FUNG ELVIRA BINAG v. THE SECRETARY FOR HOME AFFAIRS

HCAL 139/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 139 OF 2013

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D E C I S I O N

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A. INTRODUCTION

1. On 16 October 2013, this court granted ex parte leave to the applicant to challenge two relevant decisions.  The first decision (“the 1^st Decision”) is that of the Community Care Fund Secretariat (“the Secretariat”) dated 19 December 2011, refusing the applicant’s application for the one‑off allowance for new arrivals from low-income families under the Community Care Fund (“CCF”).  The second decision (“the 2^nd Decision”) is that of the Appeal Group for the Community Care Fund Allowance for New Arrivals dated 24 April 2012, upholding the 1^st Decision.

2. In about June 2011, the CCF set up a programme (“the Programme”) to “provide new arrivals from low-income families who have entered Hong Kong for settlement with additional resources to facilitate their adaptation and integration into the community, and better prepare themselves for permanent settlement in Hong Kong”.

3. Moreover, for the purpose of implementing the Programme, the Secretariat devised that for dependent applicants, they would satisfy as “new arrivals” for the purpose of the Programme if they meet the condition (“the Condition”) that the date of their Hong Kong Identity Card (“HKIC”) is on or after 1 April 2005, ie, less than seven years before the eligibility date of 31 March 2012.  In other words, the Secretariat has decided to adopt the issuance date of the HKIC to assess whether a dependant applicant is a “new arrival” for the purpose of the Programme.

4. The applicant was one of those dependent applicants under the Programme.

5. She is a Philippine national and first came to Hong Kong in 1983 to work as a foreign domestic helper.  To comply with the Registration of Persons Ordinance (Cap 177) (“RPO”), she applied for and was first issued a HKIC in November 1983.  In July 2001, she married a Mr Fung (after having a long relationship with him since 1995 and having given birth to a son of him in 1998).  After a number of unsuccessful applications for a dependent visa, she applied (with legal aid) to judicial review the Director of Immigration’s refusal of her dependant visa application in about June 2010. Leave was granted to her judicial review application in September 2010. Eventually, the Director of Immigration approved her dependant visa application in April 2011[1].

6. After the grant of the dependant visa, she has continued to remain in Hong Kong and, in accordance with the RPO applied for the issue of a HKIC and changing her name from “Binag, Elvira C” to “Fung, Elvira Binag”.  In making that application, she also reported that she had already lost her previous HKIC and applied for a replacement identity card.

7. Her application for the allowance under the Programme was refused because she did not meet the Condition since she was first issued a HKIC in 1983 as mentioned above.

8. Although the applicant in her Form 86 raises a number of grounds in support of the intended judicial review, leave was granted only in relation to three grounds.  They can be summarised as:

(1)   The respondent failed to adhere to its published policy (which the applicant says did not contain the Condition) since the Condition has never been published (paragraphs 51 to 54 of the Form 86);

(2)   The respondent has fettered its discretion by adopting the Condition as a blanket requirement (paragraphs 61 to 66 of the Form 86); and

(3)   The respondent has failed to provide any reasons for the adoption of the Condition as an eligibility criterion under the Programme (paragraphs 73 to 75 of the Form 86).

9. On 20 December 2013, the respondent took out a summons seeking to set aside the ex parte leave on the basis (a) of delay and that no extension of time should be given to the applicant to apply for judicial review, and/or (b) that the grounds in support of the judicial review are in any event not reasonably arguable.

10. This is the hearing of the summons.

B.    DELAY

11. As repeatedly emphasised by the court, the primary requirement of O 53 r 4(1) of the Rules of the High Court (Cap 4A) is promptness of an applicant to take out a leave application for judicial review.  The requirement of promptness has a sound basis in public policy.

12. Thus, a failure to act promptly, and in any event within three months as required under the rule constitutes itself undue delay.  The court may refuse permission to grant leave unless it considers that there are good reasons for extending the period.  Further, even if it considers that there are good reasons, it may still refuse to grant leave if it believes that the granting of the relief sought would be likely to cause hardship or prejudice or would be detrimental to good administration.  See: Law Chun Loy v Secretary for Justice (unreported, HCAL 13/2005, 26 October 2006) at paragraphs 5-12 per Hartmann J (as he then was); Magapower Garments Ltd v Director-General of Trade and Industry (unreported, HCAL 3199/2001, 4 March 2002, Chu J) at paragraph 26.

13. As described by Hartmann J in Law Chun Loy, supra, at paragraph 13: any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: “sleep on your rights and, even if your case is meritorious, you may find the gates locked against you”.

14. In the present case, the applicant was notified of the 2^nd Decision on 24 April 2012.

15. It is her case that she did not know that she could apply for judicial review against those Decisions until November 2012, when her husband read on the newspaper about the case of Nanik Darwati v Secretary for Home Affairs[2]. In Darwati, an applicant was granted legal aid to challenge a decision refusing to grant that applicant the allowance under the Programme.  The applicant says it was by then she came to know that she might challenge the Decisions by way of judicial review.

16. The applicant therefore in November 2012 applied for legal aid to take out a judicial review against the Decisions.  Legal aid was refused on 21 December 2012.

17. She then sought help and assistance from the Society for Community Organisation          (“SCO”) (a NGO) to enquire about ways to appeal against the refusal of grant of legal aid.  On 31 December 2012, she took out a legal aid appeal.

18. The legal aid appeal was allowed on 6 May 2013, and legal aid certificate was issued on 15 May 2013.

19. On 13 June 2013, counsel was assigned to the applicant.  The applicant made a request for personal data to the Immigration Department on 27 June 2013.  The applicant then also made a request for personal data to the Secretariat.  She received the requested personal data respectively on 16 August and 6 September 2013.

20. She filed her Form 86 and made an application for leave to apply for judicial review on 13 September 2013.

21. In light of the above history, Mr Suen for the respondent submits that there is a delay of some 17 months for the applicant to take out the judicial review leave application since the date of the 2^nd Decision.

22. Even if one is to discount the 3 months limit provided under O 53 r 4(1), there is also at least a 13‑month delay.  In the premises, unless the applicant provides good reasons for the delay (and the burden is on her to so satisfy the court), no extension of time should be granted.

23. Ms Leung for the applicant submits that the following constitute good reasons for extension of time:

(1)   The applicant was initially ignorant that there existed the remedy of judicial review to challenge the Decisions. This is particularly understandable, as her humble and uneducated background underlies her ignorance.  That provides a good explanation for the initial delay before she took out legal aid application.

(2)   However, once she was aware of the existence of that remedy in November 2012 (from reading the case of Darwati), she had promptly applied for legal aid (by way of the initial application and the subsequent appeal).  When legal aid was eventually granted, she and her legal advisers then prepared for and pursued the application for judicial review vigilantly.  Therefore, apart from the initial delay as explained above, she had pursued the application promptly by taking necessary or reasonable steps to do so.

(3)   Further, there are good merits in the judicial review (as leave has been granted), and the granting of the relief sought would not be detrimental to good administration.

(4)   When all these are looked at in the round, extension of time should be granted in the present case.

24. With respect to Ms Leung, I am not persuaded. My reasons are as follows.

25. First, I do not accept that ignorance of the existence of the remedy of judicial review itself in the circumstances of the present case constitutes a good explanation for the delay:

(1)   Generally, ignorance of the law is not regarded as a reasonable excuse for delay.  See: Tsang Loi Fat v Sun Fook Kong (formerly known as Sung Foo Kee Ltd) [2011] 4 HKLRD 344 (CA), at paragraph 11(b) per Cheung JA.

(2)   Moreover, it is now well established that even if there is a subsequent change in the law which has rendered a legal challenge by way of judicial review in relation to a relevant subject decision permissible, that by itself is not a good reason or excuse for delay and to justify an extension of time[3]. In other words, if an applicant who did not take out an application for judicial review at the relevant time because the law as it stood at that time was against it, a said subsequent change in law in his favour still would not provide him with a good excuse for the delay.  In the premises, in my view, it is a fortiori that a mere ignorance of the availability of the avenue of judicial reviewto challenge a relevant decision does to by itself cannot constitute a good excuse.

(3)   The position can also be tested this way: as fairly accepted (I think) by Ms Leung for the applicant, if a claim of an ignorance of the time limit as imposed by the law cannot by itself constitute a good excuse of delay, it defies logic that an ignorance of the existence of the availability of judicial review then constitutes a good reason.  The two scenarios are both premised on an ignorance of certain areas of the law and do not, in my view, have any material distinction for the purpose of seeing whether they constitute a good excuse for the delay in non-action.

(4)   I therefore do not accept that her claim of ignorance without more constitutes a good excuse for delay and justification for extension of time.  In the premises, the personal background of the applicant in the present case does not take the matter any further, as Ms Leung is relying on the background to support the claim that the applicant was genuinely ignorant of the availability of judicial review as a remedy.  Quite to the contrary, the history of her personal background as summarised above shows that she is not ignorant of the availability of the procedure of judicial review under Hong Kong’s legal system, as she had in fact made use of that (and with legal aid) to challenge the Director of Immigration’s decision to refuse her dependant visa very recently in 2010.  One must therefore look at her claim of ignorance of the availability of the remedy in the present case in that context.  Given that she knew about the existence of the procedure and remedy of judicial review, all she is saying at the highest is only that she did not know specifically that she could also seek to challenge the Decisions by way of judicial review.  In that respect, it is pertinent to note that there is nothing to show that she had at least tried to make some enquiries with others (such as SCO, from which she had sought assistance after the initial refusal of her legal aid application) to see whether she could challenge the Decisions by way of judicial review.  This in my view further renders her claim that she was ignorant of the availability of judicial review to challenge the Decisions less of an excuse for the delay.

26. Second, I also do not accept that the applicant’s application for legal aid and subsequent effort to pursue the case in the present circumstances justify an extension of time.

27. As a start, it is pertinent to note that, as observed by the Chief Justice in Lam Sze Ming v The Commissioner of Police[4], 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. Although the said observation was made in the context of an application for extension of time to appeal to the Court of Final Appeal from a dismissal of a judicial review, the principle applies equally in an application for extension of time to apply for leave for judicial review.  Cf: Tsui Kin Kwok Johnnie, supra, at paragraph 33.

28. Moreover, as this court said in Mui Mei Fung v Secretary for Justice for Commissioner for Labour (unreported, HCAL 145/2013, 16 January 2014) at paragraph 29, in any event, an application for legal aid is only but one of the factors that the court would consider as to whether there are good reasons to justify an extension of time.  In particular, the court will still have to see in detail whether the effort of an applicant (and her legal advisers if and when so represented) to pursue the case justifies an extension of time.  See also: Re Ho Mei Ling [2011] 6 HKC 1, at paragraphs 79-111 per Lam J (as the learned VP then was).

29. Bearing the above observations in mind, in the present case, where the applicant was already late and out of time when she became aware of the availability of judicial review as a remedy to specifically challenge the Decisions, it must be more incumbent on her to take and pursue the case urgently and vigilantly.

30. This, I do not think she can be regarded as having so acted.  Given that she was already out of time in November 2012, there are no good reasons why she did not take out the leave application (even if to act in person) first and promptly, but instead waited to apply for legal aid.  And after having been refused initially, she continued to choose to wait until she could hopefully successfully appeal against the refusal of legal aid.  This must be considered also in the context that, as I said above, the non‑availability of legal aid is generally not a sufficient excuse to justify an extension of time[5].

31. Third, I have also taken into account Ms Leung’s emphasis on the merits of the applicant’s judicial review.  In particular, Ms Leung says given that leave has been granted on those grounds, the court has at least come to the view that they are reasonably arguable with a realistic prospect of success.

32. It must of course be noted that leave was granted on an ex parte basis.  Ms Leung should also recall that this court was initially doubtful of the merits of all the grounds set out in the Form 86, in particular in light of this court’s earlier decision in Darwati[6]. The court therefore fixed an oral hearing (as requested by the applicant in the Form 86 in the event where the court was inclined not to grant leave on papers).  Leave was eventually granted after the hearing on some but not all the grounds, and (Ms Leung should also recall) not without some reservation.

33. For the present purposes, Mr Suen for the respondent has also made some substantial submissions in his skeleton saying that those grounds are not reasonably arguable.  Ms Leung has of course replied to those submissions in her skeleton.  Suffice for me to say that after looking at these submissions, I am of the view that the merits of those grounds (where leave has been granted) are not that strong so as to overweigh or tip my above consideration of the applicant’s lack of good explanations for the delay and insufficient effort in pursuing her case.  I accord thus little weight to the merits of the applicant’s grounds of judicial review in considering whether extension of time should be given.

34. For all the above reasons, I come to the clear view that the applicant has not shown any good reasons for an extension of time.  I would therefore refuse to grant an extension of time to the applicant to apply for judicial review.

35. In coming to this conclusion, it is not necessary for me to consider whether an extension of time would cause prejudice or would be detrimental to good administration.  As noted by Chu J (as she then was) in Megapower Garments Ltd v Director-General of Trade and Industry, supra, at paragraph 26: “…Unless and until the applicant has shown good reasons for the delay, the question of prejudice or detriment to good administration does not arise for consideration.”

36. However, if it had been necessary for me to consider that as well, I would have also accepted that an extension of time would cause prejudice or would be detrimental to good administration:

(1)   I accept the respondent’s evidence that the Programme should have been completed and closed by the end of 2013, as by then all the applications that had been made under the Programme would either have been processed (whether approved or rejected) or have expired[7].

(2)   Upon the said completion of the Programme, the respondent would and should[8] return the unused sum under the Programme of some $298m to the Government’s pool of general revenue.

(3)   Thus, if extension of time is granted to the applicant, it would prevent the completion of the Programme and the return of the said unused sum of some $298m to the Government.  This per se is detrimental to good administration and is caused by the delay in the applicant’s application.

(4)   Further, the evidence shows (which I accept) that once so returned, the sum (together with the general revenue) would earn interest at between 5% to 6% per annum, while if it remains with the CCF, it would earn an interest rate between 0.8% to 1.84% per annum.  There is thus on average a difference of some 3% per annum in the interest rate that could be earned by the two pool of funds.  In the circumstances, the unused fund from the Programme could earn an extra $745,000 per month as interest if it is returned to the general revenue of the Government.

(5)   If extension of time is granted to the applicant to challenge the Decisions, the respondent could not then treat the Programme as completed and would be unable to return the unused sum to the general revenue.  The Government would therefore suffer prejudice in its inability to earn the extra interest as mentioned above[9].

(6)   It is also undesirable and to certain extent impracticable to (as suggested by the applicant) set aside certain parts of the unused sum to be returned to the general revenue first.  This judicial review challenges in effect the validity of the adoption of the Condition as a guideline to decide who is eligible to apply for the allowance under the Programme. If the applicant is successful, the respondent would be unable to predict with a degree of reasonable accuracy on whether, and if so how many of, the other applicants who have been rejected would apply to challenge those decisions[10].

37. In the premises, it would have been a fortiori for me to refuse to grant an extension of time in the present case.

C.    CONCLUSION

38. For all these reasons, I refuse to grant an extension of time to the applicant to apply for judicial review.

39. I therefore allow the respondent’s application in the summons and set aside the ex parte leave originally granted to the applicant to apply for judicial review.

40. As to costs, I further order that (a) costs of the respondent’s application be to the respondent, to be taxed if not agreed, (b) there be no order as to costs of the applicant’s ex parte leave application, and (c) all the applicant’s own costs be taxed in accordance with legal aid regulations.

41. Lastly, I also thank counsel for their assistance.