KHAN ADNAN v. DIRECTOR OF IMMIGRATION DEPARTMENT

HCAL 1999/2024

[2024] HKCFI 3184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1999 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the brother of Khan Zahfran, who made an almost identical application in HCAL 1855/2024, based on almost the identical factual circumstances as are now put forward by the Applicant in this application.

2.  I dismissed that previous application by my Decision dated 23 October 2024 [2024] HKCFI 2973 (“Previous Decision”).

3.  Nevertheless, now by Form 86 dated 4 November 2024, the Applicant seeks leave to apply for judicial review so as to challenge the decision (in effect, the same decision, albeit as regards a different person) dated 16 March 2017 (“Decision”) of the Director of Immigration (“Director”) also not to grant the Applicant an extension of stay in Hong Kong as a claimed dependant of his father.

4.  There is no request for an oral hearing made in the Form 86.  Having considered the application, and the papers filed with it, including the affirmation of the Applicant dated 18 October 2024 (which is for all material purposes identical to the affirmation filed by the brother in HCAL 1855/2024), I am satisfied that it is appropriate to deal with this matter on the papers.

5.  This is my decision.

B.  The Application

6.  As with the previous application made by his brother, the Applicant seeks permission to challenge the Director’s Decision made more than 7½ years ago.  However, the original decision to decline to permit the Applicant to remain in Hong Kong on a dependant visa was made as long ago as 15 May 2011, more than 13 years ago.

7.  Essentially, as is apparent from the relevant exchange of correspondence, the dependant visa extension requests made by the Applicant and his brother were dealt with together.  Hence, the relevant chronology relating to that passage of time can be found summarised in my Previous Decision, and will not be fully rehearsed again here.  The following summary will suffice.

8.  The Applicant was originally granted a dependant visa by the Director, and later a first extension of stay for three years.  But a second extension of stay was refused, and the Applicant’s limit of stay expired on 15 May 2011.  Various requests for reconsideration were then made.  The decision sought to be challenged in these proceedings (i.e. the Decision) was to decline reconsideration of the previous refusal decisions, a decision made by letter dated 16 March 2017.

9.  The Decision letter was sent to the address specifically notified for receipt of future correspondence.  Though that may have been the residential address of the solicitor (as the Applicant claims), it was an address given in a letter co-signed by the Applicant himself.

C.  Merits

10.  The Applicant says in his affirmation that extension of stay application should have been approved on the documents and information he provided.  But, the Court does not decide the underlying question giving rise to the decision the subject matter of the intended challenge, but focuses on the integrity of the decision-making process.  No public law error has been identified.

11.  In any event, the application is years out of time, and there is no such good reason shown in this case for an extension of time.  The offered explanation for the delay in seeking to challenge that Decision is the same as was put forward by the brother, which I rejected in my Previous Decision.  First, the delay is enormous.  The original decision refusing the extension of stay was made more than 13 years ago.  The subsequent reconsideration led to a further refusal in 2014, around 10 years ago.  The actual Decision the subject matter of the intended challenge was made more than 7½ years ago.  The Applicant was arrested for overstaying in October 2023, and it still took another year before he made this application.  He also delayed even beyond the making of the application that led to my Previous Decision, and filed the application after I had dismissed that application by my Previous Decision.  The explanation offered for the delay does not justify that delay.

12.  Further, there is nothing on the papers provided to show that the Director has failed to take into account the materials which were provided for the purposes of considering the original request for the extension of stay, and the subsequent requests for reconsideration of the refusal of that original request.  The merits of the intended challenge are weak.

13.  To permit an intended challenge after such a lengthy passage of time also seems to me to be obviously prejudicial to the proper administration of immigration matters conducted through the decisions of the Director.

D.  Result

14.  In the above circumstances, and balancing them, I see no proper basis to exercise the discretion to extend the time within which to bring the intended challenge.

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