YANG PEIRU AND ANOTHER v. DIRECTOR OF IMMIGRATION

HCAL 119/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 119 OF 2014

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JUDGMENT
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1.  This is the application of Madam Yang Peiru for extension of time to appeal against the Order of this court dated 8 December 2014. Her summons was taken out on 22 December 2014. Under RHC O 53 r 3(4), where an application for leave is refused by a judge, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order. Under RHC O 59 r 15(1), this court may extend the time for the filing of the notice of appeal on application made before the expiry of the time for appealing.

2.  On 8 December 2014, this court dismissed the application of Madam Yang and her 15-year-old son, Mr Yu Qi Lin, for leave to apply for judicial review. The decision challenged was the rejection by the Director of Immigration of Madam Yang’s application for residence in the HKSAR on humanitarian grounds.  The humanitarian ground put forward was that Madam Yang wishes to look after her son.

3.  Mr Yu has right of abode and lives in Hong Kong. According to Madam Yang, her son studies and lives at the Hong Kong Red Cross John F. Kennedy Centre at 15 – 17 Sandy Bay Road, Pokfulam, Hong Kong during weekdays and stays with her in a cubicle flat in Tai Kok Tsui, Kowloon, during weekends.

4.  Madam Yang herself is a Chinese national born in Guangzhou, PRC.  She also has citizenship in Argentina. She tells this court she has studied and worked in Argentina for two years. Presently, Madam Yang is in Hong Kong on a 90-day visitors visa and has to go to Shenzhen when her visa expires, only to come back to Hong Kong on the same day.  Madam Yang cannot legally work in Hong Kong and lives on Comprehensive Social Security Assistance to which Mr Yu is entitled.

5.  It is well-established that the Director of Immigration is not bound to consider humanitarian grounds and this is a matter entirely within his discretion: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 330C-F & 332E-H; Lam Khiet Phung v Director of Immigration unrep. HCAL9 of 2004; 24 January 2006; Chu J (as she then was); affirmed on appeal CACV197 of 2006; 13 February 2007; Rogers VP, Le Pichon JA, Barma J (as he then was).

6.  In any event, as explained in the letter of rejection dated 4 July 2014, the Director of Immigration had considered the circumstances of Madam Yang and was not satisfied there existed strong humanitarian ground in support of her application.

7.  After considering the papers submitted, this court found no error of law or fact on the part of the Director of Immigration had been shown. Nor had it been shown that the Director had failed to act fairly. Nor could it be said that the decision of the Director was perverse or “Wednesbury” unreasonable. The leave application was therefore dismissed.

8.  Previously, Madam Yang was granted legal aid for her leave application but her legal aid certificate was discharged on 13 January 2015. Madam Yang has also applied for legal aid in respect of her intended appeal against this court’s dismissal of her leave application but legal aid was refused on 8 January 2015. Madam Yang tells this court she is appealing against the refusal of legal aid.

9.  In Leung Kwok Hung v The President of the Legislative Council of the HKSAR & Anr [2008] 2 HKLRD 18, Tang VP (as he then was) held at [5] that the court’s approach to an application like the present one is to “consider all the circumstances and decide whether the overall justice of the case requires the exercise of the discretion to extend time”, applying Costello v Somerset County Council [1993] 1 WLR 256 at 264C and Nantong Angang Garments Company Ltd v Hellmann International Forwarders Limited and Anr [2005] 4 HKC 86 at 96.  At [16] Tang VP further held that, in considering the overall justice of the case, the court should “consider whether the applicant has a reasonable prospect of success” in the appeal.

10.  In my judgment, for the reasons set out in paragraphs 5 to 7 above, Madam Yang’s intended appeal has no reasonable prospect of success. In these circumstances, this court is not satisfied an extension of time should be granted.

11.  The application for extension of time is hereby dismissed.