SHAHZAD HAMID v. IMMIGRATION TRIBUNAL AND ANOTHER

HCAL 593/2022

[2023] HKCFI 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 593 OF 2022

________________________

________________

______________

D E C I S I O N

______________

A.  Introduction

1.  By my Decision dated 20 January 2023, [2023] HKCFI 210, I refused the Applicant’s application for 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.  I set out the background matters giving rise to the application in §§ 11-27 of my Decision, and they need not be repeated here. I would merely note that, since the Decision on 20 January 2023, various steps have been taken to seek to remove the Applicant to Pakistan. However, in short, the Applicant has refused to leave and claimed to have no knowledge of the repatriation arrangements made, notwithstanding that he had been informed and reminded of them. His release on recognizance was stopped on 7 March 2023, and he was detained under section 32(3A) of the Immigration Ordinance pending removal.

3.  I dismissed the application for leave to apply for judicial review for reasons including, first, that there were no intended grounds of review identified in either the Form 86 or the Applicant’s affirmation filed on 8 July 2022. As I pointed out, this was 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.

4.  In any event, I also held that the Applicant did not have any reasonably arguable grounds against a decision made by the Tribunal refusing the RO Appeal, or against the Removal Order itself. I held that has been no error of law, no procedural unfairness, nor Wednesbury unreasonableness.

5.  The Decision was given the day after the oral hearing of the application. Time for any intended appeal expired under Order 53 rule 3(4) on 3 February 2023.

6.  Now, by summons dated 1 March 2023 – namely 26 days late – the Applicant seeks an extension of time to file and serve the Notice of Appeal within 28 days from the date of any order to be made herein, and leave to appeal against the Decision. He also seeks leave to amend his Form 86 and to file a supplemental affirmation in support, within the same 28-day period.

7.  I heard the argument at an oral hearing on 19 April 2023, and adjourned the matter to today (21 April 2023) to consider my decision and to deliver it orally, so that there could be no doubt that the Applicant would have heard the decision aloud – rather than being forced to have a written decision explained to him, when he is illiterate.

8.  The Applicant appeared in person with the benefit of a Punjabi/English interpreter. However, at the hearing, the Applicant produced written submissions signed by Counsel (perhaps on the basis that solicitors and Counsel might be instructed to conduct the hearing). However, in the absence of any solicitor or Counsel, I informed the Applicant that I would treat the written submission as being from him, albeit that he was obviously assisted.

9.  The putative respondents were represented by Mr Thomas Tong, Government Counsel.

10.  This is my Decision.

B.  The Application and Proposed Amendments

11.  In his supporting affirmation, the Applicant identifies the grounds in support of his application as being that: (1) his delay in filing the intended appeal is not serious; (2) he is illiterate and not legally represented, and has taken time to gather the resources for hiring a lawyer; (3) the intended appeal has strong grounds, where he alleges that there are errors of law and Wednesbury unreasonableness; and (4) the delay would not cause prejudice to the putative respondents.

12.  The draft Notice of Appeal exhibited to the affirmation sets out the following five grounds of intended appeal, being that the learned Judge erred:

(1)  in taking into account the Applicant’s previous criminal conviction in arriving at the Decision;

(2)  in applying section 2(4)(a)(ii) of the Immigration Ordinance to the present case;

(3)  in concluding that there had been no Wednesbury unreasonableness in the Immigration Tribunal’s decision dated 7 June 2022;

(4)  in deciding that the usual requirement of that for the purpose of calculating the continuous period of 7 years in which a person under paragraph 2(d) of Schedule 1 of the Immigration Ordinance 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 HKSAR; and

(5)  in unreasonably following the Director of Immigration’s initial response dated 2 August 2022.

13.  It is trite that when considering whether or not to extend time for an appeal against a decision refusing leave to apply for judicial review, the Court will have regard to the overall circumstances including (1) the length of delay, (2) the reasons for the delay; (3) the prospect of success of the intended appeal, and (4) the prejudice to the putative respondent if the extension of time is granted.

14.  I accept that the length of the delay in this case is not particularly long, and there is some explanation offered – essentially that the Applicant is illiterate and it took some time for him to arrange some form of legal representation, which appears to have been obtained by 22 February 2023, and the application was made to me within a week thereafter. The legal assistance obtained is, of course, reflected in the written submission used by the Applicant at the hearing.

15.  However, naturally, if there is no prospect of success of the intended appeal, then the other matters would seem to be of lesser weight or importance in the discretionary mix.

16.  In this case, it seems to me that there is no prospect of success on the intended appeal by reference to the Form 86 which put forward the application which was decided by my Decision. This is, not least, because it did not in fact put forward any proper intended public law grounds of review. On that basis, notwithstanding that the delay is not the most significant, and that the Applicant’s personal circumstances go some way to explain it, there really is no purpose in extending time.

17.  Nevertheless, the Applicant actually wants to pursue an appeal based upon his proposed amendments. Therefore, perhaps the next question which arises is to whether or not I now have the power to permit an amendment of the Form 86, notwithstanding that I have dismissed the application made by that Form 86, following the oral hearing of argument on it.

18.  This point was not addressed in the written submission. However, Order 53 specifically provides that the Court can allow amendment of the Form 86 at the leave hearing or at the substantive hearing: see Order 53 rules 3(6) and 6(2). However, Order 53 rule 3(6) is expressly made subject to the more general powers to amend under Order 20 rule 8 which allows the Court to order amendment of pleading or any other document “at any stage of the proceedings”. This means that the Court may allow amendment before, or at, or after the trial, or even of the judgment or on appeal: see Hong Kong Civil Procedure 2023, §20/8/9.

19.  It is often said that, as a general rule, however late the amendment is sought to be made, it should be allowed if it will not do the opposing party some injury or prejudice him in some way that cannot be compensated for by costs or otherwise. But obviously the later an amendment application is taken out, the more likely that the delay will prejudice the opponent and the more reluctant the Court will be in allowing the amendment. Indeed, it is now commonly recognised that delay itself may be sufficient for refusing a proposed amendment. Further, whilst the Court still retains the power to allow the amendment even after judgment has been handed down, such power should only be exercised in exceptional circumstances. This is particularly the case after the implementation of the Civil Justice Reform: see Hong Kong Civil Procedure 2023, §20/8/9, 14A.

20.  I have already handed down judgment on 20 January 2023 and clearly the Applicant cannot rely on Order 53 rule 3(6) or rule 6(2). But I am aware that no order has been yet sealed and so strictly this Court is therefore not yet functus officio. As a result, this Court still retains jurisdiction to allow the amendment application under Order 20 rule 8, if it is appropriate to do so.

21.  But, in this case, and in the exercise of my discretion, I do not think it is appropriate to do so. First, I do not see any significant merit in the proposed amended grounds:

(1)  The first proposed ground appears misconceived, as reference was only made to the criminal conviction to identify that it confirmed that the Applicant had illegally remained in Hong Kong for a period of time following the expiry of his last permission to stay.

(2)  The second proposed ground does not identify the basis of the alleged error in applying section 2(4)(a)(ii) of the Immigration Ordinance, except to identify that a person who is in contravention of a condition of stay shall not be treated as ordinarily resident, which seems to me to apply to the Applicant once he remained beyond his permission to stay. I note the written submission suggests that section 2(4)(a)(ii) has penal implications and so should not apply to the Applicant since he dealt openly with the Immigration Department when he submitted his application for extension of stay and application for verification of eligibility for permanent identity card. But I am not sure why open dealing with a government department should lead to disapplication of the applicable law or regulation.

(3)  The third proposed ground in effect merely suggests that I was wrong not to say that the Immigration Tribunal was wrong. The written submission merely adds that the Director should take into account humanitarian or compassionate considerations. But that does not seem to me to identify a public law error.

(4)  The fourth proposed ground merely recites the wording of the paragraph in the Schedule. The written submission seeks to address the meaning of the word “immediately”, and to suggest on the facts that the Applicant had been ordinarily (lawfully) resident for the necessary period “immediately” before his VEPIC application. The criminal conviction shows otherwise.

(5)  The fifth proposed ground appears to be simply a criticism of the Court for accepting the Director’s submissions, as opposed to the Applicant’s.

22.  Secondly, it seems to me that if there is to be any appeal by reference to any amended Form 86, it is a matter for the Court of Appeal to decide whether to allow any amendment, and if so what amendment.

23.  For similar reasons to those dealing with the amendment point above, unless the Court of Appeal does allow any amendment, the Form 86 will remain as it was when I gave my Decision, and it seems to me to be unlikely that the Court of Appeal would grant any extension of time for an appeal (though, of course, that is ultimately a matter for the Court of Appeal itself).

24.  In short, the matter of any extension of time is tied closely to any grant of leave to amend the Form 86. In the exercise of my discretion, I refuse both aspects of the application.

25.  I do not think I need address the point about prejudice to the putative respondents.

26.  I make no order as to costs.

The applicant, acting in person

The 1^st putative respondent was excused from court attendance

Mr Thomas Tong, Government Counsel, of the Department of Justice, for the 2^nd putative respondent

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

________________________

________________________

______________

D E C I S I O N

______________

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.

The applicant, acting in person

The 1^st putative respondent was excused from court attendance

Mr Rex Cheung, Senior Government Counsel, of the Department of Justice, for the 2^nd putative respondent