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HCAL 174/2013 B B
IN THE HIGH COURT OF THE C C HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE D D CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
E NO 174 OF 2013 E ______F F BETWEEN G G BI Applicant H H and I I DIRECTOR OF IMMIGRATION Respondent J J ______
K K Before: Hon Zervos J in Court L Date of Hearing: 8 May 2014 L Date of judgment: 10 December 2014 M M ______
N J U D G M E N T N ______O O Introduction P P 1. The applicant seeks to challenge by way of judicial review the Q Q refusal by the Director of Immigration (the Director) to grant him a
R dependant visa. There is a long history to this case which concerns the R applicant’s attempts to remain in Hong Kong through various avenues S S which have failed each time. The applicant applied to be a dependant of T his wife, who enjoys the right to land in Hong Kong. They also have a T
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daughter, who was born in Hong Kong. The applicant now faces a B B deportation order. C C 2. On 5 December 2013, the applicant sought leave to apply to D D judicially review out of time the decision of the Director dated 14 February E 2013, refusing the applicant’s application for a reconsideration of his E application for a dependant visa which had been earlier refused on 26 July F F 2012.1 Leave was granted on 13 January 20142 and the application for G judicial review was heard on 8 May 2014.3 G
H H Background facts
I I 3. The applicant was born in Pakistan on 5 June 1976. His wife
J was born in Hong Kong on 11 August 1982. When she was very young, J her parents returned to Pakistan. She married the applicant on 1 January K K 2000 in Pakistan. They have four children, the three eldest were born in
L Pakistan, on 11 November 2000, 25 January 2002 and 5 September 2003, L and the youngest was born in Hong Kong on 5 April 2009. They both M M had previously married. The applicant had two children from his
N previous marriage, while the wife had none. The applicant’s first wife N died in 2005 and their children are being taken care of by grandparents in O O Pakistan.
P P 4. The applicant first came to Hong Kong on 6 June 2002 and Q Q gained entry on a Pakistani passport. He claimed that he left Pakistan
R because of death threats he received arising from an incident with R
S S 1 Hearing Bundle (HB), Anonymity Order was granted on 14 November 2013, at 34-35 2 T HB, at 37-40 T 3 HB, Originating Summons (Form 86A) and Inter Partes Summons, at 43-44 and 45-1 to 45-45
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clansmen. He feared of being killed by a group of men due to a business B B deal gone wrong. In the course of buying a vehicle, his brother killed a C person when a dispute erupted. The applicant was threatened that he C would be killed in return. His family received death threats against him D D and his brother was murdered on 21 November 2004 as a result of this E conflict.4 During the period from 6 June 2002 to 11 February 2003, the E applicant had been travelling between Hong Kong and Mainland China F F and had returned to Pakistan twice. He last entered Hong Kong on a G Pakistani passport on 11 February 2003 with permission to stay as a visitor G until 13 February 2003. He did not depart and had overstayed since H H 14 February 2003. I I
5. On 6 August 2005, the applicant was intercepted by police J J and arrested for the offences of using an identity card relating to another K person and breach of condition of stay by overstaying and by taking up K unapproved employment. On 6 September 2005, he was convicted of L L these offences and sentenced to 8 months’ imprisonment. He stated that M he committed the offences because of the desperate situation he was living M in at the time. He stated that he had no choice but to use an identity card N N relating to another and breach his conditions of stay because he had used O up all his savings and needed to find work as he was living in poverty. O He got construction jobs which paid for his general living expenses. He P P claimed that his savings had run out just prior to being apprehended by the Q police and that he had only worked for a short period on construction Q sites.5 As a result of the convictions, on 7 October 2005, a Notice of R R Consideration of Deportation was served on him. The applicant S S
4 T HB, Affirmation of the applicant, para 5, at 47 T 5 HB, 2nd Affirmation of the applicant, paras 3-10, at 45-39 to 45-39A
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submitted grounds objecting to deportation on 12 October 2005, where he B B cited his fear of being killed if he returned to Pakistan because of the C incident with his clansmen.6 C
D D 6. On 18 November 2005, the applicant made a claim under the E Convention against Torture and Other Cruel, Inhuman or Degrading E Treatment or Punishment (CAT) on the basis of the incident mentioned. F F Consideration as to whether a deportation order should be made against the G applicant was withheld pending the assessment of his CAT claim.7 He G was discharged from prison on 14 January 2006 but detained pending a H H decision to deport him. On 2 March 2006, he was released on I recognizance. Whilst his CAT claim was under consideration, there were I a number of legal challenges in relation to this area of law that prolonged J J the processing of his claim, which was ultimately decided in 2012. K K 7. In February 2007, the applicant’s wife, whilst in Pakistan, L L applied for verification of her Hong Kong permanent resident status on the M ground that she was born in Hong Kong. She was eventually informed by M way of letter dated 16 June 2008 that her application for permanent N N residency could not be accepted because of her period of absence from O Hong Kong but that she had the right to land and reside in Hong Kong O because of her previous permanent resident status. In the meantime, on P P 22 April 2008, she returned to Hong Kong so that she could live with the Q applicant and with other members of her family who were here.8 Her Q father, sister and three brothers live in Hong Kong and her sister enjoys the R R right to land and one of her brothers has a right of abode, whilst the other S S 6 HB, at 125-130 T 7 HB, at 131 T 8 The wife enjoys the right to land under s 2AAA of the Immigration Ordinance, Cap 115.
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brothers have dependant visas. The three children born in Pakistan have B B remained there and are being cared for by the applicant’s parents. The C wife, since her return to Hong Kong, has established a mobile telephone C company which is profitable enough to sustain her and the family D D financially. E E
8. The applicant’s CAT claim was refused on 26 April 2012,9 as F F was his petition against the refusal decision on 1 June 2012.10 By letter G dated 25 September 2012, the applicant was informed that the Director was G considering applying for a deportation order against him. The applicant H H responded by objecting to deportation and stated that as his wife and I daughter were living together with him and that they were both born in I Hong Kong, he wanted to live with them here. He requested the Director J J not to issue a deportation order against him.11 K K 9. During this period of time, on 7 January 2011, the applicant L L applied to remain in Hong Kong as a dependant of his wife who was a M resident of Hong Kong. He also supported his application on the basis M that he and his wife had a child who was born in Hong Kong and living N N with them. The Director refused the applicant’s dependant visa O application on the ground that he did not meet the approval criterion of “no O known record to the detriment of the applicant” (which will be referred to P P as “no known record”), notwithstanding that he found the applicant’s Q marriage was genuine and that the wife was financially capable of Q supporting him. After a request for reconsideration of the applicant’s R R dependant visa application, the Director on 14 February 2013, refused to S S
9 T HB, at 112-118 T 10 HB, at 119-122
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reconsider his application on the basis that he could not find sufficient B B grounds justifying a reversal of the previous refusal decision. C C The Dependant Policy D D 10. The Director has a wide discretion in deciding whether or not E E to grant a dependant visa. This discretion is required to be exercised F lawfully and fairly. F
G G 11. As explained on behalf of the Director,12 under the Basic Law
H and the Immigration Ordinance, Cap 115, he is vested with the power to H implement and impose immigration controls on entry into, stay in and I I departure from Hong Kong by persons from foreign states and regions. It
J was explained that the Director has devised, adopted and implemented J very restrictive and stringent immigration policies and practices because of K K Hong Kong’s unique circumstances, namely its small geographical size,
L huge population, and relatively high per capita income and living standards, L particularly, its local living and job market conditions. It was further M M explained that there is an overall immigration control policy that a person
N who does not have the right of abode and the right to land in Hong Kong N but wishes to come to Hong Kong for the purpose of working, studying, O O establishing or joining in any business, taking up residence or generally
P staying in Hong Kong as a visitor longer than the permitted visa free P period, must prior to coming to Hong Kong, obtain an entry visa or permit Q Q to enter Hong Kong. Under this overall immigration control policy, there R are different guidelines or sub policies specifying the criteria for an R
S S 11 HB, Representation by the applicant dated 5 June 2012, at 132-136 T 12 HB, Affirmation of Chiu Wai Fu Bob, Acting Principal Immigration Officer, dated 20 March 2014, at T 107-111,
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application for an entry visa or permit to enter Hong Kong for different B B immigration purposes, including amongst other things, residence as a C dependant. C
D D 12. The Director has issued a “Guidebook for Entry for Residence E as Dependants in Hong Kong” (the Guidebook) which sets out the policy E and procedure in handling and determining an application for a F F dependency visa.13 It is argued by the applicant that the Director has G failed to follow the policy as stated in the Guidebook when deciding on the G applicant’s application. It is also argued that the Director did not give H H due regard, if at all, to the applicant’s right to family.14 I I 13. Under Section II of the Guidebook entitled Eligibility Criteria J J so far as material paragraphs 3 and 5 read:
K K “3. For a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of stay (ie a resident with L the right to land or on unconditional stay), the following L dependants may apply to join him/her for residence in the M HKSAR: M (a) his/her spouse; N (b) his/her unmarried dependant child under the age of 18; and N (c) his/her parent aged 60 or above. O O ...
P 5. An application for admission of a dependant may be P favourably considered if:
Q (a) there is reasonable proof of a genuine relationship between Q the applicant and the sponsor;
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13 S HB, at 169-179 S 14 See Article 37 of the Basic Law, Article 19(1) of the Hong Kong Bill of Rights, Article 23(1) of the International Covenant on Civil and Political Rights; Article 10(1) of the International Covenant on T Economic, Social and Cultural Rights; and Articles 3, 9 and 10 of the Convention on the Rights of the T Child.
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(b) there is no known record to the detriment of the applicant; B and B (c) the sponsor is able to support the dependant’s living at a C standard well above the subsistence level and provide C him/her with suitable accommodation in the HKSAR.”
D D 14. In paragraph 15 in the section relating to other information, it E is stated by way of general explanation that: E
F “15. In general, unless a person has the right of abode or right to F land in the HKSAR, he/she requires a visa/entry permit to take up residence as dependant in the HKSAR. While each G application is determined on its individual merits, an applicants G should meet normal immigration requirements (such as holding a H valid travel document with adequate returnability to his/her H country of residence or citizenship; be of clear criminal record and raise no security or criminal concerns to the HKSAR; have I no likelihood of becoming a burden on the HKSAR, etc) as well I as the relevant specific eligibility criteria detailed above before he/she may be considered for the grant of a visa/entry permit. It J should be noted that the eligibility criteria may be subject to J change from time to time.” K K
L 15. A key issue in this judicial review application is the above L policy statement. Insofar as is relevant to the applicant’s case, the M M eligibility criteria set out in the Guidebook provides that for a sponsor who
N is a resident and not subject to a limit of stay, the specified dependants N which includes his or her spouse, may apply to join him or her for O O residence in Hong Kong.
P P 16. The Director has a wide discretionary power as entrusted to Q him by the legislature. Accordingly, it was submitted on behalf of the Q Director, that approval of applications is discretionary and each application R R is determined on its individual merits. The three matters referred to in S paragraph 5 of the Guidebook are specific considerations that the Director S
T will take into account when considering a dependant visa application. It T
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was submitted that, in general, the applicant should meet all three elements B B before the grant of a visa or entry permit may be considered. Nonetheless, C it does not mean that the Director’s consideration will be limited to those C elements only. The Director may consider all other relevant factors and D D circumstances of an individual case and examine if there exists strong E compassionate or humanitarian reasons or other special extenuating E circumstances warranting exceptional consideration. However, it was F F submitted that the Director would exercise his discretion in accordance G with the stated objective of maintaining a restrictive and stringent G immigration control. It was further submitted that behind the eligibility H H criteria of the dependant policy is the Director’s commitment to I contributing to the security and prosperity of Hong Kong by, among other I
J things, exercising effective immigration control and keeping out J undesirable persons from Hong Kong. To this end, it was submitted, that K to support an exceptional consideration for a departure from the existing K
L dependant policy, there must be sufficiently exceptional grounds before the L Director would do so. M M
17. As I will endeavour to explain in this judgment, I did not find N N that the Director appropriately or properly applied the policy in the present O case, and that he failed to appropriately consider, if at all, the O compassionate or humanitarian grounds or extenuating circumstances that P P were present in this case. As will become apparent, the Director in my Q view focused principally, if not only, on the applicant’s criminal record Q which related to immigration offences which were not considered in their R R proper context, nor viewed taking all facts and circumstances into account S in arriving at his decision. S
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18. The policy was examined in some detail by A Cheung J (now B B Cheung CJHC) in Gurung Deu Kumari v Director of Immigration [2010] 5 C HKLRD 219. In that case a divorced foreign national aged 58 years who C had previously lived in Hong Kong applied for a dependant visa on the D D sponsorship of her son who was born in Hong Kong and residing here. E The Director refused her application. He found that her case fell outside E the established policy in granting dependant visas, in that she had not yet F F reached the age of 60 years, and also took the view that there was no G reason for treating her application as an exception to the existing G immigration policy. The applicant and the sponsored son challenged the H H Director’s decision by way of judicial review on the grounds that the I Director fettered his discretion by shutting his mind to the possibility of I
J departing from his established policy and that he failed to take into account J the family rights of the applicant, and the sponsored son. In dismissing K the application, A Cheung J examined the Director’s dependant policy and K
L made the following observations and comments: L
“15. It is noteworthy that there is no challenge against the M M constitutionality or lawfulness of the Director’s dependant policy, under which foreigners may be allowed to join relatives in Hong N Kong as their dependant in appropriate cases. Under the N existing dependant policy, for a sponsor who is a Hong Kong permanent resident or a resident who is not subject to a limit of O stay, the following dependants may apply to join the sponsor for O residence in Hong Kong: P (a) his/her spouse; P (b) his/her unmarried dependant children under the age of 18; Q and Q (c) his/her parent aged 60 or above. R R 16. The policy is well established and published. According to the evidence, as dependency is an essential element of the S policy, and since it is considered that the categories described are S necessary to enable an administratively workable policy consistent with Hong Kong’s general immigration policy, an T T exception to the policy’s requirements may only be made where
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there are exceptional humanitarian or compassionate grounds. B Thus exceptionally, an under-aged parent may be allowed to stay B in Hong Kong as a dependant of his or her sponsoring child, or C an over-aged child may be allowed to stay in Hong Kong as a C dependant of his or her sponsoring parent, if there are strong compassionate or humanitarian reasons or other special D extenuating circumstances to justify a departure from the D established policy.
E 17. The policy works in the following way in practice. E Where the applicants falls within one of the categories described, F the application for entry to take up residence as a dependant may F be favourably considered if there is reasonable proof of a genuine relationship between the applicant and the sponsor; there G is no known record to the detriment of the applicant; and the G sponsor is able to support the dependant’s living at a standard well above the subsistence level and to provide him/her with H H suitable accommodation in Hong Kong.
I 18. However, for an applicant who does not fall within one of I the described categories, the Director’s foremost consideration would be on whether any compassionate, humanitarian or J extenuating elements exist, and whether such elements form a J sufficient justification for a departure from the policy. It is only where these elements indicate that the applicant’s case is an K K exceptional one that the other eligibility requirements (such as the intended sponsor’s financial standing, the maintenance and L accommodation to be provided to the applicant) would be L considered. Otherwise, fulfilment of these other eligibility requirements would not override the applicant’s failure to fall M within the described categories in the first place, and under the M policy, the application would be rejected.” N N
O O 19. I note of particular relevance to the present case is
P A Cheung J’s observation that the categories of dependancy in paragraph 3 P are an essential element and it was on this basis he dismissed the Q Q application. The decision highlights the distinction between the
R categories in paragraph 3 and the factors in paragraph 5 which will feature R predominantly in the judgment. It also highlights that outside the S S requirements of the policy, compassionate or humanitarian grounds or
T extenuating circumstances may justify a departure from the policy. T
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The Decision B B 20. The evidence of the immigration officer15 who handled the C C applicant’s application for residency as a dependant was that he applied the D Dependant Policy as contained in the Guidebook when processing the D application. E E
F 21. He stated that according to the available records, the sponsor, F that is the applicant’s wife, was born in Hong Kong on 11 August 1982. G G She departed Hong Kong with her mother on 1 September 1984 and H returned on 28 January 1988. She left Hong Kong again to return to H Pakistan in 1989. On 22 April 2008, she entered Hong Kong as a visitor. I I She applied to become a permanent resident of Hong Kong but was J refused because certain requirements have not been met. However, she J had acquired the right to land and was entitled to enter Hong Kong freely K K to live, study or work without any restriction.
L L 22. The officer in assessing the application concluded that the M M matrimonial relationship between the applicant and the sponsor was
N genuine and that the sponsor had the financial capacity to support a family N of three to live in Hong Kong. He went on to consider the previous O O convictions of the applicant. He said:
P P “… The nature of the offences involved dishonesty in nature. All offences involved immediate custodial sentence imposed by Q the court. It was decided to go for deportation against AP on Q the grounds that the offences committed were serious in nature; he deliberately committed the offences; and it would not be in R R the public interest to allow him to remain in Hong Kong. The deportation proceeding was in the pipeline following the S determination of his torture claim. S
T T 15 HB, Affidavit of Lung Ka Kit, Immigration Officer, dated 20 March 2014, at 94-101
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In all, it is considered that the criminal records are detrimental to B the application.” B
C 23. The officer said in his evidence that the offences committed C
D involved dishonesty in nature and that immediate custodial sentences had D been imposed. He said that the decision and the reasons to go for E deportation against the applicant, and the fact that deportation proceedings E
F were underway following the determination of the applicant’s CAT claim, F led him to consider that the applicant’s criminal record was detrimental to G his application even though he did not consider the record itself to be G
H necessarily decisive of the result. I am not quite sure what he meant by H that because it seems clear to me that he did treat it as decisive of the result I in that, it was the sole basis why the application was refused. He I
16 J concluded that the criminal records were detrimental to “the application”. J He went further than as stated in the factor of paragraph 5 which is no K known record to the detriment of “the applicant”. I do not consider that K
L this was a mistake as it was repeated in the officer’s evidence before the L court. 17 It was also repeated by the officer who conducted the M reconsideration where she mentioned it and concluded that the previous M 18 N refusal decision was justified. She did, however, addressed the N applicant’s criminal records as “known records to the detriment of the O O applicant”.19 I mention this because this was a significant departure from
P the policy. It also seems to me that consideration of the criminal record P was greatly influenced by the deportation proceedings and the applicant’s Q Q failed CAT claim where this factor should have been considered by the
R R
S 16 HB, paragraph 18 at 142 and paragraph 19 at 143 S 17 HB, paragraph 28, at 100 18 T HB, paragraph 7 at 165 and paragraph 15 at 166 T 19 HB, paragraph 11 at 165
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Director according to his own assessment within the terms and B B requirements of the application. C C 24. The officer, however, went on to state that in considering D D whether there were exceptional grounds for justifying the approval of the E application notwithstanding his criminal record, he closely took into E account the facts and matters set out in the applicant’s representations F F dated 5 June 2012. The applicant had stated that he wanted to stay in G Hong Kong to live with his wife and their daughter. He said that his wife G was running a business while their daughter was studying in Hong Kong. H H He also said that he would not be able to see them after returning to I Pakistan. I
J J 25. The officer addressed these matters in his minute as follows. K First, he noted that the applicant was born in Pakistan and before coming K to Hong Kong he had all along lived and got married there. He noted that L L his parents and siblings all resided in Pakistan. He said that following the M determination of the applicant’s CAT claim, he anticipated that there M would be no undue hardship for him to resettle in Pakistan. Secondly, he N N noted that the applicant’s two children from his first marriage, aged 9 and O 11 years respectively, and three children from his current marriage, aged 8, O 10 and 11 years respectively, all resided in Pakistan and that they were P P being taken care of by the parents of the applicant’s wife. He said that as Q the majority of the applicant’s family members, in particular his five Q children, resided in Pakistan, it was considered that no undue hardship was R R anticipated for him to return to Pakistan. He added that the Hong Kong S born daughter may choose to reside and study in Pakistan together with her S siblings and the applicant’s wife was free to pay regular family visits to T T
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them in Pakistan. Thirdly, he observed that while the applicant’s wife B B was running her business in Hong Kong, he could apply for an appropriate C visa to visit her if he so wished. Fourthly, he considered the letter from C the applicant’s religious order that he was a person of good character to D D have little bearing. The officer stated that having considered all the E circumstances of the case, including the representations from the applicant, E there was no overwhelming ground justifying exceptional consideration of F F the case and he recommended refusing the application as there was a G known adverse record to the detriment of the application.20 G
H H 26. In a letter dated 26 July 2012, the Director refused the I applicant’s application for residence as a dependant. The material part of I the letter read: J J
“According to the eligibility criteria, a person who wishes to K come to the HKSAR for residence to join his/her local spouse as K his/her dependant has to meet the approval criteria which include, L among others, there is no known record to the detriment of the L applicant.
M After careful consideration of all information and circumstances M pertaining to you application, I regret to inform you that your application for residence as a dependant is refused as the N aforesaid eligibility requirement is not met.”21 N
O O The Reconsideration
P 27. By a letter dated 25 September 2012 from the applicant’s P
Q wife’s then legal representatives, it was requested on her behalf that the Q Director reconsider the applicant’s application.22 It was submitted that R the applicant had already served a sentence for the offences committed and R
S S 20 HB, Minute of the Assessment Officer, dated 16 July 2012, at 140-143 21 T HB, at 144 T 22 HB, at 147-155
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that he should not be punished twice and reference was made to another B B case where approval had been given in the face of an adverse record. It C was also submitted that the applicant and his family should be united and C not separated. Attached to the letter were testimonials of the applicant’s D D good character and a letter from the wife dated 21 September 2012. E E
28. In the wife’s letter, she pleaded that for her benefit her F F husband’s application be favourably considered. She explained that she G ran a business on her own and needed the support of her husband. She G explained that he provided her with moral and emotional support and that H H as a Muslim woman it would be very difficult for her to cope with her I daily life without her husband. She talked of her husband’s qualities and I the impact the decision would have on her without him by her side. She J J said: “I do not want to be separated from my husband. It would be a K torture for me to live without him”.23 K
L L 29. The application for reconsideration was dealt with by a senior M immigration officer who carried out a review of the refusal to grant the M applicant’s application.24 The officer in her minute placed emphasis on N N the known record to the detriment of the applicant.25 She stated that the O nature of the offences for which he was convicted should be regarded as O serious as they involved dishonest acts. She stated that the heavy P P sentence imposed and the decision of making a deportation order had Q indicated the seriousness of the criminal offences committed. She noted Q the making of a deportation order was withheld pending the screening R R
S 23 HB, at 152 S 24 HB, Affidavit of Lam Wai Men Shirley, Acting Chief Immigration Officer, dated 20 March 2014, at T 102-106 T 25 HB, Minute of the Assessment Officer, dated 28 March 2013, at 159-166
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result of the applicant’s CAT claim. She stated that the criminal B B conviction records should be taken into account in the assessment and C should be regarded as “known records to the detriment of the applicant”. C
D D 30. The officer recorded her comments on the right to family life. E She stated that the Immigration Department was under an overall duty to E enforce effective and proper immigration control in Hong Kong. She F F stated that ascertaining all aspects under existing immigration policy and G normal immigration requirements before granting stay permission was a G crucial step in discharging such duties. She commented that while every H H Hong Kong resident was entitled to family rights conferred to him or her I under the Basic Law, it was also crucial that a visa application sponsored I by a Hong Kong resident met the specific eligibility criteria under the J J prevailing policies, as well as normal immigration requirements before the K application could be considered favourably. K
L L 31. She dismissed the good character letters in relation to the M applicant as carrying little weight in the consideration of the application. M She recommended that having considered all the circumstances of the case, N N including the representations from the wife and the legal representatives, it O was “considered that the criminal conviction record of the applicant is O serious in nature and there being no overwhelming factors or justifiable P P reasons to support our exceptional consideration for departure from the Q existing dependant visa policy”. She concluded that the previous refusal Q decision was justified and recommended maintaining the decision. R R
S 32. Under cover of letter dated 14 February 2013, the Director S advised the then legal representatives of the wife that having reviewed the T T
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information made available and all the circumstances of the case they B B could not find sufficient grounds justifying a reversal of their previous C refusal decision and that the previous decision was maintained.26 C
D D The Right to Family life
E E 33. Mr Philip Dykes, SC, for the applicant, argued that in F considering the application for a dependant visa, the Director should have F taken into account the relevant rights to family, which were engaged by the G G decision. He added the other than the applicant's individual human right H to family, the rights of the applicant's family members, as Hong Kong H residents, were also relevant. He submitted that in view of the severe I I impact that any decision relating to the applicant’s dependant visa may J have on the family members, the Director was obliged to take into account J the interests of the applicant and the interests of his wife and child as a K K composite family unit. This obligation, he submitted, arose as a matter of L obligation under the normal principles of decision-making in public law L where a decision maker must have regard to relevant issues and, if the M M decision-making is shaped by a policy, the policy must not deflect the N decision maker from having regard to those issues. There is force in this N submission in that putting the issue of family rights aside, if the family O O circumstances of an applicant are a relevant matter then they should be P appropriately and properly taken into account. P
Q Q 34. On the issue of family rights, Mr Dykes referred to Article 37 R of the Basic Law which provides that “the freedom of marriage of Hong R Kong residents and their right to raise a family freely shall be protected by S S law”. He argued that the applicant enjoyed the protection of these rights T T 26 HB, at 167
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as a non-resident by virtue of Article 41 of the Basic Law which provides B B that: “Persons in the Hong Kong special administrative region other than C Hong Kong residents shall, in accordance with law, enjoy the rights and C freedoms of Hong Kong residents described in this chapter”. He D D submitted that family members also enjoyed rights enshrined under the E International Covenant on Civil and Political Rights (ICCPR) and the E International Covenant on Economic Social and Cultural Rights (ICESCR) F F by virtue of Article 39 of the Basic Law which provides that these two G international covenants remain in force and shall be implemented through G the law of Hong Kong. The ICCPR is incorporated into the domestic law H H by virtue of the Hong Kong Bill of Rights Ordinance, Cap 383 I (HKBORO). I
J J 35. The rights in question are found in Article 19(1) of the K HKBORO and Article 23(1) of the ICCPR which states: “Family is the K natural and fundamental group unit of society and is entitled to be L L protected by society and the State”; and Article 10(1) of the ICESCR M which states: “The widest possible protection and assistance should be M accorded to the family, which is the fundamental group unit of society, N N particularly for its establishment and while it is responsible for the care and O education of dependant children”. In the present case, the rights and O interests of a child are also in question as found under the Convention on P P the Rights of the Child (CRC). Articles 3, 9 and 10 express fundamental Q rights for the well-being and protection of the child and as is material to Q the present case ensure that the best interests of the child is a primary R R consideration, that a child is not inappropriately separated from his or her S parents and that in immigration matters affecting a child that family S reunification be dealt with in a positive, humane and expeditious manner. T T
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36. Mr Dykes referred to a body of jurisprudence from the B B European Court of Human Rights and England and Wales where the prime C importance of family rights and the interests of the child in the context of C immigration cases is well recognised. Mr Dykes argued that even with D D due recognition to the legitimate restrictions on a non-resident seeking to E enforce family rights in the face of immigration decisions, there is strong E recognition of the impact that the rights of family members, and in F F particular a child’s rights, have when taken into account in the exercise of G immigration powers. He also argued that immigration decisions which G have a clear impact on a family, the Director is obliged to take into account H H the child’s interests as a primary consideration in the exercise of his I discretion. I
J J 37. Mr Dykes submitted that the relevant rights engaged in the K present case related not only to the applicant’s individual right to family K but also to the interests of the family unit as a whole that would be affected L L by the Director's decision. He acknowledged that the courts in Hong M Kong have held that those who do not have a right to enter or remain in M Hong Kong are unable to rely on the rights of family members as N N mentioned to resist removal from Hong Kong. However, he submitted O that the courts have recognised the importance of the family unit and the O interests of children as an important factor in immigration and expulsion P P cases and the Director must accordingly take family connections into Q account as a highly material consideration when determining applications Q for dependant visas. Of course, this will be fact and case-sensitive but if R R the family connections are relevant, then they should be taken into account S like any other relevant consideration, and if taken into account should be S appropriately and properly considered. T T
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38. Mr Abraham Chan, for the Director, argued that there is no B B such right to family available to the applicant to be invoked in this C immigration matter. He submitted that even though one can find a right C to family in many human rights conventions, none of them have any D D relevance when it comes to this dispute, in relation to a person without E right of abode in an immigration matter. E
F F 39. In respect of Article 19(1), namely the rights in respect of G marriage and family, regardless of its meaning and purpose, it was not G available to the applicant, who does not have the right of abode, by virtue H H of the section 11 of the HKBORO, which reads: I I “As regards person not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration J legislation governing entry into, stay in and departure from Hong J Kong, or the application of any such legislation.” K K
L 40. This proposition is supported by the judgment of the Court of L Appeal in Ubamaka Edward Wilson v Secretary for Security [2011] 1 M M HKLRD 359, which was upheld by the Court of Final Appeal, Ubamaka
N Edward Wilson v Secretary for Security (2012) 15 HKCFAR 743. The N Court of Appeal said at paragraph 135: O O “… there is a long line of cases decided in Hong Kong in which P it has been confirmed that the effect of section 11 of the P HKBORO and the immigration reservation to the ICCPR is that the provisions of the BOR and the ICCPR respectively cannot be Q invoked to enable those not having the right to enter and remain Q in Hong Kong to resist removal or deportation.” R R 41. In the appeal to the Court of Final Appeal in that case, which S S was dismissed, Ribeiro PJ held at paragraph 115 that:
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“Section 11 must be understood to exclude the application of B HKBORO and BOR in relation to the exercise of powers and the B enforcement of duties under immigration legislation regarding C persons not having the right to enter and remain in Hong Kong.” C
D 42. On the interpretation of Article 37, Mr Chan cited the D judgment of Lam J (now Lam VP) in Li Nim Han v Director of E E Immigration [2012] 2 HKC 299, where he held that the article is not to
F protect the general right of family life, such as the right to a spousal F relationship or the right of a child to paternal support. Instead, it is to G G protect the right to procreate and foster children. Therefore, even if this
H right was available to a person without the right of abode, it was not H relevant to the case at hand. I I
J 43. Mr Chan also pointed out that Article 37 is qualified by J section 11 of the HKBORO and Articles 41 and 154(2) of the Basic Law. K K
L 44. Mr Chan submitted that as the law gives the applicant no right L of abode in Hong Kong and that he has no right to enter or remain in Hong M Kong, he cannot rely on Article 37 to challenge the decision as this is M
N precluded by the operation of immigration controls which exclude the N application of Article 37. Accordingly, any rights conferred by the Basic O Law to the applicant cannot be used to resist the Director’s decision on his O
P visa application. P
Q 45. In respect of Article 10(1) of the ICESCR, Mr Chan cited Q Chan To Foon v Director of Immigration [2001] 3 HKLRD 109, in which R R Hartmann J (as he then was) stated that the ICESCR does not create an S absolute obligation on the government, due to its aspirational nature. S
T Whilst that is so, the aspirational nature of an objective does not diminish T
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its force or applicability to relevant circumstances. In respect of the CRC, B B Mr Chan cited a list of cases where arguments on the CRC had been C previously rejected. See Chan To Foon v Director of Immigration C [2001] 3 HKLRD 109 at 127C-130C per Hartmann J; Mok Chi Hung v D D Director of Immigration [2001] 2 HKLRD 124 at 133B-135H per E A Cheung J (as he then was); Li Nim Han v Director of Immigration E [2012] 2 HKC 299 at paragraph 15 per Lam J (as he then was). F F
G 46. It is clear on the authorities, as submitted by Mr Chan, that a G non-resident cannot call upon the Bill of Rights or the relevant articles H H under the Basic Law to invoke family rights. I I 47. Mr Chan also argued that with no protected constitutional or J J similar right to family life being engaged in this case, that the applicant’s K reliance upon various alleged facts concerning his family situation was K essentially an appeal to broad humanitarian considerations. He relied on L L the comments of Li CJ in Lau Kong Yung v Director of Immigration M (1999) 2 HKCFAR 300 at 332F-G, where he said, in the context of M immigration and the potential removal of non-residents, that the Director: N N
“… is under no duty and hence not bound to take humanitarian O considerations into account. Assuming the applicants would O have put forward humanitarian grounds, any failure by the Director would not have availed them since the Director was not P P bound to consider them…”27
Q Q 48. The point still remains that if the Director does take into
R account humanitarian considerations then he must do so fairly and properly. R As will become apparent in my judgment, when family circumstances are S S
T 27 See also In re Hai Ho Tak and Cheung Chun Heung [1994] 2 HKLR 202 (CA) at 210 (line 45) to T 211(line 5).
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considered in an application of this type, whatever the classification that B B they are given, it remains that they are assessed and evaluated in C accordance with administrative law principles. C
D D 49. In relation to a sponsor’s right to family life, Mr Chan E referred to Marilyn G Aringo v Director of Immigration HCAL 96/2004, E 5 September 2005, at paragraph 43, where Hartmann J said that an F F applicant cannot rely on the right of other family members, such as the G sponsor, as a back door solution to the barriers imposed under the Basic G Law and the HKBORO. Accordingly, he submitted that the applicant H H could not rely on the sponsor’s right to family life to support his case. I I 50. As there was no right to family life to be relied on in this case, J J Mr Chan categorised the family circumstances to be “humanitarian K considerations”, which the Director was not bound to consider. K
L L 51. A Cheung J addressed the issue of family rights in Gurung
M Deu Kumari. He examined Articles 37, 39 and 41 of the Basic Law and M Articles 14 and 19 of the HKBORO as well as section 11 of the HKBORO. N N He held that the Hong Kong Bill of Rights could not be invoked by a
O person not having the right to enter and remain in Hong Kong; nor could it O be invoked by the family members of such a person who were residing in P P Hong Kong. He applied Hai Ho Tak v Attorney-General [1994] 2
Q HKLR 202. He further held that Article 37 of the Basic Law was not Q engaged because of its wording. The Chinese version of Article 37, R R which used the term “自願生育的權利”, referred to the right to procreate S and to foster children voluntarily. The English version of Article 37, S namely, “the right to raise a family freely”, was consistent with the T T
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Chinese version. Thus, both English and Chinese versions had nothing to B B do with the maintenance or taking care of a parent by an adult child, or the C formation or maintenance of a family comprising such a parent and adult C child. See Santosh Thewe v Director of Immigration [2000] 1 D D HKLRD 717. He also held in that case that even if Article 37 was E engaged, then such interference with family rights was proportional and E could be justified by the overall immigration picture in Hong Kong. F F
G Grounds of judicial review G
H 52. The applicant had raised five main grounds for judicial review H which primarily centred on the Director’s exercise of discretion under the I I prevailing dependant policy. The first ground of review complained of J the misapplication of the policy. The second ground of review J complained of the failure to take account of relevant considerations K K relative to the impact on the applicant’s family. The third ground of L review complained of the unlawful fettering of discretion. The fourth L ground of review complained of manifest unreasonableness. The fifth M M and final ground of review complained of procedural unfairness.
N N 53. It is argued by the applicant that his application was refused O O on the sole ground of his previous criminal record, and the alleged
P seriousness of the offences involved, but otherwise he had satisfied the P other relevant considerations. He complained that the “no known record” Q Q factor appeared to be treated as a specific eligibility criterion (or as an R ineligibility criterion) under the policy for a dependant visa and little if any R real consideration was given to family rights and the family circumstances S S of the applicant.
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54. The Director argued that the applicant’s challenge relates B B exclusively to his exercise of discretion under the prevailing dependant C policy. He submitted that the legality of the policy was not under C challenge even though there was some debate as to how the policy was to D D be construed. He submitted that the judicial review concerned solely the E legality of the decision which he complained was a thinly veiled challenge E as to its merits which was not the function of a judicial review. I do not F F accept this complaint as it was clearly necessary in order to consider the G judicial review of the decision to take into account the factual context in G which it was made. Furthermore, factual issues may go to the legality of H H the decision. The merits of a decision go to the intrinsic quality of the I matters that have been taken into account in arriving at the decision and I
J forming the basis of it. This judicial review did not involve a challenge J to the merits of the decision. K K
55. It is clear in light of the authorities that the applicant, as a L L non-resident, cannot invoke the provisions of the Bill of Right or the Basic M Law to assert a right to family life in his challenge against the decision of M the Director. Nor can he pray in aid any rights of his family members in N N his challenge. O O 56. The Director’s position is that the court should be slow to P P intervene in the Director’s decisions, especially in relation to the exercise Q of discretion in immigration matters. The threshold for such judicial Q intervention is high as held in Aguilar Joenalyn Elmedorial v Director of R R Immigration, FAMV 47/2013, 28 January 2014. S S
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Ground 1 – The Director’s misapplication of the policy B B 57. On my understanding and interpretation of the policy C C statement contained in the Guidebook, an applicant must first satisfy the D eligibility criteria as stated in paragraph 3 by coming within one of the D three categories listed. If that is satisfied, the Director must then take into E E account all relevant circumstances of the applicant to consider whether he F ought to be granted a dependant visa. The first step then according to this F policy is to ensure that the applicant is truly a dependant of the sponsor. G G It is argued by the applicant that as a consequence the factors identified in H paragraph 5 are just some of the factors to be taken into account by the H Director in exercising his discretion. The wording of paragraph 5 I I provides some insight on this issue. It is stated that an application for J admission of a dependant “may be favourably considered” if the three J factors listed are satisfied. It is argued by the applicant that none of these K K factors are in themselves conclusive and in any event are only one of many L factors to be taken into account by the Director when exercising his L discretion. It is accordingly submitted by the applicant that the M M Guidebook properly construed does not allow for any automatic granting N or refusal of an application simply on the factors listed in paragraph 5, N otherwise these factors would be listed as one or more of the eligibility O O criteria to be satisfied, or the wording of paragraph 5 would have been P more precisely drafted to state categorically that these factors must be P satisfied in order to allow admission of a dependant. The phrase “may be Q Q favourably considered”, leaves open the option for the application to be R refused even if these factors are satisfied. It is on this basis that the R applicant argued that the Director must explain how the factors in S S paragraph 5 operate in the circumstances of an individual case so as to T justify a refusal of the dependant visa. It is not enough, argued the T
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applicant, that the Director in the proper exercise of his discretion, simply B B to cite one of the factors in paragraph 5 as a ground for refusal without any C particulars or elaboration, which the applicant complained has happened in C the present case. In my view, it is enough, if it is apparent from the D D record, the basis of the decision and the factor or factors that led to the E decision. E
F F 58. There is a distinction between eligibility criteria which must G be satisfied and serve as a ground for refusal in their own right if not G satisfied, and grounds for refusal which may or may not operate in a H H particular case. The degree of flexibility, if any, in terms of the nature I and extent to which the ground must be satisfied, will depend on whether it I is a specific eligibility ground or a general eligibility consideration. The J J applicant argued that the factors contemplated in paragraph 5 relating to K proof of genuine relationship, known record to the detriment of the K applicant and financial support for the applicant, are matters to be taken L L into account and may be afforded different weight depending on the M individual circumstances of the case. As illustrated in argument by the M applicant, the policy contemplates that a dependant visa may be refused on N N account of a lack of financial support but this must be done with proper O reasoning by the Director and it must be shown that the other O circumstances that may be relevant had been taken into account and P P properly considered. It is on this basis that the applicant argued that it is Q important that the Director demonstrates a consideration of other factors Q relevant to the application that may have a significant and important R R bearing on the exercise of the discretion. The applicant illustrated this S point by submitting that his family connections are engaged by virtue of S the serious impact the decision might have on his family unit as a whole T T
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(as opposed to a family right that cannot be invoked by the applicant). It B B is argued that insofar as the Director purported to refuse the applicant’s C application on the sole ground of “no known record”, without C demonstrating a consideration of the other circumstances in the case, there D D has been a misapplication of the dependant visa policy which constituted E an unlawful exercise of the Director's discretion. It is further argued that E to refuse the applicant’s application solely on this ground, the Director F F wrongly assumed that it was a ground for refusal in its own right. It is G open, of course, to the Director to reject an application on the basis of an G applicant’s known record but treating the “no known record” factor as he H H did in the circumstances of the present case was a misapplication of the I policy which will become apparent in the reasoning to follow. I
J J 59. Mr Abraham Chan, for the Director, disagreed that the policy K had been misapplied in the present case. He argued that both paragraph 3 K and paragraph 5 set out criteria which the Director considers as highly L L important to and generally dispositive of applications for dependant visas. M He explained that paragraphs 3 and 4 specified which dependants of M certain specified categories of sponsor may apply to join the sponsor for N N residence. He further explained that paragraph 5 then specified when O applications by dependants specified in paragraphs 3 or 4 “maybe O favourably considered”, identifying three requisite conditions or P P circumstances. He argued that paragraph 5 set out general policy Q conditions or requirements which must generally be satisfied before the Q Director exercised his general discretion under the policy. He supported R R his argument by making three points. First, that from the wording and S syntax of the opening statement of paragraph 5 the matters set out in (a) to S (c) were expressed as conditions to be met in order to engage the T T
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Director’s general discretion as indicated by the phrase “maybe favourably B B considered”. Secondly, the nature of the matters specified in (a) to (c) C would be crucial in virtually every conceivable case for a dependant visa. C Thirdly, the use of the conjunctive reinforced that these matters were D D critical conditions of requirements which must each be met and not mere E factors to be weighed up as a matter of general discretion. E
F F 60. Mr Chan cited the case of Gurung Deu Kumari where G A Cheung J discussed the dependant policy and noted that where there is G an applicant who falls outside the scope of paragraph 3, his application is H H not automatically at an end. A Cheung J explained that the Director I would still go on to consider the applicant’s overall position, but only on I the footing that the application fell outside the core parameters of the J J policy and as such would only be granted as a matter of residual discretion K if exceptional compassionate, humanitarian or extenuating circumstances K were shown. Mr Chan argued that the position as regards the paragraph 5 L L requirements was no different. He argued that the general position under M the policy was that the applicant should meet all three requirements in M paragraph 5 before the grant of a visa may be considered. However, in N N the event of these requirements not being met, the Director may still O exceptionally grant a visa if he considers that there are strong O compassionate or humanitarian reasons or extenuating circumstances to P P justify such a course, bearing in mind the importance of stringent Q immigration control. This was taken from the evidence submitted on Q behalf of the Director by way of affirmation. However, this is not what R R the policy states exactly. It does not express the three factors in S paragraph 5 as being requirements that must be met for a dependant visa to S be granted. The factors under paragraph 5 are separate and distinct from T T
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the categories under paragraph 3 which are clearly eligibility criteria that B B an applicant must come within one of them and only in exceptional cases C will consideration be given to an applicant who falls outside any of these C categories. The same cannot be said about the three factors in D D paragraph 5. They are three specific factors, clearly important ones, that E are taken into account in deciding whether or not to grant a dependant visa. E If satisfied, they may lead the decision maker to favourably consider an F F application for admission as a dependant. G G
61. Mr Chan also argued that the Director was in law entitled to H H operate a dependant policy with stringent general requirements so long as I he was prepared in operating the policy to consider each case on its I individual merits to see if there may in his assessment be grounds for an J J exception where general requirements were not met. He pointed to the K records and evidence of the Director and claimed that that took place in the K present case. From my assessment of the material, that is not the case. L L
M 62. Mr Dykes argued that there was no issue that the applicant’s M wife was a Hong Kong resident, that the marriage between them was N N genuine, and that the wife had sufficient resources to support the applicant O in Hong Kong. He submitted that the only factor against the applicant O was his 2005 convictions for immigration offences under the “no known P P record” factor contained in paragraph 5. He made the point that the Q Director wrongly treated the “no known record” factor as an eligibility Q criteria which if not satisfied was treated as a sole ground for refusal R R without considering anything more. I have to agree that on my S assessment of the matter that is exactly how the case had been handled by S the Director. T T
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63. Mr Dykes also argued that this case concerned the proper B B construction of paragraph 5 of the Guideline. He argued that the three C factors listed in paragraph 5 operate as factors to be weighed and are not C specific eligibility criteria because if they were they would have been D D included in paragraph 3 and the wording in paragraph 5 is consistent with E the exercise of discretion in that the factors “maybe favourably E considered”. He argued that the paragraph 5 factors were wrongly treated F F in the same way as the paragraph 3 factors, that is, as specific eligibility G criteria which could only be overridden in exceptional circumstances. He G further argued that the proper approach to the paragraph 5 factors would H H have been to consider them along with any other relevant factors without I predisposition and give appropriate reasons for the weight given to each if I
J deciding against an applicant. He made the point that some reasons need J to be given if the right of review that is available under section 53 the K Immigration Ordinance is to be effective and useful. I do not agree that K
L the Director needs to go that far in the exercise of his discretion. L
M 64. On my interpretation of the two paragraphs in the Guidebook, M I consider the factors in paragraphs 3 to be specific eligibility criteria N N where the factors in paragraphs 5 to be specific eligibility considerations. O The wording of paragraph 5 is unusual. The opening statement as a O qualification to the three factors listed is important. It is stated that “An P P application for admission of a dependant may be favourably considered Q if:”. It says no more that if the three factors are satisfied, the decision Q maker may be favourably disposed to the application. It leaves open the R R possibility that the decision maker may not favourably consider an S application even if the three listed factors are satisfied. It also does not S eliminate the possibility of a decision maker favourably considering an T T
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application outside the terms of this paragraph or doing so even if some or B B all of the factors listed are not satisfied. In my view it provides no more C than three factors, albeit important ones, that if satisfied may lead to a C favourable consideration of the application. In other words, to the D D application being granted. It is not expressed in terms that the three E factors must be satisfied for the grant of the application or that if any one E of them is not satisfied the application will not be granted. That is why in F F my view they are factors, and obviously important ones, to be considered G when deciding whether or not an application for admission of a dependant G should be granted. Upon an applicant coming within one of the three H H categories of paragraph 3, there appears to be an implicit guarantee that if I the three factors in paragraph 5 are satisfied the application is likely to be I
J granted. However that is all that it is, and an application may be refused J even in the face of these factors being satisfied or because of other factors K that have been taken into account. I should stress that I am not seeking to K
L detract from the importance of these factors because clearly they have a L significant bearing when deciding whether or not an applicant should be M allowed to enter and reside in Hong Kong as a dependant. The issue is M
N how the policy should be interpreted and whether it has been properly N applied. In my view, it has not been correctly interpreted and hence not O properly applied. O
P P 65. A matter that has emerged from the papers relates to the Q conviction of the applicant for the offence of using an identity card relating Q to another and breach of condition of stay. It was a result of those R R convictions that the applicant was sentenced to a term of imprisonment and S ultimately subject to a deportation order. I make the observation that a S dependant of a person who is a resident and not subject to a limit of stay is T T
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not prohibited from taking up employment in Hong Kong. In such a case, B B no prior permission from the Director is required to take up employment C here. It is relevant to bear in mind that the offences committed by the C applicant arose in circumstances where he was residing and working in D D Hong Kong. The possession and use of another person’s identity card is a E serious matter and a conviction had been appropriately recorded against E the applicant for having done so. However, if the offence arose from F F circumstances where he sought to work to sustain himself while seeking G residency in Hong Kong, then where appropriate and for the purpose of G determining a person’s application for residency in Hong Kong, such a H H prior conviction should be considered in an appropriate light as compared I to a prior conviction for a serious offence unrelated to illegal working or I
J staying in Hong Kong. I am not seeking to condone such conduct but it is J only fair that an offence be considered appropriately for the purpose for K which it is to be taken into account, and in its proper context, having due K
L regard to the circumstances in which it arose and was committed. I do L not consider that that was appropriately done in the present case. M M
66. I should also add that whilst attention has been focused on the N N right to family life in immigration cases, it nevertheless remains that the O affect or impact of a decision on a family and its members may be a O relevant consideration that should be taken into account when making a P P particular decision. There does not have to be a recognised right to Q family life for family considerations to be taken into account where it is a Q relevant and important factor in coming to the decision. In my view, in R R the circumstances of this case, it was appropriate to consider the family S circumstances of the applicant and the impact the decision would have on S his wife and child who are both resident of Hong Kong. To some extent T T
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that was acknowledged in the internal minutes of the Immigration B B Department even though the family circumstances of the applicant were C treated dismissively and therefore not appropriately considered. The C family circumstances of the applicant were a relevant consideration that D D should have been taken into account. E E
67. On this ground alone, I would allow the judicial review. F F
G Ground 2 – The Director’s failure to take into account relevant G considerations H H 68. It is well settled that if a decision maker takes into account I matters irrelevant to his decision, or fails to take into account matters I relevant to his decision, the court may set aside the decision. J J
K 69. It is argued by the applicant that the failure to take into K account the impact that the decision would have on the members of the L L applicant’s family, and on the family as a whole, constituted a material M failure to take into account a relevant consideration. It was submitted that M the Director in the present case did not show any regard to family rights N N and to the interests of the applicant’s wife and child where the sole O determinant factor in refusing the application was the factor of “no known O record”. It was submitted that an examination of the internal memoranda, P P revealed that the sole consideration in the refusal of the application was the Q applicant’s record and the alleged seriousness of the offences. It was Q complained that the Director was obliged to take into account the adverse R R impact the decision would have on the applicant’s family, and in particular S how it would affect the interests of the wife and child. I have already S made it clear that according to the relevant authority, the applicant cannot T T
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avail himself of family rights, but he can seek to argue that his family B B circumstances were relevant consideration that should have been C appropriately taken into account and considered. C
D D 70. Mr Chan his written submissions addressed the grounds of a E review in relation to unreasonableness by addressing the Director’s alleged E failure to take account of the impact of refusing a visa upon the applicant’s F F family unit either on its own or weighed against his criminal convictions. G I note that Mr Chan addressed this issue in part by focusing on how a G refusal of a visa would impact on the applicant’s family unit. The H H argument does not address, what I consider to be a pertinent issue, and that I is, whether, and to what extent, the family circumstances of the applicant I should be taken into account in deciding whether or not to grant a J J dependant visa. I will say something about this later in my judgment. K K 71. Mr Chan argued that in the circumstances of the applicant the L L right to family life was not engaged and absent any such right, the M applicant cannot argue that the Director failed to consider the matters that M he had raised relating to his family circumstances. He argued that the N N Director had no legal duty to consider the family circumstances of the O applicant which had no higher status than humanitarian circumstances that O the Director might consider in the exercise of his discretion. He pointed P P out that the policy itself generally required the fulfilment of each of the Q requirements in paragraph 5, and given that the applicant did not challenge Q the lawfulness of the policy, the Director’s conclusion that no exceptional R R circumstances existed was not one that was susceptible to judicial review. S He submitted that the Director was simply following what was a lawful S
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policy and that he was not legally obliged to take into account B B humanitarian considerations. C C 72. Mr Chan highlighted the distinction between mandatory and D D discretionary relevance and referred to the comments of Laws LJ in R (Al E Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] E QB 289 at paragraphs 131, where he said “what is and what is not a F F relevant consideration for a public decision-maker to have in mind is G (absent a statutory code of compulsory considerations) for the G decision-maker, not the court, to decide” ; and Li CJ in Lau Kong Yung at H H 332H, where he said “for impugning a decision one is concerned with what I the decision maker is bound to consider”. I
J J 73. Mr Chan argued that the Director was not bound to have K regard to the applicant’s family circumstances or indeed to any K compassionate or humanitarian circumstances and it was open to him to L L decline to do so, or to have regard to such considerations only to the extent M that he felt appropriate in the exercise of his discretion. I do not accept M this as a proposition or to be the case. He argued in the alternative that N N even if the Director’s conclusion was subject to challenge on O unreasonableness or related grounds, the standard of manifest O unreasonableness was very high and a court should be extremely slow to P P interfere with a discretionary decision of the Director as regards Q immigration control. Q
R R 74. Whilst I accept that as general proposition, it seems to me that S the greater the restrictive or stringent immigration controls that are in place, S
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the greater the readiness of the courts to ensure that such controls are fairly B B and justly applied. C C 75. Mr Chan argued nevertheless that the evidence showed that D D the Director took into account the fact that the applicant’s youngest child E with the sponsored wife resided in Hong Kong but it was noted that his E other five children resided in Pakistan; that the Director took into account F F that the applicant’s claim that he would not be able to see the sponsored G wife and his youngest child after returning to Pakistan but noted that most G of his family members resided there and that his Hong Kong born child H H could choose to reside and study in Pakistan and that his sponsored wife I could also regularly visit him there; that the Director took into account the I representations on behalf of the applicant including that the family should J J be united and not separated; and that the Director took the view which he K was entitled to do that the criminal convictions of the applicant involved K dishonest acts and were serious, so much so as to warrant a deportation L L order. M M 76. From my assessment of the internal memoranda, that whilst N N the matters were mentioned, they were only given superficial, if any, O regard. O
P P 77. I find that the family circumstances were considered to be
Q factors to be taken into account but were not treated reasonably in the Q overall circumstances of the case, and certain assumptions or propositions R R were made which were either unsupported or unfounded. I deal with this S in specific detail in the fifth ground of review. S
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Ground 3 – The Director’s fettering of discretion B B 78. Where a public body maintains a rigid policy with no C C exceptions, it thereby fetters its discretion. As a matter of principle, a D public body must consider particular cases and not follow stated policy D blindly. E E
F 79. The point made by the applicant was that the Director is F vested with a discretionary power to consider applications for a dependant G G visa and must not operate or apply a policy inflexibly or fail to take into H account the individual circumstances of the applicant. The principal H function of a policy is to ensure accountability, certainty and consistency I I with respect to the decision making processes and the decisions in relation J to the matter or subject of the policy. It is complained by the applicant J that the Director in the present case was over rigid in the application of the K K policy in refusing the application on the sole ground of “no known record”. L It is further complained that the applicant’s individual circumstances L appear to have been superficially regarded, if at all. It is submitted that M M the Director unlawfully fettered his discretion to consider the applicant’s N claim for dependency by treating any applicant with a criminal record as N an automatic ground for refusal, without evaluating the specific O O circumstances of the offences and the general circumstances of the P applicant. P
Q Q 80. In support of this ground, the applicant relied on an R examination of the relevant minutes and the routine manner by which the R policy was applied without any real consideration of the individual case. S S This the applicant argued was evidenced by the way the policy was T misapplied, the failure to allow the applicant the chance to respond to T
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important issues and the way facts of the case were weighed and B B considered, in particular, the great weight given to relatively minor C offences and little if any consideration of the significant impact the C decision would have on the resident wife and child. D D
E 81. This complaint was generally addressed in relation to the first E ground of review and there is no need for me to repeat the points that were F F made. G G Ground 4 – The Director’s decision was unreasonable H H 82. It is submitted by the applicant that no reasonable decision I I maker could have rejected the applicant’s claim on the ground of “no
J known record”. The test for unreasonableness seeks to consider whether J the decision was one which a reasonable decision maker could not have K K made, if properly directing himself in law, seized of the relevant facts and
L taking account of considerations which, in the context of the case, he was L bound to take into account. See In Re Duffy [2008] UKHL 4 at M M paragraph 28 per Lord Bingham. As noted by Lord Donaldson MR in R v
N Take-over Panel ex p Guinness plc [1990] 1 QB 146, at 160C: N
O “… the ultimate question would, as always, be whether O something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that P intervention should take.” P
Q 83. It was argued by the applicant that in the present case it was Q clear that the applicant’s record could not outweigh the interests of his R R family unit and that the refusal for a dependant visa in the circumstances of S this case was not a decision open to a reasonable decision maker. The S
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applicant set out the following particular facts that supported the grant of a B B dependant visa: C C (i) The applicant’s wife and child were both born in Hong Kong D D and are residents here. The applicant’s wife has an E established business in Hong Kong and able to earn a better E living here and provide for the rest of her family in Pakistan. F F
G (ii) Most of the wife’s family live in Hong Kong and it would be G unreasonable to expect her to relocate to Pakistan with the H H applicant if he was caused to returned there.
I I (iii) The daughter has lived in Hong Kong for the whole of her life J and attends a local school. She is proficient in Cantonese. J She has never known any other place as home and it would K K cause her great difficulty to expect her to go to Pakistan and to L adapt to the way of life there. L
M M (iv) The applicant otherwise satisfied the requirements listed in
N paragraph 5 in the Guidebook. The Director found that the N matrimonial relationship between the applicant and the wife O O was genuine and the wife as the sponsor had a stable income
P and was able to support the applicant in living in Hong Kong. P
Q (v) The applicant’s record relates to relatively minor immigration Q offences, and any concerns about the applicant staying in R R Hong Kong can be properly addressed by appropriate S conditions being imposed and do not therefore serve as a bar S to his application for a dependant visa. T T
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84. Except for the views expressed by the applicant as to the B B importance or weight of the matters listed above, they were matters that C warranted consideration in deciding the applicant’s application. The fact C that they were mentioned in the internal memoranda and during the D D decision making process of the Immigration Department, readily verifies E the need for these matters to be considered. What is in issue is whether E they were appropriately and properly considered, which I have already F F found they were not. G G Ground 5 –The Director’s decision was unfair H H
85. The applicant and his wife made representations to the I I Director of the adverse impact the applicant’s removal would have on their J family life and on their child.28 There is no need to repeat the concerns J
K that were expressed by both the applicant and his wife to the Director but K essentially they concerned the trauma and hardship that they would L experience if the applicant and his wife and child were to leave Hong L
M Kong and return to Pakistan or if the applicant was to leave Hong Kong M and return to Pakistan leaving behind his wife and child. N N
86. In this regard, the applicant referred to the comments of the O O immigration officer who made the refusal decision where in his P recommendation, he commented that as the applicant’s other children P resided in Pakistan, he considered that there was no undue hardship to him Q Q to return there; that his Hong Kong born daughter may choose to reside R and study in Pakistan together with her siblings; that the applicant’s wife R was free to pay regular family visits to him in Pakistan; and that the S S
T T 28 HB, at 132-136, at 152 and at 156-158
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applicant may apply for an appropriate visa to visit his wife if he so wished. B B It is complained specifically that the options of the applicant’s child may C choose to reside and study in Pakistan and his wife was free to regularly C visit him in Pakistan were not canvassed by the applicant and his wife in D D their representations to the Director. It is complained that the Director E should therefore not have concluded that the applicant’s wife could travel E to Pakistan for the sake of the marriage or that the daughter might wish to F F the schooled there without first putting these options to them. If, he had G put these propositions to them specifically and if they had indicated that G they would not do as suggested, it was submitted by the applicant that the H H Director would then have had to make a decision knowing that it would I effectively terminate the marriage. This failure to give the applicant and I
J his wife an opportunity to make representations in this context was J procedurally unfair. K K
87. All questions of procedural propriety are highly contextual in L L nature. It very much depends on the subject matter and the facts and M circumstances of each case. The applicant complained that the Director M failed to put to the applicant certain grounds on which the application was N N dismissed and thereby denied him the opportunity to make comment or O response. This related to certain observations made by the assessment O officer concerning the applicant’s personal and family circumstances. It P P is argued that the Director had no general duty to take such considerations Q into account and therefore could not have acted contrary to any Q requirement of procedural fairness in not giving the applicant the R R opportunity to put what would have been further representations on such S considerations before him. S
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88. It is further argued that the Director could not be said to have B B failed to comply with procedural fairness if the applicant was not given an C opportunity to supply further representations. It was submitted that this C information would be known to the applicant and the burden was on him to D D submit such information and it was reasonable for the Director to assume E all relevant information had already been provided. I agree with this E submission. F F
G 89. However, I take another view on the matter. As part of the G evaluation process in arriving at a decision, certain relevant assumptions or H H propositions may be canvassed or considered. In my view, a decision I maker needs to take great care in taking into account certain assumptions I or propositions when making his decision. First, the assumptions or J J propositions must be relevant. Secondly, they must be fairly and K realistically stated and considered. Thirdly, they must not be overstated K or extreme. The inherent danger when taking into account an assumption L L or proposition is that it does not take on significance far greater than it M deserves. I consider that the views expressed by the officer referred to M above were questionable considerations that permeated throughout the N N decision making process and inappropriately impacted on the decision. O O Conclusion P P 90. I am satisfied that the Director in the processing of the Q Q applicant’s application misapplied the policy, did not appropriately or R properly assess and consider the factor “no known record” in relation to R the applicant’s criminal record, took into account assumptions or S S proposition that were inappropriate or unfounded, and having considered
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the applicant’s family circumstances as a relevant consideration did not B B appropriately or properly take them into account in arriving at his decision. C C 91. For the foregoing reasons, I make an order certiorari quashing D D the Director’s decision made on 14 February 2013 upholding the refusal E decision made on 26 July 2012 and direct that the Director reconsider the E applicant’s application for a dependancy visa and reach a decision in F F accordance with the judgment of the court. I make an order nisi that the G respondent pays the applicant’s costs, to be taxed if not agreed, to become G absolute within 14 days of the date of judgment. H H
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K (Kevin Zervos) K Judge of the Court of First Instance L High Court L
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N Mr Philip J Dykes SC, counsel instructed by Daly & Associates, N for the applicant
O O Mr Abraham Chan, counsel instructed by the Department of Justice, for the Director of Immigration P P
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