Van Can on and Others v. The Director of Immigration and Others

1996 M.P. No. 2037

IN  THE  SUPREME  COURT  OF  HONG  KONG

HIGH  COURT

MISCELLANEOUS  PROCEEDINGS

____________

BETWEEN

____________

Before : The Hon. Mr. Justice Keith in Chambers

Dates of Hearing : 16th and 17th July 1996

Date of Delivery of Judgment : 17th July 1996

[In determining whether to exercise his power under section 13E(1) of the Immigration Ordinance (Cap.115) to order the removal from Hong Kong of Vietnamese migrants who are in the course of (a) applying for legal aid, or (b) appealing against the refusal of legal aid, to enable them to challenge the refusal of the Refugee Status Review Board to accord them refugee status, the Director of Immigration is not obliged to consider the merits of such a challenge. His policy not to treat the lodging of such an application or appeal as a reason for postponing the Applicants’ removal from Hong Kong is not an irrational one: Do Manh Tuan v. The Director of Immigration (HCMP 803/96) followed and applied.]

____________

JUDGMENT

____________

INTRODUCTION

1. The Applicants in these proceedings for judicial review are Vietnamese migrants. They sought asylum in Hong Kong. They were all refused refugee status by the Refugee Status Review Board (“the Board”). They wished to challenge those decisions. They therefore applied for legal aid to enable them to do so.

2. In order to enable the Director of Legal Aid to determine those applications, various documents conerning the migrants were supplied to her by the Director of Immigration. Copies of them were not supplied to the migrants by the Director of Immigration. He was only prepared for the Director of Legal Aid to see them. Nor were they supplied to the migrants by the Director of Legal Aid, because they had been supplied to her on terms that they were for her use only.

3. In due course, the migrants’ applications for legal aid were refused by the Director of Legal Aid. The migrants lodged appeals against the refusal of leagl aid with the Registrar of the Supreme Court. In order to enable the Registrar to determine the appeals, the Director of Legal Aid supplied the various documents to the Registrar. When one of the appeals was heard by Master Jones, the migrant’s solicitors complained that they had not seen the documents on the basis of which Master Jones was being asked to decide the appeal. Master Jones adjourned the hearing of the appeal, and recommended to the Director of Immigration that such papers which the Director of Legal Aid wished to refer to on the appeal, or which would otherwise be relevant, be released to the migrant’s representatives. The Director of Immigration refused to provide the migrants with copies of documents relating both to the appeal pending before Master Jones and similar appeals, as did the Director of Legal Aid, and their refusal to do so are the decisions challenged in these proceedings.

THE APPLICATION FOR LEAVE

4. At first, 49 migrants applied for leave to apply for judicial review of those decisions. Their application was placed before me on 25^th June. I was not prepared to grant leave without a hearing, and the application for leave was heard by me on 11^th July. The hearing was attended by counsel for the Applicants, for the Director of Legal Aid and for the Director of Immigration. After hearing brief argument on the topic, I granted the 49 Applicants leave to apply for judicial review of the decisions challenged. However, between the filing of the Notice of Application on 25^th June and the hearing on 11^th July, a further 10 Vietnamese migrants whose cases were said to be identical to the original 49 Applicants were discovered. I gave leave for the Notice of Application to be amended so that they could be applicants in the proceedings, and I ordered that the leave which I had granted to the original 49 Applicants applied to them as well.

THE APPLICATION FOR A STAY

5. At the conclusion of the hearing, after I had granted the 59 Applicants leave to apply for judicial review, Mr Philip Dykes on their behalf applied for a stay on their removal from Hong Kong pending the substantive hearing of the application for judicial review. Ever since the refusal of the Board to grant the Applicants refugee status, the Director of Immigration has had the power, under section 13E(1) of the Immigration Ordinance (Cap. 115), to order their removal from Hong Kong. Upon ascertaining from Miss Dale Watson for the Director of Immigration that the Director of Immigration was not prepared to undertake that the Applicants would not be removed from Hong Kong in the meantime, I granted such a stay. I did not hear argument on the issue, and I therefore gave no reasons for granting the stay. However, Mr Matthew Gold for the Applicants has correctly identified my unarticulated reason for granting the stay. It was because if the Applicants were removed from Hong Kong, there would be no point in their appeal against the refusal of legal aid being maintained. It would be a dead letter, because even if the ultimate outcome was the quashing of the decisions of the Board, that would come far too late if the Applicants had already been repatriated to Vietnam.

THE 9 ADDITIONAL APPLICANTS

6. That is the background to the application which came before me yesterday. It related to 9 further Vietnamese migrants whose applications for legal aid to challenge the decisions of the Board refusing them refugee status were refused, and who have lodged appeals against the refusals with the Registrar. I gave leave for the Notice of Application to be re-amended so that they can be applicants in the proceedings, and I ordered that the leave which I had granted to the 59 previous Applicants should apply to them as well. However, the real bone of contention was whether there should be a stay on their removal from Hong Kong pending the substantive hearing of the application for judicial review. Again, the Director of Immigration was not prepared to undertake that they would not be removed from Hong Kong in the meantime. Having heard the arguments, I reserved judgment on the issue until today.

THE RECENT LEAGAL AID APPEALS

7. Three of the 9 new Applicants only lodged their appeals to the Registrar on 13^th July, i.e. after my order of 11^th July staying the removal of the 59 original Applicants from Hong Kong. I do not wish to stifle genuine appeals, but it would not be right to grant a stay if the lodging of an appeal was simply an opportunistic response to my order of 11^th July, and a device to use my order of 11^th July as a means of prolonging their stay in Hong Kong and postponing their repatriation to Vietnam.

8. The lodging of the appeal by one of them has all the hallmarks of such a device. In his case, legal aid was refused as long ago as 25^th October 1995. In these circumstances, I can be forgiven, I think, for being extremely sceptical about his motives for lodging an appeal so late in the day. The circumstances of the other two are not so clear-cut. Legal aid was refused in their cases on 18^th June and 24^th June respectively. The time limit for lodging an appeal is 14 days from the refusal of the legal aid: see section 26(2) of the Legal Aid Ordinance (Cap. 91). The Registrar has power to allow further time, and no doubt he will do so if there is any delay in informing a migrant or his representatives of the refusal of legal aid. It follow that these 3 appeals are all out of time.

9. There is no evidence before me as to when the refusal of legal aid was brought to the attention of these three Applicants or their solicitors, nor is there any evidence as to the reason for the delay. Mr Gold told me that he had no instructions on those matters, and I suspect that that is simply a function of the speed with which this application had been brought to court. In the circumstances, without giving the Applicants an opportunity to explain the delay, I am not prepared to characterise their appeals (whatever my suspicious may be) as a mere device to use my order of 11^th July as a means of staying in Hong Kong. For these reasons, I am prepared to treat the 3 Applicants as being in the same category as the other 6 new Applicants, all of whom lodged their appeals prior to 11^th July.

SHOULD A STAY BE GRANTED?

10. Mr Gold submits, rightly, that their cases are indistinguishable from the cases of the 59 Applicants to which the stay of 11^th July applied. For some reason, their names were simply omittd from the original 49 names and the subsequent 10. It follows that my refusal to grant the 6 new Applicants a stay would be tantamount to an acceptance on my part that the stay should not have been granted to the original 59 Applicants. With her customary realism which will be missed in Hong Kong, Miss Watson did not flinch with that.

11. The basis on which it is said that a stay is wholly inappropriate is my decision in Do Manh Tuan v. The Director of Immigration (HCMP 803/96). That case also concerned a Vietnamese migrant to whom the Board had refused to accord refugee status. He applied for legal aid to challenge that decision. Before the Director of Legal Aid had decided whether to grant him legal aid, the Director of Immigration made an order for his removal from Hong Kong. When his solicitors realised that his removal from Hong Kong was imminent, he applied for leave to apply for judicial review of the order for his removal. I refused him leave, and the order for his removal took effect on the day after I had informally notified the parties of my decision.

12. The case of Do Manh Tuan is factually distinguishable from the current case in two significant respects:

(i) Do Manh Tuan had not been refused legal aid at the time when the Director of Immigration made the order for his removal. That is to be contrasted with the present case where all the Applicants have been refused legal aid. If a stay on the removal order was not appropriate in Do Manh Tuan, all the more so is it inappropriate in the Applicants’ cases.

(ii) The underlying decisions which both Do Manh Tuan and the present Applicants wish to cahllenge are the decisions of the Board not to accord them refugee status. In Do Manh Tuan, I had sufficient materials to decide whether to grant him leave to apply for judicial review of that decision if that application had been before me. In concluded that I would not have granted him leave to apply for judicial review of that decision. I do not have those materials before me in the present cases. To that extent, Do Manh Tuan was far less justified in having his removal from Hong Kong postponed than are the present Applicants.

13. In Do Manh Tuan , I was told that it was the Director of Immigration’s policy not to treat an application for legal aid by a Vietnamese migrant to challenge the refusal to accord him refugee status as a reason for postponing his removal from Hong Kong. That that remains the Director of Immigration’s policy today is borne out by a letter dated yesterday from the Attorney-General’s Chambers to the Applicants’ solicitors. Leaving aside for the moment the legality or therwise of that policy, one thing is plain: the Director of Immigration cannot be expected to stay his hand indefinitely while an attempt is being made to challenge those decisions which triggered his power to order the removal of the Applicants from Hong Kong, however remote a successful challenge to those decisions might be. On more mature consideration, that is the answer to the point that, if the Applicants were removed from Hong Kong, the issue as to whether they should have been granted refugee status will  never be decided.

14. The force of that argument was recognised by Mr Paul Harris, Do Manh Tuan’s counsel. What he argued was that in a case where a Vietnamese migrant has applied for legal aid to challenge the decision refusing to accord him refugee status, the Director should consider whether such a challenge has any arguable ground for success. If it does, he should defer any decision as to whether the migrant should be removed from Hong Kong until after the application for legal aid has been determined. By parity of reasoning, that argument should apply in a case such as the present where Vietnamese migrants have lodged appeals against the refusal of legal aid to challenge the decisions refusing to accord them refugee status.

15. I reject that argument. I quote from my judgment in Do Manh Tuan, suitably amended to meet the facts of the present case:

“It is not for Director to second-guess the view which the [Registrar] might take of the merits of the proposed challenge [assuming that the Registrar is able to determine that question according to law]. He is entitled to treat the considered view of the Board as final until such time as the Court says otherwise. This accords with the director’s own practice. [His counsel] told me that the Director would not normally order the removal of a migrant once the Court had granted te migrant leave to apply for judicial review of the Board’s decision to refuse to accord him refugee status.

If [the Applicants'] argument was correct, two consequences would follow:

(i) Any Vietnamese migrant could delay his removal from Hong Kong simply by [lodging an appeal within the time limit from the decision refusing him] legal aid to challenge the decision refusing to accord him refugee status.

(ii) The Director would in all such cases have to embark on an examination of the reasons of the Board to determine whether the challenge to its decision had any chance of success. For all I know, that might stretch to an unacceptable degree the manpower and financial resources currently available to the Director.

These consequences should not, of course, deter me from going along with [the Applicants'] argument if I thought that it was arguably correct, but where an elaborate system for determination by the Director as to whether a Vietnamese migrant ought to be accorded refugee status has been established, and sophisticated machinery for appeals from his decision to an independent board has been put in place, I do not believe for one moment that it is any part of the function of the Director to revisit the question of the legality of the decision relating to the migrant’s status in order to determine whether the migrant should be removed from Hong Kong.”

For these reasons, I confirm the view which I expressed in Do Manh Tuan, namely that the Director’s policy not to treat an application for legal aid by a Vietnamese migrant to challenge the refusal to accord him refugee status as a reason for postponing his removal from Hong Kong is not an irrational one.

16. These considerations apply particularly where, as here, the immediate challenge is not to the decisions of the Board, nor even to the decisions of the Director of Legal Aid to refuse legal aid to challenge the decisions of the Board, but to decisions which it is alleged prevent appeals against the refusal of legal aid being determined according to law. The point is that even if the Applicants succeed in the current proceedings, and the decisions of the Director of Legal Aid and the Director of Immigration not to provide the Applicants with copies of the documents they want are quashed, that does not mean that the Applicants will be granted legal aid. All it means is that the Registrar can consider the appeals with the benefit of informed representations from the Applicants’ representatives.

17. I have not overlooked the fact that in Do Manh Tuan the issue was whether it was arguable that the order for removal should be quashed on the basis that it was not reached according to law. In the present case, the issue is whether the Court, in its discretion, should prevent the Director from exercising his discretionary power of removal. In the end, I have decided that this is a distinction without a difference. The reasons which led me to conclude that the Director of Immigration’s policy in relation to migrants who apply for legal aid is not irrational are the same reasons which lead me today to conclude that I should not interfere with the exercise by him of his power of removal.

18. Nor have I overlooked Mr Gold’s point that the Applicants have been in detention in Hong Kong for at least 5 years. Since I ordered an expedited hearing of this application for judicial review, it is said that the Applicants should at least be allowed to remain in Hong Kong for the couple of months which it would take for the current proceedings to be concluded. That argument presupposes that if the Director of Legal Aid or the Director of Immigration was ordered to provide the Applicants’ representatives with copies of the various documents required for the legal aid appeals, it would then be appropriate to prevent the Director of Immigration from ordering the Applicants’ removal form Hong Kong. For the reasons I have given, it would not.

CONCLUSION

19. It follows that I decline to order the Director of Immigration not to order the removal of the 9 new Applicants from Hong Kong pending the substantive hearing of these proceedings for judicial review. As I have said, I realise that the reasons for this decision apply to the 59 original Applicants, and had I permitted the question of the stay to be argued on 11^th July, I doubt whether I would have granted the stay which I did. I leave it to the Director of Immigration to decide whether he wishes to apply to set aside the stay granted to the 59 original Applicants. I am not encouraging him to make such an application, but if he does so, it should be on proper notice to the Applicants’ solicitors. In the interests of completeness, I note that we should now be talking only of 53 Applicants, because 6 of the original 49 Applicants have now withdrawn their applications for judicial review.

Mr Matthew Gold of Messrs Pam Baker & Co for the Applicants

Miss Dale Watson, Senior Crown Cousel, on 16^th July, and Mr Nicholas Cooney, Senior Crown Counsel, on 17^th July, for the 1^st Respondent