Hw and Others v. Director of Immigration

HCAL 129/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 129 OF 2014

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HCAL 156/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 156 OF 2014
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(Heard together)

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J U D G M E N T

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A. INTRODUCTION

1.Under HCAL 129/2014 (“the HW Judicial Review”), the 1^st applicant (HW) is a national of Liberia and Ghana.  He has been an overstayer in Hong Kong since May 2005.  He married the 2^nd applicant (HG), a Hong Kong permanent resident, in December 2009.  The 3^rd applicant (HWAH) is their son, born in November 2011.  HWAH is also a Hong Kong permanent resident.

2.In November 2011, HW applied to the Director of Immigration (“the Director”) to take up residence in Hong Kong as a dependant of HG.  The Director refused the dependant visa application on 16 September 2013 (“the HW Decision”).  The Director made the HW Decision as he was not satisfied that HW was able to meet the requirement (“the NRD Requirement”) that “there is no known record to the detriment of the applicant” and that “it is also not satisfied that there are sufficient justifications for our departure from the prevailing policy”.  HW has since still been staying in Hong Kong on recognizance given his pending non-refoulment claim.

3.This is the applicants’ judicial review challenging the lawfulness of the HW Decision.

4.Under HCAL 156/2014 (“the MST Judicial Review”), the 1^st applicant (MST) is a Sri Lankan national.  He was an overstayer in Hong Kong in 2003 and, after being arrested, was repatriated back to Sri Lanka in March 2004.  He entered Hong Kong again on a false identity in May 2005.  He was sentenced to 14 months’ imprisonment in August 2005.  After having been discharged from prison, he was briefly put under immigration detention, but was later released on recognizance in light of his non-refoulment claim, which is still outstanding.

5.MST married the 2^nd applicant (WOY), a Hong Kong permanent resident, in August 2011.  The 3^rd and 4^th applicants are their sons born respectively in 2010 and 2012, who are all permanent residents of Hong Kong.

6.In September 2011, MST applied to the Director for a dependant visa to take up residence in Hong Kong as WOY’s dependant.  The Director refused the application on 20 February 2013 (“MST 1^st Decision”). The Director made the MST 1^st Decision as he was not satisfied that MST was able to satisfy the NRD Requirement and the requirement (“the Financial Sufficiency Requirement”) that “the sponsor [ie, WOY] is able to support the dependant’s living in Hong Kong at a standard well above the subsistence level and provide him with suitable accommodation”.  The Director further stated that he was not satisfied that “there are sufficient justifications for our departure from the prevailing policy”.

7.MST’s solicitors (“D&A”) wrote to the Director on 16 July 2013 asking the Director to reconsider MST’s application.  In support of this, additional information of the changes of employment and allocation of public housing on the part of WOY were provided to the Director.

8.The Director decided to maintain the MST 1^st Decision (“MST 2^nd Decision”), and informed D&A the same by a letter dated 18 June 2014.  The Director explained in the letter that “we still cannot find sufficient grounds justifying a reversal of our previous refusal decision [ie, the MST 1^st Decision].  In this connection, the [MST 1^st Decision] conveyed by our previous letter still stands”.

9.This is the applicants’ judicial review challenging the MST 1^st and 2^nd Decisions (collectively, “the MST Decisions”).

10.The court granted ex parte leave to apply for judicial review respectively under these applications in March 2015.  As the grounds advanced by the applicants respectively under the HW Judicial Review and the MST Judicial Review are similar, by consent this court on 3 June 2015 directed, among others, that these applications be heard together.

11.The applicants are represented by Ms Gladys Li, SC leading Mr P Y Lo in both applications.  The Director in opposing the judicial reviews is represented by Ms Sara Tong.

12.Before I deal with the applicants’ grounds of judicial review, I would set out briefly the uncontroversial relevant background[1] as the proper context under each of these applications.

B.   RELEVANT BACKGROUND

B1.   The HW Judicial Review

B1.1  The applicants and convictions

13.HW first came to Hong Kong on 17 March 2005 using a Ghanaian passport[2] (“2005 Passport”) in the identity of “AW”[3] (“AW”) born on 14 December 1978 in Accra, Ghana (“Identity 1”).  He was permitted to remain in Hong Kong as a visitor for 90 days until 15 June 2005.

14.HW then left Hong Kong for China on 18 March 2005 and returned to Hong Kong on 10 May 2005 using the 2005 Passport and was permitted to remain in Hong Kong for 14 days until 24 May 2005.  He did not leave Hong Kong and overstayed.

15.On 29 September 2006, HW was arrested by the Police for failing to produce any proof of his identity.  During a cautioned interview conducted by the Police on 30 September 2006, HW admitted, among others, that:[4]

(1) His name was “HW”/“AW” and he was a Liberian national born in Monrovia of Liberia on 14 December 1978.

(2) He came to Hong Kong to seek asylum.

(3) He had lost his passport in around December 2005.

(4) He did not report the loss of his passport to the embassy of his country because there was no Liberian embassy in Hong Kong.

16.HW was referred to the Immigration Department (“ImmD”). He attended a cautioned interview conducted by the ImmD on 11 October 2006 (“the October 2006 Interview”) in respect of his suspected offences of (a) breach of condition of stay by overstaying; (b) making false representation to an immigration officer or immigration assistant; and (c) using and in possession of an unlawfully obtained travel document.  In the October 2006 Interview, he stated to the ImmD that:[5]

(1) His true identity was HW; he was a Liberian national born in Monrovia of Liberia on 14 December 1978 (“Identity 2”).

(2) In 1993, he fled to Ghana due to the civil war in Liberia.  He was fostered in Ghana by his foster father whose family name was “A”.[6]  His foster father arranged him to attend school in Ghana with the name AW in 1994.  He did not have any official record of his name AW issued by the Ghanaian government.

(3) His foster father died in 1996.  After that, the family of his foster father did not allow him to stay with them.  The Ghana Government also asked him to leave Ghana as he was not a resident or national of Ghana.

(4) He was not a resident or national of Ghana.  He knew that he could not obtaina Ghanaian passport.

(5) As the civil war in Liberia came on again in 2002, he paid money to his friend in Ghana to arrange a Ghanaian passport for him so that he could go to Hong Kong to seek political asylum.

(6) The Ghanaian passport was left in his friend’s home in Hong Kong.

(7) He had applied to the Hong Kong office of the United Nations High Commissioner for Refugees (“UNHCR”) for asylum and confirmed that a UNHCR Asylum Seeker Certificate registered in Identity 1 (ie, in the name of AW; his country of origin being Ghana)[7] had been issued to him.

17.It is the Director’s position that, on HW’s above own admissions during the October 2006 Interview, the 2005 Passport is a false passport.

18.At the same time, HW lodged a CAT claim[8] on 11 October 2006.

19.In light of HW’s then refugee claim and CAT claim, although the ImmD formed the view that there was sufficient evidence to prosecute HW for committing the suspected offence (“the Suspected Offence”) of “Using a false/unlawfully obtained travel document”,[9] they have however decided to defer prosecution until clearance of HW’s said claims.[10]

20.A removal order was however later issued against HW on 17 November 2006, as the earlier visitor entry permission granted to him under Identity 1was null and void and he was deemed to have landed in Hong Kong unlawfully (HW’s appeal against the removal order was dismissed).

21.Further documents were subsequently submitted to or retrieved by the ImmD including the original of the 2005 Passport, and original birth certificate of HW dated 22 December 2005 issued by the Ministry of Health and Social Welfare of Republic of Liberia (the “Birth Certificate”),[11] which were consistent with Identity 2.

22.On 30 June 2011, HW withdrew his CAT claim (stating that he wished to return to his home country as problems were resolved).  However, on 11 April 2012, he requested the CAT claim to be reopened.  The CAT claim was eventually refused on 14 December 2012 and his appeal against the refusal was also dismissed on 25 January 2013.  Soon thereafter, on 25 March 2013, HW lodged another non-refoulment claim (“the CIDTP claim”) under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) which is still under processing.[12]

23.It is the Director’s position that it has all along been the ImmD’s intention to prosecute HW for the Suspected Offence after determination of his refugee claim, CAT claim and CIDTP claim, which was lodged one after the other.  The matter has been brought up for review from time to time to see whether prosecution of HW should proceed.[13]  It is also the ImmD’s intention to remove HW subject to the intended prosecution and conclusion of his non-refoulment claim.[14]

B1.2  HW’s dependant visa application and problems of his true identity

24.HW submitted an application for taking up residence in Hong Kong as a dependant of HG on 11 July 2011 (before HWAH was born).  Various documents were submitted to the ImmD on behalf of HW in support of the application, which are set out in detail in Wong Chau Ping’s affirmation at paragraphs 32 - 52.  Such documents include:

(1) HW’s statutory declaration dated 2 August 2011 in respect of his identity, in which, he declared that both the names of HW and AW refer to him.  In support, he produced copies of:

(a) the Birth Certificate in the name of HW;

(b) his marriage certificate in the name of HW; and

(c) a school certificate in the name of AW.[15]

(2) A copy of the 1^st applicant’s Ghanaian passport issued on 18 March 2010 (“2010 Passport”) in Identity 2 (ie, HW, born in Monrovia).[16]

25.The Director has identified the following differences and discrepancies between the 2005 Passport and the 2010 Passport:

	The 2005 Passport	The 2010 Passport
Name	AW	HW
Place of birth	Accra	Monrovia
Residence	Ghana	Hong Kong[17]
Nationality	Ghanaian	Ghanaian

26.The issue of HW’s true identity was complicated by his submission of the 2010 Passport:

(1) According to the Birth Certificate in Identity 2, HW was a Liberian national.

(2) HW admitted in the October 2006 Interview that he was not a resident and national of Ghana and he could not obtain a Ghanaian passport, and he paid money to a friend to arrange the 2005 Passport in Identity 1 for him to come to Hong Kong.

(3) However, the 2010 Passport is a Ghanaian passport and the personal particulars therein gave rise to further doubts on the truthfulness of his identity (be it Identity 1 or Identity 2) and the genuineness of the 2010 Passport.

27.Upon the ImmD’s request for clarification, HG submitted various documents, including, amongst others, a letter from the Embassy of the Republic of Ghana in Beijing dated 21 February 2012 confirming the genuineness of the 2010 Passport.[18]  The materials submitted by HG are inconsistent with HW’s previous admissions in the October 2006 Interview that (a) he was not a Ghanaian resident and national and he could not obtain a Ghanaian passport; and (b) there was no official record in respect of his identity as “AW” in Ghana.

28.The issue of HW’s identity was further complicated by the Hong Kong Office of Consulate of Ghana’s letter dated 2 April 2013[19] submitted to the ImmD certifying that one “Mr HA”[20] had changed his name to “Mr HW” and both names referred to the same person.  However, “HA” is not HW’s name whether under Identity 1 or Identity 2.

29.Since sometime in February 2013, the applicants had been represented by D&A in the dependant visa application.

B1.3  The HW Decision

30.The assessment of HW’s dependant visa application was first made by the Immigration Officer Mr Lung, who recommended the refusal of the application.  The Director has produced the Internal Minute M12 (“M12”) dated 30 August 2013 which records Mr Lung’s assessment and reasons as to why he made the recommendation, which was endorsed by Mr Wong, Senior Immigration Officer, on 9 September 2013 by way of the Internal Minute M13 (“M13”).

31.The M12 shows that, in assessing the dependant visa application, Mr Lung took specific account of, among others, (a) the identity issue of HW; (b) the matrimonial relationship between HW and HG; (c) HG’s financial capability; (d) the Suspected Offence, and the various representations made by HW and HG and by their solicitors (D&A) on their behalf.  In particular:

(1) Mr Lung addressed the identity issueof HW in detail.  Notwithstanding the various inconsistencies in the evidence as regards HW’s names, place of birth and nationality, and having considered HW’s explanations and supporting documents, it was accepted that Identity 2 could be established as his identity in the absence of any evidence to rebut it (see paragraph 10 of M12).

(2) Mr Lung considered the matrimonial relationshipbetween HW and HG and concluded that based on the documents submitted and information obtained in the course of the assessment and as shown, it was satisfied that their matrimonial relationship is genuine (see paragraph 11 of M12).

(3) Mr Lung considered the financial status of HG as the sponsor and was satisfied that she was financially capable of supporting HW’s living in Hong Kong at a reasonable standard in a private rented flat (see paragraph 12 of M12).

(4) Mr Lung considered whether HW has any adverse record.  Although he accepted Identity 2 as HW’s true identity, Mr Lung came to the view that the evidence showed that HW committed the Suspected Offence.  In particular, Mr Lung noted that:[21]

(a) HW admitted under caution in the October 2006 Interview that he knowingly used the 2005 Passport to enter Hong Kong in 2005.

(b) All the evidence submitted showed that the 2005 Passport was a false or unlawfully obtained travel document and HW had therefore committed the Suspected Offence.  In particular, HW admitted that he paid money to his friend to arrange the 2005 Passport as he knew he could not obtain the passport from the Ghana government. All documentary proof provided by HW indicated that he was born in Monrovia and not Accra as recorded in the 2005 Passport.

(5) Mr Lung also considered D&A’s submissions that HW and his family lived in constant anxiety and uncertainty about the future and requested a positive decision in the application (see paragraph 13.3 of M12).

(6) Having considered all the circumstances of the case, Mr Lung considered that HW failed to meet the NRD Requirement and since there were no overwhelming compassionate grounds warranting exceptional consideration, he made the recommendation that the application should be refused (see paragraph 13.4 of M12).

32.Mr Wong endorsed Mr Lung’s recommendation to refuse the application.  In particular:

(1) Mr Wong took into consideration that with HW’s own admission that he used a false travel document (ie, the 2005 Passport) which did not relate to him for immigration examinations, there was sufficient evidence to prosecute HW for the Suspected Offence (which was a serious deportable offence liable to deportation under section 20(l)(a) of the IO) but prosecution was only deferred due to his outstanding CIDTP claim.  Mr Wong thus considered that the NRD Requirement was not satisfied (see paragraph 3 of M13).

(2) Mr Wong considered all circumstances of the case and concluded that there were no overwhelming factors justifying exceptional consideration (see paragraph 4 of M13).

33.By letter dated 16 September 2013 to D&A, the Director informed HW that his dependant visa application was refused, as he could not satisfy the NRD Requirement and that there was no sufficient justification to depart from the prevailing policy (ie, the HW Decision).

B2.   The MST Judicial Review

B2.1  The applicants and convictions

34.MST said to have met WOY (a Hong Kong permanent resident born in China on 19 August 1990) in September 2009.  The 3^rd applicant (MSTT) was an illegitimate son born on 16 December 2010.  MST and WOY were married in Hong Kong on 19 August 2011 and they gave birth to a second son, ie, the 4^th applicant (MSDT) on 13 December 2012, who acquired Hong Kong permanent resident status at birth.  WOY had previously received Comprehensive Social Security Assistance until 31 October 2011.  According to documents submitted to the ImmD, she had been employed as a cashier since 2 October 2013 with basic monthly salary of HK$12,000.  WOY and the sons were granted public accommodation in January 2014.

35.MST entered Hong Kong at least three times between 2003 and 2004 and used different identities in his dealings with the ImmD and the UNHCR.  MST was also convicted of criminal offences on three occasions whilst in Hong Kong.  MST’s various entries into Hong Kong, his criminal convictions, non-refoulment claims, the deportation proceedings and removal order against him can be summarised as follows:

(1) 1^st visit: MST entered Hong Kong on 6 January 2003 as a visitor using a Sri Lankan passport (“Passport 1”)[22] bearing his current identity MST born in Ratnapura (Sri Lanka) on 2 November 1981 (“ID1”).  He was permitted to stay as a visitor until 20 January 2003.  He applied for and was granted an extension of stay until 27 January 2003, and he departed Hong Kong on 25 January 2003.

(2) 2^nd visit:MST arrived in Hong Kong again on 20 February 2003, using Passport 1 under ID1with permission to remain as a visitor until 27 February 2003 but did not depart and had overstayed since 28 February 2003.

(3) 2004 Conviction:MST was apprehended by the Police on 10 March 2004 and on 18 March 2004, he was convicted of the offence of breach of condition of stay and sentenced to two months’ imprisonment, suspended for two years (“2004 Conviction”).

(4) Refugee claim under ID1:MST previously lodged a refugee claim with UNHCR under ID1, but informed the ImmD on 12 March 2004 that he wished to withdraw his claim and join his family in Sri Lanka as he did not wish to stay in prison any longer.  UNHCR was informed of the intention to withdraw and had no objection to MST returning to his home country voluntarily.  A removal order was made against MST on 23 March 2004 and he was removed to Sri Lanka on 27 March 2004.

(5) 3^rd visit: MST came to Hong Kong again on 11 May 2004 (just about one and half months after his repatriation), using another Sri Lankan passport[23] (“Passport 2”) bearing a different name (“ID2”).  Permission was granted to him to remain as a visitor for 30 days until 10 June 2004.  However, he did not depart after expiry of the limit of stay.

(6) Refugee claim under ID2: while in Hong Kong, MST submitted a fresh refugee claim to the UNHCR using ID2.[24]

(7) 2005 Conviction:MST was arrested on 4 August 2005 and during a cautioned interview on 9 August 2005, he admitted that his true identity was ID1 (ie, his current identity, MST) and Passport 2 bearing ID2 was a false passport arranged by his friend in Sri Lanka for him to come to Hong Kong.  He was prosecuted for the offences of (a) using a false travel document; and (b) making a false representation to an Immigration Assistant, and eventually convicted of these offences and sentenced to 12 months’ imprisonment for each offence to run concurrently (“2005 Conviction”).  The suspended sentence of two months’ imprisonment for the 2004 Conviction was also activated to run consecutively, resulting in a total of 14 months’ imprisonment.

(8) Deportation proceedings and CAT claim: Based on the 2004 and 2005 Convictions, the Director commenced deportation proceedings against MST on 19 August 2005 but on the same day the UNHCR requested the ImmD to suspend his removal pending the processing of his refugee claim.  On 13 March 2006, the ImmD was informed by UNHCR that MST’s refugee claim was closed.  MST opposed the deportation and subsequently lodged a CAT claim; the deportation proceedings was thus withheld pending the result of the CAT claim.

(9) Removal order:MST was discharged from prison on 13 May 2006 and referred to the ImmD for detention at the Castle Peak Bay Immigration Centre (“CIC”).  A removal order was made against MST on 29 June 2006.  Thereafter, he lodged an appeal against the removal order and his appeal was dismissed.  However, enforcement of the removal order had to be withheld pending the result of MST’s CAT claim.

(10) 2006 Conviction:During his detention at CIC, he was convicted of the offence of Assault Occasioning Actual Bodily Harm (“AOABH”) and was sentenced to six weeks’ imprisonment on 13 October 2006 (“2006 Conviction”).  He was released on recognizance on 3 May 2007.

(11) CIDTP claim:MST’s CAT claim was refused on 13 November 2012 and his petition to the Torture Claims Appeal Board was also dismissed on 10 January 2013.  On 17 March 2014, he lodged a CIDTP claim which is still under processing.

36.It is the Director’s position that although he has all along intended to remove MST from Hong Kong, the intended deportation proceedings and enforcement of the removal order are being withheld pending determination of the CIDTP claim.[25]

B2.2  MST’s dependant visa application

37.MST submitted his application for dependant visa on 15 September 2011.  In the application, MST and his wife were represented by D&A, who had communicated by correspondences with the ImmD concerning the application.[26]

B2.3  The MST Decisions

38.On 8 February 2013, Mr Lung assessed MST’s dependant visa application and submitted his refusal recommendation to Mr Wong for consideration.  As reflected in Internal MinuteM6 (“M6”),Mr Lung assessed the application and took into consideration all the submissions made by MST, WOY and D&A, including the following:

(1) Mr Lung considered MST’s identityand was satisfied that MST’s current identity (ie, ID1) was his genuine identity (see paragraph 10 of M6).

(2) Mr Lung considered the matrimonial relationship of MST and WOY and was satisfied that such relationship was genuine (see paragraph 11 of M6).

(3) Mr Lung considered the financial status of WOY and according to Mr Lung’s analysis by reference to all the available information and documents, WOY’s monthly disposable income came to HK$4,237.  Mr Lung came to a view that WOY was not able to support herself, her two sons and MST’s living at a standard well above the subsistence level and provide them with suitable accommodation in Hong Kong (see paragraph 12 of M6).

(4) Mr Lung considered MST’s previous convictionsand noted that MST had knowingly used a false identity to travel to Hong Kong in order to circumvent the immigration control in May 2004 and was convicted of the offences under the 2005 Conviction (which are offences punishable with imprisonment for not less than two years and deportable offences).  Further, he was convicted of the offence of AOABH under the 2006 Conviction.  Mr Lung observed that the said offences were serious in nature which involved immediate custodial sentences imposed by the court, and concluded that MST’s conviction records were to the detriment of his application (see paragraph 13 of M6).

(5) Having considered all the circumstances of the case, Mr Lung considered that MST failed to meet the NRD Requirement and the Financial Sufficiency Requirement, and since there were also no overwhelming compassionate grounds warranting exceptional consideration, he made the recommendation that the application should be refused (see paragraph 14.1 of M6).

39.On 15 February 2013, Mr Wong considered Mr Lung’s recommendation as reflected in M6.  Taking into account the seriousness of the 2005 and 2006 Convictions (which involved immediate custodial sentences) and that the nature of the offences involves dishonesty and violence, Mr Wong considered that it was not desirable for MST to remain in Hong Kong.  Mr Wong also agreed that WOY was not able to support MST at a standard well above the subsistence level.  Having considered all the circumstances of the case, Mr Wong did not find any overwhelming grounds justifying exceptional consideration for departure from the prevailing policy and he agreed to refuse the application and endorsed Mr Lung’s recommendation in M6.[27]

40.MST was informed of the refusal of his application (ie, the MST 1^st Decision) by letter on 20 February 2013.

41.On 16 July 2013, D&A by letter submitted a request for reconsideration of MST’s application by reason that:

(1) WOY had found a new job with an increased income.

(2) The 2004 and 2005 Convictions were not trivial matters and were regarded as serious by the Director but they were “not the most serious of crimes”.  The offences did not involve any violent element and allegedly arose due to his efforts to flee to Hong Kong to seek asylum.

(3) The offences occurred more than seven years ago and MST served a sentence commensurate with the seriousness of the offences, and there was no evidence to suggest that he posed any threat to the security, law and order of Hong Kong and he had abided with all directions of the ImmD since his release on recognizance.

(4) There was no question as to the genuineness of MST and WOY’s marriage; they have two children who acquired Hong Kong permanent resident status at birth and their best interests had to be taken into account at least as a primary consideration.

42.The ImmD was later further informed by D&A that (a) WOY had a new employment with a higher monthly income of HK$12,000; and (b) WOY and her family had been granted government housing accommodation and the tenancy took effect from 21 January 2014.

43.On 17 June 2014, Ms Mok Sui-king (the then Acting Senior Immigration Officer), re-assessed the dependant visa application and she recommended to maintain the previous refusal decision.  As evident from Internal Minute M2dated 17 June 2014,Ms Mok had reviewed all the relevant information and the circumstances of the case, including the previous considerations as recorded in M6 and the case files and all representations of WOY and relevant letters and submissions from D&A (see paragraphs 3 - 6 and 9.3 of M2).  Specifically, the grounds put forward by D&A on 16 July 2013 and the additional documents provided in support of the request for reconsideration were referred to at paragraphs 7 - 8 of M2.  In particular:

(1) Ms Mok acknowledged that WOY had a new employment with a higher monthly income of HK$12,000 since 2 October 2013; her family was granted government housing since January 2014 (the new rent was substantially lower than that of her previous accommodation); and there had been an increase in monthly disposable income and the financial capability of WOY had improved (see paragraph 9.2 of M.2).

(2) However, Ms Mok took the view that MST’s conviction records were considered to be “known records to the detriment of the applicant” under the dependant policy.  She considered that the 2005 and 2006 Convictions were serious in nature and involved immediate custodial sentences which involves dishonesty and violence; and in view of these offences, deportation proceedings were commenced against him which reflected that he was undesirable to the Hong Kong society.  The deportation proceedings were only withheld due to his outstanding non-refoulment claim.  Ms Mok also noted that he was convicted previously in 2004 for breach of condition of stay (ie, the 2004 Conviction).

(3) Ms Mok went on to consider the birth of MSTT and MSDT in Hong Kong but did not consider that this amounted to exceptional humanitarian, compassionate or extenuating grounds which would justify departure from the existing dependant policy having also taken into account the adverse effects of approving this case as a matter of immigration control to safeguard security.  She also considered that no undue hardship to MST was anticipated since there are other avenues open for the family, for example, WOY and the sons might visit MST in the future even his non-refoulment claim fails and he was required to return to his home country.

(4) Having considered all the circumstances, including the improvement of WOY’s financial status, Ms Mok agreed that MST’s criminal convictions were known records to the detriment of the applicant and there was no overwhelming factor or other justifiable ground to support any exceptional consideration for departure from the dependant policy.  On such basis Ms Mok recommended to maintain the refusal decision.

44.Thus, in essence, Ms Mok was of view that the MST 1^st Decision should be maintained as MST still at the least failed to meet the NRD Requirement, and there were no exceptional humanitarian and compassionate grounds to justify any departure from the policy.  Ms Mok’s assessment was endorsed by the Chief Immigration Officer.[28]  D&A was later informed by the ImmD by letter dated 18 June 2014 that the MST 1^st Decision would be maintained.

C.   THESE JUDICIAL REVIEWS

45.The grounds made in support of the respective judicial reviews to say the challenged decisions are unlawful are practically the same.  I would consider each of them in turn.

C1.   Ground 1 – The NRD Requirement and the Financial Sufficiency Requirement are unlawful as they fail to take into account various alleged rights

46.An application for a dependant visa is made under the dependant policy (“the Dependant Policy”) as applied by the Director.  In relation to such an application, the ImmD has published the “Guidebook for Entry for Residence as Dependents in Hong Kong” (“the Guidebook”) which has set out, among others, the relevant “Eligibility Criteria” at paragraphs 3 and 5 as follows:

“‘II. Eligibility Criteria’

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

a. his/her spouse;

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

c. his/her parent aged 60 or above.

4 ...

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

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

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

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

47.Thus, under paragraph 5 of the Guidebook, it is provided that an application for dependant visa “may be favourably considered” if the applicant can show that:

(1) There is a genuine relationship between the applicant and the sponsor.

(2) There is no record of detriment of the applicant (ie, the NRD Requirement).

(3) The sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in Hong Kong (ie, the Financial Sufficiency Requirement).

48.Under this ground, the applicants contend in gist that:

(1) The NRD Requirement and the Financial Sufficiency Requirement are unlawful since, either inherent in the formulation of the requirements themselves or in their application, they have failed to take into account the sponsor and minors’ rights of abode and rights to enjoy public benefits in Hong Kong, as well as the applicants’ rights to family and marriage as enshrined in Articles 37 and 39 of the Basic Law, Articles 17, 19 and 20(1) of Bill of Rights (domesticating Articles 17, 23(1) and 24(1) of the International Convention of Civil and Political Rights), Article 10 of the International Covenant on Economic, Social and Cultural Rights and/or the best interests of the child under Articles 1 to 7, 9 and 18 of the Convention on the Rights of the Child and/or the common law liberty of the individual to marry, establish a home and bring up children.  For convenience, I would refer to all these rights collectively as “the Asserted Rights”.

(2) It is Ms Li’s contentions that as a matter of law or a matter of relevance, the Director is obliged to take into account these Asserted Rights either in formulating the NRD and Financial Sufficiency Requirements or in applying them to consider the applicants’ dependant visa applications.

(3) Further, it is argued that the NRD Requirement and the Financial Sufficiency Requirement as presently formulated or applied infringe or undermine all or some of the Asserted Rights.

(4) In any event, both of the Requirements are unlawful as they are respectively broad, uncertain, vague or arbitrary.

49.However, as Ms Li recognises, this court has already in its respective judgments in Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016) (“the Dembele Judgment”) at paragraphs 19 - 57 and 101, and LK v Director of Immigration (HCAL 77, 98 and 100/2014, 9 August 2016) (“the LK Judgment”) at paragraphs 46 - 52 and 79 - 95 considered and rejected these same contentions made respectively to challenge the lawfulness of the Financial Sufficiency and NRD Requirements.

50.Indeed, Ms Li has by respective summonses sought leave to re-amend the Amended Form 86 in each of the present cases to add further lines of argument to put all the arguments raised under this ground consistent and in line with those that had been raised in the Dembele and LK judicial reviews.  In particular, Ms Li seeks to add references to the Chief Executive in Council’s Legislative Council Brief on Immigration Policy on Entry of Dependants (June 2003) (“2003 LegCo Brief”) to aid her contentions (as she had done so in the Dembele and LK judicial reviews) that the Dependant Policy is to facilitate family union, and hence the obligations on the Director (either as a matter of law or relevance) to take into account the Asserted Rights in formulating and applying the NRD and Financial Sufficiency Requirements or in making the challenged decisions.

51.As mentioned above, I have in the Dembele Judgment and the LK Judgment rejected all these similar arguments raised in the present cases under this ground, including the proposed additional arguments made in the draft Re-Amended Form 86.[29]  In the premises, for the same reasons, I would reject this ground in the present cases as well.

C2.   Ground 2 – The challenged Decisions are unlawful

52.Under this ground, Ms Li contends that the HW Decision and the MST Decisions are unlawful as:

(1) The Director in making them failed to take into account the Asserted Rights as obliged as a matter of law and as a matter of relevance.

(2) The Director unreasonably applied the Dependant Policy in fettering his discretion in treating the NRD Requirement and the Financial Sufficiency Requirement as “ineligibility” requirements and regarding the respective applications for dependant visa as coming to an end once he was not satisfied that the 1^st applicant in each case was able to meet the requirements.

(3) In any event, the Director’s respective conclusions that HW and MST did not meet the NRD and/or the Financial Sufficiency Requirement are irrational or Wednesbury unreasonable in the particular circumstances of each of the dependant visa applications, especially when subject to a vigilant scrutiny.[30]

53.With respect, I am unable to agree with these arguments. I will explain why.

54.First, for the same reasons I have rejected Ground 1 above, and the reasons this court has explained in the judgment in Pagtama v The Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016) (“the Pagtama Judgment”) at paragraphs 58 - 188 (as adopted in the Dembele Judgment at paragraphs 20 - 21), I do not accept that the Director is obliged as a matter of law or of relevance to take into account the Asserted Rights in determining the relevant dependant visa application.  I therefore reject this contention under this ground.

55.Second, the Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520 (“the BI Judgment”) at paragraphs 74 - 89 has concluded that the requirements laid down at paragraph 5 of the Guidebook, including the NRD and Financial Sufficiency Requirements, are eligibility requirements that a dependant visa applicant must satisfy before he or she would be eligible to be considered under the Dependant Policy for a dependant visa. In the premises, there is no question that the Director had acted unreasonably or fettered his discretion when he treated HW and MST’s respective dependant visa applications coming to a close when he was not satisfied that HW could meet the NRD Requirement, and MST could meet the Financial Sufficiency Requirement and/or the NRD Requirement.

56.Under the third contentions, Ms Li’s submissions regarding HW’s case run as follows.

57.Ms Li says in relation to HW’s dependant visa application, the Director relied on as a “known record adverse to the detriment of the applicant” the “admissions” the 1^st applicant allegedly made under caution that led the Director to suspect him to have committed the offences of using a false or unlawfully obtained travel document to enter Hong Kong on 17 March 2005 and 10 May 2005 or to believe that “[with] the self-admission, there is sufficient evidence to prosecute him for the suspect offences of using a false/unlawfully obtained travel document, which is a deportable offence”.

58.Ms Li argues that the Director’s said conclusion is Wednesbury unreasonable because:

(1) The Director misdirected himself on the applicable policy requirement on the information and materials before him.  The Director failed to take into account relevant considerations and took into account irrelevant considerations.

(2) The suspicion or belief stated above based on the “admissions” could not possibly establish, qualify or be treated as “known adverse records to the detriment of the applicant” within the plain meaning of that requirement in the Guidebook in the context of the immigration policy on entry as dependant.  Rather, in the same decision-making process, the Director did acknowledge the 1^st applicant’s identity.[31]

(3) The decision was also made without taking account of the 1^st applicant’s explanations and documents provided in the course of his application for dependant visa.[32]  Where an administrative decision-maker fails to take steps which are manifestly open to him to inform himself of matters which must reasonablybe relevant to his decision, he may well, other things being equal, be vulnerable to a charge of irrationality, because he will not have had regard to all relevant material.[33]

(4) Further, treating the “admissions” as “known records” against the 1^st applicant in the light of the prevailing prosecution policy against prosecution was irrational.[34]  The policy is based on established principles of asylum law providing immunity for genuine refugees whose quest for asylum reasonably involved them in breaking the law, such as the use of false documents.[35]

59.I accept Ms Tong’s submissions that HW’s above complaints are without merits.

60.First, Ms Li’s primary argument is that Director’s “mere suspicion or belief” (based on HW’s admission) that HW committed the Suspected Offence could not be treated as a “known record” to his detriment.[36]  I do not agree.

61.The Director’s reasons in concluding that HW could not meet the NRD Requirement are set out at paragraphs 13.1 - 13.4 of M12 as follows:

“13. Consideration and Recommendation

13.1 AP [ie, HW] admitted under caution that he had knowingly used a travel document while did not relate to him upon his arrival immigration examinations in 2005. The prosecution of his suspected offences of using a false / unlawfully obtained travel document was only deferred pending the determination of his CIDTP claim.

13.2 Although AP provided a letter from Consulate of Ghana which purported to show ID2 and ID1 are related to the same person. It was noted from the GHA passport under ID1 (P1) and ID2 (P2) bore different place of birth of AP. AP also admitted during enquiry that the problematic GHA passport (P2) was arranged by his friend. AP had provided an affidavit from his foster mother which purported to prove AP was born in Monrovia, Liberia instead of Accra, Ghana. All documentary proof provided by AP indicated he was born in Monrovia, Liberia instead of Accra, Ghana as recorded in P2.

13.3 D&A stated that AP and his family lived in constant anxiety and uncertainty about the future and requested to have a positive decision for the application [110].

13.4 Having considered all circumstances of the case, it is recommended refusing AP’s dependant visa application on grounds of AP having failed to meet the eligibility requirements in that there is known records to the detriment of the applicant. There is no overwhelming compassionate ground warranting exceptional consideration. The draft refusal letter is prepared at float for your perusal, please.

...”

62.It is clear from the above parts of M12 that the Director’s conclusion that HW had obtained and used a false travel document was not based merely on HW’s own admission but also on the obvious and unchallenged discrepancies and inconsistencies identified in the different passports used by HW.  In my view, such evidence, considered together with the admission (which by itself must also reasonably constitute a strong piece of evidence), clearly provide a more than reasonable objective basis for the Director to legitimately form that conclusion.  Further, as I have said in the LK Judgment atparagraphs 146 - 150, it is not necessary to have a conviction before the Director could reasonably form a conclusion that there is a “known record” of detriment.  In the premises, it is must be reasonably open to the Director to conclude that HW did not satisfy the NRD Requirement.

63.Second, it is alleged that Director has failed to take into account HW’s explanations and documents provided in the course of the subject application in reaching the view that HW failed to meet the NRD Requirement.[37]  This contention is unsupportable.  As is evident from M12, all the documents and representations submitted by and on behalf of HW were duly considered by Mr Lung and, in turn, by Mr Wong:

(1) Mr Lung expressly referred to HW’s purported explanations and documents provided by him in the course of the subject application at paragraphs 10.3 ‑ 10.5 of M12. Further, paragraph 13.2 of M12 states that all documentary proof provided by HW indicated that he was born in Monrovia (Liberia), instead of Accra (Ghana), as recorded in the 2005 Passport and no satisfactory explanation was provided by HW in relation to such inconsistency.

(2) Mr Wong also confirmed in his affirmation at paragraph 65 that all documents and representations submitted by and on behalf of HW were duly considered by him before the decision was made.

(3) It has now been established that the internal minutes constitute primary evidence as to the decision making process with affirmation evidence also admissible to confirm and elaborate upon the Director’s reasoning.[38]  Hence, with detailed references to materials and submissions supplied by the applicants in M12, there is no basis to contend that any such matters were overlooked by the Director in making the refusal decision in the present case.

64.Third, it is alleged that the Director acted “irrationally” in treating HW’s admissions as “known records” against him in light of the “prevailing prosecution policy” against prosecution of asylum seekers.  This submission is also untenable:

(1) As I have said in the LK Judgment at paragraph 146, “known records” for the purpose of the NRD Requirement has a wider meaning than criminal prosecutions/convictions.

(2) Further and in any event, the “prevailing prosecution policy” even if existed,[39] is not part of the Dependant Policy.  Given the wider meaning of “know records” under the NRD Requirement, and the entirely separate and different considerations of immigration control, it must be reasonably and legitimately open to the Director (in immigration context) to enforce the strict immigration policy (and the NRD Requirement) to ensure that a dependant visa applicant (such as HW) would raise no security or criminal concerns to Hong Kong.

65.Finally, there are further grounds raised by HW in the Amended Form 86 under this ground, which have not been pursued in Ms Li’s skeleton.  But for completeness, I would deal with them briefly as follows.

66.It is alleged that the Director’s decision is irrational as he had wrongly taken into account the alleged offence of “making a false representation during the assessment”.[40]  This allegation is factually incorrect.  As clearly stated in paragraph 13.1 of M12 and paragraph 3 of M13,[41] the “known records to the detriment of the Applicant” refers to the Suspected Offence only.

67.It is also alleged that the Director erred in not taking into account that (a) HW made the admissions under caution during the October 2006 Interview in the absence of legal advice as to Ghanaian/Hong Kong law; (b) that he has a clear criminal record whilst he was in Hong Kong; (c) his conduct should be considered reasonably excusable; and (d) he was at the material time allegedly “under the influence and advice of the person(s) he had entrusted with the request of helping him leave Ghana”.[42]  These contentions are equally unsupportable:

(1) As expressly stated in the record of interview, the admissions made by HW during the October 2006 Interview were made under caution, ie, he was expressly informed that he was not obliged to say anything unless he wished to do so and whatever he may say may be put in writing and given in evidence.[43]

(2) The fact that HW was not charged with any other criminal offences during his stay in Hong Kong cannot detract from the seriousness of the Suspected Offence.

(3) It is unclear how it can be said that HW’s conduct can be regarded as “reasonably excusable” given that the seriousness of the Suspected Offence, which is a matter of judgment by the Director, taking into account his responsibility for immigration control in Hong Kong.  It is not unreasonable for the Director to have considered that the Suspected Offence is a serious offence taking into account all the circumstances.

(4) There is no evidence before the Director that HW was “under the influence and advice of the person(s)” at the material time.

68.It is alleged that the Director is legally obliged to assess whether removing HW from Hong Kong would amount to cruel, inhuman or degrading treatment to all the applicants (ie, including the 2^nd and 3^rd applicants) prohibited by Article 3 of the HKBOR.  However, the alleged Article 3 of the HKBOR concerns had not been raised to the Director at any time during the subject application.[44]  It is thus not open for the applicants now to challenge the impugned decision in this judicial review on the basis that the Director should have properly inquired into the alleged Article 3 of the HKBOR concerns on his own motion.  As stated in the Pagtama Judgment at paragraphs 211 and 214:

(1) It is trite that a decision maker will not generally be faulted for not having had regard to matters (in particular fact sensitive matters) which were not known to him at the time of the challenged decision.

(2) The applicant seeking residence as a dependant has the burden of putting forward all the matters which he wishes to rely to support the application, to convince the Director to exercise his discretion in his favour.  These matters should include all those which he reasonably could contemplate that may be taken into account by the Director.  Such burden cannot be shifted to the Director to require him to make inquiries on his own motion.

(3) In any event, there is no dispute that it was once HW’s intention to go back to his home country (as evidenced by his letter of 30 June 2011)[45] because his problems over there were resolved.

69.In relation to MST, Ms Li’s arguments run as follows.

70.First, it is similarly contended that the Director’s refusal of MST’s dependant visa application for not meeting the NRD Requirement relying on the 2005 Conviction was unreasonable in light of the prevailing prosecution policy against prosecution of asylum seekers.  For the same reasons as explained at paragraph 64 above, I would reject this argument.  Moreover, as rightly submitted by Ms Tong, it should be noted that aside from the 2005 Conviction, MST was also convicted of the AOABH offence (not an immigration offence) under the 2006 Conviction which was also considered by the Director to be a record to the detriment of his application (see paragraph 13 of M6).

71.Second, it is contended that the Director is legally obliged to assess whether removing MST from Hong Kong would amount to cruel, inhuman or degrading treatment to all the applicants prohibited by Article 3 of the HKBOR.[46]

72.Again, the alleged Article 3 of the HKBOR concerns had not been raised to the Director at any time during the subject application and there is thus no basis for the applicants to challenge the impugned decision on the basis that the Director should have properly inquired into the alleged Article 3 of the HKBOR concerns on his own motion (see paragraph 68 above).  In any event, there is no dispute that MST previously requested to return to Sri Lanka (and in fact did so) and withdrew his refugee claim, as he wished to rejoin his family in Sri Lanka.[47]  Further, in opposing the deportation proceedings, although MST stated that he found it difficult to return to Sri Lanka, he did not provide any details of his claim of danger in Sri Lanka as his ground against deportation for the ImmD’s consideration.[48]  There is therefore also nothing in this complaint.

73.Finally, insofar as if the applicants in both cases are also seeking to argue under this ground that, given the family circumstances of each of these cases, it is irrational or Wednesbury unreasonable for the Director to conclude that there were no exceptional humanitarian and compassionate grounds to justify a departure from the policy to grant HW and MST permission to reside in Hong Kong, I would equally find the complaint to be without merits.

74.As observed by the Court of Appeal at paragraph 92(8) of the BI 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.[49]  However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the Court of Appeal has emphasized that the courts would not lightly interfere the Director’s 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 Judgment, paragraphs 102 - 111.

75.Moreover, 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:

(1) matters which are clearly identified in the relevant legislation (expressly or implied) as considerations to which regard must be had (ie, mandatory considerations);

(2) matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

(3) matters to which the decision maker may have regard if, in his judgment and discretion, he thinks it right to do so (ie, discretionary considerations).

See: Wing on Co Ltd v Building Authority (1996) 6 HKPLR 432 at 439, per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex parte Fewings [1995] 1 WLR 1037; recently referred to in BH v Director of Immigration (HCAL 105/2014, unreported, 15 April 2015,Chow J) at paragraph 64 (as approved by the Court of Appeal in the BI Judgment, at paragraph 124).

76.Bearing these principles and approach in mind, and given the Director’s detailed assessments of the respective dependant visa applications as summarised under sections B1.3 and B2.3 above, I am satisfied on the evidence that the Director did take into account the factors relating to the family circumstances of the applicants (including any explanations given for committing any of the offences) before making the Decisions.  Further, in giving regard to the wide discretion of the Director and the context of whether there should be exceptional treatment against a stringent immigration control, it certainly cannot be said that the Director’s decision not to exercise the discretion despite all the circumstances of the applicants is one that no reasonable person in the position of the Director would have come to.  

77.For all the above reasons, the applicants in both cases also fail under Ground 2.

C3.   Ground 3 – Legitimate expectation

78.Under this ground, the applicants respectively contend that they had a legitimate expectation that the Director would take into account the Asserted Rights in determining their dependant visa applications.  It is said that the Director in failing to do so had frustrated the legitimate expectation.

79.This ground stands and falls with Grounds 1 and 2(1).  Given that I have rejected those grounds, for the same reasons explained above, I am not satisfied that there is any basis to establish the alleged legitimate expectation.  This ground must also fail.

C4.   Ground 4 – Procedural impropriety

80.Ms Li raises two complaints under this ground.

81.It is first said that the Director failed to inform the applicants his propositions and assumptions, including what amounted to “no record of detriment of the applicant” in the case, so that the applicants could address them appropriately.  In particular, Ms Li emphasises that:

(1) In relation to the HW’s case, the Director had all along been inquiring between 2011 and 2013 on the identity of HW and the financial situation of HG.[50] At no time did the Director inform the applicants or their legal representatives that HW’s “admissions” at the interview with immigration officers in 2006 were likely to be regarded as “records to the detriment to the applicant” under paragraph 5(b) of the Guidebook.  However, the Director’s proposition is so aberrant and counter-intuitive that it is incumbent upon him to inform the applicants and their legal representatives so that they have a reasonable opportunity to make representations to address them.[51]

(2)   In relation to the MST’s case, the Director had all along been inquiring between 2011 and 2013 on the identity of MST and the financial situation of WOY.  At no time did the Director inform the applicants or their legal representatives that MST’s convictions for using false identity for travelling to Hong Kong to circumvent immigration control were likely to be regarded as serious offences detriment to his application.  This proposition in the context of MST being an asylum seeker at the material time is so important that it is incumbent upon the Director to inform the applicants and their legal representatives so that they have a reasonable opportunity to make representations to address them:[52] R v Mohamed Abdalla [2011] 1 Cr App R 35, Eng CA;R v Mateta [2014] 1 WLR 1516, Eng CA.

82.With respect, there are no merits in these complaints for the reasons I have set out at paragraphs 99 - 100 of the Dembele Judgment, which I would summarise as follows:

(1) It is precisely in the light of the self-evident importance of the applications from the applicants’ own perspective that the Director would reasonably and fairly expect that they would, without specific prompting, provide all materials and information that would be reasonably regarded as relevant to their particular situation.  I further repeat my observations at paragraph 214 - 215 of the Pagtama Judgment.

(2) In any event, there is nothing at all to suggest that the applicants were unaware that 1^st applicants’ past conduct would be held against each of them and would have to be explained or contextualized if the applications were to have any chance of success.  To the contrary, the applicants were clearly aware that the past conduct would be a critical problem.  That is why in each case the applicants did make representations regarding the 1^st applicants’ past conduct and sought to balance things out by extensive appeals based on their family circumstances.[53]

(3) Similarly, the applicants in MST Judicial Review were well aware of the need to show financial capability and there has been extensive representations and correspondence in respect of this issue, and the application was also subject to reconsideration in light of changes in the sponsor’s financial situation.

(4) In HW’s case, it was the Suspected Offence that the Director considered to be a “known record” to his detriment, which was supported not only by his own admissions, but also other documents and explanations submitted by him (as explained above).

83.Ms Li also complains that the HW Decision and the MST Decisions are inadequately reasoned.

84.There is again no substance in this complaint.

85.As I have said in the Pagtama Judgment at paragraph 227:

(1) Reasons for decision can be briefly stated and the degree of particularity required depends entirely on the nature of the issues falling for decision.  Even in the context of a decision of the Immigration Tribunal, the applicable duty is only to give “outline reasons” sufficient to show what issues the Tribunal was directing its mind to and the evidence for its conclusions.

(2) A challenge based on inadequate reasons will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudicedby the failure to provide an adequately reasoned decision.

86.In the present cases, the applicants have not particularized the basis for alleging that the Director’s reasons are inadequate nor have they demonstrated that any “substantial prejudice” has been caused to them as a result.[54]  To the contrary, in raising their various complaints in the respective Amended Forms 86, the applicants clearly had no difficulty in identifying the Director’s reasons for the decisions.

87.In any event, given the Director’s disclosure of evidence in these proceedings, in particular, the various Internal Minutes setting out the reasoning in respect of each of the impugned decisions, there cannot be any further ground for complaint (see Hong Kong Television Network Limited v Chief Executive in Council [2015] 2 HKLRD 1035 at paragraph 101).

88.I would also reject Ground 4.

C5.   Conclusion under the merits of the judicial review

89.The applicants in each case fail in all their grounds of judicial review.  Their applications should be dismissed on merits.

D.   THE DIRECTOR’S APPLICATIONS TO SET ASIDE LEAVE ON THE GROUND OF DELAY

D1.   The Director’s applications

90.Under Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review must be made promptly after the relevant decision is made, and in any event not later than three months thereafter.  The court retains a power to extend time, but that power is only to be exercised if “good reason” is shown.

91.There is no dispute in the present cases that there was delay beyond the 3-month period on the applicants in applying for leave for judicial review:

(1)   In the HW Judicial Review, the HW Decision was made on 16 September 2013, the 3-month period therefore expired on 16 December 2013.  The applicants only applied for leave on 9 October 2014.  There is therefore a delay of at least 10 months.

(2)   In the MST Judicial Review, the MST 1^st and 2^nd Decisions were respectively made on 20 February 2013 and 18 June 2014.  The respective 3-month periods expired on 20 May 2013 and 18 September 2014.  The leave application was made on 21 November 2014.  There is respectively a delay of 17 months and 2 months.

92.On 28 October 2015, the Director issued a summons in each of these applications seeking to set aside on the ground of delay the ex parte leave granted to the applicants in applying for judicial review.

D2.   The applicants’ preliminary objection

93.Ms Li however first submits that as a matter of legal principle, it is not open to the court to entertain at the substantive hearing of a judicial review any application to set aside leave on the basis of delay.  Leading counsel relies principally on the authority of R v Criminal Injuries Compensation Board, ex p A [1990] 2 AC 330 at p 341.

94.I do not accept Ms Li’s submissions.  The Court of Appeal in the BI Judgment at paragraphs 134 - 139 has confirmed that the court does have jurisdiction to deal with such an application at the substantive hearing of a judicial review, and it is a matter of case management for the court to decide whether to do so in the circumstances of each case.  The Court of Appeal however emphasises that generally speaking it is preferable to have such an application dealt with promptly.

95.In relation to the present cases, leave was granted in March 2015.  At that time, the Pagtama judicial reviews were heard but judgment was reserved, while the Dembele judicial review was scheduled to be heard in May 2015 and the LK judicial reviews were fixed to be heard in September 2015.  In light of the overlapping issues with the present two cases, the parties agreed to stay these two proceedings until the hearing of the LK judicial reviews.  The court made the consent orders on 3 June 2015 that these proceedings be stayed and the Director shall file evidence within 28 days after 30 September 2015 and that the substantive hearings of the present two cases shall be fixed on a date after 1 December 2015.

96.Eventually, the Director filed his full evidence in opposition on 28 October 2015 and, at the same time, issued the summonses to set aside the respective ex parte leaves on the ground of delay.  These summonses were fixed to be heard at the same time as the substantive hearing of these judicial reviews.  The applicants did not object to such course.

97.In my view, given that the court in determining whether to extend time for a delayed application may have to examine the merits of the applicant’s substantive challenge deeper than the standard applicable to granting leave,[55] I am satisfied that as a matter of case management, it is convenient and appropriate in the present cases to hear the setting aside leave application at the same time of the substantive hearing.  This is so as, given the various grounds of challenges raised in these judicial reviews, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Director’s full evidence.  Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing).

98.I would now proceed to look at the setting aside applications.

D3.   Should leave be set aside

D3.1  Applicable principles

99.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 can be summarised as follows:

(1)   Although Order 53, rule 4(1) of the Rules of the High Court sets down a three-month limit, the primary requirement is promptness.  The applicant cannot wait until the three-month period is drawing to a close before springing into action.

(2)   Unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made.

(3)   While the court has power under Order 53, rule 4(1) of the Rules of the High Court to extend time, the power is only to be exercised if “good reason” is shown.

(4)   The following factors are likely to be significant in assessing whether there is good reason for time extension:

(a)   The length of delay.  The longer the delay, the more cogent the reason required for extending time.

(b)   Whether there is a credible and valid explanation for the delay.

(c)   The merits of the substantive application.  In this regard it is important to recall Litton NPJ’s statement in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B - C that where an applicant is many months late, leave may be refused “however strong the complaint might otherwise be”.  See also Hartmann J (as he then was) in Law Chun Loy v Secretary for Justice (unreported, HCAL 13/2005, 26 October 2006) at paragraph 13.

(d)   Prejudice (to the applicant if extension refused; to the authority if extension allowed).

(e)   Whether the application raises question of general public importance and whether those issues are likely to have to be resolved by the courts in any event.

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.

100.Further, in considering the question of delay, there is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time: Re Thomas Lai, supra, at paragraph 48(1), citing Wong Chi Keung v The Commissioner of Police (HCAL 1/2010, 11 May 2010), paragraphs 57 - 72.

101.Bearing these principles in mind, I would look at each of these cases in turn.

D3.2  The HW Judicial Review

102.The applicants explain the delay predominantly on the basis of the time required to apply for and be granted legal aid.  This has been elaborated by Ms Li in her skeleton as follows:[56]

(1) The Director’s Decision was made on 16 September 2013.  The applicants sought legal advice promptly on 17 September 2013.

(2) The applicants had acted promptly in applying for legal aid on 2 October 2013.  They had not slept on their rights.

(3) Legal aid was offered on 11 March 2014.  Legal aid was granted on 21 March 2014.  Thus six months was taken by the Legal Aid Department (“LAD”) to examine the applicants’ applications for legal aid.

(4) Since then, it has taken time for:

(a) recommendation and assignment of counsel (20 May 2014);

(b) time for counsel to research, draft the Form 86 and verifying affidavits (brief delivered on 17 June 2014, 1^st draft sent on 13 July 2014);

(c) revising the documents in the light of instructions (instructions taken on four meetings in July and August 2014); and

(d) applying for an anonymity order (application filed on 19 August 2014, granted on 29 September 2014).[57]

103.Ms Li submits that the applicants had therefore acted sensibly and reasonably and the delay was not caused by them.  Moreover, their solicitors and counsel, once legal aid has been granted, had proceeded with due diligence and expedition in preparing the Form 86 for it to be filed on 9 October 2014.  Ms Li also submits that there is no prejudice caused to the administration by reason of delay, but serious prejudice would be caused to the applicants if extension of time is not granted, as the applicants may become separated and the family unit not preserved.  Leading counsel also emphasises that the legal issues raised in the judicial review are of great general public importance. In the premises, Ms Li says there are good reasons to justify an extension of time.

104.With respect, I am unable to agree.

105.I am not satisfied that there are good reasons to justify an extension of time in the circumstances of the present case:

(1)   The delay of 10 months is significant and serious.

(2)   When considered under this significant period of delay, and the general position that time required for legal aid application process cannot generally by itself be considered as a good reason for delay, the applicants’ explanations as summarised above are not good and adequate explanations:

(a) According to the applicants’ chronology, the applicants’ legal aid application was submitted by D&A to the LAD on 2 October 2013, followed by various requests for documents and information by the LAD.  In particular, it is noted that on 29 November 2013, theLAD requested further documentation from HG in relation to her family and period of stay in England.  Two months later on 28 January 2014, it is stated that D&A took steps to facilitate the application “by providing further supporting grounds”.  No explanation has been provided for the lapse of two months and what steps were taken during such period, whether the documents and information requested by the LAD on 29 November 2013 were provided and why the “further supporting grounds”could not have been provided earlier.

(b) According to the applicants’ case, legal aid was granted on 21 March 2014.[58]No explanation has been given as to why D&A only wrote to the LAD requesting assignment of counsel almost two months later on 16 May 2014.

(c) Further, and more significantly, no good reason has been provided as to why it took the applicants and their legal team more than six months after legal aid was granted to file their application for leave to commence judicial review against the impugned decision.  In this respect, it should be noted that D&A had assisted the applicants for a substantial period and submitted various data access requests even prior to the grant of legal aid on 21 March 2014 and should already be familiar with their background and circumstances.[59]

(d) Further, the same set of solicitors and counsel had handled the overall series of similar judicial reviews,[60] where the issues raised substantially if not entirely overlap with this case.  The grounds for judicial review in the Form 86 are essentially a repetition of those set out in the Forms 86 of the previous judicial reviews.

(3)   Moreover, for the reasons I have set out above, the judicial review is without strong merit.  When this factor is looked at together with the magnitude of the delay and the absence of adequate explanation for them, it is proper to refuse to extend time.  The submission that there would be disastrous hardship on the applicants if extension of time is not granted as HW would be separated from the other applicants must similarly be viewed against the merits of the challenges.

(4)   Finally, delay in bringing this judicial review plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of HW was tolerated pending the determination of this judicial review.  He has remained in Hong Kong as an overstayer for more than 10 years.  As said by the Director, in the absence of any sufficiently justifiable reasons for the delay (as in the present case), any indulgence to allow the extension of time sought by the applicants may be regarded as a form of encouragement for persons who have no permission to remain in Hong Kong to flout the law and find different excuses to resist removal from Hong Kong.[61]

106.I therefore would refuse to grant extension of time, and set aside the ex parte leave granted.

D3.3  The MST Judicial Review

107.Similar to the HW Judicial Review, the applicants in the MST Judicial Review explain the delay predominantly on the basis of the time required to apply for and be granted legal aid (including the time taken for legal aid appeal).  They have also attributed the delay to the time required by the solicitors to take detailed instructions from MST and WOY.[62]  Ms Li similarly has elaborated the reasons for the delay and submitted that there are justification for extension of time as follows:

(1)   The MST 1^st Decision was made on 20 February 2013.  The applicants had acted promptly in applying for legal aid on 28 February 2013.  They had not slept on their rights.

(2)   However, the LAD initially refused the applicants’ legal aid application on 13 June 2013.  The applicants lodged legal aid appeals.  Solicitors for the applicants also sought reconsideration of the Director’s decision on 16 July 2013. The legal aid appeals were adjourned sine die on 22 August 2013 pending the reconsideration.  Solicitors duly sought restoration of the legal aid appeal in May 2014 in the light of lack of progress on part of Director in reconsidering his decision.  The LAD then asked for fresh applications to be made on 3 June 2014 and legal aid offers were made on 23 June 2014, with certificates issued to the 1^st and 2^nd applicants in July 2014.

(3)   Whether a litigant has acted sensibly and reasonably is a fact sensitive matter.  The applicants have provided a credibly valid explanation for the delay in the legal aid application process, which took 16 months.  They had not caused any delay themselves.  They were at the time of the legal aid application represented by the current solicitors and reasonable efforts were taken to seek to expedite the application through provision of further documentation and supporting grounds for review.

(4)   Since the grant of legal aid, it had taken time for:

(a) recommendation and assignment of counsel (7 August 2014);

(b) time for counsel to research, draft the Form 86 and verifying affidavits (brief delivered on 19 August 2014, 1^st draft sent on 31 August 2014);

(c) revising the documents in the light of instructions (instructions taken on five meetings in September and October 2014);

(d) applying for an anonymity order (application filed on 6 October 2014, granted on 29 October 2014);[63] and

(e) taking instructions to finalize the verifying affirmations.

108.With respect to Ms Li, I am also not satisfied that there are good reasons for extending the time in the present case:

(1)   The delay, in particular in relation to the MST 1^st Decision, is serious and significant.  When considered under this significant period of delay, and the general principle that application for legal aid does not by itself constitute a good reason for delay, I am not satisfied that these are good explanations:

(a) Insofar as the time required to obtain instructions from applicants is concerned:[64]

(i) The applicants had the assistance of D&A since as early as in May 2012 (in respect of MST’s dependant visa application).  D&A should thus be familiar with their background and circumstances. 

(ii) Further (as with the HW Judicial Review), one must bear in mind that the same solicitors and counsel had handled the overall series of similar judicial reviews, where the issues raised substantially if not entirely overlap with those raised in this case (the Form 86 filed in this case contains substantial repetition of grounds used in the previous judicial reviews).

(iii) It is therefore not reasonable for the alleged length of time to be required for obtaining instructions from the applicants to prepare for the leave application.

(b) Insofar as the time taken to obtain documents is concerned:[65]

(i) After being informed of the MST 1^st Decision on 20 February 2013, D&A submitted a personal data access request (“1^st DAR”) on behalf of the applicants to the ImmD on 27 February 2013 (seeking all data), a list of documents was provided by the ImmD on 5 April 2013 and D&A collected the documents on 15 May 2013.

(ii) After being informed of the MST 2^nd Decision on 18 June 2014, D&A submitted a further personal data access on 21 July 2014 (seeking all data) (“2^nd DAR”)ie, one month later,the list of documents was provided by the ImmD on 18 August 2014 and D&A collected the documents on 1 September 2014.  No explanation has been provided for the delay in submitting the 2^nd DAR.

(iii) In any event, the documents obtained by D&A under the 1^st DAR would have been sufficient for the purpose of preparing and filing the Form 86 given that the Director maintained his decision, while the reconsidered decision basically reconfirmed the previous decision.

(2)   Moreover, for the reasons I have set out above, the judicial review is without strong merit.  When this factor is looked at together with the magnitude of the delay and the absence of adequate explanation for them, it is proper to refuse to extend time.  The submission that there would be disastrous hardship on the applicants if extension of time is not granted as MST would be separated from the other applicants must similarly be viewed against the merits of the challenges.

(3)   Finally, delay in bringing this judicial review has plainly prejudiced good administration in the exercise of effective immigration control.  The continued stay of the 1^st applicant was tolerated pending the determination of this judicial review.  He has remained in Hong Kong as an overstayer for more than 10 years.  I repeat what I have said at paragraph 105(4).

109.I would therefore also refuse to grant extension of time to the applicants, and set aside the ex parte leave previously granted to them to apply for judicial review.

E.   CONCLUSION

110.The applicants have failed in all the grounds advanced in support of these applications.  I would dismiss these judicial reviews.

111.Further and in any event, I would also refuse to grant extension of time and set aside the ex parte leave previously granted in each of these judicial reviews on the basis of delay.

112.I further make an order nisi that costs of each of the judicial reviews and the applications to set aside leave be to the Director to be taxed if not agreed.  The applicants’ own costs be taxed in accordance with legal aid regulations.

113.Lastly, I would also like to thank counsel for their assistance in these matters.

Ms Gladys Li, SC and Mr PY Lo, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicants (in both cases)

Ms Sara Tong, instructed by Department of Justice, for the respondent
(in both cases)