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H v Director Of Immigration

Judgment Cited authorities 23 Cited in Precedent Map Related
Vincent
Judgment Date14 July 2020
Neutral Citation[2020] HKCFA 22
Judgement NumberFACV1/2020
Citation(2020) 23 HKCFAR 248
Year2020
Subject MatterFinal Appeal (Civil)
CourtCourt of Final Appeal (Hong Kong)
FACV2/2020 AH v. DIRECTOR OF IMMIGRATION

FACV Nos. 1 of 2020 and 2 of 2020

[2020] HKCFA 22

FACV No. 1 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2020 (CIVIL)

(ON APPEAL FROM CACV NO. 5 OF 2017)

_________________________

BETWEEN
H Appellant
and
DIRECTOR OF IMMIGRATION Respondent

_________________________

FACV No. 2 of 2020

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2020 (CIVIL)

(ON APPEAL FROM HCMP NO. 196 OF 2016)

___________________________

BETWEEN
AH Appellant
and
DIRECTOR OF IMMIGRATION Respondent

___________________________

(HEARD TOGETHER)

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Cheung PJ and Mr Justice Gleeson NPJ
Date of Hearing: 19 June 2020
Date of Judgment: 19 June 2020
Date of Reasons for Judgment: 14 July 2020

________________________

REASONS FOR JUDGMENT

________________________

Chief Justice Ma:

1. At the hearing of these appeals, after submissions on the first question of law for which leave to appeal was granted, the Court made the following orders:

(1) The appeals are allowed to the extent that the appellants had the right to appeal to the Court of Appeal without first obtaining leave under s.14AA(1) of the High Court Ordinance, Cap.4, against the orders of Chow J dated 18 November 2015 (in HCAL 32 of 2015) and 3 November 2016 (in HCAL 172 of 2015) refusing to grant leave to apply for judicial review. The reasons for judgment will be handed down on a date to be notified.

(2) The other questions for which leave to appeal to the Court of Final Appeal as sought in FAMV 415 of 2019 and FAMV 3 of 2020 are to be dealt with on a date to be fixed.

2. The reasons for allowing the appeals are set out in the judgment of Mr Justice Fok PJ. I agree with those reasons and the direction regarding costs at [56] below.

Mr Justice Ribeiro PJ:

3. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A. Introduction

4. The primary issue in these conjoined appeals is one of jurisdiction of the Court of Appeal to entertain an appeal from the Court of First Instance and, in particular, whether a decision to refuse an extension of time to apply for leave to apply for judicial review is a decision to which section 14AA(1) of the High Court Ordinance (Cap.4) (“HCO”) (set out at [10] below) applies. In this judgment, I shall refer to this issue as “the Leave Issue”.

5. If leave is required, a subsequent question arises as to whether the finality provision in section 14AB of the HCO (set out at [12] below), insofar as it relates to judicial review proceedings, is inconsistent with the Court of Final Appeal’s power of final adjudication in Article 82 of the Basic Law.[1] This issue will be referred to as “the Constitutionality Issue”.

6. The circumstances out of which these appeals arise are as follows. In FACV 1/2020:

(1) The appellant in FACV 1/2020 (“the appellant H”) applied to the respondent, the Director of Immigration, for a dependant visa. The respondent made a decision to refuse the application on 8 October 2013 and confirmed the decision on 11 August 2014. On 21 August 2015, the appellant H filed a Notice of Application for Leave to Apply for Judicial Review[2] (in HCAL 172/2015) seeking to challenge the respondent’s decision and its confirmation. Being considerably more than three months after the date of the relevant decision sought to be judicially reviewed, in his Form 86 notice, the appellant H sought an extension of time in which to bring the application.

(2) Chow J directed that there be what he termed “a rolled up hearing” of (i) the application for an extension of time to commence judicial review proceedings, (ii) the application for leave to apply for judicial review, and (iii) in the event that leave was granted, the substantive judicial review application.[3]

(3) By his judgment dated 3 November 2016, Chow J refused to grant the extension of time sought and dismissed the application for leave to apply for judicial review.[4]

(4) The appellant H filed a Notice of Appeal against Chow J’s judgment (in CACV 5/2017). However, applying the judgment of the Court of Appeal in MI & IYW v Permanent Secretary for Security[5] (which I shall address further below), the appellant H was directed by the Registrar of Civil Appeals that, if he was minded to pursue the appeal, he should apply for leave to appeal pursuant to section 14AA of the HCO and seek an extension of time for that purpose. The appellant H duly did so by summons dated 22 August 2018.

(5) On 29 October 2018, the Court of Appeal refused to grant leave to appeal to it from Chow J’s judgment and struck out the appeal.[6]

(6) The appellant H then applied to the Court of Appeal for leave to appeal to the Court of Final Appeal. By its judgment dated 22 November 2019, the Court of Appeal followed its decision in MI and held that, since it had refused leave to appeal to it pursuant to section 14AA of the HCO, section 14AB of the HCO precluded any further appeal to the Court of Final Appeal and dismissed the application for leave to appeal to this Court.[7]

(7) The appellant H then applied to this Court for leave to appeal against the Court of Appeal’s judgment striking out his appeal against the judgment of Chow J.[8]

7. In FACV 2/2020:

(1) The appellant in FACV 2/2020 (“the appellant AH”) also applied to the respondent for a dependant visa. The respondent made a decision to refuse that application on 14 August 2012 and confirmed the decision on 1 August 2013. On 3 March 2015, the appellant AH filed a Notice of Application for Leave to Apply for Judicial Review seeking to challenge the respondent’s decision and its confirmation (in HCAL 32/2015). Being considerably more than three months after the date of the relevant decision sought to be judicially reviewed, in his Form 86 notice, the appellant AH sought an extension of time in which to bring the application.

(2) Chow J heard (i) an application by the appellant AH for an extension of time to commence judicial review proceedings described as “the Extension Application”, and (ii) an application for leave to apply for judicial review “in the event that the Extension Application is granted”.[9]

(3) By his judgment dated 18 November 2015, Chow J dismissed the application for the extension of time sought and also dismissed the application for leave to apply for judicial review.[10]

(4) The appellant AH applied for an extension of time to seek leave to appeal to the Court of Appeal against Chow J’s judgment. On 23 August 2019, the Court of Appeal dismissed the application,[11] holding:

“For these reasons, we do not see any reasonable prospect of success in the applicant’s arguments based on construction of the [No Record Criterion of the Dependant Visa Policy]. Even taking account of these new arguments, we cannot see any ground for disturbing Chow J’s refusal to grant extension of time for an application for judicial review to be brought.”[12]

(5) On 1 November 2019, the appellant AH applied by Notice of Motion to the Court of Appeal for leave to appeal to this Court from the CA Judgment in AH (i.e. its judgment dated 23 August 2019). By letter dated 5 December 2019, the Court of Appeal[13] dismissed the Notice of Motion, directing (inter alia) that:

“For the reasons set out in H v Director of Immigration [2019] HKCA 1302, the decision of this Court on 23 August 2019 is final and the Notice of Motion of 1 November 2019 is incompetent.”

The case referred to (H v Director of Immigration) is the “CA Leave Judgment in H” (see FN7 above) and so this direction was made applying that judgment, namely on the basis that the Court of Appeal had refused leave to appeal to it pursuant to s.14AA of the HCO so that s.14AB of the HCO precluded any further appeal to the Court of Final Appeal.

(6) The appellant AH then applied to this Court for leave to appeal against the Court of Appeal’s judgment dated 23 August 2019.[14]

8. The Appeal Committee granted the appellants leave to appeal to this Court on the Leave Issue and the Constitutionality Issue in the following terms:

“1. On the basis that this determination is made without prejudice to the consideration by the Court of Final Appeal of the certified questions, we give leave to appeal on the following questions:-

(1) Where the Court of First Instance does not grant an extension of time to a party to apply for leave to apply for judicial review, particularly when the hearing of the application to extend takes place at the same time as the hearing for leave to apply for judicial review, is leave to appeal to the Court of Appeal required under s 14AA(1) of the High Court Ordinance Cap 4, or is leave not required by reason of s 14AA(2) or otherwise?

(2) If leave to appeal is required, is s 14AB of the High Court Ordinance, insofar as it relates to judicial review proceedings, inconsistent with Article 82 of the Basic Law?

2. Consideration by the Appeal Committee of the other questions sought to be certified by the applicants is to be adjourned until after the determination by the Court of Final Appeal of the two certified questions.”[15]

B. The requirement of leave to appeal

9. The default position in relation to civil matters in this jurisdiction is that there is a right of appeal to the Court of Appeal from the Court of First Instance. The HCO provides, by s.14(1):

“Subject to subsection (3) and section 14AA, an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter.”

10. That right is qualified by s.14(3) and also s.14AA. The qualifications...

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