Belandres, Lilibeth Betalac and Another v. Director of Immigration
Read the full judgment text of HCAL 101/2014 on BabelCite. This High Court CFI judgment was delivered on 14 March 2018.
1. The 1 st applicant is a national of the Philippines. She came to Hong Kong in 1993 to work as a domestic helper. She subsequently had a relationship with a man who is a Hong Kong permanent resident. She gave birth to the 2 nd applicant in September 2009 out of the relationship. The 2 nd applicant is a permanent resident of Hong Kong.
Cited by 1 case · Cites 13 cases
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HCAL 101/2014 [2018] HKCFI 559 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 101 OF 2014 ________________
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_____________________ J U D G M E N T _____________________ A. INTRODUCTION 1.The 1st applicant is a national of the Philippines. She came to Hong Kong in 1993 to work as a domestic helper. She subsequently had a relationship with a man who is a Hong Kong permanent resident. She gave birth to the 2nd applicant in September 2009 out of the relationship. The 2nd applicant is a permanent resident of Hong Kong. 2.She was arrested in April 2009 for overstaying after her then employment contract was terminated in February 2009. 3.On 14 March 2013, the Director of Immigration (“the Director”) issued a removal order (“the RO”) against the 1st applicant under section 19(1)(b) of the Immigration Ordinance (Cap 115) (“the IO”). The 1st applicant’s appeal against the RO was dismissed by the Immigration Tribunal on 15 April 2013. 4.This is the 1st and 2nd applicants’ application for judicial review challenging the Director’s decision (“the Decision”) to issue the RO. In gist, the applicants say the Decision is unlawful as it fails to take into account their various rights protected under the Basic Law (“the BL”) and the Bill of Rights (“the BOR”), the Director fettered his own discretion when making the Decision, the Director failed to take into account relevant matters in making the Decision, the Decision is irrational in all the circumstances and is tainted by procedural unfairness. 5.Before I deal with the substantive grounds of the judicial review, I will set out the relevant background first, which is largely undisputed. B. BACKGROUND FACTS 6.The 1st applicant first entered Hong Kong in 1993 and was granted permission to remain to work as a foreign domestic helper. The 1st applicant worked as foreign domestic helper under successive contracts until 18 February 2009 when her employment contract was prematurely terminated by the employer. 7.In 2004, the 1st applicant met a Mr Yip, a permanent resident of Hong Kong. They entered into a relationship. The 1st applicant became pregnant in early 2009. 8.The 1st applicant gave birth to the 2nd applicant in Hong Kong in September 2009. The 2nd applicant is a permanent resident in Hong Kong. Around the time of the leave application, the 2nd applicant was a six years old boy studying in Hong Kong. 9.On 20 April 2009, the 1st applicant was arrested by the police for overstaying. She was transferred to the Castle Peak Bay Immigration Centre. During an interview with an immigration officer, the 1st applicant stated that she was allowed a vacation by her employer and she did not know that her employment contract had been terminated by her employer. She later stated to an immigration officer that she did not want to go back to the Philippines because she was pregnant and wished to have the baby born in Hong Kong. She also stated to an immigration officer that she would like to claim all her benefits from her employer. On 5 May 2009, the 1st applicant was released on recognizance. 10.The 1st applicant was financially supported by Mr Yip during her pregnancy. Mr Yip also made arrangements for her accommodation in Hong Kong. The 1st applicant has been the primary carer of the 2nd applicant since birth. 11.The 1st applicant’s relationship with Mr Yip deteriorated since she gave birth to the 2nd applicant. On 18 December 2009, they had a big quarrel and Mr Yip assaulted the 1st applicant. The incident was reported to the police and Mr Yip was arrested. Since then, Mr Yip stopped paying maintenance to the applicants. The 1st applicant then approached the Social Welfare Department, which processed the application of the 2nd applicant for Comprehensive Social Security Assistance (“CSSA”) and later granted CSSA to the 2nd applicant. 12.The 1st applicant then obtained legal aid to commence proceedings in the Family Court against Mr Yip for custody of the 2nd applicant with reasonable access to Mr Yip (under FCMP 129/2010). By consent the Family Court ordered on 1 September 2010 that the custody of the 2nd applicant be to the 1st applicant with reasonable access to Mr Yip and that Mr Yip do pay a monthly maintenance of HK$4,000 to the 1st applicant for the 2nd applicant’s expenses until the 2nd applicant reaches the age of 18 or finishes full time education, whichever is the later (“the Custody Order”). 13.In June 2011, Mr Yip applied to vary the access to the 2nd applicant provided in the Custody Order on the basis that he was worried that if the 1st applicant had to be removed to the Philippines, his right and arrangement of access to the 2nd applicant would be adversely affected. Therefore, he asked for variation of access to reasonable access of not less than once every week and payment of monthly maintenance on the basis of the prerequisite that the 2nd applicant would reside and be educated in Hong Kong until he reaches the age of 18 or finishes full time education, whichever is the later. 14.On 27 September 2011, upon hearing the parties and upon the parties acknowledging and agreeing that in the event that the 1st applicant be deported to the Philippines, Mr Yip will take care of the 2nd applicant on a temporary basis, the Family Court ordered that Mr Yip shall have defined access to the 2nd applicant at least once a week and other access by agreement between the parties. It is also directed that the 2nd applicant be not removed from Hong Kong without leave until he attains the age of 18 respectively but provided that if either parent do give a general undertaking to the Court to return the 2nd applicant to Hong Kong when called upon to do so, and unless otherwise directed with the written consent of the other parent, that parent may remove the 2nd applicant from Hong Kong for any period specified in such written consent; that there be liberty to apply on an urgent basis. I will refer this order as the “Revised Access Order”. 15.In the meantime, the 1st applicant had written to the Director repeatedly stating that she was not willing to go back to the Philippines because she would like to take care of her son, the 2nd applicant, in Hong Kong until he reaches the age of 18. 16.On 14 March 2013 the Director made a removal order (ie, the RO) against the 1st applicant on the basis that she had contravened her condition of stay by overstaying in Hong Kong and that after investigation, it was satisfied that she had no legal claims in Hong Kong. The RO was served on the 1st applicant on 8 April 2013. 17.The 1st applicant lodged an appeal against the RO on 9 April 2013, stating that the 2nd applicant needed her attention and care; that she could not bring him to the Philippines without his father’s permission pursuant to the court order not to remove him from Hong Kong; that she could not trust anyone (even his father) to take care of the 2nd applicant since he was the only family for her and she did not want to lose him; and that she could not compromise his life and future and wished that she might stay in Hong Kong with him until he reached the right age or he was capable of taking care by himself. The Immigration Tribunal dismissed the 1st applicant’s appeal without a hearing on 15 April 2013. 18.The applicants made an application with the Legal Aid Department for legal aid to challenge the RO. Solicitors for the 1st applicant wrote to the Immigration Department on 25 July 2013 asking that the Immigration Department should consider withholding deportation or removal of the 1st applicant pending the determination of her legal aid application. 19.The Legal Aid Department granted legal aid certificates to the 1st applicant and the 2nd applicant for the purpose of applying for leave to apply for judicial review against the RO on 17 February 2014 and 18 March 2014 respectively and assigned solicitors to them on those dates. The Legal Aid Department further assigned counsel on 24 June 2014. 20.The assigned solicitors delivered the papers of the case to the assigned counsel on 15 July 2014. 21.Counsel provided the assigned solicitors with the first draft of the Notice of Application for Leave to Apply for Judicial Review and the verifying affidavit of the 1st applicant on 30 July 2014. Further instructions had to be taken from the 1st applicant to clarify matters before the drafts could be finalized. 22.The applicants applied for leave for judicial review on 21 August 2014. Leave was granted on paper on 16 September 2014. The applicant amended the Form 86 on 7 December 2015. C. THE DIRECTOR’S POLICY AND THE DECISION 23.Under section 19(1)(b) of the IO, the Director may issue a removal order against a person who “has landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him”. 24.It is the Director’s case and evidence he adopts the following Policy (“the Policy”) in considering the exercise of his discretion as to whether to issue a removal order:
25.For the present case, in the application for the issue of a removal order against the 1st applicant dated 11 February 2013, it was stated in the file minute M50 as follows:
26.In addition to taking into account the matters stated in M50, the Director’s consideration of the 1st applicant’s case in deciding whether to issue a removal order has further been recorded in the file minutes M54 (dated 6 March 2013), M1 (dated 12 March 2013) and M2 (dated 14 March 2013). Relevantly, it was respectively stated in them as follows:
27.Mr Fung, the Assistant Director of Immigration who made the Decision, has also filed an affirmation to confirm the matters stated in the above minute files and set out the decision making process. 28.In particular, Mr Fung deposes at paragraph 49 of his affirmation that:
29.Thus, in gist, the Director was satisfied that the RO should be issued under section 19(1)(b) as:
D. THIS JUDICIAL REVIEW D1. The grounds of judicial review 30.The applicants’ grounds for judicial review as set out in the Amended Form 86 and advanced by Ms Li SC are in summary these:
31.The Director opposes the judicial review on the basis that (a) the leave to apply for judicial review should be set aside as there is serious delay on the applicants in making the application; and (b) the grounds of judicial review are in any event without merits. The Director also relies on the serious delay to say that the court should not exercise its discretion to grant any relief to the applicants even if it is not prepared to set aside leave and finds the judicial review grounds of any merits. 32.Although Mr Yu SC (together with Mr Abraham Chan) has emphasized in their submissions that the Director’s primary ground in opposing this application is delay, I find it appropriate in all the circumstances to deal with the merits of the grounds of judicial review first. 33.In this respect, it should be noted that the same teams of counsel respectively for the applicants and the Director have run similar arguments in a number of other immigration related judicial reviews heard before me. They have at this hearing also relied heavily on the relevant submissions made in those cases. The judgments in those cases have since been handed down, they are the judgments in Pagtama v Director of Immigration (HCAL 13, 45 & 56/2014, 12 January 2016, Au J) (“the Pagtama Judgment”); Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016, Au J) (“the Dembele Judgment”); and LK v Director of Immigration (HCAL 77, 98 & 100/2014, 9 August 2016, Au J) (“the LK Judgment”). I would no doubt refer to these judgments below when relevant and necessary. 34.I will now look at the grounds of judicial review in turn. D2. The Purported Rights Ground 35.As I mentioned above, Ms Li SC and Mr P Y Lo for the applicants argue that as a matter of legal obligations or relevance in public law, the Director in formulating the Policy and in making the Decision in deciding whether to remove the 1st applicant must take into account the Purported Rights of the applicants. 36.The arguments raised by Ms Li in support of this ground are closely similar to the ones leading counsel had raised comprehensively in the Pagtama Judgment, the Dembele Judgment,and the LK Judgment, albeit in the context of the Director’s refusal to grant dependant visa or permission to stay to the various foreign overstayer applicants to stay in Hong Kong who have their permanent resident minor children or grandchild in Hong Kong. 37.The court has rejected all these arguments in the above judgments. See the Pagtama Judgment, paragraphs 55 - 188; the Dembele Judgment, paragraphs 20 - 57 and the LK Judgment, paragraphs 46 - 52. 38.Given that the arguments raised by Ms Li in the present case under this ground are in substantive the same as in those three cases,[4] I will adopt the same reasons I have set out in those judgments to reject the present arguments. In fact, I would say those reasons apply with even greater force in the present case in the context of removal order, since under section 19(1)(b), the applicant should prima facie be removed given that she is an overstayer and has been staying in Hong Kong illegally. 39.In the present case, Ms Li has further relied on the authority of Singh v Secretary for Security (1996) 6 HKPLR 440 in support of her present submissions. In Singh, the relevant challenge was that the Secretary in deciding to issue a deportation order against the applicant under section 20(1)(a) of the IO failed to attach sufficient or proper weight to the hardship said to be suffered by the applicant and his family if he was to be deported. In this respect, Keith J held that (a) hardship was indeed a relevant consideration for the Secretary in the exercise of his discretion (at 449B-450C); but (b) the Secretary did take that into account and nothing had been shown that he had failed to give proper or sufficient weight to this factor (at 450D-451I). 40.Seizing on the above observations, Ms Li submits that, similarly in deciding whether to make a removal order (the effect of which is similar to a deportation order), the Director has to strike a balance between the needs of immigration control on the one hand and the hardship suffered or to be suffered by the immigrant applicant, her family and other innocent third parties on the other hand. In that exercise, the Director has to take into account the Purported Rights as those rights clearly concern with the hardship that applicant and her family would suffer (as those rights relate to the right to family, the best interest of a child and the child’s entitlement to various social welfare and public education and services in Hong Kong as its permanent resident). 41.With respect, this authority does not take Ms Li’s arguments under this ground any further. 42.I have rejected similar arguments made in Sabir Mohammed v Permanent Secretary for Security (HCAL 114/2015, 27 January 2017) at paragraphs 50 - 74. In Sabir, the applicant challenged the Permanent Secretary for Security’s decision not to rescind or suspend a deportation order made against him. One of the arguments raised by leading counsel in that case, relying also on Singh, was that when exercising his discretion whether to rescind or suspend the deportation order under sections 54 and 55 of the IO, it was unlawful for the Permanent Secretary to have reference to and adopt the Director’s strict immigration policy and only subject to a residual consideration of the hardship to be suffered by the applicant and his family by looking at whether there were exceptional humanitarian or compassionate grounds to justify a departure from the policy in favour of the applicant. 43.I rejected the argument and decided that it was legitimate and lawful for the Director to do so. Relevantly, my reasons are in gist as follows:
See also: MI v Permanent Secretary for Security (HCAL 44/2016, 9 May 2017, Chow J) at paragraphs 42 - 47, effectively agreeing with the above reasons; BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at paragraphs 104 - 111. 44.These reasons apply with equal force in the removal order context. Hence, Singh does not assist Ms Li’s submissions. 45.I therefore reject this ground. D3. The Fettering of Discretion Ground 46.Under this ground, Ms Li says the Director in applying the Policy made the Decision in the following manner:
47.Ms Li contends the Director in adopting the above approach under the Policy is fettering the discretion vested in him under section 19(1)(b) (as it provides that the Director “may” make a removal order). This is so because:
48.There is no substance in this complaint. 49.As rightly accepted by Ms Li, it is legitimate and indeed appropriate for the Director to adopt a policy to guide his exercise of discretion under immigration context. Under this fundamental premise, as I have held in Sabir Mohammed at paragraphs 48 - 68, it is equally and perfectly legitimate for the Director to have regard to the overall strict immigration policy in considering an application for the issue of a removal order and to subject the exercise of discretion to an exceptionality approach to consider if there are any strong humanitarian and compassionate grounds to justify a departure from the policy. In other words, there is no fettering of discretion simply because under the Policy, the Director would only consider not making a removal order unless there exist exceptional circumstances. 50.There is also no substance in Ms Li’s argument that the “exceptional approach” in the exercise of the residual discretion is not a true “merit” consideration and thus true exercise of discretion. 51.This contention must be examined and understood in the now firmly established position of the law that the Director has no duty and is not obliged to consider humanitarian grounds.[6] 52.Further, even if he does make a humanitarian and compassionate consideration based on an exceptionality approach, it is strictly a matter for the Director to decide in each case the weight to be attached to a particular humanitarian consideration in a particular case at a particular point of time, and whether there exist such exceptional circumstances. The courts are not equipped to exercise immigration control in place of the Director and would give a wide margin of discretion to the Director in this respect. It would only interfere when there is clear procedural unfairness or when the decision concerned is plainly irrational even given the wide margin of discretion (which must be rare).[7] 53.Exceptional circumstances by definition mean that it is only in very special and unusual circumstances that the Director would regard it as justified to exercise the discretion in not issuing a removal order against a person who falls within the section 19 categories. When this is further understood in the position of the law in this respect as stated above, the mere fact that in the present case, the Director did not make detailed and extensive references to the 1st applicant’s submissions and circumstances of the applicants does not mean that the Director did not in fact take into account those materials seriously and substantively in his consideration. It is equally consistent with the position that those materials, as explained by the Director in the minutes and the affirmation evidence, do not represent particularly unusual and special humanitarian and compassionate circumstances which justify the departure from the policy. This is particularly so as most of these immigration related cases where a foreign applicant or overstayer is seeking permission to stay in Hong Kong involve circumstances where the foreigner has family members (including young children) in Hong Kong. 54.In this respect, it is pertinent to remind ourselves of what Court of Appeal has said in BI at paragraphs 106 - 109 and 116 - 119 concerning a Wednesbury challenge of the Director’s failure to take into account matters such as family ties in considering whether there are exceptional humanitarian or compassionate grounds to permit a foreign applicant to remain in Hong Kong:
55.These observations apply with equal force to Ms Li’s above arguments. 56.I therefore do not accept Ms Li’s “no true merit consideration” submissions. 57.It is worth mentioning at this stage another aspect of a complaint made by Ms Li in her skeleton and at the hearing, which may be conveniently considered under this ground. Ms Li says the Policy now explained by the Director in the affirmation of Mr Fung has never been published. It is thus unlawful or objectionable that the Director now relies on it to support and explain the Decision. In support, Ms Li relies on the authority of R(Salih) v Secretary of State for the Home Department [2003] EWHC 2273 (Admins) at paragraphs 52 - 53, per Stanley Burton J. 58.As rightly submitted by Mr Yu, this complaint is never made in the Amended Form 86 (which was amended after the filing of Mr Fung’s affirmation). In the premises, it is not even open to Ms Li to make the complaint and challenge the Decision on this basis. 59.In any event, there are no merits in the complaint. 60.As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”. The Director’s wide discretionary powers over immigration control is derived from the IO, and the Policy is itself a policy setting out criteria for the exercise of the Director’s statutory powers in certain contexts. 61.The authority of R(Salih) is also distinguishable. It was expressly concerned with “hard cases” involving failed asylum seekers. The essential complaint in that case was that the Home Secretary’s policy on the provision of support for “hard cases” was simply not made known to those who might seek to benefit from it, see: paragraphs 35 - 36. In other words, the case was one where there was the existence of an entire unpublished scheme and policy (which was different from an already published scheme and policy) being deliberately withheld from those who stood to benefit from it in a particularly stark context. Salih therefore provides no support for any general principle that all Government materials which are to assist officers how to apply a policy, including internal administrative materials, must be made public for the policy to be lawful. 62.In the present case, there is no question of any such inconsistency with any publicly known policy insofar as the Policy is concerned. In the premises, the non-publication of the Policy does not amount to any breach of duty recognised in public law. 63.For all the above reasons, I reject the Fettering of Discretion Ground. D4. The Relevant Considerations and Irrationality Ground 64.Under this ground, the principal complaint is that the Director, in considering whether there were exceptional humanitarian and compassionate grounds, failed or failed to give sufficient weight to various important matters: the Custody Order (which gave the custody right to the 1st applicant) and the impact of the 1st applicant’s removal upon the 2nd applicant’s rights as a Hong Kong permanent resident minor,[8] in particular in light of the fact that the 2nd applicant not having any connections with the Philippines. 65.Further, given these serious and highly relevant matters, the Decision is in any event irrational in public law sense given that the Director had no basis to form a view that it was practicable for the 2nd applicant to join the 1st applicant either in the Philippines or elsewhere outside Hong Kong, and whether it was practicable for the 1st applicant to come to Hong Kong to visit the 2nd applicant from time to time. 66.With respect, there is no substance in this complaint. 67.As emphasized by the court time and again, unless prescribed by the law (which is not the case here), what factors are relevant or irrelevant to the Director’s consideration in exercise of his discretion, and the weight to be attached to the factors that he takes into account, is a matter for the Director. The court should give a wide margin of appreciation to the Director and will not lightly interfere on a Wednesbury challenge. See: BI, paragraphs 104 - 109. 68.In the present case, as pointed out by Mr Yu, the Director was clearly aware of the matters identified by Ms Li above and took them into account in considering whether there were exceptional humanitarian and compassionate circumstances. 69.The fact that the Family Court had granted custody of the 2nd applicant to the 1st applicant with reasonable access to Mr Yip, and later in granting the Revised Access Order recognised Mr Yip’s agreement to take care of the 2nd applicant on a temporary basis in the event of the 1st applicant being deported to the Philippines was set out for the Director’s consideration. See paragraphs 3 - 5 of M50 (quoted at paragraph 25 above) and paragraph 3(c) of M54 (quoted at paragraph 26(1) above). 70.Further, the file minutes M54, M1 and M2 show that the Director in making the Decision took into specific account, among others, of the following matters:
71.As confirmed at paragraph 35 of Mr Fung’s affirmation, it was considered that, notwithstanding the matters recorded in M54 and taken specifically into account in the decisional process, there was no sufficiently “powerful or strong humanitarian ground for exceptional circumstances which could justify [the 1st applicant] remaining in Hong Kong” and a recommendation was therefore made for the issue of a removal order. 72.Given that how the Director assessed and weighed the matter was a matter for his own discretion, and given the wide margin of appreciation to be given to him, there is no proper basis for this court to interfere with the Director’s assessment:
73.In respect of the above, Ms Li at the hearing has further advanced the argument that it is also Wednesbury unreasonable for the Director in making the Decision to be of the view that Mr Yip could take care of the 2nd applicant “on a temporary basis” until he reached 18 years old. This is so since either there was no factual basis for the Director to form that view, or that from the materials filed by the Director so far, it was unclear as to on what basis he could have reached that view. 74.Ms Li has elaborated her argument as follows:
75.I am unable to agree with Ms Li. As rightly pointed out by Mr Yu, it cannot be said that it was Wednesbury unreasonable at the time of the Decision for the Director to take into account the “temporary basis” agreement to form the view that there were no strong or compelling humanitarian and compassionate grounds to justify not removing the 1st applicant in light of the following:
76.Finally, as to the matters about the purported difficulties the 1st and 2nd applicants would face if they both return to the Philippines (which are set out at paragraphs 18 - 22 and 25 of the 1st applicant’s affidavit), these matters were not relied on by the 1st applicant in making representations to the Director asking him not to issue the RO.[13] In the premises, it is not open for the applicants now to rely on these to say the Director had failed to take them into account in the first place.[14] This court has also said repeatedly that it is for an applicant to bring up to the Director matters which the applicant says should reasonably and objectively be relevant to the decision making and the burden is not on the Director to raise the questions with them.[15] 77.Similarly, the 1st applicant has in her supporting affidavit at paragraphs 17 and 22 ‑ 24 also raised for the first time matters showing that it would not be suitable in the best interest of the 2nd applicant for Mr Yip to take care of him, even on a temporary basis. These are apparently relied on by the 1st applicant to show that it was irrational for the Director to make the Decision on the basis, among others, that the 2nd applicant could be taken care of in Hong Kong by his father. Again, these matters were not raised before the Director by the 1st applicant before the making of the Decision. It is not open for the applicants in this judicial review to rely on them to challenge the Decision. 78.Ms Li also says given the significant impact on the welfare of the 1st and 2nd applicants, the Director must adopt an anxious scrutiny in his assessments of the applicants’ particular circumstances in deciding whether to remove the 1st applicant or not. The Director however, says Ms Li, had failed to apply the requisite standard to do so. This is in effect the flip side of leading counsel’s arguments of that the Director had only made a cursory reference to the personal circumstances of the applicants or alternatively that the Decision must be irrational if one is to apply an anxious scrutiny in the assessment. 79.I am not persuaded by these submissions:
80.Ms Li has also contended in the skeleton that the Director’s assessment should be disturbed because there were further steps that were “manifestly open to him”.[16] This is, as submitted by Mr Yu, likewise baseless both legally (there being no general ground for intervention merely because some further step was “open” to the decision-maker, “manifestly” or otherwise) and factually (there being no coherent case from the applicants as to what exact steps the Director could but failed to take). 81.For these reasons, this ground is also without merit and should be rejected. D5. The Legitimate Expectation Ground 82.Insofar as this ground is to say that there is a legitimate expectation that the Director would consider the Purported Rights in deciding whether to make the RO, it is indeed the flip side of the arguments raised under the Purported Rights Ground. This must therefore be similarly rejected for the for the reasons I have rejected the Purported Rights Ground. 83.The applicants also introduce a new dimension of their case on legitimate expectation, which relies essentially on the Custody Order and the 1st applicant’s alleged status as a primary care-giver to the 2nd applicant to assert that they each have a legitimate expectation that:
84.As to this new dimension of the applicants’ case, as submitted by Mr Yu (which I accept):
85.I therefore also dismiss this ground. D6. The Procedural Irregularity Ground 86.In this ground, the applicants contend that the Director’s decision to make the RO was “unreasoned”. 87.There is no merit in this ground. Having regard to the disclosure now of the various minutes and the affirmation evidence filed by the Director in this judicial review, the basis of the Director’s decision is clear. Even if I were of the view that the original decision did not contain sufficient reasons, I would not have exercised my discretion to grant any relief in this judicial review on this basis alone as it would be entirely academic. See: Hong Kong Television Network v Chief Executive in Council [2015] 2 HKLRD 1035 at paragraphs 101 - 102. 88.It should be further emphasized that what the Director has done is to perform an ultimate balancing exercise, choosing to accord particular (but not peremptory) weight to matters such as the 1st applicant’s unlawful act in breaching her conditions of stay by overstaying. By its very nature, this kind of exercise in general is unlikely to be susceptible to more extensive or detailed description than what is found in the internal minutes and affirmation evidence filed with the court. 89.This ground must be rejected. D7. Conclusion on the grounds of judicial review 90.For all the above reasons, all the grounds challenging the Decision fail. This judicial review should be dismissed. 91.Given that I have rejected all the grounds of judicial review on merits, as fairly accepted by Ms Li, it would no longer be relevant for the applicant to seek leave to file late the 2nd affidavit of the 1st applicant and the affirmation of Mr Yip (both dated 10 December 2015). I would therefore also formally dismiss the applicants’ summons dated 18 December 2015 and refuse leave for the applicants to file them. E. DELAY 92.As I mentioned above, the Director has applied by summons dated 18 November 2015 to set aside the ex parte leave granted on the basis of delay. 93.The RO was served on the 1st applicant on 8 April 2013. The Form 86 was filed on 21 August 2014. Ms Li fairly accepts that there is at least a delay of 13 months in taking out the leave application, even taking into account the three-month period provided under Order 53, rule 4(1) of the Rules of the High Court. 94.The principles governing the extension of time in this respect have been usefully set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45. These are not in dispute and can be summarized as follows:
See: the recent endorsement of this approach on the question of delay by the Court of Appeal in AW v Director of Immigration (CACV 63/2015, 3 November 2015, Lam VP, Kwan and Poon JJA) at paragraph 1, per Lam VP, and paragraphs 23 - 36, perKwan JA. 95.Ms Li submits that there are justifications for an extension of time despite the significant delay. Essentially:
96.With respect, I am not persuaded that there are good reasons to justify an extension of time:
97.I would therefore also refuse to grant extension of time, and set aside leave on an inter partes basis. F. DISPOSITION 98.The applicants fail in all their grounds of judicial review. I will dismiss this application. Further, I would set aside the ex parte leave granted to the applicants on the basis of delay. 99.There are no reasons why costs should not follow the event. I will make an order nisi that costs of this application (including the costs of the applicants’ summons for leave to file evidence and the Director’s summons to set aside leave) be to the Director to be taxed if not agreed, with certificate for two counsel. The applicants’ own costs be taxed in accordance with legal aid regulations.
Ms Gladys Li SC and Mr P Y Lo, instructed by Daly Ho & Associates, assigned by Director of Legal Aid, for the 1st and 2nd applicants Mr Benjamin Yu SC and Mr Abraham Chan, instructed by Department of Justice for the respondent [1] The International Convention on Civil and Political Rights. [2] The International Covenant on Economic, Social and Cultural Rights. [3] The Convention on the Rights of Child. [4] At paragraph 24 of her skeleton, Ms Li emphasized her principal reliance in this case on the all the submissions she had advanced for the Purported Rights Ground made in those three cases. [5] Further, as submitted by Mr Yu in the present case, Singh is in any event distinguishable from the present case concerning a removal order on the facts. Singh concerned an applicant who had the right to remain in Hong Kong but the Permanent Secretary considered it necessary a matter of public interests and law and order to deport him. This involves different consideration compared with removal order considerations where the subject person considered to be removed by definition does not have any lawful right to remain in Hong Kong in the first place [6] Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at pp 330C-H, 332D-H, 333E-G, per Li CJ; 339A-F, per Litton PJ, and 347B-F, per Sir Anthony Mason NPJ. See also Safder Tehseen v Permanent Secretary for Security (CACV 167/2012, 6 June 2013, Kwan and Lam JJA, McWalters J), at paragraph 54, where the Court of Appeal has stated it is well established that in considering deportation, the Permanent Secretary has no general duty to take compassionate or humanitarian factors into account, even where family ties may be affected. [7] BI v Director of Immigration, supra, at paragraphs 100 - 109. [8] The identified rights include the entitlement to public benefits and services (such as education, social welfare, such as CSSA, and health services), and the 2nd applicant, being a minor, requires a parent or legal guardian in Hong Kong to act on his behalf before attaining the age of majority in respect of his entitlement [9] The court in that case went on to find that the proceedings before it were an abuse of process inasmuch as they were relied upon "to thwart" the Director's powers: see 656C-D. [10] As recorded in the file minutes M42, 44 and 45. See also Mr Fung’s affirmation, paragraph 29. [11] The paragraph deposes that: “最近，本人得悉申請人[ie, the 1st applicant] 因其工作簽證到期，將被香港入境處遣返菲律賓。此消息使本人感到十分徬徨，本人雖明白兒子年紀甚小，絕對需要申請人照顧。但倘若兒子跟隨申請人返回菲律賓生活的話，本人擔心對日後探視兒子的權利及安排有所影響。試想想本人只任職地盤工，正如俗語所謂手停口停。如果兒子於菲律賓生活，本人根本負擔不起每星期花費$2,000至$3,000元購買來往菲律賓機票，另花上好幾天的時間去探視兒子。另外，此舉亦必定會對本人的工作及收入有一定程度的影響，或使本人無法遵照該命令的指示，每月繳付呈請人每月HK$4,000元作為兒子的生活費。” (emphasis added) [12] See also the Pagtama Judgment, paragraphs 214 - 217. [13] See Fung Pak Ho William’s affirmation, paragraph 51(c). [14] See the Pagtama Judgment, paragraph 211 and the authorities cited therein. [15] See the Pagtama Judgment, paragraphs 214 - 217 and the authorities cited therein [16] See applicants’ Skeleton at paragraph 31. | ||||||||||||||||||||||||||||||||
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