Case Detail

HCAL 447/2022

[2022] HKCFI 3805

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 447 OF 2022

________________________

BETWEEN
	MOKTAN BIJAY BAHADUR	Applicant
	and
	PERMANENT SECRETARY	Putative
	FOR SECURITY	Respondent

________________________

Before:

Hon Coleman J in Court

Dates of Hearing:	21 December 2022
Date of Decision:	21 December 2022

_____________

D E C I S I O N

_____________

A. Introduction

1. By his Form 86 dated 8 June 2022, the Applicant sought leave to apply for judicial review to challenge the Deportation Order made against him by the Permanent Secretary for Security (“PS for S”) on 16 August 2019. The Form 86 asked for a hearing of the application, if leave to apply for judicial review was not granted on the papers. That hearing took place on 8 August 2022.

2. At that hearing, the Applicant appeared in person, and the PS for S was represented by Mr Sunny Li, Senior Government Counsel.

3. At the end of that hearing, I gave my decision (“Leave Decision”), delivered orally and reduced into writing the same day, [2022] HKCFI 2452. In short, I dismissed the application for leave to apply for judicial review on the basis that it was fatally out of time and because the two grounds of review advanced were in any event without merit.

4. Now, by summons dated 3 November 2022, the Applicant applies for an extension of time to appeal from the Leave Decision. The summons simply states (sic) (all capitals in original):

I GET THE HIGH COURT DECISION BUT AFTER THE LIMITATION TIME PASSED. I WANT TO APPEAL. PLEASE GIVE ME TIME TO CHANCE TO APPEAL.

5. The summons is supported by an affirmation of the same date, in which the Applicant again suggests he got the Leave Decision after time passed, and which exhibits the Grounds of Review originally put forward by him (and which I rejected in my Leave Decision as having no merit).

6. However, the Applicant (who acts in person) has failed to appear at the hearing today.

B. Refusal of Extension of Time

7. Where the Applicant has failed to come to Court to pursue his application, it stands to be dismissed for that reason. Nevertheless, for completeness I would state that the application would fail in any event.

8. The only reason put forward by the Applicant for seeking the extension of time to appeal is his suggestion that he only received the Leave Decision after the time within which he might have appealed had passed. There is clearly no merit at all in that suggestion.

9. First, the Applicant was actually present in Court when the Leave Decision was announced/delivered orally (and he had the benefit of an interpreter available to him). Therefore, on the very day of the hearing, the Applicant knew that his application for leave to apply for judicial review had been dismissed and why it had been dismissed.

10. Secondly, the Applicant has not identified the date when he says he received the Leave Decision (if he means the written decision which was subsequently sent to him). But, I note from the Court file that a copy of the Leave Decision was sent to him by post (to the address provided by him for service) later on the same date as the hearing, namely 8 August 2022.

11. Thirdly, the Applicant has offered no explanation for the passage of time between the (unspecified) date when he says he received the Leave Decision and 3 November 2022, the date of the present summons seeking the extension of time to appeal.

12. In any event, I see no purpose in granting an extension of time to appeal when there is no identified merit in the intended appeal. The Applicant has simply repeated (by the exhibit to his affirmation) the points he made when seeking leave to apply for judicial review, including putting forward the two grounds which simply made no chronological sense, as was explained in the Leave Decision.

C. Result

13. The Applicant’s application for an extension of time within which to appeal against my Leave Decision dated 8 August 2022 is dismissed.

(Russell Coleman)
Judge of the Court of First Instance
High Court

The applicant, acting in person, did not appear

HCAL 447/2022

[2022] HKCFI 2452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 447 OF 2022

________________________

BETWEEN

	MOKTAN BIJAY BAHADUR	Applicant
	and
	PERMANENT SECRETARY	Putative
	FOR SECURITY	Respondent

________________________

Before:

Hon Coleman J in Court

Dates of Hearing:	8 August 2022
Date of Decision:	8 August 2022

______________

D E C I S I O N

______________

A. Introduction

1. By his Form 86 dated 8 June 2022, the Applicant seeks leave to apply for judicial review to challenge the Deportation Order made against him by the Permanent Secretary for Security (“P for S”) on 16 August 2019.

2. The Form 86 asks for a hearing of the application, if leave to apply for judicial review is not granted on the papers. This hearing has been fixed for that purpose, by my directions given on 13 June 2022. However, recently, the Court received a Memorandum dated 1 August 2022 from the Director of Legal Aid, giving notice that an application for legal aid had been made by the Applicant. In the particular circumstances of this case, it seemed to me to be appropriate to lift the automatic stay that was triggered, so that the hearing would go ahead at the time and on the date fixed.

3. At the hearing this morning, the Applicant has appeared in person. The PS for S has been represented by Mr Sunny Li, Senior Government Counsel.

4. At the hearing this morning, the Applicant requested a stay or adjournment so that he might continue his application for legal aid, in the hope that he might obtain a lawyer to help him in presenting his case. However, in the circumstances, it seemed to me that the hearing should go ahead.

5. Having heard the points made by the Applicant orally, and by reference to the materials provided by Mr Li, this is my Decision.

B. Background to the Application

6. The Applicant is a Nepalese national, aged 30. He arrived in Hong Kong as a visitor on 27 April 2013, and was granted permission to remain until 4 May 2013. However, the Applicant did not depart Hong Kong and has overstayed since then. He was first arrested for overstaying on 16 August 2015.

7. Whilst he made a claim for non-refoulement protection on 21 September 2015, that claim was finally determined against him by 23 October 2018 (following the Court of Appeal’s dismissal of an appeal against the refusal of leave to apply for judicial review to challenge the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office).

8. On 1 October 2018, the Applicant was convicted of the offence of taking employment in prohibition of section 38AA of the Immigration Ordinance Cap 115 (“Ordinance”), and he was sentenced to 15 months’ imprisonment.

9. On 28 January 2019 and 4 March 2019, the Applicant was served with a Notice of Consideration of Deportation. Following his objection, a revised Notice of Consideration of Deportation was provided to him on 19 July 2019. He made no further representations, despite the request to provide any which he might have.

10. On 6 August 2019, the Director of Immigration made an application to the Secretary for Security for a Deportation Order against the Applicant, on the ground that his continued presence in Hong Kong was undesirable. After consideration, the Deportation Order was made on 16 August 2019, pursuant to section 20(1)(a) of the Ordinance.

11. On 27 July 2019, the Applicant had been detained in CIC Detention, and the Deportation Order was served on him on 28 August 2019. The Applicant was released on recognizance on 21 November 2019.

12. On 12 May 2020, the Applicant filed a claim against the Secretary for Justice (“SJ”) on behalf of the Immigration Department, for unlawful detention on the grounds of procedural irregularity and lack of expeditiousness in procedure. A case management conference in those proceedings has been set down for 2 September 2022.

13. On 15 December 2021, the Applicant married Ms Pun Bal Kumari, a Hong Kong permanent resident. The Applicant says that she has a stable job, they live together, and she is quite capable of supporting him financially as they wait to begin a family. At the hearing this morning, the Applicant has emphasised that his marriage is a real, and not a sham, marriage.

C. Intended Grounds of Review

14. In his Form 86, the Applicant identifies two proposed grounds of unreasonableness and procedural impropriety, being:

(1) The Applicant is married to a Hong Kong resident, has a stable family life, and has lived in Hong Kong now since 2013. Although the Applicant was convicted of unlawful employment, he has committed no crime since and will not now he is happily married and has a wife and family to support him. So, it would be unreasonable to deport him in view of these facts.
(2) The proceedings against the SJ are still to be heard, and the substantive hearing will likely not be held until 2023. So, in the circumstances, it would be unjust to deport him until the conclusion of that case.

D. No Merits in Application

15. The Applicant’s delay in bringing these proceedings is substantial. It is trite that an application for leave to apply for judicial review should be brought as soon as possible, and in any event within three months of the decision sought to be challenged. These proceedings seek to challenge a decision made almost 34 months before the proceedings were commenced. There is no application for, let alone any offered explanation for, the significant delay. Of itself, in the circumstances of this case, that is fatal to the intended application.

16. In any event, in order to obtain leave to apply for judicial review, the Applicant must identify arguable grounds for review, with reasonable prospects of success. But, it is plain that neither of the proposed grounds can satisfy that threshold.

17. The first ground makes no chronological sense. The Applicant’s marriage in December 2021 could not have been a relevant factor or consideration in the decision whether or not to make a deportation order in December 2019. In any event, it is well established that an immigrant’s family circumstances do not give him or her any substantive right in immigration, and at most would constitute a compassionate consideration (as to which the weight to be given, if any, would fall to be decided by the decision-maker).

18. The second ground also makes no chronological sense. The Applicant’s commencement of proceedings in September 2020 could not have been a relevant factor or consideration in the decision whether or not to make a deportation order in December 2019. Further, and in any event, the Applicant’s damages claim is not a factor which is legally required to be taken into account when considering whether or not to grant a deportation order under section 20 of the Ordinance.

19. As Mr Li also points out, it is well established that the proposed deportation of the Applicant is not of itself a formal bar to pursuing an action in the Hong Kong courts, and would not prevent the Applicant from continuing to pursue the civil claim.

20. Lastly, it might be pointed out that if the Applicant suggests that there has been a substantial change of circumstances since the Deportation Order was made against him – so that a different view should be taken now as to the desirability or otherwise of his remaining in Hong Kong – these proceedings are not the way to deal with that. In essence, I do not think the Applicant is making the right complaint, by these proceedings.

E. Lifting the Stay, and the Result

21. It is in the above circumstances that it seemed to me, in the exercise of my discretion, that it was appropriate to lift the automatic stay triggered by the Applicant’s application for legal aid and to go ahead with the hearing this morning. It is difficult to imagine that the application for a certificate of legal aid in these proceedings might find favourable consideration, and delaying the hearing which was fixed almost 2 months ago has no benefit.

22. In any event, the Applicant’s application for leave to apply for judicial review is substantially out of time and has no merit. The application is dismissed.

23. I make no order as to costs.

(Russell Coleman)
Judge of the Court of First Instance
High Court

The applicant, acting in person

Mr Sunny Li, Senior Government Counsel, of the Department of Justice, for the putative respondent

MOKTAN BIJAY BAHADUR v. PERMANENT SECRETARY FOR SECURITY

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