Riaz Hussain and Another v. Permanent Secretary for Security

CAMP 235/2020

[2021] HKCA 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 235 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 62/2020)

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BETWEEN

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Before: Hon Lam VP and Au JA in Court

Date of Hearing: 13 July 2021

Date of Judgment: 16 July 2021

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.By a summons filed on 8 December 2020, the 1^st Applicant applied for leave to appeal out of time the against the decision of Chow J (as he then was) (“the Judge”) on 6 October 2020 refusing leave to apply for judicial review of the decision of the Permanent Secretary for Security (“the Secretary”) dated 18 December 2019.  The Permanent Secretary refused to suspend or rescind a deportation order made against the 1^st Applicant on 10 January 2017. 

2.Previously, the 1^st Applicant made an application to the Judge for leave to appeal out of time on 9 November 2020.  The application was dismissed by the Judge on 4 December 2020.

3.The factual background was set out by the Judge at [2] to [15] of his decision to refuse leave for judicial review ([2020] HKCFI 2532).  The Applicants filed their Form 86 application for leave to apply for judicial review on 7 January 2020.  Subsequently, the Applicants sought to amend their proposed grounds for judicial review on 24 August 2020.  In their draft amended Form 86, they abandoned their original grounds, and raised the following grounds for judicial review:

“ GROUND 1

Failing to take into account relevant considerations, namely:

(a) The Putative Respondent did not consider whether the offences for which the 1^st Applicant was convicted were the most serious so as to justify suspension/rescission.

(b) The Putative Respondent failed to take into account whether the 1^st Applicant had been rehabilitated when he was released from prison as his dependent visa was not cancelled, and he successfully applied for a visa renewal of 3 years.

GROUND 2

In failing to take into account 1(a) and (b) the Putative Respondent was unable properly to assess whether a rejection of suspension/rescission was necessary as conducive to the public good.”

4.The Judge determined the application for judicial review by reference to the Applicants’ amended grounds.  The Judge’s reasons for refusing leave to apply for judicial review were set out at [20] – [32] of his decision of 6 October 2020.  In summary, the Judge refused leave because:

(a) Sections 20(1)(a), 54(1) and 55(1) of the Immigration Ordinance, Cap 115 (“IO”), which provide for the making, suspension and rescission of a deportation order, do not require the Secretary to take into account the two specific matters relied upon in this judicial review application as mandatory considerations;

(b) Though the decision-maker may, in its judgment and discretion, have regard to non-mandatory considerations if the Secretary finds those considerations relevant, it is up to the Secretary, not the court, to decide whether non-mandatory considerations are relevant;

(c) The Secretary is given a broad discretion, the exercise of which must, ultimately, be guided by considerations of public policy (applying Sabir Mohammed v Permanent Secretary for Security, HCAL 114/2015, 27 January 2017);

(d) In any event, the Secretary had taken these matters into account;

(e) Even though the offences for which the 1^st Applicant was convicted were not the “worst compared to other cases where deportation orders were made”, the Secretary was entitled, having regard to (a) the circumstances of the offences; and (b) the prison sentences imposed on the 1^st Applicant for the 2 offences, to come to the view that the 1^st Applicant’s offences were of such seriousness that it would not be in the public interest to allow him to remain or come to Hong Kong again; and

(f) Renewal of dependent visa was a different exercise from the process of making a deportation order and the suspension or rescission of the same.  In renewing the 1^st Applicant’s visa, the Director did not consider that no deportation order should be made.  Further, in the exercise of discretion under Section 20(1), the Secretary was not bound by the Director’s assessment in the renewal of visa.

5.In light of the above, the Judge considered that the application for leave for judicial review was not reasonably arguable and it had no prospect of success.  Thus, the application was dismissed.

Discussion

6.The Court’s approach in considering an application for leave to appeal out of time is well settled.  In Tang Chai On v Tang Sing Ki, [2016] 5 HKLRD 104, this Court held at [9] (citing Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, [2015] HKEC 899 (CA) at [19]):

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party of the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

7.Pursuant to Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, where leave for judicial review is refused, the applicant may appeal to the Court of Appeal against the refusal within 14 days after the judge’s order.  In the present case, the deadline for appealing was 14 days from 6 October 2020, i.e. by 20 October 2020. However, the 1^st Applicant did not apply to the court below for leave to appeal out of time until 9 November 2020, i.e. 20 days late.  The delay is substantial.

8.The 1^st Applicant explained to the Judge that he was unrepresented at the time he applied for leave to appeal out of time, that he had no resources and it was difficult to obtain legal advice.  He said that he was not aware of the deadline until he was advised of the same by a friend.  The Judge did not consider this to be a good explanation.  In any event, he refused to extend time to appeal because of the lack of merits in the intended appeal.

9.For present purposes, we focus on the prospect of success in the intended appeal.

10.Mr Baker for the 1^st Applicant in his submissions relied on the following intended grounds of appeal:

(1) The Judge incorrectly held that the seriousness of the offences and the 1^st Applicant’s rehabilitation were not mandatory considerations notwithstanding that they are relevant to the question of whether the 1^st Applicant posed a threat to law and order;

(2) The Judge did not consider whether the decision not to suspend/rescind the deportation order was based on a material error of law because it was made on the premise that the 1^st Applicant did not enjoy “the right to enter and remain in Hong Kong” within the meaning of Section 11 of the Bill of Rights Ordinance, Cap 383 (“BORO”) even though at the time of the deportation order the 1^st Applicant was a Hong Kong resident; and

(3) The Judge did not assess whether the Secretary’s decision (i) was Wednesbury unreasonable and/or (ii) failed to consider a mandatory consideration because of the exceptional fact that the Director had, subsequent to the 1^st Applicant’s convictions but prior to the deportation order, permitted the 1^st Applicant to remain in Hong Kong as a resident on a dependent visa for four years.

11.Mr Li for the Secretary and the Director accepted that as a matter of law mandatory considerations can sometimes be implied in a statutory scheme.  However, it is submitted that none of the authorities relied upon by the 1^st Applicant support his proposition that the two factors he relied upon are mandatory considerations for the exercise of power in making, suspension and rescission of deportation orders in the IO. 

12.In this respect, we agree with the submission of Mr Li.

13.Section 20(1) of the IO provides that:

“ The [Chief Executive] may make a deportation order against an immigrant if –

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the [Chief Executive] deems it to be conducive to the public good.”

14.Section 2(1) of IO defines “immigrant” as a person who is not a Hong Kong permanent resident.  In other words, Hong Kong permanent residents (who enjoys right of abode here) cannot be deported.  Non-permanent residents, who are allowed to enter and remain in Hong Kong by the Director of Immigration, can be deported if the conditions under Section 20(1) are satisfied. 

15.Hence, Section 20(7) of IO provides that a deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made.  The invalidation is applicable to a permission to remain granted under a dependant visa.

16.Notwithstanding the issue of dependant visa to the 1^st Applicant, he is not a permanent resident.  The last paragraph in Article 24 of the Basic Law of the Hong Kong Special Administrative Region clearly stipulates that non-permanent resident has no right of abode.

17.Once the permission to remain in Hong Kong is invalidated upon the making of a deportation order, the 1^st Applicant cannot claim to be a person enjoying the right to enter and remain in Hong Kong.  Thus, at the time of the application for suspension or rescission of the order, the 1^st Applicant was not a person who had the right to enter or remain in Hong Kong.

18.Thus, the grant of permission to stay to him by a dependant visa cannot curtail the power under Section 20(1) to make a deportation order against the 1^st Applicant. This proposition is well-supported by   authorities: see Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 at [16].  See also Safder Tehseen v Permanent Secretary for Security CACV 167/2012, 6 June 2013 where a deportation order was made and enforced against a non-permanent resident who had been in Hong Kong since 1997 and had been granted leave to remain as a dependant of his father who was a permanent resident.

19.It is clear from the wording of IO Section 20(1)(a) that a deportation order can be made where a non-permanent resident is convicted in Hong Kong of an offence that can be punished with imprisonment for not less than 2 years. 

20.Nevertheless, Mr Baker submitted that whether a deportee presents a threat to law and order is a mandatory consideration.  Counsel relied on Weerachon Sae-Ieo v Secretary for Security [2003] 2 HKLRD 519 at [48].

21.It is very surprising that counsel regarded that case as authority in favour of the Applicants.  The case concerned a Thai national who had been residing in Hong Kong since 1991 under a dependant visa.  He was convicted and sentenced to imprisonment for possession of dangerous drug in January 2001.  A deportation order was made against him in April 2001.  He sought to have the order rescinded and quashed by arguing that the order was irrational when one balanced the threat posed by his continued presence in Hong Kong against the hardship which deportation would cause to him and his family.

22.Thus, an argument similar to the one now advanced by Mr Baker was mounted on behalf of the applicant in that case, principally by reference to the judgment of Keith J in Singh v Secretary for Security (1996) 6 HKPLR 440.  His contention was rejected by Hartmann J after analyzing the relevant statutory provision and the context in which Singh was decided.  In light of Mr Baker’s heavy reliance on Weerachon Sae-Ieo, supra, it is necessary to read [48] and [49] carefully:

“ 48. I have stressed that Keith J came to his findings in the context of a specific factual matrix. Within that matrix, I am in respectful agreement with his findings. I confess, however, that on a broader canvass of principle applicable to all cases in which the discretion contained in s.20(1)(a) is exercised, I am concerned that too much emphasis may be placed by litigants on the statement that the purpose of a deportation order under s.20(1)(a) is to remove an immigrant who poses a threat to law and order. I am concerned that it may be argued — as it has been in the present case — that in all cases, unless a threat to law and order can be identified, a decision to deport pursuant to s.20(1)(a) will be unlawful. In my view, while invariably no doubt a threat to law and order on the part of a potential deportee will be a relevant factor, it is going too far to say that, in looking to why, if at all, a person should be removed from Hong Kong, the exercise of discretion pursuant to s.20(1)(a) is to be restricted to this one matter. The plain wording of the legislation cannot be so fettered.

49. This is not to suggest that Keith J came to a conclusion that the exercise of discretion pursuant to s.20(1)(a) is to be fettered in the manner I have described. I am satisfied he did not. It is correct that he defined the purpose of a deportation order in the following general statement (at p.449):

‘ The purpose of a deportation order under s.20(1)(a) is to remove from Hong Kong foreigners who pose a threat to law and order.’

But while that definition met the factual imperatives of the case before him, it is important to note that Keith J did not look to supporting authority, nor to an analysis of the legislation itself, in order to make it a principle of general application. While a number of common law authorities were cited, they were employed to support the finding that, in the exercise of a discretion pursuant to s.20(1)(a), hardship is (or may be) a relevant factor to be placed into the scales … [Hartmann J then cited from the judgment of Keith J at p.499 and then he continued] … It would be wrong, therefore, to suggest that Keith J looked to the English scheme in order to suggest that, as a matter of general principle, the purpose of a deportation order made under s.20(1)(a) is restricted to the removal from Hong Kong of immigrants who pose a threat (ie a continuing threat) to law and order. In canvassing English authorities, he was looking to the question of hardship.” (our emphasis)

23.Hartmann J then considered at [50] to [60] the difference between the English legislative scheme (together with English case law under that scheme) and our Section 20(1).  Importantly for our purposes, the conclusions of His Lordship were as follows at [59] to [60]:

“ 59. In contrast to the English scheme, the Hong Kong schememakes no provision for a two-stage process. In my judgment, it is clear from a reading of s.20(1)(a) that the Hong Kong Legislature has itself defined what offences are serious enough to merit deportation; namely, offences punishable with imprisonment for not less than two years. The English scheme — s.3(6) — speaks only of an offence punishable by imprisonment; no term of imprisonment is specified. In Hong Kong, therefore, the Legislature having defined criminal conduct of sufficient seriousness to merit deportation, the exercise of Executive discretion pursuant to s.20(1)(a) is triggered by a conviction for any such conduct.

60. But how lawfully may that Executive discretion be exercised? As I have said, it is not to be restricted to balancing a threat to law and order against harm to the individual and his or her family. If that balancing exercise is one which has to be carried out by the courts under the English scheme, it is not certainly not one which has to be carried out by the Secretary of State: his executive discretion is far broader. Why then should Executive discretion in Hong Kong be restricted to the parametres of judicial discretion under the English scheme? A reading of our legislation can lead to no such conclusion. In my judgment, the exercise of Executive discretion pursuant to s.20(1)(a) must be governed by the requirements of public policy. Considered in that broad perspective, the question may be asked: do Hong Kong’s best interests justify an order for deportation? Or, to express it another way, are there grounds in the public good to justify such an order? See, for example, MacDonald’s Immigration Law and Practice (5th ed., 2001) at p.713 paras.15.12 and 15.13.” (our emphasis)

24.His Lordship then referred to the judgment of Stock J (as he then was) in Bahadur v Secretary for Security HCAL 18/1999 on how the requirements of public policy are to be taken into account.  In that judgment, Stock J stressed the operation of this unfettered discretion in the small territory with peculiar and well known immigration problems.  A more elaborate statement on the restrictive immigration policy underpinning the exercise of discretion on immigration matters can be found in this Court’s judgment in BI v Director of Immigration [2016] 2 HKLRD 520 at [92].

25.We respectfully agree with the analysis of Hartmann J.  It is rather unfortunate that in subsequent cases there were still arguments run on the basis that the exercise of discretion under Section 20(1) hinges on balancing threat on law and order against hardship upon the deportee and his family members.  Such reliance on Singh v Secretary for Security, supra was (as fully explained by Hartmann J) misplaced.  More recently, this Court had to dispel such misguided attempt in M, L v Permanent Secretary for Security [2019] HKCA 507. 

26.The relevance of the restrictive immigration policy in the context of deportation order was explained by Au J (as he then was) in Sabir Mohammed v Permanent Secretary for Security, supra which was in turn alluded to by Chow J in the instant case.

27.A comprehensive summary of the relevant legal principles applicable in Hong Kong concerning rescission of deportation orders can be found in the judgment of Chow J in MI & IYW v Permanent Secretary for Security HCAL 22/2016, 9 May 2017 at [42] which were endorsed by this Court in M, L v Permanent Secretary for Security, supra at [12] and [13] (cross-referenced to the relevant paragraphs in Sabir Mohammed):

“ (1) As the clear words in section 20(1)(a) of the Immigration Ordinance provide, the Chief Executive (and the Permanent Secretary as the person delegated with the power) has the power to issue a deportation order when an immigrant is convicted for an offence which is punishable with imprisonment for not less than two years. In other words, the legislature has identified and regarded that an offence which is punishable for not less than two years is by itself serious enough to merit the issue of a deportation order (paragraph 37).

(2) A deportation order made under section 20(1)(a) of the Immigration Ordinance is prima facie for life, absent special circumstances (paragraph 38).

(3) In a case where a deportation order is issued against someone who has committed a criminal offence, the deportation order is not a sentence or punishment to fit the crime. The Permanent Secretary in deciding whether to exercise his discretion to issue a deportation order under section 20(1)(a) is to be guided by considerations of public policy (paragraph 39).

(4) The Permanent Secretary, being required to exercise a discretion under sections 20(1)(a), 54 or 55 of the Immigration Ordinance, is involved in a balancing exercise in deciding whether to exercise the power so vested (paragraph 40).

(5) The principles governing the relevance of a consideration that a decision-maker vested with a discretion should and could take into account are these:

(a) The decision-maker must take into account matters clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had.

(b) The decision-maker must not take into account matters clearly identified by the relevant legislation as considerations to which regard must not be had.

(c) The decision maker may have regard to other matters if, in its judgment and discretion, he thinks it is right to do so.

(d) Under the above third category, subject to Wednesbury unreasonableness, what is and what is not a relevant consideration for a decision-maker to have in mind is, absent any statutory code of compulsory considerations, for the decision-maker, not the court, to decide. Similarly, the weight that should be given to a factor which the decision-maker has regarded as relevant is a matter for him, not the court (paragraph 41).

(6) It is well established that the Director has been vested with the power and discretion to implement and impose immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions. Further, in the exercise of his power and discretion he adopts an overall restrictive immigration control policy. The legitimacy and rationality of such an overall restrictive policy applicable to the entire immigration regime is well recognised and accepted by the courts (paragraph 42).

(7) Under the overall restrictive immigration policy, a person who does not have the right of abode and the right to land in Hong Kong cannot enter or stay in Hong Kong without the Director’s permission. Within the confines of that policy, the Government has formulated different specific immigration policies to be given effect by the Director to deal with different categories of persons who wish to come to Hong Kong. Under these different policies, they allow a limited number of persons in different categories to come to Hong Kong for immigration purposes. These purposes include working, studying, establishing or joining in any business, taking up residence as residents or staying as visitors (paragraph 43).

(8) 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 (paragraph 44).”

28.Whilst there had been an appeal in Sabir Mohammed (CACV 85/2017), it was dismissed on 6 August 2019: see [2019] HKCA 871.

29.Proposition (5) in the above summary is challenged by Mr Baker.  Counsel submitted that what is and what is not a relevant consideration is a matter for the court, not the decision-maker.  As a general administrative law principle, this is an incontrovertible proposition.  However, as explained by the Court of Final Appeal in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, this principle should be applied by reference to matters which a decision-maker is bound to take into account, following Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, see Li CJ at p.332 G to H; Litton PJ at p.339A to C; Mason NPJ at p.347D.

30.In the context of the exercise of discretion in immigration matters, in particular the powers under Sections 20(1), 54 and 55 of the IO, the authorities in Hong Kong firmly established the unfettered nature of the discretion, see in particular the judgment of Hartmann J in Weerachon Sae-Ieo, supra.

31.Further, in view of the deliberately broad nature of the discretion and the high policy content on immigration matters, the courts in Hong Kong have consistently maintained that the decision-maker has no duty to consider humanitarian grounds even though that he could take such grounds into account if he thinks it appropriate to do so: see Lau Kong Yung v Director of Immigration, supra, at p.330 C to H, 332D to H, 339A to F, 347B to F; BI v Director of Immigration, supra at [92(8)], [102] to [107]; M, L v Permanent Secretary for Security, supra endorsing Sabir Mohammed as cited above.

32.It is against such context that the courts held that as a matter of statutory construction in the exercise of the broad discretionary powers under Sections 20, 54 and 55 the IO, other than the meeting of the statutory threshold regarding the nature of the offence for which a deportee has been convicted, in assessing whether there are grounds in the public good to deport, it is for the decision-maker to assess the relevance of various matters and the weight to be attached to the same.

33.Thus, in the recent case of PVQ v Permanent Secretary for Security [2021] HKCA 444, Au JA observed at [39] and [59]:

“ 39. …

(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].”

“ 59. 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.”

34.In light of these lines of authorities which are binding on this Court, it is not reasonably arguable that in the context of the exercise of discretion on deportation against the restrictive immigration policy in Hong Kong proposition (5) is wrong in law.

35.Mr Baker tried to avoid this difficulty by contending that the two matters he relied upon under Ground (1) were mandatory considerations.

36.In light of the analysis of Hartmann J in Weerachon Sae-Ieo, supra, in particular the parts of the judgment highlighted with emphasis above, we do not think it is reasonably arguable that the fact that the offences for which the 1^st Applicant were convicted were not the most serious type is a mandatory consideration.

37.As regards the renewal of the dependant visa, there is no evidential basis for equating such renewal with the acceptance by the Director that the 1^st Applicant had been rehabilitated.  As held by the Judge, the evidence plainly shows that the Director did not regard the 1^st Applicant’s case as meriting the withholding of deportation order as he was the one who made the application for deportation order.

38.Also, in light of Hartmann J’s analysis of the nature of the deportation power and the exercise of such power in the context of a restrictive immigration policy, we do not see any prospect of success in a challenge based on the argument that the Secretary was obliged to take account of the renewal of the dependant visa.

39.In any event, as the Judge pointed out at [30] of the judgment of 6 October 2020, it is plain that the Secretary had taken these matters into account.  In this respect, the relevant minute (M 4) had adequately set out the particulars of the convictions and sentences served by the 1^st Applicant and the extension of his dependency visa until 27 October 2019.  It also set out his grounds of application, including the offences not being the worst types and his remorse for his wrongdoings.

40.As held by this Court in Safder Tehseen v Permanent Secretary for Security, supra and affirmed by the Appeal Committee in the same case in FAMV 31/2014, 10 October 2014, such evidence is sufficient to establish that these matters had been taken into account.

41.In substance, what the Applicants challenge is the weight the Secretary attached to these matters.  In terms of the reasonableness of the decision of the Secretary, the Applicants said in essence that insufficient weight was given to the hardship they would suffer whilst the 1^st Applicant is not a threat to law and order.  As explained by Au JA in PVQ v Permanent Secretary for Security, supra, hardship comes under the head of humanitarian considerations.  For the reasons set out in the authorities already cited, this must be a matter for the Secretary.

42.In the circumstances we do not find the Secretary’s view that it is not in the public interest to allow the 1^st Applicant to remain in or return to Hong Kong to be Wednesbury unreasonable.

43.We therefore do not find Grounds (1) and (3) to be reasonably arguable.

44.Ground (2) was not a ground set out in the Amended Form 86.

45.In any event, the ground has no merit.  As explained above, by virtue of Section 20(7) of the IO, one of the effects of a deportation order is to invalidate an immigrant’s permission or authority to land in or remain in Hong Kong.  Therefore, the 1^st Applicant has no basis for complaining that the Secretary’s decision not to suspend or rescind (which is the subject decision challenged in the Amended Form 86) was wrong in assessing the same on the basis that the 1^st Applicant did not have the right to enter and remain in Hong Kong.

46.Mr Baker failed to have regard to [16] in the judgment of the Court of Final Appeal in Gurung Kesh Bahadur v Director of Immigration, supra, when he relied on that authority to argue that the 1^st Applicant as a Hong Kong resident had a right under Article 31 of the Basic Law to land and remain for the duration of his permission of stay, and such right could not be limited by statute.  As explained above, as a non-permanent resident, such right could be and was taken away by the deportation order.  [16] of Gurung Kesh Bahadur clearly confirmed this to be the law.

47.For the above reasons, we do not see any prospect of success in the Applicants’ intended appeal. 

48.Accordingly, this application for leave to appeal out of time against the Judge’s decision of 6 October 2020 is dismissed.  We shall also order the 1^st Applicant to pay the costs of the Secretary and the Director in this application.  Having regard to the statement of costs of the Secretary and the Director, we summarily assess their costs at $45,000. 

Mr Josh Baker, instructed by Chaudhry Solicitors, for the 1^st applicant

Mr Sunny Li, Senior Government Counsel of the Department of Justice, for the putative respondent and the putative interested party