Kamran Javid (also known as Ahmed Kamran) v. Permanent Secretary for Security

HCAL 2152/2020

[2021] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2152 OF 2020

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BETWEEN

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D E C I S I O N

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Introduction[1]

1.The Applicant’s Form 86 is dated 23 October 2020.  The Putative Respondent is the Permanent Secretary for Security (“PS for S”).  The decision which the Applicant seeks to challenge is the decision of the PS for S made on or about 3 August 2020 (the “Impugned Decision”) refusing the Applicant’s request for suspension of the deportation order made against the Applicant on 30 May 2000 (the “Deportation Order”).  A certiorari to bring up and quash the same is sought.

2.On my direction, the ex parte application for leave is to be heard on an inter parte basis.

3.This is the hearing.

4.Mr Hectar Pun SC leading Mr Jason Kung and Ms Ferrida Chan appeared for the Applicant.  Ms Jenny Cheung of the Department of Justice appeared for the Putative Respondent.

The factual background

5.The facts are set out at §§1-40 of the Form 86.  They are mostly not in dispute.  I set out the core facts as follows.

6.On 9 March 1998, the Applicant arrived in Hong Kong as a visitor under the identity of Ahmed Kamran.

7.On 5 April 2000, the Applicant was convicted of the offences of “breach of condition of stay” and “theft”.  He was sentenced to a total of 4 month’s imprisonment.

8.On 30 May 2000, the Secretary for Security made the Deportation Order against the Applicant under section 20(1)(a) of the Immigration Ordinance (Cap 115) (the “Ordinance”). He was deported to Pakistan on 8 June 2000.

9.In September 2001, the Applicant solemnized a marriage with a Hong Kong permanent resident in Pakistan.  His wife has been referred to as the First Wife, which term I adopt.

10.On 8 October 2001, the Applicant arrived in Hong Kong as a visitor under his current identity (different from Ahmed Kamran).

11.On 20 January 2004, the Applicant was convicted of the offences of trafficking in a dangerous drug and breach of deportation order.  He was sentenced to a total of 3 years’ imprisonment.  On 23 August 2004, he was convicted further of 2 counts of trafficking in dangerous drugs, and one count of dealing with property known or believed to represent the proceeds of an indictable offence.  He was sentenced to 8 years’ imprisonment, which was reduced subsequently on 12 April 2005 upon appeal to 6 years and 4 months.  That sentence was to commence after he had served 15 months of the sentence earlier imposed.

12.Between about April 2004 and December 2011, the Applicant and the First Wife had on a number of occasions made submissions to the Director of Immigration (the “Director”), the PS for S and the Chief Executive and requested that the Applicant be allowed to stay in Hong Kong.

13.By letter of 23 February 2012 to the Applicant’s legal advisers, the PS for S informed the Applicant of his decision to suspend the Deportation Order for one year.  In that letter, PS for S said that:

“ … having regard to the particular circumstances and solely based on compassionate grounds of your client’s case, in exercise of the powers conferred on the Chief Executive by section 54(1) of the Immigration Ordinance (Chapter 115) and delegated to me pursuant to section 63 of the Interpretation and General Clauses Ordinance (Chapter 1), I hereby suspend the deportation order … for a period of one year with effect from the date of this letter…

The suspension will be rescinded should [the Applicant] breach any of the above conditions or if he is convicted of any offence during his stay in Hong Kong.  Rescission of the suspension will result in the deportation order being in force again and [the Applicant] will then be deported from Hong Kong.”

14.In the subsequent years, and upon further requests from the Applicant and the First Wife, further yearly suspensions had been granted.  The last suspension was granted on 23 February 2017.

15.The Applicant on 3 June 2016 solemnized another marriage in Pakistan.  His wife has been called the Second Wife, which term I adopt.  They had a child born in the Philippines in January 2017.  His marriage with the First Wife was (and still is) subsisting.

16.At §25 of the Form 86, it is suggested that the Applicant on 23 September 2016 notified the Immigration Department of his second marriage.  The notification was however far from being clear.  Nothing however turns on it for the purpose of this application.

17.By letter dated 16 January 2018 to the Director and Secretary for Security, the Applicant requested to stay in Hong Kong with his family.  He further informed the Director and the Secretary for Security that he had married another person, his Second Wife, on 3 June 2016 in Pakistan and that they had a child born in the Philippines in January 2017. 

18.By a Memo of 15 February 2018[2], the Director recommended to the PS for S that the Applicant’s request for suspension / rescission of the Deportation Order be rejected.  Amongst others, the Director in making the recommendation took into account the Applicant’s “current polygamous family situation”.

19.An internal minutes “M.13” dated 14 March 2018[3] (“M.13”) of the Security Bureau (“SB”) has been produced.  The solemnization of his second marriage and the birth of their child was regarded by the SB as a “recent major circumstantial change”.  §25 thereof reads:

“ [The Deportation Order] was first suspended in 2012 on compassionate grounds to facilitate his provision of paternal care to his tender aged children in Hong Kong. Without any circumstantial change, [the Deportation Order] had been suspended for six times with a total of six consecutive years. However, in the present request, a recent major circumstantial change was brought to our attention, that is, [the Applicant] solemnized his second marriage … and a daughter was born between them during his second last suspension period. We also noted from the Director’s information that [the Applicant’s] length of stay outside Hong Kong in the recent two years was comparatively longer than the previous years.”[4]

Further suspension of the Deportation Order was not recommended.

20.On 22 March 2018, the PS for S rejected the Applicant’s request for rescission or suspension of the Deportation Order.

21.By a letter of 22 February 2019 from the Applicant’s then legal representatives to the Secretary for Security, a request for rescission or suspension of the Deportation Order was made.

22.Since then and until 15 January 2020, a total of 14 letters were issued either by the Applicant himself or via his legal representatives making further representations on the request.

23.An internal minutes “M.1” of 30 July 2020 of the SB has been produced[5] (“M.1”).  It is a 7-page document comprising 26 paragraphs.  SB set out therein:

(a)  the issue of the Deportation Order;

(b)  the entry by the Applicant into Hong Kong after deportation;

(c)  his family background, and in particular his 2 marriages;

(d)  the previous suspension of the Deportation Order;

(e)  the Grounds for the Applicant’s request, and in particular:

(i)  his second marriage was allowed by Islamic Law and was held in Pakistan with the permission of the First Wife;

(ii)  the Applicant was the breadwinner of his family in Hong Kong;

(iii)  it was practically impossible for the First Wife to bring with her three children to leave Hong Kong;

(iv)  the Applicant regularly travelled overseas with his family in Hong Kong;

(v)  the offences which he had been convicted of were committed many years ago;

(f)  the comments from the Commissioner of Police;

(g)  the comments from the Director;

(h)  SB’s views and decision, and in particular:

(i)  §23, that the representations put forth regarding the Applicant’s family connections in Hong Kong and his second marriage have been fully considered. M.13 was also referred to.  There was no circumstantial change since the rescission / suspension request was last rejected in 2018;

(ii)  §25, that having regard to all relevant factors and comments / advices, it was considered that the grounds put forth did not sufficiently justify rescission / suspension of the Deportation Order.

24.By letter from the PS for S dated 3 August 2020 (the “3/8/2020 Letter”), the Applicant was informed of the Impugned Decision.  The last paragraph is the material one, that:

“ 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 / rescinding the deportation order made against Mr JAVID Kamran. In the circumstances, the decision to deport Mr JAVID Kamran from Hong Kong for life still stands.”

The proposed Grounds

25.The Grounds, as set out at §44 of the Form 86, are that:

(a)  the Impugned Decision is tainted by procedural impropriety in that the PS for S has failed to give adequate reason for the Decision; and

(b)  the Impugned Decision is irrational in that it is Wednesbury unreasonable.

Threshold for leave

26.The test for granting leave is reasonable arguability — Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, at §§14-17.  The burden to establish the same is on the applicant.  Mr Pun has helpfully reminded this Court of the explanation on that threshold given by Au-Yeung J in Yau Ka Po v Chief Executive in Council (unrep, HCAL 221/2015, 29 January 2016) at §§18-20, which I note.

The proposed 1^st Ground

27.In my view, the 1^st Ground is not reasonably arguable.

28.Mr Pun acknowledges that in Sabir Mohammed v Permanent Secretary for Security, unrep, HCAL 114/2015, 27 January 2017, Au J[6] (as he then was) held at §91(1) that the PS for S is generally under no duty to give reasons when dealing with an alien’s application to be allowed to come in and stay in Hong Kong. 

29.Mr Pun then relies on The Trustee of the Church of England and Diocese of Victoria, Hong Kong v Town Planning Board [2020] HKCFI 501 at §78, per Lisa Wong J and submits that “[n]evertheless, the Hong Kong court now recognises that ‘there is a general duty for an administrative body to give reason, unless there is proper justification for not doing so’ ” (emphasis originally added).  I have also taken into account what are at stake for the Applicant, and have considered see Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243 at 260H-261D, per Keith J.

30.It is not immaterial to note that in The Trustee of the Church of England, what Lisa Wong J was quoted to have observed are prefaced by the words “The time may have come”.

31.Further, even assuming that there is such a general duty (without deciding it), “a proper justification must be based on the test of fairness” — as observed further by Lisa Wong J at §80 of the same judgment. 

32.In the present case, the 3/8/2020 Letter, read together with M.13 and M.1 now disclosed, have in my view fairly and sufficiently inform the Applicant of the reasons.  I accept Ms Cheung’s submission that in any event, the Applicant has not been handicapped in any way in advancing the present prejudice as a result of the alleged lack of reasons in the 3/8/2020 Letter — and see Dembele Salifou & Ors v Director of Immigration, HCAL 44/2014, unrep, 22 April 2016, at §106(3).

33.If the 3/8/2020 Letter read together with M.13 and M.1 suggest that the PS for S has eg failed to take into any relevant consideration, or has taken into account any irrelevant consideration, the basis of challenge lies there, but not the alleged lack of reasons per se.

The proposed 2^nd Ground

34.In the course of the hearing, Mr Pun stated that this is his main ground.

35.I respectfully repeat and adopt the legal principles explained by Chow J in MI & IYW v Permanent Secretary for Security, HCAL 44/2016, 9 May 2017 at §[42] which were cited with approval by the Court of Appeal in M v Permanent Secretary for Security [2019] HKCA 507 at §12.  The principle at (8) is of particular relevance here, that:

“ 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 …”

36.I have been cited BI v Director of Immigration [2016] 2 HKLRD 520.  If anything, that case in my view shows, and as acknowledged fairly by Mr Pun, how daunting the Applicant’s task in seeking to invoke the irrationality ground.  At §105 of the judgment, the Court of Appeal took the opportunity:

“ to reiterate categorically and firmly that as a matter of Hong Kong law the weight to be attached to a particular humanitarian consideration in a particular case at a particular point in time is a matter for the Director.”

37.I bear in mind also Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 410G, where Lord Diplock observed that “irrationality” as a ground for judicial review mean:

“ what can by now be succinctly referred to as ‘Wednesbury unreasonableness’ … It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

38.I have considered M.13 and M.1.  I have considered in particular SB’s view that the Applicant’s second marriage was a “recent major circumstantial change” from the circumstances in which the Deportation Order was suspended, and that there had been no circumstantial change between 2018 and 2020.  In my view, it cannot be said that the Impugned Decision was unreasonable in the Wednesbury sense.  Nor do I accept Mr Pun’s submission that it is an irrelevant consideration.

39.Mr Pun submits that as a matter of Hong Kong conflict of law rule, the Applicant has no capacity to solemnize the second marriage, that it is essentially invalid, that it is not to be recognised as a matter of Hong Kong law, and therefore the second marriage must be an irrelevant consideration.  Despite that legalistic and technical view of the second marriage, the reality is, as submitted by Ms Cheung which I accept, that the Applicant has in fact established a second family, which has been taken by the SB as the “recent major circumstantial change”.

40.I have considered the contents of the Applicant’s 2^nd affirmation. I during the hearing granted him leave to file.  The contents in my view do not advance his case.

41.In my view, the proposed 2^nd Ground is also not reasonably arguable.

Disposition

42.I refuse the Applicant’s application.

43.Given the long factual history of the matter, this Court requested the attendance of the Putative Respondent.  The assistance offered by Ms Cheung has been useful.  In the circumstances, I make a costs order nisi that there be no order as to costs.

Mr Hectar Pun SC, leading Mr Jason Kung and Ms Ferrida Chan, instructed by KCL & Partners, for the Applicant

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