MOHAMMED JAQUB BALOCH v. DIRECTOR OF IMMIGRATION

HCAL 2066/2023

[2024] HKCFI 1496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2066 OF 2023

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D E C I S I O N

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A. Introduction

1.  By his Form 86 dated 21 November 2023, the Applicant seeks leave to apply for judicial review so as to challenge the decision made by the Director of Immigration (“Director”)  regarding his application for verification of eligibility for permanent identity card in 2003 (“1^st VEPIC Application”).

2.  It is to be noted that the subsequent VEPIC applications made by the Applicant in 2007, 2016 and 2023 (“2^nd, 3^rd and 4^th VEPIC Applications” respectively), all assessed by the Director as the Applicant being ineligible for Hong Kong permanent resident (“HKPR”)  status, are not the subject of the present application.

3.  By my various directions given in January, February and March 2024, I gave leave to the Putative Respondent to file an Initial Response to the application by 5 February 2024 (extended to 26 February 2024 and further extended to 14 March 2024), and leave to the Applicant to file a Reply to that Initial Response by 26 February 2024 (extended to 5 April 2024).  The Applicant made an application for legal aid on 1 February 2024 (hence some of the timetable slippage).  My directions also indicated that I would decide after receiving those documents whether to deal with the application for leave to apply for judicial review on paper, and if so that I would proceed to do so without further notice to the parties.

4.  The Initial Response dated 14 March 2024 was served by Ms Kristy Tse, Government Counsel of the Department of Justice, for the Putative Respondent.  In short, the position of the Putative Respondent is that leave for judicial review should be refused on various bases. No Reply was filed by the Applicant.

5.  Having reviewed the materials, I am satisfied that it is appropriate to deal with this application on the papers.

6.  This is my Decision.

B.  Background

7.  This case comes about against the following factual background, much of which has been helpfully summarised in the Initial Response.

8.  The Applicant is a national of Pakistan and the Philippines. He was born in the Philippines in January 1998 to a Pakistani father and a Filipino mother.  On 18 October 1995, at the age of 7, he entered Hong Kong as a visitor on the strength of his Filipino passport.

9.  On 19 April 1996, a dependant visa was granted to the Applicant for joining his father in Hong Kong, who was already a HKPR and had the right of custody over the Applicant.  Thereafter, the Applicant was allowed to stay as a dependant by approval of his applications for extension of stay in Hong Kong until 19 April 2006.

10.  On 21 July 2003, on behalf of the Applicant, the Applicant’s father made the 1^st VEPIC Application.  Due to the failure of the Applicant’s father and the Applicant in replying to the Immigration Department (“ImmD”)’s requests for supplementary documents, the 1^st VEPIC Application was treated as cancelled on 29 October 2003.

11.  The Applicant was convicted of criminal offences and was given sentences of Training Centre Detention Orders from 10 August 2005 to 16 February 2007.  He did not apply for an extension of stay prior to the expiry of the then limit of stay on 19 April 2006, and therefore overstayed in Hong Kong.  In early 2007, he made an application for extension of stay, which was approved for allowing him to remain as a dependant of his father until 21 March 2011.

12.  On 31 March 2007, the Applicant made another application for VEPIC (“2^nd VEPIC Application”), which was rejected on 25 July 2007.

13.  The Applicant was then convicted of various criminal offences and was given different terms of imprisonment.  On 18 May 2012, in considering whether a deportation order (“DO”)  should be issued against the Applicant due to his deportable offence conviction, an internal assessment was conducted by ImmD on the eligibility of the Applicant for HKPR status.  It was determined that the Applicant did not satisfy the requirements for HKPR status. The Director administered a warning letter to the Applicant on 5 June 2012.

14.  The Applicant did not apply for any further extension of stay prior to the expiry of the then limit of stay on 22 March 2011, and as a  result overstayed in Hong Kong.  In 2012, after his late father passed away, he made an application for extension of stay on his own merits and was permitted to stay in Hong Kong until 11 April 2014.  This was the Applicant’s last application for extension of stay.  Since 12 April 2014, he has overstayed in Hong Kong.

15.  In view of the Applicant’s conviction of deportable offences, a DO was issued against him on 3 February 2016. Pursuant to section 20(7)  of the Immigration Ordinance Cap 115 (“Ordinance”), the DO invalidated any permission or authority to land or remain in Hong Kong given to the Applicant before the DO was made or while it is in force.  The Applicant objected to the DO served on him.

16.  The Applicant submitted another VEPIC application on 12 February 2016 (“3^rd VEPIC Application”), which was rejected on 8 March 2017.

17.  On 16 February 2016, the Applicant lodged a non-refoulement claim (“NRC”)  and claimed that he intended to apply for a judicial review against the DO.  On behalf of the Applicant, Messrs Yip & Liu requested for suspension and/or rescission of the DO on 17, 22 and 29 February 2016 respectively.  The Applicant was released on recognizance on 11 March 2016.

18.  After retrieval of the personal records of the Applicant from ImmD on 8 July 2016, Messrs Yip & Liu made an enquiry with ImmD on 3 November 2016 about the Applicant’s 1^st VEPIC Application.

19.  On 24 April 2017, the Applicant withdrew his NRC.  He withdrew his request for suspension and/rescission of the DO on 16 June 2017.  He did not report for recognizance in October 2017. Until being arrested by the Police on 24 December 2020, he went underground for more than 3 years.  On 20 September 2023, he was released from the prison and has been detained since then.  On 3 October 2023, he stated his grounds against deportation and requested to cancel the DO against him.  He made a request on 5 October 2023 for re-opening his NRC, which was rejected on 19 December 2023.

20.  The Applicant made another VEPIC application on 30 October 2023 (“4^th VEPIC Application”), which was rejected on 19 December 2023.

21.  On 21 November 2023, the Applicant made an application for a writ of Habeas Corpus against his immigration detention.  The application was dismissed by DHCJ Jonathan Wong on 12 January 2024: Mohammed Jaqub Baloch v Director of Immigration [2024] HKCFI 176. The Applicant filed a Notice of Appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office on 27 December 2023 against the refusal of his NRC re-open request, which was subsequently withdrawn by him on 20 February 2024.

22.  The Applicant was deported back to the Philippines on 7 March 2024.

C.  The Statutory Provisions Engaged

23.  Before turning to deal with the intended Grounds of review, it is appropriate to set out the relevant statutory provisions engaged as regards the acquisition of HKPR status by a person not of Chinese nationality.

24.  A person who is within one of the categories as set out in §2 of Schedule 1 (“Schedule”)  to the Ordinance is a HKPR.  The category relevant to the present application is §2(d)  of the Schedule, which stipulates that:

(d)  A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.

25.  §1(4)(b)  of the Schedule deals with calculation of the continuous period of 7 years of ordinary residence, as follows:

(4)  For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years—

…

(b)  for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.

(emphasis added)

26.  To establish permanent residence under §2(d)  of the Schedule, §3(1)  of the Schedule stipulates that:

(1)  For the purposes of paragraph 2(d), the person is  required—

(a)  to furnish information that the Director reasonably   requires to satisfy him that the person has taken Hong Kong as his place of permanent residence. The information may include the following—

(i)  whether he has habitual residence in Hong Kong;

(ii)  whether the principal members of his family (spouse and minor children)  are in Hong Kong;

(iii)  whether he has a reasonable means of income to support himself and his family;

(iv)  whether he has paid his taxes in accordance with the law;

(b)  to make a declaration in the form the Director stipulates that he has taken Hong Kong as his place of permanent residence; the declaration for a person under the age of 21 years must be made by one of his parents or by a legal guardian; and

(c)  to be settled in Hong Kong at the time of the declaration.

(emphasis added)

27.  A person claiming to have HKPR status under §2(d)  of the Schedule acquires HKPR status only if he files an application to the Director and obtains the approval of the latter, pursuant to §3(2)  of the Schedule which provides that:

(2)  A person claiming to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d)  does not have the status of a permanent resident in the Hong Kong Special Administrative Region until he has applied to the Director and the application has been approved by the Director.

28.  A person shall not be treated as ordinarily residing in Hong Kong during any period in which he remains in Hong Kong in contravention of any condition of stay or any period of imprisonment or detention, as stipulated in section 2(4)  of the Ordinance as follows:

(4)  For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong—

(a)  during any period in which he remains in Hong Kong—

…

(ii)  in contravention of any condition of stay; or

…

(b)  during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.

D.  Proposed Grounds of Review

29.  It is trite that in an application for leave to apply for judicial review, the applicant needs properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong.  This is a mandatory requirement of RHC Order 53 rule 3(2)(a), and a failure to comply with that rule is itself a reason to refuse leave to apply for judicial review.  As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant.

30.  Although not clearly identified in his Form 86 and Affirmation dated 14 November 2023 (filed on 21 November 2023)  (“Affirmation”), the Applicant’s allegations are apparently discernible and could be summarised as follows:

(1)  The Applicant and his late father did not receive ImmD’s letters dated 31 July 2003 (“1^st Letter”), 29 August 2003 (“2^nd Letter”)  and 29 September 2003 (“3^rd Letter”)  (collectively “Letters”)  during the 1^st VEPIC Application.  But, the Applicant claimed, he had fulfilled all the requirements as stated in §2(d)  of the Schedule.  Had the three letters been received, he would have been a HKPR since 2003.

(2)  ImmD had breached its duty by failing (a) to locate the Applicant and/or his late father, (b) to use the “Registered” mail service to contact them, and (c) to call them in respect of the outstanding documents.

E.  Whether Undue Delay in Making Application

31.  The Applicant needs an extension of time.  In the Affirmation, the Applicant did not provide any explanation for the delay and ground for application for an extension of time.

32.  In my decision in Titan Petrochemicals Group Ltd v The Stock Exchange of Hong Kong Ltd [2023] HKCFI 2935 at §§50-58, I addressed the relevant principles relating to the question of promptness and delay.  The starting point is that RHC Order 53 rule 4(1)  – which rule is headed “Delay in applying for relief” – imposes an obligation on an applicant by requiring that the application for leave to apply for judicial review shall be:

made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

33.  Filing an application within three months is not in and of itself sufficient to satisfy the requirement of promptitude.  Absent an extension granted by the Court upon good reason, the three-month period is merely a long-stop period – or a quantified default time limit – applicable to all cases.  Public law decisions typically affect a broad range of parties, and there is a significant public interest in ensuring that any challenges to such decisions are brought expeditiously.  Full weight must be given to all aspects of the public interest, including the respect which must be paid to the time limits laid down by the rules.

34.  But, in any event, an application made outside the three-month period will entail undue delay.

35.  The existence of good reason for any undue delay does not automatically lead to the grant of leave to apply, and is but one facet of the question whether leave to apply should be granted.  Leave may also be refused on the basis that the granting of the relief sought would be likely to cause hardship or prejudice, or be detrimental to good administration – although this conclusion might be less likely to be reached at the leave stage.

36.  Hence, an applicant commencing judicial review proceedings who has been guilty of undue delay will require an extension of time in which to apply for leave to apply for judicial review.  To justify an extension, the applicant must show “good reason” for extending the period.

37.  Where the Court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review.  Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application.  The relevant consideration is whether, on the substantive hearing, relief might or should be refused on the basis that the Court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

38.  I see the great force in Ms Tse’s submissions that:

(1)  The 3^rd Letter was sent by the Director to the Applicant as a reminder to submit the supporting documents, stating that the 1^st VEPIC Application would be treated as cancelled without further notice.  Since there was no response from the late father of the Applicant, the Director treated the 1^st VEPIC Application as cancelled on 29 October 2003.

(2)  On 25 November 2011, a Notice of Consideration of Deportation was served by the Director on the Applicant, who submitted grounds against deportation on 28 November 2011.  In considering whether a deportation order should be issued against the Applicant, ImmD conducted a review of the Applicant’s HKPR status on 18 May 2012. It was assessed that he was not eligible for the HKPR status under §2(d)  of the Schedule.  ImmD sent a warning letter, stating clearly that the Applicant has no right to remain in Hong Kong, to him on 5 June 2012.

(3)  When the Applicant was served with the Notice of Consideration of Deportation on 25 November 2011 and when he received the warning letter on 5 June 2012, he must have been aware that the 1^st VEPIC Application was unsuccessful.  The Applicant could have brought the present application in around 2011 or 2012.  There was a delay of 12 years.

(4)  On 8 July 2016, ImmD provided copies of documents in the 1^st VEPIC Application to the Applicant. The very latest time began to run was on that day.  On calculation from that point in time, there was a delay of 7 years in making the present application.  The then legal representatives of the Applicant, Messrs Yip & Liu threatened judicial review application on materially the same grounds as those relied upon in the present application.

(5)  To allow an extension of time for the Applicant to make the present application would be detrimental to good administration, as a series of decisions (including the issuance of the DO, the rejection of his NRC and the decision to detain the Applicant on immigration detention)  were made on the basis that the Applicant is not a HKPR.  Seeking to revive the 1^st VEPIC Application made more than 20 years ago is another attempt by the Applicant to resist deportation, and is an abuse of process.

(6)  The present application is devoid of merit (see below).

39.  I am of the view that the Applicant has not acted promptly in all the circumstances, and is not entitled to any extension of time to bring it, which is fatal to his application.

F.  Are there Merits of Grant of Leave

40.  In any event, there are no merits in the application.  This is for a number of reasons which individually and cumulatively must result in the dismissal of the application, as follows.

F.1  Applicant’s claim that he has satisfied all requirements in §2(d)  of the Schedule

41.  Ms Tse’s submissions as set out in the Initial Response are that:

(1)  In the 1^st VEPIC Application as submitted by the late father of the Applicant on behalf of him on 21 July 2003, only the first page was completed and a signature and date were found on the fourth page.  The following documents were submitted along with the 1^st VEPIC Application:

(a)  the juvenile Hong Kong identity card of the Applicant;

(b)  extracts of the passport page with personal particulars and the extension of stay visa label issued on 13 May 2003;

(c)  a declaration of having taken Hong Kong as the only place of permanent residence signed by the late father of the Applicant, in which only a residential address was provided; and

(d)  a declaration of having the right of abode in Hong Kong signed by the late father of the Applicant.

(2)  The Applicant, being a non-Chinese national, must satisfy all three requirements to be eligible for the HKPR status under §2(d)  of the Schedule, namely (a) the entry requirement, (b) the 7-year ordinary residence requirement and (c) the permanence requirement: Prem Singh v Director of Immigration [2003] 1 HKLRD 550 at §49.

(3)  The late father of the Applicant did not provide any proof to show that the Applicant had fulfilled the 7-year ordinary residence requirement and permanence requirement.  The Applicant merely submitted a declaration of having taken Hong Kong as the only place of permanent residence, which is insufficient to prove that the Applicant has already fulfilled the permanence requirement.  The Applicant must show that his residence in Hong Kong was intended to be more than ordinary residence and that he intended and had taken action to make Hong Kong, and Hong Kong alone, his place of permanent residence: Prem Singh at §64.  It is also necessary for there to be some objective evidence of having taken Hong Kong as the permanent home of the Applicant: Gutierrez v Commissioner of Registration (2014)  17 HKCFAR 518 at §37.

(4)  The Director is entitled to ascertain whether the Applicant has the required intention and conduct to make Hong Kong alone as his place of permanent residence and to request for relevant information: Prem Singh at §58.  The Applicant bears the burden of proof.  The Director was of the view that further information was required to assess the 1^st VEPIC Application, because there was no elaboration by the late father of the Applicant on any intended or taken action to make Hong Kong as the place of permanent residence of the Applicant.

(5)  Further to the Director’s 1^st Letter acknowledging the receipt of the 1^st VEPIC Application, the 2^nd Letter was sent to the late father of the Applicant by post to ask for supporting documents to be submitted within two weeks.  As there was no response, the 3^rd Letter was sent to the late father of the Applicant as a reminder, stating that the 1^st VEPIC Application would be treated as cancelled unless there was response within two weeks from the date of the 3^rd Letter.  On 29 October 2003, the Director treated the 1^st VEPIC Application as cancelled because the late father of the Applicant did not reply to the request for supporting documents.

(6)  There was no alternative in ascertaining the required information.  Since no supplementary documents were provided, the Director did not have sufficient basis to approve the Applicant’s 1^st VEPIC Application.  The Director was never satisfied that the Applicant had ordinarily resided in Hong Kong for a continuous period of not less than 7 years and had taken Hong Kong as his place of permanent residence immediately before the 1^st VEPIC Application.

(7)  On 18 May 2012, the view of the Director was again confirmed in the assessment on the Applicant’s HKPR status for the purpose of considering the deportation proceedings, during which the 1^st VEPIC Application was duly reviewed.

(8)  No approval has been given by the Director to the 1^st VEPIC Application and the subsequent VEPIC applications in 2007, 2016 and 2023 made by the Applicant, who was never entitled to HKPR status, as stipulated in §3(2)  of the Schedule.

42.  I accept those submissions.  On the facts of the present case and looking at the correspondence between the Applicant and the Director as a whole, there is no evidence suggesting that the Director has made any error of law in the assessment of the Applicant’s 1^st VEPIC Application.  In particular, the Applicant’s late father failed to respond to the Director’s request for supplementary documents necessary for the latter’s determination of the Applicant’s claim for the HKPR status under §2(d)  of the Schedule.

43.  I see no reasonably arguable illegality, procedural unfairness and irrationality in the Director’s decision in respect of the 1^st VEPIC Application.

F.2  Alleged breach of duty of the Director

44.  The Applicant also alleges that the Director was in breach of his duty in handling the 1^st VEPIC Application.

45.  In the Initial Response, Ms Tse submitted that:

(1)  It is the duty of the Applicant to persuade the Director that he has fulfilled the requirements under §2(d)  of the Schedule for the HKPR status: Prem Singh and Gutierrez.

(2)  The Director has fulfilled his duty as follows:

(a)  There is no statutory requirement that letters in respect of VEPIC applications should be sent from the Director to applicants by registered mail service, and that ImmD officers are required to call VEPIC applicants for outstanding documents.  In the present case, reminders were already sent to the Applicant by post.

(b)  In handling VEPIC applications, the Director could not reasonably be expected to locate every applicant, send letters by registered mail service and call every VEPIC applicant for outstanding documents, which are not administratively practicable and are excessive means.

(c)  According to ImmD’s case minutes of the 1^st VEPIC Application, the records show that the Letters were sent out to the Applicant, and that there is no record of the Letters ‘bouncing back’ due to failed delivery.

(d)  It is reasonable that a VEPIC applicant will enquire for the application status if he hears nothing from ImmD or does not receive any notice of application result within a reasonable period.  There is no record that the Applicant or his father had ever enquired or followed up with ImmD on the 1^st VEPIC Application until 2016 (i.e. 13 years later).

(e)  The Applicant had made two VEPIC applications (i.e. the 2^nd and 3^rd VEPIC Applications), in which the 1^st VEPIC Application was never mentioned, before he followed up with ImmD on the 1^st VEPIC Application.  The Applicant should have known the decision of the 1^st VEPIC Application, otherwise, he would have requested to continue with the first application rather than making new applications.

(f)  The Court should not intervene merely because it considers that further inquiries would have been sensible or desirable.  It should intervene only if no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision: Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73 at §19.

46.  I accept those submissions.  On the facts of the present case as traversed above, there is no merit in the suggestion that the Director was in breach of his duty in handling the Applicant’s 1^st VEPIC Application.  Therefore, this Ground as put forward by the Applicant is not reasonably arguable with any realistic prospect of success.

G.  Result

47.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success to challenge the Director’s decision in respect of the 1^st VEPIC Application.  In any event, the application has been made many years out of time, with no basis for granting an extension of time.  Therefore, the application for leave to apply for judicial review is dismissed.

48.  As to costs, I order that the Director’s costs be payable by the Applicant, to be summarily assessed by me on paper.  The Director should provide a Statement of Costs for Summary Assessment by 11 June 2024, and the Applicant has leave to file Objections to that Statement, if any, by 28 June 2024 (a longer period than usual being allowed as the Applicant has been deported). I will then proceed to the summary assessment.