Kc v. The Director of Immigration
Read the full judgment text of HCAL 413/2018 on BabelCite. This High Court CFI judgment was delivered on 16 October 2018.
1. The issue which arises for consideration in this judgment is how the existence of a removal order against a person would impact upon the Director’s power to grant an employment visa to that person to permit him to remain and work in Hong Kong.
Cites 8 cases
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HCAL 413/2018 [2018] HKCFI 2320 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 413 OF 2018 ________________________
________________________ Before: Hon Chow J in Court Date of Hearing: 10 October 2018 Date of Judgment: 16 October 2018 ________________________ J U D G M E N T ________________________ APPLICATION 1.The issue which arises for consideration in this judgment is how the existence of a removal order against a person would impact upon the Director’s power to grant an employment visa to that person to permit him to remain and work in Hong Kong. 2.In what follows, unless the context indicates otherwise, references to Sections shall be to the Immigration Ordinance, Cap 115 (“the Ordinance”). BASIC FACTS (i) The Applicant’s personal background 3.The Applicant was born in Cameroon in 1973. On 12 April 2006, he arrived in Hong Kong on the strength of a Cameroonian passport, and was permitted to remain as a visitor until 26 April 2006. He did not depart on 26 April 2006, and has been overstaying in Hong Kong since 27 April 2006. 4.On 26 April 2006, he applied for asylum with the United Nations High Commissioner for Refugees (“UNHCR”), Hong Kong. 5.On 21 December 2006, the Applicant was arrested by the Police for overstaying in Hong Kong. On 22 December 2006, he was referred to the Immigration Department for further investigation. On 23 December 2006, he lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On 10 February 2007, he was released on recognizance. 6.The Applicant’s asylum claim with the UNHCR was not substantiated, and his case was closed on 29 February 2008. 7.On 13 July 2012, the Director issued a removal order against the Applicant under Section 19(1)(b) on the ground that he had overstayed in Hong Kong. On 13 August 2012, the Applicant’s appeal against the removal order was dismissed by the Immigration Tribunal. 8.On 22 November 2013, the Applicant’s torture claim was refused. On 4 December 2013, he lodged an appeal against the refusal of his torture claim. On 14 April 2014, he further lodged a non-refoulement claim based on other grounds. The Applicant’s appeal against the refusal of his torture claim was adjourned pending the determination of his non-refoulement claim under the USM. On 5 October 2018, the Applicant’s non-refoulement claim was rejected. As at the date of the hearing on 10 October 2018, he had not yet lodged any appeal or petition against the rejection of his non-refoulement claim. (ii) The Applicant’s Employment Visa Application 9.On 29 June 2015, the Applicant, through his legal representatives (Daly & Associates, “D&A”), submitted an application (“the Visa Application”) to the Director for an employment visa to work as “African Arts and Culture Director” for African Ventures Holding Limited (“the Sponsor”) in Hong Kong. 10.In support of the Visa Application, various documents were submitted to the Immigration Department, including a letter of employment dated 25 April 2015. 11.The Director eventually decided to reject the Visa Application. The reasoning of the Director’s decision can be found in paragraph 11 of an internal minute (M1) of the Immigration Department dated 21 September 2015, as follows:-
12.By a letter dated 24 September 2015, the Director informed the Sponsor (c/o D&A) that the Applicant’s Visa Application was refused. In that letter, the Director stated, inter alia, as follows:-
13.On 26 October 2015, the Legal Aid Department informed the Immigration Department that the Applicant had applied for legal aid to seek to apply for judicial review of the Director’s refusal decision dated 24 September 2015. 14.By a letter dated 17 November 2016 from D&A, followed by a letter dated 24 November 2016 from the Sponsor (together with a document titled “Cultural Plan Project of African Venture”), the Director was requested to reconsider the Applicant’s Visa Application (“the Reconsideration Application”). Various documents were submitted by D&A under cover of their letter to the Director dated 17 November 2016 in support of the Reconsideration Application, including (i) the Sponsor’s Interview Records of the Applicant dated 8 February 2016, (ii) the Sponsor’s Interview Results of the Applicant dated 26 February 2016, and (iii) a letter of employment dated 1 August 2016. From those documents, it would appear that the Applicant was interviewed, and offered an employment, by the Sponsor for the job of “African Music & Dance Trainer”. 15.By a letter dated 2 December 2016, the Director asked the Sponsor to provide any fresh/additional information/documents that it wished to provide for his consideration by 23 December 2016, and stated that the Director would proceed with the assessment based on the information and documents available by that date. 16.On 28 December 2016, the Immigration Department received a letter from D&A dated 22 December 2016 attaching therewith a letter from the Sponsor dated 12 December 2016 together with a USB drive which was said to contain audio and video recording of the Applicant’s performances and a painting of the Applicant. By a letter dated 4 January 2017, the Director informed the Sponsor that the contents of the USB drive could not be accessed, and asked the Sponsor to submit any fresh/additional information/documents by 4 February 2017. 17.The Director eventually decided to reject the Reconsideration Application. The reasoning of the Director’s decision can be found in paragraphs 8 to 10 of an internal minute (M2) of the Immigration Department dated 23 March 2017, as follows:-
18.By a letter dated 27 March 2017, the Director informed the Sponsor (c/o D&A) that the Reconsideration Application was refused. In that letter, the Director stated, inter alia, as follows:-
19.It can be seen immediately that the first 2 paragraphs in the letter of 27 March 2018 quoted above are materially the same as paragraph 8 and 9 of M2. The last paragraph in the said letter is slightly different from paragraph 10 of M2. I shall be come back to this difference later in the judgment. (iii) The application for judicial review 20.On 13 March 2018, the Applicant made the present application for judicial review of the Director’s decision dated 27 March 2017. In the Form 86, the Applicant raises the following grounds of judicial review:-
21.On 14 March 2018, the court directed an oral hearing of (i) the application for an extension of time to apply for leave to apply for judicial review, and (ii) the application for leave to apply for judicial review. APPLICATION FOR EXTENSION OF TIME TO APPLY FOR LEAVE TO APPLY FOR JUDICIAL REVIEW 22.The applicable principles for the court’s exercise of its discretion to extend time to apply for leave to apply for judicial review are well settled. They were comprehensively reviewed by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393. To justify an order extending the time for making a leave application, the applicant must show “good reason” under Order 53, rule 4(1) of the Rules of the High Court. The following non-exhaustive factors are relevant in considering whether “good reason” exists:-
I shall consider the issues under (4) and (5) separately below. 23.In relation to the “length of the delay”, the Decision was made by the Director on 27 March 2017 while the leave application was made on 13 March 2018. There has plainly been a very substantial period of delay (of nearly 9 months) in making the application. In Re Thomas Lai [2014] 6 HKC 1, at paragraph 45(3), G Lam J quoted from the judgment of Litton NPJ in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C that “[w]here an application is made many months after the time limit …, the judge is entitled to refuse leave, however strong the complaint might otherwise be”. 24.In relation to the “explanation for the delay”, essentially, the Applicant’s explanation is that he made his legal aid application promptly on 29 March 2017 (2 days after the Decision), but the Legal Aid Certificate was only granted on 16 November 2017 and counsel was only assigned on 18 December 2017 (which the Applicant’s solicitors came to know on 22 December 2017). Thereafter, papers were sent to counsel on 8 January 2018, and a draft Form 86 was prepared by counsel on 7 February 2018. Some further time was spent in making an application for an anonymity order. The final form of the Form 86 and the Applicant’s affidavit in support were settled by counsel on 12 March 2018, and the proceedings were launched on 13 March 2018. I accept that the Applicant and his lawyers did not delay in pursuing the legal aid application. While the time taken to prepare the documents for the leave application and the application for an anonymity order could probably be shortened somewhat, I bear in mind the intervening public holidays and do not consider it right to criticize the lawyers for any undue delay in the circumstances. As I see it, the major part of the delay in the present case was caused by the time taken to process the legal aid application. It is, however, well established that the time taken to obtain legal aid is not by itself a good reason for extending the time for applying for judicial review (see, for example, Re Thomas Lai, supra, at paragraph 48(1)). 25.In relation to the issue of “prejudice”, unless and until the Applicant has shown good reason or explanation for the delay, the question of prejudice or detriment to good administration does not arise for consideration (see Magapower Garments Ltd v Director-General of Trade and Industry, HCAL 3199/2001 (4 March 2002), at paragraph 26 per Chu J (as she then was); ET Investment Ltd v Director of Health [2016] 1 HKLRD 1389, at paragraph 25 per Deputy High Court Judge Keith). As observed in Nisa Azizan v Director of Immigration, HCAL 203/2015 (15 April 2016), at paragraph 63, I consider that, generally speaking, unjustifiable delay in challenging immigration decisions made by the Director would be detrimental to the administration of effective immigration control in Hong Kong. To the same effect is the decision of Au J in Pagtama Victorina Alegre v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraph 238(3). MERITS OF THE SUBSTANTIVE APPLICATION 26.Ground 1 (error of law): Mr Deng’s argument, as I understand it, is that upon the true construction of Section 38AA, the Director is not precluded from granting an employment visa to a person against whom a removal order is in force (see paragraph 34 of Mr Deng’s Skeleton Submissions). Mr Deng further argues that under Section 13, the Director has power to authorize any person who has landed in Hong Kong unlawfully to remain in Hong Kong, and there are no express words in Section 19 to preclude the Director from rescinding a removal order (see paragraph 38 of his Skeleton Submissions). On the other hand, the Director submits that so long as a removal order is in force against the Applicant, he cannot be granted an employment visa. 27.Section 38AA (titled “Prohibition of taking employment and establishing business, etc”) states as follows:-
28.Section 37ZX, referred to in Section 38AA(1A), provides as follows:-
29.In my view, the Director was correct in law to refuse to grant an employment visa to the Applicant because of the existence of a removal order in force against him:-
30.There are two other mattes that I should mention in passing. First, it is common ground that, in exceptional circumstances, a person whose non-refoulement claim has not yet been substantiated may nevertheless be permitted by the Director to work in Hong Kong. Such circumstances may arise where a constitutional right not to be subjected to cruel, inhuman or degrading treatment is engaged. However, no such issue arises in the present case. It is therefore not necessary to consider this possibility in this judgment. 31.Second, I would leave open for future consideration the question of whether it would, in any event, be an improper exercise of the Director’s power to rescind a removal order solely for the purpose of permitting a non-refoulement claimant, or indeed any person who has no right to stay in Hong Kong, to work here. 32.Ground 2 (misapplication of policy): the Applicant’s complaint is that the Director only took into account the existence of the removal order against him, but not the other criteria under his General Employment Policy, when deciding whether to grant an employment visa to him. It seems to me that if, as a matter of law, the Director has no power to grant an employment visa to the Applicant so long as a removal order remains in force against him, the question of whether the Applicant can meet the criteria under the General Employment Policy does not arise for consideration. 33.Alternative Ground 2 (error of fact): in his skeleton submissions, at paragraphs 52 to 58, Mr Deng raises a new ground of judicial review based on an alleged error of fact, and the Applicant has belatedly issued a summons on 8 October 2018 seeking leave to amend the Form 86 to raise this ground. The substance of the complaint is that the Director mistakenly took the Reconsideration Application as being based on the previous job offered to the Applicant (as “African Arts and Culture Director”), instead of the new job offered to him (as “African Music & Dance Trainer”). 34.In considering this complaint, it may be noted that although the Applicant’s job title was changed from African Arts and Culture Director to African Music & Dance Trainer and there were some slight changes to his duties, both D&A and the Sponsor asked the Director to “re-consider” the previous Visa Application. As pointed out by Mr Suen, had the Applicant or the Sponsor considered the new job title or duties to be significant for the purpose of considering whether the Applicant ought to be given an employment visa, they would have submitted a fresh application for an employment visa to be granted to the Applicant, instead of merely asking the Director to reconsider the Visa Application. 35.Mr Suen further points out that, in paragraph 31(1) of the Form 86, the Applicant himself states that “there has not been any changes in the Applicant’s factual circumstances, nor any substantial development since the Applicant first made an employment visa application to the EVVS of the Immigration Department in April 2015. At all times, African Ventures has remained a small company with the same aims and endeavours; and the Applicant has remained in the same situation.” 36.More significantly, in the Sponsor’s letter dated 24 November 2016 to the Director, the Sponsor stated as follows:-
37.It seems to me to be clear that at the time of the Reconsideration Application, both the Applicant and the Sponsor did not attach any significance to the Applicant’s new job title or duties, and treated the two employment offers as being the same, or inter-changeable. In my view, this proposed ground of judicial review is purely opportunistic and has no merits. In any event, it is unsustainable for the same reason mentioned in paragraph 32 above. 38.Ground 3 (failure to act consistently): the Applicant’s complaint is, in substance, that his original application was considered and refused on its merits, whereas his subsequent application was denied on the ground that there was a removal order in force against him. I am unable to see how the fact that the Director made the two decisions based on two routes, each of which being legally valid, engages any public law principle against differential treatment or a failure to act in a consistent manner. 39.Ground 4 (legitimate expectation): the Applicant argues that the Director, having accepted that he would reconsider the Visa Application, conferred upon him a legitimate expectation that the application would be considered on its merits and assessed in accordance with the criteria under the General Employment Policy. I do not accept this argument, for two reasons. 40.First, I consider it to be clear that when the Director agreed to reconsider the Visa Application, he was saying no more than that he would consider the matter in accordance with the applicable law and policy. It cannot sensibly be understood to mean that the Director would ignore the applicable law (including Section 38AA) and consider the application by reference to policy only. Second, it is trite that an expectation, to be legitimate, must be lawful and reasonable. It is neither lawful, nor reasonable, for the Director to consider the Applicant’s employment visa application without reference to the applicable law. 41.In all, I do not consider that any of the proposed grounds of judicial review is reasonably arguable, or has a realistic prospect of success. I also do not consider that they raise any questions of general public important which will likely have to be determined by the courts in any event. NO EXTENSION OF TIME TO APPLY FOR LEAVE TO APPLY FOR JUDICIAL REVIEW 42.In summary, I am of the view that:-
43.Overall, there is no good reason to grant an extension of time to the Applicant to apply for leave to apply for judicial review in the present case. 44.I should add that, even if I had come to different conclusions in respect of the matters mentioned in paragraph 42(4) and (5) above, I would still have declined to exercise my discretion to grant an extension of time in the present case because (i) of the substantial delay, and/or (ii) as disclosed in the recent affirmation Cho Elvis Che (the new owner of the Sponsor) dated 27 September 2018, the Applicant has been offered a new employment contract on 23 August 2018. It seems clear that the Applicant’s previous letters of employment dated 25 April 2015 and 1 August 2016 respectively with the Sponsor have already lapsed or been overtaken by events. There is no practical purpose in quashing the Decision and remitting the Reconsideration Application to the Director for fresh consideration. In other words, the matter has become academic, and I see no good reason to entertain the application for leave to apply for judicial review. 45.Finally, I should briefly deal with Mr Deng’s complaint that the Director has failed to discharge the duty of candour, in that he failed to provide a copy of his letter to the Legal Aid Department dated 29 May 2017 to the Applicant until 28 September 2018. In my view, this complaint is unjustified. First, the Applicant was fully aware of the existence of this letter at the time when he made the leave application. Indeed, the part of the letter which Mr Deng considers to be significant and which he relies upon was quoted in paragraph 38 of the Form 86 (which I am told was extracted from a copy of the Section 9 Opinion in the possession of the Applicant). Second, as stated by Ma CJHC (as he then was) in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77, at paragraph 14(1), “[t]he duty arises once leave has been obtained by an applicant to commence judicial review proceedings”. The Applicant has not, however, obtained leave to apply for judicial review at any time. DISPOSITION 46.I made the following orders:-
47.I further make an order that the Director shall have the costs of resisting the applications for (i) an extension of time to apply for leave to apply for judicial review, and (ii) leave to apply for judicial review, notwithstanding the usual order that there be no order as to costs in an unsuccessful leave application, in view of the following matters:-
48.All the above costs are to be taxed if not agreed. The Applicant’s own costs are to be taxed in accordance with legal aid regulations.
Mr Earl Deng, instructed by Daly & Associates, assigned by Director of Legal Aid, for the Applicant Mr Suen Sze-yick and Ms Karen Ngai, instructed by Department of Justice, for the Respondent [1] This being the Immigration Department’s file reference number for the Applicant’s previous Visa Application. |
Cases cited in this judgment
Further hearings and rulings under HCAL 413/2018