H v. Director of Immigration

HCAL 172/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 172 OF 2015

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J U D G M E N T

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INTRODUCTION

1.By his Form 86 dated 21 August 2015, the applicant applied for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) made on 8 October 2013 (“the 2013 Decision”) and confirmed on 11 August 2014 (“the 2014 Decision”) refusing to grant his application for a dependant visa to join his wife.

2.The applicant accepts that the leave application was made out of time and thus an extension of time to make the application is required (see paragraphs 99 to 146 of the Form 86).

3.Upon consideration of the applicant’s ex parte application for leave to apply for judicial review, I gave (inter alia) the following direction on 3 November 2015, namely, that there be a rolled up hearing of:-

(1)   the application for an extension of time to apply for leave to apply for judicial review;

(2)   the application for leave to apply for judicial review in the event that an extension of time is granted; and

(3)   the substantive application for judicial view in the event that leave to apply for judicial review is granted.

4.In the Form 86, the applicant raised 8 grounds of review.  On 6 May 2016, the applicant took out a summons seeking leave to amend the Form 86 to raise an additional ground of review.  The Director objected to the application to amend the Form 86.  On 30 May 2016, I directed that the application to amend should be heard together with the other applications mentioned in paragraph 3 above.

5.The substantive hearing of the above applications took place on 29 June 2016. As indicated in Mr Philip J Dykes SC’s skeleton submissions dated 17 June 2016, the applicant did not pursue (i) Grounds 1 and 6 in the original Form 86 in light of the decision of the Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520 (although those grounds were not abandoned), and (ii) Grounds 7 and 8 in the original Form 86 (for different reasons). Accordingly, there are five outstanding grounds of review to be considered in this judgment.

BACKGROUND FACTS

(i)   Applicant’s family background and immigration status

6.According to the applicant, he was born on 9 January 1989 in Monrovia, Liberia.  His family was killed during the Liberian civil war which began in 1989.  After the death of his grandmother in 1997, he was forced to become a child soldier at the age of about 8.  He later fled from Liberia and travelled to Ghana, from where some of his family had originated.  During his travels he met and worked for a man (“the Agent”) who promised to bring him to the USA.  He paid the Agent approximately US$60,000, who travelled with him to Hong Kong via South Africa on or about 7 January 2004.  The Agent held the passport which purportedly contained the details of the applicant and dealt with the immigration officer on behalf of the applicant.  Afterwards, the Agent abandoned the applicant in Hong Kong.  He was 14 years old at that time.

7.The applicant overstayed in Hong Kong after the expiry of his limit of stay as a visitor for 90 days.  He first met his current wife, a Hong Kong permanent resident, in or about October 2005.  They began dating each other in February 2006.

8.On 28 December 2006, the applicant was arrested by the Police.  On 30 December 2006, he was referred to the Immigration Department.  He was initially detained in Pui Chi Boys’ Home, later transferred to a holding centre on 9 January 2007, and then to the Castle Peak Bay Immigration Centre on 3 February 2007.

9.In the meantime, the applicant made a refugee claim with the local UNHCR office.  His refugee claim was rejected by the UNHCR and his case was closed on 16 January 2007.

10.On 21 February 2007, a removal order was issued against the applicant.  On 15 March 2007, the applicant’s appeal against the removal order was dismissed.  On 4 April 2007, the applicant was released on recognizance.  He has remained in Hong Kong since that date.  He also received education in Hong Kong between 2007 and 2011.

11.On 12 June 2012, the applicant and his wife married.  They have no children at present.

12.There are two other matters that I should mention in passing:-

(1)   The applicant made a torture claim on 4 January 2007, and a non-refoulement claim on the ground of risk of cruel, inhuman or degrading treatment or punishment on 25 February 2013.  His claims are currently being assessed by the Director under the Unified Screening Mechanism.

(2)   The applicant has been diagnosed with post-traumatic stress disorder, which he says is linked to his past traumas in his home country, ie Liberia.

(ii)   The applicant’s identity

13.The applicant’s personal background as set out in paragraph 6 above is based on what he alleges in the Form 86.  It is the Director’s position, however, that the applicant’s true identity is yet to be ascertained and is in doubt.

14.The Director’s doubt about the applicant’s identify is based on the following matters:-

(1)   Upon enquiries by the Immigration Department shortly after his arrest by the Police on 30 December 2006, the applicant claimed under caution that his true identity was “XX”[1], born on 9 January 1989 in Liberia (“ID1”), and that he was a Liberian national.  The applicant further admitted that he arrived in Hong Kong from Ghana via South Africa on 7 January 2004 on the strength of a Ghanaian passport (“TD2”) in the identity of “YY”, born on 23 October 1979 in Ghana (“ID2”). He said that TD2 bore his photo, but not his true name or date of birth, and further claimed that TD2 had been taken away by the Agent after his arrival in Hong Kong on 7 January 2004.

(2)   During his detention in the Castle Peak Bay Immigration Centre in 2007, the applicant produced a post-registered birth certificate dated 2 January 2001 apparently issued by the Republic of Liberia to substantiate his claimed identity as ID1.  That birth certificate did not bear any photograph of the applicant. There was also nothing on the face of the certificate to show that the applicant was the person referred to in that document.

(3)   Initially, in February and March 2007, the applicant repeatedly claimed to immigration officers that the aforesaid certificate was his only proof of identity and he did not have any other identification document which bore his photo, and he had to be present in Liberia for an identity card or passport to be issued to him.

(4)   However, on 30 March 2007, the applicant’s current wife submitted to the Immigration Department a National Identification Card (“the ID Card”) of the applicant apparently issued by the Ministry of Finance of the Republic of Liberia on 17 May 2001.  That card bore the applicant’s name, date of birth and place of birth which matched his claimed identity as ID1.  The Director notes, however, two suspicious features about the ID Card:-

(a)   First, the signature on the card is significantly different from the applicant’s signature appearing in records kept by the Immigration Department.  The applicant’s explanation for the difference is that he changed his signature after he had grown up.  In paragraph 5 of his third affidavit, the applicant further states that when he grew up to become an adult, he chose a new signature to reflect his new life and his newfound understanding and (apparent) control over his own destiny, and the new signature served as a way to differentiate himself from his past.  The applicant’s explanation is considered by the Director to be not plausible. 

(b)   Second, the applicant’s outlook in the photograph on the ID Card is not commensurate with his age at the time of the issuance of the card in 2001, in the sense that the applicant would only be 12 years old at that time (if his claimed identity as ID1 is true), but the person appearing in the photograph looks much older than 12.  I should mention that, in paragraph 6 his third affidavit, the applicant states that he was exposed to many horrific events not fit for children during his childhood in Liberia and his survival required him to act in decidedly non child-like ways, and surmises that his experience might have contributed to some “subjective appearance of maturity that the particular officer in the Immigration Department would not be cognizant of and that this, combined with [his] exotic ethnicity, were why the officer believed [he] looked older than [he] was.”

(5)   As for the applicant’s failure to produce the ID Card earlier, his solicitors explained, in a letter to the Immigration Department dated 30 March 2007, that the applicant withheld the card because of (i) his previous experience in Pui Chi Boy’s Home and (ii) advice allegedly given by other detainees, namely, that he should not provide extra documents because that would lead to a never-ending process of the Immigration Department asking for more and more information.  The Director considers such explanation to be unacceptable, and plainly inconsistent with the fact that the applicant was then desperate for being released from detention.

(6)   In support of his dependant visa application, the applicant claimed himself to be a Ghanaian national and produced a Ghanaian passport dated 18 March 2010. He further produced a statutory declaration apparently made by his maternal uncle on 20 May 2010 in Ghana stating, inter alia, that “my said nephew [ie the applicant] has ever lived with me here in Ghana”, and “since the grandmother [of the applicant] is a Ghanaian, therefore [the applicant] is entitled to Ghanaian citizenship”.  The Director considers the applicant’s uncle’s statement that the applicant had “ever lived” with him in Ghana (which, apparently, is taken to mean the applicant had only ever lived in Ghana) to be inconsistent with what the applicant previously claimed, when interviewed by immigration officers in 2007, that he was born in Liberia and escaped to Ghana because of threats to his life in Liberia.

15.In passing, I should mention that the applicant, in support of his application for a dependant visa, also produced 2 letters from the Embassy of the Republic of Ghana in Beijing dated 21 February 2012 and 21 November 2013 respectively to prove the authenticity of his Ghanaian passport.

(iii)  The Director’s refusal decision dated 8 October 2013

16.Shortly after his marriage on 12 June 2012, the applicant made an application to the Director for a dependant visa, with his wife as sponsor, on 20 July 2012.  For the purpose of this judgment, it is not necessary to set out in detail the documents or information provided by the applicant in support of his application, or the correspondence passing between the Immigration Department and the applicant/his wife/his legal representatives in relation to that application.  The application was assessed by an immigration officer (Mr Lung). His detailed assessment of the application was set out in his internal minutes (M6) dated 19 September 2013.  In his assessment, Mr Lung considered that:-

(1)   The applicant and his wife’s matrimonial relationship was genuine.

(2)   According to the current financial status of the sponsor (ie the applicant’s wife), she would be capable of supporting the applicant’s living at a standard well above the subsistence level and providing him with suitable accommodation in Hong Kong.

(3)   However, the applicant’s true identity was in doubt.

(4)   Further, the applicant had previously admitted under caution that he had knowingly used a travel document which did not relate to him for the purpose of gaining entry into Hong Kong in 2004.  The prosecution of the applicant for the suspected offence of making a false representation to an immigration assistant was only deferred pending the outcome of his torture claim. The available information indicated a likelihood of conviction of the offence, which was serious in nature.  This record was to the detriment of the applicant.

17.Mr Lung recommended that the applicant’s application for a dependant visa should be refused on the grounds that (i) there was a known record to his detriment, and (ii) his identity was in doubt as there was no conclusive evidence to confirm his true identity.  Mr Lung further considered that there was no overwhelming compassionate ground which would warrant exceptional consideration being given to the applicant’s case.

18.Mr Lung’s recommendation was endorsed by a senior immigration officer (Mr Wong).  Mr Wong’s reasoning, as set out in his internal minutes (M 7) dated 3 October 2013, was similar to that of Mr Lung.  In relation to the issue of “known record to the detriment of the applicant”, Mr Wong stated, at paragraph 3 of M7, the following:-

“ [The applicant] admitted under caution that he had used a travel document which did not relate to him for immigration examination in Hong Kong. With the self-admission, there is sufficient evidence to prosecute [the applicant] for the suspect offence of making a false representation to an immigration assistant upon his arrival in 2004, which is a deportable offence, but the prosecution has been deferred due to his outstanding torture claim. It is considered that [this] known adverse record is to the detriment of [the applicant].”

19.By a letter dated 8 October 2013 from the Immigration Department, the applicant was informed that his application for a dependant visa was refused.  The letter, so far as material, states as follows:

“ According to the eligibility criteria, a person who wishes to come to the HKSAR for residence to join his/her local spouse as his/her dependant has to meet the requirements which include, amongst other, that there is no known record to his/her detriment as well as the normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concern to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.)

Having considered all information made available and all circumstances in this case, it is not satisfied that you are able to meet the aforesaid criteria.  In addition, it is not satisfied that there are sufficient justifications for our departure from the prevailing policy.  Therefore, the application is refused.”

(iv)   The Director’s confirmatory decision dated 11 August 2014

20.By letters dated 27 March 2014 and 2 April 2014 respectively, the applicant requested the Director to reconsider his earlier decision to refuse the applicant’s application for a dependant visa.  Again, for the purpose of this judgment, it is not necessary to set out in detail the documents or information provided by the applicant in support of his request to the Director for reconsideration of his earlier decision, or the correspondence passing between the Immigration Department and the applicant/his legal representatives in relation to that request.  The applicant’s request was assessed by an acting senior immigration officer (Ms Mok).  Her detailed assessment was set out in her internal minutes (M2) dated 5 August 2014.  In her assessment, Ms Mok considered (inter alia) that :-

(1)   The applicant had admitted under caution that he had used a false travel document to enter Hong Kong.  There was sufficient evidence to prosecute the applicant for the suspected offence of making a false representation to an immigration assistant upon his arrival in 2004, which was a deportable offence, although the prosecution had been deferred due to the applicant’s outstanding torture claim.  This record in the circumstances was to the detriment of the applicant’s dependant visa application.

(2)   The applicant’s genuine identity could hardly be ascertained given that he had presented 2 different Ghanaian passports under 2 different identities. Further, there was no conclusive evidence to confirm his true identity.  Having regard to all available information, the applicant’s genuine identity could not be established.

(3)   Despite the representations from the applicant and his legal representatives (Messrs Daly & Associates) in support of the reconsideration request, there was no sufficient justification for a reversal of the previous refusal decision on the applicant’s application.  Also, with regard to the applicant and his wife’s situation, there were no overwhelming factors or humanitarian or compassionate grounds justifying exceptional consideration of his case.

21.At paragraph 10 of M2, Ms Mok made the following “recommendation”:

“ Although the matrimonial relationship is believed to be genuine and [the sponsor] is believed to be financially capable of supporting [the applicant’s] living in Hong Kong, it is considered that the identity of [the applicant] is in doubt as there is no conclusive evidence to confirm his true identity. [The applicant’s] genuine identity is yet to be ascertained. There is known record to the detriment of [the applicant]. Having considered all information and circumstances of this case, it is considered that the previous refusal decision is justified and there are no overwhelming humanitarian or compassionate grounds justifying exceptional consideration. After assessment, it is recommended that the previous refusal decision be maintained.”

22.Ms Mok’s recommendation was endorsed by a chief immigration officer (Mr Tse).  By a letter dated 11 August 2014 from the Immigration Department, the applicant was informed of the following:

“ Having reviewed the information made available and all circumstances of the case, including the representations made by you and by Messrs Daly & Associates on behalf of you, we cannot find sufficient grounds justifying reversal of our previous refusal decision. In the circumstances, the refusal decision conveyed by our previous letter still stands.”

PRINCIPLES FOR CHALLENGING THE DIRECTOR’S IMMIGRATION DECISIONS

23.The applicable principles for challenging the Director’s immigration decisions have recently been authoritatively re-stated by the Court of Appeal in BI. At paragraph 92 of that judgment, the Court of Appeal stated as follows (omitting various footnotes):-

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

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

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

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

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

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

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

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

PRINCIPLES FOR EXTENSION OF TIME

24.Order 53 rule 4(1) states as follows:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

25.Order 53 rule 4(1) should be considered together with section 21K(6) of the High Court Ordinance, Cap 4, which provides as follows:-

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

26.The relationship between these two provisions has recently been considered by the Court of Appeal in AW v Director of Immigration, CACV 63/2015 (3 November 2015).  At paragraph 26 of that judgment, the Court of Appeal explained that:-

“Whenever there is a failure to act promptly or within three months, there is ‘undue delay’. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

27.At paragraph 27 of that judgment, the Court of Appeal endorsed the following principles for the court’s exercise of its discretion whether to grant an extension of time to a party seeking to apply for leave to apply for judicial review:-

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi‑faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)  Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

28.In what follows, I shall first consider the merits of the grounds of judicial review raised by the applicants in the Form 86/draft Amended Form 86 before turning to consider other factors relevant to the court’s exercise of discretion whether to grant an extension time in the present case.

GROUNDS OF JUDICIAL REVIEW

29.As earlier mentioned, by the time of the substantive hearing, Mr Dykes on behalf of the applicant pursued only five grounds of judicial review, namely:-

(1)   The Director misconstrued the “no known record to the detriment of the applicant” requirement, which should mean only a “record of serious crime” (the new ground raised in the draft Amended Form 86).

(2)   The Director should have found that there was no record to the detriment of the applicant (2^nd ground in the original Form 86).

(3)   The Director made an error of fact in finding that the applicant would likely be convicted of a criminal offence in any event which became a major factor in his decision (3^rd ground in the original Form 86).

(4)   The Director misapplied the “normal immigration requirements” as grounds for refusal under the existing dependent visa policy rather than as matters which were relevant to a decision to grant or refuse an application (4^th ground in the original Form 86).

(5)   It was unreasonable of the Director to conclude that the applicant’s Ghanaian passport was not satisfactory proof of his identity (5^th ground in the original Form 86).

30.The grounds mentioned in paragraph 29(1), (2) and (3) above all relate to the criterion of “no known record to the detriment of the applicant” (“the No Record Requirement”) under the Director’s dependant visa policy, while the grounds mentioned in paragraphs 29(4) and (5) above relate to the applicant’s true identity.

proposed new ground in draft amended form 86: meaning of the no RECORD requirement

31.In a publicly available document called the “Guidebook for Entry for Residence as Dependants in Hong Kong” (“the Guidebook”) published by the Director which is updated or revised from time to time, the Director explains to the general public about the entry requirement for persons who wish to be admitted to Hong Kong for “residence as dependants”.  The following provisions in the Guidebook are relevant for the purpose of the present discussion:-

(1)   Paragraph 1 of the Guidebook introduces the nature of the document as follows:

“This guidebook sets out the entry requirement for persons who wish to enter the Hong Kong Special Administrative Region (HKSAR) for residence as dependants.”

(2)   In paragraph 3 of the Guidebook, under the sub-heading “Eligibility Criteria”, it is stated that:-

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

(a) his/her spouse;

(b) his/her unmarried dependent children under the age of 18

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

(3) Paragraph 5 of the Guidebook, under the same sub-heading, further states as follows:-

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

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

(b) there is no known record to the detriment of the applicant; and

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

(4)   Lastly, paragraph 15 of the Guidebook, under the sub-heading “Other Information”, states as follows:-

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

32.It is now authoritatively settled by the decision of the Court of Appeal in BI that the No Record Requirement referred to paragraph 5(b) of the Guidebook is an eligibility criterion (and not just a relevant or even important factor to be considered by the Director) that must be satisfied before an applicant may be granted a dependant visa, subject to the Director’s residual discretion to permit an applicant to enter or stay in Hong Kong on the ground of exceptional humanitarian or compassionate circumstances.

33.The question which arises in the present case is what is encompassed by the No Record Requirement.  On behalf of the applicant, Mr Dykes argues that it means only a “record of serious crime”.  On the other hand, Mr Chang for the Director argues that it means an “adverse” record and is not confined to a criminal conviction, still less a conviction for a serious crime.

34.In support of his argument, Mr Dykes relies on the contents of a Legislative Council Brief (“the Legco Brief”) entitled “Immigration Policy on Entry of Dependants” (“the IPED”) prepared by the Security Bureau dated 30 June 2003.  He argues that the “IPED is the policy dealing with [dependant visa] issues” and the Guidebook only “incorporates [the Director]’s understanding of that policy and explains to applicants what is involved in making an application” (see paragraph 23 of Mr Dykes’ skeletons submissions).  He further argues that the IPED appears to be a direction under section 51 of the Immigration Ordinance (Cap 115), thus requiring compliance by public officers generally (see paragraph 24 of Mr Dykes’ skeletons submissions).

35.For the purpose considering the validity of Mr Dykes’ argument, a closer look at the contents of the Legco Brief is necessary.

36.In the first, unnumbered, paragraph of the Legco Brief under the sub-heading “Introduction”, it is stated that:-

“At the meeting of the Executive Council held on 24 June 2003, the Council ADVISED and the Chief Executive ORDERED that

(a) the existing assessment criteria under our immigration policy on the entry of dependants to take up residence in Hong Kong and the special treatment of certain categories of applicants on humanitarian or compassionate grounds should, with minor modifications, continue to apply (paragraphs 2 to 5 below)”.

37.The Legco Brief continues as follows:-

(1)   Sub-paragraphs (b) to (j) of the first, unnumbered, paragraph under the sub-heading “Introduction” summarise the “minor modifications” referred to in sub-paragraph (a).  In some sub-paragraphs, it is expressly stated that the existing arrangement or policy should be maintained.

(2)   Paragraphs 2 to 5 deal with the “Assessment Criteria and Special Treatment on Humanitarian or Compassionate Grounds”.

(3)   In particular, Paragraph 2 of the Legco Brief states as follows:-

“Under our current dependant policy, Hong Kong residents, unless specific exclusions apply, may sponsor applications made by their spouses, unmarried dependent children and parents, for permission to reside in Hong Kong as their dependants. Such applications will be considered provided that the following criteria are met –

(a) the bona fides of the applicant and the sponsor, and the genuineness of their relationship, are not in doubt;

(b) the sponsor is not subject to any limit of stay (i.e. Hong Kong permanent residents, residents with right to land and residents with unconditional stay) or has been permitted to remain to take up employment in his or her own right;

(c) there is no security objection to the application, including that the applicant has no known record of serious crime; and

(d)   the applicant will not become a burden on Hong Kong, and that the sponsor is able to support the applicant’s living at a standard well above subsistence level and provide the applicant with suitable accommodation in Hong Kong.”

(4)   Paragraphs 6 to 20 set out in detail the proposed “minor modifications” to the existing assessment criteria, or explain why various aspects of the existing arrangement or policy should be maintained.

(5)   Paragraphs 21 to 24 deal with miscellaneous matters such as implementation date and transitional arraignments, implications of the proposal, publicity, etc.

38.It is clear, from a reading of the Legco Brief as a whole, that the main purpose of the document was to explain the modifications which the Government proposed to make to the “existing assessment criteria” under the immigration policy on the entry of dependants to take up residence in Hong Kong, or why various aspects of the existing arrangement or policy should be maintained.  It does not seem to me that the Legco Brief was intended to set out or state comprehensively the Director’s assessment criteria for granting dependant visas.  In this regard, it is notable that one of the “normal immigration requirements” referred to in paragraph 15 of the Guidebook, namely, that the applicant should be the holder of a valid travel document with adequate returnability to his/her country of residence or citizenship, is not mentioned in the Legco Brief.

39.Mr Dykes’ central submission that the No Record Requirement means only a “record of serious crime” is, as I understand it, based on paragraph 2(c) of the Legco Brief which, as earlier mentioned, refers to the specific criterion that “there is no security objection to the application, including that the applicant has no known record of serious crime” [emphasis added].  In my view, it is clear from an ordinary reading of that paragraph that a “known record of serious crime” is not the only situation in which the Director would consider that there is a “security objection to the application”.  The use of the word “including” in that sub-paragraph strongly suggests that a “known record of serious crime” is only one of the situations in which such a conclusion would or may be drawn.

40.Mr Dykes’ argument has recently been considered by Au J in LK and Others v Director of Immigration, HCAL 77/2014 (9 August 2016).  At paragraphs 61 to 71 of his judgment, Au J set out his analysis of the nature of the Legco Brief and the meaning of paragraph 2(c) thereof:

“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…

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…

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.”

41.I agree with Au J’s analysis.

42.I have also been referred to an internal document entitled “Guidelines on Assessment of Visa Control (VC) Cases Concerning Applicants with Criminal Conviction Records” (“the Guidelines”) dated 17 July 2007 issued on behalf of the Director to immigration officers.  The Guidelines state, relevantly, as follows:-

“ This Internal Message serves to provide general guidelines to the officers of VC(O) Division in processing the applications of or assessing VC cases involving applicants who have criminal conviction records. Case officers should take note of the guidelines set out below and seek the views of their supervisory officers in cases of doubts.

2. As a general rule, in assessing VC cases, e.g. applications for visas/entry permits, extension of stay etc., case officers are required to ascertain whether the applicants are able to meet normal immigration requirements, including if the applicant be of clear criminal record and that he raises no security or criminal concerns to the HKSAR. Specifically, in processing applications for entry under certain policy heads, such as employment, residence as dependant etc., one of the factors to be taken into account is that there is no known record to serious crime in respect of the applicant before consideration may be given to approving the application (subject to meeting other criteria under the relevant policy).

3. If the applicant is found to have criminal conviction record(s), case officers should carefully consider the particular circumstances of the conviction record with emphasis on: the nature of the offence, the seriousness and gravity of the offence (including the circumstances underlying or giving rise to the offence, if available), the sentences imposed by the court/tribunal, and the frequency or number of the conviction records of the applicant within a period of time. As far as the consideration of VC cases is concerned, the following are some relevant factors (not an exhaustive list) which may indicate that the criminal conviction record(s) of an applicant may be considered as crime record(s) of serious in nature or that the applicant may be taken as a person with a known record of serious crime …

6. Where there is a known record of criminal concerns to the detriment of the applicant (but that no criminal conviction has been entered against him), case officers should seek advice from their supervisory officers on the assessment of these cases.”

43.Mr Dykes argues that paragraph 6 of the Guidelines is the origin of the No Record Requirement referred to in paragraph 5(b) of the Guidebook which represents an unauthorised deviation from the (alleged) criterion of absence of any “record of convictions (of serious crimes)” (see paragraph 112 of Mr Dykes’ skeleton submissions).  In my view, the Guidelines are entirely consistent with, and support, the Director’s position that the No Record Requirement is not confined to a criminal conviction or a conviction for a serious crime.  In particular, paragraph 6 thereof makes it clear that there could be a known record of criminal concern even in the absence of any criminal conviction.

44.Lastly, Mr Dykes makes reference to the Director’s other visa schemes, namely, the Quality Migrant Admission Scheme and the Capital Investment Entrant Scheme (see paragraph 157D of the draft Amended Form 86), and argues that in relation to those schemes a clear distinction is drawn between criminal records and adverse immigration records.  With no disrespect to Mr Dykes, I do not propose to examine the details of those schemes because they plainly have no relevance to the true scope of the No Record Requirement under the Director’s dependant visa policy.

45.For the forgoing reasons, I do not accept Mr Dykes’ submission that the No Record Requirement means only a “record of serious crime”.  Neither do I accept his further submission that the IPED should be regarded as a direction under section 51 of the Immigration Ordinance.  These conclusions dispose of the ground of review referred to in paragraph 29(1) above.

2^nd ground in original Form 86: whether there is a known record to the detriment of the applicant?

46.Mr Dykes submits that the Director should have found that there is no record to the detriment of the applicant, because (i) the applicant has not been convicted of any offence, (ii) the Director cannot say whether the applicant will be prosecuted, and (iii) even if there should be a prosecution, the magistrate may accept that the applicant committed the offence of making a false representation to an immigration assistant many years ago when he was a child being handled by third parties with an apparent financial interest transporting him, and such finding could justify treating him exceptionally so that a conviction would not be “to his detriment”.

47.The meaning of a “known record to the detriment of the applicant” in paragraph 5(b) of the Guidebook was considered by Au J in paragraph 146 of his judgment in LK:-

“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.”

48.In the affidavit of Wong Hing Wa, principal immigration officer, filed on behalf of the Director in this application, he explains the approach adopted by the Director in relation to the assessment of the No Record Requirement as follows:-

(1)   “For the avoidance of doubt, in assessing a dependant visa application, while the Director will take into consideration whether the applicant has a clear criminal record in meeting normal immigration requirements, the ‘no known record criterion’ has a wider meaning and covers records which may not be criminal records” (paragraph 17).

(2)   “In determining whether a known record of criminal or security concern (but without criminal conviction record) constitutes a detriment to an applicant in a dependant visa application, ImmD officers will consider all the relevant circumstances of the record concerned such as its nature and gravity, the criminal or security concern involved, findings of any investigation (if available and applicable), the passage of time since creation of the record, etc.  ImmD officers will assess each case on its individual merits, having regard to all relevant information available and the circumstances of the case.  Insofar as an applicant with criminal conviction record is concerned, [the Guidelines] would be referred to for assessment of the relevant visa application …” (paragraph 18).

(3)   “I wish to add that the Director, in considering a case involving the ‘no known record criterion’, has to cater for a myriad of circumstances of potential significance to that particular case.  Hence, it would not be sensible for the Director to lay down a definitive list of factors to be considered.  Whether a particular factor will be considered as positive or detrimental will depend on the individual facts of the case” (paragraph 19).

49.In my view, the Director’s approach as described above is lawful and rational.  The question of whether any particular “record” is to the detriment of the applicant in any given case is a matter primarily for the Director to decide, subject to the supervisory jurisdiction of the court in judicial review.  In the present case, I do not consider the Director’s assessment that the applicant has failed to meet the No Record Requirement, as set out in various minutes (M6, M7 and M2) referred to above, to be unreasonable or irrational in the public law sense.  It follows that I do not accept that the Director should have found that there is no record to the detriment of the applicant.

3^rd ground in original Form 86: error of fact regarding likelihood of applicant being convicted of criminal offence

50.The ground of review referred to in paragraph 29(3) above, namely, the Director made an error of fact in finding that the applicant would likely be convicted of a criminal offence in any event which became a major factor in his decision, can be disposed of shortly.  It is, in my view, apparent from the assessment of the applicant’s dependant visa application carried out by various immigration officers, as set out in their respective minutes (M6, M7 and M8), that they were fully aware of the circumstances in which the applicant alleged that he came to enter Hong Kong using a passport which did not bear his true particulars, that there had not yet been any prosecution, and that the applicant had not been convicted of any criminal offence.

51.Mr Dykes’ argument under this ground is based on a statement made by Mr Lung in M6 (at paragraph 13.1), namely, that “[t]he available information indicates a likelihood of conviction” (see paragraph 162 of the Form 86).  However, there was no reference to “likelihood of conviction” in the assessment carried out Mr Wong, the senior immigration officer who endorsed Mr Lung’s recommendation, in relation to the 2013 Decision.  Similarly, there was no reference to “likelihood of conviction” in the assessment[2] carried out by Ms Mok (Acting Senior immigration Officer) who recommended that the previous decision be maintained, or the endorsement of Mr Mok’s recommendation by Mr Tse (Chief Immigration Officer), in relation to the 2014 Decision.

52.It also seems to me to be clear, from reading the various minutes in their proper context, that the assessing officers were focusing, not on the likelihood of conviction of the applicant, but on the fact that the applicant used a false travel document to gain entry into Hong Kong in 2014.  They considered that the applicant had committed a deportable offence and/or an offence which was serious in nature, and such “record” was in the circumstances one to the detriment of the applicant.  I do not consider that the Director made any error of fact as alleged by the applicant.

53.Having reached the conclusion that the Director is entitled to come to the view that the applicant has failed to meet the No Record Requirement, the two remaining grounds of review, both relating to the applicant’s true identity, have become academic.  I propose therefore to deal with those grounds only briefly in this judgment.

4^th ground in original form 86: whether “normal immigration requirements” are eligibility criteria?

54.I consider it to be clear that the “normal immigration requirements” mentioned in paragraph 15 of the Guidebook are in the nature of eligibility criteria and not mere matters which are relevant to a decision to grant or refuse an application.  That this is so is clear from a consideration of the overall strict immigration control being applied in Hong Kong, as well as the language of paragraph 15 of the Guidebook, namely:-

“While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR, etc.) as well as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit” [emphasis added].

The reasoning which led the Court of Appeal in BI to come to the conclusion that the No Record Requirement referred to paragraph 5(b) of the Guidebook is an eligibility criterion applies, in my view, with equal force to the “normal immigration requirements” referred to in paragraph 15 of the Guidebook.  The same conclusion was reached by Au J in his judgment in LK, as follows:

“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.

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.”

5^th ground in original form 86: whether unreasonable of Director not to be satisfied with applicant’s true identity

55.In order to make out the complaint that it was unreasonable of the Director to conclude that the applicant’s Ghanaian passport was not satisfactory proof of his identity, the applicant has to overcome the high threshold of Wednesbury unreasonableness. As set out in paragraph 14 above, the Director has grounds to doubt the applicant’s true identity.  It is primarily a matter for the Director to decide how much weight should be given to the applicant’s Ghanaian passport as satisfactory proof of his identity, notwithstanding the two letters from the Embassy of the Republic of Ghana in Beijing dated 21 February 2012 and 21 November 2013 respectively produced the applicant.  My concern relates, rather, to the standard applied by the Director regarding proof of the applicant’s identity.  Apparently, he was looking for something like “conclusive evidence” to confirm the applicant’s true identity (see paragraph 13.3 of M6 and paragraph 8.4 of M2).  I would have thought that the Director ought to have applied the normal civil standard of proof, ie on the balance of probability, when considering whether the applicant has sufficiently proved his true identity.   I have not, however, heard full arguments from counsel on this issue, and I do not therefore propose to express a final view on it which, as earlier mentioned, has become academic.

Overall conclusion on merits

56.In view of the Director’s conclusion that the applicant has failed to meet the No Record Requirement, coupled with the view taken by the Director that there are no exceptional compassionate or humanitarian circumstances in his case (which is not being challenged), the Director’s decision to reject the applicant’s application for a dependant visa is, in my view, inevitable.  It follows that the applicant’s proposed application for judicial review of the Director’s decision has no reasonable prospect of success; in other words, it is not reasonably arguable.

OTHER FACTORS

(i)   Length of delay

57.For the reasons set out in paragraphs 28 to 34 of this court’s previous decision in Nisa Azizan v Director of Immigration, HCAL 203/2015 (15 April 2016), the grounds for the application for leave to apply for judicial review in the present case first arose on 8 October 2013. The present application for leave to apply for judicial review was only made on 21 August 2015. The delay of some 22 months in making the application is plainly a substantial one.

(ii)   No good explanation for the delay

58.Mr Dykes has not submitted that there is any good explanation for the delay.  Instead, he concentrates on the merits of the applicant’s case (see paragraph 50 of his skeleton submissions) and on “other factors”, namely, that the applicant would suffer serious prejudice if time were not extended (see paragraph 52 of his skeleton submissions).  In the Form 86, under the sub-heading “Delay”, a chronology regarding the applicant’s application for legal aid is given (see paragraphs 104 to 140).  Mr Chang has, however, pointed out various unexplained gaps by reference to the chronology appearing in Legal Aid Department’s letter dated 19 August 2015 (in particular, between 10 April 2014 and 8 September 2014, and between 29 October 2014 and 28 January 2015).

59.It is well established that the mere fact that legal aid or pro bono assistance is not available is generally not regarded as a sufficient basis for an extension of time; it is only one of the factors that the court would consider whether there is good reason to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014), at paragraph 27 and 28 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014), at paragraph 29 per Au J; Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1) per G Lam J.

60.On the materials before the court, I do not consider that the applicant has shown a good explanation for the delay in applying for leave to apply for judicial review in the present case.

(iii)  Prejudice

61.In view of the conclusion that I have reached regarding the merits, or lack of merits, of the applicant’s proposed application for judicial review, refusing the extension of time sought would not cause any prejudice to the applicant.

62.On the other hand, I consider that, generally speaking, unjustifiable delay in challenging immigration decisions made by the Director would be detrimental to the administration of effective immigration control in Hong Kong.

(iv)   No question of general public importance

63.The various proposed grounds of judicial review centre on two matters: (i) the scope of the No Record Requirement, and (ii) the true identity of the applicant.  As regard the first matter, the applicant’s argument that the IPED, as set out in the Legco Brief, represents the Director’s dependant visa policy is, in my view, not well founded.  It has also been rejected by Au J in his recent decision in LK.  As regards the second matter, the Director’s decision that the applicant has failed to provide satisfactory proof of his true identity is specific to the facts of his case.  I do not consider that the proposed application for judicial review raises any question of general public importance.

DISPOSITION

64.For the forgoing reasons, I am not prepared to grant the extension of time sought by the applicant to apply for leave to apply for judicial review, or grant leave to the applicant to amend the Form 86 under his summons dated 6 May 2016.  I also dismiss the applicant’s application for leave to apply for judicial review.

65.On the question of costs, I make the following orders:-

(1)   the applicant shall pay the costs of the Director, to be taxed if not agreed; and

(2)   the applicants’ own costs are to be taxed in accordance with legal aid regulations.

66.Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.

Mr Philip Dykes, SC, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicant

Mr Jonathan Chang, instructed by Department of Justice, for the respondent