IMRAN MUHAMMAD AND ANOTHER v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 227/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 227 OF 2015

_______________

_______________

_______________

J U D G M E N T

_______________

A.   INTRODUCTION

1.  This is the applicants’ leave application for judicial review to challenge (a) the decision of the Secretary for Security (“the Secretary”) made on 28 May 2015 refusing to rescind or suspend the deportation order (“DO”) issued on 30 June 2014 against the 1^st applicant under section 20(1)(a) of the Immigration Ordinance (Cap 115) (“IO”) (“the Secretary’s Decision”); and (b) the decision of the Director of Immigration (“the Director”) made on 8 July 2014 refusing to reverse his earlier decisions in rejecting the 1^st applicant’s dependant visa application, with the 2^nd applicant as the sponsor (“the Director’s Decision”).

2.  At the invitation of the court, the Secretary and the Director as putative respondents appear at the hearing.  They oppose the leave application and are represented by Ms Chow.  The putative respondents’ main grounds in opposing leave are that (1) there is undue delay by the applicants to take out this leave application; and (2) in any event, the grounds of judicial review are not reasonably arguable.

3.  The applicants had been on legal aid.  The Form 86 was signed by their assigned counsel, Mr Francis Ngan. Mr Ngan also filed his skeleton submissions for the applicants on 24 May 2016 before the hearing on 3 June 2016.  However, after the filing of the skeleton, the applicants’ legal aid was discharged.  The applicants therefore appear in person at the hearing.  The court in considering this leave application below has taken into account Mr Ngan’s submissions made in his skeleton and the applicants’ personal submissions made at the hearing.

B.   THE FACTS

4.  The relevant facts are as follows.

5.  The 1^st applicant is a Pakistani national.  The 2^nd applicant is and was all material times a Hong Kong permanent resident.  The 2^nd applicant has three children from her previous marriage.  They are and were at all material times Hong Kong permanent residents.  All of them were all adults at all material times.

6.  On or about 1 February 2008, the 1^st applicant arrived in Hong Kong.  He was subsequently arrested by the police for “being an illegal immigrant”.

7.  On or about 13 February 2008, the 1^st applicant lodged with the Director a non-refoulement claim (“the torture claim”) under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and provided the basis of his claim.

8.  On 21 January 2010, the 1^st applicant was again arrested by the police.  He was subsequently convicted of the offence of “Taking employment while being a person remains in Hong Kong without the authority of the Director of Immigration after having landed in Hong Kong unlawfully”, contrary to section 38AA of the IO, and was sentenced to imprisonment for 13 months and 17 days.

9.  On or about 18 May 2010, the Director informed the 1^st applicant that he was considering applying for a deportation order on the ground of the 1^st applicant’s criminal conviction and invited the 1^st applicant’s representations. In response, the 1^st applicant told the Director that his life was in danger in Pakistan and he would wait for the outcome of the torture claim.

10.  On or about 1 November 2010, the Director issued a removal order against the 1^st applicant.

11.  On 20 December 2010, the 1^st applicant and the 2^nd applicant solemnized their marriage in Hong Kong.

12.  In May 2011, the 1^st applicant applied to the Director for a dependant visa with the 2^nd applicant being the sponsor (“the DV Application”).

13.  On or about 6 July 2012, the 1^st applicant through his solicitors requested the Director to consider issuing a warning to him, instead of a deportation order so that he could live with his family.

14.  In an internal minute of the Immigration Department (“the ImmD”) dated 25 September 2012, the DV Application was considered as follows:

(1) the marriage was believed to be genuine;

(2) the offence committed by the 1^st applicant was serious in nature by taking into account the length of sentence and the circumstances of the offence; and

(3) having considered all circumstances of the case, including the 1^st applicant’s representations, the DV Application should be refused on the ground that there was known record to the detriment of the applicant.

15.  By a letter dated 12 October 2012 to the 1^st applicant’s legal representatives, the Director informed him that the DV Application was refused on the basis that he could not satisfy the approval criterion that there was no known record to his detriment.

16.  In late October 2012, the 2^nd applicant[1] and the 1^st applicant’s legal representatives[2] made further representations to the Director asking him to reconsider the DV Application.  The representations are in gist as follows:

(1) The 2^nd applicant had known the 1^st applicant for almost four years and frequently visited the 1^st applicant while he was in prison.  She loved him very much and did not want him to leave.

(2) The 2^nd applicant assured that the 1^st applicant would not offend again and requested that the 1^st applicant to be given a chance.

(3) The 1^st applicant’s criminal conviction was more than two years ago and did not involve dishonesty or violence.  He had already been punished by his sentence.

(4) The 2^nd applicant had a good income and proper residence.  They should not be separated.  It was a principle under the relevant UN Convention that family should be reunited and not separated.

(5) The Director had in another case previously granted a dependant visa to a person with criminal record.

17.  The Director considered the further representations and maintained his earlier decision on the DV Application on the following grounds:

(1) The 1^st applicant’s criminal conviction was serious in nature.

(2) The Director was entitled not to grant an automatic right to a spouse of a Hong Kong permanent resident to stay in Hong Kong.  An alien visitor had neither right nor legitimate expectation that he would be granted residence right in Hong Kong as a dependant or otherwise.

(3) There was no justification to make reference to other individual cases.  Each case must be assessed on its own facts and circumstances.

(4) Further, there existed no exceptional or overwhelming compassionate grounds to justify granting the 1^st applicant a dependant visa.

18.  By a letter dated 24 April 2013, the Director informed the 1^st applicant’s legal representative that there were no sufficient grounds to justify a reversal of his previous decision to refuse the DV Application.

19.  By a letter dated 30 October 2013, the 1^st applicant informed the Director that he would withdraw the torture claim on the express ground that he would like to finalize the DV Application.[3]

20.  By a letter dated 9 November 2013, the 1^st applicant through his legal representatives again requested the Director to reconsider and approve the DV Application “on humanity and compassionate grounds”.  In the submissions made in this letter, the 1^st applicant’s legal representatives told the Director, among others, that the refusal of his application would break his marriage and that the 2^nd applicant had got into depression because of such refusal.  The Director by a letter dated 21 November 2013 informed the 1^st applicant’s legal advisers that the request for reconsideration was being processed and asked for the provision of further documents and information in relation to the request.

21.  At the same time, the 1^st applicant and the 2^nd applicant also made further representations to the Director, requesting that a deportation order should not be issued against the 1^st applicant on the following grounds:

(1) The 1^st applicant had led a new life after his conviction which was about three years ago.  His presence in Hong Kong would not pose any danger to the society.

(2) The 1^st applicant committed the criminal offence for his survival purpose.

(3) The 1^st applicant was very remorseful and had learnt a bitter lesson.

(4) The 2^nd applicant was scared of going to Pakistan which was the second most dangerous country in the world.  The 1^st applicant knew that she would not go there with him.

(5) They were planning to have a child.  It was inhuman that the 1^st applicant be deported from Hong Kong against his will.

22.  On 13 June 2014, the Director applied to the Secretary for a deportation order against the 1^st applicant on the basis of the 1^st applicant’s criminal conviction.  In the Director’s application (“the DO Application”), the Director had set out in detail all the submissions that had been made by the applicants through their legal representatives and personally as to why a deportation order should not be issued against the 1^st applicant.  However, the Director recommended the issue of the deportation order for life as the offence committed by the 1^st applicant was serious in nature and it would not be in the public interest to allow him to remain in or come to Hong Kong again.  In this respect, the Director also noted that the applicants had no child born in their wedlock and it was free for the 2^nd applicant to reunite with the 1^st applicant outside Hong Kong should she wished to do so.

23.  On 30 June 2014, the Permanent Secretary for Security issued the DO for life against the 1^st applicant on the ground that the 1^st applicant had been found guilty of an offence punishable with imprisonment for not less than two years.

24.  After the issue of the DO, by a letter dated 8 July 2014, the Director informed the 1^st applicant’s legal representatives the Director’s Decision, ie, that the Director would not consider the 1^st applicant’s latest request made in the letter dated 9 November 2013 for the reconsideration and approval of the DV Application, given that he was subject to the DO for life.  It was stated expressly in the letter that section 20(5) of the IO provided that a person subject to a deportation order shall be required to leave Hong Kong and be prohibited from being in Hong Kong.

25.  In the meantime, by a letter dated 4 July 2014, the 1^st applicant’s legal representatives requested the Permanent Secretary for Security to rescind the DO.  They made detailed submissions in support of the request, which are in gist that:

(1) The 1^st applicant’s life in Pakistan was in extreme danger.  The 1^st applicant’s family would also be in trouble.

(2) Pakistan was very dangerous and unstable.  There was no law and order there.  Terrorism had engulfed the whole country.  Most people were trying to flee to other country for their lives.

(3) The 1^st applicant had withdrawn the torture claim only because he wanted the DV Application to be successful and that the DO would be suspended.

(4) The 1^st applicant’s misdeed was much less serious than that in Sukhmander Singh v Permanent Secretary for Security & Another,HCAL 68/2005, unreported, 14 September 2005 in which the court quashed the deportation order therein.

(5) There were many cases in which applicants who had criminal convictions in Hong Kong were granted dependant visas.

26.  On or about 19 November 2014, the Director recommended to the Secretary that the DO should not be rescinded on the following primary grounds:

(1) The DO was the consequence of the 1^st applicant’s own serious criminal conviction.  The 1^st applicant’s marriage had already been taken into account, and there was significant change to the family circumstances.

(2) The 2^nd applicant had freedom to reunite with the 1^st applicant elsewhere other than in Hong Kong.

(3) The 1^st applicant had withdrawn the torture claim on his own initiative.  In any event, there was no indication that the 1^st applicant would be deprived of state protection should he be returned to Pakistan.

27.  In an internal minute of the Security Bureau dated 27 May 2015 (M3) concerning the DO, it was recorded that:

(1) Family rights were not absolute in the context of immigration cases according to prevailing jurisprudence.  The 1^st applicant could not rely upon the family rights of his family members to request suspension or rescission of the DO.

(2) The 1^st applicant had withdrawn his torture claim, and there was no indication that he would be deprived of state protection in Pakistan.  In any event, he had the right to raise a non-refoulement claim at any time prior to the execution of the DO.  If so, it would be processed by the relevant section of the ImmD.

(3) Concerning comparison with other cases, each and every case should be considered on its own merits.

(4) The Director was correct not to process the DV Application while the DO was in force, given that a DO should invalidate any permission or authority to land or remain in Hong Kong.

28.  On or about 28 May 2015, the Permanent Secretary refused to suspend or rescind the DO, ie, the Secretary’s Decision.

C.   THE INTENDED GROUNDS OF JUDICIAL REVIEW

29.  As helpfully summarised by Ms Chow in her skeleton, the applicants’ intended grounds of judicial review (as set out in the Form 86) are these:

(1) the Director and the Secretary failed to sufficiently inquire into the relevant circumstances of the 1^st and 2^nd applicants namely: (a) the 1^st applicant’s torture claim; (b) the 2^nd applicant’s unwillingness to go to Pakistan; (c) the circumstances of the criminal offence committed by the 1^st applicant; and (d) the effect on the applicants’ marriage and the 2^nd applicant’s mental problem: see Form 86, paragraphs 70 - 109 (“Ground 1”);

(2) the Secretary’s failure to consider whether or not the deportation order for a limited period of time would be sufficient amounted to fettering of his discretion: Form 86, paragraphs 110 - 116 (“Ground 2”);

(3) the Director erred in law in considering that the “no record” requirement was an eligibility criterion of the dependant policy: Form 86, paragraphs 117 - 123 (“Ground 3”);

(4) the Secretary and the Director failed to take into account relevant considerations, namely the matters put forward by the applicants in their requests for reconsideration of the dependant visa application and rescission of the deportation order: Form 86, paragraphs 124 - 127 (“Ground 4”); and

(5) for the matters stated above, the Secretary and the Director’s Decisions were unreasonable in the public law sense: Form 86, paragraph 128 (“Ground 5”).

D.   THIS LEAVE APPLICATION

30.  As I mentioned above, the putative respondents submit that no leave should be granted because:

(1) There is undue delay in this leave applicant and the court should not extend the time given the circumstances of the present case.

(2) Alternatively and in any event, the proposed grounds of judicial review are not reasonably arguable.

31.  I would propose to deal with the merits of the proposed grounds first.

D1.   Merits of the proposed grounds of judicial review

32.  Under Ground 1, it is the applicants’ complaint that, in making the Director’s Decision (in effectively confirming the refusal of the DV Application) and the Secretary’s Decision (in confirming the issue of the DO), they both had failed to discharge their duty to make sufficient inquiry.  This is because, the applicants say, they both failed to make proper inquiry into the following matters:

(1) The fact of the 1^st applicant torture claim and of the 2^nd applicant’s unwillingness to go back to Pakistan because the country is the second most dangerous country in the world.  In this respect, the applicants submit that the Secretary and the Director should show that they had properly assessed the level of that risk that the 1^st and 2^nd applicants would face if they were to return to Pakistan, but the Secretary and the Director did not do so.  See: Sukhmander Singh v Permanent Secretary for Security (CACV 370/2005, 20 July 2006, Ma CJHC, Stock JA and Sakhrani J) at paragraph 32, per Ma CJHC (as the learned CJ then was).

(2) The circumstances of the 1^st applicant’s criminal offence.

(3) The effect on the marriage and the 2^nd applicant’s mental problem.  This is particularly so as the 2^nd applicant had informed them that she would not join and settle with the 1^st applicant in Pakistan as it is not a safe place to go to.  Hence, the practical result of the Decision would be that the 1^st and 2^nd applicants would remain separated and this would have a devastating effect on their marriage and the 2^nd applicant has already started to suffer from depression because of the Director’s Decision.

33.  This ground is not reasonably arguable:

(1) A torture claim is and should be assessed and dealt with under that claim through the established Unified Screening Mechanism (“USM”).  If the 1^st applicant could successfully establish his claim under the USM, he would be permitted to remain in Hong Kong notwithstanding the Director’s Decision and Secretary’s Decision.  It is noted that, although fully aware of the fact that the 1^st applicant had withdrawn his torture claim in October 2013, it was still stated in the Secretary’s consideration that the 1^st applicant “has the right to raise [the claim] any time prior to the execution of the deportation order.  If such a claim is made, it will be processed by the Removal Assessment Section of the ImmD under the [USM]”.[4]  There is thus no question that the Director and the Secretary should inquire sufficiently into the underlying allegations of the non-refoulement claim when considering whether to respectively refuse the DV Application and the application to rescind or suspend the DO.  See also similar conclusion reached by Chow J in Nisa Azizan v Director of Immigration (HCAL 203/2015, 15 April 2016) at paragraph 48.

(2) Further, an in any event, in the present case, as shown above, the relevant file minutes and internal memo pertinent to these decisions show that the Director and the Secretary had fully taken into account the various repeated and comprehensive submissions made by the applicants and their legal representatives.  In doing so, they also already took into account the allegations of the risk and danger that the 1^st applicant said he would face if he were to return to Pakistan (as he alleged in his torture claim) and came to the view that there was no indication that the 1^st applicant would be deprived of the state protection in the case that his life was put to risk in an unlawful manner.[5] The weight to be attached to this is a matter for the decision maker, and the court cannot see any reasonable argument to say that this conclusion is Wednesbury unreasonable.  See: Nisa Azizan, supra, in particular at paragraph 48(3) - (4), quoting the observations by the Court of Appeal in BI/BH v Director of Immigration [2016] 2 HKLRD 520 (“the BI/BH CA Judgment”) at paragraph 105.

(3) In this respect, the case of Sukhmander Singh is clearly distinguishable.  The very peculiar facts of that case showed that there was a realistic risk to the applicant’s life if he was required to return to the particular village in India.  With this clearly established risk, the court came to the view that the Secretary had not shown to the court by evidence that, in making her decision to issue the deportation order, she had carried out a sufficient level of assessment between that established risk and the risk that the applicant might pose to the security to Hong Kong (in light of the serious offence of rape the applicant was convicted of in Hong Kong).[6]  This is entirely not the situation in the present case.  As pointed out by the Secretary herself in the present case, the 1^st applicant is always entitled to lodge his torture claim again seeking to prove his claim of risk if he is to return to Pakistan, and if he can successfully establish that, he would not be returned to Pakistan despite the DO.

(4) Insofar as the 2^nd applicant’s fear of going to Pakistan and the impact of the decisions on her marriage are concerned, these again had all been considered by the Director and the Secretary as stated in the respective internal minutes. In particular, it is noted that at the time of those applications, the applicants were legally represented, and (as recorded in the minutes) the Director and the Secretary were fully conscious of all the written submissions made by the applicants’ legal advisers and the applicants themselves.[7]  Despite these considerations, they respectively came to the Director’s Decision and the Secretary’s Decision.  There is therefore again no question that the putative respondents failed to inquire into these matters.  The weight to be attached to them is however entirely a matter for the Director and the Secretary.  When viewed against the tight immigration control regime in Hong Kong, the security considerations for Hong Kong, and the fact that when the applicants got married, they must be fully aware of the facts that (a) the 1^st applicant is from Pakistan and has no automatic right to be in Hong Kong; (b) he had committed a serious offence in Hong Kong resulting in a significant length of imprisonment; (c) it was a requirement that there should be no record of detriment to him for his DV Application; and (d) there was no guarantee that his application would be successful and thus there was always a possibility that he would need to return to Pakistan, I cannot see how it could be reasonably argued that these decisions are Wednesbury unreasonable.  Cf: BI/BH CA Judgment, supra, at paragraphs 102 - 109.

(5) Finally, as shown in the various internal minutes, the DO Application and the relevant memos, the Director and the Secretary also clearly looked into the circumstances of the 1^st applicant’s convicted offence, including the nature of the offence and the 1^st applicant’s allegation that he committed the crime for “survival purpose”.  There is simply no question that the putative respondents failed to inquire into these matters.

34.  Ground 2 concerns only the Secretary’s Decision.  The applicants argue that the Secretary fettered her own discretion as she did not take into consideration the individual circumstances of the applicants to decide whether nor the DO should be suspended, rescinded or be subject only to a limited period of time, as the Secretary only recited (as reflected in the relevant internal minutes) the reasons for the initial issuing of the DO.

35.  I agree with Ms Chow’s submissions that this ground is without merits.  From the internal minutes (see eg, M1, in particular at paragraph 9[8] and M3[9]), it can be seen that the Secretary did consider all the circumstances of the 1^st applicant’s case but, given the seriousness of the criminal offences, was of the view that (a) it would not be in the public interest to allow him to come to Hong Kong again; and (b) the representations made on his behalf were not sufficient to justify exceptional consideration.  Furthermore, if in turn the 1^st applicant is seeking to attack the merits of the Secretary’s Decision (he should have made a DO for a limited time but not for life), as already mentioned above, the court will be slow to intervene in the Secretary’s consideration of humanitarian factors and his decision.  In any event, it has been held that in the normal case of someone whose deportation is warranted because he has committed a deportable offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime.  Deportation is triggered because the territory has decided that it no longer welcomes that particular person, wants him to leave, and does not want him to come back again.  A deportee is therefore, as a rule, not entitled to expect some finite period to his deportation or suspension or rescission of his deportation order according to the circumstances of his case.  See Bahadur v Secretary for Security (1998 - 99) 8 HKPLR 77 at 99E - H, on appeal [2000] 2 HKLRD 113 at 127J - 128D/2 and James Steven Pollard v Permanent Secretary for Secretary (HCAL 92/2010, unreported, 11 March 2011, per A Cheung J (as the learned CJHC then was)) at paragraph 35.

36.  Ground 3 relates only to the Director’s Decision.  The applicants contend that “the no record of detriment” requirement is not an eligibility criterion, but the Director treated it as such in rejecting the DV Application.  He had therefore misapplied the law. This ground is advanced on the basis of the respective first instance decisions of BI v Director of Immigration,[10] and BH v Director of Immigration,[11] which respectively decided that the “no record of detriment” requirement, on a proper construction, was not an eligibility criterion.  However, BI and BH on this point have since been overruled by the Court of Appeal in the BI/BH CA Judgment.  The Court of Appeal instead has decided that the said criterion is an eligibility criterion: paragraphs 68 - 90.  The Court of Appeal judgment is binding on this court.  There is therefore nothing in this Ground.

37.  Under Ground 4, the applicants say the Director and the Secretary when considering whether there existed compassionate or humanitarian grounds to respectively approve the DV Application and the application to rescind or suspend the DO, they failed to look at the particular individual circumstances, in particular the family circumstances, as submitted by the applicants as relevant considerations.

38.  There is nothing in this ground.  As shown above, the internal minutes relating to the Director’s Decision and the Secretary’s Decision show clearly that they had taken into consideration the family circumstances pertinent to the applicants as set out in the repeated detailed submissions of their legal representatives.

39.  In Ground 5, the applicants effectively submit that it is Wednesbury unreasonable for the putative respondents to make the respective Director’s Decision and the Secretary’s Decision after their respective individual circumstances had been properly taken into account.

40.  This ground is similarly without merits.

41.  The Court of Appeal in BI/BH CA Judgment emphasised that the court should give a wide margin of appreciation to the Director in assessing a challenge against his immigration control decision, and will rarely interfere the Director’s exercise of discretion in this respect on Wednesbury unreasonableness ground.  This is because of the wide discretion given to the Director to administer immigration policies under the Basic Law, the tight immigration policy he has adopted, and the fact that the Director has to make difficult immigration control decisions based on matters and information which could not always be fully explained to or understood by the policy.[12]  These observations must in my view similarly apply to a decision made by the Secretary regarding a deportation order, where security concerns in the context of immigration control feature significantly in the Secretary’s consideration.

42.  In the premises, bearing in mind the Court of Appeal’s above observations and the wide margin of appreciation that should be accorded to the Director and the Secretary, on any view of the matter, it cannot be said that the Director’s Decision and the Secretary’s Decision are beyond what a reasonable decision maker, properly directed on the law and the facts, could reasonably have come to.

43.  For all the above reasons, none of the proposed grounds of judicial review are reasonably arguable.  Leave should be refused.

D2.   Delay

D2.1  Applicable law

44.  The following two statutory provisions are relevant:

(1) Order 53, rule 4(1) of the Rules of the High Court, Cap 4A:

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court consider that there is good reason for extending the period within which the application shall be made”.

(2) Section 21K(6) of the High Court Ordinance, Cap 4:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant –

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

45.  Where there has been a failure to act promptly or within three months, there is “undue delay”.  Even though the court may be satisfied in light of all the circumstances there may be good reasons for the failure, nevertheless the delay, viewed objectively, remains “undue delay” which the court may refuse to grant leave for the making of the application or refuse relief if it considers the granting of the relief would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.  See: AW v Director of Immigration (CACV 63/2015, unreported, 3 November 2015, per Lam VP, Kwan and Poon JJA) at paragraph 26.

46.  In AW, the Court of Appeal summarized the principles to be applied in an application to extend time for judicial review at paragraph 27 as follows:

“(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of Order 53 rule 4(1) and section 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a ‘multi-faceted question’ the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’ (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.”

D2.2  Length of delay

47.  The Form 86 was filed on 23 November 2015.  I agree with Ms Chow that there has been undue delay and in any event failure to act promptly in bringing the present leave application for judicial review.

48.  In respect of the challenge to the Secretary’s Decision made on 28 May 2015, there has been a delay of almost three months.

49.  As for the challenge to the Director’s Decision, although the challenge is to the decision on 8 July 2014 (delay of about 1 year and 1 month), arguably, the delay is even greater because the decision to refuse was first made on 12 October 2012 (delay of about 2 years and 10 months) and the first reconsideration decision was made on 24 April 2013 (delay of about 2 years and 4 months).

50.  It is trite that the time limits imposed by Order 53, rule 4(l) of the Rules of the High Court for applying for leave for judicial review of the Director’s earlier decisions cannot be circumvented by the 1^st applicant’s attempt to generate a fresh decision by asking the Director to reconsider the application.  See eg, Lo Siu Lan v Hong Kong Housing Authority (CACV 378/2004, unreported, 17 December 2004, per Ma CJHC, Stock and Le Pichon JJA) at paragraph 39, Super Lion Enterprises Ltd v The Commissioner of Rating and Valuation (HCAL 71/2005, unreported, 6 October 2006, per Hartmann J), at paragraph 218, Martin Tao Ming Lee v Secretary for the Civil Service (HCAL 82/2010, unreported, 8 August 2011, per Saunders J), at paragraph 8, E T Investment Limited v Director of Health (HCAL 13/2015, unreported, 3 February 2016, per Deputy High Court Judge Keith), at paragraphs 17 - 18 and most recently, Nisa Azizan, supra,at paragraphs 29 - 36.

51.  I therefore agree with Ms Chow that, in the present circumstances, the grounds for challenging the Director’s Decision first arose on 12 October 2012 (when the first decision to refuse the DV Application was made) or at the latest, on 24 April 2013 (when the first request for reconsideration was refused).

52.  Thus, the length of delay in the present case is considerable (in relation to the Secretary’s Decision), and, in respect of the Director’s decision, very substantial.

D2.3    Explanation for the delay

53.  The reasons for the delay as stated in the Form 86 at paragraphs 58 - 69 are:

(1) time was taken to obtain legal aid;

(2) time was taken to obtain disclosure of the documents of the ImmD and the Security Bureau;

(3) time was taken to peruse documents and obtain instructions to draft and finalise the leave application for judicial review; and

(4) the present leave application for judicial review concerns fundamental human rights and there are more important considerations than ordinary private litigation.

See also the applicants’ skeleton submissions, paragraph 37.

54.  As for time taken to obtain legal aid, it is now well-established that there is no general proposition that difficulty or time taken in obtaining legal aid is a good reason for extending time.  It is only one of the factors that the court will consider whether there is good reason to justify an extension of time notwithstanding the delay: see eg, Re Thomas Lai [2014] 6 HKC 1 at paragraph 48(1), Mui Mei Fung v Secretary for Justice for Commissioner for Labour (HCAL 145/2013, unreported, 16 January 2014, per Au J) at paragraph 29 and Nisa Azizan, supra, at paragraph 57.

55.  Furthermore, where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate that he had exercised due diligence in the making and processing of the application: Re Thomas Lai at paragraph 48(2). In this regard, it has been held that where an applicant wishes to rely upon the time taken to obtain legal aid as an explanation for the delay in making his leave application, the applicant should in his notice of application for leave for judicial review provide a full chronology regarding his legal aid application.  The chronology should be verified or confirmed by the relevant legal aid officer who may provide such further information and explanation as may be appropriate or necessary either in a letter or by way of an affidavit: see BH, supra, at paragraph 103, endorsed by the Court of Appeal in the BI/BH CA Judgment at paragraph 131.  In the present case, there is no such chronology verified by an affirmation from the relevant legal aid officer.

56.  Moreover, given that the applicants have throughout been legally represented (albeit not the same solicitors as in these proceedings), there is no good reason why they did not apply for legal aid immediately after they had been informed of the Director’s and the Secretary’s Decisions or why, albeit waiting for legal aid, they did not put in their leave application for judicial review first.  In the Form 86, paragraph 46, it was stated that the 1^st applicant made an application for legal aid on 11 July 2014 but this was withdrawn on 22 June 2015 and a fresh application was made (but not stated when).  Although the withdrawal was allegedly on the Legal Aid Department’s advice, this is not apparent from the available documents and has not been confirmed by the Legal Aid Department.  The applicants have not fully and frankly disclosed why it was advised that the first legal aid application be withdrawn and to make a new application later, and whether it involved any fault of the applicants.

57.  As for the time taken to request and obtain documents, I am not satisfied that the reasons of the Director and the Secretary were not known to the applicants until after disclosure of the documents as submitted in the applicants’ skeleton submissions at paragraph 37.4.  In my view, the reasons that would provide the basis to the applicants to raise the proposed grounds of judicial review can sufficiently be discerned from: Notice of Consideration of Deportation, Director’s letter dated 18 October 2010, the Director’s letter dated 12 October 2012, the Director’s letter dated 24 April 2013, the Director’s letter dated 7 March 2014, the Director’s letter dated 8 July 2014 and Secretary’s letter dated 28 May 2015.  In any event, after the documents requested were collected on 30 September 2015, there was considerable delay afterwards in making the application for leave to judicial review and no good reasons have been given to explain the subsequent delay/failure to act promptly.

D2.4    Question of general public importance

58.  This application for judicial review does not raise any question of general public importance or fundamental human rights.  The legal principles applicable to the issues raised by the Form 86 are well-settled.  Furthermore, the Court of Appeal in AW has held that the general approach of the court in considering an application for leave to apply for judicial review out of time is the same irrespective of the rights at stake (see paragraphs 1, 29 - 36).

D2.5  Merits of the intended judicial review and prejudice

59.  On the question of prejudice, as I concluded above, the proposed application for judicial review lacks any arguable merits.  Further, in so far as the 1^st applicant’s torture claim is concerned, this can still be pursued if so advised through the USM, there will not be any prejudice to the applicants if extension of time was refused.

60.  On the other hand, (as held in previous cases such as Pagtama Victorina Alegre & Ors v Director of Immigration (HCAL 13, 45 & 56/2014, unreported, 12 January 2016, per Au J), paragraph 238(3) and Nisa Azizan, supra, paragraph 63) unjustifiable delay in challenging immigration decisions made by the Director and the Secretary would be detrimental to the administration of effective immigration control in Hong Kong.

61.  For all these reasons, I am not satisfied that the applicants have shown any good reasons to justify an extension of time.  I would therefore refuse to extend time for the applicant to apply for leave.  The leave application must be dismissed for delay.

E.   CONCLUSION

62.  I refuse this leave application on the basis of delay and that no extension of time should be granted.  Further or alternatively, I would in any event also refuse leave for the reason that the proposed judicial review grounds are not reasonably arguable.

63.  I further make an order nisi that there be no order as to costs of this leave application.