as the Director failed to take into account the applicants’ various purported rights protected under the Basic Law (“the BL”) and the Bill of Rights (“the BOR”), the Director failed to take into account relevant matters in making the Decisions, the Decisions are irrational in all the circumstances and are tainted by procedural unfairness.

5.  The applicants are represented by Ms Gladys Li SC leading Mr P Y Lo, and the Director, in opposing the applications, is represented by Mr Jonathan Chang.

6.  Before dealing with the substantive grounds of review, to put the arguments in proper context, I will set out the relevant background in each of the present applications, which are largely undisputed.

B.   BACKGROUND

B1.   Under HCAL 131/2014 (“the RMA Judicial Review”)

B1.1  RMA and SC

7.  RMA entered Hong Kong in 1998 to work as a foreign domestic helper.  Her employment contract was prematurely terminated by the employer on 28 June 2002.

8.  At the time of the termination of RMA’s employment contract, she was in a relationship with Mr S (who is a non-Chinese national and Hong Kong permanent resident) and was pregnant with his child.

9.  RMA eventually gave birth to SC (the 2^nd applicant) in Hong Kong on 22 July 2003.  SC is a non-Chinese national and Hong Kong permanent resident.

10.  Since birth, SC has been cared for by and living with his mother, RMA, in Hong Kong.  It is RMA’s case that Mr S has not cared for and sought the custody of SC.

11.  Subsequently, Mr S got married in the Philippines in 2006.  RMA’s relationship with Mr S deteriorated and they parted their ways in April 2007.

12.  RMA surrendered to the Immigration Department with SC in April 2007.  They were released on recognizance.

13.  In late May 2007, RMA indicated to the immigration officer at an interview her wish to return to the Philippines with SC after she had obtained SC’s birth certificate and travel document, as she wanted him to study in the Philippines.[1]

14.  RMA was later arrested for overstaying in July 2007 and prosecuted.  She pleaded guilty to the charge of overstaying and was sentenced to three months’ imprisonment.  It is RMA’s case that SC was placed in the custody of two foster families when RMA served the term of imprisonment.  RMA was released from prison in September 2007, and transferred to the Immigration Department for detention pending the decision as to whether a removal order should be made.  At an interview then conducted with the Immigration Department, RMA again indicated that she wanted to go back to the Philippines.[2]  She was released on recognizance.

15.  Between 2 and 29 October 2007, RMA had been applying for the issue of a permanent HKID card for SC, while at the same time the Immigration Department was arranging for her voluntary return to the Philippines with SC as she had previously indicated.  However, in the application for the issue of the HKID card for SC, RMA stated in the application form a request that she be allowed to stay in Hong Kong with SC.  By a letter dated 16 October 2007, RMA again made the request on the grounds that she wanted SC to receive education in Hong Kong and she did not want to separate from him.[3]

16.  At the same time, RMA made a refugee claim with the UNHCR[4] Sub-office in Hong Kong on 19 October 2007.  Her refugee claim was later closed by UNHCR on 21 October 2008.

17.  On 16 November 2007, RMA mentioned to the Immigration Department at an interview that she was not willing to go back to the Philippines, and about her refugee claim with the UNHCR.  She had also applied for assistance from the Social Welfare Department.[5]  SC has been receiving Comprehensive Social Security Assistance (“CSSA”) from the Social Welfare Department since 2008.

18.  Given RMA’s expressed unwillingness to return to the Philippines, the Immigration Department initiated internally an application for a removal order.

19.  The Director made the RMA Decision to issue the RMA RO on 14 February 2008 and notified RMA of it on 26 February 2008.

20.  RMA appealed against the RMA RO.  The Immigration Tribunal dismissed her appeal without a hearing on 4 March 2008.

21.  Thereafter, RMA had made repeated requests to the Director asking to be allowed to stay in Hong Kong to take care of SC.  The Director reviewed the RMA RO and decided to uphold the removal order on 15 July 2009 (ie, the RMA Refusal for Stay Decision).  RMA was informed of the decision by a letter dated 16 July 2009.

22.  RMA continued to express unwillingness to return to the Philippines.

23.  Later, RMA cohabited with a torture claimant Mr J in Hong Kong, and gave birth to a daughter in 2011 and a son in 2012 of the relationship in Hong Kong.

24.  RMA lodged a torture claim on 16 April 2012.  The torture claim was rejected by a determination dated 3 August 2012. 

25.  In around June and July 2013, Mr J suggested RMA return to the Philippines with the children and then he would arrange her and the children to go to Nigeria.  During this period, RMA again indicated to the Immigration Department her willingness to return to the Philippines.  The Director had then been arranging for her and Mr J’s return to their respective home countries.[6]

26.  However, in October 2013, she again changed her mind and indicated to the Immigration Department her unwillingness to return to the Philippines as she wanted to stay in Hong Kong to take care of SC.  It is RMA’s case that she changed her mind as she did not want SC to go to Nigeria.

27.  RMA and her other two younger children she has with Mr J then lodged a non-refoulement claim on cruel, inhuman, degrading treatment and punishment (“CIDTP”) ground under Article 3 of the BOR on 2 December 2013.

28.  In the meantime, albeit released on recognizance, RMA had for successive periods of time from 2011 to 2013 absconded and failed to report recognizance.[7]

29.  RMA had a first meeting with Daly & Associates (“D&A”) on 21 November 2013 concerning lodging legal challenge against the RMA RO.  Legal aid application was submitted on behalf of the applicants by D&A on 25 November 2013.  Legal aid certificates were issued on 8 May 2014.

30.  Counsel was assigned on 17 July 2014.  Brief was delivered to counsel on 8 August 2014.  Counsel provided first draft of Form 86 and verifying affidavit on 5 September 2014.  Instructions were taken from RMA on a number of appointments in September and October 2014 before counsel finalized the draft Form 86 and verifying affidavit.

31.  Assigned solicitors filed anonymity order application on 29 September 2014.  The application was granted on 29 September 2014.  The anonymity order was filed on 9 October 2014.

32.  The applicants filed on 10 October 2014 the application for leave to apply for judicial review against the RMA Decision and the RAM Refusal for Stay Decision.

33.  Leave was granted to the applicants to apply for judicial review following an oral hearing on 23 March 2015 “without prejudice to the Respondent’s right to (if he so intends) oppose the application also on the basis that there is no good reason to grant extension of time to the Applicants”.[8]

B1.2  The RMA Decision and the RMA RO

34.  The Director’s consideration in deciding whether to issue the RMA RO has been recorded in the file minutes M21 (dated 13 February 2008), M1 (dated 13 February 2008) and M2 (dated 14 February 2008).  The decision process has also been confirmed and explained in the affirmation of Lau Man Yiu.  Relevantly, it was stated in these file minutes respectively as follows:

(1)   In M21 (an application for the issue of a removal order):

“[RMA]

...

This is an application for R.O. against the abovenamed overstayer.

Case Background

2. Subject’s application for change of employer was approved on 27‑05‑2002 and she was permitted to remain on employment as a domestic helper until 14-09-2002 or two weeks after termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 28‑06‑2002 and she was required to depart on or before 12-07-2002. However, she did not depart and has overstayed since 13-07-2002 ….

3. During her overstaying, subject gave birth to her son [SC] on 22-07-2003 at ....

4. Subject and [SC] surrendered to the GIS on 12-04-2007 for departure arrangement. Under caution, she admitted to have overstayed in HK and stated, inter alia, that:

• she gave birth to [SC] on 22-07-2003 out of her relationship with her resident boyfriend [Mr S];

• she did not register [SC’s] birth;

• she had already separated with her boyfriend; and

• she lost her passport in July 2003 (subject was in possession of an emergency Travel Document issued by the local PHL Consulate - ....

After enquiry, both subject and [SC] were released on recognizance on the same day - Ml, (7) and (7)1 of GI/2121/07.

5. [SC]’s overstaying case was taken NFA by GIS i.v.o. his tender age. On 23-07-2007, subject was convicted of the offence of breach of condition of stay by overstaying and was sentenced to three months’ imprisonment – M1 and M4 of GI/2121/07. DAC subsequently decided to take NFA on subject’s deportation proceedings i.v.o. the nature of offence - (7).

Post Birth Registration of [SC]

6. [SC]’s case was also referred to GR for birth registration. [SC]’s post birth registration was first approved in principle (pending payment) with [SC]’s HKPR status entered as ‘Not Established’ as subject was an overstayer and not a CC. There was also no marriage record found between subject and [SC]’s claimed father - (12).

7. On 22-09-2007, subject was discharged from prison and was referred to CLS. Subject showed willingness to leave and she was again released on recognizance on the same day – M1.

8. On 02-10-2007, subject and her resident boyfriend approached GR for [SC]’s post birth registration. [SC]’s post birth registration was completed on the same day with HKPR status entered as ‘Established’ - (21) and (21)1. [SC]’s recognizance was then ceased - M7.

Unwillingness to leave

9. Emergency Travel Documents (to the Philippines) for subject and [SC] were issued by the local Philippine Consulate – M14. Subject was then interviewed on 16-11-2007, she suddenly changed her mind and claimed that she did not want to leave and wanted to wait for the result of her UNHCR refugee application – M15, M17, M18, (38) and printout at float.

Consideration and Recommendation

10. Subject claimed that her parents and 2 siblings are in the Philippines while her son ([SC]), her boyfriend and one relative (who was once her guarantor – M11) are in the HKSAR - (8).

11. Subject is a former DH [Domestic Helper] who has contravened a condition of stay in respect of her and is not willing to leave. According to available information, subject has no legal claims on the HKSAR. The fact that she has a HK born resident son does not confer on her the right to remain here. The removal order against subject will not deprive her right from seeing his resident son by entering HK as a visitor if she had chosen to leave her son to her resident boyfriend. As the legal guardian, she can also I choose to depart with her son for the Philippines. On balance of all the circumstances of the case, there is no compassionate ground justifying exceptional consideration. R.O. is thus recommended and the draft is prepared at float for your consideration please.” (emphasis added)

(2) In M1 (consideration of the application by the Chief Immigration Officer):

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

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

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

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

2. The person concerned is :-

Name	File Ref.
[RMA]	…

The person is a former domestic helper who has contravened her condition of stay by overstaying.

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

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

5.   …” (emphasis added)

(3)   In M2 (final decision to authorize the issue the removal order):

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

35.  Hence, in summary, in making the RMA Decision to issue the RMA RO, the Director took into account:

(1)   The case background of RMA and SC.

(2)   RMA had contravened a condition of stay and was unwilling to leave.

(3)   RMA had no legal claims (to the right of abode or right to land under section 2A or 2AAA of the IO) in Hong Kong.

(4)   SC enjoyed a right of abode as a Hong Kong permanent resident but that did not give RMA the right to remain in Hong Kong.

(5)   RMA’s parents and two siblings were in the Philippines.  Her son (SC), her ex‑boyfriend (who is the father of SC), and one relative (who was once her guarantor), were in Hong Kong.

(6)   The removal order would not deprive RMA of her right to see SC by coming to Hong Kong as a visitor if SC was left with his father.  RMA also had the choice of departing for the Philippines with SC.

(7)   There was no strong humanitarian or compassionate ground justifying exceptional consideration.

36.  In relation to the RMA Refusal for Stay Decision, the Director’s consideration was recorded in file minutes M29 (dated 14 January 2009), M30 (dated 15 January 2009), and M38 (dated 14 July 2009).[9]  It was stated respectively in them as follows:

(1)   In M29:

“Plead for stay in the HKSAR

[RMA Name]

This case concerns an overstayed PHL former FDH who was released on recognizance on 22-09-2007.

Background

2. Subject was a former FDH who had overstayed in Hong Kong since 13-07-2002. She gave birth to his son, [SC] on 22-07-2003. Until 12-04-2007, she surrendered to GIS for departure arrangement. She was convicted of BOC(0/S) and was sentenced to 3 months’ imprisonment – M1 and M4 of RBG1/2121/07.

3. On 22-09-2007, she was discharged from prison and was released on recognizance on the same day – M1. On 02-10-2007, she and her boyfriend approached GR for [SC]’s birth registration and [SC]’s birth registration was completed with HKPR status ‘Established’ - (21). After issuing of T/D for Subject and [SC], she showed her unwillingness to leave the HKSAR and wanted to wait for result of her UNHCR refugee application. In view of her reluctance to leave, a Removal Order was issued against her on 14-02-2008 - (45). For detailed case background, please refer to M21.

Subject’s claim

4. Subject’s refugee application with the UNHCR was closed on 21‑10-2008 - at float. There is no indication that Subject has applied for CAT claim.

Willingness to leave

5. Upon a recent interview, Subject showed her reluctance to leave the HKSAR as she wanted her son to receive education in the HKSAR. She claimed that [SC]’s father has married another woman and had his own life. She pleaded for stay in the HKSAR to accompany her son because she was the only one who could look after [SC] in the HKSAR - (53).

Recommendation

6. As Subject refused to leave and pleaded for slay in the HKSAR for the good of her HKPR son, it is recommended reverting the case to RES for consideration of Subject’s request.

7. For your consideration, please.” (emphasis added)

(2) In M30:

“Re M29. Subject’s asylum application was refused. It seems that subject is now in favour to have her son (born in HK with PR status established) to receiving his local educational and social welfare and hence to plea for stay so as to take good care of his son but no special/good compassionate grounds was raised. Please examine if there are strong compassionate grounds to put up case for exceptional consideration.” (emphasis added)

(3) In M38:

“Subject plead for stay on the ground that she is required to take care of her resident son. Other than that, there are no other strong humanitarian or compassionate grounds justifying exceptional consideration of granting stay. Taking into consideration that the natural father and grandmother of her son in HK may take care of him & that subject’s departure from HK with her son may also be an option, the recommendations as stated at para. 14 is supported, please.

[RMA]

...

Subject is an overstayer and a RO was issued against her in 2008. She was interviewed on 07-01-2009 and 27-05-2009 and was counseled to depart. During interviews, she submitted written requests asking the Director to allow her to stay in HK as she claimed that she wanted to take care of his resident son here. M28, M29, M31, (53) and (54) are relevant.

Case Background

2. Subject is a former foreign domestic helper. Her application for change of employer was approved on 27-05-2002 and she was permitted to remain on employment as a domestic helper until 14-09-2002 or two weeks after termination of contract, whichever was earlier. Her employment contract was prematurely terminated on 28-06-2002 and she was required to depart on or before 12-07-2002. However, she did not depart and has overstayed since 13-07-2002 - M8 and (18) of VCAC/430/98; CA at (42) of this file.

3. During her overstaying, subject gave birth to her son [SC] on ...

4. Subject and [SC] surrendered to the GIS on 12-04-2007 for departure arrangement. Under caution, she admitted to have overstayed in HK and stated, inter alia, that:

• she gave birth to [SC] … out of her relationship with her resident boyfriend Mr [S];

• she did not register [SC]’s birth;

• she had already separated with her boyfriend; and

• she lost her passport in July 2003 (subject was in possession of an emergency Travel Document issued by the, local PHL Consulate - (2) of GI/2121/07).

After enquiry, both subject and [SC] were released on recognizance on the same day - Ml, (7) and (7)1 of GI/2121/07.

5. [SC]’s overstaying case was taken NFA by GIS i.v.o. his tender age. On 23-07-2007, subject was convicted of the offence of breach of condition of stay by overstaying and was sentenced to three months’ imprisonment – M1 and M4 of GI/2121/07. DAC subsequently decided to take NFA on subject’s deportation proceedings i.v.o. the nature of offence - (7).

Post Birth Registration of [SC]

6. [SC]’s case was also referred to GR for birth registration. [SC]’s post birth registration was first approved in principle (pending payment) with [SC]’s HKPR status entered as ‘Not Established’ as subject was an overstayer and not a CC. There was also no marriage record found between subject and [SC]’s claimed father - (12).

7. On 22-09-2007, subject was discharged from prison and was referred to CLS. Subject showed willingness to leave and she was again released on recognizance on the same day – M1.

8. On 02-10-2007, subject and her resident boyfriend approached GR for [SC]’s post birth registration. [SC]’s post birth registration was completed on the same day with HKPR status entered as ‘Established’ - (21) and (21)1. [SC]’s recognizance was then ceased - M7.

Unwillingness to leave

9. Emergency Travel Documents (to the Philippines) for subject and [SC] were issued by the local Philippine Consulate - M14. Subject was then interviewed on 16-11-2007, she suddenly changed her mind and claimed that she did not want to leave and wanted to wait for the result of her UNHCR refugee application – M15, M17, M18, (38) and printout at float.

Removal Order and Appeal

10. Subject was a former DH who had contravened a condition of stay in respect of her and was not willing to leave. According to available information, subject had no legal claims on the HKSAR. The fact that she had a HK born resident son does not confer on her the right to remain here - extracted minutes at float. The removal order against subject would not deprive her right from seeing his resident son by entering HK as a visitor if she had chosen to leave her son in HK. As the legal guardian, she could also choose to depart with her son for the Philippines. On balance of all the circumstances of the case, there was no compassionate ground justifying exceptional consideration. R.O. was thus issued against her on 14-02-2008 - (45). Her appeal was also dismissed by the Immigration Tribunal without a hearing on 04-03-2008 - (51).

Case Development

11. On 21-10-2008. Subject’s refugee application was closed by the UNHCR - para. 4 of M29. Subject was interviewed on 07-01-2009 and 27-05-2009 by CLS and RES officers respectively. She was counseled to depart but she declined. She stated, inter alia, that:

• she wanted to stay in HK for taking care of her resident son;

• her son had adopted the environment and culture of HK and she wanted her son to receive better education here;

• she had already separated with her resident ex-boyfriend (father of subject’s son) and he was living with his wife in HK;

• her ex-boyfriend’s mother was also living in HK and subject still have contact with her;

• her son was receiving CSSA and no one would look after him (if she returns to PHL);

• her own parents and 2 siblings were living in PHL.

She submitted written representations at encl. (53) and (54) and requested the Director to allow her to stay in HK.

12. Subject was interviewed again on 29-06-2009. She was counseled to depart but she declined. She gave us the contact tel. no. of his ex-boyfriend (father of subject’s son) Mr [S] and said that we might contact him direct. Mr [S] was contacted overphone on the same day. He was invited for an interview. However, he replied that as he had already broken up with subject and that he was very busy in earning his living, he did not want to further discuss the matter with us overphone / to be interviewed - M37.

Consideration and Recommendation

13. As mentioned at para. 10, subject is a former DH who has contravened a condition of stay in respect of her and is not willing to leave. According to available information, subject has no legal claims on the HKSAR. The fact that she has a HK born resident son does not confer on her the right to remain here. The removal order against subject will not deprive her right from seeing his resident son by entering HK as a visitor if she had chosen to leave her son in HK. As the legal guardian, she can also choose to depart with her son for the Philippines.

14. Having considered all the circumstances of the case, including those representations subject made on 07-01-2009 and 27-05-2009, there appears no strong compassionate ground justifying exceptional consideration. It is thus recommended to uphold the RO decision. Draft reply to subject is prepared at float for your clearance, please. File will be returned to CLS for continuous counseling and repatriation plan formulation after reply is sent.

15. Submitted, please.” (emphasis added)

37.  The refusal of RMA’s request for stay is conveyed to her by the Director’s letter dated 16 July 2009, which states as follows:

“We refer to your letters to the Director of Immigration of 7 January 2009 and 27 May 2O09 requesting to stay in the Hong Kong Special Administrative Region (HKSAR) for taking care of your resident son.

According to our records, you were last permitted to remain in the HKSAR for employment as a domestic helper until 14 September 2002 or two weeks after termination of contract, whichever was earlier. Your employment contract was prematurely terminated on 28 June 2002 and you were required to depart on or before 12 July 2002. However, you did not depart and have overstayed in the HKSAR since 13 July 2002. On 2 July 2O07, you were convicted of the offence of breach of condition of stay by overstaying and was sentenced to three months’ imprisonment. Given that you have contravened your condition of slay by overstaying in the HKSAR, a removal order was issued against you on 14 February 2008. On 4 March 2008, the Immigration Tribunal has dismissed your appeal against the removal order without a hearing.

Having considered all the available information and circumstances relevant to your case including those representations set out in your above mentioned letters, there is no strong compassionate ground justifying for exceptional consideration. The fact that you have a Hong Kong born son does not confer you the right to stay in Hong Kong. The removal order made against you does not necessarily debar the opportunity of your future visits to Hong Kong. Given the removal order issued against you on 14 February 2008 is in force, you are required to make departure arrangements for the Philippines soonest.” (emphasis added)

38.  In gist, the Director in making the RMA Refusal for Stay Decision:

(1)   Was fully aware of and took into account RMA’s repeated representations that she wanted to stay in Hong Kong to take care of her son, SC, who was a Hong Kong permanent resident receiving social benefits and education in Hong Kong and had settled well in Hong Kong’s environment and culture. In particular, SC’s father, Mr S, was then married and had his own family and would not take care of SC in Hong Kong.

(2)   However, the Director did not find there were strong humanitarian or compassionate grounds to justify allowing RMA to stay in Hong Kong since:

(a)   RMA was in breach of breach of condition of stay and an overstayer and had no right to remain in Hong Kong.

(b)   She could bring SC back to the Philippines with her if returned to the Philippines under the RMA RO.  Alternatively, if she chose not to bring SC back to the Philippines, she could come back to visit SC on visitor visa.

(c)   In the premises, the RMA RO should be upheld.

B2.   Under HCAL 1/2015 (“the GDC Judicial Review”)

B2.1  GDC and JDS

39.  GDC entered Hong Kong in 1999 to work as a foreign domestic helper.  Her employment contract was prematurely terminated in September 2010 as she resigned for the reason that she wanted to go back to the Philippines “for rest”.  At the time of the termination of the contract, GDC was in a relationship with a Mr SA, who is a non-Chinese national Hong Kong permanent resident, and was pregnant.

40.  In late September 2010, GDC applied for extension of stay on visitor condition on the ground that she was pregnant and she needed to see doctor every month.  Her application was approved and she was permitted to stay as a visitor until 1 October 2010.  She however did not leave Hong Kong.

41.  GDC gave birth to JDS in January 2011.  JDS was later established to be a Hong Kong permanent resident.  JDS has been receiving CSSA and attending school in Hong Kong.

42.  On 15 October 2011, GDC applied to the Immigration Department’s Foreign Domestic Helper Section to extend her stay in Hong Kong. It was then discovered that she had overstayed since 2 October 2010.  She explained to the Immigration Department that she was afraid of going back to the Philippines as her husband and parents there did not know that she got pregnant and her husband gave her death threats on telephone.  However, she also stated that she would go back to her country after she had finished “all the documents of her son” and she surrendered because it was very difficult for her to hide.  Her application for extension for stay was refused.

43.  At a subsequent interview with the Immigration Department in late October 2011, GDC indicated her wish to go back to the Philippines by stating that “[she] wish to depart Hong Kong as soon as possible because [she] wanted to settle with [her] husband in Philippines if he could accept [her]”.  She also told the Immigration Department that her parents, brother, husband and elder son were in the Philippines, while the only family member or relative she had in Hong Kong was JDS, her son.[10]  She was later prosecuted with the offence of breach of conditions of stay.  In December 2011, she was convicted of the offence and was sentenced to six weeks’ imprisonment suspended for three years.

44.  However, by then she had changed her mind and indicated to the Immigration Department her unwillingness to leave Hong Kong. In January 2012, GDC also lodged a torture claim claiming that her husband would kill her and JDS if they returned to the Philippines.  She also stated that she wanted to stay in Hong Kong to take care of JDS because Mr SA had a family here and could not marry her and there was nobody to take care of JDS.

45.  At the same time, after considering the circumstances of GDC and JDS and that GDC was an overstayer in breach of the conditions of stay, the Removal Section of the Immigration Department recommended to the Director the issue of a removal order against GDC without removing to her home country until there was a final outcome of her torture claim.

46.  Having reviewed all the circumstances and the representations made by GDC, on 3 February 2012 the Director decided to issue a removal order under section 19(1)(b) of the IO against her (ie, the GDC Decision).  The GDC RO was served on GDC on 29 February 2012.  She appealed the GDC RO to the Immigration Tribunal.  The appeal was dismissed without a hearing on 9 March 2012.

47.  In the meantime, GDC’s torture claim was dismissed by the Director on 26 July 2012 and she did not appeal against that decision. Thereafter, the Immigration Department started making arrangements to remove GDC.

48.  In late August 2012, GDC repeated to the Immigration Department her unwillingness to leave as JDS’s father had his own family in Hong Kong, and JDS was always sick and only she would take care of him.  The Director decided to release her on recognizance and to keep counselling her to leave voluntarily.  She was also advised to seek assistance from the Social Welfare Department, if necessary.

49.  In December 2013, GDC was asked to be prepared to be removed to the Philippines and she was advised to cooperate with the removal arrangement.  She then expressed her intention to lodge a non-refoulement claim against the risk of being subjected to CIDTP under Article 3 of BOR.  By a letter dated 2 January 2014, her legal representative assigned by Duty Lawyer Service also reserved her right to make the CIDTP claim.

50.  The Immigration Department hence withheld removal action pending the outcome of the CIDTP claim.

51.  GDC then had a first meeting with D&A in May 2014, and legal aid application was submitted for GDC by D&A seeking to challenge the GDC RO.  Legal aid certificate was issued on 17 July 2014.

52.  Counsel was assigned on 11 September 2014, and brief was delivered to counsel on 24 September 2014.  The leave application for judicial review challenging the GDC Decision was made on 7 January 2015. Leave was granted on paper on 30 March 2015 “without prejudice to the [Director]’s right” to oppose the application on the basis that there is no good reason to extend time to the applicants.

B2.2  The GDC Decision and the GDC RO

53.  The file minutes M5 and M10, and the affirmation of Kwok Wai Lui (filed by the Director) show that the Director took into account the following matters before making the GDC Decision:

(1)   The case background of GDC and JDS.

(2)   GDC had contravened a condition of stay and was unwilling to leave.

(3)   GDC had no legal claims (to the right of abode or right to land under section 2A or 2AAA of the IO) in Hong Kong.

(4)   GDC’s torture claim was still under processing at that time.

(5)   JDS enjoyed a right of abode as a Hong Kong permanent resident but that did not give GDC the right to remain in Hong Kong.

(6)   GDC had family members in the Philippines.  She also had a relative in Hong Kong (whose details were not available).

(7)   There was no compassionate ground justifying exceptional consideration.  A removal order was accordingly recommended but without any order of removal pending the final outcome of GDC’s torture claim.

54.  Relevantly, it is stated respectively in M5 (dated 20 January 2012) for an application for a removal order and M10 (dated 2 February 2012) as follows:

(1)   In M5:

“RO application

[GDC]

This case concerns an PHL/F overstayer who was referred to CLS on 13-12-2011 – M1.

Case Background

2. Subject is a former DH in HK whose contract was prematurely terminated on 15-09-2010 with L/S last extended until 1-10-2010 as visitor. However, she did not depart and overstay since 2-10-2010. She was caused to attend to GIS oh her suspected overstaying offence on 24-10-2011 when she approached FDH section on 15-10-2011 for extension of stay application. During her overstaying period, she has given birth to a baby (S2) whose HKPR status was ‘established’. For case details, please refer to M2 of RBG1/2789/11.

3. On 5-12-2011, subject was convicted of BOC(O/S) with suspended sentence - M5 of G1 file.

Unwillingness

4. Upon her reporting at CICRO on 3-1-2012, subject expressed her unwillingness to return to her home country and indicated her wish to lodge a torture claim - (2). Case was subsequently referred to TCAS vide M3 & M4. There is no indication that she had lodged asylum claim with the UNHCR.

Detention

5. Subject is currently released on recognizance and her next reporting day at MTKRRO falls on 31-1-2012.

Recommendation

6.   Given Subject had contravened a condition of stay and is unwilling to leave, it is recommended to pass this case to RES for consideration of RO application, please.”

(2)   In M10:

“[GDC]

This case concerns a R.O. application against the above-named person.

Nature – [Re: M5 & (24) of RBGI-2789-11(GI file)]

[Overstayer]

Detention Authority – [Re: M9 & (4)]

[Subject is currently released on recognizance; Next reporting date: 28 February 2012]

…

2. Case Summary

On 27 December 2009, [GDC] arrived in the HKSAR on the strength of her Philippine passport. She was permitted to remain for employment as a domestic helper until 1 June 2011 or two weeks after termination of contract, whichever was earlier. On 15 September 2010, her employment contract was prematurely terminated. On 29September 2010, she applied to the Immigration Department for an extension of stay and was last permitted to remain as a visitor until 1 October 2010. However, she did not depart and had overstayed in the HKSAR since 21October 2010.

On 15 October 2010, [GDC] applied to the Immigration Department for further extension of stay. She was found to have overstayed in the HKSAR. On 17 October 2010, her application for an extension of stay was refused and she was caused to attend an interview on 24 October 2010. Upon enquiries, [GDC] admitted under caution that she was aware of her limit of stay and that she had overstayed in the HKSAR. After enquiries, she was released on recognizance on the same day.

On 5 December 2011, [GDC] was convicted of the offence of breach of condition of stay by overstaying and was sentenced to six weeks’ imprisonment suspended for three years.

[GDC] is currently release on recognizance.

3.    Other Information

(a)   Torture /Refugee Claim(s)

[Torture Claim – Under processing]

[Asylum Claim – No]

(b)   Prosecution & Conviction / DAC Decision

[Prosecution on BOC(O/S) – Convicted]

[DAC Decision – NFA on Deportation proceedings]

[Previous criminal/ conviction record(s) – No]

(c)   Willingness to Leave / Family Background

[Willingness to Leave – Unwilling to leave]

[Family Background – With family member(s) in home country; With family member(s) in the HKSAR: relative (details not available) & HK born daughter (PR status established)

Note: Subject claimed that both she and her boyfriend were still bound by their individual valid marriages and that they had no intention of registering a marriage in the HKSAR - [Re: M9].

(d) Follow up action:

[AD(EA)’s authority under S.25(2) has not been sought. Upon execution of removal order, please seek AD(EA)’s authority under s.25(2); Re-entry seeking in respect of subject prior to the execution of R.O.

4. Consideration & Recommendation

Subject has contravened her condition of stay by overstaying in the HKSAR since 2 October 2010. Subject has no legal claims on the HKSAR and is unwilling to leave. There are also no powerful or strong humanitarian grounds or exceptional circumstances which could justify subject’s remaining in the HKSAR. R.O. is recommended and the draft is prepared at float. The assessment of subject’s torture claim has been taken into account in our consideration. It is also recommended that the R.O. will be made without any order of removal to her home country until there is a final outcome of the assessment of subject’s torture claim. For your consideration, please.” (emphasis added)

B3.   The Director’s policy in considering whether to make a removal order

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

56.  It is the Director’s case and evidence in the present cases that when he considered making the Decisions, he has applied the following Policy (“the Policy”) in considering the exercise of his discretion as to whether to issue a removal order:[11]

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

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

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

C.   THESE JUDICIAL REVIEWS

C1.   Grounds of judicial review

57.  The grounds advanced by Ms Li SC for the applicants in both judicial reviews are the same.  They can be summarized as follows:

(1)   Both the Policy and the Decisions are unlawful since the Director in respectively formulating the Policy and making the Decisions had failed to take into account (as obliged as a matter of law) the 1^st and/or the 2^nd applicant’s various asserted fundamental rights to family and the best interest of child, and the 2^nd applicant’s rights as a permanent resident of Hong Kong (collectively “the Purported Rights”) as protected or provided under (a) Articles 37 and 39 of the BL; (b) Articles 14, 19(1) and 20(1) of the BOR; (c) Articles 17, 23(1) and 24(1) of the ICCPR;[12] (d) Article 10 of the ICESCR;[13] (e) Articles 1 to 7, 9 and 19 of the CRC;[14] and (f) the common law liberty.  Alternatively, the Director failed to take the Purported Rights into account as a matter of obvious relevance (“the Purported Rights Ground”).

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

(3)   The Decisions are tainted by procedural irregularity (“the Procedural Irregularity Ground”).

58.  The Director opposes each of the judicial reviews on the basis that (a) the leave to apply for judicial review should be set aside as there is serious delay on the applicants in making the application; and (b) the grounds of judicial review are in any event without merits.

59.  Although Mr Chang has also sought to oppose these applications in seeking to set aside the ex parte leave granted to the applicants, I find it appropriate in all the circumstances to deal with the merits of the grounds of judicial review first.

60.  Before I deal with the substantive grounds of judicial review below, it must be noted that most of the principal submissions and contentions made by Ms Li for the applicants under these grounds are indeed the same or very similar to the ones raised by leading counsel for applicants in a series of earlier judicial reviews heard before me.  I have since handed down judgments in these earlier judicial reviews, namely: Pagtama v Director of Immigration (HCAL 13, 45 & 56/2014, 12 January 2016, Au J) (“Pagtama”); Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016, Au J) (“Dembele”); LK v Director of Immigration (HCAL 77, 98 & 100/2014, 9 August 2016, Au J) (“LK”) and most recently Belandres v Director of Immigration (HCAL 101/2014, 14 March 2018, Au J) (“Belandres”). I would no doubt refer to these judgments below when relevant and necessary.

61.  I will now look at these grounds in turn.

C2.   The Purported Rights Ground

62.  Under this ground, Ms Li and Mr P Y Lo for the applicants argue that as a matter of legal obligations or relevance in public law, the Director in formulating the Policy and in making the Decisions in deciding whether to remove the 1^st applicants must take into account the Purported Rights of the applicants.

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

64.  Ms Li had also repeated these arguments in Belandres in the context of challenging a removal order made against a domestic helper overstayer who wished to remain in Hong Kong to take care of her Hong Kong permanent resident minor born in Hong Kong.

65.  Further, in Belandres, as in the present cases, Ms Li relied on the authority of Singh v Secretary for Security (1996) 6 HKPLR 440 in support of her submissions under this ground.  It is Ms Li’s contention in Belandres that Singh supports the position in law that, in considering whether to make a removal order in circumstances like the present, the Director has to strike a balance between the needs of immigration control on the one hand and the hardship suffered or to be suffered by the immigrant applicant, her family and other innocent third parties on the other hand.  In that exercise, the Director has to take into account the Purported Rights as those rights clearly concern with the hardship that the applicant and her family would suffer (as those rights relate to the right to family, the best interest of a child and the child’s entitlement to various social welfare and public education and services in Hong Kong as permanent resident).

66.  I have rejected all these contentions in Pagtama at paragraphs 55 ‑ 188; Dembele at paragraphs 20 - 57, LK at paragraphs 46 - 52, and Belandres at paragraphs 36 - 38 (adopting those reasons in Pagtama, Dembele, and LK) and 39 - 44 (adopting this court’s reasons in Sabir Mohammed v Permanent Secretary for Security (HCAL 114/2015, 27 January 2017) at paragraphs 50 - 74).

67.  For those same reasons, which apply equally in the present cases, I reject the Purported Rights Ground in the present cases.

C3.   The Relevant Considerations and Irrationality Ground

68.  Ms Li advances her submissions under this ground in a number of ways.

69.  First, leading counsel submits effectively that the Director’s approach (as now shown in the file minutes and the affirmation evidence) and adoption of the Policy in making respectively each of the Decisions is effectively that:

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

(2)   The Director then looked at whether the 1^st applicant had any legal claims in Hong Kong.

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

70.  Ms Li contends that, the Director’s adoption of the above approach under the Policy in making each of the Decisions is not a true exercise of the discretion vested in him under section 19(1)(b) (as it provides that the Director “may” make a removal order) but merely a “window dressing” exercise.  This is so because:

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

(2)   The residual discretionary consideration based on exceptionality is not a true “merit” consideration since, as demonstrated from the Director’s evidence, the so‑called consideration of the applicants’ circumstances to see if they amounted to an exceptional case was no more than a “cursory reference” to the applicants’ situation.  This is in stark contrast to the 1^st applicant’s repeated representations in each case that she was the only suitable and primary carer for the 2^nd applicant in her particular circumstances, and that it would be for the best interest of the 2^nd applicant to remain in Hong Kong to receive education.  In particular, the Director has provided no explanation, let alone a rational explanation, as to why the applicants’ circumstances did not amount to strong humanitarian or compassionate grounds to allow the 1^st applicant to remain in Hong Kong.

(3)   The Director therefore did not in substance make any true consideration of the individual circumstances of the applicants based on merits.  There was therefore no true exercise of discretion.

71.  In the premises, Ms Li submits that the Director failed in substance to take into account (even under his residual discretion consideration) the clearly relevant matters such as the specific family circumstances and best interest of the minor in each of the cases, and the Decisions are thus unlawful.  Further, without taking into account these matters in substance, the Decisions must also be irrational in the circumstances.

72.  The fundamental plank of these submissions is that the Director’s purported consideration of the individual circumstances of the applicants under the residual discretionary exercise is nothing more than a “lip service” and “window dressing” act.

73.  I have rejected similar arguments advanced by Ms Li in Belandres (although raised under the ground formulated as fettering the Director’s discretion) at paragraphs 49 - 56 as follows (footnotes omitted):

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

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

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

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

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

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

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

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

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

109. In cases where the Director did give regard to humanitarian consideration, it would be unlikely that the Director did not take the relevant consideration into account. Once it is appreciated that as a matter of Hong Kong law there is no legal basis to say that the family tie or connection should be given higher priority over other considerations in the exercise of immigration control, a court could not infer that the Director did not take family tie or connection into account simply because a decision was adverse to such consideration. The documentations in the file would usually reflect that the Director has given consideration to the family tie or connection of an applicant and his family members: see the Court of Appeal’s judgement in Safder Tehseen; and the decision of the Appeal Committee in the same case. As we shall explain below, the real issue in the present appeals (as in most cases) is whether the applicants could challenge the decisions of the Director in terms of procedural fairness or alternatively Wednesbury unreasonableness.

…

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

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

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

119. In our judgment, bearing in mind the limited relevance of family circumstances in the context of an exceptional consideration against the overall background of stringent immigration control, the way in which the immigration officer assessed the personal and family circumstances of BI cannot be regarded as superficial, inappropriate or improper. From the perspective of the applicant, it could be described as dismissive. But it cannot be said to be Wednesbury unreasonable when the matter is assessed in its proper context. In such limited context, the law does not require the Director to explain at length why the family circumstances could not prevail over other general considerations in making out a case for exceptional treatment.’ (footnotes omitted)

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

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

74.  These reasons apply also equally in the present cases to Ms Li’s above contentions.  I therefore reject the same.

75.  Second, Ms Li also argues that the Policy now set out in the affirmation evidence has never been published and is not supported by any underlying documents.  In the premises, Ms Li submits that the court should be cautious in accepting the meaning of the Policy as now asserted by the Director.  In any event, Ms Li says the meaning of the Policy is a matter of objective construction for the court, and hence, it is open to this court to construe the Policy.  Leading counsel then submits that it would be irrational for a policy relating to an exercise of discretion not to have an in truth and in substance consideration of the individual circumstances of the applicants, and thus the court should construe it objectively to require such consideration. Finally, Ms Li says even if the Policy bears the meaning as the Director now says, the Decisions based on it are still unlawful as the Policy has not been published, citing in aid R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraphs 20, 35, 36 and 38.

76.  There are no merits in these contentions:

(1)   As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”.  The Director’s wide discretionary powers over immigration control is derived from the IO.  There is no basis not to accept what the Director has now set out on oath as to what the Policy is, subject to the objective irrationality point Ms Li has submitted.

(2)   However, insofar as the objective irrationality point is concerned, it is in effect the flip side of the argument that the Director under the Policy does not in substance consider the merits of an applicant’s individual circumstances under the residual discretionary exercise.  For the reasons I have explained at paragraphs 73 - 74 above, this complaint must be rejected and there is thus nothing in this point.

(3)   In the premises, the court accepts the meaning of the Policy as now stated by the Director

77.  The authority of R(Lumba) does not take Ms Li’s case any further.  In R(Lumba), the Supreme Court held that it was unlawful for the government in a detention pending deportation context to apply an unpublished blanket policy which was inconsistent with another publicly published policy.  As rightly accepted by Ms Li, this is entirely different from the present cases concerning the Policy.

78.  Fairly acknowledging this distinction, Ms Li at the hearing then further argues that her principal reliance on R(Lumba) is not to say that the Policy must be published to be lawful.  However, she says given that the Policy is not published, it further underlines the applicants’ complaint that they had not been informed by the Director as to what factors and matters he would take into account in considering whether there were justifications for not issuing a removal order.  In this respect, Ms Li has drawn my attention to Lord Dyson’s observation at paragraph 38 where his Lordship says “… What must, however, be published is that which a person who is affect by the operation of the policy needs to know in order to make informed and meaningful representations to the decision-maker before a decision is made”.

79.  In other words, Ms Li says given the non-publication of the Policy (in particular in relation to the exceptionality requirement for strong humanitarian or compassionate grounds under the residual discretionary consideration), the applicants were unable to make informed representations to support their case for seeking non-removal.

80.  With respect, there is again no merit in this complaint, which effectively concerns procedural unfairness.  It is trite that in public law, what amounts to procedural unfairness is highly contextually based.

81.  In the present cases, it is clear that:

(1)   Before the Director made the RMA Decision and the RMA Refusal for Stay Decision, RMA had been making repeated representations to the Director of her wish to stay in Hong Kong to take care of the son, that she did not want to be separated from him, that the son was entitled to and should receive what she regarded to be better education in Hong Kong, that her son had settled well in Hong Kong’s environment and culture, and her son’s natural father (Mr S) could not take care of him in Hong Kong if she was returned to the Philippines.[15]

(2)   GDC had also similarly represented to the Director that she wanted to stay in Hong Kong as she was the only person who could take care of her son since his father (Mr SA) was already married with another woman, and that she would be killed by her own husband in the Philippines if she was returned there.[16]

82.  These are all matters concerning the 1^st applicants’ respective plea for humanitarian or compassionate considerations by the Director not to issue the removal order against them.  Whether the Director would consider these as “exceptional grounds” in terms of degree in the context of immigration control to justify a non-removal would and could not have materially affected or changed the substance of or matters mentioned in the 1^st applicants’ representations.  It cannot be seriously suggested that the 1^stapplicants had somehow “reserved” or “tuned down” some of their representations in relation to humanitarian and compassionate reasons for seeking to stay in Hong Kong because they did not know at that time that the Director was looking for exceptional grounds.

83.  I therefore do not find the non-publication of the Policy in the present cases constituting any material procedural unfairness in the decision making process, nor do not I find that the 1^st applicants had been materially prejudiced in their representations by not having been informed the Policy.

84.  Ms Li also argues at the hearing that the Policy is unlawful since it is in substance a blanket and rigid policy as it is subject only to a residual exercise of discretion.  Underlying this contention is again the submission that the exercise of the residual discretion is not merit based. For the reasons I have explained at paragraphs 73 ‑ 74 above, there is no substance in this submission.

85.  Third, Ms Li submits that in any event, the Director failed to take into account the 1^st applicant’s family circumstances, her intention to remain in Hong Kong to continue to care for the 2^nd applicant, and the impact and disruption on the life of the 2^nd applicant enjoying the right of abode and public benefits in Hong Kong as of right (as a Hong Kong permanent resident minor) if he had to leave Hong Kong as a result of his primary carer having to leave Hong Kong compulsorily.

86.  Specifically, Ms Li says the Director in each of the cases failed to make proper inquiry and take into account the following particular matters:

(1)   In the RMA Judicial Review, the responsible officers relied on the choices that RMA could have made, namely to leave SC in the care of his natural father or to depart for the Philippines together with SC.  However, they failed to take account of these matters properly, including materially, the reality and practicality of implementing these choices. Neither the applicants nor Mr S was even informed of the proposed removal of RMA for their response and comments over the impact on the care of SC and arrangements for such care in the context of undue hardship.  The further but limited enquiry into the circumstances of RMA and of Mr S for the purpose of the review of the removal order must have given rise to concerns over the reality and practicality of such choices.  Yet, the removal order was upheld by taking into consideration, inter alia, the matter that “[the] removal order would not deprive her of her right to see [SC] by coming as a visitor if she chose to leave him in Hong Kong”.  The omission of Mr S from the matter of consideration is a significant departure and can only be taken as improper consideration of a relevant matter.

(2)   In the GDC Judicial Review, the responsible officers relied on the information that GDC and Mr SA had no intention to register their marriage in Hong Kong since they were each bound by their individual marriages.  They failed to take account of this matter properly, including materially, the contacts between GDC and Mr SA.  Neither the applicants nor Mr SA was even informed of the proposed removal of GDC for their response and comments over the impact on the care of JDS and arrangements for such care in the context of undue hardship.[17] The practicality and consequences on the part of the applicants and of Mr SA in respect of the removal and at least the consequential care arrangements were not explored, consulted, evaluated, and taken into account.  Ms Li also says the Director had not in substance taken into account GDC’s representations that she was at risk of being killed by her husband if she was returned to the Philippines.

87.  In further elaboration, Ms Li emphasizes that, for example, there had been no enquiry of the circumstances of the Philippines regarding free education and subsidized medical services, the capability of the 2^nd applicant to return to Hong Kong within the next three years so that his permanent resident status could be preserved, and factors relevant to and concerning the impact and disruption on the 2^nd applicant’s life.  The Director also had no idea whether it was practicable for the 2^nd applicant to join the 1^st applicant either in the Philippines or elsewhere outside Hong Kong, whether it was practicable for the 1^st applicant to come to Hong Kong from time to time to visit the 2^nd applicant.  Ms Li says the Director made the Decisions without knowledge and in ignorance of those circumstances.  As a result, Ms Li submits, the Director had failed in his Tameside duty to ask the right question and take reasonable steps to acquaint himself with relevant information to answer it correctly.[18]

88.  Moreover, given that the Director had no basis to form a view that it was practicable for the 2^nd applicants to join the 1^st applicants in the Philippines, and whether it was practicable for the 1^st applicants to come to Hong Kong to visit the 2^nd applicants from time to time, the Decisions must be (Ms Li argues) in any event irrational.

89.  With respect, I am not persuaded by these submissions.

90.  In relation to the RMA case:

(1)   The file minutes and affirmation evidence as summarized above in Section B1.2 shows clearly that, when considering whether there are exceptional circumstances to justify not removing RMA and permitting her to stay in Hong Kong to take care of her son, the Director took into account their individual circumstances, specifically, the 1^st applicant’s repeated representations that they wanted to stay in Hong Kong to take care of the son and she wanted the son to receive education in Hong Kong.  There are no merits as a matter of fact that the Director failed to take these matters into account.

(2)   In this respect, it must be noted that, as emphasized by the court time and again, unless prescribed by the law (which is not the case here), what factors are relevant or irrelevant to the Director’s consideration in exercise of his discretion, and the weight to be attached to the factors that he takes into account, is a matter for the Director.  The court should give a wide margin of appreciation to the Director and will not lightly interfere on a Wednesbury challenge.  See: BI v Director of Immigration [2016] 2 HKLRD 520 (CA), paragraphs 104 - 109 (as quoted in Belandres: see paragraph 75 above).

(3)   For Ms Li’s references in this judicial review to the need to have specific enquiry relating to the education system and medical care system in the Philippines, and the alleged matters stated in the Amended Form 86[19] that SC has “no home” in the Philippines, and “no arrangements” can be made for his living and education there, these are matters that RMA should have herself raised with the Director if she had wanted to rely on them.  However, they had not been so raised by RMA.  The Director has no duty to ask questions in this respect, let alone to make inquiries about them himself.  See: Pagtama, paragraphs 211 - 218.

(4)   In this respect, Ms Li seeks to distinguish Pagtama. She says Pagtama is concerned with an application for dependant visa, and hence it may be correct for the court to say that the burden and duty is on the applicant to raise with the Director all the relevant matters considered to be in support of that application.  However, Ms Li argues, the present cases are about whether or not to issue the removal order, and there is no application made by the applicants.  Hence, it cannot be right that the applicants should similarly bear the burden of raising the matters.  

(5)   I agree with Mr Chang that there is no substance in this distinction.  In the removal order context, the 1^st applicant has no right to be in Hong Kong and, being an overstayer, is prima facie liable to be removed.  It is the 1^st applicant’s request (and hence effectively her application) that the Director however should not so remove her.  The same principle therefore applies.  It is for her to raise all the objectively reasonable matters that she wishes to rely on to persuade the Director to accede to her request.[20]

(6)   Finally, given the well-established strict immigration policy and, in turn, the burden on RMA to demonstrate exceptional circumstances to justify any departure therefrom, it cannot be said that the Director has acted in a Wednesbury unreasonable sense that no reasonable decision-maker could have come to such a conclusion.  See also this court’s observations in Belandres at paragraphs 52 - 55 (as quoted above at paragraph 73).

91.  In relation to the GDC case:

(1)   Similarly, the file minutes and affirmation evidence as summarized above in Section B2.2 shows clearly that, when considering whether there are exceptional circumstances to justify not removing GDC and permitting her to stay in Hong Kong, the Director took into account their individual circumstances, specifically, the GDC’s repeated representations that she wanted to stay in Hong Kong to take care of the son and she wanted the son to receive education in Hong Kong.

(2)   For the same reasons set out at paragraphs 90(2) ‑ (5) above, there is equally no merit in the complaint that the Director had failed to make inquiry into the education and medical care systems in the Philippines and assess whether JDS could practically settle in the Philippines.

(3)   In relation to GDC’s alleged risk of being killed by her husband in the Philippines, the Director was clearly aware of this allegation and the fact that GDC had made a non-refoulement claim based on this.  The non-refoulement claim was to be assessed by the relevant specialist division within the Immigration Department.  Hence, the Director decided to issue the GDC RO but the actual removal order was stayed pending the determination of the non-refoulement claim by the specialist division.  See M10, paragraph 4. This in any view must be a reasonable and proper course open to the Director to make in the context of a removal order.

(4)   In the premises, again for the same reason at paragraph 90(6) above, there is no substance to say that the GDC Decision is irrational given these personal circumstances of GDC and JDS.

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

93.  I am not persuaded by these submissions:

(1)   Even if the Director has a duty to apply anxious scrutiny, for the same reasons and the position of the law in this respect as set out in paragraphs 52 ‑ 55 and 67 of Belandres, it cannot be said that, on the evidence placed before the court, the Director had failed to do so or that the Decisions are Wednesbury unreasonable.

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

94.  For all the above reasons, I also reject this ground.

C4.   The Legitimate Expectation Ground

95.  Insofar as this ground is to say that there is a legitimate expectation that the Director would consider the Purported Rights in deciding whether to make the Decisions, it is in effect the same arguments raised under the Purported Rights Ground.  This must therefore be similarly rejected for the same reasons I have rejected the Purported Rights Ground.

C5.   The Procedural Irregularity Ground

96.  Ms Li raises two complaints under this ground:

(1)   Before making the Decisions, the Director had failed to put to each of the 1^st applicants matters relevant to his decision-making for her to comment, respond or provide further information.

(2)   The Decisions are inadequately reasoned.

97.  There are no merits in these complaints.

98.  The first complaint is in substance a repeat of the arguments that the Director had failed to make sufficient inquiries under the Tameside duty.  I reject this complaint for the same reasons set out in paragraphs 79 - 83 and 90(2) - (5) above.

99.  For the second complaint, having regard to the disclosure now of the various minutes and the affirmation evidence filed by the Director in these judicial reviews, the basis of the Director’s decisions is clear.  Even if I were of the view that the original decisions did not contain sufficient reasons, I would not have exercised my discretion to grant any relief in these judicial review on this basis alone as it would be entirely academic.  See: Hong Kong Television Network v Chief Executive in Council [2015] 2 HKLRD 1035 at paragraphs 101 - 102.

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

101.  I therefore reject this ground.

C6.   Conclusion on the grounds of judicial review

102.  For all the above reasons, all the applicants’ grounds challenging the Decisions fail.  These judicial reviews should be dismissed.

D.   SETTING ASIDE THE EX PARTE LEAVE

103.  As mentioned above, the Director has also applied by summons[21] to set aside the ex parte leave granted to the applicants to apply for judicial review in each of these cases on the ground of serious delay.  In relation to RMA, the Director has also asked to set aside the leave on the additional basis of material non-disclosure.

104.  I will look at the ground of delay first.

105.  The principles governing the extension of time in this respect have been usefully set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45.  These are not in dispute and can be summarized as follows:

(1)   Although Order 53, rule 4(1) of the Rules of the High Court sets down a three-month limit, the primary requirement is promptness.  The applicant cannot wait until the three-month period is drawing to a close before springing into action.

(2)   Unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made.

(3)   While the court has power under Order 53, rule 4(1) of the Rules of the High Court to extend time, the power is only to be exercised if “good reason” is shown.

(4)   The following factors are likely to be significant in assessing whether there is good reason for time extension:

(a)   The length of delay.  The longer the delay, the more cogent the reason required for extending time.

(b)   Whether there is a credible and valid explanation for the delay.

(c)   The merits of the substantive application.  In this regard it is important to recall Litton NPJ’s statement in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B - C that where an applicant is many months late, leave may be refused “however strong the complaint might otherwise be”.  See also Hartmann J (as he then was) in Law Chun Loy v Secretary for Justice (HCAL 13/2005, 26 October 2006) at paragraph 13.

(d)   Prejudice (to the applicant if extension refused; to the authority if extension allowed).

(e)   Whether the application raises question of general public importance and whether those issues are likely to have to be resolved by the courts in any event.

See also: the endorsement of this approach on the question of delay by the Court of Appeal in AW v Director of Immigration (CACV 63/2015, 3 November 2015, Lam VP, Kwan and Poon JJA) at paragraph 1, per Lam VP, and paragraphs 23 - 36, perKwan JA.

106.  There is no dispute that there is substantial delay by the applicants in taking out the leave application in the present cases:

(1)   RMA: over six years (from the date of the RMA Decision), and over five years (from the date of the RMA Refusal for Stay Decision);

(2)   GDC: 35 months (from the date of service of the GDC Decision).

107.  Ms Li first opposes the setting aside summonses on the basis that they were taken out far too late after leave was granted, and thus the court should not entertain them in the substantive judicial review hearing.

108.  I do not accept Ms Li’s submissions.  The Court of Appeal in dealing with a similar contention has now confirmed in BI at paragraphs 134 - 139 that the court does have jurisdiction to deal with such an application at the substantive hearing of a judicial review, and it is a matter of case management for the court to decide whether to do so in the circumstances of each case.  The Court of Appeal does however emphasize that generally speaking it is preferable to have such an application dealt with promptly.

109.  In relation to the present cases, leave was granted on 30 March 2015 (in both judicial reviews) and the Director filed his full evidence in opposition about five months later on 19 August 2015 (in the RMA Judicial Review) and 12 August 2015 (in the GDC Judicial Review).  Given that full evidence has already been filed fairly soon after leave, and the court in determining whether to extend time for a delayed application may have to examine the merits of the applicants’ substantive challenge deeper than the standard applicable to granting leave,[22] I am satisfied that as a matter of case management, it is convenient and appropriate in the present cases to hear the setting aside leave applications at the same time of the substantive hearing.  This is particularly so as, given the various grounds of challenges raised in these judicial reviews, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Director’s full evidence.  Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing).

110.  Ms Li then submits that in any event there are good reasons to justify an extension of time in both cases.  The reasons are similar and can be summarized as follows:

(1)   The delay can be explained on the basis that a substantial part of the time was taken up by the legal aid application process.  Although accepting that the 1^st applicants had not applied for legal aid for a substantial period of time after the relevant decisions were made, Ms Li submits that those delays can also be explained on the innocent basis that the 1^st applicants had spent a lot of time in seeking NGO assistance and legal advice.[23]

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

(3)   The judicial review applications are of merit.

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

111.  I agree with Mr Chang that none of the above explanations amount to good reasons for extending time.

112.  First, the periods of delay have been very substantial, particularly when considered against the outer three-month limit.  In this respect, there is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time: Re Thomas Lai, supra, at paragraph 48(1), citing Wong Chi Keung v Commissioner of Police (HCAL 1/2010, 11 May 2010, Fok J), paragraphs 57 - 72; BH v Director of Immigration (HCAL 105/2014, 14 April 2015, Chow J) at paragraph 100 and the cases cited therein.

113.  Specifically, the explanations in relation to the substantial delay on the part of the 1^st applicant in seeking legal aid after the relevant decisions were made are clearly not good reasons:

(1)   For RMA: She was advised by a social worker as early as on 28 March 2008 that she could go and see Messrs Barnes & Daly (now D&A, ie, her present firm of solicitors).[24]  It was entirely her own choice to meet with D&A only on 21 November 2013.[25]  There were in fact also successive periods of time from 2011 to 2013 when she had absconded from her recognizance.  When these are viewed as a whole, it shows that she had not been diligent in even seeking legal aid for pursuing her potential legal remedy.[26]

(2)   For GDC: She received advices from various organizations such as “Pathfinders” and “International Social Service”, and was legally represented when she lodged non-refoulement claims on different grounds over the years.  She lodged a torture claim in January 2012, and upon its refusal she lodged a CIDTP claim in December 2013.  It is doubtful that she was not aware of the option of applying for judicial review to challenge the Director’s decision as she now alleges.

114.  Second, the court cannot overlook the reality that the present challenges were formulated and handled by the same team of lawyers who were involved in the earlier challenges in the series of judicial reviews, drawing from the same or closely similar legal contentions.  Thus, there is simply no adequate explanation or excuse for the additional time taken to file the challenge to the Decisions (the Form 86 was filed on 10 October 2014 in RMA and on 7 January 2015 in GDC) after the legal aid certificates which were respectively issued to the applicants on 8 May 2014 (for RMA) and 17 July 2014 (for GDC).

115.  Third, delay in bringing these judicial reviews plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of the respective 1^st applicants was tolerated pending the determination of this judicial review.  They have remained in Hong Kong as an overstayer for a long time.

116.  Finally and importantly, for the reasons I have set out above, the judicial reviews are without strong merit.  When this factor is looked at together with the magnitude of the delay and the absence of adequate explanation for them, it is proper to refuse to extend time.  The submission that there would be disastrous hardship on the applicants if extension of time is not granted as the 1^st applicants would be separated from the 2^nd applicants must similarly be viewed against the merits of the challenges.

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

118.  I now turn to look at the material non-disclosure ground.

119.  There is a stringent duty in law for an applicant in an ex parte application to make full, fair and accurate disclosure of material information to the court and to draw to its attention significant factual, legal and procedural aspects of the case.  Such requirement is also expressly set out in Practice Direction SL3 at paragraph 13.[27]  See also the relevant legal principles summarized in TH & TLT v Director of Immigration (HCAL 114/2014, 20 July 2015, Chow J) at paragraphs 52 - 57.

120.  Materiality is not decided by whether the matters, if disclosed, would have led to a different outcome, but whether they ought to be placed before the ex parte judge on his weighing scale for consideration.

121.  Where there has been material non-disclosure at the ex parte stage, the general (“golden”) rule is to set aside the ex parte order and refuse any re-grant, even if the non-disclosure may have been innocent: Excel Courage Holdings Ltd v Wong Sin Lai [2014] 3 HKLRD 642 at paragraphs 56 - 58, per Kwan JA.

122.  The Director’s complaints of material non-disclosure in RMA’s case are these.

123.  RMA failed to disclose when she made her ex parte application for leave that on a number of occasions both before and after the RMA RO was made, she had indicated to the Immigration Department her willingness to return to the Philippines with SC and even asked for facilitation of their return,[28] which was inconsistent with her complaint that the Director had failed to take into consideration her intention to remain in Hong Kong to continue to give care to her son,[29] and disruption to SC’s life if she had to return to the Philippines.[30]

124.  RMA also failed to disclose that there were successive periods of time from 2011 to 2013 when she had absconded from her recognizance during which time the Immigration Department had lost contact with her, rather than painting an inaccurate (if not misleading) picture in paragraphs 11 and 12 of her 3^rd affidavit that the Immigration Department “did not reply” and “gave no response” to any of her letters submitted in 2009 to 2012 requesting the Director to allow her to stay in Hong Kong.[31]  This would have painted a very different picture to the ex parte judge on the issue of delay.

125.  Ms Li however submits that these matters pointed out by the Director are not relevant at all to the merits of judicial review or whether the delay is excusable, and hence the leave application.  In particular, Ms Li says RMA’s failure to report recognizance is clearly irrelevant to the consideration of delay, since the length of the delay period is clear and undisputed, and RMA has not provided any reasons in the leave application to explain those parts of the period that she had absconded.  Those parts therefore remain as unexplained delay whether or not she had absconded.

126.  In my view, the facts that RMA had indicated to the Director a number of times her willingness to return to the Philippines together with SC, and that she had absconded a number of times are clearly relevant, even if peripherally, at least to the merits of the challenge that it was irrational for the Director to remove her in light of all the circumstances of her case.  These matters should have been disclosed by the applicants in the ex parte application.

127.  RMA is therefore guilty of material non-disclosure and the leave application should be set aside also on this basis.

E.   DEPOSITION

128.  The applicants fail in all their grounds of judicial review.  I will dismiss these applications on merits.  Further, I would set aside the ex parte leave respectively granted to the applicants on the basis of delay.  In relation to the RMA judicial review, I would also set aside the ex parte leave on the basis of material non-disclosure.

129.  There are no reasons why costs should not follow the event.  I will make an order nisi in each of these applicationsthat costs of the application (including the costs of the Director’s summons to set aside leave) be to the Director to be taxed if not agreed.  The applicants’ own costs be taxed in accordance with legal aid regulations.

130.  The court is grateful to the assistance offered by counsel in these matters.