MALIK LIAQAT ALI AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 539/2018

[2022] HKCFI 1243

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 539 OF 2018

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J U D G M E N T

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A.  Introduction

1.  The 1^st and 2^nd Applicants are husband and wife.

2.  These proceedings were commenced by the Applicants by Form 86 dated 26 March 2018.  The decisions identified in the Form 86 as those sought to be challenged are in two letters respectively dated 16 November 2017 and 5 January 2018 from the Putative Respondent (“Director”).  The Form 86 also sought an extension of time to challenge the first letter.

3.  The Director’s letter dated 16 November 2017 was addressed to the wife, and was to notify refusal of the application made by her as the sponsor for the husband to be resident as her dependant in Hong Kong.

4.  Following receipt of that letter, the Applicants engaged solicitors who entered into correspondence with the Director, essentially making a request for reconsideration of the application for taking residence as dependant in Hong Kong (whilst also mentioning the possibility of an application for judicial review).

5.  The Director’s letter dated 5 January 2018 was addressed to those solicitors, and was to notify them that the request for reconsideration was refused because the information provided and representations made in the solicitors’ letters did not constitute any new grounds pertinent to the refusal decision for reconsideration.  Therefore, it was stated that the previously conveyed decision would stand.

6.  On 28 September 2018, Chow J (as he then was)  gave directions that there should be an oral hearing of (i) the application for an extension of time for leave to apply for judicial review and (ii) the application for leave to apply for judicial review, with 2 hours reserved.

7.  A direction was also given that a set of the papers should be served on the Director within 14 days, namely by 12 October 2018.  The Director was also given leave to attend the oral hearing to resist the applications, and directed to file and serve any evidence on which the Director intended to reply at the oral hearing at least 21 days prior to the date of the hearing.

8.  Chow J’s directions were sent to the Applicants at the address for service given by them on the Form 86.

B.  The Applicants’ Complete Inaction

9.  Chow J’s directions were in effect ignored by the Applicants.

10.  By letter dated 4 April 2022, the Department of Justice (“DOJ”), acting for the Director, informed me (as the Judge now in charge of the List)  that no documents had ever been served by the Applicants, whether on the Director or on the DOJ, and nothing had been heard from the Applicants so far.

11.  The letter also suggested that I might direct the parties to provide available dates for the previously directed oral hearing, or alternatively consider dealing with the applications on paper.

12.  In response, and bearing in mind the complete inactivity on the part of the Applicants since commencement of these proceedings, I expressed the view that there must be some doubt as to whether the applications were still being pursued.

13.  In the circumstances, by letter dated 6 April 2022, I directed the parties to provide to the Court by 5pm on 20 April 2022 their available dates from July to September 2022 for the purpose of fixing the date of the previously directed oral hearing.  But I pointed out that should the Applicants fail to respond to that direction within the time set, I would deal with the matter on the papers as I see fit, including by reference to any further directions I might give.

C.  Response to Directions

14.  Whilst, by letter dated 20 April 2022, the DOJ did provide available dates for my consideration, the Applicants have failed to give any response to my direction.  More than a week later, the Applicants have still failed to give any response, or to respond to the DOJ’s letter dated 20 April 2022.

15.  This failure by the Applicants to respond to the direction of the Court is consistent with the failure by the Applicants to respond to or act in accordance with any of the previous directions of the Court.  But for the DOJ bringing the matter back to the attention of the Court, there is no reason to think that the Applicants would have done so themselves.

16.  Though the DOJ’s letters dated 4 and 20 April 2022 were not copied to the Applicants at the address given by them on the Form 86, I understand that the address used by the DOJ was notified by the Applicants to the Immigration department.  The letter enclosing my directions was sent to the same address.

17.  In any event, I do not think it a proper use of Court process to commence an application for leave to apply for judicial review and then to take no steps to progress that application, even when directions have been given to serve the papers on the putative respondent and to fix a date for an oral hearing.  Though in this case the Director as putative respondent was given leave to attend the oral hearing, the oral hearing was to be a hearing of the Applicants’ application for leave, made by them ex parte in accordance with the usual rules.

18.  If any applicant were to think that the mere making of an application for leave to apply for judicial review will act as some kind of stay of operation on the decision identified as the subject of intended challenge, in the sense that the applicant need take no further steps to progress the intended challenge, then that applicant needs to be disabused of that way of thinking.  Such conduct would be an abuse.

19.  In the above circumstances, and in the exercise of my case management discretion bearing in mind the underlying principles, I see no reason why this application should not now be dismissed on paper simply on the fact that the Applicants have failed within any reasonably sensible time to comply with the direction to serve the Director and the direction to fix an oral hearing, and (whatever the original intention)  where there is no reason for the Court to think that the Applicants still have any genuine intention to pursue the application, and where as a matter of fact it has not been pursued.

D.  Disposition

20.  The Applicants’ application for leave to apply for judicial review, and the application for any extension of time necessary to pursue such an application, are both dismissed.  I make no order as to costs.

21.  As I am making this order on my own motion, RHC Order 1B rule 2(4)   and (5)  come into play.  On that basis, the parties affected by my order have the right to apply to have it set aside or varied or stayed.