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HCMP 1288/2009
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 1288 OF 2009
(on an intended appeal from HCAL No. 63 of 2009)
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BETWEEN
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JAIME CASABAR FERRER JR. |
Applicant |
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and |
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IMMIGRATION DEPARTMENT |
Respondent |
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Before : Hon Hartmann JA in Chambers 7 (Open to Public)
Date of Hearing : 22 July 2009
Date of Ruling : 22 July 2009
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R U L I N G
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1. This is an application for leave to appeal made pursuant to O.59, r.2B of the Rules of the High Court, Cap. 4.
2. The history of the matter is as follows. By letter dated 30 July 2007, the Director of Immigration informed the applicant that his application for a visa to work in Hong Kong had been refused. The applicant had sought a visa so that he could take up a pastoral position in Hong Kong with a Christian Ministry. The letter from the Director advised the applicant that:
“Under existing policy a person seeking to enter the HKSAR for employment should, among other things, possess special skill, knowledge or experience of value to and not readily available in the HKSAR. Besides, other criteria to be considered include whether the job can be filled locally we will also take into consideration, among other things, whether it is justified for the employer to bring in an expatriate staff. Having considered the information made available and all the circumstances of the case, we are not satisfied that Mr Ferrer’s case meets the aforesaid criteria.”
3. The applicant asked if the Director would review the decision to refuse his work visa and this was done. However by 12 March 2008 correspondence had come to an end in the sense that a final decision had been made refusing the applicant a work visa and he had been placed on terms for his departure from Hong Kong.
4. The applicant thereafter sought to judicially review the decision of the Director of Immigration. However, he did not lodge his application for leave to apply for judicial review until some 15 months later.
5. I have today asked the applicant if there was any pressing reason for that delay. The applicant has not been able to state any single pressing reason.
6. It has been explained to the applicant that the law in respect of delay is specific. O.53 r.4(1) of the Rules of the High Court directs that:
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”
7. It is to be remembered that a judicial review is a review of ongoing administrative powers and good public administration requires decisiveness and finality unless there are compelling reasons to the contrary. The public interest, that is, the interest of all Hong Kong citizens, in good administration requires that public authorities should not be kept in suspense as to the legal validity of decisions that they have reached in exercise of their decision-making powers for any longer than is necessary.
8. Accordingly, in the present case, while the applicant did have the right to challenge the legality of the Director’s decision, he had the responsibility to do so promptly and within three months unless there were compelling reasons otherwise. As I have said no compelling reasons have been articulated.
9. It must also be said that the application for leave to judicially review the decision of the Director was made on the basis not that the decision was unlawfully made but on the basis that, on the merits, that the applicant was qualified for the job for which he had sought permission to remain in Hong Kong. It has been explained to the applicant that judicial review is not an appeal. This Court is not asked to reconsider the merits of the decision made by the Director. This Court’s jurisdiction is limited to considering the legality of the process by which the Director came to his decision. In this regard, it is clear that nothing in the applicant’s original application for leave to apply for judicial review has set out any grounds for challenging the lawfulness of the Director’s decision.
10. On the basis that the original application was manifestly out of time and on the basis that it did not set out a reasonably arguable case to the effect that the decision of the Director was unlawful, I can see no grounds upon which the decision of the judge at First Instance can be challenged. That being the case, the application for leave to appeal the decision of the First Instance Judge must be refused.
11. I have informed the applicant that he does have the right to seek an application for leave to appeal before two judges.
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(M. J. Hartmann)
Justice of Appeal
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Applicant in person
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