SAMPAGA LACDANG RAQUEL v. DIRECTOR OF IMMIGRATION

HCAL 4/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTATIVE LAW LIST NO. 4 OF 2000

____________

____________________________________

REASONS FOR DECISION

____________________________________

Introduction

1. The Applicant made an application for leave to apply for judicial review on 7 January 2000. I refused her application following an inter-partes hearing on 4 May 2000. The following are the reasons for the refusal.

2. The background facts are in substance undisputed. In particular, as Mr Harris for the Applicant fairly conceded, there is no basis for the Applicant to dispute the evidence adduced by the Respondent.

3. The Applicant is a Filipino lady who came to Hong Kong in 1993 to work as a domestic helper. On 14 July 1996 she was married to a Hong Kong resident and was granted a dependent visa. That marriage however broke down and after her divorce she returned to the Philippines on 11 October 1997. She returned to Hong Kong on 12 February 1999 as a visitor and married her present husband, Mr Lacdang, on 20 September 1999.

4. The background of Mr Lacdang was not set out in full in the affidavits filed by the Applicant initially, despite she was legally represented. It is important that full and frank disclosure must be made in an application for leave to apply for judicial review (which may be dealt with on an ex parte basis), just as it is important for such a degree of disclosure to be made in any ex parte application.

5. According to the evidence filed by the Respondent, Mr Lacdang himself came to Hong Kong as a visitor in May 1995 (when he was aged 16). On 20 June 1995 he was granted permission to reside in Hong Kong as a dependent of his mother. Such permission was extended from time to time thereafter.

6. When the passport of Mr Lacdang is examined, a stamp of the Hong Kong Immigration Department can be found on p. 4 thereof. The relevant words of the stamp are:-

"Previous conditions of stay are hereby cancelled.

The holder does not require a visa to re-enter Hong Kong within twelve months of the date of his departure.

15.09.1999."

7. According to both the Applicant and Mr Lacdang, the above shows that Mr Lacdang holds an "unconditional stay" status and since then he was not the holder of a dependent visa: see para. 4 of the Applicant's affidavit and para. 2 of Mr Lacdang's affidavit. According to Mr Lacdang, he understood since that time he was no longer a dependent and was free to remain in Hong Kong indefinitely. Further, because of this understanding, Mr Lacdang and the Applicant decided to marry and that took place on 20 September 1999.

8. The Applicant then applied on 24 September 1999 for a change of immigration status to become a dependent of Mr Lacdang. On 7 October 1999 the Respondent refused the application and the reasons were given in a letter the relevant parts of which read:-

" Under existing immigration policy, a person admitted into the HKSAR as the dependant of another person is not allowed to sponsor his/her own dependants' application for residence unless and until he/she himself/herself has acquired the right of abode in Hong Kong or has been permitted to remain to take up employment, establish or join in a business in his/her own right.

Mr Lacdang Raymond Cruz has not acquired the right of abode in Hong Kong, nor is he/she a person who has been permitted to take up employment, establish or join in a business in his/her own right. After careful consideration of your application and in particular whether there were any grounds for treating you as an exception to policy, I regret to inform you that your application is refused on policy grounds.

You are permitted to remain as a visitor until 14.10.99 and are required to leave the HKSAR on or before this date."

9. The Applicant considered that this refusal was wrong and was judicially reviewable and so instituted the present application. The grounds on which this application was brought can be summarized as follows:-

(a) the Respondent's refusal was based on an mistake (or mistakes) of fact;

(b) the Applicant has a legitimate expectation that her application would be allowed;

(c) the policy on which the Respondent's refusal was based is perverse, illogical, unreasonable and/or unfair.

The Standard for Granting leave

10. The parties differed as to the test applicable in an application for leave to apply for judicial review in immigration cases. The Applicant contended that the threshold is a very low one, namely, if the Applicant might on full argument have an arguable case, leave should be grant: R. v. Home Secretary ex parte Ruk Shanda Begum (1990) C.O.D. 107. On the other hand, the Respondent argued that the threshold should be much higher and the Courts will abstain from intervention save in extreme cases, such as bad faith or its equivalent: Ho Ming Sai v. Director of Immigration [1994] 1 HKLR 21 and R. v. Director of Immigration ex parte Chan Heung Mui [1993] HKPLR 533.

11. For the purpose of this application, I am prepared to approach the matter on the basis of the threshold test contended for by the Applicant.

Was the Decision based on Mistake(s) of Fact?

12. In the Applicant's Skeleton Argument, it was argued that Mr Lacdang was, contrary to the statements in the Respondent's letter of 7 October 1999, not a dependent: see para. 2 of the Skeleton Argument, para. 4 of the Applicant's affidavit and para. 2 of Mr Lacdang's 2nd affidavit. In the "Amended Notice of Application for Leave to Apply for Judicial Review", the Applicant contended that Mr Lacdang was eligible to take up employment in Hong Kong in his own right. For the above reasons, the Applicant submitted that the Respondent made a mistake on the facts in relation to either or both of the above matters. The Respondent disagreed with these arguments.

13. The first point above, namely, Mr Lacdang was not a dependent, was based on the Respondent's said stamp dated 15 September, 1999. The Applicant argued that this must mean Mr Lacdang's stay was no longer conditional on his mother being resident in Hong Kong. Hence, there was no evidence (or basis) for the Respondent to conclude he was still a dependent: see para. 6 and 7 of the Skeleton Agreement. I do not agree.

14. The provisions of the Immigration Ordinance, Cap. 115 indicate that this argument must be wrong. Several provisions in Cap. 115 define who can be "Hong Kong permanent residents": ss.2(1), 2A and Schedule 1 of Cap. 115. The only provision which may be applicable to Mr Lacdang is para 2(d) of Schedule 1 of Cap. 115: ordinarily residence in Hong Kong for a continuous period of not less than 7 years. By 24 September 1999 (when the Applicant applied to the Respondent for a change of status), Mr Lacdang has not fulfilled the requirements of para. 2(d) of Schedule 1. As a result, he was still subject to immigration control pursuant to ss. 7(1) and 11 of Cap. 115. The Respondent's stamp put onto Mr Lacdang's passport appears to have been put there pursuant to s. 11(5A)(a) of Cap. 117. However, it does not somehow make Mr Lacdang a person not subject to immigration control under Cap. 115, in particular s. 7(1) thereof. Hence, the permission for him to continue to stay in Hong Kong, the cancellation of previous conditions of stay and the dispensation of the need for visa must have been granted as a result of the Respondent applying the Hong Kong Government's policy regarding dependents. Indeed, this was confirmed by the various affirmations filed by the Respondent. As stated earlier, the contents of these affirmations are undisputed by the Applicant. For the above reasons, I do not find that as a matter of fact, Mr Lacdang has ceased to be a dependent since 15 September 1999.

15. The second point above, namely, Mr Lacdang was eligible to take up employment in Hong Kong in his own right, is also factually unsustainable. The affirmations filed by the Respondent (which are undisputed) sets out the actual position over this point which can be summarized as follows. In relation to people having been admitted for residence by reason of the policy relating to dependents, the Respondent also applies an interim policy which is intended to assist these dependents as they approach the position of eligibility for the status of permanent residents. The Respondent has a discretion of imposing progressively more generous limit of stay regarding these residents: see paras. 11 to 12 and 20 of the affirmation of Yim Kwan Hoi. The above interim policy has nothing to do with people admitted to reside in Hong Kong under the "admission for employment" policy: see paras. 9 and 17 to 18 of Mr Yim's affirmation.

16. Whether (and even if) Mr Lacdang and/or the Applicant believed or understood the above matters differently (as they deposed in their affidavits) is irrelevant to the true state of affairs, although it may be relevant to the issue of "legitimate expectation" which will be dealt with under the next heading.

Was there any Legitimation Expectation?

17. In the "Amended Notice of Application", an argument that "a legitimate expectation on the part of the Applicant that .... her husband sponsor was entitled to work in his own right in Hong Kong ...." was advanced. In view of the sequence in which the relevant incidents took place, this argument is bound to fail.

18. The Respondent's stamp on Mr Lacdang's passport was attached on 15 September 1999. The marriage of the Applicant and Mr Lacdang took place on 20 September 1999. The Applicant applied to the Respondent on 24 September 1999. It was only subsequently (on 7 October 1999) that the Applicant (and Mr Lacdang) received the letter from the Respondent (containing a statement regarding the sponsor's eligibility to take up employment in Hong Kong in his own right). In fact, this was confirmed by para. 2 of Mr Lacdang's affidavit.

19. Perhaps realizing this problem, both in the Applicant's Skeleton Argument (at para. 13) and the oral submissions, the Applicant chose rather to rely on the stamp dated 15 September 1999 (than the letter dated 7 October 1999). However, an examination of the facts preceding 15 September 1999 shows that there is no substance in this point either.

20. As stated earlier, Mr Lacdang came in Hong Kong as a visitor before 20 June 1995 (in May, 1995). Since that date, he was permitted to reside in Hong Kong as his mother's dependent. What appear in his passport are the following:-

(a) prior to 20 June 1995, the Respondent's chops stating, among other things, "VISITOR permission to remain extended until [date]";

(b) since 20 June 1999, the Respondent's chops stating "Permission to remain extended until [date]";

(c) the Respondent's stamp dated 15 September 1999.

2 matters are immediately clear:-

(1) the only difference between the chops before 20 June 1999 and those after was the absence of the word "VISITOR" after 20 June 1999;

(2) apart from the limit of stay (relating to time), no other conditions of stay appears on Mr Lacdang's passport.

21. In these circumstances, the most that one can reasonably gather from the Respondent's stamp dated 15 September 1999 is that the limit of stay has been cancelled. The Applicant contended that the word "conditions of stay" (in plural) would lead a reasonable person to conclude that the dependent status (which may appear to a lay person to be one type of condition of stay) was also cancelled. I do not agree. There is no evidence that there was any representation (whether coming from the Respondent or elsewhere and whether made by way of chops/stamps put onto the passport) to bring about such a belief.

Is the Respondent's Policy Perverse?

22. The "Amended Notice to Apply" stated, inter alia, that "the decision" is "unfair", "perverse" and "Wednesbury unreasonable". There is no complaint therein that the immigration policy of the Hong Kong Government is "unfair", "perverse" or "Wednesbury unreasonable". However, such a point was put forward at para. 11 of the Applicant's Skeleton Arguments. I considered before the Applicant could raise this point, the "Amended Notice of Apply" ought to be re-amended to include such a complaint. Mr Marshall for the Respondent fairly raised no objection and leave for the Applicant to do so was given at the hearing to incorporate para. 11 of the Skeleton Arguments into the "Amended Notice of Application".

23. This complaint is based on the Respondent allowing people admitted under the "admission for employment" policy to have his family come to Hong Kong whereas people in the same position as Mr Lacdang are placed at a disadvantage in relation to that matter.

24. I do not see the need to deal with this point in length. The evidence filed by the Respondent demonstrates the need for this distinction. At the end, the reason for the different consideration is caused (and justified) by the community interest of having to suitably control immigration for a place of high density of population as Hong Kong is. There is nothing "unfair", "unreasonable" or "perverse" in these policies. Furthermore, as these are policies, they are more matters of government than matters for judicial review.

Costs

25. After this application was refused by me, the Respondent asked for its costs. The Applicant opposed the application for costs contending that she should not be any worse off than an applicant whose application for leave was so unmeritorious to justify its refusal without a hearing. Even such an applicant would not be asked to pay costs.

26. It is important to bear in mind the purpose of the court awarding costs: it is not to punish the party who has lost in the litigation, but to compensate the loss caused to the party who is successful in its outcome. Because the applicant whose application for leave has been refused without a hearing has not caused time and expenses of the other party to be incurred in disputing the application, the need to compensate the other party does not arise.

27. The position is different for an applicant who decides nevertheless to proceed with such an application after an inter-partes hearing has been directed by the court. There is no valid reason why having made the choice of proceeding with the application in such manner and resulting in the opposing side incurring time and expenses to resist the application, the applicant should not pay the expenses so incurred by the other side. In fact, such kind of costs order is often made following ex parte applications which at the Court's direction are heard inter-partes, the most common being cost orders made after the refusal of applications for interlocutory relief.

28. For the above reasons, the costs of this application are to be paid by the Applicant to the Respondent, to be taxed if not agreed.