Gao Jie Acting By Her Next Friend Qu Mingpeng v. Director of Immigration

HCAL 2723/2018

[2024] HKCFI 1750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2723 OF 2018

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AND

HCAL 817/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 817 OF 2019

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________________

(Heard together)

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J U D G M E N T

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A.  Introduction

1.The Applicant successfully applied for entry into Hong Kong under the Capital Investment Entrant Scheme (“CIES”) in 2010. Two biennial applications for extension of stay under the CIES were granted in December 2012 and November 2014. However, her third application for extension of stay made on 14 November 2016 (“Application”) was rejected, on the basis that she did not hold a valid travel document – when the PRC passport which had supported her previous applications for extension of stay had been invalidated.

2.The Applicant subsequently produced a Guinean passport and then a Vanuatu passport in the hopes of persuading the putative respondent (“Director”) to reconsider his earlier decision. On the basis that the Guinean passport was forged and the Vanuatu passport was issued too late and anyway cancelled, the Director refused the Application having considered it four times (together, “Four Decisions”). The validity of the Applicant’s limit of stay expired on 5 January 2017 (now some 7½ years ago).

3.In HCAL 2723/2018, the Applicant seeks to challenge the Four Decisions refusing her Application.

4.On 12 December 2018, the Director also issued a Removal Order against the Applicant under section 19(1)(b) of the Immigration Ordinance Cap 115 (“Ordinance”).

5.In HCAL 817/2019, the Applicant seeks to challenge the Removal Order.

6.It is obvious, and it is common ground, that the intended challenges stand or fall together. Directions have been given for the two actions to be heard together at a combined rolled-up hearing. Though the hearing was originally fixed for as long ago as 25 November 2019, there has been considerable procedural delay, most recently as a result of a deterioration in the Applicant’s mental health condition, by reason of which she is now acting by her son (“Qu”) as next friend.

7.The rolled-up hearing eventually took place on 3 July 2024. At that hearing, the Applicant was represented by Mr Erik Shum, Mr Gavin Wan and Mr Isaac Wu of Counsel. The Director was represented by Ms Sara Tong SC leading Mr Sik Chee Ching of Counsel.

8.At the end of the hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  Background

9.Though the scheme has been suspended since January 2015, the CIES was an immigration policy that allowed eligible non-locals to immigrate into Hong Kong by bringing in capital.

10.On 28 January 2010, the Immigration Department (“ImmD”) received the Applicant’s application under the CIES, on the basis that she was a Chinese national who had obtained permanent resident status in a foreign country, in her case Gambia. She provided copies of her PRC passport (issued on 9 December 2009 with validity of 10 years) (“PRC Passport”) and her Gambian identity documents (which showed her to have legal residence there, and no need for a visa to re-enter). The application was approved on 4 December 2010. On 3 January 2011, the Applicant obtained permission to stay for 24 months (with a non-permanent Hong Kong identity card).

11.On 18 December 2012, the Applicant successfully extended her limit of stay under the CIES for a further two years. On 11 November 2014, the Applicant again successfully extended her limit of stay under the CIES for a further two years. Both applications were supported by the provision of copies of the PRC Passport and Gambian identity card.

12.As stated, it can be noted that the CIES was suspended on 15 January 2015. However, the suspension does not affect the applications received by ImmD before that date.

13.On 15 November 2016, the Applicant applied to extend her stay under the CIES for a further two years (i.e. the Application). The Application was again supported by copies of the PRC Passport and Gambian identity card.

14.On 6 January 2017, the Liaison Office of the Central People’s Government in the HKSAR notified the ImmD that the Applicant’s PRC Passport had been invalidated.

15.On 7 February 2017, the Applicant attended a meeting with Mr CT Lam of the ImmD, who informed her that her PRC Passport was invalidated. On the same day, the ImmD issued to the Applicant a letter informing her that the ImmD did not have sufficient documents to process her Application. She was invited, amongst other things, to submit a valid passport or travel document by 21 February 2017 (later extended to 7 March 2017). The Applicant did not do so.

16.On 4 March 2017, the Applicant wrote a handwritten letter to the ImmD (“Handwritten Letter”), explaining that she had consulted with her lawyers, who had been to the relevant departments, and she identified the reasons why her PRC Passport was temporarily invalidated. Those reasons related to accusations of fraud made against a company of which she was formerly the corporate legal person. She stated that she had asked her lawyer to contact the relevant departments and would actively cooperate with them in handling the matter. She also stated that, since it was not certain when the PRC Passport problem would be resolved, she had arranged for a valid passport of another country to be obtained by mid-March at the earliest and by the end of March at the latest.

17.On 7 March 2017, the Applicant sought permission to remain extended until 21 March 2017.

18.On 9 March 2017, the Director issued his decision refusing the Application (“1^st Decision”), and requested the Applicant to leave Hong Kong by 16 March 2017. The letter notifying the 1^st Decision was in the following material terms (in offered English translation):

We have considered in detail all materials submitted by you and the various circumstances of this case, and the ImmD intends not to grant you an extension of stay.

19.On 27 March 2017, the Applicant provided her Guinean passport with an issue date of 2 March 2017 (“Guinean Passport”), seeking reconsideration of her Application. In doing so, she obviously recognized the reason for the previous rejection of her Application.

20.On 27 April 2017, the Applicant was convicted of breach of condition of stay by overstaying in Hong Kong, and was sentenced to 2 days’ imprisonment suspended for 12 months.

21.On 15 June 2017, the Applicant’s solicitors asked the ImmD to reconsider the Application.

22.On 26 August 2017, the ImmD wrote to the Guinean Embassy to verify the authenticity of the Guinean Passport. On 29 June 2018, the Guinean Embassy replied saying that, having consulted with the National Aviation and Border Police of Guinea, it had confirmed that the passport was forged and invalid.

23.On 30 July 2018, the Applicant was arrested and interviewed in respect of potential offences relating to the use of the Guinean Passport, but on 22 August 2018 the ImmD decided not to prosecute the Applicant due to insufficient evidence.

24.On 31 August 2018, the Director upheld the 1^st Decision and rejected the Application (“2^nd Decision”). The letter notifying the 2^nd Decision was in the following material terms:

Having reviewed the information made available and all circumstances of the case, we still cannot find sufficient grounds justifying a reversal of our previous refusal decision.

25.On 14 September 2018, following a request from the Applicant’s solicitors, the Director wrote to the Applicant explaining why the Application was refused. Those reasons included that, under the existing immigration policy, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship).

26.On 7 November 2018, the Applicant obtained a legal opinion from a PRC law firm stating that her PRC Passport was valid, and that enquiries with the Public Security Department of Sichuan Province had confirmed that the PRC Passport had never been revoked or invalidated.

27.On 30 November 2018, the Applicant commenced HCAL 2723/2018 seeking to challenge the 1^st Decision and the 2^nd Decision.

28.On 5 December 2018, the Applicant’s solicitors asked the Director to reconsider the Application, in reliance upon (amongst other things) the PRC legal opinion. HCAL 2723/2018 was subsequently stayed by consent, pending the result of that reconsideration.

29.On 12 December 2018, the Director issued the Removal Order.

30.On 3 January 2019, the Director asked the Applicant to provide written confirmation from the competent authority to prove the validity of her PRC Passport. On 29 January 2019, the Applicant’s solicitors reattached the PRC legal opinion, stating that the Sichuan Authority had orally confirmed validity and that it does not issue written confirmations for individual requests. The letter also suggested that the burden of proving invalidity was on the ImmD.

31.On 23 January 2019, the Immigration Tribunal dismissed the Applicant’s appeal against the Removal Order. On 11 February 2019, notice of dismissal as regards the Applicant’s appeal against the Removal Order was served on her.

32.On 25 March 2019, the Applicant issued HCAL 817/2019 seeking to challenge the Removal Order.

33.On 18 April 2019, the ImmD sent a letter to the Applicant’s solicitors, attaching her Handwritten Letter, and noting that it was contrary to the PRC legal opinion stating the PRC passport was valid.

34.On 3 May 2019, the Applicant’s solicitors provided her 2^nd Affirmation and a supplemental PRC legal opinion, which stated she had forgotten writing the Handwritten Letter, and that the investigation against her former company and the subsequent prosecution could not form any grounds for revoking her PRC Passport or declaring it to be invalid.

35.On 20 May 2019, the Director refused to reverse the 1^st Decision and/or 2^nd Decision on the Application or its reconsideration (“3^rd Decision”). The letter notifying the 3^rd Decision was in the following material terms:

We refer to the letter from [the Applicant’s solicitors] dated 5 December 2018 … and your letters dated 29 January 2019, 13 April 2019, 25 April [2019], and 3 May 2019.

After having reviewed all the information made available and all circumstances of the case, we cannot be satisfied that [the Applicant] is in possession of a valid travel document required for her biennial extension application under CIES, and that there lack fresh grounds justifying a reversal of our previous refusal decision. The decision conveyed in our letter of 9 March 2017 still stands.

36.The relevant internal minute M.40 leading to the 3^rd Decision included the following:

Consideration

16. Upon assessment of AP’s extension application in 2017, AP expressed in her handwritten letter [25] that she was aware of the invalidation of her PRC passport, which tallied with our Master Index. AP’s application for extension and request for reconsideration were refused respectively on 09-03-2017 and 30-08-2018. Currently, AP’s L/R has listed three grounds above to request for reconsideration with fresh information, i.e. a visa for Vietnam, the Legal Opinion, and the medical proof of Schizophrenia.

17. Regarding ground (i), the Legal Opinion and the newly issued Vietnam visa were provided to substantiate that AP’s PRC passport is valid. However, we are not in a proper position to comment on the action taken by Vietnamese authorities. Besides, the Legal Opinion was not an official confirmation regarding the validity of AP’s PRC passport. It is factual that, after the invalidation of the said PRC passport in January 2017, AP had never used this passport for travel or any local/ PRC immigration facilities. Although AP claimed in her Affirmation that her passport has all along been valid, the available information, including the active Master Index, indicates that AP’s PRC passport is still being invalid.

18. Secondly, the information regarding ground (ii) had already come to our notice upon previous reconsideration in August 2018, and it had been confirmed by Embassy of Guinea in Beijing that the Guinean passport was a forgery. Henceforth, AP is still not in possession of any valid travel document.

19. For ground (iii), it was considered that AP’s local connection, illness, and bitter experience did not constitute any strong grounds for reversing our previous refusals. In addition, there are other means for AP to unite with her family in Hong Kong, and AP can seek medication outside Hong Kong.

Recommendation

20. After having considered all the information provided by AP, maintenance of refusal dated 09-03-2017 [23] is recommended. A draft letter for maintaining our refusal decision is prepared at float. Submitted, please.

37.On 3 July 2019, the Applicant amended the Form 86 in HCAL 2723/2018, to include a challenge to the 3^rd Decision.

38.On 17 October 2019, the Guinean Embassy issued a letter to the ImmD confirming the authenticity of the Guinean Passport. The ImmD later requested the Applicant to provide her original Guinean Passport to the Guinean Embassy in Beijing to verify its authenticity.

39.The original date of 25 November 2019 for the substantive hearing of the combined proceedings was vacated by consent, to permit the Director to reconsider the Application in the light of the latest materials submitted by the Applicant.

40.On 16 June 2020, and before the Applicant had provided the original to them, the Guinean Embassy wrote to the ImmD confirming after “careful verification” that the Guinean Passport was forged and thus invalid.

41.On 5 August 2020, Qu made enquiries with the Vanuatu Consulate as to the authenticity and validity of the Applicant’s Vanuatu Passport, which had been issued on 7 May 2019. On 11 August 2020, the Vanuatu Consulate confirmed to Qu that the Vanuatu Passport was authentic and genuine, and the Applicant’s solicitors subsequently provided the Vanuatu Passport to the ImmD asking that it be taken into account on her Application.

42.On 8 October 2020, the ImmD wrote to the Vanuatu Embassy to verify the authenticity of the Applicant’s Vanuatu Passport. On 23 October 2020, the Vanuatu Embassy confirmed that the Vanuatu Passport was genuine. But on 6 November 2020, the Vanuatu Embassy retracted from its earlier position and that – “after further consultation with the concerned Departments in the Capital of Vanuatu” – it confirmed the Vanuatu Passport had been cancelled.

43.Between September 2020 and March 2021, correspondence was exchanged between the ImmD and the Applicant’s solicitors relating to the authenticity of the Guinean Passport, the authenticity/validity of the Vanuatu Passport, and matters relating to the PRC criminal proceedings relating to the company by which the Applicant was previously employed.

44.On 2 December 2021, the ImmD reviewed the Application in its internal minute or memorandum M.45. Certain material paragraphs of M.45 were as follows (emphasis in original):

The present RR (3^rd RR)

Authenticity of P1

8. By a letter dated 21-10-2019 [59], the current legal representative of the Applicant, namely Lee, Wong & Lam Solicitors (“LWL”), informed that the Guinean Embassy had issued a letter of 17-10-2019 to ImmD to confirm that P1 was valid and authentic and have remained so since the date of issue, based on which the Applicant lodged the present RR.

9. We subsequently received the said letter from the Guinean Embassy dated 17-10-2019 [58], which stated that the Applicant’s Guinean Identity Card and P1 were all along valid.

10. As the two notifications dated 29-06-2018 and 17-10-2019 from the Guinean Embassy were inconsistent, we sought their further clarification [60]&[61]. By a letter dated 13-12-2019, the Guinean Embassy requested that the original P1 be sent to them for examination [64]. In this connection, LWL was informed of the request by letters dated 24-02-2020 and 17-06-2020, and was asked to send the original P1 to the Guinean Embassy direct [65]-[70].

11. Before the original P1 was sent out for examination by LWL, another reply from the Guinean Embassy dated 16-06-2020 was received on 19-06-2020, informing that their letter dated 17-10-2019 was declared null and of no effect, and affirming that P1 was forged [71].

12. By a letter dated 24-06-2020, LWL was informed of the Guinean Embassy’s latest reply [72]-[79]. LWL made representations by letters dated 07-07-2020, 29-07-2020 and 05-08-2020. By letters dated 31-07-2020 and 06-08-2020, LWL was informed that the present RR will be assessed on the basis that P1 was forged. Nevertheless, LWL provided the legal opinion from a law firm in the Republic of Guinea on the authenticity of P1 by their letter of 24-09-2020.

The Applicant’s Vanuatu passport (“P2”)

13. LWL then provided further information by two letters dated 13-08-2020 and 27-08-2020 [80]&[82], enclosed with an apostilled copy of a Vanuatu passport bearing the Applicant’s personal particulars (“P2”, No. RV100751; issued on 07-05-2019). LWL asked us to consider P2 in the assessment of the present RR.

Further information regarding the authenticity of P1

14. On 24-09-2020, LWL further provided a legal opinion prepared by a law firm in the Republic of Guinea [84], which asserted that the Guinean Embassy is not the competent authority to determine the validity of P1. LWL disclosed that they were verifying P1’s authenticity through a Guinean official body, namely Forged Documents Control Section of the Emigration Department of the National Directorate of Air Police, Borders Control and the Stay of Foreigners, which was the alleged competent authority. Nothing has since been received from LWL in connection with this issue.

Assessment on the present RR

The Applicant’s PRC passport

15. The Applicant’s PRC passport had expired on 10-12-2019.

Information about the Applicant’s court case in Mainland

16. ImmD received information from the Mainland authorities that the Applicant was involved in a case of swindle of public money (Article 266 of PRC Criminal Law). She had absconded since 25-09-2014, and was wanted by the Lhasa Public Security Bureau. Three accomplices had been sentenced to imprisonment ranging from 3 to 11 years.

Authenticity of P2

17. For verifying the authenticity of P2, we sought assistance from the Embassy of the Republic of Vanuatu in China (“the Vanuatu Embassy”) by a letter dated 08-10-2020 [86]. At first, the Department of Foreign Affairs and International Cooperation of the Government of the Republic of the Vanuatu replied on 23-10-2020 that P2 was a true document [87]. But on 06-11-2020, the Vanuatu Embassy replied that, after further consultation with the concerned departments in the Capital, it is confirmed that P2 had been cancelled [88].

The Applicant’s representations via LWL

18. By two letters dated 24-12-2020 and 05-02-2021 [89]&[92], LWL was informed of the Applicant’s suspected offence in the Mainland as well as the irrelevance and cancellation of P2, and was invited to submit representations and information for the purpose of the present RR.

19. In the two letters dated 07-01-2021 and 05-03-2021 [90]&[93], LWL argued, amongst others, that:-

(i) “Valid travel document” is not part of the eligibility criteria of CIES, and that the Applicant, being a Chinese national who has obtained permanent residency in a foreign country, is eligible for CIES (para.3-7 of [90]);

(ii) P1 & P2 are valid and are relevant to the present RR (para.8-17 of [90]);

(iii) the Applicant was never a suspect of the said criminal case (para.8 of [93]);

(iv) there was no basis that the Applicant was involved in any criminal activities or investigation at the time of the original application and the subsequent decision to refuse the original application (para. 10 of [93]).

Investment under CIES

20. The financial intermediary’s annual report revealed that the Applicant’s investment under CIES was still in order as of 22-11-2020. [96]

Consideration and Recommendation

21. The Applicant’s extension application together with the 1^st and 2^nd RR were all refused on the ground of not having a valid travel document, i.e. the PRC passport was declared invalid, whereas P1 was forged.

22. In the present RR, the Applicant furnished P2 as well as some legal opinions with a view to prove that P1 and P2 are both valid travel documents. In the course of assessment, the Guinean Embassy finally confirmed that P1 was forged and the Vanuatu Embassy confirmed P2 had been cancelled by the relevant authority. It is accepted that Guinean Embassy and Vanuatu Embassy are the authorities to verify the genuineness of P1 and P2 respectively and that their confirmation can be relied upon. In any event, P2, which was issued more than 2 years (on 07-05-2019) after the expiry of the Applicant’s resident status on 06-01-2017, is considered irrelevant to the application for extension of stay. Notwithstanding the assertion of LWL, all the travel documents provided in support of the extension of stay under the CIES by the Applicant were invalid or irrelevant to the period of the extension sought.

23. According to the Applicant’s handwritten statement dated 04-03-2017 and other information obtained by this Department, the Applicant has been involved in a criminal case and absconded, for which, she may raise criminal and security concern to the HKSAR. However, having considered the Mainland court judgement and other representations provided by LWL, it is concerned that the information related to the said criminal case has no effect to the present RR.

24. As the Applicant fails to furnish any valid travel document for the purpose of applying for extension of stay from 06-01-2017 under the CIES, I recommend maintaining the refusal decision date 09-03-2017.

45.On 23 December 2021, the Director again upheld the 1^st Decision and rejected the Application (“4^th Decision”). The letter notifying the 4^th Decision was addressed to the Applicant’s solicitors and was in the following terms:

We refer to your letter dated 21 October 2019 requesting the Director of Immigration (“Director”) to reconsider the Applicant’s application for extension of stay under the CIES received by this Department on 15 November 2016, and the further correspondences on this matter.

By our letters of 24 December 2020 and 5 February 2021, the Applicant was invited to provide representations regarding her suspected involvement in criminal activities in the Mainland since the issue of whether the Applicant raises any security or criminal concerns to HKSAR is relevant to the extension of stay under the CIES. The representations provided by your letters of 7 January 2021 and 5 March 2021 are not sufficient to clarify the matter. Subject to any further development or information, it is considered that the issue has no effect to the present request for reconsideration.

The present request for reconsideration of the application is based on the new information submitted by the Applicant via your firm in respect of, inter alia, the Applicant’s possession of [the Vanuatu Passport] issued on 7 May 2019 and information in respect of the validity of her purported [Guinean Passport] furnished to this Department after the Director’s refusal decision of 20 May 2019. According to all the information available and is indicated in our letters of 24 June 2020 and 24 December 2020, the Vanuatu passport, being a passport obtained 3 years after the expiry of the limit of stay on 6 January 2017 and nearly 5 years after the CIES has been suspended on 15 January 2015, is irrelevant to the application for extension of stay under the CIES lodged in 2016. In any event, for the reasons mentioned in our letters of 24 June 2020 and 24 December 2020, the Director is not satisfied that these passports of the Applicant were/are valid travel documents. Hence, the Applicant did not furnish any valid travel document in support of her application for extension of stay under the CIES at the material time.

Having considered all the information available to the Director and the circumstances of the case, we have decided to maintain the refusal decision made on 9 March 2017 on the same ground that the Applicant did not and does not hold any valid travel document.

46.The correspondence referred to in the first paragraph was footnoted as including (emphasis in original):

two letters from the Department of Justice (“DoJ”) to your firm dated 25 October 2019 and 4 November 2019, two letters from your firm to the DoJ dated 31 October 2019 and 13 December 2019, nine letters from the Director to your firm dated 18 December 2019, 24 February 2020, 17 June 2020, 24 June 2020, 15 July 2020, 31 July 2020, 6 August 2020, 24 December 2020, 5 February 2021, and nine letters from your firm to the Director dated 27 February 2020, 7 July 2020, 29 July 2020, 5 August 2020, 13 August 2020, 27 August 2020, 24 September 2020, 7 January 2021, 5 March 2021

47.The minute M.45 had described much of that correspondence (see above), and the Applicant and her solicitors would have been well aware of it.

48.On 23 February 2022, the Applicant re-amended the Form 86 in HCAL 2723/2018, so as to challenge the 4^th Decision. Corresponding amendments were made to the amended Form 86 in HCAL 817/2019.

C.  The Intended Grounds of Review

49.Across the two cases, Mr Shum has advanced five grounds of review, as follows:

(1)  Ground 1: Illegality – The Director misconstrued and misapplied his own CIES Scheme Rules in rejecting the Applicant’s renewal application on the ground of her failure to fulfil the alleged requirement of possessing a valid passport or a valid travel document.

(2)  Ground 2: Inadequate Reasons – In the event that the Director did not misconstrue the Scheme Rules, such that the possession of a valid travel document was an eligibility criterion, the Director still failed to provide adequate reasons for not accepting the travel documents provided by the Applicant to the Director.

(3)  Ground 3: Breach of Tameside Duty of Inquiry – The Director failed to make the necessary enquiries to enable him correctly to determine the validity of the Applicant’s Passports.

(4)  Ground 4: Legitimate Expectation – The past conduct of the Director gave rise to a legitimate expectation that the Applicant’s Vanuatu Passport would be considered in the making of the Four Decisions.

(5)  Ground 5: Wednesbury Unreasonableness – the Four Decisions and the Removal Order were Wednesbury unreasonable.

50.I can address each of the intended grounds, in turn.

D.  Ground 1: Illegality

51.This ground is based upon the suggestion that the Director misconstrued and misapplied his own policy as identified by the CIES Scheme Rules.

52.The relevant legal principles are well-settled, and can be summarised as follows:

(1)  Members of the public are led to believe that policy statements are carefully drafted and represent the policy which will be observed in decision-making.

(2)  Hence, a member of the public to whom a statement of policy ostensibly applies has a right at common law to require the public authority faithfully to apply the policy to him, when it exercises its functions, unless there are good reasons for the authority not to do so.

(3)  Therefore, an administrative decision made in a way which departs from a stated policy due to misinterpretation of the policy or misunderstanding of its meaning is defective and unlawful and liable to be quashed.

(4)  The application by the decision-maker of an unpublished policy setting out criteria relevant to the exercise of executive power would render the decision unlawful.

(5)  The error of law must be a relevant error in the actual making of the decision which affected the decision itself.

(6)  The interpretation of a stated policy is a question for the Court, and not the policymaker.

(7)  Policy statements must be interpreted objectively by reference to context and purpose, and in accordance with the language employed by the public authority.

(8)  Whilst a broader and wholly non-technical approach should prevail, what is involved is still an interpretative process conducted by the Court, which must necessarily be approached objectively.

53.In this case, the relevant immigration policies are to be found in the CIES Scheme Rules and the Immigration Guidelines for Entry to the HKSAR of the PRC (“Immigration Guidelines”).

54.Mr Shum submits that there is no requirement in the Scheme Rules, whether under §2 headed ‘Eligibility Criteria’ or otherwise, that an applicant must hold a “valid passport” or a “valid travel document” to be eligible under the CIES. He has placed particular reliance on §3.1 of the Scheme Rules, which under the heading of ‘Scope of the Scheme’s Application Policy’ states:

The Scheme covers foreign nationals (except those who are excluded from the scope of the Scheme as may be determined by the Director of Immigration from time to time), Macao SAR residents, Chinese nationals who have obtained permanent resident status in a foreign country, stateless persons who have obtained permanent resident status in a foreign country with proven re-entry facilities and Taiwan residents.

55.Mr Shum also points out that §3.1 is reproduced in §60 of the Immigration Guidelines, where §§58-61 deal specifically with the CIES but do not require that an applicant must hold a “valid travel document” or a “valid passport”.

56.Where the express provision in the Scheme Rules relates even to “stateless persons” (i.e. persons not being holders of any country’s passport), Mr Shum submits that speaks for itself that the validity of the Applicant’s PRC Passport, or any other passport relied on by her, is an irrelevant consideration, and could not lead to a valid reason to refuse the Application.

57.In response, Ms Tong has pointed to §2.1(e) of the Scheme Rules which she says makes clear that:

Subject to the terms of these Scheme Rules, an Applicant who satisfies the following criteria will be eligible of all-in Principle or Formal Approval as the case may be:

…

(e) has no adverse immigration record and meets the normal immigration and security requirements.

58.She also points out that §8.1 of the Scheme Rules provides that applications for extension of stay will be granted on the same conditions and on the same basis, so that the requirements under §2.1(e) apply equally to applications for extension of stay.

59.Ms Tong further points out, correctly, that the headings of §2 (‘Eligibility Criteria’) and §3 (‘Scope of the Scheme’s Application Policy’) of the Scheme Rules strongly suggest that §3 is concerned with the categories of person who can apply, whereas §2 identifies what is required to establish eligibility for approval.

60.Mr Shum argues that it is wrong to equate “normal immigration requirements” with “holding of a valid travel document”, where the specific provision in §3.1 of the Scheme Rules should override the general phrase in §2.1(e). But, whilst it is correct that the term “normal immigration requirements” is not defined in the Scheme Rules, Mr Shum has overlooked §§1 and 2 of the Immigration Guidelines – which guidelines apply to, amongst other persons, CIES applicants: see §§58-61 – and which state (emphasis added):

1. This information leaflet prepared by the Immigration Department of the Hong Kong Special Administrative Region Government (HKSARG) sets out the visa/entry permit requirements for persons wishing to enter the Hong Kong Special Administrative Region (HKSAR) of the People’s Republic of China (PRC). The information in this leaflet serves as reference only. The HKSAR immigration authorities have the right to refuse any application(s) even where the immigration requirements are met.

2. In general, unless a person has the right of abode or right to land in the HKSAR, he/she requires a visa/entry permit to work, study, establish or join in any business, take up residence or to stay in the HKSAR as a visitor longer than the allowed visa free period. While each application is determined on its individual merits, an applicant should meet normal immigration requirements (such as holding a valid travel document with adequate returnability to his/her country of residence or citizenship; be clear of criminal record and raise no security or criminal concerns to the HKSAR; have no likelihood of becoming a burden on the HKSAR; etc) as well as the relevant specific eligibility criteria detailed below before he/she may be considered for the grant of a visa/entry permit. It should be noted that the eligibility criteria may be subject to change from time to time without prior notice.

61.I agree with Ms Tong that reading the Scheme Rules and the Immigration Guidelines together, the Director’s policy is that an applicant for a CIES visa/entry permit and any relevant extension of stay must have a valid travel document with adequate returnability to his/her country of residence or citizenship. That is simply the consequence that eligibility under the Scheme Rules includes the need to meet normal immigration requirements. I do not think the opening words of §2.1 of the Scheme Rules (“Subject to the terms of these Scheme Rules …”) change that analysis.

62.Further, even if there were no statement of what those requirements might include, it seems to me that “normal immigration requirements” would naturally and logically include a valid travel document as would permit returnability of the person to his/her country of residence or citizenship. It might be thought that irrespective of the nature of the visa or permission to stay granted to a person entering Hong Kong, a key consideration in granting that visa or permission would be for the Director to be satisfied that at its expiry the person would have a valid travel document as would enable the person to return to their place of citizenship or residence.

63.Further, Mr Shum’s reliance upon the provision relating to stateless persons seems to me to be misplaced. Though such persons are mentioned in §3 of the Scheme Rules, it is of importance that such stateless persons must have obtained permanent resident status in a foreign country with proven re-entry facilities. Those facilities are, as Ms Tong correctly identifies, a key feature of a “valid travel document” which must allow its holder to return to the country or territory of issue.

64.It is also obvious that the Applicant did not apply as a “stateless person”, but as a Chinese national with residency in Gambia – which is why she made the original application and each extension of stay application (including the Application) on the basis of her PRC Passport and her Gambian identity card. Of course, I accept that Mr Shum is not suggesting that the Applicant should be treated as a stateless person; rather, he is using the reference to stateless persons in §3.1 as part of his argument in the context of the proper construction of the policy identified in the Scheme Rules. Nevertheless, for the reasons I have explained, I do not think that reference points in favour of Mr Shum’s offered construction.

65.Mr Shum also seeks to place reliance on the website of the ImmD as relates to the CIES, since slightly amended, which stated under the heading ‘Entry Arrangements’ (with Mr Shum’s emphasis):

A successful entrant, and his dependant(s) if any, will be issued with a visa / entry permit to be collected from the Immigration Department by himself or through his local reference in Hong Kong for onward transmission to him. The visa label should be affixed onto a blank visa page of the entrant’s travel document for presentation to the immigration officer upon arrival in Hong Kong. If the entrant has no proper travel document acceptable for traveling to Hong Kong, an entry permit will be issued instead. The same arrangements will apply to the entrant’s dependence.

66.Mr Shum’s submission is that the emphasised words identify that a valid travel document is not a requirement for eligibility under the CIES, because the scheme expressly envisages dealing with the situation that the person whose CIES application has been approved may not have such a document. However, it seems to me that not having a “proper travel document acceptable for traveling to Hong Kong” after that person’s CIES application has been approved on the basis that might be that he is stateless but has a permanent place of residence somewhere is rather different from not having a “valid travel document with adequate returnability to his/her country of residence or citizenship” for the purpose of satisfying the normal immigration requirements.

67.Nor do I think it is wrong to equate the phrase “proven re-entry facilities” with “a valid travel document with adequate returnability to an applicant’s country of residence or citizenship”. Contrary to Mr Shum’s submission, that is not an attempt by the Director to add words and/or more stringent requirements to the specific requirement identified to the public in the policy statement.

68.I have taken into account Mr Shum’s submission, which he emphasised orally, that the proper construction of the policy identified by the Scheme Rules should bear firmly in mind the context that the whole scheme is intended to facilitate and encourage immigration into Hong Kong with capital inflow. On that basis, he suggests that the CIES is designed to have flexibility to permit capital inflow, without undue focus on technical requirements such as having a valid travel document. As he put it, the Director is not concerned with the existence of a valid travel document, but rather concerned with ensuring that the person who is approved for CIES entry has some proper means of leaving, and a place to which he or she can return. He also emphasises the attraction of the CIES includes the possibility of getting permanent resident status after 7 years’ residence in Hong Kong, even if the person has periods of prolonged absence from Hong Kong which prevent continuous residence during the 7 years: see §§8.1 and 8.5 of the Scheme Rules.

69.However, I do not agree that the CIES is somehow fundamentally different from other types of immigration, and visa/entry permit entry into Hong Kong, as is otherwise dealt with under the Immigration Guidelines. It is also instructive to note that section 2 of the Immigration Ordinance Cap 115 has a specific definition of what “valid travel document” means, namely:

(a) a passport furnished with a photograph, or any other document establishing to the satisfaction of an immigration officer or immigration assistant the identity and nationality of the holder of the document and the domicile or place of permanent residents of the holder of the document, which –

(i) indicates in specific or general terms that it is not invalid for Hong Kong;

(ii) indicates that it is still valid according to the laws of the country or territory by or on the half of which it was issued;

(iii) allows its holder to return to the country or territory by or on behalf of which it was issued; and

(iv) complies with section 61; or

(b) a document issued by or on behalf of a competent authority or any country or territory to its holder for the purpose of identification or travel, which –

(i) establishes to the satisfaction of an immigration officer or immigration assistant the identity of its holder and the domicile or place of permanent residence of its holder;

(ii) indicates that it is still valid according to the laws of that country or territory;

(iii) allows its holder to return to that country or territory; and

(vi) complies with section 61.

70.That definition identifies that (a) a passport may fall within the definition of “valid travel document”, but (b) so also may other forms of document which satisfy the requirements set out. But the key features of what is a “valid travel document” include validity of it according to the laws of the country or territory which issued it, and that it allows the holder to return to that country or territory. The definition is entirely consistent with – indeed it echoes – the Scheme Rules and the Immigration Guidelines appropriately read together, as construed by the Director.

71.Of course, I accept for bringing herself with the ‘scope’ of the CIES required the Applicant, as a Chinese national, only to establish also that she had permanent resident status in a foreign country. But that did not negate the eligibility criteria, including meeting usual immigration requirements such as having a valid travel document.

72.Lastly, Mr Shum’s submission that when a CIES entrant seeks to renew the CIES visa, there is no need for that person to rely on the same status as on original application, may be correct. But it is also a red herring. As is evident from this case, where the Applicant originally applied with the status of a “Chinese national who had obtained permanent resident status in a foreign country”, once her PRC Passport was notified (and, incidentally, expressly recognised by her) as having been invalidated, she was permitted to seek to satisfy the requirements by producing a valid and extant passport from a different country. But that does not mean that the general requirement for having a valid passport or valid travel document was somehow bypassed.

73.Indeed, I am not sure the Applicant was seeking to change her eligibility status. Though she did not have a valid passport from the PRC, she was probably still seeking renewal of her CIES visa on the basis that she was a “Chinese national having obtained permanent resident status in a foreign country” – and not, for example, but as a “foreign national” of a different country. But if she were doing the latter, it might be thought the obvious way to prove that she was such a foreign national was to produce a valid passport from that foreign nation. If the passport she produced was either forged or cancelled, then it seems to me that she had failed to prove foreign nationality so as to bring herself within the eligibility under the Scheme Rules, in place of her previous claimed eligibility.

74.Whilst I consider Ground 1 is reasonably arguable, and I would separately have granted leave to apply for judicial review, I would on substantive analysis nevertheless reject Ground 1.

E.  Ground 2: Inadequate Reasons

75.This ground is based on the suggestion that the Director failed to provide adequate reasons for not accepting the travel documents provided by the Applicant. Mr Shum addressed this ground in oral submissions together with Ground 3, but I think it apt to address the two separately, even if they have some link.

76.The principles relating to adequacy of reasons are well-settled. What amounts to adequate reasons for decision given by a public authority depends on the context in which the decision-maker is operating and the circumstances of the case in question. The reasons must be intelligible and adequate, enabling the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important or controversial issues. Recognition must be given to the fact that the decision is addressed to parties well aware of the issues involved and the arguments they advanced.

77.Reasons may be briefly stated, may refer only to the main issues in dispute, and need not canvass every material consideration, nor address every single issue that has arisen. The essential question for the Court when assessing a challenge as to the adequacy of reasons is to determine whether, when viewed objectively in the specific factual context of the case and the information and materials objectively known to the parties at the material time, the reasons as provided in the decision were adequate to enable the applicant to understand why the respondent decided as it did.

78.It is also settled that, in the context of immigration control, the legislature has conferred upon the Director a wide and general discretion to devise immigration policies appropriate to the unique circumstances of Hong Kong, and to exercise immigration controls without prescribing any particular factor or category of consideration which it is bound to take into account.

79.Mr Shum submits that the standard of reasoning expected from the Director in this case was “heightened” by certain circumstances, being:

(1)  The Four Decisions and the Removal Order directly and significantly affect the Applicant’s life and personal liberty in the context of the CIES.

(2)  Specifically, the Removal Order was made when the application for leave for judicial review of the Four Decisions was ongoing.

(3)  If the Applicant were removed from Hong Kong pursuant to the Removal Order at the time when it was made, her entitlement to obtain an extension of stay may be expunged, but she would not be entitled to make a fresh application under the now suspended CIES.

80.Mr Shum submits that the Director’s various statements given in the letters providing each of the Four Decisions (see above) are not proper “reasons”, but mere statements of conclusions reached. Mr Shum submits that adequate reasons ought to have addressed:

(1)  the basis on which the Director concluded that the Applicant’s PRC, Guinean and Vanuatu Passports were not a “valid travel document”;

(2)  the basis on which the Director concluded that the PRC, Guinean and Vanuatu Passports were invalid.

(3)  regarding the PRC Passport, the basis on which the Director refused to consider the PRC legal opinion and supplemental legal opinion;

(4)  regarding the Guinean Passport, the basis on which the Director satisfied himself that he could rely on the contradictory replies of the Guinean Embassy as regards the issue of authenticity/validity, and the basis on which the Director refused to rely on the legal opinion prepared by a Guinean lawyer;

(5)  regarding the Vanuatu Passport, the reason why the Director considered the Vanuatu Embassy in Beijing was the competent authority to verify the genuineness of that passport, and the reason why the Director chose not to accept the statement from the Director of Foreign Affairs and International co-operation of the Republic of Vanuatu the passport was a true document and the authentication was signed by the Protocol and Consular officer after verification;

(6)  the reason why the PRC was the destination of the Removal Order, notwithstanding that the Director found that the Applicant had no valid PRC passport.

81.With respect, there is nothing in this criticism. Firstly, there is no reason to impose upon the Director any “heightened” standard of reasoning. Secondly, in any event, in light of the meetings and various correspondence (see above), there can be no doubt that the Applicant was fully aware of the reasons why the Director considered each of the PRC, Guinean and Vanuatu Passports as not being valid travel documents:

(1)  As to the PRC Passport, an immigration officer personally explained to the Applicant that her PRC Passport was cancelled, and in subsequent correspondence the Applicant was invited to submit a valid passport or travel document. Further, as Ms Tong has pointed out, the Applicant was able herself to explain in the Handwritten Letter why her PRC Passport may have been invalidated.

(2)  As to the Guinean Passport, the Director explained to the Applicant in writing in June 2020 that he had received a letter from the Guinean Embassy which confirmed that the Guinean Passport was forged.

(3)  As to the Vanuatu Passport, the Director also explained to the Applicant in writing in December 2020 that the Vanuatu Passport was irrelevant because it was obtained subsequent to the limit of stay on 5 January 2017 and, in any event, the Vanuatu Embassy had confirmed that the Vanuatu Passport had been cancelled.

82.Indeed, the letters identifying the Four Decisions as they were made must be read in the context of the parties’ prior dealings, and in particular the basis upon which the requests for reconsideration were made. Further, there can be no doubt that upon receipt of the 3^rd Decision and the detailed letter explaining the 4^th Decision (with its footnote reference to much of the prior exchange of correspondence between the Applicant, her solicitors and the ImmD), the Applicant must have been aware of the reasoning for the decisions.

83.There is also force in Ms Tong’s submissions that the Applicant must have been provided with adequate reasons in light of the ability to have formulated the detailed and lengthy Form 86 filed seeking to challenge each of the Four Decisions and the Removal Order on various grounds.

84.Nor was the Director required as a matter of law to engage in detail with all the submissions made by the Applicant or her solicitors in attempted support of the Application. Not least, I do not think the Director was in any way obliged to set out how he weighed the various legal opinions provided against the official confirmation is received from the various external/foreign government authorities.

85.As to the PRC Passport, the Applicant was told that ImmD had been informed by the Liaison Office (an official organ of the PRC Government in Hong Kong) that the PRC Passport was invalid. It seems to me to be trite, and fully in line with previous authorities, that the ImmD was entitled to give weight to and rely on the notification from the Liaison Office, without second-guessing why and how the PRC Passport had become invalid. Further, in her Handwritten Letter, the Applicant expressed having taken her own legal advice and could explain herself why the PRC Passport was “suspended”.

86.Indeed, in his dealings with relevant governmental authorities in other jurisdictions, the Director is entitled to act on the assumption that those authorities had conducted proper investigation before coming to the finding notified to the Director. I reject the suggestion made by the Applicant’s solicitors in correspondence that the burden lay on the ImmD to prove that the PRC Passport (or any other passport put forward) was invalid. On the contrary, it was for the Applicant to provide a valid travel document, and to show its validity and that it remained extant when that was called into question.

87.She did not do so simply by providing a PRC legal opinion, which suggests that (only) an oral confirmation had been received from a staff member of the Sichuan Authority, apparently made on the basis of a computer intranet search, that there have been no decision to revoke or invalidate the PRC Passport. When asked to produce written confirmation as to validity, the Applicant was unable to produce it – and has still failed to do so.

88.As to the Guinean Passport, it seems to me that the Director was plainly entitled to rely on, and to identify his reliance on, the final confirmation given by the Guinean Embassy in June 2020 that the Guinean Passport was forged. Indeed, where there had been previous contradictory statements, the final confirmation provided would likely and properly be taken to have greater weight. Again, the Applicant has only produced a legal opinion as to which relevant department could verify the authenticity of the passport. It can be noted that the opinion specifically identified how the Applicant herself might have proceeded to verify the authenticity of the Guinean Passport, but notwithstanding the passage of time since that opinion was provided, she has failed to produce actual evidence to substantiate the authenticity of the Guinean Passport.

89.As to the Vanuatu Passport, whilst the Vanuatu Embassy had initially confirmed that it was genuine, it subsequently (and on its own motion) quickly retracted from that position and stated that the Vanuatu Passport had been cancelled. Further, Qu’s apparent receipt of confirmation as to the authenticity of the Vanuatu Passport is obviously beside the point when the question was not authenticity, but validity or whether it had been cancelled. Again, even up to now the Applicant has not produced any further evidence which identifies the Vanuatu Passport is or was valid and extant.

90.I also accept Ms Tong’s submission that the basis of the Director’s decisions has, in any event, been fully disclosed in these proceedings, not least by the disclosure of the relevant file minutes or memoranda for each of the Four Decisions.

91.Ground 2 is not reasonably arguable with any realistic prospect of success.

F.  Ground 3: Tameside Breach

92.This Ground is based on the suggestion that the Director failed to make the necessary enquiries to enable him correctly to determine the validity of the various passports put forward by the Applicant in support of her Application. What is alleged is a breach of the so-called Tameside duty.

93.It is settled that the Tameside duty – so named from the case of Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 – is based on the principle that a decision-maker must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. The Tameside duty is a facet of Wednesbury unreasonableness, where the extent of the duty is affected by the following principles:

(1)  The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

(2)  Subject to a Wednesbury challenge, it is for the public body and not the Court to decide upon the manner and intensity of inquiry to be undertaken.

(3)  The Court should not intervene merely because it considers that further enquiries would have been sensible or desirable, but only if no reasonable authority could have been satisfied on the basis that the enquiries made that it possessed the information necessary for its decision.

(4)  The Court should establish what material was before the decision-maker and only strike down the decision not to make further enquiries if no reasonable decision-maker possessed of that material could suppose that the enquiries made were sufficient.

(5)  The duty which may require a decision-maker to draw his own attention to relevant considerations, perhaps by consulting other bodies or persons with particular knowledge or involvement, springs from the duty to inform himself so as to arrive at a rational conclusion (and it is not a duty of procedural fairness).

(6)  The wider the discretion conferred on the decision-maker, the more important it must be that he has all relevant materials to enable him properly to exercise it.

94.The Applicant’s challenge on this Ground is focused only on the Director’s approach to the PRC Passport and the Guinean Passport. Mr Shum identifies that the validity of those passports was clearly a relevant important matter in the making of the Four Decisions and the Removal Order (which must be correct). Therefore, Mr Shum submits, when faced with the various PRC and Guinean legal opinions, the Director was duty-bound to take reasonable steps to make the necessary enquiries with the competent authorities to clarify the contradiction between those legal opinions and the replies the Director had received. Instead, Mr Shum says, the Director failed to make the necessary enquiries and merely “adopted wholesale” (his phrase) the replies from the Liaison Office and the Guinean Embassy in Beijing.

95.This criticism, and its phrasing, are clearly misplaced. There was no inapt wholesale adoption. Rather, as was informed to the Applicant, the Director based his decisions on notifications received by him from the official bodies of the Liaison Office and the Guinean Embassy, on whose views he was plainly entitled to place significant weight – and reasonably to take the view that he possessed the information necessary for his decision. Indeed, it might be asked why, if the official bodies had expressed their views, the Director should second-guess or challenge them in the light of mere legal opinions which suggested a different conclusion.

96.It also seems to me that the Director would have been entitled to proceed on the basis that, if the Applicant wanted to engage in a legal argument as to the authenticity/validity of the PRC Passport or the Guinean Passport, she should engage in that argument with the relevant authorities of the PRC and Guinea, and not with the Director of Immigration in Hong Kong.

97.In this regard, section 2 of the Ordinance is again relevant, as the definition of “valid travel document” relating to a passport includes that it is “still valid according to the laws of the country or territory by or on behalf of which it was issued”. As regards each of the PRC Passport and Guinean Passport, upon which the Applicant was intending to place reliance, the Applicant was in the best position to demonstrate validity according to the laws of the places where they were issued. Put another way, once the Director had received confirmation from official bodies (who would likely have made the necessary relevant enquiries), he can properly have satisfied the obligation upon the decision-maker to take reasonable steps to inform himself.

98.Ground 3 is not reasonably arguable with any realistic prospect of success.

G.  Ground 4: Legitimate Expectation

99.This ground is based on the suggestion that the previous conduct of the Director gave rise to a legitimate expectation that the Applicant’s Vanuatu Passport would be taken into account in consideration (or re-consideration) of her Application.

100.Of course, the short answer is that the Vanuatu Passport was taken into account, but was considered to be either (1) irrelevant, because of its date of issue being long after the expiry of the Applicant’s permission to stay in Hong Kong, or (2) of no assistance because it had been cancelled. The longer answer leads to the same conclusion.

101.The principles applicable on the doctrine of legitimate expectation are well-settled. In essence, they can be summarised as follows:

(1)  In general, a legitimate expectation arises as a result of a promise, representation, practice or policy made, adopted or announced by or on behalf of the Government.

(2)  A legitimate expectation can arise from an implied representation from past conduct or a practice which the applicant may reasonably expect will be continued.

(3)  The law requires that a legitimate expectation arising from a promise or representation be properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker.

(4)  In order to found a claim of legitimate expectation, it is necessary that the statement relied upon should be clear, unambiguous and devoid of qualification.

(5)  Hence it is necessary for the Court, on any challenge, to focus on the question as to what the statement unambiguously promised.

(6)  As part of the exercise of construction and identifying the legitimate expectation claim, any legitimate expectation must be reasonable (the terms “legitimate” and “reasonable” being the same”.

(7)  Absent contrary reasons recognised by law, effect should be given to legitimate expectations.

(8)  Where effect is not given to a legitimate expectation, fairness requires the decision-maker to express reasons so that they may be tested by the Court if the decision is challenged.

102.Mr Shum submits that the Applicant’s legitimate expectation that her Vanuatu Passport would be taken into consideration arises from the facts that: (1) in the face-to-face meeting on 7 February 2017 and by letter, the Applicant was asked to submit a valid passport or travel document by 21 February 2021; (2) the Director did consider the Applicant’s Guinean Passport, which was issued on 2 March 2017; and (3) in reliance on the representation made at the meeting, the Applicant applied for her Guinean Passport and her Vanuatu Passport to satisfy the requirement of submitting a valid passport or travel document.

103.With respect, no arguable legitimate or reasonable expectation arises from those points. First, the third point is an assertion of reliance by the Applicant, and not the assertion of a representation to the Applicant. Secondly, nor do the other two points give rise to the suggested legitimate expectation.

104.As to the face-to-face meeting, the request that the Applicant should furnish a valid travel document by 21 February 2017 (later extended to 7 March 2017) cannot arguably be construed as a representation that the Director would take into account any travel document whenever issued, or whenever submitted, after the expiry of the limit of stay.

105.Further, though the Guinean Passport was issued on 2 March 2017 – and so around two months after the expiry of the limit of stay – it was issued prior to the extended date given for furnishing a valid travel document and prior to a formal decision being made on the Application (i.e. before the 1^st Decision). The fact that the Director took it into account in assessing the Application and in reaching his 1^st Decision cannot arguably be construed as a representation that the Director would take into account any other travel document whenever issued or whenever submitted – and in particular after and as regards requested reconsideration of the 1^st Decision.

106.As Ms Tong put it succinctly, there is a world of difference between (1) accepting a passport obtained two months after the expiry of the limit of stay and before any formal decision had been made on the Application, and (2) accepting a passport that was obtained more than two years later, in circumstances where the Application had already been rejected twice. I agree.

107.Ground 4 is not reasonably arguable with any realistic prospect of success.

H.  Ground 5: Wednesbury Unreasonableness

108.This ground adds nothing to the other grounds advanced. In his oral submissions, Mr Shum acknowledged this as a “wrap-up” ground, based on the criticisms of the Four Decisions and Removal Order made in other grounds.

109.Mr Shum’s submission is that, based on the evidence and information available to the Director, it was Wednesbury unreasonable to make the Four Decisions and the Removal Order because:

(1)  For reasons submitted under the illegality ground, the Scheme Rules properly construed did not require applicants to possess a “valid travel document” for the purpose of extension. Because the Applicant had valid permanent residency in Gambia, she would have qualified under the “stateless persons” category of applicants despite the invalidity of her passports.

(2)  Even if “valid travel document” was an eligibility criterion, in light of the representations and legal opinions supplied by the Applicant in support of the validity of her PRC and Guinean Passports, it was unreasonable for the Director to conclude that they were invalid.

(3)  When the Applicant submitted proof of her Guinean Passport, citizenship and/or her Vanuatu Passport to the Director, she fulfilled the eligibility requirements for extension under the Scheme Rules, and it was unreasonable not to grant her an extension of stay.

110.These individual points can be seen to be mere repetition of the points already advanced in other grounds, and dealt with by me above. I have held that the first point (on illegality) fails, and the second and third points (on reasons and the Tameside duty facet of the Wednesbury test) also have no arguable merit.

111.Ground 5 is not reasonably arguable with any realistic prospect of success.

I.  Result

112.I have found that Ground 1 is sufficiently arguable to meet the threshold test for the grant of leave to apply for judicial review. However, on substantive review, background fails. None of the other Grounds 2 to 5 of intended review have sufficient merit for the grant of leave to apply for judicial review.

113.In those circumstances, the Applicant’s application is dismissed.

J.  Costs

114.I see no reason why costs should not follow the event. Therefore, the Applicant shall pay the Director’s costs of the application, to be summarily assessed with certificate for two Counsel.

115.I have made one prior costs order, on the adjournment of an earlier hearing, when the matter was re-fixed for 3 July 2024, and the costs thrown away by that adjournment are payable by the Applicant to the Director, also to be summarily assessed. On behalf of the Director, a statement of costs for that summary assessment has already been provided. The Director should also now provide a statement of costs for summary assessment of the costs of the application, and do so by 12 July 2024.

116.The Applicant shall have until 26 July 2024 to provide lists of objections, if any, to those statements. If costs cannot be agreed between the parties, I will then perform a summary assessment on the papers.

117.The amount assessed by me will be payable out of the $400,000 currently in court and paid by the Applicant as security for the Director’s costs. Any balance not required to settle the assessed sum of costs will be returned to the Applicant.

Mr Erik Shum, Mr Gavin Wan and Mr Isaac Wu, instructed by Lee, Wong & Lam, for the applicant in both cases

Ms Sara Tong SC and Mr Sik Chee Ching, instructed by the Department of Justice, for the putative respondent in both cases