Kamran Javid v. Permanent Secretary for Security

CACV 250/2023, [2026] HKCA 415

On Appeal From [2025] HKCA 731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 250 OF 2023

(ON APPEAL FROM HCAL NO 592 OF 2023)

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BETWEEN

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. INTRODUCTION

1.By a Notice of Motion, the applicant (now acting in person)  seeks leave to appeal to the Court of Final Appeal (“the CFA”)  against the judgment of this court dated 6 August 2025 ([2025] HKCA 731)  (“the CA Judgment”).

2.By the CA Judgment, we dismissed the appeal against the judgment of Coleman J (“the Judge”)  dated 31 July 2023, by which the Judge dismissed the applicant’s leave application to apply for judicial review ([2023] HKCFI 1944)  (“the CFI Judgment”)  to challenge the PS’s decisions in refusing his renewed application to have his deportation order (“the DO”)  rescinded/suspended or shortened for a specified period.

3.The long historical and procedural facts (involving the applicant’s repeated judicial review applications regarding his various applications to have the DO rescinded or suspended)  leading to this appeal and the issues arising therein[1], as well as this court’s reasons for dismissing the appeal, are set out in the CA Judgment.  We will not repeat them here.

4.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions and reply submissions respectively on 16 September 2025 and 29 September 2025 in support of this application.  The PS also lodged written submissions on 22 September 2025 opposing the application.

5.After reviewing the papers before us, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

6.In this judgment, unless otherwise stated, we would adopt the abbreviations used in the CA Judgment.

B.  THE APPLICATION FOR LEAVE TO APPEAL TO THE CFA

7.Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  (“the HKCFAO”), this court may grant leave to appeal to the CFA if the question involved in the intended appeal is one of great general or public importance, or otherwise, that ought to be submitted to the CFA for decision.

8.The applicant relies on six intended grounds of appeal in his Notice of Motion and written submissions, which can be summarised as follows:

(1)  The applicant submits that the PS in making the Decisions[2] had plainly failed to apply the consistency principle that like cases should be treated alike (as his circumstances have now been reverted to the same as before given the Divorce).  The Judge had erred in law in construing and limiting this principle to only situations where “two different persons making applications on similar facts”[3].  This court in upholding this part of the Judge’s reasoning therefore had also failed to properly apply the principle of consistency in public decision making.  This is a point of law of great general or public importance (“Ground 1”);

(2)  The PS failed to properly and distinctly consider his separate express request for shortening the DO to a limited period, which was made under section 20(5)  of the Immigration Ordinance (Cap 115).  This amounted to procedural irregularity and the court was wrong to hold otherwise (“Ground 2”);

(3)  In wrongly concluding that the PS was entitled to rely on the increase in the children’s respective ages at the time of the Request in her compassionate consideration as a basis to reject his application, the court had misapplied the “best interest of the child” principle.  This is so as the said increase in the children’s respective ages at the time of the Request (respectively at 9, 11 and 13)  should not and did not weaken the compassionate grounds for relief.  In this respect, the applicant relied on various authorities to support his contentions[4] (“Ground 3”);

(4)  As shown by the CFI Judgment at [73], it is evident that the PS had failed to properly consider the matter before making her decision, as the PS submitted to the Judge through counsel that his application was refused as the PS was of the view that “enough is enough”.  This indicated a closed mindset and that the PS had fettered her discretion.  The court had plainly erred in holding otherwise (“Ground 4”);

(5)  The Judge’s holding (and agreed by this court)  that the PS’s decisions to reject his application were not irrational as it was reasonable for the PS to have regard to the children’s then ages (then aged 9, 11 and 13)  amounted to saying that the children at those ages no longer needed their father.  This is clearly contrary to logic and public policy and was irrational (“Ground 5”); and

(6)  The PS had in her consideration failed to take into account the relevant factors of his long-term residence, rehabilitation and deep roots in Hong Kong, and the court was therefore wrong to uphold her decisions (“Ground 6”).

9.In our view, the applicant’s application for leave to appeal to the CFA is plainly devoid of merit.

10.First, his grounds of appeal and supporting contentions are essentially a regurgitation of those submissions his leading counsel had previously made before this court in the appeal[5], which we have already considered and rejected with detailed reasons: see [27] - [54] of the CA Judgment.  It is well established that the court will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed in the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  Clearly, his submissions do not constitute proper grounds of appeal.

11.Second, taking the applicant’s contentions at their highest, they remain fact-specific and do not relate to any question of great general or public importance.  For these reasons alone, his application should be dismissed.

12.Third and in any event, we are of the view that all the intended grounds of appeal are without any arguable merits:

(1)  Insofar as Ground 1 is concerned, as we have noted at [36] - [42] of the CA Judgment, given that there were material differences between the factual/personal circumstances at the time of the Previous Decisions and time of the Request, whether the Judge had erred in law as alleged by restricting the requirement for consistency in public decision-making only to situations where “two different persons make similar applications on similar facts” is irrelevant.  In any event, we further also held at [47] of the CA Judgment that, when the CFI Judgment was properly read, the Judge did not so limit the consistency principle as contended.  Other than simply repeating the arguments, the applicant has not shown why we are wrong in these reasons.  Hence, the dismissal of this argument in the appeal does not raise a “novel and important question” of the application of principle of consistency as contended by the applicant.

(2)  Insofar as Grounds 2 and 4 are concerned, as we explained at [52] of the CA Judgment, a request to “shorten” the DO was effectively an application to have it terminated within a specified period.  If the PS had refused to suspend or rescind the DO (which is for life), she must have also impliedly refused to shorten it in the circumstances.  In any event, as we have further observed at [53] of the CA Judgement, the Judge was also plainly correct to hold that it would be futile and academic to remit the matter back to PS for reconsideration given the 2^nd Decision as it was certain that she would refuse that application.

(3)  Grounds 3, 5 and 6 all relate to the children’s ages and compassionate consideration of the applicant’s circumstances.  In essence, the crux of his submissions all boils down to a challenge against the weight the PS had placed in her consideration on those factors[6].  As we have stated at [39] of the CA Judgment, how much weight the PS should place on the age factor of the children in assessing whether sufficient exceptional humanitarian and compassionate circumstances were made out was entirely a matter for the PS.  In the present case, as shown from the M1, the PS after taking into consideration all the relevant factors, including the material ages of the children at the time of the Request, as well as all the representations made by the applicant (including his family ties in Hong Kong and his individual circumstances), it was plainly open to the PS to decide that there were no sufficient exceptional compassionate circumstances to support rescinding or suspending the DO.  In this respect, the authorities relied upon by the applicant in support of his contentions relate to the relevant authority’s exercise of discretion in the factual circumstances specific to each of those cases and therefore do not assist him.

13.For all the above reasons, the intended appeal is without any merit and the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.The Notice of Motion is accordingly dismissed.

15.We see no reason why costs should not follow the event.  We therefore order on a nisi basis that the applicant do pay the costs of the PS, to be assessed summarily.

16.In this respect, we have considered the Statement of Costs filed by the PS’s legal representatives on 22 September 2025 seeking a sum of HK$48,200.  We consider that the costs sought by the PS’s legal representatives are just and reasonable.  We therefore order also on a nisi basis that the costs of the PS be summarily assessed at HK$48,200.

17.Unless any of the parties applies to vary them by summons, the costs order and the assessment nisi shall become absolute 14 days from today.

Written submission by the Applicant, acting in person

Written submissions by Mr Felix Lee, Senior Government Counsel (Ag)  of Department of Justice, for the Putative Respondent