Sah Shiv Kumar v. The Director of Immigration

HCAL 435/2019

[2019] HKCFI 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 435 OF 2019

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D E C I S I O N

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INTRODUCTION

1.In this application for leave to apply for judicial review, the Applicant seeks to challenge the decision of the Director of Immigration (“the Director”) made on 21 March 2018 refusing his application for a dependant visa.  In the Form 86 dated 15 February 2019 and in his affirmation filed in support of the leave application, the Applicant also stated or indicated that he wished to challenge the deportation order for life issued against him on 6 October 2017 (“the Deportation Order”).  At the hearing on 22 March 2019, the Applicant made it clear that he was also seeking to challenge the Deportation Order in the present application.

BACKGROUND FACTS

2.The Applicant is a Nepalese, and was born in Nepal on 27 February 1977.  On 24 April 2009, he entered Hong Kong illegally from Mainland China, and was arrested by the Police on the same day for being an illegal immigrant.

3.On 26 April 2009, the Applicant was referred to the Immigration Department for further investigation.  On 27 April 2009, the Applicant lodged a torture claim with the Director.  On 5 May 2009, the Applicant was released on recognizance.

4.On 5 June 2013, the Applicant was arrested by the Police outside a warehouse at Airport Freight Forwarding Centre at the Hong Kong International Airport, and was found to be in possession of a Hong Kong Identity Card which was later confirmed to be forged.  On 5 August 2013, the Applicant was convicted of the offence of possession of a forged identity card without lawful authority or reasonable excuse, contrary to Section 7A(1) of the Registration of Persons Ordinance, Cap 177, and on 19 August 2013 was sentenced to 12 months’ imprisonment for that conviction.

5.On 25 June 2015, the Applicant’s non-refoulement claim was rejected by the Director.  On 6 July 2015, the Applicant lodged an appeal/petition against the rejection of his non-refoulement claim.  On 8 March 2017, the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dismissed the Applicant’s appeal/petition (“the Board Decision”).

6.In April 2017, the Applicant made a further non-refoulement claim based on Article 2 of the Hong Kong Bill of Rights.  This claim was rejected by the Director on 21 April 2017 (“the BOR 2 Decision”). There was no appeal/petition against the BOR 2 Decision prior to the expiry of the appeal/petition period on 5 May 2017.

7.In the meantime, on 20 April 2017, the Applicant made an application for leave to apply for judicial review of the Board Decision in HCAL 149/2017. On 1 September 2017, the Applicant’s application in HCAL 149/2017 was refused by Deputy High Court Judge Woodcock.

8.On 6 October 2017, the Permanent Secretary for Security issued the Deportation Order against the Applicant pursuant to Section 20(1)(a) of the Immigration Ordinance, Cap 115 (“the Ordinance”), by reason of the Applicant’s criminal conviction mentioned above.  The Deportation Order was served on the Applicant on 17 October 2017, and he was told to report to the Airport for execution of the Deportation Order on 31 October 2017.

9.On 27 October 2017, the Applicant attended the Deportation Section of the Immigration Department and stated that he had lodged a late petition to the Board against the BOR 2 Decision.  Accordingly, execution of Deportation Order was put on hold pending the outcome of his petition against the BOR 2 Decision.

10.On 13 November 2017, the Applicant married Ms Cheung Shui Kei (“Ms Cheung”), a Hong Kong permanent resident.  On 6 February 2018, the Applicant through his solicitors (David Ravenscroft & Co) submitted an application to the Director for a dependant visa to enable him to stay or remain in Hong Kong as a dependant of Ms Cheung.

11.In view of the existence of the Deportation Order against the Applicant, the Immigration Department decided, and informed the Applicant by a letter dated 21 March 2018, that his dependant visa application could not be considered because he was subject to a deportation order for life which remained in force against him.

12.On 15 February 2019, the Applicant made the present application for leave to apply for judicial review.  On 20 February 2019, the court directed that there be an oral hearing of the application on 22 March 2019.

13.On 25 February 2019, a Memorandum of Notification of an Application for Legal Aid was filed by the Director of Legal Aid in these proceedings.  On 1 March 2019, the court made an order lifting the stay of proceedings consequent upon the filing of the said Memorandum, and directed that the oral hearing of the application for leave to apply for judicial review should proceed on 22 March 2019.

DISCUSSION

14.It is not in dispute that the Applicant has been convicted of an offence which is punishable with imprisonment for not less than 2 years.  Accordingly, the Permanent Secretary for Secretary, acting under the delegated authority of the Chief Executive, was lawfully empowered to make the Deportation Order for life against the Applicant under Section 20(1) of the Ordinance on 6 October 2017.

15.The Deportation Order was in force against the Applicant as at the date of his application for a dependant visa on 6 February 2018.  Under Section 20(7) of the Ordinance, a deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or where it is in force.  It follows that the Director was plainly correct not to consider the Applicant’s dependant visa application, or grant a dependant visa to him.  Indeed, it would be futile to do so, because any such visa would be invalidated as soon as it is granted by virtue of Section 20(7) of the Ordinance.

16.In KC v Director of Immigration, HCAL 413/2018 (16 October 2018), this court held, at paragraph 29(1) of its judgment, that Section 38AA(1)(b) of the Ordinance, which imposes a strict prohibition against any person in respect of whom a removal order is in force from taking any employment in Hong Kong, means that so long as the removal order remains in force, it would not be open to the Director to grant to that person an employment visa.   I consider that a similar reasoning is applicable in the present situation: so long as a deportation order is in force against a person, the Director cannot grant to that person any visa to enter or remain in Hong Kong.

17.The Applicant’s challenge of the Deportation Order is based on the following matters: (i) the Director failed to consider that his marriage with Ms Cheung was legal, (ii) the Deportation Order was issued against him prior to the date of his marriage; and (iii) he did not have any further criminal record, or commit any further criminal offence, after the marriage.  None of these matters can be regarded as valid or sufficient grounds to suspend or rescind the Deportation Order.  In any event, the Applicant has not applied to suspend or rescind the Deportation Order under Sections 54 or 55 of the Ordinance.

18.For the foregoing reasons, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  That being so, there would be no reason to extend the time for him to apply for judicial review of either the decision to issue the Deportation Order on 6 October 2017, or the Director’s decision not to consider his application for a dependant visa made on 21 March 2018.

19.In passing, I should mention that the Applicant informed the court at the hearing that his wife is pregnant and also suffering from some mental problem.  The Applicant is concerned that if he has to leave Hong Kong, there will be no one to look after his wife and his future child. These are matters which fall to be considered by the Director under his policy to depart from the usual restrictive immigration policy on humanitarian or compassionate grounds, but they would not justify relief being granted by the court in the exercise of its supervisory jurisdiction in judicial review.

DISPOSITION

20.The court refuses to extend the time for the Applicant to apply for leave to apply for judicial review, and dismisses the application for leave to apply for judicial review, with no order as to costs.

The Applicant, acting in person

Mr Sunny Li, Senior Government Counsel (Acting), of the Department of Justice, for the Putative Respondent