Mi and Anohter v. Permanent Secretary for Securtiy

HCAL 44/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 44 OF 2016

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J U D G M E N T

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INTRODUCTION

1.By their Form 86 dated 19 February 2016, the 1^st and 2^nd applicants applied for leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Permanent Secretary”) made on 10 June 2015 (“the Decision”) refusing to rescind the deportation order made against the 1^st applicant dated 13 December 2012 (“the Deportation Order”).

2.The applicants accept that the leave application was made out of time and thus an extension of time to make the application is required (see paragraph 44 the Form 86).

3.Upon consideration of the applicants’ ex parte application for leave to apply for judicial review, I gave (inter alia) the following direction on 12 April 2016, namely, that there be a rolled up hearing of:-

(1)   the application for an extension of time to apply for leave to apply for judicial review;

(2)   the application for leave to apply for judicial review in the event that an extension of time was granted; and

(3)   the substantive application for judicial view in the event that leave to apply for judicial review was granted.

4.On 7 December 2016, the applicants took out a summons seeking leave to amend the Form 86 to raise, essentially, an additional ground of review, namely, that the Permanent Secretary exercised his power to make deportation orders under section 20 of the Immigration Ordinance in a discriminatory manner, differentiating between Mainland residents who came to Hong Kong on the strength of One-Way Permits (“OWPs”) and other foreign nationals.

5.This is my judgment on the various applications which came before me on 6 January 2017.

BAsic FACTS

(i)   Personal and immigration background

6.The 2^nd applicant was born on 16 October 1961 in Hong Kong.  She is a Hong Kong permanent resident.  She has three children aged 28, 21 and 19 respectively from her two previous marriages.

7.According to the 1^st applicant, he was born on 3 May 1974 in Sialkot, Pakistan.

8.The 1^st applicant came to Hong Kong on 25 September 2002 using a Pakistani passport bearing a particular identity (“ID1”).  He was permitted to stay as a visitor for 14 days until 9 October 2002.  He did not, however, depart from Hong Kong as required but overstayed in Hong Kong.  In between, a person reported the loss of the said passport and subsequently departed from Hong Kong on 6 October 2002 using the identity “ID1”.

9.On 13 October 2003, the 1^st applicant was arrested by the Police.  Upon investigation, the 1^st applicant claimed that he had no knowledge of the imposter who had departed from Hong Kong on 6 October 2002 as aforesaid.

10.On 23 October 2003, the 1^st applicant was convicted of the offence of “breach of condition of stay” and sentenced to a term of imprisonment of 2 months suspended for 2 years.  He was later removed from Hong Kong to Pakistan on 26 November 2003.

11.On 23 May 2007, the 1^st applicant was arrested by the Police for being a suspected illegal immigrant in Hong Kong.  At the time of his arrest, the 1^st applicant claimed a different identity (“ID2”).  When questioned by the Police, the 1^st applicant admitted that he had entered Hong Kong unlawfully by boat from China on 5 February 2007. He further stated that he had previously come to Hong Kong using a different identity “ID1”, that he had a nickname in Pakistan, and both “ID1” and “ID2” were his names.  Upon checking with the UNHCR, the Police was informed that the 1^st applicant had lodged a refugee claim using the identity “ID2”.  The police then referred him to the Immigration Department for further action.

12.In his interview by immigration officers on 16 June 2007, the 1^st applicant claimed that “ID1” was his true identity, and he had used a false identity, “ID2”, to travel from Pakistan to China, from where he came to Hong Kong unlawfully by boat on 5 February 2007.

13.On 6 July 2007, the 1^st applicant was released on recognizance by the Immigration Department in view of his outstanding refugee claim.

14.On 13 February 2012, the 1^st applicant was convicted of the offence of “remaining in Hong Kong without the authority of the Director after having landed in Hong Kong unlawfully”, and sentenced to a term of imprisonment of 14 months.  On 29 September 2012, the 1^st applicant was discharged from prison and transferred to the CIC for further action by the Immigration Department.

15.The 1^st applicant has been released on recognizance since 18 March 2013.

(ii)   The 1^st applicant’s refugee and non-refoulement claims

16.In March 2007, the 1^st applicant made a refugee claim with the UNHCR.  His refugee claim was closed in November 2007. 

17.On 15 March 2010, the 1^st applicant lodged a CAT claim with the Director of Immigration (“the Director”). The CAT claim was refused by the Director on 6 May 2011.

18.On 27 July 2011 the 1^st applicant filed a petition against the Director’s decision to refuse his CAT claim, and on 28 July 2011 he requested the UNHCR to re-open his refugee claim.

19.On 16 August 2011 the 1^st applicant’s petition against the Director’s refusal of his CAT claim was rejected by the Adjudicator, and on 7 December 2011 the 1^st applicant’s request to re-open his refugee claim was refused by the UNHCR.

20.On 25 January 2013, the 1^st applicant lodged a CIDTP claim, which is currently still under processing.

(iii)   The 1^st applicant’s dependant visa application

21.On 18 September 2011, while he was on recognizance, the 1^st applicant married the 2^nd applicant in Hong Kong.

22.On 27 September 2011, the 1^st applicant submitted a dependant visa application for taking up residence in Hong Kong as the 2^nd applicant’s dependant. 

23.On 10 September 2012, the Director rejected the 1^st applicant’s dependant visa application.

24.On 30 June 2015, the 1^st applicant made a fresh application for a dependant visa.  By a letter dated 13 July 2015, the Director informed the 1^st applicant that his fresh application could not be considered because he was subject to a deportation order for life (more particularly described below) which was in force.

(iv)  The Deportation Order

25.On 19 April 2012 while the 1^st applicant was serving his prison sentence, the Director notified the 1^st applicant of his intention to apply for a deportation order against the 1^st applicant.

26.On 23 April 2012, the 1^st applicant submitted a written objection to the proposed deportation order against him on the grounds that he got married in Hong Kong on 18 September 2011, his wife was a Hong Kong permanent resident, and he wanted to live with his wife in Hong Kong.  On 12 July 2012, in the course of an interview by immigration officers, the 2^nd applicant submitted a letter objecting to the proposed deportation order against the 1^st applicant on the grounds that she wanted to live with the 1^st applicant in Hong Kong and they had submitted a dependant visa application for the 1^st applicant.

27.On 27 November 2012, the 2^nd applicant confirmed that she would not make any further representation in respect of the 1^st applicant’s intended deportation.  On 3 December 2012, the 1^st applicant, in an interview, reiterated his objection to his proposed deportation to Pakistan on the ground, inter alia, that he wanted to live with his wife in Hong Kong.

28.On 7 December 2012, the Director submitted an application to the Secretary for Security for a deportation order against the 1^st applicant.

29.As can be seen from the internal minutes of the Security Bureau (M.2), the Director’s application for a deportation order against the 1^st applicant was considered by an executive officer, a senior executive officer, the Principal Assistant Secretary for Security, and the Permanent Secretary successively.  At paragraphs 16 to 18 of M.2, the executive officer stated as follows:-

“16. The representations put forth regarding the relationship between [the 1^st applicant], [the 2^nd applicant] and her three children have been fully considered. [The 1^st applicant] is an illegal immigrant. When he married [the 2^nd applicant] on 18 September 2011, he was well aware that his torture claim, including his petition, had already been rejected and that, being an illegal immigrant, he had not been granted with any permission of stay in Hong Kong. He should not have any expectation that he would be allowed to lead a nuptial life in Hong Kong.

17. [The 2^nd applicant’s] three children are now 27, 19 and 17 years old and have been living in Hong Kong without [the 1^st applicant] before [the 1^st applicant and the 2^nd applicant] get to know each other in 2010. There is no indication that the deportation of [the 1^st applicant] will create undue hardship to [the 1^st applicant] and her three children. In any event, the deportation order against [the 1^st applicant], if made, only prevents him from coming to Hong Kong again. It would not deprive [the 1^st applicant] of his freedom to stay with [the 2^nd applicant] and her children in Pakistan or any places outside Hong Kong if they wish.

18. The nature of [the 1^st applicant’s] committed offence is serious as reflected by the 14 month’s custodial sentence imposed by the Court.  His continued presence in Hong Kong is considered undesirable.  Having taken into account all the circumstances of the case, we consider that the representations submitted by [the 1^st applicant and the 2^nd applicant] do not sufficiently justify an extenuating ground warranting exceptional consideration.  We recommend that [the 1^st applicant] be deported for life.”

30.The executive officer’s recommendation was supported by the senior executive officer and the Principal Assistant Secretary for Security, and accepted by the Permanent Secretary.

31.On 13 December 2012, the Permanent Secretary made the Deportation Order against the 1^st applicant.

(v)   The Decision refusing to rescind the Deportation Order

32.On 31 December 2013, Daly & Associates on behalf of the 1^st applicant applied to the Secretary for Security for rescission of the Deportation Order.  Apart from reiterating the background and family circumstances of the 1^st applicant, Daly & Associates contended that there was a “fundamental change in circumstances” since the making of the Deportation Order which would justify a decision to rescind the Deportation Order.  The so-called fundamental change in circumstances was, apparently, a reference to the fact the 1^st applicant had an outstanding CIDTP claim.

33.In subsequent letters from Daly & Associates to the Secretary for Security, reliance was also placed on the fact that the 2^nd applicant had been suffering from depressive episode requiring daily medication.

34.On 17 October 2014, the Police, in response to the Immigration Department’s request for comment on the rescission application, stated that they saw no grounds to support the application.

35.On 5 February 2015, the Director recommended to the Secretary for Security that the rescission application should be rejected, and that suspension of the Deportation Order should also not be considered in the circumstances of this case.

36.As can be seen from the internal minutes of the Security Bureau (M.5), the 1^st applicant’s application for rescission of the Deportation Order was considered by an executive officer, a senior executive officer, the Principal Assistant Secretary for Security, and the Permanent Secretary successively.  At paragraphs 15 to 17 of M.5, the executive officer stated as follows:-

“15. The deportation of [the 1^st applicant] was the consequence of his criminal conviction in Hong Kong. The representations put forth regarding the relationship between [the 1^st applicant and the 2^nd applicant] have been fully considered. Being a person who has no right or permission to remain in Hong Kong, [the 1^st applicant] should not have any expectation that he would be allowed to lead a normal family life in Hong Kong when he married [the 2^nd applicant].

16. [The 1^st applicant and 2^nd applicant] also sought to rely on the family right under the Basic Law and other sources of laws in Hong Kong to resist deportation of [the 1^st applicant]. It is considered that the deportation order does not prevent [the 1^st applicant, the 2^nd applicant] and their three children from enjoying their rights to family life outside Hong Kong. It is a matter of their choice whether the family would choose to re-establish their life in Pakistan or other places outside Hong Kong, if they wish. Even if [the 2^nd applicant] does not choose to reside in a place outside Hong Kong with [the 1^st applicant], she is still free to travel abroad to visit [the 1^st applicant] any time.

17. Having considered all circumstances of the case, it is considered that the grounds put forth by D&A in the present request do not sufficiently justify rescission of the deportation order against [the 1^st applicant].  We recommend that the request for rescission of the deportation order made against [the 1^st applicant] be rejected.  By the same token, it is also recommended that suspension of the deportation order made against him should not be considered.”

37.The executive officer’s recommendation was supported by the senior executive officer and the Principal Assistant Secretary for Security, and accepted by the Permanent Secretary.

38.On 9 June 2015, the Permanent Secretary made the Decision refusing to rescind the Deportation Order.

39.By a letter dated 10 June 2015, the Permanent Secretary informed Daly & Associates of the Decision, stating that he was unable to find sufficient justification for suspending or rescinding the Deportation Order.

PROPOSED GROUNDS OF JUDICIAL REVIEW

40.As can be seen from the skeleton argument of Mr Philip Dykes SC dated 23 December 2016 on behalf of the applicants, six grounds are advanced in support of the present application:-

(1)   The Permanent Secretary erred in imposing the requirement of “exceptionality” for rescinding a deportation order (“the 1^st Ground”).

(2)   The Permanent Secretary erred in failing to consider the 2^nd applicant’s rights to marry and to raise a family under Article 37 of the Basic Law (“the 2^nd Ground”).

(3)   The refusal to rescind the Deportation Order was procedurally unfair in two ways: (i) the Permanent Secretary never informed the applicants of the need to show exceptional humanitarian and compassionate considerations, or any matters they ought to satisfy him, to succeed in applying for a rescission of the Deportation Order, and (ii) the Permanent Secretary never allowed the applicants to make representations on the viability of relocating to Pakistan (“the 3^rd Ground”).

(4)   The Permanent Secretary erred in failing to recognise there was an important change of circumstances (namely, the 1^st applicant had an outstanding non-refoulement claim) warranting a rescission or at least a suspension of the Deportation Order (“the 4^th Ground”).

(5)   The Decision is Wednesbury unreasonable (“the 5^th Ground”).

(6)   The Permanent Secretary has exercised his power to make deportation orders in a discriminatory manner (“the 6^th Ground”).

1^st, 2^nd and 3^rd Grounds were recently determined in another case

41.On 27 January 2017, Au J handed down a judgment in Sabir Mohammed and Another v Permanent Secretary for Security, HCAL 114/2015, another case concerning a challenge against a refusal of the Permanent Secretary to rescind a deportation order, in which, inter alia, the 1^st, 2^nd and 3^rd grounds of judicial review relied upon by the present applicants were also relied upon by Mr Sabir Mohammed (not surprisingly in view of the fact that he was represented by the same senior counsel in that case).

42.As I understand it to be the position, the grounds of judicial review relied upon in the present case and in Sabir Mohammed are not uncommon in challenges against decisions made by the Permanent Secretary refusing to rescind deportation orders in similar circumstances.  In such circumstances, there is, I believe, much to be said for judges at first instance to apply the relevant legal principles uniformly for the sake of legal certainty and consistency.  In any event, as far as I am concerned, I consider that I ought to follow the rulings made by Au J in Sabir Mohammed in so far as they are applicable unless I strongly disagree with them.  As it is, I totally agree with the views expressed by Au J.  No useful purpose will be served by my seeking to re-formulate the relevant principles in my own words.  For ease of reference, I set out below the basic principles relating to deportation orders and immigration policy as stated by Au J in Sabir Mohammed (with some minor corrections or modifications):-

(1)   As the clear words in section 20(1)(a) of the Immigration Ordinance provide, the Chief Executive (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 less than two years. In other words, the legislature has identified and regarded that an offence which is punishable for not less than two years is by itself serious enough tomerit the issue of a deportation order (paragraph 37).

(2)   A deportation order made under section 20(1)(a) of the Immigration Ordinance is prima facie for life, absent special circumstances (paragraph 38).

(3)   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 (paragraph 39).

(4)   The Permanent Secretary, being required to exercise a discretion under sections 20(1)(a), 54 or 55 of the Immigration Ordinance, is involved in a balancing exercise in deciding whether to exercise the power so vested (paragraph 40).

(5)   The principles governing the relevance of a consideration that a decision-maker vested with a discretion should and could take into account are these:

(a)   The decision-maker must take into account matters clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had.

(b)   The decision-maker must not take into account matters clearly identified by the relevant legislation as considerations to which regard must not be had.

(c)   The decision maker may have regard to other matters if, in its judgment and discretion, he thinks it is right to do so.

(d)   Under the above third category, subject to Wednesbury unreasonableness, what is and what is not a relevant consideration for a decision-maker to have in mind is, absent any statutory code of compulsory considerations, for the decision-maker, not the court, to decide.  Similarly, the weight that should be given to a factor which the decision-maker has regarded as relevant is a matter for him, not the court (paragraph 41).

(6)   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.  Further, in the exercise of his power and discretion he adopts an overall restrictive immigration control policy.  The legitimacy and rationality of such an overall restrictive policy applicable to the entire immigration regime is well recognised and accepted by the courts (paragraph 42).

(7)   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 policy, the Government has formulated different 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 (paragraph 43).

(8)   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 allow him to stay in Hong Kong on humanitarian or compassionate grounds on an individual basis.  Insofar as the Director is to consider this ground, it has been his policy and practice that he would only favourably exercise his discretion 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. However, if he does consider those grounds, subject to any challenge based on procedural unfairness, the court would not lightly interfere with his decision on the ground of Wednesbury unreasonableness as the court must have regard to his wide discretion and the context of whether the applicant merits exceptional treatment against a stringent overall immigration policy (paragraph 44).

1^st Ground: the requirement of “exceptionality”

43.There is nothing in M.5 to show that that the Permanent Secretary adopted the approach, as submitted by Mr Dykes, that the family interests of the applicants would only be considered in “exceptional cases” (see paragraph 43 of his skeleton argument dated 23 December 2016).  As a matter of fact, the family background of the applicants was set out in paragraph 7 of M.5, and the grounds put forward by Daly & Associates, including the family circumstances of the applicants, in support of the rescission application were set out in paragraph 10 of M.5.  Those circumstances were fully considered (see paragraphs 15 and 17 of M.5).

44.In any event, in respect of a similar complaint raised in Sabir Mohammed that the Permanent Secretary erred in law in adopting “as a threshold test the ‘exceptionality requirement’ to consider whether there are sufficient humanitarian or compassionate circumstances to justify the rescission of [a deportation order]” (paragraph 57), Au J, having reviewed a line of relevant authorities, concluded at paragraph 68 “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 [Immigration Ordinance]” to suspend or rescind a deportation order.

45.For the above reasons, I do not consider the 1^st Ground to be reasonably arguable.

2^nd Ground: 2^nd applicant’s marriage and family rights under BL 37

46.In Sabir Mohammed, it was argued that “the Permanent Secretary in considering the rescission application had a legal obligation to have had regard, and thus give significant weight, to the applicants’ purported rights to family” under (inter alia) Article 37 of the Basic Law (paragraph 71). Au J concluded, however, that the Permanent Secretary was not under any legal obligations to consider such rights in relation to the issue, rescission or suspension of a deportation order (paragraph 74).

47.Furthermore, as stated by the Court of Appeal in Safder Tehseen v Permanent Secretary for Security, CACV 167/2012 (6 June 2013), at paragraph 54, it is well established that in considering deportation, the Permanent Secretary has no general duty to take compassionate or humanitarian factors into account, even where family ties may be affected.  No valid distinction can, in my view, be drawn between the making of a deportation order and the suspension/rescission of a deportation order.

48.Lastly, it is clear, from M.5, that the family circumstances of the applicants were taken into account when the Permanent Secretary made the Decision.

49.In all, I consider that the 2^nd Ground has no substance.

3^rd Ground: procedural unfairness

50.In Sabir Mohammed, it was complained that “even if the Permanent Secretary’s … 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” (paragraph 69).  Au J rejected this complaint by relying upon the following observation of Ribeiro PJ at paragraph 66 of his judgment in Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138: “there is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers” (paragraph 70). In respect of the further complaint that “the applicants should have been first informed of the Director’s suggestion or comment that the 2^nd applicant could take the baby and reunite with the 1^st applicant outside Hong Kong should she wish to do so, so that she could properly respond to that” (paragraph 87(1)), Au J held that:-

(1)   “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” (paragraph 89); and

(2)   “[i]n 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 1^st 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” (paragraph 90).

51.These rulings are sufficient to dispose of the 3^rd Ground.

4^th Ground: whether there has been any material change of circumstances

52.The change of circumstances relied upon by the applicants is the fact that the 1^st applicant had an outstanding non-refoulement (CIDTP) claim which was lodged after the making of the Deportation Order.  While the existence of an outstanding non-refoulement claim would be relevant to a decision whether to actually remove the 1^st applicant from Hong Kong pursuant to the Deportation Order, I do not consider it to be relevant or material to the question of whether to suspend or rescind the Deportation Order.  This view is consistent with, and supported by, the well established principle that the existence of a CAT (or other non-refoulement) claim does not prevent the making of a removal or deportation order (see A v Director of Immigration [2008] 4 HKLRD 752, at paragraphs 20-25 per Tang VP (as he then was), giving the judgment on behalf of the Court of Appeal).  In my view, the 4^th Ground is plainly not reasonably arguable.

5^th ground: whether the decision is unreasonable?

53.In order to make out the complaint that it is unreasonable of the Permanent Secretary not to rescind the Deportation Order, the applicants have to overcome a high threshold.  It is primarily a matter for the Permanent Secretary to decide how much weight should be given to the various matters relied upon by the 1^st applicant in support of his application to rescind the Deportation Order.  The applicants have come nowhere near in establishing that the Decision is unreasonable in the Wednesbury (or public law) sense.

54.Mr Dykes argues that the Permanent Secretary’s Decision ought to be made with and subject to anxious scrutiny by reason of the gravity of the issue involved, and he relies on Secretary for Security v Prabakar (2004) 7 HKCFAR 187 in support of this argument.  As is well known, Prabakar related to the Secretary for Security’s policy of not deporting a person to a country where that person’s claim that he would be subjected to torture in that country was considered to be well-founded, and the question which arose for consideration by the Court of Final Appeal was whether the Secretary was required to make her own assessment of the claim instead of relying wholly on the refusal by the UNHCR to grant refugee status to that person.  Leaving aside the 1^st applicant’s refugee claim, CAT claim and CIDTP claim, which have either been processed or are currently under processing separately, I can see no basis, or reason in principle, for the adoption of the “anxious scrutiny” approach in the context of a challenge against a decision not to rescind a deportation order. This was also the view of A Chung J(as he then was) in Pollard v Permanent Secretary for Security, HCAL 92/2010 (11 March 2011) at paragraph 56, and of Au J in Sabir Mohammed at paragraph 83.  In any event, even if one should subject the Decision to an anxious scrutiny review, I do not consider that there would be any sufficient basis to override the Permanent Secretary’s Decision on the facts and circumstances of this case.

6^th Ground: Whether the Permanent Secretary has exercised his power to make deportation orders in a discriminatory manner?

55.The Secretary for Security, in reply to questions raised by a Legislative Councillor dated 22 January 2014, stated that the Immigration Department “does not maintain figures of OWP holders with criminal records in Hong Kong or the Mainland”.  Based on this reply, the applicants allege that the Permanent Security “appears” to have never made a deportation order against a Mainland resident who has come to Hong Kong on the strength of a OWP and then a committed criminal offence, and contends that the Permanent Secretary has exercised his power under section 20 of the Immigration Ordinance in a discriminatory manner to the detriment of Hong Kong permanent residents married to foreign nationals (see paragraphs 96 and 97 of the draft Form 86).

56.In my view, there is no sufficient basis for any allegation that the Permanent Secretary, has, as a matter of fact, never made a deportation order against a OWP holder who has come from Mainland and then committed a criminal offence in Hong Kong.

57.Assuming, for the sake of argument, that:-

(1)   the Permanent Secretary has adopted a rigid policy of not making a deportation order against a OWP holder who has come from Mainland and then committed a criminal offence in Hong Kong; and

(2)   the adoption of such policy amounts to an improper fettering of his delegated discretion under section 20 the Immigration Ordinance,

it cannot, in my view, sensibly be argued that the Permanent Secretary should likewise fetter his discretion in favour of other foreign nationals married to Hong Kong permanent residents in order not to discriminate against the latter group of persons.  What the law would require, instead, is that the Permanent Secretary should properly exercise his delegated discretion under section 20 the Immigration Ordinance in any given case, irrespective of whether or not the person whose deportation is under consideration is a OWP holder.

58.In any event, the present challenge is not against the original Deportation Order issued by the Permanent Secretary on 13 December 2012, but the Decision refusing to rescind the Deportation Order made on 10 June 2015. Any challenge against the former decision by way of judicial review would now be very substantially out of time.

59.In all, I am not satisfied that the 6^th Ground is reasonably arguable.

Overall conclusion on merits

60.None of the applicants’ proposed grounds of judicial review of the Decision is reasonably arguable, or has any reasonable prospect of success.

Extension of time would not be granted

61.Having reached the conclusion that none of the applicants’ proposed grounds of judicial review is reasonably arguable, there would be no reason to grant any extension of time for them to apply for leave to apply for judicial review.

DISPOSITION

62.For the forgoing reasons, I decline to grant the extension of time sought by the applicants to apply for leave to apply for judicial review, or grant them leave to amend the Form 86 under their summons dated 7 December 2016. I also dismiss their application for leave to apply for judicial review of the Decision.

63.On the question of costs, I make the following orders:-

(1)   the applicants shall pay the costs of the Permanent Secretary, to be taxed if not agreed; and

(2)   the applicants’ own costs are to be taxed in accordance with legal aid regulations.

Mr Philip Dykes, SC, instructed by Daly & Associates, assigned by Director of Legal Aid, for the applicants

Mr Yang-Wahn Hew, instructed by Department of Justice, for the putative respondent