NASEER UMAIR v. DIRECTOR OF IMMIGRATION

CAMP 127/2021

[2021] HKCA 1011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 127 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 744 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application by summons filed on 23 April 2021 for leave to appeal out of time.  The Applicant wishes to appeal against the decision of Chow J (“Judge”) on 5 May 2020 refusing leave to apply for judicial review of the removal order dated 6 March 2018 (“Removal Order”) and deportation order dated 27 April 2018 (“Deportation Order”) made by the Permanent Secretary for Security against the Applicant.  The Applicant made a prior application to the Judge for leave to appeal out of time on 14 August 2020, which was dismissed by the Judge on 15 September 2020.

2.  The factual background was explained by the Judge at [4]–[11] of his Reasons for Decision handed down on 13 May 2020,[1] which for ease of reference we set out as follows:

“ 4. The Applicant is a Pakistani national who claimed to have sneaked into Hong Kong on 6 March 2009.

5. On 13 March 2009, the Applicant lodged a CAT claim with the Director.  On 10 May 2010, he solemnized a marriage with Madam Yenni, a Hong Kong permanent resident.  On 24 May 2010, he submitted an application to the Director for a dependant visa with Madam Yenni as his sponsor.  On 18 November 2011, his dependant visa application was approved.  On 29 November 2011, he withdrew his CAT claim. On 13 December 2011, he was repatriated to Pakistan.  On 27 December 2011, he entered Hong Kong as Madam Yenni’s dependant and was granted a limit of stay up to 5 May 2016.

6. On 13 October 2015, the Applicant was arrested by the Police for the suspected offence of possession of dangerous drugs.  On 1 April 2016, he was convicted of that offence, and on 14 April 2016, he was sentenced to 8 months’ imprisonment.

7. On 6 May 2016, the Applicant was informed of his intended deportation.  He objected to the intended deportation on the ground that he had a personal injury case with legal aid and his case was under process (see the Applicant’s Grounds against Deportation dated 6 May 2016).  Pausing here, it may be noted that:

(1) According to the Legal Aid Department’s letter dated 20 June 2016, the Applicant’s employees’ compensation claim against his former employer in respect of an industrial accident on 7 September 2013 had been settled in March 2016, and no proceedings had yet been commenced in respect of his intended common law claim against his former employer.

(2) On 9 April 2018, the Legal Aid Department confirmed that the Applicant’s common law claim had been dismissed on 25 April 2017.

8. On 17 August 2016, the Applicant was discharged from prison, and he was transferred to the Immigration Department and detained under s 32(2A) pending a decision as to whether or not a removal order should be made under s 19(1)(b).  He was released on recognizance on the same day.

9. On 21 November 2017, the Applicant was arrested by the Police in Lo Wu for the suspected offence of Entering Closed Area without a permit.  On 13 December 2017, he was convicted of that offence and sentenced to 2 months’ imprisonment.  On 24 January 2018, he was discharged from prison.  Between 24 January 2018 and 6 March 2018, he was detained under s 32(2A) pending a decision as to whether or not a removal order should be made under s 19.  On 6 March 2018, a removal order (‘the Removal Order’) was made against him under s 19(1)(b)(ii).  He was then detained under s 32(3A) pending his removal from Hong Kong.  On 8 March 2018, a Notice of Removal Order and Right of Appeal was served on the Applicant.  By a Declaration of Intention Not to Appeal / Declaration of Abandonment of Appeal dated 8 March 2018, the Applicant gave notice that he did not intend to appeal against the Removal Order.

10. On 9 April 2018, the Applicant was detained under s 29(1) pending an inquiry as to whether a deportation order should be made against him by reason of his two criminal convictions mentioned above.  In his Grounds against Deportation dated 9 April 2018, the Applicant stated that he objected to the intended deportation order without providing any grounds in support of the objection.

11. On 27 April 2018, the Permanent Secretary for Security made a deportation order for life (‘the Deportation Order’) against the Applicant.  He was then detained under s 32(3) pending removal from Hong Kong.  On 3 July 2018, he was released on recognizance.”

3.  On 27 April 2018, the Applicant filed by Form 86 an application for leave to apply for judicial review of the Removal Order, though the date of the Removal Order was erroneously stated to be “06-05-2016”.  He did not state any grounds for judicial review in the Form 86 or in his supporting affirmation, other than saying, without providing particulars, that the Removal Order was unfair and unreasonable.

4.  Subsequently, the Applicant retained solicitors who submitted a draft amended Form 86 to the Director of Immigration (“Director”) on 25 May 2018.  In the draft amended Form 86 and supporting affirmation of same date, the Applicant sought judicial review of the Deportation Order instead of the Removal Order.  However, the Applicant still did not set out any specific grounds for judicial review.  As before, he stated that the Deportation Order was unfair and unreasonable, but did not provide any particulars.

5.  The Judge held an oral hearing on 5 May 2020 for the Applicant’s application for leave to apply for judicial review.  However, while the Director attended (by Senior Government Counsel), the Applicant was absent.  The Judge proceeded to determine the application on the basis that the Applicant was either seeking judicial review of the Removal Order or the Deportation Order, and dismissed it.  His reasons for refusing leave for judicial review were set out at [14]–[17] of his reasons handed down on 13 May 2020, as follows:

“ 14. If the subject matter of the present application is the Removal Order, it was made on 6 March 2018 and not on 6 May 2016. In any event, no basis has been disclosed which would enable the Applicant to challenge the validity of Removal Order.

15. On the other hand, if the Applicant’s true intention is to challenge the Deportation Order, there is equally no valid ground of judicial review of the Deportation Order disclosed in his aforesaid affirmations. Under s 20(1)(a), the Permanent Secretary for Security (acting under the delegated authority of the Chief Executive) may make a deportation order against an immigrant if he has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years. The Applicant, not being a Hong Kong permanent resident, is an ‘immigrant’ for the purpose of the Immigration Ordinance. Further, the two offences for which the Applicant has been convicted are punishable with imprisonment for not less than 2 years.

16. From the relevant internal file minute of the Immigration Department, it would appear that the Applicant’s family background (in particular that his wife was a Hong Kong permanent resident living in Hong Kong) and other circumstances had been considered before a decision was reached to make the Deportation Order against him. As a matter of law, the Permanent Secretary for Security was not obliged to take into account any compassionate or humanitarian grounds in considering deportation, even where family ties might be affected (see Safder Tehseen v Permanent Secretary for Security, CACV 167/2012, unreported 6.6.2013, at §54). There is nothing in the materials before the court to show that the decision to make the Deportation Order against the Applicant was unlawful or Wednesbury unreasonable, or was made in a procedurally unfair manner.

17. The intended application for leave to apply for judicial review is not reasonably arguable, and has no realistic prospect of success.”

6.  The Judge also ordered the Applicant to pay the Director’s costs of the application.

Discussion

7.  The Court’s approach in considering an application for leave to appeal out of time is well settled.  In Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104, this Court held at [9] (citing Lee Chick Choi v Best Spirits Co Ltd (HCMP 371/2015, 21 May 2015) at [19]):

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party of the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

8.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), where leave for judicial review is refused, the applicant may appeal to the Court of Appeal against the refusal within 14 days after the judge’s order.  In the present case, the deadline for appeal was 14 days from 5 May 2020, ie 19 May 2020.  The Applicant did not apply for leave to appeal out of time until he did so by summons dated 14 August 2020 in the court below, ie more than 3 months late.  The delay is substantial.

9.  In that summons and the Applicant’s supporting affirmation of 14 August 2020, he deposed that he was married to a Hong Kong permanent resident, and if the Removal Order was implemented against him, the right of his wife, a Hong Kong permanent resident, “to raise family freely” under Article 37 of the Basic Law and Articles 14 and 19 of the Hong Kong Bill of Rights would be seriously affected.  The Applicant also stated that he did not want to be separated from his wife, and the Removal Order against him would make it very difficult for him to maintain his life.  The Applicant did not provide any explanation for his absence at the hearing on 5 May 2020 or the delay in his intended appeal.  Nor did he identify any error in the Judge’s decision.

10.  The Judge held a hearing of the application for leave to appeal out of time on 15 September 2020, but the Applicant was again absent.  The Judge dismissed the application at the hearing.  In his Reasons for Decision handed down on 22 September 2020,[2] the Judge stated that the matters raised in the Applicant’s summons and affirmation could not support any challenge to either the Removal Order or the Deportation Order by way of judicial review.  For this reason, and the fact that the Applicant did not provide any explanation for being absent at the 5 May 2020 hearing and did not suggest there was any error in the Judge’s decision dated 13 May 2020, the Judge dismissed the application for leave to appeal out of time, with costs to the Director (if any costs had been incurred).

11.  The Applicants did not make a renewed application to this Court for leave to appeal out of time until 23 April 2021 when he filed the present summons before this Court.  This was another seven months after the Judge’s refusal of leave to appeal out of time.

12.  On 27 April 2021, the Registrar of Civil Appeals directed the Applicant to lodge his written submissions in support of this application on or before 11 May 2021.  To date, the Applicant has not lodged any such submissions.  The Putative Respondent has indicated by letter dated 27 May 2021 that he takes a neutral stance to the application.  In these circumstances, it is appropriate to determine the application on the papers.

13.  In his affirmation dated 21 April 2021, the Applicant stated that as an illiterate and unrepresented litigant in person, he was unaware of the procedural rules and time limits.  He said that he did not appear at the hearings on 5 May 2020 and 15 September 2020 because he did not receive any correspondence from the court.  He said that the Judge’s decision had been reached unfairly without affording him an opportunity to clarify his case.

14.  There are in our judgment no valid grounds for the present application.  We have ascertained from the court file that the original notice of hearing of the application for leave for judicial review on 5 May 2020 was sent to the Applicant by post on 19 December 2019 to the Applicant’s usual and last known address.  This notice had not been returned undelivered.  On 27 April 2020, the court sent a further letter to the Applicant by post to the same address to confirm that the hearing would take place on 5 May 2020 as scheduled, since the period of General Adjournment of Proceedings due to the pandemic was to end on 3 May 2020.  Whilst this letter was returned marked “Refused”, its effect was merely to confirm the original date already notified to the Applicant.  In any event, it is incumbent on litigants to provide the Court with an up-to-date and effective address to which documents may be sent to them.  Where the Court’s correspondence has been sent to that address, the litigant has to shoulder the consequences if the communication is rejected. 

15.  A copy of the Judge’s Reasons for Decision dated 13 May 2020 was posted to the Applicant at the same address on that date.  It was returned marked “refused”.

16.  When the Applicant took out his summons for leave to appeal out of time on 14 August 2020, it was already fixed to be heard before the Judge on 15 September 2020.  The Applicant knew the date, time and place of the hearing there and then, without having to see any correspondence from the court.  Yet he failed again to appear in court on his own application on 15 September 2020.  Moreover, the Applicant’s affirmation of 14 August 2020 exhibited a copy of the Judge’s Reasons for Decision dated 13 May 2020, but did not explain when the Applicant obtained it.

17.  On 15 September 2020, a notice of handing down reasons for decision was sent by post to the Applicant’s address given by him in his own summons.  On 22 September 2020, a copy of the Judge’s Reasons for Decision handed down on that date was sent by post to the same address.  Neither of these letters had been returned undelivered.

18.  It should also be noted that whilst the Applicant says he did not receive “any correspondence” from the court, he has not explained how he became aware of the decisions on 5 May 2020 and 15 September 2020 and the reasons given by the Judge shortly thereafter.

19.  Moreover, as this Court has repeatedly said, ignorance of the law is generally not an excuse for delay.[3]  The Applicant has not given particulars as to when he became aware of the decisions in question and when he became aware of the deadline for appeal.  In the circumstances there is nothing to show that the delay in appealing or seeking leave to appeal is excusable.

20.  Furthermore, the Applicant has failed to show even in the most basic way what grounds he has for appealing against the Judge’s decision of 5 May 2020 other than that he did not attend the hearing.  Nor has he explained in any way what clarification he would wish to have made had he been present at the hearing.  Leave to apply for judicial review is not to be granted unless the intended judicial review based on the grounds set out in an applicant’s Form 86 is reasonably arguable.  As mentioned above, no grounds for judicial review were set out by the Applicant in his application.  Having considered the materials before us, we are unable to find any appealable error in the Judge’s reasons for refusing leave for judicial review.  It seems to us that the Judge applied the relevant legal principles correctly and was right in refusing leave. In the absence of any identifiable or discernible grounds for appeal, we do not see any prospect of success in the intended appeal. 

21.  Accordingly, this application for leave to appeal out of time is dismissed.

22.  We also order, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request this determination be reconsidered at an oral hearing inter partes.