Aguilar Joenalyn Elmedorial v. Director of Immigration

CACV 225/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 225 OF 2012

(ON APPEAL FROM HCAL NO. 40 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.On 11 January 2013, this court dismissed the appellant’s appeal against the dismissal, by Au J, of her application for judicial review of the Director of Immigration’s decision dated 9 March 2011 refusing her application for an employment visa. The reasons for our judgment were handed down on 17 January 2013.

2.The appellant now applies, by notice of motion dated 10 April 2013, for leave to appeal to the Court of Final Appeal from this court’s order dismissing her appeal against Au J’s judgment.

3.The application is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the basis that the appeal involves questions of great general or public importance, alternatively that the appeal ought otherwise to be referred to the Court of Final Appeal for decision.

4.The notice of motion sets out the questions said to arise and to be ones of great general or public importance, namely:

“(1) Whether and by what authority the Director of Immigration enjoys immunity from the supervisory jurisdiction of the Court of First Instance save where some ‘higher threshold’ is met; and what such ‘higher threshold’ is.

(2) Whether on the correct construction of the prevailing immigration policy a person who has been convicted of a minor criminal or quasi-criminal offence (including an offence that is not ‘truly criminal’), other than an immigration or labour offence, has a ‘record to his/her detriment’ and may be refused entry / re-entry / permission to work in the HKSAR on that ground alone.”

Question (1) does not arise and is, in any event, fact sensitive

5.In §§49-50 of our Reasons for Judgment, it was pointed out that the appellant’s contention that Au J applied too narrow a test in law was not made out on the facts since the Judge dealt with the appellant’s case on the basis that the issue before him was whether the Director had failed to take into account a relevant consideration or had reached a decision that was irrational.

6.Further, this court did not understand the Judge to have treated the Director as contending that there is a higher threshold in judicial review proceedings concerning immigration matters and to have accepted such a contention as being correct.  As explained in §55 of our Reasons for Judgment, the Judge’s comment of which complaint was made was merely saying that the threshold for judicial intervention in the exercise of discretion by the Director in immigration matters is a high one.  The suggested tensions in the authorities cited by the Judge (and listed in footnote 7 in our Reasons for Judgment) do not therefore arise for consideration.

7.In the circumstances, in our view, question (1) does not arise and is, in any event, fact sensitive and so not one of great general or public importance.

Question (2) not reasonably arguable

8.The construction of the relevant policy, which is the subject of question (2), was addressed in §§19 to 32 of our Reasons for Judgment.  Even assuming the question is of sufficiently general or public importance for the purposes of the grant of leave to appeal under s. 22(1)(b) of the Ordinance, for the reasons there set out, we do not consider that the appellant’s construction of the policy is reasonably arguable.

Or otherwise ground

9.Finally, notwithstanding the factors urged upon us on behalf of the appellant, we are not persuaded that this is a case in which we should grant leave to appeal on the “or otherwise” ground under s. 22(1)(b) of the Ordinance.

10.For these reasons, we dismiss the notice of motion with costs and direct that the appellant’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Timothy Parker, instructed by Vidler & Co., assigned by Director of Legal Aid, for the Applicant (Appellant)

Ms Grace Chow, instructed by the Department of Justice, for the Respondent (Respondent)