JUTHE CHHETRI v. PERMANENT SECRETARY FOR SECURITY

CACV 247/2025, [2026] HKCA 213

On Appeal From [2025] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 247 OF 2025

(ON APPEAL FROM HCAL NO. 612 OF 2025)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  By an Order dated 16 April 2025, the Applicant’s application for leave to apply for judicial review against the decision of the Permanent Secretary for Security (“PS for S”)  dated 6 January 2025 (“Decision”)  refusing to suspend or rescind a Deportation Order (“DO”)  made against him on 14 May 2005 pursuant to s.20(1)(a)  of the Immigration Ordinance, Cap 115 was dismissed by Mr Justice Coleman (“Judge”).

2.  This is the Applicant’s appeal against the Order dated 16 April 2025.

Background

3.  The detailed factual and procedural history had been set out in the Decision of the Court below (“Leave Decision”)  ([2025] HKCFI 1568)  at [7]-[32].  For the present purpose, the salient facts are as follows.  The Applicant, a Nepalese national, came to Hong Kong as a visitor in December 1997.  In July 1998, he was permitted to remain in Hong Kong as a dependant of his father.  The limit of his stay was last extended to 8 June 2003.

4.  On 20 March 2003, the Applicant was arrested for the offence of “assault with intent to rob”.  He was convicted of the offence on 5 August 2003 and sentenced to 3 years’ imprisonment.  His appeal against conviction and sentence was dismissed by the Court of Appeal on 5 May 2005.

5.  On 14 May 2005, the DO (for life)  was made by the PS for S.  Over 20 years has lapsed from the date of the DO and the Applicant has remained in Hong Kong.  During those years, the Applicant has made unsuccessful torture and non-refoulement claims, which were processed and determined.  The Applicant also appealed against the determination of his non-refoulement claim, which was unsuccessful.  An application for leave to apply for judicial review in respect of the non-refoulement claim was subsequently made by the Applicant and then discontinued.

6.  Further, the Applicant has made 10 unsuccessful requests for suspension or rescission of the DO.  The Decision concerns the tenth such request.

7.  The Applicant is currently married to his third wife.  They were married on 19 April 2022 and have four daughters, who were born in 2017, 2019, 2021 and 2024.  The wife and the children are Hong Kong permanent residents. 

8.  The PS for S’s detailed reasons for the Decision was contained in internal minute M.1, which was provided to the Applicant.

Leave Decision

9.  In the Leave Decision, the Judge identified the two issues before the Court, namely, (a)  adequacy of the reasons for the Decision and (b)  the PS for S had allegedly failed to take into account the Applicant’s family circumstances.

10.  In respect of issue (a), the Judge held that the PS for S was under no general duty to give reasons for the Decision.  In any event, adequate reasons were provided through Minute M.1: Leave Decision, [36]–[43].  As regards issue (b), the Judge found that the PS for S had taken into account the Appellant’s family circumstances.  However, family rights were not absolute in immigration matters and the weight accorded to humanitarian factors lay within the discretion of the executive: Leave Decision, [44]–[51].

Grounds of appeal

11.  There are two grounds contained in the Notice of Appeal, namely:

(1)  The Judge had failed to consider the family situation of the Applicant (“Ground (1)”);

(2)  There is a legitimate expectation that the PS for S would act in conformity with Article 19 of the Hong Kong Bill of Rights Ordinance, Cap 383 (protection of family), Article 23 of the International Covenant on Civil and Political Rights (protection of family)  and Articles 3 (protection of child)  and 9 (protection against separation of child from parents)  of the Convention on the Rights of the Child (“Ground (2)”).

Discussion

12.  The Applicant failed to lodge and serve his skeleton arguments in support of this appeal by 8 January 2026 in accordance with Practice Directions 4.1 and the Directions of the Registrar of Civil Appeal dated 9 October 2025.  Consequently, this Court directed on 16 January 2026 that, inter alia, failing compliance by 4:30pm on 21 January 2026 the Applicant be debarred from lodging any skeleton arguments.

13.  On 30 January 2026, the Applicant purported to lodge a skeleton submission “as per the direction dated 09.10.2025”.

14.  At the hearing, the Applicant confirmed that what he wanted to say had been submitted in writing and he had nothing further to add.  

15.  The Applicant’s family situation (the substance of Ground (1))  and Ground (2)  were advanced in support of the leave application below under issue (b)  (see para 9 above), and they had been dealt with in some detail by the Judge.  There is no attempt to identify any error made by the Judge in rejecting these Grounds as not reasonably arguable.

16.  Despite the breaches of directions, the Applicant’s skeleton submission has been considered.  It appears to be based on, if not a copy of, the skeleton arguments put before the Judge.  It does not identify any error made by the Judge. 

17.  It is not the function of the appellate court to re-hear the leave application in an appeal against the refusal of leave by the court below.  The appellate process is to deal with any alleged error in the decision below.  This Court is unable to see any error in the Leave Decision. 

18.  This appeal has no merit, and is accordingly dismissed with costs to the Putative Respondent and Putative Interested Party, to be taxed if not agreed.  The costs order is made on nisi basis and will become absolute in the absence of any variation application made within 14 days from the date of this Judgment.