Khan Mohammad Aslam v. Director of Immigration and Another

HCAL 2094/2020

[2021] HKCFI 1601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2094 OF 2020

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BETWEEN

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Before:  Hon Chow J in Court

Date of Hearing:  3 June 2021

Date of Decision:  3 June 2021

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D E C I S I O N

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1.This is an application for judicial review of (i) the decision (“the Director’s Decision”) of the Director of Immigration (“the Director”) dated 3 September 2018 refusing to issue a HKSAR Passport to Master Khan Ali Haider, and (ii) the decision (“the Appeal Board’s Decision”) of the HKSAR Passports Appeal Board (“the Appeal Board”) dated 8 April 2020, which the Applicant only received on 29 July 2020, dismissing the Applicant’s appeal (“the Appeal”) against the Director’s Decision.

2.In the Form 86 dated 12 October 2020, the Applicant raises, inter alia, the following grounds of judicial review:

(1)  the Adjudicator of the Appeal Board acted in a procedurally unfair manner in dealing with the Appeal; and

(2)  the Appeal Board’s decision to refuse the Appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

3.Pursuant to the court’s directions given on 22 October 2020, the Director filed an Initial Response to the application for leave to apply for judicial review dated 19 January 2021.

4.On 21 January 2021, upon consideration of the Director’s Initial Response, the court directed a rolled-up of the application for leave to apply for judicial review and, if leave to apply for judicial review was granted, the substantive application for judicial review.

5.On 22 February 2021, the rolled-up hearing was fixed for 3 June 2021 (ie today).

6.On 8 March 2021, the Director filed evidence in response to the application for leave to apply for judicial review and/or the application for judicial review.

7.On 1 June 2021, the Applicant and the Director filed a Consent Summons seeking to dispose of the present proceedings.  The Consent Summons provided that (i) time be extended to the Applicant to apply for leave to apply for judicial review, and leave be granted to the Applicant to apply for judicial review, of the Director’s Decision and the Appeal Board’s Decision on the basis of the aforesaid grounds of judicial review, (ii) the Director’s Decision and the Appeal Board’s Decision be quashed, and (iii) Master Khan Ali Haider’s application for a HKSAR Passport be remitted to the Director for fresh consideration and determination.

8.Upon clarification of some queries raised by the court, the Applicant and the Director agreed, as confirmed in a letter from the Department of Justice dated 2 June 2021, that it would more appropriate to quash the Appeal Board’s Decision only and the matter should be remitted to the Appeal Board for fresh consideration and determination.

9.The court is satisfied that the proposed course of action is appropriate.

10.Accordingly, the court makes the following orders:

(1)  an extension of time be granted to the Applicant to apply for leave to apply for judicial review of the Appeal Board’s Decision;

(2)  leave be granted to the Applicant to apply for judicial review of the Appeal Board’s Decision;

(3)  an order of certiorari is granted to remove into the High Court and to quash the Appeal Board’s Decision;

(4)  the Appeal be remitted to the Appeal Board for fresh consideration and determination; and

(5)  there be no order as to the costs of these proceedings.

The Applicant, acting in person, excused on 3 June 2021

Department of Justice for the 1^st Putative Respondent, excused on 3 June 2021

The 2^nd Putative Respondent, acting in person, excused on 4 February 2021