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HCAL 1949/2018
[2020] HKCFI 2604
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1949 OF 2018
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BETWEEN
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HASSAN JAHANGIR |
Applicant |
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and |
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SECRETARY FOR SECURITY |
Putative Respondent |
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Before: Hon Chow J in Court
Date of Hearing: 7 October 2020
Date of Decision: 29 October 2020
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D E C I S I O N
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INTRODUCTION
1.This is an application for leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Permanent Secretary”), mistakenly referred to as the decision of the Secretary for Security (“the Secretary”), dated 31 August 2018 refusing the Applicant’s request for suspension or rescission of a deportation order made against him on 21 April 2016.
BASIC FACTS
2.The Applicant is a Pakistani national born on 3 May 2009.
3.On 18 May 2009, the Applicant obtained a dependant visa to enter and remain in Hong Kong to join his father, a Hong Kong permanent resident. He came to Hong Kong shortly afterwards. His permission to stay was last extended up to 14 January 2016.
4.On 16 May 2015, the Applicant was arrested by the Police for the suspected offence of trafficking in dangerous drugs. On 29 June 2015, he was convicted of that offence on his own guilty plea, and sentenced to 12 months’ imprisonment.
5.On 21 April 2016, the Permanent Secretary made a deportation order for life (“the Deportation Order”) against the Applicant pursuant to s 20(1)(a) of the Immigration Ordinance, Cap 115 by reason of his said conviction. The Security Bureau’s deliberation on the Director of Immigration (“the Director”)’s application for a deportation order against the Applicant can be found in its internal file minute (“M.1”). The Deportation Order is not the subject matter of challenge in this application.
6.On 14 September 2016, the Applicant, though his solicitors, applied to the Secretary for rescission of the Deportation Order. Further representations were made by the Applicant’s solicitors to the Secretary on 12 December 2016 and 25 May 2018 respectively. In the letter dated 25 May 2018, a request was made for “rescission/suspension” of the Deportation Order.
7.On 30 August 2018, the Permanent Secretary decided to refuse the Applicant’s request for rescission or suspension of the Deportation Order (“the Decision”). The Security Bureau’s deliberation on the matter can be found in its internal file minute (“M.3”), the relevant parts of which state as follows:
“Family Background
4. Mr Hassan Jahangir is a 26-year-old Pakistani. His father, stepmother and four half-siblings are Hong Kong permanent resident (‘HKPR’) residing in Hong Kong.
5. Mr Hassan Jahangir first entered Hong Kong as his father’s dependant on 2 June 2009 with limit of stay last extended until 14 January 2016. During his imprisonment, Mr Hassan Jahangir applied for an extension of stay as his father’s dependant in December 2015. On 3 May 2016, the Extension Section of the Immigration Department had taken no further action [on] his application as he was a subject of deportation order in force.
Grounds for Present Request
6. Mr Hassan Jahangir’s legal representatives submitted letters at Annexes A2 & A3 to (25) requesting for suspension / rescission of Mr Hassan Jahangir’s deportation order. The grounds put forth in these letters are, in essence, as follows -
(a) Mr Hassan Jahangir’s immediate family members were all in Hong Kong and he did not have any family connections or siblings living in Pakistan. Without substantial connections in the local community in Pakistan, Mr Hassan Jahangir might be unable to re-establish himself in Pakistan;
(b) There had been no consideration on the rights of Mr Hassan Jahangir’s family as permanent residents in Hong Kong. Also, the fact that Mr Hassan Jahangir’s deportation would be difficult for the family had been largely ignored;
(c) It was Mr Hassan Jahangir’s first conviction and the quantity of drugs involved was low. His family promised to assist him in rehabilitation. Whether a single conviction for a non-violent offence would give rise to the level of deportation should be reconsidered; and
(d) The application of deportation order against Mr Hassan Jahangir mentioned that the Commissioner of Police (‘CP’) had no objection to his deportation and considered that his departure would be conducive to the public good.
In fact, the CP was lack of authoritative intelligence on this matter and his no objection to deportation was irrelevant. His recommendation was mistaken as an endorsement of deportation for life and indeed the recommendation had no real bearing on the making of deportation order. Therefore, the PS for S should re-examine the decision to deport Mr Hassan Jahangir without relying on the statement made by the CP.
Comments from the CP
7. The CP has been consulted. He saw no grounds to support the present request for suspension / rescission of the deportation order [Annex D to (25)].
Comments from the Director of Immigration
8. The making of deportation order against Hassan Jahangir was the consequence of his serious criminal conviction in Hong Kong and such a decision had been well considered. The grounds put forth in the present request, including the fact that the deportation of Mr Hassan Jahangir may deprive him of his proximity to his family had already been taken into account when a decision to deportation order was made.
9. Being a subject of deportation order, Mr Hassan Jahangir should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong. The Director of Immigration (‘the Director’) is of the view even without other siblings in Pakistan, there should not be any undue hardship for Mr Hassan Jahangir to re-establish himself in Pakistan given he is an able-bodied adult having stayed in Pakistan for 17 years before coming to Hong Kong in 2009. Mr Hassan Jahangir’s family members are also free to reunite with him outside Hong Kong should they wish to do so.
10. The Director notes that there was no significant change in the circumstances since the making of the deportation order. After careful consideration of all relevant circumstances, the Director cannot find any overwhelming factors which may warrant suspension / rescission of Mr Hassan Jahangir’s deportation order. It is therefore recommended that the current request be refused.
Recommendation
12. The deportation of Mr Hassan Jahangir was the consequence of his criminal conviction of serious offence in Hong Kong. Being a subject of deportation order, Mr Hassan Jahangir should not have any expectation that the prohibition of his stay in Hong Kong would be lifted easily to enable him to lead a normal family life in Hong Kong.
13. The representations put forth regarding the relationship between Mr Hassan Jahangir and his family members have been fully considered. In fact, family rights are not absolute under local jurisprudence on immigration control. Mr Hassan Jahangir, as a non-permanent resident, cannot remain in Hong Kong by relying on the rights of his HKPR family members.
14. That said, the deportation order against Mr Hassan Jahangir only prevents him from coming to Hong Kong again. It would not deprive him of his freedom to stay with his family members in any places outside Hong Kong if they wish to do so. Even if his family members do not choose to reside in a place outside Hong Kong with Mr Hassan Jahangir, they are still free to travel abroad to visit him at any time.
Decision Sought
15. Having considered all circumstances of the case, including the fact that there was no circumstantial change since the making of deportation order, it is considered that the grounds put forth in the present request do not sufficiently justify rescission of the deportation order made against Mr Hassan Jahangir. We recommend that the request for rescission of the deportation order made against Mr Hassan Jahangir be rejected and the suspension of deportation order should not be considered.”
8.In the Permanent Secretary’s letter to the Applicant’s solicitors dated 31 August 2018 conveying the Decision, the following is stated:
“Your request has been carefully considered by the Permanent Secretary. Having taken into account all the circumstances of the case, the Permanent Secretary is not able to find sufficient justification for suspending or rescinding the deportation order against Mr Hassan Jahangir. In the circumstances, the decision to deport Mr Hassan Jahangir from Hong Kong for life still stands.”
APPLICATION FOR JUDICIAL REVIEW
9.On 17 September 2018, the Applicant made the present application for leave to apply for judicial review of the Decision. The following grounds of judicial review were raised:
(1) mistake of fact, in that the Applicant had no immediate family member residing in Pakistan, but the Permanent Secretary mistakenly referred to the “majority” of his family as being in Hong Kong;
(2) irrationality or Wednesbury unreasonableness;
(3) the Decision had a significant impact on his family and affected “family rights”; and
(4) the Deportation Order for life was not a “proportional” response to his conviction.
DISCUSSION
10.The 1st ground of judicial review concerns an alleged mistake of fact as to whether the Applicant had a sister living in Pakistan:
(1) The Applicant’s position was that his whole family resided in Hong Kong and he had no immediate family member residing in Pakistan.
(2) On the other hand, the Security Bureau’s understanding at the time of the making of the Deportation Order in April 2016 was that that the Applicant has a sister “currently residing in Pakistan” (see §5 of M.1), and it was recorded in §11 of that minute that the Director commented that “the majority of Mr HASSAN JAHANGIR’s family members are in Hong Kong”.
(3) Whether the Applicant had a sister residing in Pakistan at the material time is a fact in dispute.
(4) It is not, however, necessary to resolve this dispute of fact for the purpose of disposing of the present application. This is because the subject matter of the present application is the Decision not to rescind or suspend the Deportation Order made in August 2018, not the Deportation Order made in April 2016.
(5) When considering the Applicant’s request to rescind or suspend the Deportation Order, the Permanent Secretary was aware of the Applicant’s contention that all his immediate family members were in Hong Kong, and he did not have any family connections or siblings residing in Pakistan (see §6(a) of M.3).
(6) In footnote no 2 on page 2 of M.3, it was stated that “Mr Hassan Jahangir previously declared that he was still in contact with his sister who was residing in Pakistan, however, he now stated that all his immediate family members were residing in Hong Kong and had no other siblings in Pakistan”.
(7) It was also recorded in that minute that the Director commented that “even without other siblings in Pakistan, there should not be any undue hardship for Mr Hassan Jahnagir to re-establish himself in Pakistan given he is an able-bodied adult having stayed in Pakistan for 17 years before coming to Hong Kong in 2009” (see §9 of M.3).
(8) In recommending the refusal of the request for rescission or suspension of the Deportation Order, it was stated that “[t]he representations put forth regarding the relationship between Mr Hassan Jahangir and his family members have been fully considered. In fact, family rights are not absolute under local jurisprudence on immigration control. Mr Hassan Jahangir, as a non-permanent resident, cannot remain in Hong Kong by relying on the rights of his HKPR family members. That said, the deportation order against Mr Hassan Jahangir only prevents him from coming to Hong Kong again. It would not deprive him of his freedom to stay with his family members in any places outside Hong Kong if they wish to do so” (see §§13 and 14 of M.3).
(9) It does not appear from the contents of M.3 quoted above that the Permanent Secretary was under any mistake of fact as to whether any family member of the Applicant was residing in Pakistan at the material time.
(10) In any event, whether the Applicant’s sister was, as a matter of fact, residing in Hong Kong or Pakistan was not a material factor which led to the Decision of the Permanent Secretary to refuse the request for rescission or suspension of the Deportation Order. That being the position, the alleged mistake (if any) cannot constitute a valid ground of judicial review of the Decision (see E v Secretary of State for the Home Department [2004] QB 1044, at 1071D).
11.In so far as the 2nd ground of judicial review is concerned, it is well established that the court would not lightly interfere with the exercise of the broad discretion conferred by the legislature on the Director/Permanent Secretary/Secretary in relation to immigration matters, having regard to (i) the strict immigration policy adopted in Hong Kong, and (ii) the Immigration Reservation to the ICCPR and s 11 of the Hong Kong Bill of Rights Ordinance. An application to challenge an immigration decision based on irrationality or Wednesbury unreasonableness has to overcome a high threshold. On the facts of this case, I do not consider the Permanent Secretary’s decision not to rescind or suspend the Deportation Order to be irrational or Wednesbury unreasonable.
12.The 3rd ground of judicial review based on alleged “family rights” is not reasonably arguable, having regard to the judgment of the Court of Final Appeal in Comilang v Director of Immigration (2019) 22 HKCFAR 59.
13.Finally, in so far as the 4th ground of judicial review is concerned:
(1) As earlier noted, the subject matter of the present application is the Decision of Permanent Secretary not to rescind or suspend the Deportation Order, not the making of the Deportation Order itself. Any challenge to the Deportation Order, which was made on 21 April 2016, would be substantially out of time. No explanation has been proffered for the delay in seeking to challenge the Deportation Order.
(2) In any event, it is well established that “[d]eportation is the consequence of a decision that an immigrant is no longer welcome in Hong Kong and will not be welcome in Hong Kong in the future”, and accordingly “although there is power to deport someone for a limited period, that is not a power which would normally be exercised”. A deportation order for a limited period would be made only in the “most exceptional circumstances”. See Bahadur v Secretary for Security [2000] 2 HKLRD 113 (CA), at 127G-128D. There is nothing before the court to show that the Permanent Secretary acted unlawfully or unreasonably (in the Wednesbury sense) to make a deportation order for life against the Applicant, or refuse to rescind or suspend such order.
14.In all, none of the intended grounds of judicial review is reasonably arguable, or has a realistic prospect of success.
DISPOSITION
15.The application for leave to apply for judicial review is dismissed, with no order as to costs.
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(Anderson Chow) |
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Judge of the Court of First Instance
High Court |
The Applicant, appearing in person
Mr Sunny Li, Senior Government Counsel of Department of Justice, for the Putative Respondent
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