SHAHZAD HAMID v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL 593/2022

[2023] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 593 OF 2022

________________________

________________

______________

D E C I S I O N

______________

A.  Introduction

1.  By my Decision dated 20 January 2023, [2023] HKCFI 210, I refused the Applicant’s application for leave to apply for judicial review of the decision made by the Immigration Tribunal (“Tribunal”) dated 7 June 2022, refusing the Applicant’s appeal (“RO Appeal”) against a Removal Order made by the Director of Immigration (“Director”) on 11 April 2022.

2.  I set out the background matters giving rise to the application in §§ 11-27 of my Decision, and they need not be repeated here. I would merely note that, since the Decision on 20 January 2023, various steps have been taken to seek to remove the Applicant to Pakistan. However, in short, the Applicant has refused to leave and claimed to have no knowledge of the repatriation arrangements made, notwithstanding that he had been informed and reminded of them. His release on recognizance was stopped on 7 March 2023, and he was detained under section 32(3A) of the Immigration Ordinance pending removal.

3.  I dismissed the application for leave to apply for judicial review for reasons including, first, that there were no intended grounds of review identified in either the Form 86 or the Applicant’s affirmation filed on 8 July 2022. As I pointed out, this was itself fatal to the application for leave to apply for judicial review, when RHC Order 53 rule 3(2) mandates that an application for leave to apply for judicial review must be made by a Form 86 which must contain a statement of (amongst other things) the relief sought and the grounds on which it is sought.

4.  In any event, I also held that the Applicant did not have any reasonably arguable grounds against a decision made by the Tribunal refusing the RO Appeal, or against the Removal Order itself. I held that has been no error of law, no procedural unfairness, nor Wednesbury unreasonableness.

5.  The Decision was given the day after the oral hearing of the application. Time for any intended appeal expired under Order 53 rule 3(4) on 3 February 2023.

6.  Now, by summons dated 1 March 2023 – namely 26 days late – the Applicant seeks an extension of time to file and serve the Notice of Appeal within 28 days from the date of any order to be made herein, and leave to appeal against the Decision. He also seeks leave to amend his Form 86 and to file a supplemental affirmation in support, within the same 28-day period.

7.  I heard the argument at an oral hearing on 19 April 2023, and adjourned the matter to today (21 April 2023) to consider my decision and to deliver it orally, so that there could be no doubt that the Applicant would have heard the decision aloud – rather than being forced to have a written decision explained to him, when he is illiterate.

8.  The Applicant appeared in person with the benefit of a Punjabi/English interpreter. However, at the hearing, the Applicant produced written submissions signed by Counsel (perhaps on the basis that solicitors and Counsel might be instructed to conduct the hearing). However, in the absence of any solicitor or Counsel, I informed the Applicant that I would treat the written submission as being from him, albeit that he was obviously assisted.

9.  The putative respondents were represented by Mr Thomas Tong, Government Counsel.

10.  This is my Decision.

B.  The Application and Proposed Amendments

11.  In his supporting affirmation, the Applicant identifies the grounds in support of his application as being that: (1) his delay in filing the intended appeal is not serious; (2) he is illiterate and not legally represented, and has taken time to gather the resources for hiring a lawyer; (3) the intended appeal has strong grounds, where he alleges that there are errors of law and Wednesbury unreasonableness; and (4) the delay would not cause prejudice to the putative respondents.

12.  The draft Notice of Appeal exhibited to the affirmation sets out the following five grounds of intended appeal, being that the learned Judge erred:

(1)  in taking into account the Applicant’s previous criminal conviction in arriving at the Decision;

(2)  in applying section 2(4)(a)(ii) of the Immigration Ordinance to the present case;

(3)  in concluding that there had been no Wednesbury unreasonableness in the Immigration Tribunal’s decision dated 7 June 2022;

(4)  in deciding that the usual requirement of that for the purpose of calculating the continuous period of 7 years in which a person under paragraph 2(d) of Schedule 1 of the Immigration Ordinance has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years before or after the establishment of the HKSAR but immediately before the date when the person applies to the Director for the status of a permanent resident of HKSAR; and

(5)  in unreasonably following the Director of Immigration’s initial response dated 2 August 2022.

13.  It is trite that when considering whether or not to extend time for an appeal against a decision refusing leave to apply for judicial review, the Court will have regard to the overall circumstances including (1) the length of delay, (2) the reasons for the delay; (3) the prospect of success of the intended appeal, and (4) the prejudice to the putative respondent if the extension of time is granted.

14.  I accept that the length of the delay in this case is not particularly long, and there is some explanation offered – essentially that the Applicant is illiterate and it took some time for him to arrange some form of legal representation, which appears to have been obtained by 22 February 2023, and the application was made to me within a week thereafter. The legal assistance obtained is, of course, reflected in the written submission used by the Applicant at the hearing.

15.  However, naturally, if there is no prospect of success of the intended appeal, then the other matters would seem to be of lesser weight or importance in the discretionary mix.

16.  In this case, it seems to me that there is no prospect of success on the intended appeal by reference to the Form 86 which put forward the application which was decided by my Decision. This is, not least, because it did not in fact put forward any proper intended public law grounds of review. On that basis, notwithstanding that the delay is not the most significant, and that the Applicant’s personal circumstances go some way to explain it, there really is no purpose in extending time.

17.  Nevertheless, the Applicant actually wants to pursue an appeal based upon his proposed amendments. Therefore, perhaps the next question which arises is to whether or not I now have the power to permit an amendment of the Form 86, notwithstanding that I have dismissed the application made by that Form 86, following the oral hearing of argument on it.

18.  This point was not addressed in the written submission. However, Order 53 specifically provides that the Court can allow amendment of the Form 86 at the leave hearing or at the substantive hearing: see Order 53 rules 3(6) and 6(2). However, Order 53 rule 3(6) is expressly made subject to the more general powers to amend under Order 20 rule 8 which allows the Court to order amendment of pleading or any other document “at any stage of the proceedings”. This means that the Court may allow amendment before, or at, or after the trial, or even of the judgment or on appeal: see Hong Kong Civil Procedure 2023, §20/8/9.

19.  It is often said that, as a general rule, however late the amendment is sought to be made, it should be allowed if it will not do the opposing party some injury or prejudice him in some way that cannot be compensated for by costs or otherwise. But obviously the later an amendment application is taken out, the more likely that the delay will prejudice the opponent and the more reluctant the Court will be in allowing the amendment. Indeed, it is now commonly recognised that delay itself may be sufficient for refusing a proposed amendment. Further, whilst the Court still retains the power to allow the amendment even after judgment has been handed down, such power should only be exercised in exceptional circumstances. This is particularly the case after the implementation of the Civil Justice Reform: see Hong Kong Civil Procedure 2023, §20/8/9, 14A.

20.  I have already handed down judgment on 20 January 2023 and clearly the Applicant cannot rely on Order 53 rule 3(6) or rule 6(2). But I am aware that no order has been yet sealed and so strictly this Court is therefore not yet functus officio. As a result, this Court still retains jurisdiction to allow the amendment application under Order 20 rule 8, if it is appropriate to do so.

21.  But, in this case, and in the exercise of my discretion, I do not think it is appropriate to do so. First, I do not see any significant merit in the proposed amended grounds:

(1)  The first proposed ground appears misconceived, as reference was only made to the criminal conviction to identify that it confirmed that the Applicant had illegally remained in Hong Kong for a period of time following the expiry of his last permission to stay.

(2)  The second proposed ground does not identify the basis of the alleged error in applying section 2(4)(a)(ii) of the Immigration Ordinance, except to identify that a person who is in contravention of a condition of stay shall not be treated as ordinarily resident, which seems to me to apply to the Applicant once he remained beyond his permission to stay. I note the written submission suggests that section 2(4)(a)(ii) has penal implications and so should not apply to the Applicant since he dealt openly with the Immigration Department when he submitted his application for extension of stay and application for verification of eligibility for permanent identity card. But I am not sure why open dealing with a government department should lead to disapplication of the applicable law or regulation.

(3)  The third proposed ground in effect merely suggests that I was wrong not to say that the Immigration Tribunal was wrong. The written submission merely adds that the Director should take into account humanitarian or compassionate considerations. But that does not seem to me to identify a public law error.

(4)  The fourth proposed ground merely recites the wording of the paragraph in the Schedule. The written submission seeks to address the meaning of the word “immediately”, and to suggest on the facts that the Applicant had been ordinarily (lawfully) resident for the necessary period “immediately” before his VEPIC application. The criminal conviction shows otherwise.

(5)  The fifth proposed ground appears to be simply a criticism of the Court for accepting the Director’s submissions, as opposed to the Applicant’s.

22.  Secondly, it seems to me that if there is to be any appeal by reference to any amended Form 86, it is a matter for the Court of Appeal to decide whether to allow any amendment, and if so what amendment.

23.  For similar reasons to those dealing with the amendment point above, unless the Court of Appeal does allow any amendment, the Form 86 will remain as it was when I gave my Decision, and it seems to me to be unlikely that the Court of Appeal would grant any extension of time for an appeal (though, of course, that is ultimately a matter for the Court of Appeal itself).

24.  In short, the matter of any extension of time is tied closely to any grant of leave to amend the Form 86. In the exercise of my discretion, I refuse both aspects of the application.

25.  I do not think I need address the point about prejudice to the putative respondents.

26.  I make no order as to costs.