RE MOKTAN BIJAY BAHADUR

CAMP 43/2023, [2024] HKCA 609

On appeal from [2022] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 43 OF 2023

(ON AN INTENDED APPEAL FROM HCAL 447/2022)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the decision of Coleman J (“the Judge”) dated 8 August 2022 refusing to grant leave to the applicant to apply for judicial review out of time. The intended judicial review was against the decision made by the Permanent Secretary for Security (“the Secretary”) on 16 August 2019 (“the Secretary’s Decision”), ordering that the applicant be deported pursuant to section 20(1)(a) of the Immigration Ordinance, Cap.115 (“the Ordinance”).

Background

2.  The applicant is a national of Nepal. He entered Hong Kong on 27 April 2013 as a visitor, and was permitted to remain until 4 May 2013.  In September 2015, the applicant raised a non-refoulement claim, which was dismissed by the Director of Immigration (“the Director”), whose decision was confirmed by the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”).  The applicant’s subsequent application for leave to apply for judicial review against the Board’s Decision was dismissed by the Court of First Instance[1]. Thereafter, this court dismissed (i) the applicant’s appeal against the decision of the court below[2]; and (ii) his application for leave to appeal to the Court of Final Appeal against this court’s decision[3].

3.  On 1 October 2018, the applicant was convicted of the offence of “Prohibition of Taking Employment” under section 38AA of the Ordinance (“the Offence”), for which he was sentenced to imprisonment for 15 months.  On 28 January 2019 and 4 March 2019, the applicant was served with a Notice of Consideration of Deportation, to which he objected, notwithstanding the conclusion of the determination of his non-refoulement claim.

4.  On 19 July 2019, the applicant was served a revised Notice of Consideration of Deportation.  After the applicant’s discharge from prison on 27 July 2019, the Director on 6 August 2019 applied to the Secretary for a deportation order against the applicant.  By the Secretary’s Decision, a deportation order was made against the applicant on 16 August 2019.

5.  On 12 May 2020, the Applicant lodged a claim against the Secretary for Justice (on behalf of the Immigration Department), for unlawful detention on the grounds of, inter alia, procedural irregularity.

6.  On 15 December 2021, the applicant married a Hong Kong permanent resident.

The Judge’s decision

7.  The applicant filed a Form 86 on 8 June 2022 out of time, seeking to judicially review the Secretary’s Decision, and her grounds were summarised by the Judge at [14] of the CALL-1 Form[4] as follows:

“(1) The Applicant is married to a Hong Kong resident, has a stable family life, and has lived in Hong Kong now since 2013. Although the Applicant was convicted of unlawful employment, he has committed no crime since and will not now he is happily married and has a wife and family to support him. So, it would be unreasonable to deport him in view of these facts.

(2) The proceedings against the SJ are still to be heard, and the substantive hearing will likely not be held until 2023. So, in the circumstances, it would be unjust to deport him until the conclusion of that case.”

8.  After summarising the facts and background of the case and giving due consideration to the applicant’s grounds for review, the Judge, after hearing from the applicant (appearing in person) and Senior Government Counsel (for the Secretary), refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [23] of the CALL‑1 Form:

“15.  The Applicant’s delay in bringing these proceedings is substantial. It is trite that an application for leave to apply for judicial review should be brought as soon as possible, and in any event within three months of the decision sought to be challenged. These proceedings seek to challenge a decision made almost 34 months before the proceedings were commenced. There is no application for, let alone any offered explanation for, the significant delay. Of itself, in the circumstances of this case, that is fatal to the intended application.

16.  In any event, in order to obtain leave to apply for judicial review, the Applicant must identify arguable grounds for review, with reasonable prospects of success. But, it is plain that neither of the proposed grounds can satisfy that threshold.

17.  The first ground makes no chronological sense. The Applicant’s marriage in December 2021 could not have been a relevant factor or consideration in the decision whether or not to make a deportation order in December 2019. In any event, it is well established that an immigrant’s family circumstances do not give him or her any substantive right in immigration, and at most would constitute a compassionate consideration (as to which the weight to be given, if any, would fall to be decided by the decision-maker).

18.  The second ground also makes no chronological sense. The Applicant’s commencement of proceedings in September 2020 could not have been a relevant factor or consideration in the decision whether or not to make a deportation order in December 2019. Further, and in any event, the Applicant’s damages claim is not a factor which is legally required to be taken into account when considering whether or not to grant a deportation order under section 20 of the Ordinance.

19.  As Mr Li also points out, it is well established that the proposed deportation of the Applicant is not of itself a formal bar to pursuing an action in the Hong Kong courts, and would not prevent the Applicant from continuing to pursue the civil claim.

20.  Lastly, it might be pointed out that if the Applicant suggests that there has been a substantial change of circumstances since the Deportation Order was made against him – so that a different view should be taken now as to the desirability or otherwise of his remaining in Hong Kong – these proceedings are not the way to deal with that. In essence, I do not think the Applicant is making the right complaint, by these proceedings.

E. Lifting the Stay, and the Result

21.  It is in the above circumstances that it seemed to me, in the exercise of my discretion, that it was appropriate to lift the automatic stay triggered by the Applicant’s application for legal aid and to go ahead with the hearing this morning. It is difficult to imagine that the application for a certificate of legal aid in these proceedings might find favourable consideration, and delaying the hearing which was fixed almost 2 months ago has no benefit.

22.  In any event, the Applicant’s application for leave to apply for judicial review is substantially out of time and has no merit. The application is dismissed.

23.  I make no order as to costs.”

The present application for extension of time to appeal

9.  The applicant’s address as stated in the Form 86 was at No.151 Des Voeux Road West, Sai Ying Pun, Hong Kong (“the Address”).  According to the court’s record, a copy of the CALL-1 Form and a sealed copy of the Judge’s order were sent by post to the applicant at the Address on 8 August 2022, which was not returned undelivered.

10.  Pursuant to Order 53 rule 3(4), the applicant had 14 days to lodge an appeal.  The applicant did not file a Notice of Appeal within 14 days of the Judge’s decision dated 8 August 2022.

11.  The applicant thereafter took out a summons in the Court of First Instance on 3 November 2022 seeking extension of time to appeal, in which his address was stated to be the Address.  In the summons, he stated that he had received the “High Court Decision” after the “limitation time passed”, and accordingly sought an extension of time to appeal. 

12.  The applicant’s application to appeal out of time was dismissed by the Judge on 21 December 2022[5].

13.  By a summons filed on 1 February 2023, the applicant renewed his application for an extension of time to appeal before this court.  In the summons and in his supporting affirmation, the applicant repeated that he did not receive the “High Court Letter” on time, and expressed his disagreement (without elaboration) with the “Decision of the High Court”.

14.  In his written submissions lodged on 15 February 2023, the applicant repeated the dangers he may face in Nepal should he be deported.

15.  On 13 March 2023, the applicant purportedly sought a “dismissal of the appeal, with the notice of motion filed on [1 February 2023]” by filing a Request for Dismissal of Appeal (“the Request”).  No explanation whether in the form of an affirmation or written submissions was given for this request. By reference to the date of 1 February 2023 (i.e. the date of the present summons) in the Request, it can be readily inferred that the applicant’s request was in substance for a dismissal of the present application.

Discussion

16.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

17.  As noted above, the Judge’s Decision was sent to the last known address of the applicant and was not returned undelivered.  The inference to be drawn is that he has received that letter from the court, and he has had knowledge of the Judge’s decision within the period he was permitted to lodge the intended appeal.

18.  There is no explanation on the part of the applicant as to how and when he had come to learn of the Judge’s decision dated 8 August 2022.

19.  In the circumstances, the applicant has failed to proffer any reasonable explanation or reason for the delay in lodging the intended appeal. Coupled with the Request, there is no reason why the present application should not be dismissed.

20.  We have nonetheless proceeded to consider the merits of the intended appeal.

21.  Pursuant to section 20(1)(a) of the Ordinance, the Secretary acting on behalf of the Chief Executive[6] may make a deportation order against an immigrant (such as the applicant) if he has been found guilty in Hong Kong of an offence punishable for not less than 2 years.  Section 38AA(2) of the Ordinance provides that a person who commits the Offence, of which the applicant had been convicted, is liable to imprisonment for 3 years.  It was therefore clearly within the Secretary’s power to make the deportation order against the applicant under section 20(1)(a) of the Ordinance.

22.  The applicant has not in any event condescended to any particulars, in the Form 86 or otherwise, as to on what basis the Secretary is said to have acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.  That being the case, the application for leave for judicial review was hopeless and rightly dismissed by the Judge. 

23.  The applicant has failed to identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was wrong.  Nor can we discern any such matters.

24.  It is well-established that an appeal against a refusal to grant leave for judicial review is not a fresh application for leave, and that an applicant must point to errors on the part of the Judge.  This has clearly not been done here.

25.  For these reasons, we do not see any prospect of success in the intended appeal.  This court will not grant an extension of time for a hopeless appeal.  The summons filed on 1 February 2023 is accordingly dismissed.