XCHRX CHAN HON LIT AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL642/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.642 OF 2001

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D E C I S I O N

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1. There are two summons before the court. Firstly, the applicant seeks leave to amend the Form 86A which sets out the grounds for seeking a judicial review. Secondly, the applicant seeks a direction that three deponents in the respondent's case attend the hearing of the judicial review for the purpose of being cross-examined on their affirmations. The second summons also seeks discovery of certain parts of documents which have been "blacked out" by the respondent.

2. The case itself concerns an application for judicial review to quash three decisions of the Director of Immigration by which the 2nd applicant's application for a dependant visa was refused. The 2nd applicant had come to Hong Kong from Vietnam on a 14-day visa on 26 September 1999. She had never met the 1st applicant beforehand. On 4 October they got married and applications for a dependant visa were commenced the next day. After a lengthy investigation the application was refused on the following grounds :

"a. Having taken into consideration the information made available and the circumstances of your case, I am not satisfied that your marriage is a genuine one in that I do not believe that you intended to live together permanently with Mr. Chan Hon Lit as husband and wife. Furthermore, I am not satisfied that your marriage is not a marriage of convenience entered into to enable you to gain residency in the HKSAR; and

b. I am not satisfied that Mr. Chan Hon Lit is financially capable to support you and able to provide suitable accommodation for you to stay in the HKSAR."

3. On 25 April 2001 Hartmann J granted leave to apply for a judicial review. The notice and grounds had been filed on 17 April 2001. The written grounds is a 16-page document which sets out the factual background and lists four bases upon which judicial review is sought. Two come under the heading of "unreasonableness" and two of "failure to take into account relevant considerations". The proposed amendment is a 11-page document which sets out a further four grounds of bias and/or apparent bias, improper behaviour, errors of law and illogicality.

4. The two summons before the court, namely for leave to amend and for discovery and leave to cross-examine witnesses, were, somewhat surprisingly set down for two full days. Mr William Marshall, SC, for the respondent produced a document of over 50 pages which he called a skeleton argument. He also provided the court with two bundles of authorities, comprising the full reports of 62 cases. Mr Marshall accepted the court's criticism that it was plainly not a skeleton, it was a living fully fleshed body.

5. Having said that, the court had had the opportunity of carefully considering this written submission which dealt with all the points raised by Mr Kat for the applicants in both his succinct written skeleton and his oral submission to the court. Having considered it both before and since the hearing and in the light of the applicant's arguments, I am satisfied that it provides a complete, albeit lengthy, answer to these applications. For the purpose of this interlocutory application, I consider it appropriate to give the court's decision extremely briefly. There are two reasons for so doing. Firstly, a full and detailed analysis of all the principles and arguments canvassed by Mr Marshall and Mr Kat could trespass upon issues which a different trial judge may have to address at the substantive hearing. Secondly, these summons can be answered simply.

6. Having heard both counsel, I am certain that the justice of this case will be fully met on the basis of the original unamended Form 86A. A prima facie case of bias, apparent bias and procedural mishaps is not made out. The case has already become clouded by peripheral issues which if investigated further would merely serve to deflect the trial judge from the true and straightforward issues in the case. The application to amend is therefore dismissed. I dismiss it, however, with one reservation as follows. In so far as the proposed amendments refer to matters which are relevant to the original grounds pleaded, then those matters may be canvassed before the trial judge. The original Form 86A is not a straightjacket. Disputed matters of fact which are specifically referred to in the proposed amendments may well be relevant to the issues of "unreasonableness" and "failure to take into account relevant considerations" as originally relied on. Thus, I direct that issues under the heading of "illogicality" may be advanced at trial. I do not consider it necessary for the applicant to draft a further amendment to deal with this (although he may think that it prudent to do so out of an abundance of caution). In view of these proceedings neither party nor the court will be taken by surprise should such submissions be made. Whether or not any particular matter comes within this heading will be a matter for the trial judge to decide. To be clear, the amendments I do not allow are those relating to bias, apparent bias and procedural mishap or impropriety.

7. In many ways, the 2nd summons falls with the first. However, it does merit separate consideration and I have given it separate consideration. I dismiss the application to cross-examine the three deponents. I am satisfied it is not necessary for the fair disposal of this case. In judicial review cases oral testimony and cross-examination is very much the exception rather than the rule. I find there to be no circumstances in this case which merit it. Moreover the primary reason for cross-examination is in relation to allegations of bias which I have rejected. Finally, I make no order for discovery, for the same reasons.

8. On the question of costs, the applicant has had a small measure of success in widening the basis of the application. However, the reality is that these summons have been unsuccessful. I therefore make a costs order nisi in the respondent's favour. However, I make the following final direction on costs. The respondent's 62 authorities came to about 1,000 pages. At least three separate bundles were prepared. This was, on any view excessive, on an application to amend a Form 86A. $10,000 will be taxed off the respondent's photocopying costs.