FUNG CHI MAN AND OTHERS v. DIRECTOR OF IMMIGRATION

CACV 220 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2010

(ON APPEAL FROM HCAL NO. 94 OF 2010)

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BETWEEN

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J U D G M E N T

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Hon Stock VP:

1.  This is an appeal ex parte from that which is suggested to be the imposition of a term imposed upon the grant of leave to apply for judicial review. The setting and the argument is canvassed in detail in the judgment of Hartmann JA, which I have read in draft.

2.  The first question before us is whether the judge imposed a term upon the grant of leave.  If he has not done so then any further analysis is in my opinion otiose.  In my judgment, the appeal is misconceived because I do not see that the judge has imposed a term on the grant of leave.

3.  There seem to me to be a number of indicia in support of my conclusion:

(1)   The judge has not expressed himself as imposing a term of leave.  All he has done is to make an observation, and that is what he has called it.  The observation is noted in Form CALL – 1 and not in the order.  Form CALL – 1 is the vehicle by which an applicant is notified of the result of a leave application.  There is nothing in the order recited in the Form which indicates that leave is granted on some pre-condition, such as to costs or as to the giving of security, for which specific provision is made in O 53 r.3(9).  All that appears after recital of the fact that the order in itself is one granting leave, is a note headed “Observations for the applicant”, by which the judge has drawn attention to the decision in Gurung Deu Kumari and indicated that he does not want to hear argument contrary to that particular decision.

(2)   The order itself - an instrument entirely different in form and effect from Form CALL – 1, does not qualify or make conditional or provisional the order granting leave.  No terms are imposed.

(3)   The essence of the imposition of terms - even supposing that O 53 r.3 permits terms other than those referred to in O 53 r.3(9) - is that leave is granted on condition that certain acts are performed.  There can be no suggestion that, by reason of his observations, the judge was saying that if the applicant were to seek to reopen the issues covered by the decision in Gurung, leave would be withdrawn or somehow fall away.  Nor is this a case in which the judge has granted leave on certain grounds only.

(4)   It cannot have been intended, in my judgment, that an observation of the kind made by the judge warranted an appeal to this Court. It was always open to the applicant, and in my judgment still is, to seek to persuade the judge either that the judgment in Gurung is in some material particular clearly wrong or that it can be distinguished for the purpose of the instant case.  If the substantive application goes against the applicant because the judge is not persuaded to hear argument on the point, that might form a ground of appeal from the decision upon the application for judicial review.  

4.  For these reasons, I would dismiss this appeal.

Hon Hartmann JA:

5.  The appellants are a family, being a husband, wife and child.  While the husband and the child are permanent residents of Hong Kong, the wife, a citizen of the Philippines, has no right of residence here.

6.  Over the years, the wife has made a number of applications to the Director of Immigration seeking permission to reside in Hong Kong as a dependent of her husband.  All of those applications have been refused.

7.  On 16 September 2010, the appellants filed an application for leave to judicially review the last of the Director's decisions refusing permission.  One of the principal foundations of their challenge was the assertion that art. 37 of the Basic Law guarantees the right to family life and that any interference by the actions of the Administration with that right requires substantial justification.  The Director, however, failed to acknowledge the existence of that right and to come to his decision having due regard to it, that failure rendering his decision unlawful.

8.  As it was, on 14 September 2010, two days before the appellants filed their application, Andrew Cheung J, handed down a judgment concerning the true meaning of art. 37, the article guaranteeing that –

“The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law.”

9.  His judgment was given in the context of a mother seeking to reside in Hong Kong as a dependent of her adult son: Gurung Deu Kumari v Director of Immigration [2010] 5 HKLRD 219.  In his judgment, in looking to the meaning of the phrase – “to raise a family freely” – Cheung J held that, when read in harmony with the Chinese version of art. 37, the phrase was not to be interpreted as an ample and general guarantee ensuring family rights but had a more limited meaning.  He found that the Chinese text clearly referred only to the right to procreate and to care for any children so born, thus exempting Hong Kong residents from the constitutional obligation imposed on residents of the Mainland to practise family planning.  As he put it, the phrase therefore had “nothing to do with taking care of or maintaining one’s parents (or, for that matter, one’s spouse).”

10.  Patently, Cheung J’s judgment in Kumari presented a formidable obstacle to the success of the appellants’ application for judicial review.  Unsurprisingly, however, there was no mention of the judgment in the appellants form 86A which was dated the same date as the date on which the judgment was handed down.

11.  The appellants’ application for leave to apply for judicial review was considered by Cheung J who on 27 September 2010 granted leave.  In doing so – under the heading “observations for the applicant” – the judge said:

“Please note the decision of this Court in Gurung Deu Kumari v Director of Immigration, HCAL 76/2009, 14 September 2010 on the proper interpretation of art.37 of the basic Law. No argument that is inconsistent with the above decision shall be run at the substantive hearing in this case.”

12.  The appellants have sought leave to appeal that ‘observation’, doing so pursuant to Order 53, r.3(4) of the Rules of the High Court which provides that:

“Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge's order to the Court of Appeal within 14 days after such order.”

13.  Order 53, r.3(1) provides that no application to apply for judicial review shall be made unless the leave of the court has been obtained. One of the primary purposes of the rule is to ensure that only applications considered to be reasonably arguable are permitted to proceed.  It follows that a judge, when considering an application for leave to apply for judicial review, may refuse to give leave to advance certain grounds of argument if, in his opinion, those grounds are not reasonably arguable.

14.   As I have indicated above, no doubt because of the close proximity of the handing down of Cheung J’s judgment in Kumari and the filing of the appellants’ application for leave to apply for judicial review, no mention of the judgment was made in the appellants’ form 86A.  There was nothing therefore in the application, as it came before the judge, capable of constituting a reasonably arguable challenge to the correctness of his interpretation of the true nature and extent of art. 37 contained in his judgment in Kumari.

15.  I pause at this juncture to say that, in my opinion, the need for this appeal could have been avoided if those representing the appellants had taken the simple step of informing the judge that they were not aware of his findings in Kumari and therefore sought leave to amend the form 86A to take that judgment into account.  As I have said, they had good grounds for doing so nor was the judge functus.  Order 53, r.4A(6) provides that the judge hearing an application for leave may allow the form 86A to be amended, “whether by specifying different or additional grounds or relief or otherwise, on such terms, if any, as the Court thinks fit.”

16.  If that straightforward, commonsense approach had been adopted, the appellants would not have found themselves in the difficulties which they now face of having to show that the judge’s ‘observation’ amounted to making an order “on terms” thereby giving them jurisdiction to appeal pursuant to Order 53 r.3(4).

17.  One thing is certain.  The judge’s ‘observation’ was not part of the order.  The judge’s decision was communicated to the solicitors for the appellants in a standard form, a CALL-1, which read, under the printed heading, “Order by the Honourable Mr. Justice Andrew Cheung”:

“ 1. Extension of time to apply for leave to apply for judicial review be granted;

2. Leave to apply for judicial review be granted; and

3. Costs be in the cause.”

18.  It was only beneath that, under the printed heading, “Observations for the applicant”, that the restrictive direction forming the subject of this appeal was typed.

19.  Although the typed heading on the standard form described the judge’s directions as being ‘observations’ only, the terminology used by the judge was more than merely cautionary.  In my judgment, it was directive, providing, as it did, that “no argument that is inconsistent with the above decision [Kumari] shall be run at the substantive hearing in this case”.  For myself, therefore, despite the printed heading, I am of the opinion that the judge intended to give and did give more than a cautionary ‘shot across the appellants’ bow’.  Exercising the inherent power of the court to control its own process, he gave a direction as to the manner in which the case was to proceed.

20.  In this regard, it is to be remembered that, while applications for leave to apply for judicial review are ex parte, Order 53, r.4A(2) directs that the order granting leave together with any directions as to the management of the case are to be served on the respondent and any interested parties.  The form CALL-1 reminds applicants of this requirement. Accordingly, the respondent, the Director of Immigration, would become aware of the direction, preparing his answer to the application for judicial review in light of that direction.

21.  In some contexts, orders and directions are interchangeable terms in the sense that a direction may amount to an order that must be carried out.  In the present case, however, I am unable to accept that what was essentially a case management direction can be said to constitute an order that is subject to appeal.  Case management directions may be reviewed for good cause, most often when there is a shift in the underlying circumstances of the case.  

22.  In my view, what is clearly to be implied in the direction of the judge is that, absent an application to amend the form 86A setting out the basis upon which the appellants seek to qualify or challenge the correctness of the findings in Kumari, those findings will not, as a matter of case management, be open to challenge at the substantive hearing.  

23.  In light of that, it remains open to the appellants, without the necessity of any finding by this Court, to seek to amend their grounds of application for judicial review, intimating the basis upon which they seek to qualify or challenge Kumari.  It is then for the Court of First Instance to determine whether permission should be granted.

24.  For the reasons given, I would therefore dismiss the appeal.

Hon Stock VP:

25.  The appeal is, accordingly dismissed.