XCHRX In re Sun Yeung Bin

1995 M.P. No. 782

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. By a notice in Form 86A dated 22nd March 1995, the Applicant applied for leave to apply for judicial review of a decision of the Director of Immigration of 23rd February 1995. That application was placed before me. On consideration of the notice and the Applicant's affirmation, I was not prepared to grant leave. My reasons were set out in a letter to the Applicant's solicitors dated 24th March 1995 from my clerk which was written on my instructions. However, the Applicant had requested an oral hearing in the event of leave not being granted on the papers, and I therefore directed that a date be fixed for the hearing of the application.

2. I have heard that application today. I have decided to refuse the application for leave. My reasons are the same as those set out in my clerk's letter of 24th March, though I should now add three things:

(i) Mr. Philip Dykes for the Applicant argues that it is open in immigration cases for a person aggrieved by a decision of an immigration officer to make repeated applications for that decision to be reconsidered. That may be so, but such applications are bound to fail if there has been no relevant change of circumstance between the earlier decision and the later decisions. To the extent that there was no relevant change in the Applicant's circumstances between 15th June 1994 and 23rd February 1995, this application amounts to a collateral challenge to the decision of 15th June 1994. If that was permitted, the strict time limits laid down in Ord. 53 for applying for leave to apply for judicial review would be a dead letter. It would mean that if an applicant was out of time for challenging a particular decision, he could ask for the decision to be reconsidered. If the earlier decision was confirmed, he could then mount a challenge to the earlier decision under the guise of challenging the later decision.

(ii) As to whether there was a relevant change of circumstance between 15th June 1994 and 23rd February 1995, I accept that, in addition to the birth of the Applicant's second child, a temporary detention order was made on 5th December 1994 pending a decision to make a removal order against her under section 19(1)(b) of the Immigration Ordinance (Cap. 115), and on an application for a review of his earlier decision the magistrate refused to order the Applicant to forfeit her passport. However, I am satisfied that even if the Director of Immigration had taken those changed circumstances into account, he could not reasonably have reached the view that they were relevant changes of circumstances which could affect the correctness of his earlier decision.

(iii) If the decision challenged had been the decision of the Director of Immigration of 15th June 1994, and if there had been material before me which satisfied me that there was good reason for extending the period within which the application should have been made, I might have granted leave to the Applicant to apply for judicial review of that decision, though that would have depended on whether the Director of Immigration had given any reasons for his refusal on 15th June 1994 to permit the Applicant to remain in Hong Kong, and if so, what those reasons were. As it is, Mr. Dykes has told me today that in refusing to permit the Applicant to remain in Hong Kong, the Director of Immigration gave no reasons. In those circumstances, provided that the decision challenged had been the decision of 15th June 1994, and provided that there had been material before me which satisfied me that there was good reason for extending the period within which the application should have been made, I would have granted leave, since the decision of the magistrate meant that the Applicant must be assumed not to have been aware of the falsity of the arrival endorsement of 26th December 1992 in her passport. The falsity of that endorsement was not something which could have been laid at her door, and would therefore not have been a proper ground for refusing to apply to her the policy set out in para. 25 of the notice in Form 86A. The absence of reasons on the part of the Director of Immigration means that the possibility that he had taken the falsity of the endorsement into account could not have been excluded. However, for the reasons I have given, that argument could only have been advanced - assuming that the Director of Immigration could not reasonably have regarded the events which occurred between 15th June 1994 and 23rd February 1995 as relevant changes in the Applicant's circumstances - in a challenge to the decision of 15th June 1994. That is not the decision which is being challenged.

(Brian Keith)

Judge of the High Court