ABAYOMI BAMIDELE FAYOMI v. CHIEF SECRETARY FOR ADMINISTRATION AND OTHERS

CACV 258/2017

[2018] HKCA 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 258 OF 2017

(ON APPEAL FROM HCAL NO 713 OF 2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Au J on 3 November 2017 refusing leave to the applicant to apply for judicial review.

2.  The background of the case was summarized in the judgment of this Court, differently constituted, in Fayomi v Secretary for Security [2013] 2 HKLRD 961 at [1] to [10] and the judgment of Chow J in HCAL 60/2009, 22 May 2015 at [1] to [8].  We shall not repeat such background in this judgment.

3.  The upshot of the earlier appeal was that the case was remitted to the Court of First Instance for determination if the applicant suffered any prejudice due to the lack of advice from the Director.  It was further directed that the Court of First Instance should also consider the issue as to whether relief should be refused on the ground of delay.

4.  The matter was heard by Chow J on 26 March 2015.  In his judgment in HCAL 60/2009, unreported, 22 May 2015, Chow J found as a matter of fact that the applicant knew that he applied for unconditional stay and that he had all along known the difference between unconditional stay and Hong Kong permanent resident status.  Accordingly, the judge did not consider that the applicant had suffered any prejudice as a result of the lack of advice.  He found that the applicant did not apply for a Hong Kong permanent identity card at the available window period (between 31 March 2004 and 12 April 2005) because he thought he could apply at any time to his convenience and he was either too busy or did not see any urgent need to do so during that time.

5.  In short, the applicant lost the opportunity to apply for permanent identity card without any fault on the part of the Director.  Since 12 April 2005, he ceased to have that opportunity because of him being sentenced to imprisonment and the principle of law as stated in Fateh Muhammad v Commission of Registration (2001) 4 HKCFAR 278 and Asif Ali v Director of Immigration (2013) 16 HKCFAR 91.

6.  About 21 months after the handing down of the judgment, the applicant applied for an extension of time to appeal against Chow J’s decision in February 2017.  By the Judgment in Abayomi Bamidele Fayomi v Secretary for Security & Anor HCMP 3159/2016, unreported, 26 May 2017, this Court (Chu and Poon JJA) considered that the delay was both substantial and inexcusable and that the intended appeal had no merit at all.  It was also held that allowing the appeal out of time would be detrimental to the effective immigration control in Hong Kong.  The application was accordingly refused.

7.  The Chief Secretary for Administration decided on 3 July 2017 to execute the deportation order against the applicant.  The applicant then on 3 October 2017 applied for leave for judicial review of the said decision of the Chief Secretary for Administration.  It was stated in Affidavit in support that:

“ In 2007 shortly before I was released from prison to immigration detention center, my lawyer petition (sic) on my behalf in objection to the deportation order. When the decision was heard I was not represented, I was not invited for comments or documents (sic) in support of the petition. I was unfairly treated.”

8.  On 3 November 2017, Au J refused to grant leave for judicial review.  In the CALL-1 Form, the judge made the following observations:

“ The applicant has failed to set out any basis recognized under public law to support the intended judicial review against the deportation order to say why the decision challenged is tainted by procedural irregularities, error of law or is Wednesbury unreasonable. The intended judicial review therefore is not reasonably arguable. Leave to apply for judicial review must be refused.”

9.  In the Notice of Appeal dated 14 November 2017, the applicant sought to rely on the following ground:

“ When I applied for judicial review, I was not legally represented. I was not given chance to file my grounds of my case. I consulted a legal firm which was and still waiting for my case papers from immigration department to be able to advice (sic) me on merits of my case. I have some documents in support of my case which I was not able to give to court before decision was made.”

10.  Notwithstanding the direction given by the Registrar of Civil Appeal dated 22 December 2017, the applicant did not lodge any Skeleton Submissions in support of this appeal.

11.  We heard the appeal on 27 March 2018.  The applicant was not legally represented at the hearing before us. 

12.  There is no absolute right to legal aid.  Even in the context of refoulement cases, this Court has repeatedly observed that neither the high standard of fairness laid down in Sakthevel Prakabar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration [2009] 2 HKLRD 346 prescribed that a claimant of a non-refoulement claim must have an absolute right to free legal representation at all stages. 

13.  This is not a non-refoulement case.  Be that as it may, the applicant had the benefit of legal aid and the service of leading counsel in his original judicial review before Saunders J, the appeal, as well as the remitted judicial review before Chow J.  There is no basis to suggest that the applicant has been unfairly treated due to the lack of legal representation. This challenge is therefore unmeritorious.

14.  It is clearly wrong for the applicant to say that he had not been given a chance to file his grounds for judicial review. In fact, the applicant did file an Affidavit dated 3 October 2017 in support of his application for leave to apply for judicial review.  

15.  From the above litigation history, it is plain that the applicant has exhausted all the means to challenge the deportation order against him.  The execution of the deportation order is expected upon such exhaustion of legal challenges.

16.  The belated attempt in the letter of 15 November 2017 from a solicitor firm is not entertained when the solicitor does not go on record to act for the applicant.  In any event, the reference to family rights has no merit, see the latest decision of this Court in Comilang Milagros Tecson v Director of Immigration [2018] HKCA 175.

17.  At the hearing, the applicant intended to produce a copy of the letter of 3 July 2017 from the Chief Secretary for our consideration. He also said that he had not instructed the solicitors who purported to act for him in making representations to the Chief Secretary. We cannot accept such bold assertion when the applicant did not even see fit to make the same under oath in his affidavit placed before Au J.

18.  An appeal is not the occasion for fresh evidence or documents to be submitted when such evidence or documents could have been submitted at the court below and an applicant did not do so without good explanation. It is also inherently improbable that the solicitor firm would make representations on his behalf when he had not instructed the same. The applicant failed to satisfy the test in Ladd v Marshall [1954] 1 WLR 1489 and we cannot see any basis for relaxation of that test in the present appeal.

19.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.