CHACON, RYAN PAUL BEDANA v. THE PERMANENT SECRETARY FOR SECURITY

HCAL 1015/2017

[2026] HKCFI 4325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1015 OF 2017

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D E C I S I O N

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A. Introduction

1.  These proceedings were commenced by Form 86, filed as long ago as 6 December 2017.  The Applicant’s intended judicial review challenge was to a Deportation Order made by the Secretary for Security on 12 August 2014.  The relevant Deportation Order was for life, made under section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”).

2.  By way of relief, the Applicant sought an order to quash the Deportation Order, as well as an order for extension of time under Rules of the High Court Order 53 rule 4(1) for the bringing of the application for leave to apply for judicial review.

3.  No grounds of judicial review were identified on the Form 86, and the Applicant’s affidavit filed in support of the application merely advanced what might be described as compassionate or humanitarian reasons why he suggested leniency might be shown to him by the Court, such that the Secretary could reconsider and suspend the Deportation Order.

4.  From materials later produced, and though not mentioned in the Form 86 or affidavit, it seems that the Applicant had in fact already applied to the Chief Executive for suspension or rescission of the Deportation Order.  But that request was refused by letter dated 31 October 2017, on the basis that no sufficient justification for suspending or rescinding the Deportation Order had been found.

5.  In the Form 86, the Applicant also requested an oral hearing, if leave to apply for judicial review were not to be granted on the papers alone.  By directions dated 8 May 2018, Chow J (as Chow JA then was) directed that an oral hearing of the application for leave to apply for judicial review should be fixed.  On the face of those directions, they were sent to the Applicant at the address given by him for service, and faxed to the Director of Immigration (though not the Secretary).  However, from what I have been told this morning, it may be that the Director did not receive that fax.

6.  In any event, no such oral hearing was fixed. Nor did the Applicant take any other or further steps in the proceedings.

7.  Indeed, nothing seems to have happened until, by letter dated 12 September 2025, the Court sought information from the Immigration Department as to whether the Applicant had been removed (and if so the details of that removal), whether the Applicant was being detained (if so where), and any last known address for the Applicant.  On 3 October 2025, the Immigration Department provided an updated telephone number and address for the Applicant (implicitly identifying that the Applicant had not yet been removed and was not held in detention).

8.  I have also been told this morning that the Applicant has not yet been deported through execution of the Deportation Order, for the reason that these proceedings have been taken to constitute a legal impediment to his removal.  I am told that the Director became aware of the existence of these proceedings, as a result of a telephone conversation between an immigration officer and the Applicant himself on 1 June 2018.

9.  These stale proceedings having recently been brought to my attention, I gave directions on 22 July 2026 that the application for leave to apply for judicial review should be fixed for hearing today 30 July 2026, at which hearing the Department of Justice might appear, if it wished, on behalf of the Secretary (and the Director as the Putative Interested Party).

10.  At the hearing, the Applicant has failed to appear.  However, this may not be surprising against the history of these proceedings.

11.  The Secretary and the Director were represented by Ms Karen Ngai, Senior Government Counsel.  She has helped to provide assistance to me in answer to my questions about the circumstances of these proceedings.

12.  With the benefit of the materials originally filed, those available from the Court file, and the updated information, this is my Decision.

B.     No Merits

13.  It is trite that it is mandatory for an applicant for leave to apply for judicial review to set out in the Form 86, amongst other things, the grounds upon which he seeks the relief which he claims.  However, neither in the Form 86 nor in the supporting affidavit did the Applicant identify any public law ground of review.  Of itself, this is fatal to the application.

14.  In any event, (1) there can be no dispute that the Applicant was convicted of an offence which empowered the Secretary to make the Deportation Order under section 20(1)(a) of the Ordinance, and (2) there is no suggestion of any procedural impropriety in the making of the Deportation Order.

15.  I would add that I have been provided this morning with a copy of an internal memorandum relating to the recommendation and subsequent approval by the Permanent Secretary for Security (on behalf of the Secretary) for the issue of the Deportation Order.  From that document, it can be seen that the Applicant was given the opportunity to make, and he did make, a written representation requesting not to be deported.  The reason he gave was because he wished to stay with his then girlfriend (now wife).  She also made representations objecting to the Applicant’s deportation.  Those two sets of representations were expressly taken into account, and in particular the fact that deportation may deprive the Applicant of his proximity to his girlfriend in Hong Kong was carefully considered.  But, on balance of other features, the view was taken that the Applicant should be deported for life on the basis of his criminal convictions in Hong Kong.  The personal circumstances identified in the representations were thought not sufficiently to justify, or comprise any extenuating grounds warranting, exceptional consideration.

16.  It is worth noting here that the Applicant and his now wife chose to be married notwithstanding the making of the Deportation Order.  They must be taken to have known that being married would not somehow overturn the making of the Deportation Order.  Indeed, it is worth stressing that persons in a similar position should not think (or proceed on the basis) that going ahead to form a family unit despite the making of a deportation order, by marriage and even by then having a child or children, might give rise to any legitimate expectation that the deportation order would then be suspended or rescinded, rather than being carried into effect.

17.  Secondly, the Form 86 is directed at an intended challenge to the Deportation Order.  As the Form 86 rightly identifies, such an intended challenge was brought significantly (well over three years) out of time, such that an extension of time would be required for the challenge to be pursued at all.  Indeed, it is trite that an application for leave to apply for judicial review must be made promptly, and in any event within a long stop period of three months – unless good reason shown for an extension of time.  In this case, despite asking for the extension, the Applicant did not identify any basis which might found a good reason for an extension of time to challenge the Deportation Order.  For this reason, I refuse any extension of time, as a result of which reason also the application must fail.

18.  To be fair, I have already noted from the materials subsequently made available (though not from the Applicant) that the Applicant’s request for a suspension or rescission of the Deportation Order was refused on 31 October 2017.  That date was within three months prior to the date of the commencement of these proceedings by Form 86 dated 6 December 2017. However, that refusal decision is not the challenge made in the Form 86, and in any event no public law ground of review is identified as might form the basis for any such challenge.

19.  Thirdly, it is settled that the Secretary was under no obligation to take into account compassionate or humanitarian factors when considering the making of the Deportation Order.  Further, if such factors were indeed taken into account – as in this case they were – the weight to be accorded to them was a matter for the Secretary, and not the Court (absent an irrationality challenge).  No irrationally challenge has been made in this case.  Rather, the Applicant again advanced the compassionate factors as a basis for a grant of leniency by the Court, and the hope that the Secretary might suspend the Deportation Order for life.  However, it is not the role of the Court exercising its judicial review jurisdiction to consider whether leniency should be afforded to the Applicant, and the Secretary had recently considered but decided not to suspend the Deportation Order for life.

20.  Fourthly, not only should an application for leave to apply for judicial review be made promptly, if made it should be pursued actively.  That is not what has happened in this case, where the Applicant appears to have taken no further steps after the directions were made for an oral hearing, over six years ago.  Shortly before that, on 11 April 2018, the Applicant’s wife filed some submissions from her point of view, relying on compassionate or humanitarian points.  But it seems the Applicant was himself silent.

21.  Therefore, it seems to me that, the Applicant’s application is liable to be dismissed for this additional ground, for his inaction and the want of prosecution.  It would be prejudicial to public administration to entertain this application now, in these circumstances.

C.     Result

22.  For the various reasons given above, individually and cumulatively, I dismiss the Applicant’s application for leave to apply for judicial review in these stale proceedings.

23.  I make no order as to costs.

D.     Postscript

24.  The history of these proceedings is unfortunate, and it may be that history resulted in part from the left hand not knowing what the right hand was doing.  Whilst the Director apparently became aware of the existence of these proceedings in June 2018, and thereafter treated them as a legal impediment to removal of the Applicant in accordance with the Deportation Order, the Secretary may not have known of the proceedings and/or that the Deportation Order was not being executed as a result of the proceedings.  Perhaps consideration can be given as to how to avoid such lack of communication in other cases.  In the meantime, the Applicant took no steps to pursue his intended judicial review challenge, but presumably has been content just to remain in Hong Kong, albeit on recognizance, for as long as possible.