NISA AZIZAN AND ANOTHER v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 203/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 203 OF 2015

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J U D G M E N T

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INTRODUCTION

1.  By their Form 86 filed on 16 October 2015, the applicants applied for leave to apply for judicial review of the following decisions:-

(1)  the decision of the Secretary for Security (“the Secretary”) made on or about 1 August 2014 (“the Secretary’s Decision”) dismissing their petition under Article 48(13) of the Basic Law against the decision of the Director of Immigration (“the Director”) dated 6 July 2012 refusing their applications for extension of stay; and

(2)  the decision of the Director made on or about 20 August 2015 (“the Director’s Decision”) not to reverse his previous decisions made on or about 23 March 2012 and 6 July 2012 respectively refusing their applications for extension of stay.

2.  The applicants accept that in so far as the Secretary’s Decision is concerned, the leave application was made out of time and thus an extension of time to make the application is required (see paragraphs 49 to 68 of the Form 86).

3.  On the other hand, the applicants contend that in so far as the Director’s Decision is concerned, the leave application was made within time and no extension of time to make the application is required (see paragraph 48 of the Form 86).  For this reason, the applicants have not put forward any ground in the Form 86 to justify any extension of time to make the application for leave to apply for judicial review of the Director’s Decision.

4.  Upon consideration of the applicants’ ex parte application for leave to apply for judicial review and in view of the stance taken by the applicants on the issue of extension of time, I gave (inter alia) the following direction on 5 November 2015, namely, that there be a rolled up hearing of:-

(1)  the application for an extension of time to apply for leave to apply for judicial review of the Secretary’s Decision;

(2)  the application for leave to apply for judicial review of (a) the Secretary’s Decision (in the event that an extension of time is granted), and (b) the Director’s Decision; and

(3)  the substantive application for judicial view, in the event that leave to apply for judicial review is granted.

5.  Shortly before the commencement of the hearing on 7 April 2016, Mr Francis Ngan (on behalf of the applicants) submitted a “reply on behalf of the applicants”.  In that document, Mr Ngan maintained that the applicants did not require any extension of time to apply for leave to apply for judicial review of the Director’s Decision, but indicated that the applicants would, if necessary, apply for leave to amend the Form 86 to challenge the Director’s earlier decision made on 8 July 2012.  The applicants would plainly need an extension of time to enable them to challenge that earlier decision of the Director.  In this judgment, I shall also deal with the question of whether leave should be granted to the applicants to amend the Form 86A and grant an extension of time to permit them to challenge the Director’s decision made on 8 July 2012.

BACKGROUND FACTS

(i)    Family background and immigration status

6.  The 1^st applicant was born in Pakistan in 1967.

7.  In or about 1980, Mr Abdul Haleem (“the Husband”) first came to Hong Kong as a dependant.  He was subsequently granted extensions of stay in Hong Kong, and had since been residing and working in Hong Kong.

8.  In 1986, the 1^st applicant married the Husband in Pakistan.

9.  The 1^st applicant and the Husband had 2 sons, namely, (i) the late Mr Muhammad Hafeez (“the Elder Son”), and (ii) the 2^nd applicant, who was born in 1992 in Pakistan.

10.  In 1998, the Husband obtained Hong Kong permanent resident status.

11.  On 14 April 2010, the 1^st and 2^nd applicants’ applications to stay in Hong Kong as dependants of the Husband were approved.  On 29 May 2010, they arrived in Hong Kong and were given a limit of stay up to 29 May 2011.

12.  Within 2 months of their arrival in Hong Kong, the Elder Son and the Husband passed away in July 2010 shortly one after the other, both in Pakistan.  As a result of the death of the Husband, it is clear that the applicants could no longer stay in Hong Kong as his dependants. 

(ii)   The Director’s 1^st Decision dated 23 March 2012

13.  After the death of the Husband:-

(1)  the 2^nd applicant started to be employed as a “salesman”[1] by a wholesaler and producer of Indian spices in Hong Kong called “Al-Salaasil Trading Company” (“the Employer”) on 1 September 2010; and

(2)  the 1^st applicant started to be employed as an “Indian/Pakistan Spice Mixer-Supervisor” by the Employer on 1 March 2011.

14.  In the Form 86, it is said that these were highly skilled positions requiring practical knowledge of Indian spices and their application in authentic Indian cuisine, and that the applicants played core roles in the business of the Employer.

15.  By a letter dated 21 May 2011 (8 days before the expiry of their limit of stay), the 1^st and 2^nd applicants, through their solicitors, Messrs Jal N Karbhari & Co (“JNK”), made applications (“the 1^st Applications”) to the Director for extension of stay in Hong Kong.  In that letter, which set out the basis of the application, JNK stated that “the 1^st applicant [had] a steady job in Hong Kong with very reasonable salary” and she was “provided with free accommodation by her employer”. No particular ground was raised on behalf of the 2^nd applicant in support of his application for extension of stay.  There was also no suggestion at that time that the applicants or either of them would face any particular hardship or difficulty should their applications be refused and they be required to return to Pakistan.

16.  Further information was subsequently sought by the Director and provided by or on behalf of the applicants in relation to the 1^st Applications. On or about 16 January 2012, the applicant’s former counsel, Mr James Collins, sent to the Director written submissions in support of the 1^st Applications.  In those submissions, the applicants suggested, for the first time, grounds which subsequently gave rise to their non-refoulement claims.  It was said in those written submissions, amongst other things, that:-

(1)  In a society whose custom and practices were strictly Islamist, an unsupported widow was always in a difficult position, unless she had sons on whom she could depend for a home and sustenance.

(2)  The 1^st applicant had a bitter estrangement from the Husband’s family, and the 1^st applicant’s in-laws had refused to have her or her son (ie the 2^nd applicant) in their home.  This rejection had arisen because of a dispute which existed between the Husband and his brothers and parents about some family property.  “The in-laws believed that the 1^st Applicant had put her late husband up to contest this matter and they are deeply resentful of her alleged part in it.  They consider her to be the cause of this disharmony in the family”.

(3)  “… the in-laws have spread rumours that the [1^st applicant] is involved in occult practices – in a word, that she is a witch – and that she preyed on the bodies of her deceased husband and son.”

(4)  “The 1^st Applicant is thus shunned by the in-laws as irredeemably evil person.  She believes that if she returned to her former home village, not only would she be reviled by the family, but by local society generally, so making a normal and acceptable life impossible.  She even fears, not unreasonably in the society which is Pakistan (where, for instance, a daughter may be treated as a prostitute for having a pre‑marital or adulterous liaison), that her late husband’s family might arrange to have her and her surviving son, the 2^nd Applicant, killed.”

(5)  “… the life which [the 1^st and 2^nd applicants] would face back in Pakistan … would be one in which they were at the very least socially ostracised, and at worst one in which their lives would be in danger because of the family vendetta which is being waged against them.”

17.  I have set out the submissions of Mr Collins in some detail because one of the main grounds of Mr Ngan’s argument in support of the present applications is that the Secretary and the Director failed to sufficiently inquire into their non-refoulement claims and dismissed them summarily.  I shall come back to this complaint later when I consider the merits of the present applications.

18.  I should add that the 1^st applicant’s claimed fear that the applicants’ lives might be in danger if they were to return to Pakistan was also mentioned, or alluded to, in Mr Malik’s undated letter and Messrs Yip & Lau’s letter dated 30 July 2015 mentioned below.  It appears, however, that they were simply repeating what was said in Mr Collins’ submissions. In any event, what was stated in those two letters did not go any further than what had already been said in Mr Collins’ submissions.

19.  By a letter dated 23 March 2012, the Director refused the 1^st Applications (“the Director’s 1^st Decision”).  In that letter, the Director stated as follows:-

“[The applicants] were previously approved permission to stay in the HKSAR as dependants of [the Husband]. Since there is a substantial change in circumstances that the sponsor has passed away, [the applicants] are no longer eligible to remain in the HKSAR on dependant status. Based on the available information, we do not find strong compassionate grounds justifying our exceptional consideration on [the applicants’] cases. I regret that [the applicants’] applications are therefore refused.”

(iii)  The Director’s 2^nd Decision dated 6 July 2012

20.  By a letter dated 2 April 2012 from the 1^st applicant and a further letter dated 10 April 2012 from JNK, the applicants requested the Director to reconsider their applications for extension of stay (“the 2^nd Applications”).  In connection with those applications, the applicants produced a number of letters, including (i) a letter from the Consulate General of Pakistan in Hong Kong dated 3 April 2012, (ii) a letter from The Pakistan Association of Hong Kong dated 11 April 2012, (iii) an undated letter from Mr Malik, MH (Coordinator of the Office of the President of the Legislative Council), and (iv) a letter from the Employer dated 25 June 2012, as well as further written submissions from Mr Collins dated 3 July 2012.  The grounds in support of the applications for reconsideration were essentially the same as those relied upon by the applicants in their original applications for extension of stay, save that the Director was specifically requested to consider the applicants’ applications (i) on the ground of considerable hardship which the applicants would face if compelled to return to Pakistan, and (ii) as applications for employment visas (which the applicants complained were not directly addressed by the Director in his earlier decision).

21.  By a letter dated 6 July 2012, the Director refused the 2^nd Applications (“the Director’s 2^nd Decision”).  In that letter, the Director stated as follows:-

“Having examined all available information and considered all circumstances of [the applicants’] cases, we do not find justification warranting the reverse of our decision made on 23 March 2010 to refuse [the applicants’] applications for extension of stay as non-permanent residents in the HKSAR.

In addition, we are not satisfied that [the applicants] possess the relevant working experience to the posts which cannot be readily taken up by the local working force and that the recruitment of expatriate members of staff by [the Employer] is justified.”

(iv)   The Secretary’s Decision dated 1 August 2014

22.  On or about 6 August 2012, the applicants filed a petition to the Secretary against the Director’s 2^nd Decision.  The petition was treated by the Secretary as a petition under Article 48(13) of the Basic Law.

23.  Before the Secretary made his decision on the petition, the Secretary considered (inter alia):-

(1)  the Director’s comments on the petition provided on 8 May 2013;

(2)  the applicants’ responses to the Director’s comments provided on 16 September 2013;

(3)  the Director’s comments on the applicants’ responses provided on 1 November 2013;

(4)  the Director’s clarification to a query raised by the Secretary (namely, the standard of proof adopted by the Director when he considered that the applicants had failed to provide “concrete proof” that they would face difficulties if they were to return to Pakistan), which the Director provided on 7 February 2014 (namely, that he adopted the test of “on a balance of probabilities”); and

(5)  the Director’s clarification on (i) the current immigration status of the applicants, and (ii) in the event that the petition was refused, what actions the Director would take before effecting their removal from Hong Kong, provided on 29 July 2014 in response to a request for further information made on behalf of the Secretary on 28 July 2014.

24.  By a letter to Mr Collins dated 1 August 2014, the Secretary informed the applicants that he decided to uphold the Director’s decision to refuse their applications for reconsideration of extension of stay.

(v)    The Director’s Decision

25.  By a letter dated 30 July 2015, Messrs Yip & Lau (the applicants’ current solicitors) requested the Director to reverse his earlier decisions (ie the Director’s 1^st and 2^nd Decisions).  In that letter, Messrs Yip & Lau informed the Director that the applicants had been granted legal aid to challenge his earlier decisions and the letter was written with reference to “the Pre-Action Protocol for Judicial Review” in force in England and Wales. The grounds put forward by Messrs Yip & Lau in support of their request were substantially the same grounds that had previously been advanced by or on behalf of the applicants.  Messrs Yip & Lau stated that “[the applicants’] case is one of the classic cases in which [the Director] should now grant [the applicants] extension of stay on compassionate and humanitarian grounds]”, and urged the Director to reconsider the applicants’ applications “in order to save public funds and costs.”

26.  By a letter dated 20 August 2015, the Director maintained his previous decisions, stating (inter alia) as follows:-

“Having reviewed all the available information and circumstances of the case, including the grounds put forward by and on behalf of [the applicants] in earlier representations as well as the information recently provided under cover of [Messrs Yip & Lau’s letter] dated 30 July 2015, we cannot find sufficient reason and justification for reversing our previous refusal decision. The Director’s refusal decision previously conveyed by letter of 23 March 2012 and 6 July 2012 still stand.”

27.  On 16 October 2015, the applicants made the present application for leave to apply for judicial review of the Secretary’s Decision and the Director’s Decision.

EXTENSION OF TIME REQUIRED TO CHALLEGNE THE DIRECTOR’S DECISION BY WAY OF JUDICIAL REVIEW

28.  Generally, an application for leave to apply for judicial review of a decision of a public authority must be made promptly and in any event within three months from the date when grounds for the application first arose (Order 53 rule 4(1) of the Rules of the High Court).

29.  An applicant cannot get around or avoid this time requirement by the device of asking the decision maker to “reconsider” his decision by putting forward different arguments or providing additional information, still less by repeating the same arguments or relying on the same information previously advanced in support of the original application.

30.  In Lo Siu Lan v Hong Kong Housing Authority, CACV 378/2004 (17 December 2004), the notice of application in that case was dated 8 December 2004.  The decision under challenge was the decision of the Housing Authority to enter into an agreement for sale with The Link Properties Ltd on 19 November 2004.  That however was not the first in the train of decisions.  The decision of 19 November 2004 was the one identified by the notice of application, but that decision was the last or almost the last in a series of decisions commenced on 24 July 2003 with a publicly announced decision by the Housing Authority to divest itself of certain retail and parking facilities.

31.  On the issue of delay, Stock VP stated the following at paragraph 39:-

“It seems to me that if earlier decisions were challengeable (as to which there is much debate in this case) it is not then open, in the context of a factual matrix such as this, for applicants who could have challenged those earlier decisions, to sit upon their rights with no risk of leave being refused.  Whilst in such a situation the latest decision may itself be amenable to challenge, that is not a fact that is to be looked at in isolation when the court comes to consider the issue of leave and, if leave be given, of relief.  It must be looked at in the round, with due regard of course, as in Burkett, to the nature of the earlier decisions and to the framework as a whole.”

32.  In Super Lion Enterprises Ltd v Commissioner of Rating and Valuation, HCAL 71/2005, 6 October 2006, Hartmann J (as he then was) referred to the above observation of Stock VP and said the following at paragraph 218:-

“A person aggrieved by the decision of a public authority is not able to avoid the problem of delay simply by employing the artifice of asking the public authority to reconsider its decision and then using the refusal, whatever its form, as the decision to be challenged. The principle has been summarised in R. v. Commissioner for Local Administration, ex parte Field [2000] C.O.D. 58, at 60, as follows:

‘Order 53, Rule 4(1) provides that ‘an application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose, unless the court considers that there is good reason for extending the period within which the application shall be made’.  The problem created by that provision was not overcome by writing a fresh letter to the decision maker and thereby obtaining a reply which was then sought to be characterised as a fresh decision.  That would render the provision in the rule wholly ineffective.’”

33.  In Martin Tao Ming Lee v Secretary for Civil Service, HCAL 82/2010 (8 August 2011), the key decision, of the three decisions under challenge, was the 1^st decision of the Secretary for Civil Service conveyed to the applicant on 21 February 2007 requiring him to retire in the public interest.  The applicant did not challenge that decision at that time, and in July 2007, as required, retired from the public service.  He took no further steps in the matter until 17 April 2009, over two years after the 1^st decision, when he purported to file “further representations”, and invited the Chief Executive to reconsider the matter.  That resulted in the 2^nd decision on 19 May 2010.  Subsequent to that, on 1 June 2010, Mr Tao submitted yet further representations leading to the 3^rd decision.  Saunders J held that the delay alone was sufficient to dispose of the application for leave which must be refused.  At paragraph 8 of his judgment, Saunders J stated as follows:-

“The court will not permit an applicant to ‘resurrect’ an old decision, simply by asking the decision maker to reconsider the application, and thereby artificially bring himself within time, by relying upon the reconsideration decision. That is plain from the decision in Lo Siu Lan v Hong Kong Housing Authority CACV 378/2004, (unreported 17 December 2004). Mr Tao cannot assist himself in respect of the delay by relying upon either the 2^nd or the 3^rd decisions. While it may well have been open to Mr Tao to make representations to the CE under the provisions of s 20 PS(A)O, it was open to him to have immediately sought judicial review of the decision that he should retire.”

34.  The same principle has most recently be applied by Deputy High Court Judge Keith in E T Investment Limited v Director of Health, HCAL 13/2015 (3 February 2016).  The following was stated at paragraphs 17 and 18 of his judgment:-

“17. As practitioners in the field know only too well, applications for leave to apply for judicial review have to ‘be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made’: Order 53, rule 4(1) of the Rules of the High Court. The notice of application for leave to apply for judicial review in the present case was filed over 18 months after the warning letter, and almost 10 months after the decision on the ‘review’ of the warning letter. At first blush, therefore, the question is whether there are grounds for extending the period during which the application should have been filed.

18.   Mr Wong argued otherwise.  He pointed to the fact that the application was filed within three months of the decision of the Secretary for Food and Health not to reverse his previous decision that the issue of the warning letter had been justified.  I cannot go along with that at all. It amounts to a contention that the grounds for challenging the warning letter and the decision on the ‘review’ first arose when the Secretary for Food and Health said that the warning letter had to stand unless any new facts came to light.  That is unarguable.  It ignores the fact that the ‘appeal’ to the Secretary for Food and Health was dismissed on 26 September 2014, more than three months before the notice of application was filed.  As Saunders J said in Martin Tao Ming Lee v Secretary for the Civil Service (HCAL 82/2010), the court ‘will not permit an applicant to ‘resurrect’ an old decision, simply by asking the decision maker to reconsider the application, and thereby artificially bring himself within time, by relying upon the reconsideration decision’.  All the more so in a case such as this where the Secretary for Food and Health was simply asked to give detailed reasons for his decision.  In any event, leaving aside the fact that the decisions of the Secretary for Food and Health are no longer challenged, the grounds for challenging the decisions of the Director of Health first arose when those decisions were made.  It may be that you will want to exhaust all your other remedies before you make an application for judicial review, but that goes only to whether your time for doing so should be extended, not to whether you made your application in time in the first place.”

35.  In the present case, Messrs Yip & Lau’s letter dated 30 July 2015 requesting the Director to reverse his earlier decisions made in 2012 was in the nature of a letter before action.  The Director informed Messrs Yip & Lau, by his letter dated 20 August 2015, that he would maintain his earlier decisions.  In my view, it is clear that the key decisions of the Director were made in 2012.  Any application now for leave to apply for judicial review of those earlier decisions would be way out of time.  In my view, the time limit imposed by Order 53, rule 4(1) of the Rules of the High Court for applying for leave to apply for judicial review of the Director’s earlier decisions cannot be circumvented by the applicants’ attempt to generate a fresh decision of the Director through the device of a letter before action.

36.  In all, I consider that the grounds for the application for leave to apply for judicial review of the Director’s Decision first arose in 2012. The present leave application made on 16 October 2015 was outside the time limit imposed by Order 53, rule 4(1) of the Rules of the High Court.

37.  In passing, I should add that it is not necessary, for the present purpose, for me to decide whether the grounds for the application for leave to apply for judicial review of the Director’s Decision first arose on 23 March 2012 or 6 July 2012.  In either case, an application for extension of time to challenge the Director’s Decision by way of judicial review would be required.

PRINCIPLES FOR EXTENSION OF TIME

38.  Order 53 rule 4(1) states as follows:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

39.  Order 53 rule 4(1) should be considered together with section 21K(6) of the High Court Ordinance, Cap 4, which provides as follows:-

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

40.  The relationship between these two provisions has recently been considered by the Court of Appeal in AW v Director of Immigration, CACV 63/2015 (3 November 2015).  At paragraph 26 of that judgment, the Court of Appeal explained that:-

“Whenever there is a failure to act promptly or within three months, there is ‘undue delay’. Even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, nevertheless the delay, viewed objectively, remains ‘undue delay’. The court therefore retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

41.  At paragraph 27 of that judgment, the Court of Appeal endorsed the following principles for the court’s exercise of its discretion whether to grant an extension of time to a party seeking to apply for leave to apply for judicial review:-

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)  Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

42.  In what follows, I shall first consider the merits of the grounds of judicial review raised by the applicants in the Form 86 before turning to consider other factors relevant to the court’s exercise of discretion whether to grant an extension time in the present case.

PRINCIPLES FOR CHALLENGING THE DIRECTOR’S IMMIGRATION DECISIONS

43.  The applicable principles for challenging the Director’s immigration decisions have recently been authoritatively re-stated by the Court of Appeal in BI v Director of Immigration, CACV 9, 103 and 134/2015 (8 March 2016).  At paragraph 92 of that judgment, the Court of Appeal stated as follows (omitting various footnotes):-

“(1) Due to the special circumstances of Hong Kong by virtue of its small geographical size, huge population, its economic and social uniqueness amongst its neighbours in the region, it is necessary for the maintenance of its sustainability to adopt a restrictive immigration policies and practices.

(2) As a matter of law by reason of Article 154(2) of the Basic Law and the Immigration Ordinance, the administration of such policies and practices is in the hands of the Director of Immigration who has been given very wide discretion to discharge a very heavy responsibility. Such a wide discretion is necessary because very often the Director has to make some hard decisions based on such policies and practices, some of which might be regarded by members of the public as tough and unpopular. However, in the discharge of his onerous duty, the Director has to make such decisions in light of the macro circumstances and needs of Hong Kong based on matters and information which could not be fully explained to or understood by the general public.

(3) It is not appropriate for the court to usurp the role of the Director as the court does not and cannot have a macro picture of the overall immigration pressure and the expertise to assess the potential political and socio-economical impact of a shift (no matter how minor it is) in the immigration policy. The court is not equipped with the necessary information nor tasked by the law to carry out the responsibility of the Director.

(4) This does not mean that the Director is above the law in the exercise the power of immigration control. The rule of law manifests itself by the court retaining a supervisory jurisdiction in such exercise of power. The supervisory power is exercised by the court in accordance with well established public law principles by way of judicial review. The court will ensure the Director's exercise of power does not contravene the legal rights of the persons involved. Such rights can be rights protected by the Basic Law, the Hong Kong Bill of Rights or common law. The court can also examine whether the Director exercises the power in accordance with the relevant legislation. The court, as in the present appeals, can examine whether the Director acts in accordance with his own policy instead of misconstruing the same. These are instances of the intervention by the court on the principle of legality. Related to this principle, if the Director fails to take relevant consideration that he is legally required to consider into account, the decision would not be valid. Likewise, if the Director takes into account irrelevant consideration, namely consideration which he legally should not take into account, the decision would again be vitiated. At a later part of this judgment, we shall elaborate on what we mean by legally required to take into account or legally required not to take into account in terms of humanitarian considerations. Further, the court can also intervene if the Director does not act fairly in the decision making process. This is the principle of fairness. The requirement of fairness can call for intervention by the courts when the Director did not exercise independent judgment in the administration of a policy adopted voluntarily by him: C v Director of Immigration. Yet further, in an extreme case where the Director makes a decision which in public law terms can be described as Wednesbury unreasonable, the court can also interfere on the principle of rationality.

(5) A very important consideration in the application of the principle of legality in the Hong Kong immigration context is the immigration reservation in section 11 of the Hong Kong Bill of Rights Ordinance (‘HKBORO’). The immigration reservation provides that as regards persons not having the right to enter and remain in Hong Kong, the provisions in the Bill of Rights do not affect any immigration legislation governing entry into, stay in and departure from Hong Kong or the application of such legislation. This reservation is constitutionally entrenched by Article 39 of the Basic Law : Ubamaka v Secretary for Security; GA v Director of Immigration; Rbani v Secretary for Justice. Absolute non-derogable fundamental rights aside (namely those protected by art 3 of the Bill of Rights), the Director's exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.

(6) As discussed in a long line of cases, the Bill of Rights and the Basic Law do not give an applicant who has no right to stay in Hong Kong any right to pre-empt a decision by the Director in not granting him or her a right to remain in Hong Kong.

(7) The cases also established that a family member (who has the right of permanent residence in Hong Kong) of a person (who has no right to remain in Hong Kong) cannot rely on the family member’s own rights under the Bill of Rights or the Basic Law to require the Director to grant a right to remain in Hong Kong to that other person : Hai Ho Tak v Attorney General; Santosh Thewe v Director of Immigration.

(8)   When an applicant cannot 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 not making a removal order on humanitarian considerations. However, the Director is not obliged to take humanitarian considerations into account though he may do so.  If he did not take such considerations into account, there is no basis for the courts to intervene since in judicial review the courts are only concerned with considerations which the Director is legally bound to consider: Lau Kong Yung v Director of Immigration.  In the discussions below, we shall further address the scope of judicial review if the Director did consider humanitarian grounds.”

44.  At paragraphs 102 to 109 of that judgment, the Court of Appeal further explained the limits of the court’s power to intervene in relation to the Director’s exercise of discretion based on humanitarian considerations (again omitting various footnotes):

“102. …Subject to what we shall say below, we regard ourselves as being bound by the observations in Lau Kong Yung as to the extent to which the courts may intervene over the Director’s exercise of discretion on humanitarian consideration. According to Lau Kong Yung, the Director does not have a duty to consider humanitarian consideration. Thus, if the Director did not take such consideration into account, the courts cannot intervene on the ground that he had failed to have regard to relevant matter in making his decision.

103. However, Lau Kong Yung did not decide what would be the position if the Director did take humanitarian consideration into account…

104. In our judgment, in cases where the Director did give regard to humanitarian considerations, the courts could intervene if there were unfairness in the process. In C v Director of Immigration, Sir Anthony Mason NPJ discussed the role of judicial review and pinpointed the rule of law as its foundation. His Lordship explained the limits of judicial review by reference to separation of power considerations and the requirement of justiciability. He also highlighted that some decisions may be reviewable for procedural fairness but not otherwise.

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.

108. In light of the Appeal Committee's decision in Aguilar Elmedorial v Director of Immigration,we would not rule out completely the possibility of mounting a judicial review based on irrationality (or Wednesbury unreasonableness). However the courts must have regard to the wide discretion of the Director in assessing the merits of such a challenge and humanitarian consideration is only relevant in the context of whether an applicant merits exceptional treatment against a policy of stringent immigration control.

109. In cases where the Director did give regard to humanitarian consideration, it would be unlikely that the Director did not take the relevant consideration into account…  As we shall explain below, the real issue in the present appeals (as in most cases) is whether the applicants could challenge the decisions of the Director in terms of procedural fairness or alternatively Wednesbury unreasonableness.”

PROPOSED GROUNDS OF JUDICIAL REVIEW NOT REASONABLY ARGUABLE

45.  Five grounds of judicial review are mentioned in the Form 86 in support of the application for leave to apply for judicial review of the Secretary’s Decision and the Directors’ Decision.  There is some degree of overlapping amongst those grounds.  In summary, the following complaints have been raised:-

(1)  the Secretary’s failure to discharge his duty to independently consider the merits of the petition;

(2)  the Secretary’s failure to give reasons for his decision;

(3)  the Director and the Secretary’s failure to make sufficient inquiry into (i) the applicants’ non-refoulement claims, and (ii) the applicants’ current employment situation in Hong Kong;

(4)  the Director’s misunderstanding or misapplication of his general employment policy; and

(5)  Wednesbury unreasonableness.

46.  The first complaint (ie, the alleged failure on the part of the Secretary to independently consider the merits of the petition) is unsustainable on the evidence before the court.  It is clear, from the affirmation of Woo Tak Ying (Principal Assistant Secretary for Security) filed on 5 January 2016 and the contemporaneous documents that the petition was successively considered by an Executive Officer 1 of the Security Bureau, a Senior Executive Officer of the Security Bureau, a Principal Assistant Secretary for Security, a Deputy/Acting Deputy Secretary for Security and eventually the Secretary personally, who raised a specific query regarding the “standard of proof” applied by the Director and made the final decision to reject the petition after having received the Director’s response to his query.  The allegation that the Secretary “merely rubber-stamped the Director’s decisions below”[2] is, in my view, completely groundless.

47.  In respect of the second complaint that the Secretary failed to give reasons, it is important to bear in mind that what the applicants were seeking under the petition was an extension of stay to remain in Hong Kong.  They were not resisting any removal order requiring them to leave Hong Kong on the basis of their non-refoulement claims.  In relation to a decision not to grant an extension of stay to a person who has no right to remain in Hong Kong, the decision maker is, generally speaking, not required to give any reason: see BK & CH v Director of Immigration, HCAL 24 & 31/2009 (5 January 2010), at paragraphs 68 to 70 per Andrew Cheung J (as he then was). There is no special circumstance in the present case which would require reason(s) to be given by the Secretary to reject the petition.  In any event, in the circumstances of the present case, it is obvious that the Secretary agreed with the reasons given by the Director in his earlier letters dated 23 March 2012 and 6 July 2012 respectively.

48.  The third complaint has two limbs.  First, the applicants contend that the Director and the Secretary failed to make sufficient inquiry into their non-refoulement claims.  This complaint is not reasonably arguable for the following reasons:-

(1)  It is clear on the evidence of Wong King Man (Acting Assistant Principal Immigration Officer) that the applicants’ non-refoulement claims have not yet been processed or assessed under the Unified Screening Mechanism.  There is no reason to believe that, if and when the applicants formally lodge their non-refoulement claims, those claims would not be processed or assessed in the usual manner.  In this regard, it is important that the applicants were all at material times legally represented by solicitors and counsel and thus would have been advised to formally lodge their non-refoulement claims had they wished to do so.

(2)  In any event, a substantiated non-refoulement claim would not by itself be a ground justifying an extension of stay being granted by the Director.

(3)  On the other hand, if the facts and matters underlying the non-refoulement claims are relied upon by the applicants in support of the contention that the Director should grant to them an extension of stay based on exceptional humanitarian considerations, as pointed out by the Court of Appeal in its recent judgment in BI, “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”, and not for the court (paragraph 105).

(4)  The court’s supervisory jurisdiction over the Director’s exercise of broad immigration discretion based on humanitarian considerations is very limited.  The court may intervene if there was unfairness in the process or, possibly, if the decision can be said to be Wednesbury unreasonable.

(5)  In the present case, there is no basis to contend that there was any unfairness in the process in relation to the Director’s exercise of his immigration discretion based on humanitarian considerations.  Neither can it be said that his decision is Wednesbury unreasonable.  In this regard, it is relevant that a rejection of the 1^st and 2^nd applicants’ applications for extension of stay would not lead to them being returned to Pakistan where, according to the 1^st applicant, there might be danger to their lives.  I would add that there does not seem to be any objective basis or foundation for 1^st applicant’s claimed fear that their lives might be in danger if they were to return to Pakistan.

(6)  The above considerations apply equally to the Secretary’s Decision.

49.  Second, the applicants contend that the Director and the Secretary failed to make sufficient inquiry into their current employment situation in Hong Kong.  This complaint is also not reasonably arguable:-

(1)  As a matter of fact, the Director did inquire into the applicants’ employment situation by his letters dated 30 May 2011 and 30 June 2011 respectively, and the Secretary did ask the applicants to provide their response to the Director’s comments on the petition (which included comments relating to the applicants’ employment situation in Hong Kong).

(2)  As a matter of law, it is for a person seeking to obtain permission to reside in Hong Kong “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”, per Stock J (as he then was) in Santosh Thewe v Director of Immigration [2000] 1 HKLRD 717 at 723. To the same effect is the decision of Yeung J (as he then was) in Krishna Rai v Director of Immigration, HCAL 145/1999 (15 February 2000), at paragraph 41; and that of Au J in Pagtama Victorina Alegre v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraph 214, where the following is stated:

“As this is Ms Comilang’s application for permission to remain, it must be as a matter of common sense and logic for her to put forward all the matters she wished to rely on to support her application, to convince the Director to exercise his discretion in her favour. These matters should include all those which objectively she reasonably could contemplate that may be taken into account by the Director. As observed by Hartmann J in Marilyn G Aringo (unreported, HCAL 96/2004, 5 September 2005) at paragraph 38: ‘A person seeking to live in Hong Kong has the burden of demonstrating why he or she should be allowed to do so. The burden cannot simply be shifted to the Director’. See also Kumari, supra, at paragraph 29; and Sukhmander Singh v Permanent Secretary for Security (unreported, CACV 370/2005, 20 July 2006) at paragraph 18, per Stock JA.”

50.  In respect of the fourth complaint, Mr Ngan did not advance any oral argument at the hearing in support thereof in light of the recent decision of the Court of Appeal in BI, although Mr Ngan made it clear that he would reserve his position on this matter should the present applications go to a higher court.  It is therefore not necessary for me to deal with this ground any further.  For the avoidance of doubt, I would reject it if it were necessary for me to do so.

51.  The last complaint, ie, Wednesbury unreasonableness, is clearly not made out in the present case.  The Secretary’s Decision and the Directors’ Decision are in accordance with the well established strict immigration policy being applied in Hong Kong.  On any view of the matter, it cannot be said that those decisions are beyond what a reasonable decision maker, properly directed on the law and the facts, could reasonably have come to.

52.  In all, I consider that none of the applicants’ proposed grounds of judicial review of the Secretary’s Decision and Director’s Decision is reasonably arguable.

OTHER FACTORS

(i)  Length of delay

53.  The Secretary’s Decision was made on 1 August 2014, and the present application for leave to apply for judicial review of his decision was made on 16 October 2015.  The delay was at least 11.5 months.  In respect of the Director’s Decision, the period of delay is even longer.   On any view of the matter, the delay in applying for leave to apply for judicial review of either decision can only be described as substantial.

 (ii) No good explanation for the delay

54.  In paragraph 27 of Mr Ngan’s skeleton submissions dated 24 March 2016, the following explanation for the delay is offered on behalf of the applicants:-

(1)  The applicants promptly applied for legal aid after the Secretary’s Decision had been communicated to them.

(2)  The Director of Legal Aid took time to consider the legal aid applications.  It is said that the time taken for processing the legal aid applications was beyond the control of the applicants.

(3)  After the grant of legal aid, the applicants’ solicitors needed time to take instructions from the applicants.  It is said that as the relevant letters of the Secretary and Director did not show the substantive reasons for their respective decisions, the applicants’ solicitors had to obtain the applicants’ respective immigration files so that they would be in a position to properly advise and prepare the intended judicial review application.

(4)  Time was taken for re-assignment of counsel.  Also the applicants issued a letter before action asking the Director to reverse his earlier decisions so that litigation could be avoided.

(5)  Lastly, the applicants acted promptly in filing the present judicial review application after the Director’s Decision was communicated to them.

55.  In respect of (1), the first legal aid applications were made on 21 August 2014, some 20 days after the Secretary’s Decision had been communicated to them.  The applicants were, at least up to that time, legally represented by solicitors and counsel.  Even if, as alleged in paragraph 51 of the Form 86, the applicants’ legal representatives ceased to act for them after the Secretary’s Decision, there seems to be no good reason why they did not apply for legal aid immediately after they had been informed of the Secretary’s Decision.

56.  In respect of (2), the letter from the Legal Aid Department dated 6 April 2016 shows that the applicants made their first legal aid applications on 21 August 2014.  Those applications were refused on 28 October 2014 because the applicants failed to respond to requests by the Director of Legal Aid for provision of documents.   The applicants applied for legal aid again on 19 November 2014.  The chronology provided by the Legal Aid Department shows that the Director of Legal Aid had to repeatedly ask or remind the applicants to provide further information or documents.  Eventually, legal aid was granted on 9 March 2015.  The total time taken for processing of the legal aid applications was approximately 6.5 months.

57.  It is well established that 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; it is only one of the factors that the court would consider whether there is good reason to justify an extension of time notwithstanding the delay: see Fung Elvira Binag v The Secretary for Home Affairs, HCAL 139/2013 (10 March 2014), at paragraph 27 and 28 per Au J; Mui Mei Fung v Secretary for Justice for Commissioner for Labour, HCAL 145/2013 (16 January 2014), at paragraph 29 per Au J; Re Thomas Lai [2014] 6 HKC 1, at paragraph 48(1) per G Lam J.

58.  On the materials before the court, it is clear that the delay in the processing of the legal aid applications was at least partly caused by the applicants’ failure to provide information and documents requested by the Director of Legal Aid promptly.

59.  In respect of (3), it is stated in paragraphs 36 and 37 of the Form 86 that Messrs Yip & Lau made a data access request under the Personal Data (Privacy) Ordinance to the Director to obtain the applicants’ immigration files on 2 April 2015, and the Director provided the requested documents to Messrs Yip & Lau on 27 May 2015.  I accept that there is a reasonable explanation for the period of delay from 2 April to 27 May 2015.  I also accept that Messrs Yip & Lau would need some time, say 2 weeks, to take instructions from the applicants on the documents provided by the applicants and generally in relation to the intended application for judicial review.

60.  In respect of (4) and (5), it appears from Messrs Yip & Lau’s letter dated 30 July 2015 that the junior counsel who was originally assigned by the Director of Legal Aid on 1 April 2015 to act for the applicants was appointed senior counsel on 2 May 2015, and therefore new junior counsel was appointed on 9 July 2015.  However, even taking into account the re-assignment of counsel, there was considerable delay afterwards in making the application for leave to apply for judicial review of the Secretary’s Decision.  The factual and legal issues involved in present application are straightforward.  I believe that a reasonably competent junior counsel could easily turn around the papers within a period of about 2 to 3 weeks.  The fact that the applicants decided to issue a letter before action to the Director on 30 July 2015 cannot be a good reason for delaying the application for leave to apply for judicial review.  In my view, there was unacceptable delay between the date of the re-assignment of counsel (9 July 2015) and the date on which the Form 86 was filed (16 October 2015). 

61.  In all, the applicants have failed to show a good explanation for the delay in applying for leave to apply for judicial review of the Secretary’s Decision. The same conclusion would follow in so far as any application for extension of time to apply for leave to apply for judicial review of the Director’s Decision is concerned.

(iii)  Prejudice

62.  In view of the conclusion that I have reached regarding the merits, or lack of merits, of the applicants’ proposed application for judicial review of the Secretary’s Decision and Director’s Decision, refusing the extension of time sought would not cause any prejudice to the applicants.  In so far as their non-refoulement claims are concerned, they can still be pursued (if so advised) in the ordinary way.

63.  On the other hand, I consider that, generally speaking, unjustifiable delay in challenging immigration decisions made by the Director or the Secretary would be detrimental to the administration of effective immigration control in Hong Kong.

(iv)   No question of general public importance

64.  The applicants’ proposed application for judicial review of the Secretary’s Decision and Director’s Decision does not raise any question of general public importance.  The legal principles applicable to the issues raised by them in the Form 86 are, in my view, well settled.

DISPOSITION

65.  For the forgoing reasons, I am not prepared to grant any extension of time to the applicants to apply for leave to apply for judicial review of the Secretary’s Decision or Director’s Decision.

66.  I therefore dismiss:-

(1)  the applicants’ application for extension of time to apply for leave to apply for judicial review of the Secretary’s Decision and the Director’s Decision (if any application is made for extension of time in respect of that decision); and

(2)  the applicants’ application for leave to apply for judicial review of the Secretary’s Decision and the Director’s Decision.

67.  For the avoidance of doubt, I would not grant leave to the applicants to amend the Form 86 to challenge the Director’s 2^nd Decision made on 2 July 2012, or any extension of time to enable them to do so.

68.  On the question of costs, I make an order that:-

(1)  the applicants shall pay the costs of the respondents, to be taxed if not agreed; and

(2)  the applicants’ own costs are to be taxed in accordance with legal aid regulations.

69.  Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.