ZHU JUN v. DIRECTOR OF IMMIGRATION

HCAL 504/2019

[2021] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 504 OF 2019

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REASONS FOR JUDGMENT

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INTRODUCTION

1.  At the conclusion of the rolled-up hearing on 22 April 2021 of the Applicant’s application for judicial review of the decision (“the Decision”) of the Director of Immigration (“the Director”) on 3 March 2017 to cancel his application for an extension of stay under the Capital Investment Entrant Scheme (“the Scheme”), the court gave judgment dismissing the application for leave to apply for judicial review, with reasons to be given later.  The court also reserved the issue of costs to be deal with in the reasons for judgment.  These are the court’s reasons for judgment, and decision on the issue of costs.

BASIC FACTS

2.  The Scheme is an immigration scheme for (inter alia) Chinese nationals who have obtained permanent resident status in a foreign country.

3.  The Applicant was born in Shanghai and the holder of a People’s Republic of China Passport No G27160903 (“the PRC Passport”).

4.  By a letter dated 27 September 2010, the Applicant informed the Director that he had appointed one Mr Chung Si Yiu (“Mr Chung”) as his and his family’s representative for the purpose of the Scheme.  Mr Chung was, apparently, a staff member of a company called Wealth Concepts Consultant (“Wealth Concepts”), whom the Applicant described as his “agent”[1].

5.  On or about 13 October 2020, the Applicant made an application for entry for residence in Hong Kong under the Scheme (“the Entry Application”).  In that application, the Applicant stated that he was holder of the PRC Passport with permanent resident status in the Republic of Gambia.  By a letter dated 20 July 2011 to the Applicant (c/o Mr Chung), the Immigration Department (“ImmD”) informed the Applicant that his application under the Scheme had been approved in principle.

6.  On 27 September 2011, Wealth Concepts sent to ImmD various supplementary documents in support of the Applicant’s application under the Scheme.  By a letter dated 12 October 2011 to the Applicant (c/o Mr Chung), ImmD informed the Applicant that his application under the Scheme had been formally approved.

7.  On 17 November 2011, the Director issued to the Applicant (and his two dependants) an entry permit for his first journey to Hong Kong on or before 17 February 2012 for residence in Hong Kong for 24 months under the Scheme (“the Entry Permit”).  The Entry Permit was collected by Wealth Concepts on behalf of the Applicant on 17 November 2011.

8.  On 5 December 2011, the Applicant entered Hong Kong on the strength of the PRC Passport and the Entry Permit.  He was permitted to remain in Hong Kong until 5 December 2013, or two months after the Director had determined that he had breached the undertaking given under the Scheme, whichever was earlier.

9.  According to the Applicant, he lost the PRC Passport in Macau on 14 July 2013.

10.  On 10 September 2013, ImmD received from the Applicant an “Application for an Endorsement to a Travel Document”.  In an accompanying letter from Wealth Concepts, it was stated that the Applicant had lost his PRC passport in Macau on 14 July 2013.  The Applicant did not, however, provide any information regarding the new travel document for the purpose of endorsement.  This was because, according to the Applicant, he was in the process of applying for a Guinea-Bissau passport.

11.  On 3 December 2013, the Republic of Guinea-Bissau issued to the Applicant a passport No AAIN59174 (“the Old Guinea-Bissau Passport”), with validity up to 3 December 2018.

12.  On 12 January 2014 (after the Applicant’s limit of stay had already expired), the Applicant made an application to the Director for extension of stay (“the Extension Application”) for himself and his two dependants under the Scheme:

(1)  In an accompanying undated letter from Wealth Concepts, it was stated that the Applicant had lost his PRC passport, and wished to use his Guinea-Bissau passport to apply for extension of stay.

(2)  In an accompanying undated letter from the Applicant, he acknowledged that his limit of stay in Hong Kong had expired on 5 December 2013, and he had delayed in applying for an extension of stay because he was awaiting the issue of a Guinea-Bissau passport.

The Applicant also provided copies of, inter alia, (i) an undated Certificate of Citizenship of Repúblic Da Guiné-Bissau, (ii) the Old Guinea-Bissau Passport, and (iii) a letter issued by the Embassy of the Republic of Guinea-Bissau in Beijing dated 10 January 2014 stating that the Applicant had been issued a passport and was a citizen of the Republic of Guinea-Bissau, in support of the Extension Application.

13.  On 26 February 2014, ImmD received a further undated letter from Wealth Concepts requesting for a “provisional visa” to be issued to the Applicant to enable him to go to Shanghai to apply for a new PRC passport so that he could make a fresh application for extension of stay under the Scheme.

14.  On 21 July 2015, ImmD sent a letter (“the 21.7.2015 Letter”) to Wealth Concepts (for onward forwarding to the Applicant) stating that ImmD was unable to process the Extension Application due to insufficient documents provided.  In that letter, ImmD requested the Applicant to furnish the following documents in support of the Extension Application by 21 August 2015:

(1)  valid travel documents of the Applicant’s two dependants;

(2)  if the two dependants had obtained permanent resident status in a third country, copies of the relevant documents with validity of not less than 1 year;

(3)  proof of cancellation of the Applicant’s household registration in the Mainland and all relevant documents proving that he had obtained Guinea-Bissau citizenship (excluding documents previously submitted); and

(4)  written explanation (with supporting documents) for his failure to submit an application for extension of stay prior to the expiry of his limit of stay on 5 December 2013.

15.  On 18 August 2015, Wealth Concepts on behalf of the Applicant issued a letter to ImmD explaining that the Applicant was then going through divorce proceedings, and was unable to return to Mainland China to obtain a new PRC passport, and thus the Applicant wished to preserve the Extension Application.  According to the Applicant, this letter from Wealth Concepts was sent in response to the 21.7.2015 Letter.[2]

16.  As a matter of fact, the Applicant did not furnish the documents requested by ImmD under the 21.7.2015 Letter.

17.  On 19 January 2017, ImmD sent a further letter (“the 19.1.2017 Letter”) to Wealth Concepts (for onward forwarding to the Applicant) reminding the Applicant of the 21.7.2015 Letter, and requesting the Applicant to furnish the documents sought within 2 weeks, failing which ImmD would treat the Extension Application as cancelled.  There was no response to the 19.1.2017 Letter.

18.  By a letter dated 3 March 2017 (“the Decision Letter”) to Wealth Concepts (for onward forwarding to the Applicant), ImmD informed the Applicant that, in view of his failure to provide the documents sought by the 21.7.2015 and 19.1.2017 Letters, it was unable to further process the Extension Application and the application was therefore treated as cancelled.

19.  Pausing here, I should mention that the Applicant says that he never received the 19.1.2017 Letter from Wealth Concepts, and was “unaware of requests for documents made by the Immigration Department and the Decision until his arrest [on 17 October 2018]”[3].

20.  On 17 October 2018, the Applicant was arrested by the Police for the offence of breach of condition of stay, contrary to s 41 of the Immigration Ordinance (Cap 115).  Subsequently, the Applicant was prosecuted for the said offence by reason of his failure to leave Hong Kong on or before 5 December 2013.  The prosecution of the Applicant is still ongoing and has not yet been completed, apparently because of the present application for judicial review.

21.  For the sake of completeness, I should mention that:

(1)  On 7 July 2017, in response ImmD’s inquiries made on 2 October 2015 and 18 January 2017, the Embassy of the Republic of Guinea-Bissau in Beijing wrote to ImmD and informed it, inter alia, that the Old Guinea-Bissau Passport of the Applicant was “inauthentic and invalid for any use and purpose”.

(2)  According to the Applicant, when he found out the aforesaid letter from the Embassy of the Republic of Guinea-Bissau from ImmD on 14 January 2019, he applied to renew the Old Guinea-Bissau Passport (which had expired in December 2018) because of “the confusion and contradiction arising from the two letters[4] issued by the Embassy”, and was issued a new Guinea-Bissau Passport No AAIN68340 (“the New Guinea-Bissau Passport”) on 6 February 2019, with validity up to 6 February 2024[5].  The Applicant argues that “[i]f the Republic of Guinea-Bissau is ready to renew [his] passport, the only natural conclusion is that the Old Guinea-Bissau Passport was also valid from 2013-2018”[6].

(3)  For the purpose of this application, I shall assume in the Applicant’s favour that the Old Guinea-Bissau Passport was an authentic and valid passport.

(4)  On 26 April 2019, the Applicant was further issued a Vanuata Passport No RV100174, with validity up to 25 April 2024.

22.  On 21 February 2019, the Applicant made the present application for leave to apply for judicial review of the Decision. Two grounds of judicial review are raised, both alleging procedural impropriety:

(1)  ImmD did not notify the Applicant in the 21.7.2015 Letter, 19.1.2017 Letter or Decision Letter about the possibility of criminal prosecution, notwithstanding the seriousness of the matter, including the possibility of imprisonment, and the effect on his right to reside in Hong Kong; and

(2)  ImmD failed to locate the Applicant and send the 19 Jan Letter and Decision Letter to him directly.

GROUND 1 OF JUDICIAL REVIEW: FAILURE TO INFORM THE APPLICANT OF THE POSSIBILIY OF CRIMINAL PROSECUTION

23.  Mr Jeffrey Tam (on behalf of the Applicant) argues that natural justice required the Director to inform the Applicant that he might be exposed to criminal prosecution.  Mr Tam’s argument runs along the following lines:

(1)  The rule of natural justice is applicable when the Director is a person having legal authority to determine a question affecting the Applicant’s right to reside in Hong Kong.

(2)  If a person may be exposed to criminal prosecution, natural justice requires that he should be told the case made against him (R v Race Relations Board, ex parte Selvarajan [1975] 1 WLR 1686, at 1694).

(3)  However, none of the 21.7.2015 Letter, 19.1.2017 Letter and Decision Letter informed or warned the Applicant that he would expose himself to criminal prosecution should the Extension Application be cancelled.

(4)  Even if Wealth Concepts had forwarded the 19.1.2017 Letter and Decision Letter to him, the Applicant would not know that his lack of response would not only render his status under the Scheme at risk but also expose him to an immigration related criminal prosecution with a realistic chance of imprisonment.

(5)  Moreover, none of the correspondence from ImmD informed the Applicant that he had been overstaying in Hong Kong, not only since the date of cancellation of the Extension Application under the Scheme, but also during the period from 5 December 2013 to 3 March 2017.

(6)  Accordingly, in failing to inform the Applicant of the risk of criminal prosecution and the fact that the Applicant had overstayed in Hong Kong, the Director acted in breach of the principle of natural justice when making the Decision.[7]

24.  In my view, this ground proceeds upon a confusion, or conflation, of two different matters, namely, (i) the prosecution of the Applicant for the offence of breach of condition of stay, and (ii) the Applicant’s application for extension of stay in Hong Kong under the Scheme.

25.  In so far as the Applicant’s prosecution is concerned, it is based on the fact that he has been overstaying in Hong Kong after 5 December 2013.  Prima facie, he committed the offence of breach of condition of stay as soon as he failed to leave Hong Kong upon the expiry of his limit of stay on 5 December 2013, and the offence is a continuing one. Nothing that was said, or not said, by the Director in the subsequent 21.7.2015 Letter, 19.1.2017 Letter or Decision Letter (dated 3 March 2017) could make any difference to the fact he had already overstayed in Hong Kong after 5 December 2013.

26.  On the other hand, the 21.7.2015 Letter, 19.1.2017 Letter and Decision Letter are all concerned with the Applicant’s application for extension of stay under the Scheme.  I fail to see why, in relation to an application for extension of stay, it was incumbent upon the Director to inform, or warn, the Applicant that he was at risk of prosecution for the offence of breach of condition of stay.  As a matter of principle, there is no general duty on the part of the Director to inform or advise an immigrant of or on his legal rights or responsibilities, although such duty may arise on the special facts and circumstances of an individual case (see Maura Juliet A Raquiza v The Director of Immigration, HCAL 20/2006 (11 July 2006), at §§65-70 per Chu J (as she then was)).  No such special facts and circumstances exist in the present case.

27.  The Applicant’s complaint about breach of natural justice on the part of the Director is also hollow on the facts of the present case.  In relation to his complaint that the Director (or ImmD) failed to inform him that he had been overstaying in Hong Kong, not only since the date of cancellation of the Extension Application, but also during the period from 5 December 2013 to 3 March 2017, it seems to me to be clear on the evidence that the Applicant knew full well that his limit of stay in Hong Kong was up to 5 December 2013 and he would be overstaying should he remain in Hong Kong after 5 December 2013, in view of the following matters:

(1)  The Entry Permit expressly stated that the Applicant’s limit of stay was up to 5 December 2013.  The same information was stated in the immigration stamp applied on the Applicant’s PRC Passport upon his arrival in Hong Kong on 5 December 2011.

(2)  In his “Application for an Endorsement to a Travel Document” dated 9 September 2013, the Applicant stated that he was permitted to remain until 4 December 2013.

(3)  In his undated letter to ImmD in support of the Extension Application, the Applicant acknowledged that his limit of stay was for 2 years up to 5 December 2013.

(4)  In his declaration relating to his investment under the Scheme dated 12 January 2014 in support of the Extension Application, the Applicant likewise stated that his limit of stay was up to 5 December 2013.

(5)  In the Entry Application and also in the Extension Application, the Applicant declared that he understood that he was required to leave Hong Kong on the expiry of the limit of stay or within two months after the Director had determined that he had breached the undertaking under the Scheme.

There was simply no basis for the Applicant to believe that he only started to overstay in Hong Kong as from the date of cancellation of the Extension Application (ie 3 March 2017).

28.  In relation to the complaint that the Director (or ImmD) failed to inform him of the risk of prosecution, the Applicant, in the Entry Application and also in his Extension Application, declared that he had read and understood the Rules for the Capital Investment Entrant Scheme (“the Scheme Rules”) and undertook to abide by the Scheme Rules, and further declared that he understood that he was required to leave Hong Kong on the expiry of the limit of stay or within two months after the Director had determined that he had breached the said undertaking.  §8.3 of the Scheme Rules expressly provides that:

“An Applicant/Entrant is required to give an Undertaking to the Director to abide by the Scheme Rules. The form of the Undertaking is set out in Part 12 of the application form prescribed by the Director. Without detracting from the serious penalties which may be imposed in the event of a breach of any of the conditions of stay imposed under the Immigration Ordinance or in respect of an untruthful declaration or statement made for the purposes of the Scheme, if an Entrant is found to have breached the Undertaking given by him, he, together with his dependants, will be required by the Director to leave Hong Kong within 2 months after the Director has determined that the Entrant has breached the Undertaking.” [emphasis added]

29.  It cannot, in my view, sensibly be argued that the Applicant did not know that he could be subject to prosecution for the offence of breach of condition of stay for overstaying in Hong Kong beyond the limit of stay granted to him.  Whether he appreciated the serious consequence of a breach of condition of stay, including the possibility of imprisonment upon conviction, is neither here nor there.

30.  Lastly, there can be no question of the Applicant not being told about the case made against him for his criminal prosecution.  The principle stated in R v Race Relations Board, ex parte Selvarajan relied upon by Mr Tam has obviously no application to the present case.

31.  In all, Ground 1 of judicial review is not reasonably arguable, and has no realistic prospect of success.

GROUND 2 OF JUDICIAL REVIEW: FAILURE TO SEND THE 19.1.2017 LETTER AND DECISION LETTER TO THE APPLICANT

32.  Mr Tam argues that another principle of natural justice is that a person is entitled to adequate notice and an opportunity to be heard before a decision is made.  Given the serious consequence of imprisonment, adequate notice required the Director to make all possible attempts to ensure prior notification of the request for documents to be given to the Applicant directly.  However, both the 19.1.2017 Letter and Decision Letter were sent to Wealth Concepts but not to the Applicant, and the Applicant did not receive those letters from Wealth Concepts.  Hence the Director failed to observe the principle of natural justice.[8]

33.  This ground can be disposed of shortly.  First, it is again based on a conflation or confusion between (i) the prosecution of the Applicant for breach of condition of stay, and (ii) the Applicant’s application for extension of stay under the Scheme.

34.  Second, Wealth Concepts acted consistently as the Applicant’s agent in communicating with the Director in relation to matters concerning the Scheme, including the Extension Application (see §§6, 7, 10, 12, 13, 14 and 15 above).

35.  Third, the Applicant never informed the Director that Wealth Concepts was not authorized, or no longer had authority, to communicate on his behalf in relation to matters concerning the Scheme. Indeed, there is no suggestion that such authority of Wealth Concepts was revoked at any time[9].

36.  In my view, the Director acted reasonably in sending the 19.1.2017 Letter and Decision Letter to Wealth Concepts for onward forwarding to the Applicant.

37.  Furthermore, the Applicant has been given ample time to furnish to the Director the documents sought under the 21.7.2015 Letter. It has not been suggested by the Applicant that he had no knowledge of this letter.  The Applicant had more than 19 months to produce the relevant documents, but failed to do so by the time of the Decision.  In these circumstances, the Applicant can hardly complain that the Director decided to take no further action on the Extension Application and treat it as cancelled.

38.  In all, I do not consider Ground 2 of judicial review to be reasonably arguable, or has a realistic prospect of success.

DELAY

39.  The Decision was made in March 2017, and the application for leave was not made until February 2019.  It is not in dispute that the Applicant has delayed in making the application.  The principles for granting an extension of time to apply for leave to apply for judicial review are well settled (see AW v Director of Immigration [2016] 2 HKC 393, at §27).

40.  Even if (contrary to the above conclusions) the intended application for judicial review is reasonable arguable, I would not be minded to exercise my discretion to grant an extension of time to the Applicant to make the application, having regard to the following factors:

(1)  The delay of more than 20 months is very substantial.

(2)  The explanation for the delay, namely, that the Applicant was unaware of the Decision because his agent, Wealthy Concepts, did not inform him of the same is not, I consider, a good one.

(3)  The merits of the intended application for judicial review are not strong on any view of the matter.

(4)  No issue of great general or public importance arises for determination in the application.

41.  The only factor in the Applicant’s favour is that he would suffer prejudice if time for making the application is not extended.  I do not consider that this is sufficient to tip the balance in his favour for the court to exercise its discretion to grant an extension of time in the present case.

DISPOSITION

42.  The application for leave to apply for judicial review is dismissed.

43.  Mr Tam accepts that the Applicant would have to bear the costs of the application in the present case.  I consider that the Applicant ought to pay the costs of the Director, having regard to the principles established in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841.  I do not, however, consider that there is sufficient basis to conclude that the present application is made for an ulterior purpose, or sufficient justification to order the Director’s costs to be taxed on the indemnity basis, as sought by Ms Leona Cheung.  I therefore make an order that the Applicant shall pay the Director’s costs of this application, including all reserved costs (if any), to be taxed on the party and party basis, if not agreed.