Lk and Others v. Director of Immigration
Read the full judgment text of HCAL 77/2014 on BabelCite. This High Court CFI judgment was delivered on 9 August 2016.
1. In each of these judicial reviews, the 1 st applicant is the husband of the 2 nd applicant. In HCAL 77/2014, the 1 st applicant is also the father of the 3 rd applicant.
Cited by 3 cases · Cites 13 cases
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HCAL 77/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 77 OF 2014 ________________
________________ AND HCAL 98/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 98 OF 2014 ________________
________________ AND HCAL 100/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 100 OF 2014 ________________
________________ (heard together)
________________ J U D G M E N T ________________ A. INTRODUCTION 1.In each of these judicial reviews, the 1st applicant is the husband of the 2nd applicant. In HCAL 77/2014, the 1st applicant is also the father of the 3rd applicant. 2.The 1st applicants are all non-Chinese nationals who have no right of abode in or right to enter Hong Kong, and are over-stayers in Hong Kong. On the other hand, the 2nd applicants are all Hong Kong permanent residents. 3.In summary:
4.Subsequent to their respective marriages, each of the 1st applicants had applied to the Director of Immigration (“the Director”) for taking up residence in Hong Kong as a dependant of his sponsor spouse, ie, the 2nd applicant. 5.An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.[1] It is the Director’s position that under the Dependant Policy, an applicant must satisfy the eligibility requirement (“the NRD Requirement”) that, among others, there is no record of detriment of the applicant before his dependant visa application could be considered. 6.By various decisions (collectively “the Decisions”) made in July 2011 to October 2013, the Director refused the 1st applicants’ respective dependant visa applications. The Director was of the view that their applications did not fall within the Dependant Policy as each of them failed to satisfy the NRD Requirement. Further, the Director was also not satisfied that there were any exceptional circumstances to justify an exercise of discretion to permit them to stay in Hong Kong under humanitarian or compassionate considerations. 7.In these judicial reviews, the applicants challenge the Decisions as being unlawful and/or irrational. Each of the applicants asks the relevant decision to be quashed and remitted back to the Director for reconsideration. 8.Before I elaborate on these grounds of challenge and consider them, it would be helpful to set out briefly the relevant background under each of these applications first. B. BACKGROUND B1. The LK Judicial Review 9.LK is a national of Ghana. He came to Hong Kong as a visitor in December 2004 and has since overstayed. 10.In December 2007, he was charged and convicted of two counts of trafficking in dangerous drugs. He was sentenced to 32 months’ imprisonment. In September 2008, he formally made a torture claim and in June 2009, a formal removal order was issued against him. 11.LK first met the 2nd applicant in March 2006 and in January 2011, he married her. Their daughter (the 3rd applicant) was born in May 2011. The 2nd and 3rd applicants are all Hong Kong permanent residents. 12.In September 2011, LK applied for a dependant visa under the 2nd applicant’s sponsorship. 13.By a letter dated 25 July 2013, the Director refused the dependant visa application (“the LK Decision”). As mentioned in the letter, the Director refused LK’s application on the basis that he did not meet the NRD Requirement and that there were no sufficient justifications to grant him an exception to stay in Hong Kong. 14.On 7 July 2014, the applicant (with legal aid) applied for leave to judicially review the LK Decision. This court granted leave on papers on 25 July 2014. B2. The MN Judicial Review 15.MN is a Pakistan national. He entered Hong Kong in July 2003 as a visitor, but has since overstayed. 16.MN made a refugee claim with the UNHCR in May 2006. 17.In September 2006, he was charged and convicted of the offences of breach of condition of stay by taking up unauthorised employment, making false representation to an immigration assistant and using an identity card relating to another. He was sentenced to 15 months’ imprisonment. 18.MN formally made a torture claim with the Director in July 2007. 19.MN first met the 2nd applicant in November 2009 and they were married in June 2010. 20.MN first made an application for a dependant visa under the 2nd applicant’s sponsorship in July 2010. The Director refused it by a letter dated 21 July 2011 on the basis that he did not meet the NRD Requirement and that there were no sufficient justifications to grant him an exception (“MN 1st Decision”). The 1st applicant asked the Director to reconsider his application respectively in July 2011 and July 2012. The Director by way of his letters respectively dated 29 December 2011 (“MN 2nd Decision”) and 8 November 2012 (“MN 3rd Decision”) maintained his previous decision to refuse the dependant visa application. The applicants were legally represented in all these applications. 21.MN’s torture claim was refused by the Director and later the Torture Claims Appeal Board respectively in March and May 2013. A removal order was issued against MN in August 2013. His appeal against the removal order was dismissed by the Immigration Tribunal in September 2013. 22.At the same time, on 18 March 2013, MN through his legal representatives submitted a claim of risk of being subjected to Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”) upon his removal to Pakistan under Article 3 of the Hong Kong Bill of Rights. The CIDTP claim is yet to be assessed by the Immigration Department under the Unified Screening Mechanism. 23.On 18 August 2014, the applicants applied for leave to judicially review the MN 3rd Decision. Leave was granted by this court on papers on 17 September 2014, which was stated to be “without prejudice to the Respondent’s right to (if she so intends) oppose the application also on the basis that there should be no time extension granted to the Applicants”. B3. The CCO Judicial Review 24.CCO is a Nigeria national. In April 2008, he entered Hong Kong as a visitor but has since overstayed. 25.In March 2010, CCO was arrested and questioned by police for suspected offences of breach of condition of stay by overstaying and making false representation to an immigration officer. He has also lodged a non-refoulement claim with the Director. 26.He first met the 2nd applicant in September 2008 and they were married in November 2010. Their daughter was born in August 2012. 27.Right after the marriage, CCO made an application in November 2010 for dependant visa under the 2nd applicant’s sponsorship. 28.In considering the application, in light of the documents and information then available, and CCO’s refusal to give his consent to verify his identification documents with the Nigeria Consulate General, the Director considered that CCO’s true identity had yet to be ascertained. Further, although the Immigration Department made a decision in December 2012 not to prosecute CCO for breach of condition of stay by overstaying, it is their position that the prosecution of CCO’s suspected offence of making a false representation to an immigration officer upon his visit visa application in 2008 would be deferred until the finalization of his torture claim.[2] 29.By a letter dated 9 October 2013, the Director refused CCO’s application. In the letter, the Director explained that the application was refused because (a) it was not satisfied that CCO was able to meet the NRD Requirement; (b) CCO’s claimed identity had yet to be ascertained; and (c) there were no sufficient justifications to grant him an exception. I would call this the “CCO Decision”. 30.The applicants applied for leave to judicially review the CCO Decision on 20 August 2014. This court granted leave on papers on 17 September 2014, which was stated to be “without prejudice to the Respondent’s right to (if she so intends) oppose the application also on the basis that there should be no time extension granted to the Applicants”. C. THESE JUDICIAL REVIEWS C1. Grounds of judicial review 31.In November 2014, this court ordered all these three judicial reviews to be heard together as they raise similar grounds of judicial review. 32.These grounds can be summarised as follows:
33.In each of the judicial reviews, the applicants seek the relief of remitting the relevant decisions back to the Director for reconsideration in light of the court’s holding, and a declaration to the effect that the NRD Requirement is not an eligibility criterion under the Dependant Policy. 34.The Director opposes the judicial reviews and submits that all the grounds of challenges are without merit. The Director also says in any event no reliefs should be granted in these judicial reviews because of delay. Further, the Director has taken out summonses respectively in the MN and CCO Judicial Reviews seeking to set aside the ex parte leave on the basis of delay. C2. Preliminary observations, relevant principles and approach 35.Before I proceed to consider the grounds of challenge, it would be helpful to set out some relevant preliminary observations and applicable principles. 36.It should first be noted that these three judicial reviews are the last of three sets of judicial reviews heard by this court, which raise similar or related grounds of judicial review. The first set of judicial reviews consists of HCAL 13, 45 and 56/2014 (collectively, “the Pagtama Judicial Reviews”), and the second set HCAL 44/2014 (“the Dembele Judicial Review”). The applicants and the Director in all these three sets of judicial reviews are represented respectively by the same legal teams. 37.As I mentioned at paragraph 44 of the judgment (“the Pagtama Judgment”)[3] in the Pagtama Judicial Reviews, in determining similar or related grounds of challenge and issues raised in these sets of judicial review, I have already taken into account all the related and relevant arguments advanced in all of them, including the present judicial reviews. 38.Thus, in determining in the present judicial reviews those similar and related issues and grounds that have also been raised in the Pagtama Judicial Reviews and the Dembele Judicial Review, I will no doubt refer to the reasons and conclusions reached in the Pagtama Judgment and the Judgment (“the Dembele Judgment”)[4] in the Dembele Judicial Review. 39.Moreover, as I have repeatedly mentioned in the Pagtama Judgment and the Dembele Judgment, in dealing with judicial review challenges of the Director’s exercise of discretion in refusing an application for permission to stay in Hong Kong, the court should firmly bear in mind certain relevant principles and approach. I have recently set out those principles and approach at paragraphs 12 - 17 of the Dembele Judgment, after taking into account the Court of Appeal’s recent judgment in 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”). Given the importance of these principles and approach, and for convenience, I will repeat them again below. 40.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”)[5] to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions. 41.Second, it is well established that the Director in the exercise of that power and discretion adopts an overall restrictive immigration control policy.[6] 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/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:
42.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.[7] The Dependant Policy is one such specifically formulated policy. 43.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.[8] 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. 44.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, 14 April 2015,Chow J) at paragraph 64 (as approved by the Court of Appeal in the BI/BH CA Judgment, at paragraph 124). 45.With these principles and approach in mind, I now turn to look at the grounds of challenge. C3. The Asserted Rights Ground and the Family Reunion Objective Ground 46.Under these grounds, Ms Li SC argues that the NRD Requirement is unlawful or Wednesbury reasonable as its formulation and its application (insofar as it is an eligibility criterion) has failed to take into account the Asserted Rights. In support of her arguments that the Asserted Rights are engaged and thus have to be taken into account, leading counsel relies fundamentally on the following two contentions:
47.The first contention was similarly advanced in the Pagtama Judicial Reviews while both the first and second contentions were raised in the Dembele Judicial Review. 48.I have previously rejected these contentions for the reasons given at paragraphs 58 - 188 of the Pagtama Judgment and at paragraphs 20 - 57 of the Dembele Judgment. I have concluded that the Asserted Rights are not engaged as a matter of law. I have also concluded that the purpose of the Dependant Policy is not to facilitate family reunion but is a policy based on the showing of the necessary dependency a policy. 49.As in the Dembele Judicial Review, Ms Li in the present cases has also sought to rely on:
50.For the reasons I have set out at paragraphs 39 - 56 of the Dembele Judgment, I have rejected the contentions that these documents support that the Dependant Policy’s objective is to facilitate family reunion. I have concluded that instead, they are consistent with the construction that the Dependant Policy is premised fundamentally on showing the necessary dependency. 51.In coming to the above conclusions in the Pagtama and Dembele Judgments, I have already taken into account the related arguments raised in the present judicial reviews. 52.In the premises, for the same reasons, I would similarly reject in these judicial reviews the Asserted Rights Ground and the Family Reunion Objective Ground. C4. The Misapplication of Policy Ground 53.The NRD Requirement is set out at paragraph 5(b) of the “Guidebook for Entry for Residence as Dependants in Hong Kong” (“the Guidebook”) published by the Immigration Department. Paragraphs 3 and 5 of the Guidebook provide relevantly as follows:
54.It is common ground in the present cases that the Director concluded that the 1st applicants were ineligible for the Dependant Policy once he came to the view that the NRD Requirement was not met. 55.Ms Li contends that the Director in treating this requirement as an ineligibility criterion under the Dependant Policy has misconstrued and misapplied it. Leading counsel relies heavily on the first instance judgments respectively in BI[10]and BH, supra,to support her arguments that this requirement on a proper construction is not an eligibility criterion. In BI and BH, Zervos J and Chow J respectively heldthat the NRD Requirement was not an ineligibility criterion under the Dependant Policy and the Director had misconstrued it in treating it as such. 56.However, these first instance judgments in BI and BH have been reversed bythe Court of Appeal in the BI/BH CA Judgment. In doing so, the Court of Appeal heldat paragraphs 68 - 90 that, on a proper construction of the Dependant Policy and the Guidebook, the NRD Requirement is an eligibility requirement. 57.The Court of Appeal’s judgment that, as a matter of construction, the NRD Requirement is an eligibility criterion under the Dependant Policy is binding on this court. 58.Ms Li however also submits I am not bound to follow the Court of Appeal’s above judgment as there is the additional evidence of the 2003 LegCo Brief before this court which was not before the Court of Appeal. It is her submission that the brief shows that, on a proper construction, the NRD Requirement is not intended to be an eligibility requirement under the Dependant Policy. 59.For the same reasons I have explained at paragraph 36 of the Dembele Judgment, I regard myself as still bound by the BI/BH CA Judgment on the question of construction of the policy and its terms even though the 2003 LegCo Brief was not before the Court of Appeal. However, in case I am wrong on this, I would proceed to deal with below Ms Li’s contentions relying on the 2003 LegCo Brief. 60.Paragraphs 1 to 5 of the 2003 LegCo Brief state as follows:
61.Ms Li submits that all that have been set out in the 2003 LegCo Brief are that there should be a criterion under the Dependant Policy that the relevant dependant visa application should raise no security objection (see paragraph 2(c)). In the premises, says Ms Li, the requirement of there being no known record of detriment (which in any event has been stated as “no known record of serious crime” in the 2003 LegCo Brief) must be understood in the context of raising no security objection. In this respect, whether there is or is not such security concern must be a question that involves a balancing exercise looking at all the relevant circumstances of the applicant who has such a record of say serious crime. For example, Ms Li continues, whether an applicant who has been convicted of a serious crime raises a security concern to Hong Kong would also depend on questions such as how long ago that conviction is, and whether that person has since the conviction rehabilitated and shown to have been living a law-abiding life for a long time. Thus, when viewed against the proper context of security concern, the NRD Requirement cannot be intended to be a strict eligibility requirement, in the sense that once there is such a record, the applicant is regarded as ineligible for the Dependant Policy. 62.With respect to Ms Li, I am not persuaded by her submissions. 63.First of all, underlying Ms Li’s contention is the principal proposition that the 2003 LegCo Brief is the document that sets out and contains the Dependant Policy. 64.However, I am doubtful that the 2003 LegCo Brief can be treated as the very document which is intended to contain and set out the Dependant Policy entirely with its precise and intended terms. As expressly stated it, the document is only to reflect the CEIC’s order to continue the current Dependant Policy with some modifications and to explain the reasons behind those modifications. It is therefore obvious that the Dependant Policy has already been made and set well before this document. The brief is also only to focus on explaining those minor modifications. In the premises, it is unnecessary for the brief to set out in precise terms the entire Dependant Policy itself. More importantly, it would be unnecessary for the brief to set out the precise intended terms and criteria adopted under the policy which the CEIC did not intend to modify. The NRD Requirement is not one of the criteria that is subject to minor modification. As such, it would not be correct to seek to construe the 2003 LegCo Brief to look for the intended meaning of the NRD Requirement as adopted in the Dependant Policy. 65.In any event, even assuming (without deciding) that the 2003 LegCo Brief did intend to set out the Dependant Policy, I do not think Ms Li’s contended construction in relation to the NRD requirement is correct. I will explain why. 66.First, paragraph 2 of the 2003 LegCo Brief stated clearly that a dependant visa application will be considered “provided that the following criteria are met”. Purely as a matter of objective construction of this provision, it is clear that the criteria set out under paragraph 2 (which included the NRD Requirement) is intended to be ones that the applicant must satisfy before his dependant application will even be considered. They are therefore intended to be eligibility criteria. 67.Second, when the 2003 LegCo Brief with the paragraphs quoted above is considered as a whole, it is also clear to me that the Dependant Policy is intended to provide a structured approach whereby:
68.As emphasised by the Court of Appeal in BI/BH CA Judgment at paragraphs 70 and 71, the Dependant Policy must be construed against the context of the overall highly restrictive immigration control policy and the proper construction must be consistent with such restrictive policy. 69.When viewed against this general restrictive immigration control policy, it must both be legitimate and reasonable for the CEIC (or the Director) to adopt the Dependant Policy where there are fundamental and strict eligibility factors that an applicant must meet before he is eligible for consideration under the policy, failing which his application for permission to stay in Hong Kong would only be considered on the discretionary compassionate and humanitarian grounds. 70.Third, as the CEIC in the 2003 LegCo Brief was only to order the continuation of the then current Dependant Policy (as stated at paragraph 2), 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 to, among others, treat the NRD Requirement (as consistently been set out in the Guidebook) as an eligibility criterion. If the CEIC had intended (as the applicants now seek to argue) that requirement not to be an eligibility criterion, one would have expected the CEIC to clarify that position in the 2003 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 and treatment of the NRD Requirement as an eligibility criterion. 71.For the same reasons, the reference to “including no known record of serious crime” at paragraph 3 of the 2003 LegCo Brief should also be understood as an example of the “no known record of detriment” under the NRD Requirement instead of it being intended to be the criterion itself. 72.In the premises, even if it were open to me to look at the 2003 LegCo Brief notwithstanding the BI/BH CA Judgment, I would still reject the applicants’ contention that the NRD Requirement is not an eligibility criterion. 73.The Director therefore has not misapplied the policy in making the Decisions. The applicants fail under this ground. C5. The Fettering of Discretion Ground 74.It is the applicants’ contentions under this ground that the Director in applying the NRD Requirement has unlawfully fettered the exercise of his statutory discretion. This is so since, in applying this requirement, the Director would rigidly and automatically regard an applicant as not meeting it purely and only on the basis that the applicant has such a record of detriment. The Director would not take into account the other personal circumstances of the applicants, such as the efforts and contributions made by the applicant’s close relatives and associates in support and the applicant’s rehabilitation since their last conviction in living a law-abiding, orderly, ordinary and stable life entrenched and established under the married family life. 75.I am unable to accept these submissions. 76.As I have explained above under the Misapplication of Policy Ground, it is legitimate for the Director to adopt the Dependant Policy whereby he is first to consider whether an applicant’s situation falls within that policy by reference to the eligibility criteria, and if not, to proceed to consider whether there are grounds for granting permission to stay on exceptional humanitarian and compassionate basis. The personal circumstances of an applicant in relation to his or her records of detriment would fall to be taken into account under the Director’s residual discretionary considerations under the exceptional compassionate and humanitarian basis. 77.Moreover, as A Cheung J (as the learned CJHC then was) held in Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219 at paragraph 24, there is no fettering of the Director’s discretion by drawing a certain and workable line for defining the categories of applicants who could fall within the Dependant policy (for the present purposes someone has to have no record of detriments) and then adhere to it. 78.I therefore also reject this ground of challenge. C6. The Arbitrariness Ground 79.The applicants contend under this ground that the meaning of “no record of detriment” under the NRD Requirement is not defined and is “broad, uncertain and vague in its terms”. An applicant is therefore simply unable to make an informed response to this requirement. The NRD Requirement is thus unlawful for being arbitrary and lack of reasonable certainty. 80.I agree with Mr Yu SC that this ground is without merit. 81.As submitted by Mr Yu, what constitutes “uncertainty” or “vagueness” in law is itself an open-ended matter that must be determined by reference to the concrete facts and specific context. 82.Thus, even in the case of regulations or norms which have legal force in themselves, the threshold for establishing that an expressed requirement or standard is unlawful for want of precision or certainty is very high. Hence, for example, a planning restriction with statutory force or a provision under sub-legislation is not invalid for uncertainty unless it has no ascertainable meaning. As the Court of Appeal noted in Hysan Development Company Ltd v Town Planning Board CACV 232/2012, unreported, 13 November 2014, at paragraph 125, a case involving planning restrictions alleged to have major detrimental impacts on development, a provision of this kind “will be treated as valid unless it was so uncertain in its language as to have no ascertainable meaning or was so unclear in its effect as to be incapable of certain application. Mere ‘ambiguity’ would not suffice”. See also Percy v Hall [1997] QB 924, 941C, where Simon Brown LJ referred to the need for the disputed provision under a statutory instrument to have “no ascertainable meaning” or “so unclear in its effect as to be incapable of certain application in any case”) before the court would declare it invalid. 83.In contrast with the above example, where allegations of uncertainty and the like are made in respect of a general policy (rather than a statutory or similar provision), any contended requirement for exact certainty cannot work. This is because policies are by nature very different from legal instruments. Policies must generally admit a degree of flexibility. Excessive codification runs counter to this, and may well render a policy or its implementation open to allegations of unlawful fettering or excessive rigidity. 84.Further, specifically in the immigration policy context, as a matter of common sense, the court recognises and accepts that there are legitimate categories of concern as to criminal or security risks and these categories plainly cannot be exhaustively defined. It is therefore in the public interest and proper for the NRD Requirement to be broadly formulated and applied in each case by reference to its particular facts with the benefit of the wide experience and perspective of the Director. In this respect, it is pertinent to refer to the Court of Appeal’s observations in the BI/BH CA Judgment at paragraph 92(2) that in discharge of his duty under immigration control, the Director has to make decisions under the Dependant Policy in light of the macro circumstances and needs of Hong Kong based on matters and information “which could not be fully explained to or understood by the general public”. This must apply with equal if not greater force in the context of security concern. 85.When understood in the context of a dependant visa application, the requirement of “no record of detriment of the applicant” conveys a sufficiently clear objective meaning to an applicant that he should not have any records which would make the Director consider it to be adverse to Hong Kong if he is allowed to enter and stay in Hong Kong. This would obviously include a record which would raise any security concerns, including any concerns on law and enforcement, in Hong Kong. This in my view is sufficiently clear and certain to enable an applicant to know whether and how he could meet the requirement. I therefore reject the contention that the NRD Requirement lacks an ascertainable meaning in its terms to make the requirement unlawful. 86.The applicants also suggest in their skeleton at paragraphs 15, 16 and 20 that there has been a “failure to provide concrete explanation or information of the [NRD Requirement] and how immigration officers would be satisfied” of it and that “it is inconsistent with a policy not to make available information about it”. 87.In this respect, the Director has in these proceedings disclosed the internal general guidelines (“the Guidelines”) which have been relied upon by the immigration officers to assist them in determining, among others, whether an applicant has a record of detriment under the NRD Requirement. The Guidelines provide relevantly as follows:
88.Ms Li however says this would not assist the Director. This is so as unpublished guidelines would not enable an applicant to make any informed responses in seeking to meet the NRD Requirement. This therefore would not cure the uncertain nature of the requirement. Ms Li further relies on R(Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admins) at paragraphs 52 - 53, per Stanley Burton J to say that in any event, there is a duty on the Director to publish the Guidelines in relation to the meaning of the NRD Requirement and the failure to do so renders it unlawful for the Director to apply them. 89.I again accept Mr Yu’s submissions that these complaints are without merits for the following reasons. 90.As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”. The Director’s wide discretionary powers over immigration control is derived from the Immigration Ordinance and the Dependant Policy is itself a policy setting out criteria for the exercise of the Director’s statutory powers in certain contexts. The Dependant Policy is published in the Guidebook. 91.Materials such as the Guidelines as to the application of policy differ from materials which indicate the policy itself. Such internal materials are there to assist the practical administration of a policy in respect of particular cases. Their publication would risk the public confusing such internal guidance provisions as to assessment and administration as themselves representing formal policy. This is clearly undesirable from both a public administration and public interest standpoint. 92.The authority of R(Salih) is distinguishable. It was expressly concerned with “hard cases” involving failed asylum seekers. The essential complaint in that case was that the Home Secretary’s policy on the provision of support for “hard cases” was simply not made known to those who might seek to benefit from it, see: paragraphs 35 - 36. In other words, the case was one where there was the existence of an entire unpublished scheme and policy (which was different from an already published scheme and policy) being deliberately withheld from those who stood to benefit from it in a particularly stark context. Salih therefore provides no support for any general principle that all Government materials which are to assist officers in how to apply a policy, including internal administrative materials, must be made public for the policy to be lawful. 93.In the premises, if the Guidelines do not result in applying the policy in a way which is inconsistent with the objective meaning of the policy as generally understood by the public, the non-publication of the Guidelines does not amount to any breach of duty recognised in public law. 94.In my view, there is no inconsistency between the criteria set out in Guidelines and the objectively ascertainable meaning of the NRD Requirement under the Dependant Policy as I have concluded above. Further, even without knowledge of the Guidelines, given the objective and ascertainable meaning of the NRD Requirement, the applicants are clearly in a position to know whether they may have such an adverse record, such as a criminal conviction, which would raise security concern in Hong Kong and thus to make appropriate responses under this requirement. This is underlined by the fact the applicants in these cases did make substantive representations in their applications for dependant visa regarding their “records” even without the benefit of the Guidelines. 95.There are therefore also no merits in these complaints. 96.In the premises, the applicants’ case falls well short of the high threshold for judicial intervention on the basis of vagueness and uncertainty. I would also refuse this ground. 97.Finally, for completeness, I should also note the Director’s submissions (which I accept) that there is no basis for the applicants’ contention made at paragraph 20 of their skeleton that the alleged breadth, uncertainty and vagueness of the NRD Requirement were “designed to exclude applications in an arbitrary manner”, as if bad faith were involved. C7. The Legitimate Expectation Ground 98.This ground stands and falls with the Asserted Rights Ground. As I have rejected the Asserted Rights Ground, this ground must also fail. C8. The Procedural Irregularities Ground 99.The first complaint of procedural impropriety in each case is that, given the “enormous impact” of the Director’s decisions, he ought to have informed the applicants of what amounted to a “known record to the detriment” in each particular case. 100.I reject this complaint:
101.The second procedural complaint in each case was that the Director’s decision was “unreasoned”. This is similar to the allegation of procedural impropriety raised in the Dembele Judicial Review. For the same reasons I have set out at paragraphs 105 - 108 of the Dembele Judgment, I am also satisfied that the Director’s respective letters containing the LK Decision, the MN 1st, 2nd and 3rd Decisions and the CCO Decision contain adequate reasons for the present purposes. 102.In the premises, the applicants also fail under this ground. C9. The Relevant and Irrelevant Consideration and Irrationality Ground 103.Under this ground, the applicants under each of these judicial reviews seek to challenge the relevant decision on the conventional judicial review basis that the Director took into account irrelevant considerations and failed to take into account relevant considerations. It is also contended that in any event the relevant decision is irrational in the public law sense when viewed against the individual circumstances of their case. 104.In looking at the complaints made under this ground, I have to bear in mind the principles applicable to the determination of relevance in judicial review set out at paragraph 44 above. 105.Further, in relation to a challenge against the Director’s exercise of discretion to refuse an application for permission to stay in Hong Kong on lack of exceptional humanitarian and compassionate grounds, it is also important to have regard to the proper approach as laid in the BI/BH CA Judgment at paragraphs 102 - 111 as referred to at paragraph 43 above. In this regard, it is helpful to remind ourselves what the Court of Appeal has said in particular at paragraph 109 as follows:
106.Finally, as I have accepted at paragraph 202 of the Pagtama Judgment, given the significant impact of the Decisions on the applicants, I will accord a more vigilant review in examining these conventional grounds of judicial review. C9.1 The LK Judicial Review 107.In relation to the making of the LK Decision, the Director has filed the Affirmation of Wong Chau Ping and exhibited the file minute M7 to set out the detailed assessment of the case officer and his recommendation to the Director. 108.This unchallengeable evidence shows that (as summarised by Mr Yu in his skeleton):
109.The applicants now say the Director failed to take into account two relevant considerations in making the LK Decision. 110.First, they say the Director should have but failed to make the relevant assessment as to whether removing LK from Hong Kong back to his home country would amount to cruel, inhuman or degrading treatment to all the applicants, which is prohibited under Article 3 of the Hong Kong Bill of Rights, bearing in mind that the 2nd and 3rd applicants are Hong Kong permanent residents enjoying the right of abode in Hong Kong and other public entitlements in Hong Kong. 111.I am unable to accept this. 112.This ground is in effect the flip side of arguing that the Director should take into account the applicants’ family rights and permanent resident rights,[11] which is part and parcel of the Asserted Rights. I have already concluded above that the Director is not obliged to take into account these rights whether as a matter of law, or as a matter of relevance. 113.Further, it must be noted that, in support of the dependant visa application, the applicants themselves did not raise with the Director the position and concern that removing LK back to his home country would amount to cruel and inhuman treatment to all the applicants and the reasons why it would be so.[12] In the premises, it would not be open to the applicants to challenge in the present judicial review that the Director failed to take this (a matter which is also fact sensitive) into consideration when that was not even relied on by the applicants themselves in the dependant visa application. This is particularly so when these matters are relevant to questions that applicant should reasonably have expected the Director to have in mind in assessing LK’s application for permission to stay. See the Pagtama Judgment, paragraphs 211 and 214 - 217 and the authorities cited therein. 114.In any event, in considering whether there are exceptional humanitarian and compassionate grounds to justify exercising his discretion to grant LK the permission to stay in Hong Kong, the Director did take into account the family circumstances of the applicants and the fact that the 2nd and 3rd applicants are both Hong Kong permanent residents (see: paragraphs 10.1 and 13.3 of M7). 115.In the premises, there are clearly no merits in this complaint. 116.Second, the applicants also complain that the Director failed to take into account the relevant facts that since LK had been released from prison, he had not re-offended, got married to the 2nd applicant, enjoyed family life, had 3rd applicant baby daughter, and has been caring for both the 2nd applicant and the 3rd applicant as husband and father. 117.There are similarly no merits in this complaint. It is clear from the evidence[13] that the Director did take these matters into account when considering whether there existed exceptional humanitarian and compassionate grounds to grant LK permission to stay in Hong Kong. LK and the 2nd applicant have set out all these matters in their written representations to the Director in support of the dependant visa application (see written representations respectively dated 15 May 2012 and 16 July 2013),[14] and the Director was fully aware of those in considering the application. 118.Finally, it is noted that LK in his supporting affirmation has also mentioned:
119.If the applicants are seeking to rely on these matters to complain that the Director had failed to take them into account, there is again no merit in the contention. For those matters set out at paragraph 118(1) above, they had not been mentioned to the Director by LK in support of the dependant visa application, and thus it is not open to the applicants now to contend that the Director had wrongly failed to take them into account in making the LK Decision.[15] Insofar as the matters set out at paragraph 118(2) above are concerned, they are matters that should be properly considered in LK’s torture claim, which is exclusively within the purview of the Removal Assessment Section of the Immigration Department. The torture claim assessment is entirely separate and different from a dependant visa application.[16] These matters are therefore clearly not relevant to the Director’s consideration of the dependant application. 120.Finally, it is also contended that the Director took into account an irrelevant consideration when he also considered the fact that there was a deportation order made against LK which was only withheld for the time being pending the determination of his torture claim.[17] 121.The reference to the deportation order was made at paragraph 13.2 of the M7 under the title “Consideration and Recommendation”. This reference should be looked at in the following context:
122.In deciding whether there were exceptional circumstances to justify granting LK permission under the humanitarian and compassionate ground, the Director was engaged in a balancing exercise. In that balancing exercise, the Director is entitled to look at all the circumstances, which must include the seriousness of the offence LK was convicted of and whether there were any other reasons why he should not be permitted to stay in Hong Kong. In the premises, I cannot see how it can be said that it is Wednesbury unreasonable for the Director to take into account the fact of the deportation order as that would reflect on (a) the seriousness of the offence LK was convicted of; and (b) the fact that LK had already been considered to be undesirable to the Hong Kong Society by reason of that he had committed that serious offence. 123.For all the above reasons, I reject this ground of judicial review. C9.2 The MN Judicial Review 124.As mentioned above, MN is subject to a total of three rounds of decisions by the Director. MN 1st Decision made in July 2011 is the Director’s refusal of his dependant visa application made in July 2010. After that, MN had through his lawyers requested the Director to twice “reconsider” his application respectively in July 2011 and around July 2012, resulting in MN 2nd and 3rd Decisions (made in December 2011 and November 2012) whereby the Director confirmed that the previous refusal decision (ie, MN 1st Decision) should still stand. The applicants in the present judicial review seek only to challenge the MN 3rd Decision. 125.The Director has filed the Affidavit of Lam Wai Men Shirley and exhibited the file minutes M2 to set out the detailed assessment of the case officer and her recommendation to the Director in making the MN 3rd Decision. 126.Again, this unchallengeable evidence shows, as summarised by Mr Yu in his skeleton, that:
127.Ms Li now argues that the Director in making the MN 3rd Decision failed to take into account the following relevant considerations:
128.I do not accept this contention. 129.Insofar as the alleged circumstances of the offences are concerned, these are matters which must have already been reflected in the sentence and it cannot be said that it would be Wednesbury unreasonable for the Director not to take that into account. Moreover, MN himself had not specifically relied on these as matters supporting his application. It is therefore not open to him to complain that the Director had failed to take that into account. There is nothing in this complaint. 130.Insofar as the second matters are concerned, I will repeat my reasons at paragraph 116 above to reject also this complaint. 131.The applicants also complain that the Director took into account the maximum penalty for each of the offences on conviction for making the decision. They say this is an irrelevant factor. 132.This complaint is also without merit. 133.The reference to the maximum penalty was made in the context of the making of MN 1st Decision. It is stated relevantly at paragraphs 15 - 19 of M10 dated 20 July 2011 as follows:
134.After referring to the potential maximum penalty of the offences that MN was convicted of, the Director also took into account the actual length of sentence MN was given, the fact that the offences involved dishonesty, and the brief facts relating to the offences, before he came to the conclusion that the actual offences committed by MN were indeed serious. It is obvious that the potential maximum penalty of the offence reflects the offence’s potential serious nature and thus is a relevant factor that the Director could take into account to assess, together with other relevant factors, the severity of the offences committed by MN. In such a context, at the least it cannot be said that it is Wednesbury unreasonable for the Director to refer to the potential maximum penalty of the offences as a relevant consideration. 135.Finally, MN also says the Director in reaching the MN 3rd Decision referred to MN 2nd Decision as set out in M3.[20] Under that the Director suggested that MN and the 2nd applicant could have “other avenues” such as “relocating to [MN’s] home country” and concluded that there was no undue hardship on them if his application for dependant visa was refused. Ms Li submits that in so doing, the Director failed to properly discharge his Tameside duty by asking the right question and acquainting himself with all the relevant information, when the applicants were not even informed of that “other avenue” in the context of undue hardship for comments and responses. The decision is thus irrational and unreasonable and should be quashed.[21] 136.I do not agree. 137.It was MN’s case that he should be allowed to stay in Hong Kong with the 2nd applicant instead of his home country. It must be within the applicants’ reasonable contemplation that questions would be raised in the Director’s mind as to why it would be unduly harsh for them to be in MN’s hometown instead of Hong Kong. It would be up to MN to raise with the Director his matters of concern, if any, in these respects. He did not do so and he cannot now complain that the Director should have asked him question on this issue of hardship so that he could respond to them. See also the reasons given at paragraphs 214 - 215 of the Pagtama Judgment. 138.Finally, MN also raises the same complaint made by LK that removing MN from Hong Kong back to his home country would amount to cruel, inhuman or degrading treatment to the applicants. For the same reasons I have rejected LK’s ground, I also reject this contention.[22] 139.For all the above reasons, the applicants also fail under this ground. C9.3 The CCO Judicial Review 140.The Director has filed the Affirmation of Wong Chau Ping and internal minutes M6 and M7 to show that, in making the CCO Decision:
141.As stated in the Director’s refusal letter dated 9 October 2013, CCO’s application was refused on the basis that:
142.Moreover, it is also specifically stated in the letter that CCO’s claimed identify had yet to be ascertained. 143.Bearing the above in mind, I now turn to look at CCO’s specific complaints in this ground. 144.First, Ms Li says the Director cannot take into account “the suspected offences of making a false representation into account” to conclude that there was a record of detriment of CCO. Leading counsel emphasises that there is yet any conviction and thus there cannot be any “record” of such. Further, Ms Li argues that it is in any event also irrational for the Director to do so now, as what would be the case if CCO is eventually either not prosecuted of the offences or, even if prosecuted, he is acquitted. It would then be absurd that CCO is refused permission to stay in Hong Kong because there is a “record” of his detriment. 145.I am not persuaded by Ms Li’s arguments. 146.As a start, the ordinary meaning of the word “record” includes any written documentation. This is particularly so when this criterion is imposed in the context of Hong Kong’s security concern under the overall strict immigration control. In that context, it must be intended under this criterion that the Director could look at any records beyond criminal convictions which may show a security concern. For example, if the Director has information in his records to show that an applicant seeking permission to come to Hong Kong may be involved in terrorist activities. It cannot be seriously suggested that, as a matter of proper construction, it is not intended under this criterion that the Director cannot regard that as a record of detriment even though that applicant does not have a criminal conviction or has not been successfully prosecuted of those activities. 147.In the premises, I cannot accept the argument that it is not open to, and thus irrelevant for, the Director to take into consideration of CCO’s suspected offences when there was yet any prosecution and conviction. 148.The applicants’ more pertinent contention is probably that, given the absence of yet a conviction, there was insufficient basis for the Director to form the view that these particular suspected offences could be regarded as so serious to be a record of detriment of CCO to render him not meeting the NRD Requirement. 149.In this respect, it should be noted that the Director’s unchallenged evidence is that:
150.In light of this evidence, I am satisfied it must be reasonably open to the Director to form the view that CCO had intentionally made a false representation to the Immigration Department in relation to his visit visa application. CCO clearly did not state in his visit visa application his alleged true reason for coming to Hong Kong. He must therefore also be aware of the fact that he had put in an untrue reason in the application. This involves dishonesty on the part of CCO in seeking to obtain permission to come to Hong Kong. It must therefore be reasonably open to the Director (bearing in mind the overall restrictive immigration policy and Hong Kong’s security concern) to regard the above records of showing CCO’s intentional false representation as a serious record of his detriment which raises security concern, and hence non-compliance with NRD Requirement.[23] In any event, in whichever way one looks at it, it cannot be said that the Director’s said conclusion is irrational in the public law sense. 151.Ms Li further contends that the Director fettered his discretion in relying on “normal immigration requirements” as a basis of refusing CCO’s application to take up residence in Hong Kong. This is so as, Ms Li says, “normal immigration requirements” are not specific eligibility considerations.[24] 152.There is nothing in this contention. As a matter of common sense and logic, for a valid normal visa application, there must be some basic and essential immigration requirements that the applicant should show and satisfy, such as proof of his true identity and holding a valid passport, before he could be properly considered under the relevant category of immigration policy. Such “normal immigration requirements” are in addition to and have nothing to do with the specific eligibility criteria relevant under the Dependant Policy. Paragraph 15 of the Guidebook has also made it clear as follows:
153.There is therefore nothing irrational for the Director in the exercise of his discretion under immigration control to rely on “normal immigration requirements” to refuse CCO’s application. As I mentioned above, the Director also formed the view that CCO had failed to prove his true identity. Further, CCO had also refused (for whatever reasons he put forward) to renew his passport and thus he was at the material times not holding a valid passport. In the premises, it must be similarly reasonably open to the Director to conclude that CCO cannot satisfy the normal immigration requirements and thus refuse the application also on this basis. 154.The applicants then complained that, in concluding that CCO had failed to prove his identity, the Director had failed to take into account CCO’s explanations regarding the discrepancies concerning his identity.[25] 155.There are no merits in this complaint. The Director’s reasons for arriving at the above conclusion can be seen at the relevant parts of M6, which stated as follows:[26]
156.It is clear that the Director in forming the view that CCO had not been able to prove his true identity had already considered CCO’s explanations for the discrepancies although the Director was not satisfied with them[27]. 157.Ms Li then further submits that even if the Director could rely on normal immigration requirements as a basis to refuse the application, he had failed to take into account the relevant facts that (a) CCO could “readily renew his Nigerian passport”; (b) CCO had “an understandable concern in relation to approaching the Nigerian authorities” (which has manifested into his pending torture claim); (c) CCO has a clear criminal record in Hong Kong; (d) CCO raises no security or criminal concerns to Hong Kong in that even if (which is not admitted) it were true that he gave the representation that he was coming to Hong Kong on business when his intention was to come to Hong Kong to save his life, such conduct with such intention should nonetheless be considered reasonably excusable; and (e) there is no likelihood of him becoming a burden to Hong Kong in light of the 2nd applicant’s financial support. 158.I do not accept these submissions. First, all these alleged relevant matters are premised on the basis that the underlying allegations in support of CCO’s torture claim are established. However, they have not been so established. As such, they cannot be regarded as relevant matters that the Director must take into account. Alternatively, it cannot be said that it is Wednesbury unreasonable for the Director not to take them into account as relevant. Second and in any event, as said by the Director,[28] given that CCO’s true identity is in doubt, it is reasonable for the Director not to accept and assume that CCO could “readily” had his passport renewed, and hence, it is not unreasonable for the Director not to regard this as a relevant matter. 159.Finally, the applicants raise the arguments that the Director failed to take into consideration that refusing to grant permission to CCO to stay in Hong Kong would amount to cruel, inhuman and degrading treatment to all the applicants. For the same reasons I have explained in LK, I reject this complaint also.[29] 160.The applicants must also fail under this ground. C10. Conclusion on the grounds of challenge 161.For all the above reasons, I reject all the grounds raised in support of these judicial reviews. D. DELAY 162.Delay in applying for judicial review is relevant in two aspects. 163.First, under section 21K(6)(a) of the High Court Ordinance (Cap 4) and 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. In this respect, if the court has granted leave on an ex parte basis, the respondent may seek to set aside on an inter partes basis that leave for delay. However, if the respondent seeks to do so, although the court does have the jurisdiction to deal with it even at the substantive hearing, generally speaking it is preferable to have such an application dealt with promptly: BI/BH CA Judgment, paragraphs 134 - 139. 164.Second, delay is also relevant at the stage of relief. It is trite that even if an applicant can establish his grounds of judicial review, the court may still refuse to exercise its discretion to grant relief for reasons of hardship, prejudice or detriment to good administration caused by the delay. See: section 21K(6)(b) of the High Court Ordinance; BI/BH CA Judgment, paragraph 135. 165.In the present judicial reviews, Ms Li accepts that there has been delay on the part of the applicants in applying for leave for judicial review in each of the three cases. 166.In light of these delays, the Director (a) asks the court not to exercise its discretion to grant reliefs even if the applicants can establish any grounds of challenge in the LK Judicial Review; and (b) asks the court by way of summons dated 24 August 2015 to set aside the ex parte leave granted respectively in the MN and CCO Judicial Reviews. 167.I would deal with the Director’s applications in each of these cases in turn. D1. The LK Judicial Review 168.In this judicial review, there is a significant delay of nearly 11 months for LK to apply for leave (the LK Decision was made on 25 July 2013, while the leave application was made on 7 July 2014). 169.Mr Yu for the Director submits that even if the grounds of judicial review are established, the court should not grant any relief in light of the substantial delay as there is clear prejudice and detriment cause to good administration:
170.Mr Yu has also submitted that in considering whether relief should be granted as a matter of discretion, this court could and should take into account the factor that there is a high likelihood that LK’s dependant visa application would meet the same outcome if remitted back to the Director for fresh consideration. In support, Mr Yu relies on the judgment of Chow J in TH v Director of Immigration (HCAL 114/2014, 20 July 2015) at paragraphs 68 and 76 - 78. 171.I accept Mr Yu’s above submissions. As I have previously said in the Pagtama Judgment at paragraph 238(3) and the Dembele Judgment at paragraph 119(4), the substantial delay in making the application for judicial review in immigration cases would result in prejudice and detriment to good administration, which has a serious effect and impact generally on immigration control.[30] 172.Further, I also agree that even if the Director is to reconsider LK’s dependant visa, realistically speaking there is a high likelihood that the Director would reject the application having regard to the following matters:
173.Having taken all the above into consideration, I would therefore not exercise my discretion to grant relief in this judicial review. D2. The MN and CCO Judicial Reviews 174.In these two judicial reviews:
175.As I said above, the Director asks for the ex parte leave to be set aside for delay. 176.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. 177.The explanations for the delay and justification for extension of time in both judicial reviews as advanced by Ms Li are similar and are in gist as follows:[31]
178.With respect, I am not persuaded that there are good reasons to justify an extension time:
179.I therefore would also refuse to grant extension of time, and set aside the ex parte leave granted in both the MN and CCO Judicial Reviews. In light of this, it is unnecessary for me to consider whether reliefs should be refused for reasons of delay. E. CONCLUSION 180.For all the above reasons, the applicants have failed in all the grounds advanced in support of these applications. I would therefore dismiss these judicial reviews. 181.Further, in relation to the MN and CCO Judicial Reviews, I would also refuse to grant extension of time and set aside the ex parte leave on the basis of delay. 182.I further make an order nisi that costs of each of the judicial reviews and the applications to set aside leave (in MN and CCO Judicial Reviews) 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 applicants in all cases Mr Benjamin Yu SC, leading Mr Abraham Chan, instructed by Department of Justice, for the respondent in all cases [1] See the Affirmation of Wong Mo Cheong Wilson, paragraphs 10 - 14. [2] See file minute M7 dated 25 September 2013, at paragraph 2. [3] Dated 12 January 2016. [4] Dated 22 April 2016. [5] See for example, sections 7 and 11. [6] See the Affirmation of Wong Mo Cheong Wilson, paragraphs 6 - 9. [7] See Affirmation of Wong Mo Cheong Wilson, paragraphs 7 - 9. [8] See Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332, 339 and 347. [9] They are the 1998 - 1999, 1999 - 2000, 2000 - 2001 and 2001 - 2002 reports which contained statements that “Under the immigration policy, foreigners may be admitted into Hong Kong for the purpose of family reunion, that is joining residents in Hong Kong as dependants...” [10] BI v Director of Immigration (HCAL 174/2013, 10 December 2014, per Zervos J). [11] See paragraph 36 of the Amended Form 86, where the applicants contend under this complaint that “an order of mandamus ought to be made by this Court to require the Director to make such determinations in respect of each of the Applicants and in respect of the family unit consisting of all of them”. [12] See paragraph 33 of the Affirmation of Wong Chau Ping. [13] See paragraphs 10.1 - 11.3 and 13.3 of the internal memo M7; Affirmation of Wong Chau Ping, paragraphs 24 - 30 and 34. [14] See: BD2/310 - 312, 354 - 356. [15] See paragraph 36 of the Affirmation of Wong Chau Ping. [16] See paragraph 37 of the Affirmation of Wong Chau Ping. [17] See paragraph 35 of the Amended Form 86 and paragraph 35(a) of the applicants’ skeleton. [18] See paragraph 42 of Amended Form 86 and paragraph 35(b) of the applicants’ skeleton. [19] See paragraph 45 of Amended Form 86 and paragraph 35(b) of the applicants’ skeleton. [20] See paragraph 5 of M2 which refers to M3 (ie, the file minute regarding MN 2nd Decision) in the consideration. [21] See paragraph 43 of Amended Form 86 and paragraph 33 of the applicants’ skeleton. [22] See paragraph 58 ofAffidavit of Lam Wai Men Shirley which confirms that MN did not raise these matters with the Director to support his application. [23] Although this would disentitle him to apply for a dependant visa, if CCO could eventually successfully establish his torture claim, he would not be returned to Nigeria. [24] See paragraph 34(b) of the applicants’ skeleton and paragraph 37 of the Amended Form 86. [25] See paragraph 38 of the Amended Form 86. [26] See also the Affirmation of Wong Chau Ping, at paragraphs11 - 15 and 19 - 44. [27] See also the correspondences between CCO’s lawyers and the Director in relation to the Director’s questions raised on his claimed identity. It is clear that the Director was fully aware of the explanations offered. [28] See paragraph 47 of the Affirmation of Wong Chau Ping. [29] See paragraph 49 of the Affirmation of Wong Chau Ping, confirming that the alleged Article 3 of the BOR concerns was never raised with the Director by the applicants in the dependant visa application. [30] See also the Affirmation of Wong Chau Ping at paragraph 39, where it is deposed that “... In the absence of any sufficiently justifiable reasons for the delay, any indulgency by the Court to allow the extension of time sought by the Applicants will likely be seen as a form of encouragement for persons who have no permission to remain in Hong Kong to flout the law and find all sort of exercises to resist removal from Hong Kong. This will be detrimental to all the administration of effective immigration control. Viewing the matter in context, there is a great need for finality here.” [31] See: Chronology of Events exhibited to 2nd Affirmation of Tong Thi Xuan (as verified by the Legal Aid Department) respectively for the MN and CCO Judicial reviews, paragraph 22 of Amended Form 86 (MN Judicial Review), paragraph 21 of Amended Form 86 (CCO Judicial Review), and paragraph 59(c) of applicants’ skeleton. CCO Judicial Review: Chronology of Events exhibited to 2nd Affirmation of Tong Thi Xuan. [32] It had taken 15 months for MN and 4 months for CCO to have legal aid granted. [33] In the MN Judicial Reivew, it had taken another five months for the assignment of counsel and drafting of the Form 86 and for obtaining documents from the Director by the applicants’ solicitors. In the CCO Judicial Review, it had taken six months. [34] See: Super Lion Enterprises Ltd v Commissioner of Rating and Valuation (HCAL 71/2005, 6 October 2006, per Hartmann J), at paragraph 218; Lo Siu Lan v Hong Kong Housing Authority (CACV 378/2004, 17 December 2004) at paragraphs 34 - 42, per Stock JA. [35] See Affidavit of Lam Wai Men Shirley, paragraph 62. [36] See Affirmation of Wong Chau Ping, paragraph 52. [37] I note that, after the filing of these judicial reviews, the arguments that the NRD Requirement was not an eligibility criterion had received initial support at first instance in BI and BH. However, insofar as this court is concerned, I would have found the Director’s arguments raised in opposing this ground very persuasive even if without the benefit of the BI/BH CA Judgment. Thus, I would still have regarded this ground not of such a strong merit to override the lack of good reasons to justify the delay so as to grant an extension of time. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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