Case Document

100%Judiciary

CACV 347/2018

[2019] HKCA 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 347 OF 2018

(ON APPEAL FROM HCAL 260/2018)

-----------------------------------

BETWEEN
	SYED SAJJAD AHMED alias SAJJAD GILANI	Applicant
and
	SECURITY BUREAU	Putative Respondent

-----------------------------------

Before:

Hon Cheung and Barma JJA in Court

Dates of Hearing:	4 December 2018 and 14 May 2019
Date of Judgment:	21 May 2019

___________________

J U D G M E N T

___________________

Hon Barma JA (giving the Judgment of the Court):

1.This was an appeal against the decision of Chow J dated 16 July 2018, refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Permanent Secretary for Security (“the Secretary”) dated 21 November 2017 (“the Secretary’s Decision”) refusing the applicant’s request for rescission or suspension of the deportation order against him dated 30 November 1998 (“the Deportation Order”).

2.In about 1998, the applicant (then calling himself Syed Sajjad Ahmed) was convicted of possession of an identity card relating to another person and breach of condition of stay. For these offences, he was sentenced to 12 months and 2 months of imprisonment respectively, both sentences to run concurrently.

3.The applicant was deported to Pakistan on 27 April 1999. Shortly thereafter, he married Madam Bi, a Hong Kong resident of Pakistani origin, in Pakistan on 12 May 1999.

4.The applicant then entered Hong Kong as a visitor on 6 September 2000, using the name Sajjad Shah. He overstayed from 21 September 2000 onwards, and was eventually arrested and convicted of breach of condition of stay on 4 April 2002. For this offence, he was sentenced to 2 months’ imprisonment suspended for 2 years. He was repatriated to Pakistan on 12 April 2002.

5.The son of the applicant and Madam Bi was born on 23 November 2000 in Hong Kong. Madam Bi and the son acquired the right of abode in Hong Kong on 2 April 2005 and 25 April 2005 respectively.

6.From 2006 onwards, the applicant, using the name of Sajjad Gilani (which he says is his real name), submitted applications for visit visas and a dependent visa to allow him to come to Hong Kong, with Madam Bi as his sponsor. None of these applications were successful.

7.Despite being unable to obtain a visa, the applicant travelled to Hong Kong on 19 December 2013. Upon his arrival, the applicant was refused permission to land, whereupon he then lodged a claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”) and also a non-refoulement claim.

8.By letters dated 31 March 2015 and 6 August 2015 (the years for both these letters should be 2016), the applicant’s then solicitors wrote to the Secretary for Security requesting the rescission or suspension of the Deportation Order (which had been made in 1998).

9.The Secretary refused the request by a letter to the applicant’s then solicitors dated 21 November 2017.

10.On 20 February 2018, the applicant took out an application for leave to apply for judicial review against the Secretary’s Decision. The applicant did not give any ground for judicial review in the Form 86 or his affirmation, which was also dated 20 February 2018.

11.On 16 July 2018, Chow J dismissed the application. The judge’s reasons are contained in the CALL-1 Form, and are as follows:

“In this application for judicial review, the Applicant seeks an order for the rescission of a deportation order dated 21 November 2017. However, the Applicant has failed to set out any ground in support of the relief sought in his Form 86 dated 20 February 2018. In his Affirmation dated 20 February 2018, the Applicant has likewise failed to set out any ground in support of the application for leave to apply for judicial review. The Affirmation merely states ‘Rescission of Deportation Oder Exhibit (A)’, and Exhibit (A) is a copy of a letter dated 21 November 2017 from the Security Bureau to Daly Ho & Associates informing the latter that the Applicant’s requests for rescission of a deportation order made against the Applicant were refused. On the materials before the court, no proper ground has been disclosed which can possibly justify the court granting leave to apply for judicial review, Accordingly, the application for leave to apply for judicial review is dismissed.”

12.By a notice of appeal dated 27 July 2018, the applicant appealed against the Decision, he relied on this ground in the notice of appeal:

“The Honourable Justice errs materially in law in failing to adopt a proper structure to credibility the order is based upon conclusions regarding my credibility and yet no indication is provided that a reasoned of evaluating these matters [see (Jamaica) AF v Secretary of State for Home Department [2009] EWCA Civ 240]. The Honourable Justice not point out that the right of my family of great importance. About my child as provided the status in Articles 24, 25, 37, 29, 14, 19(1) etc. My wife and my son want me they want my support so withdrawal this order.”

13.The Secretary, as putative respondent to the application for leave to apply for judicial review, sought and was granted leave to file evidence setting out the background to these proceedings. Pursuant to such leave, Madam Ng Yin Ha Windsor of the Security Bureau filed an affirmation dated 19 November 2018 on behalf of the Secretary. She deposed to the events leading to the Secretary’s Decision and exhibited the relevant documents to her affirmation.

14.In his skeleton submissions dated 5 November 2018, the applicant submitted that:

(i) the applicant was not married at the time of the Deportation Order. After the Deportation Order, he married and his son was born. The applicant is a different person from he was in 1998. The Secretary failed to give full consideration to these changes; and

(ii) The Secretary failed to take into account the importance of the son to the applicant’s application to rescind/suspend the Deportation Order. The applicant referred to Articles 24, 25, 37 and 39 of the Basic Law, Articles 14, 19(1), 20(1) and 22 of the BORO, Articles 17, 23(1) and 24(1) of the International Covenant on Civil and Political Rights, Article 10 of the International Covenant on Economic Social and Cultural Rights and Articles 1 to 7, 9 and 18 of the Convention on Rights of the Child. The applicant also relied on the Concluding Observations by the United Nations on 29 October 2013 regarding the Convention on Rights of the Child.

15.Ms Patricia Lam of the Department of Justice filed skeleton submissions on behalf of the putative respondent on 19 November 2018. She submitted that:

(i) the applicant had failed to provide any ground for judicial review, and the judge was thus plainly right to dismiss his application;

(ii) the Court of Appeal should not entertain the new grounds raised by the applicant on appeal; and

(iii) in any event, the Secretary had considered all relevant factors and there is nothing to suggest that there was any error in the Secretary’s Decision.

16.The applicant agreed by a letter of 27 July 2018 that the appeal could be heard by two judges. The appeal was first heard on 4 December 2018, when it was adjourned to await the outcome in the Court of Final Appeal of the appeal in Comilang, Milagros Tecson & Others v Director of Immigration (now reported at [2019] HKCFA 10). Following the decision of the Court of Final Appeal in the Comilang case, the appeal was restored for hearing, and was heard on 14 May 2019.

17.Prior to the hearing, Ms Lam provided a supplemental skeleton submission dealing with Comilang. The applicant did not file any further skeleton. At the hearing, the applicant stressed that his circumstances were now very different from those when the deportation order was made, and that his family rights and those of his wife and son (who is now over 18 years old) should be given great weight.

18.The applicant failed to provide any ground for judicial review in his application for leave before the judge. All of the grounds in the notice of appeal and the applicant’s skeleton were raised for the first time on appeal. These grounds were never canvassed at the Court of First Instance and are now raised for the first time well outside the time limit for judicial review. They are therefore not open to the applicant now (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)). The applicant did not give any good reason why he should be allowed to rely on these grounds at this late stage. In the circumstances, there are no viable grounds for appeal against the judge’s decision, and the appeal should be dismissed for this reason alone.

19.But even if regard were to be had to the grounds for judicial review now raised by the applicant, none of the grounds have merit.

20.So far as the ground in the skeleton based on the alleged failure to consider the change of the applicant’s circumstances since 1998 is concerned, the applicant failed to explain how such change bear on his request. Insofar as the applicant seeks to argue that the change in his family circumstances warrants humanitarian consideration, it has been held in Lau Kong Yung (1999) 2 HKCFAR 300 (applied by this court in §102 of BI v Director of Immigration [2016] 2 HKLRD 520) that the Director of Immigration does not have a duty to consider humanitarian considerations. In any event, it is apparent from the material disclosed by the Secretary that consideration was given to the applicant’s family situation.

21.As for the ground in the skeleton based on the failure to consider the relevance of the birth of the son (who was a minor at the time of the request for), the applicant simple cited the provisions of the Basic Law (“BL”), the Bill of Rights Ordinance (“BORO”), the International Covenant on Economic, Social and Cultural Rights (“ICESCR”) and the Convention on the Rights of the Child (“CRC”). However, it is clear from Comilang that the immigration exception to the ICCPR rights (particularly those relating to family life) has constitutional force in Hong Kong, and that the BL and BORO rights of similar nature are similarly circumscribed.

22.In Comilang, other than the existence of a deportation order the applicants were in similar situations to as the applicant in the present case. They argued that they should be given permission to remain in Hong Kong to take care of their children who enjoy either Hong Kong resident or permanent resident status. They relied on provisions in BL, BORO, ICESCR and CRC similar to those advanced by the applicant in this case.

23.At [28] – [29] of its judgment, the Court of Final Appeal held that these provisions must be read in light of section 11 of BORO (embodying the immigration exception) which has been given constitutional effect by Article 39 of BL. At [90], the court held that the Director is not duty bound to take into account the various rights relied on by the applicants in Comilang when exercising his discretion to refuse permission to stay. This is because such rights are disengaged by section 11 of BORO.

24.The principles in BI and Comilang are, we think, equally applicable to the situation where the Secretary is asked to consider the rescission or suspension of a deportation order.

25.The argument relied on by the applicant in this case is indistinguishable from that advanced by the applicants in Comilang. This ground is thus also without merit.

26.Lastly, in the notice of appeal, the applicant complained that the judge dismissed his application because of the applicant’s lack of credibility. This ground is simply unfounded. The only reason for the dismissal of the leave application given by the judge was the failure to put forward any ground for judicial review. The judge did not base his decision on the applicant’s credibility. This ground must also fail.

27.There is therefore no merit in the appeal and we dismiss the appeal accordingly. As far as costs are concerned, we make no order as to costs.