CHEUNG KUK CHING V. DIRECTOR OF IMMIGRATION

1993, MP No.1697

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. For the applicant Mr Lam seeks leave for judicial review. Miss Watson, the Crown Solicitor, for the respondent puts in an appearance which is not being objected to. Mr Lam has assisted this Court exhausively with what I might say an excellent preparation. I do not find it necessary to call upon Miss Watson.

2. The applicant is an illegal immigrant. She has a family of four, aged 4, 3, 2 and 1 and a husband in Hong Kong. All five, I am told, are Hong Kong residents. The applicant has had some experience of being repatriated across the border. She is now facing the same fate.

3. She invited the Director of Immigration to exercise his discretion under s. 13 of the Immigration Ordinance to permit her to remain in Hong Kong. Suffice it for me to say that the exercise of power under s.13 of the Immigration Ordinance has always been a matter of discretion of very high policy content. After consideration of the applicant's s.13 application, the Deputy Director of Immigration, Mr Kwong, notified his decision to those acting for the applicant on 5th March 1993. On behalf of the Director of Immigration Mr Cho communicated with the Director of Legal Aid on 21st May 1993.

4. The Director of Immigration in his letter to those representing the applicant stated :

" In this case, the Deputy Director considered that a decision whether or not to use the Section 13 statutory power did not arise unless there were exceptional circumstances or other special aspects of the case justifying a decision to allow (the applicant) to remain. He was of the opinion that no such grounds were made out in this case."

5. Earlier in the same letter, Mr Kwong conveyed his decision in these terms :

" The Deputy Director concluded that there were no powerful humanitarian grounds or special aspects of the case which would justify a decision to allow (the applicant) ... to remain in Hong Kong."

6. In the communication with the Director of Legal Aid, the Director of Immigration said as follows :

" In this case, the Deputy Director considered that a decision whether or not to use the Section 13 statutory power did not arise unless there were exceptional circumstances, which we referred to powerful humanitarian grounds, or other special aspects of the case justifying a decision to allow (the applicant) to remain. In so doing, he understood and applied the statutory framework in a manner which was wholly correct."

Therefore, the decision can be taken as communicated to the application on 5th March 1993. Between 5th to 16th March, on advice, the applicant was considering petitioning to the Governor. Some further time, the Court was told, was spent on making an application for legal aid. The period was between 16th March to 4th June. On 4th June, the applicant was sent for by the Legal Aid Department. She attended the Legal Aid Department offices with her husband. They were thereupon told by the Legal Aid Department officials that contribution would have, in the case of the applicant, to be made for granting legal aid.

7. For reasons unknown, the suggested contribution was not found palatable by the applicant and her spouse, who told the Legal Aid Department that she rejected the offered legal aid assistance. Between 4th and the 21st, the applicant consulted her present solicitors. Instructions were not, however, given to those instructing Mr Lam until 7th June. On 19th June, this application was made for leave. The fact is that the applicant was out of time.

8. The applicant must satisfy this Court that her rejection of the legal aid offer had some justification. I am afraid to say that the applicant fails in this respect.

9. There is no evidence that the Legal Aid Department which must have delved into the general merits of the applicant's case, could not have made an urgent application for leave within time. The applicant's conduct in the circumstances as reflected by the papers before me is, to say the least, inexplicable. The effect of what is submitted on her behalf is that instead of accepting a liability of having to make some contribution to legal costs, for reasons best known to hereself she rather preferred to assume the whole responsibility for all the litigation expenses.

10. As I have said, her conduct in the circumstances is bewildering. She has not satisfied this Court that her rejection of the legal aid assistance offered by the Legal Aid Department and consequently the delay was justified. As I have said, there is no evidence that the matter could not have been processed timely, given even the short duration left for the Legal Aid Officers to act. The applicant is now out of time. Her application was not made promptly and, in any event, within the precribed 3 months. With such unexplained attitude, no reasonable excuse for the delay and no good reason for extending time has been shown for her application for indulgence to be favourably entertained.

11. From the views expressed in the communications on behalf of the Director of Immigration to both the solicitors representing the applicant and the Director of Legal Aid, it is evident that the Deputy Director of Immigration had observed the usual dictates in the policy regulating the exercise of his power under s.13 of the Immigration Ordinance. "Powerful humanitarian grounds" was one of the factors taken into consideration in his refusal.

12. The applicant seeks to call in aid Articles 19 and 20 of the Hong Kong Bill of Rights as well as Article 10 of the International Convention on Economic Social and Cultural Rights 1966 and other international human rights commitments with which Hong Kong is or may be a party or involved in other capacity. These international conventions or commitments focus on, inter alia, the respected attributes of family members including the children, all being also Hong Kong residents in this case. It is quite unnecessary in this application to discuss the subtlety of s.11 of the Hong Kong Bill of Rights Ordinance. These international covenants and/or commitments can be said to have done no more than recognising the plight and hardship of or in an issue of this nature. None of them is expected to, or would, vary the threshold of hardship or shift the goal- post in a mundane issue so commonly faced by the Deputy Director of Immigration. There is not even evidence that the impact of any of these international covenants and commitments had in fact been neglected by the Deputy Director of Immigration.

13. I have listened attentively to the various legal submissions advanced on behalf of the applicant with reference to her grievances in the impugned decision of the Deputy Director of Immigration. I am not impressed by her stated grounds. The applicant has not persuaded me that she has a or anything close to a cast-iron case as against the Deputy Director of Immigration. If there were, such would be a powerful consideration which could sway this Court in the exercise of discretion.

14. It is now the established principle that the criterion in an application for leave for judicial review is potential arguability. The matter was the subject-matter under consideration by the Court of Appeal in Director of Immigration v. Ho Ming Sai and Ors, the judgments in which were handed down on 9th February 1993. At pp.3, 11 and 17, the judges in the Court of Appeal all embraced the accepted guideline, that is to say, arguability for the purposes of seeking leave is "whether the material before the judge is disclosed matters which on further consideration might demonstrate an arguable case for the grant of the relief claimed". That is potential arguability. I have also borne this in mind in the course of counsel's submission on the grounds for relief insofar as it has any peripheral effect on the extension of time now sought for making an application for leave.

15. As the matter now stands, the applicant is out of time and for the reasons I have given, no extension should be granted. Consequently, her application for leave for judicial review cannot be effectively mounted and the net result is she does not obtain leave for applying to review of the decision of the Deputy Director of Immigration.

e question of costs does not arise.