Dembele, Salifou and Others v. Director of Immigration
Read the full judgment text of HCAL 44/2014 on BabelCite. This High Court CFI judgment was delivered on 22 April 2016.
1. The 1 st applicant was born in Ghana and is a national of Mali. The 2 nd applicant migrated to Hong Kong in 2003 from the Mainland and has since 2010 been a Hong Kong permanent resident.
Cited by 18 cases · Cites 21 cases
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HCAL 44/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 44 OF 2014 _______________
________________________ J U D G M E N T ________________________ A. THE FACTS 1.The 1st applicant was born in Ghana and is a national of Mali. The 2nd applicant migrated to Hong Kong in 2003 from the Mainland and has since 2010 been a Hong Kong permanent resident. 2.The 1st applicant had been visiting Hong Kong as a visitor. In July 2010, the 1st applicant met the 2nd applicant in Hong Kong. They started a relationship and were eventually married in April 2011. They are the parents of the 5th applicant (who was born in July 2012), while the 2ndapplicant is also the mother of the 3rd and 4th applicants from her previous marriage. The 2nd to 5th applicants are permanent residents of Hong Kong, and have been receiving Comprehensive Social Security Assistance (“CSSA”) in Hong Kong. All the applicants have been living together in the 2nd applicant’s public housing flat, and the children have been studying in Hong Kong. 3.In 2011, the 1st applicant made an application to the Director of Immigration (“the Director”) for a dependant visa to take up residence in Hong Kong as the dependent of the 2nd applicant. 4.An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.[1] In relation to such an application, the Immigration Department has published the “Guidebook for Entry for Residence as Dependents in Hong Kong” (“the Guidebook”) which has set out, among others, the relevant “Eligibility Criteria” at paragraphs 3 and 5 as follows:
5.Thus, under paragraph 5 of the Guidebook, it is provided that an application for dependant visa “may be favourably considered” if the applicant can show that:
6.The 1st applicant’s dependant visa application was refused by the Director on 12 July 2011, stating that he was not satisfied that the 2nd applicant (the sponsor) was able to support the living of the 1st applicant at a standard well above the subsistence level in Hong Kong. In other words, the Director was not satisfied that the applicant had met the Financial Sufficiency Requirement. I would refer this as “the 1st Decision”. 7.After the birth of the 5th applicant in 2012, in January 2013, the 1st applicant (then legally represented) submitted a fresh dependant visa application to the Director. The Director again refused this application. In the letter dated 9 April 2013 containing this decision (“the 2nd Decision”), the Director explained the reasons for the decision as follows:
8.Thus, the Director made the 2nd Decision on the basis that (a) firstly, the 1st applicant was not eligible to come within the Dependant Policy as the Financial Sufficiency Requirement was not met, and (b)secondly, there were also no exceptional circumstances to justify the Director to exercise his residual direction to depart from that established policy and grant the 1st applicant permission to stay in Hong Kong. 9.In April 2014, the applicants applied for leave to apply for judicial review against both the 1st and 2nd Decisions. Ex parte leave was granted in June 2014 based on the Amended Form 86. The grant of the leave was expressly stated to be without prejudice to the Director’s right to oppose the grant of an extension of time. On the first day of the substantive hearing, the court allowed the applicants to re-amend the Amended Form 86 on certain limited basis. B. THIS JUDICIAL REVIEW B1. Grounds of judicial review 10.The applicants raise a number of grounds to support the judicial review. They can be summarised as follows:
11.Under these grounds of judicial review, the applicants seek to challenge the Director’s exercise of discretion in refusing the 1st applicant’s permission to stay applications. Before looking at the specific grounds of challenge, it is useful to first set out the proper context and principles relevant to the consideration of such challenges. B2. Relevant principles and approach 12.First, the Director is entrusted with the power and wide discretion under Article 154(2) of the Basic Law and the Immigration Ordinance (Cap 115) (“IO”)[10] to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions. 13.Second, it is well established that the Director in the exercise of that power and discretion adopts an overall restrictive immigration control policy.[11] The legitimacy and rationality of such an overall restrictive policy control applicable to the entire immigration regime is well recognised and accepted by the courts. It has most recently received the unreserved endorsement by the Court of Appeal in the BI v Director of Immigration and BH v Director of Immigration (CACV 9, 103 and 134/2015, unreported, 8 March 2016, Cheung CJHC, Lam VP and Poon JA) (“the BI/BH CA Judgment”) at paragraph 70. In particular, the Court of Appeal has re-stated the general propositions concerning the immigration regime in Hong Kong at paragraph 92 as follows:
14.Ms Li SC for the applicants has fairly and rightly accepted that she could not challenge the Director’s adoption of such a restrictive overall immigration policy in the exercise of his discretion. 15.Third, under the overall restrictive 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 broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong. Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes. These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors.[12] The Dependant Policy is one such specifically formulated policy. 16.As mentioned at paragraph 92(8) of the BI/BH CA Judgment, if the applicants do not fall within any of the recognised categories, it is up to the Director to decide whether to further consider exercising his discretion to grant the application on any humanitarian or compassionate grounds on an individual basis. Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion under this if there are exceptional circumstances to justify it. In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and if he decides not to so consider, that decision is generally not subject to judicial review.[13] However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere his decision under these grounds on Wednesbury unreasonableness basis as the court must have regard to his wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy. See the BI/BH CA Judgment, paragraphs 102 - 111. 17.Fourth, it is well established that when it is alleged that a decision-maker failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:
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 parte Fewings [1995] 1 WLR 1037; recently referred to in BH v Director of Immigration (HCAL 105/2014, unreported, 15 April 2015,Chow J) at paragraph 64 (as approved by the Court of Appeal in the BI/BH CA Judgment, at paragraph 124). 18.Bearing these in mind, I would now proceed to examine each of the grounds of challenge.[14] B3. The Asserted Rights Ground 19.Under this ground, Ms Li has advanced her challenge on two fronts. First, it is said that the Director is required to take the Asserted Rights into account in considering the dependant visa application since these rights are engaged by the applicants as a matter of law. Second, it is contended that the Dependant Policy is a policy to facilitate family reunion, and as such, the Asserted Rights are clearly relevant to the question of family reunion and the Director must take them into account as a matter of relevance. 20.In relation to the first contentions, the same arguments made in support thereof in this application have been considered and rejected by this court in its recent judgment in Pagtama v The Director of Immigration (HCAL 13, 45 and 56/2014, unreported, 12 January 2016) at paragraphs 58 - 188. I concluded that the Asserted Rights are not engaged by the applicants as a matter of law. The Director therefore is not obliged to take them into account. As stated in that judgment at paragraph 44, in rejecting those arguments, I had already taken into account supporting arguments raised in this judicial review. 21.In the premises, for the same reasons, I reject all the grounds raised in this judicial review on the basis that the Financial Sufficiency Requirement and Decisions are unlawful as the Director is legally obliged to take into account the Asserted Rights. 22.In relation to the applicants’ alternative arguments made in support of this ground, it is premised principally on Ms Li’s contentions that the Dependant Policy is to facilitate family reunion. This is what I would turn to look at next. 23.Ms Li’s arguments under this ground in gist run as these: the Dependant Policy (despite its name) bears an objective and purpose to facilitate family reunion. As such, it must be obviously relevant for the Director to take the Asserted Rights into account in considering whether he should approve the dependant visa application. It is thus Wednesbury unreasonable for the Director not to consider these rights in making the Decisions. The Financial Sufficiency Requirement is itself also Wednesbury unreasonable insofar as if it does not allow the Director to take into account the Assert Rights as relevant consideration. 24.On the other hand, it is the Director’s submissions and evidence that the Dependant Policy is not a family reunion policy. It is a policy based on dependency with its purpose to allow recognised categories of close family members to remain when they require the care and financial support of their sponsors in Hong Kong. It is a policy founded on humanitarian principles that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family to reside in Hong Kong with that member.[15] 25.The Dependant Policy is not a policy of family reunion has indeed been repeatedly recognised by the courts in Hong Kong in various decisions: Palmis v Director of Immigration (HCAL 2104/2001, unreported, 19 February 2003,Hartmann J); Murali Duraisamy v Director of Immigration (HCAL 152/2004, unreported, 2 November 2005, A Cheung J) at paragraph 20; Khan Kamran v Director of Immigration (HCAL 48/2005, unreported, 31 July 2006, Hartmann J) at paragraphs 45 - 46; Gurung Ganga Devi v Director of Immigration (HCAL 131/2008, unreported, 23 September 2009, Saunders J) at paragraph 31; BH v Director of Immigration, supra, at paragraph 67. 26.As observed by Hartmann J (as the learned NPJ then was) in Palmis, supra, at paragraph 23, “while one of the happy consequences of the scheme is the bringing together of family members, it is not, however, a policy of family reunion. The key issue to be determined by the Director is one of dependency not simply whether there exists a tie of blood or marriage”. See also paragraphs 19, 21 - 28 of the judgment. 27.Although all the above judgments are first instance decisions, the Court of Appeal most recently in the BI/BH CA Judgment has authoritatively concluded that, on a proper construction in the context of restrictive immigration policy and by reference to evidence, the Dependant Policy is not a general family reunion policy but one based on dependency. It is not a policy of family unity. See paragraphs 55 - 66 and 68 - 73. 28.The Court of Appeal has explained in detail at paragraphs 55 ‑ 63 of the judgment as to why the Dependant Policy is not a family reunion policy (footnotes omitted):
29.However, Ms Li for the applicants contends that, despite the BI/BH CA Judgment,it is still open to this court to come to a different conclusion on the construction of the nature and objective of the Dependant Policy. Leading Counsel submits that the Court of Appeal’s said conclusion is decided and premised on the evidence filed in those cases. However, there is evidence filed and revealed in the present case which shows objectively and clearly that the principal objective of the Dependant Policy is to facilitate family reunion. This extra evidence was not before the Court of Appeal in BH and BI and the courts in all the above mentioned first instance authorities. 30.The extra evidence relied by Ms Li in the present case and its contended effect can be summarised as follows. 31.First, in the Legislative Council Brief (“the 2003 LegCo Brief”) dated 30 June 2003,[16] in setting out the Chief Executive in Council (“CEIC”)’s order in relation to the Dependant Policy, it stated, among others, the following:
32.Thus, Ms Li says paragraph 4 of this brief shows clearly that the CEIC in ordering the continuation of the Dependant Policy had in mind that the policy was to “facilitate family unity”. The 2003 LegCo Brief therefore shows clearly that facilitation of family union must be a, if not the, primary objective of the Dependant Policy. 33.Second, the Dependant Policy is to facilitate family reunion had also been consistently stated expressly as the purpose of the policy in the annual reports (“the Relevant Annual Reports”) published by the Immigration Department over a number of years:
34.Third, in these same annual reports and in the LegCo paper (“the 2014 LegCo Paper”) prepared by the Security Bureau in February 2014 for information for the Panel on Security of the Legislative Council,[17] it had also been stated that the OWP scheme allows and is to facilitate Mainland residents to come to Hong Kong “for family reunion” in an orderly manner. Ms Li says this further supports that the proper context and objective of the parallel Dependant Policy (which concerns with the joining of foreigners other than Mainland residents with their Hong Kong resident spouses or parents) is similarly to facilitate family reunion. 35.Given all this extra evidence, Ms Li submits that this court is entitled to and should look at it afresh to construe the Dependant Policy despite the BI/BH CA Judgment. Moreover, she says the following additional matters also show that it is open to this court to construe the Dependant Policy differently based on the evidence filed in this case:
36.Notwithstanding Ms Li’s above submissions, I do not accept that this court is not bound by the BI/BH CA Judgment in relation to its conclusion on the nature, purpose and objective of the Dependant Policy. The proper construction of a policy is a matter of law (see the BI/BH CA Judgment, paragraph 68). Further, as submitted by Mr Yu SC for the Director, the court must arrive at a “single meaning” when construing language which affects legal rights and duties (see: Shui Wing Steel Ltd v Director of Environmental Protection (2006) 9 HKCFAR 478 at paragraph 28). In the premises, the Court of Appeal’s above construction as to the nature, purpose and objective of the Dependant Policy is binding on this court. Ms Li’s submissions amount to asking this court to effectively conclude that the Court of Appeal’s judgment in this respect (which is a question of law) is wrong albeit based on additional evidence. This, with respect, is not permissible. Given that the extra evidence (ie, the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper) has been adduced in the present case, it is open to the applicants to persuade the Court of Appeal (if this case goes on appeal) that it should come to a conclusion different from the BI/BH CA Judgment in construing the Dependant Policy. 37.In the premises, as the Court of Appeal in BI/BH CA Judgment has rejected the contentions that the Dependant Policy is a family reunion policy with an objective and purpose of facilitating family reunion, it is not a relevant consideration for the Director to take into account the Asserted Rights in considering the present applications for a dependant visa. In other words, it is not Wednesbury unreasonable for the Director not to take those considerations into account. I would therefore reject this ground. 38.However, if I am wrong on the effect of the BI/BH CA Judgment andit is indeed open to me to consider the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper as relied on by the applicants, I would still conclude that, on a proper construction, the Dependant Policy is not a policy to facilitate family reunion. My reasons are as follows. 39.What is the meaning of a policy is a matter for the court to construe it objectively in accordance with the language used and in its proper context, and should not be construed as if they were statutory or contractual provisions: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at paragraphs 18 ‑ 19; Wong Wei Man v The Amusement Games Centers Appeal Board (HCAL 775/2000, unreported, 2 November 2000) at p 11, per Stock J (as the learned NPJ then was). 40.As mentioned above, the Dependant Policy is a policy adopted under the overall restrictive immigration control. Thus, all these documents must be considered against the context of the overall restrictive immigration control. Bearing this context in mind, I would first look at the 2003 LegCo Brief. 41.In the 2003 LegCo Brief, it records the CEIC’s order to continue the then “existing assessment criteria” under the existing Dependant Policy with some minor modifications. These existing assessment criteria (and the related minor modifications) and their justifications are set out at paragraphs 1 - 5 of the brief as follows:
42.Properly construed in the context of the overall restrictive immigration control, it is clear to me that the Dependant Policy as described in the 2003 LegCo Brief is premised on dependency but not facilitation of family reunion. I will explain why. 43.First, the use of the words “dependant policy” by the CEIC to describe the policy points towards the objective intention that the policy is one based on dependency but not family reunion. 44.Second, it must be noted that the 2003 LegCo Brief is in relation to an order made by the CEIC in 2003 to continue the then “existing assessment criteria” under the then existing Dependant Policy with some minor modifications. It can be seen immediately that in describing these criteria and the modifications thereof, the LegCo Brief invariable qualifies or describes the applicants with the word “dependent”. For examples, at paragraph 1(b), it describes the unmarried children as “dependent children”, at paragraph1(c), it describes the parents as “the dependent parents”, and at paragraph 1(d), it describes the spouse as the “sponsor’s dependent”. These again show clearly and objectively that the policy fundamentally concerns with the dependency between the applicant and the sponsor but not the family relationship. 45.Further, paragraphs 2 to 5 of the 2003 LegCo Brief set out the “Assessment Criteria and Special Treatment on Humanitarian and Compassionate Grounds” under the Dependant Policy and their justifications. The criteria set out at paragraph 2(a), (c) and (d) are in substance the same criteria set out at paragraph 5 of the Guidebook (see the above quote), where paragraph 2(b) is effectively the same as the introductory and qualification provided in the opening sentence of paragraph 3 of the Guidebook (also see the above quote). These criteria have been considered by the Court of Appeal in the BI/BH CA Judgment. The Court of Appeal explains at paragraph 63 why these criteria clearly show that the Dependant Policy is not a family reunion policy but one premised and focused on dependency:
46.In my view, the same observations and reasoning apply mutatis mutandis to the construction of the policy even based on the 2003 LegCo Brief. 47.Third, under the policy as described and explained in the 2003 LegCo Brief, it also similarly limits its scope only to those applicants who are the spouse, unmarried children under 18 years old and parents of above 60 years old of the Hong Kong sponsors. Again, as said by the Court of Appeal at paragraph 63(3) of the BI/BH CA Judgment, these limitations point against construing the policy to be a family union policy. 48.Fourth, as the CEIC in the 2003 LegCo Brief was only to order the continuation of the then current Dependant Policy (with some modifications), one should objectively assume that when the CEIC referred to the then “current dependency policy”, it was aware of the then position taken by the Director (as recognised and accepted by the court in Palmis) that the Dependant Policy was one which was based on dependency but not to facilitate family reunion. If the CEIC had intended (as the applicants now seek to argue) the policy to be a family reunion policy, one would have expected the CEIC to clarify that position in this LegCo Brief in seeking to continue that policy. There is nothing to that effect in the 2003 LegCo Brief. As such, it must be regarded that the CEIC agreed with the Director’s understanding as to the nature and character of the Dependant Policy. 49.The 2003 LegCo Brief in stating that “the assessment criteria and special treatment of certain categories of applicants on humanitarian and compassionate grounds continue to strike the right balance between facilitating family unity and upholding immigration control” must be understood against all the above. When so properly understood, that statement is consistent to mean as what Hartmann J had said in Palmis that the policy had the “happy consequence” of bringing (and thus facilitating) family reunion, but that was not the purpose of the policy. 50.In the premises, properly construed in context, the 2003 LegCo Brief shows consistently that the purpose of policy is to allow a foreign applicant who can show the necessary dependency on the Hong Kong sponsor to come to Hong Kong to join the sponsor as dependant. It is not the purpose or the objective of the policy to “facilitate” family reunion.[18] 51.For these same reasons, the statements made by the Immigration Department in the Relevant Annual Reports are equally consistent with the above construction. In other words, when it is stated that under the policy, “foreigners may be admitted into Hong Kong for the purpose of family union” to join as dependants the Hong Kong sponsors, it was referring only to the foreigners’ purpose in making the application and the consequence of a successful application, but not the policy’s own purpose or aim. This is also borne out by the Chinese version which says “外國人可基於與親屬團聚的目的，以受供養人士的身份獲准來港依親” (emphasis added). 52.Insofar as the applicant’s arguments based on the OWP scheme are concerned, the OWP scheme is clearly an entirely independent regime separate and different from this policy. It is in fact a scheme operated by the Mainland Authority but not the Director.[19] 53.Thus, one cannot simply say that the two schemes must have the same or similar objective and purpose. 54.Quite to the contrary, as observed by the Court of Appeal at paragraph 63(1) of the BI/BH CA Judgment, the existence of a separate and independent OWP scheme to deal with Chinese residents of the Mainland as applicants to enter to join their family members in Hong Kong in fact supports the construction that the Dependant Policy is not a family reunion policy. 55.Similarly, the 2014 LegCo Paper in stating that the OWP scheme allows and is to facilitate Mainland residents to come to Hong Kong “for family reunion” in an orderly manner does not support the applicants’ contention that the Dependant Policy, which is an entirely different scheme, is also for family reunion. 56.In the premises, even if I have to consider the 2003 LegCo Brief, the Relevant Annual Reports and the 2014 LegCo Paper, I am not persuaded that on a proper and objective construction, it is the purpose of the Dependant Policy to facilitate family reunion. I would therefore still reject the applicant’s contentions that the Director should take into account the Asserted Rights as relevant considerations as the Dependant Policy is to facilitate family reunion. 57.For all the above reasons, I reject the Asserted Rights Ground. B4. The Discrimination Ground 58.Under this ground, the applicants contend that the Financial Sufficiency Requirement is unlawful as it results in discriminatory effect amongst Hong Kong permanent residents in marital status with a foreign national. The alleged discriminatory effects[20] (as summarised in the applicants’ skeleton) are as follows:
59.With respect, there is nothing in this ground. 60.First, the applicants asserting discrimination should first show that the persons in relevantly comparable situations face differential treatment. Once that is shown, then it is for the authority to justify the differential treatment. See: Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at paragraphs 19 - 22, per Li CJ, as further explained in Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at paragraphs 58 - 59, per Ma CJ. 61.The applicants in the present case first seek to show prima facie comparable situations by principally contending that this specific policy is “the vehicle for giving effect to the rights of Hong Kong permanent residents guaranteed by Article 37 of the Basic Law” to marry and raise their family freely. Built in this contention is the applicants’ argument that Article 37 of the Basic Law provides a right to family and thus reunion of the family members in Hong Kong. However, this principal argument on the nature and effect of Article 37 has been rejected repeatedly by the courts and most recently again by this court in Pagtama at paragraphs 74 - 98. Further, as I have concluded above, the policy is also in any event not to facilitate family reunion, the submissions that the policy is a vehicle to realise the contended rights under Article 37 are therefore in any event not correct. 62.In relation to the applicants’ specific reference to the comparison based on the OWP scheme to support the claim of discrimination, as I have also said above, the Dependant Policy which is premised on the showing and proving of dependency is an entirely separate and different scheme from the OWP scheme. 63.The Dependant Policy and the OWP schemes are thus simply two different schemes with different nature and objective, and are to serve different and distinct purposes. There are no meaningful and relevant comparisons that can be made to support any contentions of discrimination by reason of differential treatment. 64.Further, and in any event, even if (which I do not accept) there is relevantly differential treatment requiring justification, I agree with the Director’s following submissions that the requirement has been clearly met:
65.In this respect, it is also pertinent to note that in Santosh Thewes v Director of Immigration [2000] 1 HKLRD 717, it included a challenge to the Dependant Policy based on Article 25 of the Basic Law (equality of the law protection) and alleged discrimination arising from withholding of visas by reference to the income level of the Hong Kong permanent resident spouse. In refusing leave to apply under this ground, Stock J (as the learned NPJ then was) held at 720G - J as follows:
66.I respectfully agree with Stock J’s said observation and reasons. 67.I therefore also reject the Discrimination Ground. B5. The Making of Own Family Financial Arrangement Ground 68.Ms Li’s summarises her submissions in support of this ground at paragraph 17 of her skeleton as follows:
69.I also reject these contentions. 70.It must be remembered that the Dependant Policy is, as concluded above, a policy based on the showing of dependency of the foreign applicant on the Hong Kong sponsor. It is not a family reunion policy. Thus, properly analysed, this ground is in effect similarly premised on the same arguments that the Director as a matter of law (whether by reason of legal obligation, relevance or reasonableness) should take into account the family rights of the applicants and the sponsors (in this respect, these rights include the right to make their own financial arrangements as a family) when making a decision under the Dependant Policy. 71.I have already rejected in the above any general reliance on the family rights. The fundamental underlying premise of this ground therefore goes (see also paragraph 73 of the BI/BH CA Judgment). 72.Further, given the context of strict immigration control, it must be legitimate for the CEIC or the Director to impose the Financial Sufficiency Requirement in the Dependant Policy (which is premised on showing dependency) to require that an applicant does not have the likelihood of becoming a burden on Hong Kong. Cf: BI/BH CA Judgment, paragraph 63(5). In the premises, there is no question of this requirement being Wednesbury unreasonable and thus unlawful because it does not permit the consideration of the purported family unit’s right or ability to make its own financial sufficiency arrangements. 73.This ground also therefore fails. B6. The Misapplication of Policy Ground 74.As mentioned above, the Financial Sufficiency Requirement is set out under paragraph 5(c) of the Guidebook. 75.It is common ground that the Director concluded that the 1st applicant was ineligible for the Dependant Policy once he came to the view that the Financial Sufficiency Requirement was not met. The applicants now contend that the Director in treating this requirement as an ineligibility criterion under the Dependant Policy had misconstrued and thus misapplied it. They submit that this requirement on a proper construction is not an ineligibility criterion. The same submission in relation to the effect of the No Record Requirement under paragraph 5(b) of the Guidebook was accepted at first instance by Zervos J and Chow J respectively in BI[21]and BH.[22] 76.However, the Court of Appeal has in the BI/BH CA Judgment reversed Zervos J and Chow J’s said ruling and concluded (at paragraphs 74 - 90) that, on a proper construction under the general context of strict immigration control and specifically the purpose of the Dependant Policy, all the three requirements provided under paragraph 5 of the Guidebook are eligibility requirements. 77.In the premises, pursuant to the Court of Appeal’s judgment, the Financial Sufficiency Requirement is an eligibility requirement. This construction is binding on this court. The applicants’ reliance on the extra evidence in this case would not affect the Court of Appeal’s reasoning in arriving at that construction (see paragraphs 36 to 56 above). 78.There is therefore no misapplication of the policy by the Director in treating this requirement as an eligibility one. I therefore reject this ground of challenge. B7. The Legitimate Expectation Ground 79.The underlying bases of this ground are that the Dependant Policy is to facilitate family reunion and the Director as a matter of law should take into account the Asserted Rights in considering an application made under the Dependant Policy. Hence, it is legitimate for the applicants to expect the Director to do so. 80.Since I have in the above already rejected those contentions that underline the arguments of legitimate expectation, this ground must similarly fail. B8. The Relevant and Irrelevant Considerations Ground 81.Ms Li in substance argues that the Director when considering the compassionate and humanitarian grounds failed to relevantly take into account (a) the family circumstances of the applicants, and (b) the hardship on the children and the 2nd applicant if the 1st applicant is not allowed to stay in Hong Kong with them as a family. In relation to the latter factor, Ms Li relies on the authority of Singh v Secretary for Security (1996) 6 HKPLR 440 to support the proposition that it is relevant for the Director in exercising his discretion under this ground to consider and balance the hardship to be suffered by the family in deciding whether to approve the 1st applicant’s application for right of residence in Hong Kong. 82.Insofar as the first complaint is concerned, in the present case, the evidence of the relevant internal minutes of M8 (for the 1st Decision) and M3 (for the 2nd Decision) show clearly that the Director did take into account the family circumstances of the applicants, including the 1st applicant’s own proposition that he was able to support himself, the position of the children, the facts that the applicants are all able bodied and that the 1st applicant is a Mali national who was entitled to visit Hong Kong for 14 days without a visa. It was only after taking full account of all the circumstances and the representations made by the 1st applicant’s lawyers that the Director decided there were no sufficient exceptional grounds to warrant a departure from the existing policy. 83.Bearing in mind the principles and approach set out in paragraphs 16 - 17 above, I am satisfied by the evidence that the Director did take into account the factors relating to the family circumstances of the applicants before making the Decisions. Further, in giving regard to the wide discretion of the Director and the context of whether there should be exceptional treatment against a stringent immigration control, it certainly cannot be said that the Director’s decision not to exercise the discretion despite all the circumstances of the applicants is one that no reasonably person in the position of the Director would have come to. 84.In relation to the second complaint regarding hardship, the Court of Appeal in the BI/BH CA Judgment has observed at paragraphs 110 - 112 that Singh v Secretary for Security (which concerns a challenge of a deportation order) can be distinguished from a case (as in the present) concerning the Director’s consideration of humanitarian grounds under an application for residence in Hong Kong. I respectfully adopt the same observations here and do not find the case of Singh v Secretary for Security of any assistance in this case. 85.In any event, the context of such consideration is whether there are exceptional humanitarian or compassionate circumstances to justify a departure from the policy. In this regard, it is helpful to remind ourselves what the Court of Appeal has said at paragraph 109 of the BI/BH CA Judgment as follows:
86.As I said above, the evidence shows that the Director had considered the family circumstances of the applicants in the present case. One cannot simply infer that, because of an adverse decision, the Director did not take into account the relevant considerations, including any potential hardship on the family.[23] In particular, as observed by the Court of Appeal in the BI/BH CA Judgment at paragraph 119, in the context of a Wednesbury unreasonableness challenge in this respect, 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. 87.The applicants also further say that removing the 1st applicant from Hong Kong would amount to cruel, inhuman or degrading treatment because of the various likely financial, emotional and adaptation difficulties the applicants would face if they had to say live in Ghana or Mali.[24] They say this must be relevant to the consideration of whether there exist exceptional humanitarian circumstances but the Director also failed to take this into account. 88.However, these allegations are only first raised in this judicial review and were never mentioned to the Director during the visa applications.[25] The burden is on the applicants to raise all the relevant matters they seek to rely on to persuade the Director to exercise his discretion to permit the 1st applicant to stay in Hong Kong. It must be reasonable for the applicants to anticipate that, if the visa application failed, there would be a good chance that the 1st applicant would have to return to Ghana or Mali and the possibility that the other applicants may join him if they wish to be together. In the premises, if they believed that returning to Ghana would result in them facing all those purported difficulties, it must be for them to mention these concerns to the Director. If they did not do so, it is not open to them to rely on these matters only now in this judicial review to challenge the Decisions. See: Gurung De Kumari, supra, at paragraph 29; Sukhmander Singh v Permanent Secretary for Security (CACV 370/2005, unreported, 20 July 2006, Ma CJHC, Stock JA and Sakhrani J) at paragraph 18 per Stock JA (as he then was); Smart Gain v Town Planning Board (HCAL 12/2006, unreported, 6 November 2007,A Cheung J) at paragraphs 86 - 89; Marilyn G Aringo v Director of Immigration (HCAL 96/2004, unreported, 5 September 2005,Hartmann J) at paragraph 38. 89.For these reasons, I do not agree that the Director failed to take into account relevant considerations in arriving at the Decisions. 90.The applicants’ complaint of the Director taking into account irrelevant consideration runs as follows. 91.The evidence[26] shows that in considering whether there were exceptional circumstances to justify a departure from the policy, the Director took into account the fact that the 1st applicant was born in Ghana, and had been all along living in Ghana. Thus, the Director did not anticipate that the 1st applicant would not encounter any difficulties for returning to his home country. Further, the Director noted that the 1st applicant (as a Malian passport holder) is entitled to visit Hong Kong without a visa for 14 days which could facilitate him to visit his wife and family. 92.The applicants now say the consideration that the 1st applicant had been able to and thus could live elsewhere is an irrelevant factor for the exercise of discretion under the exceptional humanitarian ground. 93.I am unable to agree. 94.This factor falls within the category of discretionary consideration as mentioned in paragraph 17 above. Thus, the applicants can only succeed in this challenge if it can be shown that it is Wednesbury unreasonable for the Director to take this factor into consideration. 95.In my view, this factor must be within the range of reasonable considerations that the Director could take into account to see if there are any exceptional humanitarian grounds to justify a departure from the policy. In fact, given the fact that the 1st applicant has been in Hong Kong for a significant time, in the context of considering whether there are exceptional humanitarian grounds, it cannot be said to be Wednesbury unreasonable for the Director to consider whether the 1st applicant could return and adapt to his home country if not allowed to stay in Hong Kong and whether then he could still come to visit his family members on a regular basis. 96.I therefore also reject this complaint. 97.This ground of challenge must also fail. B9. Procedural Irregularities Ground 98.The applicants’ complaints of procedural unfairness are that:
99.I do not accept these complaints. 100.The question of whether there is procedural unfairness must always be determined in context. 101.In relation to the first complaint, the ordinary meaning of “subsistence level” is a standard of living providing only the bare necessities of life sustaining.[27] The term “a standard well above the subsistence level” could clearly be understood in this context to mean a level significantly or appreciably above the “subsistence level”. Given these ordinary meanings, I cannot see how it can be said that the 1st and 2nd applicants would be unable to understand that, under this requirement, they had to demonstrate to the Director that the 2nd applicant as the sponsor would be able to support the 1st applicant to a living standard that is appreciably or significantly above the standard of having basic necessities only. 102.Insofar as if Ms Li’s submission is to the effect that the applicants should be in fact told by the Director what would be the evidence and materials that they needed to provide to satisfy this requirement, this cannot be right. The burden is on the applicants to provide sufficient evidence to satisfy the requirement, but not for the Director to teach them how to do so. See: Marilyn G Aringo, supra, at paragraph 38; Pagtama, supra, at paragraph 214. 103.I therefore reject this complaint. 104.Insofar as the complaint for lack of reasons in the Decisions is concerned, I am equally not convinced that there is substance in it. My reasons are as follows. 105.In the letter dated 9 April 2013 of the Director in informing the 1st applicant the 2nd Decision (which is effectively a reconsideration afresh of the dependant visa application which was rejected first under the 1st Decision), the 1st applicant was informed that his application was unsuccessful because (a) he did not come within the Dependant Policy as he could meet the Financial Sufficiency Requirement; and (b) there were also no exceptional circumstances to justify the Director’s exercise of discretion to depart from this policy (see the quote of the letter at paragraph 7 above). 106.In my view, the letter contains adequate reasons for the present purpose. As rightly submitted by Mr Yu:
107.In any event, having regard to the disclosure now of the internal minutes M8 and M3 and the affirmation evidence of Mr Wong Chau Ping filed by the Director in this judicial review, the basis of the Director’s decision is clear. Even if I were of the view that the original letters containing respectively the 1st and 2nd Decisions did not contain sufficient reasons, I would not have exercised my discretion to grant any relief in this judicial review on this basis alone as it would be entirely academic. See: HKTVN v CEIC [2015] 2 HKLRD 1035 at paragraphs 101 - 102. 108.In the premises, the applicants also fail in the challenges based on procedural impropriety. B10. Conclusion on the grounds of challenge 109.For all the above reasons, I do not accept any of the grounds of judicial review in this application. C. DELAY 110.Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made promptly after the relevant decision is made, and in any event not later than three months thereafter. The court retains a power to extend time, but that power is only to be exercised if “good reason” is shown. 111.The 1st and 2nd Decisions are respectively made in July 2011 and April 2013. The applicants only applied for leave to apply for judicial review in April 2014. There is thus respectively a substantial delay of almost three years and one year in challenging respectively these decisions. 112.The Director now opposes the grant of leave on the basis of delay, and submits that no extension of time shall be granted to the applicants as there are no good reasons to do so. 113.Ms Li however first submits that as a matter of legal principle, it is not open to the court to entertain at the substantive hearing of a judicial review any application to set aside leave on the basis of delay. Leading counsel relies principally on the authority of R v Criminal Injuries Compensation Board, ex p A [19990] 2 AC 330 at p 341. 114.I do not accept Ms Li’s submissions. The Court of Appeal in dealing with a similar contention has now confirmed BI/BH CA Judgment at paragraphs 134 - 139 that the court does have jurisdiction to deal with such an application at the substantive hearing of a judicial review, and it is a matter of case management for the court to decide whether to do so in the circumstances of each case. The Court of Appeal does however emphasise that generally speaking it is preferable to have such an application dealt with promptly. 115.In relation to the present case, leave was granted on 30 June 2014 and the Director filed his full evidence in opposition about three months later on 23 September 2014. Given that full evidence has already been filed fairly soon after leave, and the court in determining whether to extend time for a delayed application may have to examine the merits of the applicant’s substantive challenge deeper than the standard applicable to granting leave,[28] I am satisfied that as a matter of case management, it is convenient and appropriate in the present case to hear the setting aside leave application at the same time of the substantive hearing. This is particularly so as, given the various grounds of challenges raised in this judicial review, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Director’s full evidence. Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing). 116.I would now proceed to look at the setting aside application. 117.The principles governing the extension of time in this respect have been usefully set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45. These are not in dispute and have been helpfully summarised by Mr Yu in his skeleton as follows:
See: the recent endorsement of this approach on the question of delay by the Court of Appeal in AW v Director of Immigration, supra, at paragraph 1, per Lam VP, and paragraphs 23 - 36, per Kwan JA. 118.The applicants’ explanations of the delay and justification for extension of time have been summarised by Ms Li in her skeleton as follows:
119.With respect, I am not persuaded that there are good reasons to justify an extension time:
120.I therefore would also refuse to grant extension of time, and set aside leave on an inter partes basis. 121.For all the above reasons, the applicants have failed in all the grounds in support of the judicial review. I would therefore dismiss this application on merits. 122.In any event, I would also refuse to grant extension of time and set aside the ex parte leave on the basis of delay. 123.I further make an order nisi that costs of the judicial review and the application to set aside leave be to the Director to be taxed if not agreed, with certificate for two counsel. The applicants’ own costs be taxed in accordance with legal aid regulations.
Ms Gladys Li SC, leading Mr PY Lo, instructed by Daly & Associates, assigned by Director of Legal Aid, for the 1st - 5th applicants Mr Benjamin Yu SC, leading Mr Abraham Chan, instructed by Department of Justice, for the respondent [1] See the Affirmation of Kwok Joon Fung Benson, paragraph 16. [2] See paragraphs 38, 42 and 49 - 103 of the Re-Amended Form 86. [3] See paragraph 39 of Re-Amended Form 86. [4] See paragraph 40 of the Re-Amended Form 86. [5] See paragraphs 43 and 46 of the Re-Amended Form 86. [6] See paragraphs 44 and 45 of the Re-Amended Form 86. [7] See paragraph 47 of the Re-Amended Form 86. [8] See paragraph 104 of the Re-Amended Form 86. [9] See paragraph 105 of the Re-Amended Form 86. [10] See for example, sections 7 and 11. [11] See the Affirmation of Kwok Joon Fung Benson, paragraphs 6 - 8. [12] See Affirmation of Kwok Joon Fung Benson, paragraphs 7 - 9. [13] See Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332, 339 and 347. [14] As similar challenges and arguments by Ms Li SC were raised in HCAL 13, 45 and 56/2014 as well as in HCAL 77, 98 and 100/2014, which were heard also by this court respectively in December 2014 and September 2015, it is agreed by the parties that I should in considering the present judicial review also take into account relevant the submissions made in those cases. [15] See: Affirmation of Kwok Joon Fung Benson at paragraph 22. [16] File Ref: SBCR 1/10/2091/98, entitled “IMMIGRATION POLICY ON ENTRY OF DEPENDANTS” prepared by the Security Bureau. [17] Entitled “Immigration arrangements for entry of Mainland residents for family reunion”. [18] In the premises, even based on Ms Li’s submissions that the Guidebook only reflects what the Director understands the Dependant Policy to be (because the proper authority for making the policy is the CEIC but not the Director), the Director’s understanding is correct and consistent with what are reflected in the 2003 LegCo Brief. [19] See: Affirmation of Benson Kwok at paragraphs 30 - 36. See also the 2003 LegCo Brief, paragraphs 12 - 13. [20] See paragraph 39(d) of the Re-Amended Form 86. [21] BI v Director of Immigration (HCAL 174/2013, unreported, 10 December 2014, per Zervos J). [22] BH v Director of Immigration, supra. [23] In fact, for example, the evidence shows that the Director did consider that the 1st applicant as a Malian passport holder could visit Hong Kong and his family here without a visa for 14 days. This must also be relevant to the consideration as to whether there would be undue hardship on the family as to whether they could meet from time to time without too much difficulty. [24] See paragraph 45 of the Re-Amended Form 86, paragraphs 26 - 28 of the 1st applicant’s affirmation and paragraph 17 of the 2nd applicant’s affirmation. [25] See paragraph 58 of the Affirmation of Wong Chau Ping. [26] See paragraph 8.4 of M8 and paragraph 11.1 of M3. [27] See for example, The New Shorter Oxford English Dictionary, the meaning of “subsistence level”. [28] AW v Director of Immigration (CACV 63/2015, 3 November 2015, per Lam VP, Kwan and Poon JJA) at paragraphs 33 - 36. [29] De Smith, 16-058; Fordham, 26.1.5, 26.3.8; A v Essex County Council [2011] 1 AC 280, UKSC at §115. [30] R v Stratford-on-Avon District Council ex p Jackson [1985] 1 WLR 1319, Eng CA at 1324A;Fordham refers at paragraph 26.1.5 to extension of time in Ex parte Evans where it took 14 months to pursue tribunal remedy and legal aid application. See also Li Nim Han v Director of Immigration [2012] 2 HKC 299 where the delay in making the application for leave to apply for judicial review was also 14 months. [31] See Affirmation of Wong Ping Chau, paragraph 10. | ||||||||||||||||||||||||||||||||||||
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