PHAGAMI SHIVA v. REGISTRATION OF PERSONS TRIBUNAL

HCAL 1709/2020

[2020] HKCFI 3071

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1709 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decision of the Registration of Persons Tribunal (“ROPT”) made, or allegedly made, on 7 May 2020 dismissing the Applicant’s appeal without a hearing[1].

BASIC FACTS

2.  The Applicant is a Nepalese national born in Nepal on 24 December 1990.

3.  On 20 November 2009, he married a Hong Kong permanent resident (“the Wife”) in Nepal.  On the strength of the marriage, the Applicant applied for and was granted a dependant visa under the Director of Immigration (“the Director”)’s dependant policy to join the Wife, as his sponsor, in Hong Kong.  The Applicant entered Hong Kong on 18 September 2011, and was permitted to remain in Hong Kong as the Wife’s dependant with a limit of stay, which was last extended to 18 September 2015 (ie 4 years from the date of his first entry to Hong Kong).

4.  On 15 September 2015, the Applicant submitted an application for extension of stay on his own merits without a sponsor.  The Applicant declared that his marital status had been changed from “married” to “separated”.

5.  Since the Applicant no longer had a sponsor and thus was no longer eligible to remain in Hong Kong on dependant status, the Director refused his application for extension of stay on 12 April 2016.

6.  The Application subsequently requested the Director for reconsideration of his application for extension of stay on 18 April 2016 and 22 August 2016 respectively.  Those requests were rejected by the Director on 16 August 2016 and 16 June 2017 respectively on the basis that the Director found no reason or justification to reverse his earlier decision.

7.  On 4 October 2018, the Director received the Applicant’s application for Verification of Eligibility for Permanent Identity Card (“the VEPIC Application”).  On 10 October 2018, the Applicant was requested to provide proof of his holding a valid resident visa immediately before the submission of the VEPIC Application.  The Applicant only furnished a copy of his recognizance in response.  On 1 April 2019, the Director rejected the VEPIC Application, on the ground that the Applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years immediately prior to the VEPIC Application.

8.  On 7 May 2019, the Applicant applied for a Hong Kong permanent identity card (“the HKPIC Application”).  On the same day, the Commissioner of Registration (“the Commissioner”) rejected the HKPIC Application on the ground that there was insufficient evidence to show that the Applicant had the right of abode in Hong Kong.

9.  On 28 May 2019, the Applicant lodged an appeal (“the Appeal”) to the ROPT against the Commissioner’s decision to reject the HKPIC Application.

10.  On 1 November 2019, the Applicant gave written notice, in the form of a “Reply Slip” (“the Reply Slip”), to the ROPT stating that he had decided to “abandon” the Appeal.

11.  On 30 January 2020, the ROPT acknowledged receipt of the Reply Slip noting that the Applicant had abandoned the Appeal, and stated that the Reply Slip would be forwarded to the Commissioner for his attention.

12.  By a letter dated 17 February 2020, the Applicant wrote to the ROPT stating that, due to “misunderstanding”, he had mistakenly indicated that he would abandon the Appeal.  The Applicant also stated that he would like to proceed with the Appeal, and asked the ROPT to consider processing the Appeal based on the document previously submitted by him.

13.  On 24 March 2020, the ROPT replied, stating as follows:

“ The Tribunal received your letter dated 17 February 2020 informing that you wish to proceed your appeal regardless of your reply slip dated 1 November 2019 (which was received by the Tribunal on 22 November 2019) in which you indicated you wish to abandon your appeal to the Tribunal. As a result, your appeal was dismissed upon your notice of abandonment.

      By reason of the dismissal, the Tribunal no longer has jurisdiction to handle the appeal.  Therefore, your request cannot be entertained.”

14.  On 16 April 2020, the Applicant, through Lakshmi & Laxmi, wrote to the ROPT stating that “there has been miscommunication as the instructions were not clear and the language was ambiguous” and that the Applicant had intended to proceed with the Appeal.

15.  On 7 May 2020, the ROPT replied stating that there was no ambiguity about the Applicant’s decision to abandon the Appel in the Reply Slip, and that the Appeal had already been dismissed.

16.  On 24 August 2020, the Applicant made the present application for leave to apply for judicial review of the ROPT’s decision on 7 May 2020.  The Applicant did not set out any relief sought, or any ground on which relief is sought, in the Form 86.  In his affirmation dated 24 August 2020, the Applicant stated the following:

“My appeal No ROPT 42/19 is dismissed without hearing, which is totally bias. I would request for re-view their decision”.

17.  Attached to the Applicant’s affirmation is a document marked “Exhibit A”, in which the following is stated:

“The Respondent is in breach of procedural fairness in the following parts:

(1) The Respondent had unlawfully fettered his discretion by refusing the appeal submitted by the Applicant without providing any reasonable or detailed reasoning.

(2) The Respondent acted in a procedurally unfair manner in causing a unsubstantiated delay in reaching a decision dated 7^th May 2020 for their request for reconsideration.”

DISCUSSION

18.  Neither of the 2 grounds of judicial review set out in Exhibit A has merits:

(1)  In relation to ground (1), the ROPT decided to dismiss the Appeal on the ground that the Applicant had unequivocally indicated that he had decided to abandon the Appeal.  It cannot be said that the ROPT fettered its discretion in deciding to dismiss the Appeal.  Further, the reason given by the ROPT for dismissing the Appeal is simple and clear, and is adequate in the circumstances to enable the Applicant to understand the basis of the decision.

(2)  In relation to ground (2), the complaint of delay is without substance.  The Applicant informed the ROPT that he had decided to abandon the Appeal on 1 November 2019, and the ROPT acknowledged the same on 30 January 2020.  It appears from the ROPT’s letter to the court dated 5 October 2020 that the ROPT dismissed the Appeal “upon notice of abandonment on 23 January 2020”.  The ROPT’s further letter dated 7 May 2020 was in response to Lakshmi & Laxmi’s letter dated 16 April 2020.  While a response might have been given earlier, I do not see how it can be argued that the ROPT has been guilty of such delay as would give rise to a valid ground of challenge in public law to the ROPT’s decision to dismiss the Appeal.  In this connection, it is important that the ROPT’s delay (if any) has not caused any prejudice to the Applicant.  None has been alleged.

19.  For the purpose of disposing of the present application, it is not necessary for the court to consider whether the ROPT has jurisdiction to entertain an application by the Applicant to withdraw his notice of abandonment of the Appeal and, if the answer is “yes”, whether the ROPT ought to have exercised the discretion to permit the Applicant to do so and proceeded with the hearing of the Appeal.  This is because, on the facts of the present case, there can be no doubt that the Applicant has failed to show that he “has ordinarily resided in Hong Kong for a continuous period of not less than 7 years”, such period being “immediately before the date when [he applied] to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region” as required by paragraphs 1(4)(b) and 2(d) of Schedule 1 to the Immigration Ordinance, Cap 115.  The Applicant was ordinarily resident in Hong Kong for a period of 4 years from 18 September 2011 to 18 September 2015.  After that date, he no longer had the permission of the Director to stay or remain in Hong Kong.  Under s 2(4)(a)(ii) of the Immigration Ordinance, a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong in contravention of any condition of stay.  The Applicant’s stay in Hong Kong after 18 September 2015 cannot therefore be regarded as ordinary residence in Hong Kong.  Hence, the Applicant’s Appeal is bound to be dismissed by the ROPT even if the ROPT permits the Applicant to withdraw his notice of abandonment of the Appeal and proceeds with the hearing of the Appeal.  That being the position, it is clear the court would not, in the exercise of its discretion, grant any relief in the present application for judicial review.

20.  For the same reason, it is not necessary to consider the question of the Applicant’s delay in making the present application for leave to apply for judicial review.

21.  In all, the intended application for judicial review is not reasonably arguable and has no realistic prospect of success.

DISPOSITION

22.  The application for leave to apply for judicial review is dismissed, with no order as to costs.

[1] The appeal was in fact dismissed on 23 January 2020 (see the ROPT’s letter to the court dated 5 October 2020).