Shahid Iqbal and Others v. Director of Immigration

HCAL 2055/2024

[2025] HKCFI 434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2055 OF 2024

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BETWEEN

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REASONS FOR DECISION

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A.  Introduction

1.In these proceedings, as in the underlying decision-making, the applications of the 2^nd to 4^th Applicants (“A2”, “A3”, and “A4”)  are entirely dependent on that of the 1^st Applicant (“A1”).  However, there are various reasons why the applications stand to be dismissed. 

2.One reason is that A1 failed even to attend the Court hearing to pursue his own case.  Though itself fatal, there are also numerous other reasons why the A1’s application for leave to apply for judicial review must fail as being completely without merit. 

B.  Procedural Background

3.By Form 86 dated 7 November 2024, the Applicants sought leave to apply for judicial review so as to challenge (1) the Director’s decision dated 13 December 2023 refusing A1’s application for extension of stay and/or change of employment, and (2) the Director’s decision dated 25 October 2024 refusing the Applicants’ subsequent request for reconsideration of extension of stay (the latter defined as the “Decision”).  The Form 86 was professionally drawn by Counsel, instructed by solicitors, and it requested an oral hearing of the application for leave in the event that the Court was not minded to grant leave on the papers. 

4.Indeed, I was not.  Instead, by my directions dated 15 November 2024, I gave leave to the Director to file and serve an Initial Response to the application for leave to apply for judicial review, and for the Applicants to file a Reply.  I fixed the requested oral hearing of the application for leave to apply for judicial review on 23 January 2025 (later brought forward to 22 January 2025). 

5.On receipt of the Initial Response, I wrote to the parties noting that I had fixed an oral hearing at the request of the Applicants, but that the contents of the Initial Response seemed to me provisionally to identify a number of points why the application for leave to apply for judicial review would fail.  Whilst I also acknowledged that I was yet to see any Reply from the Applicants as might be made to the Initial Response, I expressed my provisional view that the application might fail for (1) being academic in the light of the expressed concern as to bogus documents used in the original application for entry to Hong Kong, (2) being late, and (3) lacking merit on the arguments and intended grounds put forward. 

6.In those circumstances, I invited A1 to consider whether he wished to pursue the application for leave to apply for judicial review and, if so, whether he wished to pursue his request for an oral hearing.  I stated that if the application was pursued, including at an oral hearing, I might take a robust approach to ordering costs on a higher basis if the application were to be ultimately unsuccessful in light of the materials and arguments then available. 

7.By letter dated 14 January 2025, the Applicants’ solicitors requested the Court to vacate the hearing date, and to re-fix the same in early June 2025.  I declined to grant any such adjournment on an application made by correspondence, and required any application for a significant adjournment to be made at the hearing.  I also pointed out that if such an application were to be made but refused, the hearing of the application for leave to apply for judicial review would go ahead on 22 January 2025. 

8.On 20 January 2025, just one clear day before the hearing date fixed, the Applicants filed Notices to Act in Person in place of their former solicitors.

9.At the hearing on 22 January 2025, both A1 and A4 failed to appear.  But, prior to the hearing, a hand-written letter apparently from A1 was handed to the Court, supposedly authorising a non-party to represent him at the hearing.  I saw no reason to permit that.  Though A3 later suggested at the hearing that A1 was unable to attend because he was unwell, there was no medical certificate, and A1’s letter written that morning, supposedly authorising representation by a non-party, made no mention of any illness or inability to attend the hearing for medical reasons. 

10.A2 and A3 appeared in person (with the benefit of an English/Punjabi interpreter).  Though their applications were entirely dependent on that of A1, as a matter of courtesy I heard their submissions, which were limited to a renewed application for an adjournment of many months.  I dismissed their application for an adjournment, and the hearing went ahead.  Perhaps not surprisingly, they had no real submission to make on the application for leave to apply for judicial review.

11.The Putative Respondent (“Director”)  was represented at the hearing by Ms Lynn Hui, Government Counsel.  With the benefit of her prior submissions made in the Initial Response (also signed by Mr Matthew Cheung, Senior Government Counsel), I did not need to trouble her to make any oral submissions. 

12.At the end of the hearing, I dismissed the applications for leave to apply for judicial review, for reasons to be handed down later.  These are my Reasons for Decision.  They also include my reserved decision on the question of costs. 

C.  Factual Background

13.A1 is a Pakistani national.  On 29 July 2015, he submitted an application for an entry visa under the General Employment Policy (“GEP”), for employment with Midnight Sun (HK)  Ltd (“Midnight Sun”)  as a shipping manager.  In support of the application, he submitted to the Immigration Department (“ImmD”), amongst other things, academic certificates relating to alleged degrees of Bachelor of Commerce and Master of Business Administration (Marketing)  awarded by the University of the Punjab. 

14.The application was approved by the ImmD, and subsequent applications for extension of stay under the GEP for the same employment with Midnight Sun were granted, with the limit of stay extended to 16 September 2020 and 4 June 2023 respectively. 

15.On various dates in 2016 and 2017, A2, A3 and A4 submitted applications for entry for residence as dependants of A1, which were approved.  Their limit of stay was last extended to 4 June 2023. 

16.By letter dated 4 May 2021, Midnight Sun informed the ImmD that A1 was no longer employed by them with effect from 1 January 2021. 

17.On 29 May 2023, solicitors for A1 submitted an extension of stay application under the GEP for employment with Midnight Sun as shipping manager, and later submitted applications for extension of stay for A2, A3 and A4 as dependants of A1.  The ImmD requested further documents, which included (but were not limited to)  audited financial reports and bank statements of Midnight Sun, explanation of the business of the sponsoring company and explanation as to why A1’s post was not able to be filled locally, as well as proof of local recruitment and candidates’ CVs.  Though various documents were provided, they did not meet the requests, and on 13 September 2023, the ImmD issued a final reminder requesting Midnight Sun’s latest audited financial report for the years ended 2022 and 2023, and explanation if they were not available. 

18.On 21 September 2023, the ImmD received Midnight Sun’s audited financial report for the year ended 31 March 2022.  In his disclaimer of opinion, the accountant/auditor stated that, due to insufficient books and records provided by the company, he was unable to carry out the necessary audit procedures to ensure the ownership, existence, valuation, completeness, cut-off, occurrence and accuracy of the accounts. He had also received no bank confirmations for audit purposes, and was unable to obtain sufficient appropriate audit evidence regarding turnover, cost of goods sold, insurance, MPF contributions, salaries, bank balances and recorded or unrecorded liabilities and assets pledged. 

19.Also during the extension of stay application process the ImmD received three letters purportedly signed by A1, being:

(1)  a Chinese letter dated 21 September 2023, stating that A1’s identity card was misused by an unknown person for application of visas, and that his Mainland wife and his only three children (as were named, and not A2, A3 or A4)  were residing in the Mainland, and had never submitted any application for visa/entry permit to the ImmD;

(2)  an English letter dated 26 October 2023, stating that A2-A4 were his biological sons and he wished to sponsor them for application for extension of stay as his dependants; and

(3)  a Chinese letter dated 9 November 2023, stating that he was only married to his Mainland wife and only had three children (as named in the letter)  and that he had no other marriage or other children, and that his personal data might have been fraudulently used by a friend named “Mr Nazir”. 

20.By letter dated 13 December 2023, the Director rejected A1’s application because, having considered all the relevant circumstances and available materials, he was not satisfied that (1) the job could not be filled locally, and (2) there was a genuine job vacancy. On the same day, the dependant visa applications sought by A2, A3 and A4 were refused.  The Applicants were required to depart Hong Kong on or before 27 December 2023.

21.On 20 and 27 December 2023, A2-A4 and A1 respectively requested reconsideration of those refusals. Further correspondence ensued between them (or their solicitors)  and the ImmD. 

22.On 25 October 2024, the Director informed the Applicants through their then solicitors that no reasonable justification had been found for reversing the original refusal decision.  The Applicants were required to depart Hong Kong on or before 8 November 2024.

23.As stated above, instead of departing, these proceedings were commenced on 7 November 2024. 

24.Also, in March 2024, the University of the Punjab confirmed by letters to the ImmD that the certificates relating to the Bachelor of Commerce and the Master of Business Administration (Marketing), as submitted by A1 to the ImmD in his first visa application under the GEP in 2015, are bogus. 

D.  Refusal of Adjournment

25.The adjournment of several months, first sought in correspondence and renewed on the application of A3 at the hearing, was sought on the basis that A1 challenges the authenticity of the letters from the University of the Punjab stating that the certificates were bogus, apparently on the basis that the letters were not verified by the General Consulate of Pakistan in Hong Kong.  The solicitors said that A1 intended to request the Consulate to verify his academic certificates, which would require 4 to 5 months. At the hearing, A3 stated that the period of 4 to 5 months was necessary for the Applicants to establish whether the letters received by the ImmD from the University of the Punjab were fake or not. 

26.I refused to grant the adjournment, broadly for the following reasons:

(1)  A1, whose certificates are the subject of the relevant potential inquiry, failed to attend the hearing either to pursue the judicial review application or any application for an adjournment. 

(2)  The adjournment sought was lengthy, without any clear explanation as to why such a length of time would be needed. 

(3)  There was in any event no reason for the Director, nor for the Court, to cast any significant doubt on the authenticity of letters sent from the Controller of Examinations of the University of the Punjab direct to a senior officer of the ImmD in response to enquiries made. 

(4)  Even if the certificates are not bogus, the application for leave to apply for judicial review is in any event utterly without merit. 

(5)  Hence, any adjournment would be pointless. 

E.  No Merit

27.The Applicants’ Form 86 sought to raise grounds of review, which can be summarised as follows:

(1)  Ground 1: The Decision is illegal because the Director failed to follow the GEP as set out in the Guidebook for Entry for Employment as Professionals in Hong Kong (“Guidebook”).

(2)  Ground 2: The Decision is irrational because the Director has taken into account irrelevant considerations, namely, that “the profitability, assets and liabilities of [Midnight Sun] were uncertain” and that the Director was “not satisfied that the current setup of [Midnight Sun] could bring substantial contribution to local economy and justified the bringing-in of an expatriate staff at this stage”.

(3)  Ground 3: The Decision was tainted by procedural impropriety, in that the Director has never disclosed to the Applicants his consideration of the factors as set out above.

(4)  Ground 4: The Director erred in finding that “no relevant proof could be provided” to show Midnight Sun’s endeavour to conduct local recruitment exercise and that “there is no information that the supply of workforce is inadequate and not available to fill this post”. 

(5)  Ground 5: The Director has fettered his discretion in insisting on requiring documentary proof of Midnight Sun’s endeavour to conduct local recruitment exercise. 

28.None of these grounds has any merit.  None of them are reasonably arguable. 

29.The Guidebook sets out the eligibility criteria for applying for a visa under the GEP, and provides that an application may be favourably considered if:

(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.

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

30.It is also to be remembered – and this has been stated in numerous previous decisions of this Court – that 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.  Further, though the Director may from time to time seek further information than is originally provided in support of an application, the burden remains on the applicant to establish the relevant facts, and the Director is entitled to form a view, and to make his decision, on the materials provided. 

31.Ground 1 appears to be based on the argument that the Director failed to follow the GEP because the Guidebook does not expressly contain requirements as to “profitability, assets and liabilities” of the employing company or that the setup of the employing company needs to bring “substantial contribution to local economy” to justify the bringing in of expatriate staff.  This argument is entirely misplaced.  Each case depends on its own facts, and there should not be any inflexible rules or rigid application imposed upon the Director.  The Director is entitled to take into account all surrounding facts and circumstances which may have bearing on the eligibility criteria as set out in the GEP.  Obviously, the financial circumstances of the intended employer are relevant in assessing at least whether there is a genuine job vacancy, the ability of the employment to continue for the visa period, and whether the employer can provide a remuneration package broadly commensurate with the prevailing market level for professionals in the HKSAR. 

32.Those points also identify the absence of any merit in Ground 2.  I accept Ms Lynn’s submission that it is hardly conceivable that a legitimate and actively operating business would not keep any verifiable books of account for audit checking (in contrast to the position in this case).  Further, I accept that the Director should not lose sight of the underlying policy objective to bring in expatriate members possessing professional special skills, knowledge or experience of value to and not readily available in the HKSAR. 

33.Ground 3 argues that the Decision was tainted by procedural impropriety because the considerations relevant to the above two Grounds were not disclosed to him. This is an argument without merit, where the burden is on the applicant to provide all relevant information and documents in support of his application, and the Director has no duty to keep requesting documents or information, or to test through inquiry with the applicant the information and documents already provided.  To suggest otherwise would stretch the rules of natural justice too far.  In any event, in this case, the Director gave ample opportunities for A1 to provide the documents showing Midnight Sun’s financial standing.

34.Grounds 4 and 5 relate to the attempts at local recruitment.  Obviously, the Director was aware of Midnight Sun’s statement that it had conducted local recruitment.  But it was not unreasonable for the Director to request documentary proof, in the absence of which the Director would be entitled to place little or no weight on the statement.  There is no arguable perversity, Wednesbury unreasonableness or irrationality.

F.  Delay

35.It is trite that an application for leave to apply for judicial review must be made promptly and in any event within three months of the facts giving rise to the intended application, commonly the date of the impugned decision.  It is also trite that time is not enlarged simply because there is a request for reconsideration leading to a further decision in response to that request. 

36.In this case, the original refusal of the extension of stay application was made on 13 December 2023.  The request for reconsideration was made within the same month.  However as early as March 2024, solicitors on behalf of A1 submitted a draft Form 86 to the ImmD in support of the request for reconsideration, together with the statement that they were prepared to commence judicial review proceedings without further delay.  That draft is in very similar terms to the Form 86 as was ultimately issued via the same solicitors. 

37.However, instead of issuing the intended challenge without further delay, the present application was made only on 7 November 2024 (the day before the Applicants were required to leave Hong Kong following the refusal of the reconsideration request). 

38.In those circumstances, it seems to me that (1) there has been substantial delay since the original refusal, (2) time was not enlarged by the request for reconsideration on essentially the same materials, and (3) there is no good reason to grant any extension of time within which to bring the intended application for leave to apply for judicial review. 

G.  Academic Application

39.I also accept as an additional reason for dismissal of the application for leave to apply for judicial review that the application has become academic, in light of the results of the further investigation conducted by the ImmD leading to the confirmation that the degree certificates originally relied upon by A1 are bogus. 

40.As stated above, I see no reason why the Director and this Court cannot – if necessary – place appropriate reliance on the letters received from the University of the Punjab in that regard. 

H.  Costs

41.Ms Hui asked for the Director’s costs to be borne by the Applicants, in particular because (1) the application for leave to apply for judicial review was wholly without merit, and had not been pursued for genuine reasons such that they amounted to an abuse of process, and (2) the Court had given clear and fair warning in the directions on 8 January 2025 that continued pursuit of the application, including at an oral hearing, might (on the materials then available in the Initial Response)  lead to a “robust” costs order being made against the Applicants, even potentially on a higher basis. 

42.Ms Hui stressed that there was no response filed to the Initial Response, save the making of an application for a substantial adjournment – which Ms Hui characterised, not unreasonably, as an apparent attempt simply to delay further the inevitable required departure of the Applicants from Hong Kong. 

43.A3 merely responded by asking me not to order costs against the Applicants (and tried to repeat points relevant to the adjournment application, which I had already dismissed). 

44.I broadly accept Ms Hui’s submissions.  I also take into account that, notwithstanding my warning, A1 – as the primary applicant – maintained the request for the oral hearing, but then apparently could not even be bothered to attend the oral hearing he had requested, somehow thinking that it would be acceptable if he wrote a three-line letter authorising someone else (not a solicitor)  to appear in his stead. 

45.In the overall circumstances of this case, and in the exercise of my broad discretion as to costs, it seems to me that this case is one suitable for a costs order against the Applicants in favour of the Director.  Though tempted to award those costs on a higher basis, I shall nevertheless order the costs to be payable on the standard basis, to be summarily assessed by me on paper.  The Director should file a Statement of Costs for Summary Assessment by 7 February 2025, and the Applicants may file any List of Objections in response by 14 February 2025.  Thereafter, I shall proceed to the summary assessment.

The 1^st and 4^th applicants, absent

The 2^nd and 3^rd applicants, acting in person

Ms Lynn Hui, Government Counsel of the Department of Justice, for the putative respondent