Th and Another v. Director of Immigration
Read the full judgment text of HCAL 114/2014 on BabelCite. This High Court CFI judgment was delivered on 20 July 2015.
1. I have before me an application for judicial review of a decision (“the Decision”) made by the Director of Immigration (“the Director”) contained in a letter dated 15 April 2013 to the 1 st applicant (through his solicitors, Messrs Daly & Associates) refusing his application (“the Dependant Visa Application”) made on 10 August 2009 for entry for residence in Hong Kong as a dependent of his wife (“the 2 nd applicant”).
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HCAL 114/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 114 OF 2014 _______________
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_______________ J U D G M E N T _______________ INTRODUCTION 1.I have before me an application for judicial review of a decision (“the Decision”) made by the Director of Immigration (“the Director”) contained in a letter dated 15 April 2013 to the 1st applicant (through his solicitors, Messrs Daly & Associates) refusing his application (“the Dependant Visa Application”) made on 10 August 2009 for entry for residence in Hong Kong as a dependent of his wife (“the 2nd applicant”). 2.The application for leave to apply for judicial review was made on 19 September 2014, which was some 17 months after the date of the Decision and well outside the upper limit of 3-months for making the application under Order 53, rule 4(1) of the Rules of the High Court. On 25 November 2014, I granted leave to the applicants to apply for judicial review on consideration of papers only, without prejudice to the Director to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay. 3.On 9 February 2015, the Director issued an inter partes summons (“the Setting Aside Summons”) seeking to set aside the leave granted to the applicants to apply for judicial review on the ground of delay. 4.On 3 June 2015, the Director issued a further inter partes summons seeking to amend the Setting Aside Summons to rely on the additional ground of material non-disclosure on the part of the applicants when seeking leave, on an ex parte basis, to apply for judicial review. 5.On 8 June 2015, I granted leave to the Director to amend the Setting Aside Summons in the absence of any objection by the applicants. 6.As can be seen from the Form No 86, four grounds were relied upon by the applicants in support of the present application for judicial review, namely:-
7.At the hearing on 8 June 2015, Mr Dykes SC (for the applicants) informed the court that he was content to rest his case on the first ground alone, ie misapplication of the Dependant Visa Policy, in view of the earlier decisions of the Court of First Instance in BI v Director of Immigration, HCAL 174/2013 (10 December 2014), and BH v Director of Immigration, HCAL 105/2014 (14 April 2015). 8.Accordingly, the main issues to be dealt with in this judgment are:-
The late affirmations 9.Before I turn to consider the various issues mentioned above, I shall first dispose of an objection raised on behalf of the Director regarding the admission of three affirmations filed on behalf of the applicants. 10.On 18 May 2015, the 1st and 2nd applicants each made an affirmation (“the 3rd affirmation of the 1st applicant” and “the 3rd affirmation of the 2nd applicant” respectively) to reply to some of the matters raised in the evidence filed on behalf of the Director in this application for judicial review. 11.On 5 June 2015, Tong Thi Xuan, a senior paralegal, made an affirmation (“the affirmation of Tong”) on behalf of the applicants to deal with the issues of material non disclosure and/or delay raised by the Director’s aforesaid summonses. 12.Mr Jonathan Chang (for the Director) objected to the admission of these affirmations on the grounds that (a) there was substantial delay in the filing of the two affirmations of the applicants and no (good) reason for the delay had been put forward, and (b) the contents of the three affirmations were irrelevant. 13.After hearing arguments from Mr Dykes and Mr Chang, I informed the parties that I would deal with the Director’s objection to the admission of the three affirmations in the main judgment to be delivered. 14.The three affirmations are relatively short and straight forward. They provide some background information relating to the substantive issues to be determined in this judgment. Their contents cannot, in my view, be said to be entirely irrelevant. It was not suggested on behalf of the Director that he would suffer any prejudice or would be embarrassed by the admission of the three affirmations. I would therefore exercise my discretion to admit the three affirmations notwithstanding the fact that they were filed late. Background facts (i) Personal background 15.The 1st applicant was born in Pakistan in 1975. He married his first wife on 20 October 1999, and they had a daughter born on 11 November 2003. According to the 1st applicant, his first wife passed away in 2007, and daughter is currently under the care of his younger brother in Pakistan. 16.The 2nd applicant was born in Indonesia in 1972. She came to Hong Kong when she was approximately 20 years old, and was granted residence in Hong Kong as a dependant of her first husband on 13 January 1995. She became a permanent resident of Hong Kong on 28 October 2006. The 2nd applicant and her first husband had two daughters. Their marriage was dissolved on 3 February 2009, and custody of the two daughters was granted to the 2nd applicant’s first husband. 17.The 1st and 2nd applicants first met each other in Hong Kong in January 2006, and started to cohabit in or about June 2006. They married on 3 August 2009, and do not have any child out of this marriage. (ii) The 1st applicant’s three claimed identities 18.In view of the anonymity order made by Au J on 17 July 2014, the 1st applicant’s three claimed identities will be referred to as “ID1”, “ID2” and “ID3” in this judgment. 19.On 17 January 2004, the 1st applicant entered Hong Kong on the strength of a Pakistani Passport (“TD1”) in the name of ID1 with a date of birth of 6 June 1975. He was permitted to remain as a visitor in Hong Kong for 10 days up to 27 January 2004. He did not depart from Hong Kong and has been overstaying since 28 January 2004. 20.On 16 March 2005, the 1st applicant was intercepted by the Police for an inspection of his Hong Kong identity card which he claimed was kept at home. The Police escorted the 1st applicant to his residence to retrieve his Hong Kong identity card. On arrival at his home, the 1st applicant admitted that he had no Hong Kong identity card and produced a different Pakistani Passport (“TD2”) in the name of ID2 with a date of birth of 6 October 1970 as proof of his identity. He was arrested by the Police for further investigation. 21.In the course of the Police investigation, it transpired that on 7 April 2004, the 1st applicant produced a Hong Kong identity card in the name of ID3 with a date of birth of 20 January 1973 for the purpose of seeking employment with a transportation company in Hong Kong. The 1st applicant admitted under caution that the said Hong Kong identity card in fact belonged to his friend. 22.The 1st applicant was subsequently arrested by the Police for (inter alia) the offence of “using an identity card relating to another person”. On 20 May 2005, the 1st applicant was convicted by a magistrate of the said offence and sentenced to 9 months’ imprisonment. 23.On 5 August 2005, in an interview conducted by an officer of the Immigration Department while the 1st applicant was in prison, the 1st applicant submitted a written representation claiming that ID1 was his true identity. 24.On 14 September 2005, the 1st applicant was discharged from prison and transferred to Castle Peak Bay Immigration Centre (“CIC”) with a view to his removal from Hong Kong. (iii) The 1st applicant’s non-refoulement claims 25.Also on 14 September 2005, the 1st applicant made a torture claim, the details of which are not relevant for the present purposes. 26.On 28 October 2005, the 1st applicant was released from CIC on recognizance under section 36 of the Immigration Ordinance, Cap 115. 27.The 1st applicant’s torture claim was rejected by the Director on 8 May 2012, and his petition against the rejection of his torture claim was dismissed by an Adjudicator (Torture Petitions) on 25 July 2012. 28.On 6 August 2012, a removal order was issued against the 1st applicant on the ground of his contravention of his condition of stay, namely, overstaying since 28 January 2004. 29.On 22 August 2012, the 1st applicant was detained by officers of the Immigration Department pending his removal from Hong Kong. 30.Also on 22 August 2012, the 1st applicant lodged an appeal against the removal order. His appeal was dismissed on 7 September 2012. 31.On 29 January 2013, the 1st applicant lodged a further claim for non-refoulement on the ground of “cruel, inhuman or degrading treatment or punishment”. 32.On 29 March 2013, the 1st applicant was released from CIC on recognizance. 33.The 1st applicant’s latest non-refoulement claim is, I understand, currently pending assessment by the Director under the Unified Screening Mechanism. (iv) The Dependant Visa Application and the Decision 34.As earlier mentioned, the 1st applicant married the 2nd applicant on 3 August 2009, at a time when he was allowed to remain in Hong Kong on recognizance pending the assessment of his aforesaid torture claim. 35.On 10 August 2009, the 1st applicant made the Dependant Visa Application, with the 2nd applicant acting as his sponsor. The detailed course of the assessment process of the application is set out in the affidavit of Lung Ka Kit (“Mr Lung”) sworn on 9 February 2015, which is it not necessary to repeat in this judgment. 36.The assessment of the 1st applicant’s Dependant Visa Application was carried out by Mr Lung, whose recommendation was endorsed by his supervising officer, Wong Chau Ping (“Mr Wong”). 37.In the internal file minute (“M20”) which set out Mr Lung’s analysis and recommendation, the following conclusions, amongst others, were stated:-
38.The following passages in M20 are of relevance to the present application:-
39.Mr Wong’s written comment, which appears on the first page of M20, states as follows:-
40.The Director’s decision was conveyed to the 1st applicant by letter dated 15 April 2013. The letter states, so far as relevant, as follows:-
Whether the Director misapplied, or misconstrued, the Policy 41.Although one possible reading of M20 is that the No Record Requirement was treated as merely a relevant, albeit important, factor in the Director’s consideration of the Dependant Visa Application, the decision letter dated 15 April 2013 made it clear that the No Record Requirement was treated as an eligibility or essential criterion for the application. 42.This view of the matter represents, I believe, the consistent practice adopted by the Director and his officers, as stated in paragraph 18(1) of the written skeleton argument of Mr Chang. The same position is mentioned in a letter from the Immigration Department to the Director of Legal Aid dated 21 June 2013. In that letter, under the sub-heading “The Policy”, the following is stated:-
43.For the purpose of the present case, I shall therefore proceed on the basis that the Director regarded the failure of the 1st applicant to satisfy the No Record Requirement as being fatal to his Dependant Visa Application, unless he could demonstrate “strong compelling factors or exceptional humanitarian or compassionate circumstances” justifying the exercise of his residual discretion to permit the 1st applicant to remain in Hong Kong (see paragraph 22 of the affirmation of Wong Mo Cheong Wilson filed on behalf of the Director). 44.The issue of whether the No Record Requirement should properly be treated as an eligibility or essential criterion under the Policy has recently been considered by Zervos J in BI (10 December 2014) and by me in BH (14 April 2015). Essentially, I came to the conclusion that, upon the true construction of the Policy, the No Record Requirement should be regarded as an important, but not conclusive, consideration in the Director’s exercise of his discretion whether to grant a dependant visa, and I agreed with the view expressed by Zervos J in BI on this issue subject to a minor qualification mentioned in paragraph 46 of my decision in BH. I do not propose to repeat my analysis in my earlier decision in BH. 45.Mr Chang has invited me not to follow the decisions in BI and BH. I have considered his submissions with care but I am not convinced that those decisions were wrong. The only new point raised by Chang that I wish to mention in this judgment relates to the Chinese version of the Policy. Paragraph 5 of that version states as follows:-
46.Mr Chang argues that the Chinese version of the Policy suggests that all three criteria set out under paragraph 5 thereof must be satisfied before an application for a dependant visa will be considered or approved. 47.I can see the force of Mr Chang’s argument, and believe that there is a discrepancy between the Chinese and English versions of paragraph 5 of the Policy. The latter states as follows:-
48.In reply, Mr Dykes submitted that the 1st applicant is an English speaker and the Chinese version of the Policy would not be relevant to him. Although the 2nd and 3rd affirmations of the 1st applicant were written in the English language, they had apparently been interpreted to him in the Urdu language before he affirmed them. I do not consider it fair to apply the Chinese version of the Policy to the 1st applicant in these circumstances. In any event, I do not believe that an important issue regarding the proper interpretation of the Policy should turn on a discrepancy between the Chinese and English versions of the Policy. I understand that the Director has lodged appeals against the two decisions in BI and BH, and an authoritative interpretation of paragraph 5 of the Policy will be given by the Court of Appeal in due course. Pending the decisions of the Court of Appeal in those appeals, I consider that the right course to take would be to continue to apply the Court of First Instance decisions in BI and BH. 49.It follows that I consider the Director to have misapplied, or misconstrued, the Policy when he treated the failure of the 1st applicant to satisfy the No Record Requirement as being fatal to his Dependant Visa Application. 50.For the sake of completeness, I may add that the Director also considered that the 1st applicant had failed to demonstrate any strong compelling factors or exceptional humanitarian or compassionate circumstances which would justify the exercise of his residual discretion to permit the 1st applicant to remain in Hong Kong. This conclusion seems to me to be plainly correct. 51.I shall deal with a further issue raised by Mr Chang, namely, “inevitability of outcome”, later in this judgment when I consider whether the leave granted to the applicants to apply for judicial view ought to be set aside on the grounds of (i) material non-disclosure and/or (ii) delay. Material non-disclosure 52.The Decision in this case was conveyed to the 1st Applicant by letter dated 15 April 2013, and the application for leave to apply for judicial review was not made until 19 September 2014. It is apparent that the application was made well outside the upper limit of 3-months provided for under Order 53, rule 4(1) of the Rules of the High Court. 53.When I granted leave to the applicants to apply for judicial review on consideration of papers only, I indicated that the leave granted was without prejudice to the Director being able to contend at the substantive hearing of the application for judicial review that leave for making the application and/or any relief sought on the application should not be granted on the ground of delay. 54.However, as submitted by senior counsel for the applicant in BH and as explained at paragraphs 90 to 95 of my judgment in that case, the effect of the judgment of Lord Slynn of Hadley in R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 at 341 is that once a judge grants leave to apply for judicial review, even if he makes it clear at the same time that the respondent should have an opportunity to raise the question of delay, the issue of whether there is good reason for an extension of time is concluded and the judge hearing the substantive judicial review application has no jurisdiction to reconsider the question of extension of time, or whether good grounds have been shown under Order 53, rule 4(1) for an extension of time. The only issue, so far as delay is concerned, is whether relief should be refused on the ground of hardship, prejudice or detriment to good administration under section 21K(6) of the High Court Ordinance, unless a separate application is made by the respondent to set aside the leave granted on an ex parte basis. 55.The fact that the granting of leave to apply for judicial review would carry such significance consequence has an obvious implication on the duty of full and frank disclosure on the part of an applicant when seeking, ex parte, for leave to apply for judicial review. The position was explained by Jackson J in R v Bromley LBC, ex p Barker [2000] Env LR 1 at paragraphs 45 to 51 as follows:-
56.In Hong Kong, the duty of full and frank disclosure on the part of an applicant seeking leave to apply for judicial review is well established. As observed by Lam J (as he then was) in Re Leung Kwok Hung, HCAL 83/2012 (28 September 2012), at paragraph 35:-
57.In my view, having regard to the considerations mentioned in paragraph 54 above, any failure on the part of an applicant to comply with the duty of full and frank disclosure when seeking, on an ex parte basis, an extension of time to apply for leave to apply for judicial review should generally be regarded as a serious matter, whatever may be the reason or reasons for such failure, and the court must be astute to prevent an applicant from gaining any procedural or substantive advantage obtained from his failure to comply with such basic duty. 58.In the present case, the delay in the making of the leave application was explained in the Form 86 in the following passages under the sub-heading “Relevant Chronology”:-
59.In the 2nd affirmation of the 1st applicant filed in support of the application for leave to apply for judicial review, nothing further was said in relation to the issue of delay. 60.The above passages in the Form 86 suggest that the delay for making the leave application was caused by two main factors:-
61.At the hearing on 8 June 2015, Mr Dykes also submitted that the delay fell into two parts: (i) delay by the Director of Legal Aid, and (ii) delay in formulating the application. In relation to the latter aspect, Mr Dykes stated that the explanation was given in the Form 86, and he referred in particular to the need to obtain “PD(P)O documents”. 62.The evidence now before me shows that Messrs Daly & Associates made two PD(P)O Data Access Requests on behalf of the applicants to the Director on 6 May 2013 (the covering letter was, mistakenly, dated 6 May 2012) and 12 February 2014 respectively.
63.As regards documents obtained from the Security Bureau, they mainly concern the petition against the Director’s refusal of the 1st applicant’s torture claim and are not relevant to the present application for judicial review of the Decision. 64.The explanation given in the Form 86 for the delay in making the application for leave to apply for judicial review is, I regret to say, neither accurate nor fair. Even if one were to accept that the delay up to 27 January 2014 (being the date on which legal aid was granted to the applicants) was to be attributed to the legal aid process:-
65.In my view, the suggestion made in the Form 86 that that the delay in making the leave application “was in part caused” by the need to obtain extensive PD(P)O documents for the applicants is inaccurate, if not also misleading, and the applicants have failed to comply with the duty of full and frank disclosure when making the ex parte application for leave to apply for judicial review. 66.Even where there has been a failure to comply with such duty, the court still has a discretion not to discharge the leave granted to an applicant to apply for judicial review or may, in appropriate circumstances, exercise its discretion to “re-grant” the leave to apply for judicial review. Although Mr Dykes did not advance any argument on these matters (concentrating instead on the argument that there was no material non disclosure), I have nevertheless considered whether this is a proper case to exercise my discretion not to discharge the leave granted, or to re-grant the leave, to apply for judicial review. 67.I am prepared to proceed on the assumption that the applicants were not themselves responsible for the failure to comply with the duty of full and frank disclosure, and that such failure was not deliberate or intentional. I bear in mind the importance or significance of the Decision to the applicants, and also my view that the Director misapplied, or misconstrued, the Policy in relation to the 1st applicant’s Dependant Visa Application. 68.All these having been said, Mr Chang has on behalf of the Director strongly urged upon me that the outcome of the 1st applicant’s Dependant Visa Application is inevitable. If the “inevitability of outcome” argument is a stand-alone point, I would hesitate long and hard before reaching a conclusion that the Director would inevitably have reached the same conclusion had he properly treated the No Record Requirement as an important, but not conclusive, factor against granting a dependant visa to the 1st applicant. However, the context of the present discussion is different. I am considering whether I ought to excuse, or overlook, the applicants’ failure to comply with the important duty of full and frank disclosure when applying for leave to apply for judicial review on an ex parte basis. Even if the Dependant Visa Application is to be remitted to the Director for fresh consideration, the realistic position, I believe, is that it is highly likely that the Director would reject the application, having regard to the following matters:-
69.I consider that I am entitled, and ought, to take into account the realistic likely outcome of the 1st applicant’s Dependant Visa Application if it is to be remitted to the Director for fresh consideration when deciding whether to exercise my discretion not to discharge the leave granted, or to re-grant the leave, to apply for judicial review notwithstanding the applicants’ failure to comply with the duty of full and frank disclosure. In so doing, it is not necessary for me to reach the further conclusion that the outcome is “inevitable” as submitted by Mr Chang. 70.Having regard to the importance of upholding the duty of full and frank disclosure and the high likelihood that the 1st applicant’s Dependant Visa Application would be rejected even if it is to be remitted to the Director for fresh consideration, I consider that the right course to take would be to set aside the leave granted to the applicants to apply for judicial review. Delay 71.The above conclusion makes it unnecessary for me to consider the further question of whether the leave granted to the applicants to apply for judicial review ought to be set aside on the ground of delay. I shall nevertheless indicate my views briefly in the event that there should be an appeal against this judgment to the Court of Appeal. 72.As mentioned in paragraph 98 of my earlier judgment in BH, I consider the following factors to be most relevant:-
73.The delay here of over 17 months is obviously a very substantial one. 74.In relation to the reason(s) for the delay, part of the delay (up to 27 January 2014), according to the applicants, is explained by the time taken to apply for and obtain legal aid. It is, however, well established that the mere fact that legal aid or pro bono assistance is not available is generally not to be regarded as a sufficient basis for an extension of time; it is only one of the factors in the court’s consideration of whether there are good reasons to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014), at paragraph 27 and 28 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014), at paragraph 29 per Au J; Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1) per G Lam J. 75.In any event, even if the delay up to 27 January 2014 should be disregarded, no good explanation has been given for the further delay up to 19 September 2014 (ie the date of the application for leave to apply for judicial review). I do not consider the fact that senior counsel was only assigned on 25 April 2014 to be a good explanation for the delay. The legal and factual issues raised in the present case are, in my view, relatively straight forward and do not require the Form 86 to be drafted by senior counsel. 76.As for the merits of the application, for the reasons stated above, I consider that the Director misapplied, or misconstrued, the Policy, but I have also come to the conclusion that there is a high likelihood that the 1st applicant’s Dependant Visa Application would likely be rejected even if it is to be remitted to the Director for fresh consideration. 77.Lastly, as for the public interests involved in having the point of law arising in the application resolved by the court, as mentioned in paragraph 106 of my earlier judgment in BH, I understand that the Policy is being applied by the Director on a daily basis, and the proper interpretation of the Policy has potential application to a large number of applicants for a dependant visa. The fact that by the time of the hearing of the present application, the issue of law involved had already been determined twice by the Court of First Instance in BI and BH should not be taken against the applicants. The position would be different if the present application was made after the delivery of the Court of First Instance’s decision in BI on 10 December 2014. 78.Overall, I consider that the substantial delay, the absence of any good or reasonable explanation for the delay after the granting of legal aid, and the likely rejection of the 1st applicant’s Dependant Visa Application even if it is to be remitted to the Director for fresh consideration outweigh the other factors in favour of granting an extension of time. I would therefore set aside the leave granted to the applicants to apply for judicial review. Disposition 79.For the reasons given above, I set aside the leave granted on to the applicants to apply for judicial review, and dismiss the present application for judicial review. 80.I make an order nisi that the applicants shall pay the respondent’s costs of this application, to be taxed if not agreed. The applicants’ own costs are to be taxed in accordance with legal aid regulations. 81.Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.
Mr Philip Dykes, SC, instructed by Daly & Associates, assigned by Director of Legal Aid, for the 1st and 2nd applicants Mr Jonathan Chang, instructed by Department of Justice, for the respondent [1] The photocopying charge was HK$112.2, at the rate of HK$1.1 per photocopy as stated in the Immigration Department’s letter dated 10 March 2014. |
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