A

HCAL 186/2023 A

B [2023] HKCFI 1046 B

IN THE HIGH COURT OF THE

C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 186 OF 2023

E E

F
BETWEEN F

MD YAZDANI Applicant
G G

and
H H

DIRECTOR OF IMMIGRATION Putative

I Respondent I

J ________________ J

K Before: Hon Coleman J in Court K

Dates of Hearing: 19 and 24 April 2023

L L
Date of Decision: 26 April 2023
M ______________ M

N
DECISION N
______________
O O
A. Introduction

P 1. The Applicant is the subject of a Deportation Order made on P

12 December 2017. He has also been staying in Hong Kong, unlawfully,

Q Q
since November 2013.
R R

2. This long period of unlawful stay had been tolerated by the

S S
Director of Immigration in the past, because the Director used to adopt a
T removal policy not to remove non-refoulement claimants as long as their T

U
non-refoulement claim (“NRC”) or any consequent judicial review U

V V
A
applications, up to the Court of Final Appeal (“CFA”) level, are still A
ongoing.
B B

3. The Applicant’s NRC was rejected by the Director in 2017,

C C
and by the Torture Claims Appeal Board/Non-refoulement Claims
D D
Petition Office (“Board”) later the same year. His judicial review leave

E
application arising from his NRC was rejected by the Court of First E
Instance (“CFI”) in 2018. The Applicant has pursued appellate
F F
proceedings in the Court of Appeal (“CA”) without success, but is still

G trying to pursue a further appeal in the CFA. G

H H
4. With effect from 7 December 2022, the Director has updated

I
the removal policy such that once an NRC has reached the stage of its I
consequent judicial review proceedings having been rejected by the CFI,
J J
the Director may proceed to remove such a claimant from Hong Kong.

K K
5. As a result, the Applicant is considered ‘removable’ under
L L
the new removal policy (albeit that would not have been the position

M under the old policy). M

N N
6. After the updating of the removal policy, the Director has

O
taken steps to remove the Applicant pursuant to the Deportation Order. O
Repatriation flights to India were arranged twice, on 12 January 2023 and
P P
on 10 February 2023. The Applicant did not board either flight.

Q Q
7. Rather, his Counsel sought a delay (see below), which led
R R
to the removal attempt on 12 January 2023 being aborted. Then, he filed

S
a Form 86 on 9 February 2023 to seek leave to apply for judicial review S
to challenge the Director’s decision to execute Deportation Order, which
T T
led to the removal attempt on 10 February 2023 being aborted.

U U

V V
A
8. I originally fixed the leave hearing for 19 April 2023. But in A
the afternoon of the day before, the Applicant, who is acting in person,
B B
called my Clerk to ask for the hearing to be postponed. He did not

C
explain why a postponement would be needed. He was told to attend the C
hearing the next morning and to make an application for adjournment if
D D
necessary. He did not appear in Court on 19 April 2023. Upon making

E contact with him by phone, it was revealed that he had gone to the E

Accident & Emergency Unit at the Pok Oi Hospital at about 9am that
F F
morning. The medical certificate he faxed to the Court later that day
G shows that he was suffering from back pain and constipation. No G

hospitalisation occurred.
H H

I 9. I directed the hearing to be adjourned to 24 April 2023, and I

made it clear to the Applicant (via my Clerk over the phone) that the
J J
hearing would proceed in his absence if he failed to appear without
K legitimate excuse. K

L L
10. The leave application was heard on 24 April 2023. The
M Director was represented by Mr Martin Ho of Counsel. The Applicant M

appeared in person with the benefit of a Hindi/English interpreter.

N N

O 11. At the hearing, the Applicant further sought an adjournment, O

of perhaps three months, on the basis that he was hoping to obtain some
P P
legal assistance from the potentially free representation offered to some
Q persons by the Hong Kong Bar Association. He also complained that he Q

had not received the Director’s initial response and the hearing bundle
R R
until 20 April 2023, though it is clear that the Applicant already had the
S necessary card to enable him to obtain the bundle from the post office. S

The Applicant also said that he needed to spend some time with the
T T

U U

V V
A
hearing bundle in order to identify what grounds he might have. I refused A
the adjournment sought, broadly on the following basis:
B B
(1) As shown by an affidavit of service, service of the initial
C response and hearing bundle had been effected by post on C

29 March 2023, to the address provided by the Applicant in

D D
his Form 86 (and which he confirmed at the hearing is still
E his address). E

(2) The suggestion that he had not been able to find the card –
F F
he suggested because of a mix-up of post boxes – allowing
G him to collect the parcel from the post office until G

20 April 2023 was unconvincing.

H H
(3) It is a requirement that the Applicant should identify his
I intended grounds of review in his Form 86, and it is I

impermissible simply to commence proceedings and hope

J J
subsequently to identify some grounds of review.
K (4) The Applicant had applied for legal aid in respect of his K

application to the CFA, but his application was rejected.

L L
(5) In fact, in any event, the Applicant had had the benefit of
M some legal advice and assistance because Counsel wrote to M

the Director by letter dated 6 January 2023 on this matter

N N
(see below).
O (6) Even then, the Counsel sought only a 3-month delay, which O

period has by now already expired.

P P
(7) By reference to the apparent merits of the application for
Q leave to apply for judicial review, the application is Q

misconceived, and (as submitted by Mr Ho) it would be an

R R
abuse to seek to obtain a de facto stay of the Deportation
S Order by use of an adjournment of these proceedings. S

(8) In any event, where the Applicant has appeared at the

T T
hearing with the benefit of an interpreter, and is able to hear
U U

V V
A the clear interpretation of the submissions made against his A
application, he was in a position to respond.
B B
(9) On any relevant balance of prejudice, and in the exercise of
C my discretion, it seemed to me clear that the adjournment C

would likely serve little purpose except to delay matters

D D
overall.

E E
12. The substantive application for leave to apply for judicial
F review therefore went ahead. Submissions were made by the Applicant, F

by Mr Ho, and by the Applicant in reply. At the conclusion of the

G G
hearing, I reserved my decision.
H H

13. This is my Decision.

I I

J B. The Applicant’s NRC J

K 14. The Applicant lodged his NRC in 2014. His claim was K

rejected by the Director in May 2017. He then appealed against the

L L
Director’s decision to the Board, which dismissed the appeal in
M September in the same year. That exhausted all the available M

administrative avenues for the Applicant to establish his claim within the
N N
what is called “Unified Screening Mechanism” (“USM”).
O O

15. The Applicant then embarked on the journey to overturn the

P P
Board’s decision by way of judicial review. In November 2017, he
Q sought leave to apply for judicial review of the Board’s decision from the Q

CFI. On 4 December 2018, the CFI refused leave: [2018] HKCFI 2208.

R R
In June 2021, namely about 2½ years later and well out of time, the
S Applicant sought leave to appeal against the CFI’s refusal. The CFI S

refused to grant any extension of time on 2 August 2021: [2021]

T T
HKCFI 2253.
U U

V V
A
16. Then the Applicant took his case to the CA. In A
September 2021, the Applicant renewed his extension of time application
B B
before the CA. On 21 March 2022, the CA refused to extend time: [2022]

C
HKCA 432. In April 2022, the Applicant applied to the CA for leave to C
appeal to the CFA. The CA rejected this application on
D D
1 December 2022: [2022] HKCA 1768.

E E
17. On 6 December 2022, the Applicant renewed his leave
F F
application before the CFA. In the same month, the CFA issued what is

G colloquially called a “Rule 7 summons”, requiring the Applicant to show G

cause by written submissions by 12 January 2023 why his application
H H
should not be dismissed. The basis of issuing the Rule 7 summons is that
I the Applicant’s leave application is considered to have disclosed no I

reasonable cause of action.

J J

K 18. At the hearing before me, the Applicant stated that he had K
not filed any submissions either by the deadline of 12 January 2023 or at
L L
all. The application to the CFA is still pending the CFA’s decision. On
M the face of it, the application is almost bound to be dismissed. M

N N
C. The Issuance of the Deportation Order
O O
19. Whilst the Applicant’s NRC or related judicial review

P
proceedings were still ongoing, he was largely allowed to live freely in P
society. However, he soon committed a series of criminal offences for
Q Q
which he was sentenced, including to terms of imprisonment, from time

R to time: R

S (1) On 8 January 2015, he was sentenced to 4 months’ S

imprisonment for wounding inflicting grievous bodily harm.
T T
(2) On 22 October 2016, he was fined HK$1,200 for theft.
U U

V V
A (3) On 4 January 2017, he was sentenced to 2 months’ A
imprisonment for possession of dangerous drugs, and two
B B
months’ imprisonment for assault occasioning actual bodily
harm, to run consecutively.
C C

(4) On 6 December 2018, he was sentenced to 6 months’

D D
imprisonment for possession of dangerous drugs, and

E
14 days’ imprisonment for assaulting a police officer, to run E
concurrently.
F F

20. Section 20(1) of the Immigration Ordinance (“Ordinance”)

G G
empowers the Chief Executive to make a deportation order against an
H immigrant if that immigrant has been found guilty in Hong Kong for an H

offence punishable with imprisonment for not less than two years; or that
I I
the Chief Executive deems it conducive to the public good to do so.
J J

21. On 12 December 2017, the Permanent Secretary for

K K
Security, exercising the power delegated from the Chief Executive, made
L the Deportation Order against the Applicant on the basis of the criminal L

offences he had committed up to that point, which are all punishable with
M M
not less than two years’ imprisonment under the law. The Deportation
N Order is not now – and realistically cannot now be – subject to challenge. N

O O
22. Section 25 provides that a person in respect of whom a
P deportation order is in force may be removed from Hong Kong. There is P

no doubt that there is power to deport or remove the Applicant from Hong
Q Q
Kong.
R R

D. The Change of Removal Policy on 7 December 2022

S S

23. Whilst the Deportation Order was issued in December 2017,

T T
the Director only made arrangements to execute it four years later, in
U U

V V
A
December 2022. A

B 24. As already mentioned, this is because of the original removal B

policy not to remove claimants whose NRC or consequent legal

C C
proceedings were still ongoing either in any of the administrative avenues
D D
or in the courts, or that the Director knew that such proceedings were

E
about to commence. The original policy was set out a paper submitted to E
the LegCo in 1999, titled “LegCo Panel on Administration of Justice and
F F
Legal Services Policy and Practice on Removal of Illegal Immigrants”.

G G
25. It is now a matter of public knowledge that it has been
H H
common that for a NRC to exhaust all the administrative and judicial

I
avenues, all the way from the Director’s decision to the CFA’s, might take I
years or even more than a decade. Some claimants will also try to
J J
resurrect their NRC, which has already been rejected by the CFA, by

K filing a ‘subsequent claim’. Hong Kong has been flooded with tens of K
thousands of claimants in the past decade who have been lingering in
L L
Hong Kong for years pending the ultimate resolution of their NRC. This
M has created an enormous workload and pressure to both the Government M

and the judicial system.

N N

O 26. As a result, the Government changed the removal policy on O

7 December 2022. The amendment and its background are set out in the
P P
paper submitted to the LegCo titled “Enhancing the Handling of Non-
Q refoulement Claims”. The policy now adopted is that the Director may Q

generally proceed with the removal from Hong Kong of unsubstantiated

R R
non-refoulement claimants, upon the CFI’s dismissal of their applications
S at either the leave stage or the substantive stage, notwithstanding there S

may be extant or contemplated appeal proceedings.

T T

U U

V V
A
27. However, it is also emphasised in the LegCo paper that A
notwithstanding the general policy, the Director will consider all the
B B
relevant circumstances of the individual cases in pursuing removal

C
operations. C

D D
28. Thus, after the new removal policy has come into effect on

E
7 December 2022, the Applicant has fallen into the category where (as a E
matter of the general position) the Director shall proceed to remove him,
F F
subject to an assessment on the individual merits of his case.

G G
E. The Execution of Deportation Order
H H
29. As stated, the Director started to take action to deport the
I Applicant in December 2022. By letter dated 30 December 2022, the I

Director informed the Applicant that a flight had been booked to

J J
repatriate him on 12 January 2023. The Applicant’s terms of
K K
recognizance were accordingly amended to include a requirement for him

L
to report at the Hong Kong International airport on that date for his flight. L

M 30. In a phone interview conducted by the Director with the M

N
Applicant, the Applicant reiterated his unwillingness to return to India. N
By letter also of the same date of 6 January 2023, the Applicant, by his
O O
Counsel Mr Rowan Hunter, requested the Director to delay the

P
Applicant’s removal for three months. Mr Hunter reasoned as follows: P

Q
(1) The Applicant had made an application to the CFA issued on Q
6 December 2022, and the CFA issued a rule 7 summons on
R 15 December 2022, asking the Applicant to file written R

submissions to show cause by 12 January 2023.

S S
(2) The Applicant wished to supply proper, reasoned grounds,
T which he intends to do with legal advice. T

U U

V V
A (3) The clear problem is that the date for deportation is the same A
date for filing those written submissions.
B B
(4) The decision of the CFA will be relatively swift, but
C sometime after even that date. C

(5) The updated policy change on 7 December 2022 is

D D
acknowledged.
E E
(6) However, it is suggested that:

F (a) the Applicant’s claim was made before the policy F

change came into force;

G G
(b) his application to the CFA was made before the policy
H change came into force; H

(c) the CFA has required the Applicant to provide

I I
improved grounds on 12 January 2023, the day of
J deportation; J

(d) the previous failures at CFI and CA level aside, the

K K
CFA is prepared to consider what grounds are
L provided by the Applicant, and that should be L

respected;
M M
(e) no final determination has been made, and the matter
N is not yet at an end; N

O
(f) in the interests of reasonableness, justice and respect O
for fairness and the rule of law, the deportation should
P be delayed until the matter is finally determined. P

Q Q
31. What Mr Hunter seemed to imply, without expressly saying
R so, is that in the circumstances the Director should not apply the updated R

policy to the Applicant.

S S

T 32. The Director replied to Mr Hunter’s letter by letter dated T

2 February 2023 (“2/2/2023 Letter”) which essentially rejected

U U

V V
A
Mr Hunter’s request to delay removal for three months. By that time, the A
original repatriation date set at 12 January 2023 had already lapsed. The
B B
Director rescheduled the repatriation date to 10 February 2023 and asked

C
the Applicant to report at the Hong Kong International airport on that date C
for his removal to India.
D D

E
33. The 2/2/2023 Letter started by expressly saying that it was to E
serve as a substantive reply to Mr Hunter’s letter. The letter was two
F F
pages long and can be summarised as follows:

G G
(1) The Director is committed to removing unsuccessful non-
refoulement claimants, who are illegal immigrants or over
H H
stayers, as soon as practicable.
I I
(2) The Applicant is subject to the Deportation Order which
remains subsisting.
J J

(3) Under the updated removal policy, the Director will proceed
K K
to remove unsubstantiated non-refoulement claimants when

L
the consequent judicial review applications have been L
rejected by the CFI. The Government considers that the new
M policy has struck an appropriate balance between the M

claimants’ right under the Basic Law and the Hong Kong
N N
Bill of Rights on the one hand, and the need to safeguard
O public interest on the other hand. Public interest O
considerations include maintaining effective immigration
P P
control, preventing the judicial process from being used as a
delaying tactic, etc.
Q Q

(4) The Director then set out the process of the Applicant’s NRC
R R
so far and said that his case no longer constitutes a legal

S
impediment to removal under the new policy. S

(5) The Director concluded the letter by saying that the

T T
necessary travel document had been obtained for the

U
Applicant, flight arrangements had been made for his return U

V V
A to India on 10 February 2023, and asked him to report to the A
Immigration Department at check-in Aisle G of Departure
B B
Level (L7) at the Hong Kong International airport at 2pm on
10 February 2023 for his flight.
C C

D 34. On 9 February 2023, the day before his scheduled departure, D

the Applicant filed this judicial review leave application. Obviously, the
E E
removal operation was aborted as a result.
F F

F. The Applicant’s leave application

G G

35. In the Form 86, the Applicant identified as the subject of the

H H
proposed challenge “The Decision of the Director of Immigration dated
I 2nd February, 2023”. He sought the relief of “an order of certiorari to I

bring up and quash the Director of immigration’s Decision dated

J J
2  February 2023 for withholding all departure proceedings of the
nd

K Applicant”. K

L L
36. Whilst Mr Hunter only asked to postpone the removal for
M three months (which period would have already expired by now even if M

the request was acceded to), the Applicant did not say for how long he
N N
would want the departure proceedings to be withheld.
O O

37. As for grounds on which relief is sought, the Applicant said

P P
that the Director, in the 2/2/2023 Letter, did not consider the merits of his
Q case or the facts and relied solely on the new policy. He also said that the Q

Director wrongly rejected Mr Hunter’s explanation letter dated

R R
6 January 2023.
S S

38. The Applicant did not elaborate on his grounds further in the
T T
affirmation filed in support of his leave application, but he exhibited
U U

V V
A
various documents including a card issued by the legal aid department A
confirming that he had applied for legal aid on 11 January 2023. The
B B
Applicant said that the legal aid application was for the purpose of

C
assisting in the filing of written submissions to the CFA. But it can be C
noted that the legal aid application was made only the day before the
D D
submission deadline set by the CFA. It has in any event since been

E rejected, as the Applicant confirmed at the hearing. E

F F
39. At the hearing, the Applicant emphasized the chronology

G point, namely that he launched his application to the CFA before the G
updated policy came into force or was notified to him, and that as his
H H
NRC-related proceedings have not been completed he cannot be
I removed. I

J J
40. He also made various complaints about the way he felt he

K had been treated when he attended to sign on recognizance, saying that he K

had been kept waiting and harassed (whilst other persons signing were
L L
dealt with within a few minutes). But I do not think this is pertinent to
M the current intended challenge. Nor is his general request to have more M

time in Hong Kong, so as to be able to negotiate away or solve his

N N
“problem” at home, after which he says he would be willing to leave.
O These proceedings are not the occasion to revisit what has been found by O

earlier decisions in his NRC-related proceedings, and the submission

P P
simply tends to identify the Applicant’s real aim is simply to delay as
Q long as possible his deportation. Q

R R
G. Whether there is any Merit in the Application
S S
41. Mr Ho submitted that the challenge before the Court is a
T challenge to a fact-specific decision to execute a valid and extant T

Deportation Order, made as long ago as 12 February 2017. I think what

U U

V V
A
he also meant is that this is not a systemic challenge to the updated A
removal policy adopted on 7 December 2022. I agree:
B B
(1) The Applicant did not expressly challenge the new policy on
C its own. In oral submissions, the Applicant recognised the C

existence of the updated policy, but suggested that it should

D D
not be applied to him. Neither of the two points made by
E Mr Hunter in his letter really amounted to an attack on the E
updated policy.
F F
(2) The chronology point does not really explain why the
G Director should not apply the new policy to the Applicant G

simply because his NRC was lodged, or the leave application

H H
to the CFA was made, before the policy had been changed.

I
But this is clearly not an argument that the new policy itself I
is susceptible to be challenged on any public law grounds.
J J
(3) The other point is a plea for the Director to wait for a further
K
short period before the expiration of which Mr Hunter K
believed the CFA would have made its decision. What
L Mr Hunter said is not that the Applicant is entitled, as a L

matter of right, to have the opportunity to establish his NRC

M M
up to the CFA level, but rather that it would be unreasonable
N or unfair not to allow the request when the postponement N
sought is only of a few months. In other words, Mr Hunter
O O
argued that the Director should take into consideration and to
give some weight to the fact that the Applicant’s NRC is still
P P
at the stage of awaiting the CFA’s final determination. The
Q Applicant made the same point to me orally. Q

R
(4) Nor did the Applicant raise any challenge to the policy itself R
in the Form 86. What he said is that the Director – in
S making the decision to execute the Deportation Order – S

solely relied upon the new policy without assessing the

T T
merits of his individual case. This is not an argument that
U U

V V
A the policy should not be adopted or is irrelevant, but is an A
argument that it should not be used as a ‘bright line’ rule and
B B
that every case must be assessed on its individual
circumstances.
C C

D 42. But I will focus on the intended challenge to the fact-specific D

decision, as raised in the Applicant’s case. This is not likely fertile

E E
territory for a public law challenge, where the weighing of matters for a
F decision lies with the original decision-maker, not the Court. For the F

Court to interfere, a clear public law error would need to be identified.

G G

H 43. The Applicant did not elaborate on what are the merits of his H

individual case which he said the Director had failed to consider. But it
I I
seems to me that there is no basis to suggest that the Director did not take
J into account relevant factors, or that the Decision was otherwise made J

solely on the basis of the updated removal policy. In line with established
K K
practice, the Director will consider all relevant circumstances of the
L individual case when pursuing removal operations. L

M M
44. Nor did the Applicant explain why the Director was wrong
N in rejecting Mr Hunter’s letter (though it may be that by the merits of his N

individual case he was referring to the two points made by Mr Hunter in

O O
his letter).
P P

45. But, I think the Applicant’s real focus was on the chronology
Q Q
point, relating to the time when the Applicant made his NRC – or, more
R specifically, made his application to the CFA – which predated the R

promulgation of the updated removal policy. But, I have already said that
S S
I cannot see how the chronology point on the making of, and outstanding
T T
decision for, the CFA application could assist the Applicant. Insofar as

U
the point might suggest a complaint about retroactivity, there is no U

V V
A
retroactive effect involved in the updated policy. Nor could the Applicant A
have any expectation except that he remains liable to lawful removal, in
B B
accordance with the prevailing policy.

C C
46. It is important to note that the neither the old policy or the
D D
updated policy was or is the source of the power to deport or remove the

E
Applicant from Hong Kong. That power is found in the Ordinance, as I E
have identified above. It is entirely within the lawful authority of the
F F
government to effect the deportation or removal of a person subject to a

G deportation order, and also to clarify the removal procedures by an G

updated policy. The updated policy merely clarifies that an appeal (such
H H
as the Applicant’s further application to the CFA) will not operate as a
I stay of deportation or removal. I

J J
47. In those circumstances, it may be no surprise that there is no

K challenge made to the updated policy itself. K

L L
48. Nor do I think that reasonableness or fairness would

M necessarily require the Applicant to have the opportunity to have his case M
determined by the CFA before he could be deported. As it now stands,
N N
his NRC remains unsubstantiated and the Deportation Order remains
O extant. Whether the Applicant should be allowed a further attempt to O

establish his claim prior to deportation boils down to whether this is

P P
required as a matter of procedural fairness, in light of the circumstances
Q specific to him and in the context of the fundamental rights underpinning Q

his NRC.
R R

S 49. It is trite, from cases such as the CFA’s decision in Secretary S

for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 that: (1) high

T T
standards of fairness are required in the adjudication of non-refoulement
U U

V V
A
claims (and the rationale for such requirement); (2) the courts will on A
judicial review subject such adjudication to rigourous examination and
B B
anxious scrutiny to ensure that high standards of fairness have been met;

C
and (3) the necessary high standards of fairness require the claimant to be C
given every reasonable opportunity to establish his claim.
D D

E
50. Prabhakar and the other cases do not say that, when an NRC E
claimant has sought to challenge the administrative decision in the court
F F
by way of judicial review, procedural fairness would require the

G Government to postpone removal pending the resolution of such court G

proceedings. In any event, it seems clear to me that the appropriate
H H
“every reasonable opportunity” to establish his claim is given when the
I CFI looks at the Board’s decision and assesses whether the high standards I

of fairness required have been met.

J J

K 51. Further, in the present case, I have no difficulty in coming to K

the view that the Applicant has indeed already been given every
L L
reasonable opportunity to establish his NRC. Whilst a person may be
M entitled to exhaust all judicial avenues in attempting to overturn the M

administrative decision by way of judicial review, all the way up to the

N N
CFA, he does not have to. In the present case:
O O
(1) The Applicant’s NRC has remained unsubstantiated at all
P times. P

(2) From December 2014 when he launched his NCR until now,

Q Q
the Applicant has had no less than 8 years to establish his
R NRC. R

(3) His NRC has been considered and rejected by four separate
S S
bodies, namely the Director, the Board, the CFI and the CA.
T In the case of the CFI and CA, they had each rejected the T
applicant twice, making six the total number of occasions the
U U

V V
A Applicant’s NRC or complaint about its handling had been A
rejected.
B B
(4) The CFI pointed out that the Applicant did not submit any
C grounds of review, nor complain of any specific procedural C

irregularity, unfairness or unreasonableness. Nevertheless,

D D
even considering the papers, the CFI held there was no

E
evidence of procedural unfairness, nor a failure to adhere to E
the high standard of fairness throughout. It was said that the
F Applicant’s case “has no merit”. F

G
(5) The CA held that there was no reasonable explanation for the G
Applicant’s delay in bringing the intended appeal, but in any
H event the application for leave for judicial review “was H

hopeless and rightly dismissed by the Judge”.

I I
(6) Whilst the CFA has not yet rejected the Applicant’s
J application to it, it is evident in the Rule 7 summons issued J

that the CFA is of the view that the leave application before
K K
it has disclosed no reasonable cause of action.
L (7) The Applicant has failed to file any submissions even L

attempting to show cause why his application should not be

M M
dismissed, and there is no evidence of any extension of time
N granted by the CFA for any such submissions. N

O O
52. In the circumstances, I do not think fairness or

P reasonableness would require the Director to wait for the CFA’s decision P

before executing the Deportation Order.

Q Q

R H. Result R

S
53. Ultimately, I accept Mr Ho’s submission that in the S
circumstances of the Applicant’s case, not least where his NRC has been
T T
duly considered and rejected by four separate bodies on six separate

U occasions (including by both the CFI and CA), there is no reasonably U

V V
A
arguable basis to say that the Decision, which merely seeks to implement A
the extant and legally valid Deportation Order is impugnable on any
B B
public law grounds.

C C
54. Where the leave application discloses no reasonable arguable
D D
grounds, the application is dismissed.

E E
55. As to costs, I agree with Mr Ho’s submission that this is a
F case where the Director’s costs should be paid by the Applicant. I say so, F

G
notwithstanding the perhaps practical reality that those costs will not be G
recovered from the Applicant, not least because he is likely soon to be
H H
deported. Nevertheless, applicants should understand that if their

I
applications are ill-conceived and lack merit, there is a significant risk of I
an adverse costs order being made against them.
J J

K
56. This application was indeed thoroughly ill-conceived and K
unmeritorious, and it seems to me that it has been launched (as the
L L
Applicant in essence made clear in his own oral submissions) to serve the

M Applicant’s personal interest in delaying as long as possible his departure M

from Hong Kong. The Director has incurred time and costs in preparing
N N
the initial response and in attending the hearing, so as to assist the Court.
O O
57. The amount of costs to be paid will be subject to summary
P P
assessment, to be performed on the papers.

Q Q

R R

S S
(Russell Coleman)
Judge of the Court of First Instance
T T
High Court

U U

V V
A A
The applicant, acting in person
B B
Mr Martin Ho, instructed by the Department of Justice, for the putative
respondent
C C

D D

E E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V