Qt v. Director of Immigration

CACV 117/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2016

(ON APPEAL FROM HCAL NO. 124 OF 2014)

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Before : Hon Cheung CJHC, Lam VP and Poon JA

Dates of Written Submissions : 29 May and 2 June 2017

Date of Judgment : 8 June 2017

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.By a judgment dated 11 March 2016, Au J dismissed QT’s application for judicial review against the decision of the Director of Immigration communicated to her by a letter dated 18 June 2014 refusing her application for a dependant visa to enter and stay in Hong Kong as a dependant of her same-sex partner who is working in Hong Kong under an employment visa.  QT appeals and the appeal is scheduled to be heard by this Court on 15 and 16 June 2017.

2.By two summonses dated 19 and 29 May 2017, the 12 proposed interveners apply to intervene as supporting appellants in QT’s appeal.  They are all leading international financial institutions with substantial businesses, operations and workforces in Hong Kong.

3.Pursuant to our directions, the application is to be disposed of on paper without an oral hearing.  Both the proposed interveners and QT, who supports their application, have filed their written submissions, which we have duly considered.  We do not see the need to direct the Director to file any written submissions in response.  We now hand down our judgment.

FIVE PRIMARY QUESTIONS

4.Under Order 53, rules 5B and 9(1) of the Rules of the High Court, Cap 4A, the court hearing an application for judicial review has the jurisdiction to grant leave to intervene to any party who is a proper person to be heard.  The Court of Appeal has similar power pursuant to section 13(4) of the High Court Ordinance, Cap 4.  There is a wealth of authorities on the meaning of “a proper person to be heard”.  The principles derived from the authorities are well settled.  As A Cheung J (as the Chief Judge then was) said in W v Registrar of Marriages [2010] 6 HKC 359, at [261], they are aptly summarized in Fordham, Judicial Review Handbook, 6^th Edition, 244 – 250.  Mr Martin Rogers of Messrs Davis Polk & Wardwell, solicitors acting for the proposed interveners, distilled five primary questions from Fordham :

(1) Whether this appeal involves primarily a question of general public importance;

(2) Whether the proposed interveners’ fund of knowledge or particular point of view enables them to provide the court with a more rounded picture than the court would otherwise obtain;

(3) Conversely, whether the proposed interveners will merely repeat points that an existing party will be making;

(4) Overall, whether the intervention is likely to be helpful and appears justified; and

(5) Whether the intervention will cause any prejudice to the existing parties or the court.

We will deal with them in turn.

5.For Question 1, there can be no doubt that this appeal involves questions of great and general public importance.

6.Questions 2 and 3 can be conveniently dealt with together.

7.The main thrust of Mr Rogers’ submissions, echoed by Ms Rose QC for QT, is that the proposed interveners can provide assistance to this Court from the employers’ perspective in terms of the negative impact on their ability to recruit and attract top foreign employees to work here and to adopt a policy of diversity and inclusion as part of the employers’ corporate culture.  Their submissions really boil down to the point that the policy has the undesirable effect of down-sizing the pool of quality foreign employees that the employers may otherwise wish to tap, thus adversely affecting their interests and the interests of other industries and Hong Kong as an international financial center.

8.With respect, the main thrust of the proposed interveners’ submissions as identified above and the more elaborate points arising from their perspective can be readily gathered from the effect of the dependant visa policy as now applied by the Director.  The court can easily see the more rounded picture from the employers’ perspective without their input.  Further, as these points can all be advanced by Ms Rose, the proposed interveners will most likely be repeating the points QT may wish to make anyway.

9.Mr Rogers also relied on the differences between a dependant visa and a prolonged visitor visa.  With respect, it is a point for QT to take, if she so desires.  It does not arise from the perspective that the proposed interveners as employers may have on the impact of the dependant policy.  It would be wrong to allow the proposed interveners to raise such a point in the name of intervention.

10.This being the case, Questions 3 to 5 must be answered against the proposed interveners.

11.It follows that the proposed interveners’ application must be refused.

CONCLUSION

12.For the above reasons, we dismiss the proposed interveners’ application.

13.Since we have not asked the Director to respond by way of submissions, we will make no order as to costs.

Mr Martin Rogers of Davis Polk & Wardwell, for the Proposed Interveners

Ms Dinah Rose, QC, and Mr Timothy Parker, instructed by Vidler & Co., for the Applicant (Appellant)