MALL MAN BAHADUR v. SECRETARY FOR JUSTICE AND OTHERS

HCAL 555/2018

[2022] HKCFI 2401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 555 OF 2018

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J U D G M E N T

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1.  By a Form 86 dated 4 April 2018, the applicant sought leave to apply for judicial review against various decisions made by the Secretary for Security, the Director of Immigration and the Commissioner of Registration.

2.  The Form 86 was drafted with the benefit of legal representation because at the time the applicant had the benefit of a legal aid certificate.  That legal aid certificate was later discharged on 6 December 2018.  The reasons for the discharge will become obvious.  But since that date, no step has been taken by the applicant in these proceedings.

3.  On 10 April 2018, the Honourable Mr Justice Chow JA (at that time Chow J) gave directions that there should be a rolled-up hearing of the application for an extension of time, the application for leave to apply for judicial review and the application for judicial review itself, all to be dealt with on a date to be fixed with one day reserved.  He also gave directions for the filing of evidence, and various affirmation or affidavit evidence was filed on behalf of the putative respondents to oppose the application.

4.  By way of factual background, it can be pointed out that the applicant was born in Hong Kong on 5 October 1980.  At that time, his Nepalese father was serving as a member of a Gurkha regiment in Hong Kong.  The applicant, together with his family, returned to Nepal in 1982.  And it seems that the applicant did not apply to come to Hong Kong until early 1999.

5.  In September 1999, the applicant applied for verification of eligibility for permanent identity card.  It was assessed that the applicant was a Hong Kong permanent resident having the right of abode in Hong Kong immediately before 1 July 1997, but he could not fulfil the transitional provisions to become a permanent resident of the Hong Kong Special Administrative Region.  That was because he neither returned to settle in Hong Kong on or before 31 December 1998 nor had he returned to Hong Kong at all within the continuous period of 36 months or more.  Therefore, although the applicant had the right to land in Hong Kong, his claim to permanent resident status was not established.

6.  In 2012 and 2013, the applicant was convicted of three counts of attempted burglary and one count of theft.  He was sentenced to a total of 2 years and 2 months’ imprisonment.  On the basis of those criminal convictions, a deportation order was made against the applicant by the Permanent Secretary for Security on 4 March 2014. The applicant was also later convicted of three further counts of possession of a dangerous drug and two counts of burglary.

7.  On 12 March 2014, the applicant commenced a non-refoulement claim, but it was rejected by the Director.  That claim was finally determined in January 2017 when the applicant withdrew his appeal or petition to the Board, and the appeal or petition was dismissed.

8.  In the Form 86, the applicant identified the core legal issue as relating to the constitutionality of paragraphs 6 and 7 of Schedule 1 to the Immigration Ordinance.  That intended challenge was essentially the same challenge as was made in a different case by a different applicant, Sherpa Shove, in action HCAL 6/2014.

9.  Indeed, the Form 86 expressly identified that the legal submissions made in it were adopted wholly from the same submissions made in the Sherpa Shove case.  The Form 86 also recognised that if the court was not to decide the constitutionality issue in favour of the applicant, all other issues would become academic.

10.  The Sherpa Shove case was determined by Zervos J (as he then was) against the constitutional arguments of the applicant in that case.  Zervos J also separately identified that the issue of delay constituted a good reason to dismiss the application.  The applicant in that case took the matter to the Court of Appeal in action CACV 221/2018. The Court of Appeal upheld the decision of Zervos J, holding that the appeal was without merit.  Indeed, the appeal was dismissed with costs on the indemnity basis.  That applicant’s attempt to apply for an extension of time was dismissed by the Court of Appeal in September 2020.

11.  For present purposes, there is no need for me to rehearse the various arguments and findings either of Zervos J or of the Court of Appeal.  But Ms Jenny Cheung, government counsel for the putative respondents, understandably submits that those judgments render the present application also devoid of merit.

12.  When invited to make any further submissions this morning, the applicant told me that he had nothing else to say because he had already said what he wanted to say before.

13.  The matter now having been brought back to court on the fixed hearing for the rolled-up matters as was originally directed now some time ago, it seems to me correct that the application is without merit and that it must be dismissed.

14.  Ms Cheung asks for the dismissal to be with costs to the putative respondents, to be taxed if not agreed.  But it seems to me that such order is only applicable up to the date when the legal aid certificate was discharged.  I shall therefore order the costs to be payable to the putative respondents up to 6 December 2018, to be taxed if not agreed.  But thereafter, there will be no order as to costs.  That seems to me to be the correct costs order in the exercise of my broad judicial discretion on matters of costs in the particular circumstances of this case.