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HCAL 2496/2020
[2022] HKCFI 1953
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2496 of 2020
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Motahar Hossen, alias Titu,
alias Monir Ali, alias Ali Monir |
Applicant |
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and
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Secretary for Security
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
Notification of the Judge’s decision (Ord. 53 r. 3)
Following;
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consideration of the documents only; or |
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consideration of the documents and oral submissions by the Applicant in open court; |
Order by The Honourable Mr. Justice Wilson Chan:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
A. Introduction
1.This is an application for leave to apply for judicial review (“Leave Application”) against the decision of the Secretary for Security (“Secretary”) to issue a deportation order (“DO”) for life against the Applicant on 19 July 1999 (“Decision”).
2.Based on the available information before the Secretary and the Director of Immigration (“Director”) and for the reasons set out in Part C below, the Secretary and the Director take the view that the Leave Application should be refused on the basis that:
(1) The proposed judicial review is not reasonably arguable; and
(2) The Leave Application was made out of time and the Applicant has not made any application for extending time.
B. Case Background
3.The material facts relevant to the present proceedings are summarised as follows:
(1) The Applicant is a Bangladeshi national who entered Hong Kong on strength of a Bangladesh passport in the name of TITU (Date of birth: 30 August 1966) on 6 September 1996 as visitor and was permitted to stay until 6 December 1996. The Applicant however did not depart Hong Kong by the limit of stay as required and overstayed.
(2) On 5 April 1999, the Applicant intended to depart Hong Kong on strength of a Bangladesh passport in the name of MONIR ALI (Date of birth: 6 July 1969). The Applicant was intercepted by an immigration officer upon immigration departure clearance as the authenticity of the said passport was in doubt. Investigation revealed that the said Bangladeshi passport was an unlawfully obtained travel document bearing false personal particulars.
The Deportation Order
(3) On 7 April 1999, the Applicant was charged for (i) breach of condition of stay contrary to section 41 of the Immigration Ordinance (Cap 115) (“IO”); (ii) using an unlawfully obtained travel document for the purpose of Part II of the IO contrary to section 42(2)(b) of the IO; and (iii) making a false representation to an Immigration Assistant lawfully acting under or in the execution of Part II of the IO contrary to section 42(1)(a) of the IO. All of the said charges are punishable with imprisonment for not less than 2 years. On 8 April 1999, the Applicant was convicted of the said charges and was sentenced to a total of 8 months’ imprisonment.
(4) Pursuant to section 20(1) of the IO and section 63 of the Interpretation and General Clause Ordinance (Cap 1), inter alia, the Secretary is vested with the delegated statutory power to make a DO against an immigrant if the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years, or if the Secretary deems it to be conducive to the public good.
(5) On 20 April 1999, the Applicant was served with the Notice of Consideration of Deportation and he indicated that he had no objection against deportation.
(6) On 12 July 1999, the Director made an application to the Secretary for a DO for life against the Applicant on the ground that the Applicant’s continued presence in Hong Kong was undesirable.
(7) On 19 July 1999, the Secretary made a DO for life against the Applicant under section 20(1)(a) of the IO, ie that the Applicant had been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years. The said DO was served on the Applicant on 17 September 1999 and the Applicant was deported to Dhaka, Bangladesh on the same day.
The Applicant’s re-entry to Hong Kong
(8) On 5 July 2014, the Applicant entered Hong Kong on strength of a Bangladesh passport in the name of HOSSEIN MOTHAR (Date of birth: 26 March 1971) and departed for the Mainland on 19 July 2014. On 21 July 2014, the Applicant entered Hong Kong on strength of the same passport in the same identity. He was permitted to stay as visitor with a limit of stay until 4 August 2014. He however did not depart Hong Kong as requested and overstayed.
(9) On 4 September 2014, the Applicant surrendered himself to the Immigration Department (“ImmD”). On 15 October 2014, the Applicant submitted his written signification for lodging a non-refoulement claim. On 27 October 2017, the Director refused the Applicant’s non-refoulment claim. The Applicant’s appeal against the said refusal decision was dismissed by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO”) on 6 July 2018. The Applicant applied for leave to apply for judicial review against TCAB/NCPO’s said decision but he failed at both the Court of First Instance and the Court of Appeal, and his application for leave to appeal to the Court of Final Appeal was refused on 14 October 2020.
(10) On 30 June 2017, the Applicant was arrested for (i) 2 charges of breach of deportation order contrary to section 41(1)(a) of the IO; and (ii) breach of condition of stay contrary to section 41 of the IO. The case (case number STCC 2486/2017) has previously been adjourned pending determination of the Applicant’s non-refoulement claim, and has been further adjourned to 17 May 2021 pending the result of the Leave Application.
(11) On 2 December 2019, the Secretary received written representations from the Applicant requesting for cancellation of the DO made against him. The said request is pending determination by the Secretary.
(12) On 24 December 2020, the Applicant made the Leave Application challenging the Decision.
C. Consideration by the Court
4.The Secretary and the Director submit that the Leave Application should be refused because (i) the proposed judicial review is not reasonably arguable; and (ii) in any event, the Leave Application was made out of time and no application has been made to extend time for making the Leave Application.
Proposed judicial review not reasonably arguable
5.In the Applicant’s Notice of application for leave to apply for judicial review (“Form 86”) and affirmation, the Applicant indicated that he wished to challenge the DO of 17 September 1999 made against him[1] but failed to set out any particulars on his grounds for judicial review.
6.Where deportation is warranted because an immigrant has committed a criminal offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime. Deportation is triggered because the territory has decided that it no longer welcomes that particular visitor, wants him/her to leave, and does not want him/her as a visitor again.
7.The Applicant has not pointed out any error of law in respect of the Decision. In the present case, the Applicant has been found guilty in Hong Kong of offences punishable with imprisonment for not less than 2 years. The Secretary is vested with the statutory power under section 20(1)(a) the IO to make the Decision and the DO is legally in order.
8.There is also no procedural impropriety in reaching the Decision and the Decision is not Wednesbury unreasonable. The Applicant had been invited to make representation regarding the intended application for DO against him, and he clearly stated that he had no objection towards deportation. The Decision was made by the Secretary after taking into account all relevant facts and circumstances of the Applicant’s case, including the Applicant’s said representation.
9.In the light of the above, I agree that the Applicant’s proposed application for judicial review is not reasonably arguable and the Leave Application should be refused.
Leave application was made out of time
10.Moreover, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.[2]
11.Given that the subject DO was made on 19 July 1999 and the Leave Application was only made on 24 December 2020, the Leave Application was made grossly out of time with no reasons given by the Applicant to explain the delay.
D. Conclusion
12.For the reasons set out above, the Applicant’s application for leave to apply for judicial review is refused.
Dated the 28th day of June, 2022.
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( Yoyo KIANG )
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 28 June 2022
Motahar Hossen
alias Titu, alias Monir
Ali, alias Ali Monir
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 June 2022
Secretary for Security
The Putative Respondent
Ref.: HCAL 2496/20
Director of Immigration
The Putative Interested Party
Ref.: HCAL 2496/20
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] In fact, the DO was made on 19 July 1999, and served on the Applicant on 17 September 1999.
[2] Order 53 rule 4 of the Rules of the High Court, Cap 4A. See also Re Thomas Lai [2014] 6 HKC 1 where the Court set out the principle to be applied in considering application for leave to apply for judicial review made out of time.
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