Tatiana Chinko v. Director of Immigration
Read the full judgment text of HCMP 1634/2006 on BabelCite. This High Court CFI judgment was delivered on 8 February 2007.
1. On 8 February 2007, we dismissed the applicant’s appeal against the decision of Tang VP in her absence as she did not appear. These are the reasons.
Cited by 2 cases
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HCMP 1634/2006 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MISCELLANEOUS PROCEEDINGS NO. 1634 OF 2006 (ON AN INTENDED APPEAL FROM HCAL 45 OF 2005) ______________________ BETWEEN
Before : Hon Cheung JA and Yeung JA in Court Date of Hearing : 8 February 2007 Date of Judgment : 8 February 2007 Date of Reasons for Judgment : 14 February 2007 ______________________ Reasons for Judgment ______________________ Hon Cheung JA : 1.On 8 February 2007, we dismissed the applicant’s appeal against the decision of Tang VP in her absence as she did not appear. These are the reasons. 2.On 24 December 2003 the Director of Immigration (‘the Director ’) refused the applicant’s application to stay in Hong Kong as a dependant of her husband Mr. Ho. The applicant applied for judicial review to quash the decision. Reyes J heard the application and dismissed it on 29 December 2005. The judgment was sealed on 23 January 2006. 3.On 15 August 2006 the applicant applied for an extension of time to appeal. Tang VP sitting as a single judge of the Court of Appeal refused the application. The applicant appealed against the decision. Facts of this case 4.The applicant is a Russian national born in the former USSR on 13 June 1975. On 28 September 1998 she entered Hong Kong on a visitor visa. The visa was obtained under the sponsorship of one Mr. Ho whom she married on 5 October 1998. On that date she applied for residence in Hong Kong as Mr. Ho’s dependant. In August 1999 she was permitted to remain in Hong Kong for 12 months as Mr. Ho’s dependant. The permission was later extended to 19 January 2003. 5.On 18 January 2003 the applicant applied for a further extension of her stay. At that time Mr. Ho had commenced divorce proceedings against her. He also informed the Director by a letter dated 22 April 2003 that he was not prepared to continue sponsoring the applicant. On 29 April 2003 the applicant left Hong Kong for Russia. On 23 June 2003 the Director refused the applicant’s application made on 18 January 2003. 6.In July 2003 a decree absolute was made by the Court in the divorce proceedings between Mr. Ho and the applicant. 7.On 1 November 2003 the applicant re-entered Hong Kong on a visitor’s visa. She was granted 14 days’ stay which was later extended to 16 December 2003. 8.On 7 November 2003 the applicant applied for an extension of her dependant visa which had already expired on 20 January 2003. Despite her divorce in July 2003 she made a declaration that she was the spouse of Mr. Ho and that there was no change in her matrimonial relationship with Mr. Ho. 9.The Director regarded this application as a new application by the applicant for a change of status to take up residence in Hong Kong as Mr. Ho’s dependant. 10.On 5 December 2003 the applicant and Mr. Ho remarried. By then Mr. Ho was unemployed and relied on CSSA support of $1,605 per month. As the Director considered that Mr. Ho was in no position to support the applicant, he on 24 December 2003 refused the applicant’s application for permission to stay as a dependant. 11.The Director later reconsidered his 24 December 2003 decision twice. The first was in July 2004 when Mr. Ho informed the Director that he had secured new employment at $4,800 per month. But as Mr. Ho’s monthly outgoing was nearly double his income, the Director concluded that Mr. Ho could not be financially capable of sponsoring the applicant. The second time the Director reconsidered the matter was at the applicant’s request in September 2004. But as the Director found no basis for changing his mind he informed the applicant of his decision on 13 October 2004. 12.On 21 October 2004 Mr. Ho informed the Director that he would withdraw his sponsorship of the applicant and that he would commence divorce proceedings against her. On 19 January 2005 Mr. Ho confirmed with the Director that his cancellation of sponsorship remained unchanged. 13.The applicant had since applied to remain in Hong Kong without a sponsor. The application was rejected. In December 2005 the applicant further applied for an employment visa. This was also refused by the Director. The argument 14.The applicant who was legally represented by counsel at the hearing before Reyes J argued that the Director only rejected her 18 January 2003 application on 24 December 2003. She argued that by 18 January 2003 she had lived in Hong Kong for some three and half years. Between 18 January 2003 and 24 December 2003 the Director failed to inform her that under the Director’s operative policy, she was eligible to be granted unconditional stay in Hong Kong. The Director never considered that she might be eligible for unconditional stay which was contrary to her legitimate expectation. As a result the Director’s decision of 24 December 2003 was flawed and should be reconsidered. Reyes J’s judgment 15.Reyes J rejected the argument that the Director only considered the applicant’s 18 January 2003 application on 24 December 2003. He found, on the evidence, that the Director had rejected this application on 23 June 2003. 16.Reyes J accepted that between 1983 and July 2003 the Director operated a policy which had since been stopped. Under this policy a dependant spouse of a Hong Kong permanent resident would be eligible for a grant of unconditional stay after three years’ residence in Hong Kong. However this policy was subject to a very important requirement, namely, that at the time of the application an applicant would still have to show that there was a financially capable sponsor who was prepared to support her. If the dependant’s sponsor was no longer willing or able to support her the Director could refuse to extend the applicant’s permission to stay in Hong Kong as a dependant. 17.As of 23 June 2003 Mr. Ho had already informed the Director that he was not prepared to sponsor the applicant any more. Reyes J held that even without regard to the fact that the applicant had left Hong Kong on 29 April 2003, she was still not qualified under the old policy. 18.Reyes J then further considered the applicant’s argument that the Director only rejected her application on 24 December 2003. He held nonetheless the Director was correct to reject her application because although Mr. Ho by then had indicated that he was willing to sponsor the applicant he was actually in no position to support her financially. Mr. Ho himself was relying on a CSSA allowance and even when he found a job it was insufficient to maintain himself. Hence the applicant could never have satisfied the requirement of sponsorship. 19.Reyes J further found that the 24 December 2003 decision was a refusal by the Director of the applicant’s 7 November 2003 application. That was an application for a dependant’s visa from someone, who had been away from Hong Kong for six months, whose previous application for stay had been rejected in June 2003 and whose sponsor was not in a position to support her. In the light of those indisputable premises, the Director could be said to have acted irrationally in deciding to reject the applicant’s application. Considerations 20.In considering whether an extension of time to appeal should be granted the Court will take into regard the following factors :
21.The appeal period under Order 59, rule 4(1)(c) is 28 days from the date of the sealing of the order. In this case the time for appeal expired on 21 February 2006. There was a lengthy delay of six months. Even taking into account the extension of time as a result of the applicant’s application for legal aid, the delay was five months. 22.The applicant’s excuse for the delay was her ignorance of the legal procedures and her application for the legal aid. Tang VP found the reasons to be inexcusable. 23.It is apparent from a reading of Tang VP’s judgment that the most important reason why he refused the application was because of the lack of the chance of success of the appeal. It is clear from a reading of the judgment of Reyes J that irrespective of whether the decision was treated to be given on 23 June 2003 or 24 December 2003, the applicant just could not avail herself of the policy that was previously in place. This is because first, by 23 June 2003 Mr. Ho had expressly informed the Director that he was no longer willing to sponsor the applicant and second by 24 December 2003 the Director was of the view that Mr. Ho, although willing to sponsor the applicant, was not in a financial position to do so. 24.We agree entirely with Reyes J and Tang VP’s decisions. It would be futile to grant an extension if the appeal has no prospect of success. Conclusion 25.Accordingly we dismissed the appeal with costs to the respondent. Adjournment 26.The applicant did not attend the appeal on 8 February 2007. By a fax dated 5 February 2007, she requested the Court to adjourn the appeal because she was unwell and that she did not have time to prepare the appeal. The Court refused the request. The applicant repeated the request by two further faxes. The Court on 7 February 2007 gave the following direction :
27.Although the applicant did not attend the appeal the respondent still opposed any adjournment of the appeal on the ground that the applicant had not produced any medical evidence of her condition and that she had previously already sought and obtained adjournments of her case many times. We proceeded with the appeal and dismissed it on the merits. Hon Yeung JA : 28.I agree.
Applicant, in person, absent Ms Michelle Chan, S.G.C. of Department of Justice, for the Respondent |
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