CHAN MEI YEE v. DIRECTOR OF IMMIGRATION

HCAL 77/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.77 OF 1999

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D E C I S I O N

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Application to strike out

1. The Respondent applies to strike out the Notice of Motion on the ground that it discloses no reasonable claim in public law. Two English authorities are relied upon : R. v. Secretary of State for the Home Department, Ex parte Herbage (No.2) [1987] 1 QB 1077; and R. v. Secretary of State for the Home Office, Ex parte Dew [1987] 1 WLR 881.

Procedure inappropriate for judicial review

2. In my view, the view of Purchas LJ in the first case was expressed by way of observation and not in the context of an actual striking out application. McNeill J's approach in the second case is not one I would adopt. The textbook of Supperstone & Goudie on Judicial Review, 2nd Edn., at p.18.6 was also relied upon. This carries the matter no further as it relied on the case of Ex parte Dew.

3. In my view, Order 53 is a set of self-contained rules regulating the procedure relating to judicial review. Leave to apply for judicial review is usually granted ex parte. The respondent is entitled, after leave has been granted, to apply to set aside the leave. If this is not successful, the judicial review will proceed to a full hearing.

4. In this case, the Applicant drafted her own application for leave for judicial review. In view of the rather limited information disclosed in her application, I listed the application for hearing with notice being given to the Respondent. I granted leave after hearing both parties, including the Respondent who opposed the application. Prior to this case, leave to apply for judicial review had been granted on the same basis as this one. The Respondent had not relied on the argument that is now being relied upon in this application. The Respondent had the opportunity to advance the case but failed at the leave stage, then matters concerning the merits of the application should be fully vented at the hearing of the judicial review.

Early determination and finality in administrative law

5. It is not correct, and I do not consider it is the intention of Order 53, that interlocutory application which is directly concerned with the merits of the case should be lodged or considered by the Court. In matters affecting the decision of the Government, it is wrong that a determination should be made on the basis of an interlocutory application which is subject to further interlocutory appeals. Early determination and finality is something that should be aimed for in administrative law.

Application dismissed

6. In the circumstances, I would dismiss the application without hearing the merits of the application.