SHABIR SOHAIL v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CAMP 166/2023, [2023] HKCA 952

On An Intended Appeal From [2023] HKCFI 225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 166 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 1374 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicant’s application by summons dated 20 April 2023 seeking leave to appeal against the order of Coleman J dated 11 April 2023 refusing to grant the Applicant an extension of time to appeal against the Judge’s earlier order dated 20 January 2023 (“the Order”) refusing to grant leave to apply for judicial review.

2.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND FACTS

3.  The Applicant is a Pakistani national born in 1978. In 2013, he married his wife (“Wife”), who acquired Hong Kong permanent resident status in October 2015, in Pakistan. They have two daughters, born in 2015 and 2016 respectively.

4.  In June 2014, the Applicant was granted a dependent visa to reside in Hong Kong as the Wife’s spouse. The dependent visa was last extended on 24 August 2020, with limit of stay up to 30 June 2023.

5.  On 8 February 2021, the Applicant was convicted, on his own guilty plea, of the offence of criminal intimidation, and was sentenced to 8 months’ imprisonment. The victim of the intimidation was the Wife.

6.  On 20 May 2021, the Secretary, acting under the delegated authority of the Chief Executive, made a deportation order (“the Deportation Order”) against the Applicant under s 20(1)(a) of the Immigration Ordinance, Cap 115 (“the Ordinance”), on the basis that the Applicant, being an immigrant (ie a person who is not a Hong Kong permanent resident), had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years.

7.  On 4 February 2021, shortly before the Applicant’s criminal conviction and sentence, the Wife applied for the sole custody, care and control of the two daughters. Interim orders were granted by the Family Court to the Wife on 7 May 2021. The substantive application was granted in March 2022. The Applicant was granted defined access to the daughters. A restraining order and non-molestation order were also made against the Applicant.

8.  On 24 May 2022 and 1 June 2022, the Applicant, through his legal representative, requested for suspension of the Deportation Order under s 54 of the Ordinance. On 8 September 2022, the Secretary refused the request to suspend the Deportation Order (“the Refusal Decision”).

9.  By a Form 86 dated 30 November 2022, the Applicant applied for leave to apply for judicial review of the Refusal Decision. As pointed out by the Judge at §2 of his decision dated 20 January 2023 (“the Decision”), although the Applicant identified only the Refusal Decision as the subject matter of his intended challenge, the primary relief sought was the quashing of the Deportation Order. Accordingly, the Judge treated both the Deportation Order and the Refusal Decision as the intended targets of challenge. No ground of review was given in either the Form 86 or in the Applicant’s affirmation of 30 November 2022, which simply produced a copy of the Deportation Order and the letter from the Secretary conveying the Refusal Decision.

THE DECISION

10.  The Judge heard the Applicant in person on 20 January 2023, and gave the Decision on the same date refusing to grant leave to apply for judicial review.

11.  At §23 of the Decision, the Judge held that the absence of any properly identified intended grounds of review, contrary to the mandatory requirement of the Rules, was itself a sufficient reason to dismiss the Applicant’s application for leave to apply for judicial review.

12.  At §24 of the Decision, the Judge pointed out that the Applicant’s intended challenge to the Deportation Order was well out of time, and no explanation had been offered as to why time should be extended.

13.  The Judge went on to consider the Applicant’s submissions and the merits of the intended challenge, and came to the conclusion that the application did not disclose any reasonably arguable grounds of review, for the following reasons:

“[26] Just as in writing, the Applicant was unable to articulate orally any public law grounds to challenge either the Deposition Order or the Suspension Refusal.

[27] The relevant analysis of any potential merit in this application begins with the fact that it cannot be disputed that the making of the Deportation Order was lawfully authorized by section 20(1).

[28] It is settled that a person who has no right to remain in Hong Kong cannot rely on the family rights of his wife and children to establish any right to remain here, even if the wife and children are Hong Kong permanent residents. Further, the Secretary is not under any legal obligation to take into account family ties as humanitarian or compassionate circumstances. If he did have regard to these considerations, it is up to him to decide how much weight is to be put on any such factor. The Court would intervene only if there were unfairness in the process, or other proper basis for interfering on public law grounds. In the premises, all arguments are really but a plea for the Secretary to exercise his discretion in the Applicant’s favour.

[29] Given that the issuance of the Deportation Order was authorized by law and that no procedural errors were identified by the Applicant in either its grant or the Suspension Refusal, it appears to me that the only administrative law ground upon which the Applicant might rely is a rationality challenge. The threshold is a high one. I do not believe that the Applicant has put forward any grounds as might cross that threshold.

[30] The Secretary has taken into account the Applicant’s family circumstances, and I do not believe that his view could be criticized as irrational in the public law sense…

[31] Nor do I think that it was irrational for the Secretary to issue and then maintain the Deportation Order on the basis that – as the Applicant’s lawyer put it – the offence of which the Applicant was convicted was ‘not that severe and relatively moderate’. The Applicant was sentenced to 8 months’ imprisonment, and in any event the crime committed was a deportable offence under section 20.

…

[33] As to the point that there was no published policy for the exercise of powers under section 20 – also raised by the Applicant’s lawyers in the 24 May letter, Mr Tong has correctly pointed out that there is generally no public law duty requiring decision-makers to publish policies setting out how they would exercise their public law powers: see Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138, at §66.

[34] In conclusion, there is nothing in this application to suggest that the making of the Deportation Order or the Refusal Suspension was unlawful, Wednesbury unreasonable, or the result of any failure to attain any relevant standard of fairness. The application does not disclose any reasonably arguable grounds of review.”

14.  On 11 April 2023, the Judge dismissed the Applicant’s application by summons dated 9 February 2022 for an extension of time to appeal against the Order.

THE PRESENT APPLICATION

15.  On 20 April 2023, the Applicant issued a summons in the Court of Appeal seeking leave to appeal against the Judge’s order of 11 April 2023.

16.  In his affirmation filed on the same date, the Applicant states that: (i) he is unrepresented and does not have access to any legal advice, and (ii) he understands that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review, and asks the Court to exercise its discretion allow him to appeal out of time as he did not know how and where to appeal against the Order.

17.  The Applicant has failed to lodge any written submissions in support of his application, contrary to the directions given by the Registrar of Civil Appeals on 20 April 2023.

DISCUSSION

18.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

19.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

20.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

21.  In the present case, the Judge refused to grant leave to apply for judicial review on 20 January 2023. The time for the Applicant to appeal against the Order expired on 3 February 2022. He applied to the Judge for an extension of time to appeal on 9 February 2023. The delay is 6 days. Despite the Applicant not having given any good or valid explanation for his delay, in view of the relatively short period of delay, we would not treat the Applicant’s delay as being fatal to his present application, and shall focus on the merits of his intended appeal.

22.  The Applicant has failed to identify any arguable error in the Decision, or raise any valid ground of appeal against the Order. We are unable to see any viable ground of appeal against the Order. There is no prospect of success in the Applicant’s intended appeal. It is thus futile to grant the Applicant any extension of time to appeal against the Order.

DISPOSITION

23.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 20 April 2023 is dismissed.