ALI TARIQ v. DIRECTOR OF IMMIGRATION

CAMP 18/2018

[2018] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 18 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 837 OF 2017)

____________

____________

_____________________

J U D G M E N T

_____________________

Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.  This is an application for extension of time to appeal against the Decision of Chow J (“the Judge”) dated 24 January 2018 refusing leave to the applicant to apply for judicial review in respect of the decision of the Director of Immigration (“the Director”) made on 10 October 2017 (“the Decision”) rejecting his application for an extension of stay in Hong Kong.   The applicant requested for reconsideration on 22 October 2017.  After reconsideration, the Director maintained the previous decision and refused the applicant’s application on 26 October 2017.  As the applicant’s limit of stay was already expired, he was requested to leave Hong Kong before 2 November 2017.   The applicant issued his Form 86 on 2 November 2017.

2.  The applicant has not filed any written submissions despite the Court’s direction.  In the circumstances, we consider it appropriate to determine the application without a hearing on the basis only of the materials now before the Court, pursuant to Order 59 rule 2A(5)(a) of the Rules of the High Court, Cap. 4A.

FACTUAL BACKGROUND

3.  According to the Form 86, the ground relied upon by the applicant was that he had been in Hong Kong since 2011 on the basis of a dependant’s visa with his wife Madam Sadia Jabeen as his sponsor.  According to the applicant, in around 2015, he had some quarrels and misunderstandings with his wife and thereafter, his wife wrote to the Director withdrawing her willingness to be the sponsor.

4.  The applicant applied for extension of stay as dependant of his wife in August 2017. His application was refused by the Director.

5.  After reviewing the materials carefully, the Judge refused to give leave to apply for judicial review for the following reasons set out in the CALL-1 form :

“ The application for leave to apply for judicial review is dismissed on the ground the application is not reasonably arguable. The Applicant’s existing dependant visa already expired on 16 August 2017. The Director of Immigration’s exercise of discretion not to grant to the Applicant an extension of stay in Hong Kong cannot be challenged save on the ground of illegality, irrationality or procedural unfairness. No proper ground has been disclosed in either the Notice of Application for Leave to Apply for Judicial Review dated 1 November 2017 or the Applicant’s Affirmation made on 2 November 2017 which would justify the court reviewing the decision of the Director of Immigration not to grant to the Applicant the extension of stay sought. Further, the Applicant has been given reasonable time to make arrangements for departure from Hong Kong.”

DISCUSSION

6.  Pursuant to Order 53 Rule 3(4) of the Rules of the High Court, Cap 4A, the applicant had 14 days to lodge an appeal against the Judge’s refusal of leave to apply for judicial review, which expired on 7 February 2018.  On 23 February 2018, the applicant took out the present summons seeking leave to appeal out of time.

7.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospects of the intended appeal; and (4) the prejudice to the respondent if an extension of time is granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016).

8.  In this case, the applicant was late by 17 days.  In the applicant’s affirmation of 23 February 2018, he explained that he was not legally represented at the hearing for the leave application and he was not aware of the 14-day time limit for filing an application for leave for judicial review.  He claimed that he was not informed of the Order made by the Judge until 9 February 2018.  According to the court record, the CALL-1 Form and the Order were sent to the applicant by registered post on 25 January 2017.  As the delay is not excessively inordinate, we are prepared to excuse the delay.  However, as explained below, the main difficulty in this application is the lack of merits in the applicant’s intended appeal.

9.  The applicant set out two grounds in the Draft Notice of Appeal complaining that the Judge was wrong as a matter of law for not having applied (i) the principle of irrationality and (ii) the principle of procedural unfairness to the decision made in the CALL-1 Form.

10.  We have reviewed and considered the decisions made by the Director and have come to the view that the applicant’s case was duly considered and carefully determined.  The Director explained in the Decision that with the existing immigration policy, a person may be allowed to take up residence in Hong Kong as a dependant provided that, among others, he has an eligible sponsor in Hong Kong.  The Director would only extend the stay if he is satisfied that the circumstances have not changed since the original approval for residence was granted.  The applicant’s application was refused as there was a substantial change in circumstances since the wife was no longer an eligible sponsor to support the applicant’s application.

11.  As the applicant could not bring himself within any established policy for the grant of permission to stay or remain in Hong Kong, the Director has a wide residual discretion in refusing the applicant’s application.  We do not see any basis to support the applicant’s contention that the Director’s decision was irrational or Wednesbury unreasonable that there was any procedural unfairness.

12.  We note that the applicant mentioned in his Affirmation of 23 February 2018 that since his arrival in Hong Kong in 2011, he has not returned to his home country.  He considered Hong Kong as his home, has a job here and has no criminal record. He claimed that to remove him from Hong Kong would have a huge effect on his life and well-being.

13.  In BI v Director of Immigration [2016] 2 HKLRD 520, the Court of Appeal has explained and stressed that the Director of Immigration has always adopted very restrictive and stringent immigration policies and practices. The Court of Appeal construed the Dependant Visa Policy at Section F of the judgment, at paragraphs 105 to 107 :

“ 105. It had been explained in the long line of cases approved by the Court of Appeal in Safder Tehseen v Permanent Secretary of Security that the courts are not equipped to exercise immigration control in place of the Director. This court should take this opportunity to reiterate categorically and firmly that as a matter of Hong Kong law the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director.

106. Arguments in courts in cases of this nature usually concentrated on the personal and family situations of the applicants. However, in terms of immigration control, there are many socio-economic as well as security factors which the courts cannot even begin to grapple. It would also involve consideration of the long term population strategy for Hong Kong. On the facts of a particular case, it can be tempting for a judge to find the personal or family situation of an applicant deserving of sympathy and conclude that the application should be accorded with exceptional treatment. A judge succumbing to such temptation would, in effect, usurp the role of the Director in the administration of immigration control and inevitably make a decision at the risk of placing priority on the personal and family situation of an applicant over other highly relevant factors with which the court is not familiar and not in a position to assess properly. As such, it is against proposition (2) set out in [92] above.

107. In our judgment, the court should acknowledge that immigration control involves decisions of high political as well as socio-economic contents which should be accorded with a broad margin of discretion in accordance with well-established principles of judicial review. In R v Immigration Appeal Tribunal ex parte Singh, Lord Bridge also accepted this proposition.”

14.  In our view, the Director had fully reviewed the applicant’s case. We are satisfied that the Decision is well justified. There is no reasonable basis to challenge the decisions of the Director.  We agree with the Judge that leave to apply for judicial review should be refused.

15.  For these reasons we do not see any prospect of success in the intended appeal.  Though the delay can be excused, we would not grant extension of time as the application has no merit at all. The summons of 23 February 2018 is dismissed accordingly.

16.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.