Comilang, Milagros Tecson and Another v. Director of Immigration

CACV 59/2016 & CACV 60/2016

[2018] HKCA 423

CACV 59/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2016

(ON APPEAL FROM HCAL NO 45 OF 2014)

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AND

CACV 60/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2016

(ON APPEAL FROM HCAL NO 56 OF 2014)

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Before : Hon Cheung CJHC, Lam VP and Poon JA in Court

Dates of Written Submissions :  15, 29 June & 6 July 2018

Date of Judgment : 24 July 2018

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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) :

A.      INTRODUCTION

1.On 26 March 2018, judgment was handed down dismissing the Comilang Appeal, the Luis Appeal and the Dembele Appeal with costs (“Judgment”).  The appellants in the Comilang Appeal and the Luis Appeal now apply for leave to appeal to the Court of Final Appeal under both “the great general or public importance” limb and the “or otherwise” limb pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  They raised a total of nine questions in their notices of motion filed on 4 June 2018 :

“ (1) When a parent applicant, who is a foreign national with no right of abode in Hong Kong, makes an application for permission to remain in Hong Kong to take care of his/her minor child, who is a HKSAR permanent resident having the right of abode in Hong Kong, whether the Director of Immigration in considering the application is obliged, as a matter of law, to take into account the parent-and-child family’s enjoyment of applicable fundamental rights while living in Hong Kong. (Question 1)

(2) What are the rights of Hong Kong residents guaranteed and protected under Article 37 of the Basic Law of the HKSAR, other than the freedom of marriage. (Question 2)

(3) Whether a family living in Hong Kong consisting of a non-Hong Kong resident care-giving parent and her Hong Kong resident child is precluded by reason of section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) from relying on Article 37 of the Basic Law for constitutional protection in respect of decisions made by the Director of Immigration under immigration legislation in respect of the non-Hong Kong resident family member impacting on the integrity of the family and the enjoyment of family life in Hong Kong. (Question 3)

(4) Whether the Director of Immigration is obliged under the common law to take into account as a relevant consideration when he makes a discretionary decision under immigration legislation in respect of an applicant the fact that a HKSAR permanent resident child of the applicant enjoys the right of abode and the public benefits that his HKSAR permanent resident status under Article 24 of the Basic Law enables the child to enjoy in and only in Hong Kong. (Question 4)

(5) Whether international human rights obligations extended to the HKSAR, such as those under the International Covenant on Civil and Political Rights (“ICCPR”) and the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) enshrining the family as ‘the natural and fundamental group unit of society … entitled to protection by society and the State’, are relevant to the judicial supervision of administrative decision-making in the exercise of a statutory discretion of general terms affecting the continuing enjoyment by individuals of such fundamental human rights in Hong Kong. (Question 5)

(6) Whether the Director of Immigration is obliged under the common law to take into account as a relevant consideration when he makes a discretionary decision under immigration legislation in respect of an applicant the best interests of a child affected by his proposed decision where the applicant is a parent who is the primary carer of the child, and if so, how do the courts of the HKSAR exercise its supervisory jurisdiction in respect of the Director’s legal obligation. (Question 6)

(7) Whether the extension of international human rights obligations to the HKSAR and the enactment and coming into operation of the Basic Law entail that the courts of the HKSAR reasonably expect these obligations to individuals in the jurisdiction to be taken into account in the making of administrative decisions in the exercise of statutory discretion and that individuals are entitled to apply to the courts to ensure them to be taken into account in fulfillment of this reasonable or legitimate expectation. (Question 7)

(8) Whether the Director of Immigration’s overall immigration policy and his administration of the same fetters his statutory discretion under section 11 of the Immigration Ordinance to consider each applicant’s case for permission to remain on its merits by his approach of refusing applications for permission to remain not made in respect of any of the Director’s specific immigration policies subject only to his non-obligatory consideration of any overwhelming factor or exceptional compassionate or humanitarian circumstances. (Question 8)

(9) Whether the Court of First Instance, in deciding if there is ‘good reason’ to extend time to apply for leave to apply for judicial review under the Rules of the High Court (Cap 4) Order 53 rule 4(1) –

(a) should regard the time take [sic] and the difficulty encountered in obtaining legal aid as prima facie a good reason for extending time or a legitimate excuse of the relevant period of delay;

(b) is entitled to view a period of delay in apply [sic] for leave to apply for judicial review as prejudicial to good administration in the context of immigration control where the relevant applicant has all along been subject to immigration control.  (Question 9)”

2.After considering the parties’ written submissions, we take the view that the application can be disposed of on paper without an oral hearing.  We now hand down our judgment.

B.  THE “GPI” LIMB

3.Ms Li, SC, for the appellants, submitted that the great general or public importance of the Questions is clear.  For, according to her, there are numerous applications by similarly placed applicants with responsibilities of parental care or of fostering to a HKSAR permanent resident child seeking the exercise of the Director’s statutory discretion.  These families consisting of such applicants are part of and a not insignificant part of Hong Kong society.  Although there is no evidence in support, Mr Abraham Chan SC, for the Director, did not seem to have refuted this allegation in his written submissions.  That being the case, we are prepared to accept that, subject to what we will say below, Questions 1 to 6 would potentially have an important impact on a significant number of applicants and families whose situations are similar to the appellants, thus satisfying the test for great general or public importance.  However, for reasons to be articulated, we do not consider each of the Questions 1 to 6 to be reasonably arguable.  Question 7 is either not a proper question for the Court of Final Appeal’s determination or it is not reasonably arguable. Neither Question 8 or Question 9 is of great general or public importance.  In any event, they are not reasonably arguable.

4.With this brief introduction, we proceed to examine each of the Questions more closely.

B1.  Question 1

5.According to Ms Li, Question 1 is based on Poon JA’s formulation of the core issue at [37] of the Judgment, where the fundamental rights sought to be relied on by the appellants were set out.

6.Question 1 plainly begs the question if the fundamental rights sought to be relied on are, as a matter of law, engaged.  Any suggestion that the Director is legally obliged to take into account any unenforceable rights inapplicable to the appellants, however strong they might otherwise be, is plainly untenable.  It follows that Question 1 must stand or fall together with the other Questions on arguability.

B2.  Question 2

7.Essentially, Ms Li repeated her earlier submissions before us why a more expansive construction should be adopted for BL37 to include the general right to raise a family freely.  Poon JA at Part C1 of the Judgment reviewed the relevant first instance authorities and explained why, applying the common law approach to statutory interpretation authoritatively laid down by the Court of Final Appeal in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, he agreed with those authorities and rejected Ms Li’s arguments to the contrary. Having considered Ms Li’s submissions advanced for the present leave application, we are not persuaded that Question 2 is reasonably arguable.

8.True it is that the Court of Final Appeal has not construed BL37 to determine and elaborate the rights guaranteed thereunder apart from the freedom of marriage in W v Registrar of Marriages (2013) 16 HKCFAR 112, it does not detract from the plain and obvious position that Ms Li’s construction of BL37 is simply unarguable.

B3.  Question 3

9.Question 3 is plainly unarguable for three reasons.  First, it is plainly unarguable that BL37 is engaged.  Second, Hai Ho Tak v Attorney General [1994] 2 HKLR 202 on the effect of section 11 of the Hong Kong Bill of Rights Ordinance, Cap 383, remains binding on this court.  Third, Ms Li argued that Rbani v Secretary for Justice (2014) 17 HKCFAR 138 was wrong decided.  Insofar as this Court is concerned, Rbani is of course binding.  It is a matter of the appellants, if they are so advised, to take up the point before the Court of Final Appeal.

B4.  Question 4

10.Again, Ms Li essentially repeated her earlier submissions why BL24 was engaged in the present appeals. At Part C2 of the Judgment, Poon JA explained why it was not.  That view we maintain.

11.Further, as rightly submitted by Mr Chan, any alleged disadvantage to a particular child applicant is necessarily fact-specific and case-sensitive and, absent any statutorily mandated regard to such matters, the alleged failure by the Director to properly engage with such considerations in respect of the appellant’s situations cannot give rise to any question of great general or public importance.

B5.  Question 5

12.This is plainly unarguable because of the effect of section 11 of the Hong Kong Bill of Rights Ordinance and the dualist principle precluding any reliance on any undomesticated international treaty rights authoritatively endorsed by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

B6.  Question 6

13.Here, Ms Li again basically repeated her previous submissions which Poon JA at Part C5 of the Judgment firmly rejected.  We are not persuaded that Question 6 is arguable.

B7.  Question 7

14.This Question is too board and imprecise because it does not identify the international human rights obligations said to be extended to Hong Kong.  As presently formulated, it is not a proper question for the Court of Final Appeal’s determination.

15.Further, so far as those international human rights obligations which were argued by Ms Li to have given rise to a legitimate expectation are concerned, her argument was firmly rejected in the Judgment.  Ms Li has been unable to satisfy us that Question 7 is reasonably arguable.

B8.  Question 8

16.The principles as to how the Director should approach and exercise his discretions under his overall immigration policy are well settled.  How he had in fact exercised his discretion in a given case, such as the instant appeals, is fact-sensitive and case-specific.  No question of great general or public importance arises.  In any event, any challenge that the Director had failed in his duty in this regard in any of the instant appeals is, on the facts, plainly unarguable.

B9.  Question 9

17.In considering an application to extend the time to apply for judicial review, it is trite that the court will take into account all the relevant circumstances.  Difficulty in obtaining legal aid is but only one factor.  How much weight is to be attached to it must depend on the facts of each case.  Thus it cannot give rise to any question of great general or public importance.  Likewise, how the delay affected good administration is fact-sensitive.  It cannot be a question of great general or public importance either.  In any event, it is not reasonably arguable that Au J had erred in exercising his discretion to set aside the ex parte leave in each of the instant appeals.

B10.  Conclusion

18.For the above reasons, we conclude that none of the Questions satisfies the requisite threshold and therefore refuse to give leave under “the great general or public importance” limb.

C.  THE “OR OTHERWISE” LIMB

19.It is well established that if an appellant wishes to invoke the “or otherwise” limb, it is a matter for the Court of Final Appeal.  We will not give leave to appeal on this limb.

D.  DISPOSITIONS

20.We refuse to grant leave to appeal to all the appellants in the Comilang Appeal and the Luis Appeal, and dismiss their notices of motion.

21.We see no reason why costs should not follow the event.  Having considered the Director’s statement of costs, we summarily assess his costs at HK$250,000.00.  We accordingly order the appellants to pay the Director costs in the sum of HK$250,000.00 and the appellants’ own costs are to be taxed in accordance with Legal Aid Regulations.

Ms Gladys Li SC and Mr P Y Lo, instructed by Daly, Ho & Associates, assigned by the Director of Legal Aid, for the 1^st & 2^nd Applicants (the 1^st & 2^nd Appellants) in CACV 59/2016 and the 1^st to 4^th Applicants (the 1^st to 4^th Appellants) in CACV 60/2016

Mr Abraham Chan SC and Mr Jonathan Chang, instructed by the Department of Justice, for the Respondent (Respondent) in CACV 59/2016 and CACV 60/2016