Naseer Umair v. Director of Immigration

HCAL 744/2018

[2020] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 744 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.In his Form 86 dated 24 April 2018, the Applicant seeks leave to apply for judicial review of an alleged “Removal Order” made by the Director of Immigration (“the Director”) against him dated “06-05-2016”.

2.The Applicant did not appear at the hearing of the application for leave to apply for judicial review on 5 May 2020.  At the conclusion of the hearing, the court dismissed the application with costs to the Putative Respondent, with reasons to be given later, which I now do.

3.In what follows, references to “Section” or “s” shall be to the Immigration Ordinance (Cap 115).

BASIC FACTS

4.The Applicant is a Pakistani national who claimed to have sneaked into Hong Kong on 6 March 2009.

5.On 13 March 2009, the Applicant lodged a CAT claim with the Director.  On 10 May 2010, he solemnized a marriage with Madam Yenni, a Hong Kong permanent resident.  On 24 May 2010, he submitted an application to the Director for a dependant visa with Madam Yenni as his sponsor.  On 18 November 2011, his dependant visa application was approved.  On 29 November 2011, he withdrew his CAT claim.  On 13 December 2011, he was repatriated to Pakistan.  On 27 December 2011, he entered Hong Kong as Madam Yenni’s dependant and was granted a limit of stay up to 5 May 2016.

6.On 13 October 2015, the Applicant was arrested by the Police for the suspected offence of possession of dangerous drugs.  On 1 April 2016, he was convicted of that offence, and on 14 April 2016, he was sentenced to 8 months’ imprisonment.

7.On 6 May 2016, the Applicant was informed of his intended deportation.  He objected to the intended deportation on the ground that he had a personal injury case with legal aid and his case was under process (see the Applicant’s Grounds against Deportation dated 6 May 2016).  Pausing here, it may be noted that:

(1) According to the Legal Aid Department’s letter dated 20 June 2016, the Applicant’s employees’ compensation claim against his former employer in respect of an industrial accident on 7 September 2013 had been settled in March 2016, and no proceedings had yet been commenced in respect of his intended common law claim against his former employer.

(2) On 9 April 2018, the Legal Aid Department confirmed that the Applicant’s common law claim had been dismissed on 25 April 2017.

8.On 17 August 2016, the Applicant was discharged from prison, and he was transferred to the Immigration Department and detained under s 32(2A) pending a decision as to whether or not a removal order should be made under s 19(1)(b).  He was released on recognizance on the same day.

9.On 21 November 2017, the Applicant was arrested by the Police in Lo Wu for the suspected offence of Entering Closed Area without a permit.  On 13 December 2017, he was convicted of that offence and sentenced to 2 months’ imprisonment.  On 24 January 2018, he was discharged from prison.  Between 24 January 2018 and 6 March 2018, he was detained under s 32(2A) pending a decision as to whether or not a removal order should be made under s 19. On 6 March 2018, a removal order (“the Removal Order”) was made against him under s 19(1)(b)(ii).  He was then detained under s 32(3A) pending his removal from Hong Kong.  On 8 March 2018, a Notice of Removal Order and Right of Appeal was served on the Applicant.  By a Declaration of Intention Not to Appeal / Declaration of Abandonment of Appeal dated 8 March 2018, the Applicant gave notice that he did not intend to appeal against the Removal Order.

10.On 9 April 2018, the Applicant was detained under s 29(1) pending an inquiry as to whether a deportation order should be made against him by reason of his two criminal convictions mentioned above. In his Grounds against Deportation dated 9 April 2018, the Applicant stated that he objected to the intended deportation order without providing any grounds in support of the objection.

11.On 27 April 2018, the Permanent Secretary for Security made a deportation order for life (“the Deportation Order”) against the Applicant.  He was then detained under s 32(3) pending removal from Hong Kong.  On 3 July 2018, he was released on recognizance.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

12.As earlier mentioned, in the Applicant’s Form 86 dated 24 April 2018, he sought leave to apply for judicial review of an alleged “Removal Order” dated “06-05-2016”.  He did not state the relief sought or any ground on which relief was sought in the Form 86.  In his supporting affirmation filed on 27 April 2018, the Applicant simply stated: “I want to judicial review the Removal Order against me.  The decision of Removal Order against me is unfair and unreasonable.”  Pausing here, it may be noted that no removal order was made against the Applicant on 6 May 2016. The Removal Order made against him was dated 6 March 2018.  The document that was served on the Applicant on 6 May 2016 was the Director’s Notice of Consideration of Deportation (see §7 above).  The Deportation Order eventually made against him was dated 27 April 2018.

13.On 25 May 2018, Mohnani & Associates on behalf of the Applicant sent to the Director (i) a draft Form 86, in which the subject matter of the proposed challenge was stated to be “Decision/order dated 27-04-2018”, and (ii) an affirmation of the Applicant dated 23 May 2018, in which he stated the following: “I want to judicial review the Deportation Order dated 27-04-2018 against me.  The deportation against me is unfair and unreasonable”.  In the covering letter from Mohnani & Associates, the following was stated: “The amendment to amend the Form 86 and Affirmation was done and we enclose herewith the same for your kind attention.  Please kindly release our client on recognizance immediately”.

DISCUSSION

14.If the subject matter of the present application is the Removal Order, it was made on 6 March 2018 and not on 6 May 2016.  In any event, no basis has been disclosed which would enable the Applicant to challenge the validity of Removal Order.

15.On the other hand, if the Applicant’s true intention is to challenge the Deportation Order, there is equally no valid ground of judicial review of the Deportation Order disclosed in his aforesaid affirmations.  Under s 20(1)(a), the Permanent Secretary for Security (acting under the delegated authority of the Chief Executive) may make a deportation order against an immigrant if he has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years.  The Applicant, not being a Hong Kong permanent resident, is an “immigrant” for the purpose of the Immigration Ordinance.  Further, the two offences for which the Applicant has been convicted are punishable with imprisonment for not less than 2 years.

16.From the relevant internal file minute of the Immigration Department, it would appear that the Applicant’s family background (in particular that his wife was a Hong Kong permanent resident living in Hong Kong) and other circumstances had been considered before a decision was reached to make the Deportation Order against him.  As a matter of law, the Permanent Secretary for Security was not obliged to take into account any compassionate or humanitarian grounds in considering deportation, even where family ties might be affected (see Safder Tehseen v Permanent Secretary for Security, CACV 167/2012, unreported 6.6.2013, at §54[1]). There is nothing in the materials before the court to show that the decision to make the Deportation Order against the Applicant was unlawful or Wednesbury unreasonable, or was made in a procedurally unfair manner.

17.The intended application for leave to apply for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

18.The application for leave to apply for judicial review is dismissed.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider the Director should be paid his costs in this application, because:

(1)     the application clearly lacks any substantive merits;

(2)     the inter-partes hearing was directed by the court; and

(3)     the Director has provided substantial and helpful assistance to the court, including providing the court with information relating to the background facts of the Applicant’s case which are completely lacking from the papers filed by the Applicant and without which the court would not be able to properly determine the present application.

19.Accordingly, I make an order that the Applicant shall pay the costs of the Director, to be taxed if not agreed.

The Applicant was not represented and did not appear

Ms Jenny Cheung, Senior Government Counsel (Ag), instructed by Department of Justice, for the Putative Respondent