MAGAR JAMUNA JARGA v. DIRECTOR OF IMMIGRATION

HCAL 65/2021

[2021] HKCFI 334

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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D E C I S I O N

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1.  These proceedings were commenced by a Form 86 Notice of Application for leave to apply for judicial review dated 18 January 2021 filed by the applicant then acting in person. The notice seeks to challenge a decision said to be contained in a letter dated 11 January 2021 from the Director of Immigration, which the applicant says requires her to depart from Hong Kong by 19 January 2021, even though she has a legal aid appeal pending in relation to an underlying challenge she wishes to make to a decision that she has overstayed and that she is not entitled to an extension of any visa.

2.  The letter itself says that after considering the COVID-19 pandemic situation, the applicant is now required to depart from the Hong Kong Special Administrative Region, the HKSAR, on or before 19 January 2021.  It goes on to say that the applicant’s limit of stay in the HKSAR has expired since 25 December 2018 and that she has since been overstaying.  It asked that it be noted that the applicant’s continuous presence in the HKSAR without the permission from the Director of Immigration after the expiry of her limit of stay since 25 December 2018 amounts to a breach of condition of stay which might render the applicant liable to prosecution.  The letter states that it is intended to facilitate her departure.

3.  Indeed, Mr Sunny Li, senior government counsel for the putative respondent, the Director, identifies that the letter is precisely one to facilitate her departure so that, for example, she would not be arrested at the border when she departs.  Mr Li submits that it is not an order or any indication that if she does not depart on a particular date she would forthwith be arrested and/or removed by force.  I understand that a subsequent letter extended the date of 19 January to 26 January 2021.

4.  This morning, the applicant applies to me for an injunction to restrain the director from requiring her to leave Hong Kong, pending her legal aid appeal, which is fixed to be heard before the Registrar of the High Court on 25 March 2021, and in circumstances where the purposes of that appeal are for the applicant to seek to obtain legal representation to conduct a judicial review of the decision, I think not just of the 11 January 2021 letter but the underlying points which lead to that letter.  This morning, the applicant is represented by Mr Philip Ross of counsel.

5.  The factual circumstances of this case are slightly unusual in that the applicant is a Nepalese national now aged 40 but who has spent most of her adult life in Hong Kong.  I think the first 12 years or so were spent as a domestic helper.  But, in 2012, she married a Hong Kong resident and with effect from either November 2012 or January 2013, which may be an issue which requires resolution at a later date, she was granted a dependent visa to remain in Hong Kong.  It is well-known that the ordinary grant of dependent visas is in the pattern of a one-year visa first followed, where relevant, by two extensions each of three years.  Had those extensions been granted, they would have expired in January of 2020.

6.  In this case that did not happen because of what might be thought of as an arbitrary feature that the validity of the applicant’s passport expired in such a way that the grant of her visa was not in accordance with the usual pattern.

7.  The other feature that then occurred was that, unfortunately, the applicant’s husband died on 5 March 2018 during the then valid extension of the dependent visa but one which was due to expire and did expire on 24 December 2018. That is why it is said the applicant has been overstaying since the following day, 25 December 2018.

8.  The test applicable on an application for interim injunction in public law cases is well-settled.  The usual American Cyanamid principles apply, albeit subject to modifications to take into account the public law circumstances.  Essentially, where an interim injunction is sought to restrain a government authority from enforcing what is prima facie the law, the applicant has to go further than merely showing a serious issue to be tried and generally would need to establish a strong prima facie case.

9.  The decision is unlikely to be dealt with on the basis of adequacy of damages, but rather, on the balance of convenience test. Ultimately, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense of granting an injunction to a party who fails to establish his right at the trial or would fail if there was a trial, or alternatively, in failing to grant an injunction to a party who succeeds or would succeed at trial.

10.  In this case, Mr Li submits that there is no serious issue to be tried.  He says the extension application for visa beyond 25 December 2018 was refused and he points to the factual chronology that three applications for reconsideration were also refused.  So Mr Li submits the applicant has failed to give any reason why the refusal is unlawful in her Form 86, let alone raise any serious issue to be tried.  But as Mr Li himself points out, the challenge in the current Form 86 is not really directed at the director’s original decision but to the letter of 11 January 2021 directing her to depart by 19 January, now extended to 26 January 2021.  So it is perhaps not entirely surprising that the current Form 86 does not set out the particular challenges to the original decision, albeit that it might be thought that the lengthy affirmation filed by the applicant in support of these proceedings does set out some of the core of what would be the challenge to the original decision.

11.  Mr Li goes on to submit that, in any event, the balance of convenience does not lie in granting the injunction because the applicant simply has no right to remain in Hong Kong and that the letter she seeks to challenge is, indeed, a facilitation for her departure.  Mr Li acknowledges on behalf of the Director that, in accordance with the Director’s policy, if the applicant had actually commenced proceedings, then the Director would not seek to remove her if, of course, on a common sense basis those proceedings relate to her removal, and had a removal order already been made when such proceedings are commenced that removal would be suspended if the proceedings went to her removal.

12.  I see some force in those submissions, but to my mind, in the unusual facts of this case, there is something of an artificiality to it.  As Mr Li acknowledges on behalf of the Director in the application of that stated policy, if the applicant were today to file a Form 86 seeking to challenge the underlying original decision, then no steps would be taken by the Director to remove her pending probably the determination of that challenge.  And so if either with the benefit of any pro bono legal advice or acting in person the applicant were to file such a Form 86 today or in the next few days, the policy would be triggered.  But any such application would almost certainly fall for substantial amendment if the legal aid appeal is successful and the applicant is granted a certificate for legal aid so that she has the benefit of making the challenge with legal advice.  So it does seem to me that there is some artificiality in seeing a real distinction between a Form 86 challenging the underlying decision and the legal aid appeal which seeks legal aid for the purposes of challenging the underlying decision.

13.  I acknowledge Mr Li’s point that if legal aid is ultimately refused, that would still leave it open to the applicant at that time to file a challenge on the basis that she acts in person.  But one can readily see that that point does not cover the interim period and in the context of judicial review proceedings, there is some potential problem in the chronology if proceedings are started in person only after the legal aid appeal.  Whether those chronology matters relate to an appeal started with legal advice and representation after a legal appeal, I will not visit for present purposes.

14.  Looking at the matter in the round and where the opposition by the Director to the application today is both as a matter of principle, which I understand, and secondly, because any injunction, if granted today, would prevent the Director from seeking the applicant’s removal, if he were so minded to do at any time from now up to and including and even prior to 25 March 2018, it seems to me that the balance falls in favour of the applicant.  The practical reality in this case is that the proceedings that constitute the legal aid appeal might be thought of, though I do not resolve the point, as being legal proceedings essentially going to the underlying challenge to the decision which would lead to removal.  There are also real practical issues presently in place arising, amongst other things, from the current health pandemic.  Those practical difficulties include the real potential difficulty as well as the affordability for the applicant to travel to Nepal now and to return in time to conduct her legal aid appeal in person and to afford to pay for the return flight and the at present 21-day quarantine requirement on any return, and to overcome any potentially real difficulties in obtaining a visa which would permit that return.

15.  So I take the view that the lower risk of injustice in this case, if it should turn out that the decision I make is wrong, leads to the grant of the injunction and I so order.

(Submissions re costs)

16.  I will order the costs to follow the event, but I will deal with those on a summary basis.

17.  Mr Ross, I will give your side 7 days to produce a skeleton bill to me and to Mr Li, and Mr Li, I will give you 14 days either to agree an amount with the other side or to make any objections to me and I will assess on a summary basis on the papers afterwards.