Ceesay Sambou Lamin v. Director of Immigration

HCAL 2705/2019

[2022] HKCFI 523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2705 OF 2019

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BETWEEN

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Judgment:  21 February 2022

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J U D G M E N T

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A.  Introduction

1.The applicant is a Gambian national.  On 16 September 2019, he filed a Form 86 in which he identified the “decision of the Director of Immigration 13^th - 04 - 2019” as the decision he intends to challenge.

2.In his supporting affirmation also dated 16 September 2019, the applicant said:

I can’t go back to my country because my life is still in danger and my brother is arrested because of this matter. And secondly, I have a wife here.  I can’t go back.  Exhibit A and Exhibit B is attached.

3.Exhibit A is a deportation order dated 13 April 2018 (not 2019).  The deportation order was issued by the Permanent Secretary for Security, rather than the putative respondent as identified in the Form 86. Exhibit B is a certificate of marriage between the applicant and a Ms Shek Yuk Ping dated 16 November 2018.

4.On 30 September 2021, I directed the Director to file and serve an initial response within 35 days, and granted leave to the applicant to file and serve a reply within 21 days thereafter.  The Director had filed an initial response on 2 November 2021 and served it on the applicant on 3 November 2021.  The deadline for the applicant to file his reply, if any, fell on 24 November 2021.  No reply has been filed as of the date of this judgment.

5.Having considered all the materials, I am of the view that this leave application can be properly determined on paper.

B.  What is the Decision the subject of the intended review?

6.The applicant has failed clearly to identify the decision intended to be challenged in the current application.  The Form 86 only identifies the decision by reference to a date, 13 April 2019, with no further description.  Yet the deportation order exhibited to the affirmation was dated 13 April 2018.

7.The Form 86 was filled in by hand.  The Director has read the handwritten date identified as “13 April 2017”, instead of 2019, and has submitted that there was no decision made by the Director against the applicant on 13 April 2017.  From the chronology provided by the Director, it does not appear to me that there was any decision made in respect of the applicant on 13 April 2019 either.

8.It goes without saying that the duty to clearly identify the decision under challenge falls squarely on the applicant.  The failure to identify an existing decision the subject of the intended review alone is sufficient to justify a dismissal of the leave application.

9.That said, given that the applicant acts in person, I shall proceed with his application on the basis that the subject decision is the decision to issue the deportation order dated 13 April 2018. Indeed, at one of the handwritten references on the Form 86 to the relevant date, it does look like a ‘9’ has been written over an ‘8’ or vice versa.  Alternatively, as revealed by the background facts provided by the Director, it appears that the impugned decision may also be the Director’s attempt to execute the deportation order since its issuance.

C.  Factual Background

10.The applicant is a Gambian national born on 19 July 1985.  The applicant last entered Hong Kong on 21 January 2013 on the strength of a visitor visa with 3 months’ limit of stay.  However, he did not depart when the visa expired and has been overstaying in Hong Kong since 22 April 2013.

11.Shortly before that, the applicant made a refugee claim to the United Nations High Commissioner for Refugees on 12 March 2013.

12.On 23 April 2013, that is immediately after expiry of his visa, the applicant surrendered to the General Investigation Section of the Immigration Department, claiming that his life was in danger in his home country, and that he wanted to await the result of his refugee claim in Hong Kong.

13.During most of the overstaying period, the applicant has been either released on recognizance or imprisoned.  After each discharge from prison, the applicant was detained by the Immigration Department for arranging removal, but was soon released on recognizance pending the determination of his non-refoulement claim.

14.From 2013 to 2015, he was convicted of trafficking or possession in dangerous drugs on three occasions, and was sentenced to imprisonment ranging from 8 to 16 months in each occasion:

(1)  On 9 September 2013, he was convicted of trafficking in a dangerous drug and sentenced to 16 months’ imprisonment, being discharged on 3 May 2014.

(2)  On 2 February 2015, he was convicted of possession of a dangerous drug and sentenced to 8 months’ imprisonment, being discharged on 30 May 2015.

(3)  On 29 September 2015, he was convicted of trafficking in a dangerous drug and sentenced to 16 months’ imprisonment, being discharged on 7 July 2016.

15.During his first sentence, the applicant was interviewed in prison as part of the consideration for seeking a deportation order against him.  During the interview, the applicant informed the Immigration Department that his family in Gambia comprised his father, mother, brother, wife and a daughter, and that he had no other nearest relative in Hong Kong.

16.The applicant’s original non-refoulement claim was considered not made, and a further non-refoulement was made on 24 June 2014.  However, on 20 February 2017, the applicant informed the Immigration Department in writing that he wanted to go back to Gambia as soon as possible and he wanted to cancel his non-refoulement claim.  By letter dated 28 February 2017, the Immigration Department informed the applicant that no further action would be taken on that claim.

17.The offences committed by the applicant are deportable offences.  Given that there was no outstanding non-refoulement claim, and the applicant had no objection to deportation and wish to go back to Gambia as soon as possible, the Director applied for a deportation order.  On 13 April 2019, the deportation order was made by the then Permanent Secretary based on the applicant’s conviction of the deportable offences.

18.Whilst, in May 2018, the applicant originally stated no objection to the deportation order, on 4 June 2018 the applicant changed his mind, saying that he was not willing to go back to his home country and that he was applying for registration of marriage with his fiancée in Hong Kong.  Since then, the applicant has resisted deportation, and has been uncooperative as regards arrangements for deportation.  He has repeatedly failed to comply with the re-entry procedures required by the Embassy of The Republic of the Gambia in Beijing, including filling in the application form for a passport and attending telephone interview with the Embassy.

19.The marriage certificate shows the date of marriage to Ms Shek as 16 November 2018.  During interview conducted on 9 April 2019, the applicant claimed his wife was pregnant.  Other than that information, the applicant has not provided updated information regarding his family circumstances currently in Hong Kong and in Gambia.

20.On 29 January 2019, the applicant applied to join Ms Shek for residents as her dependant in Hong Kong.  As the applicant is required to leave Hong Kong, and is prohibited from being in Hong Kong at any time while the deportation order is in force, the application has not been considered by the Director.  The applicant was informed of that by letter dated 4 July 2019.  No application for suspension or restriction of the deportation order has been submitted by the applicant.

21.Whilst the applicant is now released on recognizance, the deportation arrangement is withheld pending the outcome of this case.

D.  Possibly Impugned Decisions

D.1  1^st possible impugned decision: The Deportation Order

22.Under s 20(1)(a)  of the Immigration Ordinance Cap 115 (“IO”), the Chief Executive of Hong Kong has the power to make a deportation order against an immigrant if the immigrant was found guilty of an offence punishable with imprisonment for not less than 2 years.

23.Both the offence of trafficking in a dangerous drug and the offence of possession of a dangerous drug carry with them a maximum penalty of more than 2 years’ imprisonment.  The power under s 20(1)(a)  is delegated to the Permanent Secretary for Security who issued the deportation order for life against the applicant on 13 April 2018.

24.The deportation order is currently in force.  As stated above, no application has been made by the applicant to have the order suspended or rescinded.  Since there is a statutory mechanism to apply for suspension or rescission of the deportation order, the failure for the applicant to first exhaust those alternatives before coming to Court is fatal to his leave application.

25.Also, no discernible reasons have been provided in the Form 86 or supporting affirmation to explain why the deportation order was wrongly issued.  His claimed danger in his home country and the fact that he has a wife in Hong Kong are compassionate or humanitarian factors which the Director may take into account in deciding whether or not to execute the deportation order.  But those factors would not make it illegal or unreasonable for the Permanent Secretary to issue the deportation order in view of the applicant’s criminal convictions.

26.Further, the deportation order having been made on 13 April 2018, the application for leave to apply for judicial review issued 17 months later on 16 September 2019 is woefully out of time, and there is no basis upon which to consider any extension of time.  The delay is substantial, and no reason is provided for the delay.

27.The applicant’s materials disclose no reasonably arguable grounds against the decision to issue the deportation order dated 18 April 2018.

D.2  2^nd possible impugned decision: Executing deportation order

28.On the other hand, the claimed danger to his life upon return to his home country may be relevant if the applicant’s challenge concerns the Director’s attempt to execute the deportation order.

29.The applicant was seeking non-refoulement protection in Hong Kong since 2013 under the then applicable mechanisms applicable.  It is the Director’s policy that non-refoulement claimants would not be removed from Hong Kong pending the resolution of their claims.  But, as noted above, in February 2017, the applicant informed the Director in writing that he wanted to go back to Gambia and requested to “cancel” his non-refoulement claim.  By letter dated 28 February 2017, the Director informed the applicant that that his non-refoulement claim would not be further processed.

30.It is the withdrawal of the applicant’s non-refoulement claim which triggered the issuance of the deportation order and the subsequent attempt to execute it in 2018.

31.Given that the applicant has effectively withdrawn his non-refoulement claim in 2017, there is no impediment standing in the way of execution of the deportation order.  What was said in the applicant’s supporting affirmation echoes a plea for non-refoulement protection but there has been no formal request from the applicant to re-open his claim or to file a new claim.

32.Nor could the applicant’s marriage with Ms Shek help his case.  The applicant has sought but has been refused a dependant visa.  The Director rejected his dependent visa application in reliance on the extant deportation order.

33.Under s 25(1)  of the IO, the Director has the power to remove a person from Hong Kong in respect of whom a deportation order is in force.

34.There applicant’s materials disclose no reasonably arguably grounds to suggest why the Director should not attempt to execute the deportation order.

E.  Conclusion

35.The applicant’s application for leave to apply for judicial review has no merit and is dismissed, with no order as to costs.

The applicant, acting in person

Mr Cheung Siu Nam, Senior Government Counsel, of the Department of Justice, for the putative respondent