M and Another v. Permanent Secretary for Security

CACV 296/2017

[2019] HKCA 507

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 296 OF 2017

(ON APPEAL FROM HCAL 186/2017)

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Before: Hon Lam, Kwan VPP and Poon JA in Court

Date of Written Submissions: 22 August and 5 September 2018

Date of Judgment: 10 May 2019

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 20 October 2017, Au J (as he then was) refused to extend time to the applicants to bring an application for judicial review in HCAL 186/2017.  That application was to challenge the decision of the putative respondent [“the Secretary”] of 28 May 2015 rejecting the request by the applicants to rescind a deportation order of 5 March 2013.  The Form 86 in HCAL 186/2017 was lodged by the applicants on 5 May 2017.

2.On 28 December 2017, the applicants served and filed a notice of appeal in respect of the decision of Au J.  In this connection, it should be noted when Au J made the 20 October 2017 order, he also directed that “time to run for leave to appeal be extended to start from the day when Reasons for Decision are handed down”.  The Reasons for Decision was actually handed down on 2 November 2017.  By reason of the legal aid stay arising from the legal aid memorandum of 3 November 2017 (which is applicable even though the appeal had yet to be filed: see Brook v Law Society of Hong Kong [1998] 1 HKLRD 113), the 14-day appeal period (including the 42-day legal aid stay) only expired on 28 December 2017.  Hence, subject to the requirement of leave under Section 14AA, the notice of appeal was served within time.   

3.Further, since Au J had refused to grant extension of time for the original application for judicial review to be brought, the applicants should have sought leave under Section 14AA to bring an appeal against that decision: see MI & IYW v Permanent Secretary for Security [2018] HKCA 419.  Though the actual decision in that case was only made on 23 July 2018, the issue regarding Section 14AA leave had been raised since 3 November 2017 with the solicitors for MI and IYW who have also been representing the applicants in HCAL 186/2017 and this appeal: see [9] of MI & IYW v Permanent Secretary for Security, supra. 

4.But we shall not regard this as a factor against the applicants.  Pending the decision of this Court in MI & IYW v Permanent Secretary for Security, supra, the applicants simply followed previous practice in lodging the appeal without obtaining Section 14AA leave first.

5.After the decision in MI & IYW v Permanent Secretary for Security, supra, the Registrar of Civil Appeals directed on 26 July 2018 that if they are minded to proceed with this appeal, the applicants should seek leave within 28 days.

6.The applicants accordingly took out a summons on 21 August 2018 seeking leave under Section 14AA and extension of time to seek such leave.

7.Given the history of the matter, as indicated above, we would not regard the time taken between the decision of Au J and the summons of 21 August 2018 as delay on the applicants’ part.  We are prepared to consider the leave application as if it were brought within time after the decision of Au J.  However, this would not exonerate them in respect of the delay in bringing the application in HCAL 186/2017.

Proceedings below

8.The relevant facts giving rise to the proceedings below were set out in counsel’s submissions before Au J.  For present purposes, we are content with adopting the summary from paragraphs 5 to 22 of the submissions of Mr Ngan of 12 October 2017: 

“ 5. The 1^st Applicant is a Bangladeshi national. The 2^nd Applicant is Hong Kong permanent resident. The 2^nd Applicant has 2 daughters from her previous marriage in Hong Kong. Both of them were born and grew up in Hong Kong. They are both Hong Kong permanent residents.

6. On 17 April 2006, the 1^st Applicant lawfully came to Hong Kong as a visitor.

7. On 2 May 2006, the 1^st Applicant’s permission to stay in Hong Kong expired. He did not leave Hong Kong.

8. In October 2006, the 1^st Applicant made a non-refoulement claim to the Director of Immigration (“the Director”). At that time, the Director treated it as a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) under the then administrative screening mechanism.

9. On 10 August 2007, the 1^st Applicant was convicted of the offence of ‘Robbery’ and sentenced to imprisonment for 2 years. He pleaded not guilty to that charge but was convicted after trial. His appeal was subsequently dismissed by the High Court.

10. On 8 November 2007:-

10.1. The 1^st Applicant was served a ‘Notice of Consideration of Deportation’. He was asked to make representations in respect of the Director’s intention to apply for a deportation order on the basis of the 1^st Applicant’s conviction as to which the Director concluded that his ‘continued presence in Hong Kong posed a threat to law and order’; and

10.2. The 1^st Applicant made representations to the Director to the effect that he objected to being deported because of his outstanding non-refoulement claim.

11. On 18 October 2008, the 1^st Applicant was released from prison after serving his sentence and was transferred to administrative detention by the Immigration Department.

12. On 10 December 2008, the 1^st Applicant was released from custody on immigration recognizance.

13. On 21 December 2010, the 1^st Applicant and the 2^nd Applicant registered their marriage in Hong Kong. They will be hereinafter referred to as “the Husband” and “the Wife” respectively.

14. In March 2011, the Husband made an application to the Director for dependant visa with the Wife being the sponsor (“the DV Application”).

15. By a letter to the Husband dated 27 July 2011, the Director refused the DV Application.

16. On 13 July 2012, the Director rejected the Husband’s non-refoulement claim insofar as CAT was concerned.

17. On 12 August 2012, the Husband’s petition against the Director’s decision on his non-refoulement claim to the Chief Executive in Council was dismissed without an oral hearing.

18. On 3 January 2012, a ‘bind over’ order was made against the Husband in respect of an alleged offence of ‘Fighting in A Public Place’, as a result of which the relevant prosecution was withdrawn.

19. In January 2013, the Applicants made representations to the Director, requesting that the Husband should not be issued a deportation order.

20. On 5 March 2013, PSS [Permanent Secretary for Security] issued a deportation order against the Husband prohibiting him from entering Hong Kong for life (“the Deportation Order”).

21. By a letter to the Immigration Department dated 6 June 2014, Daly & Associates (now Daly, Ho & Associates), solicitors acting for the Applicants, inter alia, requested that the Deportation Order be rescinded or suspended.

22. By a letter dated 28 May 2015, PSS, inter alia, refused rescission or suspension of the Deportation Order (“the Refusal Decision”).”

9.As shown in the Reasons for Decision in the CALL-1 Form of 2 November 2017, Au J refused to grant extension of time due to the lack of merits in the intended application for judicial review.  The reasons are as follows:

“ 1. The proposed grounds of judicial review are not reasonably arguable for the following reasons.

2. The 1^st Ground (paragraphs 145-168 of Form 86) is premised on the contentions that the Secretary failed to take into account the circumstances of the 1^st applicant’s conviction as found by the Magistrate and the seriousness of that convicted offence in the weighing exercise in deciding to respectively issue the deportation order in the first place and refuse to rescind or suspend it later. There are no merits in this:

(1) There is no challenge in the proposed judicial review against the issue of the deportation order (“DO”) in March 2013 (which challenge in any event is no longer open to the applicants as it is hopelessly out of time to do so now). Hence, there is nothing in the complaint that the Secretary had failed to take into account those matters in issuing the DO.

(2) Insofar as the decision (“the Decision”) dated 28 May 2015 not to rescind or suspend the DO is concerned, it is clear from the 1^st applicant’s solicitor’s letter dated 6 June 2014 (“the D&A Letter”) that these matters had been advanced to the Secretary in support of the application for rescission or suspension. The Secretary was fully aware of those submissions in the decision making consideration (see M3, paragraph 11). The weight that the Secretary should attach to these matters in deciding whether there were such material change of events to justify a rescission or suspension of the DO is a matter for her. The court should give wide margin of deference to the Secretary in her exercise of discretion. In the present case, the court does not find it to be Wednesbury unreasonable for the Secretary not to be so satisfied even after taking into account these matters.

3. The 2^nd Ground (paragraphs 169-195 of Form 86) is premised on the challenge that:

(1) In making the Decision, the Secretary had a duty to, but had failed to so consider the applicants’ purported various family rights under the Basic Law, the Hong Kong Bill of Rights (incorporating the ICCPR), the ICESCR and under the common law. This ground is unarguable for the same reasons the court has rejected similar arguments in Sabir Mohammed v Permanent Secretary for Security (HCAL 114/2015, 27 January 2017, Au J) at paragraphs 71-75 (see also the cases cited therein).

(2) The Decision is discriminatory in nature as it favours Hong Kong residents marrying persons of Chinese nationality from the Mainland.   This is so as it is the applicants’ case that there is allegedly an undisclosed policy or practice maintained by the Secretary that no deportation order would be issued against persons of Chinese nationality coming to Hong Kong under the One Way Permit Scheme even if they commit offences punishable for not less than 2 years or more in Hong Kong.  This ground is not reasonably arguable as the various LegCo proceedings transcripts (Hearing Bundle 2/10/130-158) relied on by the applicants as evidence do not in my view support a reasonably arguable case that there exists such a policy.  All the questions and answers shown in these transcripts are not related to or made in the context of deportation order.  They do not throw any light on whether as a matter of practice or otherwise the Secretary would or would not consider issuing deportation order against mainland migrants in Hong Kong.  In other words, there is no reasonably arguable evidence to show prima facie that there is such an unwritten policy.  [The applicants also seek to rely on the case of Sze Kwan Lung to support the alleged existence of the undisclosed policy (see 2^nd affirmation of Tong Thi Xuan at paragraphs 11-15).  However, in the court’s view, even taken to the highest, one single example cannot amount to an arguable prima facie evidence of the undisclosed policy.]  

(3) In making the Decision, the Secretary had taken into account unsupported assumption that it was open to the 2^nd applicant to join the 1^st applicant outside Hong Kong and failed to consider the existence of the 1^st applicant’s non-refoulement claim. There are no merits in this ground:

(a) First, it is for the applicants seeking the rescission to put forward all the matters that are within their objective and reasonable contemplation to be relevant to the application. It must be objectively within the reasonable contemplation of the applicants that the 2^nd applicant for good reasons would be unable join the 1^st applicant outside Hong Kong (if that is the case) is such a relevant matter. Hence there cannot be a valid complaint as now alleged by the applicants that the Secretary had failed to inform them what matters in this respect she was looking for. See: Sabir, paragraphs 87-90. Second and in any event, in considering whether to rescind or suspend the DO, it is for the applicants to show and satisfy the Secretary that there is such a material change of circumstances that justify it. There is none in this respect since there was no change concerning this matter between the time of the issue of the DO and the application for rescission.

(b) There are similarly no merits in saying that the Secretary had not properly considered the existence of the 1^st applicant’s non-refoulement claim where he claimed that his life would be at risk if he was to return to his home country. It is trite that the existence of such a claim does not prevent the making of a removal or deportation order: A v Director of Immigration [2008] 4 HKLRD 752 at paragraphs 20-25 per Tang VP (as he then was). This matter is thus irrelevant. Further, this factor in any event does not amount to a material change of event as it was there already when the decision to issue the DO was made and the Secretary already took that into account at that time (see M1, paragraph 16). See also: Imran Muhammad v Secretary for Security (HCAL 227/2015, 7 October 2016, Au J) at paragraphs 33(1) and (2) and Nisa Azizan v Director of Immigration (HCAL 203/2015, 15 April 2016, Chow J) at paragraph 48.

4. The 3^rd Ground (paragraphs 196-200 of Form 86) argues that the Decision is unlawful and Wednesbury unreasonable as the Secretary had failed to make sufficient inquiry on the likelihood of the 1^st applicant re-offending and had failed to give adequate reasons in the Decision. This ground is without merit:

(1) This purported low risk of re-offending by the 1^st applicant is fully advanced in the D&A’s Letter and had been taken into account in the decision making process (see M3, paragraph 11). It is matter of weight for the Secretary to decide whether this factor is sufficient to satisfy her that there is such material change of circumstances to make it exceptional so as to rescind or suspend the DO. The court does not find it to be Wednesbury unreasonable for the Secretary not to be so satisfied, in particular in light of the fact that there is only a lapse of about 15 months between the issue of the DO and the application for rescission.

(2) The Secretary is generally under no duty to give reasons in an application as the present. In any event, the applicants are not substantially prejudiced by the alleged lack of reasons in the Decision. They have no difficulty in advancing all the proposed grounds of judicial review against the Decision. See: Sabir, paragraphs 91(1)-(2).

5. The 4^th Ground (paragraphs 201-208 of Form 86) contends that as a matter of law, the Secretary should adopt a different approach in consideration whether to rescind the DO and whether to suspend the DO, as they should engage two different tests. It is argued that the Secretary in the present case committed an error of law or failed to properly discharge her duty as she had apparently in the Decision adopted the same consideration for rejecting both applications. This is unarguable for the same reasons Chow J rejected similar submissions in Touray Edrisa v Permanent Secretary for Security (HCAL 91/2016, 15 May 2017) at paragraphs 59-61.

6. Finally, given that there are no merits in the proposed judicial review grounds, the court also would not extend time for the applicants to apply for leave.”

Our views

10.The proposed grounds of seeking review advanced in the present case are similar to those run on behalf of MI and IYW.  As conceded by counsel in MI & IYW v Permanent Secretary for Security, supra, the grounds based on affording margin of discretion to the Secretary and family rights cannot be reasonably arguable in light of BI v Director of Immigration [2016] 2 HKLRD 520 and Comilang Milagros Tescon v Director of Immigration [2018] 2 HKLRD 534. The so-called discrimination ground was also addressed in MI & IYW v Permanent Secretary for Security, supra, at [66] to [71]. 

11.Mr Ngan placed much reliance on Singh v Secretary for Security (1996) 6 HKPLR 440.  The Court had considered arguments based on that authority in BI v Director of Immigration, supra, at [110] to [111].  As held there, Singh v Secretary for Security was about deportees who had been lawfully in Hong Kong as ordinary residents for a very long time before their convictions in 1994.  Obviously, the position of the 1^st applicant in the present case is quite different: his permission to remain in Hong Kong had expired since 2 May 2006; he committed serious crime whilst he had no permission to stay here; he was imprisoned for his crime and he then prolonged his presence by an unmeritorious non-refoulement claim (his application for judicial review in that regard was dismissed on 18 July 2014).

12.Singh v Secretary for Security had been duly considered by Au J in Sabir Mohammad v Permanent Secretary for Security HCAL 114/2015, 27 January 2017 and Chow J in the first instance decision of MI & IYW v Permanent Secretary for Security HCAL 44 of 2016, 9 May 2017.  At [42] of the judgment of Chow J, the relevant legal principles on rescission of deportation orders are summarized with cross-referencing to the judgment in Sabir Mohammad:

“ (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 to merit 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).”

13.We respectfully agree with these principles.

14.At the highest, in our view, Singh v Secretary for Security can only be regarded as supportive of the proposition that hardship had to be taken into account.  However, for the reasons given by Au J in the CALL-1 Form of 2 November 2017, hardship had already been taken into account when the deportation order was made as well as when the request for rescission was considered.

15.The other grounds relied upon by Mr Ngan have been sufficiently addressed by Au J and this Court is not persuaded that there is any reasonable basis for disturbing Au J’s conclusions.

16.The fact that there are pending applications in other cases for leave to appeal to the Court of Final Appeal cannot be a good ground for us to grant leave under Section 14AA when it is our view that the proposed judicial review is not reasonably arguable.  In any event, the Comilang appeal in FACV 9/2018 was dismissed by the Court of Final Appeal on 4 April 2019.

17.In the circumstances, we do not find reasonably arguable grounds in the appeal and we are not satisfied that there are other reasons in the interest of justice to grant leave under Section 14AA.

Disposition

18.We therefore refuse to grant leave.  As held in MI & IYW v Permanent Secretary for Security, supra, without such leave, this appeal is incompetent and we make an order striking it out.  The appeal is dismissed with costs accordingly.  Having considered the Statement of Costs for the Permanent Secretary, we fix the same at $60,664.  The applicant’s own costs are to be taxed according to Legal Aid Regulations.

Mr Francis Ngan, instructed by Daly & Associates, assigned by the DLA, for the applicants

Mr Suen Sze Yick, Senior Government Counsel and Miss Sylvia Lee, Government Counsel, of the Department of Justice, for the Respondent