MOHAMMAD FAROOQ v. PERMANENT SECRETARY FOR SECURITY AND ANOTHER

CAMP 112/2023, [2023] HKCA 898

On An Intended Appeal From [2022] HKCFI 2383 &

[2023] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEDINGS NO 112 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 374 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 21 March 2023 seeking leave to appeal against the order of Coleman J dated 22 December 2022 refusing to grant the Applicant an extension to appeal against the Judge’s earlier order dated 3 August 2022 (“the Order”) refusing to grant leave to apply for judicial review. The intended judicial review is against the decision (“the Decision”) of the 1^st Putative Respondent (“PS for S”) dated 10 June 2020 refusing to suspend or rescind a deportation order (“the Deportation Order”) made against the Applicant.

BRIEF BACKGROUND FACTS

2.  The Applicant is a Pakistani national born on 12 September 1971. He married a Hong Kong permanent resident in Pakistan on 22 July 1990. In November 1990, he arrived in Hong Kong as a visitor. In February 1991, he applied to the Immigration Department (“ImmD”) to join his wife as a dependant. The application was approved, and his limit of stay on dependent status was last extended until 24 May 1995.

3.  His application for further extension of stay was refused because he failed to attend an interview or to respond to ImmD’s letters, and his wife informed ImmD in October 1995 and August 1997 that she wished to withdraw sponsorship of the Applicant’s application. The Applicant left Hong Kong on 30 August 1997.

4.  In May 1999, the Applicant came to Hong Kong again as a visitor. With his wife’s sponsorship, the Applicant’s application to join his wife as a dependant was approved by ImmD in August 1999. The dependant visa was last extended until 11 March 2013.

5.  During his stay in Hong Kong, the Applicant was convicted of, and sentenced for, various criminal offences:

(1)  On 4 December 2003, he was convicted of theft and sentenced to 4 months’ imprisonment on 18 December 2003.

(2)  On 12 February 2004, he was again convicted of theft and sentenced to 2 months’ imprisonment.

6.  By a letter dated 29 March 2004, ImmD wrote to inform the Applicant that whilst it was not proposed to make an application for a deportation order against him at that stage, such action would be reconsidered should he again be convicted of a criminal offence in court.

7.  On 27 August 2008, the Applicant’s application for verification of eligibility for permanent identity card was refused.

8.  On 23 October 2013, the Applicant was convicted of the offence of attempted burglary, and was sentenced to 3 years’ imprisonment.

9.  Following this conviction, and on the basis that the Applicant was not a Hong Kong permanent resident and had been found guilty of an offence punishable with imprisonment for not less than two years, PS for S made the Deportation Order against the Applicant on 28 November 2016 pursuant to s 20(1)(a) of the Immigration Ordinance Cap 115 (“the Ordinance”). The Deportation Order was served on the Applicant on 6 January 2017.

10.  On 29 October 2019, the Applicant made a written request for suspension or rescission of the Deportation Order. On 10 June 2020, PS for S made the Decision, expressing that he had found no sufficient justification for suspending/rescinding the Deportation Order.

THE JUDGMENT

11.  By a Form 86 dated 23 May 2022, the Applicant applied for leave to apply for judicial review of the Decision. The intended grounds of judicial review were summarised by the Judge at §19 of his judgment dated 3 August 2022 (“the Judgment”), as follows:

(1)  the exercise of power under section 20 of the Ordinance was not mandatory, but there were no publicly accessible policies as to the circumstances under which the power would be invoked, or how the discretion not to deport would be exercised;

(2)  apart from the fact of his convictions, no reasons had been given as to why and how the decision to deport the Applicant for life (presumably as opposed to a shorter period) was made;

(3)  the decision-maker had failed to take into account and give proper weight to the fact that the Applicant’s whole family comprised Hong Kong permanent residents, and it would be unfair for them to have to travel outside of Hong Kong to join the Applicant to enjoy their basic rights to family life; and

(4)  an unfair attitude had been shown, and the high standard of fairness required by the Wednesbury test had not been met.

12.  The Judge refused to grant leave, holding that the Applicant’s substantial delay in seeking leave was wholly unexplained and there was no arguable basis for interfering with the Decision (see §§25 and 29-30 of the Judgment). The Judge rejected the 4 intended grounds of judicial review for the following reasons:

“(1) There is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers: see Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at §66. Therefore, the Applicant’s complaint in this regard has no merit.

(2) It is settled that a deportation order is prima facie for life, absent special circumstances. Further, the internal minutes dated 10 June 2020, explaining the basis of the Decision, identify that all circumstances of the case were taken into account by the PS for S, who found no special circumstances warranting deportation only for a limited period. The weight to be given to the various factors in making the Decision was a matter for the PS for S, and is not open to challenge except on Wednesbury grounds. Therefore, the Applicant’s complaint in this regard has no merit.

(3) It is settled that section 11 of the Hong Kong Bill of Rights Ordinance Cap 383, operated at a constitutional level, excludes reliance on the right to family in the Bill of Rights and the Basic Law in the immigration context. Further, a person who has no right to remain in Hong Kong cannot rely on the family rights of his wife and children (even if they are Hong Kong permanent residents) to establish any right to remain here. Matters related to family rights and the impact on family members fall within potential humanitarian or compassionate grounds in the immigration context. The PS for S and the Director are not bound to take such matters into account, but if they do so it is for them to decide the weight to be attached. Here, that the family circumstances were taken into account and the weight given to those circumstances in making the Decision is identified in the internal minutes. Therefore, the Applicant’s complaint in this regard has no merit.

(4) Nor is there any arguable basis to say that the Decision was Wednesbury unreasonable, or the result of any failure to attain any relevant standard of fairness.”

13.  On 22 December 2022, the Judge dismissed the Applicant’s application by summons dated 8 November 2022 for extension of time to appeal against the Order.

THE PRESENT APPLICATION

14.  As mentioned at the beginning of this judgment, on 21 March 2023, the Applicant issued a summons to apply for leave to appeal out of time against the Judge’s order of 22 December 2022.

15.  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 allow him to appeal out of time as he did not receive the Judgment in time and was only informed of it by ImmD when he reported to them.

16.  In his written submissions filed on 4 April 2023, the Applicant raises the following intended grounds of appeal:

(1)  The Judge incorrectly held that the (non) seriousness of his offences and his rehabilitation were not mandatorily relevant considerations.

(2)  The Judge failed to consider whether the Decision not to suspend/rescind the Deportation Order was based on a material error of law or a failure to take into account a mandatory consideration, in that the Decision was made on the express premise that the Applicant did not enjoy “the right to enter and remain in Hong Kong” within the meaning of s 11 of the Hong Kong Bill of Rights Ordinance.

(3)  The Judge failed to assess whether the Decision (i) was Wednesbury unreasonable, and/or (ii) failed to take into account a mandatorily relevant consideration, in that the Director had, subsequent to the convictions but prior to the making of the Deportation Order, permitted the Applicant to remain in Hong Kong as a resident on a dependent visa for many years.

17.  The Applicant argues that the merits of his intended appeal are good, the Putative Respondents will suffer no or little prejudice, and his delay is short.

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 3 August 2022. Disregarding the period falling within the month August 2022 (being the Summer Vacation), the time for the Applicant to appeal against the Order expired on 14 September 2022. It was not until 8 November 2022 that the Applicant applied to the Judge for an extension of time to appeal. The delay is about 8 weeks. The Applicant alleges that he did not receive the Judgment until he was informed of the same when he reported to ImmD. However, the court records show that the Judgment was sent to the Applicant at the address stated on the Form 86 on 3 August 2022. The Applicant has offered no explanation as to why he did not receive the Judgment. He has also failed to state the date on which he allegedly reported to ImmD and was informed of the Judgment or Order. In all, we are of the view that the Applicant’s delay is substantial, and he has failed to give any good reason for the delay.

22.  Further, none of the Applicant’s intended grounds of appeal has merit:

(1)  In respect of intended ground (1), the Applicant’s 3^rd conviction satisfies the criterion for making a deportation order under s 20(1)(a) of the Ordinance. In other words, it is of a degree of seriousness which the law provides is sufficient for the exercise of the power to make a deportation order. As for the seriousness of the circumstances in which the offence was committed, that was a matter for PS for S, acting under the delegated authority of the Chief Executive, to consider when deciding whether to make a deportation order. The Applicant has failed to show any valid public law ground to challenge the Decision.

(2)  In respect of intended ground (2), it is not in dispute that the Applicant does not enjoy “the right to enter and remain in Hong Kong” within the meaning of s 11 of the Hong Kong Bill of Rights Ordinance. There is no basis to contend that the Decision not to suspend/rescind the Deportation Order was based on a material error of law, or that PS for S failed to take into account any mandatory consideration in making the Decision.

(3)  In respect of intended ground (3), the Judge correctly held that there is no arguable basis to say that the Decision was Wednesbury unreasonable. The point that the Director had, subsequent to the convictions but prior to the making of the Deportation Order, permitted the Applicant to remain in Hong Kong as a resident on a dependent visa for many years is a new point which was not raised before the Judge. Since it is a point which is fact sensitive, we do not consider that the Applicant is entitled to raise it for the first time in the Court of Appeal. In any event, the Applicant’s dependant visa was last extended up to 11 March 2013, but his 3^rd conviction was on 23 October 2013. There is no evidence that his dependent visa was extended or renewed after 23 October 2013. The fact that the Applicant failed to leave Hong Kong after the expiry of his limit of stay cannot possibly assist him in his application to challenge the Decision.

23.  The Applicant has failed to show any arguable error in the Judgment, or raise 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

24.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 21 March 2023 is dismissed.