KC v. THE DIRECTOR OF IMMIGRATION

HCAL 413/2018

[2018] HKCFI 2320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 413 OF 2018

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J U D G M E N T

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APPLICATION

1.  The issue which arises for consideration in this judgment is how the existence of a removal order against a person would impact upon the Director’s power to grant an employment visa to that person to permit him to remain and work in Hong Kong.

2.  In what follows, unless the context indicates otherwise, references to Sections shall be to the Immigration Ordinance, Cap 115 (“the Ordinance”).

BASIC FACTS

(i)   The Applicant’s personal background

3.  The Applicant was born in Cameroon in 1973.  On 12 April 2006, he arrived in Hong Kong on the strength of a Cameroonian passport, and was permitted to remain as a visitor until 26 April 2006.  He did not depart on 26 April 2006, and has been overstaying in Hong Kong since 27 April 2006.

4.  On 26 April 2006, he applied for asylum with the United Nations High Commissioner for Refugees (“UNHCR”), Hong Kong.

5.  On 21 December 2006, the Applicant was arrested by the Police for overstaying in Hong Kong.  On 22 December 2006, he was referred to the Immigration Department for further investigation.  On 23 December 2006, he lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  On 10 February 2007, he was released on recognizance.

6.  The Applicant’s asylum claim with the UNHCR was not substantiated, and his case was closed on 29 February 2008.

7.  On 13 July 2012, the Director issued a removal order against the Applicant under Section 19(1)(b) on the ground that he had overstayed in Hong Kong.  On 13 August 2012, the Applicant’s appeal against the removal order was dismissed by the Immigration Tribunal.

8.  On 22 November 2013, the Applicant’s torture claim was refused.  On 4 December 2013, he lodged an appeal against the refusal of his torture claim.  On 14 April 2014, he further lodged a non-refoulement claim based on other grounds.  The Applicant’s appeal against the refusal of his torture claim was adjourned pending the determination of his non-refoulement claim under the USM.  On 5 October 2018, the Applicant’s non-refoulement claim was rejected.  As at the date of the hearing on 10 October 2018, he had not yet lodged any appeal or petition against the rejection of his non-refoulement claim.

(ii)   The Applicant’s Employment Visa Application

9.  On 29 June 2015, the Applicant, through his legal representatives (Daly & Associates, “D&A”), submitted an application (“the Visa Application”) to the Director for an employment visa to work as “African Arts and Culture Director” for African Ventures Holding Limited (“the Sponsor”) in Hong Kong.

10.  In support of the Visa Application, various documents were submitted to the Immigration Department, including a letter of employment dated 25 April 2015.

11.  The Director eventually decided to reject the Visa Application.  The reasoning of the Director’s decision can be found in paragraph 11 of an internal minute (M1) of the Immigration Department dated 21 September 2015, as follows:-

“Based on the available information, I recommend this entry employment application be refused in view of the following grounds

i.   Applicant has general education who does not have a degree in the relevant field.  His known working experience was general.  It is not satisfied that the applicant is in possession of any special skills, knowledge, or experience, or proven professional abilities and achievements that is not readily available in Hong Kong;

ii.   The information about the recruitment exercise conducted is limited. There is no convincing information provided to support that the post cannot be readily taken up by the local workforce, and no information showing that the remuneration package to be offered is broadly commensurate with the prevailing market level for professionals in HK;

iii.   Based on the financial standing of the company, it remained a low 5 / low 4 figures in the bank balance.  Besides, the company generates the loss of HK$ 20577 during the period from 2011 to 2014.  The company has no physical office in Hong Kong.  The company only provided a contract signed with another company/organization.  No concrete information about the business activities was provided.  Based on the information available, the company does not appear to be properly-established to offer sustainable employment.  The present scale of financial standing of the company at this stage does not justify to bring in an expatriate staff with yearly payroll over HK$200,000.  It is not satisfied that the applying post is a genuine job vacancy.

iv.   The applicant has an overstaying record in HK.”

12.  By a letter dated 24 September 2015, the Director informed the Sponsor (c/o D&A) that the Applicant’s Visa Application was refused.  In that letter, the Director stated, inter alia, as follows:-

“ Under the existing policy, a person seeking to enter the Hong Kong Special Administration Region (‘HKSAR’) for employment as professional should, amongst other things, possess a special skill, knowledge or experience of value and not readily available in the HKSAR. Besides, other criteria to be considered include(s) whether the job can be filled locally and whether the remuneration package and other fringe benefits is broadly commensurate with the prevailing market level for professionals in the HKSAR.

Having considered the information made available and all circumstances of the case, we are not satisfied that the case meets the aforesaid criteria.  The application is therefore refused.”

13.  On 26 October 2015, the Legal Aid Department informed the Immigration Department that the Applicant had applied for legal aid to seek to apply for judicial review of the Director’s refusal decision dated 24 September 2015.

14.  By a letter dated 17 November 2016 from D&A, followed by a letter dated 24 November 2016 from the Sponsor (together with a document titled “Cultural Plan Project of African Venture”), the Director was requested to reconsider the Applicant’s Visa Application (“the Reconsideration Application”).  Various documents were submitted by D&A under cover of their letter to the Director dated 17 November 2016 in support of the Reconsideration Application, including (i) the Sponsor’s Interview Records of the Applicant dated 8 February 2016, (ii) the Sponsor’s Interview Results of the Applicant dated 26 February 2016, and (iii) a letter of employment dated 1 August 2016.  From those documents, it would appear that the Applicant was interviewed, and offered an employment, by the Sponsor for the job of “African Music & Dance Trainer”.

15.  By a letter dated 2 December 2016, the Director asked the Sponsor to provide any fresh/additional information/documents that it wished to provide for his consideration by 23 December 2016, and stated that the Director would proceed with the assessment based on the information and documents available by that date.

16.  On 28 December 2016, the Immigration Department received a letter from D&A dated 22 December 2016 attaching therewith a letter from the Sponsor dated 12 December 2016 together with a USB drive which was said to contain audio and video recording of the Applicant’s performances and a painting of the Applicant.  By a letter dated 4 January 2017, the Director informed the Sponsor that the contents of the USB drive could not be accessed, and asked the Sponsor to submit any fresh/additional information/documents by 4 February 2017.

17.  The Director eventually decided to reject the Reconsideration Application.  The reasoning of the Director’s decision can be found in paragraphs 8 to 10 of an internal minute (M2) of the Immigration Department dated 23 March 2017, as follows:-

“Assessment and Recommendation

8 According to Section 38AA of Immigration Ordinance, Laws of Hong Kong (Cap 115), a person in respect of whom a removal order is in force must not take any employment, whether paid or unpaid, or establish or join in any business. Further pursuant to section 19(4) of the Ordinance, a removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.

9 Based on our records, the applicant is a person in respect of whom a removal order has been issued and remains in force. The applicant had contravened the condition of stay in respect of him and the removal order issued against him requires him to leave Hong Kong. The release on recognizance under section 36(1) of the Ordinance pending final determination of his non-refoulement claim does not amount to any lawful authority from the Director to remain in Hong Kong.

10 Having considered all circumstances of the case, including the DoJ advice, I am of the view that there is no justifiable grounds for exceptional consideration deviating from the above-mentioned provisions. As the case stands, I recommend that the employment visa application submitted by the applicant cannot be considered.”

18.  By a letter dated 27 March 2017, the Director informed the Sponsor (c/o D&A) that the Reconsideration Application was refused.  In that letter, the Director stated, inter alia, as follows:-

“ According to Section 38AA of Immigration Ordinance, Laws of Hong Kong (Cap 115) (‘the Ordinance’), a person in respect of whom a removal order is in force must not take any employment, whether paid or unpaid, or establish or join in any business. Further, pursuant to section 19(4) of the Ordinance, a removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.

Based on our records, the Applicant is a person in respect of whom a removal order has been issued and remains in force. The Applicant had contravened the condition of stay in respect of him and the removal order issued against him requires him to leave Hong Kong. The release on recognizance under section 36(1) of the Ordinance pending final determination of his non-refoulement claim does not amount to any lawful authority from the Director to remain in Hong Kong.

Having considered all the circumstances of the present case, as matters presently stands, we regret to inform you that the Director of Immigration is not in a position to consider the application submitted by the Applicant.”

19.  It can be seen immediately that the first 2 paragraphs in the letter of 27 March 2018 quoted above are materially the same as paragraph 8 and 9 of M2.  The last paragraph in the said letter is slightly different from paragraph 10 of M2.  I shall be come back to this difference later in the judgment.

(iii)  The application for judicial review

20.  On 13 March 2018, the Applicant made the present application for judicial review of the Director’s decision dated 27 March 2017.  In the Form 86, the Applicant raises the following grounds of judicial review:-

(1)  Ground 1: error of law;

(2)  Ground 2: misapplication of own policy – failure to take into account relevant considerations and taking into account irrelevant considerations;

(3)  Ground 3: failure to act consistently; and

(4)  Ground 4: breach of legitimate expectation.

21.  On 14 March 2018, the court directed an oral hearing of (i) the application for an extension of time to apply for leave to apply for judicial review, and (ii) the application for leave to apply for judicial review.

APPLICATION FOR EXTENSION OF TIME TO APPLY FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

22.  The applicable principles for the court’s exercise of its discretion to extend time to apply for leave to apply for judicial review are well settled.  They were comprehensively reviewed by the Court of Appeal in AW v Director of Immigration [2016] 2 HKC 393.  To justify an order extending the time for making a leave application, the applicant must show “good reason” under Order 53, rule 4(1) of the Rules of the High Court.  The following non-exhaustive factors are relevant in considering whether “good reason” exists:-

(1) length of the delay;

(2) explanation for the delay;

(3) prejudice;

(4) merits of the substantive application; and

(5) whether the application raises questions of general public importance; and whether such questions are likely to have to be resolved by the courts in any event.

I shall consider the issues under (4) and (5) separately below.

23.  In relation to the “length of the delay”, the Decision was made by the Director on 27 March 2017 while the leave application was made on 13 March 2018.  There has plainly been a very substantial period of delay (of nearly 9 months) in making the application.  In Re Thomas Lai [2014] 6 HKC 1, at paragraph 45(3), G Lam J quoted from the judgment of Litton NPJ in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B-C that “[w]here an application is made many months after the time limit …, the judge is entitled to refuse leave, however strong the complaint might otherwise be”.

24.  In relation to the “explanation for the delay”, essentially, the Applicant’s explanation is that he made his legal aid application promptly on 29 March 2017 (2 days after the Decision), but the Legal Aid Certificate was only granted on 16 November 2017 and counsel was only assigned on 18 December 2017 (which the Applicant’s solicitors came to know on 22 December 2017).  Thereafter, papers were sent to counsel on 8 January 2018, and a draft Form 86 was prepared by counsel on 7 February 2018.  Some further time was spent in making an application for an anonymity order.  The final form of the Form 86 and the Applicant’s affidavit in support were settled by counsel on 12 March 2018, and the proceedings were launched on 13 March 2018.  I accept that the Applicant and his lawyers did not delay in pursuing the legal aid application.  While the time taken to prepare the documents for the leave application and the application for an anonymity order could probably be shortened somewhat, I bear in mind the intervening public holidays and do not consider it right to criticize the lawyers for any undue delay in the circumstances.  As I see it, the major part of the delay in the present case was caused by the time taken to process the legal aid application.  It is, however, well established that the time taken to obtain legal aid is not by itself a good reason for extending the time for applying for judicial review (see, for example, Re Thomas Lai, supra, at paragraph 48(1)).

25.  In relation to the issue of “prejudice”, unless and until the Applicant has shown good reason or explanation for the delay, the question of prejudice or detriment to good administration does not arise for consideration (see Magapower Garments Ltd v Director-General of Trade and Industry, HCAL 3199/2001 (4 March 2002), at paragraph 26 per Chu J (as she then was); ET Investment Ltd v Director of Health [2016] 1 HKLRD 1389, at paragraph 25 per Deputy High Court Judge Keith).  As observed in Nisa Azizan v Director of Immigration, HCAL 203/2015 (15 April 2016), at paragraph 63, I consider that, generally speaking, unjustifiable delay in challenging immigration decisions made by the Director would be detrimental to the administration of effective immigration control in Hong Kong.  To the same effect is the decision of Au J in Pagtama Victorina Alegre v Director of Immigration, HCAL 13/2014 (12 January 2016), at paragraph 238(3).

MERITS OF THE SUBSTANTIVE APPLICATION

26.  Ground 1 (error of law): Mr Deng’s argument, as I understand it, is that upon the true construction of Section 38AA, the Director is not precluded from granting an employment visa to a person against whom a removal order is in force (see paragraph 34 of Mr Deng’s Skeleton Submissions).  Mr Deng further argues that under Section 13, the Director has power to authorize any person who has landed in Hong Kong unlawfully to remain in Hong Kong, and there are no express words in Section 19 to preclude the Director from rescinding a removal order (see paragraph 38 of his Skeleton Submissions).  On the other hand, the Director submits that so long as a removal order is in force against the Applicant, he cannot be granted an employment visa.

27.  Section 38AA (titled “Prohibition of taking employment and establishing business, etc”) states as follows:-

“(1) A person –

(a) who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director under section 13; or

(b) in respect of whom a removal order or a deportation order is in force,

must not take any employment, whether paid or unpaid, or establish or join in any business.

(1A) Subsection (1) does not apply to a person if the person has the Director’s permission under section 37ZX to take employment or establish or join in a business.”

28.  Section 37ZX, referred to in Section 38AA(1A), provides as follows:-

“(1) The Director may, on an application of a claimant who has a substantiated claim, permit the claimant to take employment or establish or join in a business.

(2) A permission must not be given under subsection (1) unless the Director is satisfied that exceptional circumstances exist that justify such a permission being given to the claimant.”

29.  In my view, the Director was correct in law to refuse to grant an employment visa to the Applicant because of the existence of a removal order in force against him:-

(1) Section 38AA(1)(b) imposes a strict prohibition against any person in respect of whom a removal order is in force from taking any employment in Hong Kong.  It follows that, so long as the removal order against that person remains in force, it would not be open to the Director to grant him an employment visa.  It would, indeed, be quite pointless for the Director to do so, since he will not be able to work in Hong Kong while there is a removal order in force against him.

(2) Section 13 is irrelevant to the Applicant’s situation because it only applies to a person who landed in Hong Kong unlawfully, whereas the Applicant originally landed in Hong Kong lawfully.

(3) Assuming that the Director has power to rescind a removal order, the fact remains that the removal order against the Applicant had not been rescinded at the material time.

(4) The Director was not asked to rescind the removal order in conjunction with the Applicant’s application for an employment visa.

(5) In any event, even if the Director had been asked to rescind the removal order, I can see no good or valid ground for the Director to do so.  This is because (i) the Applicant has been able to remain in Hong Kong despite having overstayed for many years only because of his torture/non-refoulement claims which have not yet been fully resolved, and (ii) it is the clear legislative intent and effect of Section 37ZX that only a substantiated claimant may, in exceptional circumstances, be permitted to work in Hong Kong.  To grant the Applicant an employment visa and permit him to work in Hong Kong in such circumstances would directly undermine the legislative intent and effect of Section 37ZX.

(6) As stated in paragraph 10 of M2, the Director considered that there were “no justifiable grounds for exceptional consideration deviating from the above-mentioned provisions”.  That statement, according to Mr Suen, showed that the Director did consider whether there was any justifiable ground to rescind the removal order against the Applicant, that being the necessary condition before the provisions of Section 38AA could be deviated from (or dis-applied).  I consider there is force in Mr Suen’s submission.  In any event, as earlier mentioned, I consider there is no good or valid ground for the Director to rescind the removal order against the Applicant in the present case.  I note that paragraph 10 of M2 was not reproduced in the Director’s decision letter dated 27 March 2017.  However, the Director was never asked to rescind the removal order.  In the circumstances, I do not consider that it was necessary for the Director to state that he found no grounds to justify the rescission of the removal order.

30.  There are two other mattes that I should mention in passing.  First, it is common ground that, in exceptional circumstances, a person whose non-refoulement claim has not yet been substantiated may nevertheless be permitted by the Director to work in Hong Kong.  Such circumstances may arise where a constitutional right not to be subjected to cruel, inhuman or degrading treatment is engaged.  However, no such issue arises in the present case.  It is therefore not necessary to consider this possibility in this judgment.

31.  Second, I would leave open for future consideration the question of whether it would, in any event, be an improper exercise of the Director’s power to rescind a removal order solely for the purpose of permitting a non-refoulement claimant, or indeed any person who has no right to stay in Hong Kong, to work here.

32.  Ground 2 (misapplication of policy): the Applicant’s complaint is that the Director only took into account the existence of the removal order against him, but not the other criteria under his General Employment Policy, when deciding whether to grant an employment visa to him.  It seems to me that if, as a matter of law, the Director has no power to grant an employment visa to the Applicant so long as a removal order remains in force against him, the question of whether the Applicant can meet the criteria under the General Employment Policy does not arise for consideration.

33.  Alternative Ground 2 (error of fact): in his skeleton submissions, at paragraphs 52 to 58, Mr Deng raises a new ground of judicial review based on an alleged error of fact, and the Applicant has belatedly issued a summons on 8 October 2018 seeking leave to amend the Form 86 to raise this ground.  The substance of the complaint is that the Director mistakenly took the Reconsideration Application as being based on the previous job offered to the Applicant (as “African Arts and Culture Director”), instead of the new job offered to him (as “African Music & Dance Trainer”).

34.  In considering this complaint, it may be noted that although the Applicant’s job title was changed from African Arts and Culture Director to African Music & Dance Trainer and there were some slight changes to his duties, both D&A and the Sponsor asked the Director to “re-consider” the previous Visa Application.  As pointed out by Mr Suen, had the Applicant or the Sponsor considered the new job title or duties to be significant for the purpose of considering whether the Applicant ought to be given an employment visa, they would have submitted a fresh application for an employment visa to be granted to the Applicant, instead of merely asking the Director to reconsider the Visa Application.

35.  Mr Suen further points out that, in paragraph 31(1) of the Form 86, the Applicant himself states that “there has not been any changes in the Applicant’s factual circumstances, nor any substantial development since the Applicant first made an employment visa application to the EVVS of the Immigration Department in April 2015.  At all times, African Ventures has remained a small company with the same aims and endeavours; and the Applicant has remained in the same situation.”

36.  More significantly, in the Sponsor’s letter dated 24 November 2016 to the Director, the Sponsor stated as follows:-

“We offered [the Applicant] a job as African Song and Dance Trainer and applied for his employment visa, with reference EEEN-0200889-15(F)[1], which was denied.

We are appealing that the application be re-considered as we shall be submitting additional information and more documents.”

37.  It seems to me to be clear that at the time of the Reconsideration Application, both the Applicant and the Sponsor did not attach any significance to the Applicant’s new job title or duties, and treated the two employment offers as being the same, or inter-changeable.  In my view, this proposed ground of judicial review is purely opportunistic and has no merits.  In any event, it is unsustainable for the same reason mentioned in paragraph 32 above.

38.  Ground 3 (failure to act consistently): the Applicant’s complaint is, in substance, that his original application was considered and refused on its merits, whereas his subsequent application was denied on the ground that there was a removal order in force against him.  I am unable to see how the fact that the Director made the two decisions based on two routes, each of which being legally valid, engages any public law principle against differential treatment or a failure to act in a consistent manner.

39.  Ground 4 (legitimate expectation): the Applicant argues that the Director, having accepted that he would reconsider the Visa Application, conferred upon him a legitimate expectation that the application would be considered on its merits and assessed in accordance with the criteria under the General Employment Policy.  I do not accept this argument, for two reasons.

40.  First, I consider it to be clear that when the Director agreed to reconsider the Visa Application, he was saying no more than that he would consider the matter in accordance with the applicable law and policy.  It cannot sensibly be understood to mean that the Director would ignore the applicable law (including Section 38AA) and consider the application by reference to policy only.  Second, it is trite that an expectation, to be legitimate, must be lawful and reasonable.  It is neither lawful, nor reasonable, for the Director to consider the Applicant’s employment visa application without reference to the applicable law.

41.  In all, I do not consider that any of the proposed grounds of judicial review is reasonably arguable, or has a realistic prospect of success.  I also do not consider that they raise any questions of general public important which will likely have to be determined by the courts in any event.

NO EXTENSION OF TIME TO APPLY FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

42.  In summary, I am of the view that:-

(1) there has been substantial delay in making the present application;

(2) the Applicant and his lawyers were not personally responsible for the delay or the bulk of the delay;

(3) the delay is detrimental to good administration;

(4) the proposed grounds of judicial review are not reasonably arguable; and

(5) no questions of general public importance are raised in the present application which will likely have to be determined by the courts in any event.

43.  Overall, there is no good reason to grant an extension of time to the Applicant to apply for leave to apply for judicial review in the present case.

44.  I should add that, even if I had come to different conclusions in respect of the matters mentioned in paragraph 42(4) and (5) above, I would still have declined to exercise my discretion to grant an extension of time in the present case because (i) of the substantial delay, and/or (ii) as disclosed in the recent affirmation Cho Elvis Che (the new owner of the Sponsor) dated 27 September 2018, the Applicant has been offered a new employment contract on 23 August 2018.  It seems clear that the Applicant’s previous letters of employment dated 25 April 2015 and 1 August 2016 respectively with the Sponsor have already lapsed or been overtaken by events.  There is no practical purpose in quashing the Decision and remitting the Reconsideration Application to the Director for fresh consideration.  In other words, the matter has become academic, and I see no good reason to entertain the application for leave to apply for judicial review.

45.  Finally, I should briefly deal with Mr Deng’s complaint that the Director has failed to discharge the duty of candour, in that he failed to provide a copy of his letter to the Legal Aid Department dated 29 May 2017 to the Applicant until 28 September 2018.  In my view, this complaint is unjustified.  First, the Applicant was fully aware of the existence of this letter at the time when he made the leave application. Indeed, the part of the letter which Mr Deng considers to be significant and which he relies upon was quoted in paragraph 38 of the Form 86 (which I am told was extracted from a copy of the Section 9 Opinion in the possession of the Applicant).  Second, as stated by Ma CJHC (as he then was) in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77, at paragraph 14(1), “[t]he duty arises once leave has been obtained by an applicant to commence judicial review proceedings”.  The Applicant has not, however, obtained leave to apply for judicial review at any time.

DISPOSITION

46.  I made the following orders:-

(1) leave is granted to the Applicant to file the affirmation of Cho Elvis Che dated 27 September 2018 under the Applicant’s summons dated 27 September 2018, with costs to the Director;

(2) the Applicant’s summons dated 8 October 2018 for leave to amend the Form 86 is dismissed with costs to the Director;

(3) the Applicant’s applications for (i) an extension of time to apply for leave to apply for judicial review, and (ii) leave to apply for judicial review, are dismissed.

47.  I further make an order that the Director shall have the costs of resisting the applications for (i) an extension of time to apply for leave to apply for judicial review, and (ii) leave to apply for judicial review, notwithstanding the usual order that there be no order as to costs in an unsuccessful leave application, in view of the following matters:-

(1) the Applicant has effectively had a substantive hearing of his application;

(2) the Director attended the hearing at the court’s invitation or direction, and provided substantial assistance to the court which enables the court to resolve the present application economically and expeditiously; and

(3) the Applicant has to apply for an extension of time and the Director should be heard on such application.

48.  All the above costs are to be taxed if not agreed.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.