H v. Director of Immigration

FAMV Nos. 415 of 2019 and 3 of 2020

[2020] HKCFA 34

FAMV No. 415 of 2019

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 415 OF 2019 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 5 OF 2017)

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FAMV No. 3 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 2020 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMP NO. 196 OF 2016)

___________________________

___________________________

(HEARD TOGETHER)

Appeal Committee: Chief Justice Ma, Mr Justice Fok PJ and Mr Justice Cheung PJ

Date of Hearing and Determination: 6 November 2020

Date of Reasons for Determination: 12 November 2020

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.These applications for leave to appeal to the Court of Final Appeal were initially heard by the Appeal Committee on 10 March 2020.  At that hearing, leave was granted to the applicant in each respective application to appeal on what were described as “the jurisdiction issues” raised in their cases.  These essentially related to whether or not they needed leave to appeal to the Court of Appeal against a first instance judge’s refusal of an extension of time for making the application where it was part and parcel of his decision to refuse to grant leave to make the application for judicial review itself.  In its judgment given on 19 June 2020 (with Reasons for Judgment handed down on 14 July 2020), the Court held that they did not.[1]

2.As a consequence, the matter came back before the Appeal Committee to consider whether to grant leave to appeal to the Court of Final Appeal on what have been described as “the substantive issues”.  At the conclusion of the hearing, we dismissed the applications for leave to appeal on the substantive issues and we now provide our reasons for doing so.

3.The “substantive issues” are broadly similar in both applications, which concern applicants who were denied visas under the Government’s Dependant Visa Policy. The circumstances in which the applicant’s respective dependant visa applications came to be rejected are, briefly, as follows:

(1)  In FAMV 415/2019:  The applicant, referred to as H, was born in Liberia in 1989 and, having fled that country for Ghana, arrived in Hong Kong via South Africa in 2004.  He overstayed in Hong Kong after the expiry of his limit of stay as a visitor.  In late 2006 he was arrested by the police for overstaying and referred to the Immigration Department.  He made a refugee claim with the local UNHCR office but this was rejected in January 2007.  A removal order was issued against H by the Director of Immigration (“the Director”) in February 2007 and H’s appeal against this was dismissed in March 2007.  He was released on recognizance in April 2007 and has remained in Hong Kong since then.  In June 2012, H married his wife, who is a Hong Kong permanent resident.  H’s wife’s application, as sponsor, for a dependant visa for H was refused by the Director on 8 October 2013, thereby leading to the judicial review proceedings the course of which is described in paragraph [6] of the Jurisdiction Judgment.

(2)  In FAMV 3/2020:  The applicant, referred to as AH, was born in Bangladesh in 1976 and came to Hong Kong in October 2006.  He overstayed beyond the limit of his stay as a visitor and, in October 2006, made a refugee claim to the UNHCR.  He surrendered himself to the Immigration Department in June 2007, whereafter he was charged with the offences of using a false travel document and making a false statement to an immigration assistant when seeking to enter Hong Kong. In June 2007, AH also made a torture claim.  In July 2007, he was convicted of the offences with which he was charged and sentenced to a term of imprisonment.  He was served with a Notice of Consideration of Deportation Order in December 2007 and released on recognizance in May 2008.  In February 2009, AH married his wife, a Hong Kong permanent resident and in July 2010 an application was made for a dependant visa for AH.  That application was rejected by the Director on 14 August 2012, thereby leading to the judicial review proceedings the course of which is described in paragraph [7] of the Jurisdiction Judgment.

4.In their respective applications for leave to appeal to the Court of Final Appeal now before us, four questions of law are raised by the applicant H and three questions of law are raised by the applicant AH.  For ease of reference, these are called Questions 2 and 3 (essentially common to both applications), and Questions 4 and 5 in applicant H’s case and Question 4 in applicant AH’s case.

5.Questions 2 and 3 concern the content of the Government’s Dependant Visa Policy (“the DV Policy”).  The thrust of the applicants’ contentions, underlying the two common questions, concern the true construction of the criterion known as the “no known record to the detriment of the applicant” (“the no record requirement”). Question 2 asks whether the no record requirement is a necessary eligibility criterion or merely a relevant factor to be considered by the Director. Question 3 asks whether the no record requirement covers only a “record of serious crime” or one that could raise a “security objection” (as contended for by the applicants) as opposed to a wider range of adverse record (as contended for by the Director).

6.We refused leave to appeal in relation to these questions for the following reasons.  The debate in relation to Question 2 arises because in two first instance decisions, Zervos J[2] and Chow J[3], held that the “no record requirement” is merely a relevant factor and not an eligibility criterion.  Those decisions were both reversed by the Court of Appeal’s decision in BI v Director of Immigration.[4]  The reasoning of the Court of Appeal on this issue is set out in its judgment at [67]-[90].  That reasoning is both cogent and convincing and we were not persuaded that it is reasonably arguable to the contrary, as the applicants suggested in their present applications.

7.The same applies to Question 3.  It was contended on behalf of the applicants that, in respect of the construction of the “no record requirement”, that the Legco Brief is an aid to construction of the policy since it is an executive statement to the legislature about the interpretation of a government policy. Reliance was placed on Adedoyin v Secretary of State for the Home Deparment,[5] Pokhriyal v Secretary of State for the Home Department[6] and R (Raza Shahid Syed) v Secretary of State for the Home Department.[7]

8.There is, however, no special rule of construction based on ministerial (or, in the case of Hong Kong, executive) statements.  The rules of construction are the same as in any other case.  The cases relied on by the applicants do not go further than confirming the uncontroversial proposition that an executive statement can be a relevant part of the context in which the words used to express the policy are construed: see, for example, Raza Shahid at [22] quoting from Mahad v Entry Clearance Officer[8] at [10].  In the latter case, Lord Brown of Eaton-under-Heywood in turn quoted from Lord Hoffmann’s opinion in MO (Nigeria) v Secretary of State for the Home Department[9] at [4] where he said:

“Like any other question of construction, this [whether a rule change applies to all undetermined applications or only to subsequent applications] depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.”

9.The DV Policy is to be found described in the Guidebook for Entry for Residence as Dependants in Hong Kong issued by the Director (“the Guidebook”), not the Legislative Council Brief: Immigration Policy on Entry of Dependants (June 2003) (“Legco Brief”).  The DV Policy is not determined by an underlying presumption in favour of family reunion.  Like other immigration policies in Hong Kong, it is a policy to be understood in the context of the overall highly restrictive immigration control policy formulated by the Government and administered by the Director on its behalf.  In the light of this strict immigration policy in Hong Kong, there is no suggestion that the Government’s DV Policy limits the types of adverse records that the Director may take into account in reaching his decision as to whether to exercise his discretion under the Dependant Visa Policy.  Of course, if the Director relies on a trivial record as being adverse to the applicant, this may be susceptible of being challenged on the basis of Wednesbury unreasonableness.  But that would be a fact sensitive issue in an individual case and does not arise here.

10.Questions 4 and 5 in FAMV 415/2019 concerning the Director’s refusal to accept the applicant’s Ghanaian passport as evidence of his identity were, in the particular circumstances of his case, fact sensitive.  We were not satisfied they were questions of law of great general or public importance justifying the grant of leave to appeal to the Court of Final Appeal.

11.We did not accept the contention of the applicant in FAMV 3/2020 that his Question 4, concerning the ability of a court to take judicial notice of policy statements made by Government bureaux before the Legislative Council for discussion, was engaged. AH had issued a summons seeking to introduce the Legco Brief into evidence but the Court of Appeal did not make a decision on that summons.  It was right that the applicant needed to introduce the Legco Brief by way of evidence because that document is dated June 2003, whilst the Guidebook relied upon has the reference ID(E) 998 (1/2012) indicating it is dated January 2012.  Without a proper evidential basis, it is not clear that the part of the Legco Brief relied upon is addressing the relevant contemporaneous wording of paragraph 5(b) of the Guidebook setting out the “no record requirement”.

12.It was contended by the applicant, in his written reply submissions, that the Legco Brief is relevant as an executive statement as to the interpretation of the Dependant Visa Policy but, for the reasons explained above, we were not persuaded it is reasonably arguable that the policy is to be construed by reference to the Legco Brief rather than the Guidebook. 

13.Accordingly, the applications for leave to appeal were dismissed and, after hearing the parties on the question of costs, we reserved our decision on costs.  Although the Director was successful in opposing the applications for leave to appeal overall, he was unsuccessful in opposing leave to appeal on the jurisdiction issues on 10 March 2020 and in the substantive appeals on those issues.  The costs of the substantive appeals in FACV 1/2020 and FACV 2/2020 have been dealt with separately by the Court, with the costs of the leave applications leading to those appeals being reserved by the Court pending the determination of the remaining issues in these leave applications.  The Appeal Committee’s present decision is limited to the costs of the leave applications relating to the substantive issues. 

14.Clearly, the costs of the hearing today should be paid by the applicants to the Director.  An apportionment of the remaining costs of the leave applications is appropriate in light of the different outcomes on the issues raised.  Both the applicants and the Director contended for a proportion of the costs of the two respective parts of the leave applications in their favour.  The applicants sought 60% of their costs of the leave applications leading to FACV 1/2020 and FACV 2/2020 and of the hearing on 10 March 2020 (which would be an order for the Court to make rather than the Appeal Committee).  The Director, for his part, sought 50% or 60% of the costs of the hearing on 10 March 2020, contending that, without success in the leave applications on the substantive issues, there should be no positive costs order in favour of the applicants in relation to the jurisdiction issues.  And, on the contrary, in view of the ultimate failure of the applicants to obtain leave to appeal on the substantive issues, and thereby failing to overturn the decisions made against them by the lower courts in the judicial review applications, it is they who should pay some of the Director’s costs.

15.The costs of the leave applications relating to the jurisdiction issues and the hearing of 10 March 2020 are for the Court.  However, so far as the costs of the leave applications on the substantive issues are concerned, which are a matter for us, we consider that there should be no order as to costs (save for the costs of the hearing today).  In so deciding, we take into account the fact both parties have succeeded to a certain extent in the leave applications as a whole. 

16.We therefore order, in respect of the leave applications in FAMV 415/2019 and FAMV 3/2020 in respect of the substantive issues that: (i) the costs of today’s hearing be paid by the applicants to the Director; (ii) there otherwise be no order as to costs as between the parties; and (iii) the applicants’ own costs be taxed in accordance with the Legal Aid Regulations.  It will remain for the Court to make an order on the reserved costs of the leave applications leading to the appeals in FACV 1/2020 and FACV 2/2020.

FAMV 415/2019

Mr Philip Dykes SC and Mr Timothy Parker, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the Applicant (“H”)

Mr Jonathan Chang SC and Mr Harrison Miao, instructed by the Department of Justice, for the Respondent

FAMV 3/2020

Mr Philip Dykes SC and Mr Geoffrey Yeung, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the Applicant (“AH”)

Mr Jonathan Chang SC and Mr Harrison Miao, instructed by the Department of Justice, for the Respondent