KHAN ZAHFRAN v. DIRECTOR OF IMMIGRATION DEPARTMENT

HCAL 1855/2024

[2024] HKCFI 2973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1855 OF 2024

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 17 October 2024, the Applicant seeks leave to apply for judicial review so as to challenge the decision dated 16 March 2017 (“Decision”) of the Putative Respondent – the Director of Immigration (“Director”) – not to grant the Applicant an extension of stay in Hong Kong as a dependant of his father.

2.  There is no request for an oral hearing made in the Form 86. Having considered the application, and the papers filed with it, including the affirmation of the Applicant also dated 17 October 2024, I am satisfied that it is appropriate to deal with this matter on the papers.

3.  This is my decision.

B.  The Application

4.  As is obvious from the introduction above, the Applicant seeks permission to challenge the Decision made more than 7½ years ago. However, from the papers filed with the application, it can be seen that the original decision to decline to permit the Applicant to remain in Hong Kong on a dependant visa was made as long ago as 15 May 2011, more than 13 years ago.

5.  From the materials provided with the current application, it seems that the relevant chronology relating to that passage of time can be summarised as follows.

6.  The Applicant sought entry for residence in Hong Kong as a dependant of his father, and was originally granted such a visa by the Director. A first extension of stay for three years was subsequently granted by the Director. (One of the documents provided by the Applicant suggests that that renewal or extension was granted on 14 May 2005, though this date is less important in the chronology.)

7.  However, when a second extension of stay for a further three years was made in 2011 (when the Applicant was 16), the Director declined to grant the visa, apparently on the basis that the Director had doubts as to the genuineness of the relationship between the Applicant and the father.

8.  That application was refused, and the Applicant’s limit of stay expired on 15 May 2011.

9.  There was apparently a further refusal decision conveyed by the Director by letter of 8 July 2014. There was then a request for reconsideration of that refusal made on 21 July 2014. There followed an exchange of correspondence, including (1) a letter from the Applicant’s then solicitor dated 5 February 2016, and (2) a letter from the Director inviting the provision of any additional fresh information on a before 25 April 2016.

10.  By letter dated 16 March 2017, the request for reconsideration of the previous refusal decisions was declined (i.e. the Decision). The Decision letter stated that, after careful consideration of all the information made available in the circumstances of the case, the Director could find no reasonable justification for reversing the previous decisions, so that the refusal decision previously conveyed by letter of 8 July 2014 still stood. The letter also pointed out that as the limit of stay had already expired on 15 May 2011, the Applicant may be liable to prosecution removal under the provisions of the Immigration Ordinance Cap 115.

11.  It can be noted that the Decision letter was sent to the address specifically notified for receipt of future correspondence. Though that may have been the residential address of the solicitor (as the Applicant says), it was an address given in a letter co-signed by the Applicant.

12.  Nevertheless, the Applicant suggests that whenever he enquired of his legal representative as to the progress of the application, he was told it was still ongoing and the application would be approved soon. However, in about late 2023, the Applicant was informed by his solicitor that he needed to instruct a different Counsel. Though the Applicant suggests he paid further fees and a further representation was made by Counsel in relation to his application, no such document is included in the papers.

13.  Instead, the papers include a further letter dated 10 October 2022 (not 2023), sent by a Barrister (whose name has been redacted on the copy provided to the Court), again arguing the position on behalf of the Applicant. That led to the Director’s response dated 11 November 2022, addressed to the Applicant care of the Barrister’s chambers, pointing out that no new matters had been raised, and that the captioned request was lodged more than 5 years after the previous refusal decision.

14.  On 12 October 2023, Immigration Officers raided his home and arrested the Applicant for overstaying in Hong Kong. Though granted bail, he has been charged for overstaying from 31 March 2017 to 12 October 2023.

15.  The Applicant says that he was only able to get the documents sent by his legal representative to the Director, and by the Director to his legal representative, after he changed legal representative and obtained all documents from the Immigration Department. He says he was only able to make the current judicial review application in mid-September 2024, in those circumstances.

C.  Merits

16.  The Applicant says in his affirmation that he should be granted leave to apply for judicial review because his case is based on an unfair rejection of the extension of stay application, which should have been approved because the relationship with his father is genuine, which he has been able to prove by way of submission of documents and information.

17.  However, it is trite that in judicial review proceedings the Court is concerned with the integrity of the decision-making process, and the Court does not decide the underlying question giving rise to the decision the subject matter of the intended challenge.

18.  In any event, as the Applicant has accepted, his application is “way out of time”. It is settled that an application for leave to apply for judicial review should be made as soon as possible and in any event within a long-stop period of three months from the date of the decision intended to be challenged. An extension of time will only be granted for making a challenge if sufficient and good reason is shown. There is no such good reason shown in this case.

19.  First, the delay is enormous. The original decision refusing the extension of stay was made more than 13 years ago. The subsequent reconsideration led to a further refusal in 2014, around 10 years ago. The actual Decision the subject matter of the intended challenge was made more than 7½ years ago. The Applicant was arrested for overstaying in October 2023, and it still took another year before he made this application.

20.  Secondly, I do not accept that the explanation offered for the delay justifies that delay. The Decision letter was sent to the address designated by the Applicant’s solicitor in a letter:-signed by the Applicant. Further, the Applicant has provided no documentary evidence of any enquiries which were made since 2017. In any event, it is trite that requests for reconsideration do not simply reset the clock for the timing of making any intended challenge. I also note that, if the Applicant was aged 16 in 2011, he has been an adult for at least the past 10 years.

21.  Thirdly, there is nothing on the papers provided to show that the Director has failed to take into account the materials which were provided for the purposes of considering the original request for the extension of stay, and the subsequent requests for reconsideration of the refusal of that original request. The Director appears to have invited the provision of any further information, and has expressly stated in the various decisions that all of the material made available and the overall circumstances have been taken into account. Hence, the merits of the intended challenge appear weak.

22.  Fourthly, in any event, to permit an intended challenge after such a lengthy passage of time seems to me to be obviously prejudicial to the proper administration of immigration matters conducted through the decisions of the Director.

D.  Result

23.  In the above circumstances, and balancing them, I see no proper basis to exercise the discretion to extend the time within which to bring the intended challenge.

24.  The application for leave to apply for judicial review is refused, with no order as to costs.