Lau Fong v. The Director of Immigration

CACV000287B/2000

CACV 287/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2000

(ON APPEAL FROM HCAL 128 OF 1999)

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Coram: Hon Rogers VP, Woo JA and Sakhrani J in Court

Date of Hearing: 21 March 2003

Date of Judgment: 21 March 2003

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J U D G M E N T

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Hon Rogers VP (giving the Judgment of the Court):

1.This is an application for leave to appeal to the Court of Final Appeal. The application is made under the provisions of section 22(1)(b) of the Court of Final Appeal Ordinance. It is therefore incumbent on the respondent, on whose behalf this application for leave to appeal is made, to demonstrate that there is a matter of great general or public importance.

2.The matter before this court was an appeal on a judicial review application. The applicant for judicial review had been refused entry to Hong Kong on the basis of a Refusal Notice which stated that the refusal of permission to land had been made under section 11 of the Immigration Ordinance. It was the respondent's submission that the applicant had not been entitled to be treated as a non-permanent resident of Hong Kong because that status had been accorded to her based on what was said to have been a false marriage certificate and a fraudulently obtained one-way travel permit.

3.Be that as it may, the refusal to land was based on the premise that the permission to remain in Hong Kong had expired. The appeal to this court had been delayed pending the decision of the Court of Final Appeal in the case of Gurung Kesh Bahadur v Director of Immigration [2002] 2 HKLRD 775. That decision demonstrated that the grounds upon which the refusal had been issued were invalid.

4.As this court has pointed out in its judgments, there would be nothing to prevent the Director of Immigration from now exercising the powers, whether under section 19 of the Immigration Ordinance or otherwise, if it was seen fit. The basis of this court's decision was that the respondent had used the wrong provisions and adopted the wrong procedure in seeking to rectify a situation which was considered to have been wrong. The submissions that this case involves a matter of immigration is therefore not to the point. The respondent has an effective and a simple course which it can follow and there is no need for the respondent to rely on the Refusal Notice which this court, following the decision of the Court of Final Appeal, has held to have been based on invalid grounds.

5.Usually, if there is a question as to whether an issue involves a matter of great general or public importance, that matter should be appropriate for determination by the Court of Final Appeal. In the present circumstances, this court does not consider that there is a matter of great general or public importance and we would not give leave on that ground. We do not consider that this is a case where leave should be given on the basis of the "or otherwise" provision either.

6.In those circumstances, this application is refused.

Representation:

Mr Hectar Pun, instructed by Messrs Patrick Wu & Co., for the Applicant/Respondent

Mr William Marshall SC and Mr Caspar Chu GC, instructed by Department of Justice, for the Respondent/Applicant

Remarks:

Leave to appeal by the Respondent to Court of Final Appeal. Leave granted. Please refer to the Determination of FAMV000014/2003.