BI v. DIRECTOR OF IMMIGRATION

HCAL 174/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 174 OF 2013

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J U D G M E N T

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Introduction

1. The applicant seeks to challenge by way of judicial review the refusal by the Director of Immigration (the Director) to grant him a dependant visa.  There is a long history to this case which concerns the applicant’s attempts to remain in Hong Kong through various avenues which have failed each time.  The applicant applied to be a dependant of his wife, who enjoys the right to land in Hong Kong.  They also have a daughter, who was born in Hong Kong.  The applicant now faces a deportation order.

2. On 5 December 2013, the applicant sought leave to apply to judicially review out of time the decision of the Director dated 14 February 2013, refusing the applicant’s application for a reconsideration of his application for a dependant visa which had been earlier refused on 26 July 2012.[1]  Leave was granted on 13 January 2014[2] and the application for judicial review was heard on 8 May 2014.[3]

Background facts

3. The applicant was born in Pakistan on 5 June 1976.  His wife was born in Hong Kong on 11 August 1982.  When she was very young, her parents returned to Pakistan.  She married the applicant on 1 January 2000 in Pakistan.  They have four children, the three eldest were born in Pakistan, on 11 November 2000, 25 January 2002 and 5 September 2003, and the youngest was born in Hong Kong on 5 April 2009.  They both had previously married.  The applicant had two children from his previous marriage, while the wife had none.  The applicant’s first wife died in 2005 and their children are being taken care of by grandparents in Pakistan.

4. The applicant first came to Hong Kong on 6 June 2002 and gained entry on a Pakistani passport.  He claimed that he left Pakistan because of death threats he received arising from an incident with clansmen.  He feared of being killed by a group of men due to a business deal gone wrong.  In the course of buying a vehicle, his brother killed a person when a dispute erupted.  The applicant was threatened that he would be killed in return.  His family received death threats against him and his brother was murdered on 21 November 2004 as a result of this conflict.[4]  During the period from 6 June 2002 to 11 February 2003, the applicant had been travelling between Hong Kong and Mainland China and had returned to Pakistan twice.  He last entered Hong Kong on a Pakistani passport on 11 February 2003 with permission to stay as a visitor until 13 February 2003.  He did not depart and had overstayed since 14 February 2003.

5. On 6 August 2005, the applicant was intercepted by police and arrested for the offences of using an identity card 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 these offences and sentenced to 8 months’ imprisonment.  He stated that he committed the offences because of the desperate situation he was living in at the time.  He stated that he had no choice but to use an identity card relating to another and breach his conditions of stay because he had used up all his savings and needed to find work as he was living in poverty.  He got construction jobs which paid for his general living expenses.  He claimed that his savings had run out just prior to being apprehended by the police and that he had only worked for a short period on construction sites.[5]  As a result of the convictions, on 7 October 2005, a Notice of Consideration of Deportation was served on him.  The applicant submitted grounds objecting to deportation on 12 October 2005, where he cited his fear of being killed if he returned to Pakistan because of the incident with his clansmen.[6]

6. On 18 November 2005, the applicant made a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on the basis of the incident mentioned.  Consideration as to whether a deportation order should be made against the applicant was withheld pending the assessment of his CAT claim.[7]  He 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. Whilst his CAT claim was under consideration, there were a number of legal challenges in relation to this area of law that prolonged the processing of his claim, which was ultimately decided in 2012.

7. In February 2007, the applicant’s wife, whilst in Pakistan, applied for verification of her Hong Kong permanent resident status on the ground that she was born in Hong Kong.  She was eventually informed by way of letter dated 16 June 2008 that her application for permanent residency could not be accepted because of her period of absence from Hong Kong but that she had the right to land and reside in Hong Kong because of her previous permanent resident status.  In the meantime, on 22 April 2008, she returned to Hong Kong so that she could live with the applicant and with other members of her family who were here.[8] Her father, sister and three brothers live in Hong Kong and her sister enjoys the right to land and one of her brothers has a right of abode, whilst the other brothers have dependant visas.  The three children born in Pakistan have remained there and are being cared for by the applicant’s parents.  The wife, since her return to Hong Kong, has established a mobile telephone company which is profitable enough to sustain her and the family financially.

8. The applicant’s CAT claim was refused on 26 April 2012,[9] as was his petition against the refusal decision on 1 June 2012.[10]  By letter dated 25 September 2012, the applicant was informed that the Director was considering applying for a deportation order against him.  The applicant responded by objecting to deportation and stated that as his wife and daughter were living together with him and that they were both born in Hong Kong, he wanted to live with them here.  He requested the Director not to issue a deportation order against him.[11]

9. During this period of time, on 7 January 2011, the applicant applied to remain in Hong Kong as a dependant of his wife who was a resident of Hong Kong.  He also supported his application on the basis that he and his wife had a child who was born in Hong Kong and living with them.  The Director refused the applicant’s dependant visa application on the ground that he did not meet the approval criterion of “no known record to the detriment of the applicant” (which will be referred to as “no known record”), notwithstanding that he found the applicant’s marriage was genuine and that the wife was financially capable of supporting him.  After a request for reconsideration of the applicant’s dependant visa application, the Director on 14 February 2013, refused to reconsider his application on the basis that he could not find sufficient grounds justifying a reversal of the previous refusal decision.

The Dependant Policy

10. The Director has a wide discretion in deciding whether or not to grant a dependant visa.  This discretion is required to be exercised lawfully and fairly. 

11. As explained on behalf of the Director,[12] under the Basic Law and the Immigration Ordinance, Cap 115, he is vested with the power to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions.  It was explained that the Director has devised, adopted and implemented very restrictive and stringent immigration policies and practices because of Hong Kong’s unique circumstances, namely its small geographical size, huge population, and relatively high per capita income and living standards, particularly, its local living and job market conditions.  It was further explained that there is an overall immigration control policy that a person who does not have the right of abode and the right to land in Hong Kong but wishes to come to Hong Kong for the purpose of working, studying, establishing or joining in any business, taking up residence or generally staying in Hong Kong as a visitor longer than the permitted visa free period, must prior to coming to Hong Kong, obtain an entry visa or permit to enter Hong Kong.  Under this overall immigration control policy, there are different guidelines or sub policies specifying the criteria for an application for an entry visa or permit to enter Hong Kong for different immigration purposes, including amongst other things, residence as a dependant.

12. The Director has issued a “Guidebook for Entry for Residence as Dependants in Hong Kong” (the Guidebook) which sets out the policy and procedure in handling and determining an application for a dependency visa.[13]  It is argued by the applicant that the Director has failed to follow the policy as stated in the Guidebook when deciding on the applicant’s application.  It is also argued that the Director did not give due regard, if at all, to the applicant’s right to family.[14]

13. Under Section II of the Guidebook entitled Eligibility Criteria so far as material paragraphs 3 and 5 read:

“3. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (ie 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 dependant 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; 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.”

14. In paragraph 15 in the section relating to other information, it is stated by way of general explanation that:

“15. In general, unless a person has the right of abode or right 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 applicants 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.”

15. A key issue in this judicial review application is the above policy statement.  Insofar as is relevant to the applicant’s case, the eligibility criteria set out in the Guidebook provides that for a sponsor who is a resident and not subject to a limit of stay, the specified dependants which includes his or her spouse, may apply to join him or her for residence in Hong Kong.  

16. The Director has a wide discretionary power as entrusted to him by the legislature.  Accordingly, it was submitted on behalf of the Director, that approval of applications is discretionary and each application is determined on its individual merits.  The three matters referred to in paragraph 5 of the Guidebook are specific considerations that the Director will take into account when considering a dependant visa application. It was submitted that, in general, the applicant should meet all three elements before the grant of a visa or entry permit may be considered.  Nonetheless, it does not mean that the Director’s consideration will be limited to those elements only.  The Director may consider all other relevant factors and circumstances of an individual case and examine if there exists strong compassionate or humanitarian reasons or other special extenuating circumstances warranting exceptional consideration.  However, it was submitted that the Director would exercise his discretion in accordance with the stated objective of maintaining a restrictive and stringent immigration control.  It was further submitted that behind the eligibility criteria of the dependant policy is the Director’s commitment to contributing to the security and prosperity of Hong Kong by, among other things, exercising effective immigration control and keeping out undesirable persons from Hong Kong.  To this end, it was submitted, that to support an exceptional consideration for a departure from the existing dependant policy, there must be sufficiently exceptional grounds before the Director would do so.

17. As I will endeavour to explain in this judgment, I did not find that the Director appropriately or properly applied the policy in the present case, and that he failed to appropriately consider, if at all, the compassionate or humanitarian grounds or extenuating circumstances that were present in this case.  As will become apparent, the Director in my view focused principally, if not only, on the applicant’s criminal record which related to immigration offences which were not considered in their proper context, nor viewed taking all facts and circumstances into account in arriving at his decision.

18. The policy was examined in some detail by A Cheung J (now Cheung CJHC) in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219.  In that case a divorced foreign national aged 58 years who had previously lived in Hong Kong applied for a dependant visa on the sponsorship of her son who was born in Hong Kong and residing here.  The Director refused her application.  He found that her case fell outside the established policy in granting dependant visas, in that she had not yet reached the age of 60 years, and also took the view that there was no reason for treating her application as an exception to the existing immigration policy.  The applicant and the sponsored son challenged the Director’s decision by way of judicial review on the grounds that the Director fettered his discretion by shutting his mind to the possibility of departing from his established policy and that he failed to take into account the family rights of the applicant, and the sponsored son.  In dismissing the application, A Cheung J examined the Director’s dependant policy and made the following observations and comments:

“15. It is noteworthy that there is no challenge against the constitutionality or lawfulness of the Director’s dependant policy, under which foreigners may be allowed to join relatives in Hong Kong as their dependant in appropriate cases. Under the existing dependant policy, for a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay, the following dependants may apply to join the sponsor for residence in Hong Kong:

(a) his/her spouse;

(b) his/her unmarried dependant children under the age of 18; and

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

16. The policy is well established and published. According to the evidence, as dependency is an essential element of the policy, and since it is considered that the categories described are necessary to enable an administratively workable policy consistent with Hong Kong’s general immigration policy, an exception to the policy’s requirements may only be made where there are exceptional humanitarian or compassionate grounds. Thus exceptionally, an under‑aged parent may be allowed to stay in Hong Kong as a dependant of his or her sponsoring child, or an over‑aged child may be allowed to stay in Hong Kong as a dependant of his or her sponsoring parent, if there are strong compassionate or humanitarian reasons or other special extenuating circumstances to justify a departure from the established policy.

17. The policy works in the following way in practice. Where the applicants falls within one of the categories described, the application for entry to take up residence as a dependant may be favourably considered if there is reasonable proof of a genuine relationship between the applicant and the sponsor; there is no known record to the detriment of the applicant; and the sponsor is able to support the dependant’s living at a standard well above the subsistence level and to provide him/her with suitable accommodation in Hong Kong.

18.  However, for an applicant who does not fall within one of the described categories, the Director’s foremost consideration would be on whether any compassionate, humanitarian or extenuating elements exist, and whether such elements form a sufficient justification for a departure from the policy.  It is only where these elements indicate that the applicant’s case is an exceptional one that the other eligibility requirements (such as the intended sponsor’s financial standing, the maintenance and accommodation to be provided to the applicant) would be considered.  Otherwise, fulfilment of these other eligibility requirements would not override the applicant’s failure to fall within the described categories in the first place, and under the policy, the application would be rejected.”

19. I note of particular relevance to the present case is A Cheung J’s observation that the categories of dependancy in paragraph 3 are an essential element and it was on this basis he dismissed the application.  The decision highlights the distinction between the categories in paragraph 3 and the factors in paragraph 5 which will feature predominantly in the judgment.  It also highlights that outside the requirements of the policy, compassionate or humanitarian grounds or extenuating circumstances may justify a departure from the policy.

The Decision

20. The evidence of the immigration officer[15] who handled the applicant’s application for residency as a dependant was that he applied the Dependant Policy as contained in the Guidebook when processing the application.

21. He stated that according to the available records, the sponsor, that is the applicant’s wife, was born in Hong Kong on 11 August 1982.  She departed Hong Kong with her mother on 1 September 1984 and returned on 28 January 1988.  She left Hong Kong again to return to Pakistan in 1989.  On 22 April 2008, she entered Hong Kong as a visitor.  She applied to become a permanent resident of Hong Kong but was refused because certain requirements have not been met.  However, she had acquired the right to land and was entitled to enter Hong Kong freely to live, study or work without any restriction.

22. The officer in assessing the application concluded that the matrimonial relationship between the applicant and the sponsor was genuine and that the sponsor had the financial capacity to support a family of three to live in Hong Kong.  He went on to consider the previous convictions of the applicant.  He said:

“… The nature of the offences involved dishonesty in nature. All offences involved immediate custodial sentence imposed by the court. It was decided to go for deportation against AP on the grounds that the offences committed were serious in nature; he deliberately committed the offences; and it would not be in the public interest to allow him to remain in Hong Kong. The deportation proceeding was in the pipeline following the determination of his torture claim.

In all, it is considered that the criminal records are detrimental to the application.”

23. The officer said in his evidence that the offences committed involved dishonesty in nature and that immediate custodial sentences had been imposed.  He said that the decision and the reasons to go for deportation against the applicant, and the fact that deportation proceedings were underway following the determination of the applicant’s CAT claim, led him to consider that the applicant’s criminal record was detrimental to his application even though he did not consider the record itself to be necessarily decisive of the result.  I am not quite sure what he meant by that because it seems clear to me that he did treat it as decisive of the result in that, it was the sole basis why the application was refused.  He concluded that the criminal records were detrimental to “the application”.[16]  He went further than as stated in the factor of paragraph 5 which is no known record to the detriment of “the applicant”.  I do not consider that this was a mistake as it was repeated in the officer’s evidence before the court.[17]  It was also repeated by the officer who conducted the reconsideration where she mentioned it and concluded that the previous refusal decision was justified.[18]  She did, however, addressed the applicant’s criminal records as “known records to the detriment of the applicant”.[19]  I mention this because this was a significant departure from the policy.  It also seems to me that consideration of the criminal record was greatly influenced by the deportation proceedings and the applicant’s failed CAT claim where this factor should have been considered by the Director according to his own assessment within the terms and requirements of the application. 

24. The officer, however, went on to state that in considering whether there were exceptional grounds for justifying the approval of the application notwithstanding his criminal record, he closely took into account the facts and matters set out in the applicant’s representations dated 5 June 2012.  The applicant had stated that he wanted to stay in Hong Kong to live with his wife and their daughter.  He said that his wife was running a business while their daughter was studying in Hong Kong.  He also said that he would not be able to see them after returning to Pakistan.  

25. The officer addressed these matters in his minute as follows.  First, he noted that the applicant was born in Pakistan and before coming to Hong Kong he had all along lived and got married there.  He noted that his parents and siblings all resided in Pakistan. He said that following the determination of the applicant’s CAT claim, he anticipated that there would be no undue hardship for him to resettle in Pakistan.  Secondly, he noted that the applicant’s two children from his first marriage, aged 9 and 11 years respectively, and three children from his current marriage, aged 8, 10 and 11 years respectively, all resided in Pakistan and that they were being taken care of by the parents of the applicant’s wife.  He said that as the majority of the applicant’s family members, in particular his five children, resided in Pakistan, it was considered that no undue hardship was anticipated for him to return to Pakistan.  He added that the Hong Kong born daughter may choose to reside and study in Pakistan together with her siblings and the applicant’s wife was free to pay regular family visits to them in Pakistan.  Thirdly, he observed that while the applicant’s wife was running her business in Hong Kong, he could apply for an appropriate visa to visit her if he so wished.  Fourthly, he considered the letter from the applicant’s religious order that he was a person of good character to have little bearing.  The officer stated that having considered all the circumstances of the case, including the representations from the applicant, there was no overwhelming ground justifying exceptional consideration of the case and he recommended refusing the application as there was a known adverse record to the detriment of the application.[20]

26. In a letter dated 26 July 2012, the Director refused the applicant’s application for residence as a dependant.  The material part of the letter read:

“According to the eligibility criteria, a person who wishes to come to the HKSAR for residence to join his/her local spouse as his/her dependant has to meet the approval criteria which include, among others, there is no known record to the detriment of the applicant.

After careful consideration of all information and circumstances pertaining to you application, I regret to inform you that your application for residence as a dependant is refused as the aforesaid eligibility requirement is not met.”[21]

The Reconsideration

27. By a letter dated 25 September 2012 from the applicant’s wife’s then legal representatives, it was requested on her behalf that the Director reconsider the applicant’s application.[22]  It was submitted that the applicant had already served a sentence for the offences committed and that he should not be punished twice and reference was made to another case where approval had been given in the face of an adverse record.  It was also submitted that the applicant and his family should be united and not separated.  Attached to the letter were testimonials of the applicant’s good character and a letter from the wife dated 21 September 2012.  

28. In the wife’s letter, she pleaded that for her benefit her husband’s application be favourably considered.  She explained that she ran a business on her own and needed the support of her husband.  She explained that he provided her with moral and emotional support and that as a Muslim woman it would be very difficult for her to cope with her daily life without her husband.  She talked of her husband’s qualities and the impact the decision would have on her without him by her side.  She said: “I do not want to be separated from my husband.  It would be a torture for me to live without him”.[23]

29. The application for reconsideration was dealt with by a senior immigration officer who carried out a review of the refusal to grant the applicant’s application.[24]  The officer in her minute placed emphasis on the known record to the detriment of the applicant.[25]  She stated that the nature of the offences for which he was convicted should be regarded as serious as they involved dishonest acts.  She stated that the heavy sentence imposed and the decision of making a deportation order had indicated the seriousness of the criminal offences committed.  She noted the making of a deportation order was withheld pending the screening result of the applicant’s CAT claim.  She stated that the criminal conviction records should be taken into account in the assessment and should be regarded as “known records to the detriment of the applicant”.  

30. The officer recorded her comments on the right to family life. She stated that the Immigration Department was under an overall duty to enforce effective and proper immigration control in Hong Kong.  She stated that ascertaining all aspects under existing immigration policy and normal immigration requirements before granting stay permission was a crucial step in discharging such duties.  She commented that while every Hong Kong resident was entitled to family rights conferred to him or her under the Basic Law, it was also crucial that a visa application sponsored by a Hong Kong resident met the specific eligibility criteria under the prevailing policies, as well as normal immigration requirements before the application could be considered favourably.  

31. She dismissed the good character letters in relation to the applicant as carrying little weight in the consideration of the application.  She recommended that having considered all the circumstances of the case, including the representations from the wife and the legal representatives, it was “considered that the criminal conviction record of the applicant is serious in nature and there being no overwhelming factors or justifiable reasons to support our exceptional consideration for departure from the existing dependant visa policy”.  She concluded that the previous refusal decision was justified and recommended maintaining the decision.

32. Under cover of letter dated 14 February 2013, the Director advised the then legal representatives of the wife that having reviewed the information made available and all the circumstances of the case they could not find sufficient grounds justifying a reversal of their previous refusal decision and that the previous decision was maintained.[26]

The Right to Family life

33. Mr Philip Dykes, SC, for the applicant, argued that in considering the application for a dependant visa, the Director should have taken into account the relevant rights to family, which were engaged by the decision.  He added the other than the applicant's individual human right to family, the rights of the applicant's family members, as Hong Kong residents, were also relevant.  He submitted that in view of the severe impact that any decision relating to the applicant’s dependant visa may have on the family members, the Director was obliged to take into account the interests of the applicant and the interests of his wife and child as a composite family unit.  This obligation, he submitted, arose as a matter of obligation under the normal principles of decision-making in public law where a decision maker must have regard to relevant issues and, if the decision‑making is shaped by a policy, the policy must not deflect the decision maker from having regard to those issues. There is force in this submission in that putting the issue of family rights aside, if the family circumstances of an applicant are a relevant matter then they should be appropriately and properly taken into account.

34. On the issue of family rights, Mr Dykes referred to Article 37 of the Basic Law which provides that “the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law”.  He argued that the applicant enjoyed the protection of these rights as a non‑resident by virtue of Article 41 of the Basic Law which provides that: “Persons in the Hong Kong special administrative region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents described in this chapter”.  He submitted that family members also enjoyed rights enshrined under the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR) by virtue of Article 39 of the Basic Law which provides that these two international covenants remain in force and shall be implemented through the law of Hong Kong.  The ICCPR is incorporated into the domestic law by virtue of the Hong Kong Bill of Rights Ordinance, Cap 383 (HKBORO).

35. The rights in question are found in Article 19(1) of the HKBORO and Article 23(1) of the ICCPR which states: “Family is the natural and fundamental group unit of society and is entitled to be protected by society and the State”; and Article 10(1) of the ICESCR which states: “The widest possible protection and assistance should be accorded to the family, which is the fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependant children”.  In the present case, the rights and interests of a child are also in question as found under the Convention on the Rights of the Child (CRC). Articles 3, 9 and 10 express fundamental rights for the well‑being and protection of the child and as is material to the present case ensure that the best interests of the child is a primary consideration, that a child is not inappropriately separated from his or her parents and that in immigration matters affecting a child that family reunification be dealt with in a positive, humane and expeditious manner.

36. Mr Dykes referred to a body of jurisprudence from the European Court of Human Rights and England and Wales where the prime importance of family rights and the interests of the child in the context of immigration cases is well recognised.  Mr Dykes argued that even with due recognition to the legitimate restrictions on a non‑resident seeking to enforce family rights in the face of immigration decisions, there is strong recognition of the impact that the rights of family members, and in particular a child’s rights, have when taken into account in the exercise of immigration powers.  He also argued that immigration decisions which have a clear impact on a family, the Director is obliged to take into account the child’s interests as a primary consideration in the exercise of his discretion.

37. Mr Dykes submitted that the relevant rights engaged in the present case related not only to the applicant’s individual right to family but also to the interests of the family unit as a whole that would be affected by the Director's decision.  He acknowledged that the courts in Hong Kong have held that those who do not have a right to enter or remain in Hong Kong are unable to rely on the rights of family members as mentioned to resist removal from Hong Kong.  However, he submitted that the courts have recognised the importance of the family unit and the interests of children as an important factor in immigration and expulsion cases and the Director must accordingly take family connections into account as a highly material consideration when determining applications for dependant visas.  Of course, this will be fact and case-sensitive but if the family connections are relevant, then they should be taken into account like any other relevant consideration, and if taken into account should be appropriately and properly considered.

38. Mr Abraham Chan, for the Director, argued that there is no such right to family available to the applicant to be invoked in this immigration matter.  He submitted that even though one can find a right to family in many human rights conventions, none of them have any relevance when it comes to this dispute, in relation to a person without right of abode in an immigration matter.

39. In respect of Article 19(1), namely the rights in respect of marriage and family, regardless of its meaning and purpose, it was not available to the applicant, who does not have the right of abode, by virtue of the section 11 of the HKBORO, which reads:

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

40. This proposition is supported by the judgment of the Court of Appeal in Ubamaka Edward Wilson v Secretary for Security [2011] 1 HKLRD 359, which was upheld by the Court of Final Appeal, Ubamaka Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743.  The Court of Appeal said at paragraph 135:

“… there is a long line of cases decided in Hong Kong in which it has been confirmed that the effect of section 11 of the HKBORO and the immigration reservation to the ICCPR is that the provisions of the BOR and the ICCPR respectively cannot be invoked to enable those not having the right to enter and remain in Hong Kong to resist removal or deportation.”

41. In the appeal to the Court of Final Appeal in that case, which was dismissed, Ribeiro PJ held at paragraph 115 that:

“Section 11 must be understood to exclude the application of HKBORO and BOR in relation to the exercise of powers and the enforcement of duties under immigration legislation regarding persons not having the right to enter and remain in Hong Kong.”

42. On the interpretation of Article 37, Mr Chan cited the judgment of Lam J (now Lam VP) in Li Nim Han v Director of Immigration [2012] 2 HKC 299, where he held that the article is not to protect the general right of family life, such as the right to a spousal relationship or the right of a child to paternal support.  Instead, it is to protect the right to procreate and foster children.  Therefore, even if this right was available to a person without the right of abode, it was not relevant to the case at hand.

43. Mr Chan also pointed out that Article 37 is qualified by section 11 of the HKBORO and Articles 41 and 154(2) of the Basic Law.

44. Mr Chan submitted that as the law gives the applicant no right of abode in Hong Kong and that he has no right to enter or remain in Hong Kong, he cannot rely on Article 37 to challenge the decision as this is precluded by the operation of immigration controls which exclude the application of Article 37.  Accordingly, any rights conferred by the Basic Law to the applicant cannot be used to resist the Director’s decision on his visa application.

45. In respect of Article 10(1) of the ICESCR, Mr Chan cited Chan To Foon v Director of Immigration [2001] 3 HKLRD 109, in which Hartmann J (as he then was) stated that the ICESCR does not create an absolute obligation on the government, due to its aspirational nature.  Whilst that is so, the aspirational nature of an objective does not diminish its force or applicability to relevant circumstances.  In respect of the CRC, Mr Chan cited a list of cases where arguments on the CRC had been previously rejected.  See Chan To Foon v Director of Immigration [2001] 3 HKLRD 109 at 127C‑130C per Hartmann J; Mok Chi Hung v Director of Immigration [2001] 2 HKLRD 124 at 133B‑135H per A Cheung J (as he then was); Li Nim Han v Director of Immigration [2012] 2 HKC 299 at paragraph 15 per Lam J (as he then was).

46. It is clear on the authorities, as submitted by Mr Chan, that a non‑resident cannot call upon the Bill of Rights or the relevant articles under the Basic Law to invoke family rights.

47. Mr Chan also argued that with no protected constitutional or similar right to family life being engaged in this case, that the applicant’s reliance upon various alleged facts concerning his family situation was essentially an appeal to broad humanitarian considerations.  He relied on the comments of Li CJ in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332F‑G, where he said, in the context of immigration and the potential removal of non‑residents, that the Director:

“… is under no duty and hence not bound to take humanitarian considerations into account. Assuming the applicants would have put forward humanitarian grounds, any failure by the Director would not have availed them since the Director was not bound to consider them…”[27]

48. The point still remains that if the Director does take into account humanitarian considerations then he must do so fairly and properly. As will become apparent in my judgment, when family circumstances are considered in an application of this type, whatever the classification that they are given, it remains that they are assessed and evaluated in accordance with administrative law principles.  

49. In relation to a sponsor’s right to family life, Mr Chan referred to Marilyn G Aringo v Director of Immigration HCAL 96/2004, 5 September 2005, at paragraph 43, where Hartmann J said that an applicant cannot rely on the right of other family members, such as the sponsor, as a back door solution to the barriers imposed under the Basic Law and the HKBORO.  Accordingly, he submitted that the applicant could not rely on the sponsor’s right to family life to support his case.

50. As there was no right to family life to be relied on in this case, Mr Chan categorised the family circumstances to be “humanitarian considerations”, which the Director was not bound to consider.

51. A Cheung J addressed the issue of family rights in Gurung Deu Kumari.  He examined Articles 37, 39 and 41 of the Basic Law and Articles 14 and 19 of the HKBORO as well as section 11 of the HKBORO.  He held that the Hong Kong Bill of Rights could not be invoked by a person not having the right to enter and remain in Hong Kong; nor could it be invoked by the family members of such a person who were residing in Hong Kong.  He applied Hai Ho Tak v Attorney‑General [1994] 2 HKLR 202.  He further held that Article 37 of the Basic Law was not engaged because of its wording.  The Chinese version of Article 37, which used the term “自願生育的權利”, referred to the right to procreate and to foster children voluntarily. The English version of Article 37, namely, “the right to raise a family freely”, was consistent with the Chinese version.  Thus, both English and Chinese versions had nothing to do with the maintenance or taking care of a parent by an adult child, or the formation or maintenance of a family comprising such a parent and adult child.  See Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717.  He also held in that case that even if Article 37 was engaged, then such interference with family rights was proportional and could be justified by the overall immigration picture in Hong Kong. 

Grounds of judicial review

52. The applicant had raised five main grounds for judicial review which primarily centred on the Director’s exercise of discretion under the prevailing dependant policy.  The first ground of review complained of the misapplication of the policy.  The second ground of review complained of the failure to take account of relevant considerations relative to the impact on the applicant’s family.  The third ground of review complained of the unlawful fettering of discretion.  The fourth ground of review complained of manifest unreasonableness.  The fifth and final ground of review complained of procedural unfairness.

53. It is argued by the applicant that his application was refused on the sole ground of his previous criminal record, and the alleged seriousness of the offences involved, but otherwise he had satisfied the other relevant considerations.  He complained that the “no known record” factor appeared to be treated as a specific eligibility criterion (or as an ineligibility criterion) under the policy for a dependant visa and little if any real consideration was given to family rights and the family circumstances of the applicant.

54. The Director argued that the applicant’s challenge relates exclusively to his exercise of discretion under the prevailing dependant policy.  He submitted that the legality of the policy was not under challenge even though there was some debate as to how the policy was to be construed.  He submitted that the judicial review concerned solely the legality of the decision which he complained was a thinly veiled challenge as to its merits which was not the function of a judicial review.  I do not accept this complaint as it was clearly necessary in order to consider the judicial review of the decision to take into account the factual context in which it was made.  Furthermore, factual issues may go to the legality of the decision.  The merits of a decision go to the intrinsic quality of the matters that have been taken into account in arriving at the decision and forming the basis of it.  This judicial review did not involve a challenge to the merits of the decision. 

55. It is clear in light of the authorities that the applicant, as a non‑resident, cannot invoke the provisions of the Bill of Right or the Basic Law to assert a right to family life in his challenge against the decision of the Director.  Nor can he pray in aid any rights of his family members in his challenge. 

56. The Director’s position is that the court should be slow to intervene in the Director’s decisions, especially in relation to the exercise of discretion in immigration matters.  The threshold for such judicial intervention is high as held in Aguilar Joenalyn Elmedorial v Director of Immigration, FAMV 47/2013, 28 January 2014.

Ground 1 – The Director’s misapplication of the policy

57. On my understanding and interpretation of the policy statement contained in the Guidebook, an applicant must first satisfy the eligibility criteria as stated in paragraph 3 by coming within one of the three categories listed.  If that is satisfied, the Director must then take into account all relevant circumstances of the applicant to consider whether he ought to be granted a dependant visa.  The first step then according to this policy is to ensure that the applicant is truly a dependant of the sponsor.  It is argued by the applicant that as a consequence the factors identified in paragraph 5 are just some of the factors to be taken into account by the Director in exercising his discretion.  The wording of paragraph 5 provides some insight on this issue.  It is stated that an application for admission of a dependant “may be favourably considered” if the three factors listed are satisfied.  It is argued by the applicant that none of these factors are in themselves conclusive and in any event are only one of many factors to be taken into account by the Director when exercising his discretion.  It is accordingly submitted by the applicant that the Guidebook properly construed does not allow for any automatic granting or refusal of an application simply on the factors listed in paragraph 5, otherwise these factors would be listed as one or more of the eligibility criteria to be satisfied, or the wording of paragraph 5 would have been more precisely drafted to state categorically that these factors must be satisfied in order to allow admission of a dependant.  The phrase “may be favourably considered”, leaves open the option for the application to be refused even if these factors are satisfied.  It is on this basis that the applicant argued that the Director must explain how the factors in paragraph 5 operate in the circumstances of an individual case so as to justify a refusal of the dependant visa.  It is not enough, argued the applicant, that the Director in the proper exercise of his discretion, simply to cite one of the factors in paragraph 5 as a ground for refusal without any particulars or elaboration, which the applicant complained has happened in the present case.  In my view, it is enough, if it is apparent from the record, the basis of the decision and the factor or factors that led to the decision.

58. There is a distinction between eligibility criteria which must be satisfied and serve as a ground for refusal in their own right if not satisfied, and grounds for refusal which may or may not operate in a particular case.  The degree of flexibility, if any, in terms of the nature and extent to which the ground must be satisfied, will depend on whether it is a specific eligibility ground or a general eligibility consideration.  The applicant argued that the factors contemplated in paragraph 5 relating to proof of genuine relationship, known record to the detriment of the applicant and financial support for the applicant, are matters to be taken into account and may be afforded different weight depending on the individual circumstances of the case.  As illustrated in argument by the applicant, the policy contemplates that a dependant visa may be refused on account of a lack of financial support but this must be done with proper reasoning by the Director and it must be shown that the other circumstances that may be relevant had been taken into account and properly considered.  It is on this basis that the applicant argued that it is important that the Director demonstrates a consideration of other factors relevant to the application that may have a significant and important bearing on the exercise of the discretion.  The applicant illustrated this point by submitting that his family connections are engaged by virtue of the serious impact the decision might have on his family unit as a whole (as opposed to a family right that cannot be invoked by the applicant).  It is argued that insofar as the Director purported to refuse the applicant’s application on the sole ground of “no known record”, without demonstrating a consideration of the other circumstances in the case, there has been a misapplication of the dependant visa policy which constituted an unlawful exercise of the Director's discretion.  It is further argued that to refuse the applicant’s application solely on this ground, the Director wrongly assumed that it was a ground for refusal in its own right.  It is open, of course, to the Director to reject an application on the basis of an applicant’s known record but treating the “no known record” factor as he did in the circumstances of the present case was a misapplication of the policy which will become apparent in the reasoning to follow. 

59. Mr Abraham Chan, for the Director, disagreed that the policy had been misapplied in the present case.  He argued that both paragraph 3 and paragraph 5 set out criteria which the Director considers as highly important to and generally dispositive of applications for dependant visas.  He explained that paragraphs 3 and 4 specified which dependants of certain specified categories of sponsor may apply to join the sponsor for residence. He further explained that paragraph 5 then specified when applications by dependants specified in paragraphs 3 or 4 “maybe favourably considered”, identifying three requisite conditions or circumstances.  He argued that paragraph 5 set out general policy conditions or requirements which must generally be satisfied before the Director exercised his general discretion under the policy.  He supported his argument by making three points.  First, that from the wording and syntax of the opening statement of paragraph 5 the matters set out in (a) to (c) were expressed as conditions to be met in order to engage the Director’s general discretion as indicated by the phrase “maybe favourably considered”.  Secondly, the nature of the matters specified in (a) to (c) would be crucial in virtually every conceivable case for a dependant visa.  Thirdly, the use of the conjunctive reinforced that these matters were critical conditions of requirements which must each be met and not mere factors to be weighed up as a matter of general discretion.

60. Mr Chan cited the case of Gurung Deu Kumari where A Cheung J discussed the dependant policy and noted that where there is an applicant who falls outside the scope of paragraph 3, his application is not automatically at an end.  A Cheung J explained that the Director would still go on to consider the applicant’s overall position, but only on the footing that the application fell outside the core parameters of the policy and as such would only be granted as a matter of residual discretion if exceptional compassionate, humanitarian or extenuating circumstances were shown.  Mr Chan argued that the position as regards the paragraph 5 requirements was no different.  He argued that the general position under the policy was that the applicant should meet all three requirements in paragraph 5 before the grant of a visa may be considered.  However, in the event of these requirements not being met, the Director may still exceptionally grant a visa if he considers that there are strong compassionate or humanitarian reasons or extenuating circumstances to justify such a course, bearing in mind the importance of stringent immigration control.  This was taken from the evidence submitted on behalf of the Director by way of affirmation.  However, this is not what the policy states exactly.  It does not express the three factors in paragraph 5 as being requirements that must be met for a dependant visa to be granted.  The factors under paragraph 5 are separate and distinct from the categories under paragraph 3 which are clearly eligibility criteria that an applicant must come within one of them and only in exceptional cases will consideration be given to an applicant who falls outside any of these categories.  The same cannot be said about the three factors in paragraph 5.  They are three specific factors, clearly important ones, that are taken into account in deciding whether or not to grant a dependant visa.  If satisfied, they may lead the decision maker to favourably consider an application for admission as a dependant.

61. Mr Chan also argued that the Director was in law entitled to operate a dependant policy with stringent general requirements so long as he was prepared in operating the policy to consider each case on its individual merits to see if there may in his assessment be grounds for an exception where general requirements were not met.  He pointed to the records and evidence of the Director and claimed that that took place in the present case.  From my assessment of the material, that is not the case. 

62. Mr Dykes argued that there was no issue that the applicant’s wife was a Hong Kong resident, that the marriage between them was genuine, and that the wife had sufficient resources to support the applicant in Hong Kong.  He submitted that the only factor against the applicant was his 2005 convictions for immigration offences under the “no known record” factor contained in paragraph 5.  He made the point that the Director wrongly treated the “no known record” factor as an eligibility criteria which if not satisfied was treated as a sole ground for refusal without considering anything more.  I have to agree that on my assessment of the matter that is exactly how the case had been handled by the Director.

63. Mr Dykes also argued that this case concerned the proper construction of paragraph 5 of the Guideline.  He argued that the three factors listed in paragraph 5 operate as factors to be weighed and are not specific eligibility criteria because if they were they would have been included in paragraph 3 and the wording in paragraph 5 is consistent with the exercise of discretion in that the factors “maybe favourably considered”.  He argued that the paragraph 5 factors were wrongly treated in the same way as the paragraph 3 factors, that is, as specific eligibility criteria which could only be overridden in exceptional circumstances.  He further argued that the proper approach to the paragraph 5 factors would have been to consider them along with any other relevant factors without predisposition and give appropriate reasons for the weight given to each if deciding against an applicant.  He made the point that some reasons need to be given if the right of review that is available under section 53 the Immigration Ordinance is to be effective and useful.  I do not agree that the Director needs to go that far in the exercise of his discretion.

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 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.

65. A matter that has emerged from the papers relates to the conviction of the applicant for the offence of using an identity card relating to another and breach of condition of stay.  It was a result of those convictions that the applicant was sentenced to a term of imprisonment and ultimately subject to a deportation order.  I make the observation that a dependant of a person who is a resident and not subject to a limit of stay is not prohibited from taking up employment in Hong Kong.  In such a case, no prior permission from the Director is required to take up employment here.  It is relevant to bear in mind that the offences committed by the applicant arose in circumstances where he was residing and working in Hong Kong.  The possession and use of another person’s identity card is a serious matter and a conviction had been appropriately recorded against the applicant for having done so.  However, if the offence arose from circumstances where he sought to work to sustain himself while seeking residency in Hong Kong, then where appropriate and for the purpose of determining a person’s application for residency in Hong Kong, such a prior conviction should be considered in an appropriate light as compared to a prior conviction for a serious offence unrelated to illegal working or staying in Hong Kong.  I am not seeking to condone such conduct but it is only fair that an offence be considered appropriately for the purpose for which it is to be taken into account, and in its proper context, having due regard to the circumstances in which it arose and was committed.  I do not consider that that was appropriately done in the present case. 

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 recognised 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 resident 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.

67. On this ground alone, I would allow the judicial review. 

Ground 2 – The Director’s failure to take into account relevant considerations

68. It is well settled that if a decision maker takes into account matters irrelevant to his decision, or fails to take into account matters relevant to his decision, the court may set aside the decision.

69. It is argued by the applicant that the failure to take into account the impact that the decision would have on the members of the applicant’s family, and on the family as a whole, constituted a material failure to take into account a relevant consideration.  It was submitted that the Director in the present case did not show any regard to family rights and to the interests of the applicant’s wife and child where the sole determinant factor in refusing the application was the factor of “no known record”.  It was submitted that an examination of the internal memoranda, revealed that the sole consideration in the refusal of the application was the applicant’s record and the alleged seriousness of the offences.  It was complained that the Director was obliged to take into account the adverse impact the decision would have on the applicant’s family, and in particular how it would affect the interests of the wife and child.  I have already made it clear that according to the relevant authority, the applicant cannot avail himself of family rights, but he can seek to argue that his family circumstances were relevant consideration that should have been appropriately taken into account and considered. 

70. Mr Chan his written submissions addressed the grounds of a review in relation to unreasonableness by addressing the Director’s alleged failure to take account of the impact of refusing a visa upon the applicant’s family unit either on its own or weighed against his criminal convictions.  I note that Mr Chan addressed this issue in part by focusing on how a refusal of a visa would impact on the applicant’s family unit.  The argument does not address, what I consider to be a pertinent issue, and that is, whether, and to what extent, the family circumstances of the applicant should be taken into account in deciding whether or not to grant a dependant visa.  I will say something about this later in my judgment.

71. Mr Chan argued that in the circumstances of the applicant the right to family life was not engaged and absent any such right, the applicant cannot argue that the Director failed to consider the matters that he had raised relating to his family circumstances.  He argued that the Director had no legal duty to consider the family circumstances of the applicant which had no higher status than humanitarian circumstances that the Director might consider in the exercise of his discretion.  He pointed out that the policy itself generally required the fulfilment of each of the requirements in paragraph 5, and given that the applicant did not challenge the lawfulness of the policy, the Director’s conclusion that no exceptional circumstances existed was not one that was susceptible to judicial review.  He submitted that the Director was simply following what was a lawful policy and that he was not legally obliged to take into account humanitarian considerations.

72. Mr Chan highlighted the distinction between mandatory and discretionary relevance and referred to the comments of Laws LJ in R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB 289 at paragraphs 131, where he said “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” ; and Li CJ in Lau Kong Yung at 332H, where he said “for impugning a decision one is concerned with what the decision maker is bound to consider”.  

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 this as a proposition or to be the case.  He argued in the alternative that even if the Director’s conclusion was subject to challenge on unreasonableness or related grounds, the standard of manifest unreasonableness was very high and a court should be extremely slow to interfere with a discretionary decision of the Director as regards immigration control. 

74. Whilst I accept that as general proposition, it seems to me that the greater the restrictive or stringent immigration controls that are in place, the greater the readiness of the courts to ensure that such controls are fairly and justly applied. 

75. Mr Chan argued nevertheless that the evidence showed that the Director took into account the fact that the applicant’s youngest child with the sponsored wife resided in Hong Kong but it was noted that his other five children resided in Pakistan; that the Director took into account that the applicant’s claim that he would not be able to see the sponsored wife and his youngest child after returning to Pakistan but noted that most of his family members resided there and that his Hong Kong born child could choose to reside and study in Pakistan and that his sponsored wife could also regularly visit him there; that the Director took into account the representations on behalf of the applicant including that the family should be united and not separated; and that the Director took the view which he was entitled to do that the criminal convictions of the applicant involved dishonest acts and were serious, so much so as to warrant a deportation order. 

76. From my assessment of the internal memoranda, that whilst the 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, and certain assumptions or propositions were made which were either unsupported or unfounded.  I deal with this in specific detail in the fifth ground of review. 

Ground 3 – The Director’s fettering of discretion

78. Where a public body maintains a rigid policy with no exceptions, it thereby fetters its discretion.  As a matter of principle, a public body must consider particular cases and not follow stated policy blindly.

79. The point made by the applicant was that the Director is vested with a discretionary power to consider applications for a dependant visa and must not operate or apply a policy inflexibly or fail to take into account the individual circumstances of the applicant.  The principal function of a policy is to ensure accountability, certainty and consistency with respect to the decision making processes and the decisions in relation to the matter or subject of the policy.  It is complained by the applicant that the Director in the present case was over rigid in the application of the policy in refusing the application on the sole ground of “no known record”.  It is further complained that the applicant’s individual circumstances appear to have been superficially regarded, if at all.  It is submitted that the Director unlawfully fettered his discretion to consider the applicant’s claim for dependency by treating any applicant with a criminal record as an automatic ground for refusal, without evaluating the specific circumstances of the offences and the general circumstances of the applicant.

80. In support of this ground, the applicant relied on an examination of the relevant minutes and the routine manner by which the policy was applied without any real consideration of the individual case.  This the applicant argued was evidenced by the way the policy was misapplied, the failure to allow the applicant the chance to respond to important issues and the way facts of the case were weighed and considered, in particular, the great weight given to relatively minor offences and little if any consideration of the significant impact the decision would have on the resident wife and child.  

81. This complaint was generally addressed in relation to the first ground of review and there is no need for me to repeat the points that were made. 

Ground 4 – The Director’s decision was unreasonable

82. It is submitted by the applicant that no reasonable decision maker could have rejected the applicant’s claim on the ground of “no known record”.  The test for unreasonableness seeks to consider whether the decision was one which a reasonable decision maker could not have made, if properly directing himself in law, seized of the relevant facts and taking account of considerations which, in the context of the case, he was bound to take into account.  See In Re Duffy [2008] UKHL 4 at paragraph 28 per Lord Bingham.  As noted by Lord Donaldson MR in R v Take‑over Panel ex p Guinness plc [1990] 1 QB 146, at 160C:

“… the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take.”

83. It was argued by the applicant that in the present case it was clear that the applicant’s record could not outweigh the interests of his family unit and that the refusal for a dependant visa in the circumstances of this case was not a decision open to a reasonable decision maker.  The applicant set out the following particular facts that supported the grant of a dependant visa:

(i) The applicant’s wife and child were both born in Hong Kong and are residents here.  The applicant’s wife has an established business in Hong Kong and able to earn a better living here and provide for the rest of her family in Pakistan.

(ii) Most of the wife’s family live in Hong Kong and it would be unreasonable to expect her to relocate to Pakistan with the applicant if he was caused to returned there.

(iii) The daughter has lived in Hong Kong for the whole of her life and attends a local school.  She is proficient in Cantonese.  She has never known any other place as home and it would cause her great difficulty to expect her to go to Pakistan and to adapt to the way of life there.

(iv) The applicant otherwise satisfied the requirements listed in paragraph 5 in the Guidebook.  The Director found that the matrimonial relationship between the applicant and the wife was genuine and the wife as the sponsor had a stable income and was able to support the applicant in living in Hong Kong.

(v) The applicant’s record relates to relatively minor immigration offences, and any concerns about the applicant staying in Hong Kong can be properly addressed by appropriate conditions being imposed and do not therefore serve as a bar to his application for a dependant visa. 

84. Except for the views expressed by the applicant as to the importance or weight of the matters listed above, they were matters that warranted consideration in deciding the applicant’s application.  The fact that they were mentioned in the internal memoranda and during the decision making process of the Immigration Department, readily verifies the need for these matters to be considered.  What is in issue is whether they were appropriately and properly considered, which I have already found they were not. 

Ground 5 –The Director’s decision was unfair

85. The applicant and his wife made representations to the Director of the adverse impact the applicant’s removal would have on their family life and on their child.[28]  There is no need to repeat the concerns that were expressed by both the applicant and his wife to the Director but essentially they concerned the trauma and hardship that they would experience if the applicant and his wife and child were to leave Hong Kong and return to Pakistan or if the applicant was to leave Hong Kong and return to Pakistan leaving behind his wife and child.

86. In this regard, the applicant referred to the comments of the immigration officer who made the refusal decision where in his recommendation, he commented that as the applicant’s other children resided in Pakistan, he considered that there was no undue hardship to him to return there; that his Hong Kong born daughter may choose to reside and study in Pakistan together with her siblings; that the applicant’s wife was free to pay regular family visits to him in Pakistan; and that the applicant may apply for an appropriate visa to visit his wife if he so wished.  It is complained specifically that the options of the applicant’s child may choose to reside and study in Pakistan and his wife was free to regularly visit him in Pakistan were not canvassed by the applicant and his wife in their representations to the Director.  It is complained that the Director should therefore not have concluded that the applicant’s wife could travel to Pakistan for the sake of the marriage or that the daughter might wish to the schooled there without first putting these options to them.  If, he had put these propositions to them specifically and if they had indicated that they would not do as suggested, it was submitted by the applicant that the Director would then have had to make a decision knowing that it would effectively terminate the marriage.  This failure to give the applicant and his wife an opportunity to make representations in this context was procedurally unfair.

87. All questions of procedural propriety are highly contextual in nature.  It very much depends on the subject matter and the facts and circumstances of each case.  The applicant complained that the Director failed to put to the applicant certain grounds on which the application was dismissed and thereby denied him the opportunity to make comment or response.  This related to certain observations made by the assessment officer concerning the applicant’s personal and family circumstances.  It is argued that the Director had no general duty to take such considerations into account and therefore could not have acted contrary to any requirement of procedural fairness in not giving the applicant the opportunity to put what would have been further representations on such considerations before him.  

88. It is further argued that the Director could not be said to have failed to comply with procedural fairness if the applicant was not given an opportunity to supply further representations.  It was submitted that this information would be known to the applicant and the burden was on him to submit such information and it was reasonable for the Director to assume all relevant information had already been provided.  I agree with this submission.

89. However, I take another view on the matter.  As part of the evaluation process in arriving at a decision, certain relevant assumptions or propositions may be canvassed or considered.  In my view, a decision maker needs to take great care in taking into account certain assumptions or propositions when making his decision.  First, the assumptions or propositions must be relevant.  Secondly, they must be fairly and realistically stated and considered.  Thirdly, they must not be overstated or extreme.  The inherent danger when taking into account an assumption or proposition is that it does not take on significance far greater than it deserves.  I consider that the views expressed by the officer referred to above were questionable considerations that permeated throughout the decision making process and inappropriately impacted on the decision. 

Conclusion

90. I am satisfied that the Director in the processing of the applicant’s application misapplied the policy, did not appropriately or properly assess and consider the factor “no known record” in relation to the applicant’s criminal record, took into account assumptions or proposition that were inappropriate or unfounded, and having considered the applicant’s family circumstances as a relevant consideration did not appropriately or properly take them into account in arriving at his decision.

91. For the foregoing reasons, I make an order certiorari quashing the Director’s decision made on 14 February 2013 upholding the refusal decision made on 26 July 2012 and direct that the Director reconsider the applicant’s application for a dependancy visa and reach a decision in accordance with the judgment of the court.  I make an order nisi that the respondent pays the applicant’s costs, to be taxed if not agreed, to become absolute within 14 days of the date of judgment.

Mr Philip J Dykes SC, counsel instructed by Daly & Associates, for the applicant

Mr Abraham Chan, counsel instructed by the Department of Justice, for the Director of Immigration

[1] Hearing Bundle (HB), Anonymity Order was granted on 14 November 2013, at 34-35

[2] HB, at 37-40

[3] HB, Originating Summons (Form 86A) and Inter Partes Summons, at 43-44 and 45-1 to 45-45

[4] HB, Affirmation of the applicant, para 5, at 47

[5] HB, 2^nd Affirmation of the applicant, paras 3-10, at 45-39 to 45-39A

[6] HB, at 125-130

[7] HB, at 131

[8] The wife enjoys the right to land under s 2AAA of the Immigration Ordinance, Cap 115.

[9] HB, at 112-118

[10] HB, at 119-122

[11] HB, Representation by the applicant dated 5 June 2012, at 132-136

[12] HB, Affirmation of Chiu Wai Fu Bob, Acting Principal Immigration Officer, dated 20 March 2014, at 107-111,

[13] HB, at 169-179

[14] See Article 37 of the Basic Law, Article 19(1) of the Hong Kong Bill of Rights, Article 23(1) of the International Covenant on Civil and Political Rights; Article 10(1) of the International Covenant on Economic, Social and Cultural Rights; and Articles 3, 9 and 10 of the Convention on the Rights of the Child.

[15] HB, Affidavit of Lung Ka Kit, Immigration Officer, dated 20 March 2014, at 94-101

[16] HB, paragraph 18 at 142 and paragraph 19 at 143

[17] HB, paragraph 28, at 100

[18] HB, paragraph 7 at 165 and paragraph 15 at 166

[19] HB, paragraph 11 at 165

[20] HB, Minute of the Assessment Officer, dated 16 July 2012, at 140-143

[21] HB, at 144

[22] HB, at 147-155

[23] HB, at 152

[24] HB, Affidavit of Lam Wai Men Shirley, Acting Chief Immigration Officer, dated 20 March 2014, at 102-106

[25] HB, Minute of the Assessment Officer, dated 28 March 2013, at 159-166

[26] HB, at 167

[27] See also In re Hai Ho Tak and Cheung Chun Heung [1994] 2 HKLR 202 (CA) at 210 (line 45) to 211(line 5).

[28] HB, at 132-136, at 152 and at 156-158