Pvq and Others v. Permanent Secretary for Security

CACV 292/2017

[2021] HKCA 444

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 292 OF 2017

(ON APPEAL FROM HCAL NO 21 OF 2017)

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J U D G M E N T

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

A.  INTRODUCTION

1.This is the applicants’ appeal against the judgment (“the Judgment”) dated 26 October 2017 of Chow J (“the Judge”) dismissing their leave application for judicial review.

2.The 1^st applicant is a Vietnamese national who was deported from Hong Kong for life pursuant to a deportation order dated 13 April 2007 (“the Deportation Order”), but who subsequently returned to Hong Kong unlawfully.  The 2^nd and 3^rd applicants are respectively the wife and son of the 1^st applicant. The 2^nd applicant is a Hong Kong permanent resident, whereas the 3^rd applicant has the right to reside in Hong Kong by virtue of a dependant visa.

3.The subject-matter of this appeal is the decision of the Permanent Secretary for Security (“the Permanent Secretary”) made on 21 April 2016 (“the Decision”) refusing to rescind the Deportation Order.  In the proceedings below, the applicants applied for leave to apply for judicial review of the lawfulness of the Decision.  Essentially, the applicants put forward three bases for the challenge: (a) procedural unfairness arising from an alleged failure of the Permanent Secretary to provide reasons; (b) Wednesbury unreasonableness or failure to take into account relevant considerations; and (c) discrimination between foreign national applicants for dependant visas and Chinese nationals coming to Hong Kong under the One Way Permit (“OWP”) system.

4.The Judge in the detailed Judgment considered and rejected all the grounds and refused to grant leave to apply for judicial review[1].

5.By way of a Notice of Appeal filed on 21 December 2017, the applicants appeal against the Judgment.

B.  BACKGROUND

6.The unchallenged background facts leading to this appeal were set out in detail by the Judge at [6] ‑ [24] of the Judgment.  It is unnecessary for us to repeat them here, save for the following.

7.The 1^st applicant is a Vietnamese national.  He arrived in Hong Kong on the strength of his Vietnamese passport on 16 March 2003, and was permitted to remain for 14 days. Nevertheless, he overstayed and went underground for some three years until he was arrested by the police on 18 March 2006 for various offences[2].  On 11 April 2006, he was convicted of those offences and sentenced to 19 months’ imprisonment.

8.On 13 April 2007, the Permanent Secretary accepted the recommendation of the Director of Immigration (“the Director”) and exercised his power under section 20(1)(a) of the Immigration Ordinance (Cap 115) (“the Ordinance”) to issue the Deportation Order against the 1^st applicant for life, taking the view that his continued presence in Hong Kong would pose a threat to law and order here.  The 1^st applicant was deported back to Vietnam in April 2007.

9.On 2 June 2009, the 2^nd applicant gave birth to the 3^rd applicant in Vietnam.  It is stated in his birth certificate that the 1^st applicant is his father.

10.Notwithstanding the subsisting Deportation Order, in around July 2010, the 1^st applicant returned clandestinely to Hong Kong and was arrested by the police on 13 July 2010.

11.On 15 July 2010, the 1^st applicant was convicted of various offences (including those of remaining in Hong Kong without the authority of the Director after having unlawfully landed in Hong Kong, and of breach of deportation order) for which he was sentenced to 24 months’ imprisonment.

12.On 13 May 2011, the 1^st and 2^nd applicants were married in Hong Kong.  On 16 July 2011, the 1^st applicant applied for a dependant visa for residence in Hong Kong, naming the 2^nd applicant as his sponsor.

13.On 19 December 2011, the Immigration Department informed that 1^st applicant that his dependant visa application would not be considered because there was a deportation order against him.  A few subsequent applications were made, but they were all rejected for the same reason.

14.By a letter dated 20 December 2013, the 1^st applicant’s solicitors, Daly & Associates, applied to the Secretary for Security on his behalf for rescission of the Deportation Order.  Various grounds of a fundamental change of circumstances were canvassed, most of which related to the fact that the 1^st applicant was then married to the 2^nd applicant and had a family (ie, him and the 2^nd and 3^rd applicants) in Hong Kong.

15.Further correspondence between Daly & Associates and the Security Bureau ensued.  It is notable that, after the application for rescission was made, on 21 March 2014, the 1^st applicant made a non-refoulment claim.  The Security Bureau was minded to decide the rescission application upon the resolution of the non-refoulment claim, but, on several occasions, Daly & Associates urged the Security Bureau to process the rescission application without waiting for the outcome of the non-refoulment claim[3].  The Security Bureau therefore proceeded to do so.

16.On 21 April 2016, the Permanent Secretary made the Decision refusing to rescind the Deportation Order.  By a letter of the same date (“the Letter”), the Security Bureau informed Daly & Associates of the Decision in the following words:

“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 the [1^st applicant]. In the circumstances, the decision to deport [the 1^st applicant] from Hong Kong for life still stands.”

17.Later, at the request of Daly & Associates, a set of internal minutes of the Security Bureau (M7) in relation to the rescission application was supplied to the applicants after the Decision.  The relevant parts of M7 recommending the rejection of the 1^st applicant’s rescission application stated as follows:

“Effect of the Deportation Order

17. The deportation of [the 1^st applicant] was the consequence of his serious criminal convictions in Hong Kong. The fact that [the 1^st applicant] was further convicted of ‘Possession of forged identity card’, ‘Possessing a false instrument’, ‘Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong’ and ‘Breach of deportation order’ after the issue of deportation order demonstrates that he is a repeated offender who does not respect the law and order of Hong Kong. As reflected by the heavy custodial sentence of 24 months for his convictions in 2010, the presence of [the 1^st applicant] poses a genuine threat to the security of Hong Kong. It is incorrect to say that the deportation order is another punishment of the crimes committed by [the 1^st applicant] in addition to his imprisonment sentences. It was held in Thapa Indra Bahadur (HCAL 18/1999) that a deportation order is the consequence of a decision that the relevant deportee is no longer welcome in Hong Kong and will not be welcome in the future.

Claimed family and children rights

18. The representations put forth regarding the relationship among [the 1^st, 2^nd and 3^rd applicants] have been fully considered. The marriage of [the 1^st and 2^nd applicant] took place in 2011 which was well after the making of the deportation order in 2007. Being a subject of deportation order, [the 1^st applicant] 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.

19. The deportation order against [the 1^st applicant] only prevents him from coming to Hong Kong again. It would not deprive him of his freedom to stay with [the 2^nd applicant] and their son in Vietnam or any places outside Hong Kong if they wish to do so. Even if [the 2^nd applicant] does not choose to reside in a place outside Hong Kong with [the 1^st applicant], she and their son are still free to travel abroad to visit [the 1^st applicant] any time they wish.

20. As regards BL 37 which provides that ‘the freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law’, it was decided in Gurung Deu Kumari (HCAL 76/2009) that the right under BL 37 is the right to procreate and to foster children. It is not a general right to family or a right to foster children in a particular manner or place. As regards provisions from other sources of laws, it was decided in Ubamaka Edward Wilson (FACV 15/2011) that section 11 of the HKBORO made it clear that these provisions are unavailable to persons like [the 1^st applicant] who have no right to enter and remain in Hong Kong. Based on the current jurisprudence in Hong Kong, there is no legal obligation to take into account the alleged family rights of [the 1^st applicant] and his family members under BL, ICCPR, ICESCR and CRC in considering the present request for rescission of deportation order.

Non-refoulement Claim

21. Even though [the 1^st applicant’s] non-refoulement claim is still under process, his legal representative has requested on 16 October 2014 at (56) that the present request for rescission of deportation order should be processed without waiting for the outcome of his non-refoulement claim. Thus, the alleged life risk in Vietnam as raised in his non-refoulement claim has not been taken into consideration in the present case.

Decision Sought

22.       Having considered all circumstances of the case (except for those mentioned in para. 21 above), it is considered that the grounds put forth by his legal representative in the present request do not sufficiently justify rescission of the deportation order made against [the 1^st applicant]. We recommend that the request for rescission of the deportation order made against [the 1^st applicant] be rejected and the suspension of deportation order should not be considered.”

18.On 25 January 2017, the applicants filed their Form 86 to apply for leave to apply for judicial review of the Decision.  It was common ground below (as it is before this court) that the application was made out of time.

C.  THE JUDGMENT

19.Before the Judge, three proposed grounds of judicial review were advanced on behalf of the applicants.

20.The first ground was procedural unfairness arising from the lack of any or any substantive reasons in the Letter.  The Judge rejected this challenge for three reasons (at [28] ‑ [30]):

(1)  First, the Judge found that sufficient reason was given in the Letter.  Because the 1^st applicant was seeking to challenge the Permanent Secretary’s decision not to rescind the Deportation Order (instead of the Director’s original decision to impose the same), it was up to the 1^st applicant to put forward sufficient grounds to justify the rescission thereof.  The Letter demonstrated that the Permanent Secretary considered the grounds advanced on behalf of the 1^st applicant to be insufficient, which was the reason behind the Decision.  The Judge further held that the Permanent Secretary was under no duty to explain why the alleged change of circumstances were insufficient for the Deportation Order to be rescinded (at [28]).

(2)  Secondly, the Judge held that in any event, as a matter of principle, the Permanent Secretary was under no duty to give reasons for rejecting an application to rescind a deportation order against someone who has no legal right to stay or remain in Hong Kong.  The Judge cited in support Sabir Mohammed and Another v Permanent Secretary for Security (unreported, HCAL 114/2015, 27 January 2017, Au J) at [91(1)], BK & CH v Director of Immigration (unreported, HCAL 24 & 31/2009, 5 January 2010, A Cheung J (as he then was)) at [69]; and Nisa Azizan & Anor v Director of Immigration & Anor (unreported, HCAL 203/2015, 15 April 2016, Chow J) at [47] (at [29]).

(3)  Thirdly, the Judge was not satisfied that the applicants had suffered any substantial prejudice by the alleged failure to provide an adequately reasoned decision (at [30]).

21.The second ground was irrationality or failure to take into account relevant considerations.  At [31], the Judge carefully set out the matters which the applicants said the Permanent Secretary had left out of account, and then proceeded to traverse each of them under six headings: (a) “[t]he applicants’ family rights and the 2^nd applicant’s right of abode in Hong Kong” ([34] - [36]); (b) “[f]amily circumstances as relevant considerations” ([37] - [42]); (c) “[t]he 3^rd applicant’s rights under the [United Nations Convention on the Rights of the Child, ‘CRC’]” ([43] - [46]); (d) “[l]egitimate expectation” ([47] ‑ [49]); (e) “[r]isk of re-offending” ([50]); and (f) “[n]on-refoulment claim” ([51] - [52]).  In short, the Judge found that none of the complaints were made out.

22.The third ground was discrimination between foreign national applicants for dependant visas and persons coming to Hong Kong under the OWP system.  The Judge noted that the subject matter of the applicants’ complaint was not a decision of the Director refusing to grant a dependant visa to the 1^st applicant (at [54]), nor the original Deportation Order (at [57]).  In terms of the merits of the complaint, the Judge found none because, on the assumption that the discriminatory practice did exist, it could not sensibly be argued that the Permanent Secretary should unlawfully fetter his discretion in favour of the former group, as he allegedly did in favour of the latter group, so as to eliminate the practice (at [56]).

23.In these premises, the Judge held that none of the applicants’ proposed grounds of judicial review had a reasonable prospect of success (at [59]), and refused to grant an extension of time on this basis (at [60]).

D.  THIS APPEAL

24.In their Notice of Appeal, the applicants raise four grounds of appeal:

(1)  The Judge erred in finding that there was no procedural unfairness due to a “complete lack of reasons” for the Decision (“Ground 1”);

(2)  The Judge erred in finding that there was no failure to take into account all relevant considerations, or that the Decision was not tainted by Wednesbury unreasonableness (“Ground 2”);

(3)  The Judge erred in finding that, given the status of the CRC in Hong Kong, there was no duty for a child’s interest to be given primacy in the context of immigration control under Hong Kong laws (“Ground 3”);

(4)  The Judge adopted the wrong approach to the claim of discrimination mounted by the applicants, and thus misdirected himself to the issue of fetters on discretion (“Ground 4”).

25.The applicants have also set out in their Notice of Appeal at paragraphs 36 ‑ 41 complaints about the Judge’s errors in refusing to allow an extension of time.

26.We will now consider these grounds of appeal in turn.

D1.    Ground 1

27.This ground of appeal divides into three complaints: (a) that the Judge erred in finding that sufficient reasons were given for the Decision at the time it was communicated to the applicants; (b) that the Judge erred in finding that the applicants were not prejudiced by the Permanent Secretary’s failure to give reasons; and (c) that the Judge erred in failing to find at least a reasonably arguable case that the Permanent Secretary must give reasons for refusing to rescind a deportation order.

28.We shall deal with point (b) first, because if the applicants are unable to demonstrate substantial prejudice, it does not matter whether the alleged duty exists, or whether it is breached: South Bucks District Council v Porter (No 2) [2004] 1 WLR 1965, 1964 (Lord Brown), quoted in Smart Gain Investment Ltd v Town Planning Board (unreported, HCAL 12/2006, 6 November 2007), [30], A Cheung J (as the learned CJ then was).  The applicants’ attempt to distinguish South Bucks on the basis that it was not a case where (as here) no reasons were supplied at all is without merit.  The rationale is simply that the court should not interfere with executive decisions for immaterial irregularities, and it applies whether no reasons or merely inadequate reasons are given.  In any event, this is not a case where no reasons were given: see [30] and [43] below.

29.In the Judgment, the Judge (at [30]) considered that the applicants had not suffered any real prejudice due to the alleged lack of reasons, because they had not been handicapped in any way in advancing their arguments below.  The applicants seek to challenge his reasoning by pointing to the delay caused by the allegedly belated disclosure of materials to the applicants’ filing of their Form 86 (which, in the event, was out of time).  The unstated premise of this claim is that the application would have succeeded but for the late disclosure; hence real prejudice to the applicants.  This is erroneous, as the Judge rejected the application in its entirety on the merits, irrespective of whether it was made out of time (at [59] ‑ [60]).  Accordingly, there is nothing in this argument.

30.Further, the applicants claim that they are further prejudiced by their failure to know the reasons behind the Decision.  This contention is without substance: it is common ground that the M7 which related to the Decision were released to the applicants at their solicitors’ request.  Mr Shek however submits these materials do not in fact contain the relevant reasons but only the internal discussion between or within the Security Bureau and the Immigration Department.  This submission is without merit as it is plain and obvious from the context that they were adopted by the Permanent Secretary to arrive at the Decision.  They formed the reasons for the Decision.  See: Safder Tehseen v Permanent Secretary for Security (2014) 17 HKCFAR 567 at [18] - [19] per Fok PJ.  In these premises, there is no basis for the applicants to say they remain in the dark as to the reasons for the Decision.

31.We therefore agree with the Judge’s conclusion that the applicants did not suffer any substantial prejudice as a result of the alleged lack of reasons.  On this basis alone, Ground 1 should be dismissed.

32.For the sake of completeness, we will also deal with points (a) and (c).

33.As to point (c), in our view, it is not reasonably arguable that the Permanent Secretary has a duty to give reasons for the Decision.

34.As a start, as pointed out by Lam VP at the hearing and rightly accepted by Mr Shek, whether the Permanent Secretary had a duty to give reasons for the Decision was governed by the principles laid down by this court in Lister Assets Limited v Chief Executive in Council (unreported, CACV 172/2012, 25 April 2013, Fok, Barma JJA and McWalters J).

35.In Lister Asset, Fok JA (as he then was) has stated (at [20] ‑ [21]) that there was no general duty at common law on the decision maker to give reasons for an administrative decision, save as to two situations in which, by way of an exception, reasons may be required.  The exceptions are identified at [22] as follows:

“22. The first is where the decision appears aberrant, so that the reasons for reaching that decision should be made known to the recipient so that he may know whether the aberration is a legal one (and so challengeable) or apparent. The second is where the decision engages an interest such as personal liberty that is so highly regarded by the law that fairness requires that reasons be given as of right. See: R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242 at p. 263.”

36.It follows that there is no general duty of the kind alleged by the applicants, and the applicants must come within either exception in order to show that the Permanent Secretary should have a duty to give reasons for the Decision.

37.Mr Shek has confirmed at the hearing that he is not relying on the first exception as he accepts that the Decision by itself is not aberrant.  He says however the present case falls within the second exception, in that the Decision relates to “interest such as personal liberty that is so highly regarded by the law that fairness requires that reasons be given as of right”.  Upon the court’s question, counsel has fairly accepted that the Decision does not concern “personal liberty”, but submitted it involves the fundamental or important interests of the “integrity of the family” of the applicants and the “welfare of the child [ie, the 3^rd applicant]”, which are interests that were so highly regarded by the law that fairness required reasons be given as of right.

38.With respect, we are not persuaded by the submission.

39.What Lister Asset has said under the second exception is that the relevant decision must relate to such “interest” that is “so highly regarded by the law” that fairness requires that reasons be given as of right.  Whether there are such interests involved must be examined in context. In our view, the “interests” now identified by Mr Shek do not satisfy this requirement:

(1)  As now authoritatively laid down by the Court of Final Appeal in Comilang v Director of Immigration (2019) 22 HKCFAR 59, at [12] - [15], [26] - [89] per Ribeiro and Fok PJJ, in the context of immigration control and given the constitutional status of the immigration reservation provided under section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“the HKBORO”), the authority in considering immigration matters is not required by law to take into account the applicant’s purported right to family or best interests of the child (whether framed under the Basic Law, Bill of Rights and common law, and whether relied on by a foreign applicant or his family member joint applicant who is a Hong Kong permanent resident).  As such, the interests now relied on by Mr Shek, which are of the same nature as these rights, could not be elevated to the extent that they are “interests” that are so highly regarded by the law in the immigration context in Hong Kong.

(2)  Further, short of being a right, these interests in nature are plainly humanitarian and compassionate considerations that do not qualify as an interest on the same footing as personal liberty.  It is again well-established in this jurisdiction that in immigration context, the decision maker has no duty to have regard to humanitarian and compassionate considerations in making immigration decisions, even where family ties might be affected: Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 applied in BI v Director of Immigration [2016] 2 HKLRD 520 at [92(8)] and [102].

(3)  In the premises, it would be incoherent within our body of law to then treat these interests in immigration context as ones “so highly regarded by the law that fairness requires that reasons be given as of right” as anticipated in Lister Assets.

40.We therefore do not accept that the present case falls within the second exception in Lister Assets.  Hence, it is not reasonably arguable the Permanent Secretary was duty bound to give reasons for the Decision.

41.As to point (a), even if, contrary to our analysis above, there were such a duty on the part of the Permanent Secretary, and even if the Permanent Secretary had failed to give any reasons at the time when the Decision was communicated to the applicants by the Letter (which we also do not agree for the reasons given by the Judge), the authorities show that the subsequent provision of reasons to the applicants (by way of the M7) would satisfy that duty or at the least be sufficient to defeat a challenge of procedural unfairness based on the failure to provide reasons:

(1)  In Baker v Canada [1999] 2 SCR 817 (a case relied on by the applicants themselves), the Supreme Court of Canada, after deciding that there was a duty to give written reasons “in certain circumstances” (at [43]), went on to find that the Canadian immigration authorities satisfied this duty by producing a note prepared by an officer at the request of the complainant’s counsel, after the impugned decision was first communicated (at [4], [5], and [44]).

(2)  In Hong Kong Television Network Ltd v Chief Executive in Council [2015] 2 HKLRD 1035 (at [101]), the court found that, even if the decision maker in that case had a duty to give reason, the internal minutes of the Executive Council meetings and affidavits filed in the course of the judicial review containing the relevant discussions and reasons amounted to sufficient reasons being given for the challenged decision and the court would not exercise its discretion to grant any remedy to the applicant based on a reasons challenge.  This part of the judgment was not disturbed by the Court of Appeal on appeal[4].

42.The applicants are unable to cite any authority to the contrary.  The authority Connell v Secretary of State for the Home Department [2017] 4 WLR 38 heavily relied on by Mr Shek at the hearing is clearly distinguishable.  In that case, the public authorities themselves submitted that the internal memorandum in question was irrelevant for the reasons challenge (at [85]), whereas the Permanent Secretary herein makes the opposite submission.

43.Here, it is common ground that, at the request of Daly & Associates, the Security Bureau and the Immigration Department released to the applicants the underlying materials giving rise to the Decision.  We have rejected at [30] above the applicants’ contention that these do not contain the reasons for the Decision.  Extensive evidence contained in the Permanent Secretary’s affidavits[5] demonstrating such reasons was also canvassed during the proceedings below.  It must follow that, even if there were a duty on the part of the Permanent Secretary to give reasons for the Decision, it has been met in the present premises.

44.For all the above reasons, Ground 1 is entirely without merits and we reject it.

D2.    Ground 2

45.In the Form 86, the applicants contended that the Permanent Secretary failed to take into account relevant considerations in making the Decision.  These considerations were summarized by the Judge at [31] and [32] of the Judgment as follows:

“31. In paragraph 60 of the Form 86, it is contended that the Permanent Secretary failed to take into account the following relevant matters and thus the Decision was irrational:-

(1) the substantial change of circumstances in the 1^st applicant’s case since the Deportation Order was made, namely, the 3^rd applicant’s birth and the 1^st and 2^nd applicants’ marriage;

(2) the impact of the Decision on the 3^rd applicant;

(3) the impact of the Decision on the 2^nd applicant;

(4) the effect of the Decision upon the family as a whole and its proportionality in light of that;

(5) the limitation of the rights and freedoms of the 2^nd and 3^rd applicants as Hong Kong residents, as a result of the Decision;

(6) to what extent there was a risk of re-offending;

(7) the fact that the 1st applicant was an asylum claimant;

(8) the reasonableness of expecting the 2^nd and 3^rd applicants to leave with the 1st applicant in order to continue their family life;

(9) obligations under the UN Convention on the Rights of the Child (‘the CRC’); and

(10) the applicants’ fundamental rights, including the 2^nd applicant’s right of abode as a permanent resident protected under Article 24 of the Basic Law and the applicants’ right to respect for their family life.

32. In paragraph 61 of the Form 86, it is said that the applicants had a legitimate expectation that in making the Decision, the Permanent Secretary would take into account the status of the 2^nd applicant as a person having the right of abode in Hong Kong and her rights under the Basic Law and Hong Kong Bill of Rights.  It is further said that the special vulnerability of the 3^rd applicant as a child who would be affected by the Decision also gives rise to a legitimate expectation that his interests would be taken into account as a matter of course and without any need for the issue to be raised with the decision maker.”

46.In gist, those matters could be categorized as: (a) the family rights of the applicants and the 2^nd applicant’s status as a Hong Kong permanent resident; (b) family circumstances of the applicants; (c) the 3^rd applicant’s rights and interests as a child under the UN Convention on the Rights of the Child (“CRC”); and (d) the 1^st applicant’s risk of re‑offending and his non-refoulement claim.

47.The Judge considered all the above matters separately and concluded that the complaint had no reasonable prospect of success with reasons at [31] ‑ [52] of the Judgment.

48.Under this ground of appeal, the applicants criticise the Judge for committing the following errors.

49.First, the applicants claim the Judge erred in failing to find at least a reasonably arguable case that the Permanent Secretary failed to take into account all relevant matters set out in [31] of the Judgment.  See: Notice of Appeal paragraph 16.

50.We would reject this submission outright.  All the matters were dealt with by the Judge in [34] ‑ [52] of the Judgment.  In this appeal, it is incumbent on the applicants to point out the material error committed by the Judge in his analysis.  However, none was pointed out in the Notice of Appeal.

51.Second, the applicants further stated in the Notice of Appeal at paragraph 17:

“The Applicants reserve their arguments in respect of the constitutional rights of the 2^nd Applicant, as a permanent resident of Hong Kong, as referred to in the application. Insofar as the Court of First Instance considers itself bound in this regard to accept the approach taken in other cases, the same will not be the case in the higher courts. The 2^nd Applicant as a permanent resident, and the 3^rd Applicant as a lawful resident, are not subject to the immigration reservation.”

52.It is unclear whether the applicants wish to make any appeal in this respect before this court.  If they do, we would reject their argument.  The Court of Final Appeal’s decision in Comilang at [54] ‑ [57] and [71] has clearly held that a foreigner applicant cannot rely on the rights of the family member (who has the right of abode in Hong Kong) under the Bill of Rights or the Basic Law to circumvent the immigration reservations to support his immigration related application or judicial review challenge.  The applicants have now rightly conceded this point in their written submissions at paragraph 17.

53.Third, the applicants contend at paragraph 18 of the Notice of Appeal that the Permanent Secretary is “bound to consider humanitarian and compassionate considerations”.  Again, there is clearly nothing in this submission.  As mentioned above at [39(2)], the courts of this jurisdiction have consistently held there is no such duty, even where family ties might be affected.  Again, Mr Shek has rightly disavowed this contention during the hearing.

54.Fourth, the applicants submit that the Judge did not give any reasons in [42] of the Judgment for his conclusion that there was no proper basis to challenge the Decision on the grounds of procedural impropriety or Wednesbury reasonableness; it is their further submission that there is a reasonably arguable case that the Permanent Secretary’s approach is Wednesbury unreasonable because of his failure to give reasons, and his failure to treat the 3^rd applicant’s interests as a primary consideration[6].  For the reasons we have given respectively in rejecting Ground 1 above and Ground 3 below, this submission is without merit.

55.Fifth, the applicants submit that the Judge failed to properly scrutinise the process by which the Permanent Secretary took into account the family circumstances of the applicants.  In particular, they complain that the Judge failed to ensure the Decision was compliant with human rights principles[7].

56.In support, Mr Shek cited the English Court of Appeal decision in R v SSEE ex p Liverpool Hope University College [2001] EWCA Civ 362 ([81] ‑ [83]) seeking to show a general rule that the relevant human rights principles necessarily come into play in a judicial review.  With respect, there is nothing in this: this authority was specifically concerned with European Treaty rights and the Community law principle of proportionality, and thus carries no implication beyond the EU context.  The case is also distinguishable for at least two reasons: (a) that case concerns the legality of certain legislation regulating the naming of higher education institutions, not immigration (to which, plainly, different considerations apply); and (b) more crucially, as pointed out by the Judge in [49] of the Judgment, UK authorities necessarily pay no regard to the unique immigration context of Hong Kong, and so are of little (if any) value to this court.

57.In any event, as mentioned above, it is now firmly held by the Court of Final Appeal in Comilang, supra, at [39] ‑ [89] that the authority in considering immigration matters is not required by law to take into account the various family rights rooted in the Basic Law, Bill of Rights and common law (whether relied on by the foreign applicant or his family member joint applicant who is a Hong Kong permanent resident)[8]. The Judge is therefore clearly correct in rejecting the arguments based on the 1^st, 2^nd and/or 3^rd applicants’ “family rights” under the Bill of Rights, or the 2^nd applicant’s right of abode in Hong Kong.[9]

58.Sixth and lastly, the applicants submit that, “as argued before the [Judge]”, the Permanent Secretary has considered the matter only cursorily[10]. This ground does not identify any material error of the Judge’s rejection of this claim (at [37] - [42] of the Judgment), and essentially repeats what has already been put (unsuccessfully) before the Judge.  Even in their written submissions before this court, the applicants simply rehash what they consider to be indications of the Permanent Secretary’s not having considered the matter fully, and add to the end of their analysis a conclusionary statement that the judge had erred in saying “there is no proper basis to challenge the Decision on the grounds of procedural impropriety or Wednesbury unreasonableness”.  The same analysis of the Decision has already been run before (and rejected by) the Judge.  Because the applicants are unable to identify any error in the Judge’s approach, we would reject their complaint on this ground.

59.Further and in any event, this court (differently constituted) in BI has clearly stated the limited extent the court would intervene on Wednesbury ground in the authority’s exercise of discretion in relation to humanitarian and compassionate considerations.  In scrutinizing immigration-related decisions in its supervisory role, the court should give a wide margin of appreciation to the authority as the court does not possess the relevant expertise in and all the relevant information necessary for making an immigration decision.  Hence, this court has reiterated in BI at [105] 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 [and by extension the Permanent Secretary]”, and not for the court.

60.Given this standard of scrutiny, there is no basis for the applicants to say, in their written submissions[11], that the Permanent Secretary “was completely dismissive of the representations based on the humanitarian issues raised”, that “there was in reality no proper consideration of how [the Decision] would impact upon the [applicants’] family” or that the Permanent Secretary failed to seriously weigh and consider the applicants’ submissions.  The minutes quoted at [17] above show that matters concerning the applicants’ family (including the 3^rd applicant) have been considered and weighed.  The criticism that it could have been more detailed falls far short of the standard that the applicants must meet before the court would find procedural impropriety or Wednesbury unreasonableness.

61.In the premises, the Judge’s analysis at [37] ‑ [42] of the Judgment in this regard is plainly correct.

62.In further support of his contentions under this complaint, Mr Shek has referred this court to the authorities of Singh v Secretary for Security (1996) 6 HKPLR 440 and Baker.

63.In relying on Singh, Mr Shek submits that the Permanent Secretary should but had failed to take into account the “hardship” that the applicants as a family would suffer in making the Decision.

64.Singh does not assist Mr Shek.

65.As pointed out by Lam VP at the hearing, this court in M, L v Permanent Secretary for Security [2019] HKCA 507 at [11] has observed that Singh concerns a case where the applicant to be deported is someone who has been lawfully in Hong Kong as an ordinary resident, and very different considerations may apply when compared with a case with an applicant who has no permission to remain in Hong Kong and has committed crime here when he has no right to be in Hong Kong.

66.In any event, even in Singh, Keith J found that the applicants therein were unable to show the Secretary for Security had failed to give proper or sufficient weight to family hardship (451I), notwithstanding that the Secretary might not have set out every consideration that he had taken account of (450D-H).

67.Mr Shek’s reliance on Baker in this respect is similarly misplaced.  That case is decided in the context of Canadian law, where immigration officers are required by statute to evaluate a case with regard to humanitarian and compassionate considerations (at [65]); the preparedness of the Canadian court to intervene may legitimately be higher in those circumstances.

68.Singh and Baker therefore do not take the applicants’ submissions under this ground any further.

69.We therefore also reject Ground 2.

D3.    Ground 3

70.Under this ground, the applicants criticise the Judge for (a) not referring to the High Court of Australia decision in Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 (despite its having been cited to the court), and (b) failing to deal with the dicta in that case which requires primacy to be accorded to the interest of a child whether or not the CRC was ratified by a signatory.

71.This ground of appeal (not seriously pursued in the applicants’ written or oral submissions before this court) is without merit and can be disposed of quickly.

72.First, as the application of the CRC is subject to the immigration restriction in Hong Kong and its provisions have not been incorporated into the domestic law, it is now held by the Court of Final Appeal in Comilang, supra, at [84] ‑ [89] that there is no requirement under Hong Kong law and its constitutional framework requiring the Director or the Permanent Secretary to take into account the best interests of a child when making immigration decision.  A fortiori, the decision makers are not required to give primacy consideration to the best interest of the child.

73.Second, and in any event, Teoh is confined to the Australian context, and thus has no application in Hong Kong.  This is apparent from these underlined sentences of Gaudron J’s dicta (at [5] of his judgment) so heavily relied on by the applicants in their Notice of Appeal:

“Quite apart from the (UN Convention on the Rights of the Child) or its ratification, any reasonable person who considered the matter would, in my view, assume that the best interests of the child would be a primary consideration in all administrative decisions which directly affect children as individuals and have consequences for their welfare. Further, they would assume or expect that the interests of the child would be taken into account in that way as a matter of course and without any need for the issue to be raised with the decision-maker. They would make that assumption or have that expectation because of the special vulnerability of children, particularly where the break-up of the family unit is, or may be, involved, and because of their expectation that a civilised society would be alert to its responsibilities to children who are, or may be, in need of protection. The significance of the Convention, in my view, is that it gives expression to a fundamental human right which is taken for granted by Australian society, in the sense that it is valued and respected here as in other civilised countries. And if there were any doubt whether that were so, ratification would tend to confirm the significance of the right within our society. Given that the Convention gives expression to an important right valued by the Australian community, it is reasonable to speak of an expectation that the Convention would be given effect. However, that may not be so in the case of a treaty or convention that is not in harmony with community values and expectations. There is a want of procedural fairness if there is no opportunity to be heard on matters in issue.” (our emphasis)

74.It has repeatedly been stated by courts of this jurisdiction that foreign immigration cases are of little, if any, persuasive value, because Hong Kong has developed its own jurisprudence in the light of its special legal, geographical and practical situation: see [49] of the Judgment and the authorities cited there.  This reasoning applies with even greater force in respect of Teoh, as the case itself expressly confines its reasoning to the circumstances of Australia.

75.We therefore also reject Ground 3.

D4.    Ground 4

76.The applicants contend that the Judge erred in his approach to their discrimination claim.  It is their submission that, following the analysis in QT v Director of Immigration (2018) HKCFAR 324, the Judge should have identified a comparator, discerned any difference in treatment, and considered the question of justification had it arisen.  The error of the Judge, according to the applicants, was that he considered the matter “the wrong way round” by looking first at the excuses for the purported discrimination.  A further error in their case was that the Permanent Secretary should have directed his mind to whether any discrimination should be stopped, instead of whether the Permanent Secretary should be encouraged to act unlawfully in respect of individuals other than OWP holders.

77.This ground of appeal is also without merit.

78.First, the alleged discrimination is irrelevant to the lawfulness of the Decision.  As correctly pointed out by the Judge in [54] and [57] of the Judgment, the target of the applicants’ complaints is not the decision of the Director refusing to grant a dependent visa to the 1^st applicant, nor the original Deportation Order by the Director, but rather the Permanent Secretary’s Decision refusing to rescind the Deportation Order.  That being said, the alleged discrimination does not concern the Permanent Secretary’s practice or policy as respects the rescission of deportation orders; instead, it is a complaint about, essentially, the Director’s preferential treatment towards OWP holders when deciding whether to grant a dependent visa or whether to make a deportation order in the first place.  This is indeed implicit in the applicants’ written submissions at paragraph 24, where the purported policy not to deport OWP holders with a deportable conviction is impugned, not any policy concerning the exercise of power under section 55 of the Ordinance.  It follows that the alleged discrimination, even if established, does not assist the applicants: see also this court’s analysis in MI & IYW v Director of Immigration [2018] HKCA 49, [66] ‑ [71] (Lam VP).  This is an independently sufficient reason for this ground of appeal to be dismissed.

79.Second, the Judge’s analysis at [56] of the Judgment (adopting his previous analysis on the same issue in MI v IYW (unreported, HCAL 92/210, 11 March 2010, [57]) about the proper recourse for the alleged discrimination (if found) is plainly correct.  In particular, the Judge was right when he explained that, if a preferential treatment towards OWP holders is demonstrated, the correct response of the law would be to strike it down because of a fetter on the Permanent Secretary’s discretion under the Ordinance.  The effect of the applicants’ contention (below and here) is to require the court to quash a decision reached without that unlawful fetter.  That, as the Judge rightly pointed out, could not be right.  To explain the point using the applicants’ language, in order to “stop” the purported discrimination, the proper relief is to quash the unlawful practice (ie, the alleged preferential treatment towards OWP holders), not the lawful one (ie, the Deportation Order or the Decision).  See this court’s decision in MI, supra, endorsing this analysis at [66] - [71].

D5.    Complaints about refusal to extend of time

80.Given that the Judge is correct in concluding that all the proposed grounds of judicial review are not reasonably arguable, he must also be correct in refusing to extend time to the applicants to apply for judicial review.  In the premises, there is also nothing in the applicants’ complaint in the Notice of Appeal[12] that the Judge erred in his refusal to extend time in failing to consider all the relevant matters under the principles set out in AW v Director of Immigration[13]at [27(1)].

E.  CONCLUSION

81.For all the above reasons, we dismiss the applicants’ appeal.  There is no reason why costs should not follow the event.  We make an order nisi that the applicants shall pay the costs of the respondent, to be taxed if not agreed, and the applicants’ own costs to be taxed in accordance with legal aid regulations.

Mr Randy Shek, instructed by Daly & Associates, for the applicants, assigned by the Director of Legal Aid

Mr Yang-Wahn Hew, instructed by Department of Justice, for the putative respondent