SHAWNAVASUDEEN MUSAHUDDEEN v. THE DIRECTOR OF IMMIGRATION

HCAL 1727/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1727 OF 2000

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J U D G M E N T

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1. This was originally the hearing of an application for judicial review by the Applicant against a decision made by the Director of Immigration on 18 July 2000 refusing to grant the Applicant a change of immigration status to take up residence in Hong Kong as a dependant of his father. However, at the beginning of the hearing, Mr Harris, appearing for the Applicant, applied to amend the Applicant's Notice of Application for leave to apply for judicial review (Form No. 86A) in order to challenge two further decisions, namely, the decision of the Director of Immigration made in about May 2001 and communicated to the Applicant by a letter dated 10 May 2001 to maintain his decision of 18 July 2000, notwithstanding the submission of further material by the Applicant to the Director after the first decision was made, and the decision of the Chief Executive in Council made on 4 December 2001 and communicated to the Applicant on 13 December 2001 to confirm the decision of the Director of Immigration made on 18 July 2000.

2. This application was strenuously opposed by Mr Li, counsel for the Respondent. This is a judgment on the application for leave to amend.

3. The Applicant's father is a permanent resident of Hong Kong. On 18 May 2000, the Applicant's father returned to Hong Kong after a period of absence. He brought along the Applicant with him who entered and remained in Hong Kong as a visitor. On 22 May 2000, the Applicant submitted an application to the Immigration Department to remain in Hong Kong as his father's dependant. The Applicant had been a student in a diploma course in a polytechnic in India. He had just completed his course, and was at the time awaiting his final results.

4. After investigation and consideration of the Applicant's case, by a letter dated 18 July 2000, the Director of Immigration refused the Applicant's application because he was not satisfied that the Applicant was genuinely dependent on his father and that he came to Hong Kong to join him as his dependant; moreover, the Director was not satisfied that the Applicant's father was financially capable to support the Applicant's living in Hong Kong.

5. Counsel and solicitors were immediately retained by the Applicant to raise an objection, pursuant to section 53 of the Immigration Ordinance (Cap. 115), in respect of the Director's refusal, which objection was duly made by counsel on 24 July 2000.

6. Following further correspondence, an application for leave for judicial review was taken out on behalf of the Applicant on 7 August 2000. Leave was granted on 8 August 2000.

7. In the meantime, the Applicant's final results in his diploma course were known. The Applicant was awarded first class honours in the diploma course. The Applicant also made a late application to the Hong Kong Polytechnic University for a place in a full-time degree course, and in doing so he was departing from his earlier stated intention to further his studies together with obtaining employment in Hong Kong at the same time if he was allowed to stay as a dependant of his father.

8. All these new changes in circumstances were communicated on behalf of the Applicant to the Immigration Department. Indeed, counsel for the Applicant made a request to the Director of Immigration to carry out "an early reconsideration" of the Applicant's case in the light of the "very considerable changes of circumstances". I should add that further information relating to the employment and financial position of the father had been supplied.

9. After obtaining leave to apply for judicial review, those representing the Applicant decided not to fix a date for the substantive hearing of the application, pending the outcome of the objection raised pursuant to section 53(1) of the Immigration Ordinance, which took the matter to the Chief Executive in Council. This course was apparently agreed to by those representing the Respondent.

10. After further correspondence and representations, Comments were placed by the Director of Immigration before the Chief Executive in Council in order to enable the latter to consider the objection.

11. However, the decision of the Chief Executive in Council took quite some time to make. On 4 December 2001, the Chief Executive in Council eventually decided to confirm the decision of the Director of Immigration made on 18 July 2000.

12. In the meantime, i.e. in May 2001, the Director of Immigration had made another decision, which was communicated by a letter dated 10 May 2001 to the Applicant, to maintain his decision of 18 July 2000, notwithstanding the alleged substantial changes in circumstances and new material and information supplied to the Director.

13. After the result of the Chief Executive in Council was known, a hearing date was fixed for the present application for judicial review. It was fixed to be heard before Hartmann J on 17 May 2002.

14. Yet on 29 April 2002, the Applicant filed a notice to act in person. On the following day, he applied for legal aid, which was granted one day before the scheduled hearing on 16 May 2002.

15. In those circumstances, the scheduled hearing could not take place and the matter had to be adjourned. At one stage, it was hoped that the matter could be re-listed for hearing during the vacation. However, due to the inconvenience of the Applicant's counsel, that was not to be. The hearing was eventually adjourned to 4 November 2002, and that was how the matter came before me for adjudication.

16. In the meantime, the original counsel who had been acting for the Applicant since July 2000, and who was the first counsel assigned by the Legal Aid Department, was unavailable to handle the substantive hearing on the adjourned date. Mr Harris was assigned by the Legal Aid Department in June 2002, and papers only reached his chambers in August when he was away on vacation. It should be noted that the same private solicitors who used to represent the Applicant before he acted in person were assigned by the Legal Aid Department to handle the present case.

17. Admittedly, Mr Harris only had sight of the papers when he returned in September, but he said there was nothing on the face of the papers which alerted him to any urgency in the matter. The subject matter of the present application to amend only caught Mr Harris' eyes in early October when he started seriously preparing for the hearing of this case.

18. It is clear from Mr Harris' written as well as oral submissions that he did not consider that the original challenge to the first decision of the Director of Immigration made on 18 July 2000 on the basis of Wednesbury unreasonableness could really be substantiated. Instead, he saw merits in a challenge to the subsequent decision of the Director of Immigration made in May 2001 as well as the decision of the Chief Executive in Council.

19. He duly communicated his intention to do so to the other side, and his second draft Amended Notice of Application for leave to apply for judicial review, embodying his intended challenges to the two decisions, reached both the Court as well as his opponent a few days before the scheduled hearing on 4 November 2002.

20. Very briefly, Mr Harris relied on two matters that happened after the first decision of the Director of Immigration was made on 18 July 2000. First, the fact that the Applicant had obtained a first in his diploma course in India. Mr Harris complained that the Director failed to take any or any sufficient account of this fact, which was, he said, highly relevant to whether the Applicant genuinely wanted to stay in Hong Kong as a dependant of his father to pursue further tertiary education here. Mr Harris emphasized the fact that in the Comments prepared by the Director for the consideration of the Chief Executive in Council, this fact did not receive any mention at all, although the certificate evidencing the academic achievement had been included amongst the papers submitted to the Chief Executive in Council.

21. Secondly, the Applicant was prosecuted most unfairly if not oppressively, so counsel argued, for a trivial and technical breach of his conditions of stay in Hong Kong, contrary to section 41 of the Immigration Ordinance, by attending an evening course in computer in order to buttress up his computer skills as well as to kill time whilst he was waiting for the result of his objection to the Chief Executive in Council. He was given an absolute discharge by a magistrate hearing the prosecution, to which he pleaded guilty. Mr Harris complained that in the Comments, the Director mentioned specifically that the Applicant had breached his conditions of stay. This way of presenting the facts to the Chief Executive in Council, so counsel complained, was most unfair and misleading.

22. The first matter for me to consider in relation to the application to amend is the very substantial delay involved in the present case. The so-called second decision of the Director of Immigration was made in May 2001. It was not sought to be challenged until October 2002. There was thus a lapse of 17 months. In relation to the decision of the Chief Executive in Council, it was made in early December last year. The first indication that that decision was going to be challenged did not surface until October this year. That was a lapse of 10 months.

23. Mr Li argued with much force that although the present application is made apparently pursuant to Order 53 rule 6(2) of the Rules of the High Court (Cap. 4) relating to the amendment of Form No. 86A, in substance, it is an application for leave to apply for judicial review of the two later decisions out of time - and indeed very much out of time. Whilst rule 4 lays down a period of 3 months to apply for leave to apply for judicial review, that is only a deadline because according to the same rule, an applicant or intended applicant must act "promptly" to apply for leave. Moreover, in this regard, section 21K(6) of the High Court Ordinance (Cap. 4) states that where the court considers that there has been undue delay in applying for judicial review, it may refuse to grant leave or any relief sought, if it considers 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." See also the commentary in Hong Kong Civil Procedure 2002 (Vol. 1) paras 53/14/40 to 53/14/41, and the cases cited in those paragraphs.

24. Mr Li argued that in the present case, there is no "acceptable explanation for the delay"; therefore the question of prejudice does not arise. He relied on a passage in the judgment of Kennedy LJ in Regalbourne Limited v. East Lindsey District Council [1994] RA 1, 10, which was cited in another (unreported) English Court of Appeal decision in R v. Secretary of State for the Environment, ex parte Parry (18 September 1997).

25. I accept that in the present case, there is no acceptable explanation for the delay or a substantial part of it. As regards the decision of the Chief Executive in Council, there was no explanation whatsoever relating to why nothing was done between the notification of the decision in December 2001 and end of April 2002 when the Applicant filed a notice to act in person. The decision of the Chief Executive in Council had been in the forefront of the mind of the Applicant's lawyers, as was clearly evidenced by their conscious decision not to fix a hearing date for the judicial review pending the decision of the Chief Executive in Council.

26. Mr Harris has very frankly informed the Court what happened after legal aid was applied for and was granted, and in particular, why he personally only spotted the points in question in early October this year, even though he was assigned counsel of the case back in June. What he said was understandable but, without meaning any disrespect to anybody, I am not sure if I can call it "acceptable" explanation.

27. As regards the second decision of the Director of Immigration made in May 2001, I can understand why that was not sought to be challenged prior to the decision of the Chief Executive in Council was known in December that year, but the same criticism applies to the delay in relation to this decision after the Applicant was notified of the adverse decision of the Chief Executive in Council.

28. However, I have three observations to make here. First, the delay and failure to promptly challenge the two decisions was more likely the fault of those representing the Applicant, rather than that of the Applicant's personally, at the material times. The Applicant, as a layman, was during most of the time represented by lawyers, and understandably he left the handling of his case, particularly the procedural and technical side of the matter, to his lawyers. He became a litigant in person on 29 April 2002, but on the material and information before me, he promptly applied for legal aid on the following day. Legal aid was granted to him one day before the scheduled hearing, and henceforth, the matter was in the hands of lawyers again. So personally, the Applicant should not really be blamed for the delay in the matter.

29. Secondly, with respect, I do not agree that the absence of an acceptable explanation is an absolute bar to the Court's exercise of discretion in favour of granting leave out of time, or for that matter, granting an extension of time. In fact, in the passage relied on by Mr Li, Kennedy LJ simply said that: "If there is no acceptable explanation, the question of prejudice is unlikely to arise" (my emphasis). Further, I note that in ex parte Parry which as I said referred to Kennedy LJ's passage, whilst there was little or no acceptable explanation for the delay (which was caused by the misguided action taken by the applicant's solicitor there), the court was nonetheless prepared to consider other relevant matters, and eventually decided in favour of extending time.

30. Thirdly, I agree with Mr Harris that whilst in one view, this application is, in substance, an application for leave to apply for judicial review of the two subsequent decisions out of time, it is different from the normal type of cases in one important aspect. In a normal case, an adverse decision was made against an intended applicant who however, for all sorts of reasons, sat on the matter and delayed in applying for leave to challenge the adverse decision. Here, however, the Applicant had one adverse decision made against him. He promptly challenged that decision by successfully applying for leave to apply for judicial review against the decision. At the same time, he did, as he was quite entitled to do, lodge an objection with the Chief Executive in Council against the decision. The decision to await the outcome of his objection before fixing the hearing date of the judicial review application was most understandable, if not eminently sensible. The two subsequent decisions, including the adverse decision by the Chief Executive in Council, did not relate to any new matter. The decision of the Chief Executive in Council arose directly out of the first decision of the Director of Immigration, against which the Applicant has obtained leave to apply for judicial review.

31. Not only that, indeed as Mr Harris argued, a challenge to the decision of the Chief Executive in Council, in the event that it was against the Applicant, must have been an expected event on the part of the Respondent; for after all, those representing the Respondent had been notified of the intention to defer fixing a hearing date for the judicial review application pending the decision of the Chief Executive in Council and must be taken to have acquiesced in that suggestion. The point of so doing is also obvious enough: if the Applicant was successful with his objection, there would be no need to proceed with the judicial review application; if he was not successful, not only would there be a need to proceed with the judicial review application, there would most likely also be a need for the Applicant to further apply for leave to challenge the decision of the Chief Executive in Council as well.

32. As regards the second decision of the Director of Immigration, the same or similar reasoning should apply. Like the decision of the Chief Executive in Council, the second decision of the Director of Immigration took into account matters that occurred or were made known to the Director after the first decision was made. If the objection to the Chief Executive in Council had been successful, there would not be any need to challenge this second decision. On the other hand, if as it has turned out, the objection was unsuccessful, then quite obviously, there would be good reasons to challenge this second decision of the Director together with the adverse decision of the Chief Executive in Council.

33. In other words, unlike an ordinary case in which an intending applicant simply drags his feet in applying for leave to apply for judicial review against an adverse decision, I am here concerned with an applicant whose dispute with the administration was known to the other side, and whose challenge to the adverse decisions made by the administration (used loosely here to describe the decisions made by the Director of Immigration and the Chief Executive in Council) was something well expected.

34. This really leads me to the other relevant considerations that I must take into account, in considering how I should exercise my discretion in the present case. Prejudice is clearly on the forefront of everybody's mind. If I did not accede to the present application, given the dim view of Mr Harris relating to the merits of the challenge to the first decision of the Director of Immigration, which I must say is shared not only by Mr Li, but by this Court also, the result would be fatal.

35. On the other hand, despite the most able submissions made both in writing and orally by Mr Li, I cannot discern any real or substantial prejudice to the Respondent if leave should be granted. Mr Li argued that if leave was granted, the Respondent would be faced with a "completely different claim than that of the original claim". For reasons explained above, the answer is "yes" and "no".

36. Mr Li also argued that much material which came into being after the Director's first decision on 18 July 2000 has now been included in the intended review of the decision of the Chief Executive in Council and the second decision of the Director. That is true. But I do not see this as a real or substantial prejudice. Whilst I bear this in mind, the weight to be attached to this factor is limited. It is more relevant to the question of costs than anything else. In any event, despite the shortage of time, the Respondent has managed to put in further evidence in response to the proposed review of the two subsequent decisions. If need be, a further opportunity for putting in additional evidence may be given to the Respondent.

37. Finally, Mr Li argued that if the Applicant was allowed by way of leave to challenge the Chief Executive in Council's decision, it would lead to a full scale argument by the Respondent on whether a decision of the Chief Executive in Council is amenable to judicial review, and if the answer is "yes", what is the scope of the review, a matter which was decided by Hartmann J in chambers on 2 February 2001 in Gurung Bhakta Bahadur v. Director of Immigration [2001] 3 HKLRD 225. Mr Li submitted that that decision was only a decision by the Court in an interlocutory hearing. The Court did not have the benefit of full and detailed arguments. The Respondent does not agree with the decision and would like to challenge it at the first available opportunity. If I have not misunderstood Mr Li's argument in the present context, he was really trying to say that if leave was granted by the Court to allow the Applicant to challenge the decision of the Chief Executive in Council, this jurisdictional point would have to be argued in the present case, thus lengthening the proceedings considerably, and increasing substantially the effort, time and costs that would have to be expended on this case.

38. I am unable to accept this argument. In any event, it attracts limited weight in my balancing exercise. First, it is more a cost point than anything else. Secondly, the crux of the matter is whether the delay, say, for the sake of argument, of 7 months, in applying for leave to challenge the adverse decision of the Chief Executive in Council in the present case, had the effect of causing the extra length of the hearing, as well as the extra effort, time and costs that would have to be expended on this case. The answer must be "no": if the Applicant had taken out his application for leave promptly and within time, based on the argument that I have heard, and particularly in view of Hartmann J's decision, he would most likely have got leave to apply for judicial review. In that case, the present proceedings would have been lengthened by reason of the perceived necessity on the part of the Respondent to challenge the decision of Hartmann J relating to whether and how a decision of the Chief Executive in Council can be challenged by judicial review, and the "extra" time, effort and costs would have to be expended in any event. Thus analysed, the delay in taking out an application for leave to challenge the Chief Executive in Council's decision did not really lead to the extra length, effort, time and costs that would be required to resolve completely the disputes between the parties.

39. Thirdly, and in any event, as it is the avowed intention of the administration to challenge the decision of Hartmann J at the first available opportunity because of the decision's potential implications, I would have thought that it would welcome the present application for leave to amend, which if successful, would indeed afford the administration the desired opportunity to have the matter revisited by the Court.

40. As I mentioned above, insofar as section 21K(6) is relevant to the present application which refers to "hardship" as well as detriment to "good administration", whilst I can see the potential hardship to the Applicant if leave was not granted, I fail to see any corresponding or other hardship to the Respondent or anyone else if the application was acceded to. As regards good administration, whilst I agree that generally speaking, disputes of the present kind should be resolved finally as soon as possible as a matter of good administration, I do not see, and none was suggested to me, any real or substantial detriment to good administration if I granted leave to amend in the present case, which must necessarily result in further delay in the present proceedings, which I have also borne in mind.

41. As regards the merit of the intended judicial review, Mr Li very fairly did not place much if any reliance on it. In other words, he did not suggest to me that the proposed judicial review is totally unarguable or hopeless, so that there is no point whatsoever in granting leave to amend/ apply for judicial review. On the other hand, though much had been said by Mr Harris relating to the proposed judicial review, he did not go so far as to say that his intended challenge to the two latter decisions was bound to succeed, so that any refusal to allow him to do so would result in gross injustice to his client. Very fairly and properly, he did not see fit to put his client's case that high. In deciding how to exercise my discretion, I proceed on the basis, which I perceive to be the only fair and reasonable one, judging from the material before me, that the intended judicial review is arguable, and had the application been made promptly within time, I could really see no real objection to the Court's granting leave to apply for judicial review.

42. Bearing the whole of the circumstances in mind, particularly those which I have specifically mentioned above, as well as the nature of the underlying dispute in these proceedings, in the exercise of my discretion, I grant leave to amend as per the second draft Amended Form No. 86A which was submitted by Mr Harris to the Court for the purpose of his application.

43. As the matter has dragged on for long enough, I consider that I should give directions for the further conduct of the proceedings as follows:

(1) leave to the Applicant to amend Form No. 86A as per the second draft submitted by counsel within 3 days from the date this judgment is handed down;

(2) leave to the Respondent to file and serve any further evidence in opposition within 14 days from the date this judgment is handed down;

(3) leave to the Applicant to file and serve evidence in reply within 7 days thereafter;

(4) no further evidence to be filed or relied on by either party without leave of Court.

44. In view of the intention of the Respondent to argue whether a decision by the Chief Executive in Council is amenable to judicial review, and the disagreement between counsel as to whether this jurisdictional point should be heard first as a preliminarily point, or heard only if necessary after the merits of the application have been heard and dealt with by the Court, or, as part of one hearing dealing with both this jurisdictional point as well as the merits of the application, there is, in my judgment, indeed a need for a directions hearing after all evidence has been filed.

45. Furthermore, as the jurisdictional point will be argued or will potentially be argued (depending on whether Mr Li's suggested way of proceeding with the hearing is adopted by the Court or not), and as Hartmann J has already rendered a detailed decision on this jurisdictional point, I can see every advantage in having this case heard and dealt with by the learned judge as well. The learned judge, who is in charge of the present List, is already well familiar with the competing arguments on this point, which will tend to save the time and costs of the substantive hearing, and it would also tend to promote consistency. Any party not satisfied with his lordship's decision may, of course, take the point further, which is indeed the avowed intention of the Respondent if the decision of the Court in the present case should remain the same as that made by Hartmann J in the earlier case.

46. For all these reasons, I further order that subject to any further or other directions of the Court, the application for judicial review (as amended) be adjourned to a new date to be fixed, but not before the close of evidence, for a pre-trial directions hearing before Hartmann J.

47. Finally, as regards costs, the Applicant sought an indulgence from the Court. The opposition mounted against his application was most understandable and reasonable. In those circumstances, the Applicant must pay the costs of and occasioned by the application, such costs to be taxed if not agreed. Furthermore, the application for leave to amend took the whole morning of the one day fixed for the substantive hearing, and the Court also required time to consider its decision. As a result, the substantive hearing could not be carried on, and the remaining time of the hearing date was therefore thrown away. In those circumstances, notwithstanding Mr Harris' argument, I further order that the costs thrown away by the application for leave to amend, including in particular the costs thrown away by the adjournment of the hearing on 4 November 2002, be paid by the Applicant to the Respondent, such costs to be taxed if not agreed. I also order that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91).