MAGAR JAMUNA JARGA v. DIRECTOR OF IMMIGRATION

HCAL 65/2021

[2023] HKCFI 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 65 OF 2021

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BETWEEN

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AND

HCAL 558/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 558 OF 2023

BETWEEN

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(Heard together)

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D E C I S I O N

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A. Introduction

1.  I am dealing with these two matters together, as the Applicant is the same in both matters, and the subject matter arises broadly out of the same dissatisfaction with the decisions of the Director of Immigration (“Director”).

2.  The Applicant has failed to appear at this hearing. The Director has been represented by Ms Yvonne Cheung, Senior Government Counsel.

B. HCAL 65/2021

3.  By a Form 86 dated 18 January 2021 in HCAL 65/2021, the Applicant sought leave to apply for judicial review to challenge the decision (“Departure Decision”) made by the Director on 11 January 2021, requiring the Applicant to depart from Hong Kong by 19 January 2021 (subsequently extended to 26 January 2021), even though she had a legal aid appeal pending.

4.  The legal aid appeal was for the Applicant to seek to obtain legal representation to conduct a judicial review of the decision underpinning the Departure Decision, where the Departure Decision was based upon a prior decision refusing the Applicant an extension of stay (“Refusal Decision”), though the Applicant has claimed that she was not an over stayer.

5.  The matter came before me, on an urgent basis, on 22 January 2021. On that date, and after hearing Counsel for the Applicant and Counsel for the Director, I granted an injunction restraining the Director from requiring the Applicant to leave Hong Kong pending the Applicant’s legal aid appeal to be heard on 25 March 2021.

6.  That decision was given ex tempore at the conclusion of the hearing, but subsequently transcribed into a written decision [2021] HKCFI 334.

7.  I did not deal with the question of leave to apply for judicial review, and those then acting for the Applicant would have known that the grant of the injunction did not operate as a general stay of these proceedings. But, since that hearing date, no further steps have been taken by the Applicant to pursue the application for leave to apply for judicial review.

8.  By letter dated 31 March 2023 from the Department of Justice on behalf of the Director, I have now been informed of the following matters:

(1) The Applicant’s legal aid appeal was dismissed on 28 September 2022.

(2) The Applicant has to date not been removed from, and she remains in, Hong Kong.

(3) On 8 November 2022, the Applicant requested a reconsideration of the Director’s (underlying) Refusal Decision in respect of her extension of stay application, to be dealt with on her own merits.

(4) The request was refused by the decision of the Director on 30 March 2023 (“Reconsideration Decision”).

(5) The Applicant is required to leave Hong Kong on or before 13 April 2023.

9.  In the letter, it was also said on behalf of the Director that, because these proceedings are confined to the Director’s Departure Decision dated 11 January 2021, that has been overtaken by events.

10.  In those circumstances, and where the Form 86 had requested one, I fixed an oral hearing for today.

11.  Where the Applicant has sought a reconsideration of the position regarding her permission to remain in Hong Kong, that seems to me to have rendered her prior application likely academic. That may well be why she chose not to take any further steps in these proceedings (though I accept that may also have been for some of the period because she was awaiting the outcome of her legal aid appeal).

12.  It also seems to me inappropriate for the Applicant to have obtained a form of urgent interlocutory relief without then pursuing the actual application for leave to apply for judicial review – even if it were to be hoped that legal aid might be obtained to assist. Other than as regards any statutory stay as may arise upon the making of an application for legal aid, the making of such an application does not act as any general stay of proceedings, nor in general justify complete inaction on the part of the Applicant.

13.  It is also a matter of practical reality that the obtaining of the injunction provided the Applicant with what has turned out to be, in essence, a form of final relief as regards the subject matter of the particular action.

14.  In those circumstances, I am entirely satisfied that it is appropriate to bring these proceedings to a conclusion, and that the way to do so is simply to refuse the application for leave to apply for judicial review.

C. HCAL 558/2023

15.  Perhaps in response to the receipt of the DOJ’s letter dated 31 March 2023 in HCAL 65/2021 (see above), the Applicant commenced new proceedings on 6 April 2023 in HCAL 558/2023.

16.  Because this application was commenced by the same Applicant and relates to the same broad area of decisions, I fixed an oral hearing for today.

17.  In this action, the Applicant seeks leave to apply for judicial review to challenge the Director’s decision on 24 January 2019 (i.e. the Refusal Decision) and the Director’s decision on 30 March 2023 (i.e. the Reconsideration Decision).

18.  The Form 86 does not itself state any grounds on which the relief is sought, and though the Applicant’s affirmation dated 6 April 2023 sets out some matters, I do not think it identifies any proper allegations of public law breach by the Director. It merely states (in its entirety):

The Director’s decision was flagrantly wrong because my Visa was not extended not because of the death of my husband but for the validity of my passport. I have already completed 7 years in HKG and qualified for Right of Abode per Basic Law.

19.  Exhibited to the affirmation are the two letters of 24 January 2019 and 30 March 2023, respectively notifying the Refusal Decision and the Reconsideration Decision.

20.  The material part of the Refusal Decision – which dealt with the Applicant’s application for extension of stay, submitted on 22 November 2018 – states (emphasis in original):

Under existing immigration policy, a person may be allowed to remain in the HKSAR as a dependant provided that, amongst other things, he/she has an eligible sponsor in the HKSAR. An application for extension of stay is not granted automatically but only when the Director of Immigration is satisfied that circumstances have not changed since the original approval for residence was granted.

You were previously approved to remain in the HKSAR on dependant status. Since there is a substantial change in your circumstances, we are not satisfied you are still eligible to remain in the HKSAR as a dependant. Therefore, we regret to inform you that your application is refused.

21.  The material part of the Reconsideration Decision – which dealt with the Applicant’s application for reconsideration of the Refusal Decision, submitted on 8 November 2022 – states (emphasis in original):

We regret to inform you that your request is refused as no new matters have been raised in the current reconsideration. The refusal decision previously conveyed to you by our letter dated 24 January 2019 still stands.

Please note that your limit of stay in the HKSAR has expired since 25 December 2018. You are now required to leave the HKSAR on or before 13 April 2023.

22.  The failure to comply with the rules requiring proper identification of grounds of public law review is itself a reason to dismiss the application. But, in any event, I can consider the matter little further.

23.  Insofar as the application seeks leave to apply for judicial review to challenge the Refusal Decision, it is obviously significantly out of time (where the Order 53 ‘long stop’ period within which any intended challenge ought to have been brought expired in April 2019, around 4 years ago). Nothing in the Applicant’s application or supporting affirmation seeks to explain why any extension of time to make such an intended challenge should be granted. Indeed, even as at the date of the intended challenge commenced in HCAL 65/2021, the Refusal Decision had been made 2 years before that.

24.  I acknowledge that part of the period was apparently taken up with an application for legal aid, and the subsequent legal aid appeal which was already afoot in January 2021 but not determined until 28 September 2022. But, first, an application for legal aid does not stop time running and that does not explain why an intended challenge was not at least launched at any earlier time, and, second, there has been further significant delay between 28 September 2022 and the commencement of these proceedings on 6 April 2023. There has been no attempt at explaining even that part of the delay.

25.  I see no reason why, in the exercise of my discretion, I should extend time to permit any challenge to the Refusal Decision so late.

26.  Further, the making of the application for reconsideration of the Refusal Decision was, for practical purposes, an abandonment of the previous intended challenge to the Refusal Decision (presumably after legal aid was refused on the legal aid appeal). It was also apparently the pursuit of an attempted alternative remedy. Those also point to refusing leave to apply for judicial review to challenge the Refusal Decision.

27.  In so far as the intended challenge is to the Reconsideration Decision, that decision was made on the basis that no new matters had been raised in the reconsideration of the Refusal Decision. There is no suggestion by the Applicant that that statement is incorrect. On that basis, the request for reconsideration might be viewed as an attempt to get around the timing difficulties relating to an intended challenge of the Refusal Decision. It is trite that an applicant for leave to apply for judicial review cannot extend the time to challenge a decision simply by asking for that decision to be reviewed or reconsidered. The decision on such a request for review or reconsideration would not be amenable to review.

28.  Further, in any event, the only apparent ‘ground’ put forward by the Applicant is that the decision is “flagrantly wrong” because the reason given for not extending her visa was not the correct reason, and she had in fact completed 7 years’ residence in Hong Kong to qualify for right of abode. But I do not think this sets up any reasonably arguable grounds of review with any realistic prospect of success.

29.  First, of course, this ground reflects back to the original Refusal Decision. If the Refusal Decision is not open to review, that is the end of the matter. Secondly, it does not seem to me particularly to matter whether the reason for not extending the visa was the correct reason, but the reason given in the Refusal Decision was in fact clearly related to the lack of eligibility and the substantial change in circumstances relating to dependant status. Thirdly, once the extension of visa was refused, any further period of time in Hong Kong would not accrue to continuing residence for establishing right of abode.

30.  Further, an assertion by the Applicant that she has qualified for right of abode under the Basic Law seems to me to be a different point, and would give rise to a different request for recognition essentially by reference to an application for verification of eligibility for a permanent identity card.

31.  In the circumstances, I do not think this new application identifies any reasonably arguable grounds for the intended review of either the Refusal Decision or the Reconsideration Decision.

32.  The application is, therefore, dismissed.

[Submission on costs]

D. Costs

33.  Ms Cheung has pointed to the fact that, in this case, the Court has invited the Director as putative respondent to both applications to appear at this hearing, and that against the history of the case in particular the applications are wholly lacking in merit.

34.  In the exercise of my discretion, and in light of the matters canvassed by me above, I accept that this is a suitable case for the Director’s costs to be payable by the Applicant.

35.  Those costs will be subject to summary assessment, and the Director will provide a Statement of Costs by 4pm on 14 April 2023, and the Applicant may provide comments on or objections to that statement by 4pm on 21 April 2023. After that date, I will make the summary assessment.