Akhtar Muhammad v. Director of Immigration

HCAL 2017/2020

[2020] HKCFI 3059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2017 OF 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 “Notice of Consideration of Deportation” dated 20 June 2013 issued by the Director of Immigration to the Applicant.

BASIC FACTS

2.The Applicant is a Pakistani national who claimed to have sneaked into Hong Kong illegally from the Mainland on 17 August 2009.  He was referred to the Immigration Department on 19 August 2009, and detained under s 26(a) of the Immigration Ordinance, Cap 115 (“the Ordinance”) for inquiry for the purposes of the Ordinance.  In what follows, unless the context indicates otherwise, references to “section” or “s” shall be to the Ordinance.

3.After inquiry, on 20 August 2009, the Applicant was refused permission to land in Hong Kong and was detained under s 32(1)(a) pending removal under s 18(1)(a).  On the same day, he lodged a torture claim under the United Nations Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  On 28 August 2009, the Applicant was released on recognizance under s 36(1).

4.On 4 July 2010, the Applicant was arrested by the Police for being suspected of taking up employment unlawfully.  On 16 July 2010, he was convicted of the offence of “taking employment while being a person who remains in Hong Kong without the authority of the Director of Immigration after landing in Hong Kong unlawfully”, and was sentenced to 6 weeks’ imprisonment.  On 14 August 2010, the Applicant was discharged from prison and referred to the Immigration Department for detention under s 32(2A) until 27 August 2010 pending a decision as to whether a removal order should be made against him.  On 27 August 2010, a removal order was made against the Applicant pursuant to s 19(1)(b), and he was detained under s 32(3A) pending removal from Hong Kong.  On 31 August 2010, a Notice of Detention and Notice of Removal Order and Right of Appeal were served on the Applicant.  On the same day, the Applicant declared in the Declaration of Intention Not to Appeal / Declaration of Abandonment of Appeal that he did not intend to appeal against the removal order made against him.  On 15 September 2010, he was released on recognizance.

5.On 20 January 2012, the Applicant’s torture claim under CAT was rejected by the Director.  On 1 February 2012, the Applicant lodged a petition to the Chief Executive against the Director’s decision.  On 27 February 2012, the Applicant’s petition was dismissed by an Adjudicator (Torture Petitions) vested with delegated authority from the Chief Executive.  On 29 February 2012, the Applicant’s recognizance ceased and he was detained under s 32(3A).  In March 2012, legal aid was granted to the Applicant to apply for judicial review of the Adjudicator’s decision.  On 6 April 2012, he was released on recognizance.

6.On 6 August 2013, the Applicant made an application for judicial review of both the Director’s decision and the Adjudicator’s decision in HCAL 102/2012 (“the JR Application”).

7.On 26 April 2013, the Applicant was arrested by the Immigration Department again for being suspected of taking up employment unlawfully.  He was subsequently remanded in custody on 2 May 2013 after the plea hearing.  On 28 May 2013, the Applicant was convicted of the offence of “taking employment while being a person in respect of whom a removal / deportation order is in force”, and was sentenced to 15 months less 83 days’ imprisonment.

8.On 20 June 2013, whilst in prison, the Applicant was informed of his intended deportation by a Notice of Consideration of Deportation (“the Notice”) in view of his conviction for the offence referred to in paragraph 7 above.  In the Grounds Against Deportation dated 8 July 2013, the Applicant stated, inter alia, that he wanted to lodge an appeal against the intended deportation as he was waiting for the result of the JR Application.  He also stated that he did not want to be deported to Pakistan because his life would be in danger there as he had changed his religion from Sunni Muslim to Shia Muslim.

9.On 20 November 2013, McWalters J (as he then was) granted the JR Application, quashed the Director’s decision and Adjudicator’s decision, and remitted the Applicant’s torture claim to the Director for further processing.

10.On 31 December 2013, the Applicant was discharged from prison and referred to the Immigration Department for detention under s 32(3A) pending removal from Hong Kong.  On 24 January 2014, the Applicant was released on recognizance.

11.Since the commencement of the Unified Screening Mechanism (“USM”) on 3 March 2014, the Applicant’s torture claim was treated as a claim for non-refoulement protection to be assessed on all applicable grounds.  On 16 May 2017, the Applicant’s non-refoulement claim was rejected by the Director on all applicable grounds under the USM.  On 29 May 2017, the Applicant lodged a Notice of Appeal / Petition (“the Appeal/Petition”) against the Director’s rejection of his non-refoulement claim with the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”). On 7 August 2020, the Board directed that the hearing of the Appeal/Petition scheduled for 8 September 2020 be adjourned sine die.  I am given to understand that the hearing of the Appeal/Petition has yet to be resumed.

12.In the meantime, on 26 February 2015, the Applicant solemnized a marriage with a Hong Kong permanent resident (“the Wife”). The Applicant submitted two applications for entry for residence as the Wife’s dependant on 3 March 2015 and 12 December 2016 respectively.  Those applications were refused by the Director on 12 July 2016 and 27 June 2018 respectively.  The Applicant then submitted three requests for reconsideration of his dependant visa application on 10 September 2018, 18 February 2019 and 22 May 2019 respectively, which were refused by the Director on 26 November 2018, 25 March 2019 and 29 October 2019 respectively.

13.On 4 November 2019, the Applicant submitted a third application for a dependant visa.  On 16 December 2019, the Wife lodged a petition (counter-signed by the Applicant) to the Chief Executive against the refusal of the Applicant’s dependant visa applications.  The Applicant’s third dependant visa application and the Wife’s petition are currently under processing.

APPLICATION FOR JUDICIAL REVIEW

14.On 7 October 2020, the Applicant made the present application for leave to apply for judicial review of the Notice.  In the Form 86 dated 6 October 2020, the Applicant requested for cancellation of the Notice, but did not state any grounds on which relief was sought.

15.In his affirmation dated 7 October 2020 in support of the application, the Applicant repeated his request for cancellation of the Notice.  Attached to the affirmation was a letter dated 6 October 2020 signed by the Applicant and the Wife, in which the following was stated:

“ We would like to request for ‘Cancellation of deportation Notice’ of [the Applicant]. We had been under process of ‘Dependent visa’ for [the Applicant].

We had married on 26 February 2015 and we are living together in one room.  Our marriage is genuine.  We want to live together forever.  [The Applicant] is very remorseful for the crime that he had committed in 2013.  He had mistakenly convicted, and he served 6 weeks sentence in 2010, and 10 months sentence in 2013, in the correctional centre.  He is not a criminal and there is not any security threat from him.  You may note that his record in Hong Kong, after, he served his sentence is crystal clean. He learned from his previous mistake and he is putting all his efforts to be a good citizen and to be a good husband.  However, without approval of his HK dependent visa, there is not any peace of mind in between us.  Every moment we are worried an unknown fear of separation.  Therefore, please help us and do consider a good favor to unite forever by cancelling his ‘notice of consideration deportation’.”

DISCUSSION

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

17.First, the Applicant has failed to state any grounds on which relief is sought in the Form 86, as required by Order 53, r 3(2)(a)(iii) of the Rules of the High Court, Cap 4A.  This requirement is mandatory and not optional (see Ho Ka Man v The Privacy Commissioner for Personal Data [2018] HKCFI 814, at §11).

18.Second, no deportation order has, as a matter of fact, been made against the Applicant.  The Notice served on the Applicant on 20 June 2013 was merely a notice of consideration of deportation.  It was an intermediate step which might lead to a deportation order being made against the Applicant, but was not a final decision with any substantive legal consequences.  As a matter of fact, on 29 November 2013, a further decision was made by the Immigration Department that, in view of the judgment in the JR Application, the proposed deportation of the Applicant would not be proceeded with for the time being (see internal file minute of the Immigration Department (M.13)).  Generally speaking, judicial review only lies against a final decision with substantive legal consequences, but not procedural or intermediate decisions (see Financial Secretary v Felix Wong (2003) 6 HKCFAR 476, at §§14 and 93-94; ATV v Chief Executive in Council [2012] 3 HKLRD 1 at §§9-10 and 17-23; Television Broadcasts Limited v Communications Authority, HCAL 3/2013, at §§20-25 per Au J).  There are no exceptional circumstances to justify a departure from this general principle in the present case.

19.Third, no reasonable ground has been raised to challenge the legality or rationality of the Notice.  There is also no basis to contend that any procedural propriety was involved in relation to the Notice.

20.Fourth, there has been very substantial delay in making the present application.  The Notice was served on the Applicant on 20 June 2013, but the present application was not made until 7 October 2020.  The Applicant has given no explanation, and I cannot see any good explanation, for the delay.  Coupled with the lack of merits in the intended application for judicial review, there is no good reason to extend the time for the Applicant to apply for judicial review in this case.

DISPOSITON

21.The application for leave to apply for judicial review is dismissed, with no order as to costs.

The Applicant, acting in person

Ms Jenny Cheung, Government Counsel of Department of Justice, for the Putative Respondent