MAR AND ANOTHER v. DIRECTOR OF IMMIGRATION

CACV 77/2017

[2019] HKCA 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2017

(ON APPEAL FROM HCAL 13/2016)

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JUDGMENT

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

1.  On 1 February 2017, Au J (as he then was) refused to extend time to the applicants to bring an application for judicial review in HCAL 13/2017. That application was to challenge the decision of the putative respondent [“the Director”] of 29 April 2015 rejecting the application for dependency visa by the 1^st applicant. The Form 86 in HCAL 13/2017 was lodged by the applicants on 11 January 2016, and subsequently amended on 13 May 2016.

2.  On 28 March 2017, the applicants served and filed a notice of appeal in respect of the decision of Au J.  By reason of the legal aid stay arising from the legal aid memorandum of 10 February 2017 (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 served within the appeal period (including the 42-day legal aid stay).  Hence, subject to the requirement of leave under Section 14AA, the notice of appeal was served within time.  

3.  Since Au J had refused to grant extension of time for the original application for judicial review to be brought, the applicants 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 applicants 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 applicants.  Pending the decision of this Court in MI & IYW v Permanent Secretary for Security, supra, the applicants 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 they are minded to proceed with this appeal, the applicants should seek leave within 28 days.

6.  The applicants 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 Au J and the summons of 22 August 2018 as delay on the applicants’ part.  We are prepared to consider the leave application as if it were brought within time after the decision of Au J.  However, this would not exonerate them in respect of the delay in bringing the application in HCAL 13/2017.

8.  The relevant background facts of the case were set out in the Form 86.  For present purposes, we are content with adopting the summary from paragraphs 4 to 17 of the Form 86:

“ (1) The 1^st Applicant

4. The 1^st Applicant was born on 13 April 1983 in Chowfoldondi, Cox’s Bazaar, Bangladesh. His parents and two sisters are in Bangladesh.

5. The 1^st Applicant finished class 6 in a primary school in Chowfoldondi.

6. The 1^st Applicant married the 2^nd Applicant in Hong Kong on 20 December 2011.

Criminal Conviction

7. On or about 18 May 2007, the 1^st Applicant entered Hong Kong from China by boat. He was arrested by the police on 22 July 2007 for illegal remaining and was later referred to the Immigration Department for further investigation. On 15 August 2007 the 1^st Applicant was released on recognizance.

8. About a year later, the 1^st Applicant was arrested by the police for a forged trademarks offence. On 11 July 2008, he was convicted of the offences of selling goods to which a forged trademark had been applied and possession for sale of goods to which a forged trademark had been applied. He was sentenced to 4 months imprisonment for the offences.

9. On 27 September 2008, the 1^st Applicant was discharged from prison. On 28 august 2008 the 1^st Applicant was given a Notice of Consideration of Deportation and on 29 October 2008 a removal order was later made against him by the Director. On 31 October 2008, he was released on recognizance.

The Other Claims

10. The 1^st Applicant had applied for asylum claim with the United Nations High Commissioner for Refugees after his unlawful entry. In June 2008, the 1^st Applicant’s refugee claim was closed.

11. In March 2008, he lodged a claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) to the Immigration Department. His CAT claim is still under processing.

12. In August 2014, the 1^st Applicant lodged a claim for non-refoulement protection to the Immigration Department on the grounds of a risk of cruel treatment and/or persecution. His non-refoulement claim is still active.

(2) The 2^nd Applicant

13. The 2^nd Applicant was born on 12 October 1987 in Xinhui, Guangdong, China. She came to Hong Kong by a “One-way Permit” issued in April 2006. She obtained her permanent resident status in Hong Kong on 25 June 2013 after she had ordinarily resided in Hong Kong for more than 7 years. (Immigration records referred to below erroneously record her as being born in Hong Kong.)

14. Before she came to Hong Kong the 2^nd Applicant has studied at a Mainland university. She graduated in June 2011.

15. The 2^nd Applicant had been working as a clerk at Panda Logistics Ltd since November 2011. In April 2014, she changed her job to work at Padini as a general clerk. Her current monthly salary is HK$10,100.

16. Credit report dated 11 October 2013 revealed that she was debt-free and she could repay her credit card debts in time. The 2^nd Applicant was also able to buy presents for her mother who lives in Hong Kong and support the expenses of the 1^st Applicant’s relatives when they visited him. She subscribed to government iBond in HK$10,000 in August 2014.

17. She is living in a flat with the 1^st Applicant under her name and currently pays a monthly rent of HK$3,400.”

9.  As shown in the Reasons for Decision in the CALL-1 Form of 1 February 2017, Au J refused to grant extension of time due to the lack of merits in the intended application for judicial review.  He also found the delay to be unacceptable.  The reasons are as follows:

“ Leave is refused as the intended grounds of judicial review are not reasonably arguable:

(1) Ground 1 (paras 65-79 of draft Amended Form 86): The “No Known Record of Detriment Requirement” (the “NRD Requirement”) has been held by the Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520 at paras 74, 78-90) as an eligibility criterion of which an applicant for dependant visa must satisfy before he is eligible for consideration. The arguments that the Director of Immigration (the “Director”) misapplied the dependant visa policy in construing this requirement as a ground of refusal are therefore without merits.

(2) Ground 2 (paras 80-86 of the draft Amended Form 86): Given that the NRD Requirement is an eligibility criterion, which the 1^st applicant did not satisfy, the dependant visa application must be unsuccessful on that basis alone, and in that process, it was not necessary for the Director to take into account what the applicants now said to be the relevant factor of the adverse impact on the applicants’ family. However, in any event, the Director did go further to consider whether there were exceptional humanitarian and compassionate grounds to depart from the policy and grant permission to the 1^st applicant to stay in Hong Kong. In this respect, from the file minute M6[1], the court is satisfied that the Director must have already taken into his consideration the fact that the 1^st and 2^nd applicants were married as a family in Hong Kong in deciding whether there existed exceptional humanitarian or compassionate grounds to depart from the dependant policy (see paras 10.1 and 12.2 and 12.3 of M6). See also the observations by the Court of Appeal in BI, at paragraphs 105-109 as to the court’s approach in such a consideration. This ground is also unarguable.

(3) Ground 3 (paras 87-96 of the draft Amended Form 86): when the NRD Requirement is an eligibility criterion, by its own nature, it must be relevant for the Director to take into account whether, given the 1^st applicant’s conviction, he would raise “security or criminal concerns to” Hong Kong. There is no merit at all to contend that this is an irrelevant consideration. In any event, it certainly cannot be said that the Director in regarding the consideration of security concern as a relevant consideration is Wednesbury unreasonable, as in the context of immigration control, it must be reasonably open to the Director to consider whether to refuse someone’s application for permission to enter and stay in Hong Kong on security concerns. See: BI, supra, at paragraphs 47 and 106.

(4) Ground 4 (paras 97-104 of the draft Amended Form 86): Given that the NRD Requirement is an eligibility requirement, there is no question that the Director had applied the policy rigidly by treating that as such in the present case. Moreover, and in any event, the Director had clearly taken into account matters relating to the 1^st applicant’s conviction to decide whether he would raise security concerns to Hong Kong (see paras 8.1-8.2 and 12.3 of M6). The weight he would attach to those matters in coming to the conclusion as to whether the 1^st applicant could satisfy the NRD Requirement is a matter for the Director but not the court. This ground is also without merits.

(5) Ground 5 (paras 105-110 of the draft Amended Form 86): It is clearly unarguable that the decision to refuse the dependant visa application is Wednesbury unreasonable. It cannot be said that no reasonable man in the position of the Director would have come to the conclusion that the fact that the applicants’ family would be adversely affected did not amount to exceptional humanitarian or compassionate grounds to justify a departure from the dependant visa policy, especially where the court should accord the Director with a broad margin of discretion in this respect. See BI, supra, at paragraphs 104-109.

(6) Ground 6 (paragraphs 110A-110F of the draft Amended Form 86): for the reasons this court has given in Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016) at paragraphs 39-40 and LK v Director of Immigration (HCAL 77, 98 and 100/2014, 9 August 2016) at paragraphs 60-72, the CEIPED does not assist the applicants in contending that the NRD Requirement requires a record of “serious crime”, or that the Director erred in law in adopting an approach of exceptionality under the consideration of humanitarian and compassionate grounds, or that policy is a policy to facilitate family reunion. The ground is not reasonably arguable.

2. Leave is also refused on the ground of delay and no extension of time shall be granted.  When the leave application was first made in January 2016, there is already a delay of 5 months out of the 3-month time limit. The explanations provided at paragraphs 43-56 are not good reasons for the delay.  In particular, after legal aid was granted in August 2015 and leading counsel settled the draft Form 86 on 25 October 2015, when the applicants were already out of time for about 3 months, it is a further undue and unacceptable delay of another two months for the solicitors (in particular when they had also represented the applicants in the dependant visa application) to apply for anonymity order only on 22 December 2015.   Further, the merits of this case are weak and it raises no public interest as alleged, as the courts have in various judgments dealt with these contentions.  There is also detriment to good administration by tolerating the 1^st applicant’s overstaying in Hong Kong.  In the premises, leave must also be refused on delay (cf for example: Dembele, paragraph 119).”

10.  Apart from challenging the finding of unacceptable delay, the proposed grounds of appeal repeated the grounds of review advanced below, except additional references to the Guidelines on assessment of Visa Control [“VCCCR”].  The arguments on family rights, the LegCo Brief and the policy on dependency visa have all been considered and 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.  The discrimination ground was also addressed in MI & IYW v Permanent Secretary for Security, supra, at [66] to [71].  Mr Dykes has not been able to advance anything persuading us that there is a reasonable argument to depart from those authorities.

11.  The additional references to VCCCR were not elaborated upon by Mr Dykes in his submissions.  The applicants did not produce the VCCCR (whether in the court below or here) and we cannot see the relevance of the same in the present context. 

12.  Mr Dykes invited us to withhold our determination in this appeal pending the consideration of the applications for leave to appeal to the Court of Final Appeal in Comilang Milagros Tescon and MI & IYW.  The Comilang appeal in FACV 9/2018 was dismissed by the Court of Final Appeal on 4 April 2019.

13.  There is still no application for leave to appeal to the Court of Final Appeal in MI & IYW though the statutory appeal period had expired.

14.  The fact that there are pending applications in other cases for leave to appeal to the Court of Final Appeal cannot be a good ground for us to grant leave under Section 14AA when it is our clear view that the proposed judicial review is not reasonably arguable.

15.  Mr Dykes also referred to the appeal in H v Director of Immigration CACV 5/2017.  That appeal was dismissed on 29 October 2018.

16.  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.  

17.  In the circumstances, we do not find the appeal has 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.

18.  We therefore refuse to grant such leave.

19.  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$36,079. The applicant’s own costs are to be taxed according to Legal Aid Regulations.