GURUNG DEU KUMARI v. DIRECTOR OF IMMIGRATION

HCAL 76/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 76 OF 2009

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BETWEEN

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REASONS FOR DECISION

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1.  Mdm Gurung, a visitor to Hong Kong, has applied to the Director to change her immigration status to permit her to take up residence in Hong Kong as a dependent of her son, Gurung Jayanta, a Hong Kong permanent resident. On 6 February 2009, the Director refused that application. On 14 July 2009, Mdm Gurung was granted leave to apply for judicial review against that decision.

2.  Now, Mr Gurung seeks leave to join in the proceedings pursuant to O 15 r 6, RHC, as a party to the application for judicial review, in his own right. Mr Pun accepted that the proper test to be applied in this particular case is to examine whether or not leave should be granted to Mr Gurung to bring judicial review proceedings against the decision of the Director of 6 February 2009. If it was a proper case for leave, then Mr Chan accepted that the matter fell within the ambit of O 15 r 6, and there should be an order for joinder.

3.  Strictly, the application for leave for Mr Gurung to bring judicial review proceedings was not before me, but the proposed amended application had been drafted and was on the file, and the parties were sensibly content to treat the hearing as an application for leave to bring judicial review proceedings by Mr Gurung, and the matter was argued accordingly.

4.  In that amended application, Mr Gurung challenges the decision of the Director as being in breach of his family rights under article 37 of the Basic Law. That article provides:

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

5.  At the conclusion of the argument I ordered that leave be given for Mr Gurung to bring judicial review proceedings against the decision of 6 February 2009, and that Mr Gurung should be joined in the proceedings pursuant to O 15 r 6 RHC. I now give my reasons for that decision.

6.  The jurisdiction to join Mr Gurung pursuant to O 15 r 6, if leave to bring judicial review proceedings was granted, was not in doubt.

7.  On 23 September 2009, subsequent to the grant of leave to bring the judicial review proceedings by Mdm Gurung, I handed down a judgment in Gurung Ganga Devi v Director of Immigration, HCAL 131/2008. In that case the applicant, not a Hong Kong resident, sought to pursue an argument based on article 37. The Director argued that the rights enshrined in that article were not available to the applicant because she was not a Hong Kong resident.

8.  But the argument was available to the applicant’s youngest daughter who was a Hong Kong resident. Leave was given to the daughter to join in the proceedings to support her mother’s application. However, in that case no leave was given to the daughter to bring her own application for judicial review. Consequently, the application failed, and the daughter’s support was to no avail.

9.  Now, recognising that the same circumstances arise in the present case, Mr Pun seeks to join Mr Gurung into the proceedings brought by his mother, not merely to support those proceedings, but as an applicant for judicial review in his own right, arguing that his rights under article 37 have been breached by the decision of the Director.

10.  Mr Chan said that it was not reasonably arguable on the part of Mr Gurung that his rights under article 37 had been breached. He drew my attention to the decision of Hartmann J (as he then was) in Marilyn G Aringo & Anor v Director of Immigration, unreported, HCAL 96/2004, 5 September 2005, in which both a husband and a wife were applicants for judicial review, against a decision of the Director, refusing the husband a dependency visa. The applicants relied, in part, on article 37. In particular, Mr Chan referred me to paragraph 43 of that judgment:

“In the present case, the husband is a person who does not have the right to enter and remain in Hong Kong, save by permission of the Director of Immigration.  In the circumstances, if the husband has no call upon the Bill of Rights or the provision concerning marriage in the Basic Law - and the matter essentially goes to him; it is, after all, his application for a dependency visa - then these provisions cannot be made applicable to him via the back door by looking to the wife’s rights.”

11.  On the same basis, in the present case, Mr Chan argued, any rights that Mr Gurung may have cannot assist his mother’s application for a dependency visa.

12.  If the matter simply stood there, I am satisfied that Mr Chan would be right. But subsequent to the decision in Marilyn G Aringo, the House of Lords delivered its decision in Huang v Secretary to the Home Department [2007] AC 167. That decision demonstrated that it is arguable that the concept of a “family” is not a restricted concept which is embraced only by the relationship of parents and child. The judgment of Lord Bingham, with which the other judges agreed, contains the following passage at p 186G:

“But the main importance of the case law is in illuminating the core value which article 8 exists to protect.  This is not, perhaps, hard to recognise.  Human beings are social animals.  They depend on others.  Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially.  There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives.”

13.  Mr Pun says that had that extended concept of family been available to Hartmann J it was reasonably arguable that the conclusion reached, and set out at paragraph 9 above, would have been different.

14.  I am satisfied that the different circumstances of this case, where the son seeks to be joined as an applicant to judicial review himself, not merely supporting his mother, but arguing a breach of his own rights, casts a different light on the matter. Mr Gurung is able to argue that his family rights include a right to have the social and emotional support of his mother, and to care for his mother as part of his extended family, in circumstances where she is unable to care for herself. The decision in Marilyn G Aringo will found a basis to say that the argument sought to be made by Mr Pun ought to fail. But the existence of that decision does not render the argument so bereft of merit that I can say that the propositions sought to be advanced are not reasonably arguable.

15.  Mr Chan reminds me that Mr Gurung’s application does not merely involve a technical joinder for the purpose of completeness or the effective determination of the application for judicial review. Instead it involves a substantive and substantial widening of the legal challenge to the decision.

16.  I accept Mr Chan’s submission that in this post-CJR era applications which have the effect of widening the scope of judicial review proceedings after those proceedings are underway have a formidable threshold to pass. In this respect I am in complete agreement with the comments of Andrew Cheung J in Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation, unreported, HCAL 12/2009, 21 September 2009.

17.  Ultimately, prejudice was the basis upon which leave was refused in Wise Union. Prejudice was also the basis upon which leave to amend was refused in the other two authorities cited by Mr Chan, Wong Hing Kong v Urban Renewal Authority, unreported, HCAL 34/2009, and Popular Signs Ltd v Radiation Board, unreported, HCAL 53/2008. Further, in all three cases the application to amend arose during the course of the substantive hearing. That is a long way from the present situation, where there is no trial date.

18.  Mr Chan argues faintly that there is prejudice to the Director in the widening of the scope of the application for judicial review. But he was unable to identify precisely any particular prejudice. With no date for trial, the Director and those advising him have ample time within which to file any further evidence that the Director considers upon advice might be necessary, formulate the arguments, and generally prepare for trial. There is no prejudice to the Director.

19.  There is an issue of delay.

20.  The decision of the Director that is under challenge was made on 6 February 2009, and leave was granted to the applicant to bring the challenge on 14 July 2009. The decision in Gurung Ganga Devi was handed down on 23 September 2009. By summons dated 19 February 2010, the application for joinder was made. Normally, an application for judicial review must be brought within three months of the date of the decision under challenge: see O53 r 4 RHC.

21.  Strictly, the right of Mr Gurung to challenge the decision, in the way he now seeks, arose as long ago as 6 February 2009, and the application ought to have been brought by 6 May 2009. But the development of the law in relation to the application of the Basic Law to government policies such as immigration policy is an evolving matter. Although the policy as it now stands is a policy that was formulated after 1997, in principle it is a long-standing policy. Establishing the precise interface between immigration policies and the rights enshrined in the Basic Law is a difficult and delicate matter, usually having considerable impact on the lives of the individuals involved. This is especially so when it is not always apparent precisely where rights might arise that might impact upon a particular decision.

22.  In the circumstances of the case I am prepared to treat 23 September 2009, as being the date upon which those advising Mr Gurung might have become aware of rights that might be available to him. So the application for joinder was made nearly 6 months after the decision in Gurung Ganga Devi. Notwithstanding the delay, Mr Chan did not, properly in my view in the circumstances, press the matter of delay as a basis upon which leave should be refused.

23.  In the absence of prejudice to the Director, and having regard to the nature of the proceedings, raising as they do important constitutional issues of the rights of families resident in Hong Kong to live together as an extended family unit, I am satisfied that the delay is not such that I should refuse leave to amend the application of the judicial review and for joinder.

24.  There will accordingly be an order granting leave to amend the application for judicial review in terms of the draft filed, and an order in terms of paragraph 1 of the summons dated 19 February 2010 and joining Mr Gurung as an applicant party to the proceedings.

25.  I give the following directions for the future conduct of the proceedings:

(1)	Mdm Gurung and Mr Gurung must file any further affidavits they wish to file in support of the amended application for judicial review by 17 June 2010.
(2)	The Director must file any affidavits he wishes to file in response by 14 July 2010.
(3)	Mdm Gurung and Mr Gurung may file further affidavits if so advised, those affidavits being confined to matters in reply, by 28 July 2010.
(4)	The application shall thereafter be set down to hearing before a judge in the Constitutional and Administrative Law List on the first available date, one day allocated, in consultation with counsels diaries.
(5)	Leave is reserved to apply.

26.  Both Mdm Gurung and Mr Gurung are on legal aid. There will be an order nisi that the cost of the summons will be in the cause, and both applicants’ own costs will be taxed on Legal Aid Regulations.