H v Director of Immigration (No 2) (2020) 23 HKCFAR 437

H and AH (together Xs) were each denied visas under the Dependant Visa Policy (the DV Policy) by the Director of Immigration (the Director). Xs sought judicial review of those decisions. The Appeal Committee granted leave to appeal concerning certain jurisdictional issues raised in Xs’ respective cases. The Court of Final Appeal gave judgment on those issues (see (2020) 23 HKCFAR 248), following which the matters came back before the Appeal Committee to consider whether to grant leave to appeal to Xs on inter alia the following questions: (i) whether “no known record to the detriment of the applicant” (the No Record Requirement) was an eligibility criterion or merely a relevant factor to be considered by the Director under DV Policy; and (ii) whether the No Record Requirement covered only a “record of serious crime”, or one that could raise a “security objection”, as opposed to a wider range of adverse records. With respect to (ii), Xs contended that the “Legislative Council Brief: Immigration Policy on Entry of Dependants” (the LegCo Brief), an executive statement to the legislature, was an aid to construction of the DV Policy.

Held, dismissing the applications, that:

(1) It was not reasonably arguable that the No Record Requirement was merely a relevant factor to be considered by the Director and not an eligibility criterion (BI v Director of Immigration [2016] 2 HKLRD 520 approved). (See para 6.)

(2) There was no special rule of construction based on ministerial or executive statements beyond the uncontroversial proposition that such statements could be a relevant part of the context in which words used to express the policy were construed (MO (Nigeria) (sub nom Odelola) v Secretary of State for the Home Department [2009] 1 WLR 1230 applied; Mahad v Entry Clearance Officer [2010] 1 WLR 48, R (Raza Shahid Syed) v Secretary of State for the Home Department [2014] EWCA Civ 196 considered). (see para 8.)

(3) The DV Policy was to be found described in the “Guidebook for Entry for Residence as Dependants in Hong Kong” issued by the Director, not the Legco Brief, nor was it reasonably arguable that the DV Policy was to be construed by reference to the Legco Brief. The DV Policy was not determined by an underlying presumption in favour of family reunion – like other immigration policies in Hong Kong, it was to be understood in the context of the overall highly restrictive immigration control policy formulated by the Government and administered by the Director. In light of that strict immigration policy, there was no suggestion that the DV Policy limited the types of adverse records the Director might take into account in reaching his decision as to whether to exercise his discretion thereunder.

(The above headnote is taken from HKCFAR.)


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