Kc v. The Director of Immigration

HCAL 413/2018

[2019] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 413 OF 2018

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Before: Hon Chow J in Chambers

Date of Decision: 15 January 2019

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DECISION

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1.On 16 October 2018, the court handed down its judgment dismissing the Applicant’s applications for (i) leave to amend the Form 86, (ii) an extension of time to apply for leave to apply for judicial review, and (iii) leave to apply for judicial review. On 11 December 2018, the Applicant issued a summons seeking leave to appeal against the judgment. This is the court’s decision on the Applicant’s summons after consideration of the Applicant’s Statement of Reasons for Leave to Appeal dated 11 December 2018 and his draft Notice of Appeal, the Putative Respondent’s written submissions dated 8 January 2019, and the Applicant’s Reply dated 11 January 2019.

2.The principles for determining whether to grant leave to appeal against a decision on extension of time in the judicial review context are well settled.  Under Section 14AA(4) of the High Court Ordinance, Cap 4A, leave to appeal shall not be granted unless the court is satisfied that – (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal shall be heard.  In Kwok Cheuk Kin v Leung Chun Ying and MI v Permanent Secretary for Security (heard together) [2018] HKCA 419, Lam VP (giving the judgment of the Court of Appeal) stated at paragraph 47 as follows:

“… a decision on extension of time, involving a multi-faceted assessment is an exercise of discretion. This Court will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong”.

3.Under the heading “Extension of Time” in the Statement of Reasons for Leave to Appeal (paragraphs 3 to 6):

(1)  The Applicant argues the court was clearly wrong and/or failed to take into sufficient consideration its own findings that no fault was attributed to the Applicant’s legal advisors and the Applicant himself, and the fault for the delay rested solely on the Director of Legal Aid (paragraph 4).  This is an incorrect reading of the court’s judgment.  The court did not find that the delay was the “fault” of the Director of Legal Aid (see paragraph 24 of the judgment).  Further, it is well established that the time taken to obtain legal aid is not by itself a good reason for extending time.

(2)  The Applicant next complains that the court did not consider whether the matter was academic in the Chit Fai sense.  This complaint is completely besides the point.  The court did not dismiss the application for extension of time because it considered the application to be academic.  The court dismissed the application because (inter alia) it considered that the proposed grounds of judicial review were not reasonably arguable, and there was no good reason to grant an extension of time (see paragraphs 42 and 43 of the judgment).  At paragraph 44 of the judgment, the court stated that even if it had come to the conclusion that the proposed grounds of judicial review were reasonably arguable and the application raised some questions of general public importance, it would still have declined to grant an extension of time to the Applicant to apply for leave to apply for judicial review because of substantial delay and because, on the facts pertaining to the Applicant’s case, the application had become academic.  If there are some questions of general public importance to be determined as contended by the Applicant, those questions can be determined as and when a proper case comes before the court. There is no good reason why they should be determined in the present application.

(3)  Lastly, it is said that the application raises some questions of statutory construction and policy considerations of general and public importance.  The court dealt with the Applicant’s arguments based on error of law (paragraphs 26 to 31 of judgment) and misapplication of policy (paragraph 32 of the judgment), and did not consider them to be reasonably arguable.  Neither did the court consider that the application raised any question of general public importance which would likely have to be determined by the courts in any event (paragraph 42(5) of the judgment). The court is not persuaded by anything that has been said on behalf of the Applicant to come to a different view of the matter.

4.Under the heading “Substance of Grounds” in the Statement of Reasons for Leave to Appeal (paragraphs 7 to 10):

(1)  In respect of Grounds 1, 2, 3 and 4 of the draft Notice of Appeal, the Applicant is essentially seeking to re-argue the proper construction and effect of Sections 37ZX and 38 of the Immigration Ordinance, Cap 115.  The Applicant’s argument was considered and rejected in paragraphs 26 to 31 of the judgment.  The court remains of the view that the Applicant’s contention is not reasonably arguable and does not have a realistic prospect of success.

(2)  In respect of Ground 2B, the Applicant reiterates the argument that the Director made a mistake of fact.  This complaint was dealt with and rejected by the court in paragraphs 33 to 37 of the judgment.  Further, the court considered that even if the Director made a mistake of fact as alleged, he was bound to reach the same conclusion as a matter of law because he had no power to grant an employment visa to the Applicant so long as a removal order remained in force against him (subject to the Director’s discretion to permit a person whose non-refoulement claim had not yet been substantiated to work Hong Kong in exceptional circumstances referred to in paragraph 30 of the judgment). Again, the court remains of the view that the Applicant’s contention is not reasonably arguable and does not have a realistic prospect of success.

(3)  Lastly, the Applicant refers to the court’s obiter remarks concerning the duty of candour, namely, that the duty arises once leave to apply for judicial review has been obtained (see paragraph 45 of the judgment).  Since they are obiter remarks, it would plainly not be correct to grant leave to appeal in order that the Court of Appeal may express a view on that matter.  In any event, the Court of Appeal has, in the recent decision of Hong Kong Telecommunications (HKT) Limited v Secretary for Commerce and Economic Development and Another [2019] HKCA 44, at paragraph 38, affirmed the principle that the duty of candour arises upon the granting of leave to apply for judicial review.

5.In all, the Applicant has failed to show that the proposed appeal has a reasonable prospect of success, or there is any other reason in the interests of justice why it shall be heard.  Accordingly, the application for leave to appeal is dismissed, with costs to the Director, which the court summarily assesses in the sum of HK$50,000.

Mr Earl Deng, instructed by Daly & Associates, for the Applicant

Mr Suen Sze-yick, SGC and Ms Karen Ngai, GC of Department of Justice, for the Putative Respondent Judge of the Court of First Instance