Sabir Mohammed and Another v. Permanent Secretary for Security
Read the full judgment text of HCAL 114/2015 on BabelCite. This High Court CFI judgment was delivered on 27 January 2017.
1. The 1 st applicant is an Indian national who had overstayed in Hong Kong since October 2004, and been convicted respectively for trafficking a dangerous drug and possession of a dangerous drug in March 2012 and April 2014. The Permanent Secretary for Security (“the Permanent Secretary”), the respondent, issued a deportation order (“the DO”) for life against the 1 st applicant on 5 June 2013. The 1 st applicant eventually married the 2 nd applicant, a permanent resident in Hong Kong, but on
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HCAL 114/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 114 OF 2015 _______________
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_______________ J U D G M E N T _______________ A. INTRODUCTION 1.The 1st applicant is an Indian national who had overstayed in Hong Kong since October 2004, and been convicted respectively for trafficking a dangerous drug and possession of a dangerous drug in March 2012 and April 2014. The Permanent Secretary for Security (“the Permanent Secretary”), the respondent, issued a deportation order (“the DO”) for life against the 1st applicant on 5 June 2013. The 1st applicant eventually married the 2nd applicant, a permanent resident in Hong Kong, but on 2 July 2014, he himself indicated to the Immigration Department his wish to return to India as he wanted to see his ailing mother. He was later voluntarily deported back to India on 27 August 2014 under the DO. 2.This is now the 1st and 2nd applicants’ judicial review seeking to challenge the Permanent Secretary’s decision (“the Decision”) dated 28 November 2014, refusing the 1st applicant’s application seeking to rescind the DO. The rescission application was made through the 1st applicant’s then solicitors’ letter dated 16 July 2014. 3.The applicants say the Decision is unlawful and ask the court to quash it and to remit the rescission application to the Permanent Secretary for reconsideration in light of the court’s ruling. 4.The applicants are represented by Mr Dykes, SC leading Mr P Y Lo. The Permanent Secretary, who opposes the application, is represented by Mr Jonathan Chang. B. BACKGROUND B1. The relevant facts 5.The relevant facts are these. 6.The 1st applicant came to Hong Kong as a visitor in September 2004 and was permitted to stay until 1 October 2004. He had then overstayed and gone underground. 7.He was arrested by the police in May 2006 for being a suspected overstayer and was handed over to the Immigration Department. Before he was arrested, he had already lodged a refugee claim with the Unite Nations High Commission for Refugees (“UNHCR”) in Hong Kong. Further, during his detention by the Immigration Department, he also made a torture claim (“the 1st torture claim”) on the allegations that his life would be in danger if he was returned to India. In light of his refugee claim and the 1st torture claim, he was released on recognizance on 24 July 2006. His refugee claim however was closed by UNHCR on 25 October 2006. 8.While on recognizance, the 1st applicant was arrested by police on 4 November 2011 for the offence of trafficking a dangerous drug (cocaine). He was subsequently convicted in March 2012 and sentenced to six months’ imprisonment. 9.In light of this conviction, the Director of Immigration (“the Director”) considered that the 1st applicant’s continued presence in Hong Kong would pose a threat to law and order. The Director therefore intended to apply for a deportation order against him under section 20(1)(a) of the Immigration Ordinance (Cap 115) (“the IO”). However, given the pending 1st torture claim, the Director issued a removal order in the interim against the 1st applicant instead of proceeding with the deportation order application. The 1st applicant did not appeal against the removal order, which was issued on 5 July 2012. 10.On 10 July 2012, the 1st applicant was discharged from the prison having served his sentence. He was transferred to and detained by the Immigration Department pending his removal. However, given his pending 1st torture claim, he was eventually released on recognizance on 25 August 2012 on the condition that he would report to the reporting office in every six weeks’ time. 11.The 1st torture claim was refused by the Director on 16 November 2012 and the 1st applicant’s appeal against the refusal was also dismissed by the Torture Claims Appeal Board on 28 December 2012. 12.Soon after that, the 1st applicant defaulted to report recognizance on 31 December 2012 and absconded since then until four months later. He reappeared and reported to the reporting office again on 10 April 2013 and informed the immigration officer there that he wanted to go back to India as soon as possible because his mother was in hospital and he had no money to buy the air ticket. 13.The Immigration Department then resumed the deportation process. The Director also informed the 1st applicant that he would apply for a deportation order to deport the 1st applicant on the basis that the 1st applicant’s continued presence in Hong Kong was regarded as undesirable in light of his earlier conviction. The 1st applicant raised no objection and indicated again that he wanted to go back to India. However, the 2nd applicant, then his girlfriend, objected to that on the grounds that she was pregnant and wanted to live with the 1st applicant and the baby in Hong Kong as a family. She also stated that, although she was then married to another person, she was going to divorce her husband and re-marry the 1st applicant. 14.The Director applied to the Secretary for Security for a deportation order on 14 May 2013. On 5 June 2013, the Permanent Secretary issued the DO. However, the 1st applicant again failed to report recognizance (as he was expected to) on 13 June 2013 and had disappeared since then. The DO therefore could not be effected on him. 15.Later, he was arrested by the police on 17 January 2014 for the offence of possession of a dangerous drug. He was then granted bail but handed over to the Immigration Department to arrange for his removal under the DO. 16.While detained, the 1st applicant lodged again a non-refoulement claim on the ground of cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), again on the allegations that his life would be in danger if he was returned to India. I would for convenience called this “the 2nd torture claim”. 17.The deportation under the DO was then withheld in light of the 2nd torture claim. 18.On 26 March 2014, the 1st applicant was convicted for the offence of possession of dangerous drugs and fined $3,000. He was then released by the Immigration Department on recognizance on 24 April 2014, pending the determination of the 2nd torture claim and the arrangement to return him to India under the DO as he had indicated. 19.On 2 July 2014, the 1st and 2nd applicant solemnized their marriage in Hong Kong. 20.On 17 July 2014, the applicants attended the reporting office and submitted their solicitors’ letter dated 16 July 2014 asking for the rescission of the DO (ie, the rescission application). 21.On 18 July 2014, the Immigration Department contacted the 2nd applicant and asked her to confirm whether the 1st applicant had decided to return to India. She replied that the matter was still under consideration. 22.On 21 July 2014, the applicants approached the Immigration Department Deportation Section, whereby the 1st applicant made the request that he wanted to return to India to visit his mother who was ill. The applicants were reminded that the 1st applicant would be prohibited from being in Hong Kong after departure while the DO (which is for life) is in force and his entry to Hong Kong would only be considered if the DO was suspended or rescinded, which they understood. The 1st applicant then submitted in writing that “I want go back to India as soon as possible to visit my mother was in hospital now. So I want to close my non-refoulement claims [ie, the 2nd torture claim]”. Withdrawal of the 2nd torture claim was subsequently confirmed by the Immigration Department Assessment Section on 4 August 2014. 23.The Immigration Department then arranged for the 1st applicant’s departure. On 27 August 2014, the 1st applicant was formally served with a copy of the DO and explained of its contents. He was then deported to India voluntarily on the same day. 24.On 28 November 2014, the Permanent Secretary made the Decision refusing the rescission application. 25.On 10 December 2014, the 2nd applicant gave birth to her son. 26.On 29 June 2015, the applicants applied for leave to judicially review the Decision. The court granted leave on paper on 7 September 2015. B2. The Decision 27.The Chief Executive (“the CE”) has the power to make a deportation order under section 20(1)(a) of the IO, which provides as follows:
28.At the same time, under sections 54 and 55 of the IO, the CE also has the power to respectively suspend or rescind a deportation order and to impose any conditions as he thinks fit. They provide as follows:
29.The CE’s above powers under sections 20(1), 54 and 55 of the IO have been delegated to the Permanent Secretary.[1] 30.In support of the rescission application, the applicants (through the solicitors’ letter dated 16 July 2014 and the 2nd applicant’s letters respectively dated 15 October and 6 November 2014)[2] raised the following grounds in summary:
31.After considering these representations, the Director however recommended to the Permanent Secretary to reject the rescission application. The reasons for the recommendation have been set out in the relevant parts of the file minute M4 dated 19 November 2014 as follows:
32.The Permanent Secretary has explained in the Affidavit of Ng Yin Ha Windsor the reasons for making the Decision after considering the applicants’ above representation and the Director’s recommendation as follows (footnotes omitted):
33.In summary, the Permanent Secretary made the Decision on the following basis. 34.It is the Permanent Secretary’s normal practice that, taking into account the prevailing strict immigration policy, he would only consider exercising the discretion to rescind a deportation order in exceptional cases such as where strong humanitarian or compassionate grounds are shown. 35.In the present application, he was not satisfied that there were such strong and exceptional humanitarian or compassionate grounds:
C. THIS JUDICIAL REVIEW 36.The applicants raise essentially three grounds of judicial review. But before I look at these grounds, in light of the arguments raised, it is helpful to first set out what I regard to be the relevant legal principles concerning deportation order and immigration policy. C1. Relevant legal principles relating to deportation order and immigration policy 37.First, as the clear words in section 20(1)(a) of the IO provide, the CE (and the Permanent Secretary as the person delegated with the power) has the power to issue a deportation order when an immigrant is convicted for an offence which is punishable with imprisonment for not more than two years. In other words, the legislature has identified and regarded that an offence which is punishable for not more than two years is by itself serious enough tomerit the issue of a deportation order. Thus, in Weerachon Sae-Ieo v Secretary for Security [2003] 2 HKLRD 519, Hartmann J (as he then was) said as follows at paragraph 59:
38.Second, as Mr Dykes rightly accepts, a deportation order made under section 20(1)(a) of the IO is prima facie for life, absent special circumstances. This is well supported by authorities:
39.Third, in a case where a deportation order is issued against someone who has committed a criminal offence, the deportation order is not a sentence or punishment to fit the crime. The Permanent Secretary in deciding whether to exercise his discretion to issue a deportation order under section 20(1)(a) is to be guided by considerations of public policy. As observed by Hartmann J in Weerachon Sae-Ieo at paragraph 60, the question may be asked is: do Hong Kong’s best interests justify an order for deportation, or, are there grounds in public good to justify such an order. A threat by the applicant’s presence in Hong Kong to her law and order is but only one of the possible public policy reasons to support the issue of a deportation order. See also: Bahadur, supra,at 93E-95H. 40.Fourth, the Permanent Secretary, being required to exercise a discretion under sections 20(1)(a), 54 or 55 of the IO, is involved a balancing exercise in deciding whether to exercise the power so vested: Singh v Secretary for Security (1996) 6 HKPLR 440 at 450B-C, perKeith J; Badadur at 94I-95A; Weerachon Sae-Ieo, supra, at paragraph 46; Pollard, supra, at paragraph 60. 41.Fifth, it is trite in public law that the principles governing the relevance of a consideration that a decision maker vested with a discretion should and could take into account are these:[4]
42.Sixth, it is well established that the Director has been vested with the power and discretion to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions.[5] Further, in the exercise of power and discretion adopts an overall restrictive immigration control policy.[6] The legitimacy and rationality of such an overall restrictive policy control applicable to the entire immigration regime is well recognised and accepted by the courts. It has recently received the unreserved endorsement by the Court of Appeal in the BI, supra, at paragraph 70. 43.In this respect, under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. Within the confines of that broad policy, the Government has formulated different more specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong. Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes. These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors. 44.As mentioned by the Court of Appeal at paragraph 92(8) in BI, if an applicant does not fall within any of the recognised categories, it is up to the Director to decide whether to further consider exercising his discretion to grant the application on any humanitarian or compassionate grounds on an individual basis. Insofar as if the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion under this if there are exceptional circumstances to justify it. In this regard, it has also been firmly established by the Court of Final Appeal that the Director is not obliged to consider humanitarian or compassionate grounds, and if he decides not to so consider, that decision is generally not subject to judicial review.[7] However, if he does consider these grounds, subject to the challenge of any procedural unfairness, the court would not lightly interfere with his decision under these grounds on Wednesbury unreasonableness basis as the court must have regard to his wide discretion under this aspect and the context of whether the applicant merits exceptional treatment against a stringent overall immigration control policy. See BI, supra, at paragraphs 102 - 111. 45.Bearing these principles in mind, I now turn to look at the grounds of judicial review raised by the applicants. C2. Ground 1 – The Decision is unlawful since the Permanent Secretary failed to perform the balancing exercise required of him by law, and/or the exercise was in any event irrational in the circumstances of the present case 46.Under this ground, it is contended that the Permanent Secretary failed to perform the balancing exercise required of him by law in making the Decision. Further, it is said that in any event, the Decision is Wednesbury unreasonable in the circumstance of the present case. 47.Mr Dykes advances his contentions on a number of premises. 48.First, Mr Dykes submits that the Permanent Secretary exercises a balancing exercise under sections 54 and 55 of the IO in deciding whether to rescind a deportation order. However, in doing so, leading counsel contends that the Permanent Secretary erred in law in adopting “the exceptionality approach” by reference to the strict immigration policy. In this respect, Mr Dykes is referring to the Permanent Secretary’s evidence that, in making the Decision, he had paid regard to the overall strict immigration policy and was not satisfied that there were exceptional humanitarian or compassionate grounds shown by the applicants to justify rescinding the DO. Mr Dykes argues that the Permanent Secretary in exercising his discretion independently should not pay heed to the overall immigration policy. In particular, Mr Dykes emphasizes that, even if the DO is rescinded, the 1st applicant would still have to separately apply to the Director for permission to enter and stay in Hong Kong, and the Director in assessing that permission application would in any event be guided by the prevailing relevant immigration policy he has adopted. It therefore does not make sense, says Mr Dykes, that in considering the rescission application, the Permanent Secretary would have to take into consideration the immigration policy already. 49.With respect, I am not persuaded by this argument. 50.Sections 54 and 55 of the IO have not excluded immigration policy as a consideration for the Permanent Secretary in the exercise of the discretion vested in him. Hence, subject to any Wednesbury unreasonableness challenge, it is for the Permanent Secretary to decide whether he regards it as a relevant consideration. See paragraph 41 above. 51.Whether or not a deportation order should be rescinded or suspended is clearly a matter related also to immigration control. When the DO was first issued, as mentioned above, the Permanent Secretary has already concluded that, in the immigration control context, the 1st applicant’s entry into and presence in Hong Kong is not desirable in light of his threat to law and order. Hence, when considering whether the DO should be rescinded or suspended to allow the 1st applicant to be able to apply to come to Hong Kong again, the prevailing overall restrictive immigration policy as adopted in immigration control is obviously a relevant consideration for the Permanent Secretary. 52.Indeed, the authority of Bahadur supports that it is relevant and hence proper and permissible for the Permanent Secretary to consider a rescission application in the context of the overall immigration policy. 53.In that case, in rejecting the applicant’s challenge of the Secretary for Security’s refusal to rescind a deportation order on the ground of Wednesbury unreasonableness, Stock J observed at 94C-95H as follows:
54.Thus, Stock J upheld the refusal decision by having reference to the immigration context and policy in Hong Kong. In fact, it is pertinent to note that Stock J also endorsed that it would only be in the most exceptional circumstances that a person could be heard to ask for a finite instead of life-long deportation order. 55.Similarly, in Pollard at paragraph 62, where A Cheung J (in considering a challenge on irrationality ground of a decision to deport the applicant for life) also observed the need to have regard to the immigration context in considering whether to issue the deportation order:
56.In any event, it certainly cannot be said in the present case that the Permanent Secretary is irrational (in public law sense) to take into account the immigration policy as a relevant consideration in considering whether to exercise his discretion to rescind the DO. 57.Second, Mr Dykes submits that in any event it is also wrong in law for the Permanent Secretary to adopt as a threshold test the “exceptionality requirement” to consider whether there are sufficient humanitarian or compassionate circumstances to justify the rescission of the DO. Leading counsel seeks support in these submissions by arguing that in Singh, Bahadur, Pollard and Weerachon Sae-Ieo, supra, the court has only consistently said that the balancing exercise that the Secretary for Security has to do is to weigh between the security concerns posed by the subject applicant against the hardship to be suffered by him and his family to determine whether there has been a material change of circumstances that justifies the suspension or rescission of a deportation order. In other words, says Mr Dykes, the Permanent Secretary is only to ask whether the change of circumstances presented affects the balance struck when the deportation order was first made. Mr Dykes emphasises these authorities show that an approach of balancing concerns of criminal and security concerns against hardship does not entail an additional requirement of exceptionality. Moreover, Mr Dykes submits that the evidence filed in these cases as to how the decision maker had carried out his balancing exercise in each of these cases did not show that an exceptionality approach was adopted. Leading counsel therefore says the Permanent Secretary’s present adoption of an exceptionality approach is obviously incorrect in law. 58.I am unable to agree with Mr Dykes. 59.As mentioned above, as a matter of principle, the exercise of the discretion under sections 54 and 55 of the IO in relation to a deportation order is guided by considerations of public interests and policy. Unless prescribed by these statutory provisions (which is not), it is a matter for the decision maker to decide, in the context of immigration control, as to how he would be satisfied, as a matter of public policy and interests, that a deportation should be rescinded or suspended. The discretion includes, as repeatedly held by the courts, a discretion for the decision maker to decide what weight he would attach to the relevant considerations. In the same breath, this must also include the discretion to decide as a matter of policy as to to what extent he would only be satisfied that a deportation order should be rescinded or suspended. 60.Hence, as a matter of principle, as a matter of policy in the context of immigration control, the Permanent Secretary must be free and entitled to adopt the exceptionality approach in his balancing exercise to guide his exercise of the discretion under sections 54 and 55 of the IO.[8] 61.For the same above reasons, neither could this approach be regarded as Wednesbury unreasonable in immigration control context. In this respect, it should be reminded that the courts have repeatedly said that, in the context of immigration control (including deportation order cases), the immigration authorities and the Secretary for Security are daily faced with difficult immigration decisions which involve the removal of those who have family members or relatives in Hong Kong. In making these difficult decisions, the decision makers are guided by considerations of what are in the best interests of Hong Kong (in light her small size, geographical and economic considerations) as a matter of public policy. The courts would not lightly interfere with these decisions in a Wednesbury unreasonableness challenge. 62.Further, the authorities relied on by Mr Dykes also do not support his contentions. 63.In Pollard, the applicant, an Australian national in Hong Kong, challenged the Permanent Secretary’s decision to issue a deportation order for life against him. Again, one of the grounds of challenge was that the decision to deport him for life was Wednesbury unreasonable in light of the compassionate considerations the applicant had advanced when considered in light of the allegedly relatively minor nature of the offence he had been convicted of (as he was sentenced to six months’ imprisonment for using someone else’s credit card to settle his various hotel room bills). 64.In this respect, it must first be noted that the evidence filed by the Permanent Secretary in that case shows that, after considering all the representations made by the applicant against deportation and having balanced the gravity of the offences, he found that “there is no sufficiently justified extenuating ground warranting exceptional consideration” to issue a deportation order for life.[9] In other words, the Permanent Secretary in that case also adopted an exceptionality approach. Thus, it is incorrect for Mr Dykes to say that the evidence filed in this case does not show that the Permanent Secretary had adopted an exceptionality approach (albeit in the context of issuing a deportation order under section 20(1)(a)). 65.In any event, A Cheung J (as the learned CJHC then was) rejected the complaint of irrationality in that case. The learned judge emphasised that what weight should be given to those compassionate circumstances relied on by the applicant was a matter for the Permanent Secretary not the court and when viewed in the overall immigration policy context, the decision was not one that no reasonable person exercising powers under the IO could have made (see paragraphs 45 and 62 thereof). 66.Pollard therefore indeed supports that it is legitimate for the Permanent Secretary to adopt an “exceptionality” approach in his balancing exercising to determine how to exercise his discretion. If it is permissible for the Permanent Secretary to adopt an exceptionality approach to decide whether or not to make a deportation for life, I cannot see why it would be in principle wrong or not permissible for him to adopt the same approach to decide whether the original for life deportation order should be rescinded or suspended. 67.The other three cases also do not assist Mr Dykes:
68.In the premises, I conclude as a matter of principle, that it is within the Permanent Secretary’s discretion to adopt as a matter of policy considerations an exceptionality approach to consider whether to exercise his discretion under sections 54 and 55 of the IO. I therefore reject Mr Dykes’ submissions that the Permanent Secretary erred in law in adopting an exceptionality approach in the balancing exercise. 69.Third, Mr Dykes says even if the Permanent Secretary’s above policy in adopting the exceptionality approach does exist and is lawful, for fairness it needs to be published so that the individual will know what representations will be on target and what representations are not to the point. In failing to have it published, the Decision made thereunder is unlawful for being unfair. 70.There is nothing in this point. As the Court of Final Appeal affirmed in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at paragraph 66, per Ribeiro PJ: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers”. 71.Fourth, the applicants submit that the Permanent Secretary in considering the rescission application has a legal obligation to have had regard, and thus give significant weight, to the applicants’ purported rights to family and their child’s best interest as enshrined respectively under Articles 25, 36, 37 and 39 of the Basic Law, Articles 1, 14, 19(1), 20(1) and 22 of the Hong Kong Bill of Rights, Articles 2, 17, 23(1), 24(1) and 26 of the International Covenant on Civil and Political Rights, Articles 2(2) and 10 of the International Covenant on Economic, Social and Cultural Rights, and Articles 1 - 7, 9 and 18 of the Convention on the Rights of the Child. Mr Dykes says the Permanent Secretary however had failed to do so. In particular, Mr Dykes emphasizes that the Permanent Secretary had failed to treat these considerations as “legal rights” and thus to attach to them the proper weight as such. For convenience, I would refer these rights collectively as “the Asserted Rights”. 72.There are no merits in these submissions. 73.This court has already repeatedly concluded that the Asserted Rights are not engaged as a matter of law in the context of immigration policy considerations. Hence, the Director is therefore under no legal obligations to take into account the Asserted Rights when considering applications made under the dependency policy or permissions to enter and remain in Hong Kong outside any established immigration categories under the general immigration policy. See: paragraphs 58 - 188 of Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016); paragraphs 20 - 57 of Dembele v Director of Immigration (HCAL 44/2014, 22 April 2016) and paragraphs 46 - 52 of LK v Director of Immigration (HCAL 77, 98 and 100/2014, 9 August 2016). 74.There are no in principle reasons why the same analysis in those cases do not apply to a consideration made in relation to the issue, rescission or suspension of a deportation order. As I mentioned above, applications made in relation to a deportation order are similarly made in the context of immigration control. It is also perfectly legitimate for the Permanent Secretary to have regards to the immigration policy in considering deportation order related applications. In the premises, the Permanent Secretary is similarly not under any legal obligations to consider the Asserted Rights. 75.I would similarly reject this contention. 76.Fifth, Mr Dykes argues that the Permanent Secretary in making the Decision failed to take into account the material change of circumstances concerning the applicants since the issue of the DO. In particular, these material changes include the fact that the applicants have since been married and the child was born. 77.There are no merits in this. 78.The Permanent Secretary is only required to take into account any relevant change of circumstances made known to him in the rescission application. The evidence shows that the Permanent Secretary took into account all the applicants’ representations made in their solicitors’ letter dated 16 July 2014 and the 2nd applicant’s subsequent letters dated 15 October and 6 November 2014 (see paragraph 30 above). These included the material representations that the applicants were by then married, they were expecting to have the child born in Hong Kong, their wish to live in Hong Kong together as a family and to raise the child in Hong Kong, the 2nd applicant was suffering medical complications in her pregnancy, and had fallen out with her parents and therefore would not be able to rely on them to help her and to raise the child, and the 2nd applicant’s reluctance to move to India. The Permanent Secretary had therefore taken into account all the changes of circumstances as made known to him. 79.I reject this contention. 80.Finally, Mr Dykes says the Decision is in any event Wednesbury unreasonable. He submits that when the relatively minor nature of the offence committed by the 1st applicant (as reflected by the 6-month imprisonment) is weighed against the applicants’ marriage, the tender age of the child, and the fact that the Decision has the effect of separating the family, the Decision must be regarded as irrational. 81.With the greatest respect, there is no substance in this submission. 82.Given the strict immigration policy, the overall security concern on the threat to law and order, and the fact that the applicants were fully aware of the existence of the DO for life when they got married, it clearly cannot be said that no reasonable person in the position of the Permanent Secretary would have come to the same conclusion that the applicants’ circumstances do not amount to exceptional compassionate or humanitarian circumstances to justify a rescission of the DO. This is particularly so in light of (a) the 1st applicant’s records of twice failing to answer recognizance; and (b) his second conviction of the offence of “Possession of a dangerous drug”, which was committed while he was still under recognizance and when it was only about one and half year after he had finished serving his imprisonment sentence under his first conviction. 83.In this respect, Mr Dykes has asked me to apply a vigilant or anxious scrutiny to assess whether the Decision is irrational for the reasons he has submitted. Although A Cheung J in Pollard at paragraph 56 has said that no anxious scrutiny is warranted in examining a deportation order decision, I must emphasise that I would also arrive at the same conclusion as above that the Decision cannot be said to be irrational even if I was to apply a vigilant scrutiny of the Decision. 84.For the above reasons, I reject the applicants’ first ground of judicial review. C3. Ground 2 – Legitimate expectation 85.Under this ground, the applicants say the Decision frustrated their legitimate expectation that the Asserted Rights should be taken into account by the Permanent Secretary in considering the rescission application. See paragraphs 65 and 66 of the Form 86. 86.For the same reasons above in rejecting the contentions that the Permanent Secretary has a legal obligation to consider the Asserted Rights, there is no question of the existence of the legitimate expectation as contended for. This ground similarly must fail. C4. Ground 3 – Procedural impropriety 87.The applicants argue in this ground that the Decision is tainted with the following procedural unfairness:
88.There is nothing in this ground 89.In making the rescission application, it is up to the applicants to advance all relevant representations and matters which are objectively and reasonably within their expectations to be relevant and of concern to the Permanent Secretary. Cf: Pagtama, at paragraph 214. 90.In this respect, it is their own representation in support of the rescission application that they wanted to raise the child in Hong Kong for various reasons. It must therefore be reasonably within their contemplation that questions might be raised by the Permanent Secretary as to why the child could not be taken outside Hong Kong and reunited with the 1st applicant. It is thus up to them to explain in their application the reasons why it is not feasible to do so. There is no duty or obligation for the Permanent Secretary to raise that question with them, and hence there is no procedural unfairness in this respect. 91.I also accept Mr Chang’s submissions that the complaint that the Decision was “sparely reasoned” is similarly untenable:
C5. Conclusion 92.For all the above reasons, the applicants fail in all the grounds of judicial review. This application should thus be dismissed. D. DELAY 93.By a summons taken out on 11 February 2016, the Permanent Secretary also applies to set aside the leave for judicial review granted on the ground of delay. 94.It is trite that an applicant shall take out an application for leave to apply for judicial review promptly and in any event not more than three months after the challenged decision is made. No leave should generally be granted after the 3-month period unless the applicant can satisfy the court that there are good reasons for extending the time. See: Order 53, rule 4 of the Rules of the High Court; AW v Director of Immigration [2016] 2 HKC 393 (CA) at paragraphs 23 - 36. 95.In the present case, the Decision was made on 28 November 2014. The leave application should be made by the end of February 2015 to be within the 3-month time limit. However, the leave application was only made on 29 June 2015, and hence there is a four months’ delay. The Permanent Secretary therefore applies to set aside the leave on the basis that no extension of time should be granted to the applicants. 96.Before I look at the merits of this setting aside application, the applicants object to it on the preliminary basis that it was not made timeously and the court should not entertain it at this stage of the substantive hearing of the judicial review absent any special circumstances. 97.As the Court of Appeal said in BI, supra, at paragraphs 134 - 139, it is a matter of case management to decide whether to entertain a leave setting aside application at the substantive hearing, although generally such an application should be made and dealt with promptly after leave has been granted. 98.In relation to the present case, leave was granted on 7 September 2015. The Permanent Secretary filed his full evidence in opposition about four months later on 11 February 2016. Given that full evidence has already been filed fairly soon after leave, and the court in determining whether to extend time for a delayed application may have to examine the merits of the applicants’ substantive challenge deeper than the standard applicable to granting leave,[10] I am satisfied that as a matter of case management, it is convenient and appropriate in the present case to hear the setting aside leave application at the same time of the substantive hearing. This is particularly so as, given the various grounds of challenges raised in this judicial review, and the need to examine deeper their merits to decide whether time should be extended, the court would be assisted with the Permanent Secretary’s full evidence. Once such evidence has been so filed, it would not necessarily save time and costs by having potentially two hearings (if the setting aside application fails at a separate and earlier hearing). 99.I would now proceed to look at the setting aside application itself. 100.The principles governing the extension of time have been set out by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at paragraphs 36 - 45 (affirmed and endorsed by Court of Appeal in AW, supra, at paragraph 1, per Lam VP, and paragraphs 23 - 36, per Kwan JA). These can be summarised as follows:
101.In explaining the delay, the applicants in the present case in substance say that the delay was caused by the process of the legal aid application, and the 2nd applicant had indeed acted expeditiously and diligently in applying for legal aid in the circumstances of her case. 102.In this respect, the chronology of events concerning the legal application as confirmed by the Legal Aid Department (“LAD”) is as follows:
103.The 2nd applicant has further explained why she was only able to formally put in the legal aid application on 4 February 2015 (ie, some two months after the Decision) and the requested documents and grounds to the LAD on 9 February 2015. The reasons are these:[11]
104.Mr Chang for the Permanent Secretary however submits that the applicants have failed to show good reasons for the delay. In particular, Mr Chang submits it is trite that generally the mere fact that legal aid or pro bono assistance is not available is not regarded as a sufficient basis for an extension of time; TH & TLT v Director of Immigration, HCAL 114/2014 (unreported, 20 July 2015) at paragraph 74, per Chow J. See also AW, supra, where Kwan JA held that the time taken to apply for and obtain legal aid (paragraph 37) and the time taken to apply for extension of the scope of legal aid and to make legal aid contribution (paragraph 49) could not constitute valid grounds justifying any delay, notwithstanding hat such matters may be beyond the applicants’ control. 105.Moreover, Mr Chang submits that in any event, all the explanations provided by the applicants above in relation to why the legal application could only be properly made by 10 February 2015, even if accepted as good reasons, could not explain the three and a half months’ delay in filing the leave application after legal aid was efficiently granted on 18 March 2015. When this lack of good explanations is considered together with the lack of merits in the grounds of judicial review, Mr Chang contends that no leave to apply for judicial review out of time should have been granted. 106.The explanations for the three and a half months’ delay after the grant of legal aid are provided in the 1st Affidavit of Ambelang (a paralegal of the applicants’ present assigned firm of solicitors) at paragraphs 8 - 13 as follows:
107.In my view, given the very exceptional circumstances of the present case in light of the 2nd applicant’s then pregnancy and medical conditions, and the fact that the 1st applicant was in India and thus it had required additional time to communicate with him and to obtain his relevant signatures and authorisation, I accept the above explanations provided by the 2nd applicant and the firm as good reasons for the delay in the special context of this case. Further, in light of the special circumstances of the present case, I accept that the 2nd applicant had acted promptly in seeking to pursue her right by approaching the Security Bureau and then applying for legal aid. When these are all considered against the four months’ delay, I am prepared to exceptionally grant an extension of time to the applicants to apply for judicial review. As a result, I would not set aside the leave granted on the basis of the delay. E. DISPOSITION 108.For all the above reasons, the applicants fail in all their grounds of judicial review. This judicial review should be dismissed. There be an order nisi that costs of the judicial review application be to the Permanent Secretary to be taxed if not agreed. 109.The court also dismisses the Permanent Secretary’s Summons seeking to set aside leave and the costs thereof (on a nisi basis) be to the applicants, to be taxed if not agreed, with certificate for two counsel. 110.The applicants’ own costs be taxed in accordance with legal aid regulations. 111.It remains for me to thank counsel’s assistance in this matter.
Mr Philip Dykes, SC and Mr PY Lo, instructed by Daly & Associates, assigned by Director of Legal Aid, for the 1st and 2nd applicants Mr Jonathan Chang, instructed by Department of Justice, for the respondent [1] See paragraph 8 of the Affidavit of Ng Yin Ha Windsor. [2] The 2nd applicant’s letters basically updated the Immigration Department of her new address and requested them to allow the 1st applicant to come back to Hong Kong to take care of her as she had been pregnant for 29 weeks. See Wong Tak Fai’s Affirmation, paragraph 48. [3] As mentioned above, this is not correct as the 1st applicant had twice failed to report recognizance and had disappeared during those periods. [4] See BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at paragraph 47 (approving Chow J’s summary of these principles in the first instance judgment, with the authorities cited therein). [5] See Article 154(2) of the Basic Law and sections 19, 20 and 25 of the IO. [6] See also the Affirmation of Wong Tak Fai, paragraphs 51 - 54. [7] See Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 332, 339 and 347. [8] Similarly, the courts have also repeatedly upheld the Director’s discertionary adoption of an exceptionality approach when he is considering humanitarian and compassionate grounds under the overall immigration policy. See: BI, supra, paragraphs 92(4) ‑ 111. [9] See paragraph 14 of the judgment where the evidence was quoted in full. [10] AW, supra, at paragraphs 33 - 36. [11] See the 2nd applicant’s 1st Affirmation at paragraphs 30 - 43, and 2nd Affirmation at paragraphs 8 - 12. | ||||||||||||||||||||
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