CONRADO A. CASTILLO v. DIRECTOR OF IMMIGRATION

HCMP 1073/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1073 OF 2009

(on an intended appeal from HCAL No. 45 of 2009)

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J U D G M E N T

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Hon Hartmann JA (giving the judgment of the Court):

1. This is an application for leave to appeal made pursuant to O.59, r.2C of the Rules of the High Court, Cap. 4. 

2. The history of this matter is as follows.  By letter dated 12 February 2007, the Director of Immigration informed the applicant that his application for a visa to work in Hong Kong had been refused.  The applicant had sought a visa so that he could take up a pastoral position in Hong Kong with a Christian Ministry known as ‘The God Is Alive For All Nations Christian Ministries International’.  The letter from the Director advised the applicant that:

“Under existing policy a person seeking to enter Hong Kong for employment should among other things possess special skill, knowledge or experience of value to and not readily available in Hong Kong.  Besides, other criteria to be considered include whether the job can be filled locally and whether it is justified for the employer to bring in expatriate staff.  Having considered the information made available and all circumstances of the case we are not satisfied that Mr Castillo’s case meets the aforesaid criteria.”

3. The applicant sought to judicially review that decision.  However, he did not lodge his application for leave to apply for judicial review until 23 April 2009, more than two years later.  

4. The applicant sought to explain this delay by saying that he had been attempting without success to obtain legal aid.

5. In respect of the substantive challenge to the decision of the Director, the applicant said only that he firmly believed that he was in fact capable and qualified for the employment in respect of which he had sought his work visa.

6. The application for leave was considered by Poon J who refused it on the papers on two grounds, namely, that the applicant had failed to demonstrate that he had a reasonably arguable case and that the application was in any event hopelessly out of time. 

7. The applicant then sought leave to appeal that decision to a single judge of this Court.  Yuen JA refused the application.  The application is now repeated in the same terms before us. 

8. Two issues fall for consideration.  First, is the decision made by Poon J that there were no reasonably arguable grounds to support the application for leave to apply for judicial review.  

9. Judicial review is not an appeal.  This Court is not asked to reconsider the merits of the decision made by the Director.  This Court’s jurisdiction is limited to reviewing the legality of the process by which the Director came to his decision.  In this regard, it is manifest that nothing in the applicant’s application for leave to apply for judicial review sets out in any coherent form any challenge to the lawfulness of the decision that was made refusing him a work visa. 

10. We turn next to the second issue which goes to a matter of process, namely, the very long delay of the applicant in challenging the decision made to refuse him a work visa.  As we have said, this delay was in excess of two years.  The applicant has said that it took him about two years to eventually have his application for legal aid reviewed and refused. 

11. In our judgment, however, this falls far short of a good reason.  It would not have been difficult for the applicant to discover the appropriate time limits governing judicial review proceedings and to protect his position accordingly.

12. As to the relevant time limits, the law is specific.  O.53 r.4(1) of the Rules of the High Court directs that:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

13. It needs to be emphasized that there is good reason why challenges to decisions made by the Administration must be made promptly.  It is to be remembered that a judicial review is a review of ongoing administrative powers and good public administration requires decisiveness and finality unless there are compelling reasons to the contrary.  The public interest, that is, the interest of all Hong Kong citizens, in good administration requires that public authorities should not be kept in suspense as to the legal validity of decisions that they have reached in exercise of their decision-making powers for any longer than is necessary.  So, while the applicant had the right to challenge the legality of the Director’s decision, he had to do so promptly and certainly within three months. 

14. Accordingly, it is, in our view, clear that Poon J was correct to refuse the application for leave to apply for judicial review both on the grounds that there were no reasonably arguable grounds and that the application was hopelessly out of time. 

15. For these reasons the application for leave to appeal which has been made to us pursuant to O.59 r.2C must be dismissed.