Marsini v. Director of Immigration

HCAL 468/2022

[2022] HKCFI 3026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 468 OF 2022

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Before:  Hon Coleman J in Court

Dates of Hearing:  30 September 2022

Date of Decision:  21 October 2022

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D E C I S I O N

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A.  Introduction

1.The Applicant, an Indonesian, worked as a foreign domestic helper (“FDH”) in Hong Kong from late 2002. In November 2019, she met the man who later became her husband (“Husband”), a Pakistani national and Hong Kong resident not subject to any limit of stay. They married on 22 May 2020. The Applicant terminated her FDH contract in October 2020, and on 9 October 2020 submitted an application for extension of stay and change of status as a dependant of the Husband. That application was rejected, twice, on the basis that the Director of Immigration (“Director”) was not satisfied that their matrimonial relationship is genuine.

2.By her Form 86 dated 10 June 2022, the Applicant seeks to challenge two decisions, being:

(1)  the decision of the Director dated 18 June 2021, refusing her application for a dependent visa (“1^st Decision”); and

(2)  the decision of the Director dated 4 April 2022 refusing (a) her application for reconsideration of the 1^st Decision, and (b) her request for disclosure (“2^nd Decision”).

3.On 15 June 2022, I gave directions for the filing of evidence, and for a rolled up hearing of (i) any necessary application for extension of time, (ii) the application for leave to apply for judicial review, and (iii) the substantive application for judicial review. The hearing date was subsequently fixed for 30 September 2022.

4.At the hearing, the Applicant was represented by Ms Denise Souza of Counsel, and the Director was represented by Ms Hikki Wong, Senior Government Counsel, and Mr Jack Wong, Government Counsel.

5.At the end of the hearing, I reserved my decision. This is my Decision.

B.  The Impugned Decisions

6.The Applicant had been in continuous employment as a FDH in Hong Kong from November 2002, until she terminated early her most recent contract on 21 October 2020. She says she terminated her contract because she wanted to live with the Husband (which would otherwise have been a breach of her live-in requirements under the FDH contract). She also says that it would not have been appropriate, on their own religious beliefs, for her to have lived with the Husband without having married.

7.The Applicant had met the Husband in early November 2019, and they had become engaged to be married by the end of 2019. They were married in Hong Kong on 22 May 2020.

8.The Applicant’s limit of stay for the purposes of her employment as a FDH was last extended until 26 November 2020, or two weeks after termination of contract, whichever was earlier. As a result of the early termination of her contract on 6 October 2020, the limit of stay expired on 20 October 2020. Further, as a result, the Applicant then became financially dependent on the Husband (and, indeed, the Applicant says she became both financially and emotionally dependent on him).

9.By a Dependant Visa Application form dated 21 September 2020, but submitted via the Applicant’s then legal representative on 9 October 2020, the Applicant applied to take up residence in Hong Kong as the Husband’s dependant. She also sought an extension of stay on the basis of her change of status from FDH to dependant.

10.In support of the Dependant Visa Application, the Applicant submitted (amongst other things) a joint statement of her and the Husband dated 12 November 2020, detailing the course of their relationship and marriage. She also submitted a series of photographs of herself and the Husband.

11.Under the policy governing the entry arrangement for persons who wish to enter Hong Kong for residence as dependants (“Dependant Policy”), the sponsor’s spouse may apply to join him or her for residence in Hong Kong. Under the Dependant Policy, an application for entry for residence as a dependant may be favourably considered if the applicant meets the normal immigration requirements as well as all the following eligibility criteria: (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 Hong Kong.

12.For the purposes of this case, the focus is on the first eligibility criterion (where there is no dispute that the other two criteria were met). I will return below to the proper meaning of the Dependant Policy and the first eligibility criterion.

13.The Immigration Officer Mr Ma Hoi Ki (“Mr HK Ma”) assigned to handle the Dependant Visa Application considered that, as part of his assessment of the genuineness of the matrimonial relationship between the Applicant and the Husband, interviews with them separately were needed. It is accepted that such an interview is not routine in every case. Although Mr HK Ma did not say in his evidence why he considered that separate interviews were needed in this case, it seems to be a reasonable assumption that he had at least doubts, if not suspicions, as to the genuineness of the matrimonial relationship.

14.On the other hand, it is said on behalf of the Applicant that there was nothing inherently suspicious in the circumstances, as she did not need the Husband’s status for her to work in Hong Kong. Indeed, she had been working in Hong Kong for many years, and even continued to work for another six months after their marriage. She only needed a Dependant Visa if she wished to live with the Husband, as living with the Husband would necessarily be a breach of the ‘live-in’ requirement of her FDH visa – and ceasing to ‘live-in’ would necessarily end her FDH employment, and she would be unable to work, making her dependent on the Husband with whom she wished to live.

15.On 16 June 2021, the Applicant, accompanied by her legal representative, was interviewed by Mr HK Ma with the assistance of a certified Indonesian interpreter. The interview lasted a little over one hour. Prior to the commencement of the interview, the Applicant signed a document which acknowledged:

I understand that in order to assess the matrimonial relationship between me and my spouse, we shall be interviewed separately. I know that I have to answer the following questions carefully as any discrepancy in our answers may affect my/my spouse’s application for residence. I understand the language spoken by the interpreter.

16.Towards the end of the interview, the Applicant signed on a document in which she declared, amongst other things, that she understood the contents of the interview and had no additional information for the interview.

17.Also on 16 June 2021, the Husband, accompanied by his legal representative, was interviewed by Mr HK Ma with the assistance of a certified Urdu interpreter. Again, the interview lasted a little over one hour. The Husband also similarly signed the acknowledgement and declaring documents as had been signed by the Applicant.

18.During the interviews, the Applicant and the Husband were each asked a list of questions regarding their first acquaintance, dating details, wedding arrangement, wedding rings, their employment and family background, and so forth. In the evidence of Mr HK Ma filed for the Director, it is said that those questions are supposed to be able to be answered consistently by a couple in a genuine matrimonial relationship, though it is not intended to be a memory test.

19.I understand that, despite the fact that there was a legal representative (the same one) present with the Applicant and the Husband during the two interviews (together, “Interview”), no note was made by that legal representative of anything said during the Interview. This is perhaps surprising, and where it seems unlikely that any specific legal advice was likely necessary or given (though I do not know whether the legal representative was in fact actually legally qualified, or was a clerk or other assistant), it might be asked what other purpose the legal representative had in being present.

20.After the Interview, Mr HK Ma tabulated the answers given into a report (“Interview Report”). The use of the phrase “tabulated the answers” suggests that Mr HK Ma had, as might be expected, made some notes during the Interview, the content of which he later put into the table. However, whether or not there were any contemporaneous notes made by him, none have been disclosed.

21.In the tabular comparison of answers provided by the Applicant and the Husband respectively, their responses were marked either as “Matched”, “Partly” or – if there were major discrepancies or totally different answers – “Unmatched/Others”. As reflected in the Interview Report, various discrepancies between the oral answers were noted, for example particulars of (i) the Husband’s proposal; (ii) wedding arrangement; (iii) wedding rings; and (iv) the Husband’s employment details, and so forth.

22.After his consideration of the Dependant Visa Application, MHK recommended its refusal through an internal minute (“1^st Minute”). On 18 June 2021, the supervising officer endorsed Mr HK Ma’s recommendation.

23.The 1^st Minute is set out under headings, being ‘Record Check’, ‘Matrimonial Relationship’, ‘Sponsor’s Financial Standing’, and ‘Consideration and Recommendation’. The part of the 1^st Minute relating to the ‘Matrimonial Relationship’ of the Applicant and the Husband was as follows:

4. A written account on acquaintance and some marriage/daily photos of Applicant and Sp(H) were submitted at encl. (20) and (18).

5. In order to further examine the matrimonial relationship between applicant and Sp(H), a separated interview was conducted on 16-06-2021 in the presence of a certified Indonesia interpreter (Applicant), a certified Urdu interpreter (SP(H)) and also Applicant and SP(H)’s legal representative. To highlight, there were major discrepancies between the statements provided by Applicant and SP(H) regarding their first acquaintance, dating details, marriage details, etc. There were also other discrepancies on last meeting before today, sponsor’s full-time job, sponsor’s family, etc. Despite ample opportunities were given to clarify the discrepancies with further questioning, they were still unable to provide reasonable explanations on the discrepancies. Please refer to the interview report at encl. (41) for details.

24.The part of the 1^st Minute relating to ‘Consideration and Recommendation’ was as follows (underline and bold in original):

10. After considering all the available information and circumstances as stated above, it is not satisfied that the matrimonial relationship between Applicant and Sp(H) is genuine. I recommend refusing the current C/S(DH-DE) application. The draft refusal letter is attached at float for your perusal.

25.The refusal was notified in the Director’s letter dated 18 June 2021, i.e. the 1^st Decision. The letter refers to the three eligibility criteria, and simply states (underline and bold in original) that:

Having carefully considered all the available information and circumstances of your case, we are not satisfied that all the above eligibility criteria are met. Therefore, we regret to inform you that your application is refused.

26.It was perhaps less than helpful that the notification of the 1^st Decision failed to identify which of the eligibility criteria had not been met. But it fairly quickly became clear that the relevant criterion was that relating to reasonable proof of the genuine relationship between the Applicant and the Husband.

27.On 25 June 2021, the Applicant’s solicitors notified the Director that they had instructions to submit an application for reconsideration of her application. For that purpose, they sought the minutes of the refusal, and made data requests.

28.The immigration officer assigned to handle the data access requests was Mr Ma Kar Chun (“Mr KC Ma”). In response to the first data request, Mr KC Ma provided a list of documents by letter dated 19 August 2021, which informed that the documents ready for collection. It seems that is how the Applicant was provided shortly afterwards with a redacted copy of the 1^st Minute.

29.As an un-redacted copy of the 1^st Minute has been provided for the purposes of evidence in these proceedings, it is now possible to work out that one of the reductions, at the end of §5, was “Please refer to the interview report at encl (41) for details”. Presumably, the redaction was made so as to avoid disclosure of the Interview Report by reference.

30.Subsequently on 23 September 2021, both Counsel and solicitors for the Applicant sought disclosure of (1) the questionnaire/list of questions put in the Interview; (2) answers given by the Applicant and the Husband in the Interview; and (3) more details on the discrepancies perceived in the answers. The stated purpose of the request for those documents (“Requested Documents”) was to allow the Applicant properly to process and be advised upon her reconsideration application. The relevant data access request forms pursuant to section 18 of the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”) were enclosed.

31.By letter dated 2 November 2021, the Director informed the Applicant and the Husband that he had “no personal data the existence of which he is required to disclose to [them]”.

32.Mr KC Ma has explained in his evidence filed for these proceedings that this data request was refused on the basis that the disclosure of the Interview Report would reveal the Director’s line of questioning and investigation in similar cases and therefore cause prejudice to ImmD’s future enforcement action and discharge of functions. ImmD has sought to rely on the exemptions in the PDPO under section 58(1)(d) and section 58(f)(i). Section 58(1)(d) relates to the prevention, preclusion or remedying of unlawful or seriously improper conduct, or dishonesty or malpractice by persons. Section 58(1)(f)(i) relates to ascertaining whether the character or activities of the data subject are likely to have a significantly adverse impact on any thing to which the discharge of statutory functions by the data user relates.

33.On 11 January 2022, the solicitors for the Applicant submitted her application for reconsideration of her intended change of status and extension of stay. The solicitors’ letter included, amongst other things, a letter from Counsel which also asked for reconsideration of the application, and reiterated the need for disclosure, or at least some particulars of why the previous answers given were deemed inconsistent or unsatisfactory. Counsel also stated that the Applicant would be willing to furnish such details and documents as the Director might consider necessary, and that she would be willing that there be a home visit to assess the genuineness of her relationship with the Husband. Counsel suggested that if the Director did those things, he would come to understand that they have a real marriage and that the Applicant is deserving of a Dependant Visa.

34.Mr HK Ma considered the request for reconsideration in an internal minute dated, by him, 21 February 2022 (“2^nd Minute”). The 2^nd Minute noted that this was a first request for reconsideration, and was set out under the headings ‘Application History’, ‘Document(s) Submitted’ and ‘Consideration and Recommendation’. The section on ‘Document(s) Submitted’ is set out in tabular form identifying which document had been submitted and whether it was considered to constitute “New Grounds / Fresh Information Raised? (“Yes” or “No” – please elaborate for “No”)”. All of the documents submitted were described by Mr HK Ma using the following formula:

No. … This information does not constitute new grounds [or fresh information] for warranting a reversal of the initial refusal decision.

35.The ‘Consideration and Recommendation’ section simply stated (underline and bold in original):

Without new matters raised, it is recommended to refuse this request for reconsideration and the refusal letter was prepared at float for your perusal.

36.Mr HK Ma’s recommendation was endorsed by two more senior officers on 25 February and 25 March 2022.

37.In passing, I would note that there are two possible interpretations of what is meant by the concept of refusing a request for reconsideration: either (1) there will be no reconsideration, or (2) upon reconsideration, there is no change to the initial decision. Despite any possible confusion, I think the 2^nd Minute as a whole identifies that Mr HK Ma did accept the request for reconsideration in the sense that he did engage in a reconsideration, but upon that reconsideration he considered that there were no new materials as would warrant changing/reversing the initial decision.

38.By letter dated 4 April 2022, the request for reconsideration was refused on the basis that “no new matters have been raised for the reconsideration”.

39.Thereafter, by letter dated 8 April 2022, the Applicant’s solicitors submitted a data access request seeking minutes of the refusal of the request for reconsideration and all documents/information submitted by the Applicant for the request for consideration. Mr KC Ma was again assigned to handle that request. Following an interim reply on 12 April 2022, a substantive reply to the request was sent on 5 May 2022, informing the Applicant and the Husband to collect the requested documents and enclosing the list of information and documents containing the personal data of the Applicant and the Husband. Amongst the documents provided was a redacted copy of the 2^nd Minute.

40.The Interview Report itself was only disclosed as part of the evidence in these proceedings. In her second affirmation, the Applicant has offered a reply to the alleged inconsistencies identified in the answers deemed “Partly” matched and “Unmatched”. Amongst the points made by her are that, during the Interview, the Applicant and the Husband were asked factual questions and expected to answer questions in a test like format, and were not asked to elaborate or provide a narrative about the relevant incidents. Hence, the Applicant believes that some of the answers are wrongly considered as inconsistencies due to misunderstandings arising from the questions, or due to underlying assumptions in the questions. To illustrate this point, the Applicant has provided some comments and further information on the answers supposedly provided by her and the Husband in the Interview Report.

41.As I understand it, those comments and information are not provided by way of invitation to the Court to decide whether the discrepancies were sufficiently major to justify the 1^st Decision. Rather, they have been provided to identify that the Applicant was able to respond to the suggestion that there were major discrepancies – and would have been in a position to do so earlier had the opportunity been afforded to her within the process of the consideration of her Dependant Visa Application.

C.  The Dependant Policy

42.The Dependant Policy is to be found in in the “Guidebook for Entry for Residence as Dependants in Hong Kong” published by the Director. Relevant for present purposes are the following paragraphs:

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.

43.In relation to the Director’s exercise of discretion under the Dependant Policy, the following principles are well established – see, for example, Rai Rajendra Kumar v Director of Immigration [2019] HKCFI 2579 at §21. In summary:

(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.

(2)  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.

(3)  “Dependency” is an essential element of the policy.

(4)  “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.

(5)  This is sometimes shortened to the concept that the dependant person (applicant) is “financially and emotionally dependent” on the other person (sponsor).

(6)  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. First, I shall assume that dependency relevantly means, as stated in various previous cases.

44.The separate interviews sought to assess the matrimonial relationship between the Applicant and the Husband. It was the perceived lack of a genuine matrimonial relationship that led to the recommendation of refusal in the 1^st Minute. But, on its face, the language of “genuine matrimonial relationship” is not a direct match for any of the eligibility criteria of the Dependant Policy. Whilst §3 of the Guidebook refers to “spouse”, §5(a) refers to “genuine relationship”, I do not think either criterion simply translates to “genuine matrimonial relationship” in the sense as perhaps used by the Director.

45.Of course, it is not the Director’s case that the Husband was not the spouse of the Applicant within the meaning of §3. In law, marriage is a legal status, capable of being obtained by a valid registration under the law, and there is no such thing as a non-genuine spousal relationship. Therefore, it was the eligibility criterion in §5(a) – namely that there is reasonable proof of a genuine relationship between the applicant and the sponsor – which the Applicant is said to have failed to meet.

46.As to what is meant by that first eligibility criterion under §5 of the Dependant Policy, Ms Wong seemed to draw a distinction in her submissions between the genuineness of the relationship and the question of dependency. As she put it, if the Director is not satisfied that there exists (in this case) a genuine matrimonial relationship between the Applicant and the Husband, the element of dependency does not come into play. I am not sure that that is quite correct.

47.Looking at the three separate criteria logically: the first is to consider whether there is a true relationship of dependency; the second is to consider whether there is anything about the applicant’s character which should preclude the grant of a visa; and the third is to consider whether the sponsor in fact has the means adequately to support the person who is said to be dependant on him/her.

48.On that basis, it seems to me that the first criterion is looking at whether there is genuine dependency which arises from the relationship asserted. That is why the relevant question is whether there is a genuine relationship of dependency: the applicant asserts eligibility for a dependant visa because the applicant’s dependency arises in the context of the particular relationship said to exist between the applicant and the sponsor – where that relationship can be shown to fall within those set out in §3 of the Dependant Policy.

49.For example, in this particular case, the Applicant might say that she is obviously now dependant on someone else, because she has ceased her own employment and is therefore otherwise unable to support herself. Where she can no longer depend on her own income, she must depend on someone or something else. The question which arises on the first eligibility criterion is whether the Applicant – previously independent – has made herself genuinely dependant on the Husband because they are in a matrimonial relationship. That question may involve an assessment as to whether it is actually the matrimonial relationship which has given rise to or explains the claimed dependency.

50.The ultimate question the Director has to answer is whether there was reasonable proof that the Applicant truly intended to live as the Husband’s dependent in Hong Kong, relying on him for maintenance, care and support. The lack of qualities that one would usually expect from a “genuine matrimonial relationship” might be an indicator pointing to the lack of a true intention to live as the spouse’s dependant. But the strength of such an indicator depends on the circumstances of each case.

51.Sometimes it is the financial needs which explain the marriage. The Director would be familiar with dependent visa applications from more traditional societies where the marriage might have been arranged and a woman is practically incapable of drawing financial support other than from her husband. In such a case, one may not see the lack of, say, romantic bonds, as a strong indicator pointing to the lack of true dependency. But sometimes, it is the marriage which explains the dependency. A working woman in modern society may choose to cease her employment and become a full time housewife in order to establish a family with her husband. In this case, the lack of romantic bonds would lead to the natural query as to why the wife would choose to make herself financially dependent on the husband in the first place.

52.So, whilst the genuineness of a spousal relationship in the layman sense may point towards the existence of a genuine relationship of dependency, they are different things. From an administrative or policy perspective, it is also far more sensible to leave genuineness as a requirement of the relationship of dependency, rather than (say) to the spousal relationship. The risk of abuse is guarded against by the focus on the requirement for genuineness of the relationship of dependency.

D.  The Intended Grounds of Review

53.There are two intended grounds of review:

(1)  Ground 1: The Director’s refusal to disclose the record of the Interview and/or any particulars pertaining to the finding that there were “major discrepancies” in answers provided by the Applicant and the Husband in the Interview is procedurally unfair, and/or constitutes a failure to provide adequate reasons.

(2)  Ground 2: The Director’s finding that the Applicant and the Husband do not have a genuine matrimonial relationship was based entirely on answers provided in the Interview, and did not properly take into account other evidence which served as proof of their genuine matrimonial relationship and dependency. There is accordingly a failure to take into account relevant considerations and/or the Director’s finding is Wednesbury unreasonable and irrational.

54.I will deal with each of the Grounds in turn.

E.  Delay

55.But, it is first appropriate to address the question of timing, not least where Ms Wong placed considerable weight on what she described as the inordinate delay in initiating the intended challenge, and where she says the Applicant has provided no good reason for extending time.

56.The principles applicable to an extension of time in the public law field are well-settled: see, for example, AW v Director of Immigration [2016] 2 HKC 393 at §27. In summary:

(1)  The court should scrutinise with care any delay in making an application, but the provisions of Order 53 rule 4(1) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behave sensibly and reasonably of relief to which he is otherwise entitled.

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

(3)  What may constitute a good reason for extending time cannot be defined. It is a multifaceted question, the odds to which will depend upon the circumstances of the particular case. But the factors which are likely to be of significance include (a) the length of the delay; (b) the explanation for the delay; (c) the merits of the substantive application; (d) the question of prejudice, which has two sides; and (e) whether the application raises questions of general public importance, which might have to be resolved by the courts in any event.

57.The relevant chronology in this case is, of course, set out above. The 1^st Decision was communicated to the Applicant on 18 June 2021, but the intended challenge was commenced by the Form 86 only on 13 June 2022. If focus is on the 1^st Decision, that was nine months after the three-month statutory time limit had expired. The 2^nd Decision was communicated on 4 April 2022. If focus is on the 2^nd Decision, the Form 86 was issued within the three-month time limit provided for in Order 53.

58.For the Applicant, Ms Souza submits that the 2^nd Decision, being the decision refusing the reconsideration application and further request for disclosure of requested documents, is the final and substantive decision to be challenged by judicial review, so that time should run from 4 April 2022. She points to the facts that:

(1)  upon receipt of the 1^st Decision, the Applicant promptly engaged solicitors and Counsel to pursue a reconsideration of the Defendant Visa Application, and to seek disclosure for that purpose; and

(2)  the Applicant attempted alternative avenues of challenging the 1^st Decision, by seeking the reconsideration which culminated in the 2^nd Decision.

59.Ms Souza also submits that, even if it is considered that time should run from the 1^st Decision, an extension of time is warranted on the applicable principles because:

(1)  the delay was caused by the Applicant’ as pursuit of an alternative avenue of challenging the 1^st Decision by applying for reconsideration;

(2)  the Applicant acted expeditiously in pursuing that application, and these proceedings once that application was determined;

(3)  the data access requests were properly made, and the materials which were obtained were properly the subject of consideration and legal advice, and the completion of the receipt of material was not until 11 May 2022;

(4)  there is merit in the substantive application;

(5)  there is no or no undue prejudice to public administration if the challenges allowed to proceed out of time, whereas there may be prejudice to the Applicant as the challenge is concerned her ability to take up residence in Hong Kong with the Husband; and

(6)  the challenge raises questions of general public importance, concerning the manner in which dependency is to be construed in the context of the Policy, and the extent of the Director’s disclosure obligations when processing applications of the nature of the Dependant Visa Application.

60.For the Director, Ms Wong acknowledges that a challenge to the 2^nd Decision was brought in time, but she submits that the time must run from the 1^st Decision, and time cannot be enlarged simply because there was a request for reconsideration which led to the 2^nd Decision. She relies on the settled propositions that:

(1)  grounds for challenging a decision first arise when it is made, not when the decision-maker is simply asked to give detailed reasons or to reconsider them;

(2)  the Court will not permit an applicant to ‘resurrect’ an old decision, simply by asking the decision-maker to reconsider the application, and thereby artificially bring himself within time by relying on the reconsideration decision.

61.Ms Wong says there is no reason why the Applicant could not have made a judicial review application was the same time seeking a reconsideration. Ms Wong also submits that the offered reasons for the delay have no validity, essentially because they seek to avoid the consequences of these two propositions. She points to the fact that, as she submits, the Applicant had sufficient information to make the challenge, not least as regards Ground 1 as it is now advanced, and that the 1^st Minute (albeit redacted) had been provided by around 19 August 2021, so that time could not run from a date later than that.

62.As to Ms Souza’s intended reliance on the Lantau International School case (see below), Ms Wong submits that the case is distinguishable. This is because the Applicant must have known throughout what she and the Husband had said during the Interview (including because the same legal representative was present when both the Applicant and the Husband were separately interviewed) and so time was running.

63.Further, Wong submits, none of the proposed grounds are reasonably arguable; there would be prejudice because unjustifiable delay in challenging immigration decisions is detrimental to the administration of effective immigration control in Hong Kong; and there is no question of general public importance in the absence of any systemic challenge and where the legal principles surrounding the eligibility criteria of the Policy and its assessment are well-established.

64.First, I would express full agreement with the proposition that it should not be open to an applicant artificially to extend time by seeking a reconsideration of a decision, where time for making a direct challenge to that decision has expired. The Court will indeed carefully scrutinise the facts to ensure that form of what is in effect an abuse of the time limit set by the rules will not avail the tardy applicant. Indeed, any willingness shown by the Director to entertain a request for reconsideration should not be taken as a ‘green light’ to ignore the time limit set by the rules of the automatic resetting of the date from which any time will run.

65.Secondly, in most cases, it is perhaps possible and convenient to deal with the question of delay and/or extension of time in one separate section. However, in this case, it seems to me that the question of whether or not there has been delay, and if so how much delay, is intricately wrapped up in the merits of the intended grounds of review. In other words, the approach to delay cannot be separated from a review of the merits of the grounds – and this is not a case where the merits are merely one of the factors to take into account.

66.For those reasons, I think it better to return to the question of delay and any possible extension of time, if it would be necessary, after addressing the wider merits of the challenge.

F.  Ground 1

F.1  Ground 1 has two elements

67.Ms Souza says that this Ground targets the Director’s failure and refusal to disclose the Requested Documents in the process of reaching the 1^st and 2^nd Decisions, which she submits is procedurally unfair and/or amounts to a failure to give adequate reasons for refusing the Applicant’s Dependant Visa Application.

68.It may, therefore, be convenient to separate that compound Ground into its two elements: (1) procedural unfairness arising from failure to disclose, and (2) failure to give adequate reasons.

F.2  Procedural Unfairness

69.The principles applicable on a complaint of procedural unfairness for non-disclosure of information, documents or material adverse to an affected person are well settled. I made recent reference to them in Lantau International School Ltd v Secretary of Education [2022] HKCFI 774 at §§82-83. The principles can be summarized as follows:

(1)  The requirement of disclosing adverse documents or information to the affected person is related to the right to be heard. The right to be heard is worthless if the person involved does not know in adequate form what is being said against him.

(2)  Disclosing adverse documents or information is to allow that person to make meaningful and focused representations to address the case against him. The heart of a fair procedure is that the affected person should have a reasonable opportunity to respond to the adverse materials against him.

(3)  However, the extent of what fairness demands depends on the context of each case. The scope of disclosure to the affected person of any adverse materials depends on the statute that creates the discretion, the prima facie relevance, credibility and significance of the evidence or the materials to the decision to be made, the nature of the relevant decision and its objective significance to the affected person, the existence of countervailing factors against disclosure, etc.

(4)  The standards of fairness are not immutable, and they may change with the passage of time, both in the general and in the application to decisions of a particular type.

(5)  Similarly, principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(6)  Further, where the case involves administrative decision-making, that necessarily informs the relevant consideration in context

(7)  Whether there exists a duty of explicit disclosure of the substance of the matters on which the decision-maker intends to proceed is necessary, and how far it goes and how far it should be performed, depend entirely on the circumstances of the individual case.

(8)  Insofar as there is a tension between the principal of fairness that a party should have an opportunity to answer adverse material and any contrary impulse towards confidentiality of sensitive personal information, that tension is to be resolved by the Court according to the circumstances of the individual case.

(9)  However, it should be emphasised that the consideration is not whether the person would be better off with the disclosure of the further information sought, but whether the procedure adopted by the decision-maker was actually unfair.

70.Ms Souza submits that, applying the principles:

(1)  The Requested Documents constitute adverse documents or information which should, as a matter of fairness, be disclosed to the Applicant. They contain details and particulars of purportedly inconsistent answers provided that the Interview, and a fair procedure requires that the Applicant be informed of the basis of the Director’s case against her, and the reasons for his finding that the Applicant and the Husband do not have a genuine matrimonial relationship.

(2)  The Applicant’s consideration of the Requested Documents is critical to her ability to make meaningful representations in the request for reconsideration, and to review whether the Director’s findings have been fairly and properly made. Hence, the Requested Documents are of relevance and significance to the decision.

(3)  Indeed, upon the disclosure of the Interview Reporting these proceedings, the Applicant has been able to provide preliminary comments and explanations on answers that were deemed inconsistent by the Mr HK Ma.

(4)  But, the Interview Report merely contains a summary of his understanding of their answers in the Interview. It is not a record of the questions and answers, but the unilateral record of the interview which has not been confirmed or adopted by the Applicant and the Husband.

(5)  It is not clear from the Interview Report how the Applicant and the Husband were (as asserted in the reasons for refusal) given “ample opportunities … to clarify the discrepancies with further questioning”, or why such explanations were not considered reasonable. Mr HK Ma’s description of the Interview procedure does not suggest any such opportunity was given to the Applicant and the Husband.

71.On that last point, Ms Souza submits that, where the Applicant was interviewed first, obviously no document or information could have been put to her on the basis that what was said subsequently by the Husband identified actual or potential discrepancies. Yet, the very statement that “ample opportunities” were given to clarify discrepancies with further questioning is an implicit acknowledgement of the entitlement of the reasonable opportunity to explain discrepancies. Ms Souza says that implicit acknowledgement is correct in light of the gravity of the allegation made against the Applicant in this case (in essence, that the marriage to the Husband is a sham for immigration visa purposes).

72.By reference to the Lantau International School case at §91, Ms Souza submits that it cannot be right that the Director should be allowed (1) to rely on the material identifying the discrepancies, which is taken as adverse to the Applicant, and yet (2) to insist that there is no requirement to disclose that material to the Applicant in any form.

73.As to any countervailing factors against disclosure, Ms Souza notes that no reasons seeking to justify non-disclosure were given at the time – and the statutory grounds have only been mentioned after commencement of these proceedings – and the contemporaneous documents now disclosed do not provide adequate reasons for non-disclosure. Further, any prior concern about disclosure appears to have gone, now that the Interview Report has been disclosed, which suggests it could and should have been disclosed before.

74.Ms Wong submits that, particularly weighing the needs to prevent prejudice caused to enforcement action, fairness did not demand a wider scope of disclosure (or reasons, see below). The Applicant was not prejudiced because she and the Husband had ample opportunities to voice concerns during or after the interviews, where the interview for each of them lasted approximately one hour and was attended by their common legal representative. Further, the Applicant and the Husband (and their legal representative) must have known what they said in the Interview, and when told that there had been discrepancies they must have been able to work out what was discrepant, and could have addressed that as they saw fit.

75.Ms Wong also relies on the fact that it was always up to the Applicant and the Husband to satisfy the eligibility criteria, including reasonable proof as to the genuineness of their relationship. The Director had, she says, in any event taken into account that the Applicant is a “relatively unsophisticated person”, as the Applicant’s then counsel later suggested.

76.Ms Wong also submits that the complaint made by Ground 1 has become academic, now that the disclosure has been made. But, I do not think that is correct.

77.Indeed, it seems to me to be necessary to be analytically rigorous as to the point in time at which it is said disclosure of adverse material is required. There is a difference between (1) disclosure of adverse material before the decision is made (i.e. within the decision-making process), and (2) disclosure of adverse material by or after the decision (i.e. in effect where the disclosure is in the notification of decision, or provided subsequently).

78.I will look first at the position before the 1^st Decision was made. In that context:

(1)  The Applicant must be taken to have known the eligibility criteria when making the Dependant Visa Application.

(2)  Therefore, she and the Husband would have known that one criterion was that they should furnish reasonable proof of the genuineness of their relationship.

(3)  Some of the relevant materials as might furnish that reasonable proof were identified by the Director in correspondence, namely a joint statement about their acquaintance and relationship, and the provision of a number of photographs.

(4)  But it was a matter for the Applicant and the Husband to put forward such materials as they wished so as to try to furnish the relevant reasonable proof.

(5)  Once the Applicant and the Husband were invited for separate interviews, they would have known or guessed (not least with the benefit of some legal assistance) that:

(a)  there may be some doubt as to the genuineness of the relationship;

(b)  the Director did not yet think that reasonable proof had been furnished, and

(c)  the separate interviews were being held to see whether the interviews could provide that reasonable proof (also with the obvious risk that they might demonstrate the opposite).

(6)  To my mind, it would not have been difficult (not least with the benefit of some legal assistance) to have anticipated the types of question – and, perhaps to some extent, precisely the questions – which might be asked in the separate interviews.

(7)  At the Interview, the Applicant and the Husband were informed, and expressly acknowledged, that any discrepancies in their answers may be detrimental to the Dependant Visa Application.

(8)  At the end of the Interview, the Applicant and the Husband were invited to provide any other material.

(9)  Where the point of separate interviews was to compare their respective answers to the same questions, they ought to have been able (with the additional benefit of the presence of the legal representative) to have worked out what answers were given respectively to those same questions.

(10)  But, I accept that there may not have been sufficient time between the Interview and the ensuing decision to have sought to address what the Applicant and the Husband might have worked out as potential discrepancies arising – in this case, the gap was in fact between 16 and 18 June 2021.

(11)  Before the 1^st Decision was made, it might have been possible for the second person interviewed (i.e. the Husband) to be asked questions in a way which sought to explore potential discrepancies which appeared to have arisen during the interview between his answers and those previously given by the first person interviewed (i.e. the Applicant).

(12)  But, obviously, no potential discrepancy could have been explored with the Applicant, because she was first person interviewed – unless she were to be re-interviewed.

79.During the hearing, I asked how the suggested necessary disclosure would be effected practically during the consideration of the Dependant Visa Application. Ms Souza suggests there might be various ways, and there is no need to be prescriptive. But, she submits, it is erroneous to say that once the officer starts putting the discrepancies to an applicant it would make the assessment meaningless. Ms Souza also points to the potential difference between the nature of questions, and therefore the value of answers or any apparent discrepancy in the answers. Some questions might be purely factual, but others may be more a matter of narrative. At least in the latter, any suggested discrepancy might be more apparent than real. Ms Souza also says that a balance might be struck between the right to a fair hearing and keeping an effective investigation, perhaps by redacting materials disclosed.

80.I am not convinced that that is a practically feasible approach to this kind of application. It seems to me to be unrealistic to think that the decision-making process would be interrupted on each occasion that the immigration officer considers (perhaps even only on a preliminary basis) that someone has said something which might be taken adversely against the applicant.

81.I also do not think it is correct to talk in terms of “allegations” being made in the consideration of the Dependant Visa Application – at least, not prior to the 1^st Decision. The Director, or the relevant immigration officer, was simply engaged in the process of collating materials so that a view might be formed on (amongst other things) whether the Applicant had furnished reasonable proof of the genuineness of the relationship of dependency. The answers obtained in Interview from the Applicant and the Husband were not “allegations”, and they were not deployed as “allegations”. I do not think the answers provided by the Applicant herself and by the Husband were adverse materials as such. They were simply collated and then compared and assessed, to see whether the collated materials supported or were against a finding that reasonable proof had been provided as to the genuineness of the relationship (in light of whatever other materials were also considered).

82.Further, as already stated, the Applicant and the Husband were aware – and had been warned – of the need for accuracy and consistency, because discrepancies might be harmful to the merits of the application. The separate interviews also afforded them an opportunity to volunteer other information, perhaps in further answered questions already posed, but not necessarily limited in that way.

83.There is also considerable force in the Director’s point that identifying to the Applicant and the Husband the discrepancies apparently arising from their separate answers to the same questions would simply enable them to tailor new answers in the hope of removing that discrepancy, risking defeating the very purpose of the separate interviews.

84.Of course, there may be other practical ways to explore discrepancies after they have apparently arisen. One way might be to have a second series of questions to put in separate interviews, and to see whether that series gives rise to a kind of major discrepancy that one would not expect from persons in a genuine relationship. Another way might be simply to put the first set of questions again. But, that it is possible to think of different ways of conducting the process does not mean that the actual way the process was conducted was procedurally unfair.

85.Further, it is for the Director to devise a system which seeks to elicit information to be able to assess whether an applicant has furnished reasonable proof as to the genuineness of the relationship relied upon by that applicant. I accept that if separate interviews are requested as a result of some doubt or suspicion as to the genuineness of the relevant relationship, that may consciously or otherwise influence the approach to assessing the respective answers to the same or similar questions. It might be thought that if discrepancies are expected, the more readily them will be seen. On the other hand, completely identical answers may also point to rehearsal and prior story alignment, which might itself confirm doubts or suspicions. It is all a matter of balancing.

86.In any event, where it is for the Director to devise the system, it might be thought that the kind of questions which are asked, as revealed by the evidence in this case, are questions which do not set the bar very high.

87.I do not think there was any procedural unfairness in reaching the 1^st Decision.

88.As to the position after the 1^st Decision, the context has obviously changed:

(1)  The Applicant will know that a decision has been taken against her, in the form of rejecting her Dependant Visa Application.

(2)  The Applicant will know that the decision likely rests upon the Director’s view that she has failed to meet one or more of the eligibility criteria.

(3)  If the Applicant is to be able to understand which of the eligibility criteria the Director thinks has not been met, she will need to be told which.

(4)  But, further, if the Applicant is to be able to decide – if appropriate, with the benefit of legal advice – how she might react to the 1^st Decision and/or what further potential steps might be taken, she will need to be told why the Director thinks the Applicant has failed to meet the particular eligibility criterion.

(5)  Therefore, sufficient or adequate reasons will need to be provided to explain the 1^st Decision.

89.This point is, thus, linked the point as to adequacy of reasons. Indeed, it seems to me that if adequate reasons have been provided to explain the 1^st Decision, there will have been no procedural unfairness in the making of the 2^nd Decision. Adequate reasons will enable the Applicant to make meaningful representations on any request for reconsideration.

90.In short, as will be seen below, I do not think there was any procedural unfairness in the process of the request for reconsideration leading to the 2^nd Decision.

F.3  Adequacy of Reasons

91.Ms Souza submits that the Director’s failure to disclose the Requested Documents amounts to a failure to give adequate reasons.

92.The relevant principles in relation to the giving of reasons are well known and were also considered by me in the Lantau International School case, at §115-117. If I attempt another summary, the principles are:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  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 to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  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.

93.Ms Souza acknowledges that the Applicant received the 1^st Minute, but submits that it merely asserts that there are material discrepancies in specific areas of the Applicant’s and the Husband’s answers, on which basis was the finding made that there is no genuine matrimonial relationship. She says there is no explanation or particulars as to how these findings were made, or why such a finding overrode all the other evidence proving a genuine relationship. Further, the mere assertion as to material discrepancies, without particulars, does not allow the Applicant to exercise effectively her right to seek reconsideration of the Dependant Visa Application or to make submissions on whether such findings have been fairly or correctly made.

94.Ms Souza says that the Interview Report was germane to the Applicant’s and the Husband’s understanding of the allegations against them, and to being able properly to make a case on the request for reconsideration. This was the point made by the legal representatives in correspondence to the Director. Ms Souza says that the Applicant would not have adequately appreciated the allegations against her simply from the redacted 1^st Minutes disclosed.

95.Ms Wong submits that there is no basis to contend that the Director’s reasons were inadequate or in any way caused substantial prejudice to the Applicant. The disclosed 1^st Minute set out in detail why the Director was not satisfied that the Applicant’s and the Husband’s relationship was genuine. In particular, the 1^st Minute at §5 set out the matters on which the Applicant and the Husband gave inconsistent answers during the separate interviews.

96.Ms Wong also relies on the context, where there would be no need for the Director to spell out all the discrepancies in further detail, or to provide a verbatim record of the interviews, not least because the Applicant and the Husband were present at those interviews (as was their legal representative). Ms Wong also asks me to bear in mind the Director’s role in maintaining a restrictive immigration policy and the need for preventing any potential prejudice to ImmD enforcement action.

97.Ms Wong further submits that the Director is under no duty to assist the Applicant in advancing her Dependant Visa Application, and the tendering of the Interview Report would defeat the purpose of the interview to assess the genuineness of the matrimonial relationship. The comments now made by the Applicant in her 2^nd affirmation are the kind of retrospective explanation – a second bite at the cherry – which is precisely the type of situation the Director seeks to avoid.

98.I have already pointed out that the original 1^st Decision letter unhelpfully failed to identify which of the eligibility criteria had not been met. It seems to me that such letters should ordinarily at least identify the relevant criterion not met, and on its own the 1^st Decision letter was insufficient. However, because of the request for documents and information, the Applicant soon knew the reason for the failure of her application, explained in the 1^st Minute. The 1^st Minute identifies: (a) the particular issue which was determinative; (b) why the particular decision was taken on that issue, namely because of the perceived major discrepancies in answers during the separate interviews; and (c) the areas or topics where the statements had discrepancies.

99.Therefore, I disagree with Ms Souza’s submission that the 1^st Minute merely asserts the existence of material discrepancies in specific areas of the Applicant’s and the Husband’s answers, but without any explanation or particulars as to how these findings were made. It is the fact of the discrepancies, and any reasonable explanation for the discrepancies, that is the basis of the decision. I do not think the Applicant needed to be told the particular details of the answers (which she herself knew or could know), or for any particular analysis as regards any individual discrepancy. In short, though the refusal of the Dependant Visa Application could have been due to a number of reasons, at least by the time of the receipt of the 1^st Minute, the Applicant knew that the failure in her case was the failure to have provided reasonable proof of a genuine dependency relationship between herself and the Husband because of a series of discrepancies in the answers given by them in separate interviews on the topics identified.

100.As to why such the finding of discrepancies “overrode all the other evidence proving a genuine relationship”, Mr HK Ma and the Director’s assessment was an overall balancing consideration of the materials, including those referenced in §4 of the 1^st Minute – as stated in the conclusion §10. I do not think that the identification of material discrepancies in particular topic areas somehow hampered the Applicant seeking effectively to exercise her right to seek reconsideration of the Dependant Visa Application or to make submissions on whether such findings have been fairly or correctly made.

101.I also do not think it is helpful to talk about “allegations” in the context of the reconsideration application. I suppose it is correct that the Director’s view that the Applicant had failed to show reasonable proof of the necessary genuine relationship might be taken as an allegation that the marital relationship was a sham. But in reality, the Director’s view was simply that the Applicant had failed to satisfy him of one eligibility criterion. That is not an allegation as such, it is just the statement that one of the necessary requirements of eligibility for the relevant visa had not been met. As I have already said, the Applicant had been told why the Director had reached that view.

102.I do accept that it is not entirely clear how, as is suggested in the 1^st Minute, “ample opportunities were given to clarify the discrepancies with further questioning” but the Applicant and the Husband “were still unable to provide reasonable explanations on the discrepancies”. But, not least in light of the refusal to provide the Interview Report, I do not think that language meant that the discrepancies were pointed out to the Applicant and the Husband but they could not explain them. Still less do I think the language is an implicit acceptance that the discrepancies should have been pointed out in the process. Rather, I think the language used likely means that by the end of the Interview process, there remained discrepancies which Mr HK Ma did not think could be explained reasonably if the relationship was genuine. In any event, I am of the firm view that the information and reasoning identified was sufficient for the Applicant to request a reconsideration and/or commence proceedings through judicial review.

103.As to the position, after the 2^nd Decision, the Applicant was plainly in a position to commence these proceedings.

F.4  Conclusion on Ground 1

104.I reject Ground 1.

105.I would also point out that I think the questions raised under the PDPO are, as a result, something of a ‘red herring’. I do not intend to address those questions further.

G.  Ground 2

106.Ms Souza says that Ground 2 targets the Director’s approach in finding that the Applicant and the Husband’s matrimonial relationship is not genuine, entirely on the basis of their answers provided in the Interview, and disregarding all evidence submitted by the Applicant as proof of their dependency and genuine matrimonial relationship.

107.With respect, I think that submission is somewhat off-target. First, the Director has not made any finding that the Applicant and the Husband’s matrimonial relationship is not genuine. He has simply found that the Applicant has failed to satisfy the first eligibility criterion by furnishing reasonable proof of the genuineness of the relationship of dependency. Secondly, the Director did not make his decision entirely on the basis of the answers provided in the Interview, disregarding all other evidence. The 1^st Minute shows such a suggestion to be incorrect.

108.Ms Souza refers to the following evidence which the Applicant put forward as establishing dependency on the Husband, and a genuine matrimonial relationship:

(1)  the marriage certificate;

(2)  the Husband’s employment contract, payment slips, bank statements and tenancy agreement, showing his ability financially to support the Applicant;

(3)  a series of photographs of the Applicant and the Husband;

(4)  a joint statement signed by the Applicant and the Husband dated 12 November 2020, describing the course of their relationship; and

(5)  by the reconsideration application, updated information on the Husband’s employment and their living arrangements, as well as relevant employment letters, bank statements, and a copy of their tenancy agreement.

109.It seems to me that items (2) and (5) relate mainly to a different eligibility criterion, namely the Husband’s financial ability to support the Applicant. Also, the tenancy document does not identify the Applicant as a tenant. Item (1) and items (3) and (4) are specifically referenced in §3 and §4 respectively of the 1^st Minute, and included within the reference to “all the available information and circumstances as stated above” in §10 of the 1^st Minute. On that basis alone, I reject Ms Souza’s submission that the Director has fundamentally erred in his approach by reducing the entirety of the assessment as to dependency to the sole question of whether there is apparent consistency between the Applicant and the Husband’s answers in the Interview.

110.The weight to be given to those various pieces of information was a matter for the Director, as Ms Souza fairly accepts. I do not think it is arguable that it is irrational to reach the conclusion reached by the Director. Ms Souza’s submission that the Director placed “undue weight on his assessment of the perceived inconsistency of the answers in the Interview” does not amount to a submission that there was irrationality.

111.Nor do I think it fair to submit that there was no substantive consideration conducted on the reconsideration application. Upon such an application, the Director is obviously looking to see whether there is any new material which might affect, or cause him to change his mind from, the previous decision.

112.I reject Ground 2.

H.  Delay Revisited

113.In the circumstances, the potential problem of delay is moot.

114.But I would say that if there were sufficient merits in the case, I probably would not have shut out the review on the timing point alone. An understanding as to why the 1^st Decision was made was really only available to the Applicant towards late August 2021, after which I think she would have been entitled to some time for taking legal advice before deciding whether or not to initiate proceedings.

115.I also accept that, albeit wrongly in my view, the Applicant considered that it was necessary to obtain further information before launching proceedings or pursuing the detail of the request reconsideration.

I.  Result

116.Where I see no ultimate merit on the two Grounds put forward for judicial review, I see no particular benefit in identifying whether I would have granted leave on either ground. If pushed, I would state that I would probably have granted leave on Ground 1, but refused it on Ground 2.

117.In any event, the Applicant’s application is dismissed.

118.At present, I see no reason why costs ought not to follow the event, so that the Applicant should be liable for the Director’s costs, to be taxed if not agreed. However, I shall make that order on a nisi basis, which will become absolute if there is no variation application within 14 days. Any variation application will be dealt with on paper.

J.  Postscript

119.I think as a result of these proceedings, the Applicant has remained in Hong Kong. Ms Souza told me that the Applicant and the Husband are co-habiting. On that basis, it may be that a fresh Dependant Visa Application – of the sort envisaged by Ms Wong during argument – might now be made. As some time has now passed since both the 1^st and the 2^nd Decisions, I would expect any such application would be considered by reference to the current circumstances (perhaps with the benefit of evidence relating to the events since the original application was made).

120.Obviously, I say nothing about the merits of such an application if it were to be made.

Ms Denise Souza, instructed by Chaudhry Solicitors, for the applicant

Ms Hikki Wong, Senior Government Counsel and Mr Jack Wong, Government Counsel, of the Department of Justice, for the putative respondent