Rai Rajendra Kumar v. Director of Immigration

HCAL 1093/2018

[2019] HKCFI 2579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1093 OF 2018

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D E C I S I O N

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INTRODUCTION

1.This is an application for leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) contained in two letters dated 8 July 2016 and 13 March 2018 respectively refusing to grant dependant visas to two persons who are said to be the Applicant’s stepsons currently residing in Nepal.

BASIC FACTS

2.The Applicant was born in Nepal on 20 November 1970.  He married his first wife (Ms Rai), who was a Hong Kong permanent resident, in Nepal on 20 November 1992, and had 2 sons born in the wedlock between him and Ms Rai.  On 21 March 1995, the Applicant was approved to take up residence in Hong Kong to join Ms Rai as her dependant.  In October 2004, the Applicant’s VEPIC application was approved, and his right of abode in Hong Kong was established.  On 20 November 2006, the Applicant and Ms Rai divorced.

3.According to the Applicant, he married Ms Gurung Saku (“the Wife”) in Nepal on 20 April 2007, and became the step-father of two sons of the Wife (“the Stepsons”), who were born in Nepal on 12 May 1998 and 23 May 1999 respectively.

4.In August 2015, the Stepsons, acting through an immigrant consultant, Shafin International Co. (“the Immigration Consultant”), submitted applications to the Immigration Department for visas to visit Hong Kong with the Wife acting as their sponsor.  On 23 September 2015, the Immigration Department informed the Wife that the visa applications were refused.  The Wife’s subsequent request for reconsideration of the visa applications was also refused by the Immigration Department on 28 October 2015.

5.On 9 March 2016, the Stepsons, acting through the Immigration Consultant, submitted applications to the Immigration Department for taking up residence in Hong Kong as dependants of the Applicant (“the Dependant Visa Applications”).  The Immigration Department assessed the 2 applications together, and sought and obtained relevant documents relating to the Stepsons during the period from April 2016 and June 2016.  By a letter dated 8 July 2016, the Immigration Department informed the Applicant that the Dependant Visa Applications were refused, for the reason that –

“it is not satisfied that the applicants are your dependants and they are coming to the HKSAR to join you as your dependants”.

6.The Immigration Department’s detailed assessment of the Dependant Visa Applications can be seen from its internal file minute “M1” dated 8 July 2016, as follows:

“Assessment of Relationship

5.2 Both AP1-2[1] is illegitimate children born within the cohabitation relationship of Ms GURUNG, SAKU (SP[2]’s wife) and Mr GURUNG, GANESH BAHADUR (natural father of AP1-2). According to the birth certificates of AP1-2 submitted, both of their birth certificates were not registered immediately after their birth (ie more than 10 years after their birth respectively on 23-10-2009 and 05-06-2015). SP stated that he had no idea why both birth certificates were late registered as it was conducted by natural father of AP1-2. Besides, both AP1-2 were not reported in the Dependant application of SP’s wife under EOEN-5918-07 and VEPIC application of SP’s wife under RNVE-5045587-14. SP explained that his wife thought AP1-2 were not SP’s family member at that moments and thus AP1-2 were not reported in said applications. Indeed, it is not convincing that AP1-2 were not part of SP’s family as SP and SP’s wife solemnized their marriage in 20-04-2007. AP1-2 were step-children of SP for almost 7 years when SP’s wife submitted her VEPIC application in 2014. In view of the unreasonable and unconvincing explanation of late registration of birth certificate of AP1-2 and both AP1-2 were unreported in 2 consecutive applications of SP’s wife, it is not satisfied that the step­father / children relationship between SP and AP1-2 is genuine.

Lack of Physical and Emotional Dependency

5.3 Regarding the proof of dependency, SP provided some 8 living photos of AP1-2/SP’s wife … However, it is noted that all photos were taken during child age of AP1-2 and SP was not presence in all of them. SP stated that no more photo could be provided … when he was requested to provide additional photos. Thus, the living photo provided could hardly prove any close relationship between SP and APs. In addition, movement record check revealed that AP1-2 had never visited Hong Kong in past 3 years and SP had frequent departure via seaport only. SP furthered that he did not travel overseas by using his passport … As such, without persistent physical contact, it could hardly prove that AP1-2 are physically and emotionally depending on SP. It casts doubt on how deep such relationship between AP1-2/SP may be and the intimacy between SP and AP1-2 could not be observed.

5.4 SP submitted 3 screen capture of video chat between SP’s wife and AP1-2 as communication proof. However, SP could not provide further communication proof [other] than the above mentioned. To conclude, without proof of persistent physical contact and concrete communication proof, there is no clue to the intimate relationship between SP and AP. It is not satisfied that AP is depending on SP physically and emotionally.

Lack of Financial Dependency

5.5 Only 4 remittance slips from SP and SP’s wife to sister of SP’s wife and AP1-2 respectively were furnished. However, it is noted that the 1^st remittance was dated 05-11-2015, which is around 4 months from the application date (ie 10-03-2016). It casts doubt that the remittance slips were tailor made to cater for the requirement of captioned application and no continuous financial support from SP to AP1-2 is observed. Therefore, APs’ financial dependency on SP could not be established.

5.6 AP1-2 are an able-bodied persons who have been taking Nepal as their habitual residence in the absence of SP. Available information also suggests that they are not depending on SP either physically, emotionally and financially. Therefore, it is considered that no hardship would be caused to AP should the application be refused. Having considered all the available information and circumstances of the case, there also exists no other extenuating or strong compassionate grounds meriting our special consideration.

6. Recommendation

6.1 Having considered all the available information and circumstances of the cases, it is recommended refusing the entry Dependant applications on the ground that

● AP1-2 is not satisfied to be genuine Dependant of SP, who are physically, financially and emotionally depending on SP”.

7.On 17 August 2016, the Applicant and the Wife requested the Immigration Department to reconsider the Dependant Visa Applications.  Further documents and information were provided to the Immigration Department between October and March 2018.  The Immigration Department also conducted an interview with the Applicant and the Wife on 8 March 2018.

8.By a letter dated 13 March 2018, the Immigration Department informed the Applicant that, having reviewed the information made available and all circumstances of the case, they could not find “sufficient grounds justifying a reversal of our previous refusal decision”.

9.The Immigration Department’s detailed assessment of the application for reconsideration of the Dependant Visa Applications can be seen from its internal file minute M4 dated 13 March 2018, as follows:

“Relationship proof

7. The existence of AP1 and AP2 had never been reported as either SP’s step children or SW[3]’s natural children during SW’s dependant visa application in 2007 and SW’ VEPIC application in 2014. It was not until the submission of the visit visa applications of AP1 and AP2 in August 2015 for visiting SW that they were firstly reported as the sons of SW. In the initial applications, SP explained that his wife thought that APs were not part of SP’s family thus APs were not reported ... However, it is noted that SP also claimed … that after marriage they (APs) have become his family. The explanations given by SP were contradictory.

7.1 In the initial applications, the Birth Registration Certificates of AP1 and AP2 submitted … were found to be lately registered in October 2009 and June 2015 respectively whereas AP1 and AP2 were allegedly born in 1998 and 1999. SP reported that he had no idea of the late registration as it was done by APs’ natural father. In addition, as mentioned in paragraph 2, POB discrepancy were found during the visit visa applications of APs in 2015, where SW and Mr Ganesh Bahadur Gurung (APs’ reported natural father) had two male babies born at Lumbini Zonal Hospital on 12-5-1998 and 23-5-1999 respectively according to the Birth Certificates from Lumbini Zonal Hospital issued on 29-6-2015. Contrary to the Birth Certificates from the hospital, the instant Birth Registration Certificates of AP1 and AP2 issued by Sunwal Municipality Nawalparasi District stated that both of AP1 and AP2 were born at home.

7.2 Based on the supporting documents submitted so far and all available information in the initial applications, past immigration records and this instant reconsideration, the genuine mother and sons relationship of SW with AP1 and AP2, as purportedly claimed in the initial case and this instant application, has yet to be established.

Dependency

8. APs have all along been living in Nepal since birth. It was mentioned that they were under the care of SW’s sister after SW took up residence in Hong Kong as dependant of SP in 2007. According to the movement records of SP, he has all along been residing in Hong Kong since the marriage with SW, and APs were reported living with SW’s sister since then when they were still at the age of 8 and 9.

8.1 In the initial applications, SP submitted some living photos of APs taken with SW. For the instant request, some more photos of SW and APs taken during SW’s visits in Nepal were furnished. For all these newly-submitted photos, it’s observed that these were taken with SW, AP1 and AP2 recently. However, SP had not been presented in any of these photos. As stated by SP, he had no overseas trips by his passport, while movement records showed that SP had no airside trip for a decade not until the recent trip on 30-1-2018. According to SW’s dependent application in 2007, SP had a trip to overseas, assuming for home country, from 19-4-2007 to 21-4-2007 (3 days inclusive) for the purpose of marriage with SW on 20-4-2007. There is no other indication showing that SP had been to Nepal again after the marriage. During the counter interview with SP on 8-3-2018 …, SP stated that he had not been to Nepal after the marriage in 2007 because he was busy in Hong Kong and he thought that SW’s visits to APs would be sufficient. He only visited APs at last during his recent trip to Nepal in February 2018. There was no movement record of APs visiting Hong Kong in the past 10 years. There was no evidence to prove that SP, AP1 and AP2 were maintaining a family relationship in the situation.

8.2 In the initial applications, 3 screen capture of video chat between SW and APs were submitted as proof of communication. For the instant request, 8 more screen capture of video chats between SW and APs/SW’s sister … and some recent print-out text messages from social media covering the period in September 2016 ... Apart from these, there was no other record or proof of SP’s past communication with APs after he got married with SW in 2007. In the premises, it is hard to convince that there is reasonable proof to demonstrate the close family relationship between SP and APs since the marriage of SP and SW.

8.3 In the initial application, SP submitted 4 remittance receipts as proof of SP/SW’s financial support to APs with the earliest date on 5-11-2015. For this reconsideration request, SP, among other things, further submitted 3 fresh remittance receipts from SP to APs on 28-7-2016, 26-9-2016 and 31-7-2017; and 11 fresh remittance receipts from SW to APs on 29-10-2016, 8-11-2016, 25-11-2016, 30-12-2016, 22-2-2017, 21-3-2017, 22-3-2017, 3-4-2017, 6-10-2017, 25-10-2017 and 10-11-2017. After all, there is no proof of the financial support from SP to APs according to the submitted document and so far no reasonable proof of regular and continuous remittances to APs after SP married with SW in 2007. Based on all documents submitted and available information, it is hard to convince that SP had been all along supporting APs’ living throughout the period after SW had resided in Hong Kong in 2007.

9. AP1 and AP2 have been living in Nepal since they were born in 1998 and 1999. Among other things, it was revealed that they have been all along remaining in Nepal since SW got married with SP in 2007 and under the care of SW’s sister. This arrangement had suggested no hardship to the family as a whole as it had been lasting for over 10 years since SW left APs and resided in Hong Kong with SP. In this regard, [SW] or SP could continue to send overseas remittances to APs for their living and studying in Nepal. Under no favorable circumstances that could be seen there was any imminent need for APs’ coming to Hong Kong to join SP as her dependants.

10. Meanwhile, the grounds put forth by SP and SW viz. paragraph 5 were also considered. In Geofrey Hugh Alphonso & Sandra Mable Alphonso v Director of Immigration, HCAL 126/1999, 16 March 2000, in which the applicants were the step-sons of the sponsor, Burrell J gave that a family bond plainly existed between all children and their mother, but it cannot be said that the sponsor somehow inherited that bond for the purpose of proving a dependency by reason of this marriage. It has to be noted that this is not a family reunion application, for an application for entry under the venue of dependant policy, the essential elements are the ‘Dependency’ of APs on SP, which were failed to be demonstrated through the above assessment. Having regard to all the documents submitted and circumstances (including all supplementary documents and written representations in connection with the instant request for reconsideration), it is not satisfied that there is sufficient evidence showing a close family relationship among AP1, AP2 and SP being maintained throughout the period after SW resided in Hong Kong in 2007.

10.1 After all, the intimacy elements of dependency in the relationship among AP1, AP2 and SP are not convinced. There is no sufficient proof to show that APs have been all along relying on SP for maintenance, care and support and are otherwise unable to manage.

10.2 After careful consideration of all information made available and circumstances of this case (including all supplementary documents and written representations made for the instant request for reconsideration), there are no overwhelming humanitarian or compassionate grounds justifying exceptional consideration.

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Recommendation

12.  Having regard to all information and circumstances of this case, there is no justification warranting a reversal of the previous refusal decision. It is recommended that the refusal be maintained…”

10.In short, the Immigration Department was not satisfied that there was sufficient evidence showing a close family relationship between the Applicant and the Stepsons throughout the period after the Wife started to reside in Hong Kong in 2007, or that the Stepsons had been relying on the Applicant for maintenance, care and support.  The Immigration Department also considered that there were no overwhelming humanitarian or compassionate grounds to justify exceptional consideration of the Dependant Visa Applications.

11.On 13 June 2018, the Applicant applied for leave to apply for judicial review of the Director’s decisions contained in the said letters dated 8 July 2016 and 13 March 2018 respectively.  In the Form 86, the Applicant requested for an oral hearing of the leave application if leave was not granted on paper.  The Applicant acted in person at the time of the application, but was represented by Mr Rowan Hunter at the oral hearing of the leave application on 17 October 2019.

DISCUSSION

12.Three grounds of intended judicial review are raised in the Form 86, namely:

(1)  failure to provide reasonable or detailed reasons for the decision;

(2)  delay in making a decision on the Applicant’s application for reconsideration of the Dependant Visa Applications; and

(3)  breach of the Applicant’s rights under the Basic Law.

13.As stated by Mr Hunter in his Skeleton Submission dated 16 October 2019 and confirmed by him at the hearing on 17 October 2019, the Applicant abandoned Ground (2) in the Form 86 as being “untenable”, leaving Grounds (1) and (3) for consideration.

(i)  Ground (1) – reasons challenge

14.In so far as Ground (1) is concerned, Mr Hunter accepts that the Director was under no duty to give reasons for the decision to refuse the Dependant Visa Applications.  This acceptance, or concession, by Mr Hunter is rightly made (see Chu Woan Chyi v Director of Immigration, HCAL 32/2003 (23 March 2007), at paragraphs 62 to 64 and 71(v) per Hartmann J).

15.Mr Hunter argues, nevertheless, that reasons for the decision having been given by the Director, they are open to review by the court in the exercise of its supervisory jurisdiction in judicial review.  This submission is, I consider, correct in principle (see Robert Flickinger v Director of Immigration [1988] 1 HKLR 81, at 90F-G per Clough JA giving the judgment of the Court of Appeal).

16.When considering whether the reasons given by a decision-maker are sufficient or adequate in a public-law challenge, the following principles should be borne in mind.

17.First, the sufficiency of the reasons depends on the legal framework within which the decision is given, the context of the decision, as well as the nature of the issue(s) to be determined by the decision-maker.  Reasons can be brief and must be read with common sense.  In Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155, Stock JA stated that following:

“[97] Sound public administration requires that when reasons are required or are provided for an administrative decision, they should be clear as well as sufficient to the circumstances. The provision of adequate and clear reasons, where reasons are required by law, is a function of sound administration because transparency is more likely to promote confidence in public administration than is opacity, and also because the very requirement to provide clear reasons against the background of the particular issues raised itself encourages a disciplined approach to the issues at hand. But, most obviously, the requirement is based on fairness, so that the person or body adversely affected by a decision should have an adequate indication of the reasoning process, enabling him to know whether the decision-maker has addressed his grievance and whether there may be a basis for challenging the decision. So too clarity and sufficiency of reasons enable a supervisory court in judicial review better to assess the legality of a decision under challenge. See Fordham’s Judicial Review Handbook, 4thed., paras. 62.1.5 to 62.1.9.

[98]  What is sufficient will depend on the legal framework within which the body takes the decision and upon the case at hand. Sometimes a brief statement of reasons will suffice, because in context no more needs to be said. Sometimes, although the words employed in the reasons articulated might have been more clearly stated, a common sense approach in context of the reasons, or of the particular history, as a whole will readily reveal what was obviously intended and the courts should be loathe to permit scrutiny of reasons as if they constituted a statutory instrument. Reasoning must be examined with reality and contextual common sense. That said, where a real issue arises as to whether an allegedly material issue was or was not taken into account, or what was at the end of the day made of that issue by the decision-maker, the courts are entitled to expect the answer to be sufficiently clear from the evidence before it without having to resort to guesswork. That, so it seems to me, is the problem – in my judgment, the sole problem – with which the respondent is faced in this appeal.”

18.Second, the court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and avoid “over-judicialisation” of day-to-day administrative decision-making processes (see the general discussion by Sir Anthony Mason, NPJ in C v Director of Immigration (2013) 16 HKCFAR 280, at paragraph 81 to 82, on the limits of judicial review).

19.Third, a reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision (see Dembele Salifou v Director of Immigration, HCAL 44/2014 (22 April 2016), at paragraph 106(3) per Au J; Pagtama Victorina Alegre v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraph 227(3) per Au J).

20.When considering the sufficiency or adequacy of the reasons given by the Director in the present case, it is important to take into account the context of the decisions in question, namely, decisions made under the Director’s Dependant Policy, the contents of which are well known and well publicized.  The following is stated in the “Guidebook for Entry for Residence as Dependants in Hong Kong” published by the Director:

“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 dependant children under the age of 18; and

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

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

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

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

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

21.In relation to the Director’s exercise of discretion under the Dependant Policy, the following principles are well established:

(1)  The purpose of the policy is to “allow recognised categories of close family members to remain when they require the care and financial support of their sponsors in Hong Kong”.  “It is a policy founded on humanitarian principles that allows a family member, who is genuinely dependent for his or her maintenance, support and other requirements, emotional and material, on another member of the family to reside in Hong Kong with that member”, but it is “not a policy of family union” (see Dembele Salifou, ante at paragraphs 24 and 25).

(2)  “Dependency” is an essential element of the policy (see Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraph 16 per A Cheung J).

(3)  “[Dependency] describes a state of reliance upon somebody.  A dependant is somebody who must rely on another for maintenance, care and support, emotional and material, and is unable otherwise to manage” (see Christian Bulao Palmis v Director of Immigration, HCAL 2104/2001 (19 February 2003), at paragraph 25 per Hartmann J).

(4)  However, “the mutual emotional dependency that is to be found in genuine family affection is not of itself, and viewed alone, a form of dependency which falls within the Director's policy.  If it did then all demonstrations of genuine family ties and the desire to be together would on its own fulfil the necessary criteria.  That, in plain terms, would constitute a policy of family reunion not a policy of dependency” (see Christian Bulao Palmis, ante at paragraph 26).

22.An essential matter that the Applicant had to satisfy the Director for the Dependant Visa Applications was a genuine “dependency” relationship between the Applicant and the Stepsons as explained above.  This point would not have been lost to the Applicant’s Immigration Consultant.  As can be seem from M1 and M4, the Immigration Department had some doubts about the mother-and-son relationship between the Wife and the Stepsons, but more importantly the Immigration Department was not satisfied that there was a genuine dependency relationship between the Applicant and the Stepsons.  This was, in substance, the reason given for refusing the Dependant Visa Applications in the Immigration Department’s letter dated 8 July 2016 (“it is not satisfied that the applicants are your dependants and they are coming to the HKSAR to join your as your dependants”).  The reason given is not a mere statement of the conclusion, or decision, that the Dependant Visa Applications were refused. The refusal of a dependant visa application could be due to a number of reasons, one of which would be the failure to establish a genuine dependency relationship between the applicant-sponsor and the dependant sought to be admitted to reside in Hong Kong (as in the instant case).

23.While it is true that the Immigration Department’s letter did not set out its assessment or analysis of the relevant materials and evidence leading to the conclusion that the Applicant had failed to establish a genuine dependency relationship with the Stepsons, I do not consider that there is a duty on the part of the Director to do so.  This is not a case where a decision-maker is faced with a number of issues raised on behalf of a claimant or applicant which have to be resolved before a decision can properly be made.  In that sort of situation, the decision-maker’s reasons should address the issues raised and show how they are resolved (see Ng Wing Hung v Commissioner of Registration, HCAL 125/2006 (unreported, 4 July 2007), at paragraph 51 per Chu J, in addition to the judgment of Stock JA in Capital Rich Development Ltd quoted above).  In this regard, I note that in Dembele Salifou, the Director’s reason for refusing a dependant visa application was stated as follows:

“Under the existing immigration policy, a person may be allowed to come to the HKSAR to join his/her local spouse (the sponsor) as a dependant if it is satisfied, amongst other things, that the sponsor is able to support the dependant’s living in the HKSAR at a standard well above the subsistence level and provide him/her with suitable accommodation.

Having considered all information made available and all circumstances in this case, it is not satisfied that the sponsor is able to meet the aforesaid criterion. It is also not satisfied that there are sufficient justifications for our departure from the prevailing policy. Therefore, the application is refused.” (paragraph 7 of judgment)

24.There was similarly no analysis or assessment of the relevant materials and evidence which led to the conclusion that the sponsor in that case failed to show that he was able to meet the “financial sufficiency requirement” under the Dependant Policy.  Au J had, however, no difficulty in holding that the reason given by the Director was adequate (see paragraph 106 of judgment).

25.In any event, even if (contrary to the above conclusion) the reason given by the Immigration Department in the letters dated 8 July 2016 and 13 March 2018 is not sufficient or adequate:

(1)  The Immigration Department’s detailed reasons for refusing the Dependant Visa Applications can now be seen from the contemporaneous internal minutes, M1 and M4.  Mr Hunter has not advanced any submission to challenge the analysis or reasoning in those minutes, or suggested that the Applicant has some further materials or evidence which he can put forward to refute such analysis or reasoning.  In the circumstances, it is clear that the Applicant has not suffered any real or substantial prejudice as a result of the failure of the Director to provide an adequately reasoned decision.

(2)  For the same reason, it would be futile to quash the Director’s decisions and remit the matter to him for fresh consideration. The court should not, in the exercise of its discretion, grant relief in judicial review where it is clear that the outcome would inevitably be the same (see Dembele Salifou, paragraph 107).

(3)  There is an additional reason why the court should not quash the Director’s decisions and remit the matter to him for fresh consideration.  The Stepsons are now over the age of 18, and therefore fall outside the Director’s Dependant Policy.  It is clear that, on a fresh consideration, the Dependant Visa Applications will be rejected, there being no overwhelming humanitarian or compassionate grounds in this case to justify any departure from the well-established policy.

(ii)     Ground (3) – rights under Basic Law and Hong Kong Bill of Rights

26.Ground (3) can be dealt with shortly.  For this ground, Mr Hunter relies on HKBOR 19 and BL 37.

27.HKBOR 19 (rights in respect of marriage and family), so far as relevant, states as follows:

“(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2)  The right of men and women of marriageable age to marry and to found a family shall be recognized.”

28.BL 37 states as follows:

“香港居民的婚姻自由和自願生育的權利受法律保護 (The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law).”

29.In the Form 86, the Applicant also refers to HKBOR 1(1) and 20(1).  HKBOR 1(1) states as follows:

“The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

30.HKBOR 20(1) states as follows:

“Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”

31.The refusal of the Dependant Visa Applications by the Director is a decision based on the application of the Immigration Ordinance relating to the entry into and stay in Hong Kong as regards persons (ie the Stepsons) not having the right to enter and remain in Hong Kong within the scope of Section 11 of the Hong Kong Bill of Rights Ordinance.  Accordingly, as confirmed in the recent judgment of the Court of Final Appeal in Comilang v Director of Immigration (2019) 22 HKCFAR 59, Section 11 excludes reliance of rights contained in the Hong Kong Bill of Rights as well as cognate rights in the Basic Law by either the Applicant or the Stepsons in so far as the Director’s decisions to refuse the Dependant Visa Applications are concerned.

32.In passing, I should add that the second limb of BL 37 (“right to raise a family” (自願生育的權利)) is not concerned with “family” right in the sense as used in HKBOR 19.  In Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219, at paragraphs 54 to 58, A Cheung J interpreted Hong Kong residents’ right to raise a family in BL 37 as exempting them from “the one child policy” practised on the Mainland under Article 49 of the Constitution of the People’s Republic of China.  In Li Nim Han v Director of Immigration, HCAL 36/2011 (unreported, 14 November 2011), Lam J agreed with A Cheung J’s construction of BL 37.  This interpretation of the second limb of BL 37 was affirmed by the Court of Appeal in Comilang v Director of Immigration [2018] 2 HKLRD 534, at paragraphs 61 to 70.

33.For the above reasons, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  In view of Mr Hunter’s acceptance that the Applicant was seriously out of time in making the present application (see paragraph 5 of his Skeleton Submission dated 16 October 2019), and having regard to the court’s conclusion that the intended application has no merits, it is clear that the court should not grant any extension of time to the Applicant to apply for leave to apply for judicial review.

DISPOSITION

34.The application for leave to apply for judicial review is dismissed.

35.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Director should be paid his costs in this application, because (i) the application clearly lacks any substantive merits, (ii) an oral hearing was requested by the Applicant in the Form 86, (iii) the Director appeared at the hearing upon the court’s invitation and provided substantial and helpful assistance to the court, and (iv) the Applicant has effectively a hearing on the merits.  I therefore make an order that the Applicant shall pay the Director’s costs of resisting the present application, including the costs of the hearing on 17 October 2019, to be taxed if not agreed.

Mr Rowan Hunter, instructed by Choy Yung & Co, for the Applicant

Mr Sunny Li, SGC, of Department of Justice, for the Putative Respondent