Dewi Diana v. Director of Immigration
Read the full judgment text of HCAL 2056/2018 on BabelCite. This High Court CFI judgment was delivered on 10 May 2019.
1. In her Form 86 dated 27 September 2018, the Applicant seeks to challenge the decision of the Director of Immigration (“the Director”) made on 23 March 2018 and 10 July 2018 (“the March 2018 Decision” and “the July 2018 Decision” respectively) refusing to correct her “personal data in Hong Kong Special Administrative Region”. As will be seen below, the crux of the Applicant’s complaint relates to the Director’s refusal to change his records relating to her date of birth from 26 April 1985 to
Cites 8 cases
|
HCAL 2056/2018 [2019] HKCFI 1204 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2056 OF 2018 ________________________
________________ Before: Hon Chow J in Court Date of Hearing: 29 March 2019 Date of Decision: 10 May 2019 ___________________ D E C I S I O N ___________________ INTRODUCTION 1.In her Form 86 dated 27 September 2018, the Applicant seeks to challenge the decision of the Director of Immigration (“the Director”) made on 23 March 2018 and 10 July 2018 (“the March 2018 Decision” and “the July 2018 Decision” respectively) refusing to correct her “personal data in Hong Kong Special Administrative Region”. As will be seen below, the crux of the Applicant’s complaint relates to the Director’s refusal to change his records relating to her date of birth from 26 April 1985 to 26 April 1990. 2.On 21 February 2019, the court directed that the application for leave to apply for judicial review shall be dealt with at an inter-partes oral hearing on 29 March 2019. 3.At the hearing on 29 March 2019, the Applicant appeared in person, and the Director was represented by Mr Gilbert Mok, Government Counsel. At the conclusion of the hearing, the court reserved its decision. For reasons which I shall explain in this decision, the application for leave to apply for judicial review is dismissed. BACKGROUND FACTS (i) The Applicant’s previous applications for FDH visa / extension of FDH visa and Hong Kong Identity Card 4.The Applicant is an Indonesian national. 5.On 16 March 2007, the Immigration Department received an application by the Applicant dated 12 March 2007 for permission to enter Hong Kong for employment as a foreign domestic helper (“FDH”). In that application, the Applicant stated that her date of birth was 26 April 1985. One of the documents that she provided in support of the application was a copy of her Indonesian Passport No AK 119019 issued on 5 March 2007, which also stated that the Applicant’s date of birth was 26 April 1985. 6.On 19 April 2007, the Director granted to the Applicant an FDH visa valid for a stay of 24 months in Hong Kong. On 9 May 2007, the Applicant arrived in Hong Kong and commenced to work as an FDH here. 7.On 10 May 2007, the Applicant applied to the Commissioner of Registration for a Hong Kong identity card. In the application form, the Applicant likewise stated that her date of birth was 26 April 1985. A copy of the aforesaid passport was submitted in support of the application. A Hong Kong identity card, No W907726(2), was in due course issued to the Applicant. On the identity card, the Applicant’s date of birth was stated to be 26 April 1985. 8.Between April 2009 and January 2015, the Applicant submitted to the Director no less than 7 applications for visa/extension of stay in relation to her changes of employment as an FDH in Hong Kong, or for further stay in Hong Kong. In all those applications, the Applicant stated consistently that her date of birth was 26 April 1985:
9.The Applicant’s Indonesian Passports Nos AS 261611 and AS 147007 used by her in support of her various applications mentioned above were issued on 11 January 2010 and 19 September 2012 respectively. They both stated that the Applicant’s date of birth was 26 April 1985. 10.In short, between March 2007 and January 2015, the Applicant consistently represented to the Director of Immigration and Commissioner of Registration that she was born on 26 April 1985. (ii) The Applicant’s overstaying in Hong Kong and repatriation to Indonesia 11.Between 2007 and 2015, the Applicant worked as an FDH for 5 employers in Hong Kong. After her last employment was terminated on 15 July 2015, she did not depart from Hong Kong within 14 days as required by her condition of stay, but overstayed in Hong Kong for over 1 year. On 12 July 2016, the Applicant surrendered herself to the General Investigation Section of the Immigration Department. 12.On 26 July 2016, the Applicant was convicted of the offence of breach of condition of stay by overstaying in Hong Kong, and was sentenced to 2 weeks’ imprisonment suspended for 3 years. On 27 July 2016, the Applicant was voluntarily repatriated to Indonesia. (iii) The Applicant’s first data correction request in November 2017 13.On 9 November 2017, the Immigration Department received a letter from the Applicant dated 7 November 2017. In that letter, the Applicant stated as follows:
14.Enclosed with the Applicant’s said letter were, inter alia:
15.By a letter dated 4 December 2017, the Registration of Persons Office invited the Applicant to attend an interview on 18 December 2017 regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card”. She was asked to bring along the originals and photocopies of various documents to the interview, and was told that if she was unable to attend the interview or verify the original documents, no further action would be taken in respect of her application after two weeks’ time. 16.On 8 December 2017, one Mr Butt of “Shafin International Co” (“Shafin”) on behalf of the Applicant sent to the Immigration Department by email some further documents written in the Indonesian language accompanied by their English translation as certified by “Hong Kong Legal Translation” in support of her data correction request, including:
17.However, the Applicant did not turn up for the interview regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card” on 18 December 2017. On 2 January 2018, the Commissioner of Registration decided that no further action would be taken in respect of that application. (iv) The Applicant’s second data correction request in February 2018 leading to the March 2018 Decision 18.On 15 December 2017, the Immigration Department received a data access request from the Applicant made under Section 18(1) of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”) requesting for access to “[a]ll data held in [the Director’s] record” relating to the Applicant. The Director responded to the Applicant’s data access request substantively on 10 January 2018, and provided copies of the relevant documents to the Applicant on 8 February 2018. 19.By a letter to the Director (mistakenly) dated 9 February 2017 which was received by the Immigration Department on 14 February 2018, the Applicant stated that she had duly retrieved all her personal data from the Immigration Department which she had applied for under the PDPO, and requested the Director to “amend and correct [her] date of birth as 26-04-1990 instead of 26-04-1985 in all [his] records”. 20.By a letter dated 5 March 2018, the Immigration Department invited the Applicant or her representative to attend an interview on 12 March 2018 and to bring along the originals and photocopies of various documents to the interview. The Applicant was asked, in particular, to produce a “Certificate or document issued by Consulate General of Indonesia in Hong Kong or Indonesian Passport Authority certifying that (i) the date of birth on [her] current Indonesian passport was correct, (ii) the date of birth on [her] old Indonesian passport(s) was inaccurate and process leading to the issue of passport(s) with the inaccurate date of birth”. The Applicant was also asked to give a written explanation on why she reported a different date of birth previously and when she became aware of the discrepancy in her date of birth. 21.The interview was subsequently re-scheduled to 16 March 2018 upon the request of the Applicant’s representative. At the interview, the Applicant’s representative submitted to the Director a letter dated 12 March 2018 signed by the Applicant together with various documents, including her Indonesian Passport No B 7772017 issued on 30 August 2017, the documents mentioned in paragraph 16 above as well as an “Excerpt of Birth Certificate” dated 17 July 2017 stating that the Applicant was born on 26 April 1990. In the letter, the Applicant stated, inter alia, as follows –
22.The Applicant’s application was considered by a number of immigration officers at different levels, who came to the conclusion that there was insufficient evidence to show that the Applicant’s date of birth of 26 April 1985 as shown in the Director’s records was inaccurate. In an internal minute dated 17 March 2018, the following was stated:
23.In a further internal minute dated 23 March 2018, the following was stated:
24.In summary, the immigration officers took into account, amongst other matters, the fact that the Applicant was not able to provide any supporting documents from the Consulate General of Indonesia in Hong Kong or the Indonesian Passport Authority, the fact that she previously used 26 April 1985 as her date of birth (as stated in her old passports Nos AK 119019 and AS 147007) in various immigration applications, and the fact that those passports were issued by competent authorities. The immigration officers considered that in the absence of any official confirmation letter or certificate from the passport issuing authority to affirm that the date of 26 April 1990 was the correct date of birth of the Applicant and the date of 26 April 1985 was incorrect, they were unable to establish the Applicant’s true date of birth. On 23 March 2018, the Principal Immigration Officer decided that the Applicant’s data correction request should be refused. 25.By a letter dated 23 March 2018, the Immigration Department informed the Applicant that her data correction request to change her date of birth from 26 April 1985 to 26 April 1990 was refused (ie the March 2018 Decision), on the ground that:
(v) The Applicant’s application for reconsideration in May 2018 leading to the July 2018 Decision 26.By a letter dated 25 May 2018 which was received by the Immigration Department on 31 May 2018, the Applicant requested the Director to reconsider her application to amend or correct the date of her birth in the Director’s records. Copies of the following documents, amongst others, were enclosed with the Applicant’s letter:
27.By a letter dated 21 June 2018, the Immigration Department invited the Applicant or her representative to attend an interview on 26 June 2018 and to bring along various documents to the interview in support of the Applicant’s application for reconsideration of her data correction request. 28.Upon the request of the Applicant’s representative, the interview was re-scheduled and took place on 4 July 2018. The Applicant’s representative attended the interview and submitted the documents mentioned in paragraph 26 above to the Immigration Department. 29.The application for reconsideration was considered by a number of immigration officers at different levels, who came to the conclusion that the Applicant had not provided sufficient evidence to show that the date of birth of 26 April 1985 was inaccurate, and hence the previous refusal decision should be upheld. In an internal minute dated 4 July 2018, the following was stated:
30.In another internal minute dated 4 July 2018, the following was stated:
31.On 9 July 2018, the Principal Immigration Officer decided that the refusal decision should be maintained. By a letter dated 10 July 2018, the Immigration Department informed the Applicant accordingly (ie the July 2018 Decision), on the ground that:
GROUNDS OF APPLICATION FOR JUDICIAL REVIEW 32.On 27 September 2018, the Applicant made the present application for leave to apply for judicial review of the March 2018 Decision and July 2018 Decision. In the Form 86, the Applicant sought, inter alia, the following relief: (i) an order of mandamus to bring up and quash the March 2018 Decision and July 2018 Decision, and (ii) further or alternatively, an order that the matter be remitted to the Director to reconsider her data correction request. The Applicant did not, however, set out the grounds on which relief was sought as required by Order 53, rule 3(2)(a)(iii) of the Rules of the High Court, Cap 4A. 33.In the Applicant’s affirmation filed on 27 September 2018, the following grounds in support of her application for leave to apply for judicial review are mentioned or relied upon:
THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW WAS MADE OUT OF TIME 34.The first decision of the Director under challenge was made on 23 March 2018. By the time that the Form 86 was filed on 27 September 2018, the statutory period of 3 months to apply for leave to apply for judicial review of that decision had already expired. 35.In respect of the second decision of the Director under challenge, although it was made on 10 July 2018 and therefore less than 3 months prior to the date of the Form 86, it was a decision confirming the March 2018 Decision upon the Applicant’s application for reconsideration of the earlier decision. For the purpose of computing the time for making an application for leave to apply for judicial review, it is important to appreciate that time starts to run from the date when grounds for the application first arose, not from the date of the decision sought to be challenged. An applicant cannot get around or avoid this time limit by the device of asking the decision-maker to “reconsider” his decision, whether by putting forward different arguments or providing additional information. I reviewed the relevant authorities, including Lo Siu Lan v Hong Kong Housing Authority, CACV 378/2004 (17 December 2004), at paragraphs 39 and 40 per Stock VP, Super Lion Enterprises Ltd v Commissioner of Rating and Valuation, HCAL 71/2005 (6 October 2006), at paragraph 218 per Hartmann J (as he then was), Martin Tao Ming Lee v Secretary for Civil Service, HCAL 82/2010 (8 August 2011), at paragraph 8 per Saunders J, and E T Investment Limited v Director of Health, HCAL 13/2015 (3 February 2016), at paragraphs 17 and 18 per Deputy High Court Judge Keith, in Nisa Azizan v Director of Immigration, HCAL 203/2015 (15 April 2016), at paragraphs 28 to 34, and Kazuo Okada v The Registrar of Companies [2019] 1 HKLRD 483, at paragraphs 53 to 55, and do not propose to repeat the analysis here. 36.The Applicant’s application to the Director for reconsideration of the March 2018 Decision was not based on any new grounds. The most that could be said is that the Applicant produced some more documents in support of her claim that her true date of birth was 26 April 1990. In my view, it is clear that the date when grounds for the application to challenge the July 2018 Decision first arose was on 23 March 2018. It follows that the application for leave to apply for judicial review of the July 2018 Decision was made out of time. 37.The Applicant has not applied for an extension of time to apply for leave to apply for judicial review, possibly because she is not aware of the need to do so. Nevertheless, even if such application has been made, for reasons which I shall explain below, the intended application for judicial review has no reasonable prospect of success. That would be a sufficient reason not to extend time for the Applicant to make the application. FAILURE TO EXHAUST ALTERNATIVE REMEDIES 38.It is well established that judicial review is a remedy of last resort. Save in exceptional circumstances, the court will not normally permit an applicant to challenge a decision by way of judicial review where there is an alternative remedy open to the applicant (see Lee Chick Choi v The Director of Legal Aid [2019] HKCA 275, at paragraphs 16 to 18). 39.The Applicant’s request made in February 2018 to change her date of birth from 26 April 1985 to 26 April 1990 in the records kept by the Director is a data correction request under Section 22(1) of the PDPO, which states as follows:
40.By Section 23(1)(a) of the PDPO, a data user (ie the Director in the present case) who is satisfied that personal data to which a data correction request relates is inaccurate shall, not later than 40 days after receiving the request, make the necessary correction to the data. 41.On the other hand, by Section 24(3) of the PDPO, a data user may refuse to comply with section 23(1) in relation to a data correction request if:
42.A data subject whose data correction request has been refused by a data user may, if he/she is not satisfied with the decision of the data user, lodge a complaint to the Privacy Commissioner for Personal Data (“the Commissioner”) pursuant to Section 37 of the PDPO. Thereafter, the Commissioner may carry out an investigation and, if he is of the opinion that the data user is contravening or has contravened a requirement under the PDPO, serve an enforcement notice on the data user directing the data user to remedy the contravention under Section 50(1) of the PDPO. Further, under Section 47(4) of the PDPO, the complainant may appeal to the Administrative Appeals Board against a decision of the Commissioner to the effect that he has decided not to serve an enforcement notice on the relevant data user in consequence of the investigation concerned. 43.It is clear that the Applicant has alternative, statutory, remedies reasonably open to her to challenge the March 2018 and July 2018 Decisions made by the Director, but has failed to avail herself of those alternative remedies. There is, on the facts of the present case, no good reason way the Applicant should be permitted to apply for judicial review of the March 2018 and July 2018 Decisions instead of pursuing the alternative remedies. On this ground alone, I would dismiss the present application for leave to apply for judicial review. THE INTENDED APPLICATION FOR JUDICIAL REVIEW IS NOT REASONABLY ARGUABLE 44.At the heart of the Applicant’s complaint is the Director’s refusal to change the date of birth of the Applicant in the Director’s records in accordance with the information contained in the recent documents dated between October 2016 and May 2018 produced by the Applicant in support of her claim that her true date of birth was 26 April 1990. On the other hand, there is also clear conflicting documentary evidence before the Director which suggests that the Applicant’s date of birth was 26 April 1985, including three previous Indonesian passports of the Applicant, and various immigration applications signed by the Applicant between 2007 and 2015. Further, notwithstanding the Director’s requests, the Applicant has failed to produce any document from the Indonesian Consulate General or passport issuing authority to substantiate that the date of birth appearing in her previous passports is inaccurate and that appearing in her latest passport is accurate, or explain how the mistake came to be made in the first place. The Applicant’s own explanation of how she became aware of the discrepancy in her date of birth (see paragraph 21 above) is bare and devoid of particulars, and hardly convincing. Anyhow, it needs to be emphasized that in an application for judicial review, it is not the court’s function to act as an appeal court from a decision made by the Director, or to substitute its own view for that of the Director. The court’s role is confined to examining whether the decision made by the Director is unlawful or irrational, or made in a manner which is procedurally unfair to the Applicant. 45.In the present case, the Director has given the Applicant fair opportunities to present her case. The relevant internal minutes of the Immigration Department demonstrate that the immigration officers have carefully considered the Applicant’s submissions and documents before reaching the conclusion that there is insufficient evidence to prove that the Applicant’s true date of birth was 26 April 1990. It is a matter for the Director, not the court, to decide how much weight ought to be given to the conflicting documents and evidence as regards the Applicant’s true date of birth. The question is not whether the court would have reached the same conclusion on the existing materials, but whether the conclusion of the Director is so unreasonable that no reasonable person, properly directed on the relevant law and facts before him, could reach such conclusion. The Director is, in my view, entitled to reach the conclusion that there is insufficient evidence to prove that the Applicant’s true date of birth was 26 April 1990. His decision is not unlawful or irrational, and has not been reached in a procedurally unfair manner. None of the proposed grounds of judicial review mentioned in paragraph 33 above is, in my view, reasonably arguable or has a realistic prospect of success. DISPOSITION 46.For the foregoing reasons, the application for leave to apply for judicial review is dismissed. 47.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and shall not be repeated here. I consider that the Director should be entitled to be paid his costs in these proceedings, because:
48.I therefore make an order that the Applicant shall pay the Director’s costs of these proceedings, to be taxed if not agreed.
The Applicant, acting in person Mr Gilbert Mok, Government Counsel, of the Department of Justice, for the Putative Respondent [1] The Applicant probably intended to put down “26-04-1990” instead [2] Being a reference to the Applicant [3] Being a reference to 26 April 1985 [4] Being a reference to 26 April 1990 [5] Data correction request [6] NIK stands for Nomor Induk Kependudukan, which means identity number [7] KTP stands for Kartu Tanda Penduduk, which literally means resident identity card [8] 66 (-40 for female) = 26, so 660485 corresponds with 26-04-1985 (ie DOB1) | |||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment