Thapa Dipak v. Permanent Secretary for Security

HCAL 482/2022

[2022] HKCFI 2473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 482 OF 2022

____________________

____________________

Before:  Hon Coleman J in Court

Date of Hearing:  28 September 2022

Date of Decision: 28 September 2022

_____________

D E C I S I O N

_____________

A.   Introduction

1.By his Form 86 dated 13 May 2022, but issued on 15 June 2022, the Applicant seeks leave to apply for judicial review against the decision of the Permanent Secretary for Security (“PS for S”) to issue a Deportation Order for life against the Applicant on 24 November 2021.

2.No intended grounds of review are identified on the Form 86.  The application is supported by the Applicant’s affirmation, which simply states:

My family father and mother Hong Kong Resident that is why I want to stay in Hong Kong

3.On 7 July 2022, I directed the PS for S and the Director of Immigration (“Director”) to file an initial response.  That was filed on 22 July 2022, together with certain relevant documents.  The initial response opposes the Applicant’s application on the basis that (a) there are no proposed grounds for judicial review which are reasonably arguable, and (b) the application was made out of time and the Applicant has made no application for extending time.  I also fixed a hearing for 12 August 2022.

4.At that hearing, the Applicant appeared in person and asked for an adjournment in light of the fact that he had three days beforehand applied for legal aid.  The Court had not received notification of such an application.  Notwithstanding the lateness of the application, I felt it apt to adjourn the matter to a further hearing, which I fixed for 27 September 2022.  Ultimately, the hearing had to be slipped to today, 28 September 2022.

5.At today’s hearing, the Applicant asked for a further adjournment on the basis that he understood that a letter was coming to him from the Legal Aid Department, though he does not know what it will say.  I refused any further adjournment, because the 42-day stay triggered by the making of the legal aid application has elapsed, and I saw no other materials or information as would persuade me that any further adjournment is appropriate.  In that consideration, I have also taken into account my view of the merits (see below).

6.The Secretary and the Director have been represented by Ms Hikki Wong, Senior Government Counsel, who with a short skeleton argument essentially relied on those matters set out in the initial response.

7.This is my Decision.

B.   Relevant Background

B.1    HKPR Status

8.The Applicant is a Nepalese national, born in Nepal, though his father and mother are Hong Kong permanent residents (“HKPR”). He was born on 31 May 1996, and is now 26 years of age.

9.The Applicant entered Hong Kong on 10 December 2005.  He submitted an application for Verification of Eligibility for Permanent Identity Card in the same month.  The Applicant was verified to be a HKPR immediately before 1 July 1997, under paragraph 2(a) of the now repealed (but as was then in force) Schedule 1 to the Immigration Ordinance Cap 115 (“Ordinance”). 

10.However, the Applicant had not satisfied the conditions under paragraph 6(1) of Schedule 1 to the Ordinance, and did not become a HKPR of the Hong Kong Special Administrative Region.  Nonetheless, as a former HKPR, he had a right to land in Hong Kong.

11.In 2008, 2015 and 2016, the Applicant registered and was issued with a Hong Kong identity card.  It seems that, during each of the Applicant’s applications for registration, he declared that he had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

12.The Applicant has in any event not acquired HKPR status, and he does not enjoy right of abode in Hong Kong.

B.2    Conviction

13.On 18 December 2019, the Applicant was charged with one count of robbery, which charge is punishable with imprisonment for not less than two years.

14.On 26 June 2020, the Applicant was convicted on that charge and was sentenced to imprisonment for a period of three years and five months.

B.3    Deportation Order

15.On 11 December 2020, the Applicant was served with a Notice of Consideration of Deportation.  The Applicant objected to the proposed deportation on the ground that his family members were living in Hong Kong.  By his written representation dated 15 December 2020, the Applicant stated that he had been living in Hong Kong for 15 years and that all his family members were in Hong Kong.

16.On 16 December 2020, the Applicant’s father was interviewed by the Immigration Department (“ImmD”).  The father also objected to the proposed deportation order against the Applicant, and submitted a letter stating that the Applicant’s parents and sisters were living in Hong Kong and that there was no one to look after him in Nepal.

17.On 17 November 2021, the Director made an application to the Secretary for Security for a deportation order for life against the Applicant, on the ground that the Applicant’s continued presence in Hong Kong was undesirable.  On 24 November 2021, the PS for S made the Deportation Order, under section 20(1)(a) of the Ordinance.  The Deportation Order was served on the Applicant on 6 December 2021.

C.   No Merit in Application

18.As already stated above, neither the Form 86 nor the affirmation filed in support of it advanced any ground for judicial review.  No public law error or failure of any kind is sought to be identified.  Even at today’s hearing, when asked whether he had anything further to say on the substance of his application, the Applicant stated that he did not.  Of itself, that is fatal to an application for leave to apply for judicial review.

19.In any event, I do not see any public law error, Wednesbury unreasonableness or other procedural impropriety in reaching the decision to issue the Deportation Order. 

20.The PS for S is vested with the statutory power under section 20(1)(a) of the Ordinance to issue a deportation order against a person if that person is not a HKPR and has been found guilty of an offence punishable with imprisonment for not less than two years.  The Applicant is not a HKPR, and he has been found guilty of an offence punishable with imprisonment for not less than two years.

21.Prior to the making of the Deportation Order, the Applicant was given opportunity to make representations about whether such an order should be made, which representations were taken into account together with all other relevant facts and circumstances of the case available to the PS for S at the time.

22.Further, it is well-established that there is no legal requirement for the PS for S take into account any family, compassionate or humanitarian considerations when deciding whether or not to make a deportation order.  But, if the PS for S does take such matters into consideration, the weight to be given to them is a matter for the PS for S, subject only to Wednesbury unreasonableness.  In this case, the internal minutes identify that the PS for S has taken into account the Applicant’s family connections and his lengthy presence in Hong Kong.  The PS for S noted that on the one hand that the Deportation Order, if made, may deprive the Applicant of proximity to his family members in Hong Kong.  However, it was noted that family members would be free to visit or reunite with the Applicant outside Hong Kong.  On the other hand, it was considered that the offence committed by the Applicant was serious in nature and that it would not be in the public interest to allow him to remain in or come to Hong Kong again.

23.The internal minute also again noted the family connections in Hong Kong and the Applicant’s period of living in Hong Kong. However, it was further noted that as an able-bodied adult of Nepalese origin, he should not have any undue hardship in re-establishing himself in Nepal, where he had been brought up and lived for years before coming to Hong Kong. Immigration records also indicated that the Applicant’s younger sister is residing in Nepal.

24.I do not think those considerations, all the weight which has been given to them in the consideration whether or not to make the Deportation Order are arguably Wednesbury unreasonable.  Nor are there any other reasonable arguments for review with any reasonable prospect of success.

D.   Delay

25.In addition, there is the problem of the significant delay in the making of the application.

26.It is trite that an application for leave to apply for judicial review should be issued as soon as possible and in any event within three months of the date of the decision sought to be challenged.  In this case, the relevant decision was the making of the Deportation Order in late November 2021, served on the Applicant on 6 December 2021.  The Form 86 was issued only more than 6 months after that date.

27.There is no explanation for the delay, nor even any application for an extension of time. 

28.This is a separate and free-standing reason capable of leading to the refusal of the application.

E.   Result

29.In the circumstances, the Applicant’s application for leave to apply for judicial review is refused.

30.I make no order as to costs.

The applicant, acting in person

Ms Hikki Wong, Senior Government Counsel, of the Department of Justice, for the putative respondent and the putative interested party