Ahmed Noor v. Director of Immigration

HCAL 107/2025

[2025] HKCFI 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 107 OF 2025

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D E C I S I O N

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A.  Introduction

1.On 8 January 2019, the putative respondent Director of Immigration (“Director”) refused the Applicant’s application for a dependant visa (“Refusal Decision”). The Director subsequently made decisions dated 16 January 2020, 5 February 2021 and 11 July 2022, upholding the Refusal Decision (“Subsequent Decisions”). The Director is also said to have, by his letters dated 20 November 2023 and 7 December 2023, refused to give disclosure of the evidential basis in support of the Refusal Decision (“Non-Disclosure”).

2.By his Form 86 dated 9 January 2025, the Applicant seeks leave to apply for judicial review so as to challenge the Refusal Decision, the Subsequent Decisions and the Non-Disclosure. He also seeks an extension of time within which to apply for that leave. There is only one intended ground of judicial review, namely that the Director’s Non-Disclosure of the evidential basis in support of the Refusal Decision is contrary to established principles of procedural fairness.

3.At the Applicant’s request made in the Form 86, I fixed an oral hearing of the application for leave to apply for judicial review. I also gave directions permitting the Director to file an Initial Response to the application. An Initial Response was filed on 3 March 2025. The oral hearing was then held on 13 March 2025.

4.At the hearing, the Applicant was represented by Mr Jeffrey Tam and Ms Myranda Lai of Counsel, and the Director was represented by Mr Andrew Tong, Senior Government Counsel (Acting). At the end of the hearing, conducted by both Mr Tam and Mr Tong with appropriate and expected efficiency, I reserved my decision to be handed down later.

5.This is my Decision.

B.  Background

6.The Applicant is a Bangladeshi national. On 14 October 2004, he last entered Hong Kong on the strength of a Bangladeshi passport under the name of “NOOR Ahmed” and was permitted to remain as a visitor until 16 October 2004. He did not depart Hong Kong, and has overstayed since 17 October 2004 (i.e. for 20 years and counting).

7.However, on 27 October 2004, a departing passenger with facial appearance closely resembling the Applicant presented for departure at Lo Wu Control Point on the strength of a Bangladeshi passport under the name of “RAHMAN Rana”. The departing passenger remained silent under caution, and was permitted to depart under supervision on 29 October 2004. In passing, I note that despite the suspicion that it was the Applicant who was the departing passenger, there does not seem to be any record made by ImmD of the Applicant re-entering Hong Kong after his suspected departure on 29 October 2004.

8.On 21 December 2005, the Applicant (being undocumented) was arrested by the Police for the suspected offence of breach of condition of stay by overstaying in Hong Kong.

9.On 30 December 2005, the Applicant was brought to the Government Laboratory for facial comparison with the photo taken from the departing passenger on 27 October 2004. This was because the Applicant was suspected to be the departing passenger. The forensic report obtained (“Forensic Report”) apparently confirmed that the Applicant and the departing passenger were the same person.

10.On 17 January 2006, the Applicant was interviewed under caution by an Immigration Department (“ImmD”) officer, and with the benefit of an English/Bengali interpreter. The interview was to make inquiry as to the Applicant’s true identity, where there were reasons to believe that (1) he had made false representation to an Immigration Officer/Immigration Assistant (i.e. on 27 October 2004), and (2) he had overstayed in Hong Kong. It can be noted that a copy of the Record of Interview was provided to the Applicant’s solicitors on or before 31 July 2023, in response to a data access request – but the Applicant himself was of course the interviewee present.

11.The Record of Interview identifies that the Applicant confirmed that he understood the purpose of the inquiry and the caution. He also stated that he was willing to answer questions put to him. The Applicant confirmed that the passport in the name of “NOOR Ahmed” was his own Bangladeshi passport, used by him to enter Hong Kong for the first time on 8 October 2004, and the last time on 14 October 2004 as a visitor, permitted to remain for two days. When asked why he had failed to depart, the Applicant said he had political problems in his country, and that if he went back his enemies would kill him, which is why he had applied to the UNHCR in Hong Kong for Refugee status on 26 November 2005.

12.Most materially for present purposes are the following questions and answers set out in the Interview Record (in the redacted form as produced in the evidence):

Q(18): According to our records, you presented for departure clearance on 27-10-2004 at Lo Wu Control Point on strengths of a Bangladeshi passport numbered [redacted] and a departure card numbered [redacted] relating to Mr [redacted, but obviously RAHMAN Rana] born in [redacted]. But, you are not allowed to leave and were put under our detention because you were not believed to be holder of the passport presented. After investigation, you were allowed to depart Hong Kong via airport on 29-10-2004 on the said passport. What is your explanation for this incident? (A Bangladeshi passport and a departure card pertaining to [redacted] were shown to him [redacted].)

A(18): I do not know anything relating to this incident.

Q(19): [redacted], your photograph and the photograph pertaining to be taken from [redacted] during the course of investigation were referring to the same person? What is your explanation?

A(19): That is not my photo. People may look alike.

13.On 16 February 2006, the Applicant was released on recognizance. On 20 October 2006, his Refugee Claim was closed.

14.On 2 December 2008, a charge laid was against the Applicant for breach of condition of stay. But, it was withdrawn on 24 December 2008.

15.On 25 January 2010, a Removal Order was issued against the Applicant. It has not been given effect because of the Applicant’s Torture Claim and his Non-Refoulement Claim (“NRC”).

16.On 14 December 2012, the Torture Claim was refused. On 24 January 2013, the Applicant’s appeal against the refusal decision of the Torture Claim was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”). The Applicant made an application for leave to apply for judicial review against the decision of the Board, and the matter was subsequently remitted to the Board for fresh determination pursuant to a Court Order dated 12 May 2014.

17.In the meantime, on 18 February 2014, it was decided that prosecution against the Applicant for the offence of making false representation to an immigration officer (relating to the departing passenger incident on 27 October 2004) should be deferred until the settlement of his NRC. The suspected offence arises under the provisions of section 42 of the Immigration Ordinance Cap 115 (“IO”).

18.On 20 March 2014, the Applicant formally lodged a NRC, which was refused on 24 February 2017. On 6 November 2020, his petition against the refusal decision of his NRC was dismissed by the Board. On 28 December 2020, the Applicant made an application for leave to apply for judicial review against the decision of the Board, in HCAL 2498/2020. A decision on that application is yet to be handed down by the Court of First Instance.

19.On 4 March 2018, the Applicant and a Madam Cheng Chau Wa (“Sponsor”) solemnised their marriage in Hong Kong.

C.  The Impugned Decisions

C.1  The Refusal Decision

20.On 6 June 2018, ImmD received the Applicant’s application for entry for residence as a dependant of the Sponsor (“1^st Application”).

21.The Director’s policy for dependant visa applications identifies that an application for admission of a dependant may be favourably considered if the applicant satisfies all eligibility criteria, being that: (a) there is reasonable proof of a genuine relationship between the applicant and the sponsor; (b) there is no known record to the detriment of the applicant (“NRD Requirement”); and (c) the sponsor is able to support the dependant’s living at a standard well above the subsistence level and provide him/her with suitable accommodation in the HKSAR.

22.The Director has consistently accepted that the Applicant satisfies eligibility criteria (a) and (c). The stumbling block is criterion (b), i.e. the NRD Requirement.

23.By letter dated 8 January 2019 (i.e. the Refusal Decision), ImmD refused the 1^st Application, on the ground that the Applicant is a suspect of the offence under section 42 of the IO, which is considered serious in nature. On that basis, the Applicant had not satisfied the eligibility criterion of the NRD Requirement.

C.2  The Subsequent Decisions

24.On 14 June 2019, ImmD received the Applicant’s second application for entry for residence as a dependant of the Sponsor (“2^nd Application”). By letter dated 16 January 2020, ImmD refused the 2^nd Application on a basis similar to that of the Refusal Decision.

25.On 30 October 2020, the Applicant and Sponsor, through their then legal representative (“M&A”), submitted a reconsideration request of the 2^nd Application. It was refused by ImmD’s letter dated 5 February 2021, because it was not considered that the information provided and representations made served to form any fresh ground pertinent to the prior refusal.

26.On 20 February 2021, the Applicant and Sponsor, through their then Counsel instructed by M&A, submitted a second reconsideration request of the 2^nd Application. It was refused by ImmD’s letters dated 7 September 2021 and 13 September 2021. As with the previous decision, ImmD found that the information provided and representations made did not serve to form any fresh ground pertinent to the refusal, and that there were no strong compassionate or humanitarian grounds or extenuating circumstances which warranted exceptional consideration.

27.On 17 January 2022, the Applicant and the Sponsor, through their new legal representative (“C&A”), submitted a third reconsideration request of the 2^nd Application. It seems that this request was made after an application for legal aid was refused. On 9 June 2022, the Applicant and Sponsor changed to a further new legal representative, Wat & Co, to handle this reconsideration request. It was refused by ImmD’s letter dated 11 July 2022.

28.There was a yet further request for reconsideration of the 2^nd Application, but it falls chronologically after the following section.

C.3  The Non-Disclosure Decisions

29.On 5 September 2022, the Applicant and Sponsor, through Wat & Co, requested ImmD to disclose the evidential basis for saying that there was a known record to the detriment to the Applicant. ImmD replied by letter dated 27 February 2023 that the Director was not satisfied that the Applicant met the eligibility criterion of the NRD Requirement.

30.The letter dated 27 February 2023 contained the Director’s detailed reasons why the Applicant was found to have an adverse record. The Director (1) provided a summary of the material incident, (2) referred to the fact that the Government Laboratory confirmed through facial image comparison that the photo of the departing passenger on 27 October 2004 related to the Applicant, (3) the Applicant was therefore considered as a suspect of the offence under section 42 of the IO, which is serious in nature involving dishonesty and falsity may lead to immediate custodial sentence upon conviction, and (4) that record was considered as a known record to the detriment of the Applicant raising security or criminal concerns to Hong Kong.

31.On 30 March 2023, Wat & Co wrote to state that the internal records previously provided were heavily redacted, and did not afford the Applicant any further understanding of the reasons for refusing his 1^st and 2^nd applications. They requested ImmD to provide various documents, including in particular the documents relating to the Applicant’s visit to the Government Laboratory on 30 December 2005, and the Forensic Report, and “any other records that are relevant to the so-called Detrimental Record against the Applicant”.

32.ImmD requested the submission of a data access request in order to facilitate the processing of the 30 March 2023 request. A completed data access request form was submitted, and on 31 July 2023 ImmD provided a list of the documents to be disclosed to the Applicant. On 29 August 2023, ImmD informed Wat & Co the copy of the documents under the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”) was ready for collection.

33.On 28 September 2023, Wat & Co wrote to state that the documents provided did not sufficiently address the scope of their inquiry, in particular whether they constituted the whole factual basis relied upon by ImmD as to the suspected offence under section 42 of the IO and/or to justify the contention that a detrimental record existed against the Applicant. Un-redacted copies of documents were requested.

34.On 20 November 2023, ImmD wrote to state that, pursuant to section 21(2) of the PDPO, the Director has no personal data which, or the existence of which, he is required to disclose to the Applicant. After Wat & Co sought confirmation on 27 November 2023 as to whether the other undisclosed information concerning the applicant that ImmD held was not relevant to any intended prosecution or security issue against the Applicant, ImmD reply by letter dated 7 December 2023 that their stance had already been put forth in the letter dated 20 November 2023.

C.4  Further Subsequent Decision

35.On 19 June 2024, the Sponsor acting in person submitted a reconsideration request of the 2^nd Application. It was refused by ImmD’s letter dated 5 August 2024, on the same basis as previously put forward.

D.  Intended Judicial Review Challenge

36.These proceedings were commenced by the Applicant’s Form 86 dated 9 January 2025.

37.As indicated above, there is only one intended ground of judicial review, namely that the Director’s refusal to disclose the evidential basis said to justify the Refusal Decision is contrary to all established principles of procedural fairness.

38.In particular, it is said that procedural fairness would include the right to disclosure of relevant information, documents, or material adverse to an affected person’s case. But, it is asserted, the Non-Disclosure Decisions have unfairly deprived the Applicant of those materials. The essence of the argument is that (1) the Applicant could not discover the evidential basis of the detrimental record, or the merits of the deferred prosecution, based on the documents provided by the Director, (2) believing that there are flaws in the deferred prosecution case, the Applicant could not make meaningful and focused representations to the Director in the absence of the requested documents, (3) the flaws apparent on the face of the limited evidence available to the Applicant demonstrate that there are meaningful and focused representations that he could have made, and (4) this is unfair as it delays the Applicant’s application for a dependant visa which would succeed because the other eligibility criteria have been met, and affecting his right to remain in Hong Kong.

39.The Director’s position in response to the application, and this one ground of review, includes that: (1) it should be noted that there is no challenge that the Refusal Decision and/or Subsequent Decisions are irrational, that the Director had taken irrelevant factors or failed to take relevant factors into consideration, or even that he gave inadequate reasons, (2) there has been delay in making the application in circumstances which do not permit of an extension of time, (3) the leave application is in essence a ‘fishing expedition’, (4) there was no unfairness because the Applicant knew in adequate form what was said against him and he was provided with reasonable opportunity to make meaningful and focused representations, and (5) there is no utility in granting leave where it is inevitable that the Director would reach the same conclusion upon any reconsideration.

E.  Applicable Principles

40.The principles applicable on a complaint of procedural unfairness for non-disclosure of information, documents or material adverse to an affected person are well settled. I made reference to them in Lantau International School Ltd v Secretary of Education [2022] HKCFI 774 at §§82-83, and I summarized them again in Marsini v Director of Immigration [2022] HKCFI 3026 at §69, as follows:

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

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

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

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

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

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

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

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

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

41.Mr Tam and Mr Tong agreed that those are the applicable principles. The difference between them is to how those principles are to be applied to this particular case.

42.It is also helpful to note, in the context of the dependant visa policy, that it arises against the general restrictive immigration policy adopted in Hong Kong, the legitimacy and rationality of which policy is well recognised and upheld by the Courts. But that does not prevent the Court from intervening if the Director does not act fairly in the decision making process. It can also be noted that (1) the NRD Requirement is an eligibility criterion that must be satisfied before a dependant visa may be granted, (2) the NRD Requirement has a wider meaning than just criminal prosecutions or successful convictions, so that (3) it is lawful and rational for the Director to look at any relevant record beyond criminal convictions which may show a security or criminal concern.

F.  Application of Principles

43.Mr Tam submitted that it is unfair for the Director to categorise the application as a ‘fishing exercise’. He stressed that the complaint is not that the suspected false representation should not be treated as no record to the Applicant’s detriment, but one of a different complaint arising from the procedural unfairness of the Non-Disclosure – a point Mr Tam said was clear from the Applicant’s solicitors’ correspondence in Wat & Co’s letters dated 5 September 2022, 30 March 2023 and 28 September 2023 (to which I shall return below). In any event, I am not sure that deciding whether the Applicant is ‘fishing’ is helpful to the correct analysis of whether the appropriate standard of fairness has been met.

44.Mr Tam rightly accepted the fact that the Director is entitled to take the view that a record, even without being backed up by successful conviction, may in some circumstances constitute a detrimental record. (As an aside, Mr Tam’s stance was not always reflected in the Applicant’s previous solicitors’ correspondence, where it was suggested that only a conviction could amount to a record of detriment.) But, Mr Tam submitted that acceptance does not mean that there were no possible representations the Applicant could have made on the NRD Requirement, had he been able to make more focused representations on issues beyond the procedural unfairness of non-disclosure.

45.Indeed, Mr Tam submitted, the fact that the Applicant has not raised (or has not been able to raise) any challenge that the Refusal Decision and/or Subsequent Decisions are irrational or raise a relevancy challenge demonstrates precisely the procedural unfairness suffered by the Applicant. Mr Tam suggested that the Applicant was in a ‘chicken and egg’ situation. Though a neat forensic submission, I do not think it holds water (whether to steam the chicken or boil the egg).

46.In his oral submissions, Mr Tam sought to emphasise what he described as (a) the case which the Applicant thought he was meeting or needed to answer, as opposed to (b) the different case that ImmD was actually putting against him. This argument was based primarily on the last sentence of a passage from the ImmD’s letter dated 27 February 2023. That passage, including the last sentence of it, was as follows:

Immigration records revealed that the Applicant was arrested by the Police for overstaying on 21 December 2005. He claimed that he last entered the HKSAR on the strength of his Bangladeshi passport on 14 October 2004 and had overstayed since 17 October 2004. According to the available records, a person with the same appearance as the Applicant had attempted to depart on 27 October 2004 at the Lowu control point on the strength of a Bangladeshi passport which did not relate to the Applicant. During further investigation, he exercised his right to remain silent. On 29 October 2004, he was allowed to depart the HKSAR for Bangladesh. On 20 December 2005, the Applicant was brought to the Government Laboratory to undergo a facial image comparison and it was confirmed that the photo of the departing passenger on 27 October 2004 related to the Applicant.

47.The argument advanced by Mr Tam was that the case which the Applicant thought he needed to answer was that the Applicant and the departing passenger on 27 October 2004 were “related”, whereas it turns out the case of ImmD was that the Applicant and the departing passenger were not just “related” but actually “the same person”. With respect, this is a bad argument for at least two reasons.

48.First, to focus on the word “related” in the last sentence of that passage is to ignore the wider context preceding that sentence, including the previous use of the word “related”. That wider context seems to me to identify quite clearly that ImmD was asserting that the facial image comparison had confirmed that the Applicant was the same person as in the photo of the departing passenger on 27 October 2004, which is why the photo related to him.

49.Secondly, though his subsequently instructed solicitors may not have been present, the Applicant was himself of course present at the interview under caution on 17 January 2006. The Record of Interview – and in particular Qs and As (18) and (19) quoted above – seems to me to show clearly ImmD putting the suspicion that the Applicant was the same person as the person holding the passport seeking to depart Hong Kong on 27 October 2004, and seeking the Applicant’s response to that suspicion. It can be noted that, at the time, the Applicant seems to have had no difficulty in understanding the allegation. He did not choose to remain silent, and instead he sought to answer the allegation by stating that he did not know anything relating to the incident and was not the person in the photo. The Applicant would not have denied being the person in the photo, and would not have offered the alternative explanation that some people look alike, if he had not understood the suspicion or allegation was that he was the same person as shown in the photo.

50.Indeed, the Record of Interview is an important part of the context which demonstrates whether there was subsequent unfairness. As early as 17 January 2006, the Applicant knew that he had been taken to the Government Laboratory for facial comparison with another person or photo, and that ImmD believed with the benefit of that comparison that the Applicant was the same person as the departing passenger on 27 October 2004. Whilst it is unclear from the redacted Record of Interview whether the Applicant was then shown the Forensic Report – and he may well not have been – the thrust of the suspicion he faced was nevertheless clear and known. It was put to him, he understood it, and he answered it.

51.Wat & Co’s letter dated 5 September 2022 suggested the Applicant could not understand the evidential basis for ImmD’s position that the deferred prosecution was a detrimental record. Their letter dated 30 March 2023 suggested that the Applicant was left to guess what may be the case against him which is unfair. Their letter dated 28 September 2023 suggested the Applicant does not understand the factual basis of the allegation that a detrimental record was made against him or that he might even be prosecuted. With respect, none of those statements is tenable. The Applicant knew all those things (even if he had not told his solicitors).

52.It is also against that context that the complaints about redacted documents falls to be considered. Of course, I accept that there have now been provided two differently redacted versions of each of the ImmD internal minutes M.7 dated 2 January 2019 and M.6 dated 4 February 2021. It is correct that the versions provided with the Initial Response have less redaction than those previously made available to the Applicant’s solicitors. The less redacted versions are certainly more helpful to the solicitors, who were for example not present when the Applicant was taken to the Government Laboratory and subsequently interviewed under caution. But I do not accept that the fact that less redacted versions were served establishes that there was a reasonably arguable complaint about prior non-disclosure.

53.Mr Tam also submitted that the Applicant is, inevitably, currently involved in the “criminal process” and would eventually (if the prosecution goes ahead) be entitled to disclosure of the evidence against him. Therefore, Mr Tam said, it is artificial to view the Applicant’s application as only involving an immigration context, as separate from the criminal context. Mr Tam submitted that the presumption of innocence which the Applicant enjoys in the criminal context cannot be separated from the circumstances of the present application.

54.I disagree. The immigration context and the criminal context are separate and distinct. For example, if the criminal prosecution goes ahead, a conviction could only occur if the criminal court is satisfied on the criminal standard of proof, namely beyond reasonable doubt – and it is correct that disclosure of the evidence against him prior to a criminal trial would be required. However, when considering the NRD Requirement, the Director does not have to satisfy the criminal standard of proof, and probably not even the civil standard of proof on the balance of probabilities. Rather, the Director needs a rational or reasonable basis (in the public law sense) for reaching the view that the suspected false representation amounts to a record of detriment.

55.Indeed, if the criminal prosecution were to go ahead but result in an acquittal, that would not (or would not necessarily) remove a rational and reasonable basis for having previously reached the view that the suspicion of committing the false representation amounts to a record of detriment. Similarly, if the criminal prosecution were not to go ahead for some reason (for example, in the light of the significant passage of time), that also would not necessarily remove a rational and reasonable basis for having previously reached the view that the suspicion of the false representation amounts to a record of detriment.

56.As Mr Tam properly accepted, the Applicant has never denied the fact that he was aware that the known record to his detriment consisted of the suspected false representation offence pursuant to section 42 of the IO, and he has made representations to the Director on that subject. But the additional fact is that, whatever was or was not known to his respective solicitors, the Applicant himself did know what was the basis of the alleged false representation, namely that he and the departing passenger on 27 October 2004 were the same person, and that ImmD suspected that to be the case because the person shown in the photo of the departing passenger and the Applicant were the same person.

57.Reduced to its essence, Mr Tam’s submission was to the effect that the Director appears to have placed considerable reliance on the Forensic Report in concluding that there was a record of detriment against the Applicant. But the Director has not disclosed it – not even within these proceedings, though it is referred to in the Initial Response – and so, Mr Tam submitted, it must be unfair for the Applicant to be denied the opportunity of considering and making focused representation about the key piece of information which is said to be adverse to him.

58.It may be that further disclosure would have assisted the Applicant to be better off. But that is not the test for whether there has been appropriate fairness. In my view, despite the attractive way in which Mr Tam has focused his arguments, there was no reasonably arguable unfairness in the particular context of this case.

59.In any event, I accept Mr Tong’s submission that even if there was found to be a reasonable case on procedural unfairness, by reason of any non-disclosure, there would nevertheless be no utility in granting leave to apply for judicial review, as the Court would almost certainly not grant discretionary relief even in a successful substantive challenge. This is because the Director would, on the materials, inevitably reach the same conclusion.

60.In so deciding, I have not overlooked the submission made by Mr Tam by reference to what was said in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at §39, stating that it would be rare that someone who was denied the opportunity to be heard would be held not to have been treated unfairly, referencing the six reasons given by Bingham LJ (as he then was) in R v Chief Constable of Thames Valley, ex p Cotton [1990] IRLR 344 and a subsequent article titled ‘Should Public Law Remedies be Discretionary’. Mr Tam submitted that reasons (3) and (4) are the perfect answer to the suggestion that the Director would inevitably reach the same conclusion. Those reasons were:

(3) It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant’s position became weaker as the decision-maker’s mind became more closed.

(4) In considering whether the complainant’s representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.

61.On the other hand, in the same case at §§40-41 and 75-76, it was emphasised that judicial review is a discretionary remedy. If the breach of the principle of fairness does not produce a substantial prejudice to the applicant, the Court is bound to take this into account in deciding whether relief should be given. This is consistent with the concept that the Court should not substitute its own decision for that of the decision-maker. Furthermore, it is inevitable that the Court will look at the substance of the complaint. Ultimately, the question is one of fairness, looked at as a matter of substance.

62.After the hearing, Mr Tam kept his promise to provide further authorities relating to this point, being Chow Ting v Teng Yu Yan Anne (Returning Officer) [2019] 4 HKLRD 459 at §§40-41, and Au Nok Hin v Teng Yu Yan Anne (2019) 22 HKCFAR 524 at §22 and fn20. Both cases arose in the, perhaps analogous, elections context, and considered the application of the same principles considered in the Leung Fuk Wah case. But I do not think the application of the relevant principles to the particular facts of those cases changes my analysis above.

63.In this case, on its facts, where the Applicant would not, as a matter of substance, suffer prejudice, then any failure to observe the principle of fairness should not be a ground for quashing the decision.

64.A separate and additional question arises from the delay. As Mr Tam accepted, there has been a long delay in the making of this application, which requires an extension of time. It is settled that there are various non-exhaustive factors to consider in deciding whether there is good reason for extending time, including (1) the length of the delay, (2) the explanation for the delay, (3) the merits of the substantive application, (4) prejudice, and (5) whether the intended application raises questions of general public importance.

65.I can look at these each in turn, though I bear in mind that the determination requires a balanced multi-factorial approach:

(1)  Mr Tam accepted that there had been delay of some six years since January 2019. On any view, that is a long period of delay. But, Mr Tam submitted, delay is only one of the factors in the multi-faceted question as to whether to grant an extension of time, and the relevant facts in this case support the grant of an extension of time.

(2)  The Applicant, he said, had not been “sleeping” during the delay period, where he had pursued various requests for reconsiderations and/or for documents, and the Applicant had also made applications for legal aid (even acknowledging that time spent unsuccessfully seeking legal aid may not of itself be good reason to extend time). The Applicant was also pro-actively seeking to resolve matters out of Court, by his various negotiations with the Director. Those matters, Mr Tam submitted, provide a reasonable explanation for the time taken.

(3)  He relied on the merits of the application, which if substantial should not be shut out from determination merely because of delay. Mr Tam also submitted that, in this case, the issue of delay is inextricably tied to the substantive merits of the application itself – because the non-disclosure means that the Applicant was not able fully to evaluate his position.

(4)  He submitted that there is no prejudice to the Director where the Applicant has an outstanding judicial review application relating to his NRC – issued in HCAL 2498/2020, but yet to be determined – so that the Applicant was ineligible to be removed from Hong Kong in any event.

(5)  Mr Tam also submitted that the issues to be resolved in this case are of general public importance, beyond the context of immigration law, relating to the scope of a defendant’s right to disclosure from the prosecution in the context of a long deferred criminal prosecution. Further, he said, allowing the Applicant’s application to proceed would foster good administration by clarifying an applicant’s right to disclosure in the context of a future criminal prosecution where the Director purports to rely on a deferred prosecution as a record of detriment.

66.I take all those matters into the balancing exercise. However, in light of the delay, and my view on the merits (including that the Applicant actually knew sufficient detail about the record to his detriment, which he could fairly have addressed), I do not think this case warrants the lengthy extension required. I have already noted that some of the time taken was in the solicitors’ pursuit of information which they might not have known, but which the Applicant himself did know. Anyway, I do not think the various requests for reconsideration restarted the clock, as it were. I accept that the Applicant could not be removed whilst his NRC remains unresolved, but that does not seem to me to weigh heavily in the balance. Indeed, there is force in Mr Tong’s submission that, unless and until the Applicant has shown good reason for the delay, the question of prejudice or detriment to the good administration does not really arise for consideration. Further, I do not think a matter of general public importance arises, where (for the reasons I have set out above) the question facing the Director does not depend on and/or is sufficiently separate from a prosecution, whether deferred or not – and the impugned decisions in this case all turn on the specific facts.

G.  Result

67.I acknowledge some may feel a degree of sympathy for the Applicant, who (after many years overstaying in Hong Kong) has entered a marriage which the Director is satisfied is genuine, and which has already lasted 7 years, and who may (if his NRC claim fails) face removal and the inability to remain resident as the dependant of his wife for a suspected false representation made more than 20 years ago. But those matters might only go to humanitarian or compassionate considerations.

68.However, for the above reasons, I dismiss the Applicant’s application for leave to apply for judicial review.

69.I exercise my discretion to make no order as to costs.

Mr Jeffrey Tam and Ms Myranda Lai, instructed by Messrs Khoo & Co Lawyers, solicitors for the applicant

Mr Andrew Tong, Senior Government Counsel (Ag), of the Department of Justice, for the putative respondent