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

CACV 315/2024 & CACV 316/2024, [2025] HKCA 1082

On Appeal From [2024] HKCFI 1750

(Heard together)

CACV 315/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 315 OF 2024

(ON APPEAL FROM HCAL NO. 817 OF 2019)

____________________

____________________

CACV 316/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 316 OF 2024

(ON APPEAL FROM HCAL NO. 2723 OF 2018)

____________________

____________________

(Heard Together)

________________

JUDGMENT

________________

Hon Anthony Chan JA (giving the Judgment of the Court) :

1.This is the appeal of the Applicant against the Judgment of Coleman J dated 5 July 2024 ([2024] HKCFI 1750) by which the Applicant’s applications for leave to apply for judicial review in HCAL 2723/2018 and HCAL 817/2019 were dismissed with costs to the Respondent (“Director”) after a rolled-up hearing.

2.The Applicant was a successful applicant under the Capital Investment Entrant Scheme (“CIES”), pursuant to which she entered Hong Kong and has remained here since 5 January 2011.  However, after two successful biannual extensions of stay under the CIES, the Applicant’s third extension application was rejected by the Director.  The rejection, the subsequent reconsiderations at the request of the Applicant and the Removal Order made against the Applicant gave rise to the two applications for leave to apply for judicial review.  Leave was granted by the Judge in respect of one of the grounds (Ground 1) advanced by the Applicant (the same grounds were relied upon for both applications), but the judicial reviews were dismissed after substantive consideration. 

3.There is only one issue in these appeals, which rely upon identical grounds of appeal, namely, whether on the proper construction of the applicable rules the Applicant was required to have a valid travel document with adequate returnability to her country of residence or citizenship (“VTD Requirement”) for the purpose of extending her stay under the CIES.  This was Ground 1 on which leave was granted by the Judge.

4.By a Consent filed on 14 November 2025, the parties had agreed that these appeals be heard by two Justices of Appeal in accordance with s.34B(4)(c) of the High Court Ordinance, Cap 4.

Background facts

5.These matters have been drawn-out over the years.  The material facts (based on the Judgment and the uncontroversial documents) are as follows. 

6.The Applicant’s CIES application was received by the Immigration Department (“Department”) on 28 January 2010.  Under the Rules for CIES (“Rules”), §3.1, that Scheme was extended to foreign nationals (with certain exclusions), Macao SAR residents, Chinese nationals who had obtained permanent resident status in a foreign country, stateless persons who had obtained permanent resident status in a foreign country with proven re-entry facilities and Taiwan residents.

7.It is clear from the Applicant’s CIES application that she applied as a Chinese national who had obtained permanent resident status in a foreign country.  Her application was supported by, inter alia, her PRC passport (“PRC Passport”) (issued on 10 December 2009 with validity of 10 years) and her Gambian identity documents (“Gambian Documents”), which included a Gambian Identity Card (“Gambian ID Card”) and a letter from the Gambian Immigration Department stating that the Applicant was a legal resident of that country and did not require a visa to enter Gambia.

8.Pursuant to the CIES, the Applicant entered Hong Kong on 5 January 2011 and was permitted to remain until 5 January 2013. On 18 December 2012 and 11 November 2014, the Applicant successfully extended her stay for a further 2-year period.  Both extension applications were made on Form ID(C) 967, the same Form used for the Applicant’s initial application under CIES.  Like the initial application, each of the Forms used for extension referred to the PRC Passport and the Gambian Documents.  Copies of those documents were provided in support of the extension applications.

9.The CIES was suspended on 15 January 2015, but it did not affect applications received by the Department before that date.  On 15 November 2016, the Applicant applied for a third extension of stay under CIES (“Application”).  The same procedure was adopted, and the third extension was again supported by the PRC Passport and the Gambian Documents.

10.On 6 January 2017, the Applicant’s limit of stay in Hong Kong expired.  On the same day, the Liaison Office of the Central People’s Government in Hong Kong notified the Department that the PRC Passport had been invalidated.  The Applicant was subsequently informed by the Department that the PRC Passport was invalidated and was asked to submit, inter alia, a valid travel document.

11.The time for the Applicant to submit documents was subsequently extended to 7 March 2017.  On 4 March 2017, the Applicant sent a handwritten letter (“Letter”) to the Department explaining (a) the reasons for temporary invalidation of the PRC Passport; (b) that her lawyers were dealing with the matter; and (c) since it was uncertain when the PRC Passport problem would be resolved, she had arranged for a valid passport of another country to be obtained. 

12.On 7 March 2017, the Applicant sought permission to remain in Hong Kong until 21 March 2017.  On 9 March 2017, the Director refused the extension of stay and requested the Applicant to leave Hong Kong by 16 March 2017 (“1^st Decision”).  The Applicant did not depart from Hong Kong as requested and has been overstaying since 17 March 2017.

13.On 27 March 2017, the Applicant submitted a Guinean passport, which was issued on 2 March 2017 (“Guinean Passport”), to the Department and sought reconsideration of the Application. 

14.Having sought the advice of the Guinean Embassy in Beijing on the authenticity of the Guinean Passport, the Department was informed by the Embassy on 29 June 2018 that the Guinean Passport was forged and invalid. 

15.On 31 August 2018, the Director upheld the 1^st Decision and rejected the Application (“2^nd Decision”).  Following a request by the Applicant’s solicitors, the Director wrote to the Applicant on 14 September 2018 to explain the reasons for refusal of the Application.  The reasons included that, under the existing immigration policy, an applicant should meet normal immigration requirements, such as the VTD Requirement.

16.On 30 November 2018, the Applicant commenced HCAL 2723/2018 seeking to challenge the 1^st and 2^nd Decisions.  On 5 December 2018, the Applicant’s solicitors asked the Director to reconsider the Application based on a PRC legal opinion obtained by the Applicant that (a) the PRC Passport was valid; and (b) enquiries with the Public Security Department of Sichuan Province had confirmed that the Passport had never been revoked or invalidated.

17.On 12 December 2018, the Director issued a removal order against the Applicant (“Removal Order”).  In the Notice of Removal Order and Right of Appeal dated 18 December 2018, it was stated that the Applicant was to be removed to the Mainland. 

18.On 3 January 2019, the Director asked the Applicant to provide written confirmation from the competent authority to prove the validity of the PRC Passport.  In reply, the Applicant’s solicitors informed the Director on 29 January 2019 that the Sichuan authority only gave oral confirmation. 

19.The Applicant’s appeal against the Removal Order was dismissed by the Immigration Tribunal on 23 January 2019.  On 25 March 2019, HCAL 817/2019 was issued by the Applicant to challenge the Removal Order. 

20.On 18 April 2019, the Department wrote to the Applicant’s solicitors drawing their attention to the Letter and noting that it was contrary to the suggestion in the PRC legal opinion that it was valid.  The Applicant was requested to provide official documentations to affirm the validity of the PRC Passport by 3 May 2019. 

21.The request was not met.  On 20 May 2019, the Director refused to reverse the 1^st or 2^nd Decision or to reconsider the Application (“3^rd Decision”).  The Forms 86 in HCAL 2723/2018 and HCAL 817/2019 were amended on 3 July 2019 to include a challenge of the 3^rd Decision. 

22.On 17 October 2019, the Guinean Embassy issued a letter to the Department confirming the authenticity of the Guinean Passport. The matter was duly raised with the Department by the Applicant’s solicitors. Following the Department’s request for clarification over the authenticity of the Guinean Passport, the Guinean Embassy wrote to the Department again on 16 June 2020 confirming after “careful verification” that the Passport was forged and invalid.  The Applicant was informed by the Department of the latest confirmation by the Guinean Embassy. 

23.On 13 August 2020, the Applicant’s solicitors provided a Vanuatu passport of the Applicant (“Vanuatu Passport”), which was issued on 7 May 2019, to the Department and asked for it to be taken into account on the Application.  Prior to providing the Passport, the Applicant’s son (and her next friend), Mr Qu Mengping, had obtained a confirmation from the Vanuatu Consulate of the Passport’s authenticity.

24.In response to the Department’s request for confirmation of the Vanuatu Passport’s authenticity, on 8 October 2020 the Vanuatu Embassy confirmed that the Passport was genuine.  However, on 6  November 2020, the Embassy retracted from its earlier confirmation and informed the Department that, “after further consultation with the concerned Departments in the Capital”, the Vanuatu Passport had been cancelled.

25.On 2 December 2021, the Department reviewed the Application internally in its internal minute, M.45.  The material part of M.45 had been set out in the Judgment, [44].  In summary, the Applicant’s case was reviewed in detail, and the validity of the Guinean Passport and the Vanuatu Passport as well as the Applicant’s representations were assessed.  Both Passports were considered invalid.  In any case, the Vanuatu Passport was issued (on 7 May 2019) well after the Applicant’s resident status had expired and therefore irrelevant.  It was recommended that the 1^st Decision be maintained given that the Applicant had failed to furnish any valid travel document for the purpose of the Application. 

26.On 23 December 2021, the Applicant was notified that the Director had upheld the 1^st Decision and rejected the Application (“4^th Decision”).  The relevant part of the letter to the Applicant had been set out in the Judgment, [45].  Essentially, the reasons discussed in M.45 were provided in the letter.

27.The Forms 86 in HCAL 2723/1028 and HCAL 817/2019 were re-amended on 23 February 2022 to include a challenge of the 4^th Decision.  The rolled-up hearing of these leave applications took place on 3 July 2024.  The Notices of Appeal before this court were filed on 2 August 2024.

28.In this appeal, Mr Pun SC appeared for the Applicant with Mr Wong and Mr Chan.  Ms Tong SC, appeared for the Director with Mr Sik. 

Judgment and Ground of Appeal

29.The issue whether the Applicant was required to hold a valid travel document for the purpose of the Application was the key argument before the Judge.  The single Ground of Appeal (in both appeals), with 7 sub-paragraphs, contends that the Judge erred in law in concluding that (a) the applicant for an entry permit under the CIES as well as any extension of stay thereunder must satisfy the VTD Requirement; and (b) “normal immigration requirements” would naturally and logically include the VTD Requirement. 

30.The Judge’s reasons for upholding the VTD Requirement are the subject matters of challenge under the 7 sub-paragraphs of the Ground of Appeal.  The Applicant contends that, contrary to the findings of the Judge :

(1)  On a proper construction of the relevant policy for CIES, there was no VTD Requirement, whether upon the initial application or extension application.

(2)  Para 2.1(e) of the Rules, which concerned eligibility criteria of Approval-in-Principal or Formal Approval, did not import the VTD Requirement in the initial application or extension application.

(3)  Para 8.1 of the Rules did not extend the application of para 2.1(e) to extension application.

(4)  Paras 1 and 2 of the Immigration Guidelines for Entry to the [HKSAR] of the [PRC] (“Guidelines”) should not be relied upon.  In any case, those Guidelines were for “entry” to HKSAR. Paras 58 to 61 of the Guidelines which dealt with CIES did not prescribe the VTD Requirement for extension application. 

(5)  “Proven re-entry facilities” (as per para 3.1 of the Rules) should not be equated with VTD Requirement.

(6)  Section 2 of the Immigration Ordinance, Cap 115 (“Ordinance”), which defined “valid travel document”, should not be relied upon.  The section actually advanced the Applicant’s case.

(7)  The Judge should have found that since the Applicant was (and is) still a Chinese national and had an identity card of Gambia, there was sufficient proof to meet the entrance and extension requirements under CIES, and the Applicant was misled into relying on “other passports of countries other than Gambia”.

Applicable principles

31.The applicable legal principles are not in dispute.

32.The principles for the proper construction of an administrative policy were succinctly formulated by Chow J (as he then was) in Deluxe Ascent Ltd v Director of Lands [2021] 2 HKLRD 431, [24], which were subsequently approved by the Court of Appeal (“CA”): [2023] HKCA 305, [20] :

“(1) the true meaning and effect of the administrative policy is a matter of law for the court to determine;

(2) the court’s task is to ascertain the intention as expressed in the language of the policy objectively; and

(3) when interpreting the policy, the court should adopt a purposive approach, having regard to the document’s context and purpose.”

33.The CA in Deluxe Ascent, [21], further endorsed the dicta of Lord Steyn in In re McFarland [2004] 1 WLR 1289, [24].  Helpfully, Ms Tong had provided a summary of the principles contained in the dicta :

“(1) When interpreting a policy statement, one must bear in mind that citizens are led to believe that carefully drafted and considered statements truly represent the policy which will be observed in decision-making.

(2) In a fair and effective public law system, policy statements must be interpreted objectively in accordance with the language employed by the public authority. The citizen is entitled to rely on the language of the statement, seen in its proper context.

(3) The very reason for making the statement is to give guidance to the public. The citizen is entitled to ask in a court of law whether he fairly comes within the language of the publicly announced policy.

(4) Whilst a broader and wholly untechnical approach should prevail, what is involved is still an interpretative process conducted by a court which must necessarily be approached objectively.”

Relevant provisions

34.The relevant provisions for the purpose of the construction exercise in this case are as follows :

The Rules

The first page of the Rules contains 3 Notes, two of which are relevant for the present purpose. 

NOTE (1):  Individuals who apply to enter Hong Kong, and/or remain in Hong Kong, pursuant to the Capital Investment Entrant Scheme (the Scheme) are subject to these Rules (the Scheme Rules).

NOTE (2):  The provisions of the Immigration Ordinance and any law or legislation including subsidiary legislation in force from time to time also apply to any person entering Hong Kong under the Scheme and the dependants of such person.

Page 2 of the Rules is like an index, para 1 of which states:

1.  Interpretation, Meaning and Anti-avoidance (pages 3-7)

These are of general application to the Scheme Rules and should be kept in mind when applying to enter Hong Kong, and remaining in Hong Kong, under the Scheme.

In the body of the Rules:

Under Interpretation, Meaning and Anti-avoidance

1.1  The Scheme Rules, which expression includes throughout these Rules all amendments to them from time to time, are written in simple English and are intended to be given a fair, large and liberal interpretation to ensure the attainment of the objects of the Scheme. 

1.7  “Applicant”

means an individual who lodges with the Director an application in the form prescribed by him for Approval-in-Principle or Formal Approval to enter Hong Kong and/or remain in Hong Kong pursuant to the Scheme and before Formal Approval is refused or granted by the Director.

1.9  “Approval-in-Principle”

means a preliminary and provisional grant of approval in writing given by the Director to the Applicant to enter Hong Kong and/or remain in Hong Kong pursuant to the Scheme.

1.10     “Entrant”

means an individual who has been granted Formal Approval by the Director to enter Hong Kong and/or remain in Hong Kong pursuant to the Scheme.

1.11     “Formal Approval”

means a confirmed grant of approval in writing given by the Director to the Applicant to enter Hong Kong and/or remain in Hong Kong pursuant to the Scheme.

1.19     Anti-avoidance

…

1.19.2  An Applicant/Entrant acknowledges that by having lodged an application for Approval-in-Principle or Formal Approval as an Applicant:

…

(b)  if the Director is of the opinion that the Applicant or the Entrant has or may have contravened or avoided any Scheme Rules or has not provided relevant, accurate information in a timely fashion, the burden of proving the contrary shall be upon the Applicant or the Entrant, as the case may be.

Under Eligibility Criteria

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

…

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

[emphasis added]

Under Scope of the Scheme’s Application Policy

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

Under Entry, Stay and Extension

8.1  An individual who has obtained an Approval-in-Principle from the Director to enter Hong Kong under the Scheme will be initially allowed to remain in Hong Kong as a visitor for 3 months.  If evidence of active progress in investment in Permissible investment assets for the purposes of the Scheme can be shown to the satisfaction of the Director, his visitor status will be extended for another 3 months.  Upon the Entrant furnishing proof to the satisfaction of the Director that the investment in Permissible investment assets has been completed, permission to stay as a  non Hong Kong permanent resident will be granted for 2 years subject to the condition that the Entrant must continue to satisfy the requirements of the Scheme throughout this period.  Further extensions for 2 years will be granted on the same conditions and on the same basis.

The Guidelines

Introduction

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

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

[emphasis added]

The Introduction is followed by the specific eligibility criteria for different categories of entry permits, including those under CIES. 

Under [CIES], §§ 58 to 61 of the Guidelines contain basically a summary of the eligibility requirements, as well as hyperlinks to the Rules and the application form.

Construction

35.Hong Kong has a strict overall immigration policy due to its circumstances of, inter alia, limited space and high population.  Under the umbrella of strict immigration policy, the Government has formulated various specific immigration policies to deal with different categories of persons who wish to come to Hong Kong, the eligibility criteria for which have been highlighted in the Guidelines[1].

36.The immigration policy under the CIES was described in the affirmation of Choi Chi Yuen, [13], filed on behalf of the Director :

“The immigration policy under CIES has been laid down in the [Rules] which has all along been made available to the public since its introduction. It is a policy to facilitate the entry for residence by capital investment entrants, ie persons who bring capital to Hong Kong but would not be engaged in the running of any business here. …”.

37.The above is consistent with the dicta of this court in BI v Director of Immigration [2016] 2 HKLRD 520, which was concerned with the dependant policy under the strict overall immigration policy, at [59], [69] and [70] :

“59. … as an overall stringent immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. Within the confines of that board policy, the Director has formulated different immigration policies which allow a limited number of persons in different categories to come to Hong Kong for immigration purposes, such as working, studying, establishing or joining in any business, taking up residence as dependants or staying as a visitor (save for the applicable visa-free period for visitors). Within the overall scheme of the general stringent immigration policy, it is also the policy of the Director to ensure that Hong Kong will attract quality immigrants, that is, people with the right talent and skills to come to Hong Kong. This is reflected in the Director’s policy pertaining to :

(1) Employment as Professionals or Entry for Investment under the General Employment Policy;

(2) Immigration Arrangements for Non-local Graduates;

(3) Employment under the Admission Scheme for Mainland Talents and Professionals;

(4) Capital Investment Entrant Scheme; and

(5) Quality Migrant Admission Scheme.

…

69. What then is the relevant context for the purpose of construing the Dependant Policy?

70.  The starting point must be the overall highly restrictive immigration control policy adopted by the Director throughout the entire immigration regime.  As already noted, this restrictive policy, applied across the board of the entire immigration regime, is dictated by geographical, social and economic imperatives faced by Hong Kong, a small place with a population density, one of the highest in the world, which nevertheless remains an attractive destination for immigrants, legal and illegal.  The legitimacy and rationality of such a restrictive policy applicable to the entire immigration regime is well established by a wealth of authorities.  The judicial endorsement it has received is unanimous: see for example Hai Ho-Tak v Director of Immigration; Christian Bulao Palmis v Director of Immigration; MA v Director of Immigration; and Comilang Milagros Tecson v Commissioner of Registration.”

38.Mr Pun submitted that the only relevant policy is to be found in the Rules, and the Judge erred in regarding the Guidelines as relevant for that purpose[2]. This is a fundamental issue in the construction exercise.  We are unable to agree with Mr Pun for the following reasons :

(1)  § 2 of the Guidelines expressly states that an applicant must fulfil both the normal immigration requirements (such as the VTD Requirement) as well as the specific eligibility criteria applicable to the type of visa being sought.  Plainly, the normal immigration requirements are applicable to all persons who require a visa or entry permit from the Director to enter Hong Kong. 

(2)  The specific eligibility requirements for, inter alia, CIES applicants also form part of the Guidelines (§§ 58-61) and a complete set of the Rules is accessible within the Guidelines by way of a hyperlink.

(3)  Evidently, the Guidelines and the Rules should be read together.  Hence, although the meaning of “normal immigration requirements” in § 2.1(e) of the Rules has not been defined therein, those requirements have been referred to in § 2 of the Guidelines by way of examples, such as VTD Requirement and absence of security concerns to Hong Kong.

39.In the premises, we agree with the Judge that the relevant immigration policies are to be found in the Rules and the Guidelines.  It follows, and we agree with Ms Tong, that the Guidelines should not be regarded as “extrinsic materials” as suggested by Mr Pun.

40.Mr Pun submitted that the Guidelines only apply to persons wishing to enter Hong Kong and do not govern an application for extension of stay after a successful applicant had entered Hong Kong under the CIES.  We cannot agree.  First, as explained in para 38 above, the Guidelines should be read with the Rules. 

41.Second, it is quite clear from the Rules that the requirements for entry and extension of stay are aligned because application for entering Hong Kong and remaining in Hong Kong are both subject to the Rules (see Note(1), §§ 1, 1.7, 1.9 to 1.11 and 2.1 (read with §§ 1.9 and 1.11)).  Each of these paragraphs refers to entering Hong Kong and/or remaining in Hong Kong.  Mr Pun did not quarrel with the proposition that remaining in Hong Kong includes an extension of stay. 

42.Third, § 8 of the Rules which governs entry, stay and extension provides under § 8.1 that: “… Further extensions for 2 years will be granted on the same conditions and on the same basis”.   

43.Mr Pun submitted that, properly construed, § 8.1 only prescribes the fulfilment of investment portfolio maintenance requirements (§§ 5 and 7 of the Rules) for the purpose of extension under CIES.  That construction does not sit with common sense.  It is inconceivable that, eg, security requirements under § 2.1(e) (which come under eligibility criteria) will not have to be met for extension of stay. 

44.The point is put beyond doubt by the information provided in the Department’s website for CIES (“Information”).  Under Conditions of Stay: “… Further extensions for two years would be granted if the entrant can demonstrate … that he continues to meet the eligibility criteria and portfolio maintenance requirements …”[3].  There is force in Mr Pun’s submission that the Information is not intended to introduce extra criteria for extension of stay.  However, we believe that the Information accurately edreflects the requirements of the Rules and the Guidelines, and serves a useful purpose for the CIES applicants.

45.In our view, the language of both the Rules and the Guidelines and the context are clear.  We agree with the Judge that reading the Rules and the Guidelines together, an applicant for a CIES visa and any relevant extension of stay must satisfy the VTD Requirement[4].  

46.Mr Pun also argued that the CIES is applicable to persons who may not hold any valid travel document.  The argument is based on two propositions.  First, § 3.1 of the Rules provides that the CIES covers, inter alia, “stateless persons who have obtained permanent resident status in a foreign country with proven re-entry facilities”.  Second, the Information provides (under Entry Arrangements): “If the entrant has no proper travel document acceptable for travelling to Hong Kong, an entry permit will be issued instead”.  Based on the foregoing, on proper construction of the Rules, holding a valid travel document cannot be a requirement for entry under the CIES, still less for extension of stay, submitted Mr Pun.

47.Mr Pun emphasised that this is the main argument of the Applicant.  He further elaborated that the issue of returnability of an applicant does not depend on his valid travel document.  Rather, returnability is a matter of the applicant’s nationality, ie, he can be returned to his country by the Director should the need arise.  In the case of a stateless person, he can be returned to the place where he is a permanent resident. Thus, no issue of returnability arises under § 3.1 of the Rule.  We shall deal firstly with the two propositions identified in the preceding paragraph and then return to this issue of returnability.

48.We believe that the first proposition has been well-answered by Ms Tong :

(1)  The Judge correctly held[5] that § 3 of the Rules sets out the categories of persons who can apply under the CIES, whereas § 2 identifies what is required to establish eligibility for approval.  It is the Eligibility Criteria under § 2.1(e) that prescribe for the need to meet normal immigration and security requirements, which apply to all categories of applicants under § 3.

(2)  Under § 3 of the Rules, a stateless person who wants to apply under the CIES must have “obtained permanent resident status in a foreign country with proven re-entry facilities”.  Hence, the Director will be able to have this person returned to his/her country of residence should the need arise.

(3)  The Judge correctly observed that proven re-entry facilities is a key feature of a valid travel document[6].  As defined in s.2 of the Ordinance, a “valid travel document” must allow its holder to return to the country or territory of issue.

49.In light of Ms Tong’s submissions, we do not believe that there is any good reason to believe that a stateless applicant will not be required to fulfil the VTD Requirement pursuant to § 2.1(e) of the Rules.

50.The second proposition is misplaced.  The entire paragraph under Entry Arrangements is as follows :

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

51.It is evident that the provisions deal with arrangements for a successful entrant under the CIES.  Such a person would have satisfied the eligibility requirements under § 2.1(e) before that stage is reached.

52.Further, the undisputed evidence of Lam Pui Ling filed on 14 June 2022 on behalf of the Director, [16]-[17], made it clear that a “proper travel document acceptable for traveling to Hong Kong” is different from a “valid travel document with adequate returnability to his/her country of residence or citizenship”, although in most cases they refer to the same document.  In the event that an applicant has qualified under the CIES but his/her travel document (which met the VTD Requirement) is not acceptable for traveling to Hong Kong, the Director may facilitate the applicant’s entry into Hong Kong by issuing an entry permit.

53.As pointed out by Ms Tong, the same argument was advanced before the Judge and was rightly rejected[7].

54.In respect of the Applicant’s returnability argument, Ms Tong protested that this is a new argument which was only advanced in Mr Pun’s viva voce submissions.  For two reasons, we do not believe that the Applicant can be allowed to raise this new point.  First, as a matter of common sense, one would have thought that the Director will need to be satisfied that an applicant is a national of a certain country as he claims.  A valid travel document may be the essential document by which such claim is to be verified[8]. Second, and more importantly, we have little doubt that had the issue been raised at the hearing below evidence would have been adduced to assist the court.  This court should not be asked to decide this matter in the absence of relevant evidence.   

55.It was suggested that the Judge erred (Judgment, [62]) in finding that normal immigration requirements would “naturally and logically include a valid travel document as would permit returnability of the person to his/her country of residence or citizenship”.  The entire sentence states: “… even if there was no statement of what those requirements might include, it seems to me that ‘normal immigration requirements’ would naturally and logically include a valid travel document …”.  We see nothing in the criticism.  It was an observation consonant with common sense.

56.Finally, it is contended by the Applicant that her Gambian ID Card may satisfy the VTD Requirement.  This is another new point which was never raised with the Director, let alone the Judge (the point did not feature in the Applicant’s Forms 86).  We agree with Ms Tong that it is impermissible for the Applicant to raise an unexplored point at this stage. 

57.It is trite that an applicant is bound by his Form 86.  Proper discipline must be observed in judicial review applications: see Ng  Shek Wai v Hong Kong Institute of Certified Public Accountants [2022] HKCA 297, [7].

58.We accept Ms Tong’s submission that allowing this new point to be advanced is unfair and prejudicial to the Director because he would be deprived of an opportunity to verify the validity of the Gambian ID Card, which was issued in 2010.  There is also a public interest in ensuring that immigration policies are enforced efficiently.  The Applicant, whose permission to stay in Hong Kong had expired on 5 January 2017, should not be allowed to shift her stance again after both the Guinean Passport and Vanuatu Passport (on which she relied for the Application) had been found to be invalid.

59.For the above reasons, we agree with the Judge that the Applicant was required to satisfy the VTD Requirement to enable her to extend her stay in Hong Kong under the CIES.  Accordingly, these appeals are dismissed with costs to the Director, with a certificate for 2 counsel.  Such costs are summarily assessed at HK$261,098.33 for each appeal.

60.We are grateful to counsel for their assistance.

[1]  Affirmation of Choi Chi Yuen filed on 19 August 2019, [10]-[12].

[2]  Judgment, [53].

[3]  Bundle B/ tab 18/ 286.

[4]  Judgment, [61].

[5]  Judgment, [59].

[6]  Judgment, [63].

[7]  Judgment, [65]-[66].

[8]  Under s.2 of the Ordinance, “valid travel document” means – (a) a passport furnished with a photograph, or any other document establishing to the satisfaction of an immigration officer or immigration assistant the identity and nationality of the holder of the document and the domicile or place of permanent residence of the holder of the document, which–– … allows its holder to return to the country or territory by or on behalf of which it was issued; …