ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

Subject to the de minimis principle, a period of detention pending trial which results in conviction and a sentence of imprisonment is a period of 'detention pursuant to the order of any court' within s.2(4)(b) Immigration Ordinance and must be excluded from the seven years' ordinary residence; the 14 February 2006 letter did not amount to a verification application although the Director breached a duty to give more helpful guidance, the applicant failed to prove causation or real prejudice, therefore judicial review is dismissed and the deportation order stands.

Citation
ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant: Asif Ali; 1st Respondent: Director of Immigration; 2nd Respondent: Secretary for Security
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
25 March 2010
Case Number
HCAL75/2009
Procedural Posture
Judicial Review — Constitutional and Administrative Law (immigration) / Final Judgment, Court of First Instance
Outcome
Application for judicial review dismissed; challenged deportation order and refusal to rescind upheld
Legal Topics
Right of Abode, Permanent Residency Verification, Deportation, Detention Pending Trial, Statutory Construction, Duty to Act Fairly, Judicial Review
Source Language
EN
Immigration Law Constitutional Law Administrative Law Criminal Law Right of Abode Permanent Residency Verification Deportation Detention Pending Trial +3 more

Case Brief

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Parties

Asif Ali

Applicant

Director of Immigration

1st Respondent

Secretary for Security

2nd Respondent

Procedural Posture

Judicial Review — Constitutional and Administrative Law (immigration) / Final Judgment, Court of First Instance

Legal Issues

  1. 1 Whether detention pending trial that results in conviction is excluded from the seven years ordinary residence under s.2(4)(b) Immigration Ordinance
  2. 2 Whether the applicant's letter dated 14 February 2006 constituted an application for verification of permanent resident status
  3. 3 Whether the Director of Immigration breached a duty to act fairly in responding to that letter

Ratio Decidendi

Subject to the de minimis principle, a period of detention pending trial which results in conviction and a sentence of imprisonment is a period of 'detention pursuant to the order of any court' within s.2(4)(b) Immigration Ordinance and must be excluded from the seven years' ordinary residence; the 14 February 2006 letter did not amount to a verification application although the Director breached a duty to give more helpful guidance, the applicant failed to prove causation or real prejudice, therefore judicial review is dismissed and the deportation order stands.

Court Disposition

Application for judicial review dismissed; challenged deportation order and refusal to rescind upheld

Orders

  • Application dismissed
  • Applicant to pay respondents' costs of the proceedings, including previously reserved costs, to be taxed if not agreed