“AH” v. DIRECTOR OF IMMIGRATION

HCAL 32/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 32 OF 2015

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J U D G M E N T

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INTRODUCTION

1.  I have before me:-

(1) an application by the applicant for an extension of time (“the Extension Application”) to apply for leave to apply for judicial review of a decision made by the Director of Immigration (“the Director”) dated 1 August 2013 (“the Decision”) confirming his earlier decision dated 14 August 2012 to refuse the applicant’s application made on 29 July 2010 for entry for residence in Hong Kong as a dependent of his wife (“the Dependant Visa Application”); and

(2) an application for leave to apply for judicial review of the Decision (“the Leave Application”) in the event that the Extension Application is granted.

2.  The application for leave to apply for judicial review was made on 2 March 2015, which was some 19 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.

3.  On 22 April 2015, this court, upon consideration of the papers lodged on behalf of the applicant, directed that there be an oral hearing to consider (i) the Extension Application, and (ii) the Leave Application, including the question of whether any leave that might be granted should be limited to any particular ground(s), and that the Director be given notice of the oral hearing and be at liberty to appear to oppose the applications.

4.  The following evidence has been placed before the court:-

(1) the 2^nd affirmation of the applicant dated 2 March 2015;

(2) the affirmation of Cheung Yau Leung, senior immigration officer, dated 9 October 2015; and

(3) the 1^st affidavit of Manisha Roshendri Leonie Wijesinghe, a paralegal in the employ of Daly & Associates (“D&A”), dated 22 October 2015.

Brief background facts

5.  For the purpose of the present applications, I need only refer to the following brief background facts.

6.  The applicant was born in Comilla, Bangladesh, on 1 January 1976.

7.  The applicant’s wife, a Hong Kong Permanent Resident, was born in Hong Kong on 11 August 1978.

8.  According to the applicant, he used to be a businessman, buying garments and electronic items sourced from Hong Kong and Mainland China and selling them in Bangladesh.  The applicant also involved himself in politics, and was a worker of the Bangladesh Awami League (“the Awami League”).  During the period from 2002 to 2006, the Bangladesh Nationalist Party (“the BNP”), being the rivals of the Awami League, was the primary political party in power in Bangladesh.  In about 2006, members of the BNP asked the applicant to contribute a large sum of money as a donation, which was refused by the applicant.  For this reason, he was physically threatened and persecuted by members of the BNP, the details of which are not necessary to be set out in this decision.

9.  The applicant came to Hong Kong on 6 October 2006 and was given a limit of stay for 14 days, expiring on 21 October 2006.  He has overstayed in Hong Kong since that date.

10.  On 19 October 2006, the applicant made a refugee claim to the UNHCR.

11.  On 20 June 2007, the applicant surrendered himself to the Immigration Department.

12.  On 22 June 2007, the applicant was charged with the offences of (i) using a false travel document, and (ii) making a false statement to an immigrant assistant when seeking to enter Hong Kong on 30 September 2006.  As a matter of fact, his entry to Hong Kong on that occasion was refused on grounds of doubtful intention of visit and inability to account for his lengthy stay in Hong Kong.

13.  The applicant admits to having used a false identity to travel to Hong Kong since 2002, with the attempted entry to Hong Kong on 30 September 2006 being the last occasion on which he used the false identity.

14.  By a letter dated 27 June 2007 which was received by the Director on 3 July 2007, the applicant made a torture claim.

15.  On 27 July 2007, the applicant pleaded guilty to, and was convicted of, both of the aforesaid charges and was sentenced to 12 months’ imprisonment for each charge, the two sentences being ordered to run concurrently.

16.  On 6 December 2007, the Immigration Department served on the applicant a Notice of Consideration of Deportation Order together with an explanatory note.  The applicant objected to the proposed deportation and filed grounds against the making of the proposed deportation order.

17.  On 18 February 2008, the applicant was discharged from prison and was transferred to the Immigration Department for detention under section 32 of the Immigration Ordinance.  On 20 May 2008, the applicant was released on recognizance.

18.  On 26 February 2009, the applicant married his wife, they having first met each other in June 2008.

19.  On 29 July 2010, the applicant through his former solicitors, Messrs B Manek & Co (“Manek”), submitted the Dependant Visa Application.

20.  On 14 August 2012, the Director rejected the Dependant Visa Application, essentially on the ground that he did not satisfy the “no record known to his detriment” requirement, that being a reference to his criminal convictions mentioned in paragraph 15 above.

21.  On 13 October 2012, Manek on behalf of the applicant requested the Director to reconsider the decision to reject the Dependant Visa Application.

22.  On 1 August 2013, the Director informed Manek that the decision to reject the Dependant Visa Application was maintained.

23.  On 16 October 2014, the applicant’s non-refoulement claim was rejected.  On 27 October 2014, he lodged an appeal to the Torture Claim Appeals Board against the rejection of his non-refoulement claim.

24.  On 2 March 2015 the applicant made the present application for leave to apply for judicial review of the Decision.

25.  On 27 March 2015, the applicant’s appeal to the Torture Claim Appeals Board was heard.  On 24 August 2015, his appeal was dismissed.

The reasons for the delay

26.  The Leave Application was made outside the limit of 3-months for making the application under Order 53, rule 4(1) of the Rules of the High Court. Accordingly, the applicant requires an extension of time under that rule.

27.  In the written submissions of Mr Philip Dykes SC (for the applicant) dated 3 November 2015, the applicant’s delay in making the Leave Application is divided into 3 periods:-

(1) for the period from 1 August 2013 to 2 October 2013, it is said that the applicant was preparing to let D&A make an application for legal aid;

(2) for the period from 2 October 2013 to 21 January 2015, it is said that the application was with the Director of Legal Aid; and

(3) for the period from 21 January 2015 to 2 March 2015, it is said that the Order 53, rule 3 application and the anonymity application were being prepared.

28.  It can be seen immediately that the bulk of the delay occurred during the second period.  The following events occurred during that period of time:-

(1) On 2 October 2013, the applicant (through D&A) submitted the applicant’s legal aid application with a supporting letter.

(2) On 10 January 2014, legal aid was refused and the applicant immediately lodged an appeal against the refusal decision.  The legal aid appeal hearing was set down for 10 April 2014.

(3) On 24 March 2014, the Legal Aid Department wrote to the applicant stating that they were re-considering the applicant’s legal aid application and requested him to make a fresh application.

(4) On 2 April 2014, D&A submitted a fresh legal aid application on behalf of the applicant.

(5) On 24 June 2014, legal aid was granted to the applicant.

(6) On 27 and 30 June 2014, D&A saw the applicant to obtain instructions with regard to the choice of counsel.

(7) On 5 August 2014, D&A requested the Legal Aid Department to assign senior counsel, Mr Philip Dykes SC, to act for the applicant.

(8) On 10 September 2014, the Legal Aid Department responded stating that they did not consider there was justification for the assignment of senior counsel in this case.

(9) D&A wrote further letters to justify their request for the assignment of senior counsel. The Legal Aid Department maintained their decision by letters dated 30 September, 28 October and 31 October 2014 respectively.

(10) On 6 November 2014, D&A wrote to the Legal Aid Department informing them that they were challenging the decision not to assign senior counsel.

(11) On 19 November 2014, the legal aid appeal hearing was set down for 30 January 2015.

(12) On 9 January 2015, the Legal Aid Department agreed to assign Mr Dykes to act for the applicant.

(13) On 21 January 2015, the notice of assignment of counsel was issued.

29.  From the above chronology, it can be seen that:-

(1) the period between the date of the applicant’s original legal aid application and the date on which legal aid was eventually granted was a little over 8½ months; and

(2) the further time spent on seeking the assignment of senior counsel was approximately 7 months.

The principles governing extension of time for application for leave to apply for judicial review

30.  The applicable principles have been set out in a recent decision of the Court of Appeal in AW v Director of Immigration, CACV 63/2015 (3 November 2015), at paragraphs 26, 27 and 35 per Kwan JA (with whom Lam VP and Poon JA agreed), as follows:-

“ 26. …Whenever there is a failure to act promptly or within three months, there is “undue delay”. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains “undue delay”. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

35. In my view, the principles and approach stated in Re Thomas Lai, which relate to applications for extension of time for judicial review in general, are no less applicable to cases involving claims for humanitarian protection.  There is no need to create a special category for these cases with principles that are to apply peculiarly to them.  The principles governing the exercise of discretion to extend time for judicial review are well established, and they are meant to be applied flexibly, always with regard to the particular circumstances of each case.  As stated in Re Thomas Lai, this is a multi-faceted exercise.  No comprehensive definition of ‘good reason’ for the purpose of extending time can be given, and the weight to be given to any factor usually to be considered would vary depending on the particular circumstances.”

31.  In the present case, there is no doubt that there has been “undue delay” on the applicant’s part in making the Leaving Application within the meaning of section 21K(6) of the High Court Ordinance, Cap 4.

32.  In what follows, I shall consider whether there is “good reason” for extending the period within which the application shall be made.

Whether “good reason” for extension of time

33.  The following factors are relevant in the assessment of whether there is good reason for granting an extension of time to the applicant to make the Leave Application:-

(1) length of the delay;

(2) explanation for the delay;

(3) merits of the substantive application;

(4) prejudice; and

(5) questions of general public importance.

(i) Length of delay

34.  The delay here of over 19 months is self-evidently a very substantial one.

(ii) Explanation for the delay

35.  As earlier noted, the bulk of the delay in this case, of approximately 15½ months, was caused by the legal aid process.

36.  It is well established that the mere fact that legal aid or pro bono assistance is not available is generally not regarded as a sufficient basis for an extension of time; it is only one of the factors that the court would consider whether there is good reason 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.

37.  In the present case, a good part (of approximately 7 months) of the delay in the legal aid process was taken up by the question of assignment of senior counsel.  In paragraph 20 of the 1^st affidavit of Wijesinghe filed on behalf of the applicant, it is said that “[i]n highsight the request for the assignment of Senior Counsel took an unusually long time.  This had not been anticipated.  It was [D&A’s] experience that the Legal Aid Department had promptly approved requests for the assignment of Mr. Dykes SC in similar cases.”

38.  For my part, I consider that the present application could adequately be dealt with by junior counsel having regard to the nature of the legal and factual issues involved, which seem to me to be relatively straight forward, and the assistance that D&A (who themselves were experienced in the area of immigration law and had dealt with many similar cases in the past) could render to junior counsel should such assistance be required.

39.  But for the decision to seek the assignment of senior counsel, I believe that it should not take D&A more than a few days after the date on which legal aid was granted to identify and approach a competent junior barrister who would be willing and available to act for the applicant in the present case.  In this regard, I am unable to accept the statement made in paragraph 16 of 1^st affidavit of Wijesinghe that “no other junior Counsel, with expertise and experience in handling cases such as that of the Applicant, was, in [D&A’s] opinion, available and willing to appear on behalf of the Applicant.”  I believe that there is a large pool of competent junior counsel in the local Bar who would be ready, willing and able to act for the applicant in this matter.

40.  These having been said, I can readily understand why the applicant and/or D&A would wish to instruct Mr Dykes to act in this matter, having regard to his well known expertise in the area of immigration law and his familiarity with the issues in the present case.

41.  On the whole, while I do not consider the legal aid process to constitute a “good reason” for granting an extension of time to the applicant to make the Leave Application, I would not treat the delay caused by the question of assignment of senior counsel as a factor against the applicant in deciding whether to grant an extension of time.

(iii) Merits of the substantive application

42.  In the Form 86, the applicant raises the following grounds in support of his application for leave to apply for judicial review of the Decision:-

(1) the Director misapplied the Dependant Visa Policy (“the Policy”) as set out in the Immigration Department’s “Guidebook for Entry for Residence as Dependants in Hong Kong” (“the Guidebook”) in construing the requirement of “no known record to the detriment of the applicant” (“the No Record Requirement”) as a ground for refusal rather than as a matter which was relevant to a decision whether to grant, or refuse, an application for a dependant visa;

(2) the Director unlawfully fettered his discretion and/or misapplied the Guidebook by refusing the Dependant Visa Application on the ground that the applicant did not satisfy the No Record Requirement;

(3) the Director failed to take into account relevant considerations, namely, the interests of the Wife;

(4) the Director acted in a procedurally unfair manner by failing to put to the applicant his belief that he could be repatriated to Bangladesh; and

(5) the Decision was unreasonable in the public law sense.

43.  I do not consider it necessary to analyse these grounds in detail in the present application.  The same or substantially the same issues were considered in BI v Director of Immigration, HCAL 174/2013 (10 December 2014), BH v Director of Immigration, HCAL 105/2014 (14 April 2015), and TH and TLH v Director of Immigration, HCAL 114/2014 (20 July 2015).

44.  I consider that the applicant has good grounds to apply for judicial review of the Decision on the basis of (1) and (2), but not (3), (4) or (5), above.

(iv) Prejudice

45.  As mentioned in paragraph 76 (read together with paragraph 68) of my earlier decision in TH and TLH, when considering the Extension Application, the court is entitled ask whether, if the Dependant Visa Application were to be remitted to the Director for fresh consideration, it is highly likely that the Director would come to the same conclusion and reject the application.

46.  At the hearing of the present applications, Mr Dykes submitted that I had applied the wrong test in TH and TLH – instead of applying the “highly likely” test I ought to have applied the “inevitability of outcome” test.  Mr Dykes said that the threshold of the “highly likely” test, which was recently introduced in the UK by section 84 of the Criminal Justice and Courts Act 2015, was lower than and/or different from the “inevitability of outcome” test previously applied by the courts, and referred me to an article by Sir Thomas Bingham, “Should Public Law Remedies be Discretionary?” (1991) Public Law 64, at 72-73, to support the proposition that cases which could be disposed of on the ground of “inevitability of outcome” would be of “great rarity”.

47.  Where the court is considering a substantive application for judicial review, the court may refuse to grant relief even if a good ground of judicial review is otherwise made out if, as a matter of substance, the applicant has not suffered prejudice.  See Leung Fuk Wah Oil v The Commissioner of Police [2002] 3 HKLRD 653, at paragraph 76 per Cheung JA (giving the judgment of the Court of Appeal):-

“ Judicial review being a discretionary remedy, if Mr. Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision. This is what happens here. As the judge was not invited to consider the question of discretion, we are entitled to exercise the discretion ourselves. The discretion should be exercised against the granting of any relief. The Commissioner's appeal must be allowed.”

48.  In an earlier part of that judgment, at paragraph 40, Cheung JA also stated as follows:-

“ Judicial review is a discretionary remedy. If the breach of the principle of fairness does not produce a substantial prejudice to the applicant, the court is bound to take this into account in deciding whether relief should be given. This is consistent with the concept that the court should not substitute its own decision for that of the decision-maker.”

49.  Whether the test, in a substantive application for judicial review, should be cast in terms of absence of “substantial prejudice” or “inevitability of outcome” may be a matter of semantics and, in any event, is not a matter that I need to decide in this case.  I am not here dealing with a substantive application for judicial review.  I am considering whether an extension of time ought to be granted to the Applicant to make an application for leave to apply for judicial review notwithstanding the fact that there has been “undue delay” in making the application.  The answer to that question involves an exercise of judicial discretion.  If the court comes to the view that it is high likely that the Director would reach the same conclusion even if the matter were to be remitted to him for fresh consideration, no purpose, or useful purpose, will be achieved by permitting the judicial review to go ahead other than prolonging the applicant’s stay in Hong Kong and incurring more public costs in the whole exercise.  I do not believe it to be right, in such circumstances, for the court to ignore the reality of the situation and exercise its discretion to grant an extension of time.   I remain of the view that the “highly likely” test is an appropriate one to be applied in the present context.

50.  In this case, the Director has, through his officer, stated on oath that the realistic position is that even if the Dependant Visa Application were to be remitted to him for fresh consideration, it is highly likely that he would reject the application, having regard to the following:-

(1) the well-established, stringent, immigration policy being applied by the Director which has been firmly recognized in case authorities;

(2) the Director having taken the view that the applicant’s adverse record involved dishonesty and was serious in nature;

(3) the weight that may be attached to the applicant’s adverse record is primarily a matter for the Director; and

(4) there are no other relevant factors in favour of the applicant which the Director is under any public law duty to consider.

See paragraph 27 of Cheung Yau Leung’s affirmation.

51.  I consider it also to be relevant that:-

(1) the applicant was, in this case, given full opportunities to present his case;

(2) there is no evidence that there is any new matter which the applicant wishes to put before the Director for his consideration in relation to the Dependant Visa Application; and

(3) the Decision is the result of a reconsideration of an earlier decision to reject the Dependant Visa Application, the Director having received further representations made on behalf of the applicant.

52.  If the Dependant Visa Application were to be remitted to the Director for fresh consideration, it would, in my view, be open to the Director to reject it for the reasons stated above.

53.  In all, I accept the Director’s assessment, which I believe represents the realistic position, that if the Dependant Visa Application were to be remitted to him for fresh consideration, it is highly likely that he would reject the application.

54.  In passing, I should add that I do not accept the submission of Mr Jonathan Chang (for the Director) that granting leave to apply for judicial review here would be detrimental to good administration.

(v) Questions of general public importance

55.  The proper interpretation of the Policy is a question of general public importance.  However, that question had been answered by the court before the date of the application for leave to apply for judicial review:  see the decision of Zervos J in BI (10 December 2014). Hence, this is not a factor which can constitute a good reason for granting an extension of time in the present case.

Conclusion

56.  Overall, I do not consider that there is any “good reason” to grant an extension of time to the applicant to make the Leave Application.  In particular, I have come to the conclusion that it is highly likely that the Director would reject the Dependant Visa Application even if the applicant were to succeed in his application for judicial review and the matter were to be remitted to him for fresh consideration, and the Director is entitled to make such decision on the known facts of this case.  In other words, I do not consider that the applicant will suffer any real or substantial prejudice as a result of the refusal to grant an extension of time. For the sake of completeness, I should add that, if I were to accede to the Extension Application, I would grant leave to the applicant to apply for judicial review of the Decision limited only to the grounds mentioned in paragraph 42(1) and (2) above.

57.  Accordingly, the Extension Application and Leave Application are dismissed.  I make no order as to costs.

58.  Finally, it remains for me to thank counsel for the helpful assistance that they have rendered to the court.