Ahmed Ali v. Director of Immigration

HCAL 504/2024

[2024] HKCFI 1505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 504 OF 2024

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D E C I S I O N

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A. Introduction

1.By his Form 86 dated 21 March 2024, the Applicant seeks leave to apply for judicial review so as to challenge the decision of the Permanent Secretary for Security (“PS for S”) dated 27 February 2024, to issue a deportation order for life against the Applicant (“Deportation Order”).

2.The Deportation Order was made pursuant to section 20(1)(a) of the Immigration Ordinance Cap 115 (“Ordinance”). That provision vests the PS for S with the statutory power to make a deportation order against an immigrant, if the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years.

3.I gave directions for the putative respondents to file an Initial Response, which was filed (following the grant of extension of time) on 22 May 2024.  The Initial Response was signed by Ms Vivian Kao, Senior Government Counsel, and Ms Lynn Hui, Government Counsel of the Department of Justice (“DOJ”), for both putative respondents as named and the PS for S.  Ms Kao and Ms Hui appeared for them also at the hearing.

4.By my directions, I also permitted the Applicant to file any Reply to the Initial Response by (the extended deadline of) 3 June 2024, but no such Reply has been filed.

5.Instead, by undated letter received by the Court on 29 May 2024, the Applicant sought to adjourn the hearing fixed for 5 June 2024, on the basis of an outstanding/pending legal aid application.  I indicated that the hearing would go ahead, and that I would deal with any adjournment application at the hearing.  But I was subsequently informed by the DOJ that the Applicant’s legal aid application had in fact already been refused on 22 May 2024.

6.At the hearing, the Applicant acted in person.  He was produced from immigration detention for that purpose.

B.  Further Application for Adjournment

7.First, the applicant requested more time (i.e. an adjournment), because although his legal aid application had been refused he had then written to the Hong Kong Bar Association to seek the legal assistance that he said he needed in order to fight his case (though he was not able to produce a copy of the form or letter or documents provided to the Hong Kong Bar Association).

8.The Applicant also suggested that this hearing had been fixed by the Immigration Department “in a hurry”, but I informed the Applicant that the procedural timetable and hearing date were fixed by the Court, so as to try to deal with his application expeditiously and efficiently.

9.I declined any adjournment, for the following broad reasons: (1) the procedural timetable set by the Court had already taken account of the 42-day stay triggered by the Applicant’s legal aid application; (2) the legal aid application would have considered both the Applicant’s financial position and a view of the merits of the present proceedings for which legal aid was sought; (3) legal aid had been refused; (4) the merits of the application for leave to apply for judicial review could fairly and appropriately be dealt with without further adjournment.  I also took into account that other points were made by the Applicant (which might be described as humanitarian or compassionate arguments) were not relevant to the question of an adjournment, but could be deployed in the context of the actual application for leave to apply for judicial review.

10.Therefore, the hearing of that actual application proceeded.

11.At the end of the hearing, I reserved my decision to be handed down later.  This is my Decision.

C.  Background

12.The relevant background has been helpfully set out in the Initial Response, the facts within which I can broadly adopt and summarise as follows.

13.The Applicant is a Pakistani national, born on 1 October 1988.

14.Though he currently uses the name of “Ahmed Ali” (“Current Identity”) (as shown in the title to this action), he previously used a different identity of “Umar Asghar Butt” (“Previous Identity”).

15.The Applicant entered Hong Kong illegally on 13 August 2009, and was arrested by the Police for legal remaining on the same day.  Upon arrest, he was found to be in possession of a Pakistani passport under the name of his Previous Identity.  He was released on recognizance under his Previous Identity on 21 August 2009.

16.On 15 February 2012, he was convicted of one count of ‘possession of a dangerous drug’, and was sentenced to 4 weeks’ imprisonment suspended for 12 months and fined HK$3,000.

17.On 6 June 2012 he was convicted of one count of ‘possession of a dangerous drug’ and one count of ‘breach of suspended sentence’, and was sentenced to 4 weeks’ imprisonment respectively.

18.Upon release from prison on 6 July 2012, he was detained by the Director of Immigration pending decision as to whether or not a removal order should be made against him.  He was again released on recognizance on 27 July 2012, but failed to report recognizance from 7 September 2012.

19.On 5 November 2012, he failed to appear at the Magistrates’ Court for the alleged offence of illegally remaining and a warrant of arrest was issued against him.  There is no movement record of his departure from Hong Kong under his Previous Identity.

20.However – and only shortly afterwards – on 25 November 2012, the Applicant married Madam Liu Chui Ying (“Wife”) in Pakistan.  The Applicant married under his Current Identity.  The Wife is a Hong Kong permanent resident (“HKPR”).

21.There is one child of the family, namely a boy born on 13 October 2019 (“Son”), whose HKPR status has been established.  Whilst formerly named Ahmed Tak Lam, that name was renounced and abandoned by a Deed Poll dated 31 December 2021, and the Son is now known as Liu Tak Lam.

22.Using his Current Identity, the Applicant submitted applications for entry to Hong Kong for residence as a dependant of his Wife on 23 July 2013 and 16 October 2014.  However, no further actions were taken as regards those applications because no document, information or reply was received upon request.

23.On 1 September 2018, the Applicant submitted his third application under the Current Identity.  It was approved on 6 March 2019, and the Applicant last entered Hong Kong on 8 May 2019, with permission to remain as a dependant with limit of stay last extended until 28 February 2023.  The Applicant has overstayed in Hong Kong since 1 March 2023.

24.In the meantime, on 17 April 2022, the Applicant (under his Current Identity) was arrested for ‘possession of a dangerous drug’, for which he was subsequently convicted.  On 23 June 2022 he was sentenced to one month’s imprisonment suspended for 24 months.

25.On 30 September 2022, the Applicant was sentenced to 6 weeks’ imprisonment for ‘failing to surrender to custody as appointed by a court’, and also sentenced to 14 months’ imprisonment for ‘remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong’.

26.Also, a record check revealed that the Applicant had previously entered Hong Kong illegally under his Previous Identity.  The local Consulate General of the Islamic Republic of Pakistan confirmed that the Applicant was formerly named under his Previous Identity, but subsequently changed his name to his Current Identity, and was issued with a new Pakistani passport on 1 April 2013.

27.Subsequent to his two identities coming to light, the Applicant submitted in writing on 7 July 2023 that his true identity should be the Current Identity.

28.It can also be mentioned that, using his Previous Identity, the Applicant had lodged a claim in 2009 which was subsequently assessed as a non-refoulement claim (“NRC”), but on which no further action was taken after 27 January 2016 in view of the lack of response from the Applicant.  Further, using his Current Identity, the Applicant requested to make a subsequent NRC on 7 July 2023.  However, that NRC was subsequently withdrawn, and on 29 August 2023 the decision was made to take no further action on it.

29.It can further be mentioned that the Applicant is currently in immigration detention, pursuant to section 32(3) of the Ordinance, namely as a person the subject of a deportation order detained pending removal or deportation from Hong Kong.  In addition to these proceedings, the Applicant has issued a habeas corpus application, which will be heard before a different Judge on 12 June 2024.  I make no comment on the merits of that habeas corpus application, but I have ensured that this Decision will be available prior to the hearing of it.

30.I was further informed by Ms Kao at the hearing that the Immigration Department has made provisional arrangements for the removal of the Applicant from Hong Kong on 19 June 2024, subject of course to the clearance of any legal impediment to removal.

D.  The Deportation Order

31.On 21 March 2023, whilst serving his prison sentence, the Immigration Department informed the Applicant of an intended consideration of a deportation order against him, by serving on him a Notice of Consideration of Deportation.

32.The Applicant objected to the intended deportation on the ground that his family members (i.e. the Wife and Son) are living in Hong Kong.  On 3 April 2023, 27 July 2023 and 9 February 2024, the Applicant and his Wife also made further verbal and/or written representations objecting to deportation, on grounds which were subsequently recorded in an internal memorandum M.4, prepared for the consideration of the PS for S as to whether or not to make the Deportation Order, as follows:

13.  Mr Ahmed was informed of the intended deportation on 21 March 2023 while serving his imprisonment terms.  In response, he objected against deportation order.  He stated that he wanted to stay in Hong Kong because his family members were living in Hong Kong (Appendix II).

14.  During an interview on 3 April 2023, Mr Ahmed’s wife, Madam Liu, verbally objected against his deportation and stated that –

(i)    Master Ahmed and she objected against Mr Ahmed’s deportation as they hoped that he could stay in Hong Kong with them;

(ii)    Mr Ahmed maintained a good relationship with all family members and Mr Ahmed had deep regrets for his wrongdoings;

(iii)  Mr Ahmed was a construction site worker and was the sole breadwinner of the family.  She received Comprehensive Social Security Assistance after he was imprisoned;

(iv)  she suffered from pre-eclampsia during pregnancy and Master Ahmed was a premature baby.  Master Ahmed and she were both receiving medical attention in Hong Kong;

(v)    Mr Ahmed was found positive to Human Immunodeficiency Virus (“HIV”) in April 2021 and he refused to receive treatment or medication, while she and their son were found negative upon HIV test; and

(vi)  the parental love from Mr Ahmed was important to Master Ahmed’s well-being. Madam Liu hoped that ImmD would give a chance to Mr Ahmed for family union in Hong Kong.

15.  Subsequently, Madam Liu submitted an undated written representations objected against Mr Ahmed’s deportation.  Apart from repeating the above verbal submissions, she stated, among others, that (Appendix III) –

(i)    Mr Ahmed was a hardworking, responsible and filial man.  She requested for a final chance for Mr Ahmed;

(ii)   she did not mind that Mr Ahmed was infected with HIV.  She was willing to spend her life with him and they had been together for over ten years;

(iii)  her health and kidney conditions deteriorated due to pre-eclampsia.  She needed to have regular medical treatment.  Being a premature baby, her son’s health and trachea conditions were also relatively weak; and

(iv)  her left eye had undergone surgery in 2010 for retinal detachment.  Her left eye also suffered from glaucoma which affected her daily lives and work. Mr Ahmed was her helping hand and sometimes he also helped taking care of their son.

16.  On 27 July 2023, Madam Liu submitted another written representation. Apart from repeating the points mentioned before, she stated, among others, that (Appendix IV) –

(i)    she had been looking after her son in the absence of Mr Ahmed even when she was sick.  Her family members had no spare time to look after her son;

(ii)   she went to Pakistan for about three times when she was young.  The environment of Pakistan was not very pleasant.  She once experienced a terrorist attack and fortunately she was not hurt.  She knew that Pakistan was dangerous and she would not bring her son to reside there as they were both HKPRs;

(iii)  education in Pakistan was not as good as that in Hong Kong.  Hong Kong could provide a good learning environment for her son;

(iv)  Mr Ahmed previously had a stable job.  His employer would still employ him after his discharge from prison;

(v)    Mr Ahmed wrongly took cannabis again because of high work pressure; and

(vi)  Mr Ahmed had received punishment by the Court and he was not endangering security or safety of the society.  He regretted for his wrongdoings.  She wished a final chance to be given to Mr Ahmed to stay in Hong Kong as well as giving her son a complete family for family reunion in Hong Kong.

17.  On 7 February 2024, Mr Ahmed was requested to provide further representations, if any, on the intended deportation.  In response, he maintained objection against deportation and stated that he did not want to go back to Pakistan (Appendix VI).  He also gave consent to ImmD to contact Madam Liu again regarding his deportation (Appendix VII).

18.  During an interview on 9 February 2024, Madam Liu verbally raised objection against deportation but she would not provide any written representations.  She stated that –

(i)    her son missed Mr Ahmed and needed his parental love very much;

(ii)   her son had asthma.  Pakistan was too dangerous for her son;

(iii)  she loved her husband and did not mind that he was infected with HIV;

(iv)  Mr Ahmed regretted and had received punishment for his wrongdoings;

(v)   Mr Ahmed’s employer would consider to continue to employ him after his discharge; and

(vi)  She requested that Mr Ahmed be allowed to stay in Hong Kong with her and her son.

33.On 16 February 2024, the Director made an application to the Secretary for Security for a deportation order for life against the Applicant, on the ground that his continued presence in Hong Kong was undesirable.

34.On 27 February 2024, the PS for S (acting under the delegated authority of the Chief Executive) made the Deportation Order for life against the Applicant.  The basis of the exercise of the statutory power given under section 20(1)(a) of the Ordinance was the Applicant’s conviction in his Current Identity of ‘remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong’ under section 38(1)(b) of the Ordinance.

35.In the internal memorandum M.4 mentioned above, the comments from the Director were recorded, and the recommendation made to the PS for S (which he subsequently supported) was phrased as follows:

Decision

23.  The assessment and recommendation of the Director are reasonable and agreeable.  Mr Ahmed and Madam Liu’s representations regarding the intended deportation have been carefully considered.  It is noted that Madam Liu and her son, Master Ahmed, our HKPRs.  The deportation order, if made, may deprive Mr Ahmed of his proximity to his wife and son in Hong Kong.  However, they are still free to visit or reunite with him elsewhere outside Hong Kong if they wish to do so. It remains a matter of choice.  There is also no indication that Mr Ahmed, being a national of Pakistan, will be deprived of state protection in the case that his life is put into risk in an unlawful manner after his deportation to Pakistan.

24.  We concur with the Director’s view that it will not be in the public interest to allow Mr Ahmed to remain in or come to Hong Kong again given the seriousness of his criminal conviction.  Having taken into account all of the circumstances of the case, I recommend that Mr Ahmed should be deported for life.

36.The Deportation Order was formally served on the Applicant on 17 April 2024 (though he clearly had notice of the relevant decision sometime in March 2024).

E.  Intended Grounds of Review

37.Indeed, as already indicated above, the Applicant brought these proceedings by his Form 86 dated 21 March 2024.

38.No intended grounds of review are identified on the Form 86.  That is in breach of the mandatory requirement set out in RHC Order 53 rule 3(2)(a) that an application for leave must be made by filing a notice in the Form 86 containing the statement of, amongst other things, the relief sought and the grounds on which it is sought.

39.However, the Applicant filed an affirmation in support which says it sets out in an attachment his “Grounds”.  As has been summarised, in my view fairly, in the Initial Response, the Applicant appears to place general reliance on the following grounds:

(1)  He has been an “ID holder” since 2019 (“Ground 1”).

(2)  He is married to his Wife, a HKPR, and they have one Son born in wedlock in Hong Kong, who is also a HKPR (“Ground 2”).

(3)  The Deportation Order will destroy his family, and will cause emotional and financial suffering for them, including because the Wife and young Son need him (“Ground 3”).

40.At the hearing, the Applicant also made the following submissions (in my summary of them), which he emphasised were not intended to address the law but were spoken from his heart:

(1)  His Wife and Son are both Hong Kong born.

(2)  The Son was born prematurely, and has had some breathing issue.

(3)  The Wife has had eye surgery and requires regular follow-up.

(4)  He has been taking care of the family, as its head, and by working in the construction industry to meet all family expenses.

(5)  The Wife does not work because the Son is too young and she takes care of him.

(6)  The Deportation Order will destroy his whole family – especially the Son and his future.

(7)  The Applicant helps to care for the Son, including by reading bedtime stories and taking him to the park.  That is why the Son keeps asking the Wife where his father is, and when he will come back.

(8)  The Applicant lost his own father as a young child and knows what effect it can have, which he does not want his own Son to suffer or experience.

(9)  The Applicant admits he made a mistake when he entered Hong Kong illegally the first time, but he has already served sentence for that.

(10)  His Wife had tried to obtain a further visa for him whilst he was in prison, but the impediment was his expired passport, and when he sought to apply for a new passport, he was instead provided with an out-pass and the Removal Order made against him.

(11)  When told of the consideration of making the Deportation Order, the Applicant and the Wife made many representations and wrote letters, but the decision made seemed to have ignored them.

(12)  He does not know why the Immigration Department wants to split the whole family, or why it would not see the effect on the whole life of the Son.

(13)  Deporting the Applicant would not be in the best interest of his Son, and when making the Deportation Order the decision-maker did not think of his Son.

(14)  Because the Immigration Department has failed to take pity, that is why the Applicant has applied for judicial review.

(15)  He is grateful that the Hong Kong government provides some funds to his family for rent and food, but it is not sufficient to maintain their lifestyle.

(16)  He is optimistic that he will be given justice, and that the Court will give him a chance on his promise that he will live as a good husband, father and citizen in Hong Kong.

41.I also accepted receipt of a document written and provided by the Wife, who was present at the hearing.  Though written in Chinese, it has been interpreted to me.  I think it is fair to say that it essentially reiterates a number of the points which the Wife had previously made in representations during the consideration of the making of a deportation order against the Applicant.  In particular, she emphasised various aspects of the negative impact that the Applicant’s continued detention has had, and the proposed deportation will have, on the Son.

42.I have taken these various matters into account, and accorded them such weight as seems to me to be appropriate to the circumstances of the present application.

F.  Any Merits?

F.1     The Approach

43.As Ms Kao correctly reminds the Court, its role in judicial review proceedings is supervisory, being concerned with the legality rather than the merits of the decision under challenge.  Particularly in the immigration context, the law confers upon the decision-maker a wide discretion in immigration matters.

44.For example – and I do not think there is any need to cite authority to identify the following settled principles – it is established that:

(1)  The legislature has identified by the provisions of the Ordinance that an offence punishable with imprisonment for not less than two years is by itself sufficiently serious to justify the making of a deportation order against an immigrant.

(2)  The Permanent Secretary is given a broad discretion in the exercise of the powers to make a deportation order under section 20(1)(a) of the Ordinance, where the balancing exercise is guided by considerations of public policy.

(3)  The Ordinance does not stipulate any mandatory considerations that must be taken into account, and the Permanent Secretary is not under any legal duty to take into account any specific factors.

(4)  Subject only to Wednesbury unreasonableness, what is and what is not a relevant consideration to have in mind, including what weight should be given to any factor regarded as relevant, is for the decision-maker and not for the Court.

(5)  The Permanent Secretary is not required by law to have regard to humanitarian and compassionate considerations in making immigration decisions, even where family ties might be affected.

(6)  However, if the Permanent Secretary does take such matters into consideration, the weight to be attached to any particular humanitarian consideration is a matter for the Permanent Secretary and not for the Court, subject again only to Wednesbury unreasonableness.

(7)  Wednesbury unreasonableness is a high threshold for a challenger to meet.

F.2  Ground 1

45.The Applicant does not hold HKPR status and does not enjoy the right of abode in Hong Kong.  He is therefore an immigrant within the meaning of section 20(1)(a) of the Ordnance, the powers under which have been triggered by the Applicant’s conviction for an offence punishable with imprisonment for not less than two years.

46.I agree with Ms Kao that previously granted permissions to stay by way of a dependant visa and having held any Hong Kong Identity Card does not curtail the power given to the Permanent Secretary under section 20(1) of the Ordinance.

47.Though Ms Kao also submitted that the making of the Removal Order on 30 August 2023 invalidated the previous permissions to stay granted.  However, I do not think that is important in the context of this case, not least where by that date the Applicant was an overstayer (even if that was because the Applicant had difficulty in renewing any visa because of an expired passport).

48.There is nothing under what I have called Ground 1 which identifies a reasonably arguable public law ground of review with any realistic prospect of success.

F.3  Ground 2

49.Nor does the mere fact that the Applicant’s Wife and Son have HKPR status show anything under what I have called as Ground 2 which identifies a reasonably arguable public law grounds of review with any realistic prospect of success.

50.Nor is there any apparent procedural unfairness in the manner of making the Deportation Order.  The Applicant and his Wife were given various opportunities, across many months, to make representations about whether an order should be made.  They took those opportunities, and the representations that they made were taken into account in the making of the decision leading to the Deportation Order.

F.4  Ground 3

51.Further, despite not being legally bound to take into account any family, compassionate or humanitarian considerations when deciding whether or not to make the Deportation Order, the Permanent Secretary did in fact take into account the representations made by the Applicant and the Wife, together with all other relevant facts and circumstances of the case at the time of making the decision.

52.What was noted by the PS for S is evident from the matters recorded in the internal memorandum M.4 (see above).  They included the thrust of the matters also put forward in submission by the Applicant at the hearing, and in the letter from his Wife which I accepted to read.

53.I acknowledge the sympathy which might be held for the position of the Applicant’s Wife and Son, perhaps in particular the Son.

54.However, the weight accorded to the family, humanitarian and or compassionate considerations was a matter for the PS for S, not for the Court (unless it can be demonstrated that there has been Wednesbury unreasonableness).  I accept the submission made for the PS for S that the considerations taken into account by him, and the weight given to such considerations, in determining whether or not to make the Deportation Order cannot be reasonably argued as having been Wednesbury unreasonable.

55.I also accept the submission that a person is not entitled to rely on family rights of HKPRs or other Hong Kong residents to challenge immigration decisions refusing them to permission to enter or remain in Hong Kong to be with their children.  Therefore, it is not open to the Applicant to assert any purported interests or right to family or the best interests of the child to challenge the lawfulness of the decision to issue the Deportation Order.

56.There is nothing under what I have called Ground 3 which identifies any reasonably arguable public law ground with any realistic prospect of success.

G.  Result

57.In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.

58.Ms Kao has asked that costs should follow the event, so that the Applicant should be ordered to pay the costs of the putative respondents.  Whilst I acknowledge some force in that submission, in the overall circumstances of this case, and in the exercise of my broad discretion as to costs, I have decided to make no order as to costs.

The applicant, acting in person

Ms Vivian Kao, Senior Government Counsel, and Ms Lynn Hui, Government Counsel, of the Department of Justice, for the putative respondents