TATIANA CHINKO v. DIRECTOR OF IMMIGRATION

HCMP 1634/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1634 OF 2006

(ON AN INTENDED APPEAL FROM HCAL NO. 45 OF 2005)

______________

______________

_______________

J U D G M E N T

_______________

1.  This is the applicant’s application for leave to appeal out of time and for stay of execution pending the disposal of the appeal.

2.  The applicant was married to one Mr Ho, one week after coming to Hong Kong from Russia as a visitor.  In August 1999, she was permitted to remain in Hong Kong for 12 months as Mr Ho’s dependent.  The permission was later extended to 19 January 2003.  On 18 January 2003, she applied for a further extension.  By then, Mr Ho had commenced divorce proceedings against her and by letter of 22 April 2003, he informed the respondent that he was no longer prepared to sponsor the applicant.  On 23 June 2003, her application for a further extension was refused.  In July 2003, the court made a decree absolute in respect of the divorce between Mr Ho and her.

3.  In the meantime, the applicant left Hong Kong on 29 April 2003.  She said because of SARS.  But it does not matter.  She was perfectly entitled to go where she pleased.  On 1 November 2003, she re-entered Hong Kong on a visitor’s visa.  She was granted a 14 days’ stay, later extended to 16 December 2003.

4.  On 7 November 2003, she re-applied for a dependent visa.  Three days later, she and Mr Ho re-married.  Mr Ho informed the respondent that he would again sponsor her.

5.  By then, Mr Ho was unemployed and relied on CSSA’s support of $1,605 per month.  He was in no position to support the applicant.  Accordingly, on 24 December 2003, the respondent refused the applicant’s application for permission to stay as an applicant.

6.  By the judgment dated 29 December 2005, Reyes J dismissed the applicant’s application for judicial review against the respondent’s decision on 24 December 2003 to refuse the extension of her stay in Hong Kong as a dependent of her husband, Mr Ho.

7.  Briefly stated, it was her case that she was entitled to unconditional stay in Hong Kong by December 2003, but that the respondent in refusing an extension on 24 December 2003, failed to consider that entitlement.

8.  However, as the facts show, the applicant was divorced from Mr Ho in July 2003, and that by an earlier letter of 22 April 2003, Mr Ho had informed the respondent that he was no longer sponsoring her application.  Her application for an extension dated 18 January 2003 was refused on 23 June 2003.

9.  This application for judicial review relates, however, to the respondent’s decision of 24 December 2003, which refused her application dated 2 November 2003.

10.  As the judge has explained, between 1983 and July 2003, the respondent operated a policy (“the old policy”), whereby the dependent spouse of a Hong Kong permanent resident would be eligible for a grant of unconditional stay after 3 years’ residence in Hong Kong.

11.  It is important to note in any event that by 7 November 2003, the old policy was no longer in force.  In other words, dependent spouses would no longer be given an unconditional stay after 3 years.

12.  So the old policy could not possibly apply to the applicant.

13.  So far as the 23 June 2003 decision is concerned, as the judge explained, and I agree, the respondent cannot be said to have acted irrationally in deciding to reject the applicant’s application.

14.  The applicant failed to appeal in time and now applies for an extension of time.  The reason for the delay given by her is that she was not aware of the procedures.

15.  That is not an acceptable excuse, even if that is the true reason for the delay.

16.  But in this case it does not matter, had I thought that there was a realistic chance of success, I would have granted an extension of time even though the delay was long, approximately 6 months and inexcusable.

17.  That is because the appeal involves the right of the applicant to remain in Hong Kong.  When the court is dealing with matters of human rights, such as the right of the spouse of a Hong Kong person to stay in Hong Kong, unless the facts are truly exceptional, I would be inclined to grant an extension of time, if there are reasonable prospects of success on appeal.

18.  However, an important matter which the court takes into account when deciding whether or not to give an extension of time, is the chance of the appeal succeeding.  See Chiu Siu Chung v Yu Yan Yan Angela [1993] 1 HKLR 225 at 227–228.

19.  Here I am satisfied that the appeal has no realistic chance of success so for that reason I would not give leave.