KARLO JOANANI DAUZ v. DIRECTOR OF IMMIGRATION

HCAL 86/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 86 OF 2008

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J U D G M E N T

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The application

1.  This application for judicial review is brought by Mr Dauz, a Philippine national.  Mr Dauz sought permission from the Director of Immigration, (the Director), to change his immigration status to enable him to take up employment work as a missionary for the Love of Jesus Mission Church, Hong Kong Limited (the Church).

The background

2.  Mr Dauz first came to Hong Kong in September 2006, and again in October 2006.  On a third visit to Hong Kong on 20 October 2006, he was permitted to remain as a visitor until 23 October 2006.  On that day he lodged the application with the Director to change his status.

3.  Initially insufficient information was submitted with the application and, despite reminders by the Director, no further information was supplied.  In late December 2006, the application was treated as cancelled.

4.  On 10 January 2007, the Church resubmitted the application.  The Director considered the application and by letter on 15 February 2007, the Church was informed that the application was refused.

The Policy

5.  The evidence establishes that under the existing immigration policy the factors relevant in considering the application of a person seeking to enter Hong Kong include the following:

(a)  whether the person possesses special skills, knowledge or experience of value to Hong Kong and which is not readily available in Hong Kong;

(b)  whether the job can be filled locally; and

(c)  whether it is justified for the employer to bring in expatriate staff.

The grounds for refusal

6.  The Director was not satisfied that the application met these elements of the criteria.  The key points upon which the Director relied were:

(a)  =the Church was not sufficiently established to justify importing expatriate staff because:

(i)  =the Church was a small-scale church with a membership of only 100;

(ii)  =the Church did not occupy its own premises, and the tenant recorded in the tenancy agreement produced was not the Church;

(iii)  =the Church had no staff;

(iv)  the Church had no bank account;

(b)  the church was not sufficiently financially sound to justify importing expatriate staff because:

(i)  unaudited financial statements for the period July-December 2006 reflected a monthly income ranging between $25,300 and $53,700;

(ii)  the salary offered to Mr Dauz of $15,600, on average cost 50% of the Church’s monthly income.

(c)  there was no evidence that any attempt had been made to recruit for the post locally, and no indication that the post could not be filled locally;

(d)  although the Church claimed to be a charitable organisation entitled to a tax exemption under s 88 of the Inland Revenue Ordinance, there was no evidence to substantiate the assertion;

(e)  Mr Dauz’s qualifications and working experience did not indicate that he possessed special skills, knowledge or experience of value to Hong Kong, and not readily available in Hong Kong.

The first reconsideration

7.  On 23 February 2007 the Church requested the Director to reconsider the application and submitted further information.  That information was considered and on 16 August 2007, the Church was informed that the refusal decision still stood.

8.  In particular, the Director took into account the following:

(a)  no new information concerning the financial status of the Church was submitted;

(b)  there was no new information concerning the qualifications of Mr Dauz, and a course stated to have been undertaken by Mr Dauz had already been taken into account.

The second reconsideration

9.  On 10 April 2008, the Church requested the Director to reconsider the application again, and submitted further information.  On 7 May 2008, the Director informed Church that refusal was maintained.  The following matters were taken into account:

(a)  although now contending it had 148 members, the Director had been unable to verify that membership, and remained of the view the Church was small-scale;

(b)  the financial status of the Church was unstable with a negative balance recorded;

(c)  there was no new information concerning Mr Dauz.

The grounds for review of the decisions

10.  Ms Chow says first that no grounds of relief are stated in the Notice of Application for Judicial Review, (Form 86A), and says that Mr Dauz cannot rely on any grounds not set out in the notice: O 53 r 6(1) and see Hong Kong Civil Procedure § 53/14/51.  That is strictly correct, but by O 53 r 6(2) I may at the hearing permit an applicant to amend his grounds.  I bear in mind that Mr Dauz is not legally represented.  There is no suggestion that there is any prejudice to the Director.

11.  Ms Chow says, and Mr Dauz accepts, that the grounds upon which he challenges the refusal of the Director are:

(a)  Mr Dauz was appropriately qualified;

(b)  of the church is sufficiently established and qualified;

(c)  there is no security objection, neither is there any record that Mr Dauz has committed any serious crimes;

(d)  on the evidence Mr Dauz will not become a burden to Hong Kong;

(e)  the discrepancies in the papers relied upon by the Director arose as a result of confusion on the part of the Director in relation to the documents submitted.

I treat these grounds as being an allegation that the Director has failed to properly consider the information submitted to him, and that the decision is Wednesbury unreasonable.

12.  Mr Dauz also considers that the Director has discriminated against both him and the Church in the following ways:

(a)  he has treated evangelical pastors/missionaries in the same way as Anglican or Catholic priests, when they are quite different;

(b)  by comparing the Church financially with Anglican or Catholic churches he has treated the Church less favourably;

(c)  as the members of the Church are residents of Hong Kong they are entitled to have a Christian worker in Hong Kong.

In support of these contentions Mr Dauz refers to Article 32 of the Basic Law and the right of freedom of religion.

Is the application out of time

13.  Pursuant to O 53 r 4, an application for leave to apply for judicial review must be made within three months of the decision to be challenged.  But that three-month period is not a time limit, because the application must also be made promptly.  There may be circumstances in which even if an application is made within the three-month period, the court will hold that it has not been made promptly.  This is not such a case.

14.  Ms Chow complains that the application is out of time, arguing that it has not been filed until 16 months after the first decision was made refusing the application. 

15.  The original application to the Director was made on 23 October 2006, but lapsed for want of information.  It was treated as resurrected on 10 January 2007, when information was supplied and was refused on 15 February 2007.  Further information was submitted by the Church and the first reconsideration was requested on 23 February 2007.  The decision to refuse the application was confirmed by the Director on 6 August 2007.  On 10 April 2008, further information was submitted and reconsideration requested for the second time.  On 7 May 2008, the application was refused for a second time.

16.  The application for judicial review was not filed until 18 August 2008, a little over three months after the final decision, but 16 months after the original decision. 

17.  The court will not permit an applicant to “resurrect” an old decision, simply by asking the Director to reconsider the application, and thereby artificially bring himself within time, by relying upon the reconsideration decision.  This is not a case of “resurrection”, but a case in which additional information has actually been submitted, and each application treated as a new application by the Director.

18.  Consequently, I am satisfied that time should not start to run from the time of the first decision.  Time did start to run however, on 7 May 2008, and the application for leave was not made until 18 August 2008, 11 days after the expiry of the three-month period.  Although technically out of time, the delay is not such as to cause any prejudice, and I do not reject the application for judicial review on a time basis.

The power of the court on judicial review

19.  It is quite clear that on an application for judicial review the court cannot substitute its decision for the decision of the Director.  In relation to immigration applications the position is appropriately set out by Stock J in Santosh Thewe v Director of Immigration [2000] HKLRD 717 at 723 A-D:

“The applicant has no right in law to remain in Hong Kong as a resident and the decision is one within the discretion of the Director…….The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one.  It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case.  To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality not with merits.  Where determination of facts are left to the Director and the facts sweep across a range, from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely.”

20.  The judge went on to say, at p 723E-F:

“Where a person seeks to obtain permission to reside in Hong Kong, the burden is on him to show such facts as might persuade an immigration officer that his circumstances are such as to fall within a policy adopted by the (Director).  It is not for the (Director) to have to show that an applicant or an application falls outwith such a policy.”

Discussion

21.  The financial information presented to the Director was sparse, unaudited, and unsupported by bank statements, because the Church did not have a bank account.  While assertions were made as to a regular but very modest income, it was certainly open to the Director to conclude that the financial information submitted was insufficient to satisfy him that the Church was not sufficiently financially sound to employ expatriate staff.  That is particularly so when the financial information submitted showed the Church to be in deficit.

22.  It may well be that if the Church had operated its accounts through a bank account, with proper accounting information in which the expenditure and income were verifiable, the Director might come to a different conclusion.  But on the evidence, the decision of the Director in saying that he could not be satisfied on this matter, is justifiable.

23.  An assertion was made to the Director that nobody could be found locally to fill the job.  But there was no evidence given to the Director as to the steps taken in that respect.  Again, on the evidence, the decision of the Director is justifiable.

24.  When the application was originally made the Church asserted to 102 members.  A list of names were supplied, but the list contained merely names and no other details which might enable the Director to undertake any verification.  On the second reconsideration application a further list of 46 names was supplied, bringing the claim of the Church to a membership of 148.  The list of 46 additional names were supplied with Hong Kong identity card numbers in relation to those names.  A record check undertaken by the Director demonstrated that only 70% of those 46 were Hong Kong residents.

25.  And unverifiable list, and a deficient list, are matters upon which the Director was entitled to rely for his conclusion that the Church was of a small-scale, and was not well established in Hong Kong.

26.  Consequently, it may well have been, on the facts presented to the Director by the Church, open to the Director to come to the conclusion that the Church was sufficiently established, that it had sufficient funds and that was in the interests of Hong Kong that an expatriate missionary should be brought in to serve the Church.  But it was plainly open to the Director to conclude that none of those criteria were established.

27.  On the evidence that was presented both to the Director and to the court, I cannot say that the Director has acted perversely or unreasonably in reaching his decision.  He has plainly considered all of the relevant matters, and weighed them appropriately in the balance, and reached a conclusion.  He has not acted unlawfully in so doing.  The decision was once the Director to reach, and having concluded that he has considered all of the relevant matters, it is not open to me to substitute my own view in place of that of the Director

28.  I am satisfied that there has been no confusion on the part of the Director in assessing the papers submitted by the Church.  If there was any confusion, it was on the part of the Church in failing to properly understand the Director’s policy and requirements, and in failing to submit to the Director information to meet that policy.  That is not a basis upon which the Director’s decision may be challenged.

The discrimination argument

29.  While I understand the argument made by Mr Dauz on discrimination, it cannot be said that the decision to refuse his permanent residency in Hong Kong impacts or infringes upon the rights of any Hong Kong residents to enjoy freedom of religious belief.

30.  Article 32 of the Basic Law provides:

“Hong Kong residents shall have freedom of conscience.

Hong Kong residents shall have freedom of religious belief and freedom to preach and to conduct and participate in religious activities in public.”

The Hong Kong Bill of Rights provides in Article 15(1):

“Everyone shall have the right to freedom of thought, conscience and religion.  This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief and in worship, observance, practice and teaching.”

31.  Two matters may be noted. 

32.  First, the rights given by the Basic Law are rights given to Hong Kong residents.  Consequently, Mr Dauz may not rely upon the Basic Law in support of his application, simply because he is not a Hong Kong resident. 

33.  Second, the provisions of s 11 of the Hong Kong Bill of Rights Ordinance make it quite clear that the rights given thereunder may not be called in aid by Mr Dauz, as he presently has no right to enter and remain in Hong Kong.  Section 11 provides:

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

34.  The Church is already in existence, and its members, Hong Kong residents, are not in any way restricted from continuing to practice their religious beliefs as they have done in the past.  It may be that they may consider that they will be better served with a resident missionary, but that is not the issue.  They are free to continue to enjoy freedom of religious belief, even if Mr Dauz does not come to Hong Kong permanently.

35.  Far from being “forced to leave Hong Kong” as Mr Dauz asserted, it is plain that the Director has not insisted upon Mr Dauz leaving.  He would have been perfectly entitled to do so but has been reasonable and generous in the circumstances.

36.  I have considered carefully Mr Dauz’s submission that the Church has been compared unfavourably with the Anglican and Catholic churches.  First, there is nothing whatsoever in the papers to justify a submission that such a comparison was even made.  The determination of the Director that the Church was small in scale was made simply upon the basis of its membership size and was entirely justified.  The issue of a comparison between the established churches and the Church was raised only by Mr Dauz in his affidavit in support of the application.  I am satisfied that such a comparison did not form part of the Director’s consideration.

37.  For these reasons the application for judicial review must be dismissed.

Costs:

38.  Having dismissed the application for judicial review, I invited the Director to consider whether, in the circumstances, he wished to pursue the order for costs that would usually follow upon dismissal of the application.  I asked the Director to consider the fact that the Church was small-scale, that it did appear to be a genuine religious organisation, and with very limited funds, not entitled to legal aid, in which Mr Dauz had undertaken the proceedings himself.

39.  Ms Chow informed me, having taken instructions, that the Director pressed for a costs order upon the basis that he if did not do so he would be in a difficult situation, and unable to protect the public purse, in any application with a religious connotation.

40.  I have to confess that I found the Director’s reluctance to exercise his discretion in the circumstances difficult to follow.  This was not merely a case with “a religious connotation”, but an application by a genuine religious organisation that was plainly impecunious.  I would have thought the Director would have been capable of separating such a case from one in which there was an unjustified religious connotation.

41.  But that said, the discretion in the court in respect of costs is a discretion which must be exercised judicially.  None of the factors referred to by at Atkin LJ, (as he then was) in Ritter v Godfrey [1920] 2 KB 47, which might otherwise entitled me to deprive the Director of his costs, were present.

42.  In those circumstances there must be an order that Mr Dauz must pay the Director's costs of the application, to be taxed on a party and party basis.