JAVID KAMRAN v. COMMISSIONER OF REGISTRATION AND ANOTHER

CACV 131/2021

[2022] HKCA 105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2021

(ON APPEAL FROM HCAL NO 1324 OF 2019)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

1.  By Notice of Motion dated 13 December 2021, the applicant seeks leave to appeal to the Court of Final Appeal (“CFA”) from the Judgment of this Court dated 8 December 2021 (“CA Decision”). In the CA Decision, we dismissed the applicant’s appeal from the Judgment of K Yeung J in HCAL 1324/2019 dated 23 March 2021 (“CFI Decision”). K Yeung J refused to grant leave to apply for judicial review to challenge the decision of the Registration of Persons Tribunal dated 15 April 2019.

2.  After reviewing the papers, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  The applicant is a 41 year-old Pakistani national who has been staying in Hong Kong on and off since 1998. He applied for a permanent identify card (“PIC”) and his application was first rejected by the Director of Immigration and then by the Tribunal on appeal from the Director’s decision. The Tribunal found that he had failed to meet the requirement of having ordinarily resided in Hong Kong for a continuous period of 7 years.

4.  Since 30 May 2000, the applicant had been the subject a deportation order which was only suspended for 6 years from 23 February 2012 to 22 February 2018. Section 2(4)(a) of the Immigration Ordinance Cap 115 (“IO”) disqualifies a person from ordinarily residing in Hong Kong if he has landed unlawfully. Section 20(7) of the IO further invalidates any permission or authority to land or remain in Hong Kong that might have been given, when a deportation order is in force. This was the main thrust of the Tribunal’s reasoning dismissing the applicant’s appeal.

5.  Before K Yeung J, the applicant argued that a 4-year period (from 6 February 2008 to 22 February 2012) should also be counted toward ordinary residence although the deportation order was still in force. That 4 year-period consists of (1) a “Detention Period” from 6 February 2008 to 13 November 2008, when he was detained by the Director pending his deportation until he was eventually released on recognizance, and (2) a “Waiting Period” from 14 November 2008 to 22 February 2012, when he had already applied for a rescission/suspension of the deportation order but no reply had yet been given. The applicant argued that both periods should have been counted despite the fact that the deportation order was in force. He said the detention by the Director was unlawful and that he had already applied for suspension/rescission of the deportation order and his request was eventually acceded to.

6.  He also relied on an internal memo issued by the Director to the Secretary of Security recommending suspension of the deportation order dated 5 July 2010. Therefore, he said alternatively the suspension and his ordinary residence should be taken to have begun on 5 July 2010. He said that there was unlawful delay, misuse of power and procedural irregularities for the Secretary of Security to take so long to endorse the Director’s recommendation.

7.  K Yeung J rejected counting both the Detention Period and the Waiting Period towards the required 7-year period. We summarized his reasoning in §15 of the CA Decision. In short, the validity of the issuance and the suspension of the deportation order was not challenged. On that basis, any time outside the suspension period could not be counted as ordinary residence. There was no evidence to suggest that there was delay on the part of the Secretary for Security.

8.  When the case came on appeal to the CA, the applicant re-ran his argument on the Waiting Period. We did not see any viable grounds of appeal on that point.

9.  Shortly before the hearing which resulted in the CA Decision, the applicant also filed supplemental submissions referring to the case Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278 at 286G. There, the CFA held that since the deportation order had been rescinded, it was to be ignored for all purposed. The applicant submitted that suspension and rescission are analogous and his deportation order should therefore be ignored for all purposes. We rejected that ground since a suspended order remains valid and in place and thus could not be ignored like a rescinded order.

10.  In the Notice of Motion, the applicant put forward the following grounds:

I am not satisfied with the judgment. I am a lay man. A chance should be given to Applicant to lower court again for re-trial for a fair and lawful procedural according to judgment para. (CACV 131/2021) Para. (25. 26. 27. 28). Hong Kong is a city of law and order. A fair and lawful process if right of every Applicant.

11.  It is not apparent how §§25-28 of the CA Decision could assist his request that he should be given a chance for his case to be re-heard in the lower courts.

12.  In the written submissions filed on 23 December 2021, the applicant re-ran his argument regarding the Detention Period and the Waiting Period, including why his ordinary residence should start to count on 5 July 2010. He cited some additional authorities from the CFA regarding one’s permanent residency status, but it is not apparent how those authorities could assist his case. He also reiterated that since his deportation was suspended, it should be ignored for all purposes. He referred to the decision to suspend his deportation order on 23 February 2012 as an “acquittal of deportation order” or “successful appeal against the deportation order” and sought to argue by analogy that the decision to suspend the deportation order in February 2018 should “makes back period suspended for all purposes form Feb 2, 2008 to Feb 22, 2012.” These arguments had all been argued and rejected before. The applicant did not point to any errors committed by this Court in the CA Decision.

13.  Having considered all the materials before the Court, there is no question which should be referred to the CFA on the great general or public importance limb or the otherwise limb under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

14.  The Notice of Motion is therefore dismissed. We make no order as to costs.