DEMBELE, SALIFOU AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 44/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 44 OF 2014

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REASONS FOR DECISION

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A.  INTRODUCTION

1. The applicants applied to judicially review the Director of Immigration’s decisions (“the Decisions”) respectively made in July 2011 and April 2013 to refuse the 1^st applicant’s application to change his immigration status to take up as a dependent of the 2^nd applicant. Leave to apply for judicial review was granted in June 2014.  The Director’s evidence in opposition was filed in September 2014.  The substantive judicial review is scheduled to be heard on 18 May 2015 (with 19 May also reserved).

2. On 25 March 2015 (about seven weeks before the substantive hearing), the applicants applied by summons to seek (a) extensive discovery from the Director; and (b) leave to cross‑examine a Mr Benson Kwok who has filed an affirmation on behalf of the Director to oppose the judicial review.  The discovery sought is for documents said to be related to or arising from matters that Mr Kwok has deposed to in his affirmation filed on 23 September 2014 (that is, some six months before the discovery and cross‑examination applications were made).

3. The applicants’ said applications were heard on 17 April 2015.  I dismissed the applications with costs after hearing the applicants.  In doing so, I gave the brief principal reasons that I did not find the discovery sought and the associated intended cross‑examination related to critical issues of the judicial review.  I said I would give more detailed written reasons later.  This is what I do now.

B.  BRIEF BACKGROUND

4. The 1^st applicant was born in Ghana, and is a Malian national.  He had been visiting Hong Kong as a visitor.  However, since 2010 or 2011, he has been co‑habitating with the 2^nd applicant in Hong Kong.  They are also parents of the 5^th applicant (who was born in July 2012), while the 2^nd applicant is also the mother of the 3^rd and 4^th applicants from her previous marriage.  All the 2^nd to 5^th applicants are permanent residents of Hong Kong.

5. The 2^nd to 5^th applicants have been receiving Comprehensive Social Security Assistance (CSSA).  They have also been living in public housing with the 1^st applicant at the material times.  They said the 1^st applicant and the 2^nd to 5^th applicants have been living as a family, and the 1^st applicant has been looking after and taking care of the 3^rd to 5^th applicants as his children.

6. Since April 2011, the 1^st applicant had applied to the Immigration Department to change his status to take up residence in Hong Kong as dependent of the 2^nd applicant under the dependant visa policy of the immigration.

7. The 1^st applicant’s application has been repeatedly refused by the Director under the dependent visa policy.  The reasons for the refusal are that the Director (i) is not satisfied that the 2^nd applicant (as the sponsor) is able to support his living at a standard well above the subsistence level in Hong Kong (which is one of the stated requirements under the dependent visa policy that an applicant has to meet for the application to be considered favourably); (ii) does not accept that the applicants could rely on the various rights under Articles 37 and 39 of the Basic Law, Article 23 of the International Covenant on Civil and Political Rights (ICCPR), Article 10 of International Covenant on Economic, Social and Cultural Rights (ICESCR), and Articles 3 and 9 of the Convention of the Rights of Child, as these provisions are not applicable given the immigration reservation provided in section 11 of the Bill of Rights Ordinance (BORO); and (iii) is not satisfied that there are overwhelming compassionate grounds to treat this case as an exception to the policy.

8. As mentioned above, the applicants subsequently applied for leave to judicially review the Decisions in refusing the 1^st applicant’s application.

C.  THE DISCOVERY AND CROSS-EXAMINATION APPLICATIONS

C1.  Applicable principles

9. There is no dispute that the following principles apply in a discovery application in the context of judicial review:

(1)   The test for disclosure in judicial review is whether it appears to be necessary for disposing the critical issues fair and justly: Tweed Parades Commission for Northern Ireland,[1] at paragraph 3l, and Hong Kong White Book 2015, paragraph 24/3/3.

(2)   Discovery in judicial review proceeding is less common because of the duty of candour, but the court would be more, but not less, inclined to make the necessary orders where resolution of the critical issues requires that the court be provided with adequate disclosure in these proceedings: Chu Woan‑Chyi v Director of Immigration,[2] at paragraph 14(7), per Ma CJHC (as he then was).

10. Ms Li SC for the applicants had also fairly accepted at the hearing that the cross‑examination application stands and falls together with the discovery application, as it is the applicants’ position that intended cross‑examination is necessary as its intended scope is related to what Ms Li says to be issues in the judicial review, which are similarly relied on by the applicants to support the discovery application.

11. To this extent, it is also pertinent to note that cross‑examination of a deponent in judicial review will generally only be ordered in the most exceptional cases.  The reasons for this have been succinctly put by the Jackson MR in Bubb v Wandsworth LBC [2011] EWCA Civ 1285 at paragraph 24 as follows:

“I accept that it is, as a matter of principle, open to a judge, hearing a judicial review application, to permit one or more parties to adduce oral evidence. That was made clear by Lord Diplock in his speech in O’Reilly v Mackman [1983] 2 AC 237, 282H‑283A. However, for reasons of both principle and practice, such a course should only be taken in the most exceptional case. As its name suggests, judicial review involves a judge reviewing a decision, not making it; if the judge receives evidence so as to make fresh findings of fact for himself, he is likely to make his own decision rather than to review the original decision. Also, if judges regularly allow witnesses and cross‑examination in judicial review cases, the court time and legal costs involved in such cases will spiral.” (emphasisadded)

12. Bearing the above in mind, I now look at the present applications.

C2.  The discovery sought is not related to the critical issues of the judicial review

13. The order of discovery sought as set out in the summons is as follows:

(1)   The respondent do, within seven days hereof, disclose and provide true copies of the following documents and/or information where contained in a document or documents in respect of the immigration policy referred to in paragraphs 7, 8 and 9 of the Affirmation of Kwok Joon Fung Benson dated 23 September 2014 (the “Affirmation”):

(a)   all specific immigration purposes and the related policies for decision‑making by the respondent to permit an immigrant from outside Hong Kong to remain in Hong Kong or to have his stay in Hong Kong extended;

(b)   official or formal working versions of “various more specific immigration policies” as they are applied in day to day decision‑making by the Immigration Department in individual cases (such as the working version in the Immigration Service Standing Orders and the Director of Immigration’s departmental orders, instructions and guidelines); and

(c)   the Executive Council Notes evidencing the making of the overall immigration control policy, the visitor or transit policy, the residence as dependant policy, the extension of stay applications policy (including extension of stay as a visitor), the restrictive and stringent immigration policy that does not permit persons with no right of abode or right to land in Hong Kong to stay or to extend stay other than for a prescribed immigration purpose.

(2)   The respondent do, within seven days hereof, disclose on whether there has been any review(s) of the dependant visa policy after 2003 (paragraph 22 of the Affirmation states that the dependant policy was revised in 2003) and if so, the terms of the reviewed policy on each occasion, and to what extent the revised terms have been included in the Guidebook.

(3)   The respondent do, within seven days hereof, disclose and provide true copies of the following documents and/or information where contained in a document or documents in respect of the dependent visa policy referred to in paragraphs 16 to 20 and 25 of the Affirmation: statistics of dependent visa applications between 2001 and 2014, including the total number of applications, a breakdown of the total number in terms of dependency (husband, wife, parent, child), a breakdown of the total number in terms of success and failure, a breakdown of the total number in terms of Mainland resident applicant and non‑Mainland resident applicant, a breakdown of the total number in terms of nationalities of the applicant, and a breakdown of the total number in terms of the sponsor (HKSAR permanent resident/non‑HKSAR permanent resident, gender (male/female), and in the case of a spouse sponsor, husband/wife sponsor).

(4)   The respondent do, within seven days hereof, disclose and provide true copies of the following documents and/or information where contained in a document or documents in respect of the respondent’s exercise of the residual discretion referred to in paragraphs 40 to 42 of the Affirmation: guidelines or statement of practice in the exercise of this residual discretionary power, the number of times that this residual discretionary power has been exercised between 2001 and 2014, the context in which this residual discretionary power was exercised on each such occasion (including the application in connection with which this residual discretionary power was exercised, the humanitarian or compassionate ground recognized, the type of visa issued, the duration of the visa issued, and the conditions of the visa issued), and where there were cases in which, following the exercise of this residual discretionary power, a dependant visa was issued to an applicant, the specific circumstances or relevant “very strong justifiable reasons” (stated in paragraph 28 of the Affirmation) for exercising this residual discretionary power, including but not limited to whether there was a case where this residual discretionary power was exercised in favour of a foreign national applicant husband whose HKSAR permanent resident sponsor wife was not working due to her need to take care of their children.

14. The detail scope of the discovery sought has also been set out in the applicants’ solicitors’ letter dated 3 March 2015 before the summons was taken out.

15. In any view, the said scope and extent of the discovery sought is wide and substantial.  As said by Ms Li, the discovery relates to documents that could identify the general ambit of immigration policy as a whole generally and the dependent visa policy specifically, and the respective underlying rationale.

16. Ms Li has submitted at the beginning of the hearing that the said discovery application and the cross‑examination intended to be made are related to the applicants’ challenge that the dependent visa policy is irrational or unreasonable (in the public law sense).  As such, Ms Li further says the discovery sought is important, as it is only by knowing the policy’s full measure and ambit, together with its underpinning rationale, that it can be properly determined whether the dependent policy is irrational.  The discovery is (Ms Li continues) therefore clearly necessary and relevant to the determination of this crucial issue in the judicial review.

17. I am unable to accept Ms Li’s submissions.  My reasons are as follows.

18. What are the issues and the scope of those issues that need to be determined at the forthcoming judicial review must be ascertained from the grounds of the judicial review set out in the Amended Form 86.  The applicants are bound by them.

19. As far as I can discern from it, the applicants’ case in challenging the Decisions as set out in the Amended Form 86 are as follows:[3]

(1)   At a systemic level, the requirement under the dependant policy for the applicant to show financial dependency and the sponsor to show ability to support the applicant a living standard above subsistence level is unlawful and/or unreasonable because:

(a)   in formulating the said policy of dependency, the Director has failed to take into account the permanent residence rights of the sponsor and the applicant’s children (if any), as well as their rights to the family, marriage and/or best interest of the child as enshrined in the Basic Law, Bill of Rights (BOR), and various international covenants [see paragraph 38];

(b)   the said requirement does not apply to spouses coming from Mainland China on a One‑Way Permit, and thus there is discrimination against Hong Kong resident marrying a foreign national [see paragraph 39]; and

(c)   the requirement fails to take into account the family unit as whole, consisting of the applicant and sponsor, and the liberty of the family unit to make arrangements for its financial self‑sufficiency [see paragraph 40].

(2)   Specifically at the Decisions level, they are similarly unlawful and unreasonable as in the circumstances of the present case:

(a)   the Director had failed to take into account the 2^nd to 5^th applicants’ said rights under the Basic Law, BOR, international covenants and the common law [see paragraph 42];

(b)   the Director had treated the said requirement as an ineligible criterion, which had thus fettered her discretion [see paragraphs 43 and 46]; and

(c)   The Director had taken into account the irrelevant consideration that the 1^st applicant had been able to and thus could live elsewhere, but failed to take into account relevant consideration [see paragraphs 44 and 45].

(3)   The Decisions failed to give effect to the applicants’ legitimate expectation that the other applicants’ right of abode in Hong Kong, and their rights under the Basic Law, BOR, various international covenants and common law would be taken into account [see paragraphs 47‑103].

(4)   The decision process was procedurally unfair as:

(a)   the Director had not informed the 1^st applicant what would amount to supporting a standard of “well above the subsistence level” in the circumstances of their case, so that they could address the matter appropriately [see paragraph 104]; and

(b)   the decisions are unreasoned [see paragraph 105].

20. It can be seen from the above grounds that the challenges of the unlawfulness or unreasonableness of the dependent policy, both at the systemic level and the Decisions level, are premised on the contentions that:

(1)   The Director has failed to take into account the various asserted rights arising from the Basic Law, BOR, various international covenants and common law;

(2)   The specific requirement of an applicant to show financial dependency and the sponsor to show ability to support the applicant to a specific level of living standard is discriminatory in nature; and

(3)   The specific requirement fails to take into account the element of the family unit and its liberty to make self‑sufficient financial arrangements.

21. These issues of unlawfulness and irrationality are very specific ones.

22. The issues raised based on the failure to take into account the asserted legal rights are, as accepted by Ms Li, essentially questions of law and the discovery sought is not relevant to these questions.

23. The issues concerning the specific requirement of showing financial support to a requisite level of living standard being irrational are premised on arguments of discrimination and the alleged failure to take into account the family unit as a whole.  To me, there are clearly no arguments (and thus no issues) raised under these grounds in the Amended Form 86 to say that this requirement is irrational given the respective ambit of the immigration policy generally or the dependant policy specifically and/or its respective underlying rationale.

24. Ms Li refers me to paragraph 39 of the Amended Form 86, and submits that the applicants’ case under this is not only about discrimination but also a generalised challenge of the policy being irrational and unlawful.

25. Paragraph 39 (which is a long one) states as follows:

“39. The Applicants further submit that the Director of Immigration had erred in formulating an immigration policy that require HKSAR permanent residents to satisfy the guideline on eligibility criteria that applications for permission for a close relative, including a spouse, to take up residence in Hong Kong may be favourably considered if, among other criteria, the sponsoring HKSAR permanent resident is able to support the dependant’s living at a standard well above the subsistence level and provide the applicant with suitable accommodation. A policy for a close relative of a HKSAR permanent resident, including and particularly a spouse, to take up residence in Hong Kong with that HKSAR permanent resident must have or be taken to have its principal objective the family reunion giving full effect of the constitutional entitlement of the HKSAR permanent resident member to enjoy his or her right of abode in Hong Kong and to live his or her regular and ordered life in Hong Kong. (Historically, the said immigration policy was expressed in terms stating that ‘foreigners may be admitted into Hong Kong for the purpose of family reunion, that is, joining residents in Hong Kong as dependants’; see Immigration Department, Annual Reports 1998/2999, 1999/2000, 2000/2001 and 2001/2002.) It is the vehicle for giving effect to the rights of HKSAR permanent residents guaranteed by Article 37 of the Basic Law. The Director, by formulating the current immigration policy that restricts favourable consideration to those HKSAR permanent residents who can meet the criteria at the application stage of demonstrating financial capability to support and ability to accommodate the applicant, has resulted in the following discriminatory effects amongst HKSAR permanent residents in a marital relationship with a foreign national, notwithstanding the freedom of Hong Kong residents to marry and their right to raise their family freely, guaranteed under Article 37 of the Basic Law.

… [where the various alleged discriminatory scenarios are set out in bullet‑point form]” (emphasis added)

26. Properly read (in particular of those parts as italicised and underlined), this challenge stated in this paragraph is clearly premised on arguments of discrimination and the inconsistency of treatments between cases involving foreign applicants and mainland spousal applicants.  The challenge is not based on any suggestions that this policy requirement is unlawful or unreasonable because of the policy’s own ambit or underlying rationale.

27. In this respect, I further accept Mr Abraham Chan’s submissions made for the Director at paragraphs 15‑17 of his skeleton that the discovery sought does not relate to any of the specific issues arising from the grounds stated in the Amended Form 86.

28. Ms Li has also referred me to a number of paragraphs[4] of Mr Kowk’s affirmations to say that Mr Kwok (for the Director) has made various references to the immigration policy in general and that there was a revision of the dependant policy in 2003.  Leading counsel then contends that these have put the general ambit of the immigration policy (generally or specially the dependent visa policy) and its underlying rationale in issues.  She also says there must also be discovery as to whether there was in fact a revision of the dependant visa policy in 2003.

29. I am also unable to agree.

30. As far as I read them, the references to the general meaning of the dependent policy and its rationale are made as a general background and to explain that the dependant policy is not a family reunion policy.

31. In the absence of any credible basis (other than mere assertions) to suggest that Mr Kwok has been less candid in deposing to these matters, these references do not then put in issues in the judicial review the ambit of immigration policy generally or specifically the dependant policy, and the rationale respectively underlying them.

32. In support of her submissions, Ms Li has also focused on paragraph 22 of Mr Kwok’s Affirmation, which says as follows:

“22. Whilst one of the consequences of the implementation of the dependant policy is the bringing together of family member, it is not, however, a policy for family reunion. The key issue to be determined under the dependant policy is one of dependency and not simply whether there exists a tie of blood or marriage. In the Annual Reports of ImmD for the years from 1998 to 2002, it was stated in general terms that ‘Under the immigration policy, foreigners may be admitted into Hong Kong for the purpose of family reunion, that is, joining residents in Hong Kong as dependants.’. The Annual Reports were intended to give an overview of ImmD’s immigration cases to the public. The use of the phrase ‘for the purpose of family reunion’ in the context of the Annual Reports did not mean that the dependant policy was or is a family reunion policy or that family reunion was a criterion or purpose for one to join a Hong Kong resident as dependant under the then dependant policy. While the dependant policy will enable family reunion as a consequence, its purpose, however, is to allow the above categories of close family members to remain when they require the care and financial support of their sponsors in Hong Kong. As such, dependency is an essential element of the policy. In this connection, it is pertinent to note paragraphs 19 to 33 of the judgment of Hartmann J (as he then was) in Christian Bulao Palmis v Director of Immigration (HCAL 2104/2001). Hartmann J accepted at paragraph 28, as remains the case, that although the dependant policy is not a scheme of family reunion, it is nevertheless founded on humanitarian principles. It is a policy that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family, to reside here with that member. Indeed, it was also stated in the same paragraphs of the Annual Reports that ‘Persons may be allowed to remain in Hong Kong as dependants on the condition that they are supported and provided with accommodation by their sponsors and that they will not be a charge on public funds.’ In any event, the dependent policy was revised in July 2003, after which, the term ‘family reunion’ no longer appears in the subsequent Annual Reports of ImmD. As mentioned in paragraphs 9 and 21 above, the immigration policy is subject to review so as to ensure that it will continue to meet Hong Kong’s needs and help attract the people with right talent and skills to come to Hong Kong by providing them with the choice of bringing in their dependants whilst minimizing the associated immigration and security risks. The dependant visa applications in the present case were submitted by the 1^st Applicant in 2011 and 2013, which were assessed in accordance with the prevailing dependant policy. Any obsolete or inaccurate descriptions related to the dependant policy in the previous Annual Reports of 1998‑2002 must be irrelevant to the present case. There are now produced and shown to me copies of the relevant extracts from ImmD’s Annual Reports of 1998/1999, 1999/2000, 2000/2001 and 2001/2001 marked as Exhibit ‘KJFB‑5’ and a copy of the Legislative Council Brief on the ‘Immigration Policy on Entry of Dependants’ dated 30 June 2003 marked as Exhibit ‘KJFB‑6’.” (emphasis added)

33. Insofar as the part about the revision of the policy in 2003 stated in this paragraph (as underlined) is concerned, it is no more than stating what is objectively appearing on the relevant Annual Reports.  It must be noted that it is Mr Kowk’s evidence (and thus the Director’s case) that the dependant has always been a policy of dependence but not of family reunion before or after 2003, and that the references in the Annual Reports before 2003 to the phrase “for the purpose of family reunion” were only to refer to the effect of the dependant policy but not as the policy’s criterion.  All the relevant Annual Reports issued before and after 2003 have already been exhibited as evidence.  It is thus a matter of objective analysis based on these documents as to whether there has been any revision of that policy.  Further, it must be noted that it is not the applicants’ case that the Director is not entitled to revise the relevant policy.  It is also not their case that they had somehow relied on anything stated in the Annual Reports issued before 2003 when the 1^st applicant made his application to the Director in April 2011.  In the premises, the question of whether there was in fact a revision of the policy in 2003 is not a relevant issue in the judicial review.  This therefore does not then put into issue for the discovery of documents to show “whether there has been any review(s) of the dependent visa policy after 2003 (…) and if so, the terms of the reviewed policy on each occasion, and to what extent the revised terms have been included in the Guidebook” as requested in the summons.

34. Insofar as Ms Li is suggesting that it is part of the applicants’ case that the dependant policy has been and (as a matter of principle) should be a policy of family reunion, even if this is in fact an issue arising from the grounds stated in the Amended Form 86 (which I am not convinced this is so for the above reasons), the resolution of this can be adequately dealt with by legal arguments based on the various Annual Reports and LegCo briefs already put in evidence.  The discovery sought in the above extensive terms is in my view not necessary for the resolution of this issue.

35. In the premises, for all these reasons, I am not satisfied that the discovery sought is necessary for the fair and just resolution of any of the critical issues arising from the Amended Form 86.  In my view, the application is a fishing expedition and speculative in nature.  On this basis, the application for discovery should be rejected.

C3.   Delay in the making of the discovery application

36. Further, the application is made late.

37. The applicants’ applications for discovery and cross‑examination are said to arise from matters set out in Mr Kwok’s affirmation.  As mentioned above, Mr Kwok’s affirmation was filed in September 2014, some six to seven months ago.  If discovery and cross‑examination are indeed warranted from this affirmation as contended by the applicants, they should have reasonably made the applications sometime in November or latest December 2014.  However, even the pre‑summons requests for discovery were apparently only first made by the applicants’ solicitors in the letter dated 3 March 2015. These must be further viewed against the context that on 25 November 2014, the judicial review was already fixed to be heard in May 2015.  There are no good reasons why the applicants have to wait in all these circumstances until March 2015 (ie, six months after the filing of Mr Kwok’s affirmation) to take out the present applications:

(1)   The applicants appear to provide a justification for the delay in saying that “it has been mentioned during the hearing on 8 December 2014 [for another set of judicial review cases under HCAL 13, 45 and 56/2014 which raised some similar grounds to the present judicial review] that the present proceedings may be a more proper venue for the discovery application”.[5] This could not be a good reason to explain and justify the delay.  Even if the applicants’ lawyers (who also represented the applicants in those other judicial review cases) only formed the view in December 2014 that a discovery application should more justifiably be made in this judicial review, that should have been taken out immediately, in particular knowing by then that the substantive hearing is to be held in May 2015.  This therefore could not amount to a good reason for only taking out the present application in March 2015.

(2)   It is also said[6] that there is actually “no issue of delay” as the requests were made “more than 2 months before the substantive hearing”.  This cannot be right.  As submitted by Mr Chan, whether there is any delay should be gauged by reference to the time when the grounds for requests first reasonably arose, that is sometime in October or November 2014.  Although it may be relevant to the question of whether there is any prejudice caused by the application after the applicants can reasonably explain the delay, this statement cannot be a good explanation for the delay itself.  An applicant must first provide good reasons for the delay before the court would consider the question of prejudice in deciding whether to allow the discovery application or not (even if the application is related to the critical issues arising the judicial review).

38. In the premises, I am of the view that there has been unjustified delay in these applications.

39. As such, even if (which I do not accept) the discovery sought is related to any of the critical issues arising in this judicial review, it could only be of marginal or peripheral relevance for the reasons I have set out above.  In the circumstances, I would also have refused the application in light of its marginal relevance coupled with the delay.

C4.  The application for cross‑examination

40. As fairly accepted by Ms Li, the intended cross‑examination is for the purpose of addressing the purported issues based on which discovery is sought.  Since I have concluded above that those issues do not arise from the Amended Form 86, for the same reasons, it follows that the application for leave to cross‑examine Mr Kwok must also be refused.

D.  CONCLUSION

41. For all the above reasons, the applications were dismissed.