H v. DIRECTOR OF IMMIGRATION

CACV 5/2017

[2018] HKCA 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2017

(ON APPEAL FROM HCAL 172/2015)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 3 November 2016, Chow J refused to extend time to the applicants to bring an application for judicial review in HCAL 172/2015. That application was to challenge the decision of the putative respondent [“the Director”] of 8 October 2013, confirmed on 11 August 2014, rejecting the application for dependant visa by the applicant. The Form 86 in HCAL 172/2015 was lodged by the applicant on 21 August 2015. The applicant sought leave to amend on 6 May 2016.

2.  On 10 January 2017, the applicant served and filed a notice of appeal in respect of the decision of Chow J.  Even taking account of the legal aid stay arising from the legal aid memorandum of 10 November 2016 (which is applicable even though the appeal had yet to be filed, see Brook v Law Society of Hong Kong [1998] 1 HKLRD 113), the notice of appeal was apparently served outside the appeal period (including the 42-day legal aid stay).  Yet, there has been no application for extension of time as in MI & IYW v Permanent Secretary for Security [2018] HKCA 419.  In view of subsequent developments, the need for such extension is overtaken by the need to have leave under Section 14AA as explained below.  

3.  Since Chow J had refused to grant extension of time for the original application for judicial review to be brought, the applicant should have sought leave under Section 14AA to bring an appeal against that decision, see MI & IYW v Permanent Secretary for Security [2018] HKCA 419.  Though the actual decision in that case was only made on 23 July 2018, the issue regarding Section 14AA leave had been raised since 3 November 2017 with the solicitors for MI and IYW who have also been representing the applicant in this appeal: see [9] of MI & IYW v Permanent Secretary for Security, supra. 

4.  But we shall not regard this as a factor against the applicant.  Pending the decision of this Court in MI & IYW v Permanent Secretary for Security, supra, the applicant simply followed previous practice in lodging the appeal without obtaining Section 14AA leave first.

5.  After the decision in MI & IYW v Permanent Secretary for Security, supra, the Registrar of Civil Appeals directed on 26 July 2018 that if the applicant is minded to proceed with this appeal, he should seek leave within 28 days.

6.  The applicant accordingly took out a summons on 22 August 2018 seeking leave under Section 14AA and extension of time to seek such leave.

7.  Given the history of the matter, as indicated above, we would not regard the time taken between the decision of Chow J and the summons of 22 August 2018 as delay on the applicant’s part. Notwithstanding the original failure to serve the notice of appeal within time, we are prepared to consider the leave application as if it were brought within time after the decision of Chow J.  However, this would not exonerate the applicant in respect of the delay in bringing the application in HCAL 172/2015.

8.  The relevant background facts of the applicant’s case were set out in the judgment of Chow J.  For present purposes, we are content with taking such facts from [6] to [12] of the judgment: 

“ BACKGROUND FACTS

(i) Applicant’s family background and immigration status

6. According to the applicant, he was born on 9 January 1989 in Monrovia, Liberia. His family was killed during the Liberian civil war which began in 1989. After the death of his grandmother in 1997, he was forced to become a child soldier at the age of about 8. He later fled from Liberia and travelled to Ghana, from where some of his family had originated. During his travels he met and worked for a man (“the Agent”) who promised to bring him to the USA. He paid the Agent approximately US$60,000, who travelled with him to Hong Kong via South Africa on or about 7 January 2004. The Agent held the passport which purportedly contained the details of the applicant and dealt with the immigration officer on behalf of the applicant. Afterwards, the Agent abandoned the applicant in Hong Kong. He was 14 years old at that time.

7. The applicant overstayed in Hong Kong after the expiry of his limit of stay as a visitor for 90 days. He first met his current wife, a Hong Kong permanent resident, in or about October 2005. They began dating each other in February 2006.

8. On 28 December 2006, the applicant was arrested by the Police. On 30 December 2006, he was referred to the Immigration Department. He was initially detained in Pui Chi Boys’ Home, later transferred to a holding centre on 9 January 2007, and then to the Castle Peak Bay Immigration Centre on 3 February 2007.

9. In the meantime, the applicant made a refugee claim with the local UNHCR office. His refugee claim was rejected by the UNHCR and his case was closed on [8 March] 2007.

10. On 21 February 2007, a removal order was issued against the applicant. On 15 March 2007, the applicant’s appeal against the removal order was dismissed. On 4 April 2007, the applicant was released on recognizance. He has remained in Hong Kong since that date. He also received education in Hong Kong between 2007 and 2011.

11. On 12 June 2012, the applicant and his wife married. They have no children at present.

12. There are two other matters that I should mention in passing:-

(1) The applicant made a torture claim on 4 January 2007, and a non-refoulement claim on the ground of risk of cruel, inhuman or degrading treatment or punishment on 25 February 2013. His claims are currently being assessed by the Director under the Unified Screening Mechanism.

(2) The applicant has been diagnosed with post-traumatic stress disorder, which he says is linked to his past traumas in his home country, ie Liberia.”

9.  But the Director disputed the identity of the applicant: see [14] of the judgment. 

10.  By the judgment of 3 November 2016, Chow J refused to grant extension of time due to the lack of merits in the intended application for judicial review.  He also found that the applicant failed to show a good explanation for the delay and such delay was detrimental to the administration of effective immigration control.  He further considered that the applicant’s case involved no question of general public importance.  The Judge’s reasons are fully set out in the judgment. 

11.  In the Notice of Appeal of 10 January 2017, four grounds of appeal were raised.  All of them related to the Judge’s finding of lack of substantive merit in the intended application for judicial review.  The first two grounds (Grounds 1 and 2) concerned the “known records of detriment” criterion in the dependency visa policy.  The other two grounds (Grounds 3 and 4) concerned the doubts of the applicant’s identity.  

12.  We have read the judgment carefully.  In respect of the substantive merit of the intended judicial review, the Judge decided the matter by reference to the “known records of detriment” criterion rather than the doubts on the applicant’s identity.  This is crystal clear from [53] and [56] of the judgment.  Though he also expressed some views on certain aspects of the latter, those views do not form part of his ratio decidendi in holding that the applicant’s case has no merit.  Hence, unless the applicant can persuade us that the appeal is reasonably arguable on Grounds 1 and 2, we need not address Grounds 3 and 4. 

13.  Ground 1 as formulated in the Notice of Appeal is based on arguments arising from the LegCo Brief.  The effect of the LegCo Brief on the policy on dependency visa have been considered and similar arguments have been rejected in the earlier decisions of this Court: BI v Director of Immigration [2016] 2 HKLRD 520 and Comilang Milagros Tescon v Director of Immigration [2018] 2 HKLRD 534.  Mr Dykes has not been able to advance anything persuading us that there is a reasonable argument to depart from those authorities. 

14.  Admittedly, the question of what constituted known record of detriment beyond a criminal conviction has not been the focus in those cases.  However, it is clear that the wording of the policy is not confined to criminal convictions.  Despite the efforts of Mr Dykes, we do not find there is any reasonable prospect in arguing that the Judge was wrong in his assessment of the various documents relied upon by Mr Dykes at [33] to [45].

15.  Ground 2 in the Notice of Appeal apparently proceeds on the premise that on true construction of the policy, the record of detriment must be akin to something which would inevitably lead to a criminal conviction, as such the likelihood of prosecution and conviction are relevant considerations. 

16.  It must be on that basis that Mr Dykes advanced his arguments on Grounds 1 and 2 together in his submissions of 22 August 2018 at paragraphs 14 and 15 as follows:

“ 14. The objection made to the judge’s construction is that whilst DOI may have legitimate security concerns without there having to be a conviction – e.g. a reputed terrorist seeking entry – where there is a case that might have been prosecuted and it has not been, then DOI should consider why there has been no prosecution.

15. In H’s case the facts were unusual – a 14 year old Liberian abandoned by an adult at the airport.  An inquiry into why H was in this position in 2004 might have led to a reassessment of his case as the evidence showed that H had led a settled life and had achieved academic success.  It may result in a decision not to prosecute him.  See 2^nd Ground in NOA arguing that DOI is not entitled to assume that H would be prosecuted and found guilty after a trial.”

17.  With respect, we cannot see any reasonably arguable basis for construing the policy as requiring a record of something which would on all probability lead to a criminal conviction.  As fairly accepted by Mr Dykes, the Director could have legitimate security concerns even though there is no criminal conviction or no prosecution. 

18.  The submission that the Director should have considered the reason why there had been no prosecution is a mutation from the arguments considered by the Judge at [46] to [52] of the judgment.  We have read the relevant internal minutes of the officers processing the application as well as the representations of the applicant in his letters of 27 March and 2 April 2014.  We cannot find any arguable ground for holding that the Judge was wrong in any respect in his conclusions reached in those paragraphs.  

19.  As said above, we do not find any error in the Director’s interpretation of the known records of detriment criterion under the policy.  In terms of the assessment and the application of such criterion to the case of the applicant, we do not find the Director to be in error in failing to take relevant matters into account or in taking account of irrelevant matters.  In such circumstances, the court should not intervene with the decisions of the Director.      

20.  As regards of the challenge to the finding of unacceptable delay, it premised on the court finding merits in the applicants’ substantive claim, see para 3 of the Notice of Appeal.  As we rejected the arguments on substantive merit, it is not necessary to address the issue of delay.   

21.  In the circumstances, we do not find the appeal to have any reasonable prospect of success and we are not satisfied that there are other reasons in the interest of justice to grant leave under Section 14AA.

22.  We therefore refuse to grant such leave. 

23.  As held in MI & IYW v Permanent Secretary for Security, supra, without such leave, this appeal is incompetent and we make an order striking it out.  The appeal is dismissed with costs accordingly.  Having considered the Statement of Costs for the Director, we fix the same at HK$35,911.  The applicant’s own costs are to be taxed according to Legal Aid Regulations.