Mohammad Farooq v. Permanent Secretary for Security and Another

HCAL 374/2022

[2022] HKCFI 2383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 374 OF 2022

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BETWEEN

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D E C I S I O N

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A.  Introduction

1.By his Form 86 dated 23 May 2022, the Applicant seeks leave to apply for judicial review of the decision dated 10 June 2020 of the 1^st Putative Respondent (“PS for S”), refusing to suspend or rescind a Deportation Order made against the Applicant (“Decision”).

2.The Deportation Order itself had been made as long ago as 28 November 2016, and was served on the Applicant on 6 January 2017.

3.On 24 May 2022, I directed the PS for S and the 2^nd Putative Respondent (“Director”) to file an Initial Response to the matters raised in the Form 86. The Initial Response was filed on 28 June 2022, together with certain documents referenced in it. The Initial Response opposed the leave application, on the basis that (a) the application was substantially out of time and (b) in any event, the Applicant could not satisfy the threshold test of demonstrating reasonable grounds of review with reasonable prospects of success.

4.The Applicant has failed to avail himself of the leave granted to him to file a Reply to the Initial Response, whether by the deadline of 12 July 2022 or otherwise.

5.On 24 May 2022, I also directed an oral hearing of the application for leave to apply for judicial review, and fixed the oral hearing for today.

6.Prior to the hearing, Mr Sunny Li, Senior Government Counsel, and Mr Frenki Fung, Government Counsel, have filed short skeleton submissions, essentially relying on those matters set out in the Initial Response.

7.The Applicant has filed no submissions. At the hearing today, the Applicant has failed to appear, despite extra time spent waiting for him.

8.Having considered the various materials and submissions, this is my Decision.

B.  Background

9.The Applicant was born in Pakistan on 12 September 1971. He was married in Pakistan on 22 July 1990, to a Hong Kong permanent resident. In November 1990, he arrived in Hong Kong, travelling on his Pakistani passport and as a visitor. But in February 1991, the Applicant applied to the Immigration Department (“ImmD”) to join his wife as a dependant. The application was approved, and his limit of stay on the dependent status was last extended until 24 May 1995.

10.This is because, though the Applicant applied for further extension of stay in May 1995, he failed to attend an interview or to respond to ImmD’s letters, and thereafter the Applicant’s wife informed ImmD in October 1995 and August 1997 that she wished to withdraw sponsorship of the Applicant’s application. In those circumstances, further extension of stay was refused, and the Applicant departed Hong Kong on 30 August 1997.

11.Things changed again when, in May 1999, the Applicant arrived in Hong Kong as a visitor, but again applied to join his wife as a dependant. This time with his wife’s willingness to sponsor his application, the application was approved by ImmD in August 1999. The dependant visa was extended on occasions, with the limit of stay last extended until 11 March 2013.

12.The Applicant has various criminal convictions. First, on 4 December 2003, the Applicant was convicted of theft and sentenced to 4 months’ imprisonment on 18 December 2003. Second, on 12 February 2004, the Applicant was again convicted of theft and sentenced to 2 months’ imprisonment. Third, on 23 October 2013, the Applicant was convicted of attempted burglary, and was sentenced to 3 years’ imprisonment.

13.In between the second and third convictions, the Applicant was issued with a letter dated 29 March 2004 from ImmD to inform him that, whilst it was not proposed to make an application for a deportation order against him, such action would be reconsidered should he again be convicted of a criminal charge in court, or otherwise come to seriously adverse attention. The letter was served on the Applicant on 1 April 2004, and its content was explained to him with the assistance of an interpreter.

14.In September 2005, the Applicant submitted an application for verification of eligibility for permanent identity card. He subsequently withdrew that application, but resubmitted a similar application in April 2008. That was refused on 27 August 2008.

15.Following the third conviction, and on the basis that the Applicant was not a Hong Kong permanent resident and that he had been found guilty of an offence punishable with imprisonment for not less than two years, the PS for S made the Deportation Order against the Applicant on 28 November 2016 (served on him on 6 January 2017). The Deportation Order was made under section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”).

16.ImmD has since twice attempted to deport the Applicant, on 7 February 2018 and 26 March 2018. Both attempts failed as a result of the Applicant’s failure to show up at the Hong Kong International Airport. Also in February and March 2018, and obviously connected, the Applicant’s solicitors requested ImmD to withhold execution of the Deportation Order. At around the same time, the Applicant was pursuing an application for legal aid (which later failed).

17.On 29 October 2019, the Applicant made a written request for suspension or rescission of the Deportation Order. On 22 November 2019, he provided written reasons in support of that request. On 10 June 2020, the PS for S made the Decision, expressing that he had not found sufficient justification for suspending/rescinding the Deportation Order.

C.  Grounds for Intended Review

18.In his Form 86, the grounds upon which relief is sought are set out as follows:

The Applicant believes that the Director(s) of Immigration and the Permanent Secretary of Security has reached the decision wrongly in assessing his deportation order. He believes that the decision was not reasonable and unfair (as required by the Wednesbury test). Under s.20 of the Immigration Ordinance, the power to deport is neither mandatory nor automatic upon conviction of a criminal offence. The Immigration Department and The Security Bureau has no particular or accessible policy implemented or publicized as to the circumstances under which the power to deport under s.20 of the Immigration Ordinance would be invoked and on what considerations discretion not to deport would be exercised.

In the current case, apart from the fact that the applicant has been convicted of a criminal offence, there is no reason given as to why and how the secretary for security decided to deport the applicant for a period of life.

The right to family is protected under the Basic Law and the Bills of Rights. From the Permanent Secretary for Security’s Decision, it was evident that the director has failed to appreciate or give the proper importance or weightage to the fact that applicant’s whole family is Hong Kong Permanent Resident and that it will be unfair for the Hong Kong residents to travel outside of Hong Kong to join the applicant and to enjoy their basic right to family, to which they are entitled to and such right is protected under Hong Kong Bill of Rights. This has indeed led to an unfair outcome of rejecting the Applicant’s representations against the suspension/rescision of Deportation Order.

The Applicant submits that the Director has failed to take such argument into account or that the Director has failed to give enough weight to such argument before reaching the Decision. The Director failed to consider or give enough weightage to those evidence and ruled otherwise.

This was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. The director has failed to attain the high standard of fairness required by the Wednesbury test in the decision with the arguments put forward above. As such, the decision of the director should be considered unreasonable in the scope of Public Law. The Applicant respectfully asks the Court to grant leave to the Applicant for judicial review.

19.These points might be summarised as follows:

(1)  the exercise of power under section 20 of the Ordinance is not mandatory, but there are no publicly accessible policies as to the circumstances under which the power would be invoked, or how the discretion not to deport would be exercised;

(2)  apart from the fact of his convictions, no reasons have been given as to why and how the decision to deport the Applicant for life (presumably as opposed to a shorter period);

(3)  the decision has failed to take into account and give proper weight to the fact that the Applicant’s whole family comprises Hong Kong permanent residents, and it would be unfair for them to have to travel outside of Hong Kong to join the Applicant to enjoy their basic rights to family life;

(4)  an unfair attitude has been shown, and the high standard of fairness required by the Wednesbury test has not been met.

20.As can be seen, these grounds essentially seek to attack the decision to make the Deportation Order itself (even if it might be thought that some of points raised might be relevant to the consideration whether or not to suspend or rescind the Deportation Order).

D.  Delay

21.It is trite that an application for leave to apply for judicial review should be made as soon as possible and in any event within three months of the date of the decision sought to be impugned. In this case, the Decision was made on 10 June 2020, but the Form 86 was issued only on 23 May 2022. That is a substantial delay, being a period approaching 2 years from the date of the Decision, and around 20 months after the expiry of the three-month period set by the rules.

22.But, as I have already pointed out, the grounds on which the relief sought in the Form 86 are essentially directed at the decision to make the Deportation Order on 28 November 2016 – rather than being directed at the Decision. The Deportation Order was made more than five years before the challenge in these proceedings was raised.

23.Mr Li has properly drawn my attention to the principles to be applied on an application for extension of time for judicial review, as can be found summarised by the Court of Appeal in AW v Director of Immigration (unreported, CACV 63/2015, 3 November 2015) at §27, being broadly:

(1)  courts should scrutinise with care any delay in making an application, but the rules are not intended to be applied in a technical manner;

(2)  if no prejudice has been caused, the court will not rely on the rules to deprive a litigant who has behaved sensibly and reasonably of the relief to which is otherwise entitled;

(3)  on the other hand, it should be kept in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted, and that policies and decisions put into uncertainty for many months after they have been made and acted upon;

(4)  what may constitute a good reason for extending time will depend upon the circumstances of each case, and is likely to be a multi-faceted question;

(5)  amongst the non-exhaustive factors likely to be of significance are: (i) the length of the delay; (ii) the explanation for the delay; (iii) the merits of the substantive application; (iv) prejudice; and (v) whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event;

(6)  the longer the delay, the more cogent the reason has to be for extending time;

(7)  a credibly valid explanation for the delay will strengthen the request for the indulgence to be granted in the court’s discretion, whilst the absence of an acceptable explanation will weaken the request;

(8)  the merits of the intended challenge may be a significant factor, but an applicant who sleeps on his rights may be barred from pursuing them in judicial review even though he may have a meritorious case;

(9)  prejudice may be two-sided – the prejudice to the applicant if time is not extended, and the prejudice to the respondent and the public administration if a challenge is allowed to proceed out of time;

(10)  these well-established principles are meant to be applied flexibly, always with regard to the particular circumstances of each case, and any attempt to lay down a more rigid approach for certain categories of case will not be either possible or helpful.

24.In this case, the delay is considerable, the Applicant has not actually applied for any extension of time, and he has certainly not given any proper explanation for delay (except to offer that he was in the progress of applying for legal aid and his application was twice refused). It can also be noted that the Applicant’s legal aid appeal, and his wife and children’s legal aid appeals, were dismissed by the High Court as long ago as 10 December 2018.

25.Even if the time for challenge – which really began with the making of the Deportation Order in late 2016 – is taken to have started again by the Decision in mid-2020, the period of delay since that date is wholly unexplained.

26.I also take into account the merits of the intended application, which (as will be seen below) are weak. On that basis, there is also little question of any prejudice to the Applicant if time were not to be extended.

27.Looking overall at the particular circumstances of this case, and adopting the flexible discretionary approach necessary, I do not think this is a case in which an extension of time to apply for judicial review should be granted.

28.That itself is sufficient to ground the refusal of the application.

E.  Lack of Merit

29.The individual points sought to be raised by the grounds can be addressed as follows:

(1)  There is no public law duty generally requiring decision-makers to publish policies setting out their criteria for exercising statutory powers: see Ghulam Rbani v Secretary for Justice (2014) 17 HKCFAR 138 at §66. Therefore, the Applicant’s complaint in this regard has no merit.

(2)  It is settled that a deportation order is prima facie for life, absent special circumstances. Further, the internal minutes dated 10 June 2020, explaining the basis of the Decision, identify that all circumstances of the case were taken into account by the PS for S, who found no special circumstances warranting deportation only for a limited period. The weight to be given to the various factors in making the Decision was a matter for the PS for S, and is not open to challenge except on Wednesbury grounds. Therefore, the Applicant’s complaint in this regard has no merit.

(3)  It is settled that section 11 of the Hong Kong Bill of Rights Ordinance Cap 383, operated at a constitutional level, excludes reliance on the right to family in the Bill of Rights and the Basic Law in the immigration context. Further, a person who has no right to remain in Hong Kong cannot rely on the family rights of his wife and children (even if they are Hong Kong permanent residents) to establish any right to remain here. Matters related to family rights and the impact on family members fall within potential humanitarian or compassionate grounds in the immigration context. The PS for S and the Director are not bound to take such matters into account, but if they do so it is for them to decide the weight to be attached. Here, that the family circumstances were taken into account and the weight given to those circumstances in making the Decision is identified in the internal minutes. Therefore, the Applicant’s complaint in this regard has no merit.

(4)  Nor is there any arguable basis to say that the Decision was Wednesbury unreasonable, or the result of any failure to attain any relevant standard of fairness.

30.For the avoidance of doubt, I also do not see any other arguable basis for interfering with the Decision on the basis of any public law failure.

F.  Conclusion

31.In the circumstances, I dismiss the Applicant’s application for leave to apply for judicial review, with no order as to costs.

The applicant was not represented and did not appear

Mr Sunny Li, Senior Government Counsel and Mr Frenki Fung, Government Counsel, of the Department of Justice, for the putative respondents