DEWI DIANA v. DIRECTOR OF IMMIGRATION

HCAL 2056/2018

[2019] HKCFI 1204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2056 OF 2018

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D E C I S I O N

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INTRODUCTION

1.  In her Form 86 dated 27 September 2018, the Applicant seeks to challenge the decision of the Director of Immigration (“the Director”) made on 23 March 2018 and 10 July 2018 (“the March 2018 Decision” and “the July 2018 Decision” respectively) refusing to correct her “personal data in Hong Kong Special Administrative Region”.  As will be seen below, the crux of the Applicant’s complaint relates to the Director’s refusal to change his records relating to her date of birth from 26 April 1985 to 26 April 1990.

2.  On 21 February 2019, the court directed that the application for leave to apply for judicial review shall be dealt with at an inter-partes oral hearing on 29 March 2019.

3.  At the hearing on 29 March 2019, the Applicant appeared in person, and the Director was represented by Mr Gilbert Mok, Government Counsel.  At the conclusion of the hearing, the court reserved its decision. For reasons which I shall explain in this decision, the application for leave to apply for judicial review is dismissed.

BACKGROUND FACTS

(i) The Applicant’s previous applications for FDH visa / extension of FDH visa and Hong Kong Identity Card

4.  The Applicant is an Indonesian national.

5.  On 16 March 2007, the Immigration Department received an application by the Applicant dated 12 March 2007 for permission to enter Hong Kong for employment as a foreign domestic helper (“FDH”).  In that application, the Applicant stated that her date of birth was 26 April 1985.  One of the documents that she provided in support of the application was a copy of her Indonesian Passport No AK 119019 issued on 5 March 2007, which also stated that the Applicant’s date of birth was 26 April 1985.

6.  On 19 April 2007, the Director granted to the Applicant an FDH visa valid for a stay of 24 months in Hong Kong.  On 9 May 2007, the Applicant arrived in Hong Kong and commenced to work as an FDH here.

7.  On 10 May 2007, the Applicant applied to the Commissioner of Registration for a Hong Kong identity card.  In the application form, the Applicant likewise stated that her date of birth was 26 April 1985.  A copy of the aforesaid passport was submitted in support of the application.  A Hong Kong identity card, No W907726(2), was in due course issued to the Applicant.  On the identity card, the Applicant’s date of birth was stated to be 26 April 1985.

8.  Between April 2009 and January 2015, the Applicant submitted to the Director no less than 7 applications for visa/extension of stay in relation to her changes of employment as an FDH in Hong Kong, or for further stay in Hong Kong.  In all those applications, the Applicant stated consistently that her date of birth was 26 April 1985:

Date of receipt of application	Application form submitted to Immigration Department	Passport number as stated in the application form
30.04.2009	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AK 119019
26.05.2009	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AK 119019
21.12.2010	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AK 261611
05.12.2012	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AS 147007
10.12.2014	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AS 147007
05.01.2015	Application for Extension of Stay (ID 91) (as visitor)	AS 147007
16.01.2015	Visa/Extension of Stay Application Form for Domestic Helper from Abroad (ID 988A)	AS 147007

9.  The Applicant’s Indonesian Passports Nos AS 261611 and AS 147007 used by her in support of her various applications mentioned above were issued on 11 January 2010 and 19 September 2012 respectively.  They both stated that the Applicant’s date of birth was 26 April 1985.

10.  In short, between March 2007 and January 2015, the Applicant consistently represented to the Director of Immigration and Commissioner of Registration that she was born on 26 April 1985.

(ii)   The Applicant’s overstaying in Hong Kong and repatriation to Indonesia

11.  Between 2007 and 2015, the Applicant worked as an FDH for 5 employers in Hong Kong.  After her last employment was terminated on 15 July 2015, she did not depart from Hong Kong within 14 days as required by her condition of stay, but overstayed in Hong Kong for over 1 year.  On 12 July 2016, the Applicant surrendered herself to the General Investigation Section of the Immigration Department.

12.  On 26 July 2016, the Applicant was convicted of the offence of breach of condition of stay by overstaying in Hong Kong, and was sentenced to 2 weeks’ imprisonment suspended for 3 years.  On 27 July 2016, the Applicant was voluntarily repatriated to Indonesia.

(iii)  The Applicant’s first data correction request in November 2017

13.  On 9 November 2017, the Immigration Department received a letter from the Applicant dated 7 November 2017.  In that letter, the Applicant stated as follows:

“I would like to take this opportunity to explain that my date of birth was inadvertently mentioned in your record as 26-04-1985. However my correct date of birth is 26-04-1990.

I give this notice under rights given to me under the personal data privacy ordinance to amend and correct my data provided.

I therefore request you kindly amend and correct my date of birth in [all your] records as 26-04-1990.”

14.  Enclosed with the Applicant’s said letter were, inter alia:

(1) an “Application for Amendment of Registered Particulars of Hong Kong Identity Card” (Form ROP 73) dated 7 November 2017, in which the Applicant sought to amend her date of birth from 26 April 1985 to 26 April 1990;

(2) a copy of her new Indonesian Passport No B 7772017 issued on 30 August 2017, which stated that her date of birth was 26 April 1990; and

(3) an illegible copy of an excerpt of birth certificate.

15.  By a letter dated 4 December 2017, the Registration of Persons Office invited the Applicant to attend an interview on 18 December 2017 regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card”.  She was asked to bring along the originals and photocopies of various documents to the interview, and was told that if she was unable to attend the interview or verify the original documents, no further action would be taken in respect of her application after two weeks’ time.

16.  On 8 December 2017, one Mr Butt of “Shafin International Co” (“Shafin”) on behalf of the Applicant sent to the Immigration Department by email some further documents written in the Indonesian language accompanied by their English translation as certified by “Hong Kong Legal Translation” in support of her data correction request, including:

(1) a “Certificate Scheme B Academic Equivalency Program Academic Year 2016/2017” issued by the Ministry of Education and Culture, Republic of Indonesia, dated 2 June 2017;

(2) a “State Examination Transcript Scheme B Secondary School Academic Equivalency Program Academic Year 2016/2017” issued by the Ministry of Education and Culture, Republic of Indonesia, dated 2 June 2017;

(3) a document titled “Family Records” issued by the Department of Demographics and Civil Registration dated 10 July 2017; and

(4) a “Report of Loss of Item” issued by Negantang Sector Police dated 6 October 2016.

In all those documents, the Applicant’s date of birth was stated to be 26 April 1990.

17.  However, the Applicant did not turn up for the interview regarding her “Application for Amendment of Registered Particulars of Hong Kong Identity Card” on 18 December 2017.  On 2 January 2018, the Commissioner of Registration decided that no further action would be taken in respect of that application.

(iv)  The Applicant’s second data correction request in February 2018 leading to the March 2018 Decision

18.  On 15 December 2017, the Immigration Department received a data access request from the Applicant made under Section 18(1) of the Personal Data (Privacy) Ordinance, Cap 486 (“the PDPO”) requesting for access to “[a]ll data held in [the Director’s] record” relating to the Applicant.  The Director responded to the Applicant’s data access request substantively on 10 January 2018, and provided copies of the relevant documents to the Applicant on 8 February 2018.

19.  By a letter to the Director (mistakenly) dated 9 February 2017 which was received by the Immigration Department on 14 February 2018, the Applicant stated that she had duly retrieved all her personal data from the Immigration Department which she had applied for under the PDPO, and requested the Director to “amend and correct [her] date of birth as 26-04-1990 instead of 26-04-1985 in all [his] records”.

20.  By a letter dated 5 March 2018, the Immigration Department invited the Applicant or her representative to attend an interview on 12 March 2018 and to bring along the originals and photocopies of various documents to the interview.  The Applicant was asked, in particular, to produce a “Certificate or document issued by Consulate General of Indonesia in Hong Kong or Indonesian Passport Authority certifying that (i) the date of birth on [her] current Indonesian passport was correct, (ii) the date of birth on [her] old Indonesian passport(s) was inaccurate and process leading to the issue of passport(s) with the inaccurate date of birth”.  The Applicant was also asked to give a written explanation on why she reported a different date of birth previously and when she became aware of the discrepancy in her date of birth.

21.  The interview was subsequently re-scheduled to 16 March 2018 upon the request of the Applicant’s representative.  At the interview, the Applicant’s representative submitted to the Director a letter dated 12 March 2018 signed by the Applicant together with various documents, including her Indonesian Passport No B 7772017 issued on 30 August 2017, the documents mentioned in paragraph 16 above as well as an “Excerpt of Birth Certificate” dated 17 July 2017 stating that the Applicant was born on 26 April 1990.  In the letter, the Applicant stated, inter alia, as follows –

“5 Certificate from Consulate General:

No such certificate has been given to me by the authorities. They only said my date of birth as 1985 was wrong and now they have corrected it;

…

11 I was not aware of the discrepancy in my date of birth.  I was told now that my correct date of birth is 26-04-1985[1]. Therefore I am applying under the rules to amend my data in your record.  In Indonesia usually officer are not careful in the offices, previously due there were always many mistakes, however now due to computer system they are managing very well.”

22.  The Applicant’s application was considered by a number of immigration officers at different levels, who came to the conclusion that there was insufficient evidence to show that the Applicant’s date of birth of 26 April 1985 as shown in the Director’s records was inaccurate.  In an internal minute dated 17 March 2018, the following was stated:

“Consideration and recommendation

4 Insofar as the case was concerned, iaw our record, S1[2] did indeed make use of her IDN passport no. AK119019 under DOB(1) [3] for arrival into HK as FDH in 2007 and subsequently registered for HK I/C no. W907726(2) on 10-05-2007. The IDN passport no. AS147007 under DOB(1) … was issued at Indonesian Consulate General in Hong Kong on 19 SEP 2012. She had also actually used both her IDN passport no. AK119019 under DOB(1) and IDN passport no. AS147007 under DOB(1) for various immigration dealings till her departure on 27-07-2016. Her IDN passport no. AK119019 and IDN passport no. AS147007 were issued by the competent authority and the personal particulars thereon were certified by the passport issuing authority.

5 S1 had presented passport and documents under both DOB(1) and DOB(2)[4]. In the absence of any official confirmation letter or certificate from the passport issuing authority as to affirm DOB(2) was correct and DOB(1) was inaccurate, we are unable to ascertain the applicant’s actual identity. Thus, her identity in terms of her actual DOB was unable to be established at the present stage.

6  Based on the preceding findings, we are unable to accede to this DCR[5] and refusal of the application was recommended ivo insufficient evidence.”

23.  In a further internal minute dated 23 March 2018, the following was stated:

“4 Upon assessment, ROP(K) had invited Ms Dewi or her representative to present them with supporting documents including certificate or document issued by Consulate General of Indonesia in Hong Kong or Indonesian Passport Authority certifying the date of birth on her current passport was correct. However, Ms Dewi’s representative was unable to present such documents upon assessment interview on 16 March 2018.

5 Having considered all the relevant facts and circumstances of Ms Dewi’s case including the written submission, the supporting documents and the records of the Department, it is not satisfied by ROP(K) that Ms Dewi’s date of birth to which the data correction request relates is inaccurate after assessment.

6   As such, I recommend refusal of complying with the DCR in accordance with S. 24(3) of Personal Data (Privacy) Ordinance.”

24.  In summary, the immigration officers took into account, amongst other matters, the fact that the Applicant was not able to provide any supporting documents from the Consulate General of Indonesia in Hong Kong or the Indonesian Passport Authority, the fact that she previously used 26 April 1985 as her date of birth (as stated in her old passports Nos AK 119019 and AS 147007) in various immigration applications, and the fact that those passports were issued by competent authorities.  The immigration officers considered that in the absence of any official confirmation letter or certificate from the passport issuing authority to affirm that the date of 26 April 1990 was the correct date of birth of the Applicant and the date of 26 April 1985 was incorrect, they were unable to establish the Applicant’s true date of birth.  On 23 March 2018, the Principal Immigration Officer decided that the Applicant’s data correction request should be refused.

25.  By a letter dated 23 March 2018, the Immigration Department informed the Applicant that her data correction request to change her date of birth from 26 April 1985 to 26 April 1990 was refused (ie the March 2018 Decision), on the ground that:

“Having considered carefully all the relevant facts and circumstances of your case including the written submission, the supporting documents and the records of our Department, we are not satisfied that your date of birth to which the data correction request is inaccurate.”

(v)   The Applicant’s application for reconsideration in May 2018 leading to the July 2018 Decision

26.  By a letter dated 25 May 2018 which was received by the Immigration Department on 31 May 2018, the Applicant requested the Director to reconsider her application to amend or correct the date of her birth in the Director’s records.  Copies of the following documents, amongst others, were enclosed with the Applicant’s letter:

(1) A “Statutory Declaration” by the Head of Pagersari Village dated 8 May 2018 in which it was stated that, upon thorough scrutiny against their records, it was found that there were “typos” on the date of birth of the Applicant due to “administrative fault”.  It was further stated that –

“The error was found after the verification against her passport on 25-07-2017. As such, the Village Development Committee submitted an official statement to the relevant authorities for necessary amendment of the date of birth. The correct date of birth is on 26 April 1990.

The date stated in her new passport (PP No. B7772017) issued on 30-08-2017 is accurate.”

(2) An “Indonesian identity card” issued on 23 August 2017 bearing “26 April 1990” as the Applicant’s date of birth.

27.  By a letter dated 21 June 2018, the Immigration Department invited the Applicant or her representative to attend an interview on 26 June 2018 and to bring along various documents to the interview in support of the Applicant’s application for reconsideration of her data correction request.

28.  Upon the request of the Applicant’s representative, the interview was re-scheduled and took place on 4 July 2018.  The Applicant’s representative attended the interview and submitted the documents mentioned in paragraph 26 above to the Immigration Department.

29.  The application for reconsideration was considered by a number of immigration officers at different levels, who came to the conclusion that the Applicant had not provided sufficient evidence to show that the date of birth of 26 April 1985 was inaccurate, and hence the previous refusal decision should be upheld.  In an internal minute dated 4 July 2018, the following was stated:

“Consideration and recommendation

14 The applicant did actually make use of her IDN passport no. AK119019 under DOB1 for arrival into HK as FDH in 2007 and subsequently registered for HK I/C no. W907726(2) on 10-05-2007. The IDN passport no. AS147007 under DOB1 … was being officially issued at Indonesian Consulate General in Hong Kong on 19 SEP 2012. She had also indeed used both her IDN passport no. AK119019 under DOB1 and IDN passport no. AS147007 under DOB1 for various immigration dealings till her departure on 27-07-2016. Besides, as far as the case was concerned, the applicant had presented passports and documents under both DOB1 and DOB2. In the absence of any official documents from competent authorities such as the Indonesian passport issuing authority and the Indonesian Consulate General etc. to confirm DOB2 was correct and DOB1 was inaccurate as well as the process and basis leading to the issue of passports with the alleged inaccurate DOB1, we are unable to ascertain the applicant’s actual identity.

15 Pertaining to the Statutory Declaration by the Head of Pagersari Village, the Government of Malang Regency and English translation …, it was stipulated that ‘upon thorough scrutiny against our records, we found typos on the date of birth of Mrs. Dewi Diana. Such an error was due to administrative fault. The error was found after the verification against her passport on 25-07-2017. As such, the Village Development Committee submitted an official statement to the relevant authorities for necessary amendment of the date of birth. The correct date of birth is on 26 April 1990’. However, it did not seem to have elaborated the basis and process leading to the issue of passports with the alleged inaccurate DOB1. Besides, there is also no information giving clue on the reason why the Applicant’s excerpt of birth certificate, academic equivalency program certificate, family records, copy of police report, all bearing DOB2, were issued days/months before the alleged error was found. It therefore followed that we are not satisfied the applicant’s [DOB1] was indeed inaccurate on the basis of the documents at para. 9 and 12. Thus, her identity in terms of her actual DOB was unable to be established at the present stage. In addition, even if Indonesian authorities can confirm that DOB2 is correct and DOB1 is inaccurate, this does not change the fact that the Applicant used DOB1 for various immigration dealings in Hong Kong throughout her previous stay in Hong Kong till her departure on 27 July 2016. All the records are intact and accurate records in relation to the Applicant’s various immigration dealings with ImmD.

16   Based on the preceding findings, we are unable to accede to this DCR and it was recommended to maintain the refusal of the application ivo insufficient evidence.”

30.  In another internal minute dated 4 July 2018, the following was stated:

“Different NIK

4 According to public available information, in Indonesia, a 16 digit number is used as a unique number for each citizen. It is known as NIK[6]. The format is PPRRSSDDMMYYXXXX where PP is two digits province code, RR is two digits regency or city code, SS is two digits sub-district code, DDMMYY is date of birth (DD is added by 40 for female), and XXXX is a four digits computerized number.

5 When the Applicant first applied for a visa to work in Hong Kong as a foreign domestic helper on 16 March 2007, she provided a copy of her Indonesian passport, in the number of AK119019, with DOB1. On page 24 of that passport, it was shown that the Applicant had a national identity number (i.e. NIK/KTP[7]) of 3505156604850005 (“NIK1”).

6 On the other hand, among the documents the Applicant submitted to support her DCR, the Indonesian identity card …, the provisional Indonesian identity card … and the Family Record …, besides bearing DOB2, also bore the NIK number 3507276608900003 (“NIK2”).

7 While the “660485” in NIK1 corresponds with DOB1[8], the “660890” in NIK2 ought to correspond with a date of birth of 26-08-1990 instead of DOB2. This discrepancy casts doubt on the correctness of DOB2.

8 To support her request for reconsideration of the DCR, the Applicant submitted a statutory declaration made by the Head of Pagersari Village … In the statutory declaration, it was written that ‘We hereby would like to inform you that upon thorough scrutiny against our records, we found typos on the date of birth of Mrs. Dewi Diana. Such an error was due to administrative fault.’ The existence of NIK1 suggests that it was not merely a typo of the Applicant’s year of birth from 1990 to 1985. More elaboration about the scrutiny process and the administrative fault so found is necessary before it can be satisfied that DOB1 is inaccurate.

Application Procedure for an Indonesian Passport

9 Indonesian passports are issued by the Directorate General of Immigration (“DGI”) under the Ministry of Law and Human Rights of Indonesia. According to the official homepage of DGI, when an Indonesian citizen who is living within Indonesia wanted to apply for a passport, he has to fill in an application form and provide supporting documents such as his valid identity card, his family card, his birth certificate / marriage certificate / letter of baptism etc. During the application process, an interviewing officer will ‘conduct research on the completeness’ of the submitted documents and may suspend the application process if suspicions about the identity of the applicant is found.

10 During her stay in Hong Kong from 2007 to 2016, the Applicant used three passports bearing DOB1, in the number of AK119019 (issued by the chief of immigration office at Surabaya, Indonesia), AN261611 and AS147007 (issued by the Indonesian Consulate General in Hong Kong). Based on the information stipulated in paragraph 9 above, the DOB1 on these three passports should have been supported by relevant documents and verified by the interviewing officer of the DGI. Therefore, by letters dated 05-03-2018 … and 21-06-2018 …, we have requested the Applicant to provide certificate or document issued by the Indonesian Consulate General in Hong Kong or the Indonesian Passport Authority certifying that DOB1 was inaccurate and the process leading to the issuance of passports with the inaccurate date of birth. Up to now, no such document is provided.

Recommendation

11 Under section 24(3) of PD(P)O, we, as a data user, may refuse to comply with a DCR if (among other grounds which are not pertinent in the present context):

(i) we are not satisfied that the personal data to which the request relates (i.e. DOB1) is inaccurate; or

(ii) we are not satisfied that the correction which is the subject of the request (i.e. DOB2) is accurate.

12   Taking into consideration of all relevant facts and based on the consideration in paragraphs 4-10 above, it is not satisfied that the Applicant has provided sufficient evidence to show that DOB1 is inaccurate.  I recommend maintaining our refusal decision of the Applicant’s DCR.”

31.  On 9 July 2018, the Principal Immigration Officer decided that the refusal decision should be maintained.  By a letter dated 10 July 2018, the Immigration Department informed the Applicant accordingly (ie the July 2018 Decision), on the ground that:

“Having considered carefully all the relevant facts and circumstances of your case including the written submission, the supporting documents and the records of our Department, we are not satisfied that your date of birth to which the data correction request relates (i.e. 26 April 1985) is inaccurate.”

GROUNDS OF APPLICATION FOR JUDICIAL REVIEW

32.  On 27 September 2018, the Applicant made the present application for leave to apply for judicial review of the March 2018 Decision and July 2018 Decision.  In the Form 86, the Applicant sought, inter alia, the following relief: (i) an order of mandamus to bring up and quash the March 2018 Decision and July 2018 Decision, and (ii) further or alternatively, an order that the matter be remitted to the Director to reconsider her data correction request.  The Applicant did not, however, set out the grounds on which relief was sought as required by Order 53, rule 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.

33.  In the Applicant’s affirmation filed on 27 September 2018, the following grounds in support of her application for leave to apply for judicial review are mentioned or relied upon:

(1) procedural unfairness;

(2) unlawful fettering of discretion;

(3) unreasonableness or irrationality in the public law sense;

(4) failure to understand the facts produced by the Applicant, and failure to properly weigh the information before the Director;

(5) bias and discrimination; and

(6) absence of reasons.

THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW WAS MADE OUT OF TIME

34.  The first decision of the Director under challenge was made on 23 March 2018.  By the time that the Form 86 was filed on 27 September 2018, the statutory period of 3 months to apply for leave to apply for judicial review of that decision had already expired.

35.  In respect of the second decision of the Director under challenge, although it was made on 10 July 2018 and therefore less than 3 months prior to the date of the Form 86, it was a decision confirming the March 2018 Decision upon the Applicant’s application for reconsideration of the earlier decision.  For the purpose of computing the time for making an application for leave to apply for judicial review, it is important to appreciate that time starts to run from the date when grounds for the application first arose, not from the date of the decision sought to be challenged.  An applicant cannot get around or avoid this time limit by the device of asking the decision-maker to “reconsider” his decision, whether by putting forward different arguments or providing additional information.  I reviewed the relevant authorities, including Lo Siu Lan v Hong Kong Housing Authority, CACV 378/2004 (17 December 2004), at paragraphs 39 and 40 per Stock VP, Super Lion Enterprises Ltd v Commissioner of Rating and Valuation, HCAL 71/2005 (6 October 2006), at paragraph 218 per Hartmann J (as he then was), Martin Tao Ming Lee v Secretary for Civil Service, HCAL 82/2010 (8 August 2011), at paragraph 8 per Saunders J, and E T Investment Limited v Director of Health, HCAL 13/2015 (3 February 2016), at paragraphs 17 and 18 per Deputy High Court Judge Keith, in Nisa Azizan v Director of Immigration, HCAL 203/2015 (15 April 2016), at paragraphs 28 to 34, and Kazuo Okada v The Registrar of Companies [2019] 1 HKLRD 483, at paragraphs 53 to 55, and do not propose to repeat the analysis here.

36.  The Applicant’s application to the Director for reconsideration of the March 2018 Decision was not based on any new grounds. The most that could be said is that the Applicant produced some more documents in support of her claim that her true date of birth was 26 April 1990.  In my view, it is clear that the date when grounds for the application to challenge the July 2018 Decision first arose was on 23 March 2018.  It follows that the application for leave to apply for judicial review of the July 2018 Decision was made out of time.

37.  The Applicant has not applied for an extension of time to apply for leave to apply for judicial review, possibly because she is not aware of the need to do so.  Nevertheless, even if such application has been made, for reasons which I shall explain below, the intended application for judicial review has no reasonable prospect of success.  That would be a sufficient reason not to extend time for the Applicant to make the application.

FAILURE TO EXHAUST ALTERNATIVE REMEDIES

38.  It is well established that judicial review is a remedy of last resort.  Save in exceptional circumstances, the court will not normally permit an applicant to challenge a decision by way of judicial review where there is an alternative remedy open to the applicant (see Lee Chick Choi v The Director of Legal Aid [2019] HKCA 275, at paragraphs 16 to 18).

39.  The Applicant’s request made in February 2018 to change her date of birth from 26 April 1985 to 26 April 1990 in the records kept by the Director is a data correction request under Section 22(1) of the PDPO, which states as follows:

“Subject to subsections (1A) and (2), where –

(a) a copy of personal data has been supplied by a data user in compliance with a data access request; and

(b) the individual, or a relevant person on behalf of the individual, who is the data subject considers that the data is inaccurate,

then that individual or relevant person, as the case may be, may make a request that the data user make the necessary correction to the data.”

40.  By Section 23(1)(a) of the PDPO, a data user (ie the Director in the present case) who is satisfied that personal data to which a data correction request relates is inaccurate shall, not later than 40 days after receiving the request, make the necessary correction to the data.

41.  On the other hand, by Section 24(3) of the PDPO, a data user may refuse to comply with section 23(1) in relation to a data correction request if:

“(b) the data user is not satisfied that the personal data to which the request relates is inaccurate;

(d) the data user is not satisfied that the correction which is the subject of the request is accurate”.

42.  A data subject whose data correction request has been refused by a data user may, if he/she is not satisfied with the decision of the data user, lodge a complaint to the Privacy Commissioner for Personal Data (“the Commissioner”) pursuant to Section 37 of the PDPO.  Thereafter, the Commissioner may carry out an investigation and, if he is of the opinion that the data user is contravening or has contravened a requirement under the PDPO, serve an enforcement notice on the data user directing the data user to remedy the contravention under Section 50(1) of the PDPO.  Further, under Section 47(4) of the PDPO, the complainant may appeal to the Administrative Appeals Board against a decision of the Commissioner to the effect that he has decided not to serve an enforcement notice on the relevant data user in consequence of the investigation concerned.

43.  It is clear that the Applicant has alternative, statutory, remedies reasonably open to her to challenge the March 2018 and July 2018 Decisions made by the Director, but has failed to avail herself of those alternative remedies.  There is, on the facts of the present case, no good reason way the Applicant should be permitted to apply for judicial review of the March 2018 and July 2018 Decisions instead of pursuing the alternative remedies.  On this ground alone, I would dismiss the present application for leave to apply for judicial review.

THE INTENDED APPLICATION FOR JUDICIAL REVIEW IS NOT REASONABLY ARGUABLE

44.  At the heart of the Applicant’s complaint is the Director’s refusal to change the date of birth of the Applicant in the Director’s records in accordance with the information contained in the recent documents dated between October 2016 and May 2018 produced by the Applicant in support of her claim that her true date of birth was 26 April 1990.  On the other hand, there is also clear conflicting documentary evidence before the Director which suggests that the Applicant’s date of birth was 26 April 1985, including three previous Indonesian passports of the Applicant, and various immigration applications signed by the Applicant between 2007 and 2015.  Further, notwithstanding the Director’s requests, the Applicant has failed to produce any document from the Indonesian Consulate General or passport issuing authority to substantiate that the date of birth appearing in her previous passports is inaccurate and that appearing in her latest passport is accurate, or explain how the mistake came to be made in the first place.  The Applicant’s own explanation of how she became aware of the discrepancy in her date of birth (see paragraph 21 above) is bare and devoid of particulars, and hardly convincing.  Anyhow, it needs to be emphasized that in an application for judicial review, it is not the court’s function to act as an appeal court from a decision made by the Director, or to substitute its own view for that of the Director.  The court’s role is confined to examining whether the decision made by the Director is unlawful or irrational, or made in a manner which is procedurally unfair to the Applicant.

45.  In the present case, the Director has given the Applicant fair opportunities to present her case.  The relevant internal minutes of the Immigration Department demonstrate that the immigration officers have carefully considered the Applicant’s submissions and documents before reaching the conclusion that there is insufficient evidence to prove that the Applicant’s true date of birth was 26 April 1990. It is a matter for the Director, not the court, to decide how much weight ought to be given to the conflicting documents and evidence as regards the Applicant’s true date of birth.  The question is not whether the court would have reached the same conclusion on the existing materials, but whether the conclusion of the Director is so unreasonable that no reasonable person, properly directed on the relevant law and facts before him, could reach such conclusion.  The Director is, in my view, entitled to reach the conclusion that there is insufficient evidence to prove that the Applicant’s true date of birth was 26 April 1990.  His decision is not unlawful or irrational, and has not been reached in a procedurally unfair manner.  None of the proposed grounds of judicial review mentioned in paragraph 33 above is, in my view, reasonably arguable or has a realistic prospect of success.

DISPOSITION

46.  For the foregoing reasons, the application for leave to apply for judicial review is dismissed.

47.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and shall not be repeated here.  I consider that the Director should be entitled to be paid his costs in these proceedings, because:

(1) the present application clearly lacks any substantive merits;

(2) the Director attended the leave hearing at the invitation of the court in view of the failure of the Applicant to set out the relevant facts and produce the relevant documents in her Form 86 and supporting affirmation;

(3) the Director has provided substantial and helpful assistance to the court; and

(4) the Applicant has alternative remedies reasonably open to her to challenge the March 2018 and July 2018 Decisions, but fails to pursue those alternative remedies.

48.  I therefore make an order that the Applicant shall pay the Director’s costs of these proceedings, to be taxed if not agreed.