ABAYOMI BAMIDELE FAYOMI v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 60/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 60 OF 2009

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J U D G M E N T

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INTRODUCTION

1.  The applicant is a Nigerian national who first entered Hong Kong in 1994 as a visitor to “explore business opportunities in Hong Kong and China”.  On 4 August 1996, he married Ms Fancy Linda Elizabeth (“Ms Fancy”), who was then permitted to remain in Hong Kong on time limitation and who later became a Hong Kong permanent resident in 2001.  By reason of that marriage, the applicant was permitted to remain in Hong Kong as Ms Fancy’s dependant on 4 April 1997, and obtained an “unconditional stay” on 20 May 2003.

2.  On 12 April 2005, the applicant was convicted of three criminal charges each for dealing with property known or believed to represent the proceeds of an indictable offence (arising from, it would appear, an internet fraud) and sentenced to a term of imprisonment of three years and three months in total.

3.  On 10 April 2007, the applicant applied for verification of eligibility for permanent identity card (“VEPIC Application”). The application was rejected by the Director of Immigration (“the Director”) on 9 May 2007 on the ground that the applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately before the date of the VEPIC Application.

4.  On 22 May 2007, a deportation order (“the Deportation Order”) was made against the applicant requiring him to leave Hong Kong and prohibiting him from being in Hong Kong at any time thereafter.

5.  In his original notice of application for leave to apply for judicial review (“Form 86”) dated 21 May 2009, the applicant sought to challenge (i) the Director’s decision dated 9 May 2007 to reject the VEPIC Application, and (ii) the Secretary for Security’s Deportation Order dated 22 May 2007.

6.  The applicant’s original application for judicial review was dismissed by Saunders J in his judgment given on 16 December 2009.  When the matter came before the Court of Appeal, the applicant sought, and was granted, leave to amend the Form 86 to challenge “the Director of Immigration’s failure to verify the applicant’s application for permanent resident status through the submission of a form ROP 1 on 20 May 2003”.

7.  By a judgment of the Court of Appeal handed down on 15 April 2013 (“the CA Judgment”), the Court of Appeal allowed the applicant’s appeal against the judgment of Saunders J on the basis that the Director, in his capacity as the Commissioner of Registration (“the Commissioner”) and acting through a registration officer, had failed to discharge his duty “to inquiry, to clarify, which of the identity cards referred to at the heading of the form [ROP 1]” (ie, a “permanent identity card” or “identity card”) was sought by the applicant when he made the application on 20 May 2003 (see paragraph 19 of the CA Judgment).

8.  The Court of Appeal directed that the issue of whether the applicant suffered any “prejudice” as a result of the aforesaid breach of duty should be remitted to the Court of First Instance for argument and determination (see paragraph 41 of the CA Judgment).  The Court of Appeal further directed that the question of whether relief should be refused on the ground of delay should also be remitted to the Court of First Instance for consideration afresh (see paragraph 44 of the CA Judgment).

9.  This is my judgment on the issues remitted by the Court of Appeal for determination by the Court of First Instance.

BACKGROUND FACTS

10.  The detailed background facts of this matter are set out in the CA Judgment.  No useful purpose will be served by re-stating those facts in my own words.  I set out below various passages in the CA Judgment as a sufficient summary of the relevant facts and to identify the context of the issues on which I am now required to make a determination:-

“ 1 The applicant is a national of Nigeria who has lived in Hong Kong, in various immigration capacities, since 1994. In 2004 he was arrested for an offence of dealing with property which he knew or believed to represent the proceeds of an indictable offence and he was remanded in custody pending trial for that offence. He was convicted in April 2005 and sentenced to 3 years 3 months’ imprisonment. On 22 May 2007 the Secretary for Security made an order that the applicant be deported. However, a deportation order may not lawfully be made in respect of a permanent resident of the HKSAR. The Director of Immigration had concluded that the applicant was not eligible for the status of permanent resident; whereas the applicant claimed that he was.

2 This conflict triggered the judicial review proceedings with which this appeal is concerned: the applicant challenged the Director’s decision that he was not eligible for that status as well as the Secretary’s decision to deport him.

3 The application to the Director for verification of eligibility for a permanent identity card was made on 29 March 2007, that is to say, whilst the applicant was serving his term of imprisonment and since periods of imprisonment do not constitute ordinary residence for the purpose of art. 24(2)(4) of the Basic Law and since the seven continuous years of ordinary residence must have been completed immediately before the time when an application for permanent residence is made under that limb of eligibility, the application was destined to fail: see art. 24 Basic Law and Fateh Muhammad v Commissioner of Registration and Another. Accordingly, on the application for judicial review, Saunders J dismissed the challenge to the Director’s decision of 9 May 2007 that the applicant was not eligible for permanent resident status. This appeal does not contest that aspect of the decision in the court below.

4 However, the focus of the proceedings below shifted from administrative decisions in May 2007 to events in 2003. This was because in January 2003 the applicant had made an application to the Director for unconditional stay in Hong Kong. That application was made against the following background.

5 The applicant had first entered Hong Kong in August 1994 on a visitor’s visa and it was as a visitor that he regularly entered and left and re-entered Hong Kong between that date and April 1997. In August 1996 he married a Hong Kong permanent resident. On 4 April 1997 he was granted conditional stay as a dependent of his wife, that new status to be effective as from 31 March 1997. It is now accepted, as the judge found, that whilst in Hong Kong as a mere visitor he could not, as a matter of law, be ordinarily resident here. But, assuming that he was on and from 31 March 1997 ordinarily resident in Hong Kong and remained so continuously thereafter, he could on and after 31 March 2004 successfully seek verification for eligibility as a permanent resident, provided also that he was able truthfully to state on the date of his application that he had adopted Hong Kong as his place of permanent residence.

6 Against that background, he applied in January 2003 for unconditional stay. On 20 May 2003 and at the invitation of the Director, he attended the Immigration Department pursuant to that application where a decision was made that day to grant him unconditional stay. Since, as a result, he was entitled to a different identity card evidencing that new status, he was given a form ROP 1, which is an application form ‘for a permanent identity card/ an identity card’. He filled it in. To the question: ‘Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?’ he ticked the ‘Yes’ box.

7 It seems that the form was presented to a registration officer; an officer acting on behalf of the Commissioner for Registration. The applicant was provided by the Registration of Persons section with a new identity card marked ‘U’ to denote his unconditional stay status but nothing was said to him about permanent residence status or a permanent identity card.

8 The judge concluded, relying on the decision of this Court, differently constituted, in Yoothip v Secretary for Security & Commissioner of Registration, that the Commissioner of Registration was obliged to treat the form ROP 1 completed by the applicant as a claim by him for eligibility for permanent resident status and that the document should have been referred to the Director for consideration of that claim. But he recognized that had the application been treated as an application for verification of permanent residence status, it would have failed because by 20 May 2003, seven years of ordinary residence had not been completed.

9 However, the applicant then argued that had the Director properly discharged his duty on 20 May 2003 by referring the application for an identity card for verification of status, the applicant would have been advised that his period of residence whilst a visitor did not constitute ordinary residence for the purpose of his application, wherefore he would then have realised that he should renew his application on or after 31 March 2004. In short, so the argument ran, the applicant was, by reason of this breach of duty in May 2003, deprived of the opportunity of making an application during the period of his eligibility for permanent residence verification; put by the applicant as the period between 31 March 2004 and the time of his incarceration in September 2004.

…..

13 The relief now sought, by way of proposed amendment to the notice of application, is an order of mandamus requiring the Director of Immigration to process the form ROP 1 submitted on 20 May 2003 as an application for permanent residence status and as if made on 31 August 2004. The latter date is chosen because it is shortly prior to the applicant’s arrest and remand in custody in the late summer of 2004, when, on one view, continuous ordinary residence was interrupted. The current state of the law is that continuous ordinary residence is only interrupted from the date of sentence, if the sentence is one of imprisonment; as to which I note that the original Notice of Application asserts that the Director ‘failed to advise the Applicant properly as to his right to apply for permanent residency in the period from 20^th May 2003 to April 2005’ (the date of sentence). The Notice went on to assert that had the applicant been notified in or about May 2003 that ‘his application for permanent identity card failed because of insufficient period of ordinary residence, he would have applied for permanent residency again in 2004 or any time thereafter but before the applicant was sent to prison in 2005.’

…..

     19    … But even so, I would respectfully suggest that it is incumbent upon the registration officer to treat the form ROP 1 application by a non-Chinese citizen as an application for a permanent identity card only where the applicant asserts either orally or in writing that that is what he wants.  Where it is clear that the application is an application for a permanent identity card, the duty, naturally, is to treat it as such and to refer it for verification of that status.  Where, however, that is not clear, fairness dictates only a duty to inquire, to clarify, which of the identity cards referred to at the heading of the form is sought.  That duty arises because the form is not itself an application for verification and because the assertion that one has been ordinarily resident for seven years is not an assertion that one has taken Hong Kong as one’s place of permanent residence.  Nor, in my opinion, absent an application for verification, is there a duty to advise an applicant that he is or may be entitled to a permanent identity card although there is a duty, if asked the question, to notify a prospective applicant of the conditions precedent to the issue of such a card.  All of this is to state no more, in my opinion, than the obvious in terms of fair and manageable administration.”

THE EVIDENCE BEFORE THE COURT

11.  Subsequent to the handing down of the CA Judgment on 15 April 2013, none of the parties filed any further affidavit or affirmation in this application.  Accordingly, the evidence now before me consists of the original affidavits or affirmations, together with the respective exhibits thereto, which were before the Court of Appeal.  In addition, at the hearing before me, the applicant and Ms Fancy were cross-examined by Ms Sit (for the respondents) and re-examined by Mr Dykes SC (for the applicant).

THE DOCUMENTARY EVIDENCE

12.  Subject to the evidence of the applicant and Ms Fancy which I shall examine below, the documentary evidence indicates that at all material times the applicant was fully aware (i) of the distinction between the “unconditional stay” and “permanent resident” status, and (ii) that he had not applied to become a Hong Kong permanent resident prior to  around 10 April 2007.  The following documents are of particular relevance in this regard.

13.  First, the applicant made an application for “unconditional stay” on a form entitled “Application for an Extension of Stay” dated 21 January 2003.  In one of the boxes in the application form, the word “UNCONDITIONALLY” was filled in after the printed words “I now apply to extend my stay until”.

14.  Second, in a document entitled “Application for Unconditional Stay (Declaration of applicant aged 18 or over)” signed by the applicant dated 21 January 2003, the applicant stated that he was applying for “unconditional stay” in Hong Kong.

15.  Third, in the sponsorship form signed by Ms Fancy in support of the applicant’s application for unconditional stay which was received by the Director on 22 January 2003, Ms Fancy stated that she was willing to sponsor her spouse (ie the applicant) in applying for “unconditional stay” in Hong Kong.

16.  Fourth, by a standard form letter dated 7 May 2003, the Director asked the applicant to attend the office of the Immigration Department regarding “your application for extension of stay/unconditional stay”.  The applicant was also asked to bring along his passport and his or his spouse’s financial proof.  It may noted the other printed option on that letter (namely, “your application for Hong Kong Special Administrative Region Passport/Hong Kong Document of Identity”) plainly had no relevance to the applicant’s situation.

17.  Fifth, in Ms Fancy’s letter which was sent by fax to the Immigration Department on 24 December 2005 (“the December 2005 Letter”) objecting to the proposed deportation of the applicant, Ms Fancy stated, in paragraph 2, as follows:-

“ He [ie the applicant] has lived in Hong King in excess of the seven years which is required in order to apply for permanent residence. He has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such.”

18.  Sixth, in the applicant’s own letter to the Director dated 20 March 2007 (“the March 2007 Letter”) which he wrote during his interview by an officer of the Immigration Department while he was still in prison setting out his reasons for objecting to his proposed deportation, the applicant stated, inter alia, as follows:-

“ As at January 2003 I got the application forms for an unconditional stay and permanent stay in Hong Kong. I got the application forms from immigration department in Wanchai in 2003. But I was busy travelling mostly between HK and mainland China, so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time…”

19.  The contents of the March 2007 Letter are consistent with the file minute prepared by the immigration officer who interviewed the applicant on 20 March 2007.  In that minute, it was recorded that:-

“ Subject stated that he should have right of abode in Hong Kong. However, he was just too busy in 2003 and applied for unconditional stay only. He had furnished an undertaking to state his claim …”.

20.  Seventh, in an undated letter written by the applicant giving his instructions to his former solicitors (which the applicant at one stage in his evidence said was written in his former solicitors’ office after he had been released from detention in June 2007 but later suggested it might have been written while he was still in detention), the applicant stated, inter alia, as follows:-

“ In 2003, I was granted unconditional stay in Hong Kong.”

21.  Eighth, in a further letter from the applicant to the Director dated 31 May 2007 to object to his proposed removal from Hong Kong, the applicant stated, inter alia, as follows:-

“ … I have unconditional stay status. As such I have a right of abode in Hong Kong.”

22.  When considering the above documents, I bear in mind that the applicant, as he admitted in his evidence, has received university education and understands English.  He gave evidence before me in English.  Further, as can be seen from his passport (covering a period from 1994 to 1999) and as mentioned in his former solicitors’ letter dated 27 March 2007 to the Immigration Department, he used to travel frequently to English speaking countries (including the USA and Canada) to do business.  There is no reason to believe that the applicant did not mean what he said in the various documents mentioned above.  In so far as Ms Fancy is concerned, she is a British born Australian national, and obtained her Hong Kong permanent resident status in 2001.  She accepted in her evidence that she understood the difference between unconditional stay and a permanent identity card.

THE EVIDENCE OF THE APPLICANT AND MS FANCY

(i)      The Application for an Extension of Stay

23.  In relation to the Application for an Extension of Stay, the applicant alleged, when giving evidence in cross examination, that the word “UNCONDITIONALLY” was not written by him but by someone else (presumably the immigration officer handling his application). This is a new allegation which has never previously been made by the applicant in his affirmations filed in this application or in letters written by him or by his solicitors on his behalf.

24.  In any event, even if, which I do accept, the word “UNCONDITIONALLY” on the Application for an Extension of Stay was not written by the applicant, I consider that the applicant knew full well, in January 2003, that what he applied for was unconditional stay.  It was clear from the application form itself that the applicant’s application was for an extension of stay.  The nature of his application (namely, for unconditional stay) was clearly stated in the document entitled “Application for Unconditional Stay (Declaration of applicant aged 18 or over)” signed by the applicant dated 21 January 2003, the sponsorship form signed by Ms Fancy received by the Director on 22 January 2003, as well as the letter sent by the Director to the applicant dated 27 May 2003 asking him to attend the office of the Immigration Department regarding his application.  In my view, the applicant’s allegation that the word “UNCONDITIONALLY” on the Application for an Extension of Stay was not written by him (even if true) would not materially affect the determination of the question of whether he was aware of the difference between unconditional stay and permanent resident status, and whether he suffered any prejudice as a result of the breach of duty of inquiry on the part of the Commissioner as found by the Court of Appeal.

(ii)     The December 2005 Letter

25.  In respect of the December 2005 Letter, Ms Fancy’s evidence is that on 24 December 2005, when she was on her way to the airport, she received a call from an immigration officer who told her that the Immigration Department was minded to deport the applicant.  According to Ms Fancy, she was surprised by what the immigration officer said to her because she thought that the applicant had already become a Hong Kong permanent resident having resided in Hong Kong for over 7 years and it was not possible for a permanent resident to be deported from Hong Kong.  However, she was told by the immigration officer that the applicant was not a Hong Kong permanent resident because he had not applied to become one and that he only had the unconditional stay status.  Ms Fancy said she was curious and puzzled by what the immigration officer said but decided not to argue with him because she was then in a hurry.  She further said that the immigration officer asked her to write three reasons in support of the applicant’s position and explain why he did not apply for the permanent resident status previously.  Ms Fancy said that the immigration officer told her that the matter was urgent and she could fax her representations to the Immigration Department from the airport.  According to Ms Fancy, she was under “stress” at that time as her flight would soon be departing.  Thus, she “just tried to write down an excuse for [the applicant]” that he was too busy to apply for the permanent resident status, because she thought that “it was the most common excuse for anyone who omitted to do something”, such excuse being her “personal feeling rather than a statement of fact” (see paragraph 10 of Ms Fancy’s affirmation filed on 4 November 2009).

26.  Ms Fancy also said, in her oral evidence, that because she had been told by the immigration officer that the applicant did not have the permanent resident status, she had “got to incorporate that” in the reasons she gave in her letter in support of the applicant.

27.  In the December 2005 Letter, Ms Fancy gave two other reasons to object to the proposed deportation, namely:-

(1)     She herself was a Hong Kong permanent resident, and the proposed deportation of the applicant would split up her family as she would not be able to see him.

(2)     The applicant was used as an “accessory to the crime” and it had not been proven in any way that he was guilty of the offences for which he had been convicted in the first instance.  In her words, the applicant was “an innocent by-stander”.

28.  While these two reasons might or might not be valid, they were certainly rational.

29.  I have carefully considered Ms Fancy’s explanation as to why, in the December 2005 Letter, she would state that the applicant “has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such”.  I bear in mind that the applicant and Ms Fancy have divorced, and thus there may be less incentive for her to make up a story to support the applicant’s case.  I am, however, unable to accept her explanation.  I accept that Ms Fancy might well have been under time constraint or, in her words, “under stress”, when she wrote the letter on her way to the airport on 24 December 2005.  However, she was plainly aware, as she admitted in her evidence, of the importance of the matter.  I do not accept that Ms Fancy would simply make up a reason to explain why the applicant did not apply for the permanent resident status previously.

30.  In my view, Ms Fancy stated in the December 2005 Letter that the applicant had an “unconditional stay” and was “eligible” for permanent residence in Hong Kong but was too busy to apply for it because she honestly thought that was indeed the position.

(iii)    The March 2007 Letter

31.  In the Form 86 and his affirmations, the applicant alleged that he wrote the March 2007 Letter under the dictation of an immigrant officer in the course of an interview while he was still in prison on or about 20 March 2007.

32.  In his evidence given under cross examination, the applicant went further and alleged that during the interview, the immigration officer brought up the December 2005 Letter written by Ms Fancy and dictated to him a letter to explain why he had not made an application for the Hong Kong permanent resident status previously. The applicant did as instructed by the immigration officer but after he had read through the letter, he told the immigration officer that he could not sign it and then tore it up. Thereupon, the applicant wrote another letter again under the dictation of the immigration officer and that became the March 2007 Letter.  According to the applicant, all these happened while he and the immigration officer were in an interview room and the whole proceedings were captured by video recording.

33.  The applicant’s allegation that he wrote an earlier letter under the dictation of an immigration officer in his interview on 20 March 2007 which he tore up and then proceeded to write another letter under dictation is a new allegation which has never been mentioned in the Form 86/Amended Form 86 or in any of his previous affirmations.  The suggestion that all these were done in front of a video recording machine in an interview room in the prison is, in my view, incredible.

34.  I do not accept the applicant’s allegation that the March 2005 Letter was written by him under the dictation of an immigration officer.  I consider that the contents of that letter reflected what he genuinely thought to have been the position at that time, in particular he applied for unconditional stay only but not for a Hong Kong permanent identity card because he was busy travelling between Hong Kong and China and thought that he could apply for one at any time convenient to him.

35.  For the sake of completeness, I should address a point mentioned at paragraph 32 of the CA Judgment in respect of the meaning of the applicant’s statement in the March 2007 Letter that he “submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time”.  I do not read that statement as meaning that the applicant thought that a permanent identity card would follow, or automatically follow, from an unconditional stay.  That statement, it seems to me, should be read in context, in particular the sentence preceding it, ie “But I was busy travelling mostly between HK and mainland China”. I consider the applicant to be saying simply that he thought that he could apply for and obtain a permanent identity card at any time to his convenience, but he did not do so at that time because he was too busy travelling between Hong Kong and mainland China.

(iv)     The applicant’s knowledge that he had not gotaHong Kong permanent resident status

36.  Having regard to the documentary evidence and the matters mentioned above, I consider it to be clear that the applicant knew, in January 2003, all that he was applying for at that time was unconditional stay.  It is, however, the applicant’s evidence that in May 2003, he intended to apply for a Hong Kong permanent identity card.  The applicant also said that he was unaware of the difference between unconditional stay and permanent resident status, and thought that he had been issued with a Hong Kong permanent identity card.

37.  According to the applicant, when he attended the Immigration Department in answer to the letter of 7 May 2003, he first went to the 7^th floor of the building where, apparently, he had his passport endorsed with a note to the effect that all conditions of stay were cancelled.  Afterwards, he was directed to go to the 8^th floor of the same building to change his identity card.  The applicant said that he made it known that he wanted a permanent identity card and he was given the Form ROP 1.  He filled in the form, ticking the “yes” box in answer to the question “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years”, and submitted it to the Immigration Department.  Later, the applicant was issued with a new identity card.

38.  Significantly, the applicant said, in his oral evidence, that after he had got his new identity card, he compared it with Ms Fancy’s identity card and noticed a difference between the two, in that her identity card bore the words “permanent” or “permanent resident”.  The applicant thought that he had also been issued with a permanent identity card, even though the identity card that he obtained did not say so.  The applicant came to that view because (according to him) he had got an endorsement in his passport stating that he no longer required a visa to enter Hong Kong, and he thought that Ms Fancy, being British or a British passport holder, would be given an identity card bearing the word “permanent” or stating her status as a “permanent resident”.  The applicant also said that only Chinese and British would be given identity cards bearing the words “permanent” or “permanent resident”.

39.  The applicant’s suggestion that only Chinese or British would be given identity cards bearing the words “permanent” or “permanent resident” has, of course, no foundation.  What is significant, though, is his admission that when he got his new identity card in May 2003, he compared it with Ms Fancy’s identity card and noticed that the two were different in that Ms Fancy’s identity card had the word “permanent” stated thereon while his identity card did not have that word.  In my view, it must have been clear to the applicant that he did not get a permanent identity card at that time.  His suggestion that he thought he had obtained the permanent resident status because his passport stated that all conditions of stay were cancelled or he no longer required any visa to enter Hong Kong is, in my view, unsustainable.  As earlier mentioned, the applicant knew full well that what he applied for in January 2003 was unconditional stay and his application was successful. Thus, he must have realised that the endorsement on his passport merely reflected his unconditional stay status but did not mean that he had obtained the permanent resident status.  I do not accept his assertion made in his re-examination that he understood unconditional stay to be the same as permanent residence.

40.  In all, I find that the applicant knew, when he obtained his new identify card in May 2003, that that he did not obtain the Hong Kong permanent resident status and was not issued with a Hong Kong permanent identity card.

FINDINGS ON THE ISSUE OF PREJUDICE

41.  For the reasons given above, I make the following findings of fact:-

(1) the applicant was aware, in January 2003, that what he applied for was unconditional stay;

(2) the applicant knew, when he got his new identity card in May 2003, that he did not obtain the Hong Kong permanent resident status and was not issued with a Hong Kong permanent identity card;

(3) the applicant was at all material times aware of the difference between the unconditional stay and Hong Kong permanent resident status; and

(4) the applicant did not apply for a Hong Kong permanent identity card between 31 March 2004 (the date when, on one view of the matter, he may be regarded as having been ordinarily resident in Hong Kong for not less than 7 years) and 12 April 2005 (the date when he was sentenced to imprisonment) because he thought that he could apply for one at any time to his convenience and he was either too busy or did not see any urgent need to do so during that period.

42.  It follows from the above findings that I do not consider that it would have made any difference even if the Commissioner had not failed in his duty to “inquire” or “clarify” in May 2003 as found by the Court of Appeal.  In other words, the applicant did not suffer any prejudice as a result of that breach of duty.

43.  In passing, I should mention that there is a short affirmation filed by Tsui Pui Pui, the applicant’s business partner since 2000, in support of the applicant’s application.  Her evidence is largely based on what she allegedly was told by the applicant, in particular she says that the applicant told her that he was already a Hong Kong permanent resident many years ago.  Having rejected the applicant’s direct evidence on the central issues mentioned above, I am not prepared to attach weight to the affirmation of Tsui Pui Pui.

DELAY

44.  In view of my conclusions above on the issue of prejudice, I propose to deal with the issue of delay briefly.

45.  As mentioned in paragraph 42 of the CA Judgment, the Form 86 was filed in May 2009, two years after the deportation order and the decision to reject the VEPIC application in 2007, and six years after the events of May 2003.  There was undoubtedly substantial delay in making the present application.  Nevertheless, the Court of Appeal has granted leave to the applicant to amend the Form 86.  The issue is therefore not whether there is good reason for extending the period for making the present application, but whether the court should refuse to grant relief on the ground that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration under section 21K(6) of the High Court Ordinance (Cap 4): see R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 at 341A-F.

46.  If the applicant succeeds in the present application, his VEPIC application should be considered afresh by the Director.  One of the issues which the Director will have to decide is whether the applicant can satisfy the permanence requirement, which is a fact sensitive issue.  With the long passage of time, it would no doubt be more difficult to arrive at a proper determination of that issue.  However, the burden remains on the applicant to satisfy the permanence requirement.  Moreover, this is an isolated case.  I am not satisfied that granting relief in the present case would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.  Accordingly, if I should have found in favour of the applicant on the issue of prejudice, I would not be minded to refuse to grant relief merely on the ground of delay.

DISPOSITION

47.  For the reasons given above, I dismiss the applicant’s application for judicial review.  I also make an order nisi that the applicant shall pay to the respondents their costs of this application, to be taxed if not agreed.  The applicant’s own costs are to be taxed in accordance with legal aid regulations.

48.  Finally, it remains for me to thank counsel for the assistance that they have rendered to the court.