Shahzadi Aneela v. Director of Immigration and Another

HCAL 1585/2020

[2021] HKCFI 1344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1585 OF 2020

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BETWEEN

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D E C I S I O N

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1.This is an application for leave to apply for judicial review of:

(1)  the decisions of the “Immigration Department” dated 20 July 2018, 19 December 2018 and 7 January 2020 respectively referred to in §§8, 10 and 11 below; and

(2)  the Notice of Determination of an Appeal after a Hearing handed down by the Registration of Persons Tribunal (“the ROPT”) on 17 July 2020 referred to in §13 below.

BASIC FACTS

2.The Applicant is a Pakistani national.  On 28 September 2010, the Applicant’s application for entry for residence as a dependant of her stepfather in Hong Kong was received by the Immigration Department (“ImmD”).  On 11 April 2011, the Applicant was informed that her dependant visa application was approved.  On 4 July 2011, the Applicant entered Hong Kong and was permitted to remain in Hong Kong as her stepfather’s dependant with a limit of stay until 4 July 2012.  On 17 April 2012, the Applicant’s application for extension of stay was approved with limit of stay extended to 4 July 2015.

3.On 30 March 2015, the Applicant applied to the Director for extension of stay on her own merits without sponsorship.  On 6 July 2015, the Applicant applied for change of status on the basis of her employment as manager by a company called Keita (HK) Co Limited.  There followed a long period of correspondence between ImmD and the Applicant’s legal representatives concerning the Applicant’s applications for extension of stay and change of status.  Eventually, by a letter dated 1 April 2016, the Director informed the Applicant’s legal representatives, C M Chow & Co (“CMC”), that the Applicant’s applications were refused.  The following was stated in the last paragraph of that letter:

“As your client’s limit of stay already expired on 4 July 2015, your client is required to leave the HKSAR on or before 15 April 2016. Staying in the HKSAR beyond the limit of stay is a breach of condition of stay, which is an offence under section 41 of the Immigration Ordinance, Chapter 115. Any person who has breached his/her conditions of stay in the HKSAR is liable to prosecution and removal under provisions of the same Ordinance.”

4.On 15 April 2016, CMC requested the Director for reconsideration of the Applicant’s applications for extension of stay and change of status.  By a letter dated 16 April 2016 to CMC, the Director requested the Applicant to provide any additional documents or information in support of the request on or before 30 April 2016.  The following was stated in the last paragraph of the Director’s letter:

“For the avoidance of doubt, you are reminded that this letter is not to be construed as approval of your client’s application for extension of stay nor any permission to remain given by the Director. Your client’s limit of stay already expired on 4 July 2015 and has not been extended. No permission to remain in the HKSAR since the expiry of your client’s limit of stay has been given.”

5.There again followed a long period of correspondence between ImmD and CMC.  In many of the letters from ImmD, the Applicant was reminded that the letters from ImmD were not to be construed as approval of the Applicant’s application for extension of stay or any permission to remain in Hong Kong by the Director, the Applicant’s limit of stay had already expired on 4 July 2015 and had not been extended, and no permission to remain in the HKSAR since the expiry of the Applicant’s limit of had been given.

6.On 3 February 2017, the Director informed CMC that the Applicant’s request for reconsideration of her applications for extension of stay and change of status was refused.  The following was stated at the end of the Director’s letter:

“Please inform your client to attend this office at … and present this letter for departure arrangement. Your client is required to leave the HKSAR on or before 17 February 2017.

As your client’s limit of stay already expired on 4 July 2015, staying in the HKSAR beyond limit of stay is a breach of condition of stay, which is an offence under section 41 of the Immigration Ordinance, Cap 115.  Any person who has breached his/her condition of stay in Hong Kong is liable to prosecution and removal under provisions of the same Ordinance.”

7.On 17 February 2017, ImmD received the Applicant’s application for extension of stay as a dependant of her stepfather.  Eventually, on 1 November 2017, the Director approved the Applicant’s application.  In the letter to the Applicant conveying his decision, the Director stated as follows:

“I refer to your application for a dependant visa in the Hong Kong Special Administrative Region (HKSAR) submitted on 17 February 2017. After consideration of your application, the Director has now agreed to grant you a fresh permission to remain in the HKSAR from 1 November 2017 to 1 November 2018. The permission to stay now granted does not cure any of your previous contravention of conditions of stay in the HKSAR.

During the period from 5 July 2015 to 31 October 2017, you remained in the HKSAR without the Director’s permission as a result of which the continuity of your ordinary residence in the HKSAR, if any, has been broken.” [emphasis original]

8.On 11 July 2018, the Director received the Applicant’s application for verification of eligibility for permanent identity card (“the VEPIC Application”) from her legal representatives, Mohnani & Associates (“M&A”).  In the VEPIC Application, the Applicant claimed to be a Hong Kong permanent resident by virtue of paragraph 2(d) of Schedule 1 to the Immigration Ordinance, Cap 115 (“the Ordinance”). The VEPIC Application was refused by the Director on 20 July 2018 on the ground that the Director was not satisfied that the Applicant had ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of the application.

9.On 29 October 2018, the Director rejected M&A’s request made on 17 August 2018 for reconsideration of the VEPIC Application.

10.On 17 December 2018, M&A informed ImmD that the Applicant wished to apply for a “formal determination” for the issue of a Hong Kong Permanent Identity Card (“HKPIC”).  On 19 December 2018, ImmD informed M&A that if the Applicant wished to apply for a formal determination, she should submit an application for registration of a HKPIC at the Registration of Persons - Hong Kong Office.

11.On 7 January 2019, the Applicant applied for a HKPIC (“the HKPIC Application”).  That application was refused by the Commissioner of Registration (“the Commissioner”) on the same day on that ground that there was insufficient evidence showing that the Applicant had the right of abode in Hong Kong.

12.On 13 February 2019, the Applicant lodged an appeal (“the Appeal”) to the ROPT against the Commissioner’s refusal of the HKPIC Application.

13.On 17 July 2020, the ROPT dismissed the Appeal after a hearing.

APPLICATION FOR JUDICIAL REVIEW

14.On 30 July 2020, the Applicant made the present application for leave to apply for judicial review by a Form 86 dated 28 July 2020.  Three grounds of judicial review are raised by the Applicant:

(1)  The Director in arriving at his decisions dated 20 July 2018, 19 December 2018 and 7 January 2019[1] and the ROPT in arriving at its decision dated 17 July 2020 failed to take into account, properly or at all, the vital fact that the correspondence from ImmD to the Applicant or her legal representatives failed to use the word “tolerance” or “toleration”. Hence, those letters could not be regarded as “tolerance letters”.

(2)  The Director in arriving at his decisions dated 20 July 2018, 19 December 2018 and 7 January 2019 and the ROPT in arriving at its decision dated 17 July 2020 failed to take into account, properly or at all, the vital fact that ImmD had taken no action or steps to remove the Applicant from Hong Kong, thus allowing the Applicant to remain in Hong Kong for the period between 28 January 2016 and 1 November 2018 which was the date when a fresh dependant visa was granted to the Applicant.

(3)  The Director’s decisions dated 20 July 2018, 19 December 2018 and 7 January 2019 and the ROPT’s decision dated 17 July 2020 are tainted with procedural unfairness or Wednesbury unreasonableness as both the Director and the ROPT failed or omitted to take into account relevant matters, or failed to consider properly or at all that ImmD had, by its action or inaction, acquiesced in the Applicant’s stay in Hong Kong between 28 January 2016 and 1 November 2018.

DISCUSSION

15.The correctness of the Director’s decision to reject the VEPIC Application on 20 July 2019, the Commissioner’s decision to refuse the HKPIC Application on 7 January 2019, and the ROPT’s determination to dismiss the Appeal on 17 July 2020, all hinge on whether the Applicant had ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of the VEPIC Application.  Assuming in the Applicant’s favour that she was ordinarily resident in Hong Kong continuously during the period from 4 July 2011 to 4 July 2015 (a period of 4 years), her ordinary residence in Hong Kong was broken upon the expiry of her limit of stay on 4 July 2015.  During the period from 5 July 2015 to 1 November 2017 when the Applicant was granted fresh permission to remain in Hong Kong, she had no right or permission to remain in Hong Kong, and her physical presence in Hong Kong in breach of condition of stay could not be regarded as ordinary residence in Hong Kong (see s 2(4)(a)(ii) of the Ordinance).  It follows that the Applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of the VEPIC Application.  The said decisions made by the Director, Commissioner and ROPT are correct as a matter of law, and inevitable.

16.The fact that the word “tolerance” or “toleration” was not used in ImmD’s letters to the Applicant or her legal representatives cannot change the fact that the Applicant had no right or permission to remain in Hong Kong during the period from during the period from 5 July 2011 to 31 October 2015, and is irrelevant.  It is equally irrelevant that during the said period, ImmD took no actions or steps to remove the Applicant from Hong Kong.  As for the suggestion that ImmD had, by its action or inaction, acquiesced in the Applicant’s stay in Hong Kong between 28 January 2016 and 1 November 2018, that is plainly contrary to the consistent and unequivocal statements in ImmD’s letters sent during that period that the letters should not be construed as the Director’s approval of the Applicant’s application for extension of stay or any permission to remain, that the Applicant’s limit of stay had already expired on 4 July 2015 and had not been extended, and that no permission to remain in Hong Kong since the expiry of the Applicant’s limit of stay had been given to the Applicant.

17.The Director’s letter dated 19 December 2018, which merely directed the Applicant to approach the Registration of Persons - Hong Kong Office if she wished to obtain a formal determination of her eligibility for a HKPIC, does not constitute any substantive decision which is amenable to judicial review.

18.Counsel’s Reply dated 6 May 2021 in response to the Director’s Initial Response dated 31 March 2021 does not add anything of substance to the Applicant’s case.  In the Reply, counsel also asks for an oral hearing of the leave application if the court sees “fit” (see §1 thereof).  In view of the fact that the intended application for judicial review has plainly no merits, the court does not consider it fit to direct an oral hearing of the leave application.  At §45 of the Reply, the request for an oral hearing was repeated without any qualification.  However, Order 53, r 3(3) of the Rules of the High Court, Cap 4, states that a judge may determine an application for leave without a hearing, unless a hearing is requested in the notice of application.  No such request is made in the Form 86 in this case.  Neither is there any application to amend the Form 86 to include a request for an oral hearing.  Even if such application for amendment was made, I would not be minded to grant the application in view of the absence of merits of the intended application for judicial review.  Accordingly, the present application is determined without a hearing.

19.On the materials before the court, there is nothing to show that the decisions sought to be challenged in the intended application for judicial review were unlawful or Wednesbury unreasonable, or were made in breach of the principles of procedural fairness.

20.In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

21.The Application for leave to apply for judicial review is dismissed.

22.On the issue of costs, the principles established in Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841 are well-known.  I consider that the Applicant ought to pay the costs of the Director for the following reasons:

(1)  The Director has given an initial response to the application upon the court’s directions, and has provided substantial assistance to the court in dealing with the application.

(2)  The Applicant has effectively had a determination of the merits of the application.

(3)  The application is clearly without merits.

23.I make an order that the Applicant shall pay the costs of the Director, to be taxed if not agreed.

Mr William Allan, instructed by Mohnani & Associates, for the Applicant

Ms Jenny Cheung, Senior Government Counsel (Ag.) and Ms Augusta Wong, Government Counsel, of Department of Justice, for the 1^st Putative Respondent