Hui Wing Kit v. Director of Immigration

HCAL 106/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 106 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.There are four applications before this court.  They are in gist the respondent’s application to dismiss the judicial review on the basis that it has become academic.  There are also the applicant’s applications respectively to further amend the Re-Amended Form 86, to seek specific discovery from the respondent, and to file further evidence in support of the amendments and the discovery as well as to oppose the respondent’s dismissal application.

2.To understand properly these applications (which I will elaborate more below), I need to set out the relevant background first.

B. BACKGROUND

3.Since 1999, the applicant has entered Hong Kong unlawfully for a number of times.  In some of these unlawful entries, the applicant had also been convicted for the offences of obstructing a police officer and illegal remaining and been sentenced to imprisonments.  The Director had successfully repatriated the applicant back to the Mainland six times between July 1999 and April 2005. In all these occasions, the Mainland authority had accepted his return to the Mainland.

4.In these incidents of illegal entry and subsequent successful repatriation:

(1) The applicant had at different times claimed to be known as “Hui Ping Ping” (許萍萍), “Hui Chun Shui” (許春水) and “Hui Wing Kit” (許榮杰).

(2) He also claimed different birthdates at different times.

(3) He sometimes claimed that he was from Jiangsu Province with an address “江蘇省南京市中山路15號”, and sometimes he claimed to be from Fujian Province with an address at “福建省泉州市安溪縣中山路15號”.

5.He then entered Hong Kong unlawfully again for the seventh time in January 2007.

6.This time, he claimed to be Hui Ping Ping (許萍萍), alias Hui Chun Shui (許春水).  He also claimed to be born in Hong Kong, but was taken to and abandoned in Taiwan at young age, and that he eventually “sneaked” into the Mainland when he became older.  He therefore asserted that he had the right of abode in Hong Kong.  Despite efforts, the Director of Immigration (“the Director”) could not find any proof of his claim for Hong Kong origin.  Later, he was sentenced to 20 months imprisonment for illegal remaining in Hong Kong.

7.After having served his sentence, in early 2008, the Director had attempted twice but unsuccessfully to return the applicant back to the Mainland.  The Mainland authority first refused to accept his return on the basis of a concern of the applicant’s claim of the right of abode in Hong Kong. At the second time of refusal, the Mainland authority did not give any reasons.

8.On 11 April 2008, the Director issued a removal order (“the 2008 Removal Order”) against the applicant and intended to repatriate the applicant back to the Mainland.

9.In seeking to facilitate the removal of the applicant back to the Mainland, from 2008 to 2015, the Director had been liaising with various Mainland authorities to confirm that the Mainland authority would accept his return upon repatriation.  The Director first sought assistance from the Jiangsu Public Security Bureau (“Jiangsu PSB”) and then the Fujian PSB.  These authorities respectively replied in November 2008 and January 2010 that they were unable to confirm that the applicant (with the names and various birth dates as provided) was a resident of those provinces.

10.In December 2010, the Director also sought assistance from the Mainland’s Bureau of Entry and Exit Authority (“BEEA”) for the re-entry of the applicant to the Mainland.  For that purpose, and since then, the BEEA had from time to time sought further information and materials relating to the applicant from the Director.  Despite the Director’s various chasers, by July 2015, the BEEA had still not been able to confirm the applicant’s re-entry arrangements and repatriation to the Mainland.

11.In December 2015, the Director also requested the Shenzhen Frontier Inspection Station to provide copies of the applicant’s records after he was previously received by the Mainland authorities upon repatriations in July 1999, December 1999, March 2000, April 2001, April 2004, and April 2006.

12.At the same time, in February 2008, the applicant for the first time claimed that he was a stateless person.  Since then, he has asked the Director to recognise him the immigration status of a stateless person as defined under Article 1 of the United Nations Convention Relating to the Status of Stateless Persons.

13.By a letter dated 18 September 2014 to the Director of Social Welfare (“DSW”), the applicant’s solicitors (“D&A”) asked the DSW to provide the applicant (as a stateless person) assistance and support for his basic needs.  In the letter, it was further stated that the applicant was born in China and taken by his father to Taiwan when he was six, and he subsequently lived in different parts of the Mainland.  In other words, it is no longer the applicant’s position that he was born in Hong Kong.

14.In June 2015, the applicant took out leave application to judicially review the Director’s delay in making a decision to regularise or normalise the applicant’s immigration status or the Director’s constructive refusal to so regularise or normalise the applicant’s immigration status.  He also sought leave to judicially review the DSW’s failure to provide humanitarian assistance to the applicant from 6 March 2013 to 21 October 2014.

15.After a hearing on 24 December 2015, leave was granted by this court to challenge the Director’s relevant delay or constructive refusal to “regularise or normalise the applicant’s immigration status” on the following grounds of judicial review:

(1) the delay in rescinding the 2008 Removal Order and/or regularize/normalize the applicant’s immigration status amounted to irrational conduct and maladministration;

(2) the delay was in breach of principles of fairness;

(3) the delay amounted to a constructive refusal to regularize the applicant’s immigration status and in refusing to regularize the applicant’s status, failed to give weight to relevant considerations;

(4) the consequence of the delay amounting to treatment in breach of Article 3 of the Hong Kong Bill of Rights (“HKBOR”), Cap 383; and

(5) the breach of legitimate expectations that respondent would act in a manner consistent with the Hong Kong Government’s international obligations.

16.The reliefs sought as against the Director are in principal an order to quash the 2008 Removal Order and a mandamus to require the Director to regularise the applicant’s immigration status or alternatively to remit to the Director to determine the question of the applicant’s immigration status within 28 days from such order.[1]

17.On the other hand, this court refused to grant any leave to apply for judicial review against the DSW and for the relief sought thereunder.

18.The substantive hearing of the judicial review has since been fixed to be heard on 16 June 2016.

19.However, in January 2016, the relevant Mainland authority confirmed with the Director that the applicant is a resident of the Mainland, and they are prepared to accept his return to the Mainland upon repatriation.  Later, the Mainland authority further informed the Director that the applicant is in fact a person called Hui Wing Pun (許榮潘) and is a resident of Fujian province.

20.These latest developments, which have triggered the present four applications, came about in the following way:

(1) The Shenzhen Border Authority (“SBA”) [深圳市公安邊防支隊] by a letter to the Director dated 18 January 2016 confirmed that the applicant is a Mainland resident and asked the Director as to the arrangements to repatriate him back to the Mainland (“the SBA Resident Confirmation Letter”).

(2) By a fax dated 19 January 2016, the Department of Justice (“DOJ”) wrote to this court (copied to D&A) to apprise this court of the above latest confirmation by the Mainland authority that the applicant is a Mainland resident and the Director was requested to provide details for the repatriation of the applicant so that necessary reception arrangements could be made by the Mainland authority.  DOJ submitted that in the circumstances, this applicant for judicial review has been rendered academic.  DOJ also sought extension of time to file the Director’s evidence so that parties may explore the possibility of an amicable disposal of the case or a separation application for a short hearing to consider the necessity or utility of the substantive hearing fixed for 16 June 2016.

(3) On 19 January 2016, this court directed that the time for the Director to file and serve his evidence be extended to 26 January 2016.

(4) By D&A’s fax dated 22 January 2016 to the Director, copied to this court, it was stated that they were not in a position to advise the applicant that the present judicial review proceedings are academic or moot without clarification and disclosure of evidence and information from the Director in support of the claim that the applicant is a Mainland resident and national.

(5) The SBA’s Resident Confirmation Letter was provided to D&A on 22 January 2016.  Despite this, D&A had further asked the Director to disclose to them all the documents relied on by the Director to justify the enforcement of the 2008 Removal Order.  Effectively, the applicant was asking for all the documents to show that he is a Mainland resident.

(6) On 26 January 2016, the Affirmation of Lau Man Yiu and Affirmation of Chan Nga Ting were filed on behalf of the Director and an Affirmation of Fung Hing Sum Fanny was filed on behalf of the DSW to oppose the judicial review.

(7) On 4 March 2016, the Director made a request to the SBA for further information, apparently in light of the applicant’s requests for clarifications on the basis upon which the SBA confirmed that the applicant was a Mainland resident and national.

(8) On 7 March 2016, the SBA replied and for the first time stated that the applicant (許榮杰) was a Mainland resident named “Hui Wing Pun” (許榮潘).  Also provided were a composite certificate of household registration (ie, not an original document but an amalgamation of information from various sources) dated 25 February 2016 as Annex 1.  Annex 2 contained particulars of household registration and family members of Hui Wing Pun (“the SBA Supporting Documents”).

(9) As stated in SBA’s above letter, the link of the applicant to Hui Wing Pun is said to be a cluster of numbers in a telephone book identity that was found to be in the possession of the applicant.  The cluster of numbers, which was said to be related to a Mainland identity card, was apparently written on a piece of paper in a curious manner.

(10) The other identification evidence was based on positive recognition of the photos of the applicant by his alleged family members.  At the same time, the letter stated that the family members had not met Hui Wing Pun since 1997.

21.Thereafter, the Director wrote to the SBA again on 15 April 2016 seeking further clarifications, again apparently in light of the various further queries raised by the applicant’s solicitors on the SBA Supporting Documents information, and the applicant’s position that a DNA test should be carried out to verify that the applicant is in fact Hui Wing Pun.

22.In response, on 19 April 2016, the SBA sent a fax to the Director to clarify the steps taken by them and the documents they have relied on to identify the applicant as Hui Wing Pun as follows:

(1) The SBA is a subordinate unit of the Public Security Bureau (“PSB”) [公安部].  There is a mechanism for cooperation amongst the public security entities in the Mainland.  As part of the duties of the SBA to receive repatriated Mainland residents who have illegally entered and remained in Hong Kong, they have to have the cooperation of the public security entities in different provinces to verify the identities and household registration of persons to be repatriated to the Mainland.

(2) Through the abovementioned cooperation mechanism, the SBA confirmed that the applicant is “福建省公安溪縣城厢鎮人”.

(3) In order to further investigate into the circumstances of this case, the SBA went to Fujian on 24 February 2016 to have a working meeting with the 福建省泉州市邊防支隊, 泉州市出入境管理局and安溪縣公安局.  Upon a review at the working meeting of the cases materials concerning the applicant, it was found that a cluster of numbers in a telephone book found in the possession of the applicant when he was arrested in Hong Kong in 1999 was suspected to be a Mainland identity card number (350524720405251).

(4) 泉州市出入境管理局investigated into the above cluster of numbers and confirmed that the cluster of numbers relates to a Mainland identity card belonging to許榮潘 (Hui Wing Pun) whose household registration is “福建省安溪縣城厢鎮光德村義路63號”.

(5) SBA then went to the above address together with福建省泉州市邊防支隊, 泉州市出入境管理局and安溪縣公安局城厢派出所and met the mother, two elder brothers and one younger sister of許榮潘 (Hui Wing Pun).  The photo of the applicant when he was arrested in Hong Kong under the alleged identity of許萍萍in 2001 was shown to the Hui family.  The mother, two elder brothers and one younger sister of許榮潘 (Hui Wing Pun) confirmed instantly on the spot that the person in that photo was許榮潘 (Hui WingPun).

(6) Upon further confirmation by泉州市出入境管理局and溪縣公安局城厢派出所that許榮杰 (the applicant) is 許榮潘 (Hui Wing Pun), the SBA provided the Immigration Department with the relevant information in March this year.

(7) 泉州市出入境管理局informed that許榮潘 (Hui WingPun) has not applied for a 2^nd generation identity card yet.  The number of the 2^nd generation identity card (as quoted in the reply from the SBA dated 7 March 2016) is默認號within the system which is reserved for 許榮潘 (Hui Wing Pun) in case he applies for a 2^nd generation identity card.

(8) As for the arrangements for a DNA test with Hui WingPun’s parents, the SBA is liaising with 安溪縣公安局and will revert as soon as possible.

C. THESE APPLICATIONS

C1. The four applications and the parties’ principal positions

23.As I said above, these latest developments since January 2016 have resulted in the four applications that are now before me.  These applications are as follows.

24.The Director’s application (“the Dismissal Application”)[2] to dismiss the judicial review on the basis that the issues raised in it are rendered academic by these latest developments as the applicant would be repatriated and accepted by the Mainland authority.  For that purpose, the Director has also asked for leave to file the 2^nd and 3^rd Affirmations of Lau Man Yiu respectively dated 24 March 2016 and 21 April 2016, which are to set out the evidence on the above latest developments.

25.There are also the applicant’s applications to:

(1) seek further and specific discovery from the Director for any documents and information that he has relied on to conclude that the applicant is Hui Wing Pun, or an alternatively an order of mandamus directing the Director to take such necessary and reasonable steps to obtain such documents (“ the Discovery Application”);[3]

(2) file and rely on the Affirmation of Fu Hualing to provide expert evidence on “Chinese law and procedures for establishing the identity of persons purported to be Mainland residents”, and the 2^nd and 3^rd affidavits of Chan Chun Tat to show that the evidence and information relied on by the Director is insufficient and inadequate and also that it is therefore premature to dismiss the judicial review (“the Filing of Further Evidence Application”); and

(3) amend the Amended Form 86 to put in the challenge of the Director’s decision made on 18 January 2016 to enforce the 2008 Removal Order effectively on the ground that it is irrational for him to rely on the evidence and information that has been made available to him to conclude that the applicant is one Hui Wing Pun (“the Amendment Application”).[4]

26.In support of the Dismissal Application, Mr Mok SC (together with Ms Grace Chow) say, in issuing the 2008 Removal Order, it has always been the Director’s case that the applicant should be repatriated back to the Mainland and the Director has been waiting for the Mainland authority’s confirmation that they would accept the applicant’s re-entry before carrying out the repatriation.  Given that the Mainland authority has now confirmed that they would accept the applicant’s return as he is a Mainland resident, there are no more impediments to the repatriation of the applicant back to the Mainland.  There is also no question that the Director has to normalise or regularise the applicant’s immigration status.  The issues under the judicial review have been rendered academic, and hence, the Dismissal Application.

27.On the other hand, the applicant denies that he is Hui Wing Pun.  Mr Johannes Chan SC (together with Mr Earl Deng) for the applicant contend that when the identity of the person to be removed is in dispute, fairness demands a stringent duty (“the Purported Duty”) on the Director to satisfy himself that the evidence now provided by the Mainland authority to confirm the purported identity of the applicant is proper and credible.

28.In support of the applicant’s applications, Mr Chan has skilfully made various forensic attacks on the above information and documents provided by the SBA, as well as the process in which these documents and information were said to have been obtained by the SBA, to show that the quality of evidence and information is doubtful.  In particular, Mr Chan says the expert evidence of Professor Fu Hualing shows that, when there is a dispute as to identity of a person, the normal practice nowadays adopted by the Mainland authority is to rely on DNA test, which is singularly lacking in the present case.

29.In the premises, Mr Chan submits that the issue before this court in light of the Director’s latest attempt to remove the applicant is whether, given the Purported Duty, it is irrational (in the public law sense) for the Director to accept and rely on the evidence now provided by the Mainland authority to be satisfied that the applicant isin fact Hui Wing Pun.

30.Further, Mr Chan says that it is least reasonably arguable that the Director bears the Purported Duty in the present circumstances and has acted irrationally in relying on the Mainland authority’s purported identification of the applicant.  The court therefore should not dismiss the judicial review at this stage, and should allow the applicant’s above applications.

31.Mr Mok for the Director however submits that it is clear that there cannot be the Purported Duty.  Leading counsel says that if the applicant’s contentions are correct, the Purported Duty would effectively amount to requiring the Director to adjudicate a dispute on identity between the Mainland authority and the applicant. This cannot be right as the identification process and task is entirely a matter for the Mainland authority and the Director has no role to play.  The Director does not have any legal basis and authority to do that.

C2. The fundamental issues and the court’s analysis

32.It can be seen from the above contentions that all the four applications give rise to the following common fundamental issues:

(1) Is it reasonably arguable that, in seeking to remove the applicant under a removal order, and where the applicant has disputed the identity as identified by the authority of the place where he is to be returned, the Director has the Purported Duty to satisfy himself that the evidence relied on by the Mainland authority to confirm the purported identity of the applicant is proper and credible.

(2) If there is, is it at least reasonably arguable that, in the circumstances of the present case, the Director is irrational in relying on the information and evidence provided by the SBA so far to accept that the applicant is Hui Wing Pun and to seek to enforce the 2008 Removal Order.

33.In my view, the Director does not owe the applicant the Purported Duty.  I will explain why.

34.The nature of the Director’s duty, if any, is to be assessed in the proper context of his statutory powers.[5] In relation to this, as Mr Mok rightly submits, the Director’s power to issue a removal order comes from section 19(1)(b) of the Immigration Ordinance (Cap 115) (“the IO”).  Under that provision, the Director may remove a person if it appears to him that that person has landed in Hong Kong unlawfully, or is a person who does not enjoy the right of abode in Hong Kong, or who does not have any right or permission to enter or remain in Hong Kong.  Thus, under the statute, all that the Director has to be satisfied are that the intended person to be removed falls within these categories.  Whether that person has or ever had any permission or right to enter and remain in Hong Kong are clearly matters properly within the Director’s own jurisdiction and capacity to ascertain and confirm.

35.However, once the Director is satisfied that a removal order should be issued against that person (in the present case, the applicant) because he has no right or permission to remain in Hong Kong, the next step is to arrange the repatriation of that person to a specified country or place,[6] which is usually the place where that person has come from before entering Hong Kong.  This raises the practical question of whether that place would accept that person’s return.  It is in this context that there is the need to confirm with the authority of that place whether they would be prepared to accept the return of that person.

36.Mr Chan contends that it is at this stage that the Director has the Purported Duty (which is in a nature of a fact-finding duty)[7] to ensure that the identification of the applicant by the Mainland authority has been properly done.

37.I am unable to agree.

38.The identification is entirely a matter for the Mainland authority to carry out and decide, and it is in that process that the Mainland authority would have to satisfy themselves that the applicant is someone who they are prepared to accept entry upon repatriation.  If the Mainland authority come to the conclusion that they would accept him because he is, say, a resident and national of the Mainland, that is and can only be a matter entirely for the Mainland authority to verify in accordance with their own law, regulations and practices.  That question and its determination is entirely and solely within the jurisdiction and power of the Mainland authority.  The Director has no roles to play in that process, save as to provide to the authority all the necessary information and materials in his possession to enable them to make the identification.  In other words, the Director simply has not carried out any fact-finding exercise in the identification process as suggested by the applicant.

39.In the premises, there cannot be any fact-finding duty imposed on the Director to satisfy himself effectively that the basis upon which the Mainland authority has identified the applicant is proper and correct.

40.Mr Chan however submits that when the very identity of the person to be moved is disputed by that person, there must be a duty on the Director to satisfy himself that that person is the same one as identified by the foreign authority before the Director could remove him to that place.  Mr Chan therefore says that duty arises as a matter of fairness in the process, and that duty, Mr Chan further says, has to be a stringent one since the removal involves the liberty of a person.

41.With the greatest respect, I am also unable to agree with Mr Chan.

42.It is trite that the extent of any duty of fairness as required by the law is context based.  The context we are here concerned with is the situation where there is no dispute that the applicant does not have any right or permission to remain in Hong Kong.  Insofar as the Director is concerned, he is to be removed and there is no issue of identity.  As I said above, the identification is concerned solely with the question of whether the place the applicant is to be returned to would accept him.  That exercise is and can only be carried out by the Mainland authority but not the Director.  In that context, even if the applicant disputes that he is the person as identified by the Mainland authority, fairness in my view would only require the Director to provide all the relevant information and materials that are in his possession to the Mainland authority to enable them to carry out the verification task.  If the applicant still contends that the Mainland authority has wrongly identified him, he could and should challenge that identification before the relevant appropriate tribunal in the Mainland.

43.Further, given that there is no dispute that the applicant has no right to stay in Hong Kong, and the only question left is where he should be so repatriated to, I also do not see the involvement of any issue of personal liberty.

44.Finally, Mr Chan relies on the case of Ooi Yen Khim v Immigration Tribunal [2008] 4 HKC 271 to support his contentions that the Director has a fact-finding duty in the circumstances as in the present to satisfy himself with the quality of the materials and evidence relied on to identify the person to be removed.

45.In Ooi Yen Khim, the applicant Ms Ooi entered Hong Kong on a Malaysian passport and was permitted by the Director to stay for 90 days as a visitor.  During her stay, she married a Hong Kong permanent resident and her application to remain in Hong Kong as a dependant was also approved.  The applicant however was later arrested in Hong Kong on suspicion of possessing and using a forged Malaysian passport.  Subsequently, the Director issued a removal order against her on the basis that all the permissions previously granted to her to enter and remain in Hong Kong were vitiated by fraud, and thus she had no right to remain.  It is the Director’s case that she was in fact a Mainland Chinese Ms Zhu instead of Ms Ooi.  She appealed the removal order to the Immigration Tribunal pursuant to section 53A of the IO.  The applicant appealed on the basis that there was lack of concrete evidence to support the making of the removal order.  The Tribunal dismissed the appeal summarily without a hearing.  The reason provided by the Tribunal was that it was “satisfied that the facts or matters on which [Ms Ooi was] seeking to rely [were] not matters which would entitled [her] to succeed in the appeal”. The applicant brought a judicial review against the Tribunal and the Director.

46.Reyes J allowed the judicial review on the basis of procedural unfairness.  The material reasons for the learned judge to arrive at that conclusion are effectively as follows:[8]

(1) Under section 53A(1) of the IO, the issue in the appeal was whether Ms Ooi had the permission to remain in Hong Kong at the time of the removal order.

(2) Given that permissions to remain had been initially granted by the Director, the burden was thus on the Director to show that the Malaysian passport was in fact a false one and thus those permissions were vitiated.

(3) However, the Director never provided to Ms Ooi any of the evidence he had relied on to find that the passport was a false one, and at the appeal, the Director similarly did not provide any underlying evidence to support his conclusion that the passport was a false one.

(4) Thus, the Tribunal effectively dismissed the appeal by solely “rubber-stamping” the paper submissions of the Director without carrying out an independent assessment of any evidence.  This is in breach of its duty and function under section 53C of the IO.

(5) The principle of fairness and natural justice required that the underlying materials relied on by the Director to support the fact that the passport was a false one should be furnished to Ms Ooi for her to comment and to the Tribunal to enable it to form an independent conclusion.  The failure to do so was procedurally wrong and a denial of natural justice.

47.Ooi Yen Khim is clearly distinguishable from the present case.  The critical question in Ooi Yen Khim is whether the Director had a proper basis to justify his finding that Ms Ooi’s Malaysian passport was a false one, which thereby vitiated the permissions granted.  This is a finding made by the Director himself and, as found by the learned judge, the burden was thus on him to prove that he was correct.  This in turn gave rise to the fact-finding duty as a matter of fairness to furnish the underlying materials to Ms Ooi and the Tribunal.

48.In the present case, we are concerned with a case where the applicant has never had any permission granted by the Director to enter and remain in Hong Kong.  There is therefore no issue of the Director having made a fact-finding that the permissions are obtained by fraud.  In the present circumstances, the only question is whether the person to be removed is someone the Mainland authority are prepared to accept upon repatriation.  This, as I said above, is a question to be decided entirely by the Mainland authority but not the Director.  Thus, unlike Ooi Yen Khim, there is no question of any burden of proof resting on the Director.  Ooi Yen Khim therefore does not assist or support the contentions advanced by Mr Chan in the present case.

49.For all the above reasons, I am not persuaded that in the circumstances as the present, the Director has the Purported Duty to satisfy himself that the identification by the Mainland authority has been properly carried out.

50.Given this conclusion, it is thus clear to me that, in the present case, there is no question that the Director has breached any duty in accepting the Mainland authority’s confirmation that they are prepared to accept the applicant’s return to the Mainland upon repatriation as the applicant is one Hui Wing Pun and a Mainland resident.  In this respect, it must be noted that it is the applicant’s recent own position that he was in fact born in China.[9]

51.In the premises, the Director is entitled to enforce the 2008 Removal Order by repatriating the applicant to the Mainland.  As result:

(1) The proposed amendments to the Amended Form 86 to add a challenge of the decision to enforce the 2008 Removal Order on the basis that the Director has in breach of the Purported Duty acted irrationally by relying on the aforesaid confirmation of the Mainland authority are not reasonably arguable.  The Amendment Application is therefore refused.

(2) Any evidence sought to be filed by the applicant to be relied upon to show that the Director is irrational in relying on the materials provided by the Mainland authority is irrelevant to this judicial review.  I would also dismiss the Filing of Further Evidence Application.

(3) For the same reason, the Discovery Application is also irrelevant and must be rejected.

(4) There are no more live issues as to whether the Director should regularise the immigration status as there is no question that the applicant is someone without lawful permission to remain in Hong Kong and now will be repatriated back to the Mainland.  The court will not grant the reliefs sought in the judicial review.  The principal issues raised in the judicial review have therefore been rendered academic and no useful purpose would be served by the continuation of the judicial review.  I will therefore allow the Dismissal Application and dismiss the judicial review.

D. DISPOSITIONS

52.For all the above reasons, I dismiss the Amendment Application, the Filing of Further Evidence Application and the Discovery Application, but allow the Dismissal Application.[10] The judicial review is hereby dismissed and the date fixed on 16 June 2016 for its substantive hearing shall be vacated.

53.I further order that the costs of the Dismissal Application, the Amendment Application, the Filing of Further Evidence Application and the Discovery Application be to the Director (being the successful party in these applications), to be taxed if not agreed with certificate for two counsel.

54.The applicant has also sought leave by a summons dated 14 April 2016 to file his 2^nd affidavit to record certain events relating to an interview he attended with the Immigration Department on 21 March 2016 and the search of his home on that night pursuant to a warrant.  The affidavit is relied on to deny, in case it is so asserted by the Director, that the applicant has admitted that he is Hui Wing Pun by signing any documents under those circumstances (see paragraph 25 thereof).  As I understand it, the Director has not advanced and relied on any such assertion.  I therefore do not think this affidavit is relevant.  Further, for the reasons I have set out in this judgment, I also do not think the evidence is relevant.  I would therefore also dismiss this summons to file and rely on this affidavit.  However, as the Director has indeed made reference to the interview in the 2^nd affirmation of Lau Man Yiu (at paragraph 7) and exhibited the interview record, and hence caused the applicant’s responses, I think the fairest costs order is that there be no order as to costs of this summons.

55.As to the costs of the judicial review up to the Dismissal Application, Mr Mok for the Director rightly has not asked for the costs of the judicial review as it is dismissed on the basis of the latest developments as discussed above.  On the other hand, the applicant has argued that he should be entitled to the costs of the judicial review.  However, I cannot say at this stage that, even without these latest developments, the applicant is bound to win at the end of the day (particularly in light of the full evidence now filed by the Director under the 1^st Affirmation of Lau Man Yu).  In the premises, in my view, the fair and just order in these circumstances is to make no order as to costs of the judicial review.

56.Finally, I will further order that the applicant’s own costs (in all the above applications and the judicial review) be taxed in accordance with legal aid regulations.

57.I also wish to thank counsel on both sides for their helpful assistance in these matters.

Mr Johannes Chan SC & Mr Earl Deng, instructed by Daly & Associates, for the applicant (assigned by Director of Legal Aid)

Mr Johnny Mok SC & Ms Grace Chow, instructed by Department of Justice, for the respondent