Thapa Magar, Bisham v. Director of Immigration

HCAL 1909/2018

[2021] HKCFI 2237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1909 OF 2018

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BETWEEN

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Before: Hon Anthony Chan J in Court

Date of Hearing: 30 July 2021

Date of Decision: 30 July 2021

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DECISION

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1.This is the Applicant’s application for leave to apply for judicial review in respect of a Deportation Order (“Order”) made against him by the Permanent Secretary for Security (“PS for S”) dated 20 July 2018.

2.The Director of Immigration (“Director”) was named in the Form 86 as the Putative Respondent.  The Putative Respondent should actually be the PS for S who made the Order under the authority of s 20(1) of the Immigration Ordinance, Cap 115 (“Ordinance”) as delegated by the Chief Executive.  The Director’s role was to provide information to the PS for S for consideration in the making of the Order and to enforce the same once it was made. 

3.In any case, evidence and submissions had been filed and served by the Director to assist the court pursuant to its directions. 

Background

4.The background facts may be succinctly stated as follows.  The Applicant is a Nepalese national born in Nepal on 12 June 1999 (now 22 years of age).  His father and his mother had acquired Hong Kong Permanent Resident status on 5 May 2005 and 14 July 2016 respectively.  The Applicant entered Hong Kong on 24 January 2013 on the strength of a dependant visa granted to him on 4 January 2013.  He had since been living in Hong Kong as a dependant of his father.  His limit of stay as a dependant was last extended till 24 October 2018.

5.The Applicant had been arrested by the Police on various occasions from 2014 to 2018.  On 9 October 2017, he was convicted of the offence of fighting in a public place and was fined for HK$1,000.  On 30 January 2018, he was convicted of the offence of possession of offensive weapons in a public place under s 33(1) and (2) of the Public Order Ordinance, Cap 245. On 13 February 2018, he was sentenced to 8 months’ imprisonment.

6.On 16 April 2018, the Applicant was informed of the intended deportation of him and a “Notice of Consideration of Deportation” was served and explained to him.  He was invited to make representations.  In the “Grounds against Deportation”, the Applicant stated that he wanted to stay in Hong Kong with his father, mother and brother.

7.By a memorandum dated 4 July 2018, the Director applied to the Secretary for Security for a deportation order to be made against the Applicant.

8.On 20 July 2018, the PS for S, based on the Applicant’s conviction record and having considered various factors, including the representations made by the Applicant and his mother and the Applicant’s family circumstances, made the Order.

Grounds for the application

9.The Form 86 was drafted by the Applicant’s solicitors, who no longer had instructions to represent him since 10 July 2021. 

10.Two grounds were stated in the Form 86.  In summary, these grounds were: (i) the Director had fettered his discretion by following the policy blindly and rigidly; and (ii) the Director had failed to take into account relevant considerations and took into account irrelevant considerations.  It was alleged that the Applicant’s personal circumstances and his application for extension of time to appeal against the conviction were ignored. 

Deportation order and applicable principles

11.The power to make a deportation order is governed by s 20(1)(a) of the Ordinance, which provides that :

“(1) The Governor [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

…”

12.The offence for which the Applicant was convicted was punishable with imprisonment not more than 3 years: see s 33(2)(c)(i) of the Public Order Ordinance, Cap 245.

13.The applicable legal principles concerning deportation order and immigration policy were summarised in Sabir Mohammad v Permanent Secretary for Security, HCAL 114/2015, unrep, 27 January 2017, §§ 37 to 44.

Merits of the grounds

14.I regret to say that both grounds of application are hollow assertions unsupported by any evidence. 

15.The evidence filed by the Director revealed that the issuance of the Order was preceded by an elaborate process involving much public resources.  During such process, relevant information was gathered, both the Applicant and his mother were interviewed, documents were received from the Applicant’s mother, the objections of the Applicant and his mother to the intended issuance of the Order were considered in conjunction with other relevant circumstances, eg, public interest.  Eventually, the Order was made by the PS for S after considering, inter alia, the material before her and the assessments and recommendations of the colleagues who participated in the process.  The process was well-documented by numerous contemporaneous memorandums. 

16.The allegation that the Order was made as a result of immigration policy being followed blindly must be rejected.

17.As regards the Applicant’s personal circumstances, the evidence confirmed that they were considered at length.  The weighing of the relevant considerations which led to the Order was entirely a matter for the PS for S: see Sabir Mohammad, §41(4).

18.In respect of the alleged appeal by the Applicant.  The evidence was that the Director was informed by the Commissioner of Correctional Services on 1 March 2018 that the Applicant had not lodged any appeal.  In addition, during his interview by an officer of the Immigration Department on 8 July 2018, the Applicant said that he did not lodge any sentence review or appeal against his conviction. 

19.For completeness, after the Order was made, on 15 August 2018 the Applicant’s solicitors wrote to the Immigration Department enclosing an Application for Extension of Time for Giving Notice of Appeal by the Applicant dated 14 August 2018.  Nothing further was heard by the Department from the Applicant about that Application.

20.In the premises, the allegation has no substance.

21.During the hearing today, the Applicant advanced two complaints.  Firstly, he said that he was not given another chance by the Immigration Department because he was only interviewed once.  The Applicant did not offer any new information which he had not told the Immigration Department.  This complaint also has no substance.

22.Secondly, the Applicant said that he has no family in Nepal as they are all in the UK.  His personal circumstances were duly considered in the course of making the Order.  This is no basis for the court to intervene.

Conclusions

23.For these reasons, I am of the view that there is no merit in this application.  It must be rejected with costs to the Director, to be taxed if not agreed. 

24.I am grateful to Mr Tse for his assistance. 

The Applicant appeared in person

Mr Harvik Tse, Government Counsel of Department of Justice, for the Putative Respondent