Faisal Muhammad and Others v. Director of Immigration

HCAL 1903/2023

[2024] HKCFI 2579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1903 OF 2023

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J U D G M E N T

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A.  Introduction

1.By Form 86 originally dated 19 October 2023, but amended on 5 February 2024, the Applicants (family members, individually “A1”, “A2”, “A3”, etc) sought leave to apply for judicial review to challenge various decisions of the putative respondent Director of Immigration (“Director”). The primary impugned decisions related to A1, with the decisions related to A2 to A6 dependent on them.

2.I gave leave to the Director to file an Initial Response to the application, which was filed prior to the amendments being made to the Form 86. I also brought the matter to the requested oral hearing of the application for leave, which hearing occurred on 22 March 2024.

3.At that hearing, the Applicants were represented by Mr Kamlesh Sadhwani of Counsel, with the benefit of relatively full written submissions provided by him. The Director was represented by Mr Rex Cheung, Senior Government Counsel, who relied on the matters in the Initial Response and some oral submissions.

4.Following the hearing, I reserved my decision to be handed down later. Subsequently, on 29 April 2024, I granted leave to apply for judicial review on Grounds 1, 2 and 3 as identified in the Amended Form 86. I refused leave to apply for judicial review on the proposed Grounds 4 and 5.

5.The substantive judicial review hearing was on 26 September 2024.

6.Shortly before that, the Applicants filed a notice to act in person, and A1 wrote to the Court to ask also to act for A5 (a minor). On the day of the hearing, A1 wrote to say he would not appear as he was ill, but that A3 and A6 would appear and represent him and the family. Though technically A3 and A6 could only appear for themselves, and A1 was therefore neither present nor represented, it was clear that A3 and A6 would (1) rely on the same points as would A1, and (2) in any event simply rest their case on the materials previously filed when they had instructed solicitors and Counsel.

7.A3 and A6 appeared at the hearing in person with an English/Urdu interpreter. They added no oral submissions and relied on the arguments made in the Amended Form 86 and the relatively full skeleton submissions filed by Mr Sadhwani for the leave hearing.

8.The Director was represented by Mr Louie Chan, Acting Senior Government Counsel, with the benefit of written submissions filed in advance, where he correctly anticipated that the Applicants (if acting in person) would likely simply rely on materials previously filed when they were legally represented.

9.At the end of the hearing, I reserved my decision. This is my Judgment.

B.  Factual Background

10.A1 is a Pakistani national born on 1 January 1982. He has a bachelor’s degree in computer science, obtained from the University of the Punjab, Pakistan in 2002. Between 2004 and 2007, he completed various diploma courses on marketing, computer and office management in Pakistan, and had work experience in the marketing field. A1 says that he knows Punjabi, English, Pashto, Urdu, Chinese and Arabic.

11.A2-A6 are all Pakistani nationals. A2 was born on 28 September 1984 and married A1 in Pakistan on 4 January 2001. They are reported to have eight children. Four of them are Applicants in these proceedings: A3, A6 and A4 – age seniority in that order, the eldest three children born in 2001, 2002 and 2003 respectively, all sons – and A5 – the youngest child born in 2018, a daughter.

12.A2 and A3-A6 have been under A1’s sponsorship during their entry dependant visa applications and subsequent applications for extension of stay (“E/S”). The other four children have not applied for any entry dependant visa applications to join A1 in Hong Kong.

13.On 28 September 2017, A1 submitted an application for entry for visit in Hong Kong, with the stated intention of visiting a local company for business purpose. The Director was not satisfied with the bona fides of A1’s stated purpose of the intended visit and refused the application.

14.On 27 December 2017, A1 submitted an application – via his then solicitors – for entry for employment as a professional in Hong Kong under the General Employment Policy (“GEP”). A1 wished to take up employment under the GEP for the post of Sales/Marketing Manager under the sponsorship of the proposed employer company ART Trading (HK) Ltd (“C1”).

15.The GEP is an immigration scheme for persons who wish to enter or stay in the Hong Kong Special Administrative Region for employment as professionals. Persons who possess special skills, knowledge or experience of value to and not readily available in Hong Kong may apply to come to work under the GEP.

16.The GEP applicable at the time of events giving rise to these proceedings was contained in the December 2022 version of the relevant Guidebook. An application for a visa to take up employment under the GEP may be favourably considered if certain eligibility criteria are all met, namely:

(1)  there is no security objection and no known record of serious crime in respect of the applicant;

(2)  the applicant has a good education background, normally a first degree in the relevant field, but in special circumstances good technical qualifications, proven professional abilities and/or relevant experience and achievements supported by documentary evidence may also be accepted;

(3)  there is a genuine job vacancy;

(4)  the applicant has a confirmed offer of employment and is employed in a job relevant to his academic qualifications or work experience that cannot be readily taken up by the local workforce; and

(5)  the remuneration package including income, accommodation, medical and other fringe benefits is broadly commensurate with the prevailing market level for professionals in Hong Kong.

17.A person admitted as a professional under the GEP will normally be granted an initial stay of 36 months on employment condition, and he/she may apply for an E/S within four weeks before the limit of stay expires. Such applications will be considered only when the applicant continues to meet the eligibility criteria under the GEP. Professionals admitted under the GEP should only take such employment as approved by the Director, and should seek prior approval from the Director for any change of employment. Such applications may be favourably considered if the applicant continues to fulfil the eligibility criteria under the GEP.

18.Applicants admitted under the GEP may apply to bring their spouse and unmarried dependent children under the age of 18 to Hong Kong under the dependant policy if the normal immigration requirements and relevant criteria are met. The length of stay of dependants will normally be linked to that of their sponsor.

19.In accordance with the GEP, the Director approved A1’s application, based on the information then provided by A1 and C1, on 27 March 2018. An entry GEP visa was issued to A1 on 4 April 2018, with a limit of stay until 12 September 2018 (the expiry date of his then passport being 19 September 2018). A1 arrived in Hong Kong on 12 May 2018.

20.On 8 June 2018, via his authorised agency, A1 submitted his first E/S application under the GEP under the continued sponsorship of C1 – doing so early because of his difficulty in applying for a Hong Kong identity card. After ensuring that C1 was willing to sponsor A1 for another 36 months and the eligibility criteria under the GEP being continually fulfilled, and since A1 provided a new Pakistani passport valid until 14 May 2028, the Director approved A1’s first E/S application on 25 June 2018, extending his permission to remain in Hong Kong on employment status until 12 September 2021.

21.On 4 October 2018, A2-A6 applied for entry for residence as dependants of A1 in Hong Kong. On 18 June 2019, the Director approved applications with limit of stay until 12 September 2021, in line with that of A1 as their sponsor. On various dates in July 2019, A2-A6 arrived in Hong Kong. Subsequently, on 15 August 2019, A2 and A5 departed Hong Kong and, on 24 January 2021, A4 departed Hong Kong.

22.On 24 June 2020, the Director received a letter dated 23 April 2020 from C1, informing that A1’s employment had been terminated by C1 since 30 April 2019.

23.On 1 September 2021, A1 made a second E/S application under the sponsorship of Amici HK Company Ltd (“C2”), and a change of employment (“C/E”) application to take up the post of Sales Marketing Manager in C2. On 9 September 2021, A2-A6 submitted their E/S applications as A1’s dependants.

24.C2 is a Hong Kong company trading electronic products and providing interpretation services. A1’s responsibilities as a Sales & Marketing Manager would include working business promotion, marketing analysis, coordination with overseas agents, etc. According to C2’s business plan, A1 would also assist in the marketing research and sales in respect of C2’s plan to develop smart tablets in the South Asian Market.

25.By letter dated 4 October 2021 and two reminder letters dated 6 November 2021 and 22 November 2021, ImmD invited C2 to provide documents and information supporting A1’s second E/S application and the C/E application. On 13 December 2021, ImmD received C2’s letter dated 6 December 2021 submitting some supporting documents.

26.After A1 appointed new solicitors as his legal representative for his E/S and C/E applications, the Immigration Department (“ImmD”) issued the letter requesting the solicitors to furnish documents and information by 31 December 2021. Some information was received on 3 January 2022, under cover of an undated letter from C2. On 24 March 2022, ImmD invited C2 to provide supporting documents/information in relation to A1’s termination/payroll/MPF record at C1 by 6 April 2022. Among the supplementary documents received from C2, there was a resignation letter dated 1 March 2021 from A1, indicating his last day of employment at C1 fell on 31 March 2021.

27.That information was obviously inconsistent with C1’s own earlier information that A1’s employment with it was terminated on 30 April 2019. Hence, further clarification was sought from A1, who provided a written explanation dated 26 April 2022 that (1) his resignation from C1 took effect from 31 March 2021, and (2) C1 had paid MPF up to 1 April 2019, but continued to pay salary by depositing cash in A1’s bank account from January 2019 until his resignation. Somewhat inconsistently with that statement, A1 also submitted that he took unpaid leave from January 2020. He also stated that he returned to Pakistan on 20 February 2020 but was unable to return to Hong Kong until July 2020 because of COVID-19. Thereafter, because of lack of business, he was asked by C1 to resume duty from December 2020.

28.On 27 June 2022, C2 sent a letter to A1, copied to the Director stating that it was no longer willing to wait, and unless A1 was able to receive the outcome of his application on or before 4 July 2022, it would be left with no alternative but to withdraw the company’s sponsorship with immediate effect. On 3 August 2022, C2’s representative confirmed maintaining its decision to withdraw sponsorship of A1’s E/S and C/E applications. On 8 August 2022, the Director informed A1 that in the circumstances, his E/S and C/E application as well as A2-A6’s E/S applications were cancelled.

29.On 19 August 2022, via his solicitors, A1 explained that he had convinced C2 to continue sponsoring his application, and submitted a letter dated 18 August 2022 from C2 informing ImmD that it had decided to withdraw its previous withdrawal from sponsoring the application. The solicitors requested the Director to reopen the various applications and assess them. They were told that there was no mechanism of re-opening of application, but A1 could make a new application for entry employment visa.

30.By Form 86 dated 14 September 2022, A1-A6 then issued judicial review proceedings in HCAL 934/2022 against the Director’s decision dated 8 August 2022, not to process the applications. However subsequently, A1-A6 decided to submit fresh applications, and the judicial review proceedings were withdrawn by consent.

31.On 6 October 2022, ImmD received A1’s renewed E/S application under the sponsorship of C2, and the E/S applications of A2-A6 to remain in Hong Kong as A1’s dependants.

32.There followed correspondence between ImmD and the solicitors, in which ImmD requested documents/information in support by various dates, which were not met, albeit that the solicitors provided part of the requested documentation on two occasions after the deadlines set.

33.In March 2023, the Director refused A1’s E/S and C/E application under the GEP as he was not satisfied the eligibility criteria were all met, namely that A1 possessed a special skill, knowledge or experience of value to and not readily available in the HKSAR, and that the job could not be filled locally so that it was justifiable for the sponsoring company to bring in an expatriate. A2-A6’s E/S applications were refused at the same time. By letter dated 21 March 2023, A1 was informed of the refusal decision (“1^st Decision”).

34.On 3 April 2023, solicitors acting on behalf of A1-A6 submitted to the Director their first request for reconsideration of the 1^st Decision. On 2 June 2023, ImmD requested A1 to furnish certain documents/information by 9 June 2023. On 20 June 2023, ImmD received the requested documents from the solicitors for A1-A6 under cover of a letter dated 19 June 2023.

35.After considering the various materials, the Director found no reasonable justification for reversing the 1^st Decision and informed the solicitors by letter dated 28 July 2023 that the 1^st Decision stood (“2^nd Decision”).

36.On 11 August 2023, solicitors acting for A1-A6 submitted to the Director a second request for consideration. After further consideration of the information available and circumstances of the case, the Director found no reasonable justification for reversing the earlier decisions, and informed the solicitors by letter dated 12 October 2023 that the decisions still stood (“3^rd Decision”).

37.Some further detail is canvassed below.

C.  Grounds of Review

38.I granted leave to apply for judicial review on the following three Grounds of review, as advanced in the Amended Form 86 (on which basis I proceeded):

(1)  Ground 1: The Director failed to consider or to give due weight to relevant considerations, including A1’s qualifications, C2’s attempts at hiring from the local workforce and C2’s genuine business needs.

(2)  Ground 2: The director took into account irrelevant considerations, namely the commercial viability of C2’s business plans.

(3)  Ground 3: The Director failed to act consistently in relation to the issue of whether A1 possessed a locally unavailable skill set so as to be arbitrary and/or irrational.

39.Though there is some degree of overlap between them, I can deal with each of the Grounds in turn.

D.  Legal Context

40.Before doing so, I can usefully set out some relevant and applicable legal principles for the context of the present application for judicial review. These have been helpfully addressed by Mr Chan in his written submissions, and they can be taken quite shortly.

41.It is settled – see, for example, BI v Director of Immigration [2016] HKCA 89 at §92 – that:

(1)  It is appropriate and necessary for the maintenance of its suitability for Hong Kong to adopt restrictive immigration policies and practices.

(2)  The Court is not equipped with the necessary information or task by the law to carry out the responsibility of the Director.

(3)  Nevertheless, the Court retains a supervisory jurisdiction over the Director’s exercise of the power of immigration control.

(4)  If the Director fails to take relevant considerations that are legally required to be taken into account, or takes into account irrelevant considerations which he legally should not take into account, the decision would not be valid.

(5)  The Court can also intervene where the Director does not act fairly in the decision making process.

(6)  The Court may also intervene where the decision is found to be Wednesbury unreasonable or irrational.

(7)  An important consideration in the application of the principle of legality in the Hong Kong immigration context is the reservation in section 11 of the Hong Kong Bill of Rights Ordinance, providing that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong.

42.It is also trite, and no authority is needed for the proposition, that decisions are to be made by the decision maker to whom the legislature has entrusted that function, including any relevant fact finding function. It is the duty of the Court to leave decisions of fact to the decision maker, unless it is obvious that the public body has acted perversely, or in breach of some other public law requirement.

43.Another way of putting it is that the Court exercising its judicial review jurisdiction does not reach its own conclusion on the primary facts, and should accept apparently tenable conclusions (including conclusions as to credibility). But the Court retains powers to intervene where there was unsatisfactory treatment of facts by the decision maker, such as where the finding of fact was irrational or perverse, or unsupported by evidence, or was plainly untenable, or where irrelevant factors were taken into consideration or relevant factors were not considered or were misunderstood.

44.It is the burden of the person seeking permission to reside in Hong Kong to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the Director. It is not for the Director to have to show that an applicant or an application falls outside the policy.

45.I would add that, though it may be that the Director from time to time seeks further information than is originally provided in support of an application, that does not create some ongoing obligation on the Director to continue to seek materials. The burden remains on the applicant to establish such facts as might persuade the Director that the grant of the permission sought by the application is appropriate – and the Director is entitled to form a view, and to make his decision, on the materials provided.

46.It is also settled that each application for such a visa must depend on its own facts and be considered in accordance with the prevailing social, economic and labour market conditions. It is a wrong premise to assume that the previous grant of a visa creates some sort of precedent binding on the Director in relation to a subsequent application.

E.  Ground 1

47.The complaint is that the Director failed to consider at all, or give due weight to, A1’s qualifications, C2’s effort of local recruitment, and C2’s business plan (together, “Relevant Considerations”).

48.The argument on behalf of A1 is that the main grounds on which the Director reached the 1^st Decision (which were repeated for the 2^nd and 3^rd Decisions upon the reconsideration) included that:

(1)  A1’s qualification does not demonstrate a locally unavailable skill set.

(2)  A1’s claimed duration of employment is inconsistent with C1’s letter, and therefore the Director was not satisfied that A1 had special skills, knowledge, or experience that is not readily available in Hong Kong.

(3)  It is not shown that the newly created post which A1 would fill is needed for the expansion of C2’s smart tablet business.

(4)  The financial projections submitted by C2 were overly optimistic and not credible.

49.It is then argued (in my summary of the arguments) that:

(1)  C2’s business plan made apparent that A1’s job duties would include promotion and marketing work in the South Asian Market where his proficiency in South Asian languages such as Urdu is highly relevant. Therefore, the Director’s dismissal of the language requirement as doubtful was erroneous.

(2)  A1’s resume showed that he had extensive work experience in the marketing field in Pakistan from 2004 to 2018, as well as subsequently in Hong Kong. Therefore, to conclude that he did not have any special skills, knowledge, experience, proven professional abilities or achievement not readily available in Hong Kong on the basis that his proven work experience in Hong Kong amounted to 11 months clearly disregarded the work experience in Pakistan.

(3)  There was also the failure to consider A1’s overall qualifications as a whole to assess whether the cumulative effect of his language proficiency, education background and work experience would render his skill set unavailable in Hong Kong.

(4)  There was evidence of C2’s effort of local recruitment including job advertisements on the Labour Department website and CVs of applicants. Therefore, the Director’s conclusion that there was no information that the supply of workforce is inadequate to fill the post, and the availability of local workforce had not yet been fully tested, failed to take into account those materials and would not have been a view which any reasonable authority would have reached.

(5)  The Director wrongly focused on A1’s duties in relation to C2’s business plan to develop its smart tablet business, and failed fully to consider his other duties and C2’s business needs.

50.The starting point of the consideration of Ground 1 is that it is, of course, not in dispute that the Director is legally required to consider the Relevant Considerations. But Mr Chan submits that the Director plainly did take the Relevant Considerations into account, including by making requests for further information in that regard, and by giving ample opportunities to A1 to furnish further information and documents in support of those Relevant Considerations. Further, Mr Chan submits that the weight to be given to the materials was a matter for the Director, and the consideration of what weight to give, as can be seen from the relevant file minutes, was obviously far from perverse, but instead was meticulous and careful.

51.Mr Chan has also drawn, from the evidence filed, the following matters of fact and chronology (to which I have added some matters, also from the evidence filed):

(1)  On 6 December 2021, C2 wrote a letter in support with some supporting documents, but no information or supporting documents were provided in respect of its attempt at local recruitment.

(2)  Hence, the Director had to ask A1, through his legal representatives, to furnish supporting documents and information on C2’s nature of business and its future plans, and an explanation as to why A1’s post may not be filled locally and whether local recruitment had been attempted. A deadline of 31 December 2021 was set.

(3)  After expiry of that deadline, on 3 January 2022 the Director received an undated letter from C2 clearly focusing on the intended role of A1 in its intended smart tablet business. The letter also claimed that that first recruitment initiative would begin in the first quarter of 2022, though no documents in support were provided.

(4)  A1 did not actively and promptly submit the request information for processing his application, leading to C2’s letter informing that they would withdraw its sponsorship, which identified that it was not C2’s only choice to employ A1.

(5)  After the withdrawal was withdrawn and the sponsorship recommenced, A1 was asked on 24 October 2022 to furnish information and documents in support of his work experience, the financial situation of C2, and justifications why the post may not be filled locally in Hong Kong. A deadline of 7 November 2022 was set.

(6)  On 30 November 2022, A1 provided part of the requested documents, that C2 would advertise in a local newspaper and recruit new staff through the Labour Department’s platform.

(7)  On 8 December 2022, A1 was requested to furnish further documents and information in support of the same matters.

(8)  By 17 February 2023, and despite repeated extensions of time and opportunities for him to do so, A1 still failed to provide reasons or supporting documents on why his post may not be filled locally in Hong Kong.

(9)  On 18 March 2023, having considered all the documents furnished, the Director made the 1^st Decision, notified on 21 March 2023. The basis of the 1^st Decision was the failures by A1:

(a)  to show that the post of Sales & Marketing Manager in C2 could not be filled by local candidates and genuine efforts were made to recruit suitable local candidates;

(b)  to show that he was in possession of any special skills etc not readily available in Hong Kong, taking into account his work experience in C1 of only 11 months from May 2018 to April 2019;

(c)  to show that C2 had a concrete business plan to develop and manufacture smart tablets justifying the hiring of A1 in a managerial post, in addition to the original workforce; and

(d)  to show that C2 had the financial capability to operate the proposed business plan and support A1’s application.

(10)  It was also noted that C2 had never specified any language requirement for the post of Sales & Marketing Manager.

(11)  A1’s request for reconsideration was made on 3 April 2023.

(12)  On 2 June 2023, the Director again requested A1 to furnish his resume and documents showing C2’s attempt at local recruitment in Hong Kong. A deadline of 9 June 2023 was set.

(13)  On 20 June 2023, the requested documents and other supporting documents were received.

(14)  On 28 July 2023, the Director made the 2^nd Decision, refusing the visa application on the grounds that:

(a)  A1 failed to show that the job duties of the post of Sales & Marketing Manager involved any special knowledge or skills that could not be readily provided by local workforce;

(b)  the language requirement of Urdu and Arabic was not mentioned during the initial application and thus, it cast doubt whether they were bona fide requirements;

(c)  A1 failed to show that his proficiency in Urdu and Arabic met the new language requirement of the post; and

(d)  A1 failed to show that the local workforce to fill the post had been fully tested by C2.

(15)  On 11 August 2023, the second request for consideration was made to the Director.

(16)  But rather than producing further documents to substantiate A1’s work experience, the financial situation of C2, and justifications why the post may not be filled locally in Hong Kong, A1 advanced arguments through Counsel that:

(a)  the previous approval of the employment visa showed that A1 possessed the special skill, knowledge or experience of value that was not readily available in Hong Kong;

(b)  the language requirement was a crucial factor for recruiting an expatriate for C2, and

(c)  for C2’s business plan to materialise, C2 required A1’s skills, knowledge and experience to develop the smart tablet products.

(17)  Having considered all of the representations, submissions and supporting documents furnished, the Director still maintained the observations that:

(a)  A1 did not possess a special skill, knowledge or experience of value to and not readily available in Hong Kong; and

(b)  the job could be filled locally and it was not justifiable for C2 to bring in an expatriate.

52.From these materials, it is clear that the Director did in fact closely examine the facts of the case, including the Relevant Considerations – and did so after seeking further information and giving further opportunities for A1 to furnish materials in support of the Relevant Considerations. So analysed, the Applicants’ real complaint is that the Director failed to give enough weight to particular factors of the Relevant Considerations, or perhaps that he misunderstood them.

53.However, as already indicated above, weighing and balancing in the process was a matter for the Director, unless he acted perversely or in breach of some other public law requirement. In support of his submission that there has been no such public law failure by the Director, Mr Chan compiled a helpful table relating to the way in which the Relevant Considerations arose and developed on the Applicants’ applications, and were considered and addressed by the Director in response. With certain amendments, I gratefully adopt that table, as it seems to me fairly to identify how matters arose and were addressed, as can be seen in the relevant file minutes relating to each of the impugned 1^st, 2^nd and 3^rd Decisions.

54.The table is as follows:

Relevant Considerations	1st Decision	2nd Decision	3rd Decision
A1’s qualifications
Language	C2 did not mention language as a requirement in the initial application.	Director expressed doubt as to whether language proficiency in Urdu and Arabic was a bona fide requirement, as it was not mentioned in the initial application.   A1 had no professional qualification or proof to demonstrate his language proficiency.   Director considered that the language proficiency in a foreign language should not be deemed as an overwhelming factor in the consideration of this case.	No new information was provided by A1 in this regard.   Director expressed doubt as to whether language proficiency in Urdu and Arabic was a bona fide requirement, as it was not mentioned in the initial application.   Director considered that the language proficiency in a foreign language should not be deemed as an overwhelming factor in the consideration of this case.
Work experience	Director noted that A1 had working experience in Pakistan in the field of marketing / sales from March 2004 to March 2018.   Director considered that A1’s qualification did not demonstrate a locally unavailable skillset.	CV, work experiences and qualifications were duplicated from the initial application.   Director was not satisfied that the job duties for the post involved any special knowledge or skills that could not be readily provided by the local workforce.	No new information was provided by A1 in this regard.
C2’s effort of local recruitment
Job advertisements	No information or details regarding C2’s local recruitment attempts were made.	C2 did not provide any elaboration of the selection process.   Director considered that there was no information that supply of workforce was inadequate to fill the post, and the availability of local workforce had not yet been fully tested.	No new information was provided by A1 in this regard.
CVs received from other candidates for the post	No information or details regarding C2’s local recruitment attempts were made.	C2 did not provide any reasons for the candidates that were considered not suitable for the post.   Director considered that there was no information that supply of workforce was inadequate to fill the post, and the availability of local workforce had not yet been fully tested.	No new information was provided by A1 in this regard.
C2’s local recruitment to no avail	No information or details regarding C2’s local recruitment attempts were made.	C2 did not provide any elaboration of the selection process and did not provide any reasons for the candidates that were considered not suitable for the post.   Director considered that there was no information that supply of workforce was inadequate to fill the post, and the availability of local workforce had not yet been fully tested.	No new information was provided by A1 in this regard.
C2’s business plan and A1’s duties
Plan to develop smart tablet	Director noted that, although one of the roles of A1 was to assist the Research and Development Officer in relation to this area, C2 did not have such position in their existing staff. Additionally, except the business plan, C2 did not provide details in its smart tablets development.   Director considered that there was no information furnished in support of the said plan of smart tablets development.	C2 did not provide any detailed and concrete plan or timeline in relation to production of smart tablets.   Director was not satisfied that the newly created post was needed for the expansion of the said smart tablet business.	No new information was provided by A1 in this regard.
The rest of A1’s duties at C2 other than the development of tablet business	Director was aware of this as part of the job description.	No new information was provided by A1 in this regard.	No new information was provided by A1 in this regard.

55.As to the Applicants’ arguments summarized by me above, it can be seen from the table that:

(1)  The Director’s doubt about the language requirement was based upon the fact that the original application had made no mention of such a requirement.

(2)  The Director had taken note of A1’s work experience in the marketing field in Pakistan from 2004 to 2018, as well as subsequently in Hong Kong. The prior work experience in Pakistan was not disregarded. But the Director considered that the apparently relatively short period of 11 months’ work in Hong Kong for C1 did not lead to the conclusion that A1 had the special skills, knowledge, experience, which were not readily available in Hong Kong for C2.

(3)  There is no proper basis for the suggested failure to consider A1’s overall qualifications as a whole to assess whether the cumulative effect of his language proficiency, education background and work experience would render his skill set unavailable in Hong Kong.

(4)  The Director did take account of the evidence of C2’s effort of local recruitment, but formed the view that availability of filling the post from the available local workforce had not yet been fully tested.

(5)  C2’s own focus was on its business plan to develop its smart tablet business, and in the absence of more detailed or concrete plans the Director was not satisfied that the proposed newly created post for A1 was needed. Nevertheless, the Director had regard to A1’s potential other duties for C2’s business needs.

56.None of those views demonstrate any misunderstanding of the materials provided for the Relevant Considerations, nor can they be said to be unreasonable or irrational or perverse in the public law sense. As has been said in other similar cases, the ultimate conclusion is a matter of judgment. Here, it can be seen that the Director has clearly given careful consideration to the overall circumstances of the case before coming to his conclusion, one which he was entitled to reach on the materials before him.

57.Mr Chan tried to submit that Ground 1 was not even reasonably arguable. But that ship has sailed, as I gave leave to apply for judicial review upon it. However, it having been considered with the benefit of full argument, Ground 1 fails upon substantive review.

F.  Ground 2

58.The Applicants’ criticism underpinning Ground 2 arises from the Director’s having formed the view that there were discrepancies between C2’s business projections and actual materialisation. That is said to have given rise to an irrelevant consideration, because:

(1)  The general financial standing of C2 as sponsoring company was not a stand-alone factor for consideration under the GEP guidelines. It was relevant only in considering whether there is a genuine job vacancy and whether the visa applicant can be provided with remuneration broadly commensurate with market levels.

(2)  The commercial viability of any specific development is not a special factor to be considered separately, nor does it inform any of the other factors to be established for favourable consideration of the application.

(3)  Whatever the financial projections in the business plans are, the more important and relevant document to show C2’s good financial standing should have been its audited financial reports for the year dated 21 March 2022, showing its turnover of $6 million and profit of over $500,000.

(4)  Hence to form the view that the financial projections in the business plan was overly optimistic or whether they would materialise was an impermissible irrelevant consideration.

59.In his submissions, Mr Chan stated that the key issue under this Ground 2 was whether the Director was legally wrong to have taken into account the commercial viability of C2’s business plans. As to that issue, I agreed that it was plainly legally open to the Director to take into account or pay regard to the business plans which were said to involve A1 and the proposed employment position for him. Indeed, the business plan was put forward by A1 in support of his application. Had no regard been paid to it, that would have given rise to legitimate consideration. Indeed, as Mr Chan says, had the Director formed the view that C2’s business plans show commercial viability, A1 would not be arguing that the Director’s consideration of that commercial viability was an irrelevant consideration.

60.I also accept Mr Chan’s submission that, from a common sense angle, the Director would inevitably touch on the commercial viability of the business plans advanced in support of the application, as it would be relevant and appropriate to consider at least what the role in those plans identifies, to assess whether A1 possesses special skills, knowledge or experience of value to and not readily available in Hong Kong, as well as to assess whether there is a genuine job vacancy. As already stated, the original letter from C2 produced in support of A1’s application focused on the plans relating to the smart tablet business.

61.I acknowledge that business plans may or may not prove to work as planned, but some plans may look at least stronger than others in advance. I cannot see that it is somehow unlawful or irrational for the Director to make some assessment of the plans which are said to support the existence of a genuine job vacancy – and to identify the relevant skills, knowledge and experience for the person filling that vacancy, and whether or not those are readily available in Hong Kong.

62.I also note that it was accepted on behalf of the Applicants that financial standing was at least relevant to considering whether the visa applicant can be provided with remuneration broadly commensurate with market levels. Further, I do not think that commercial viability of a specific proposal needs to be a special factor to be considered separately; it can inform a number of the other factors relevant to the overall consideration.

63.Having now considered it upon full argument, I find that Ground 2 fails upon substantive review.

G.  Ground 3

64.Under Ground 3, the Applicants rely upon the principle that where an authority has acted inconsistently (or failed to act consistently), the decision based upon such inconsistency would be challengeable as being arbitrary and/or irrational. It is submitted that, by the very fact that A1 was granted the original employment visa, the Director must have accepted that A1’s qualifications, skill set and experience where such that they are not locally available.

65.In short, the argument amounts to the suggestion that once accepted, always accepted. But, that is a bad submission. A previous approval does not form any sort of precedent binding on the Director. Each application must depend on its own facts and be considered in accordance with the prevailing social, economic and labour market conditions at the relevant time.

66.It can also be pointed out that the GEP Guidebook, governing applications for E/S, states that applications will be considered only when the applicant continues to meet the eligibility criteria, and that an application for change in employment may be favourably considered if the applicant continues to fulfil the eligibility criteria. The reference to the necessary continuation itself points to a fresh consideration upon each application.

67.In any event, it must not be forgotten that A1 was not seeking an E/S simply by reference to the same employment for which his original visa was granted. He was seeking to persuade the Director that it was appropriate to grant a visa for him to take up different employment (even if under a similar general job title) in a different company at a different time. The burden remained on A1 to show that his qualifications could not be readily provided by local workforce for the particular job vacancy, if it genuinely existed, to be assessed against the social, economic and labour market conditions at the time of the particular application.

68.Of course, as is evident from the relevant file minutes, the Director was fully aware of A1’s previous visa, and why the Director had been satisfied that it should be granted in the first place. It is incontrovertible that the fact of being satisfied for the grant of the previous visa was taken into account, and the only complaint is as to what should be the effect of that fact.

69.Ground 3 also fails on substantive review.

H.  Refusal of Leave on other Grounds

70.For the sake of completeness, I would identify that the two grounds on which I refused leave to apply for judicial review were:

(1)  Ground 4: The Director acted in breach of a substantive legitimate expectation on the part of the Applicants that A1’s qualifications will be or continue to be regarded as a locally unavailable skill set.

(2)  Ground 5: The Director’s approach to the issue of C2’s credibility was procedurally unfair.

71.I did not accept that it was reasonably arguable with any realistic prospect of success that there was such a claimed substantive legitimate expectation, where circumstances may change and each application falls to be considered on its own merits at the time and in the circumstances of it being made.

72.Similarly, I did not think it was reasonably arguable with any realistic prospect of success that there had been a procedurally unfair approach to the issue of C2’s credibility, where it is obviously open to the Director to form and express doubt about any matter advanced in support of an application, and it was not procedurally unfair not to have given C2 some further opportunity to address the doubt in the mind of the Director. Applicants and sponsors are required to place before the Director such materials as they think are capable of supporting the application, and it is up to the Director to weigh and balance those materials in reaching the decision on the application (subject only to potential challenge on irrationality). I have already mentioned this principle, above.

I.  Result

73.In the circumstances outlined above, the Applicants’ application for judicial review is dismissed.

74.As to costs, I see no reason why costs should not follow the event. In order to decide that, I do not need to place any particular reliance on the matters canvassed by Mr Chan, except to say that there is some force in his criticism of the Applicants as having been slow or disruptive throughout, in failing to comply with deadlines, even when set by the Court, and leaving matters to the last minute (such as notification of solicitors ceasing to act) which has put the Director’s representatives to extra inconvenience and expense. Those matters can be dealt with as appropriate upon the summary assessment of costs which I now direct. The Director shall provide his statement of costs for summary assessment by 18 October 2024, and the Applicants may provide a list of objections (if any) by 8 November 2024. After that date, I will perform the summary assessment on paper.

The applicants, in person

Mr Louie Chan, Senior Government Counsel (Ag.), of the Department of Justice, for the respondent