SHAHZAD HAMID v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL 593/2022

[2023] HKCFI 210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 593 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 dated 8 July 2022, the Applicant seeks 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.  The Tribunal determined the RO Appeal under section 53C of the Immigration Ordinance Cap 115 (“Ordinance”), which empowers the Tribunal to dismiss an appeal without a hearing, if the Tribunal is satisfied – as it expressed in this case that it was – that the factual matters on which the appellant is seeking to rely are not matters which would entitle the appellant to succeed in the appeal.

3.  The Form 86 sought a hearing of the application if leave to apply for judicial review was not granted on the papers. Accordingly, I gave directions to bring this matter to a hearing, including directing that the Tribunal and Director as putative respondents should file and serve an initial response, to which the Applicant would have leave to file and serve a reply.

4.  By letter dated 27 July 2022, the Tribunal expressed that it took a neutral stance in these proceedings and would abide by any decision or order of the Court made in these proceedings. The Tribunal’s further attendance was, therefore, excused.

5.  The Director filed an initial response on 2 August 2022. However, the Applicant did not avail himself of the opportunity to file any reply by the deadline of 17 August 2022, or at any time.

6.  This matter was originally fixed to be heard on 23 August 2022. But, shortly before that date, the Applicant informed the Court that he had an outstanding Legal Aid appeal relating to his intended receipt of Legal Aid for the purposes of these proceedings. As that appeal had been fixed to be heard on 1 December 2022, I vacated the fixed hearing and re-fixed it for 30 December 2022. The Legal Aid appeal was indeed heard on 1 December 2022, and it was dismissed due to the absence of the Applicant (as appellant in the appeal).

7.  However, on 30 December 2022, the Court received a message that the Applicant had gone to hospital and could not attend the hearing. A sick leave certificate was later received authorizing sick leave on 30 and 31 December 2022. As a result, I adjourned the hearing to 10 January 2023.

8.  But on 9 January 2023, the Applicant informed the Court that he had tested positive for Covid-19 on 6 January 2023, and so was unable to attend a hearing on 10 January 2023. As a result, I again adjourned the hearing, this time to 19 January 2023.

9.  The Applicant appeared in person.

10.  The Director was represented Mr Rex Cheung, Senior Government Counsel (who also filed the initial response and skeleton submissions for the hearing).

B.  Background Facts

11.  The Applicant is a Pakistani national born on 16 May 1989.

12.  On 31 August 2020, the Applicant married a Hong Kong permanent resident (“Ms Shakoor”) in Pakistan.

13.  On the basis of the marriage, and with the sponsorship of Ms Shakoor, the Applicant applied for a dependant visa, which application was approved.

14.  The Applicant came to Hong Kong on 9 March 2012, and was permitted to remain as a dependant of Ms Shakoor with a limit of stay up to 9 March 2013. The dependant visa was subsequently extended three times. The last occasion of extension was on 13 December 2017, when the limit of stay was extended to 20 October 2019. All extensions of stay were granted on the basis that the marriage and Ms Shakoor’s sponsorship subsisted.

15.  However, by letter to the Immigration Department (“ImmD”) dated 20 July 2018, Ms Shakoor attached a Divorce Certificate issued by the relevant Pakistani authority, and informed ImmD that she would not sponsor the Applicant’s further application for extension of stay of the dependant visa, because she and the Applicant had divorced with effect from 5 January 2018.

16.  Before the limit of stay expired on 21 October 2019, the Applicant had resided in Hong Kong for more than seven years. However, he did not claim Hong Kong permanent resident status under paragraph 2(d) of Schedule 1 to the Ordinance, and he did not submit any application for verification of eligibility for permanent identity card (“VEPIC”) before the limit of stay expired. He also did not apply for extension of his dependant visa before its expiry.

17.  As a result, the Applicant has been overstaying since 21 October 2019. That also means that the Applicant shall not be treated as ordinarily resident in Hong Kong under section 2(4)(a)(ii) of the Ordinance.

18.  On 24 December 2019, the Applicant submitted (1) an application for extension of stay (for residence as a dependant) and (2) an application for VEPIC.

19.  On 31 March 2020, the Applicant’s VEPIC application was refused by the Director, as the Applicant was not able to meet the requirement of having ordinarily resided in Hong Kong for a continuous period of not less than 7 years under paragraph 2(d) of Schedule 1 to the Ordinance. This is because paragraph 1(4)(b) of Schedule 1 to the Ordinance provides that for the purpose of calculating the continuous period of 7 years in which a person under paragraph 2(d) 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 the HKSAR. In the Applicant’s case, his period of ordinary residence immediately before his VEPIC application had been broken, where (as stated above) section 2(4)(a)(ii) of the Ordinance provides that 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.

20.  It can be pointed out within the chronology of events that the Applicant was convicted on his own guilty plea on 28 September 2020 of the offence of breach of condition of stay by overstaying contrary to section 41 of the Ordnance, for which he was sentenced to 12 days’ imprisonment suspended for 12 months.

21.  This also means that the Applicant (1) does not enjoy the right of abode; (2) does not have the right to land; and (3) does not have permission to remain in Hong Kong after 21 October 2019.

22.  On 15 January 2021, ImmD refused the Applicant’s application for extension of stay, because he had lost Ms Shakoor’s sponsorship and his application fell outside the immigration policy on dependant visa and also because there were no extenuating or humanitarian grounds warranting departure from the policy.

23.  On 27 January 2021, the Applicant lodged an objection to the Director’s refusal of his application for extension of stay under section 53 of the Ordinance. On 4 April 2022, the Secretary for Security informed the Applicant that the section 53 objection was considered by the Chief Executive in Council, and it was ordered that the Director’s refusal of his application for extension of stay should be confirmed.

24.  On the same date, an application for the Removal Order was made against the Applicant under section 19(1)(b)(ii) of the Ordinance, on the basis that he had contravened his condition of stay by overstaying. The Removal Order was made on 11 April 2022.

25.  On 20 April 2022, the Applicant lodged the RO Appeal against the Removal Order, relying on compassionate grounds, namely that: (1) he is illiterate and has no knowledge as to how to handle documentation; (2) he had applied for renewal of his passport before he applied for VEPIC, which was mistake as he would have been eligible for obtaining a permanent identity card in March 2019 if he had not been illiterate and lacked relevant knowledge; (3) he was hard-working; (4) he had lived in Hong Kong in the last 10 years and had fully adapted to Hong Kong lifestyle and its environment.

26.  Indeed, it can be noted that the Applicant and his legal representative submitted various compassionate or humanitarian grounds during the application for extension of stay, the VEPIC application, the section 53 objection and the appeal to the Tribunal.

27.  As already indicated, on 7 June 2022, the Tribunal dismissed the RO Appeal without a hearing, on the basis that the Tribunal was satisfied that the factual matters on which the Applicant relied were not matters which would entitle him to succeed on the RO Appeal.

C.  No Grounds of Intended Challenge

28.  The Form 86 does specify certain substantive relief sought by the Applicant, namely an order to quash the Removal Order, and to suspend/rescind the Removal Order. However, no intended grounds of review are identified in either the Form 86 or the Applicant’s affirmation filed on 8 July 2022.

29.  This is 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.

30.  At the hearing, the Applicant sought to emphasise that he is absolutely illiterate, to the extent of not being able even properly to write his own name. He also sought to explain that he was late in seeking a visa extension as a result of the need to obtain a renewed passport after his previous passport had expired. He thought – and suggested that he had been told – that because he had lived in Hong Kong for more than seven years he would get an extended visa. But, because he is illiterate, and does not understand documents, he made a mistake and did not apply in time.

31.  The submissions are similar to those made to the Tribunal (see above), but they also do not reveal any intended grounds for a public law challenge to the making or upholding of the Removal Order.

D.  No Basis for Grant of Leave

32.  In any event, I also agree with Mr Cheung that the Applicant does not have any reasonably arguable grounds against a decision made by the Tribunal refusing the RO Appeal, or against the Removal Order itself.

33.  First, there has been no error of law. The Applicant was not eligible for extension of stay under the relevant immigration policy once Ms Shakoor and he had divorced and Ms Shakoor withdrew her sponsorship. Nor could the Applicant meet the requirement of being ordinarily resident in Hong Kong continuously for not less than 7 years. The Applicant has no permission to stay, no right of abode and no right to land in Hong Kong. In the circumstances, it was perfectly open to the Tribunal – as a matter of law, under section 53C of the Ordinance – to take the view that it was satisfied that the factual matters on which the Applicant relied were not matters which would entitle him to succeed on the RO Appeal.

34.  Secondly, there was no procedural unfairness. The Applicant was legally represented and knows why his application for extension of stay was not approved. The Applicant made written representations and lodged the section 53 objection. His circumstances and reasons against removal were taken into account by the Director and by the Tribunal.

35.  Thirdly, there was also no procedural irregularity.

36.  Lastly, there was no Wednesbury unreasonableness. The Director clearly took into account all relevant considerations, and no irrelevant considerations, when making the decision to issue the Removal Order. Further, although there is no legal duty for the Director to have taken into account any humanitarian or compassionate considerations, the Director did carefully consider the circumstances in respect of the Applicant before concluding that there were no powerful a strong humanitarian grounds or exceptional circumstances to justify the Applicant’s remaining in Hong Kong outside the immigration policy. Nor is there anything to suggest that, in determining the RO Appeal, the Tribunal was in any way Wednesbury unreasonable.

37.  I expressly acknowledge the various points made by the Applicant, such as that his problems have been caused or compounded by being illiterate, that he was legally resident in Hong Kong for more than 7 years, that he has been law-abiding and paying tax, and that he has applied to Court seeking help and a “just decision”. Some persons might view the decision as perhaps harsh. But, this Court does not sit in the role of primary decision-maker, and those various points have been presented to and considered by the primary decision-makers in this case. The Court will interfere only if there are public law grounds for doing so.

E.  Result

38.  Here, because there are no reasonably arguable grounds for review with any reasonable prospect of success – and, indeed, no grounds at all are really advanced – the Applicant’s application for leave to apply for judicial review must be dismissed. I dismiss it.

39.  As to costs, Mr Cheung submits that costs should follow the event, and that the Court should summarily assess the costs which should be ordered to be payable by the Applicant to the Director. The sum put forward in the Statement of Costs totals $66,381.

40.  However, in the broad exercise of my discretion on costs, I will make no order as to costs.