Hussain Idris v. Director of Immigration
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HCAL 1073/2026 [2026] HKCFI 4668 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1073 OF 2026 ________________________
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__________________ D E C I S I O N __________________ A. Introduction 1.This matter was fixed for hearing on 21 August 2026. Extremely belatedly, the Applicant has sought to withdraw his application for leave to apply for judicial review, with no order as to costs, and for the hearing to be vacated. That is unopposed by the Putative Respondent (“Director”). However, though that is the order I shall make, it seems to me appropriate to give a reasoned decision nonetheless. 2.The facts giving rise to this application are straightforward:
3.The procedural history of these proceedings is also straightforward:
4.As the Applicant has now withdrawn the application, broadly on terms which are substantially agreed and which I can accept, the hearing as fixed has been vacated. 5.However, as already indicated, in the overall circumstances it seems to me to be appropriate for there to be a reasoned Decision. B. The Application Has Become Academic 6.The only intended target of the proceedings identified in the Form 86 was the Impugned Decision, namely the requirement for the Applicant to leave Hong Kong on or before 12 June 2026, notwithstanding his Reconsideration Request. All of the intended relief sought in the Form 86 related to not requiring the Applicant to leave Hong Kong pending determination of the Reconsideration Request. 7.Nevertheless, because the Reconsideration Request had been been determined and refused, and the Applicant did not leave Hong Kong in the period pending its determination, the relief sought in these proceedings was simply overtaken by events. The issue of whether the Applicant should depart, or whether the requirement for his departure should be suspended or postponed pending determination of the Reconsideration Request, plainly became entirely academic. 8.That pointed strongly to the dismissal of the application. 9.Further, there were no circumstances pointing in the opposite direction. I accept Mr Tong’s submission made in the Initial Response that there are no issues raised by the Form 86, where analysis of the intended grounds of review would serve any utility. In any event, even a brief review of those grounds would indicate that they have no reasonably arguable merit. 10.The Applicant’s Petition to the CEIC is, and was always, also entirely irrelevant to the matters raised in these proceedings by the Form 86. 11.Therefore, but for the tardy withdrawal, I would have dismissed the application for leave to apply for judicial review. C. Amenability 12.Further, as I previously held in in my decision in Limbu v Director of Immigration [2026] HKCFI 1948 at §31, a decision of the nature of the Impugned Decision is at least strongly arguably not a decision amenable to judicial review. 13.The Applicant’s permission to remain in Hong Kong expired on 17 May 2026. Neither the making of the original extension of stay application nor the making of the Reconsideration Request changed the position that the Applicant remained in Hong Kong unlawfully as from 18 May 2026. Neither application conferred any extension of stay or any right to remain in Hong Kong. 14.A person who is in Hong Kong unlawfully is required to depart from Hong Kong. It seems to be necessary to reiterate that making a request for deferral of the requirement of departure does not confer any extension of stay or right to remain in Hong Kong. Refusal of that request simply reasserts the consequences of the continued absence of permission to remain, and the continued failure to have departed. By refusing to defer departure, the Director did not create or change any existing right or entitlement previously existing. In essence, the Director was telling the Applicant again that he had no permission to stay in Hong Kong and that he needed to leave, and informed him of the possible consequences if she failed to leave. D. Result 15.These proceedings became entirely academic on 24 July 2026. For that reason alone, the Applicant’s application for leave to apply for judicial review fell to be dismissed. In any event, the application had no merit, and I do not think the Impugned Decision was even amenable to judicial review in this case. However, as the Applicant has sought to withdraw the application, and that approach is not opposed by the Director, I grant leave to the Applicant to withdraw the application. 16.I have vacated the hearing fixed for 21 August 2026. The other directions order sought by the Applicant in his letter (see above) are unnecessary and inappropriate and I refuse them. 17.As to costs, whilst I recognise that the application was made ex parte in accordance with the rules, the Applicant made the express request that there be an oral hearing if the Court were not minded to grant leave on the papers alone. As my directions given to bring the matter to an oral hearing made clear, the Director was likely to incur costs in providing an initial response, and in attendance at the hearing. Further, where the Applicant had been warned of the fact that the proceedings had likely become academic, the decision not to withdraw them when invited to do so – at least not before the deadline set for the provision of an initial response – is what resulted in the incidence of costs incurred for the Director. Those are circumstances which seem to me would justify, in the exercise of my discretion, an order that the Applicant bear the Director’s costs of these proceedings, to be summarily assessed. Nevertheless, the Applicant’s suggested no order as to costs has not been objected to by the Director. Therefore, but only for that reason, I make no order as to costs.
The applicant, acting in person Mr Andrew Tong, and Ms Lynn Hui, both Acting Senior Government Counsel of the Department of Justice, for the putative respondent | ||||||||||||||||||
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