BI v. DIRECTOR OF IMMIGRATION

CACV 9/2015,
CACV 103/2015 and
CACV 134/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 9 OF 2015

(ON APPEAL FROM HCAL 174 OF 2013)

_______________

CACV 103/2015 & 134/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 103 OF 2015 & 134 OF 2015

(ON APPEAL FROM HCAL 105 OF 2014)

_______________

_______________

(Heard together)

________________________

J U D G M E N T

________________________

The court:

A.   Appeals

1. There are three appeals brought before this Court by the Director of Immigration (‘”the Director”), namely, CACV 9/2015, CACV 103/2015 and CACV 134/2015.  CACV 9/2015 arises from Zervos J’s judgment in HACL 174/2013 handed down on 10 December 2014[1] (“BI Judgment”); CACV 103/2015 and CACV 134/2015, Chow J’s judgment in HCAL 105/2014 handed down on 14 April 2015[2] (“BH Judgment”).  In both Judgments, the learned Judges quashed the respective decisions of the Director in refusing the applications of BI and BH for a dependant visa and directed the Director to reconsider the applications in accordance with their judgments.

2. CACV 9/2015 and CACV 103/2015 concern the proper construction of the Director’s policy for applications for dependant visa (“the Dependant Policy”).  They also raise the important question of whether the Director has a public law duty to take into account the family circumstances of an applicant (“DV Applicant”) in considering his dependant visa application (“DV Application”).

3. CACV 134/2015 concerns Chow J’s refusal to set aside the ex parte leave granted to BH to apply for judicial review on the ground of delay.  It raises a procedural point of general importance, namely, when and how should the court deal with an application to set aside ex parte leave on the grounds of delay in judicial reviews.

4. The background leading to HCAL 174/2013 and HCAL 105/2014 may be summarized as follows.

B.   Background

B1.  The Dependant Policy

5. The Dependant Policy is contained in the Guidebook for entry for Residence as Dependents in Hong Kong issued by the Director (“the Guidebook”).  In Section II on Eligibility Criteria, the Guidebook relevantly provides :

“ 3. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

(a) his/her spouse;

(b) his/her unmarried dependent child under the age of 18; and

(c) his/her parent aged 60 or above.

…

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

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

(b) there is no known record to the detriment of the applicant [“the No Record Requirement”]; and

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

6. Under Part VI on Other Information, the Guidebook goes on to provide:

“ 15. In general, unless a person has the right of abode to land in the HKSAR, he/she requires a visa/entry permit to take up residence as dependant in the HKSAR. While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit. It should be noted that the eligibility criteria may be subject to change from time to time.”

7. In applying the Dependant Policy, the Director has always taken each of the conditions in Paragraph 3 (a), (b) and (c) and Paragraph 5(a), (b) and (c) as eligibility criteria which a DV Applicant must satisfy.  If he does not, he falls outside the Dependant Policy.  The Director may still, as a matter of practice but not legal obligation, consider the DV Applicant’s entire circumstances to see if there are any strong compelling factors or exceptional humanitarian or compassionate grounds to justify the exercise of his residual discretion to depart from the Dependant Policy and allow his DV Application.

8. That was how the Director approached and determined the respective DV Applications by BI and BH.

B2.  BI’s DV Application

B2.1  BI and his family

9. BI was born in Pakistan on 5 June 1976.  He had lived in Pakistan since birth until he came to Hong Kong in 2002.

10. BI’s wife (“AB”) was born in Hong Kong on 11 August 1982.  When she was just a couple of months old, AB returned to Pakistan with her parents.  AB has the right to land in Hong Kong, which, as will be seen shortly, she exercised when she returned to live in Hong Kong in April 2008.

11. BI and AB were married in Pakistan on 1 January 2000.  They have four children. The first three children were all born in Pakistan in November 2000, January 2002 and September 2003 respectively.  The youngest daughter was born in Hong Kong in April 2009.  She has not left Hong Kong since birth.

12. BI and AB had both previously married.  BI has two children from his previous marriage.  AB has none.  BI’s first wife died in 2005 and their children are taken care of by the grandparents in Pakistan.

B2.2  His entry into Hong Kong and efforts made to stay here

13. BI first entered Hong Kong on 6 June 2002 on the strength of a Pakistani passport.  He claimed that he left Pakistan because of the death threats he received after a dispute with his clansmen in 2001 in which his brother killed a person.  Thereafter BI and his brother had received death threats.  His brother was later murdered on 21 November 2004.

14. Between 6 June 2002 and 11 February 2003, BI had been travelling between Hong Kong and the Mainland and had returned to Pakistan twice.  He last entered Hong Kong on 11 February 2003 with a Pakistani passport.  He was granted permission to stay as a visitor until 13 February 2003.  But he did not leave because of his fear of returning to Pakistan and overstayed since 14 February 2003.  According to BI’s family members in Pakistan, as late as October 2013, those responsible for his brother’s death were still looking for BI.

15. On 6 August 2005, BI was intercepted and arrested by the police for the offences of “using an identity care relating to another person” and “breach of condition of stay” by overstaying and by taking up unapproved employment.  On 6 September 2005, he was convicted of those offences and sentenced to 8 months’ imprisonment.  As a result of the convictions, a notice of deportation was served on BI on 7 October 2005.  He then submitted grounds of objection to deportation, reiterating his fear of being killed if he were to return to Pakistan.  On 18 November 2005, BI made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  BI was discharged from prison on 14 January 2006 but detained pending a decision to deport him. On 2 March 2006, he was released on recognizance.

16. While his CAT claim was under consideration, a number of legal challenges were raised in this area of the law.  That prolonged the processing of his CAT claim.

B2.3  AB came to live in Hong Kong

17. In the meantime, in February 2007, AB, whilst in Pakistan, applied for verification of her Hong Kong permanent resident status on the grounds that she was born in Hong Kong.  On 22 April 2008, AB returned to Hong Kong so that she could live with BI and other members of the family who were here.  Their three children who were born in Pakistan have remained there and are taken care of by BI’s parents.  On 16 June 2006, AB was informed that her application for permanent residency could not be accepted because of her period of absence from Hong Kong but she had the right to land and reside in Hong Kong because of her previous permanent resident status. Since her return to Hong Kong, AB has established a mobile telephone company which is profitable enough to support her and the family.

B2.4  Refusal of his DV Application

18. On 7 January 2011, BI applied to remain in Hong Kong as a dependent of his wife, AB, now a resident of Hong Kong.  He also supported his application on the ground that he and AB had a child who was born in Hong Kong and living with them.

19. While his DV Application was pending, BI’s CAT claim was refused on 26 April 2012, as was his petition against the refusal decision on 1 June 2012.  When the Director gave him notice that consideration was given to deport him on 25 September 2012, BI objected and stated that as AB and their youngest daughter were living with him and that they were both born in Hong Kong, he wanted to live with them here.

20. On 26 July 2012, the Director refused BI’s DV Application on the grounds that he did not meet the No Record Requirement, notwithstanding that he found that BI’s marriage was genuine and that AB was financially capable of supporting him.  BI then requested for a reconsideration of his application, which was refused by the Director on 14 February 2013 because he could not find sufficient grounds justifying a reversal of the previous decision.

B2.5  Leave for judicial review out of time

21. On 5 December 2013, BI sought leave to apply for judicial review against the Director’s decisions out of time.  Leave was granted on 13 January 2014.

B3.  BH’s DV Application

22. BH was born in Pakistan in 1969.[3]

B3.1  His entries into Hong Kong

23. According to immigration records, BH entered into Hong Kong in 1992, 1994 and 2002 on the strength of three different Pakistani passports under three different identities with three different dates of birth (“ID1”, “ID2” and “ID3” respectively[4]).

24. On 6 May 1992, BH entered Hong Kong using ID1.[5] He was permitted to stay as a visitor until 6 August 1992.  However he had overstayed until he was arrested by the police on 6 July 1993 for the suspected offences of “assault occasioning actual bodily harm” and “breach of condition of stay”.  On 27 August 1993, he was convicted of the offence of “breach of condition of stay” and was fined HK$2,000.00.[6]  On 13 September 1993, he was repatriated to Pakistan.

25. On 27 March 1994, BH entered Hong Kong using ID2.[7] He was permitted to stay until 27 April 1994, later extended to 2 May 1994.  He again overstayed until he surrendered to the Immigration Department on 11 July 1994.  In a cautioned interview by an officer of the Immigration Department on 14 July 1994, BH admitted that he had previously entered Hong Kong using the false ID1 in 1992.  He claimed that his true identity was ID2 and his date of birth was 10 February 1972.  He was subsequently prosecuted for the offences of “breach of condition of stay” and “making a false representation to an immigrant assistant” in relation to the use of ID1 in 1992.  On 28 July 1994, he was convicted of both offences and sentenced to 2 months’ imprisonment suspended for 2 years for the first offence and 6 months’ imprisonment suspended for 2 years for the second offence, to run concurrently.  He was repatriated to Pakistan on 8 August 1994.

26. On 16 August 2002, BH came to Hong Kong again.  This time he came from the Mainland using ID3.[8] He was permitted to remain as a visitor until 30 August 2002. He left Hong Kong on 22 August 2002.  Between August 2002 and March 2003, he made a total of 23 trips between Hong Kong and the Mainland using ID3.  He last entered into Hong Kong on 30 March 2003 and was permitted to remain as a visitor until 13 April 2003.  He had overstayed until he was arrested by the police on 8 June 2008 as a suspected overstayer.  He was then referred to the Immigration Department for investigation on 13 June 2008.

27. On 25 June 2008, while he was detained in the Castle Peak Bay Immigration Centre, BH lodged a CAT claim.[9]

28. In a cautioned interview by an officer of the Immigration Department on 4 July 2008, BH claimed that his true identity was ID3 and admitted to have overstayed since 14 April 2003.  He further stated that he did not disclose ID3 as his true identity when he was previously interviewed on 14 July 1994 because, had he done so, the immigration officer would know that he was using a false identity.  And it might complicate matters and delay his repatriation to Pakistan on that occasion.

29. On 30 July 2008, BH was released on recognizance.

30. On 30 May 2011, BH was charged with the offence of “breach of condition of stay”. The case had been repeatedly adjourned pending the outcome of his CAT claim. On 27 July 2012, his CAT claim was rejected by the Director, as was his petition against the Director’s rejection on 5 September 2012.

31. On 19 March 2013, BH’s solicitors wrote to the Director requesting him to assess his risk of being subjected to torture, etc upon deportation from Hong Kong. The assessment was still on-going at the time when the case was heard by Chow J.

B3.2  BH’s family

32. BH is married to S.

33. S was born in India in 1966.  She married her first husband in Hong Kong on 19 November 1997.  They had 4 children, born in 1990, 1991, 1997 and 1999 respectively.  S became a Hong Kong permanent resident on 15 January 1998.  On 5 February 2005, S’s first husband passed away.  Her two younger children are living in India under the care of relatives while the two elder daughters are living in Hong Kong with her.

34. BH met S in or around March 2005.  They began cohabiting in or around 2007.  They married on 21 February 2010.

B3.3  Refusal of his DV Application

35. On 17 December 2010, BH made his DV Application with S as his sponsor. After a series of meetings and supply of further information, an immigration officer carried out an assessment of his DV Application in December 2012.  His recommendation to refuse the Application and the reasoning in support were set out in an internal minute dated 14 December 2013.  That minute referred to BH’s overstaying in 1992-1993, 1994 and since 2003; his use of false ID1 and ID2 to gain entry into Hong Kong in 1992 and 1994; and his convictions for the relevant offences in 1993 and 1994 as the record to BH’s detriment.

36. By a letter dated 2 January 2013, the Director informed BH that his DV Application was rejected on the grounds that he failed to meet the No Record Requirement and that there was no sufficient justification to treat his DV Application as an exception.

37. On 6 January 2013, S’s two elder daughters wrote to the Chief Executive requesting him to grant BH’s DV Application on humanitarian grounds.  The Director replied to them on behalf of the Chief Executive on 19 February 2013, effectively declining their request.

B3.4  Leave for judicial review out of time

38. On 27 August 2014, BH applied for leave to judicially review the Director’s refusal out of time in HCAL 105/2014.  On 16 September 2014, Chow J granted leave to BH to apply for judicial review on consideration of papers only, without prejudice to the Director’s ability to contend at the substantive hearing that leave for making the application and/or any relief sought should not be granted on the ground of delay.

C.   Judgments below

C1.  Grounds of judicial review

39. BI and BH raised substantially similar grounds of challenge against the Director’s decisions to refuse their respective DV Applications :

(1) The Director misapplied the Dependant Policy in construing the No Record Requirement as a ground for refusal rather than as a matter which was relevant to a decision whether to grant, or refuse, an application for a dependant visa.

(2) The Director had unlawfully fettered his discretion and/or misapplied the Dependant Policy by refusing their respective applications on the grounds that they did not satisfy the No Record Requirement.

(3) The Director failed to take into account their family circumstances and the interests of their family members who are residing in Hong Kong.

(4) The Director acted in a procedurally unfair manner in dealing with their respective applications.

(5) The Director’s decisions to refuse their respective applications were unreasonable in the public law sense.

40. In the proceedings below, Ground 2 was effectively treated as the same as Ground 1.[10]

C2.  BI Judgment

41. Zervos J held that the Director had misapplied the Dependant Policy in construing the No Record Requirement.  He said :

“ 64. On my interpretation of the two paragraphs in the Guidebook, I consider the factors in paragraphs 3 to be specific eligibility criteria where the factors in paragraphs 5 to be specific eligibility considerations. The wording of paragraph 5 is unusual. The opening statement as a qualification to the three factors listed is important. It is stated that “An application for admission of a dependant may be favourably considered if:”. It says no more [than] that if the three factors are satisfied, the decision maker may be favourably disposed to the application. It leaves open the possibility that the decision maker may not favourably consider an application even if the three listed factors are satisfied. It also does not eliminate the possibility of a decision maker favourably considering an application outside the terms of this paragraph or doing so even if some or all of the factors listed are not satisfied. In my view it provides no more than three factors, albeit important ones, that if satisfied may lead to a favourable consideration of the application. In other words, to the application being granted. It is not expressed in terms that the three factors must be satisfied for the grant of the application or that if any one of them is not satisfied the application will not be granted. That is why in my view they are factors, and obviously important ones, to be considered when deciding whether or not an application for admission of a dependant should be granted. Upon an applicant coming within one of the three categories of paragraph 3, there appears to be an implicit guarantee that if the three factors in paragraph 5 are satisfied the application is likely to be granted. However that is all that it is, and an application may be refused even in the face of these factors being satisfied or because of other factors that have been taken into account. I should stress that I am not seeking to detract from the importance of these factors because clearly they have a significant bearing when deciding whether or not an applicant should be allowed to enter and reside in Hong Kong as a dependant. The issue is how the policy should be interpreted and whether it has been properly applied. In my view, it has not been correctly interpreted and hence not properly applied.”

42. On BI’s family circumstances, Zervos J said :[11]

“ 66. I should also add that whilst attention has been focused on the right to family life in immigration cases, it nevertheless remains that the affect or impact of a decision on a family and its members may be a relevant consideration that should be taken into account when making a particular decision. There does not have to be a recognized right to family life for family considerations to be taken into account where it is a relevant and important factor in coming to the decision. In my view, in the circumstances of this case, it was appropriate to consider the family circumstances of the applicant and the impact the decision would have on his wife and child who are both residents of Hong Kong. To some extent that was acknowledged in the internal minutes of the Immigration Department even though the family circumstances of the applicant were treated dismissively and therefore not appropriately considered. The family circumstances of the applicant were a relevant consideration that should have been taken into account.”

43. Then significantly, the learned Judge went on to say :

“ 73. Mr Chan argued that the Director was not bound to have regard to the applicant’s family circumstances or indeed to any compassionate or humanitarian circumstances and it was open to him to decline to do so, or to have regard to such considerations only to the extent that he felt appropriate in the exercise of his discretion. I do not accept that as a proposition or to be the case.”

44. The Judge then dismissed the Director’s alternative case that he had in fact considered BI’s family circumstances :

“ 76. From my assessment of the internal memoranda, that whilst these matters were mentioned, they were only given superficial, if any, regard.

  77. I find that the family circumstances were considered to be factors to be taken into account but were not treated reasonably in the overall circumstances of the case. …”

45. Finally, the Judge held that BH’s family circumstances had not been not appropriately or properly considered, rendering the Director’s refusal of his application unreasonable and defective in the public law sense.[12]

C2.  BH Judgment

C2.1  On substantive merits

46. Chow J also held that the No Record Requirement was an important but not conclusive consideration in the Director’s exercise of his discretion to grant a dependant visa.[13] However he saw no reason why the Director could not adopt a policy to the effect that the No Record Requirement was to be treated as a necessary condition for an application for a dependant visa.  But to achieve that result, much clearer words should be used in Paragraph 5(b) of the Guidebook.[14]

47. On whether the Director is obliged to take into account a DV Applicant’s family circumstances, Chow J dealt with the question on principle.  He said :

“ 60. First, it is well established in this jurisdiction that “the legislature has chosen to entrust the high responsibility for and discretions on immigration matters to the Director of Immigration. It is an important responsibility, given Hong Kong’s unique circumstances, and the discretions conferred are wide. As is expected from any good decision-maker who is vested with wide discretions, the Director has formulated many policies and guidelines regarding the exercise of his discretions. The courts have therefore said repeatedly that they will not lightly interfere with the Director’s policies or exercise of discretion. It represents not only a specific application of the general principle of public law that a court in its public law jurisdiction only exercises a supervisory jurisdiction, and does not sit as an appellate court from the decision of the decision-maker. But it also represents an acknowledgment on the part of the courts that the legislature, in its wisdom, has entrusted the Director with the unenviable task of manning Hong Kong’s immigration controls”: Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraph 20 per Andrew Cheung J (as he then was).

  61. This approach is entirely consistent with Article 154(2) of the Basic Law, which provides that “[t]he Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions”. For the purpose of this article, it is clear that the reference to the Government of the Hong Kong Special Administration Region is a reference to the executive authorities of the HKSAR (ie the Director in the present context): see Article 59 of the Basic Law.

  62. Second, although the Director’s discretion is wide and general, the local jurisprudence establishes that the Director’s exercise of his discretion regarding entry into, stay in and departure from Hong Kong is subject to the supervisory jurisdiction of the court in the following (non-exhaustive) respects:-

(1)  where any constitutional rights are engaged which are not excepted by section 11 of the Hong Kong Bill of Rights Ordinance/the Immigration Reservation to the ICCPR: see for example Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743;

(2)  where the Director has adopted policies or practices regarding the exercise of his discretion, in which case public law would require the Director to act properly in accordance with such policies or practices: see for example C and Others v Director of Immigration (2013) 16 HKCFAR 280, at paragraphs 42 and 56 per Tang PJ, and paragraphs 73 to 74 and 98 per Sir Anthony Mason NPJ; and Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 (which should be understood as having been decided on the basis of the Government having adopted a policy not to deport a person to a country where that person’s claim that he would be subjected to torture was well-founded, see the explanation given by Sir Anthony Mason NPJ at paragraph 84 of his judgment in C and Others v Director of Immigration);

(3)  where the Director’s decision is unreasonable in the Wednesbury sense: see Aguilar Joenalyn Elmedorial v Director of Immigration, FAMV 47/2013 (28 January 2014).

  63. Third, “in proceedings for judicial review, the ground of failure to take into account a relevant consideration can only be made out if the decision-maker has failed to take into account a consideration which he is bound to take into account in making that decision”: see Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at 339A-B per Litton PJ, citing with approval the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39. Also in Lau Kong Yung v Director of Immigration, at 332G-H, Li CJ stated that “for impugning a decision one is concerned with what the decision maker is bound to consider”.

  64. Fourth, it is important to distinguish between three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had, (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had, and (iii) those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037. In relation to the third category of consideration, what is and what is not a relevant consideration for a public decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide: R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131 per Laws JA.

  65. Fifth, in relation to the third category of consideration and to the extent that the Director has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for the Director, not for the court: see Qamar Zaman v Department of Immigration, HCAL 145/2002 (13 June 2003), at paragraphs 17 and 18 per Hartmann J (as he then was).

  66. Sixth, the Director is under no duty and hence not bound to take humanitarian considerations into account: see Lau Kong Yung v Director of Immigration, at 332G-H per Li CJ.

  67. Seventh, it must be borne in mind that the Policy is not a policy for family reunion: Murali Duraisamy v Director of Immigration, HCAL 152/2004 (2 November 2005), at paragraph 20 per Andrew Cheung J (as he then was).

  68. The Director’s power to grant a dependant visa to any particular applicant is derived from the general powers conferred on him by the Immigration Ordinance to exercise immigration control, including in particular granting permission to land and remain, and imposing conditions of stay, in Hong Kong. The legislature does not, expressly or impliedly, require the Director to have regard to the applicant’s family circumstances when deciding whether to grant, or refuse to grant, any permission to remain in Hong Kong. It follows that the applicant’s family circumstances can only come in under the third category of consideration mentioned above, ie those to which the Director may have regard if, in his judgment and discretion, he thinks it right to do so.”

48. Chow J therefore disagreed with Zervos J’s judgment if it were to be read as supporting the proposition that the Director has a general public law duty to take into account a DV Applicant’s family circumstances in the proper exercise of his discretion whether to grant a dependant visa.[15]  Chow J then held that it is generally a matter for the Director to decide what, if any, weight should be given to the applicant’s family circumstances, or any aspect of the applicant’s family circumstances, when deciding whether to grant a dependant visa.  He therefore did not consider that the Director was under any public law duty to consider the interests of BH’s wife and his two stepdaughters.[16]

49. The Judge also rejected BI’s complaint that the Director had acted in a procedurally unfair manner[17] and that the Director’s refusal of his application was unreasonable in the public law sense.[18]

C2.2  On the Director’s setting aside application

50. As rightly noted by Chow J, there was substantial delay of some 16 months when BH applied for leave for judicial review.  When he granted leave, Chow J did so expressly without prejudice to the Director’s ability to contend at the substantive hearing that leave should not be granted on the grounds of delay. After referring to Order 53, rule 4(1) of the Rules of the High Court[19] and section 21K(6) of the High Court Ordinance,[20] and R v Criminal Injuries Compensation Board, ex p A,[21] Chow J said that the more preferable course to take would be to defer the setting aside application to the substantive hearing.[22]

51. However, it did not matter because Mr Chang, for the Director did make an oral application to set aside leave at the substantive hearing and Mr Dykes did not object to the application being made in that manner.[23]  The Judge then considered the length of the delay; the reasons for the delay; the merits of the application and the public interest in having the points of law arising in the application resolved by the court.  Although the delay was substantial[24] and he was not impressed by the lack of sufficient reasons for the delay,[25] the Judge took the view that the merits of BH’s application and the public interests involved in having the issue of the proper interpretation of the Dependant Policy resolved by the court outweighed the substantial delay in making the application.  He therefore refused to set aside the ex parte leave on the grounds of delay.[26]

D.   Main issues on appeal

52. In both CACV 9/2015 and CACV 103/2015, the Director contended that the Judges below erred in misconstruing the Dependant Policy.  In CACV 9/2015, the Director further contended that Zervos J erred in holding that BI’s family circumstances were relevant circumstances that the Director had to take into account in considering his application for a dependant visa.  In CACV 103/2015, BH contended by way of a respondent’s notice that Chow J erred in holding that the Director had no public law duty to consider his family circumstances in processing his application for a dependant visa.

53. In opening the appeals, Mr Benjamin Yu, SC (appearing with Mr Abraham Chan in CACV 9/2015 and Mr Jonathan Chang in CACV 103 & 134/2015) for the Director very helpfully summarized four main issues arising from the grounds of appeal and the parties’ contentions:

(1) What is the proper construction of the Dependant Policy?  In particular, is the No Record Requirement a criterion which a DV Applicant must satisfy, failing which the Director may refuse his DV Application on that ground alone?

(2) In considering a DV Application for a dependant visa, is the Director required as a matter of law to consider the family circumstances of the DV Applicant?

(3) Was the Director’s decisions to refuse BI’s and BH’s DV Applications improper or unreasonable?

(4) Should the ex parte leave granted to BH for judicial review be set aside on the grounds of delay?

54. We will discuss them in turn below shortly.  However before we do so, we need to digress to dispose of one particular point which permeates the entire submissions of Mr Philip Dykes, SC (appearing with Mr PY Lo) for BI and BH.

E.   Proper characterization of the Dependant Policy

55. As a central, common theme running through his entire submissions, Mr Dykes repeatedly characterized the Dependant Policy as effectively a general open-ended family reunion policy.  For example, in the context of its proper construction, he submitted that the Dependant Policy is driven by family reunion considerations.  Thus the No Record Requirement is not a necessary condition.  And in the context of the Director’s consideration of a DV Applicant’s family circumstances, since the Dependant Policy is a general open-ended family reunion policy, Mr Dykes reasoned, the Director is duty bound to do so.

56. With the greatest respect, this characterization of the Dependant Policy as a general open-ended family reunion policy is simply incorrect.  It is flatly contradicted by the undisputed evidence contained in the affirmation of Mr Wilson Wong Mo Cheong, Principal Immigration Officer of the Immigration Department filed on 24 November 2014 in HCAL 105/2014 (“Mr Wong’s Affirmation”).  Mr Wong stated categorically the Director’s position thus :

“ 20. At all material times, there has been no established guideline or policy that caters for a spouse, parent or relative of a Hong Kong resident or Hong Kong permanent resident, whether they are Chinese or foreign nationals, to enter or stay in Hong Kong for the purpose of family reunion. Accordingly, the situation falls to be determined by direct reference to Hong Kong’s overall strict immigration policy.

  21. For reasons stated above, understandably, applications to remain in Hong Kong for family reunion, like other applications for permission to enter or stay in Hong Kong for immigration purposes other than those under the established guidelines and policies abovementioned, are generally refused by the Director in line with the overall restrictive and stringent immigration control policy.”

57. The following points in support of the Director’s position emerge from Mr Wong’s Affirmation.

58. First, while Hong Kong is a magnet for migration,[27] and many people find it attractive to come to reside and work here, its capacity to accommodate new migrants is exceedingly limited.  Dictated by physical and social-economic constraints such as Hong Kong’s small geographical size, huge population, relatively high per capita income and living standards, living and job market conditions, the Director has always adopted very restrictive and stringent immigration policies and practices.[28]

59. Second, as an overall stringent immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission.  Within the confines of that board policy, the Director has formulated different immigration policies which allow a limited number of persons in different categories to come to Hong Kong for immigration purposes, such as working, studying, establishing or joining in any business, taking up residence as dependants or staying as a visitor (save for the applicable visa-free period for visitors).[29] Within the overall scheme of the general stringent immigration policy, it is also the policy of the Director to ensure that Hong Kong will attract quality immigrants, that is, people with the right talent and skills to come to Hong Kong.[30]  This is reflected in the Director’s policy pertaining to :

(1) Employment as Professionals or Entry for Investment under the General Employment Policy;

(2) Immigration Arrangements for Non-local Graduates;

(3) Employment under the Admission Scheme for Mainland Talents and Professionals;

(4) Capital Investment Entrant Scheme; and

(5) Quality Migrant Admission Scheme.

60. Third, the Dependant Policy is one of the specific immigration policies formulated by the Director under the umbrella of the strict immigration control policy overall.  It is the only established policy under which an applicant may apply for permission to reside in Hong Kong with one’s family.[31]

61. Fourth, although one of the consequences of allowing a DV Application is to facilitate the DV Applicant to reside in Hong Kong with his family, the Dependant Policy is not a general family reunion policy as such.  As presently formulated, the Dependant Policy is not primarily based on any specific consideration of “interests of the family as a whole” and/or “interest of each of its members” as general free-standing concepts.  The key issue to be determined is dependency and not simply whether there exists a familial tie of blood or marriage.  It is a policy that allows an applicant, who is genuinely dependent on the sponsoring family member’s maintenance, support and other requirements (emotional and material) to apply for permission to reside in Hong Kong.[32]

62. The above considerations underpinning the Dependant Policy strongly militate against any notion that it is a general open-ended family reunion policy as advocated by Mr Dykes.[33]

63. In our view, the fact that the Dependant Policy is not a general family reunion policy is clearly borne out by the relevant paragraphs in the Guidebook:

(1) Under Paragraph 2 of the Guidebook, the Dependant Policy does not apply to (a) Chinese residents of the Mainland (except they fall within the exceptions as stipulated); (b) former Mainland Chinese residents residing in Macao who have acquired residence in Macao through channels other than the One-way Permit Scheme; and (c) nationals of Afghanistan and Korea (Democratic People’s Republic of).  If the Dependant Policy were a general family reunion policy, it would not have excluded all Mainland Chinese residents or former Mainland Chinese residents residing in Macao unless they fall within the exceptions in Paragraph 2(a) or (b), as the case may be, who are arguably the largest and indeed most natural group of potential applicants for family reunion in the Hong Kong context.

(2) The exclusion in Paragraph 2(c) plainly arises out of security concern.

(3) Under Paragraph 3, while a Hong Kong permanent resident or a resident who is not subject to a limit of stay may sponsor a DV Applicant, not every family member of his/hers is eligible to make the DV Application.  Only those who fall within one of Paragraph (a), (b) or (c) are. This is wholly inconsistent with the Dependant Policy as a general family reunion policy.

(4) For a sponsor under Paragraph 4 of the Guidebook,[34] who may be described loosely as “quality migrants”, only his/her spouse and his/her unmarried dependent child under the age of 18 may make a DV Application.  Again, it runs contrary to the argument that the Dependant Policy is a general family reunion policy.

(5) Paragraph 15 stresses the need of an applicant, in meeting normal immigration requirements, to show that he has no likelihood of becoming a burden on the HKSAR.  It ties in with the requirement in Paragraph 5(c) that the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong.  The combined effect of these provisions ensures that a DV Applicant is genuinely dependent on the sponsor who is able to financially support him/her without becoming a burden on Hong Kong.  The emphasis is clearly on dependency and not just family ties.

64. Mr Dykes sought to rely on the Legislative Council Brief: Immigration Policy on Entry of Dependants (June 2003).  He submitted that the Legco Brief shed considerable light on the rationale and purposes of the Dependant Policy.  In short, he submitted that the Legco Brief showed that insofar as it applies to the Hong Kong permanent residents sponsoring an applicant spouse to take up residence in Hong Kong as dependant/family member, the relevant purpose of the Dependant Policy is and can only be family unity.

65. However, the Legco Brief was not adduced before the Judges below, but was included amongst the many “authorities” relied on by Mr Dykes in the appeals.  It begs the obvious question why Mr Dykes is entitled to do so now on appeal.  Mr Dykes said it is a public document and it is relevant and ought to be have been disclosed by the Director.  With respect, we disagree.  Plainly, it is a matter for his clients.  They should have referred to it in the proceedings below. Had they done so, the Director might well need to adduce further evidence to deal with the points arising from the Legco Brief that they sought to rely on. Mr Dykes has proffered no explanation as to why they failed to place the Legoc Brief before the Judges below.   That being the case, we refuse to look at it for the purposes of these appeals.

66. Despite the vigour and eloquence with which Mr Dykes advanced his case, his submissions amounted to no more than what he wished the Dependant Policy to be rather than what it in fact is.  But we cannot rewrite the Dependant Policy.  In this respect, we echo what Hartmann J said in Christian Bulao Palmis v Director of Immigration :[35]

“[The] Director does not manage a policy of family reunion and it is not for this court to attempt to usurp the power given to him to formulate and administer policy in light of Hong Kong’s particular immigration difficulties.”

F. Construction of the Dependant Policy

67. We now turn to the proper construction of the Dependant Policy.

F1.  General principles

68. Construction of the Dependant Policy as contained in the Guidebook is eminently a matter of law which the court must decide for itself : Shiu Wing Steel Ltd v Director of Environment Protection and Another;[36] Mandalia v Home Secretary.[37]  In construing the Dependant Policy, the court shall have regard to its relevant context : Investors Compensation Scheme Ltd v West Bromwich Building Society;[38] Charter Reinsurance Co Ltd v Fagan.[39]  The court will adopt a common sense approach, reading the Guidebook objectively in a practical down-to-earth way : Shiu Wing.[40]  The court will also construe the words in question in the landscape of the Guidebook as a whole : Charter Reinsurance.[41]

F2.  Identifying the relevant context

69. What then is the relevant context for the purpose of construing the Dependant Policy?

70. The starting point must be the overall highly restrictive immigration control policy adopted by the Director throughout the entire immigration regime.  As already noted, this restrictive policy, applied across the board of the entire immigration regime, is dictated by geographical, social and economic imperatives faced by Hong Kong, a small place with a population density, one of the highest in the world, which nevertheless remains an attractive destination for immigrants, legal and illegal.  The legitimacy and rationality of such a restrictive policy applicable to the entire immigration regime is well established by a wealth of authorities.  The judicial endorsement it has received is unanimous : see for example Hai Ho-tak v Attorney General;[42]Christian Bulao Palmis v Director of Immigration;[43] MA & Others v Director of Immigration;[44] and Comilang & Another v Commissioner of Registration.[45]

71. With respect to the Judges below, in approaching the construction of the Policy, they had failed to give proper or sufficient regard to its context as explained above.  Formulated under the umbrella of the overall highly restrictive immigration control policy, the Dependant Policy must be construed in a way which is consistent with the context and purposes of strict immigration control.  That the Judges had failed to do.

72. Mr Dykes submitted that the evidence filed on behalf of the Director is not sufficient for the court to ascertain the context of the Dependant Policy. With respect, we disagree.  The Director’s evidence as outlined above is crystal clear.  We have no difficult whatsoever in ascertaining the relevant context of the Dependant Policy.

73. As noted above, Mr Dykes also sought to argue that at least insofar as it applies to the Hong Kong permanent residents sponsoring as applicant spouse to take up residence in Hong Kong as dependant/family member, the relevant purpose of the Dependant Policy is and can only be family unity.  We have explained why we reject his argument.

F3.  Construing Paragraph 5 in context

74. Properly understood in the overall context of restrictive immigration control, the object and purpose of the Dependant Policy is plainly to permit genuine dependants of Hong Kong permanent residents or residents to apply for residence in the Hong Kong upon the sponsorship of the resident, subject to satisfying the eligibility criteria set out in Paragraphs 3 and 5.  The actual wording used in the two Paragraphs gives effect to this object and purpose.

75. To recap, Paragraph 3 provides :

“ 3. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (i.e. a resident with the right to land or on unconditional stay), the following dependants may apply to join him/her for residence in the HKSAR:

(a) his/her spouse;

(b) his/her unmarried dependent child under the age of 18; and

(c)   his/her parent aged 60 or above.”

76. Following a line of well established authorities, such as Murali Duraisamy v Director of Immigration;[46] and Gureng Deu,[47] the parties do not dispute that the three eligibility criteria in Paragraph 3 must be satisfied before a DV Application may be granted.  The only dispute concerns the status of the No Record Requirement in Paragraph 5.  Is it also an eligibility criterion which a DV Applicant must meet or is it just a relevant or even important factor to be considered by the Director?

77. One needs to read Paragraph 5 in its entirety.  To recap, it stipulates :

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

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

(b) there is no known record to the detriment of the applicant (“the No Record Requirement”); and

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

78. The requirement in Paragraph 5(a) harks back to the three eligibility criteria in Paragraph 3 on the family relationship between the sponsor and the DV Applicant.  If the criteria in Paragraph 3 on the family relationship are essential and must be complied with, it must follow that the requirement in Paragraph 5(a) on the proof of such genuine relationship is also an eligibility criterion which must also be complied with.  Indeed, as Hartmann J observed in Qamar Zaman v Department of Immigration,[48] it is necessary for a sponsor to demonstrate that a genuine relationship of dependency existed, that is, Paragraph 5(a) must be met.

79. The requirement in Paragraph 5(c) goes to the crux of a DV Application.  Plainly it is also a necessary eligibility criterion which must be met: Sanatosh Thewe & Another v Director of Immigration;[49] and Qamar Zaman.

80. If the requirements in Paragraphs 5(a) and 5(c) are necessary eligibility criteria which must be complied with, it is difficult to see why the No Record Requirement in Paragraph 5(b) is not.  To construe it otherwise, as Mr Dykes and the Judges below did, would create an internal inconsistency in Paragraph 5 which cannot be reconciled.  There is simply no basis to single out the No Record Requirement as a factor relevant to the Director’s consideration only.

81. Further, both Paragraphs 3 and 5 appear in the same Section II under the heading “Eligibility Criteria”.  Grouping all the requirements in Section II must mean that irrespective of whether they are contained in Paragraph 3 or 5, they are all eligibility criteria which must be complied with.  Paragraph 15 puts the matter beyond doubt.  To recap, the relevant part in Paragraph 15 reads :

“ 15. In general, unless a person has the right of abode to land in the HKSAR, he/she requires a visa/entry permit to take up residence as dependant in the HKSAR. While each application is determined on its individual merits, an applicant should meet normal immigration requirements … as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit….”

All the eligibility criteria, whether it is contained in Paragraph 3 or Paragraph 5, must be met.  That must include the No Record Requirement.

82. Construing all three requirements in Paragraph 5 as eligibility criteria which must be met does not create any inflexibility or blinker in the Director’s consideration of a DV Application.  The requirements, as presently formulated, carry a measure of flexibility within the defined confines to enable the Director to approach and determine each DV Application on its own facts and according to its own merits.

F4.  Reliance on “may be favourably considered” misplaced

83. In construing the No Record Requirement, both Zervos J and Chow J placed particular reliance on the words “may be favourably considered” in the opening sentence of Paragraph 5.  So did Mr Dykes.  With respect, those words do not support their construction.

84. Those words do not prevent the court from rightly construing the requirements in Paragraph 5(a) and (c) as necessary eligibility criteria.  They cannot prevent the court from doing so in respect of Paragraph 5(b) either.

85. More importantly, properly understood in the entire context of Paragraphs 3, 5 and 15, the words “may be favourably considered” are no more than an enabling term which triggers the Director’s consideration of granting the DV Application if, but only if, all three criteria in Paragraph 5 are satisfied.  They certainly do not give rise to the “implicit guarantee” alluded to by Zervos J, that is, “[upon] an applicant coming within one of the three categories of Paragraph 3, there appears to be an implicit guarantee that if the three factors in Paragraph 5 are satisfied the application is likely to be granted.”[50]  Nor do they make the position so unclear as to entitle Chow J to conclude that “much clearer words should be used”.[51]

86. Mr PY Lo sought to rely on the Chinese version of the opening sentence in Paragraph 5.  It reads :

“ 5. 以受養人身份來港居留的申請，如符合下列條件，可獲考慮批准：

  …”

He submitted that the words “可獲考慮” (Chinese equivalent of “may be favourably considered”) gives the Director a wide discretion to consider the application “if the following conditions are met” (如符合下列條件). He reasoned that the conditions in Paragraphs 5(a) to (c), including the No Record Requirement, are only factors that the Director may take into account in the exercise of his wide discretion.

87. With respect, we disagree.  Mr Lo’s construction flies in the face of the well established proposition that Paragraph 5(a) and (b) are eligibility criteria. Further, it does not sit well with the word “條件” (condition), which clearly indicates that the three requirements in Paragraph 5 are eligibility criteria that must be met.  Finally, according to a proper reading of the sentence “以受養人身份來港居留的申請，如符合下列條件，可獲考慮批准” as a whole in Chinese, only those DV Applications that satisfy all the conditions which follow may be considered. If they do not, they will not be considered.

88. The reliance placed on the words “may be favourably considered”, whether it is in English or Chinese, is wholly misplaced.

F5.  Conclusion

89. As rightly submitted by Mr Yu, construing the Guidebook in the way as we do, the overall scheme of the Dependant Policy is rational and easy to implement. Paragraphs 3 and 4 identify which types or categories of dependants of eligible sponsors may make a DV Application.  Paragraph 5 then specifies the other eligibility criteria which the DV Applicants identified in Paragraphs 3 and 4 must meet in order to be favourably considered.

90. For the above reasons, both Zervos J and Chow J erred in their construction of the Dependant Policy and in holding that the Director had misapplied it.  They erred in construing the No Record Requirement as a mere factor, though an important one, to be considered by the Director in a DV Application.  Contrary to their views, on a proper construction of the Guidebook, the No Record Requirement is an essential eligibility criterion which a DV Applicant must satisfy before he can come within the Dependant Policy.

G.   Right to family life in the context of Hong Kong immigration regime

G1.  The overall immigration regime

91. Having accurately identified the nature of the Policy and its scope as provided by its proper construction, we next turn to the submissions of Mr Dykes on family rights in the context of DV Applications.  To do so, we need to set his submissions against the overall immigration regime in Hong Kong.

92. In the BH Judgment, Chow J examined the immigration regime in Hong Kong and our case law on the same.[52]  That examination was made in the context of the submission of Mr Dykes that the Director is under a general public law duty to take account of family circumstances of a DV Applicant and his or her family members residing here.  In that connection, Mr Dykes made reference to the BI Judgment.  As already noted, Chow J came to a different view from that of Zervos J in that respect.[53] There are other authorities on this topic, most of them were reviewed by Chow J and in the recent judgment in Pagtama v Director of Immigration[54] by Au J.  As many of these authorities are first instance judgments, it would be helpful if this court were to re-state some general propositions concerning the immigration regime in Hong Kong.

(1) Due to the special circumstances of Hong Kong by virtue of its small geographical size, huge population, its economic and social uniqueness amongst its neighbours in the region, it is necessary for the maintenance of its sustainability to adopt a restrictive immigration policies and practices.

(2) As a matter of law by reason of Article 154(2) of the Basic Law and the Immigration Ordinance, the administration of such policies and practices is in the hands of the Director of Immigration who has been given very wide discretion to discharge a very heavy responsibility.  Such a wide discretion is necessary because very often the Director has to make some hard decisions based on such policies and practices, some of which might be regarded by members of the public as tough and unpopular.  However, in the discharge of his onerous duty, the Director has to make such decisions in light of the macro circumstances and needs of Hong Kong based on matters and information which could not be fully explained to or understood by the general public.

(3) It is not appropriate for the court to usurp the role of the Director as the court does not and cannot have a macro picture of the overall immigration pressure and the expertise to assess the potential political and socio-economical impact of a shift (no matter how minor it is) in the immigration policy.  The court is not equipped with the necessary information nor tasked by the law to carry out the responsibility of the Director.

(4) This does not mean that the Director is above the law in the exercise the power of immigration control.  The rule of law manifests itself by the court retaining a supervisory jurisdiction in such exercise of power.  The supervisory power is exercised by the court in accordance with well established public law principles by way of judicial review.  The court will ensure the Director's exercise of power does not contravene the legal rights of the persons involved.  Such rights can be rights protected by the Basic Law, the Hong Kong Bill of Rights or common law.  The court can also examine whether the Director exercises the power in accordance with the relevant legislation.  The court, as in the present appeals, can examine whether the Director acts in accordance with his own policy instead of misconstruing the same.  These are instances of the intervention by the court on the principle of legality.  Related to this principle, if the Director fails to take relevant consideration that he is legally required to consider into account, the decision would not be valid.  Likewise, if the Director takes into account  irrelevant consideration, namely consideration which he legally should not take into account, the decision would again be vitiated.  At a later part of this judgment, we shall elaborate on what we mean by legally required to take into account or legally required not to take into account in terms of humanitarian considerations.  Further, the court can also intervene if the Director does not act fairly in the decision making process.  This is the principle of fairness.  The requirement of fairness can call for intervention by the courts when the Director did not exercise independent judgment in the administration of a policy adopted voluntarily by him : C v Director of Immigration.[55]  Yet further, in an extreme case where the Director makes a decision which in public law terms can be described as Wednesbury unreasonable, the court can also interfere on the principle of rationality.

(5) A very important consideration in the application of the principle of legality in the Hong Kong immigration context is the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance (“HKBORO”).  The immigration reservation provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong or the application of such legislation.  This reservation is constitutionally entrenched by Article 39 of the Basic Law : Ubamaka v Secretary for Security;[56] GA v Director of Immigration;[57] Rbani v Secretary for Justice.[58]  Absolute non-derogable fundamental rights aside (namely those protected by art 3 of the Bill of Rights), the Director's exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.

(6) As discussed in a long line of cases, the Bill of Rights and the Basic Law do not give an applicant who has no right to stay in Hong Kong any right to pre-empt a decision by the Director in not granting him or her a right to remain in Hong Kong.[59]

(7) The cases also established that a family member (who has the right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person : Hai Ho Tak v Attorney General; Santosh Thewe v Director of Immigration.[60]

(8) When an applicant cannot bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in not making a removal order on humanitarian considerations.  However, the Director is not obliged to take humanitarian considerations into account though he may do so.  If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider : Lau Kong Yung v Director of Immigration.[61]  In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.

G2.  Assessment of Mr Dykes’s submissions

93. Before us, apart from proposition (8), Mr Dykes did not seriously dispute these propositions.  However, counsel submitted that the courts, instead of the Director, should decide what considerations are relevant in a particular case.  Further, he submitted that the decision of the Director in respect of an applicant falling outside the scope of established policy is reviewable instead of being relegated to the category of non-reviewable decision based on humanitarian considerations.  These submissions were advanced on two important underlying premises, both of which call for careful examination.

G2.1  Common law right to family

94. The first premise of Mr Dykes was that there is a common law right to family life.  Hence, counsel submitted that an applicant needs not rely on any provision in the Bill of Rights or the Basic Law to establish a legal right to family re-union. The immigration reservation under section 11 of the HKBORO cannot prevent such applicant to assert his common law right.

95. With respect, we do not accept that there is any right to family re-union under the common law of Hong Kong.  Mr Dykes brought to our attention the judgment of Sedley LJ in R (Aguilar Quila) v  Secretary of State[62] where he took the view that apart from Convention rights under the European Convention on Human Rights, the common law also provided for a fundamental right in the following terms :

“In the eyes of the common law it is not simply the right to marry and not simply the right to family life but their combined effect which constitutes the material right: that is to say a right not merely to go through a ceremony of marriage but to make a reality of it by living together. For the state to make exile for one of the spouses the price of exercising the right to marry and embark on family life requires powerful justification” (see para 48).

He further said that the starting point for immigration control was not to regard this as a thin entitlement which could be stultified by domestic immigration policy so long as it could be exercised in other parts of the world.[63]

96. In so holding, the learned judge tagged the rights to marry and family life on the right of a citizen not to be exiled.  Whatever may be the position in England,[64] we must categorically state that as a matter of common law in Hong Kong the right not to be exiled has never been elevated to a right to override immigration control by giving rise to a right of permanent residence to a foreign spouse in order to lead a family life in Hong Kong.  The long line of cases mentioned above and the immigration reservation reflects the common law position here.  A moment’s reflection on the situation in Hong Kong will lead to the inevitable conclusion that such elevation of an individual’s right to family life will seriously fetter the wide discretion of the Director in immigration control which, as discussed, is essential for the sustainability of Hong Kong as it is.  Hong Kong being an open cosmopolitan city, there are many people living here who have family members living elsewhere.  Many Chinese residents in Hong Kong have close relatives like spouse, children or parents living in the Mainland.  Because of our open policy, there are many foreign nationals who work and settle here. Many of them would also like to bring their close family members to Hong Kong.  Our courts have consistently decided in the past that even for such cases, we should leave it to the Director to make decisions based on his immigration policy.  In short, a Hong Kong resident does not have any common law entitlement to the grant of right of residence to his or her spouse or other close family members.

97. To sum up, we conclude that as a matter of Hong Kong law, in matters coming within the immigration reservation, namely, in respect of matters which pertain to the Director’s immigration control over the entry into, stay in and departure from Hong Kong, interests in family life (be that of an aspired migrant or his or her family member who is already a resident of Hong Kong) cannot override the general discretion of the Director.

G2.2  Relevance of family connection and interest of family members and the limits of judicial review in immigration cases under general law

98. Mr Dykes’s second underlying premise was that the Dependant Policy is a family reunion policy, as such prime consideration should be given to the family ties of the applicant in Hong Kong.  As a matter of construction, as explained above, we are of the view that it is not an open-ended general family reunion policy.

99. In this connection, Mr Dykes relied on the House of Lords decision in R v Immigration Appeal Tribunal ex p Singh.[65]  That was a decision in respect of a published policy set out in a Statement of Change of Immigration Rules (1982).  The House of Lords held that on proper construction of that policy, reading [154] with [156] and [158], the expressions “every relevant factor” and “all the relevant circumstances” must include relevant third party interests and so was “public interest” in [154].  Thus, the court held that the adjudicator erred in law in holding that representations from religious and social organisations in the Sikh community should not be taken into account by him (instead of the Secretary of State under section 19 of the Immigration Act) in a decision on the deportation of a gifted musician performing the role of a priest in that community.  Counsel for the appeal tribunal accepted such representations were relevant consideration for the Secretary of State but he contended that the adjudicator was correct in leaving it to be considered by the Secretary instead of the adjudicator.[66]  Lord Bridge rejected that contention based on the correct interpretation of the rules, which His Lordship regarded as the critical issue in the case.[67]  Thus, the actual decision of the House of Lords, concerned as it was with a different policy, has little bearing in the present appeals.

100. Mr Dykes drew our attention to Lord Bridge's observations on the general law based on Wednesbury principles.[68]  In particular, His Lordship said :[69]

“If, therefore some interest of third parties which is known to the Secretary of State and which would be adversely affected by deportation is in truth relevant to the proper exercise of the discretion, a decision made without it being taken into account would in any event be open to challenge by judicial review and consequently, in the case of an overstayer, would be open to appeal under section 19(1) as being not ‘in accordance with the law’ quite apart from the immigration rules.”

101. Mr Dykes submitted this dictum supports the proposition that what is relevant or irrelevant is a matter for the court, not the Director.  Counsel further submitted that the same can be said in respect of the exceptional circumstances warranting the departure from the general policy, whether under the head of humanitarian consideration or otherwise.

102. This submission has to be considered in light of the observations of the Court of Final Appeal in Lau Kong Yung.[70]  We do not think the Court of Final Appeal retracted from those statements in C v Director of Immigration.  In the latter case, Tang PJ cautiously endorsed the observations of Lau Kong Yung in the context of family reunion.[71]  Subject to what we shall say below, we regard ourselves as being bound by the observations in Lau Kong Yung as to the extent to which the courts may intervene over the Director’s exercise of discretion on humanitarian consideration.  According to Lau Kong Yung, the Director does not have a duty to consider humanitarian consideration.  Thus, if the Director did not take such consideration into account, the courts cannot intervene on the ground that he had failed to have regard to relevant matter in making his decision.

103. However, Lau Kong Yung did not decide what would be the position if the Director did take humanitarian consideration into account.  The arguments before the Court of Final Appeal focused on whether the applicants had any constitutional right to remain in Hong Kong as opposed to whether the Director should exercise his discretion to permit him to remain.[72]  The Court of Final Appeal held that in light of the Interpretation by the Standing Committee of Articles 22 and 24 of the Basic Law (“the Interpretation”) the arguments could not succeed.  It was envisaged that the applicants would make further application to the Director on discretionary basis if they failed in the constitutional right arguments and the Director gave undertakings to accommodate the same.[73]  In the context of the absence of duty to consider humanitarian consideration,[74] the Chief Justice addressed the futility of the argument that by virtue of the change in the perception on the law due to the Interpretation, the applicants lost the opportunity to run a case based on humanitarian consideration.  The Chief Justice was careful in saying that this potential argument could not succeed in “the present challenge to the removal order”.  At the end of his judgment, the Chief Justice recorded that the Director would consider revocation of the removal orders and His Lordship adverted to the special circumstances of the applicants.[75]

104. In our judgment, in cases where the Director did give regard to humanitarian considerations, the courts could intervene if there were unfairness in the process.  In C v Director of Immigration, Sir Anthony Mason NPJ discussed the role of judicial review and pinpointed the rule of law as its foundation.  His Lordship explained the limits of judicial review by reference to separation of power considerations and the requirement of justiciability.[76]  He also highlighted that some decisions may be reviewable for procedural fairness but not otherwise.[77]

105. It had been explained in the long line of cases approved by the Court of Appeal in Safder Tehseen v Permanent Secretary of Security[78] that the courts are not equipped to exercise immigration control in place of the Director.  This court should take this opportunity to reiterate categorically and firmly that as a matter of Hong Kong law the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director.

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.[79]  

108. In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration,[80]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;[81] and the decision of the Appeal Committee in the same case.[82]  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.

110. Mr Dykes also placed some reliance on the judgment of Keith J (as he then was) in Singh v Secretary for Security.[83] There, Keith J held that hardship arising from the personal and family connection in Hong Kong was a relevant factor to be considered before decisions on deporting persons who had resided in Hong Kong for decades were made.  On the facts, the learned Judge held that the Secretary did take this factor into account and the challenge based on insufficient weight being given to the circumstances of the family members (remaining in Hong Kong) failed.[84]  Mr Dykes relied on this case to support his submission that family circumstances and the hardship of family members should equally be relevant consideration (to which the Director must have regard) in an application for permanent right of residence in Hong Kong.

111. With respect, we do not think the judgment of Keith J supported the proposition of Mr Dykes.  The context in which Singh v Secretary for Security was decided was entirely different.  The applicants in that case had been residents in Hong Kong for decades and their presence in Hong Kong was lawful.  In contrast, as submitted by Mr Yu, the applicants in these appeals had no right to remain in Hong Kong.  Further, in the context of applications for grant of permanent residence (as in the present appeals), as discussed above, we are bound by Lau Kong Yung.  Insofar as the Director did take humanitarian consideration into account, we do not think there is any inconsistency between our analysis above and the judgment of Keith J.

112. Mr Dykes further submitted that there should not be any discrepancy between an applicant challenging a deportation order and an applicant challenging a refusal to grant a dependant visa.  He also drew our attention to the fact that one of his clients, BI, was subject to a deportation order.  However, in these applications for judicial review, we are not concerned with any challenge to the deportation order.  It is therefore inappropriate for us to express any view on the proper approach in respect of a challenge to such order.  However, as submitted by Mr Yu, the refusal to grant permanent residence by way of dependant visa does not mean that an unsuccessful applicant could not be allowed to remain in Hong Kong (may be temporarily) on a different basis.  Further, as illustrated by Singh v Secretary for Security, different considerations may apply in respect of deportation orders made against a person who has lawfully been in Hong Kong for decades.

H.   The application of the legal principles to the present appeals

H1.  On construction of the Dependant Policy

113. In light of our conclusion on the proper construction of the Dependant Policy, the decisions of Zervos J and Chow J in this respect must be reversed.

114. We shall now examine the validity of the other grounds for challenging the Director’s decisions in these cases separately.

H2.  On BI’s case

115. In the case of BI, the minutes relating to the decision making process of the Director clearly show that the Director did not reject his application simply because BI did not satisfy the eligibility criteria in the Dependant Policy.  Instead, the Director went on to consider whether there was any exceptional consideration justifying special treatment for BI. In that context, the officer of the Immigration Department did consider the family connection of BI and the circumstances of his spouse (who sponsored his application) and his daughter in Hong Kong : see internal memo M15 of 16 July 2012, in particular [19] and the affidavit of Mr Lung Ka Kit, Immigration Officer (Other Visas and Permits Section), dated 20 March 2014.  On the application for reconsideration, another officer in the Immigration Department again adopted similar approach : see internal memo M1 of 28 January 2013 and the affirmation of Ms Shirley Lam Wai Men, Chief Immigration Officer (Other Visas and Permits Section), dated 20 March 2014, [12]. Having considered the personal and family situations of BI and his wife and his daughter, the Director came to the view that there was insufficient justification for exceptional treatment in his case and there should not be any departure from the existing dependant policy.

116. Thus, it is clear that the Director did give consideration to the personal and family circumstances of BIbefore 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.[85]  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.[86]

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.[87]  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.

120. For these reasons, we respectfully disagree with the conclusions reached by Zervos J.

H3.  On BH’s case

121. In respect of BH, apart from the construction of the policy, Chow J’s judgment was in line with our analysis above.  The learned Judge rejected the submissions of Mr Dykes based on family rights.[88]  On the facts, Chow J also rejected the challenge based on procedural unfairness and Wednesbury unreasonableness. Thus, but for his view on the construction of the policy (on which we respectfully disagree), Chow J would have dismissed the challenge against the decision of the Director.

122. In the internal minutes, there were references to the personal and family circumstances of BHas well as his spouse and adult daughters, see M 15 dated 14 December 2012.  Having considered those circumstances, the immigration officer concluded that there was no ground to warrant exceptional consideration. See also the affidavit of Mr Lung Ka Kit dated 24 November 2014, [41] and [42].

123. In the respondent’s notice, Mr Dykes contended the judge erred in not holding that the Director had a public law duty to take account of the rights and interests of BH’s spouse and stepdaughters.  For the reasons set out in the above discussion, we do not accept this contention :

(1) as a matter of law, the Director did not have such a duty; and

(2) as a matter of fact, the Director did take account of their interests in the context of assessing whether there was any ground for exceptional treatment against the policy of stringent immigration control.

124. Mr Dykes also challenged Chow J’s formulation of the general principles.  In his oral submissions, counsel urged us to endorse the approach of Zervos J in preference to that of Chow J.  For reasons already given, we respectfully disagree with the approach of Zervos J.  We also do not see any grounds for disagreeing with Chow J in his formulation of the general principles which are, as observed earlier, in line with our analysis above.

I. REASONS FOR DELAY AND THE SETTING ASIDE OF EX PARTE LEAVE

125. In CACV 134 of 2015, the Director appealed against Chow J’s refusal to set aside the ex parte leave.  In the notice of appeal, the main ground relied upon was one of material non-disclosure by BHin his account for the delay in applying for leave.  Another ground was that the Judge should have set aside the leave as the applicant did not provide good reason for extension of time.  As a subsidiary argument, the Director contended in the notice of appeal that the Judge should have concluded that the application for dependant visa would inevitably be rejected even if the matter was remitted to the Director, hence the application for judicial review is futile and leave should be set aside.

126. The decision of the Director was communicated on 2 January 2013 and the Form 86 was only filed on 27 August 2014, long after the expiry of the three-month time limit under Order 53 Rule 4(1). The delay was substantial.

127. When Chow J granted the ex parte leave, he did so “without prejudice to the Director’s ability to contend at the substantive hearing that leave should not be granted on the ground of delay”.  On reflection, after referring to R v Criminal Injuries Compensation Board, ex p A,[89] the Judge considered that the better course should have been to defer the question of leave (involving the question of extension of time) to the substantive hearing.  As it happened, counsel for the Director applied before the Judge for the ex parte leave to be set aside.  Hence, Chow J regarded the question of extension of time to be before the court.  The Judge found that there was inadequate explanation to account for the delay in the documents filed at the leave stage, in particular the 13 months during which the legal aid application of the applicant was pending.  A fourth affirmation of BH was filed on 13 January 2015 showing that the Legal Aid Department took a long time to process the legal aid application. In the absence of input from the Director of Legal Aid, the Judge was unable to draw any conclusion from the mere lapse of time.  However, he was of the view that the other factors (merits of the judicial review application and public interest) outweighed the substantial delay and refused to set aside the ex parte leave on ground of delay.

128. The Judge made no finding on material non-disclosure or the argument of inevitability. It is not clear to us whether these arguments were advanced before the Judge.  It is also not clear whether the Judge would have exercised his discretion to re-grant leave if he was minded to set aside the original leave on the ground of material non-disclosure.

129. Arguments on material non-disclosure and inevitability were canvassed in the subsequent case of TH v Director of Immigration.[90]  An appeal has been brought in that case.

130. In the absence of findings in these respects in BH, we do not think it is appropriate for this court to embark on the task of making such findings if we could properly dispose of the appeal in CACV 134 of 2015 without doing so.  It would be more appropriate to deal with such arguments in the context of the appeal in TH v Director of Immigration.

131. In light of our conclusion on the substantive merit, Chow J’s reason for not setting aside leave can no longer stand.  We however agree with the Judge on his observations as to the lack of proper explanation for the delay in the documents lodged at the leave stage.  We would particularly endorsed what he said:

“ 103. In my view, if an applicant wishes to rely upon the time taken to obtain legal aid as an explanation for the delay in making his leave application, the applicant should in his notice of application for leave to apply for judicial review provide a full chronology regarding his legal aid application. Generally, I would also expect the chronology to be verified or confirmed by the relevant legal aid officer who may provide such further information and explanation as may be appropriate or necessary either in a letter or by way of an affidavit: see X v Torture Claims Appeal Board, HCAL 143/2013 (4 September 2014), at paragraph 13 per Zervos J. I hardly need to point out that an applicant in any ex parte application is required to observe the obligation to make full and frank disclosure, and this obligation should likewise be observed by the legal aid officer.”

132. Even taking account of the fourth affirmation belatedly filed on 13 January 2015, we are of the view that the applicant has not complied with these requirements.  There is no material before us suggesting that the contents of that affirmation has been verified or confirmed by the legal aid officer.  Hence, it is not clear to what extent the time taken for obtaining information from the wife of the applicant from February to October 2013 was attributable to delay (if any) on the part of the wife.  It is also not clear why the section 9 opinion could not have been obtained before October 2013.  As such, we still find the evidence on delay to be unsatisfactory.

133. In the circumstances, even without consideration of arguments on material non-disclosure and inevitability, by reason of the lack of substantive merit as explained above, we are of the view that the ex parte leave should be set aside.

134. Mr Yu also invited this court to give some guidance on the proper procedure to be adopted for extension of time to apply for leave in a judicial review.  Though counsel for BH had no objection before Chow J to the application to set aside leave being entertained at the substantive hearing, Mr Dykes submitted in his written submission in this appeal that in general either there is no jurisdiction to make an Order 32 Rule 6 application on the day of the substantive hearing or such application would constitute an abuse in the absence of special circumstances.  It appears from [26] of Mr Dykes’s written submission that counsel accepted it is arguable that special circumstances existed in the present case in view of the qualification given by Chow J when he granted leave.

135. In our judgment, as highlighted by Lord Slynn in R v Criminal Injuries Compensation Board, ex p A, the leave application and the substantive hearing are two different stages in an application for judicial review and the relevance of delay or lapse of time is not the same at each stage.  Extension of time at the leave stage is to be considered by asking whether there is good reason to extend time : see Order 53 Rule 4(1) of the Rules of the High Court.  At the substantive hearing, the court should concentrate on whether relief should be withheld by reason of hardship, prejudice or detriment to good administration, see Section 21K(6) of the High Court Ordinance.  If leave had been granted, unless it was set aside in the meantime, the court has no jurisdiction at the substantive hearing to re-open the question of leave.  Though Lord Slynn also referred to the possibility of adjourning the application for leave to the substantive hearing and there were occasions where the court adopted the practice of having the question of leave and substantive application being dealt with at a rolled-up hearing, we do not think such practice could circumvent the statutory requirement in Section 21K(3) for a two-stage process.  The court does not have the power to dispense with the first stage and go directly to the second stage instead.  Under such analysis, it is perhaps more accurate to regard the direction for a rolled-up hearing as a direction for having the two stages to be heard on the same date with the leave application being heard immediately before the substantive application.

136. When an ex parte application for leave is made with an application for extension of time, a judge has the following options:

(a)  Granting or refusing extension of time on an ex parte basis;

(b) Adjourning the leave application (together with the application to extend time) to an inter partes hearing involving the putative respondent;

(c)  Directing a rolled-up hearing which in effect is a direction for the leave application (together with the application to extend time) to be heard immediately before the substantive hearing.

137. If the court granted leave with extension of time on ex parte basis, it is open to a respondent to apply to set aside such leave at an inter partes hearing.  In this connection, we agree with Mr Dykes that in general an application to set aside an ex parte order should be made promptly though we consider it is a matter of discretionary consideration rather than a matter of jurisdiction.  It follows that if an application is made to set aside an ex parte leave, it should generally be promptly disposed of instead of being deferred to the substantive hearing.  However there can be other considerations in a particular case affecting the exercise of the case management discretion of the judge.

138. As to which procedural option a judge should adopt in processing an application for extension of time to apply for leave, it is ultimately a matter of case management by the judge. In a very straightforward or clear cut case, it may be that option (a) is appropriate.  In a case where the judge considers that the urgency or other public interest calls for prompt determination of all issues (both procedural and substantive), he or she may adopt option (c).  In other cases, it may be more satisfactory to adopt option (b) or a variant of it by inviting the putative respondent to lodge written representation on the question of extension of time and/or substantive merit.

139. In a case where the lapse of time is substantial and inadequate information is given by an applicant to account for the delay, or alternatively where the substantive merit of an application is in doubt with some public interests being affected by the time inevitably required to process a judicial review application, the court should seriously consider adopting option (b) or its variant.

140. In the instant case, we see no reason to disturb Chow J’s holding that it was appropriate to entertain the application to set aside leave at the substantive hearing.  For the reasons already given, we would reverse Chow J’s decision on the setting aside application and hold that leave should be set aside.

J. DISPOSITION

141. We shall allow the appeals of the Director in all three appeals and order BIto pay the Director’s costs in CACV 9/2015 and orderBH to pay the Director’s costs in CACV 103/2015 and CACV 134/ 2015, with certificate for 2 counsel.

142. We shall also order legal aid taxation for the applicants’ own costs in these appeals.

143. Last but not least, we wish to express our gratitude to counsel for their able assistance.