Islam Raja Rais v. Director of Immigration

HCMP 881/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 881OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 75 of 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 22 March 2017, Au J refused to grant leave to the Applicant to apply for judicial review in respect of the decision of the Director of Immigration rejecting his application for extension of stay in Hong Kong. The decision of the Director was made on 31 July 2014 and there had been request for reconsideration. After reconsideration, the Director maintained the previous decision and informed the Applicant’s solicitors on 9 June 2015. His solicitors then petitioned to the Chief Executive against that decision. The petition was processed as a petition under article 48(13) of the Basic Law. By a letter of 3 March 2017, on behalf of the Chief Executive, the Secretary for Security informed the Applicant through his solicitors that the decision of the Director was upheld. The Applicant issued his Form 86 on 14 March 2017.

2.According to the Form 86, the ground relied upon by the Applicant was that he had been in Hong Kong since 2009[1] on the basis of a dependant’s visa with his father as his sponsor.  His father passed away in June 2013 and the Director refused to permit his brother (who was a Hong Kong permanent resident) to be substituted as the sponsor for his dependant’s visa and his application for extension of stay was refused.

3.Au J refused to grant leave for the following reasons set out in the CALL-1 form:

“ 2. It is now well established that (a) if a foreign applicant's application for permission to enter and reside in Hong Kong does not fall within any of the recognised categories for entry visa as formulated under the relevant immigration policy, the Director of Immigration (“Director”) has a residual discretion to consider (but he is not obliged to so consider) whether to grant the permission on exceptional humanitarian and compassionate grounds, and (b) if the Director does go on to consider that ground, the court in judicial review will give a wide margin of discretion to the Director's decision made under this consideration, and will not lightly interfere the Director's said decision on Wednesbury unreasonable basis (i.e., that the decision is one that no reasonable person in the position of the Director would have made). See: BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at paragraphs 92 and 102-111.

3. In the present case, it is clear that the applicant's application for permission to remain in Hong Kong did not fall within (a) the dependant visa category as sibling relationship is not a recognised relationship eligible to support a dependant visa application under that policy, and (b) the employment visa category as clearly he does not possess such special skills as required under that policy to be eligible for consideration.  In the premises, all that remained was for the Director to consider whether there were such exceptional humanitarian and compassionate circumstances to justify a departure from the prevailing immigration policy and grant him a permission.  The Director decided there were not and refused to exercise his residual discretion in favour of the applicant.  Bearing in mind the above quoted approach and principle laid down in BI,  and taking into account the overall strict immigration control in Hong Kong as well as the Director's basis of the considerations as repeated at paragraph 12 of his comments made to the Chief Executive, the decision made by the Director that there were no exceptional compassionate circumstances in the applicant's case is clearly one that is reasonably open to him to make.  In any respect, that cannot be said to be a conclusion that is so irrational that no reasonable person in the Director's position would have made. 

4. For these reasons, the intended judicial review is not reasonably arguable with a realistic prospect of success.  The leave application must thus be refused.”

4.According to Order 53 Rule 3(4), the Applicant had 14 days to appeal against the decision of Au J.  He did not do so.  The time expired on 5 April 2017.

5.He took out the summons for extension of time to appeal against the decision of Au J on 13 April 2017.  

6.Though the delay was not very long, it is established that this Court must consider the following factors in processing an application for extension of time to appeal, see Ma Wah Yan v Dharma Realm Buddhist Association Inc CACV 179 of 2016, 2 March 2017:

(a)   Length of delay;

(b)   Explanation for delay;

(c)   Merits of the intended appeal;

(d)   Prejudice to the other party.

7.As we said above, the delay was not long. Accounting for the delay, the Applicant said in an exhibit to his affirmation of 13 April 2017 that he did not receive the letter on time due to a mistake in the address and he had to collect the letter in person from the High Court. 

8.By letter, we take it that the Applicant referred to the letter of 22 March 2017 by which the CALL-1 form and sealed order refusing leave was sent to him by the court.  According to the records of the Court of First Instance, the letter was sent by post to the address given by the Applicant in his Form 86.  The letter was returned by the Post Office because that address (as given by the Applicant) was incomplete. 

9.The Applicant did not explain why he gave an incomplete address in his Form 86.  It is the duty of a litigant to give a proper address for service in the Form 86.  Thus, the delay occasioned by the improper address given by him is attributable to his own fault.

10.In any event, the main difficulty in this application is the lack of merits in the Applicant’s intended appeal.  In support of the present application for extension of time, he simply repeated his ground which had been considered by Au J.  We cannot see any error on the part of Au J in his reasons for refusing leave set out above.

11.The Applicant has been overstaying since 25 January 2014.  Giving him an opportunity to pursue a hopeless appeal only delay the process.  To that extent, there would be prejudice to the putative respondent in terms of the effective and timely enforcement of the immigration policy.

12.For these reasons, we refuse to grant any extension of time and the summons of 13 April 2017 is dismissed. 

The applicant acting in person