Case Detail

HCAL 1727/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.1727 OF 2000

______________________

BETWEEN

	SHAWNAVASUDEEN MUSAHUDDEEN	Applicant
	and
	DIRECTOR OF IMMIGRATION	1^st Respondent
	CHIEF EXECUTIVE IN COUNCIL	2^nd Respondent

______________________

Before : Hon Hartmann J in Court

Date of Hearing : 13 October 2004

Date of Judgment : 13 October 2004

______________________

J U D G M E N T

______________________

1. This is an application for judicial review. The applicant, who is a citizen of India, having been raised in that country, came to Hong Kong as a visitor in May 2000. Shortly after his arrival, the applicant made an application to the 1^st respondent, the Director of Immigration, to remain in Hong Kong as a dependant of his father, his father being his sponsor. His application was refused by the Director. The applicant’s appeal to the Chief Executive in Council was also unsuccessful.

2. The applicant now seeks orders of certiorari to bring up these decisions and have them quashed on the basis that they were unreasonable in the public law sense; that is, decisions falling outside of the parameters of discretion given to the respondents. Aside from the general contention of unreasonableness, it is contended that the decisions failed to take into account a material factor supporting the applicant’s application; namely, his outstanding academic record.

3. It is further contended that the applicant has been dealt with oppressively by the Director who apparently instituted a prosecution against the applicant for breach of his conditions of stay. This oppressive conduct, it is said, vitiated the fairness of the procedures adopted by the respondents in considering the applicant’s application and his appeal.

4. The applicant’s father, his sponsor, came to Hong Kong in or about 1972. He has right of abode in Hong Kong. As the father’s roots were in India, he raised the children of his marriage - the applicant and a younger sister - in India. The applicant was therefore schooled in India.

5. The applicant himself was born in 1980. When he arrived in Hong Kong in May 2000, he was therefore 20 years of age. On the evidence, it is apparent that he is an intellectually capable young man, fit and well.

6. While still in India, the applicant studied mechanical engineering at a polytechnic. I am told it was a three-year course running from 1997 until 2000. The applicant obtained a first class pass. When the applicant came to Hong Kong, therefore, he was in possession not only of qualifications obtained at school but of post-schooling qualifications too.

7. By way of background, I am told that the applicant’s father first applied for his son to live in Hong Kong as his dependant backed in May 1997. Papers were submitted. However, the application did not proceed. I am told that a business opportunity arose for the father in Japan. He therefore advised his son to complete his schooling in India, including college or polytechnic, and thereafter to come to Hong Kong. The applicant has said that it was his father’s advice that he should then come to Hong Kong to further his education.

8. As to the application made by the applicant to remain in Hong Kong, it is to be emphasised that the applicant sought to do so as a dependant of his father. Put simply, he sought what is commonly called a dependency visa. He did not seek a work visa nor did he seek a visa which allowed him to attend a course of study here. The applicant based his application on an assertion, therefore, that his primary purpose for wishing to remain in Hong Kong on an indefinite basis was so that he could assume a natural niche in his father’s family as a dependant of his father.

9. In an earlier decision of mine - Bhupendra Pun v. The Director of Immigration HCAL 1541/2001 (unreported) - I described the Director’s dependency policy in the following way :

“… the policy of the Director has, for many years, been one of strict immigration control. It is the Government’s often-stated view that without these strict controls the strain on our already crowded facilities may well become intolerable. Our courts have, on many occasions, recognised this policy of strict control, a policy which is dictated by Hong Kong’s unique geographical, social, historical and economic circumstances. Expressed in plain language, our courts have long recognised that Hong Kong’s administrative authorities have acted lawfully in determining that they are not in a position to be as generous in their immigration policies as other jurisdictions may be.

But having said that, the Director of Immigration has formulated a number of policies which allow a limited number of people to come to Hong Kong and take up residence here. One of those policies may be described in the following terms : if, after due investigation, the Director concludes that an applicant wishes to reside in Hong Kong as a genuine dependant of a relative who has sponsored that applicant then a dependency visa will be granted; that dependency visa will be granted without restrictions as to employment. The reasoning, as I understand it, is simple : if an applicant is coming here as a genuine dependant, then he or she does not come here essentially looking to take up employment. There is, therefore, no need to place a restriction on that person’s residence.

Of course, the Director has to ensure that this particular policy does not undermine a separate policy administered by him; namely, the policy of granting people employment visas. If persons state that they wish to come here as dependants but are found to be here, in reality, seeking jobs, then they must apply to come here in terms of the Director’s policy concerning employment. They cannot, as it were, obtain an employment visa ‘via the backdoor’. The Director expresses it essentially in the following manner. If the primary purpose —or a principal purpose — of applying for a dependant visa is not only to be with family but to work in Hong Kong, then the person seeking to come here as a dependant does not fall under the policy.

The Director recognises that in almost all cases, when a person seeks to join a member of family in Hong Kong, one of the principal reasons is family reunion. The Director sympathises with this; it is natural for families to wish to be together. But the Director has not formulated a policy of family reunion. He has formulated a policy in terms of which a family member may come to live here to occupy a natural niche in the setting of the family as a dependant. Dependency is therefore the key issue.”

10. The applicant, in making his application for a dependency visa, had the burden placed on him to demonstrate that he was entitled to that visa. In this respect, when the application was first processed, the applicant’s father placed a letter before the Director. In that letter, dated 5 June 2000, the father asserted that he was financially capable of caring for his son, earning a salary of $15,000 per month plus an extra amount by way of employment with a security company. He went on to say, by way of a postscript, that his son had come to Hong Kong in order to further his studies but that he would seek employment once he had obtained his Hong Kong ID Card. The father said that his son hoped to study navigation at the Hong Kong Polytechnic by way of evening classes.

11. Several weeks later on 28 June 2000, the applicant himself placed a letter before the Director. In my opinion, this letter left no room for doubt that one of the primary reasons why the applicant had come to Hong Kong — if not the primary reason — was to find work and to forge a career for himself. In the letter he said :

“I the undersigned Musahuddeen Shawnavasudeen, who applied for dependant visa to stay in Hong Kong. I just currently graduated in polytechnic. I intend to join a mechanical engineering company or any other related job in Hong Kong for further experience and for a good prospect. Since my father is residing in Hong Kong without any obligation I would prepare to live with him.”

12. On the basis of these two letters, I fail to see how it can be asserted that the Director acted irrationally in coming to a finding of fact that, far from wishing to reside in Hong Kong as a dependant of his father, the applicant sought to live here, albeit with his father, in order to build a career for himself.

13. The intention to further the applicant’s studies was stated but the letters cannot be read, in my view, to the effect that the son wished only to obtain academic qualifications here. Any further studies were clearly taken by the Director to be incidental to the primary purpose of forging a career.

14. The applicant has complained that the letters do not really reflect what he and his father intended to say. The applicant has told me this morning that at the time he was not experienced in expressing himself in the English language and that, in the course of the bureaucratic process of that application, he was effectively instructed what to write.

15. There is however an affirmation signed by the Immigration Officer who conducted the interview denying any form of oppressive conduct or dictation of what was to be said. In addition, I have to take into account that the letters of the father and the son are several weeks apart. It cannot be said therefore that they were both subject to the same pressures at the same interview. The applicant has not suggested that he was in any way threatened or bribed to write the words he did.

16. As I have understood his submissions, the applicant has said that he was not certain of the true legal position, that he was not properly advised and that, upon the suggestion of the Immigration Officer, he wrote words which are now telling against him. I do not wish to be unkind but I have understood the applicant to be saying that if he had known better at the time he would not have written what he did. That may be so. But I see no reason why the Director was not able to read the letter of the applicant (read with the father’s letter) as stating the true intention of the applicant at the time. As such, it seems to me to be entirely rational for the Director to come to a conclusion that the primary purpose of the applicant coming to Hong Kong was not to reside here solely as a dependant of his father but was instead, if not immediately, certainly in the near term, to live here in order to build a career.

17. Indeed, in a set of frank submissions made by the applicant to me this morning, the applicant has said that, although he was raised and educated in India, it was always his father’s intention that he should come to Hong Kong in due course, obtain a suitable qualification and then work so that he could follow in his father’s footsteps and thereby ‘inherent’ the many opportunities that Hong Kong had to offer and that his father had enjoyed for so long.

18. As to his academic qualifications obtained in India, although he did not refer to the point during his course of submission, I took the applicant’s case to be that the Director should have taken into account that the applicant would be an asset in Hong Kong and not a liability. But, while I applaud the applicant for his achievements, and while I accept that the Director has a broad residual discretion, I do not see how it can be said that the failure of the Director to take this issue into account — if it was, in fact, ignored — was so material as to vitiate the decision. It must be remembered that the Director was considering an application for a dependency visa and not a work visa. As such, the Director was not looking to the possible contribution that the applicant could make to Hong Kong.

19. As to the dependency policy itself, I am told by Ms Chan, counsel for the respondents, that the dependency policy did at one time allow for an unmarried child under the age of 21 to come to Hong Kong as a dependant. But age was not the only factor. It had to be shown that the child came to Hong Kong as a genuine dependant.

20. Ms Chan has informed me that in the present case the Director concluded on the evidence before him that the applicant’s primary intention in coming to Hong Kong was to further his career. He had been raised in India, he had been educated in India, he was now 20 years of age, he was fit and well. In addition, the applicant himself had said in writing that he wished to obtain work here. On that basis, said Ms Chan, the Director was clearly entitled to reach the finding of fact that he did; namely, that the applicant had not satisfied him that he qualified for a dependency visa.

21. During the course of submissions this morning, the applicant protested that he came to Hong Kong essentially to further his education. Any intention to work was something well into the future. However, the applicant was not able to show me any evidence concerning courses that he had applied to join or the reaction of our academic institutions concerning applications made by him to take one or more of those courses. The applicant has told me that he made inquiries but unfortunately the institutions involved were not prepared to put pen to paper to say whether they would be prepared to accept him or even if he held the necessary entrance qualifications. I confess to be in puzzled by this. At the very least, I would think, if the applicant had put his case firmly, he would have been able to receive some indication of whether his entrance qualifications would be acceptable. But even if I am wrong in this regard, the burden at all times rested on the applicant to demonstrate his case to the Director and in this regard there is not evidence that he did so.

22. I have been at considerable pains to map out for the applicant the full nature and extent of the Director’s policy of dependency, explaining that policy against the background of Hong Kong being forced to exercise a restrictive policy of immigration. In this regard, I have referred to more extended passages from my judgment in the case of Bhupendra Pun v. Director of Immigration. I do not intend to repeat all of the matters to which I referred. However, I incorporate my findings and observations concerning the policy contained in that judgment into this one.

23. I have considerable sympathy for this applicant. It is apparent that he is a well-educated young man who is frankly confused as to why it is, if his father has right of abode in Hong Kong, that he cannot come and live with him so that in due course he can effectively assume his father’s place in this territory. But, as I have explained to him, regrettably Hong Kong does not have a policy of family reunion. If the applicant was seeking perhaps to join his father in the father’s business, then he would have to go by the route of a work visa, but he has not done so.

24. In his application, the applicant spoke of the process of his application being vitiated by oppressive conduct. The applicant has not advocated this before me this morning. But even on the papers, I find no substance in it. The Director clearly had grounds for bringing a prosecution. There is nothing to suggest that the Director allowed the fact of the prosecution itself to so influence his discretion that it resulted in a refusal when it may not otherwise have done so.

25. In all the circumstances, I am unable to come to a conclusion that either the Director or the Chief Executive in Council was wrong in law in holding that, on the material before them at the time, the applicant did not fulfil the necessary requirements to be admitted to Hong Kong as a dependant of his father.

26. I have explained to the applicant, again at some length, that it is not for me to look to the merits of this matter. The merits were for the Director and the Chief Executive in Council. I can only look to the lawfulness of the decisions.

27. Before concluding, I mention that the application for a dependency visa was also rejected because the Director had difficulties in respect of the father’s financial ability to support his son. On the papers, it does seem as if there were a number of discrepancies in the evidence put forward by the father concerning his financial status. In my judgment, however, this application for judicial review can be resolved without difficulty on the single basis that the applicant was not able to demonstrate that he intended to reside in Hong Kong in terms of the Director’s policy of dependency.

28. In the circumstances, while I sympathise with the predicament of the applicant, I am satisfied that his application for judicial review must be dismissed.

29. In respect of costs, I have heard submissions in respect of a summary assessment. I have considered the figures, explained the matter to the applicant, given him the chance to make representations and have concluded that I should make a summary assessment of costs in the sum of $170,000. I therefore make the order.

	(M.J. Hartmann)
	Judge of the Court of First Instance,
	High Court

Applicant, in person, present

Ms Michelle Chan, GC, of Department of Justice for the 1^st and 2^nd Respondents

HCAL001727/2000

HCAL 1727/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1727 OF 2000

____________

BETWEEN
	SHAWNAVASUDEEN MUSAHUDDEEN	Applicant

	AND

	THE DIRECTOR OF IMMIGRATION	Respondent

____________

Coram: Deputy High Court Judge A Cheung in Court

Date of Hearing: 4 November 2002

Date of Judgment: 15 November 2002

_______________

J U D G M E N T

_______________

1. This was originally the hearing of an application for judicial review by the Applicant against a decision made by the Director of Immigration on 18 July 2000 refusing to grant the Applicant a change of immigration status to take up residence in Hong Kong as a dependant of his father. However, at the beginning of the hearing, Mr Harris, appearing for the Applicant, applied to amend the Applicant's Notice of Application for leave to apply for judicial review (Form No. 86A) in order to challenge two further decisions, namely, the decision of the Director of Immigration made in about May 2001 and communicated to the Applicant by a letter dated 10 May 2001 to maintain his decision of 18 July 2000, notwithstanding the submission of further material by the Applicant to the Director after the first decision was made, and the decision of the Chief Executive in Council made on 4 December 2001 and communicated to the Applicant on 13 December 2001 to confirm the decision of the Director of Immigration made on 18 July 2000.

2. This application was strenuously opposed by Mr Li, counsel for the Respondent. This is a judgment on the application for leave to amend.

3. The Applicant's father is a permanent resident of Hong Kong. On 18 May 2000, the Applicant's father returned to Hong Kong after a period of absence. He brought along the Applicant with him who entered and remained in Hong Kong as a visitor. On 22 May 2000, the Applicant submitted an application to the Immigration Department to remain in Hong Kong as his father's dependant. The Applicant had been a student in a diploma course in a polytechnic in India. He had just completed his course, and was at the time awaiting his final results.

4. After investigation and consideration of the Applicant's case, by a letter dated 18 July 2000, the Director of Immigration refused the Applicant's application because he was not satisfied that the Applicant was genuinely dependent on his father and that he came to Hong Kong to join him as his dependant; moreover, the Director was not satisfied that the Applicant's father was financially capable to support the Applicant's living in Hong Kong.

5. Counsel and solicitors were immediately retained by the Applicant to raise an objection, pursuant to section 53 of the Immigration Ordinance (Cap. 115), in respect of the Director's refusal, which objection was duly made by counsel on 24 July 2000.

6. Following further correspondence, an application for leave for judicial review was taken out on behalf of the Applicant on 7 August 2000. Leave was granted on 8 August 2000.

7. In the meantime, the Applicant's final results in his diploma course were known. The Applicant was awarded first class honours in the diploma course. The Applicant also made a late application to the Hong Kong Polytechnic University for a place in a full-time degree course, and in doing so he was departing from his earlier stated intention to further his studies together with obtaining employment in Hong Kong at the same time if he was allowed to stay as a dependant of his father.

8. All these new changes in circumstances were communicated on behalf of the Applicant to the Immigration Department. Indeed, counsel for the Applicant made a request to the Director of Immigration to carry out "an early reconsideration" of the Applicant's case in the light of the "very considerable changes of circumstances". I should add that further information relating to the employment and financial position of the father had been supplied.

9. After obtaining leave to apply for judicial review, those representing the Applicant decided not to fix a date for the substantive hearing of the application, pending the outcome of the objection raised pursuant to section 53(1) of the Immigration Ordinance, which took the matter to the Chief Executive in Council. This course was apparently agreed to by those representing the Respondent.

10. After further correspondence and representations, Comments were placed by the Director of Immigration before the Chief Executive in Council in order to enable the latter to consider the objection.

11. However, the decision of the Chief Executive in Council took quite some time to make. On 4 December 2001, the Chief Executive in Council eventually decided to confirm the decision of the Director of Immigration made on 18 July 2000.

12. In the meantime, i.e. in May 2001, the Director of Immigration had made another decision, which was communicated by a letter dated 10 May 2001 to the Applicant, to maintain his decision of 18 July 2000, notwithstanding the alleged substantial changes in circumstances and new material and information supplied to the Director.

13. After the result of the Chief Executive in Council was known, a hearing date was fixed for the present application for judicial review. It was fixed to be heard before Hartmann J on 17 May 2002.

14. Yet on 29 April 2002, the Applicant filed a notice to act in person. On the following day, he applied for legal aid, which was granted one day before the scheduled hearing on 16 May 2002.

15. In those circumstances, the scheduled hearing could not take place and the matter had to be adjourned. At one stage, it was hoped that the matter could be re-listed for hearing during the vacation. However, due to the inconvenience of the Applicant's counsel, that was not to be. The hearing was eventually adjourned to 4 November 2002, and that was how the matter came before me for adjudication.

16. In the meantime, the original counsel who had been acting for the Applicant since July 2000, and who was the first counsel assigned by the Legal Aid Department, was unavailable to handle the substantive hearing on the adjourned date. Mr Harris was assigned by the Legal Aid Department in June 2002, and papers only reached his chambers in August when he was away on vacation. It should be noted that the same private solicitors who used to represent the Applicant before he acted in person were assigned by the Legal Aid Department to handle the present case.

17. Admittedly, Mr Harris only had sight of the papers when he returned in September, but he said there was nothing on the face of the papers which alerted him to any urgency in the matter. The subject matter of the present application to amend only caught Mr Harris' eyes in early October when he started seriously preparing for the hearing of this case.

18. It is clear from Mr Harris' written as well as oral submissions that he did not consider that the original challenge to the first decision of the Director of Immigration made on 18 July 2000 on the basis of Wednesbury unreasonableness could really be substantiated. Instead, he saw merits in a challenge to the subsequent decision of the Director of Immigration made in May 2001 as well as the decision of the Chief Executive in Council.

19. He duly communicated his intention to do so to the other side, and his second draft Amended Notice of Application for leave to apply for judicial review, embodying his intended challenges to the two decisions, reached both the Court as well as his opponent a few days before the scheduled hearing on 4 November 2002.

20. Very briefly, Mr Harris relied on two matters that happened after the first decision of the Director of Immigration was made on 18 July 2000. First, the fact that the Applicant had obtained a first in his diploma course in India. Mr Harris complained that the Director failed to take any or any sufficient account of this fact, which was, he said, highly relevant to whether the Applicant genuinely wanted to stay in Hong Kong as a dependant of his father to pursue further tertiary education here. Mr Harris emphasized the fact that in the Comments prepared by the Director for the consideration of the Chief Executive in Council, this fact did not receive any mention at all, although the certificate evidencing the academic achievement had been included amongst the papers submitted to the Chief Executive in Council.

21. Secondly, the Applicant was prosecuted most unfairly if not oppressively, so counsel argued, for a trivial and technical breach of his conditions of stay in Hong Kong, contrary to section 41 of the Immigration Ordinance, by attending an evening course in computer in order to buttress up his computer skills as well as to kill time whilst he was waiting for the result of his objection to the Chief Executive in Council. He was given an absolute discharge by a magistrate hearing the prosecution, to which he pleaded guilty. Mr Harris complained that in the Comments, the Director mentioned specifically that the Applicant had breached his conditions of stay. This way of presenting the facts to the Chief Executive in Council, so counsel complained, was most unfair and misleading.

22. The first matter for me to consider in relation to the application to amend is the very substantial delay involved in the present case. The so-called second decision of the Director of Immigration was made in May 2001. It was not sought to be challenged until October 2002. There was thus a lapse of 17 months. In relation to the decision of the Chief Executive in Council, it was made in early December last year. The first indication that that decision was going to be challenged did not surface until October this year. That was a lapse of 10 months.

23. Mr Li argued with much force that although the present application is made apparently pursuant to Order 53 rule 6(2) of the Rules of the High Court (Cap. 4) relating to the amendment of Form No. 86A, in substance, it is an application for leave to apply for judicial review of the two later decisions out of time - and indeed very much out of time. Whilst rule 4 lays down a period of 3 months to apply for leave to apply for judicial review, that is only a deadline because according to the same rule, an applicant or intended applicant must act "promptly" to apply for leave. Moreover, in this regard, section 21K(6) of the High Court Ordinance (Cap. 4) states that where the court considers that there has been undue delay in applying for judicial review, it may refuse to grant leave or any relief sought, if it considers that "the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration." See also the commentary in Hong Kong Civil Procedure 2002 (Vol. 1) paras 53/14/40 to 53/14/41, and the cases cited in those paragraphs.

24. Mr Li argued that in the present case, there is no "acceptable explanation for the delay"; therefore the question of prejudice does not arise. He relied on a passage in the judgment of Kennedy LJ in Regalbourne Limited v. East Lindsey District Council [1994] RA 1, 10, which was cited in another (unreported) English Court of Appeal decision in R v. Secretary of State for the Environment, ex parte Parry (18 September 1997).

25. I accept that in the present case, there is no acceptable explanation for the delay or a substantial part of it. As regards the decision of the Chief Executive in Council, there was no explanation whatsoever relating to why nothing was done between the notification of the decision in December 2001 and end of April 2002 when the Applicant filed a notice to act in person. The decision of the Chief Executive in Council had been in the forefront of the mind of the Applicant's lawyers, as was clearly evidenced by their conscious decision not to fix a hearing date for the judicial review pending the decision of the Chief Executive in Council.

26. Mr Harris has very frankly informed the Court what happened after legal aid was applied for and was granted, and in particular, why he personally only spotted the points in question in early October this year, even though he was assigned counsel of the case back in June. What he said was understandable but, without meaning any disrespect to anybody, I am not sure if I can call it "acceptable" explanation.

27. As regards the second decision of the Director of Immigration made in May 2001, I can understand why that was not sought to be challenged prior to the decision of the Chief Executive in Council was known in December that year, but the same criticism applies to the delay in relation to this decision after the Applicant was notified of the adverse decision of the Chief Executive in Council.

28. However, I have three observations to make here. First, the delay and failure to promptly challenge the two decisions was more likely the fault of those representing the Applicant, rather than that of the Applicant's personally, at the material times. The Applicant, as a layman, was during most of the time represented by lawyers, and understandably he left the handling of his case, particularly the procedural and technical side of the matter, to his lawyers. He became a litigant in person on 29 April 2002, but on the material and information before me, he promptly applied for legal aid on the following day. Legal aid was granted to him one day before the scheduled hearing, and henceforth, the matter was in the hands of lawyers again. So personally, the Applicant should not really be blamed for the delay in the matter.

29. Secondly, with respect, I do not agree that the absence of an acceptable explanation is an absolute bar to the Court's exercise of discretion in favour of granting leave out of time, or for that matter, granting an extension of time. In fact, in the passage relied on by Mr Li, Kennedy LJ simply said that: "If there is no acceptable explanation, the question of prejudice is unlikely to arise" (my emphasis). Further, I note that in ex parte Parry which as I said referred to Kennedy LJ's passage, whilst there was little or no acceptable explanation for the delay (which was caused by the misguided action taken by the applicant's solicitor there), the court was nonetheless prepared to consider other relevant matters, and eventually decided in favour of extending time.

30. Thirdly, I agree with Mr Harris that whilst in one view, this application is, in substance, an application for leave to apply for judicial review of the two subsequent decisions out of time, it is different from the normal type of cases in one important aspect. In a normal case, an adverse decision was made against an intended applicant who however, for all sorts of reasons, sat on the matter and delayed in applying for leave to challenge the adverse decision. Here, however, the Applicant had one adverse decision made against him. He promptly challenged that decision by successfully applying for leave to apply for judicial review against the decision. At the same time, he did, as he was quite entitled to do, lodge an objection with the Chief Executive in Council against the decision. The decision to await the outcome of his objection before fixing the hearing date of the judicial review application was most understandable, if not eminently sensible. The two subsequent decisions, including the adverse decision by the Chief Executive in Council, did not relate to any new matter. The decision of the Chief Executive in Council arose directly out of the first decision of the Director of Immigration, against which the Applicant has obtained leave to apply for judicial review.

31. Not only that, indeed as Mr Harris argued, a challenge to the decision of the Chief Executive in Council, in the event that it was against the Applicant, must have been an expected event on the part of the Respondent; for after all, those representing the Respondent had been notified of the intention to defer fixing a hearing date for the judicial review application pending the decision of the Chief Executive in Council and must be taken to have acquiesced in that suggestion. The point of so doing is also obvious enough: if the Applicant was successful with his objection, there would be no need to proceed with the judicial review application; if he was not successful, not only would there be a need to proceed with the judicial review application, there would most likely also be a need for the Applicant to further apply for leave to challenge the decision of the Chief Executive in Council as well.

32. As regards the second decision of the Director of Immigration, the same or similar reasoning should apply. Like the decision of the Chief Executive in Council, the second decision of the Director of Immigration took into account matters that occurred or were made known to the Director after the first decision was made. If the objection to the Chief Executive in Council had been successful, there would not be any need to challenge this second decision. On the other hand, if as it has turned out, the objection was unsuccessful, then quite obviously, there would be good reasons to challenge this second decision of the Director together with the adverse decision of the Chief Executive in Council.

33. In other words, unlike an ordinary case in which an intending applicant simply drags his feet in applying for leave to apply for judicial review against an adverse decision, I am here concerned with an applicant whose dispute with the administration was known to the other side, and whose challenge to the adverse decisions made by the administration (used loosely here to describe the decisions made by the Director of Immigration and the Chief Executive in Council) was something well expected.

34. This really leads me to the other relevant considerations that I must take into account, in considering how I should exercise my discretion in the present case. Prejudice is clearly on the forefront of everybody's mind. If I did not accede to the present application, given the dim view of Mr Harris relating to the merits of the challenge to the first decision of the Director of Immigration, which I must say is shared not only by Mr Li, but by this Court also, the result would be fatal.

35. On the other hand, despite the most able submissions made both in writing and orally by Mr Li, I cannot discern any real or substantial prejudice to the Respondent if leave should be granted. Mr Li argued that if leave was granted, the Respondent would be faced with a "completely different claim than that of the original claim". For reasons explained above, the answer is "yes" and "no".

36. Mr Li also argued that much material which came into being after the Director's first decision on 18 July 2000 has now been included in the intended review of the decision of the Chief Executive in Council and the second decision of the Director. That is true. But I do not see this as a real or substantial prejudice. Whilst I bear this in mind, the weight to be attached to this factor is limited. It is more relevant to the question of costs than anything else. In any event, despite the shortage of time, the Respondent has managed to put in further evidence in response to the proposed review of the two subsequent decisions. If need be, a further opportunity for putting in additional evidence may be given to the Respondent.

37. Finally, Mr Li argued that if the Applicant was allowed by way of leave to challenge the Chief Executive in Council's decision, it would lead to a full scale argument by the Respondent on whether a decision of the Chief Executive in Council is amenable to judicial review, and if the answer is "yes", what is the scope of the review, a matter which was decided by Hartmann J in chambers on 2 February 2001 in Gurung Bhakta Bahadur v. Director of Immigration [2001] 3 HKLRD 225. Mr Li submitted that that decision was only a decision by the Court in an interlocutory hearing. The Court did not have the benefit of full and detailed arguments. The Respondent does not agree with the decision and would like to challenge it at the first available opportunity. If I have not misunderstood Mr Li's argument in the present context, he was really trying to say that if leave was granted by the Court to allow the Applicant to challenge the decision of the Chief Executive in Council, this jurisdictional point would have to be argued in the present case, thus lengthening the proceedings considerably, and increasing substantially the effort, time and costs that would have to be expended on this case.

38. I am unable to accept this argument. In any event, it attracts limited weight in my balancing exercise. First, it is more a cost point than anything else. Secondly, the crux of the matter is whether the delay, say, for the sake of argument, of 7 months, in applying for leave to challenge the adverse decision of the Chief Executive in Council in the present case, had the effect of causing the extra length of the hearing, as well as the extra effort, time and costs that would have to be expended on this case. The answer must be "no": if the Applicant had taken out his application for leave promptly and within time, based on the argument that I have heard, and particularly in view of Hartmann J's decision, he would most likely have got leave to apply for judicial review. In that case, the present proceedings would have been lengthened by reason of the perceived necessity on the part of the Respondent to challenge the decision of Hartmann J relating to whether and how a decision of the Chief Executive in Council can be challenged by judicial review, and the "extra" time, effort and costs would have to be expended in any event. Thus analysed, the delay in taking out an application for leave to challenge the Chief Executive in Council's decision did not really lead to the extra length, effort, time and costs that would be required to resolve completely the disputes between the parties.

39. Thirdly, and in any event, as it is the avowed intention of the administration to challenge the decision of Hartmann J at the first available opportunity because of the decision's potential implications, I would have thought that it would welcome the present application for leave to amend, which if successful, would indeed afford the administration the desired opportunity to have the matter revisited by the Court.

40. As I mentioned above, insofar as section 21K(6) is relevant to the present application which refers to "hardship" as well as detriment to "good administration", whilst I can see the potential hardship to the Applicant if leave was not granted, I fail to see any corresponding or other hardship to the Respondent or anyone else if the application was acceded to. As regards good administration, whilst I agree that generally speaking, disputes of the present kind should be resolved finally as soon as possible as a matter of good administration, I do not see, and none was suggested to me, any real or substantial detriment to good administration if I granted leave to amend in the present case, which must necessarily result in further delay in the present proceedings, which I have also borne in mind.

41. As regards the merit of the intended judicial review, Mr Li very fairly did not place much if any reliance on it. In other words, he did not suggest to me that the proposed judicial review is totally unarguable or hopeless, so that there is no point whatsoever in granting leave to amend/ apply for judicial review. On the other hand, though much had been said by Mr Harris relating to the proposed judicial review, he did not go so far as to say that his intended challenge to the two latter decisions was bound to succeed, so that any refusal to allow him to do so would result in gross injustice to his client. Very fairly and properly, he did not see fit to put his client's case that high. In deciding how to exercise my discretion, I proceed on the basis, which I perceive to be the only fair and reasonable one, judging from the material before me, that the intended judicial review is arguable, and had the application been made promptly within time, I could really see no real objection to the Court's granting leave to apply for judicial review.

42. Bearing the whole of the circumstances in mind, particularly those which I have specifically mentioned above, as well as the nature of the underlying dispute in these proceedings, in the exercise of my discretion, I grant leave to amend as per the second draft Amended Form No. 86A which was submitted by Mr Harris to the Court for the purpose of his application.

43. As the matter has dragged on for long enough, I consider that I should give directions for the further conduct of the proceedings as follows:

(1) leave to the Applicant to amend Form No. 86A as per the second draft submitted by counsel within 3 days from the date this judgment is handed down;
(2) leave to the Respondent to file and serve any further evidence in opposition within 14 days from the date this judgment is handed down;
(3) leave to the Applicant to file and serve evidence in reply within 7 days thereafter;
(4) no further evidence to be filed or relied on by either party without leave of Court.

44. In view of the intention of the Respondent to argue whether a decision by the Chief Executive in Council is amenable to judicial review, and the disagreement between counsel as to whether this jurisdictional point should be heard first as a preliminarily point, or heard only if necessary after the merits of the application have been heard and dealt with by the Court, or, as part of one hearing dealing with both this jurisdictional point as well as the merits of the application, there is, in my judgment, indeed a need for a directions hearing after all evidence has been filed.

45. Furthermore, as the jurisdictional point will be argued or will potentially be argued (depending on whether Mr Li's suggested way of proceeding with the hearing is adopted by the Court or not), and as Hartmann J has already rendered a detailed decision on this jurisdictional point, I can see every advantage in having this case heard and dealt with by the learned judge as well. The learned judge, who is in charge of the present List, is already well familiar with the competing arguments on this point, which will tend to save the time and costs of the substantive hearing, and it would also tend to promote consistency. Any party not satisfied with his lordship's decision may, of course, take the point further, which is indeed the avowed intention of the Respondent if the decision of the Court in the present case should remain the same as that made by Hartmann J in the earlier case.

46. For all these reasons, I further order that subject to any further or other directions of the Court, the application for judicial review (as amended) be adjourned to a new date to be fixed, but not before the close of evidence, for a pre-trial directions hearing before Hartmann J.

47. Finally, as regards costs, the Applicant sought an indulgence from the Court. The opposition mounted against his application was most understandable and reasonable. In those circumstances, the Applicant must pay the costs of and occasioned by the application, such costs to be taxed if not agreed. Furthermore, the application for leave to amend took the whole morning of the one day fixed for the substantive hearing, and the Court also required time to consider its decision. As a result, the substantive hearing could not be carried on, and the remaining time of the hearing date was therefore thrown away. In those circumstances, notwithstanding Mr Harris' argument, I further order that the costs thrown away by the application for leave to amend, including in particular the costs thrown away by the adjournment of the hearing on 4 November 2002, be paid by the Applicant to the Respondent, such costs to be taxed if not agreed. I also order that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91).

	(Andrew Cheung)
	Deputy Judge of the Court of First Instance
	High Court

Representation:

Mr Paul Harris, instructed by Messrs Jal N Karbhari & Co., for the Applicant

Mr Andrew S Y Li, instructed by the Secretary of Justice, for the Respondent

SHAWNAVASUDEEN MUSAHUDDEEN v. DIRECTOR OF IMMIGRATION AND ANOTHER

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