YU PIK YING AND ANOTHER v. DIRECTOR OF IMMIGRATION

CACV 603/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 603 OF 2000

(ON APPEAL FROM HCAL NO. 1804 OF 2000)

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Rogers V-P):

Introduction

1. This is an appeal from the refusal of Chung J to grant the Applicants leave to apply for judicial review of various decisions of the Director of Immigration. At the conclusion of the hearing, the appeal was allowed, but the parties were told that the court's reasons would be reduced to writing. This judgment represents my reasons for agreeing that the appeal should be allowed, that the Applicants' time for challenging the decisions challenged should be extended, and that the Applicants should be granted leave to apply for judicial review of the decisions challenged.

The relevant facts

2. The 1st Applicant, Yu Pik Ying, is a Hong Kong permanent resident. She was born in Hong Kong in 1969. She works as a cashier and teaches students privately part-time. The 2nd Applicant, Joseph Iyke Orizu, was born in Nigeria, also in 1969. He came to Hong Kong as a visitor in 1998. While he was in Hong Kong, he met Ms Yu, and they married in Hong Kong on 12 October 1998.

3. On 3 November 1998, Mr Orizu applied to the Director of Immigration for a change in his immigration status to enable him to reside in Hong Kong as a dependant of Ms Yu. The application was refused by a letter dated 28 January 1999. The Director of Immigration stated that he was not satisfied that the marriage was a genuine one, and that he did not believe that Ms Yu and Mr Orizu intended to live together permanently as husband and wife. He also stated that he was not satisfied that their marriage was not a marriage of convenience entered into to enable Mr Orizu to gain residency in Hong Kong. No reasons were given for the Director of Immigration's conclusion about the genuineness of their marriage. That is the first decision challenged.

4. Mr Orizu's permission to remain in Hong Kong as a visitor expired on the following day. He did not leave Hong Kong, and further requests for him to be permitted to remain in Hong Kong as Ms Yu's dependant were refused. Eventually, on 23 March 2000 the Director of Immigration made an order for his removal from Hong Kong. That is the second decision challenged.

5. On 7 April 2000, Mr Orizu's former solicitors wrote to the Director of Immigration, again asking for Mr Orizu to be permitted to remain in Hong Kong as Ms Yu's dependant. They set out reasons for their contention that the Applicants' marriage should be regarded as genuine. Four days later, they wrote again (a) enclosing copies of letters from the Applicants' landlord and a neighbour confirming that their marriage was a genuine one, and (b) setting out the facts on which it was contended that Ms Yu was financially able to support both of them. This application was refused by a letter dated 13 April 2000. On this occasion, the Director of Immigration did not comment on the genuineness of the Applicants' marriage. What he said was that he was not satisfied that Mr Orizu intended to join Ms Yu as her dependant, or that Ms Yu was financially capable of supporting Mr Orizu and providing suitable accommodation for him in Hong Kong. That is the third decision challenged. In a subsequent letter dated 10 May 2000, the Director of Immigration stated that he had reached these conclusions "regardless of the genuineness of [the Applicants'] marriage".

6. In the meantime, Ms Yu had written on two occasions to the Secretary for Security about the Director of Immigration's earlier decision to refuse to permit Mr Orizu to remain in Hong Kong as her dependant. Those letters were treated as a non-statutory petition. The Director of Immigration submitted a memorandum to the Secretary for Security in connection with that petition. Although that memorandum was not seen by Chung J (indeed, it was written some months after he dismissed the Applicants' application), it was exhibited to an affirmation made by the Applicants' new solicitors for the purpose of this appeal. Mr Wesley Wong for the Director of Immigration did not object to its use on the appeal.

The revocation of the legal aid certificate

7. A few days before the appeal was due to be heard, the Applicants' legal aid certificate was revoked. I shall refer a little later to the reasons for that, but it was brought to our attention by Mr Clive Grossman SC for the Applicants at the beginning of the hearing. A notification of the revocation had been filed in the Registry, and that had triggered the application of reg. 9(7) of the Legal Aid Regulations which had the effect of imposing a stay of the proceedings for 14 days unless the court ordered otherwise. Mr Grossman applied for an adjournment of the hearing until the Applicants' appeal to the Registrar under section 26(1) of the Legal Aid Ordinance (Cap. 91) against the revocation of the legal aid certificate had been heard, though in the light of reg. 9(7) his application for an adjournment amounted to a submission that the automatic stay of the proceedings should not be lifted.

8. The reason why Mr Grossman wanted the stay to remain in place was that, if it was lifted, and if the appeal went ahead but was dismissed with the Applicants being ordered to pay the Director of Immigration's costs, those costs would have been payable by the Director of Legal Aid under reg. 9(3) of the Legal Aid Regulations. In those circumstances, the revocation of the legal aid certificate would have given the Director of Legal Aid the right under reg. 9(5) of the Legal Aid Regulations to recover those costs from the Applicants. However, Mr Grossman informed us that if the stay was lifted and the appeal went ahead, he and the Applicants' solicitors were willing to represent the Applicants, and he was ready to present and argue the appeal.

9. In the event, the court decided to lift the automatic stay of the proceedings so that the appeal could then be heard. If the appeal to the Registrar was allowed, the revocation of the legal aid certificate would be set aside, and the Applicants would presumably be regarded as having been legally aided all along. In any event, it would have been regrettable if the Applicants' appeal from Chung J's order had to be postponed, thereby putting off until an even later date consideration of whether the Director of Immigration's decisions should be reviewed, and without the benefit of the Applicants being legally represented if the legal aid appeal had been dismissed by then. Finally, the willingness of Mr Grossman and the Applicants' solicitors to continue to represent the Applicants meant that the current hearing could go ahead with the Applicants having the benefit of representation by their current advisers.

Delay in appealing

10. The Applicants' appeal is brought under Ord. 53 r. 3(4) of the Rules of the High Court which provides:

Chung J refused the application for leave on 15 September 2000, and handed down his reasons for doing so on 21 September 2000. Since the notice of appeal was not filed until 4 October 2000, the Applicants need an extension of time for filing it. The relevant facts are that the Applicants applied for legal aid to appeal against Chung J's judgment on 22 September, i.e. the day after he handed down his reasons, and legal aid was granted on 30 September, only 5 days before the notice of appeal was filed. Two of those days (1 and 2 October) were public holidays. Moreover, Mr Wong realistically did not oppose the application for an extension of time. In these circumstances, I had little hesitation in agreeing that an extension of time for filing the notice of appeal should be granted.

The merits of the appeal

(i) The first decision. Although there were three things which the Director of Immigration stated he was not satisfied about (that the Applicants' marriage was a genuine one, that it was not a marriage of convenience entered into to enable Mr Orizu to gain residency in Hong Kong, and that the Applicants intended to live together permanently as husband and wife), his first decision not to permit Mr Orizu to remain in Hong Kong as Ms Yu's dependant came down to one conclusion only, namely that he was not satisfied about the genuineness of their marriage. He reached this conclusion despite a lengthy statement written by Ms Yu in which she explained how she met Mr Orizu, how they fell in love despite their ethnic and cultural backgrounds, and what their plans for the future were.

11. The Director of Immigration's memorandum to the Secretary for Security in connection with the Applicants' petition explains what led the Director of Immigration to be sceptical about the genuineness of the Applicants' marriage. The Applicants had been interviewed separately by an immigration officer on 11 January 1999. The Director of Immigration believed that there had been a number of discrepancies in their answers. Chung J took the view that it was not arguable that these discrepancies could not have justified the Director of Immigration's scepticism about the genuineness of the Applicant's marriage. Having read the list of discrepancies, as well as the transcripts of the interviews in which those discrepancies emerged, I think that it is strongly arguable that the Director of Immigration placed far too much weight on the discrepancies. It is therefore arguable that his scepticism about the genuineness of the Applicants' marriage was misplaced, and that his decision not to permit Mr Orizu to remain in Hong Kong as Ms Yu's dependant was unreasonable in the public law sense.

12. Moreover, the language of the Director of Immigration's letter of 28 January 1999 suggests that he was requiring the Applicants to prove that their marriage was genuine. It is arguable that the burden of proof was otherwise. It could be said, I think, that where there has been a valid ceremony of marriage, the Director of Immigration should presume that the marriage is a genuine one, unless circumstances exist which cause him to conclude that the marriage is not genuine after all.

13. Finally, the letters of 13 April 2000 and 10 May 2000 are instructive. By then, the Director of Immigration had received much more information from the Applicants' former solicitors about the Applicants' marriage, including the fact that Ms Yu had had a miscarriage in 1999 and was by then pregnant again, together with the supporting documents from the Applicants' landlord and their neighbour. In these circumstances, it is noteworthy that the letter of 13 April 2000 did not comment on the genuineness of the Applicants' marriage, and the letter of 10 May 2000 stated that the Director of Immigration had reached his conclusion on Ms Yu's ability to support Mr Orizu financially regardless of the genuineness of their marriage. It is also noteworthy that in his memorandum to the Secretary for Security, the Director of Immigration did not say that he was not satisfied that the Applicants' marriage was a genuine one. In the absence of evidence from the Director of Immigration at this stage, one can only speculate as to what the Director of Immigration actually thought, but he must, for present purposes at least, be regarded as no longer having any concerns about the genuineness of the Applicants' marriage. Thus, on the assumption that the January 1999 decision not to permit Mr Orizu to remain in Hong Kong as Ms Yu's dependant was not unreasonable at the time it was made, it is arguable that the decision should nevertheless be quashed, because the factual premise on which it was made, namely that their marriage was not a genuine one, was proved by subsequent events to be wrong.

(ii) The second decision. The removal order was made pursuant to section 19(1)(b)(ii) of the Immigration Ordinance (Cap. 115) because Mr Orizu was contravening a condition of his permission to stay in Hong Kong. His permission to stay in Hong Kong had expired on 29 January 1999. However, his permission to stay in Hong Kong had expired because it had not been extended, and it had not been extended because the Director of Immigration had decided not to permit Mr Orizu to remain in Hong Kong as Ms Yu's dependant. He had reached that decision because of his scepticism about the genuineness of their marriage. In my view, like the first decision, it is arguable that the removal order should be quashed, because the factual premise on which it was ultimately made - that the Applicants' marriage was not a genuine one - was proved by subsequent events to be wrong.

(iii) The third decision. In relation to the third decision challenged, the Director of Immigration stated that he was not satisfied that Ms Yu was financially capable of supporting Mr Orizu and providing suitable accommodation for him. By the time when the third decision was made, the information before the Director of Immigration was that Ms Yu was pregnant (but that her maternity leave was assured), and that her basic salary of $8,500.00 a month and her private tuition resulted in her receiving an income which averaged $9,000.00 a month, from which she had to pay rent of $3,300.00 a month for the flat in Pui O on Lantau to which she and Mr Orizu had moved. The Director of Immigration's memorandum to the Secretary for Security shows that he was not satisfied that her disposable income of $5,700.00 a month was "capable of supporting the living of Mr Orizu to a standard well above subsistence level, not to mention she also had to bear the expenses of her expected baby". Chung J took the view that it was not arguable that that view was unreasonable.

14. For my part, all I need say is that I think that it is strongly arguable that a disposable income of $5,700.00 a month is enough to maintain a family including a baby at a level above subsistence level, when the cost of accommodation has been provided for, and that the Director of Immigration's decision not to permit Mr Orizu to remain in Hong Kong as Ms Yu's dependant on that ground was unreasonable in the public law sense. I should add that fresh evidence has been placed before us (again without objection from Mr Wong) that Ms Yu's salary is now $9,000.00 a month and that she and Mr Orizu have moved to Tong Fuk on Lantau. The rent of their new flat is only $1,200.00 a month. Thus, Ms Yu's disposable income now, assuming that she continues to earn an average of $500.00 a month for part-time tuition, is $8,300.00 a month, which is arguably well above the subsistence level for a couple living together when the cost of accommodation has been provided for.

15. The Director of Immigration also stated that he was not satisfied that Mr Orizu intended to join Ms Yu as her dependant. Para. 30(a) of the memorandum sent to the Secretary for Security explains what he meant by that. He was not satisfied that, if Mr Orizu was permitted to remain in Hong Kong as Ms Yu's dependant, Mr Orizu would in fact be dependent on Ms Yu. He would seek to support himself by getting work in Hong Kong. There is no doubt that the Director of Immigration was entitled to think that: according to the memorandum, Ms Yu herself had said in one of her letters to the Secretary for Security that disco companies and construction companies were willing to employ him.

16. Chung J did not address this question, but in my opinion it is arguable that the critical question which the Director of Immigration had to decide was not whether Mr Orizu intended to work in Hong Kong once he had been given permission to remain in Hong Kong, but what the primary reason for his application for permission to remain in Hong Kong was. Was it because he hoped to be able to work in Hong Kong, or was it because he wanted to live in Hong Kong with his wife (to use the language of the Director of Immigration's memorandum to the Secretary for Security, "to occupy a natural niche in the setting of his family")? To the extent that the Director of Immigration decided that Mr Orizu's primary reason was the former, it is, in my view, arguable that that conclusion was unreasonable in the public law sense in the light of the evidence then before the Director of Immigration as to the genuineness of the Applicants' marriage.

17. In the interests of completeness, I should add that the third decision was challenged on the basis that in reaching his conclusions the Director of Immigration had failed to take into account, and to give appropriate weight to, the right to raise a family accorded to Hong Kong residents by Art. 37 of the Basic Law. Chung J was not satisfied that the Director of Immigration had not taken Art. 37 into account, but he concluded that even if the Director of Immigration had not taken it into account, his decision would inevitably have been the same had he done so. I have not reached a concluded view on the arguability of either of these two questions, since my conclusion on the arguability of the reasonableness of the third decision makes that unnecessary.

Ms Yu's lack of candour

18. I have already referred to the fact that the Applicants' former solicitors had informed the Director of Immigration in April 2000 that Ms Yu was again pregnant. In her first affidavit sworn on 18 August 2000 in support of her application for leave to apply for judicial review, she had said that the baby was due either at the end of August or early in September. In a recent affidavit, which was not before Chung J, she admitted that that was untrue. She had had a miscarriage at the beginning of May.

19. She explained that the reason why she had lied was that Mr Orizu had been detained in Victoria Prison pending his removal from Hong Kong when her miscarriage occurred. He was upset and frustrated at the time, and Ms Yu doubted whether he would be able to cope with the news that she had miscarried for a second time. She only told him about the miscarriage at the beginning of February. She does not explain how, if the baby had been due at the end of August or the beginning of September, she could have kept the miscarriage a secret from him until February, but the fact remains that she maintains that her husband had been unaware that her statement in her first affidavit that the baby was soon to be born was untrue. It was because of this recent revelation that the Applicants' legal aid certificate was revoked.

20. Applications for leave to apply for judicial review are made ex parte: see Ord. 53 r. 3(2). The duty of complete candour on an applicant therefore applies. The untruth which Ms Yu told was accordingly a serious breach of that duty. If Chung J had granted the Applicants leave to apply for judicial review, an application by the Director of Immigration to have that leave set aside on the ground of lack of candour could well have succeeded. But we must look at matters as they are now, and we now know that Ms Yu was not pregnant when the application for leave to apply for judicial review was filed. We have not been deceived at all. Nor was the Director of Immigration, because when he made the third of the decisions challenged, Ms Yu was pregnant and had not then miscarried. And as it turned out, the untruth which Ms Yu told did not result in her gaining an unjustified advantage: Chung J dismissed the Applicants' application despite Ms Yu's lack of candour. Finally, if it be the case that Mr Orizu was unaware of the miscarriage until recently, there can have been no lack of candour on his part. His application for leave to apply for judicial review could therefore not have been infected by the lie which she had told. It was for all these reasons that I agreed that the Applicants should not be denied having their appeal allowed simply because of Ms Yu's lack of candour in her first affidavit.

Delay in applying for leave

21. Ord. 53 r. 4(1) provides:

The Applicants' application for leave to apply for judicial review was not filed until 18 August 2000, i.e. more than 18 months after the first decision challenged, and more than 4 months after the second and third decisions challenged. Since Chung J dismissed the application on its merits, it was unnecessary for him to consider whether the Applicants' time should be extended. Since I took a different view of the merits, that is a question which needed to be addressed.

22. Following the third decision on 13 April 2000, the Applicants applied for legal aid. That application was refused. They appealed to the Registrar, and on 17 May 2000 the appeal was allowed, subject to a review of Mr Orizu's means. That review resulted in the issue of a legal aid certificate to the Applicants being delayed until 14 June 2000. The Applicant's solicitors obviously needed the relevant documents from the Director of Immigration. They were not received until 15 July 2000. A number of them had to be translated. In my view, this sequence of events justified extending the Applicants' time for applying for leave to apply for judicial review of the third decision to 18 August 2000, which was the date on which the application was filed.

23. Different considerations apply to the first and second decisions. It is said that the Applicants should not be criticised for not challenging the first decision without first seeking a reconsideration of that decision. That argument cannot be taken too far, because otherwise the statutory time limit for applying for leave to apply for judicial review can always be put off by seeking endless reconsiderations of the decision which is ultimately challenged. However, for the reasons I have given, an independent ground for challenging the first and second decisions is that it is arguable, from the reasons given for the third decision, that the factual premise on which the earlier decisions were based was wrong. Since that argument relies on the reasons given for the third decision, and since the time for challenging the third decision should be extended, I agreed that the time for challenging the first and second decisions should also be extended to 18 August 2000.

Conclusion

24. It was for these reasons that I agreed that this appeal should be allowed, that the Applicants' time for challenging the decisions challenged should be extended to 18 August 2000, and that the Applicants should be granted leave to apply for judicial review of the decisions challenged. I should add that in the course of this judgment I have referred to the Applicants' claims being "arguable". That is a form of shorthand for the test to be applied as to whether leave to apply for judicial review should be granted. The true nature of that test was recently considered by the Court of Appeal in Wong Chung Ki v. The Chief Executive (CACV 1/2000). As the court said on that occasion, the issue as to what is the correct test will have to be addressed at some stage. It is sufficient for me to state that whether the test is that laid down in R. v. Director of Immigration ex p. Ho Ming Sai (1993) 3 HKPLR 157 or the higher test propounded in R. v. Legal Aid Board ex p. Hughes (1992) 24 HLR 698, this is not the appropriate time for that issue to be decided, because in my view on either test the Applicants should be granted leave.

Le Pichon JA:

25. I agree.

Rogers V-P:

26. I agree that this appeal had to be allowed for the reasons given by Keith JA. I would only wish to add this. In my view, the application for leave to bring judicial review proceedings should be a short procedure. As the cases indicate it should not involve lengthy applications. Indeed, the more the details of the case are considered, at the application stage, the more undesirable the lengthening of the proceedings becomes. The merits of the application should be considered at the hearing for judicial review, if leave be granted. It is indeed, undesirable that the merits are considered in depth until the case is fully prepared since even the expression of preliminary views can have undesirable effects. It is for this reason that in my view the application stage should be more of a weeding out process, stopping those applications doomed to failure.

27. In the circumstances the appeal was allowed and leave given to apply for judicial review in respect of all 3 decisions.